Unpublished Disposition, 841 F.2d 1129 (9th Cir. 1988)

MEMORANDUM^* 

We affirm the district court's decision that Maxwell's claims under state law for intentional infliction of emotional distress, breach of fiduciary duty, and breach of the duty of good faith and fair dealing are preempted by section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. We recognize that section 301 does not preempt every employment dispute. Young v. Anthony's Fish Grottos, 830 F.2d 993, 999 (9th Cir. 1987). "Congress did not intend for section 301 to preempt 'state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.' " Paige v. Henry J. Kaiser Company, 826 F.2d 857, 863 (9th Cir. 1987). (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212 (1985)). The key to determining the scope of preemption is whether the claim is inextricably intertwined with consideration of the terms of the collective bargaining agreement. Young, 830 F.2d at 999; Paige, 826 F.2d at 863.

We understand, but reject Maxwell's argument that his claims arise separately from the arbitration process. At the core of Maxwell's state court action is an attempt to find Simmons liable for failing to pay the arbitration award in 1981. As the district court explained, to determine whether or not Simmons had a duty to pay one must look at the arbitration process which in turn is a subject of the collective bargaining agreement. Simmons' duty to pay turns on an interpretation of the court's reservation of jurisdiction to determine the meaning of "back pay, if any" in the arbitration award. The district court reasonably concluded that this interpretation should be done according to federal law so that the congressional mandate for uniformity in labor dispute resolution is not undermined.

We need not reach the statute of limitations or the res judicata issues because we find that under federal law Simmons did not violate any duty to Maxwell by waiting to comply with the arbitrator's original ruling until the arbitrator had specified the amount of back wages owed. See United Steelworkers of America v. Enterprise Wheel & Car Corporation, 363 U.S. 593 (1960) (arbitrator's award was ambiguous and unenforceable where it neglected to specify the amounts to be deducted from the back pay of the reinstated employees, and therefore, remand was necessary so that the amounts could be determined through further arbitration); International Brotherhood of Electric Workers v. O.K. Electric Co., 793 F.2d 214, 217 (8th Cir. 1986) (employer's initial refusal to comply with arbitrator's decision was "reasonable" in light of the arbitrator's initial failure to properly formulate a remedy); Warehouse, Mail Order v. Carl Gorr Color Card, 585 F. Supp. 1284, 1286 & n. 2 (N.D. Ill. 1984) (defendants were not "without justification" in refusing to comply with the arbitrator's initial decision until the arbitrator specified the amount of vacation pay that was due to each employee).

Maxwell also claims, for the first time on appeal that summary judgment was inappropriate because some of his claims arise under ERISA. It is well settled that a party opposing summary judgment must inform the district court of the reasons, factual or legal, that summary judgment should not be entered. Failure to do so ordinarily waives the right to raise the issue on appeal. Liberles v. County of Cook, 709 F.2d 1122, 1126 (7th Cir. 1983).

The Ninth Circuit has recognized limited exceptions to this rule: (1) when review is necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process; (2) when new issues arise while the appeal is pending due to a change in the law, or (3) when the issue presented is purely one of law and does not depend on the factual record or the pertinent factual record has been developed. If one of these exceptions exists, the appellate court may exercise its discretion to consider the issue. Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir. 1986), cert. denied, 107 S. Ct. 2183 (1987); Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir. 1985). None of the exceptions applies in this case, and we decline to review the issue.

Finally, Maxwell appeals the district court's imposition of sanctions under Fed. R. Civ. P. 11. An objective standard of reasonableness is applied in determining whether a filing is frivolous for purposes of Rule 11. Hudson v. Moore Business Forms, Inc., 827 F.2d 450, 453 (9th Cir. 1987). Applying this standard to the particular facts of this case, we find no error in the district court's award of sanctions.

We deny the motion for additional sanctions on appeal.

AFFIRMED.