# Opposition Brief — Beals v. Kiewit Pacific Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1707%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1998 - **Citation:** 522 U.S. 1108 ## Text an Supreme Gourt, U.S. FIL ED 2 JAN 8 1998 No. 97-782 eran In The Supreme Court of the United States October Term, 1997 / BRENT BEALS, Petitioner, KIEWIT PACIFIC COMPANY, INC., Respondent. + On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit + BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI * KosayASHI, Sucita & GoDA Ernest H. Nomura* CuHarLes W. GALL 999 Bishop Street, Suite 2600 First Hawaiian Center Honolulu, Hawaii 96813 (808) 539-8700 Counsel for Respondent * Counsel of Record COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTION PRESENTED Whether the United States Court of Appeals for the Ninth Circuit correctly held that an employee whose employment was covered under the terms of a collective bargaining agreement could not assert a breach of con- tract claim based on Hawaii state law against his former employer because Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a), preempts such a claim, as adjudication of the claim substantially depended on an interpretation of the collective bargaining agreement and the contract upon which the employee based his claim was subsumed by the collective bargaining agreement. ii LIST OF INTERESTED PARTIES Pursuant to Rule 29.6 of the Rules of the Supreme Court of the United States, Respondent Kiewit Pacific Co). discloses as follows: Respondent Kiewit Pacific Co.’s par-- ent company is Kiewit Construction Company. Respon:- dent Kiewit Pacific Co. does not have any nonwholly owned subsidiaries. ili TABLE OF CONTENTS Page SNS BND, og Svc sey vce cvacccveesonees i LIS? OF INtemeot ew PARTIES ........-<52-0.55.. ii PRI HP GUN eo oo 56 8c cess cweessccesccsee iii Tee CP PU TIPORIIIDS 6 oo. oo vc vec dedivesc eves iv eG a a a Pe re 1 yyy ge ee 12 ty: Saas re 1 Re roth y 4 hig oS atsie dn xb wnod x ce bce'e dy 0s 3 I. SUMMARY OF ARGUMENT.................. 3 II. THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT’S DECISION IS CONSISTENT WITH THIS COURT’S DECI- Ill. THERE IS NO “CONFLICT AMONG THE CIR- CUITS” ON WHETHER CLAIMS SUCH AS PETITIONER’S ARE PREEMPTED BY THE LABOR MANAGEMENT RELATIONS ACT.... 10 PE vice cebevcessastwvsvsccscevstey tows 20 iv TABLE OF AUTHORITIES CASES Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985)...... 7 Anderson v. Ford Motor Co., 803 F.2d 953 (8th Cir. 1986), cert. denied, 483 U.S. 1011 (1987) jrond si pig rin ta eoe Be heed ee Re eRe 10, 11, 13, 15, 16 B.F. Goodrich Co., 115 N.L.R.B. 722 (1956)............. 1 Beals v. Kiewit Pacific Co., 114 F.3d 892 (9th Cir. nf EE See ee ana Porky ‘; 3 36. ia, 39, 2 Berda v. CBS, Inc., 881 F.2d 20 (3d Cir. 1989), cert. denied, 493 U.S. 1062 (1990)............ 10, 11, 12, 13 Calleon v. Miyagi, 76 Haw. 310, 876 P.2d 1278 (Haw. RFR ik. k 5s Ga Carne ae> eWESSe 6 LDR SLA CRO sss 7 Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987) .. passim Cleary v. American Airlines, Inc., 111 Cal. App. 3d GES: SUNG bs Soin 9 isn nn Cine Cay ese a Ee REE EN eee cas o> 5 Darden v. U.S. Steel Corp., 830 F.2d 1116 (11th Cir. BONER os in 055 kee seckud banes Ren os 18, 20 Eitmann v. New Orleans Pub. Serv., Inc., 730 F.2d 359 (5th Cir. 1984), reh’g denied, 738 F.2d 437, cert. denied, 469 U.S. 1018 (1984)....... 16, 17, 18, 19 J.I. Case Co. v. NLRB, 321 U.S. 332 (1944)....8, 9, 13, 15 Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 By Re Pen eRe Tee pi eee ee epee a ODEN ae 6 NLRB v. Hendricks County Rural Elec. Membership Cy ee Sra Be IIE ook 8005548 Fas kkk Seas 1 Pugh v. See’s Candies, Inc., 116 Cal. App. 3d 311 COPE <6 cbs d vader bare hax meketaneeeuus tac Ms yee Vv TABLE OF AUTHORITIES - Continued Page United Steelworkers of America v. American Mfg. Co., Pe Ne I SE 5 Ad wine ey daca ke Vo wa a aks 0.470. q United Steelworkers of America v. Enterprise Wheel & Car Carp, 20d Ue. FO OGG. nw senin ens vsecscesces 7 United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960)................. 8 Vieira v. Robert's Hawaii Tours, Inc., 2 Haw. App. Ss SOE BANE IED bo wee een oeeenecSacsecrscces 6 White v. National Steel Corp., 938 F.2d 474 (4th Cir. 1991), cert. denied, 502 U.S. 974 (1991)............. 