Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-01970-MSK-BNB

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Filed 08/23/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

CIVIL ACTION NO. 03-CV-01970-MSK-BNB MOUNTAIN STATES SHEET METAL COMPANY, Plaintiff, v. SHEET METAL WORKERS' LOCAL NO. 9, and SHEET METAL AND AIR CONDITIONING CONTRACTORS NATIONAL ASSOCIATION, Defendants.

RESPONSE IN OPPOSITION TO MOTION FOR STAY PENDING APPEAL

Plaintiff's Motion for Stay Pending Appeal is little more than a factually disingenuous repetition of its substantive position in this litigation ­ The assertion, in the face of known facts to the contrary, that the union intends to attempt to enforce the underlying arbitration award before a decision is reached by the NLRB on the parallel representation case, and insistence that its alwaysweak legal position that the award is already unenforceable because it may, in the future, become so (already rejected by this court) is likely to succeed in front of the 10th Circuit. The motion should be denied and, if granted, should be made conditional on the filing of a security bond sufficient to cover any claims for back pay or wages that would be part of the remedy under the arbitration award. I. NO STAY SHOULD BE GRANTED Plaintiff has correctly identified the standards for a stay pending appeal, and then effectively

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turned them on their head. It's motion is supported by none of likelihood of success on appeal, a threat of irreparable harm to itself, the absence of harm to the union, or the risk of harm to the public interest. A. PLAINTIFF IS UNLIKELY TO SUCCEED IN ITS APPEAL.

The Tenth Circuit's Standard for granting a stay pending appeal requires not only that the party seeking the stay show both that it and the public interest is likely to suffer harm if the stay is not granted and that the opposing party is unlikely to suffer harm if it is, but also to meet what the court has described as a "modified likelihood-of-success" standard ­ a showing that "questions going to the merits [are] so serious, substantial, difficult and doubtful, as to make the issues ripe for litigation and deserving of more deliberate investigation." Walmer v. United States DOD, 52 F.3d 851, 854 (10th Cir., 1995). Here, the only argument plaintiff makes relating to the likelihood of success on the merits is to reiterate its belief that this court decided this case wrongly, relying solely on a single case (Communication Workers of America v. U.S. West Direct, 847 F.2d 1475 (10th Cir., 1988)) that Local 9 properly distinguished in its prior briefing to this court. While the standard for likelihood of success on the merits may be somewhat relaxed for a stay pending appeal, it doesn't disappear entirely, and plaintiff makes only the most nominal effort even to address it. In fact, for all the reasons that the court ruled for Local 9 in the first place, plaintiff is unlikely to succeed on the merits and its case is, in any event, not one presenting extraordinarily complex issues, warranting reversing the normal state of affairs ­ a judgment is enforceable when entered. B. PLAINTIFF 'S MOTION DOES NOT ESTABLISH AN IRREPARABLE HARM TO ITSELF.

There is no danger of irreparable harm to plaintiff if no stay is granted. Local 9 has made it clear before, throughout, and since this litigation was begun that it will take no steps to enforce the 2

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award until there is a ruling before the NLRB. See e.g., Local 9 Answer and Counterclaim, ¶ 16; Letter from Walter C. Brauer III to Patrick Scully, July 25, 2005 attached to Brauer affidavit as Response Exhibit 1. In the interim, the only risk the plaintiff runs is one that a stay cannot mitigate ­ Monetary damages for its breach of the collective bargaining agreement (as found by the arbitration panel) continue to accrue.1 There is no meaningful application of the English language that can describe this as an "irreparable harm:" It is only the risk that plaintiff will have to pay the money that it will, by hypothesis, be found to have owed. C. GRANTING THE STAY RISKS IRREPARABLE HARM TO LOCAL 9

While Plaintiff will suffer no harm, reparable or irreparable, if the stay is denied, Local 9 will suffer such harm if it is granted. This is made clear by Mr. Brauer's July 25 letter, and the company's refusal even to respond to it, set forth in Mr. Brauer's affidavit. The arbitration award was entered in September, 2003, and directed that the contested work be performed under collective bargaining agreement conditions from that date forward. Therefore (and as plaintiff's motion indirectly acknowledges), plaintiff has become subject to potential damages for e.g., back pay and bargained fringe benefits since that time. However, plaintiff is the sole custodian of the records by which such damages may eventually be computed, and its refusal even to respond to a simple request that it maintain those records indicates a high probability that it intends, in fact, to attempt to thwart eventual enforcement of the award by destroying records.

Even if a stay were granted, if Local 9 is ultimately permitted to enforce the award, the stay wouldn't stop the running of the damages period. That would turn the stay from temporary to permanent injunctive relief, and is well outside the scope of a stay pending appeal. 3

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D.

THERE IS NO RISK TO COURT'S JUDGMENT.

THE

PUBLIC INTEREST THAT WARRA NTS STAYING THE

Plaintiff's recitation of the potential harm to the public interest is just a restatement of its assertion that the union will attempt to enforce the award unless a stay is granted, and of its argument that it will succeed in front of the 10th Circuit on the merits. Since the union has made it clear from the first that it will not attempt to enforce the award until the NLRB has ruled and since, as set forth above, plaintiff is not likely to succeed on the merits, plaintiff fails quite miserably to meet this criterion for stay pending appeal as well. II. IF
A STAY IS GRANTED ,

PLAINTIFF

SHOULD BE REQUIRED TO PUT UP A BOND IN THE

AMOU NT OF ITS LIKELY DAMAGES .

Plaintiff's motion asserts blandly, and entirely contrary to its own argument in support of its supposed "irreparable harm" that no security bond is needed because this case does not involve a monetary remedy. This is mere sophistry: Enforcement of the arbitration award in this case includes enforcement of the order that the contested work be done under the conditions set forth in the collective bargaining agreement from the date of the award forward, and will require payment of money damages to the extent that that condition has not been met. (That is, of course, precisely what plaintiff alleges when it claims that it will suffer an "irreparable harm" if the stay isn't granted.) And, as set forth above, there is every reason to believe that the plaintiff intends to rob the union of its eventual victory (should that occur) by destroying the books and records that would permit liquidation of the debt. Under these circumstances, the court should use its discretion to order that plaintiff post a bond of at least $1,000,000 if its motion for stay is to be granted.

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Dated this August 23, 2005

Respectfully submitted,

Brauer Buescher Goldhammer Kelman & Dodge, P.C.

s/Walter C. Brauer III Walter C. Brauer III, #1929 Ellen M. Kelman, #10566 Attorney for Defendant Local No. 9 1563 Gaylord Street Denver, Colorado 80206 (303) 333-7751 (303) 333-7758 facsimile [email protected]

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Case 1:03-cv-01970-MSK-BNB

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on August 23, 2005 I electronically filed the foregoing RESPONSE IN OPPOSITION TO MOTION FOR STAY PENDING APPEAL with the clerk of the Court using the CM/ECF system which will send the notification of such filing to the following CM/ECF participants: E-filing System: Patrick J. Miller, Esq. Patrick R. Scully, Esq. and I further certify that I have mailed the document to the following non CM/ECF participants by placing the same in the U.S. mail Raymond M. Deeny, Esq. Sherman & Howard, LLC 90 South Cascade Avenue, Suite 1500 Colorado Springs CO 80902-4015 Mr. Dwayne T. Stephens Sheet Metal Workers' Local, No. 9 P.O. Box 27910 Denver, CO 80227-0910

s/Walter C. Brauer III

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