# Petition for Writ of Certiorari — Hadley v. Hawaii Government Employees' Association (No. 08-371)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0708%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

Supreme Court
0S (‘) FILED -_

No.
08-371 SEP 18 2008

In The OFFICE OF THE CLERK

Supreme Court of the Anited States

e

LINDA K. HADLEY,

Petitioner,

V.

HAWAII GOVERNMENT EMPLOYEES
ASSOCIATION (HGEA),
AFSCME, LOCAL 152, AFL-CIO,

Respondent.

¢

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

R. STEVEN GESHELL

6600 Kalanianaole Hwy., Ste. 116
Honolulu, HI 96825

(808) 396.7701

Attorney for Petitioner

——-~
———

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the courts below deprived Petitioner of
her constitutional rights to access the federal courts,
due process, and equal protection guaranteed by the
First and Fourteenth Amendments to the United
States Constitution by dismissing her Vaca vs. Sipes,
386 U.S. 171 (1967), hybrid claim against Respon-
dent Union for breach of its duty of fair representa-
tion.

2. Whether the petition for certiorari should be
granted to resolve the conflict between the Third and
Ninth Circuit Court decisions on whether the federal
district court has subject-matter jurisdiction over the
public employee’s claim against the public union for
breach of its duty of fair representation.

li

TABLE OF CONTENTS
Page

QUESTIONS PRESENTED .........:.ccsccsscsscovesceeseees i
DOdehab OF AUTHORITIES ........ccccsscsscostasevsacsoneoss li
FFE TIMI IY oc sisisasiosevessevvesecssavenveseesvcdesvenens 1
STATEMENT OF JURISDICTION ...................... 1
CONSTITUTIONAL AND STATUTORY PROVI-

I i voce inincicuasaunodpoiesdvkeies one Auenncaaas See 2
DLA Smee © OF THE CASE............ccccccevscesesseeseee
REASON FOR ALLOWANCE OF THE WRIT...... 7
REID -9s.cssrassiniavanissannsnsieiidceectatqsians mem aeln 10
IIT 63. ccicssowicienaisvonsncsiens eokesweiuniubabaeemer manent 26
APPENDICES
United States Court of Appeals for the Ninth

Circuit Memorandum, filed June 2, 2008.....App. 1-3

Order Granting Motion to Dismiss in the
District Court for the District of Hawaii, filed

_ BS ie 5 Sa Nn seen rit Reims me App. 4-15
Judgment in a Civil Case, filed March 14,
RI tsiensoin ab sibinssundisisduccoioin/spuiniie iain canna App. 16-17

Order Denying Petition for Rehearing En
Banc, Tied duly 10, ZO0G «...06:0.s.ccusascsansessseseses App. 18

lil

TABLE OF AUTHORITIES
Page
CASES

American Federation of State, County and
Municipal Employees, AFL-CIO vs. Wood-
ward, 406 F.2d 137 (8th Cir. 1969)... 18

Ayres vs. International Brotherhood of Electri-
cal Workers, 666 F.2d 441 (9th Cir. 1982) ...... passim

Bolling vs. Sharpe, 347 U.S. 497, 74 S.Ct. 693

ee 20
Bowen vs. United States Postal Service, 459
OR 25 BR ae ae Oe.) ee 15

California Motor Transport Co. vs. Trucking
Unlimited, 404 U.S. 508, 92 S.Ct. 609
UE Mitr cacieicass ia cics is iecedh Grier uamaneciepioberneees 17, 23, 24

Cooper vs. Fitzharris, 586 F.2d 1325 (9th Cir.

EERO TESA pence roe Sr an eee Sy ae Sh PIT OO RE a ee Oe 23
Del Costello vs. International Brotherhood of

Teamsters, et al., 462 U.S. 151 (1983) ........... passim
Farber vs. City of Paterson, 440 F.3d 131 (3d

SORENSEN SEE riaie nee SeenON, /= BO TUN 9,10, 15, 19, 26
Frontiero vs. Richardson, 411 U.S. 677, 93

I I I ids cbr cs wns cs ceccadkvavSespeenvicedaanenkensveie 21
Hudson us. Palmer, 468 U.S. 517 (1984)................... 23
In re Herrick and Irish, 82 Haw. 329, 922 P.2d

ki” AREER Sp O88 Hae a NS Pee aan EE COI 20
In re Lum Yip Kee, 32 Haw. 385 (1932) .............. 19

In re Smythe, 592 N.W.2d 628 (Wis. 1999)................ 19

lv

TABLE OF AUTHORITIES — Continued

Page
Jimenez vs. Weinberger, 417 U.S. 628, 94 S.Ct.
I iisiasc inchs tinea as clenodaceacoceammecenics Oe
Johnson vs. Avery, 393 U.S. 483 (1969)...........0...2.... 23
Kahawaitolaa vs. Norton, 386 F.3d 1271 (9th
Oe PIR tsa cara cc cabins nm unatopcegedkin uci mmcomanaclaens 25
Lewis us. Casey, 518 U.S. 348, 116 S.Ct. 2174
RANE sicostaris:celsieeconicwetssvaapinlccichinaitais imenedgemiaabadbccbasesauedies 17
Long vs. District Court of Iowa, Lee County,
lowa, 385 U.S. 192, 87 S.Ct. 362 (1966)................ 17
Martin vs. New York State Department of
Correctional Services, et al., 224 F.Supp.2d
OS re ee Ee es ecient ae 16
Poe vs. HLRB, 105 Haw. 97 (2004) ...................... 24, 25

Professional Association of College Educators,
TSTA/NEA vs. El Paso County Community
College District, 730 F.2d 258 (5th Cir. 1984)........ 18

Radtke vs. American Federation of State,
County and Municipal Employees, 376

F.Supp.2d S93 CED Wi8. ZOOS). ......cecccecccccccsscecsseeses 16
‘Schlesinger vs. Ballard, 419 U.S. 498, 95 S.Ct.

po a, | SERRSRERSCRNR Gen RtcPsshepston OP eeire ie SBR ara aee POETS 21
Schneider vs. Rusk, 377 U.S. 163, 84 S.Ct.

Be ET vccaraniensenramuisireecteussoncsadaied octckeeaoeabbabeatne 20
State vs. Mallan, 86 Haw. 440, 950 P.2d 178

5 BERRRECRET RSA Pa eee, ae foe ee Ow RM eM eT Rae Nt Roe OR 19

Steele vs. Louisville & N. R. Co., 323 U.S. 192,
A in aeknio veh oubisisancdsacnoiiabiocdsbaomnnens 14

Vv
TABLE OF AUTHORITIES — Continued
Page
Troyer vs. Adams, 102 Haw. 399, 77 P.3d 83
SESS SETS ES DOES OO CE TTD 19
U. S. us. Gilley, 836 F.2d 1206 (9th Cir. 1988)........... 23
Vaca us. Sipes, 386 U.S. 171 (1967)................... passim
Weber us. Department of Veterans Affairs, 521
See SIE SO a ED nnn acc cnanereconvasnscecenesecons 23
Weinberger vs. Wiesenfeld, 420 U.S. 636, 95
a cascnniidcandnnhsodseveeioneutsiguuonceeoerts 21
West vs. Conrail, 481 U.S. 35 (1987)....... 36. 31. 12, 33
Wilbur vs. Locke, 423 F.3d 1101 (9th Cir. 2005) ........ 23
Williams vs. United Airlines, Inc., 500 F.3d
Ns 5 Eee ee 23, 24
Young vs. United States Postal Service, 907
RI OE UU ono... eacaeccnccevastvaceveesesesenene 16
STATUTES
Hawaii Revised Statutes
cic vcslamenesncsaneounens 2, 15, 19, 22
UNITED STATES CODE
ee. cecsuneeceecsnuccuccenes 13, 14
IL TION B.D occ evcvccconesecenaneccevecsseonveeetoun 1
3 I I iv cnnecsncascevweosenssacenecevsséusverwnien 7
Se 3, 7
ES 12

vl

TABLE OF AUTHORITIES — Continued

Page
BN I BID oo onic yasies code ssccocccdcescsovccdonrcoetes 11
Be i INE I) oo os oss ssescsscoscocesesvece 11, 13, 23
pe BS | ar So; 4; 1, ae
Dee os cocasendnsadecnvecneralecusoents 7
TE PE BET) viiscnsviccsrscecsssvccecosscnsccnvesese 4,16
TE ME FEE FL Beivcoiccvscessesccvaccsessévosovesesense 4,7,12
FI ois idcccdentavesssvsesscesceusesooresvanss 17
CONSTITUTIONAL PROVISIONS
United States Constitution
NN occ daeiss cisissscceversiccesesecporseeeves passim
BN ERNE ooo csnscevecesscnesscccsecesssssccceusetepasens 23
a ee Zz, 42, 18, 20s 2s
Fourteenth Amendment ..................cscsceccseseenecs 18, 21