16 STATUTES ee ee SE sigs Ni wap hs ane Ve aed wes Sk cae i, 3 RULES OF THE SUPREME CoOuRT OF THE UNITED STATES ES SAB TSE RE OE eee AOR Al os ROE A TO Te ees Tb Rega, ii ES 0k VE EATS Ps Ws RAs 1 JURISDICTION This case was docketed on November 10, 1997. Pur- suant to Rule 30.4 of the Rules of the Supreme Court of the United States (“Rules”), an application to extend time to file this Brief in Opposition and other documents under the Rules was made on December 2, 1997. The Clerk of the Court extended the time to file the Brief in Opposition and other documents under the Rules until January 9, 1998. The Brief in Opposition, accordingly, is timely filed. STATEMENT OF THE CASE Respondent agrees with the statement of the case as set forth in the United States Court of Appeals for the Ninth Circuit’s opinion. Beals v. Kiewit Pacific Co., 114 F.3d 892 (9th Cir. 1997). Respondent, however, disputes the following additional “facts” that are set forth in Peti- tioner’s Petition for Writ of Certiorari (“Petition”). In particular, the additional “facts” are irrelevant to the Court’s consideration of the issue involved in this case. 1. Whether the collective bargaining agreement (“CBA”) excluded from its scope of coverage certain “confidential employees” is irrelevant. See Petition at 6. Petitioner appears to make much of the disputed fact that he was told to keep the terms of the “move letter” “confi- dential,” and that this request made him a “confidential employee.” Petitioner is wrong and he was never a “con- fidential employee” who was excluded from coverage under the CBA. NLRB v. Hendricks County Rural Elec. Membership Corp., 454 U.S. 170 (1981); B.F. Goodrich Co., 115 N.L.R.B. 722 (1956) (defining “confidential employees” as persons “who assist and act in a confiden- tial capacity to persons who formulate, determine and effectuate management policies in the field of labor rela- tions”). 2. The CBA did not provide “less favorable terms” than the “move letter.” Petition at 6. In fact, the CBA provided significantly more benefits and protections to covered employees like Petitioner, such as employer con- tributions to the various multiemployer benefit and pen- sion plans, hours of work, overtime, holidays, job referrals and job placement, and, of course, the grievance and arbitration mechanism to resolve disputes such as those involved in this case. Petitioner’s Excerpts of Record on Appeal to Ninth Circuit at 94; Respondent's Supplemental Excerpts of Record on Appeal to Ninth Circuit at 15-17, 21-25, 29, 41-42; Defendant Kiewit Pacific Co.’s Motion for Summary Judgment, filed December 17, 1991, Appendix “A” at 10-16. 3. Petitioner was not placed in a position that was not covered by the CBA. Petition at 7. At all times during his employment he was in a position that was covered by the Operating Engineers’ CBA. Petitioner’s Excerpts of Record on Appeal to Ninth Circuit at 148-153; Respon- dent’s Supplemental Excerpts of Record on Appeal to Ninth Circuit at 87-88, 93-94, 114. ¢ ARGUMENT I. Summary of Argument Petitioner frames the issue before the Court as being whether the preemption analysis in Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987), requires the reversal of the Ninth Circuit’s opinion that Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a) (“§ 301”), preempts a state law contract claim when the alleged independent employment contract is breached and the employee’s job is covered by a CBA. Petitioner misstates the United States Court of Appeals for the Ninth Circuit’s holding. Instead, the Ninth Circuit, con- sistent with this Court’s decisions, correctly held that Petitioner’s state contract claim was preempted by § 301 because his claim substantially depended on an inter- pretation of the CBA and the “independent agreement” that Petitioner sought to enforce against Respondent was subsumed by the labor agreement. Beals, 114 F.3d at 894. The Ninth Circuit’s opinion is consistent with this Court’s decisions and with the decisions of the Courts of Appeals for other circuits. The cases upon which Peti- tioner relies to establish a “conflict among the circuits” are factually distinguishable and, accordingly, reliance on these cases is misplaced. There is no basis for this Court to grant certiorari review. Il. The United States Court Of Appeals For The Ninth Circuit’s Decision Is Consistent With This Court's Decisions. Petitioner relies solely on the Caterpillar decision to support his argument that the Ninth Circuit’s decision in this case should be reviewed on certiorari. However, there is no basis to grant certiorari because the Ninth Circuit correctly concluded that this case and Caterpillar are factually dissimilar and that the holding in Caterpillar is not controlling. Beals, 114 F.3d at 894-95. In Caterpillar, at the time that the employer made promises of long-term managerial