Petition for Writ of Certiorari — Hancock v. Walt Disney World Inc.

Cal Labor Code 1126: Any collective bargaining agreement

between an employer and a labor organization shall be enforceable

at law or in equity, and a breach of such collective bargaining

agreement by any party thereto shall be subject to the same

remedies, including injunctive relief, as are available on ether

contracts in the courts of this State.

Xii

PRIOR OPINIONS

The opinion sought to be reviewed is attached hereto in the

appendix and reported on Lexis. The District Court opinion(s)

are attached hereto in the Appendix.

JURISDICTION

Petitioner seeks this Court's review of the judgment entered on

June 30th , 2005 by the United States Circuit Court of Appeals for

the Ninth Circuit, by a Petition for Writ of Certiorari pursuant to

the jurisdiction conferred by 28 U.S.C. Section 1254(1). This

Petition is timely filed because it was mailed within ninety days of

June 30", 2005, the date a motion for rehearing was denied in the

court below. Jurisdictional basis for the Ninth Circuit 1s 28 U.S.C.

1291, and for the District Court is 28 U.S.C. 1331 and 1337.

FACTS

Petitioners Charito Frias Hancock, a Filipina, was a cashier

for WDW at the Disneyland Hotel ‘Cast Café’ for 11 years. In

early 2001 shortly after H.E.R_E. (Hotel Employees and Restaurant

Workers Union) and W.D.W. (Walt Disney World) renegotiated

the instant CBA (Collective Bargaining Agreement), Employee .

Charito Hancock was commanded by the tacit authorization of a

policy of the management at the Hotel ‘NOT’ to charge certain

culinary workers, certain managers and others, for food in her

pivotal position as cashier, and ‘TO’ charge others.

Another part of this policy allowed culinary workers to receive

their meal gratis, as long as it was out of sight of the other

employees and approved by the chef/ restaurant manager.

WDW’’s tacit authorization of a policy by Hotel ‘management’ was

in effect the ‘management’s’ (which includes the highest culinary

authority at the Disneyland Hotel, Mr. Carlos Acosta, food and

beverage chief who established the policy at a meeting of Cast

Café workers) imprimatur and authorization to benefit culinary

workers and select managers, and to receive their meal FREE in

contravention of the CBA by over 58 employees, and others

known to Petitioner’s.

On or about May 1" 2001 Charito Hancock was suspended

for an incident that involved a manager ‘approved’ meal, a

vegetarian sandwich, which was authorized by Ismael Ordaz the

WDW managing chef on her night shift. Ordaz gave Charito

Hancock his card as proof of his authorization for the meal.

Disneyland Secuntty, vy force of arms, wrongfully detained

Petitioners on her way home and confiscated her property. She

was held for several hours against her will . On May 17” 2001

Charito Hancock was wrongfully terminated by the employer Walt

Disney World.’

H.E.R.E. has admitted that this aforesaid policy was in effect and

stated so in the grievance they (Union) filed on May 18” 2001 and

withdrew 12 days later on May 31" 2001 ie. that it was not any

2

Petitioner’s independently and unilaterally pursued a

grievance process as contractually permitted to employees in

Article 26 of the Arbitration clause of the CBA.

On May 17" 2001 Petitioner’s chose to pursue their rights

pursuant to said instant CBA Article 26 grievance clause which

states: Article 26 provides

“Any employee who believes he or she has a specific

justifiable request or complaint in regard

... .interpretation of this Agreement shall discuss the

same with his immediate supervisor with, or without a

Union representative being ...”.

Petitioner’s first filed and served a written unilateral ‘discussion’

in writing to the manager Jamal Peoples. On May 24”

2001 Petitioner’s agreed to and were contractually permitted to

hold a meeting with the supervisor Jamal Peoples, without the

Union Rep. present and the issues were not settled within (5)

working days as permitted in the CBA. At the meeting People’s

verbally terminated Petitioners.

One day later, May 18" 2001, HERE filed a distinctly different

grievance supra. Petitioner’s filed their contractually permitted

Step | grievance one day prior to HERE because of a phone

conversation between H.E.R.E. Rep. Nelson Rivas and

Petitioner’s on May 17” 2001-the last day to ‘FEDEX’ an official

uncommon practice at the Disneyland Hotel for ‘Cast Café’ culinary

workers to take food home.

filing under the CBA .”

With no settlement forthcoming within five days, Petitioner's

unilaterally proceeded towards Step 2 Article 26 and reduced to

writing and set forth the alleged violation, date, those involved and

location. On June 5" 2001 Petitioner’s timely filed and presented

their unilateral grievance to WDW Labor Relations Jom Fox and

Vivian Williams.

Article 26 Step 2(a) “...any complaint not resolved

under Step | shall be reduced to writing, setting forth

the alleged violation, date, those involved and location

and presented to Human Resources/ Labor Relations.

Article 26 Step 1(b) In case of discharge either party

may unilaterally .. proceed directly to Step 2”

Petitioner’s formal written grievance entitled:

“STEP 2 ARTICLE 26 NOTICE OF AGGREIVED CAST

MEMBER CHARITO FRIAS”

The CBA Article 26 Step 2 requires a meeting regarding any

grievance adjustment:

Article 26 Step 2: The Employer representative

and the Union Business Representative shall meet

within seven (7) working days to attempt to settle the

same.

. H.E.RE. Rep. Rivas told Petitioner’s that the filing did ‘not’

have to be made ‘timely’ stating that this was a practice ‘commonly done’

in his past employment dispuies, and Rivas further stated ‘Disney has an

unwritten policy’ to never run the letter of the time constraints ( a policy

repudiated by their motion to dismiss). Petitioner's pointedly disagreed

with the Union in writing and, with an abundance of caution in case the

Union did not file a ‘timely’ grievance, Petitioner’s filed their grievance

first as was their ‘option’.

ens

On May 30" 2001 HERE Rep. Rivas stated in a letter to

Petitioner’s ( “...we are unable to process your grievance....”,

Rivas failed to specify which grievance. Charito Hancock

unilaterally had proceeded to STEP 2 , and a separate grievance

was yet pending before WDW labor relations people Jom Fox and

Vivian William in accord with the contractual obligations of all the

parties.