Rules and Regulations
United States Supreme Court Rules
ss easacdaveonndavouvsecedsvstesswsaeeuvaes 26 ©

1

OPINIONS BELOW

The Ninth Circuit Court of Appeals issued the
initial opinion on June 2, 2008 in its unpublished
Memorandum Decision. (Appendix 1-3). The Ninth
Circuit affirmed the March 13, 2006 decision of the
United States District Court for the District of Ha-
waii dismissing the Petitioner’s Complaint for lack of
subject matter jurisdiction (Appendix 4-15) and the
March 14, 2006, Judgment in the United States
District for the District Court for the District of
Hawaii dismissing Petitioner’s Complaint. (Appen-
dix 16-17). On July 10, 2008, the Ninth Circuit Court
filed the Order Denying the Petition for Rehearing En
Banc. (Appendix 18).

Sd

STATEMENT OF JURISDICTION

This Court has jurisdiction under 28 U.S.C.
§ 1254(1). The Ninth Circuit Court of Appeals Judg-
ment Affirming the U.S. District Court for the Dis-
trict of Hawaii was filed June 2, 2008 (Appendix 1-
3). The Petition for Rehearing En Banc was filed
June 12, 2008. The Ninth Circuit Court of Appeals
Order Denying the Petition for Rehearing En Banc
was filed July 10, 2008 (Appendix 18).

¢

2

CONSTITUTIONAL AND
STATUTORY PROVISIONS

The First Amendment to the United States
Constitution provides:

“Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging freedom of
speech, or of the press; or the right of the
people peaceably to assemble, and to petition
the Government for redress of grievances.”

The Fifth Amendment to the United States
Constitution provides, in pertinent part:

“No person ... shall ... be deprived of life,
liberty or property, without due process or
law, nor shall private property be taken for
public use, without just compensation.”

Hawaii Revised Statutes (HRS) § 89-8(a) pro-
vides, in pertinent part:

“(a) The employee organization which has
been certified by the board as representing
the majority of employees in an appropriate
bargaining unit shall be the exclusive repre-
sentative of all employees in the unit. As ex-
clusive representative) it shall have the right
to act for and negotiate agreements covering
all employees in the unit and shall be re-
sponsible for representing the interests of all
such employees without discrimination and
without regard to employee organization
membership... ”

3

28 U.S.C. § 1331 provides, in pertinent part:

“Federal question. The district court shall
have original jurisdiction of all civil actions
arising under the Constitution, laws, or trea-
ties of the United States.”

29 U.S.C. § 185 provides, in pertinent part:

“Suits by and against labor organiza-
tions.

(a) Venue, amount, and citizenship.

Suits for violation of contracts between an
employer and a labor organization represent-
ing employees in an industry affecting com-
merce as defined in this chapter, or between
any such labor organization, may be brought
in any district court of the United States
having jurisdiction of the parties, without
respect to the amount in controversy or with-
out regard to the citizenship of the parties.

* > *
(c) Jurisdiction.

For the purposes of actions and proceedings
by or against labor organizations in the dis-
trict courts of the United States, district
courts shall be deemed to have jurisdiction of
a labor organization (1) in the district in
which such organization maintains its prin-
cipal office, or (2) in any district in which its
duly authorized officers or agents are en-
gaged in representing or acting for employee
members.”

4

29 U.S.C. § 187(b) provides:

“Whoever shall be injured in his business or
property by reason of any violation of subsec-
tion (a) of this section may sue therefor in
any district court of the United States sub-
ject to the limitations and provisions of § 185
of this title without respect to the amount of
controversy, or in any other ceurt having ju-
risdiction of the party, and shall recover the
damages by him sustained and the costs of
the suit.”

29 U.S.C. § 412 provides:

“Any person whose rights secured by the
provisions of this subchapter have been in-
fringed by any violation of this subchapter
may bring a civil action in a district court of
the United States for such relief (including
injunctions) as may be appropriate. Any such
action against a labor organization shall be
brought in the district court of the United
States for the district where the alleged vio-
lation occurred, or where the principal office
of such labor organization is located.”

SJ

STATEMENT OF THE CASE

Petitioner is a registered professional nurse in
the State of Hawaii and was a full-time permanent,
registered professional nurse at the Hawaii Youth
Correctional Facility (HYCF) since October of 2001.
Respondent is her union, representing the Hawaii

5

Government Employees under a collective bargaining
agreement (CBA). This is a hybrid action against the
union per Vaca us. Sipes, 386 U.S. 171 (1967), and
was commenced within six months of the award
denying her just compensation in violation of the
CBA. The Respondent (hereafter, “Union”), egre-
giously violated its duty of fair representation by
deliberately refusing to enforce the CBA by failing to
call Petitioner’s expert witnesses to prove that she
was entitled to extra pay at the HYCF. She started
this lxwsuit in federal court within six months of the
awe:i denying her such compensation, per Del
Costello vs. International Brotherhood of Teamsters, et
al., 462 U.S. 151 (1983). When Petitioner was hired
by the State, she was informed that the Youth Facil-
ity was a 24-hour, seven-day-a-week operation, even
though the medical unit was not open 24 hours a day.
To accomplish that, she was given a pager and a cell
phone to enable her to be on call for service to the
facility, as she was the only full-time medical person-
nel at the HYCF and was solely responsible for all the
medical services and decisions there on a 24-hour,
seven-days-a-week basis for the youth adjudicated to
that facility. The Union told her that she was entitled
to stand-by pay for being on call 24 hours per day,
seven days a week. Eventually the Union took the
case to arbitration about two years after she first
contacted her union, seeking extra pay. Petitioner
asked the union attorney to call Dr. Bidwell as a
witness to prove the need for her to be on call 24
hours a day. Dr. Bidwell would have confirmed that
she was entitled to back- and front-pay for stand-by

6

pay, as she was the principal medical personnel at
HYCF. Dr. Bidwell was a physician hired on contract
with the State and was not available 24 hours a day,
seven days a week. Petitioner also asked the union
attorney to call two other witnesses to support her
position, but the union attorney refused to do so.
Moreover, at the arbitration hearing, the employer’s
witness committed perjury about Dr. Bidwell being on
call rather than Petitioner, so if Dr. Bidwell had
testified, he would have denied such fact and sup-
ported Petitioner. The Complaint alleged the Union
breached its duty of fair representation, as follows:

(1) failing to properly represent Petitioner
and calling her necessary witnesses at the
arbitration;

(2) advising her that she should not go to
arbitration and that she would get nothing
there;

(3) advising her that she should use the
chain of command to get better results than
arbitration;

(4) falsely advising her she had been of-
fered $24,000 to settle and another $24,000
in compensation;

(5) filing the arbitration in an untimely
manner;

(6) failing to call Dr. Bidwell and other wit-
nesses at the arbitration; and

(7) failing to impeach the State’s chief wit-
ness by using the testimony of Dr. Bidwell

7

and his documentation to prove that she
was, in fact, on call, and Dr. Bidwell was not.

