Petition for Writ of Certiorari — Patterson v. International Brotherhood of Teamsters, Local 959

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Sunrame Court. U.S.

i ae

9712836 bre 50 1997

NO. _QRSCE-OF-FHE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1997

WILLIAM L. PATTERSON,

Petitioner,

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, LOCAL 959,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

A. Lee Petersen, Esq.

LAW OFFICES OF

A. LEE PETERSEN, P.C.

P.O. Box 940284

Houston, AK 99694

(907) 495-6239

Attorney for Petitioner

QUESTIONS PRESENTED

1. Is the right to remove a case from

state to federal court waived by

participating in the litigation for more

than thirty days without giving notice of

the automatic stay in bankruptcy?

26 Does rejection of the the non-

moving party's version of the facts and

viewing the facts in the light’ most

favorable to the moving party in granting

summary judgment deny due process of law and

the right to trial by jury guaranteed by the

Fifth and Seventn Amendments to the

Constitution?

TABLE OF CONTENTS

Meme seme Presented . . «ts tt te ltl tl th

SE ee er ar er © |

meee. Ge BUCMOTICIGS. « oe ec ew ew ew ee 8 hy

I. Petition for Writ of Certiorari ....1

II. Statement of Jurisdiction ......1

III. Applicable Constitional

Provisions and Statutes .......1

awe Beeeemene Of The Case. «. . « 2 «© © 2 oS

me 6eaeeeeee OF FOCtTS . 2 6 0 et ot

as ee Gb a a Me ee ce ee o 0 BA

V. Argument Stating Reasons for Granting

RR 5 6h 8G cs a ON ew we ec ww el le UEC

A. The Right of Removal Was Waived . 16

B. The Rejection of the Non-Moving

Party's Version of the Facts in

Granting Summary Judgment Denied

Due Process of Law and the Right

to Trial by Jury Guaranteed by

Fifth and Seventh Amendments

ES LL Ee re |

ee Ss eo ee

APPENDIX

Order Denying Petition for Rehearing

and Rejecting Suggestion for Rehearing

iii

OU We Ss ow Aa Be ae eee

Opinion of the Court of Appeals .... .A3

MARGE SON GnteiON sos ko ook SS ee

District Court Order Denying Summary

Judgment ~ a e * . a * * e & a + e a * i A2 0

District Court Order from Chambers

(Granting Summary Judgment) ...... A34

Judgment in a Civil Case .......« -Aé

TABLE OF AUTHORITIES

Cases

irli ilots Association v. O'Neill,

499 U.8. 65; 111 &.Ct. 1127,

S900. BE SE TROOE) oe on POE I. ree

Brown v. Demco, Inc., 792 F.2d 478

(ol Civ. SOR Ss 664% 6665S ee eee

Cantrell _v. Great Republic

Insurance Co., 873 F.2d 1249

POEM CISL RweOs ee 60d oO Oe aT

ouglass v. Weye euser Co.,

662 F.Supp. 147 (C.D. Cal. 1987)... . .19

Easley v. Pettibone Michigan Corp.,

990 F.2d 905 (5th Cir. 1993). ..... .18

Vv j ‘i

920 F.2d 1434 (9th Cir. 1990). .. +... 28

Frazer v. United States, 18 F.3d 778

(SOR. Tis. 204) 6k whee tee PS GOO

Hillman v. Nationwide Mutual Fire

Insurance Co., 855 P.2d 1321,

[AIRORA 1993). «se eis te ae OHS ee Ae ! SD

Hubbard v. Union Oil Company

of California, 601 F.Supp. 790

i a SOOO oko ce ee ee

In Re Schwartz, 954 F.2d 569

POOR. OR tere eer ee

atterson v. International

Brotherhood of Teamsters, Local 959,

(This case), 121 F.3d 1345 (9th Cir.

1997). . . > oO . a 7 = .* - * a + >. * . o

Patterson v. State of Alaska,

, 880 P.2da

1038 (Alaska 1994) cert. denied

513 U.S. 1127 (the other defendant

We WRe CONE) +. 66 BOSSA Bek ere fe te

» 771 P.2d 1244

(9th Cir. 1985), cert. denied,

475 U.S. Laue « . - . a . ” aa o . e . e

717 F.Supp. 1435 (E.D. Cal. Beer 66

S.M. v. Jones, 794 F. iii 638

(W. D. Tex. 1992). . * o o eo

ornate 2, tet til one.

980 F.2d 1167 (8th Cir. 1992)... . 24,

’

978 F.2d. 1529 (9th Cir. 1992) ...

, 881 F.2d

BTS, (90R Gies SONel. 4 kc tee

Constitutional Provisions

FRE PE so ok ie kk ca a is a:

Seventh Amendment .......... i

STATUTES

aS UeBiC. FERCAV(G 2 is hoe. cee 2, 15,

we WG .@. ASGRIRS oo io ee

-18

Be. Wemeee- BeGOse 6 6 6 ©. 8. 6 8 8 6.8. 0. Be

a ee ee PR ee

TREATISES

C. Wright, A. Miller and M. Kane, 10

Federal Practiceand Procedure, Civil

2d, §§ 2524 and 2525... cn sees

C. Wright, A. Miller and E. Cooper,

14A Federal Practice ane EXRRMMER,

Ca¥al 26, § 37320. 2. <2

I. PETITION FOR WRIT OF CERTIORARI

The petitioner respectfully prays that a writ

of certiorari issue to review the judgment of

the Ninth Circuit Court of Appeals filed August

15, 1997, Case No. 95-36227,' petition for

rehearing denied October 2, 1997, both reprinted

in the Appendix hereto, in order to review the

standards for denying trial by jury by granting

summary judgment and to resolve a conflict

between the circuit courts as to whether actions

taken in ignorance of the automatic stay in

bankruptcy are void or voidable.

II. STATEMENT OF JURISDICTION

This Court has jurisdiction pursuant to 28

U.S.C. § 1254(1). This petition is being timely

filed in accordance with Rule 13.1 of this

court.

III. APPLICABLE CONSTITUTIONAL

PROVISIONS AND STATUTES

Relevant portions of constitutional

provisions and statutes pertaining to this

petition are as follows:

Fifth Amendment to U.8. Constitution

No person shall be. . .deprived of

life, liberty, or property without due

process of law;. ...

Seventh Amendment to U.S. Constitution

In suits at common law, where the value

in controversy shall exceed twenty

doliars, the right to trial by jury

' The opinion of the Court of Appeals

is reported in 121 F.3d 1345 (9th Cir. 1997).

Shall be preserved, and no fact tried

by a jury, shall be otherwise re-

examined in any court of the United

States, than according the rules of the

common law.

ai U.8.C. § 362. Automatic stay,

(a) Except as provided in subsection

(b) of this section, a petition filed

under section 301, 302, or 303 of this

7) ee operates as stay,

applicable to all entities, of--

(1) the commencement or contin-

uation, including the issuance or

employment of process, of a judicial,

administrative, or other action or

proceeding against the debtor that was

or could have been commenced before the

commencement of the case under this

title, or to recover a Claim against

the debtor that arose before the

commencement of the case under this

Cities. . +%

28 U.S.C. § 1446. Procedure for removal.

(a) A defendant or defendants

desiring to remove any civil action or

criminal prosecution from a State court

Shall file in the district court of the

United States for the district and

division within which such action is

pending a notice of removal signed

pursuant to Rule 11 of the Federal

Rules of Civil Procedure and containing

a short and plain statement of the

grounds for removal, together with a

copy of all process, pleadings, and

orders served upon such defendant or

defendants in such action.

(b) The notice of removal of a civil

action or proceeding shall be filed

within thirty days after the receipt by

the defendant, through service or

otherwise, of a copy of the initial

pleading setting forth the claim for

relief upon which such action or

proceeding is based, or within thirty

days after the service of summons upon

the defendant if such initial pleading

has then been filed in court and is not

required to be served on the defendant,

whichever period is shorter.

28 U.8.C. § 1447. Procedure after removal

ene e

the basis of any defect in removal

procedure must be made with 30 days

after the filing of the notice of

removal under section 1446(a)....

IV. STATEMENT OF THE CASE

A. Statement of Facts

Patterson was employed by Matanuska Maid

Dairy from March 6, 1979 to April 30, 1986 and

also on June 3 and 4, 1986. He was a member of

General Teamsters Local 959 and had been for

about 18 years. He worked mainly as a

driver/salesperson in the distribution

department. (ER 29, Ex. 2 (Patterson Aff.),

2).

Patterson served during 1965-66 in the war in

Vietnam where he was given some very stressful

assignments driving a tank carrier and wrecker

* References to "ER" are to the Excerpt of

the Record filed with the Court of Appeals.

ini |

by himself in areas which were infiltrated by

the enemy, with nothing for protection but an M- H

1 rifle and 20 rounds of ammunition. Vehicles —

he was driving were fired on and hit many times,

but Patterson was not hit. He also was exposed ©

to Agent Orange. (ER 29, Ex. 2, q 3). ;

On August 25, 1980, a psychiatrist diagnosed

Patterson as suffering from a delayed stress

reaction to the combat situation, commonly

referred to as post-traumatic stress disorder

(PTSD), and the psychiatrist wrote a letter to

the manager of Matanuska Maid indicating

Patterson's diagnosis. The letter was retained

in Patterson's personnel file along with an

article describing PTSD, its Symptoms and

manifestations. (ER 29, Ex. 2, q 4). Despite

PTSD, and his work day started at 6:00 a.n. (ER

In the fall of 1983, Matanuska Maid was in

financial trouble and filed for pro- tection

under Chapter 11 of the Bankruptcy Code, which

resulted in changes in manage- ment personnel.

Patterson believes his difficulties became

serious and began to accelerate when Ron Wilde

was hired as sales manager in about June, 1984.

Patterson's lack of rapport with Wilde became

apparent about two weeks after Wilde was hired.

Patterson refused Wilde the key to the company

gas pump for use in his private car, telling

Wilde that he should buy his gas from his gas

allowance and not steal from the company. (ER

29, Ex. 2, 7). A few weeks later, in

Patterson's view, Wilde caused an incident which

made it appear that Patterson had stolen a can

of soda pop from a customer. A disciplinary

action was written up and placed in Patterson's

personnel file. Patterson sought assistance

from a Local 959 business representative, but

the record remained in his file. Patterson was

told by the plant manager that Wilde had made a

comment that he would get rid of Patterson and

that Patterson should cover his tracks. (ER 29,

Ex. 2, 4 8).

As the tension between Patterson and Wilde

increased, the resulting stress on Patterson

increased his sleep disturbances and other

symptoms of PTSD and he was reprimanded for

being late for work (ER 29, Ex. 2, 4 9). Late

in 1984, Wilde gave Patterson a lay off notice

on the pretext there was insufficient work,

while several employees with less seniority than

Patterson were not laid off, especially those

who were non-union. Patterson sought assistance

from Local 959, but got none, so he went to the

NLRB and that resulted in his’ prompt

reinstatement. (ER 29, Ex. 2, 4 10). The same

thing happened again in the spring of 1985.

These circumstances increased the stress on

Patterson and, because of his PTSD, he did not

deal with stress very well. He tended to become

angry and talk back to supervisors and sometimes

even to customers. (ER 29, Ex. 2, 4 11).