On June 8" 2001 WDW, Tom Fox (Labor Relations),

corresponded to Petitioner’s admitting WDW’s receipt of their

June 5" 2001 grievance, and by characterizing the official

grievance document entitled STEP 2 ARTICLE 26 NOTICE OF

AGGREIVED CAST MEMBER CHARITO FRIAS as a

‘letter’ , repudiated Article 26 of the CBA and Petitioner’s

permitted contractual benefit to proceed to Step 2 ‘unilaterally’.

Tom Fox stated:

“The Company is in receipt of your letter...” and “Based

on the Union's withdrawal of the grievance on May 30”

2001, the Company considers the matter to be closed.” *

Through numerous phone conversations and written

inquiries and demands requesting documents on the status of any

investigations, the specific performance and legality of ARTICLE

26 of the CBA, a statement regarding the legality of the CBA ,

> WDW’s repudiated Petitioner’s independent contractual right to pursue

a ‘unilateral’ grievance , as a third party beneficiary of a unilateral

contract. The current HERE administration quickly withdrew the

grievance they had filed and abandoned any representation at that point

and failed to arrange or attend any contractually required meeting

pursuant to the pending ‘employee filed’ grievance.

5

rebuttals to statements of other cast café and WDW employees,

HERE and WDW failed to produce. This vital information was

withheld from Petitioners.

On or about June 22" 2001, the day of the Union election

of Ada Torres the current HERE President, in a phone call with her

personally, Petitioners were assured from her that the new Union

would ‘investigate’ and ‘act’ upon their claim. After numerous

letters and phone calls from and to the Union post election,

Petitioner was promised and induced to believe that the new

regime was acting responsibly and rendering fair representation

regarding Petitioner’s grievance. In phone calls Ada Torres

specifically stated that they were “looking at it, and investigating it

further”. The Union again proceeded in a similar perfunctory,

discriminatory and bad faith manner .Petitioner’s were tricked and

induced to believe that the Union would either rescind their

withdrawal of the grievance filed by Nelson Rivas, advise them

about Petitioner’s unilateral grievance, or advise regarding the

contractual obligations and procedure. They failed to do either.

Nothing happened until September 17" 2001, Upon

Petitioner’s demands HERE replied in a letter stating that 1) the

Company had paid all sums owed (which was admitted by WDW

as false) , 2) All interviews and grievance procedures were fully

executed ( HERE never disclosed the status of the pending

unilateral grievance ) and 3) That HERE could “...no longer

continue with your grievance” . Furthermore this letter referred

to no other action taken nor dates of any action © iken by the

6

Union. To the Petitioners, this was the last communiqué from

HERE.

Petitioner’s, exercising reasonable due diligence,

interpreted this September 17" 2001 letter as HERE’s definitive

admission that they would make no statement as to the legality or

specific performance of ARTICLE 26 of the CBA and the exercise

of Petitioner’s independent and unilateral third party.

beneficiariship therein , nor advise of any ‘procedure’ for

unilateral filings by employees, if any, as Petitioner’s strenuously

requested verbally and in writing, nor would HERE take any

action on Petitioner’s pending grievance. HERE’s written

admission that Petitioner’s grievance process was in effect

‘continuing’ is HERE’s unequivocal endorsement that, according

to HERE, the grievance matter was not finalized until that

moment, September 17" 2001. Six months later Petitioner’s

brought suit in a timely manner.

ARGUMENT

1. Is a California Citizen’s State and Federal Constitutionally

protected status to be a unilatera! third party contractual

beneficiary, by an unambiguous and exclusive reservation of

rights, preempted by federal labor law ?

Petitioners contend that their state law contract claims are

not preempted under Section 301 of the LMRA. Petitioner’s

alleged a separate state law tort cause of action for breach of

contract (the Fifth and Tenth Cause in their amended complaint).

Petitioner’s pro se advocated that the unilateral contract did not

arise from the CBA or federal law, but from the pre-existing state

right to be a third party beneficiary.“ There is ample evidence of

the formation of an independent contract between Petitioners and

HERE and Petitioners and WDW based on the self defining term

‘unilateral’; it is a third party beneficiary, a unilateral contract, an

express reservation of Petitioner’s rights, and self- defined, not a

CBA. Petitioner’s unilateral right pre-existed as a separate and

independent state and federal right to ‘be’ a third party beneficiary.

The Ninth Circuit panel incorrectly applied the Lingle

‘interpretation’ standard in this case. The Lingle court explained

that a plaintiff could maintain an independent state claim even if it

involved the same contractual considerations "nder the CBA, see

* see California Constitution Article 1 Declaration of Rights SEC. 9

stating unequivocally: “A bill of attainder, ex post facto law, or law

impairing the obligation of contracts may not be passed.”

United States Constitution Section. 10.

Clause 1: No State shall ....... pass any ....... Law impairing the

Obligation of Contracts.......

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 , 108 S.Ct.

1877 at 1883. °

The language of section 301 does not sweep so broadly as

to preempt all claims based on a mere reading of a CBA.

Petitioner’s relied on Caterpillar v. Williams , which noted that:

“.....Individual employmen’ <ontracts are not

inevitably superseded by any subsequent

collective agreement covering an individual

employee, and claims based upon them may arise

under state law. Caterpillar’s basic error is its

failure to recognize that a plaintiff covered by a

collective-bargaining agreement is permitted to

assert legal rights independent of that agreement, }

including state-law contract rights, so long as the

contract relied upon is not a collective-bargaining

agreement.”

482 US. at 396, 107 S. Ct. at 2431, 96 L. Ed. 2d at 329-

30.