Petitioner sought loss of income damages of
$40,000, general damages for emotional distress, and
punitive damages, plus medical expenses and attor-
ney’s fees.

The basis of federal jurisdiction in the district
court was based on Vaca us. Sipes, 386 U.S. 171
(1967); 28 U.S.C. § 1331; 29 U.S.C. §§ 185, 187, &
412. The Court of Appeals had jurisdiction of her
appeal under 28 U.S.C. § 1291.

¢

REASONS FOR ALLOWANCE OF THE WRIT

For the first time in 1967, this Court decided that
employees have a cause of action against their union
for breach of duty of fair representation, which claim
may be brought in either federal or state court. This
appears to be the first case that brings before this
Court the issue of whether Vaca vs. Sipes also ac-
corded that same remedy in federal and state courts
to public employees whose union breaches its duty of
fair representation by deliberately refusing to enforce
the CBA by egregious conduct which harms the
employee. In the 41 years that followed Vaca, public
unions have escaped responsibility for their actions,
making, in effect, public employees second-class
citizens because they could not access the federal and
state courts using Vaca us. Sipes as a theory of recov-
ery and jurisdictional basis. Now is the time for this

8

Court to accept certiorari and correct this gross
injustice to public employees. There is absolutely no
reason why public employees and public unions
should be treated differently than the private-sector
employees and union. This country is founded upon
the principles of equal justice for all, but the Ninth
Circuit and trial court decisions have deprived Peti-
tioner of her constitutional rights to access courts, to
associate in the union to due process and equal
protection of the laws. Thus, it is time to correct this
total injustice and grant public employees the same
rights that private-sector employees have to pursue
their judicial remedies in federal court against their
union for breach of duty of fair representation under
Vaca vs. Sipes.

In the 41 years that have elapsed since Vaca,
undoubtedly the volume of the number of public
employees has increased dramatically. Therefore, it is
time to recognize that public employees have the
same right to access federal and state courts to pur-
sue their hybrid action against their union for breach
of duty of fair representation. Vaca should not be
restricted to simply private-sector employees. There
is no valid reason for such distinction to make public
employees inferior to those in the private sector. This
amounts to an invidious discrimination based upon
the nature of the employer. Governmental employees
are, without a doubt, entitled to the same constitu-
tional rights and same remedies that private-sector
employees are in the eyes of the law. Now is the time

9

to correct this gross injustice by granting certiorari to
correct such injustice.

In addition to the important question of federal
law that has not been but should be settled by this
Court, Petitioner asserts that there is a conflict in the
decisions of the Third and the Ninth Circuit Courts of
Appeal on the issue of whether the district court has
jurisdiction over the breach of duty of fair representa-
tion claim by a public union employee against the
union. The Third Circuit recently held, in Farber us.
City of Paterson, 440 F.3d 1381, 143-145, (3d Cir.
2006), whereas Ayres us. International Brotherhood of
Electrical Workers, 666 F.2d 441 (9th Cir. 1982), held
to the contrary that political entities such as the
State and their political subdivisions are not employ-
ers and, therefore, the public employees’ tort claim for
breach of duty of fair representation may not be
brought in federal court as the district court lacks
subject-matter jurisdiction. Accordingly, since there is
a serious conflict on this important federal question
which should be settled by this Court, granting
certiorari is the appropriate remedy.

¢

10

ARGUMENTS

A. The district court had subject matter ju-
risdiction of the hybrid claim against the
Union and the State because Ayres needs to
be overruled and Vaca and Farber applied.

With all due respect to the district court in apply-
ing and the Ninth Circuit Court deciding Ayres vs.
International Brotherhood of Electrical Workers, 666
F.2d 441 (9th Cir. 1982), it is respectfully submitted
that such application of the hybrid action recognized
in Vaca us. Sipes, supra, and Del Costello, supra, is
broader than applied by those courts in this case.
Clearly, Vaca vs. Stipes set new precedent for authoriz-
ing suits in federal and state court by employees
whose union breached its duty of fair representation
(DFR) in representing the employee under a collective
bargaining agreement (CBA). Although those cases
involved non-public employees against non-public
employers, the legal principles announced and ap-
plied in those two cases are clearly broader than
simply reading the statutory definitions to determine
whether employees may pursue their legal remedies
under Vaca vs. Sipes and Del Costello in federal court.
This conclusion is supported by the 1987 case of West
us. Conrail, 481 U.S. 35 (1987). The West case was
decided April 6, 1987. Ayres was decided January 28,
1982. In West, the railroad employee sued his em-
ployer for breach of CBA and against his union for
breach of its duty of fair representation. The district
court granted summary judgment for the defendants,

11

and the employee appealed. The Third Circuit af-
firmed, but this Court, applying Del Costello, held:

“Although we have not expressly so held be-
fore we now hold that when the underlying
cause of action is based on federal law and
the absence of an express federal statute of
limitations makes it necessary to borrow a
limitations period from another statute, the
action is not barred if it has been ‘com-
menced’ in compliance with rule 3 within the
borrowed period.” 481 U.S. at 39, 107 S.Ct.
at 1541.

It is important to note that, under the definitions
section in the Labor Management Relations Act, 29
U.S.C. § 152(3), employee excludes, in pertinent part,
“any individual employed by an employer subject to
the Railway Labor Act as amended from time to time
or by any other person who is not an employer as
herein defined.”

Here, and in Ayres, contrary to the reasoning of
West, the employee was determined to fall outside the
definition of an employee, and the state was not an
employer under the definitions contained in 29 U.S.C.
§ 152(2). Therefore, the trial and appellate courts
erroneously determined that the trial court lacked
jurisdiction to decide this hybrid action against the
public employees’ Union. Certainly, if there were a
jurisdictional issue that prevented the district court,
the Third Circuit, and the U.S. Supreme Court from
deciding West vs. Conrazl, it would have been raised
and considered at each level. This Court saw no

12

jurisdictional impediment to deciding the case in
West. Therefore, Petitioner argues that, under the
facts of this case where Petitioner is a public em-
ployee suing her public Employer and her Union for
breach of duty of fair representation, she is entitled to
pursue such remedies in U.S. District Court for the
District of Hawaii. The breach of duty of fair repre-
sentation is based on a fiduciary relationship between
the union and the employee and is not solely
grounded on a statutory definition. Vaca and Del
Costello. As argued later, to apply Vaca and Del
Costello to exclude public employees from their legal
and equitable remedies in federal court, is too restric-
tive and violates their constitutional rights guaran-
teed under the First and the Fifth Amendments to
the United States Constitution. Such conclusion is
further reinforced by 29 U.S.C. § 412 which provides:

“Any person whose rights secured by the
provisions of this subchapter have been in-
fringed by any violation of this subchapter
may bring a civil action in a district court of
the United States for such relief (including
injunctions) as may be appropriate. Any such
action against a labor organization shall be
brought in the district court of the United
States for the district where the alleged vio-
lation occurred, or where the principal office
of such labor organization is located.”

29 U.S.C. § 142(3) provides: “The terms ‘com-
merce, ‘labor disputes,’ ‘employer,’ ‘employee,’ ‘labor

13

organization,’ ‘representative, ‘person,’ and ‘supervi-
sor’ shall have the same meaning as when used in
subchapter II of this chapter.”

The definitions found in subchapter IJ of the

National Labor Relations Act. 29 U.S.C. § 152(3),
defines employee in pertinent part, as follows:

“(3) The term “employee” shall include any
employee, and shall not be limited to the
employees of a particular employer, unless
this subchapter explicitly states otherwise,
and shall include any individual whose work
has ceased as a consequence of, or in connec-
tion wit’., any current labor dispute or be-
cause of any unfair labor practice, and who
has not obtained any other regular and sub-
stantially equivalent employment, but shall
not include any individual employed as an
agricultural laborer, or in the domestic ser-
vice of any family or person at his home, or
any individual employed by his parent or
spouse, or any individual having the status
of an independent contractor, or any individ-
ual employed as a supervisor, or any individ-
ual employed by an employer subject to the
Railway Labor Act [45 U.S.C.A. § 151 et
seq.], as amended from time to time, or by
any other person who is not an employer as
herein defined.”