In the fall of 1984, the State of Alaska,

Department of Agriculture, the largest creditor

of Matanuska Maid, nominated John Seawell to

manage the dairy and he was appointed by the

Bankruptcy Court. Seawell brought in other new

management personnel, including Steve Bevins as

distribution manager, Patterson's immediate

supervisor. Initially Patterson and Bevins got

along quite well and socialized with each other

for a few weeks, but Patterson found that Bevins

had habits which he could not condone and the

social relationship faded out. ‘cm 29, Ex. 2,

| 12).

As the stress between Bevins and Patterson

If Patterson was late for work, Bevins

reprimanded him, which increased the stress and

Sleep disturbances. (ER 29, Ex. 2, q 15). On

February 6, 1986, Bevins wrote a letter to Bobby

Sinnett, Secretary-Treasurer of Local 959, the

chief executive officer, accusing Patterson of

outrageous conduct, such as harassing telephone

calls to female employees, trying to poison

Bevins and customer complaints. Patterson was

given a copy on February 14, 1986 by Jerry

Fuller, a Local 959 business representative.

Patterson denied Bevins' allegations and so

informed Fuller and Sinnett and wrote his

responses in the margins of the letter. He

investigated the sources of the allegations and

obtained letters from customers and other

documentation disproving Bevins' statements and

gave them to the Fuller. Patterson was told by

the receptionist at Matanuska Maid that she

heard Bevins and Wilde collaborating on the

letter. Patterson wrote to Seawell derying the

allegations, asking for a written apology and

In April, 1986, a new collective bargaining

agreement (CBA) between Local 959 and Matanuska

Maid was put in effect and ratified by the union

on April 15, 1986. However, there were still

pending negotiations about some provisions and

Patterson was interested in the provision for

dental care and wanted to attend the meeting

when it was discussed. at that time he had no

official Capacity in the union, so he was told

that he would have to obtain permission from

Sinnett to attend the meeting. After attempts

to make contact with Sinnett by telephone and

when he was at the restaurant in the union hall

for lunch or coffee breaks, he was informed that

the best time to find Sinnett was early in the

morning when he was arriving for work. On the

morning of April 30, 1986, after arriving for

work at 6:00 a.m. and seeing that his truck was

loaded, Patterson punched in and gathered up his

paper work to leave. Before leaving, he told

Bevins and another foreman that he would be

going to the Teamster hall first thing to try to

make contact with Sinnett. He then went to the

Teamster hall and into the restaurant to take a

morning coffee break and get his paper work in

order for the day while he watched for Sinnett.

While there, he saw at least three other

Matanuska Maid drivers also in the restaurant,

having driven there in company trucks, just as

Patterson had done. (ER 29, Ex. 2, 4G 19-21).

Patterson's training as a driver was that it

was standard operating procedure to take a

coffee break first thing and get the paper work

in order for the day, before making deliveries,

so he always followed that procedure and other

drivers did the same. Also, it was too early to

make deliveries to most of the customers, some

of whom did not accept deliveries before 7:00

a.m. The managers knew where the drivers had

their coffee breaks and that they deviated from

their routes to go to those restaurants and no

driver had ever been reprimanded for doing so.

In fact, Bevins had been with Patterson in a

company truck to have lunch at the restaurant in

the Teamster Mall. (ER 29, Ex. 2, 4 22). On the

morning of April 30, 1986, after Patterson had

been in the restaurant about 25 minutes,

completed his coffee break and put his papers in

order, he still had not seen Sinnett, so he left

and headed for his first delivery. While he was

stopped at a stop sign before exiting the

parking lot, a pickup truck hit his truck in the

rear end, causing substantial damage to the

pickup truck but none to the Matanuska Maid

truck. The police were called and the other

driver was given a citation. Bevins arrived

during the investigation. After the

investigation, Patterson left and made his

deliveries, returning to the dairy about 11:00

a.m. Shortly thereafter, he was informed that

his employment was terminated. Patterson did

not believe he had done anything wrong, so he

intended to file a grievance. He went

immediately to see Sinnett, who was not

available, so Patterson met with Ed Conyers, who

had recently been assigned as business

representative to Matanuska Maid (ER 29, Ex. 2,

q 23).

Conyers and Patterson went together to the

dairy to meet with Seawell and his assistant in

an attempt to reason about the incident, but

without success. Later that day, Conyers was

given the termination letter which stated that

Patterson was terminated effective immediately.

The reasons given were,

Unauthorized use of company equipment for

personal use.

Gross disobedience.

Second accident within a year involving

property damage to others.

(ER 29, Ex. 2, G 24).

Patterson thought Sinnett was the best

qualified person to represent him and he

continued to believe that Sinnett would

represent him in the arbitration until the

morning of the arbitration hearing. In

retrospect Patterson thinks that since his case

involved the most serious grievance being

handled by Local 959 at the time, Sinnett should

have realized that Patterson should have been

represented by the general counsel, the best

quaiified person (ER 29, Ex. 2, 4 25).

nak at le de

)

Although Patterson thought Sinnett was

_handling his case, he rarely got to talk with

'Sinnett, even though he constantly tried to make

contact to discuss the case. From April 30 to

'June 23, 1986, the date of the arbitration

_hearing, Patterson did not get to discuss the

' case with Sinnett more than two or three times,

even though he visited the Teamster hall

virtually every day. The conversations he had

_with Sinnett were brief and incomplete. On one

/ occasion, Sinnett told him Matanuska Maid was

_ trying to negotiate him out of a job. Patterson

had several conversations with Conyers,

approximately six to 10 times in which his case

was discussed, but those conversations were

brief, except for one which lasted an hour or

more when materials in the personnel file were

_ discussed. However, not everything was covered

and Patterson was led to believe they would meet

again to complete the discussion, but they never

did. (ER 29, Ex. 2, q 26).

About May 12, 1986, Conyers and Sinnett told

_ Patterson that the company had offered to

resolve the matter by a period of suspension

without pay and a letter of reprimand rather

than termination. Patterson said he did not

think he should be suspended or reprimanded

because he had done nothing wrong, but he would

accept such a settlement rather than lose his

_job. Consequently, he believed that termination

_Wwas no longer an issue, but that pay for a

period of 30 days would require arbitration. on

June 2, 1986, the 30 days having elapsed, he

reported for work at the usual time, but Bevins

told him to get off the property and called the

police and had Patterson cited for trespassing.

But the City Attorney did not pursue the

| citation. (ER 29, Ex. 2, Gq 27 & 28).

In the late afternoon of June 2, 1986,

Patterson found a message on his telephone

| answering machine from Conyers telling him to

report for work at 8:00 a.m. the next morning,

with no explanation. Patterson reported for

work the next day and worked the entire day on —

the loading dock. At noon, two other employees

and Patterson went next door to McDonald's to

buy a hamburger and then punched out after they

returned to the dairy. Bevins reprimanded

Patterson for not punching out before going and

wrote up a corrective action for his personnel

file, but did not reprimand the other employees.

Bevins also reprimanded Patterson for smoking

even though he was in an area where smoking was

permitted, but did nothing as to two other

employees who were smoking in a non-smoking

area. (ER 29, Ex. 2, GI 29 & 30).

The next day, Patterson worked until

approximately 3:00 p-m. when he was called to

Seawell's office. Seawell and his assistant

presented him with two letters and told him to

Sign then. The first was a short letter

acknowledging that he had received the other

letter and that he was being allowed to retain

his employment subject to the terms of the

second letter, which, if he violated in any way,

he would be immediately and finally terminated.

The second letter was a lengthy letter of

reprimand, relating events from the company

point of view, which Patterson viewed as being

distorted and untruthful. Patterson thought he

was being set up to be finally terminated for

any trivial excuse. He said he wanted to

discuss them with Sinnett before signing, but he

was told to sign or get off the premises. He

did not sign, so he was escorted to the time

clock and punched out. He then attempted to

call Sinnett, but Bevins broke the telephone

connection and reprimanded him for making a

personal call on company time and wrote it up

for Patterson's personnel file. (ER 29, Ex. 25

G 31). The next morning, Patterson met with

Conyers and they went to Sinnett's office, where

they met Seawell leaving. Patterson said he

wanted to pursue the grievance to arbitration.

He does not recall having any contact with

Sinnett between then and the arbitration hearing

on June 23. Also, he had little or no contact

with Conyers, and did not discuss the case in

any depth with Conyers prior to the morning of

the arbitration hearing, even though he visited

the Teamster hall almost every day to take calls

for any available jobs and attempted to make

contact with Sinnett and Conyers while he was

there, but they seemed to be avoiding him. (ER

29, EX. 2, 4G 32 & 33).

In the late afternoon of June 20, 1986,

Patterson found a message on his telephone

answering machine from Conyers advising him that

the arbitration hearing would begin at 9:00 a.m.

on Monday, June 23, 1986. Conyers also advised

that there would be a letter for him to pick up

at the Red Apple Restaurant. On the morning of

June 23, he went to the restaurant and picked up

the letter, which stated:

Your arbitration is scheduled for

Monday, June 23, 1986, at 9:30 a. ues

I left a message on your »*hone

recorder. I just wanted you to be

aware that when I put you on the

witness stand, they will have the right

to cross-examine. Do not let them

fluster you. Answer briefly, "yes" or

"no" if cross-examined. Review, for

yourself, your work history and the

incident for which you were fired.

Also, get a statement from Gary Arp

(the union steward) with regard to your

conversation about meeting to review

the contract and your assistance to him

as shop steward. He can be a witness

if he wants to, but a statement will

suffice. Fewer witnesses equals fewer

cross~-examinations and less chance for

error. Also, union witnesses cannot be

on company time; he would have to take

time off. Thank you.

Sincerely,

Ed R. Conyers, Business Representative

(ER 29, Ex. 2, 4% 34 & 35).

Conyers had not discussed Patterson's

testimony with him. Nor had he discussed who

should be witnesses on Patterson's behalf. He

had not discussed what documents could be used

as exhibits or the scope of the hearing. There

had been very little discussion about Bevins'

February 6, 1986 letter to Sinnett, but

Patterson had gone over the letter thoroughly in

March with Jerry Fuller, the previous business

representative, and Patterson had provided

documentation to refute the letter. In

reviewing the personnel file, Conyers was aware

of Patterson's PTSD condition, but had not

discussed whether or not that was a factor in

the termination. When Patterson got the letter

from Conyers, it was too late to get a written

Statement from Arp. At Patterson's insistence,

Arp and two other persons testified as witnesses

on Patterson's behalf, and Patterson provided

documentation refuting Bevins' letter and

Support letters from customers, which, upon

Patterson's insistence and with Conyers'

disapproval, the arbitrator accepted into

evidence for "whatever they were worth." (ER

29, Ex. 2, 4 36).

Despite the fact that Patterson had been told

that the Bevins letter would not be used against

him, it was brought up in the arbitration

hearing by the first witness, Bevins, and

Conyers did not object. The hearing centered

around that letter, rather than the termination

letter. Conyers did not seek to extend the

hearing or continue it so he could deal with the

letter, but insisted that the hearing had to be

completed in one day. (ER 29, Ex. 2, 4 37).

At the hearing, Patterson was made aware for

the first time of four corrective actions

written up by Bevins during the month of April,

which had been given to Conyers about a week

before the hearing, but he had not discussed

them with Patterson. The corrective actions on

June 3 and 4, which Patterson had not previously

seen, and a customer complaint which Conyers had

not previously discussed with Patterson, also

were presented at the hearing. Patterson does

not recall Conyers objecting to any of those new

matters, which were not mentioned in the

termination notice. Patterson subsequently

tried to obtain a duplicate of the tapes of the

hearing, but the arbitrator said they had been

erased. (ER 29, EX. 2, ¥ 38).