In the present case the collateral contract has been shown to

be unilateral and implied from conduct including an implied

covenant of good faith and fair dealing that the Union and the

Company would not ignore the right of Petitioners to receive the

benefits of the Agreement, and therefore, “it is unclear whether an

. Respondents contend that the Petitioner’s suit is preempted because

the ‘contract’ is one which arises out of the collective bargaining process

and any claim arising therefrom is preempted by the union’s duty of fair

representation and Petitioner’s must exhaust administrative remedies.

9

examination of the collective-bargaining agreement is truly required

by [state] law,” because “‘[i]n pleading a cause of action on an

agreement implied from conduct, only the facts from which the

promise is implied must be alleged.” Caterpillar, 482 US. at 395

n.9, 107 S. Ct. at 2431 n.9, 96 L. Ed. 2d at 329 n.9 (quoting

Youngman v. Nevada Irrigation Dist., 449 P.2d 462, 466 (Cal.

1969)).

In the case at bar, Respondents negotiated, formulated,

agreed and accepted the terms of instant CBA, and Petitioner’s

independent benefit manifested within the state of California.

Petitioner’s contractual benefit to proceed unilaterally is therefore

enforceable at law and in equity in the Courts of the State of

California under Cal. Labor Code 1126°. In Miller v. ATT

Network Sys., 850 F2d 543, 547 (9 Cir 1988) the Ninth Circuit

recognized that “ public policy supporting uniform interpretation of

contract terms does not prohibit states from establishing different

i Cal Labor Code 1126: Any collective bargaining agreement between an

employer and a labor organization shall be enforceable at law or in

equity, and a breach of such collective bargaining agreement by any party

thereto shall be subject to the same remedies, including injunctive relief,

as are available on other contracts in the courts of this State.

10

labor regulations” and that Section 301 of the LMRA “does not

preempt state laws that alter the ‘substance of what private parties

may agree to in a labor contract.” Quoting Allis-Chalmers, 471 U.S.

at 21]. Itisaclaisn's legal character, as independent of rights

under the CBA that decides whether a state cause of action may go

forward. Lingle, 486 U. S., at 413, n. 12; Livadas v. Bradshaw, 512

U.S. 107 (1994). In this case, the primary text for deciding whether

Petitioners are entitled specific performance of their third party

contract is not the collective bargaining agreement, but a dictionary.

(See Livadas v. Bradshaw (reference to a calendar)" In Cramer v.

Consolidated Freightways, Inc., 255 F.3d 683 (9th Cir. 2001) (en

banc), cert. denied, 122 S.Ct. 806 (2002), the Ninth Circuit

corrected and clarified that to the “ ... extent our prior cases held or

implied that preemption was proper because of the mere possibility

that the subject matter of the claim was a proper subject of the

collective bargaining process, held such statements to be an

” ‘There is no dispute about the CBA's meaning. "[WJhen the meaning of

contract terms is not the subject of dispute, the bare fact that a [CBA] will

be consulted in the course of state-law litigation plainly does not require

the claim to be extinguished." Livadas v. Bradshaw S Ct. at

2078.

11

incorrect articulation of § 301 preemption principles.”

Petitioner’s third party beneficiary delineates the obligations of

Respondents, in a contractual relationship with individual

employees as, a unilatera! option, fo proceed. The lega! effect of

individual employees ‘proceeding’ crafts a hypothetically

speculative conclusion as to the result, if any, * which eliminates the

defenses Respondents can proffer in attempting to intertwine

Petitioner’s unilateral contract with the CBA; see Cramer supra; "it

would be inconsistent with congressional intent under [ 301] to pre-

empt state rules that proscribe conduct, or establish nghts and

obligations, independent of a labor contract." Allis-Chalmers Corp.,

supra, at 212.

The inconsistency is three-fold. First, Petitioner’s

exclusive reservation of rights (unilaterally) is not waivable.

Second, "waiver" is not a question of the meaning of the CBA.

The standard for waiver of protected rights, under both federal

and state law, is whether the nghts have been clearly,

* A CBA’s provision does not trigger preemption when it is only

potentially relevant to the state law claims. See Humbie v. Boeing

Company, (No. 01-35107, Ninth Circuit Court of Appeals, September 18,

2002).

12

unequivocally and knowingly surrendered. Third, even if

waiver were simply a question of the meaning of the CBA, that

docs not mean that Respondent’s bare assertion of “waiver”

automatically preempts Petitioner’s tort claims. Petitioner’s tort

claims are barred only if there has been a waiver. In Cramer v.

Consolidated Freightways, Inc., 255 F.3d 683 (9th Cir. 2001)

(en banc), cert. denied, 122 S.Ct. 806 (2002) the Ninth Circuit

reaffirmed the rule that a mere possible reliance on a CBA

provision does not suffice to trigger preemption; at the very

least, the fact that a need to interpret the CBA is only

hypothetical seriously undercuts a defendant’s argument that the

state law claim “substantially depends” on the terms of the

CBA. ° Instant case thus presents the question whether the Ninth

Circuit panel’s ruling serves to atomize a state citizens PRE-

EXISTING ‘contract’ causes of action that manifest through an

express reservation of rights and by a unilateral contract in a

CBA, thus violating protections that Califormia has

? ‘An intent to subject third-party beneficiaries to arbitration is not

presumed; ii must appear from “the language of the contract, or the

circumstances under which it was executed.” See Schneider Moving &

Storage Co. v. Robbins, 466 U.S. 364, 371 (1984).

13

promulgated to protect its citizen’s labor and contractual

relationships.

In Sprague v. General Motors Corporation 133 F3rd 388 at

389 (6" Cir 1998), the Sixth Circuit Court of appeals upheld an

unambiguous express reservation of rights by an employer (General

Motors) to ‘unilaterally’ amend a health benefit plan that had been a

part of a CBA. In the instant case Petitioner’s possessed and

perfected with service, an express reservation of rights permitting a

unilateral contractual act by Petitioners as third party beneficiaries,

in written form, to clarify the playing field and legally challenge

that portion of their Contract/ CBA potentially involving

Petitioner’s unilateral state and federally protected contract nghts.