As is readily seen, this employee definition pur-
ports to exclude individuals employed by employers
subject to the Railway Labor Act, 15 U.S.C. § 151, but
this Court, in West vs. Conrail, had no jurisdictional

14

difficulty applying Vaca vs. Sipes and Del Costello to
the hybrid action by the railroad employee against
his employer and union. The same reasoning applies
here to cause this Court to overrule Ayres vs. IBEW,
supra. The district court clearly had subject matter
jurisdiction over this hybrid action against the Union
for breach of its fiduciary duty of fair representation
and against the Employer under the CBA.

In the predecessor to Vaca, Steele vs. Louisville &
N. R. Co., 323 U.S. 192, 65 S.Ct. 226 (1944), decided
that a labor union owes a judicially created duty to
represent the members under the Railway Labor Act,
and said, in pertinent part, at 323 U.S. 202, 65 S.Ct.
232:

“We think that the Railway Labor Act im-
poses upon the statutory representative of a
craft at least as exacting a duty to protect
equally the interests of the members of the
craft as the Constitution imposes upon a leg-
islature to give equal protection to the inter-
ests of those for whom it legislates * * *
We hold that the language of the Act
to which we have referred read in the light
of the purposes of the Act expresses the
aim of Congress to impose on the bargaining
representative of a craft * 203 or class of em-
ployees the duty to exercise fairly the power
conferred upon it in behalf of all those for
whom it acts, without hostile discrimination
against them.”

15

In Farber vs. City of Paterson, 440 F.3d 131 (3d
Cir. 2006), the Court held, inter alia, the city em-
ployee may properly sue the union in federal court for
a Vaca breach of duty of fair representation claim
even though the state statute required unfair Jabor
practices be brought before the state labor relations
commission. This conflicts with Ayres, supra, creating
the conflict between the Ninth and Third Circuits.
Hawaii’s statute, HRS § 89-8(a), as in Farber, grants
to the public union the exclusive right to represent
the interests of public employees. Therefore, as in
Farber, the union has a corresponding duty of fair
representation per Vaca, supra. Farber further held,
in pertinent part, at p. 143, that even though the New
Jersey statute granted exclusive power to the Public
Employment Relations Commission of New Jersey to
hear unfair practice claims that would not preempt
Farber’s breach of duty of fair representation claim at
law in federal court. The Farber reasoning was that,
as in Vaca, even though the unfair labor practice
claims were ordinarily heard by the NLRB, Vaca
decided that such provision would not prevent the
employee from suing her union for breach of duty of
fair representation implied in § 9(a) of the National
Labor Relations Act. The same reasoning and deci-
sion applies here.

Postal workers were entitled to sue the union
and the employer, United States Postal Service, in
federal court under Vaca claims without any jurisdic-
tional problem in the cases of Bowen vs. United States
Postal Service, 459 U.S. 212, 103 S.Ct. 588 (1983);

16

and Young vs. United States Postal Service, 907 F.2d
305 (2d Cir. 1990).

Two district courts have found no jurisdictional
impediment to a union employee working for a politi-
cal subdivision of a state to pursue their hybrid
actions in federal court. Radtke vs. American Federa-
tion of State, County and Municipal Employees, 376
F.Supp.2d 893 (E.D.Wis. 2005); and Martin vs. New
York State Department of Correctional Services, et al.,
224 F. Supp.2d 434 (N.D.N.Y. 2002).

The Ninth Circuit and the district court commit-
ted reversible error in refusing to apply 29 U.S.C.
§ 187(b) which makes it clear that:

“Whoever shall be injured in his business or
property by reason of any violation of subsec-
tion (a) of this section may sue therefor in
any district court of the United States sub-
ject to the limitations and provisions of § 185
of this title without respect to the amount of
controversy, or in any other court having ju-
risdiction of the party, and shall recover the
damages by him sustained and the costs of
the suit.”

That statute was another basis for district court
jurisdiction.

17

B. Dismissal of the hybrid action for lack of
subject matter jurisdiction deprives the
Plaintiff of her constitutional rights to ac-
cess the federal courts, due process, and
equal protection.

(1) Plaintiff’s First Amendment right to
access courts was denied.

Clearly, the First Amendment to the United
States Constitution prohibits Congress from passing
any law abridging the right of the people “to petition
the Government for redress of grievances.” There is
no dispute that the right to access courts and to
petition the Government for redress of grievances is a
fundamental right, protected by the First Amend-
ment to the United States Constitution. California
Motor Transport Co. vs. Trucking Unlimited, 404
U.S. 508, 510, 92 S.Ct. 609, 612 (1972). The right to
access courts is a fundamental constitutional right.
Lewis vs. Casey, 518 U.S. 343, 346, 116 S.Ct. 2174,
2177 (1966). The right to sue implicates the equal
protection provisions of our constitutions. Long vs.
District Court of Iowa, Lee County, Iowa, 385 U.S.
192, 194, 87 S.Ct. 362, 364 (1966).

It is also clear that 42 U.S.C. § 1981 protects the
right of all persons in the United States to enforce
contracts and to sue and further protects the rights
of all persons in the United States “against impair-
ment by nongovermental discrimination and impair-
ment under color of state law.” It needs no citation of
legal authority to state the well-recognized proposi-
tion of law that the First Amendment rights are

18

incorporated in the Fourteenth Amendment Due
Process Clause of the U. S. Constitution.

American Federation of State, County and Mu-
nicipal Employees, AFL-CIO vs. Woodward, 406 F.2d
137, 139 (8th Cir. 1969), recognized that “Union
membership is protected by the right of association
under the First and the Fourteenth Amendments.
Thomas vs. Collins, 323 U.S. 516, 65 S.Ct. 315, 89
L.Ed. 430 (1945); McLaughlin vs. Tilendis, 398 F.2d
287 (7th Cir. 1968).” The First Amendment right to
join and participate in a union flows not only to
unions but to the members and organizers of that
union, including the right of public employees to join
unions and the right of their unions to engage in
advocacy and petitioning the government on their
behalf. Professional Association of College Educators,
TSTA/NEA vs. El Paso County Community College
District, 730 F.2d 258, 262 (5th Cir. 1984).

Here, by application of Ayres, supra, the district
court and the circuit court concluded that the federal
court system is not available to public employees in
hybrid actions for breach of duty of fair representa-
tion and breach of the CBA. Clearly, all employees
should have the right to access courts and not just
restricted to employees of non-public employers.
There is no sound reason for public policy or applica-
tion of the First Amendment that should preclude
public employees from suing their union and em-
ployer in federal court, whereas private employees
in the private sector have rights to do so in federal
court under Vaca since 1967. This is an invidious

19

discrimination and deprivation of the right to access
courts for employees of the state and political subdi-
visions and against their own public union. Petitioner
had no control over her union’s conduct (HRS § 89-
8(a)). Her remedy is best using Vaca in federal court
because the State court is a co-employee of the State.
Under those circumstances, the employee’s best
forum is federal court under Vaca, supra; and
Farber, supra.

(2) Plaintiff’s Fifth Amendment right to
due process and equal protection were
denied.

