* This opinion is being released in typescript form. 

### In the 

# United States Court of Appeals

for the Seve nth Circuit

No. 02-3512
BRICKLAYERS LOCAL 21 OF ILLINOIS APPRENTICESHI P AND TRAIN ING PROGRA M and MASONRY INSTITUTE, BRICKLAYERS LOCAL 21 PE NSION FUND , Plaintiffs -Appellees ,

v
. BANNER RESTORATION, INCORPORATED , Defendant-A

ppellant

.

Appeal from the United States District Court for the Northern District of Illinois , Eastern Division. No. 99 C 6633 – Martin C. A shman , Magistra te Judge.

ON MOTION TO RECALL THE MANDATE

OCTOBER

5, 2004 *No. 02-3512 Page 2

1 Banner ’s motion

also could be denied simply because it does not d is cuss the irreparable harm Banner would suffer if the stay
were denied. See Galdikas , 347 F.3d a t 625; United Stat

es v. BBO Seidman , 345 F.3d 465, 466 (7th Cir. 2003) (Ripple, J., in chambers) (denying motion for stay that was “inadequate on its face”). RIPPLE , Circu i t Judge (in cham bers). Ap pellant B anner Restoration, Inc. (“ Banner”) m oves to stay the mandate pending the filing of a petition for a wri t of certiorari. Familiarity with this court’s opinion in the underlying litigation is pr esumed. See Bricklayers Local 21 P ension Fund

v. Ban ner Restora tion, Inc. , No. 02-3512 (7th Cir. Sept. 22, 2004).

To stay the

mandate , Banner

must sh ow that i

ts petition “would present a substantial question and that there is good cause for a sta y.” Fed. R. App. P. 41(d)(2)(A); Nanda v. Bd. of Trs. o f Univ. of Ill. , 312 F.3d 852, 853 (7th Cir. 20 02) (Ripple, J., in chamber s). This standard require s Banner

to demonstr ate both “a
reaso nable probabil ity of suc ceeding on the mer its” and “irreparabl e injury absent a s tay.” G aldikas v. Fagan , 347 F.3d 625 (7th Cir. 2003) (Ripple, J., in chamber s). 1 A reasonable probability of success
means “a reasonable probability that four Ju stices wi ll vote to grant certiorari and a r easonable possibili ty that f ive Justi ces will vote to
reverse this cour

t’s judg ment.” Id. ; Nanda , 312 F.3d a t 853-54.

Banner advance s three m ain arg uments. First, it c ontend s that the court erred by interpr e ting Section 302(c)(5)(B) of the Labor Manag ement Rel ations Act so as not to requir e a sign ed agreement to show the existence of a written agreeme n t betwee n the parties. See Bricklay

ers Local 21 Pension Fund , No. 02-3512, slip. op. at 12-19. Although Banner contends that this is a matter of first impression, it does not develop this argument in any way, much lessNo. 02-3512 Page 3

cite authority to suggest thatthe court’s conclusion was in error and that four Justices would vote to grant certiorari.
Simi larly, Banner also argues that th e court’s d ecision cr eates
a conflict with Moglia v . Geogheg an , 4 03 F.2d 110 (2d C ir. 1968). This argument, however, ignores the court ’s discuss ion of the fact that the Secon d Circui

t later c larifi ed Moglia in Brown v. C. Volante Corp. , 194 F.3d351, 355 n.1 ( 2d Cir. 1999), stati ng that Moglia did not “graft a signature

require ment onto S ection 302(c)(5)(B).” See Bricklayers Local 21 P ension Fun d , sli p. op. at 16-17 n.8. Therefor e, even if this court ultimat ely erred on this p oint, Banner cannot show a s plit betw een the circuits that would favorably indicate success for a petition for a writ of certiorari. See United States v. Holl

and , 1 F.3d 454, 456 (7th Cir. 1993) (“A conflict among the circ uits is an ac cepted bas is for th e granti ng of the writ of certiora ri.”). Finally, Banner makes mu ch of its belief that its paym ents to the trust funds were coerced by the appel lees’ thr eats to picket and strike. The dis trict court, however, found the testimony of Banner ’s president to be unbelievable on this issue, and, given the deferenc e accorded such determinations, Vollmer v. Pu blishers Clea ring House , 248 F.3d 698, 706 (7th Cir. 2001), it is unlikely to succeed as the basis for a petition for certiorari.
Conclusion

For the fore going re asons, I d eny the a ppellant ’s motion f

or a stay of the man date.
STAY OF MANDATE DENIED