'° In the distinct and separate unilateral grievance perfected by

Petitioners, clear allegations were made that the ‘Agreement’ was

'0 «A CBA’s provision does not trigger preemption when it is only

potentially relevant to the state law claims, without any guarantee that

interpretation or direct reliance on the CBA terms will occur. This Ninth

Circuit in Gregory v. SCIE, LLC., (No. 01-57241, Ninth Circuit, January

27, 2003), held that Gregory's claim was based entirely on state law and

there was no dispute over the terms of the CBA or its interpretation. The

issuc was not how overtime rates were calculated but whether the resu/t of

the calculation complied with California law.

14

being operated by the parties with unclean hands and intentions and

was “coercively adopted”.

Respondents did not acknowledge Petitiner’s ‘unilateral’

claims existence until 27 MONTHS after the fact in their Reply

Brief before the Ninth Circuit Court of Appeals Panel. Petitioners

are NOT signatories to the contract, they are third party

beneficiaries.

The Ninth Circuit in Cramer supra explained : The

plaintiff's claim '’ is the touchstone for the preemption analysis,

and “the need to interpret the CBA must inhere in the nature of the

plaintiff's claim” to trigger preemption. Cramer asserts

“ ...Defensive reliance on the terms of the CBA, mere consultation

of the CBA’s terms, or a speculative reliance on the CBA will not

suffice to preempt a state law claim.”

As true in the case at bar, Livadas supra , held that the

plaintiff's claim was “entirely independent of any understanding

1! Since the promise made to Petitioners is unmistakably explicit

as, a unilateral contract, Respondents cannot rely on their duties under

the CBA which conflict with the promises they had made directly to

the Petitioners . mounting any defense to Appellant’s state law breach

of contract claims see Anderson v. Ford Motor Co., 803 F.2d 953 at p.

958, citing Belknap, Inc. v. Hale (1983) 463 U.S. 491.

15

embodied in the CBA between the union and the employer." /d. at

124-25, and even though the Court looked to the CBA to

determine the absence of a waiver ¢ of state law protections, it

concluded that preemption was not required. See id. at 125.

In Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985), the

Court ruled that the mere fact that an employer has entered into a

CBA governing its employees' terms and conditions of

employment, as here, does not immunize the employer from claims

seeking to enforce state law rights that are independent of any nght

established by contract. Allis-Chalmers Corp. 471 U.S. at 212.

Section 301 did not "give the substantive provisions of private

agreements the force of federal law, ousting any inconsistent state

regulation. Such a rule of law would delegate to unions and

unionized employers the power to exempt themselves from

whatever state labor standards they disfavored.” Jd. Nor must the

state claim be completely unrelated to the CBA; it must only be

"sufficiently independent of the CBA to withstand the pre-emptive

force of § 301." IBEW v. Hechler, 481 U.S. 851, 859 (1987).

16

RE CRT AiR E MN SEMI REN eRe ORT SL ARM Ona ee ED

POSNER EERE ARE I ERS. mRNA REI RNIN ea a pen em Ht

In a direct and square CONFLICT with the Panel, The Lingle

Court went on to observe that it was possible for a state law claim

to require some reference to a CBA without being preempted:

[A]s a general proposition, a state-law claim may depend

for its resolution upon both the interpretation of a CBA

and a separate state-law analysis that does not turn on

the agreement. In such a case, federal law would govern

the interpretation of the agreement, but the state law

analysis would not thereby be preempted.

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 at 413 n.12.

In Hawaiian Airlines v. Norris, 114 S. Ct. 2239 (1994), the

Supreme Court held that the state law claims were not preempted,

because the standard for preemption under the RLA is identical to

the standard for preemption under the LMRA as articulated in .

Lingle. In this regard, the Court specifically rejected the

employer's contention, based on Conrail v. RLEA, 491 U.S. 299

(1989), that a state law claim is preempted when the employer's

action is “arguably justified" by a provision in the CBA. /d. at

2250. '?

I2 ‘45 the Court explained in Hawaiian Airlines, the fact that a defense of

‘arguable justification’ under the CBA may serve to distinguish between

major and minor disputes under the RLA does not mean that the samc test

determines "the threshold question whether the dispute was subject to the

RLA in the first place." Jd at 2251.

17

ARTICLE 26 STEP 1 AND 2 ARE UNAMBIGUOUS

Plaintiff was entitled to present a written unilateral

grievance and defendants are bound by contract to “meet”, to

“attempt to settle”, to “reduce to writing” and “forward” an

“answer” relevant to their “attempt to settle” to grievant. On its

face, the contract ‘language’ supports Petitoner’s actions and

interpretation and any reasonable person could not find the

contract's terms to be ambiguous. Castaneda v. Dura-Vent Corp.,

648 F.2d 612, 619 (9th Cir. 1981). Article 26 STEP ONE of

the CBA states in part:

“If the issue is not settled within five (5)

working days after its presentation to the

supervisor, the employee or the union

representative may proceed to Step 2 of the

grievance Procedure within seven (7) working

days.

b. Incase of discharge either party may

unilaterally waive Step (1) and

proceed directly to Step 2”

(underline added)

Article 26 STEP TWO of the CBA states:

“Upon invocation of Step 2, any complaint not

resolved under Step 1 shall be reduced to writing

setting forth the alleged violation , date, those

involved and location and presented to Human

18

Resources /labor Relations . The employer

representative and the Union Business

representative shall meet in seven working days

to attempt to settle the same. The answer to a

grievance shall be reduced to writing and

forwarded to the greivant's representative within

seven (7) working days after the parties have met.

International Union v. Yard-Man, Inc., 716 F.2d 1476 (6th

Cir. 1983), provided a framework for interpreting the provisions of

a CBA. Many of the basic principles of contractual interpretation

are fully appropriate for discerning the parties’ intent in collective

bargaining agreements. The court should first look to the explicit

language of the CBA for clear manifestations of intent.

Step One textually juxtaposes the employee and the union

on a specifically articulated and identical dispositional plane te.