In final argument, Conyers argued that

termination was not warranted because there were

mitigating circumstances. In the arbitrator's

decision, he commented about Patterson's PTSD,

but stated he could not draw any conclusions

from that because he was not qualified to

practice medicine. Conyers had not prepared to

present any expert medical evidence at the

hearing as a basis for suggesting that treatment

would be an appropriate alternative to

termination. (ER 29, Ex. 2, 4 39).

A few days after the hearing, Conyers and

Patterson met and discussed it. It appeared

that the hearing had not gone well and in

anticipation of an adverse result, Patterson

asked Conyers where he was to go from there and

was told that the union could do nothing

further. He was told, "It is a civil matter."

Conyers did not inform Patterson of any statute

of limitations and he did not suggest that

Patterson should obtain advice from Local 959's

general counsel. (ER 29, EX. 2, 4 41).

Some time during July, 1986, Patterson was

informed of the arbitrator's decision upholding

the termination and he received a copy of the

written decision, which is dated July 2, 1986.

(ER 29, Ex. 2, | 42).

After that, Patterson attended over 100 job

calls at the union hall but received no gainful

employment, even though he had been a member of

Local 959 for many years. His’ seniority,

indicated by ledger number 6595, out of more

than 80,000 members registered with the local to

that time, indicates that he was blackballed by

Local 959 to assure that he would not be able to

afford to pursue civil litigation. This series

of events aggravated Patterson's PTSD to the

point that both the Social Security

Administration and the Veterans Administration

determined that he was 100 percent disabled and

unemployable. (ER 29, Ex. a, ¥ 42).

B. Proceedings

On April 28, 1988, Patterson filed a

Complaint in the Superior Court for the State of

Alaska, Case No. 3AN-88-4692 Civil, naming

Matanuska Maid, Inc.; Seawell; Wilde; Bevins;

Local 959; Sinnett; Conyers; Jerry Thorn, the

arbitrator; and others as defendants (ER 7 -

Complaint). Summons and Complaint were served

on Local 959 on Ma, 11, 1988 (ER 5 - Men.orandun,

D4." Local 959 filed its Answer to the

This summary is limited to proceedings

against Local 959. Final disposition of

proceedings against other defendants on the

basis of the statute of limitations is described

Agriculture, et al., 880 P.2d 1038 (Alaska

he oOo

—oTss wee VN VY eS

Cee

Complaint on June 21, 1988 (ER 7 - Answer).

On July 1, 1988, Local 959 filed a Motion to

Dismiss, explaining in a memorandum that

proceedings against it were stayed pursuant to

11 U.S.C. 362(a)(1) and attaching a copy of its

Voluntary Petition Under Chapter 11 (ER 7 -

Motion, etc.).

Or. September 20, 1988, K.L. Hunt, Superior

Court Judge, issued a "Final Order and Stay" as

follows:

The motion to dismiss defendants R. J.

Sinnett and E.R. Conyers is granted. The

motion to dismiss General Teamsters Local

959 is denied and a stay is hereby

ordered of all proceedings against it

pursuant to U.S. Bankruptcy Code §362.

(ER 7 - Motion, p. 2).

On April 30, 1991, Patterson filed an

adversary complaint against Local 959 in the

United States Bankruptcy Court (ER 25 -Ex. 1,

Witt Affidavit, p. 5). On March 7, 1994, the

Bankruptcy Court issued a Memorandum Decision

granting summary judgment in the nature of

abstention to Patterson, also finding genuine

issues of material fact to be litigated and

allowing Patterson to pursue his claims against

Local 959 in the state court action, Case No.

3AN-88-4692 Civil (ER 29, Ex. 1).

On March 31, 1993, Local 959 filed and served

1994), cert. denied, 513 U.S. 1127. Patterson

also had filed a complaint for libel on February

5, 1988 against Matanuska Maid and its officers

based on Bevins' February 6, 1986 letter. The

two cases were consolidated on November 21,

1988, so the appeal disposed of both cases.

a Notice of Removal from the state court to the

United States District Court for the District of

Alaska (ER 1). On April 11, 1994, Patterson

filed a Motion to Remand (ER 5) and the district

court filed an order denying the Motion to

Remand on May 12, 1994 (ER 10).

Patterson filed an Amended Complaint on July

25, 1994 (CR 21) and Local 959 filed an Answer

on October 31, 1994 (CR 22).

On January 30, 1995, Local 959 filed a Motion

for Summary Judgment (ER 25), Patterson filed

opposition on March 1, 1995 (ER 29), Local 959

filed a reply on April 3, 1995 (ER 37) and the

Court on September 8, 1995 filed an order

granting the Motion for Summary Judgment on all

issues except one (ER 39).

On September 25, 1995, Local 959 filed a

Second Motion for Summary Judgment, seeking

judgment on the remaining issue (ER 40),

Patterson filed Opposition on October 23, 1995

(ER 43), Local 959 replied on October 27, 1995

(ER 44) and on November 27, 1995, the Court

issued an order granting the motion and

dismissing the action (ER 45). Judgment was

filed November 7, 1995 (ER 46).

Patterson's Notice of Appeal was filed

November 22, 1995 (ER 47).

V. ARGUMENT STATING REASONS FOR

GRANTING THE WRIT

A. The Right of Removal was Waived

The chronology pertinent to removal in this

case is as follows:

May 11, 1988 -- service of Summons and

Complaint on Local 959 (ER 5 = Return of

Service).

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June 21, 1988 -- Local 959 files Answer to

Complaint (ER 7 - Answer).

July 1, 1988 -- Local 959 files Motion to

Dismiss, attaching Voluntary Petition Under

Chapter 11 (ER 7 - Motion, etc.).

September 20, 1988 -- Superior Court enters

' "Final Order and Stay," citing 11 U.S.C. 362,

' denying Local 959's Motion to Dismiss but

' staying all proceedings against it (ER 7 -

| Motion, p. 2).

March 7, 1994 -=- Bankruptcy Court files

| judgment abstaining and permitting Patterson to

pursue his claims against Local 959 in state

court Case No. 3AN-88-4692 Civ. (ER 29, Ex. 1).

March 31, 1994 -- Local 959 files and serves

Notice of Removal (ER 1).

April 11, 1994 -- Patterson files Motion to

Remand to state court (ER 5), denied May 12,

1994 (ER 10).

Removal of a civil action from state to

federal court is permitted when the federal

court has jurisdiction, provided the petition

for removal is filed within 30 days after the

receipt by the defendant, through service or

otherwise, of a copy of the initial pleading

setting forth the claim for relief upon which

such action or proceeding is based. 28 U.S.C.

1446(b). The right to removal may be waived by

participating in the proceeding in state court

and failing to file “removal within 30 days

after notice." Cantrell _v. Great Republic

Insurance Co., 873 F.2d 1249, 1256 (9th Cir.

1989); Brown v. Demco, Inc., 792 F.2d 478, 481

(Sth Cir. 1986) ("Even a defendant who petitions

timely may have waived its right to removal by

proceeding to defend the action in state court

or otherwise invoking the processes of that

court." (Footnote omitted.)). |

In this case the district court and the court

of appeals held that since the automatic stay

provided by 11 U.S.c. § 362(a), unknown to.

Patterson and the state court, was in effect

and a nullity, see , 954 F.2d 569,

571-72 (9th Cir. 1992), until the stay was

lifted by the bankruptcy court. As a result, it

was held that the Notice of Removal filed within

30 days after the Stay was lifted was timely. —

But there is a conflict among the circuits as

to whether an action contrary to the Stay of 11

U.S.C. § 362 is "void" or “voidable." This

conflict is discussed extensively in

i i i , 990 F.2d 905, 909-12

(6th Cir. 1993). That court, citing cases from

the various circuits, points out that the

majority have held that actions in violation of

the stay are "void." until then, only the Fifth

Circuit had explicitly held that actions taken

during the pendency of the Stay are "voidable."

i i , 881 F.2d 176, 178 (Sth

Cir. 1989). See Easley, 990 F.2d at 909. The

Easley court then reasoned that a void action

cannot be validated, but a voidable or invalid

action can be made valid. id. The court then

points out that the bankruptcy court may

validate actions and that most of the circuits

have recognized €quitable circumstances under

which such actions may be validated. »

990 F.2d at 910-11. The court then held, "that

actions taken in violation of the stay are

invalid and voidable and shall be voided absent

limited equitable circumstances. Easley, 990

F.2d at 911.

The removal statute time limit is strictly

construed. See, S.M. y. Jones, /94 F., Supp.

vr «

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bt. dl)

te hem tiee

638, 639 (W.D. Tex. 1992); Rezendes v. Dow

Corning Corp., 717 F. Supp. 1435, 1437 (E.D.

Cal. 1989); Douglass v. Weyerhaeuser Co., 662 F.

Supp. 147, 149 (C.D. Cal. 1987); Hubbard v.

i i ia, 601 F. Supp.

790, 795 (S.D. W.Va. 1985); C. Wright, A. Miller

and E. Cooper, 14A 2r Pp tice

Procedure, Civil 2d, § 3732 at 527.

If actions taken in ignorance of the stay are

' voidable, as opposed to void, Local 959's

_ failure to give notice of the stay to the state

' court and to Patterson and participating in the

| litigation for more than 30 days amounted to

| waiver of the right to remove the case to

federal court, especially in view of the strict

: construction of the removal statute.

B. The Rejection of the Non-Moving

Party's Version of the Facts in

Granting Summary Judgment Denied

Due Process of Law and the Right

to Trial by Jury Guaranteed by

the Fifth and Seventh Amendments

to the Constitution

The right to trial by jury is among the most

revered of the rights protected by the Constitu-

| Constitution. This includes the right to a jury

trial in civil actions involving $20.00 or more

as provided by the Seventh Amendment. To assure

that this right is protected, courts generally

take great care not to deprive a nonmoving party

of a full trial once it is shown that a genuine

issue of fact exists. C. Wright, A. Miller and

M. Kane, 10 Federal Practice and Procedure,

Civil 2d, § 2714 at 623. In support of this,

Wright quotes:

The federal Constitution gives a right

of jury trial in a contested issue in

a law action. This right is positive

and should not be whittled away by

decision of contested issues by a judge

at hearings in camera before trial.

. W J A

C.A.9th, 1955, 226 F.2d 661, 669.

id. at n.9. Similarly, it has been commented

that, "Summary judgment, with ever-lurking

issues of fact, is always a treacherous

shortcut... ." C. Wright, A. Miller and M.

Kane, 10 , Civil

2d, § 2725 at 88. Like motions for directed

verdict, motions for summary judgment deprive a

party of a determination of the facts by a jury

and should be "cautiously and_= sparingly

granted." Id., § 2524, Vol. 9A at 249-50. In

deciding such motions, the court is not free to

weigh the evidence or pass on credibility of

witnesses, and the court must view the evidence

most favorably to the nonmoving party. Id.

This is the due process of law in considering

summary judgment.

But the district court and court of appeals

weighed the evidence, determined credibility of

witnesses and viewed the evidence most favorably

to the moving party.

They almost entirely disregarded Patterson's

version of the facts, quoted the record out of

context and considered the facts in isolation,

rather than in their relationship to each other.

It is generally recognized that a case should

not be taken from the jury when reasonable men

could reach different conclusions based on the

evidence. Wright, supra, § 2524 at 260-64. The

motion for summary judgment in this case has

been before five judges: Judge Ross of the

bankruptcy court, Judge Singleton of the

district court, anda three judge panel of the

court of appeals. Two of the five judges differ

with the other three. Assuming the five judges

may be regarded as reasonable men, it appears

that the available evidence in this case may

lead reasonable men to different conclusions.