employment to the aggrieved employees, the employees were not covered by a CBA; they were managerial employees who were not members of a recognized bargaining unit and whose positions were not covered by the CBA. Caterpillar, 482 U.S. at 388. The employer subsequently downgraded the employees to positions that were covered by the CBA and eventually laid them off. Id. After their employment terminations, the employees sought to enforce in California state court the employer’s oral and written representations to each of them that they as managerial employees could look forward to “indefi- nite and lasting employment with the corporation and that they could count on the corporation to take care of them.” Id. at 389 (citations and quotation marks omitted). Under California law, such affirmative representations and promises are enforceable against the employer. Id. at 389, n.2. The critical question before the Court was “whether [the employees’] state-law complaint for breach of indi- vidual employment contracts [was] completely pre-emp- ted by § 301 of the Labor Management Relations Act, . . . and therefore removable to Federal District Court.” Id. at 388. The Court’s primary concern was the preemptive scope of § 301 so as to give rise to removal jurisdiction. In analyzing the “complete preemption” issue, the Court focused on, among other things, whether a defen- dant could remove a case to federal court based on the assertion of a federal defense. Id. at 393. The Court held that “a defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state- law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated.” Id. at 399. The Court concluded that because adjudication of the state contract claim did not require interpretation of the CBA, and because the rights that the employees were seeking to vindicate were independent of any CBA, there was no basis to invoke the “complete preemption” doctrine so as to give rise to federal removal jurisdiction. Id. The Court noted that adjudication of the employees’ state “implied contract of employment” claim, predicated on Pugh v. See’s Candies, Inc., 116 Cal. App. 3d 311, 327-329 (1981), and Cleary v. American Airlines, Inc., 111 Cal. App. 3d 443, 455-456 (1980), did not require inter- pretation of the CBA. Under Pugh and Cleary, the trier of fact, when faced with a California state law “implied contract of employment” claim, would have to examine a “combination of factors, including longevity of service, commendations and promotions, oral and written assur- ances of stable and continuous employment, and an employer’s personnel practices.” Caterpillar, 482 U.S. at 389, n.2. Consideration of the Pugh “factors” was inde- pendent of any provision of the CBA and did not “sub- stantially depend” on an interpretation of the CBA, as the representations related to management positions not cov- ered by the CBA. In contrast, the factual and legal issues presented in this case are markedly different from the issues that were addressed in Caterpillar. Here, the adjudication of Peti- tioner’s state contract claim is substantially dependent on an interpretation of the CBA. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988). Petitioner sought to enforce an alleged express contract of employment for a definite duration. Respondent’s Supplemental Excerpts of Record on Appeal to Ninth Circuit at 143. Under Hawaii law, a contract of employment for a definite duration can only be terminated “for cause.” See Vieira v. Robert's Hawaii Tours, Inc., 2 Haw. App. 237, 630 P.2d 120 (1981). Pursuant to the CBA at issue, Respondent had the right to terminate covered employees like Petitioner for “just cause” and/or for “lack of work.” Respondent’s Supple- mental Excerpts of Record on Appeal to Ninth Circuit at 11, 29. Accordingly, whether or not Petitioner articulated a cognizable and viable claim for breach of the “move letter” would require the trier of fact to interpret the CBA’s “just cause/lack of work” provision in order to determine whether a breach of the “move letter” occurred in the first instance. This Court has consistently held that in the context of federal labor law, the arbitrator appointed by labor and a management under the grievance procedures set forth in a CBA has the power and authority to interpret and apply the terms of that agreement, including the issue of whether “just cause” exists to terminate a covered employee’s employment consistent with the terms of the CBA. United Steelworkers of America v. American Mfg. Co., 363 U.S. 1031 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960). Here, consistent with the decisions of this Court, the Ninth Circuit correctly concluded that adjudication of Peti- tioner’s state contract claim substantially depended on an interpretation of the CBA, and accordingly, was pre- empted by § 301. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985). Furthermore, the “implied contract of employment” claim at issue in Caterpillar required consideration of the Pugh factors to determine whether the aggrieved employees asserted a cognizable claim under California law. Adjudication of the Pugh factors in Caterpillar did not require an interpretation of the CBA at issue in that case, and consideration of such factors was held to be indepen- dent of the CBA, as the representations related to posi- tions that were not covered by the CBA. Here, on the other hand, Petitioner did not assert an “implied contract of employment” claim predicated on the Pugh factors. Respondent’s Supplemental Excerpts of Record on Appeal to Ninth Circuit at 143. Indeed, the Hawaii Supreme Court has refused to recognize such an “implied contract of employment” claim based on Pugh. Calleon v. Miyagi, 76 Haw. 310, 876 P.2d 1278 (Haw. 1994). Instead, Petitioner asserted a breach of an express contract of employment for a definite duration, which required proof that Respondent articulated reason to terminate Peti- tioner did not constitute “just cause.” This is precisely the kind of issue that the arbitrator appointed pursuant to the grievance procedures of the CBA has the specialized knowledge, experience, and competence to adjudicate, and which requires an interpretation of the CBA. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960). Finally, Petitioner argues that the Ninth Circuit erred in concluding that the “move letter” was “subsumed” by the CBA. See Petition at 16-17. Respondent recognizes this Court’s lesson in Caterpillar that “individual employment contracts are not inevitably superseded by any subse- quent collective agreement covering an individual employee, and claims based upon them may arise under state law.” Caterpillar 482 U.S. at 396, discussing J.I. Case Co. v. NLRB, 321 U.S. 332 (1944). However, in this case, the “move letter,” contrary to Petitioner’s unsupported and conclusory factual statement that the “move letter” was “more advantageous” than the CBA, in fact “sub- tracted from” the rights and obligations under the CBA. For example, the “move letter” does not address the requirement that all employers-signatories to the CBA must make contributions on behalf of covered employees like Petitioner to the various multiemployer plans, such as the Hawaii Health and Welfare Trust Fund for Operat- ing Engineers, the Operating Engineers’ Pension Trust Fund, the Pensioned Operating Engineers’ Health and Welfare Trust Funds, the Hawaii Operating Engineers’ Annuity Trust Fund, and the Operating Engineers’ Vaca- tion and Holiday Pay Plan. Respondent’s Supplemental Excerpts of Record on Appeal to Ninth Circuit at 17-18. i Likewise, the “move letter” was silent as to the “Referral, Hiring and Employment” mechanism to ensure job placement and job referrals for terminated and/or laid-off Operating Engineers like Petitioner; the hours and overtime provisions and benefits (including meal periods, two-shift and three-shift operations and night work hours and benefits); and holidays. Petitioner’s Excerpts of Record on Appeal to Ninth Circuit at 94; Respondent’s Supplemental Excerpts of Recerd on Appeal to Ninth Circuit at 15-17, 21-25, 29, 41-42; Defen- dant Kiewit Pacific Co.’s Motion for Summary Judgment, filed December 17, 1991, Appendix “A” at 10-16. In addi- tion, the “move letter” and the CBA contain inconsistent provisions regarding “subsistence and travel pay.” Com- pare Section 18 of the CBA (Defendant Kiewit Pacific Co.’s Motion for Summary Judgment, filed December 17, 1991, Appendix “A” at 28-29) and Paragraph 2 of the Move Letter (Petitioner’s Excerpts of Record on Appeal to Ninth Circuit at 94). Certainly, the “move letter” is silent as to the grievance mechanisms and procedural safe- guards as provided in the CBA. Petitioner’s Excerpts of Record on Appeal to Ninth Circuit at 94; Respondent's Supplemental Excerpts of Record on Appeal to Ninth Circuit at 21-25. The Court instructed long ago in J.I. Case Co. v. NLRB, 321 U.S. 332 (1944): Individual contracts, no matter what the circum- stances that justify their execution or what their terms, may not be availed of to defeat or delay the procedures prescribed by the National Labor Relations Act looking to collective