“the employee or the union representative”. This express intent

of the drafters clarifies that both parties have an equal opportunity

for proceeding to Step 2. The drafter’s intent manifests three times:

]) as shown above; 2 ) “In case of discharge either party ....” ;

3) “.....either party may unilaterally waive Step 1 and proceed

directly to Step 2.”

The intended meaning of even the most explicit language

can, of course, only be understood in light of the context which

19

gave rise to its sibiiabi The plain language of Step One purports

the term unilateral.'’ The preponderance of evidence proves STEP

ONE to be an unambiguous clause that entitled Plaintiff Charito

Hancock to proceed to STEP 2. The law of the shop cannot be

relied upon to modify clear and unambiguous provisions . Jootsie

Roll Indus., Inc. v. Local Union # 1 832 F.2d 81 at 84 (7th Cir.

1987,

The court should also interpret each provision in question

as part of the integrated whole. STEP 2 purports that Plaintiff's

grievance shall be reduced to writing and presented to Human

Resources / Labor Relations. STEP 2 commands WDW and

HERE shall adjourn a meeting regarding Plaintiff's written

grievance to “attempt to settle” it. Step 2 mandates that: “The

answer to a grievance shall be reduced to writing and

forwarded to the greivant's representative....”.

If possible, each provision should be construed

consistently with the entire document and the relative positions

and purposes of the parties. Step One entitles Plaintiff to proceed

'? Unilateral — One-sided, ex parte: having relation of only one of two or

more persons or things. Black's Law Dictionary (Sth Ed.)

20

to STEP 2 unilaterally and is fully consistent with STEP TWO in

that the STEP 2 ‘gateway’ requires only an invocation of STEP 2.

The relative position of Charito Hancock is clear, she is an

employee entitled under STEP ONE to proceed to “invoke”

STEP 2 and present a written grievance to WOW. HERE and

WDW have mutually contracted to “meet” within seven working

days and attempt to settle her written grievance which was drafted

by Plaintiff specific to her State Contract rights and demanding

redress of the same . '*

Where ambiguities exist, the court may look to other words

and phrases in the collective bargaining agreement for guidance.

Step Two reiterates the meeting requirement (twice), specifying

“The employer representative and the Union Business

representative shall meet” and that the written answer shall be

forwarded “....within seven (7) working days after the parties

have met.”

'4 Variations in language used in other durational provisions of the

agreement may, for example, provide inferences of intent useful in

clarifying a provision whose intended duration is ambiguous. For

example, as in all contracts, the collective bargaining agreement's terms

must be construed so as to render none nugatory and avoid illusory

promuscs.

21

The plain language of Step One and Two does not create

illusory promises or a nugatory rendering interpretation. The term

“srievant’s representative” is distinguished from “Union

business representative” . Charito Hancock (or her lawyer) is

entitled to be a recipient of the “forwarded” obligatory written

“answer.” see Meeks v. Illinois Cent. Gulf R.R., 738 F.2d 748,

75] (6th Cir. 1984) (setting aside board's award where board

provided notice to union, but union failed to give notice to

employee)

Finally, the court should review the interpretation

ultimately derived from its examination of the language, context

and other indicia of intent for consistency with federal labor

policy. Jn this case, federal labor policy would not be inconsistent

with the CBA . STEP ONE permits an employee to meet with the

WDW management without a Union Representative present.

Plaintiff did so May 24” 2001. If that doesn’t settle it, the

employee can proceed to invoke Step 2 with a written grievance

22

which, clearly shown by the record below, Petitioner’s perfected

service and filing in a timely manner.'°

Defendants obligatory written “answer” relevant to

Charito Hancock’s unilateral STEP TWO grievance shall purport

WDW and HERE’s attempt to settle. The “attempt to settle” shall

be “reduced to writing” and shall therefore be definitive of the

defendants individual positions or stipulations. '° HERE’s May

30" 2001 ‘withdrawal’ letter was absent explanation, or allegation

of investigation of Plaintiff's unilateral grievance, nor was there

reference fo the unilateral grievance therein. Absent explanation,

the Union's representation can be assumed to be an arbitrary

ministerial act. Peters v. Burlington N.R.R., 931 F.2d 534, 540-41

(9th Cir.1990).

'S STEP 2 is consistent with Federal Labor Law in that an employee is

not excluded from, but contractually entitled to, invoke her complaint in

writing (or a lawyer could write it for her) and present it to the Labor

Relations and Human Resource Department at WDW.

16 WDW is contractually obligated to define their position or stipulation

in writing. HERE has an identical obligation. Under 29 USC 501] (a)

HERE has a further obligation in their fiduciary duty of fair

representation . HERE is mandated to definitively establish WDW’s

obligatory written position or stipulation relevant thereto. 29 USC

501(a) and the CBA requires notification of WDW’s written position or

stipulation to the Union management, the grievant, and the bargaining

unit at large when appropriate.

23

Both WDW and HERE contracted to forward a written

answer of her State Law request for redress of grievance, ie. The

status of the arbitrability of the arbitration clause itself to Petitioner

which the Respondents failed todo. Instant CBA cannot be

found to have denigrated or contradicted basic federal labor law

.Yard-Man. at 1479-80

SECOND QUESTION (Alternatively)

2. Does an employees’ execution of a clearly independent and

delineated State Contract tort Claim, independent and expressly

reserved as such as an independent contractual procedure of an

arbitration process to a collective bargaining agreement, require

the UNION to explain the CBA’s procedure to employees even if

the explanation is abhorrent to the interests of the Union, and if the

Union fails to do so, has the Union breached it’s Duty of Fair

Representation ?

The Circuit Courts of Appeal Are Split {n Their Interpretation

Of This Important Precedent .

This Court has clearly mandated a standardized jurisprudence with

respect to Labor cases. The Court judicially determined the Unions

duty of fair representation in Vaca v Sipes 386 U.S. 171 (1967).