Certainly, no reasonable person would quarrel
with the concept that not only our legislature but our
trial and appellate courts are required to accord
litigants due process of law and equal protection of
the laws. In re Lum Yip Kee, 32 Haw. 385 (1932); In re
Smythe, 592 N.W.2d 628, 632 (Wis. 1999). The Hawaii
Supreme Court has recognized that due process
contains both procedural and substantive compo-
nents. State vs. Mallan, 86 Haw. 440, 950 P.2d 178
(1998). Where a fundamental right is implicated,
judicial action is subject to the strict-scrutiny stan-
dard but where a fundamental right is not implicated,
the governmental action is subject only to the ra-
tional-basis test. Mallan, 86 Haw. at 451, 950 P.2d
at 189. We also know from Troyer vs. Adams, 102
Haw. 399, 433-434, 77 P.3d 83, 117-118 (2003), that

“due process is not a fixed concept requiring a
specific procedural course in every situation

20

(citation omitted). Rather, due process is
flexible and calls for such procedural protec-
tions as the particular situation demand
(citation omitted). The basic elements of pro-
cedural due process require notice and an
opportunity to be heard at a meaningful time
and in a meaningful manner.”

A substantive challenge to state action is either that
the state action is facially or as applied, invalid under
the Due Process Clauses of the Constitution. Jn re
Herrick and Irish, 82 Haw. 329, 345, 922 P2d 942,
958 (1996).

By following the Ayres construction of 29 U.S.C.
§ 185, the Court prevented public employees from
using Vaca as a remedy available to the private sector
employees. This clearly violates due process and
equal protection based upon the following authorities
and, while not directly in point on the issue of
whether preventing public-sector employees from
suing their union and public employer in federal
court, they stand for the proposition that due process
and equal protection were violated under the Fifth
Amendment to the United States Constitution:

(a) Bolling vs. Sharpe, 347 U.S. 497, 74
S.Ct. 693 (1954) [Racial segregation in public
education violated Fifth Amendment due
process because equal protection and due
process are fundamental rights of fairness
which are not mutually exclusive. |

(b) Schneider vs. Rusk, 377 U.S. 168, 84
S.Ct. 1187 (1964) [Denationalization statute

21

concerning naturalized citizens residing
continuously for three years in their birth
country violated due process because it dis-
criminates unconstitutionally against natu-
ralized citizens. ]

(c) Jimenez vs. Weinberger, 417 U.S. 628,
94 S.Ct. 2496 (1974) [Federal welfare law
violated equal protection and due process
guaranteed by the Fifth Amendment to the
United States Constitution].

(d) Frontiero vs. Richardson, 411 U.S. 677,
93 S.Ct. 1764 (1973) [Federal statute con-
cerning the right of female members of the
uniformed services to claim her spouse as a
dependent violated the due process clause of
the Fifth Amendment under the strict-
judicial-scrutiny standard}.

(e) Schlesinger vs. Ballard, 419 U.S. 498,
95 S.Ct. 572 (1975) [Although Fifth Amend-
ment does not contain an equal protection
clause as does the Fourteenth Amendment,
the Fifth Amendment Due Process Clause
prohibits the federal government from dis-
crimination which unjustifiably violates due
process].

(f) Weinberger vs. Wiesenfeld, 420 U.S. 636,
95 S.Ct. 1225 (1975) [Federal social security
statute violated equal protection under the
Due Process Clause of the Fifth Amendment,
prohibiting gender-based discrimination].

Under the plain-error standard of review, Peti-
tioner has been clearly prejudiced by being effectively

22

excluded from federal court jurisdiction on her hybrid
claim against her Union in violation of the foregoing
constitutional amendments.

It is, therefore, argued that the district and
circuit court decisions applying Ayres result in an
invidious discrimination against public employees.
This case appears to be the first case raising the
constitutional issues that such application of Vaca
and Del Costello hybrid claims by public employees
against their union and public employer violates due
process and equal protection by denying them access
to federal courts. Excluding public employees from
federal court jurisdiction and construing the federal
statutes as doing so makes public employees second-
class citizens. The Union has the exclusive right to
represent the employee’s interest against the em-
ployer (HRS § 89-8(a)). The public employee should
correspondingly have the Vaca DFR remedy in federal
and State court. If she cannot pursue her hybrid
action in federal court, this puts the employee in state
court where the judges are employed by their common
employer. Surely, that prejudices Petitioner’s ability
to redress the wrong asserted here. If public employ-
ees have no hybrid claim in federal court, yet union
employees in private enterprise have such a claim,
this places public employees in a clearly inferior and
prejudicial position under employment law. Such
result denies public employees due process and equal
protection by violating their First Amendment right
to access courts. Therefore, Plaintiff requests that
this Court overrule Ayers, as it is unconstitutional on

23

its face and as applied to public union employees
seeking relief against their union and their employer.

C. The Ninth Circuit Decision is Flawed on
Constitutional Issues.

The Ninth Circuit relied on Weber vs. Department
of Veterans Affairs, 521 F.3d 1061, 1063-1064 (9th Cir.
2008), claiming that Hadley’s constitutional chal-
lenges to LMRA were not preserved, and in doing so
overlooked Cooper vs. Fitzharris, 586 F.2d 1325, 1333
(9th Cir. 1978); and U.S. vs. Gilley, 836 F.2d 1206,
1212 (9th Cir. 1988), under the plain-error doctrine.
Here, Hadley is arguing that the District Court, not
the statute, deprived her of constitutional right to due
process, equal protection, and accessing courts. The
panel did not reach that issue in its decision on
constitutional grounds. Instead, the panel cited
Wilbur us. Locke, 423 F.3d 1101, 1116 (9th Cir. 2005);
and Williams vs. United Airlines, Inc., 500 F.3d 1019,
1022 (9th Cir. 2007), claiming that accessing courts is
not an absolute right but is limited by the statutory
grant of jurisdiction. Wilbur cited Hudson vs. Palmer,
468 U.S. 517, 523 (1984); and California Motor
Transport Co. vs. Trucking Unlimited, 404 U.S. 508,
515 (1972). Hudson reasoned that persons should
have reasonable right to access courts under Johnson
us. Avery, 393 U.S. 483 (1969). The Hudson case even
recognized that prisoners in confinement are entitled
to enjoy due process protection but not Fourth
Amendment protection against searches. Johnson vs.
Avery reversed a rule prohibiting one prisoner from

24

helping another to petition the court for habeas
corpus. California Motor held, inter alia, that the
right to access courts is within prescribed procedure
but that First Amendment rights cannot be used for
achieving “substantive evils.” 404 U.S. at 515. Here,
the substantive evil to exclude the public employees
from using Vaca and Del Costello in federal court is
that it makes second-class citizens out of public
employees, whereas private employees can access the
federal courts for their hybrid claims against their
union.

In the Williams case, the issue was whether the
Airline Whistleblower Protection Program authorized
the employee to bring suit in federal court for viola-
tions of the Whistleblower Protection Program. The
Court held that it did not because the District Court
lacked subject-matter jurisdiction. This reasoning
does not apply to the case at bar because Vaca judi-
cially created the right of action against the union
and the employer to redress the wrong by the union
in federal court. Therefore, where the private em-
ployee has such right, it deprives a public employee of
equal protection and due process rights to access the
Court to hold that public employees have no federal
claim under Vaca. Vaca was not a statutory construc-
tion case but a judicially created right of action.

The Ninth Circuit decision cited Poe vs. HLRB,
105 Haw. 97, 102 (2004), for the proposition that
Hadley could have brought her claim in state court.
This is an incorrect reading of Poe which applied
Vaca, where the employee filed prohibited-practice

25

complaints with the Hawaii Labor Relations Board,
lost, and appealed that to the State circuit court. Poe
used Vaca to hold, inter alic, that a wrongfully dis-
charged employee may bring an action against the
employer provided the employee can prove the union
breached its duty of fair representation. There, the
Court also held in footnote 2 (105 Haw. at 103) that
the employee had exhausted his administrative
remedies and so need not further pursue grievances
with the union. However, Poe failed to establish that
he was prevented from exhausting his contractual
remedies so did not prove his union breached its duty
of fair representation so Poe lacked standing to
pursue his claim before the HLRB. Those facts and
legal reasoning are not applicable here on the consti-
tutional arguments made in this case of first impres-
sion.