Judge Ross concluded:

Also, I think that genuine issues of

material fact have been raised which are

in dispute. These include the direct

conflict between the Conyers Affidavit

regarding preparation for the arbitration

with those of Patterson. In addition,

there is Bob Sinnett's statement to John

Seawell, Matanuska Maid's president, that

he hoped that Matanuska Maid would win

because this is possibly the only way

they could get rid of Patterson. .. .

So, reading the facts most favorably to

Patterson, I think that there are genuine

issues of material facts in dispute which

make summary judgment impossible to

ultimately resolve this case.

(ER 29, Ex. 1 at 3-4).

The dissent to the Court of Appeals Opinior

also discusses specific examples of genuine

issues of fact.

Both the district court and the majority of

the court of appeals panel tortured the evidence

denoting collusion between the union and the

employer, referring to Seawell's notes as to

Sinnett's comments at a meeting on June 5, 1986.

They both quote a fragment of the notes and

conveniently omit the preceding two sentences,

which give meaning to the fragmentary quote. In

proper context, the quote should be:

Visiting Sinnett's office, he told me

that Patterson has been to the NLRB

with allegations that 959 not

representing hin. He has_ been

threatening suit of Matanuska Maid and

959, etc. Sinnett's comments: "You've

got to win. He might leave the state.

That's the only way I can get rid of

hin.

Both Seawell and Sinnett, because the quote is

not closed, say that Sinnett did not mean he

wanted to get rid of Patterson, but the context

Clearly makes it appear that he did and that he

did not want to win Patterson's arbitration

case. The district court mistakenly said that

Patterson had been to the NLRB about this

matter, but Sinnett knew that Patterson had gone

to the NLRB because the union did not help him

when he was laid off in 1984 and again in 1985.

(ER 29, Ex. 2, 44 10 & 11). Taking the history

into account, it appears that Sinnett considered

Patterson to have been a thorn in his side for

years. But the district court and the court of

appeals chose to overlook the history which

Clearly indicated a genuine issue of fact, even

though the history was put before then. They

simply chose to disregard the facts presented by

Patterson.

The district court also chose of overlook

that Patterson, according to Sinnett, had been

threatening to "sue Matanuska Maid and 959,

etc." when it said there was no evidence that

Sinnett had a motive to want to get rid of

Patterson. Surely a reasonable fact finder

could conclude that Patterson's going to the

NLR3 repeatedly cver a period of yéars and

threatening to sue the Local could motivate

Sinnett to want to be rid of Patterson.

Once it is accepted that Sinnett and Seawell

may have been in collusion, a lot of other

things seem to fit into place. For example, on

February 6, 1986, when Bevins wrote the libelous

letter about Patterson, Seawell personally

delivered the letter to Sinnett and discussed it

Swith him. (ER 29, Ex. 2 at 8). Sinnett was

‘very well aware of Seawell's attitude about

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’ Patterson when he "settled" Patterson's

‘grievance and had Conyers tell Patterson to

Sreport for work on June 3, 1986, without

‘advising Patterson of the terms of the

> settlement and without having seen the reprimand

letter that Patterson would be asked to sign.

Either Sinnett wanted Patterson to reject the

’ settlement and have another heated exchange with

' the company officers or he was more than grossly

‘negligent not to take steps to prevent that from

‘happening, because he was aware of the hostile

relationship.

Conyers said he prepared thoroughly for the

arbitration hearing and the district court

accepted Conyer's version and rejected

Patterson's contradiction that he thought

Sinnett was going to represent him, but he had

little or no opportunity to talk about the case

with Sinnett and very little opportunity to

' discuss it with Conyers. This is corroborated

by cConyer's letter to Patterson which he

received on the morning of the arbitration

hearing, which is quoted above in the statement

of facts. The letter makes it clear that

Conyers had arranged for no witnesses and had no

evidentiary exhibits and he had not discussed

Patterson's testimony with him. Conyers said he

had not prepared to defend against the Bevins

letter, which was the major topic at the

arbitration hearing, because he did not think it

was admissible. He said he objected to

admission of the letter, but when he was

overruled, he did not ask for a continuance.

The only defense was provided by Patterson. He

had arranged for witnesses to contradict Bevins

and he presented evidentiary exhibits, despite

Conyers disapproval. And Conyers failed to

arrange for any expert medical evidence about

Patterson's PTSD, even though the arbitrator

would have certainly considered such evidence

Significant. See dissent to Court of Appeals —

Opinion in the appendix hereto for a good —

discussion of this issue. 3

After he was terminated by Matanuska Maid, ©

Patterson attended over 100 job calls at the 7

union hall, but obtained not gainful employment, —

making it appear that he was "blackballed."

See, supra at 27. This seems to confirm that

the union officers wanted to be rid of

Patterson.

A finder of fact could view the foregoing

facts as evidence that the union was merely

going through the motions of defending Patterson

while in fact it was in collusion with

management to "get rid of him."

A union acts arbitrarily if it acts without

any rational basis or if it simply ignores a

meritorious grievance or handles it in a

perfunctory manner. 2 =< FT3

P.2d 1244, 1254 (9th Cir. 1985), cert. denied,

475 ..U.&.-.41322, The principles pertaining to

breach of the duty of fair representation have

been defined in Airli i ssociati

O'Neill, 499 U.S. 65, 111 S.Ct. 1127, 1134, 113

L.Ed.2d 51 (1991) and reiterated in

, 980 F.2d 1167 (8th Cir. 1992).

The duty of fair representation imposes a

responsibility "akin to the duties owed by other

fiduciaries to their beneficiaries." It obliges

a union "to serve the interests of all members

without hostility or discrimination toward any,

to exercise its discretion with complete good

faith and honesty, and to avoid arbitrary

conduct." Id. The court quoted further from

O'Neill:

*++ [A] union's actions are arbitrary

only if in the light of the factual and

legal landscape at the time of the

union's actions, the union's behavior is

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"on

so far outside a ‘wide range of

reasonableness! as to be irrational."

Id. Perfunctory conduct is actionable if "in

the light of the factual and legal landscape at

the time of the union's actions ..." it is

irrational. Schmidt, 980 F.2d at 1169 n. 4.

Collusion bewteen a union and management in

the processing of a grievance is the epitomy of

bad faith.

It is generally recognized that a CBA may be

-breached by imposing discipline contrary to the

specific provisions of the CBA and company work

‘rules, and also by breach of the implied

'covenant of good faith and fair dealing. Sever

'v. Alas Corp., 978 F.2d. 1529, 1541 n. 9

/(9th Cir. 1992); Eldridge v. Felec Services,

\Inc., 920 F.2d 1434, 1437-41 (9th Cir. 1990).

In Hillman v. Nationwide Mutual Fire Insurance

Co., 855 P.2d 1321, i329 (Alaska 1993), the

dissenting justices explained:

The covenant of good faith and fair

dealing requires that the party act

with both subjective good faith and

objective fairness.

In its so-called “Order Denying Summary

Judgment," the district court appears to have

disregarded entirely that in terminating

Patterson, both the union and the company had

the duty to deal with him in subjective good

faith and objective fairness (ER 39, pp. 9-10).

It was neither subjectively in good faith nor

objectively fair to single out Patterson for

termination for conduct which, despite a

technical company rule, was routine procedure

for Patterson and the other drivers, known to

company supervisors and condoned for years.

Patterson set forth in his affidavit that he was

trained that it was standard operating procedure

to take a coffee break first thing and get the

paper work in order for the day, before making

deliveries, so he always’ followed that

procedure. That was what he was doing on the

morning he was terminated, and he also hoped to

see Sinnett. He observed that other drivers did

the same. Management knew that the drivers

deviated from their routes to go to certain

restaurants and no driver had ever been

reprimanded for doing so. Patterson's immediate

supervisor had been with Patterson to the

restaurant in question in a company truck.

While Patterson was there on the morning in

question, he observed at least three other

Matanuska Maid drivers in the restaurant, having

driven there in company trucks. There was even

a note in the handwriting of Bevins, Patterson's

immediate supervisor, telling him that if he

went to the Teamster Hall for lunch or whatever,

not to leave the truck idling for 40 minutes.

See, Statement of the Case at 5-7, 14.

AS corroboration, Patterson presented a

deposition of Richard Luster (CR 29, Ex. 9}.

Luster testified that he was a Teamster, he

worked at Matanuska Maid from 1972 to 1985, and

again, as a driver during 1988, He was the

route supervisor or foreman who had trained and

Supervised Patterson. According to Luster,

drivers drove their trucks to the Teamster Hall

all the time while he worked there and also in

1988 when he returned, for such purposes as

coffee breaks, lunch, to pick up glasses at the

optometrist's and other reasons. None of them

were ever disciplined for using company

equipment for personal use. Luster Depo., pp.

Line @ 15-17, 19-22 and 27-34.

Patterson also presented a statement of

Gerald L. Hood, dated December 21, 1987 (ER 29,

EX. 6). Hood, at that time, was director of

negotiations; at present he is the CEO. Hood

had researched Local 959's records and found no

" oe a! — Poe aie

PADIS OVA dh Sil

i ni

instances of employees having been terminated by

Matanuska Maid for unauthorized use of company

vehicles.

Conyers did not interview any drivers or

gather any information about their use of

company vehicles. If he had done so, and had

presented such evidence to the arbitrator, it is

not so clear that it would not have changed the

arbitrator's mind about whether Patterson's use

of a company vehicle for personal use was just

cause for termination, in view of the fact that

She was doing what all of the drivers did as

) standard operating procedure, condoned for years

jby the company, especially if it had been

) pointed out to the arbitrator that under the

circumstances terminating Patterson was a breach

Sof the covenant of good faith and fair dealing

implied in the CBA. Only by viewing the

evidence in the light most unfavorable to

Patterson and disregarding the covenant of good

faith and fair dealing could the District Court

have granted summary judgment to Local 959 on

this issue. It cannot reasonably be said that

Conyers' failure to investigate, prepare and

present such evidence was not irrational. of

}the three grounds stated in the termination

}notice, the use of company equipment for

personal use was the only one found to be

sufficient by the arbitrator ae. eee

| Memorandum, pp. 11-12).

Once Patterson was terminated and he asked

' Conyers where to go from there, he was told that

| it was a "civil matter." He was not told of the

' six month statute of limitations. That caused

“

him to lose his case against the company without

| litigating the merits. The failure to advise

| Patterson of that applicable statute of

limitations and the failure to advise him of the

} terms of the settlement were equivalent to

merely “standing in" at sentencing, failing to

, advise of the right to appeal, and sleeping

through a portion of a trial in a criminal case.

Frazer _v. United States, 18 F.3d 778, 785 (9th

Cir. 1994).

The failure of the district court and the

court of appeals to recognize the Constitutional

rights to due process of law and trial by jury

has made it necessary to petition this court as

the ultimate protector of those rights.

VI. CONCLUSION

The court is urged to grant the writ and,

upon hearing the case, to reverse the summary

judgment and order that the case be remanded to

the state superior court for further

proceedings.

Respectfully submitted the 30th day of

December, 1997. Resubmitted the 20th day of

January, 1998.

LAW OFFICES OF A. LEE PETERSEN, P.C.

Attorneys for Petitioner

P.O. Box 940284

Houston, AK 99694

(907) 495-6239

Bike bl Pt ok i aie Sel

ee es ee

SONS sien ee LS Me cee

| WILLIAM L. PATTERSON,

| TEAMSTERS, LOCAL 959;

. CREAMERY CORPORATION

)

;

) INT'L BROTHERHOOD OF )

)

+ D/B/A MATANUSKA MAID, )

)

ne eee ee ee

APPENDIZ

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 95-36227

Plaintiff-Appellant,

D.C. No.