This Court in Del Costello v International Bhd of Teamsters, 462

U.S. 151 (1983) truncated the statute to standardize the time to file

a lawsuit of claims against the Union’s breach of their duty of

representation. In the instant case the Union failed to explain the

24

grievance procedures in it’s CBA to Petitioner unti! a lawsuit was

brought and taken to appeal with the Ninth Circuit and both the

Union (HERE) and Disney (WDW) were compelled to 27

months later. Respondent’s forthcoming ‘explanations’ were bald

and hollow and served as admissions of their wrongdoing while all

the time attempting to create a false illusion of ambiguity.

Petitioners can establish material facts that makes a prima

fascia showing of HERE’s ignorance of the grievance procedures

in their own CBA. Defendant HERE acknowledged Charito

Hancock’s unilateral grievance under oath. HERE’s tardy

recognition came for the first time on appeal 27 months after

WDW discharged Charito; HERE stated: “:... only the Union

was entitled to pursue a grievance to further steps of the

procedure” , (referring to Article 26 Step 2 in instant case). This

admission is an ipso facto stipulation that HERE ignored the plain

language of STEP | and 2 of the CBA and Plaintiff's grievance.

HERE asserted the unilateral action of filing a grievance,

was not, as cited by them on August 8" 2003 in their Appellate

Reply Brief , “....an action available to Plaintiff. ”

25

Unions should be responsible under their duty of fair

representation to explain, not misrepresent by silence, the terms of

the collective bargaining agreement even if it contains a provision

that expressly guarantees rights under state law and is abhorrent to

their own CBA interests as Petitioners contend. "’

Arbitrariness in the context of HERE’s negotiations®

is clear by the record and the text of the CBA ; “a union’s actions

are arbitrary only if, in light of the factual and legal landscape at

the time of the union’s actions, the union’s behavior is so far

outside a ‘wide range of reasonableness,’ Ford Motor Co. v.

"7 Where the union processes the grievance in a careless manner, or the

union inadequately handles the grievance because it is ignorant of

contract provisions having bearing on the case, a breach of the duty of

fair representation can be found. Ayan v. General Motors Corp., 929 F.2d

1105, 1109 (6" Cir. 1989). A union acts arbitrarily, and breaches its DFR,

when its decision not to pursue a grievance is made without a rational

basis; Wills v. Walt Disney Pictures & TV, Inc., No. 97-55420 (9"

Cir. 1998) (30 year employee not fairly represented because the ‘Union’

did not ‘know’ if he was still a member ) citing Vaca v. Sipes, 386 U.S.

171, 190, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967); Stevens v. Moore

Business Forms, Inc 18 F.3d 1443 at 1447 (9" Cir. 1994).

18 The duty of fair representation unquestionably attaches to contract

negotiations by a union. In the lawyer’s work product that formulated the

instant CBA by HERE , the tripartite standard announced in Vaca v.

Sipes, 386 U.S. 171, 190 (1967) applied to HERE in its negotiating

capacity.

26

Huffman, 345 U.S. 330, 338 (1953), as to be wholly irrational or

arbitrary.

The Ninth Circuit Panel, by affirming the District Court's

decision, imposes a liberal standard for conduct of Unions that

relieves the Unions within the Ninth Circuit jurisdiction of the duty

to explain and properly represent procedures available ( including

employee’s independent contractual nghts) to employees in a

Collective Bargaining Agreement universe. The result is

incongruous given the Sixth Circuit's decision in Farmer vy. ARA

Servs., Inc., 660 F.2d 1096, 1103-04 (6th Cir. 1981). As in

Farmer, H.E.R.E.’s CBA was ratified by the rank and file by vote.

Petitioner’s contend H.E.R_E. had a similar duty to explain the

agreement to the rank and file (including employee Charito

Hancock) which the record shows they failed to do even after

numerous written requests from Petitioner. The Eighth Circuit

in Anderson v. United Paperworkers, 641 F.2d 574, 577 & 578

n.2, (8th Cir. 1981) .noted that A union may not misrepresent to

union members the terms of their CBA. Concealing procedures

throughout a process equates as clear bad faith misrepresentation.

Employees who have a reasonable belief that they have an

27

expressly reserved rights are in need of protection against

retaliation by Union’s who’s CBA interests conflict with the

independent State tort remedies of employees . The purpose of

Vaca and the duty of fair representation is to give assurances to

employees who may be rightfully proceeding as contractually

permitted, albeit within a CBA framework, but unilaterally and

separate there from, will not have action taken against them

simply for engaging in such activity. '°

Equitable estoppel, then, may come into play "if the

defendant takes active steps to prevent the plaintiff from suing in

time" -- a situation that the Seventh Circuit terms "fraudulent

concealment." Cada v. Baxter Healthcare Corp., 920 F.2d 446,

450-51 (7th Cir. 1990)).

'? The Respondent’s actions in this case included misrepresentation by

silence of the unilateral and express reservation of rights by both

Respondents. The Ninth Circuit Court sanctioned such a departure from

the accepted course of judicial proceedings as to call for an exercise of

this Court's supervisory power. To avoid undercutting the purpose of

VACA , a Union's breach of duty of fair representation must be construed

to cover claims of employees who have a reasonable belief in contractual

rights, even expressly reserved unilateral state contract rights as part of a

CBA and a Union should be compelled to explain the CBA and should

not withhold vital information notwithstanding the underlying abhorrent

effect on the Union’s ‘legal’ position and any claims that may accrue to

an employee such as in the instant case.

28

In the September 17” 2001 letter from the President of the

Union she still maintained the fraudulent concealment of the

separate and PENDING unilateral grievance. Petitioners brought

their lawsuit six months after receiving the letter which is well

within the reasonable time standard under a request for equitable

estoppel and is probative evidence of the timing of the knowledge

of wrongdoing under the Galindo v Stoody 793 F2d 1502 (1986)

due diligence standard. “Retail Clerks Union Local 648, AFL-

CIO v. Hub Pharmacy, Inc., 707 F 2d 1030 (1983), accord

Jeanette Daviton v. Columbia / HCA/ Healthcare 241 F.3d

1131;2001(9" Cir 2000).

