Appendix — Moore v. International Brotherhood of Electrical Workers, Local 569

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94 439 SEP - 71994

CASE NOprrice_OF IHE CLERK

THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1994

LAWRENCE MOORE,

PLAINTIFF/PETITIONER,

Vv.

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS LOCAL 569; PAUL

BLACKWOOD; THOMAS PRIDEMORE; JAMES

WESTFALL; JOE HEISLER; DICK SMITH;

TERRY GODSHALK, et al, INTERNATIONAL

BROTHERHOOD OF ELECTRICAL WORKERS;

J.J. BARRY; S.R. MCCANN; RICHARD

ROBBINS; ATKINSON MECHANICAL, INC.;

FISCHBACH & MOORE, INC.

DEFENDANTS/RESPONDENTS.

PETITION FOR

WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUPPLEMENTAL APPENDIX

Lawrence Moore, Pro Se

Box 84525

San Diego, Ca 92138

Ph. (619) 452-9537

CASE NO.

THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1994

LAWRENCE MOORE, ©

PLAINTIFF/PETITIONER,

Vv.

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS LOCAL 569; PAUL

BLACKWOOD; THOMAS PRIDEMORE; JAMES

WESTFALL; JOE HEISLER; DICK SMITH;

TERRY GODSHALK, et al, INTERNATIONAL

BROTHERHOOD OF ELECTRICAL WORKERS;

J.J. BARRY; S.R. MCCANN; RICHARD

ROBBINS; ATKINSON MECHANICAL, INC. ;

FISCHBACH & MOORE, INC.

DEFENDANTS / RESPONDENTS.

PETITION FOR

WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUPPLEMENTAL APPENDIX

Lawrence Moore, Pro Se

Box 84525

San Diego, Ca 92138

Ph. (619) 452-9537

TABLE OF CONTENTS page

Order Denying Motion for Recusal

(Disqualification) of Counsel -

DE is BUD Seb be wee eeerscccccccoses 1

Order Granting Atkinson Mechanical

Contractors Motion for Summary

Judgment - filed May 10, 1990 ............. 3

Order Denying F & M’s Motion for Summary

Judgment on Plaintiff’s Fifth Cause of

Dee = Eee MOE 19, ITS9L .ncccccccvces 5

Order affirming magistrate judge’s

order; bifurcating trial; granting in

part and denying in part motion for

summary judgment by defendant IBEW;

granting in part and denying in part

motion for summary judgment by

defendant Local 569 - filed May 2, 1991 ... 23

Order dismissing plaintiff’s objection

to order of magistrate judge; denying

plaintiff’s motion to amend and for

class certification; granting defendants’

motion for protective order; dismissing

plaintiff’s notice of default of J.J.

Barry; denying defendant Fischbach &

Moore’s motion for reconsideration;

granting in part and denying in part

defendant Fischbach & Moore’s motion

to dismiss - filed June 5, 1991 ........... 52

Order re motions for reconsideration

and motions in limine -

Me EE cca cas decesscesccevccce 61

Order denying F & M’s Motion for Summary

Judgment - filed August 7, 1991 ........... 74

Findings of Fact and Conclusions of Law,

Judgment on Court Trial and Judgment on

Special Verdict - March 18, 1992 .......... 79

Memorandum of the Court of Appeals -

in see 20h SOG ccd dc ccecessccsce ALi

i et ie

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Order Denying Motion for Recusal

(Disqualification) of Counsel

Filed May 1, 1989.

Plaintiff Lawrence Moore’s Motion for

Recusal (disqualification) of Counsel came on

for hearing before this Court on Monday, April

24, -1066,: at 10736 .:A.K. Plaintiff’s Motion

sought, inter alia, to disqualify counsel for

IBEW Local 569 from representing certain of the

individual Local Union Defendants whom

Plaintiff has alleged have violated their

fiduciary duties under 29 U.S.C. §501.

Appearing for Plaintiff and moving party,

Lawrence Moore, was Lawrence Moore In Pro Per;

Plaintiff Walter Whelan appeared by and through

his counsel, George de la Flor; Defendants IBEW

Local 569 and the individual Local Union

officers/employees appeared by and through

their counsel, Abe F. Levy and Lewis N. Levy,

and Defendant IBEW International appeared by

and through its local counsel, Jennifer T.

Messersmith.

