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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 1208

## Text

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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0549%3A1. Public record. Not legal advice.