CONCLUSION

For these reasons this Supreme Court should grant this writ and

exercise it’s judicial powers over a matter that affects literally

thousands of workers and rises to the level of national importance

requiring the guidance of this Court. This Honorable Court should

grant certiorari and reverse the holding below.

2° To invoke an estoppel as a shield against a statute of limitations

defense, a plaintiff "must show that he brought his action within a

reasonable time after the facts giving rise to the estoppel have ceased to

be operational. Overall v. Estate of Klotz, 52 F.3d 398, 404 (2d Cir. 1995)

Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1324 (11th Cir. 1989)

29

Respectfully submitted;

Charito Frias Hancock, pro se

322 South Gilbert Street

Anaheim, Ca 92804

Vnonite b- Hameo

rin Hancock | Joe, JoawenZ__

322 South Gilbert

Anaheim, CA 928

714-776-4231

. FAX 714-991-1099

Certificate of Service and Filing

We, the undersigned, did file 40 copies of this Petition for Writ of

Certiorari by Federal Express on VO\YC“ Re SOTH

2005 to the Supreme Court of The United States Washington DC,

and we did US Postal Mail three copies each of the same to the

defendant’s counsel of record listed below on said date.

John Hancock and Charito Frias Hancock, pro se, Petitioners

Geli 4vcod Cant fre Hoan ar—

Address of Counsel: (W.D.W)

Rachelle Singer Daehnke & Cruz

3333 Michelson Drive Ste 800

1400

Irvine, CA 92612

949-794-9200

FAX 949-794-9220

30

(H.E.R.E)

J Thomas Bowen Davis

Cowell & Bowe LLP

595 Market Street Suite

San Francisco, CA 94105

415-597-7200

FAX 415-597-7201

TABLE OF CONTENTS

APPENDIX TO PETITION

A

Order,

United States Court of Appeals for the Ninth

Circuit, Denying Petition For Rehearing, by

SCHROEDER, Chief Judge,

PREGERSON and TROTT

entered June 30” 2005

Memorandum -Opinion,

United States Court of Appeals for the Ninth

Circuit, 2005 U.S. App. LEXIS 6761; 136

Fed., by SCHROEDER, Chief Judge,

PREGERSON and TROTT

entered April 20" 2005

=

Minute Order United States District Court

’ for the Central District of California, Los

Angeles, by Judge Percy Anderson

entered October 11" 2002

Minute Order United States District Court

for the Central District of California, Los

Angeles, by Judge Percy Anderson

entered October 17" 2002

B-!

B-2

C-]

thru

E-1

E-2

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

FILED June 30" 2005 Cathy A. Catterson, Clerk

U.S. COURT OF APPEALS

No. 03-55143

D.C. No. CV-02-05206-PA

Central District of California,

Los Angeles

ORDER

CHARITO FRIAS HANCOCK; JOHN W. HANCOCK,

Plaintiffs- Appellants, v.

WALT DISNEY WORLD INCORPORATED, dba

Disneyland Hotel; HOTEL EMPLOYEES AND

RESTAURANT EMPLOYEES UNION LOCAL 681,

Defendants-Appellees.

Before: SCHROEDER, Chief Judge, PREGERSON and

TROTT, Circuit Judges.

The panel as constituted above has voted to deny the

petition for rehearing. Chief Judge Schroeder and Judge

Pregerson have voted to deny the petition for rehearing en

banc and Judge Trott so recommends.

B-1

The full court has been advised of the suggestion for

rehearing en banc and no judge of the court has requested a

vote on it. Fed. R. App. P. 35(b).

The petition for rehearing and the petition for rehearing

en banc are

DENIED.

B-2

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

FILED June 20" 2005 Cathy A. Catterson, CL

U.S. COURT OF APPEALS

No. 03-55143

D.C. No. CV-02-05206-PA

MEMORANDUM *

CHARITO FRIAS HANCOCK; JOHN W. HANCOCK,

Plaintiffs-Appellants, v.

WALT DISNEY WORLD INCORPORATED, dba

Disneyland Hotel, HOTEL EMPLOYEES AND

RESTAURANT EMPLOYEES UNION LOCAL 681,

Defendants-Appellees.

Appeal from the United States District Court for the Central

District of California Percy Anderson, District Judge,

Presiding

Submitted April 8, 2005 **

Pasadena, California

Before: SCHROEDER, Chief Judge, PREGERSON and

TROTT, Circuit Judges.

* — This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit except as

C-1

provided by Ninth Circuit Rule 36-3.

** This panel unanimously finds this case suitable for

decision without oral argument. Fed. R. App. P. 34(a)(2).

Charito Frias Hancock and her husband, John Hancock

(“plaintiffs”) appeal pro se the district court’s dismissal of their

complaint against Walt Disney World Company and Hotel

Employees and Restaurant Employees Union Local 681, as as

the court’s decision not to award sanctions against the

defendants for violations of the local rules. We have jurisdiction

under 28 U.S.C. Section 1291, and we affirm.

We review de novo a dismissal on statue of limitations

grounds. Ventura Mobilchome Cmtys. Owners Ass’n v. City of

San Buenaventura, 371 F.3d 1046, 1050 (9 Cir. 2004). We

review for abuse of discretion a district court’s decision not to

retain supplemental jurisdiction over state claims. Brown v.

Lucky Stores. Inc.. 246 F.3d 1182, 1187 (9" Cir. 1999). We

review the district court’s choice of sanctions for violation of

local rules for abuse of discretion. Big Bear Lodging Ass’n v.

Snow Summit, Inc., 182 F.3" 1096,1106 (9" Cir. 1999).

C-2

Those claims arising under arising under Section 301 of the

Labor

Management Relations Act are governed by the six-month

statute of limitations of Section 10(b) of the National Labor

Relations Act. DelCostello v. Teamsters, 462 U.S. 151,155

(1983). That six-month period began to run on June 8, 2001,

when Mrs. Hancock received notice that the Union would not

pursue her grievance and that Disney considered the matter

closed. Zuniga v. United Can Co., 812 F.2d 443,448-49 (9" Cir.