Lastly, the circuit court cited Kahawaiolaa vs.
Norton, 386 F.3d 1271, 1280 (9th Cir. 2004), as requir-
ing Hadley to “negative every conceivable basis which
might support [the rationality of the statutory classi-
fication].” Here, the District Court opinion, not the
statute, was the invidious discrimination based upon
preventing public employees from using Vaca as a
remedy in federal court where private employees can
do so. Therefore, the Norton case is not applicable
here.

26

D. Certiorari must be granted to resolve the
conflict between two Circuit Court deci-
sions on the same important issue of fed-
eral court jurisdiction of the duty of fair
representation claim.

As previously noted, the case of Farber us. City of
Paterson, supra, and Ayres vs. International Brother-
hood of Electrical Workers, supra, conflict on the issue
of whether the federal district court has jurisdiction
over the public employee’s claim against the public >
union for breach of duty of fair representation. There-
fore, under Rule 10 of the U. S. Supreme Court Rules,
this Court should grant certiorari to decide this
important issue of federal jurisdiction over the Vaca
us. Sipes claim by public employees against their
public union.

,
v

CONCLUSION

For all of the foregoing reasons, Petitioner re-
spectfully requests that the Supreme Court grant
review of this matter.

Respectfully submitted,

R. STEVEN GESHELL

6600 Kalanianaole Hwy., Ste. 116
Honolulu, HI 96825

(808) 396.7701

Attorney for Petitioner

App. 1

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LINDA K. HADLEY,

Plaintiff-Appellant, No. 06-15642

pk D.C. No.

HAWAII GOVERNMENT CV-05-00660-ACK
EMPLOYEES’ ASSOCIA- MEMORANDUM*
TION, AFSCME LOCAL 152, :
AFL-CIO; (Filed Jun. 2, 2008)

Defendants-Appellees.

Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, District Judge, Presiding

Argued and Submitted March 13, 2008
San Francisco, California

Before: RYMER, RAWLINSON, and CALLAHAN,
Circuit Judges.

Appellant Linda K. Hadley (Hadley) appeals the
district court’s dismissal of her hybrid action against
the Hawaii Government Employees’ Association and
the State of Hawaii, Department of Human Services,
for lack of subject-matter jurisdiction.

* This disposition is not appropriate for publication and is
not precedent except as provided by 9th Cir. R. 36-3.

App. 2

The outcome of this appeal is controlled by Ayres
v. International Brotherhood of Electrical Workers,
666 F.2d 441 (9th Cir. 1982). Because Hadley’s em-
ployer is a political subdivision of the state of Hawaii
for purposes of the Labor Management Relations Act
(LMRA), 29 U.S.C. §§ 152, 185; Haw. Rev. Stat. § 26-4
(establishing the Department of Human Services);
NLBB v. Natural Gas Util. Dist. of Hawkins County,
Tennessee, 402 U.S. 600, 604-05 (1971) (defining
political subdivisions), the district court lacked sub-
ject-matter jurisdiction over Hadley’s hybrid action.
See Ayres, 666 F.2d at 444.

Because the district court lacked original subject-
matter jurisdiction over Hadiey’s hybrid action, no
basis existed for the exercise of supplemental juris-
diction over her state law claim. See Herman Family
Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th
Cir. 2001). Nor was the district court authorized to
transfer the claim to the state courts of Hawaii under
28 U.S.C. § 1631, which provides for the transfer of
actions only between federal courts. See 28 U.S.C.
§ 610.

Hadley’s constitutional challenges to the LMRA
were not preserved. See Weber v. Dept. of Veterans
Affairs, 521 F.3d 1061, 1063-64 (9th Cir. 2008), as
amended. In any event, her challenges are not meri-
torious. “(T]he right of access to the courts is not
absolute.” Wilbur v. Locke, 423 F.3d 1101, 1116 (9th
Cir. 2005) (citation omitted). “Jurisdiction of the
lower federal courts is ... limited to those subjects
encompassed within a statutory grant of jurisdiction.”

App. 3

Williams v. United Airlines, Inc., 500 F.3d 1019, 1022
(9th Cir. 2007) (citation omitted). Moreover, because
Hadley could have brought her claim in state court,
see Poe v. Hawaii Labor Relations Bd., 105 Haw. 97,
102 (2004), she has not been denied access to the
courts. Hadley cannot prevail on her substantive due
process or equal protection claims because she has
failed to “negative every conceivable basis which
might support [the rationality of the statutory classi-
fication}.” Kahawaiolaa v. Norton, 386 F.3d 1271,
1280 (9th Cir. 2004) (citation omitted).

Finally, because Hadley has not prevailed on
appeal, her request for attorney’s fees on appeal is
denied. See Sheet Metal Workers’ Int'l Ass’n Local
Union No. 359 v. Madison Indus., Inc., 84 F.3d 1186,
1192 (9th Cir. 1996).

AFFIRMED.

App. 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

LINDA K. HADLEY, ) Civ. No.
Rae 05-00660 ACK/KSC
Plaintiff,

V.

)
)
)
HAWAII GOVERNMENT ?
EMPLOYEES’ ASSOCIA- ?
TION, AFSCME, LOCAL ?
152, AFL-CIO; STATE OF ?
HAWAII, DEPARTMENT ?)
OF HUMAN SERVICES, :
)

Defendants.

ORDER GRANTING MOTION TO DISMISS
(Filed Mar. 13, 2006)
BACKGROUND

Linda K. Hadley (“Plaintiff”) filed a Complaint
against Hawaii Government Employees’ Association,
AFSCME, Local 152, AFL-CIO (the “Union”) and the
Department of Human Services of the State of Ha-
waii (“State Defendant”), alleging two causes of
action: (1) a “hybrid action” against the Union and
State Defendant for violation of the Labor- |
Management Relations Act (“LMRA”), 29 U.S.C.
§$ 158 and 185, and (2) State Defendant’s violation of
the Hawaii Whistleblowers’ Protection Act, H.R.S.
§ 378-61, et seg. See Complaint at 2, 8-9.

App. 5

On November 18, 2005, State Defendant filed a
Motion to Dismiss Complaint (“Moticn to Dismiss”).
On December 13, 2005, the Union filed a Substantive
Joinder in the Motion to Dismiss (“Joinder”). On
February 20, 2006, Plaintiff filed an Opposition to the
Motion to Dismiss and Joinder. On February 28,
2006, State Defendant filed a Reply. A hearing was
held on March 13, 2006.

STANDARD

A court’s subject matter jurisdiction may be
challenged under Federal Rule of Civil Procedure
12(b)(1) (“Rule 12(b)(1)”). “A party invoking the
federal court’s jurisdiction has the burden of proving
the actual existence of subject matter jurisdiction.”
See Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.
1996).

On a Rule 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction, the court is not “restricted
to the face of the pleadings, but may review any
evidence, such as affidavits and testimony, to resolve
factual disputes concerning the existence of jurisdic-
tion.” McCarthy v. United States, 850 F.2d 558, 560
(9th Cir. 1988). “Once the moving party [converts] the
motion to dismiss into a factual motion by presenting
affidavits or other evidence properly brought before
the court, the party opposing the motion must furnish
affidavits or other evidence necessary to satisfy its
burden of establishing subject matter jurisdiction.”

App. 6

Savage v. Glendale Union High Sch., 343 F.3d 1036,
1040 n.2 (9th Cir. 2003).

“The requirement that the nonmoving party
present evidence outside his pleadings in opposition
to a motion to dismiss for lack of subject matter
jurisdiction is the same as that required under Rule
56(e) that the nonmoving party to a motion for sum-
mary judgment must set forth specific facts, beyond
his pleadings, to show that a genuine issue of mate-
rial fact exists.” Trentacosta v. Frontier Pac. Aircraft
Indus., Inc., 813 F.2d 15538, 1559 (9th Cir. 1987).
Thus, the moving party “should prevail only if the
material jurisdictional facts are not in dispute and
the moving party is entitled to prevail as a matter of
law.” Casumpang v. Intl Longshoremen’s & Ware-
housemen’s Union, 269 F.3d 1042, 1060-61 (9th Cir.
2001).