Vv.

Defendants-

Appellees.

' Before: WALLACE, NOONAN and THOMPSON,

Circuit Judges.

Judges Wallace and Thompson voted to deny the

| suggestion for rehearing en banc, and Judge

Noonan voted to grant it. Judge Thompson voted

to to reject the suggestion for rehearing en

|} banc, Judge Wallace so recommended, and Judge

recommended en banc rehearing should be granted.

The suggestion for en banc rehearing has been

circulated to the full court, and no judge of the

court has requested a vote on the suggestion for

rehearing en banc. Fed. R. App. P. 35(b).

The petition for rehearing is DENIED, and the

suggestion for rehearing en banc is REJECTED.

etter

ps Soatlhleie

Ab DDADMIN SEMA AB oN eg hae = espe

are Ra oa) tw

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM L. PATTERSON,

Plaintiff-Appellant,

Vv. No. 95-36227

D.C. No. CV

94-00147-JKS

INT'L BROTHERHOOD OF

| TEAMSTERS, LOCAL 959;

| CREAMERY CORPORATION D/B/A

| MATANUSKA MAID,

)

) OPINION

)

Defendants-Appellants.

Appeal from the United States District Court

for the District of Alaska

James K. Singleton, District Judge, Presiding

Argued and Submitted

July 17, 1997--Anchorage, Alaska

Filed August 15, 1997

Before: J. Clifford Wallace, John T. Noonan

and David R. Thompson, Circuit Judges.

Opinion by Judge Thompson;

Dissent by Judge Noonan

OPINION

THOMPSON, Circuit Judge:

| William L. Patterson appeals from the district

court's summary judgment in favor of the

International Brotherhood of Teamsters, Local 959

(Local 959). Patterson contends Local 959

breached its duty of fair representation while

assisting him in his grievance and arbitration

proceedings. We have jurisdiction pursuant to 28

U.S.C. §1291, and we affirn.

FACTS

Matanuska Maid Dairy (Mat-Maid) employed

Patterson for approximately seven years as a

driver and delivery person. One morning during

his employment with Mat-Maid, on April 30, 1986,

Patterson clocked into work and then drove his

delivery truck to Local 959's offices to speak

with a union representative. Paterson waited for

the representative in a restaurant which was in

the same building as Local 959's offices. When

the representative did not appear, Patterson left

for his first delivery. As Patterson was leaving

the parking lot, a pickup truck struck him from

behind. When Patterson returned to work after

his deliveries, Mat-Maid informed him that he was

terminated for cause.

Mat-Maid cited three reasons for the

termination: gross disobedience, being in a

second accident within a year involving property

damage to others, and using Mat-Maid's delivery

truck for personal business--driving to Local

959's offices in an attempt to speak with a union

representative on a personal matter.

At the time Mat-Maid terminated Patterson, a

collective bargaining agreement was in effect

between Local 959 and Mat-Maid. When Mat-Maid

informed Patterson of his termination, Patterson

immediately went to Local 959's offices and

discussed his termination with Edwin Conyers, the

business representative assigned to administer

the Mat-Maid collective bargaining agreement.

That afternoon, Patterson and Conyers met with

ih in a

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John Seawell, Mat-Maid's general manager, and Joe

Van Treeck, Mat-Maid's plant manager, in an

attempt to settle the matter. No resolution was

reached. As a result, Conyers filed a grievance

with Mat-Maid on Patterson's behalf.

On May 12, 1986, Local 959 and Mat-Maid

reached a tentative resolution of the grievance:

Patterson would be given a letter of reprimand

and a thirty-day suspension without pay. This

proposed resolution, however, was not accepted by

Patterson. He was adamant that he had done

nothing wrong and should not be suspended without

pay. Because he was unwilling to accept the

settlement at that time. Mat-Maid and Local 959

agreed to extend the informal resolution period

until June 2, 1986.

On June 1, 1986, without Mat-Maid's consent or

a settlement in place, Patterson attempted to

return to work. He was cited for trespass and

escorted off Mat-Maid's property. Patterson then

apparently agreed to accept the settlement. The

following day, Conyers called and told him to

report for work the next morning.

Patterson reported for work on June 3rd. On

June 4th, Seawell asked Patterson to sign the

letter of reprimand. Patterson viewed the letter

as "a lengthy letter of reprimand from the

company point of view" and as “distorted and

untruthful." He refused to sign it and was

escorted off the premises.

The next day Mat-Maid and Local 959 met in an

attempt to salvage the settlement. Patterson,

however, insisted on arbitration. Mat-Maid

informed Local 959 that, because Patterson had

rejected the proposed settlement, Mat-Maid

considered Patterson terminated.

The parties then proceeded to arbitration. In

July 1986, the arbitrator determined just cause —

supported Patterson's termination and rejected —

his argument that a lesser disciplinary sanction

was appropriate. The arbitrator determined just —

cause existed because Patterson had used the Mat-

Maid delivery truck for personal business. The |

arbitrator rejected the other two termination —

grounds of gross disobedience and being in a

second accident. The arbitrator also determined ~

a sanction less than termination was not

appropriate based on Patterson's “almost —

continuous and predictable conduct that is

disruptive of a struggling dairy trying”

desperately to survive." The arbitrator found

that although Mat-Maid had given Patterson two

opportunities "to start with a clean slate,"=

Patterson continued to have disciplinary |

problems.

In 1988, Patterson filed a pro se action in

Alaska state court against Mat-Maid, Local 959, ©

and various other defendants. As relevant to

this appeal, Patterson alleged Local 959 breached ©

its duty of fair representation while

representing him during his grievance = and7

arbitration proceedings. He also asserted a

wrongful discharge claim against Mat-Maid.

The state court action was stayed against ™

Local 959, because it had earlier filed a Chapter)

11 bankruptcy petition. The action proceed |

against the other defendants, and as to Mat~-Maid

the state court determined the statute of

limitations barred Patterson's wrongful discharge

claim. See Patterson v. State Dep't of Agric.,

880 P.2d 1038, 1046 (Alaska 1994), cert. denied. ©

513 U.S. 1127 (1995).

When the bankruptcy court eventually permitted.

Patterson to pursue his claim against Local 959

)

Diasach at Task 0 Aledl PAA MME E ME te NR BO dB

a eee ey ee

Pee g

in state court, Local 959 removed the action to

federal district court. The district court

denied Patterson's motion to remand the action to

state court and granted Local 959's motion for

summary judgment. This appeal followed.

DISCUSSION

Patterson contends the district court erred by

refusing to remand the action to state court. He

also contends the district court erred by

granting summary judgment in favor of Local 959

on his claim for breach of the duty of fair

representation.

A. Removal

We review de novo the district court's refusal

to remand the action. Evak Native Village v.

Exxon Corp., 25 oe mg ae Bog (9th Cir. 1994).

Patterson filed his state court action and

served Local 959 on May 11, 1988. That action

was automatically stayed as to Local 959,

pursuant to 11 U.S.C. § 362, because Local 959

earlier had filed a Chapter 11 bankruptcy

petition. In April 1991, Patterson sought

permission from the bankruptcy court to proceed

with his claim in state court against Local 959.

In an order filed March 7, 1994, the bankruptcy

court abstained pursuant to 28 U.S.C. § 1446(b).

Patterson argues Local 959 did not timely

remove the action because it did not file its

notice of removal within thirty days after the

date it received service of process, back in May

1988. See 28 U.S.C. § 1446(b). Local 959's

notice of removal was filed almost six years

after such service. Local 959 argues, however,

its notice of removal was timely because it was

filed with thirty days of March 7, 1994, the date

A8&

Patterson obtained relief from the automatic ™

stay. We agree.

If an automatic stay is in effect at the time —

the plaintiff files a state court action (which ©

was the situation here), the thirty-day period —

for removal does not begin to run until relief =

is obtained from the automatic stay. See Easley

v. Pettibone Michigan Corp., 990 F.2d 905, 908- —

09 (6th Cir. 1993). A contrary rule would |

require a debtor to expend limited resources and |

to continue to litigate a claim as if no stay —

were in place. Cf. In re Schwartz, 954 F.2d 569, ©

571-72 (9th Cir. 1992). If a debtor were forced ©

to continue to litigate the claim, the purposes —

underlying the automatic stay would be thwarted. |

Id. Thus, the district court did not err in

denying Patterson's motion to remand.

B. Duty of Fair Representation

Patterson next argues the district court erred ©

by granting Local 959's summary judgment motion |

on his fair representation claim. We review de ~

novo the district court's grant of summary —

judgment. W nv. Cit ¢ S , 58 F.3dq

439, 441 (9th Cir. 1995). cert. denied. 1167

S.Ct. 1261 (1996). {

[1] A union breaches its duty of fair =

representation if its conduct is “arbitrary, ©

discriminatory, or in bad faith." Peters v.

Burlington N.R.R., 931 F.2d 534, 538 (9th Cir.

1990) (quotations and citations omitted). A

union does not breach its duty of fair

representation by acting negligently. i”, «A

union acts arbitrarily only if it shows an

"egregious" or “reckless disregard" for the

rights of its members. Id. Further, “[wje have

never held that a union has acted in an arbitrary

manner where the challenged conduct involved the

POO BEN

- Ne eledaab 22: idenaibebce

er Oe TO

union's judgment as to how best to handle a

grievance." Peterson v.- Kennedy, 771 F.2d 1244,

1254 (9th Cir. 1985).

Patterson contends Local 959 breached its duty

of fair representation by not sufficiently

investigating his grievance. In support of this

contention, Patterson argues Local 959 should

have presented evidence that other Mat-Maid

drivers stopped for coffee breaks to complete

paperwork in the same restaurant where Patterson

was waiting to speak with the union

representative, and these other drivers were not

terminated nor were they even disciplined.

[2] We reject this argument because the

evidence would have been irrelevant. Patterson

did not stop at the restaurant to take a coffee

break and to complete paperwork. He went to

Local 959's offices and was waiting at the

restaurant hoping to speak with a union

representative to obtain permission to attend a

collective bargaining meeting.

[3] Patterson next argues Local 959 breached

its duty because it failed to introduce evidence

that he suffers from post-traumatic stress

disorder. We als» reject this argument. Local

959 explained it decided to focus on the

particular incident which - gave rise to

Patterson's termination because Patterson

insisted he had done nothing wrong and he

contended his termination was not warranted.

Local 959 determined the medical evidence would

have been largely irrelevant to this defense.

Local 959 also believed the introduction of the

medical evidence could have been damaging because

such evidence would have had an adverse effect on

the arbitrator's view of Patterson's job

performance.

A10

;

{4] The union's explanation for not presenting ©

the medical evidence is reasonable. If a union —

provides a reasoned explanation for not pursuing ©

a potential defense, we may not second guess its —

decision. vens v ° . a, i188

F.3d 1443, 1448 (9th Cir. 1994). "It is for the —

union, not the courts, to decide whether and in ~

what manner a particular grievance should be |

pursued." Peterson, 771 F.2d at 1254. Local ~

959's reasoned tactical decision not to present ~

the medical evidence does not amount to a breach —

of fair representation. See id. at 1254-55. .

Patterson also contends Mat-Maid and Local 959 _

engaged in a civil conspiracy to terminate him. ~

In support of this argument, Patterson refers to

a note kept by Seawell, Mat-Maid's general ©

manager. The note apparently was made by Seawell ~

during a conference with Robert Sinnett, a Local |

959 official. The note reads: .