1987) (concluding that the cause of action accrues when a union

member learns that the union will not further pursue the

member’s grievance). Mrs: Hancock’s further attempts to gain

assistance from the Union do not alter this conclusion. See id. at

447-49 (holding that the action accrued when the member was

informed that the union would no longer pursue the grievance

even though subsequently an internal union appeal process was

pursued). The filing of the claims under Section 301 of the Labor

Management Relations Act on March 15, 2002, was therefore

untimely and properly dismissed as time-barred.

C-3

Moreover, the district court properly found that the federal

claims preempted those state law claims that “require(d) the

interpretation of a collective bargaining agreement.” Lingle v.

Norge Div. of Magic Chef, Inc., 486 U.S. 399,413 (1988).

Having correctly dismissed those claims without

prejudice. See 28 U.S.C. Section 1367(c); Acri v. Varian Assoc.,

Inc., 114 F.3% 999, 1000 (9" Cir. 1997) (stating that district court

should dismiss state law claims when all federal claims have

been dismissed).

In addition, the district court did not err when it dismissed

with prejudice the cause of action alleging falsification of

records under the Employee

Retirement Income Security Act, 29 U.S.C. Section 1141, and

the Fair Labor Standards Act, 29 U.S.C. Section 211, because

there is no private right of action for these federal claims.

Finally, the court did not abuse its discretion by decling to

award sanctions for the defendants’ violations of the local rules

prohibiting ex parte communications. The court reprimanded the

C-4

defendants for their violation, and noted also that the violation -

had resulted in no harm to the plaintiffs. This decision was

proper.

Plaintiff's contention regarding judicial bias is meritless, and

the remaining contentions are also without merit.

AFFIRMED.

ORIGINAL

SEND

UNITED STATES DISTRICT COURT CENTRAL

DISTRICT OF CALIFORNIA

IVI ES - GEN L

Case No. CV 02-05206-PA(CWx) Date: September

18, 2002

Title: JOHN HANCOCK and CHARITO FRIAS

HANCOCK -v-HOTEL EMPLOYEES AND

RESTAURANT EMPLOYEES UNION LOCAL 681;

WALT DISNEY WORLD COMPANY dba DISNEYLAND

HOTEL

PRESIDING; HONORABLE PERCY ANDERSON, U.S.

DISTRICT JUDGE

Jim Holmes Sharon Seffens

Courtroom Deputy Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF:

John Hancock, Pro Se

Jason A. Savlov, specially appearing for Charito Frias

Hancock

ATTORNEYS PRESENT FOR DEFENDANTS:

J Thomas Bowen

Rachelle Singer

PROCEEDINGS: Defendant Hotel Employees and

Restaurant Employees Union, Local 681, AFL-C1IO’s Motion

to Dismiss and to Strike (filed 7/31/02)

D-1

Defendant Walt Disney World Co. dba Disneyland Hotel’s _

Motion to dismiss, Pursuant to 12(b)(6), and Motion to Strike

Portions of the Amended Complaint (filed 3-1-02)

Defendant Walt Disney World Co. dba Disneyland Hotel’s

Motion to Transfer Case to Southern Division (filed 9-9-02)

Court hears oral argument. The court orders the first, second,

third, fourth and tenth claim dismissed with prejudice. The court

dismisses the fifth, sixth, seventh, eighth and ninth causes of

action without prejudice. The court declines to exercise its

supplemental jurisdiction to the extent that they allege a state

cause of action in the fifth, sixth, seventh, eighth and ninth

claims of the complaint. Defendant Walt Disney’s motion to

transfer is moot.

IT IS SO ORDERED.

MINUTES FORM 90

CIVIL-GEN

Initials of Deputy Clerk: jh

Page |

ENTER ON ICMS

OCT 11 2002

(40)

SEND

UNITED STATES DISTRICT COURT CENTRAL

DISTRICT OF CALIFORNIA

AMENDED CIVIL MINUTES - GENERAL

Case No. CV 02-05206-PA(CWx) Date: September

18, 2002

Title: JOHN HANCOCK and CHARITO FRIAS

HANCOCK -v-HOTEL EMPLOYEES AND

RESTAURANT EMPLOYEES UNION LOCAL 681;

WALT DISNEY WORLD COMPANY dba DISNEYLAND

HOTEL

PRESIDING; HONORABLE PERCY ANDERSON, U.S.

DISTRICT JUDGE

Jim Holmes Sharon Seffens

Courtroom Deputy Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF:

John Hancock, Pro Se

Jason A. Savlov, specially appearing for Charito Frias

Hancock '

ATTORNEYS PRESENT FOR DEFENDANTS:

J Thomas Bowen

Rachelle Singer

PROCEEDINGS: Defendant Hotel Employees and

Restaurant Employees Union, Local 681, AFL-CIO’s Motion

to Dismiss and to Strike (filed 7/31/02)

E-1

Defendant Walt Disney World Co. dba Disneyland Hotel’s

Motion to dismiss, Pursuant to 12(b)(6), and Motion to Strike

Portions of the Amended Complaint (filed 8-1-02)

Defendant Walt Disney World Co. dba Disneyland Hotel’s

Motion to Transfer Case to Southern Division (filed 9-9-02)

Court hears oral argument. The court orders the first, second,

third, fourth fifth and tenth claim dismissed with prejudice. The

court dismisses the sixth, seventh, eighth and ninth causes of

action without prejudice. The court declines to exercise its

supplemental jurisdiction to the extent that they allege a state

cause of action in the sixth, seventh, eighth and ninth claims of

the complaint. Defendant’s motion to transfer this case to the

southern division is moot .

IT IS SO ORDERED.

MINUTES FORM 90

CIVIL-GEN

Initials of Deputy Clerk: jh

Page |

OCT 17 2002

OCT 17 2002

(41)