bargaining, nor to exclude the contracting employee from a 10 duly ascertained bargaining unit; nor may they be used to forestall bargaining or to limit or condition the terms of the collective bargaining agreement . . . Individual contracts cannot sub- tract from collective ones... . Id. at 337, 339. See also Caterpillar, 482 U.S. at 396. In his Petition, Petitioner has not provided any mer- itorious analysis or argument based on this Court’s prior decisions so as to justify the Court’s exercise of its discre- tionary certiorari review power. The Ninth Circuit’s deci- sion in this case is entirely consistent with the Court’s federal labor law jurisprudence. Certiorari review, accordingly, should be rejected. III. There Is No “Conflict Among The Circuits” On Whether Claims Such As Petitioner’s Are Pre- empted By The Labor Management Relations Act. Petitioner is incorrect in arguing that the Ninth Cir- cuit’s decision is in conflict with decisions from the Third and Eighth Circuits. Petitioner relies on Berda v. CBS, Inc., 881 F.2d 20 (3d Cir. 1989), cert. denied, 493 U.S. 1062 (1990), and Anderson v. Ford Motor Co., 803 F.2d 953 (8th Cir. 1986), cert. denied, 483 U.S. 1011 (1987), to support his argument. Both of these cases involve facts that are dis- tinguishable from the facts in this case, and, as a result, require a different outcome from that of the Ninth Cir- cuit’s decision in Beals. In both Berda and Anderson, the employees sought to enforce narrow and limited pre-hire agreements that specifically addressed only the duration 11 or permanency of employment. Under these circum- stances, the Berda and Anderson courts held that no inter- pretation of the CBA was necessary because the pre-hire agreements that were being enforced were of such limited and specific scope (relating only to the duration or per- manency of employment) that there was no sufficient overlap with the CBA to require the CBA to be inter- preted in order to determine the rights under the pre-hire agreements. In contrast, the “move letter” that Petitioner sought to enforce against Respondent addressed numerous different terms and conditions of employment, many of which were also covered by the CBA (if not inconsistent with the CBA) and was, therefore, so broad and overlapping with the CBA that enforcement of it was substantially dependent on an interpretation of the labor agreement. In Berda, the aggrieved employee asserted that dur- ing a pre-employment meeting, the employer orally “guaranteed employment . . . for the reasonably foresee- able future, and that any job offered to him would . . . be a permanent position.” Id. at 21. After accepting employ- ment with the employer, the employee “was laid off as a part of a company-wide reduction in force.” Id. After being laid off, the employee filed a complaint in state court alleging, among other things, breach of an implied contract of employment/promissory estoppel. Id. The breach of an implied contract of employment/prom- issory estoppel claim was based on the alleged oral state- ment made during the pre-employment meeting on which the employee detrimentally relied. The employee claimed that when the statement was made at the meet- ing, the employer knew or should have known that the 12 company would be “conduct[ing] extensive layoffs in the department and division . . . in which he was eventually offered employment.” Id. In concluding that § 301 did not preempt the employee’s implied contract/promissory estoppel claim, the Berda court noted that the employee’s state law claim did not substantially depend on an interpretation of any provision in the CBA. Id. at 26. Indeed, no interpretation of the CBA was necessary because the agreement sought to be enforced was a specific and narrow promise related to the duration of employment. The “independent agree- ment” was not a broad agreement with substantial over- lap with the CBA. In fact, the Third Circuit observed that in order to prove his breach of the implied contract of employment/promissory estoppel claim, the employee only needed to prove (1) that the representations that he would not be laid off were made, (2) that he relied on such representations, and (3) that the employer breached its promise when it laid the employee off. Id. at 25. The Berda court critically commented that the employer’s only defense to the employee’s implied con- tract of employment/ promissory estoppel claim was that alleged representations “related to” the “basic terms and conditions of [the emple 2e’s] employment,” and that the alleged representations were “inconsistent with” the seniority and layoff provisions of the CBA. Id. Under these circumstances, the Berda court concluded that the employee’s implied contract of employment/promissory estoppel claim did not require interpretation of any pro- vision of the CBA and, accordingly, was not preempted by § 301. 