# Petition for Writ of Certiorari — Patterson v. International Brotherhood of Teamsters, Local 959 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2125%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 523 U.S. 1106 ## Text 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 i 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? ii 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 iv 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, Vv (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 14 24 19 -18 25 25 18 19 19 18 vi 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 17 20 19 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). 2 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 3 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 (c) A motion to remand the case on 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 | 4 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 5 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). 6 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 7 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 8 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 10 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 11 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 12 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 13 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 14 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 3 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 in Agriculture, et al., 880 P.2d 1038 (Alaska he oOo —oTss wee VN VY eS Cee 15 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. 16 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). MMS mm FS Ww NM hd 17 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 18 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 « 3 % a a Piao 9 AA ah ls bt. dl) te hem tiee 19 638, 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 20 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 21 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 22 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 23 4 Swith him. (ER 29, Ex. 2 at 8). Sinnett was ‘very well aware of Seawell's attitude about See en, gen art ee ee is eee Re ERSDBSA as hbsa Ga tenis hada Asta ’ 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 24 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 ¥ SL Pld SS RS eh pe Dice an ae a Nite tian Ga aa Mat STAN at % bau ya "on 25 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 26 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 ys B i ni q i 27 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 4 “ 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 28 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 Al 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 A2 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 A3 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 5 A4 (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 _ i. ee a ee. ee eee tie de ee ee ” ee eee Cae ae A5 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. A6 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 . i i ) Diasach at Task 0 Aledl PAA MME E ME te NR BO dB a eee ey ee Pee g A7 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 Ag 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 ‘© ~~ — kk © « as FS TF ler lu IU OU i |) ee ee ee ad ene TY ORME NR HN SIN oa 8 DTA AM eee ee 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 ; 3 a ; ; 4 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 note as saying that Sinnett was’ endorsing © Sewell's position. The note does not have closing quotation marks around Sinnett's — "comments," but at the very least the first © sentence, “you've got to win," might reasonably © 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 William L. Patterson ("Patterson") brings this © 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 ~ Management Relations Act (29 U.S.C. § 185(a)). © 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. Docket No. 29, Exhibit 1. Since Patterson's © claims are primarily federal law and this Court clearly has concurrent jurisdiction over federal © Claims, this case is not appropriate for | 4 4 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). with the expiration of the applicable statute of © limitations six months thereafter. The parties © 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. ee - L mal ait | opty rsiieesanietia) * w& ww Sw weve wT ST ve =— ~ © pee tao’ ; WAS tetera es 5 2 iid elie eee FRIES ees Ror antiee ec 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); United States v. Cronic, 466 U.S. 648 (1984); See © , 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 | 5 since the arbitration would not oe if only © 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 | A charge that the Union was disloyal © suggests a "structural" defect in the proceeding © § $ 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, | will be rid of him, Patterson." Seawell © 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" | is Sinnett's sharing with Seawell the fact that © 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 w 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 a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2125%3A1. Public record. Not legal advice.