Sinnett's comments: "you've got to

win. He might leave the. state.

That's the only way I can get rid of

him.

[5] We agree with the district court that this —

note is not sufficient to raise a genuine issue ©

of material fact. Patterson must produce more ~

than a "mere scintilla" of evidence to avoid |

summary judgment. See City of Vernon v. Southern =

Cal. Edison Co., 955 F.2d 1361, 1369 (9th Cir. ¥

1992). Patterson has not produced any evidence ©

of hostility on belialf of Local 959 toward him or —

any motive that Local 959 would have in

conspiring with Mat-Maid to terminate hin.

Moreover, the evidence demonstrates that Local °

959 aggressively sought to get Patterson ©

reinstated during settlement negotiations and ©

arbitration proceedings. fThe note simply sets

forth a truism: if Mat-Maid wanted to get rid of 7

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All

Patterson, Mat-Maid would have to win the

arbitration.

[6] Patterson points to several other

instances of Local 959's alleged breach of its

duty of fair representation. None, however, has

any merit. Local 959 was not required to assign

an attorney to represent Patterson during his

arbitration proceedings, see Castelli v. Douglas

Aircraft Co., 752 F.2d 1480, 1483 (9th Cir.

1985), and it did not have an obligation to

advise Patterson of his ability to further pursue

a civil action--particularly in light of the

weakness of Patterson's case. Cf. Galindo v.

Stoody Co., 793 F.2d 1502, 1513 (9th Cir. 1986)

(stating a union "need not process a meritless

grievance").

[7] Nor has Patterson demonstrated that he

suffered any harm due to Local 959's alleged

failure to object to the admission of a letter

written by Mat-Maid accusing Patterson of gross

misconduct. The arbitrator specifically stated

he gave no weight to the allegations made in the

letter.

[8] Finally, Patterson has not demonstrated

that he was harmed in any way by Local 959's

failure to review the reprimand letter prior to

the time Mat-Maid asked Patterson to sign it.

Patterson had ample opportunity to discuss the

letter with Local 959 the day after it was

presented to him, as well as thereafter when

Local 959 set up a meeting with Mat-Maid in an

attempt to save the settlement. Patterson,

however, rejected the settlement and insisted on

arbitration.

CONCLUSION

The district court did not err in determining

Al2

Local 959 timely removed the action from state ©

court. Local 959 removed the action within |

thirty days of the date the bankruptcy court 4

granted Patterson relief from the automatic stay. =

The district court also did not err in granting ©

summary judgment in favor of Local 959. ©

Patterson failed to raise a genuine issue of —

material fact in support of his claim that Local —

959 breached its duty of fair representation.

AFFIRMED.

NOONAN, Circuit Judge, dissenting:

On the Union's first motion for summary

judgment the district court ruled in the Union's

favor, except as follows:

There is, however, one disturbing

aspect of this case that precludes

summary judgment. It appears that the

Union knew that Patterson was

suffering from mental or emotional

problems which have been diagnosed as

post traumatic stress disorder. It

also appears that Patterson's mental

state might explain his adversarial

relations with his supervisors.

Consideration of these factors might

illuminate the need for a remedy or

sanction short of termination. The

Union considered this issue of

sufficient importance to argue it to

the arbitrator, and the arbitrator

considered it sufficiently important

to mention in his decision:

I have also considered grievant's

testimony regarding his medical

condition, and have speculated

he ee

sitBipts Patek S Pe Me eee ae eT wa a en

Sadat wectaiatal ys ate hie

;

Al13

that grievant's performance and

behavior of the last’ several

months, i.e., his cyclical swings

in performance, to be possibly

symptomatic of medical

complications arising out of his

diagnosed post-trauma syndrome.

There was no competent testimony

or other evidence to this effect,

and the arbitrator was hired to

arbitrate, not totally exceed his

competence by practicing

medicine. I can only suggest

that if the grievant does

determine that events of the last

year were a medically (sic)

phenomenon that the company give

such fact a consideration.

Docket No. 25, Affidavit of Edwin R.

Conyers at Exhibit S at 14.

It appears that the arbitrator would

have considered medical evidence if it

had been offered, and might have

determined that a sanction short of

dismissal was appropriate if the

medical evidence explained Patterson's

behavior and offered significant hope

that with specific treatment’ the

behavior would not reoccur. While

determining appropriate witnesses is

certainly a matter of judgment, the

Court hesitates to find that failure

to call a treating physician was not

irrational, or a reckless disregard of

Patterson's rights, without some

explanation in the record of the

decision not to call medical wit-

nesses. In the absence of such an

explanation, a trial would appear

Al4

warranted.

The Union renewed its motion submitting the |

affidavit of Edwin R. Conyers, the business agent 7

who represented Patterson in the arbitration. ~

Conyers swore as follows:

I believe that medical testimony

would have undermined our position on

a point of concern to us (the Tranxene

incident) and would have sonflicted

with Mr. Patterson's own beliefs and

testimony concerning the significance

of his medical condition. In addition

the material in the file explained the

features of Post Traumatic Stress

Disorder and were available for use if

they had been consistent with our

case.

affidavit, in which he swore to the contrary:

I absolutely deny Mr. Conyer's

statements in paragraph 7 of his

September 26, 1995 affidavit. I do

not believe that medical testimony

would in any way have undermined our

position in the arbitration with

it certainly would not have conflicted

with my own beliefs and testimony

concerning the significance of my

medical condition. In fact, I firmly

believe, and I believed then, that

medical testimony would have been

totally consistent with my own beliefs

and testimony concerning the signif-

icance of my medical condition.

The district court then ruled on the second}

Patterson replied to this motion with his own |

respect to the Tranxene incident and i

A15

motion stating:

The Union has renewed its motion for

summary judgment, filing affidavits

and other evidence to show that its

decisions were strategic and not

reckless or not bad faith .. .

Patterson responded, conceding that

the decision was strategic, but

contending that the strategy was

flawed. .. . That may be. However,

mere negligence is not enough.

The court granted the motion for summary

judgment.

It is not apparent what changed the court's

mind between the first and second motions for

summary judgment. It does not appear that

Patterson conceded that the decision not to

present medical testimony was strategic.

Instead, his affidavit declares: "I absolutely

deny Mr. Conyers' statements in paragraph 7 of

his September 26, 1995 affidavit." There could

not be a sharper disagreement over an issue of

material fact: was or was not the Union's

decision strategic? On that issue alone Conyers

(sic) was entitled to go to the jury.

In addition, there was one further piece of

evidence. It consisted in a note found in the

files of John L. Seawell, the general manager of

Mat-Maid, regarding a conference he had held

before the arbitration with Robert F. Sinnett,

the Secretary-Treasurer of newt Union. The note

read: "Sinnett's comments. ‘you've got to win.

You (sic) might leave the state. That's the only

way I can get rid of it." (sic)

Sewell (sic) testified that the note conveyed

Sinnett's understanding that the only way Sewell

Al16

(sic) would be rid of Patterson would be to win

the arbitration. Sinnett denied having said that ”

he needed to get rid of Patterson. He did

suggest that he might have told Sewell that the

only way he could discharge Patterson was by

winning the arbitration. :

The district court commented on this evidence ©

that it provided “only a scintilla of evidence

that the Union engaged in a conspiracy to ‘'get' ©

Patterson. ... There is no evidence that would ©

support a plausible motive for the Union to

intentionally conspire against Patterson. —

Patterson has failed to create a disputed issue ©

of fact regarding bad faith." |

It is possible that Sewell's and Sinnett's |

explanation of the note in the files is the

correct one. But it is only one way that note >

might be read. A reasonable juror could read tne

Sewell's position. The note does not have

closing quotation marks around Sinnett's —

be interpreted as an expression of enthusiasm for _

the company prevailing in the arbitration. As

the note describes what it is reporting as

"comments," a reasonable juror could also;

conclude that the following two sentences also}

come from Sinnett and convey his hope to get rid|

of Patterson. At the very least reasonable minds

could differ in the interpretation of the note)

and could discount Sinnett's and Sewell's later |

testimony as efforts to explain away a highly |

embarrassing conversation. Patterson should have

been able to present this substantial evidence of

a conspiracy between the Union and management to

a jury.

The district court said that Patterson showed

hy a a

Al7

no motive for the Union conspiring against hin.

That view of the facts is one that a reasonable

juror also could find not compelling. There is

abundant evidence in this record on summary

judgment of what a difficult person Patterson

was. His evidence as to what his experience in

Vietnam had led to in his medical condition shows

that he would have maintained a contentious

stance toward any authority figure such as the

Secretary-Treasurer of the Union. A reasonable

juror could conclude that the Union had a strong

motive to get rid of a member with Patterson's

medical handicap.

Post Traumatic Stress Disorder, since 1980

recognized as a serious medical condition, was

particularly aggravated in the case of Vietnam

veterans by the political conditions of the war

and the reception of veterans on their return.

Like the arbitrator in this case we cannot

practice medicine, but we can note that a fair

and full presentation of Patterson's medical

condition after Vietnam would have produced a

very different result before an arbitrator who

expressed such thoughtful regret that the subject

had not been presented. It is a jury question

whether the Union failed to present the evidence

because it wanted to aid the employer in getting

rid of a difficult member.

Als

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

William L. Patterson,

Plaintiff,

Case No.

vs, A94-147 CV

International

)

) (JKS)

)

Brotherhood of )

Teamsters Local $59 )

)

Defendant. )

)

ORDER DENYING SUMMARY JUDGMENT

action against his union--International Brother ~

hood of Teamsters Local 959 ("Union")--for ~

alleged violation of the duty of fair ~

representation. See § 301 of the Labor ~

The action was commenced in state court and

eventually removed to this Court. 28 U.S.C. 4

§ 1441. This Court has _ subject matter

jurisdiction. 29 U.S.C. § 1331.'

' patterson commenced this action in state

court in 19868. At that time, Local 959 had

declared bankrup’:cy and ae stay prevented

litigation of this claim. The Union moved for —

judgment on this claim in the bankruptcy court.

Judge Ross concluded that this was a proper

matter for abstention under 29 U.S.C. § 1334.

claims are primarily federal law and this Court

Claims, this case is not appropriate for |

Al19

Patterson was employed by Matanuska Maid Dairy

("Mat-Maid") for a number of years as a driver

and delivery person. Docket No. 25. His

employment was terminated allegedly for cause,

and Patterson, assisted by the Union, exhausted

the company's grievance procedures. Id.

Eventually, the grievance was submitted to an

independert arbitrator and a decision adverse to

Patterson was reached on July 2, 1986. Docket

No. 25. Affidavit of Edwin R. Conyers at Exhibit

S. Neither Patterson nor the Union appealed the

arbitration decision. Patterson filed a

complaint with the U.S. Department of Labor on

January 16, 1987. He apparently received no

relief. On February 5, 1988, Patterson filed a

pro se tort action for defamation against Mat-

Maid. See e.g., Patterson v. State, 880 P.2d

1038 (Alaska 1994). On May 2, 1988, Patterson

filed a second lawsuit; this time for wrongful

termination against Mat-Maid, the Union and its

officers, and the arbitrator. Id. Several of

Patterson's claims were dismissed. Id. The action

against the Union officers and the arbitrator

were dismissed on various grounds. Id. The

action against Mat-Maid was dismissed because it

was not filed in a timely manner under applicable

federal law. Id.° Finally, a stay of

mandatory abstention. 28 U.S.C. § 1334(c) (2).