13 In Beals, Petitioner did not assert an “implied con- tract of employment” or a “promissory estoppel” claim predicated on representations that were “independent” of the CBA. Petitioner’s state law claim sounding in an alleged breach of an express contract of employment for a definite duration required consideration of the critical factual issue that Respondent did not have “just cause” to terminate him consistent with the CBA. Hence, adjudica- tion of Petitioner’s contract claim was substantially dependent on an interpretation of a fundamental provi- sion set forth in the CBA. Furthermore, the terms and conditions of employment that Petitioner sought to enforce against Respondent as set forth in the “move letter” were far broader than the terms and conditions of employment that the employee in Berda was seeking to enforce against his employer. Adjudication of Petitioner’s contract claim based on the “move letter,” accordingly, required interpretation of the CBA and its provisions as it related to the provisions set forth in the “move letter.” Moreover, unlike Berda, where the alleged representa- tions and promises were held to be “advantageous” to the employee, here, as discussed above, the “move letter” is silent as to crucial collective benefits, safeguards, and protections as provided in the CBA. As such, and consis- tent with J.I. Case and Caterpillar, the “move letter” was subsumed by the CBA, and any contract claim predicated on the “move letter” is preempted by federal labor law. The Ninth Circuit was correct in so concluding. Petitioner also points to the Eighth Circuit’s decision, Anderson v. Ford Motor Co., 803 F.2d 953 (8th Cir. 1986), cert. denied, 483 U.S. 1011 (1987), a two-to-one decision 14 that was decided prior to Caterpillar, to support his argu- ment that there is a “conflict” among the federal appel- late courts. Reliance on Anderson is misplaced. The employer in Anderson, pursuant to the CBA, began to hire laid-off employees from a preferential hiring list in order to meet an increase in production requirements. Id. at 954. In addition, the employer began to contact former employees who had been laid off three years earlier, but whose recall rights had expired given the length of time that they had been on layoff. Id. These employees were employed as new hires and placed on a 90-day probation- ary period consistent with the CBA in place with the union. The probationary employees alleged that when they were contacted by the employer, the employer promised them that they would be hired as “permanent employees.” Id. at 955. However, prior to the expiration of the probationary period, the employees “were ‘bumped’ from their jobs by employees from the prefer- ential hiring list.” Id. at 954-55. The probationary employees asserted state tort and contract claims against the employer. The employer removed the case to federal court based on the “complete preemption” doctrine, and successfully dismissed the probationary employees’ com- plaint. The Eighth Circuit reversed and concluded that because the probationary employees’ contractual and quasi-contractual claims did not “originate in, nor refer in any substantial way to, the rights and duties established in the collective bargaining agreement,” their state law claims were not preempted under § 301. Id. at 958. The Anderson court's decision is consistent with and dictated 15 by the limited and specific nature of the pre-hire agree- ment that the employees were seeking to enforce, which only addressed the permanency or duration of their employment. The Anderson court cited to J.J. Case in a footnote, and concluded that “individual contracts” that “[are] separate and distinct from a collective bargaining agreement can create legally enforceable rights and obli- gations.” Id. at 958, n.7, citing J.I. Case Co. v. NLRB, 321 U.S. 332, 336. Given the narrow breadth of the “contract” that the employees were seeking to enforce against the employer - the “permanent” duration of their employ- ment — the Anderson court properly concluded that the rights that the employees were seeking to enforce against the employer did not require interpretation of the CBA, nor were such promises “subsumed” by the CBA. On the other hand, in Beals, Petitioner sought to enforce