DISCUSSION
I. Hybrid Action Claim

Count 1 of the Complaint alleges a “hybrid action
against both the employer [State Defendant] and the
Union under 29 U.S.C. §§ 158 and 185 per Vaca uv.
Sipes, 386 U.S. 171 ([ ] 1967).” See Complaint at 2;
see also id. at 8. In DelCostello v. Int'l Brotherhood of
Teamsters, the U.S. Supreme Court explained the
nature of such a hybrid action brought pursuant to
Vaca: “when the union representing the employee
[against the employer] in the grievance/arbitration
procedure acts in such a discriminatory, dishonest,

App. 7

arbitrary, or perfunctory fashion as to breach its duty
of fair representation ... an employee may bring suit
against both the employer and the union, notwith-
standing the outcome or finality of the grievance or
arbitration proceeding.” See DelCostello v. Int'l Broth-
erhood of Teamsters, 462 U.S. 151, 164 (1983); see also
Vaca v. Sipes, 386 U.S. 171 (1967).

The resulting hybrid action claim comprises two
causes of action. DelCostello, 462 U.S. at 164. “The
suit against the employer rests on § 301 [of the Labor
Management Relations Act, 29 U.S.C. § 185], since
the employee is alleging a breach of the collective
bargaining agreement.” Jd. “The suit against the
union is one for breach of the union’s duty of fair
representation, which is implied under the scheme of
the National Labor Relations Act.” Jd. To prevail
against either the employer or the Union, the em-
ployee-plaintiff must not only show that his “dis-
charge was contrary to the contract but must also
carry the burden of demonstrating a breach of duty
by the Union.” Jd., 462 U.S. at 165. The suit can
therefore be described as a hybrid Section 301/fair
representation claim, amounting to a direct challenge
to the private settlement of disputes under the collec-
tive bargaining agreement. Id.

A. Federal Jurisdiction over Hybrid Ac-
tions in General

Vaca was an appeal from the Supreme Court of
Missouri, in which the U.S. Supreme Court specifically

App. 8

determined that “Missouri courts had jurisdiction in
[that] case” to hear the hybrid action. See Vaca, 386
U.S. 171, 188 (1967). Courts have interpreted Vaca
and its progeny to stand for the proposition that
LMRA Section 301, 29 U.S.C. § 1985, provides federal
jurisdiction for hybrid actions asserting Section
301/fair representation claims. See Tamburello v.
Comm-Tract Corp., 67 F.3d 973, 979 (1st Cir. 1995)
(plaintiff “brought his fair representation allegations
as part of a ‘hybrid’ action under § 301, which pro-
vides federal jurisdiction for employees to sue their
employer for breach of a collective bargaining agree-
ment, and their union for breach of its duty of fair
representation”); Coleman v. General Mills, 1994 WL
696116 (6th Cir. 1994) (claim “may be construed as a
‘hybrid’ action filed against the company and against
the union under § 301 of the LMRA, over which the
federal courts have proper jurisdiction”); Talbot v.
Robert Matthews Distributing Co., 961 F.2d 654, 663
(7th Cir. 1992) (“Section 301 provides federal jurisdic-
tion for employees to sue their employer for breach of
a collective bargaining agreement and their union for
breach of its duty of fair representation”); Cannon uv.
Kroger Co., 837 F.2d 660, 661 (4th Cir. 1988) (“a
typical hybrid action under § 301 of the Labor Man-
agement Relations Act ..., although federal in
nature, may be commenced and prosecuted in either
federal district court or in state court”). For this
reason, to the extent that State Defendant may be
arguing that there is no federal jurisdiction under
Section 301 for hybrid claims against employers in
general, such an argument fails. See 29 U.S.C. § 185.

App. 9

B. Jurisdiction over the Hybrid Action
Claim Against State Defendant under
the LMRA

LMRA Section 301(a), 29 U.S.C. § 185(a), pro-
vides federal district courts with jurisdiction for suits
alleging “violation of contracts between an employer
and a labor organization.” State Defendant argues

that it is not an “employer” within the meaning of the
LMRA. See Motion to Dismiss at 3-4.

The LMRA excludes states and their political
subdivisions from its definition of “employer.” 29
U.S.C. § 152(2) provides:

The term “employer” includes any person
acting as an agent of an employer, directly or
indirectly, but shall not include the United
States or any wholly owned Government cor-
poration, or any Federal Reserve Bank, or
any State or political subdivision thereof ...
or any labor organization (other than when
acting as an employer), or anyone acting in
the capacity of officer or agent of such labor
organization.

The general definition section for the LMRA, at
29 U.S.C. § 142(3), provides that the terms “em-
ployer,” “employee,” and “labor organization,” (among
others) shall have the same definitions when used
elsewhere in the LMRA as those terms are given in

App. 10

29 U.S.C. § 152, which is quoted above.’ See 29 U.S.C.
§§ 142, 152; see also Ayres v. Intl Brotherhood of
Electrical Workers, 666 F.2d 441, 442-444 (9th Cir.
1982) (analyzing the relationship between the sub-
chapters of the LMRA and determining that the
definition of “employer” contained at 29 U.S.C.
§ 152(2) applies to the term as it is used in 29 U.S.C.
§ 185(a)).

Thus, 29 U.S.C. § 185(a) does not grant this
Court jurisdiction over claims against an individual
employed by a political subdivision of the State of
Hawaii. See 29 U.S.C. §§ 142, 152; Ayres, 666 F.2d at
444 (“section 301(a) of the Act, 29 U.S.C. § 185(a),
does not grant this court jurisdiction over the claims
of an individual employed by a political subdivision of
a state”). The fact that Plaintiff brings the action
against its employer under 29 U.S.C. § 185 as part of
a hybrid action does not somehow create jurisdiction
in this Court. See, e.g., Ayres, 666 F.2d 441 (dismiss-
ing hybrid action against employer and union for lack
of jurisdiction where employer was political subdivi-
sion of the state); Jacobs v. Ohio Valley Regional
Transportation Authority, 636 F.Supp. 841 (N.D. W.
Va. 1986) (same). Plaintiff has cited no cases finding

* 29 U.S.C. § 142 states in part: “When used in this chapter
— The terms ‘commerce’, ‘labor disputes’, ‘employer’, ‘employee’,
‘labor organization’, ‘representative’, ‘person’, and ‘supervisor’
shall have the same meaning as when used in subchapter II of
this chapter.” See 29 U.S.C. § 142(3). The definitions for sub-
chapter II are contained in 29 U.S.C. § 152. See 29 U.S.C. § 152.

App. 11

jurisdiction over a state employer under the LMRA,
in a hybrid case or otherwise.”

State Defendant, the Department of Human
Services of the State of Hawaii, is a political subdivi-
sion of the State of Hawaii. See H.R.S. § 26(4) (estab-
lishing the Department of Human Services); see also
N.L.R.B. v. Natural Gas Utility District of Hawkins
County, Tennessee, 402 U.S. 600, 604-605 (1971)
(noting that the term “political subdivision” in 29
U.S.C. § 152(2) is not defined by the statute, but that
Congress intended the political subdivision exception
to exempt state employees since they did not usually
enjoy the right to strike; approving the NLRB’s two-
prong test for “political subdivision” to include “enti-
ties that are either (1) created directly by the state, so
as to constitute departments or administrative arms
of the government, or (2) administered by individuals
who are responsible to public officials or to the gen-
eral electorate”); Museum Associates v. N.L.R.B., 688
F.2d 1278, 1280 (9th Cir. 1982) (recognizing NLRB’s
two-prong construction of “political subdivision” as it
is used in 29 U.S.C. § 152(2)). Accordingly, Section
301.29 U.S.C. § 185, does not provide this Court with
jurisdiction over Plaintiff’s hybrid action claim
against State Defendant.