Judge Ross elected to proceed under Section

1334(c)(1) (permissive abstention). Docket No.

29, Exhibit 1. Neither party appeals Judge Ross'

decision, contends that his decision is binding

on this Court, or even suggests that it is a

proper topic for consideration.

¢ .The Alaska Supreme Court held that

Patterson's claims under §301 of the Labor

Management Relations Act accrued sometime between

July 7 and July 21, 1986 and the claim terminated

A20

proceedings was ordered against the Union |

pursuant to United States Bankruptcy Code, 117)

U.S.C. § 362. Id. In the meantime, the Union’

had removed the action against it to this Court. |

The Union renews, for the third time, its

motion for summary judgment. Docket Nos. 25 4.

37." The motion is opposed. Docket No. 29. The

Union requests oral argument (Docket No. 38), but.

the parties have sufficiently briefed the issues

so that oral argument is not necessary. D.Ak. LR_

7.1(i).

are apparently in agreement that the automatic

stay precluded an action by Patterson against the |

Union during the period from January 7 to January |

22, 1987 and therefore tolled the statute of |

limitations until Judge Ross abstained and F

permitted this action to go forward on March 1, |

1994.

The parties have not briefed and I express

no opinion on the question of whether the final |

judgment in favor of Mat-Maid operates via non

mutual res judicata to bar this action on the]

theory that it establishes that Patterson was not |

wrongly discharged. Collateral estoppel would |

not appear to apply because the Supreme Court's |

decision did not specifically address the merits |

of Patterson's claim.

7 Judge Hunt declined to rule on the Union's

motion because she found Patterson's claim was

controlled by the automatic stay in Bankruptcy.

Judge Ross declined to rule on the motion because |

he felt it should be resolved in state court.

A21

DISCUSSION

Summary judgment is appropriate when there is

no genuine issue regarding any material fact and

the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56; Celotex v.

Catrett, 477 U.S. 317, 322-23 (1986). The Court,

considering a motion for summary judgment, must

view the evidence in the light most favorable to

the non-moving party and may not’ judge

credibility or weigh the evidence. See

Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986); Anderson v.

Liberty Lobby, 477 U.S. 242, 255 (1986). Factual

disputes must be material and genuine to preclude

summary judgment. A material fact is one

necessary to establish a claim or defense. A

dispute is genuine if a reasonable fact finder

could resolve the case in favor of the non-moving

party. The test at the summary judgment stage is

essentially the same as the test for a directed

verdict. Anderson, 477 U.S. at 248-52 (defining

"material" and “genuine” and applying’ the

directed verdict test)' see also Matsushita, 475

U.S. at 586-88 (non-moving party must come

forward with specific facts showing that there is

a genuine issue for trial; mere metaphysical

doubt is insufficient). In evaluating the

evidence, the Court must consider who will have

the burden of proof at trial. Celotex, 477 U.S.

at 322-25 (if non-moving party will have burden

of proof at trial she must produce evidence in

response to a motion for summary judgment which

conforms to Fed. R. Civ. P. 56(e) and which

establishes each element of her claim). The

Court must also consider the nature of that

burden. Anderson, 477 U.S. at 258 (higher burden

of proof affects whether the non-moving party has

made a case which a reasonable juror could

accept). The Court has been particularly careful

in dealing with claims of conspiracy based on

A22

ambiguous circumstantial evidence. See

Matsushita, 475 U.S. at 587 (evidence should be

consistent with conspiracy and inconsistent with”

any inference of independent action). The Court

must be particularly sensitive to implausible or

improbable inferences from circumstantial

evidence. See, e.g., id. at 595-98 (stressing

the importance of motive in evaluating |

circumstantial evidence of civil conspiracy and

concluding that in the absence of a plausible’

motive to conspire, conduct consistent with other

equally plausible explanations noes not give rise |

to an inference which will establish a genuine |

issue of fact regarding conspiracy). f

Patterson claims that he was wrongfully

discharged from his employment with Mat-Maid in

violation of the collective bargaining agreement. |

The matter went to arbitration and the arbitrator)

found that Patterson was properly discharged for}

violating his employer's work rules. Normally,|

the decision of an arbitrator would be final and)

preclude this action. Peculiarities of the labor]

law, however, create a loophole through which)

Patterson seeks to proceed. Under federal labor/

law, an employee whose union is a party to aj

collective bargaining agreement is not free to}

independently litigate employment disputes with/

her employer.° The Union controls an employee's}

power to process grievances and the employee's[

access to neutral decision makers. This works no}

hardship in the normal course since the union and

the employee have common goals and union's

success depends upon its ability to maintain the}

* It appears that there was a collective}

bargaining agreement in force between the Union|

and Mat-Maid at the time of Patterson's

grievance. See, e€.g., Patterson, 880 P.2d at

1047.

- L mal ait |

opty rsiieesanietia)

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A23

loyalty of the employees who make up its

membership. Where, however, the union breaches

its duty of fair representation, the employee

will not receive the process that emanates from

grievance procedures, including arbitration. In

this limited situation, an employee may avoid the

bar of adverse arbitration if she can show: 1)

she was wrongly terminated; and 2) the union

breached its duty of fair representation. Hines

, 424 0.8. 5S4,. 570-71

v. Anchor Motor Freight

(1976); Vaca v. Sipes, 386 U.S. 171, 191 (1967);

see also Air Line Pilots Assoc. v. O'Neill, 499

U.S. 65 (1991). Practically speaking, the

arbitration establishes that the employee was

properly terminated, the second prong of the

employee's burden of proof is therefore best

approached first. Unless the employee can show

that she received ineffective representation, it

is not necessary to evaluate her claim against

her employer. Mere dissatisfaction with the

arbitration or the belief that new evidence or

different arguments might change the result is

insufficient. By the same token, a showing that

the union was negligent or exercised poor

judgment is not enough. To prevail, the employee

' must show either some procedural or ministerial

' default, or that the union's choices were so far

' beyond the pale as to be irrational or in bad

| faith. Seem e.g., Vaca, 386 U.S. at 193-94;

| Moore v. Bechtel Power Corp., 840 F.2d 634, 636-

| 37 (9th Cir. 1988).

In Moore, the court distinguished between

' claims based on procedural or ministerial

' mistakes, and claims based on errors of judgment.

| Moore, 840 F.2d at 636. The procedural and

ministerial mistakes were tested against

arbitrariness, which is defined as_ reckless

disregard of employee's rights and requires a

finding of prejudice to succeed. Id. The claims

based on errors of judgment were tested for

A24

evidence of discrimination or bad faith. Id.

Viewed in this light, an employee's burden to |

show unfair representation is similar to the ~

showing that a criminal defendant must make in |

order to upset his conviction on the ground of :

ineffective assistance of counsel. To establish ~

ineffective assistance of counsel, a client must

show either gross negligence and prejudice, or a ]

breakdown in the attorney client relationship.

Strickland v. Washington, 466 U.S. 668 (1984);

, 18 F.3d 778 (9th Cir.

1994). Gross negligence borders on reckless

disregard, consisting of conduct falling

substantially below a minimum. standard of

competence. Strickland, 466 U.S. 668. Prejudice

must also be found. Id. Ineffective assistance

of counsel can be established due to a breakdown

of the attorney relationship if the breakdown

resulted from disloyalty or conflict of interest

to the extent that prejudice is presumed.

Cronic, 466 U.S. 648; Frazer, 18 F.3d 778.

Patterson charges both aspects of the test.

First, he contends that the Union engaged in a fi

civil conspiracy with Mat-Maid to discharge him |

on trumped-up charges. Patterson suggested in |

state court that the arbitrator was privy to the |

conspiracy. This is a most serious charge. If |

true, it would undermine the integrity of the

arbitration process. No further showing of |

one side was participating. See U.S. v. Olano,

No. 87-3128, 1995 WL 468499 (9th Cir. Aug. 9,

1995) (Reinhardt, J., dissenting) (citing Arizona

v. _Fulminante, 499 U.S. 279 (1990), for the!

distinction between trial errors and fundamental |

i ek a

calls

AP 2S ST AR i OAL EIB NNER NE cl a este shal Shi

A25

prejudice would be required. The Court will

therefore first address the claim of bad faith.

It is not contended that Patterson was the

victim of racial, religious, ethnic, gender, or

age discrimination. It is also not contended

that he was active in an insurgent movement

within the Union and therefore the victim of

Union management retaliation. It appears that

Patterson's membership in the Union and

employment with Mat-Maid had been uneventful for

over seven years. The Union certainly appears to

have processed Patterson's grievance with care.

The quality of the Union's efforts will be

discussed in the next section but there is

nothing in the investigation and procedure that

Suggests bad faith or ill will.

The Union's arguments outlined in the

arbitrator's decision seem forceful and to the

point. The sole exception mentioned by Judge

Ross in an earlier stage of these proceedings is

a cryptic note kept by John Seawell, an officer

of Mat-Maid, at a conference with Robert Sinnett,

a Union official. the note reads, "Sinnett's

comments: "you've got to win. He might leave

the state. That's the only way I can get rid of

him." Docket No. 29, Exhibit 4. The quotations

are not closed. Patterson attributes all of the

comments in the note to Sinnett and reads it to

say, "I, Sinnett, hope you, Mat-Maid, win,

errors). In contrast, the charge that the Union,

despite good faith, botched the arbitration,

requires an evaluation of the record to determine

whether the Court has confidence in the result

reached. See, e.g., Strickland, 466 U.S. at 694

(test of prejudice is whether confidence in

outcome is undermined).

A26

Patterson will leave the state, and I, Sinnett, |

testified that the context of the note was.

Patterson's unwillingness to settle on terms |

agreed to by Sinnett and Seawell. Seawell

contended that the note conveyed Sinnett's _

understanding that the only way Seawell would be

rid of Patterson would be to win the arbitration. |

Sinnett denied having said that he needed to get |

rid of Patterson. He did suggest that he might |

have told Seawell that the only way he could.

discharge Patterson was. by winning’ the |

arbitration. |

The only other evidence of "civil conspiracy" |

Patterson had complained to the NLRB about the.

Union's handling of his grievance. It does not

appear that Patterson had any prior disputes with

the Union or any dispute except regarding the |

processing of this grievance. Viewed either |

individually or collectively, these two items f

provide only a scintilla of evidence that the |

Union engaged in a civil conspiracy to "get" |

Patterson. See Anderson, 477 U.S. at 251

(scintilla not enough to. defeat summary |”

judgment). There is no evidence that would!

support a plausible motive for the Union to!

intentionally conspire against Patterson.°

* Patterson suggests two "motives." First,

that he was a nuisance and an annoyance. There |

is no evidence that Patterson had "annoyed"

anyone at the Union prior to his dispute with

Mat-Maid. Patterson would need to offer |

substantial evidence to support an inference that _

he was a significant annoyance to the Union

before a reasonable juror could find a civil.

conspiracy on that basis. The other motive |

implied, but never expressed, is that the Union|

ee Ee ee MR eae sew “

A27

Patterson has failed to create a disputed issue

of fact regarding bad faith.