the terms of the “move letter” that broadly addressed conditions of employment with Respondent, many of which were covered by, and, in some instances, were inconsistent with the CBA. The position for which Respondent hired Petitioner was a position that was cov- ered by the CBA, and his employment terms and condi- tions were governed by the CBA at all times. As such, and given the breadth and overlap between the terms of the “move letter” and the CBA, the Ninth Circuit prop- erly found that the “contractual rights” that Petitioner sought to enforce were substantially dependent on an interpretation of the CBA to determine whether or not his contract claim was cognizable and viable under Hawaii law. Moreover, as discussed above, under J.J. Case, the terms of the “move letter” significantly “subtracted from” the rights and obligations under the CBA and, in fact, 16 were inconsistent with the CBA. Thus, the Ninth Circuit was entirely correct in preempting Petitioner’s state con- tract claim, and the Ninth Circuit’s decision is consistent with the Anderson decision. Finally, Petitioner identifies White v. National Steel Corp., 938 F.2d 474 (4th Cir. 1991), cert. denied, 502 U.S. 974 (1991), as being “in substantial conflict with the Ninth Circuit’s decision in the instant case.” However, White is easily distinguishable from the instant case and is based on facts that are completely different from those pre- sented in this case. The “independent contracts of employment” that the employees in White were seeking to enforce were management contracts: “The promises plaintiffs seek to enforce are those that [the employer] made to them in negotiations over the terms of employ- ment in management positions.” Id. at 483. As such, the employees “were not in positions covered by a collective agreement,” and therefore, adjudication of their state con- tract claims did not substantially depend on an inter- pretation of the CBA. Id. at 484. Because the employees in White were hired for positions not covered by the CBA, no interpretation of the CBA could even be relevant. White, accordingly, does not support Petitioner’s argu- ment at all. Indeed, White is consistent with the Ninth Circuit’s application of Caterpillar in this case. The Ninth Circuit's decision in the instant case is also consistent with the Fifth Circuit and the Eleventh Cir- cuit’s decisions. In Eitmann v. New Orleans Public Service, Inc., 730 F.2d 359 (5th Cir. 1984), reh’g denied, 738 F.2d 437, cert. denied, 469 U.S. 1018 (1984), the Fifth Circuit analyzed an aggrieved employee’s state contract claim that is factually similar to Petitioner’s. In Eitmann, prior 17 to being hired, the employee alleged that the employer “promised to keep [the employee] on the payroll at full compensation in the event of a disabling work-related injury.” Id. at 361. During his employment, the employee was injured several times on the job. Id. After his latest injury, the employer terminated him, “advising him that it had no suitable work available that he was capable of performing.” Id. “At all times during his employ- ment ..., [the employee] was a member of [a union] which maintained a collective bargaining agreement with [the employer].” Id. The CBA in Eitmann contained provisions for the discharge of employees. Id. at 360-61. Further, the labor agreement contained provisions for the handling of griev- ances. Id. at 361. Notwithstanding these provisions in the CBA, the employee filed a breach of contract claim in state court based on the employer’s alleged promise of continued employment. In response, the employer asserted that the employee’s claim arose under § 301 of the LMRA, removed the action to federal district court, and successfully had the case dismissed after moving for summary judgment on the ground that the state contract claim was completely preempted by § 301. Id. On appeal, the Fifth Circuit noted that the employee’s breach of contract claim, “on its face, [did] not invoke the collective bargaining agreement.” Id. at 362. However, the court observed that it was not con- vinced “that the two agreements [could] be construed so independently of each other,” especially since the alleged oral contract essentially provided 18 for lifetime employment, regardless of [the employee’s] ability to perform any services for the employer; in other words, unlike all of the other employees covered by the collective bar- gaining agreement, [the employee] could not be discharged because of his physical inability to perform any services for [the employer].” Id. at 362-63. The court