* Vaca does not address the issue of whether federal

jurisdiction exists where the employer is a state or political
subdivision thereof because Vaca did not involve a state «m-
ployer. See Vaca, 386 U.S. 171, 173 (plaintiff sued union but not
employer; employer was a private company).

App. 12

Nor does this Court have jurisdiction over Plain-
tiff’s hybrid action claim against State Defendant
pursuant to 29 U.S.C. §§ 158 or 187. First, 29 U.S.C.
§ 158 itself does not contain any grant of federal
jurisdiction. See 29 U.S.C. § 158 (describing unfair
labor practices). Second, the grant of federal! jurisdic-
tion contained in 29 U.S.C. § 187 is “subject to the
limitations and provisions of section 185.” See 29
U.S.C. § 187(b). The limitations and provisions of 29
U.S.C. § 185, as discussed, except from jurisdiction in
this Court claims against employers who are political
subdivisions of a state. See 29 U.S.C. §§ 142, 152, 185.

For these reasons, the Court lacks jurisdiction
over Plaintiff’s hybrid action claim against State
Defendant.

C. Jurisdiction over the Hybrid Action
Claim Against the Union under the
LMRA

The Union argues that the Court lacks jurisdic-
tion over the hybrid action claim against it because,
just as State Defendant is not an “employer” under
the LMRA, the Union argues that it is not a “labor
organization” and Plaintiff is not an “employee.” See
Joinder at 2. The Court agrees for the same reasons
as discussed with respect to State Defendant.

The deSinitions of “employer,” “employee,” and
“labor organization” contained in 29 U.S.C. § 152
apply to 29 U.S.C. § 185. See 29 U.S.C. §§ 142, 152,
185; Ayres, 666 F.2d at 442-444. “Employee” does “not

App. 13

include ... any individual employed ... by any...
person who is not an employer as herein defined.” See
29 U.S.C. § 152(3). “Employer” does “not include ...
any State or political subdivision thereof.” See 29
U.S.C. § 152(2). “Labor organization” is defined (in
part) as “any organization ... in which employees
participate and which exists for the purpose ... of
dealing with employers concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or
conditions of work.” See 29 U.S.C. § 152(5) (emphasis
added). Thus, “[b]ly the plain, unambiguous language
of the LMRA, the definition of ‘labor organization’
excludes an organization of employees of a political
subdivision of a state.” See Pacific Maritime Ass’n v.
Local 63, Int’l Longshoremen’s and Warehousemen’s
Union, 198 F.3d 1078, 1081 (9th Cir. 1999).

Since Plaintiff is not an “employee,” State Defen-
dant is not an “employer,” and the Union is not a
“labor organization” under the LMRA, 29 U.S.C.
§ 185 does not give this Court jurisdiction over the
hybrid action claim against the Union. See Ayres, 666
F.2d at 444 (in a hybrid action against employer and
union, holding that “section 301(a) of the Act, 29
U.S.C. § 185(a), does not grant this court jurisdiction
over the claims of an individual employed by a politi-
cal subdivision of a state”); Jacobs, 636 F.Supp. at 843
(in hybrid action against the employer and union
where employer is a political subdivision of the state,
holding that 29 U.S.C. § 185(a) does not provide
federal jurisdiction). Nor do 29 U.S.C. §§ 158 or 187
give this Court jurisdiction over the hybrid action

App. 14

claim against the Union, for the same reasons as
discussed with respect to State Defendants. See,
supra, § IB; see also Pacific Maritime Ass’n, 198 F.3d
at 1083 (analyzing effect of LMRA definitions on 29
U.S.C. §§ 158 and 187 and finding no federal district
court jurisdiction for claim under 29 U.S.C. § 187
against labor organization of public sector employ-
ees).

For these reasons, the Court lacks jurisdiction
over Plaintiff’s hybrid action claim against the Un-
ion.

Il. Whistleblower Claim against State Defen-
dant

In addition te the hybrid action claim alleged
against both defendants, the Complaint alleges that
State Defendant “violated the Hawaii Whistleblowers’
Protection Act contained in H.R.S. § 378-61, et seq.”
See Complaint at 9. Plaintiff alleges that the Court
has jurisdiction over this claim pursuant to its sup-
plemental jurisdiction under 28 U.S.C. § 1367. See
Opposition at 6. However, because the Court has
found that it does not have jurisdiction over the
hybrid action claim, there are no “claims in [this]
action within [the Court’s] original jurisdiction.” See
28 U.S.C. § 1367(a); see also Kelly v. Fleetwood Enter-
prises, Inc., 377 F.3d 1034, 1040 (9th Cir. 2004).
Therefore, the Court lacks subject matter jurisdiction
over the whistleblower claim. See Kelly, 377 F.3d at
1040 (finding no supplemental jurisdiction over state

App. 15

law claim where underlying claims were dismissed
for lack of jurisdiction); see also United Mine Workers
of America v. Gibbs, 383 U.S. 715, 725 (1966) (“Cer-
tainly, if the federal claims are dismissed before trial,
even though not insubstantial in a jurisdictional
sense, the state claims should be dismissed as well.”).

Accordingly, the whistleblower claim is dismissed
for lack of jurisdiction.* Plaintiff may pursue adjudi-
cation of that claim in state court.

CONCLUSION

The Court grants the Motion to Dismiss. The
Complaint is dismissed without prejudice in its
entirety for lack of subject matter jurisdiction.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 18, 2006.

/s/ Alan C. Kay
[SEAL] Alan C. Kay
Sr. United States
District Judge

° The Court_declines to reach the issue of sovereign immu-
nity since it finds that it lacks subject matter jurisdiction over
Plaintiff’s claims. See Motion to Dismiss at 7-8 (arguing that
State Defendant is immune from suit in federal court for “any
state claims” contained in the Complaint, pursuant to the
Eleventh Amendment to the U.S. Constitution).

App. 16

UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII

LINDA K. HADLEY

Plaintiff(s),
V. JUDGMENT IN A
HAWAII GOVERNMENT CIVIL CASE
EMPLOYEES’ ASSOCIATION, Case: CV 05-00660
AFSCME, LOCAL 152, ACK-KSC

AFL-CIO; STATE OF
HAWAII, DEPT. OF HUMAN
SERVICES

Defendant(s).

(Filed Mar. 14, 2006)

[ ] Jury Verdict. This action came before the Court
for a trial by jury. The issues have been tried and
the jury has rendered its verdict.

{[“] Decision by Court. This action came for consid-
eration before the Court. The issues have been
considered and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that the
Complaint is dismissed without prejudice in its
entirety for lack of subject matter jurisdiction,
pursuant to the “Order Granting Motion to Dis-
miss”, filed March 13, 2006.

cc: all counsel

App. 17

March 14, 2006 /s/ SUE BEITIA
Date Clerk

/s/ (Illegible]
(By) Deputy Clerk

App. 18

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LINDA es —e No. 06-15642
Plaintiff-Appellant, D.C. No.
. CV-05-00660-ACK

HAWAII GOVERNMENT District of Hawaii,
EMPLOYEES’ ASSOCIA- Honolulu
TION, AFSCME LOCAL ORDER

152 AFL-CIO, 7
Defendant-Appeilee. (Filed Jul. 10, 2008)

Before: RYMER, RAWLINSON, and CALLAHAN,
Circuit Judges.

The panel has voted to deny the petition for
rehearing en banc.

The full court has been advised of the petition for
rehearing en banc, and no judge of the court has
requested a vote.

The Petition for Rehearing En Banc filed on June
12, 2008, is DENIED.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0708%3A1. Public record. Not legal advice.