UNITED STATES of America, Plaintiff-Appellee, v. Dennis YOSHIDA, Defendant-Appellant.
No. 83-1126
United States Court of Appeals, Ninth Circuit
Jan. 26, 1984
727 F.2d 822
Philip H. Lowenthal, Wailiki, Hawaii, for defendant-appellant.
Before CHAMBERS, SNEED and ANDERSON, Circuit Judges.
CHAMBERS, Circuit Judge:
Appellant, Dennis Yoshida, appeals his conviction entered after a jury trial for perjury. The sole question presented on appeal is whether appellant was under oath at the time he signed the affidavit which served as the basis for the indictment. We affirm.
Appellant argues the evidence presented at trial was insufficient to sustain the conviction. In considering this point, the appellate standard is whether, after “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Balk, 706 F.2d 1056, 1059 (9th Cir.1983).
In Smith v. United States, 363 F.2d 143 (5th Cir.1966), the Court wrote:
It is plain that an essential element of the crime of perjury under section 1621 is that the accused shall have taken an oath before giving the alleged false testimony. Proof of the charge requires that sufficient evidence be adduced before the jury upon which it can be found beyond a reasonable doubt that an oath was administered to the defendant by some officer authorized to do so.
Id. at 144; see also United States v. Arias, 575 F.2d 253, 254 (9th Cir.1978). In the instant case, defendant testified that the notary public who witnessed the signature asked him if the contents of the affidavit were true to which defendant replied in the affirmative. Further, it appears that the affidavit itself contained a jurat reading, “Subscribed and sworn to before me ....“, and the text of the affidavit began with the words, “DENNIS YOSHIDA, being first duly sworn, on oath, deposes and says:”
No particular formalities are required for there to be a valid oath. It is sufficient that, in the presence of a person authorized to administer an oath, as was the notary herein, the affiant by an unequivocal act consciously takes on himself the obligation of an oath, and the person undertaking the oath understood that what was done is proper for the administration of the oath and all that is necessary to complete the act of swearing. In the instant case the jury was so instructed and obviously believed the government‘s version of the facts. A review of the record shows the evidence to support the verdict as such, the conviction is affirmed.
R. Dean HOLLINS, Plaintiff-Appellant, v. KAISER FOUNDATION HOSPITALS, The Permanente Medical Group, and Kaiser Foundation Health Plan, Defendants-Appellees.
No. 83-1917
United States Court of Appeals, Ninth Circuit
Jan. 26, 1984
727 F.2d 823
Alan R. Berkowitz, Schachter, Kristoff, Ross, Sprague & Curiale, San Francisco, Cal., for defendants-appellees.
Before KENNEDY, ALARCON and TIMBERS *, Circuit Judges.
* Of the Second Circuit, by designation.
PER CURIAM:
This is an appeal by R. Dean Hollins, a discharged probationary employee of appellee Permanente Medical Group, from a judgment of the district court dismissing Hollins’ action brought pursuant to Section 301 of the Labor-Management Relations Act,
Appellees are Kaiser Foundation Hospitals, The Permanente Medical Group and Kaiser Foundation Health Plan (referred to collectively as Kaiser Hospitals).
Kaiser Hospitals and the Hospital and Institutional Workers Union, Local No. 250 (Union), are parties to a collective bargaining agreement (CBA) covering some of Kaiser Hospital‘s employees, including Hollins. The pertinent provisions of the CBA are as follows:
ARTICLE XXIX—DISPUTES
Section 1—Work Stoppages
* * *
195. All disputes in other matters of controversy coming within the scope of this Agreement will be settled by the procedure hereinafter provided.
Section 2—Probationary Period
196. Employees may be discharged without recourse to the grievance procedure within the first ninety (90) days of employment.
Section 3
197. Grievance, as referred to in this Article, includes every dispute concerning application or interpretation of this contract and/or any dispute concerning wages, hours or working conditions. All such disputes shall be subject to the grievance procedure; however, only such grievances that allege a specific violation of the contract may be appealed to Step 3 of the grievance procedure.
* * *
Section 7—Discipline
210. A) Discipline shall be administered only for just cause.
Sometime during the first ninety days of his employment, Hollins was discharged.1
Hollins commenced the instant action in the district court, alleging that Kaiser Hospitals had breached the CBA by discharging him without just cause. The court denied Hollins’ motion for a preliminary injunction to require his reinstatement pending trial. Subsequently, the parties filed cross motions for summary judgment, and Kaiser Hospitals filed a motion to dismiss. The court declined to rule on the summary judgment motions but granted Kaiser Hospitals’ motion to dismiss, holding that (1) Hollins was without recourse to the grievance procedure; (2) the CBA established the grievance procedure as the exclusive remedy for aggrieved employees; and therefore (3) the court was without jurisdiction. This appeal followed.
Hollins’ claim is based on a breach of CBA Paragraph 210. He is bound by the terms of the CBA which govern the enforcement of contractual rights. Vaca v. Sipes, 386 U.S. 171, 184 (1967). As exclusive bargaining representative, the Union could waive rights of the employees. NLRB v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 180 (1967). As negotiated by the Union and the Hospital, the grievance procedure set out in Article XXIX is the exclusive method of resolving “all disputes“. CBA Paragraph 195. This comports with the national labor policy of relying on arbitration unless the parties expressly agree that arbitration is not the exclusive remedy. Republic Steel Corp. v. Maddox, 379 U.S. 650, 657-58 (1965). Employee termination is a category of dispute covered by the grievance procedure. Paragraph 196 precludes probationary employees from processing termination disputes through the grievance procedure. The Eighth Circuit, in Van Leeuwen v. United States Postal Service, 628 F.2d 1093, 1097 (8th Cir.1980), in dealing with a contract provision very similar to Paragraph 196, held that a discharged probationary employee had no contractual right to continued employment. Id. at 1097.
With respect to the instant CBA, we hold that, by prohibiting resort to the grievance procedure by probationary employees who may be discharged within the first ninety days of their employment, the parties intended to foreclose all contractual remedies for such discharged probationary employees, the CBA having established the grievance procedure as the exclusive remedy for aggrieved employees.2
The district court correctly dismissed the action for lack of jurisdiction.
Affirmed.
ALARCON, Circuit Judge, dissenting.
I respectfully dissent.
Hollins’ employment was terminated dur-ing the first ninety (90) days for “inappro-
The agreement also provides, in section 196 that employees within the first ninety (90) days of employment may be discharged without recourse to the grievance procedure. Thus, the agreement gives all employees the right to be free from being disciplined except for just cause. Employees with more than ninety (90) days employment are limited by the express terms of the agreement to seek resolution of any grievance, including disciplinary action, through the grievance procedure. Under section 196, probationary employees, such as Hollins, are not covered by the grievance procedure. Hence, the agreement does not preclude the bringing of an action by a probationary employee under
Accordingly, I would reverse.