Patterson contends that Edwin R. Conyers

("Conyers"), a Union business representative who

acted for him at the arbitration, was incompetent

as a representative and inadequately represented

him at the arbitration. Patterson summarizes his

complaints against Conyers in his statement of

genuine issues at Docket No. 28. Most of

Patterson's complaints go to matters of judgment,

where viewed either in isolation or as a group,

he fails to make a prima facie case that the

Union was irrational in its choices of recklessly

disregarded his interests. It appears that

reasonable men and women could not differ that

the Union conducted a reasonable investigation,

that Conyers was competent to represent

Patterson, and that the arbitration was

vigorously defended. Whether to have Conyers or

a lawyer represent Patterson was a judgment

within the Union's discretion. The Union made a

very strong effort to settle the matter on terms

favorable to Patterson. Patterson's real

complaint about the settlement is that he did

nothing wrong and therefore any sanction was

inappropriate. As the arbitrator found, this is

simply not true. Patterson also faults the Union

for not anticipating that he would have to

acknowledge that his conduct warranted a sanction

in writing. Patterson believes a Union

representative should have been prepared to be

present with him when he spoke to management

was prejudice against people with post traumatic

stress disorder and by extension other men and

woman (sic) who are mentally or emotionally ill.

There is no evidence of a pattern of hostility to

the mentally ill. Patterson's claims of motive

are pure conjecture.

A28

about the implementation of the settlement. |

These matters are clearly within the Union's e

discretion.

Patterson has failed to show that the Union's ‘

handling of his grievance was negligent. Even if |

he had succeeded in showing some conduct, action, |

or inaction which, viewed in retrospect, might |

appear negligent, most of his claims would still |

fail because Patterson cannot show that he was

prejudiced. There is no evidence that if the

settlement negotiations had been handled |

differently the case would have settled upon more |

favorable terms. Patterson says now that he |

would have accepted the company's terms if that |

was the only way to save his job, but his ‘

contemporaneous conduct is inconsistent with this |

self serving observation. :

Patterson misunderstands the arbitrator's :

decision and bases a number of arguments upon f—

this misunderstanding. The arbitrator saw the

case as presenting two issues: 1) whether

Patterson was terminated for just cause on April

30, 1986; and 2) the remedies available to

Patterson if his termination was not for cause.

The arbitrator recast these questions to ask: 1)

whether Patterson violated company work rules;

and if he did, 2) whether dismissal, as the |

sanction for his violation, was too severe. The :

arbitrator found that there was good cause for f

termination because Patterson used a company [|

truck to drive to Union headquarters, during |

business hours, in violation of company work [

rules. This finding is really undisputed. [|

Patterson concedes that he used the truck, :

Claiming that he wanted to ask Sinnett for|

permission to sit in on a meeting with Mat-Maid F

in connection with collective bargaining. As the |

arbitrator found, this clearly violated company |

rules. The fact that other drivers on other

A29

occasions also violated company rules is really

irrelevant on the issue of violation, although it

might have been relevant on the issue of

determining the appropriate sanction.

Patterson argued then, and continues to argue

now, that his offense was trivial and therefore

was no offense at all. He reasons that other

drivers took coffee breaks during the day and

would go over their paper work at the restaurant

or cafe. Patterson overlooks the fact that he

did not go to the union office to take a coffee

break, but rather, to see Sinnett. It was only

because Sinnett was not available that Patterson

waited in the adjacent cafe. The fact that the

amount of time spent waiting, as recollected by

Patterson, approximated the amount of time that

would have been spent at a coffee break is mere

coincidence. Patterson's justification was, as

the arbitrator in effect found, specious. In

determining an appropriate remedy, the arbitrator

properly considered Patterson's insistence that

he did no wrong. The arbitrator pointed out that

viewed in isolation, any dereliction in this

regard by Patterson, even if a no fault accident

occurred, would not have been grounds for such a

severe sanction as termination. Nevertheless,

when viewed against the totality of Patterson's

conduct, termination was warranted.

These conclusions set the stage for evaluating

prejudice. It is clear that having a group of

drivers come in and testify that they

occasionally violated company policy would not

have changed the arbitrator's mind that the

company work rules had been violated. Nor would

it have been relevant to the arbitrator's

decision that Patterson's total conduct warranted

termination. The arbitrator set out in detail

his reasons for concluding that Patterson had

already been given chances to correct his

A30

behavior and had failed. Docket No. 25,

Affidavit of Edwin R. Conyers at Exhibit S at 13-

15. It does not appear that any of the points

Patterson wishes the Union had made would have

changed that decision. Consequently, Patterson

has failed to produce evidence supporting an

inference that any of the deficiencies he assigns

to the Union caused his discharge or tainted the

arbitration.*® In sum, the bulk of Patterson's

? Patterson complains that the arbitrator

considered misconduct that had not been specified

as grounds for discharge. Patterson

misunderstands the arbitrator's reasoning. The

arbitrator considered each of the proffered

grounds for termination and rejected all but one:

Patterson's frolic and detour during work hours.

This was the only ground the arbitrator

considered as warranting discipline. Having

determined that the company made a prima facie

case, the arbitrator then proceeded to consider

an appropriate sanction. It was only at this

stage that the arbitrator discussed Patterson's

work history and the various complaints

management had against him to decide whether a

sanction less than termination would adequately

address management's concerns.

8 Mat-Maid accused Patterson of a number of

instances of bizarre behavior in support of the

argument that a sanction less than termination

would have been insufficient. The Union

vigorously opposed this evidence and _ the

arbitrator expressly declined to consider the

bulk of it in reaching his decision. The

arbitrator did consider an incident’ when

Patterson overreacted to a verbal exchange and

charged a supervisor with assault. Also weighed

was Patterson's unwillingness to acknowledge

errant behavior in his driving to the Teamster

A31

complaints are no more than the Monday morning

quarterbacking that will always follow an

unsuccessful arbitration or court proceeding.

There is, however, one disturbing aspect of

this case that precludes summary judgment. It

appears that the Union knew that Patterson was

suffering from mental or emotional problems which

have been diagnosed as post traumatic stress

disorder. It also appears that Patterson's

mental state might explain his adversarial

relations with his supervisors. Consideration of

these factors might illuminate the need for a

remedy or sanction short of termination. The

Union considered this issue of sufficient

importance to argue it to the arbitrator, and the

arbitrator considered it sufficiently important

to mention in his decision:

I have also considered grievant's

testimony regarding his medical

condition, and have speculated that

grievant's performance and behavior of

the last several months, i.e., his

cyclical swings in performance, to be

possibly symptomatic of medical

complications arising out of his

diagnosed post-trauma syndrome. There

was no competent testimony or other

evidence to this effect, and the

arbitrator was hired to arbitrate, not

totally exceed his competence by

practicing medicine. I can ou.ly

suggest that if the grievant does

determine that events of the last year

Mall during work hours. Finally, the arbitrator

also considered other occasions, such as

unexcused absences, where Patterson seemed to

react in a small minded way when reprimanded.

A32

were a medically induced phenomenon

that the company give such fact a

consideration.

It appears that the arbitrator would have

considered medical evidence if it had been

offered, and might have determined that a

sanction short of dismissal was appropriate if

the medical evidence explained Patterson's

behavior and offered significant hope that with

specific treatment the behavior would not

reoccur. While determining appropriate witnesses

is certainly a matter of judgment, the Court

hesitates to find that failure to call a treating

physician was not irrational, or a reckless

disregard of Patterson's rights, without some

explanation in the record of the decision not to

call medical witnesses. In the absence of such

an explanation, a trial would appear warranted.

IT I8 THEREFORE ORDERED:

The motion for summary judgment at Docket No.

25 is GRANTED IN PART AND DENIED IN PART. The

Union is entitled to a determination that it did

not act in bad faith or engage in a civil

conspiracy to deprive Patterson of his employment

and that in general, the Union performed its duty

9 The courts treat a § 301 proceeding as a

collateral attack on the arbitration. The

parties have not addressed the question of

whether such an attack sounds at law or in

equity, and whether judge or jury should

determine whether the attack succeeds. Nor have

I considered whether the appropriate disposition

at this stage would be a remand to the original

arbitrator to allow presentation of medical

evidence. Mat-Maid's final judgment against

Patterson complicates this aspect of the case.

OotcrnNyre feo

A33

to adequately represent Patterson at arbitration.

The sole question reserved for trial is whether

the Union violated its duty to Patterson by

failing to produce medical evidence at the

hearing in support of a more lenient sanction.

The question includes the further question

whether such evidence, if produced, would have

changed the result at the arbitration.

DATED at Anchorage, Alaska this 7th day of

September, 1995.

Ls/

HONORABLE JAMES K. SINGLETON, JR.

United States District Judge

’ the issue of whether the Union violated

its duty of fair representation thus merges with

the question of whether Mat-Maid had just cause

to terminate Patterson. Both questions turn on

whether the Union acted irrationally in not

concluding that medical evidence was necessary to

save Patterson's position with Mat-Maid. The

Court cannot evaluate the Union's reasons for not

calling medical witnesses unless it knows those

reasons.

A34

MINUTES OF THE UNITED STATES DISTRICT COURT

DISTRICT OF ALASKA

William L. Patterson v. Int'l Brotherhood of

Teamsters Local 959

Case No. A94-147 CV (JKS) FILED

NOV 7, 1995

By: THE HONORABLE JAMES K. SINGLETON

Deputy Clerk: Patty Demeter, Case Management

PROCEEDINGS: ORDER FROM CHAMBERS

William Patterson sued his union for failing

to fairly represent Patterson in connection with

the arbitration of a grievance Patterson had

against his former employer for wrongful

termination. This Court granted in part and

denied in part the Union's motion for summary

judgment concluding that a single issue remained:

whether the union had recklessly disregarded

Patterson's rights at the arbitration by failing

to introduce expert mental health evidence. See

Docket No. 39. The Union has renewed its motion

for summary judgment, filing affidavits and other

evidence to show that its decisions were

strategic and not reckless or in bad faith.

Docket Nos. 40 & 44. Patterson responded,

conceding that the decision was strategic but

contending that the strategy was flawed. Docket

No. 43. That may be. However, mere negligence

is not enough. This Court must give the Union

substantial leeway in litigating at arbitration

and may only impose liability if reasonable

people could find that the union acted

irrationally or in bad faith. See, e.g., Moore

v. Bechtel Power Corp., 840 F.2d 634, 636-37 (9th

Cir. 1988). Having considered the evidence

proffered by both sides, it is clear that a jury

acting reasonably could not find that the Union

A35

acted recklessly or acted in bad faith in

managing the arbitration in the manner that it

did.

IT I8 THEREFORE ORDERED:

The renewed motion for Summary judgment at

Docket No. 40 is GRANTED. The Clerk shall enter

judgment dismissing this action. Defendant may

recover its costs of action.

Entered at the direction of the Honorable James

K. Singleton, United States District Court Judge,

by Ardel Burritt, secretary to Judge Singleton.

DATE: November 6, 1995 SECRETARY'S INITIALS: ab

A36

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

JUDGMENT IN A CIVIL CASE

WILLIAM L. PATTERSON, FILED

Plaintiff, NOV 07 1995

vs.

Case Number A94-147 CV (JKS)

INT'L BROTHERHOOD OF

TEAMSTERS LOCAL 959,

Defendant.

JURY VERDICT. This action came before the

Court for a trial by jury. The issues have been

tried and jury has rendered its verdict.

XX _=«—Ss-: DECISION BY COURT. This action came to

trial or hearing before the Court. The issues

have been tried or heard and a decision has been

rendered.

IT IS ORDERED AND ADJUDGED

THAT Judgment is hereby entered

dismissing this action. Defendant may recover

its costs of action.

APPROVED:

/s/ James K. Singleton

U.S. District Judge

11/7/95 _PHYLLIS RHODES __

Date Clerk

° icht

(By) Deputy Clerk

Py RO Oa

—-

~~ ve we

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.