concluded that the alleged oral contract clearly sought to “limit or condition the terms of the CBA, which established the terms and conditions of employment, including discharge,” and thus held that the employee’s breach of contract “action is necessarily pre- empted by § 301.” Id. at 364. Here, as in Eitmann, Petitioner alleged that prior to being hired, Respondent promised him employment in a covered position that would last two years. At all times during his employment with Respondent, Petitioner was a member of the Operating Engineers’ union. As with the employee's claim in Eitmann, Petitioner's claim, “on its face, [did] not invoke the collective bargaining agree- ment.” Id. at 362. Furthermore, as in Eitmann, Petitioner asserted that he was promised employment for a definite duration and that he would remain so employed regard- less of the discharge provisions under the terms of the CBA. Under these circumstances, accordingly, the Ninth Circuit, consistent with Eitmann, was correct in preempt- ing Petitioner’s contract claim. Likewise, the Eleventh Circuit's decision in Darden v. U.S. Steel Corp., 830 F.2d 1116 (11th Cir. 1987), is also in agreement with the Ninth Circuit’s decision in the instant case. The employees in Darden were previously laid off employees who had been recalled for employment. Id. at 19 1117-18. The employees claimed that at the time of their recall interview, agents of the employer induced them to take jobs with the company by making statements to the effect that the employer had enough work to guarantee their employment for at least ten years. Id. Thus, when the employees were laid off three years after being rehired, they asserted claims against the employer for breach of an oral employment agreement for definite duration and fraudulent misrepresentation in state court. The cases were removed to federal district court where summary judgment was granted in favor of the employer. Id. During their employment, the employees were cov- ered by a comprehensive labor agreement that “gov- ern{ed] such subjects as rates of pay, hours of work, seniority, layoffs, reductions in force, terminations, sever- ance pay, complaints, grievances and arbitration.” Id. Additionally, the labor agreement included a mandatory grievance and arbitration procedure to settle disputes between the employees and the company. Id. On appeal, the Eleventh Circuit noted that: [W]hile individual contracts between employer and employee are not precluded by the exis- tence of a collective bargaining agreement, to the extent that an individual contract and a col- lective bargaining agreement are inconsistent, the latter must prevail. Id. at 1120 (citing Eitmann, 730 F.2d at 362). Accordingly, the Eleventh Circuit affirmed the judgment of the district court in dismissing the employees’ complaint. 20 Here, as in Darden, Petitioner was covered by a com- prehensive labor agreement that detailed such subjects as rates of pay, hours of work, seniority, layoffs, reductions in force, multiemployer plan contributions, terminations, grievances and arbitration. As in Darden, the “indepen- dent agreement” that Petitioner sought to enforce was inconsistent with, indeed, “subtracted from” the labor agreement. Consistent with this Court’s decisions and the Eleventh Circuit’s decision in Darden, the Ninth Circuit here, under these similar circumstances, correctly con- cluded that “the CBA controls.” Beals, 114 F.3d at 894. ¢ CONCLUSION Certiorari review of this case is not warranted and should be rejected. The Petition for a Writ of Certiorari does not present a substantial and unique issue in federal labor law that requires this Court’s guidance and clari- fication. The Ninth Circuit’s decision properly followed Caterpillar and j.I. Case, which provide clear guidance regarding preemption under § 301 when adjudication of the state contract claim substantially depends on an inter- pretation of the CBA and the contract upon which an employee bases his claim is subsumed by the CBA. Fur- ther, the Ninth Circuit’s decision in this case is consistent with the Third and Eighth Circuits’ decisions, as these cases are factually dissimilar. 21 The Court should, accordingly, deny the Petition for a Writ of Certiorari. January 8, 1998. Respectfully submitted, Ernest H. Nomura* CuHar.es W. GALL | KosayasHi, Sucita & GoDA 999 Bishop Street, Suite 2600 First Hawaiian Center Honolulu, Hawaii 96813 (808) 539-8700 Counsel for Respondent * Counsel of Record --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1707%3A2. Public record. Not legal advice.