GOOD CAUSE APPEARING THEREFORE, and based

upon the parties’ points and authorities and

oral arguments before the Court, the Court

denied Plaintiff’s Motion for Disqualification

on the basis that Plaintiff had not

demonstrated a reasonable likelihood of success

with respect to his prosecution of a breach of

fiduciary duty action, under 29 U.S.C. §501,

against the individual officers who were the

subject of the instant Motion for Recusal

(Disqualification). Additionally, the Court

orders Plaintiff and moving party, Lawrence

Moore, to reimburse the Defendants who

responded to this Motion all costs, including

reasonable attorney’s fees, generated in

opposing the instant motion.

IT IS SO ORDERED. DATED: May 1, 1989

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

Order Granting Atkinson Mechanical Contractors

Motion for Summary Judgment

Filed May 10, 1990

Defendant Atkinson Mechanical Contractors,

Inc’s Motion for Summary Judgment/Adjudication

as to Plaintiff’s Fifth Cause of Action in the

Second Amended Complaint came on for a hearing

before this court on April 16, 1990 at 10:30

A.M., before the Honorable Rudi M. Brewster,

presiding. Theodore R. Scott of Littler,

Mendelson, Fastiff & Tichy, appeared on behalf

of moving party. Plaintiff Lawrence Moore

appeared In Propria Persona.

Good cause appearing therefore, and based

on the parties’ arguments as raised in their

moving, opposing and reply papers, their oral

arguments before this court, and the court’s

files in this matter, which are incorporated

herein as though fully set forth,

IT IS ORDERED that Defendant Atkinson’s

Motion for Summary Judgment as to the

allegations of Plaintiff’s Fifth Cause of .

Action in the Second Amended Complaint is ©

hereby granted.

IT IS SO ORDERED. DATED: May 9, 1990

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Order Denying F & M’s Motion for Summary

Judgment on Plaintiff’s Fifth Cause of Action -

March 19, 1991

The above captioned matter came _ on

regularly for hearing on February 25, 1991,

before the Honorable Rudi M. Brewster.

Plaintiff Lawrence Moore appeared in propria

persona, and Norman R. Allenby, Esq., and

Dorothy. J. Almour, Esq., appeared for defendant

Fischbach £& Moore. Upon consideration of

Fischbach & Moore’s motion for summary judgment

on the fifth cause of action, and the oral

argument thereon, the court hereby enters the

following memorandum opinion and order.

FACTUAL AND PROCEDURAL BACKGROUND

On February 20, 1990, this court heard

Fischbach & Moore’s motion for summary judgment

on the seventh cause of action of plaintiff’s

second amended complaint. That cause of action

alleged that Fischbach & Moore. provided

employees to another signatory employer --

Corbin-Dykes -- without following the

provisions of § 4 of the Inside Agreement,

which provides certain procedures governing the

hiring of employees from the out-of-work list.

In its motion for summary judgment, Fischbach

& Moore argued that jurisdiction over this

cause of action rested with the National Labor

Relations Board (NLRB), not the district court,

and that Fischbach & Moore and Corbin-Dykes

were one employer under the Inside Agreement.

In denying Fischbach & Moore’s motion for

summary judgment this court held that the

federal district court and the NLRB have

concurrent jurisdiction to hear claims based on

the breach of a collective bargaining

agreement, and that issues of fact remained as

to whether Fischbach & Moore and Corbin-Dykes

were separate entities for purposes of the

Inside Agreement.

In the third amended complaint, the

allegation against Fischbach & Moore now

comprises the fifth cause of action, and has

been slightly reformulated. However, the

essential allegations are identical.

Fischbach & Moore now asserts that the

present action against it is barred by res

judicata in light of an adverse wuling suffered

by the International Brotherhood of Electrical

Workers ("IBEW") on an identical allegation

before the Council on Industrial Relations for

the Electrical Contracting Industry

("Council"). Fischbach & Moore alleges that

plaintiff had brought a grievance against the

IBEW in which plaintiff claimed that the IBEW

had Saiied in its duty of fair representation

by allowing Fischbach & Moore to transfer

employees to Corbin-Dykes.1 By letter dated

August 24, 1990, counsel for the Local notified

plaintiff that a grievance procedure had been

commenced before the Labor-Management Committee

("Committee") in San Diego, pursuant to the

1 Local Union 569 of the IBEW ("Local") and

the IBEW, both defendants in the present case,

have jointly filed a brief in support of

Fischbach & Moore. As their only point of

contention with Fischbach & Moore, the Local

and the IBEW assert that this grievance was in

fact filed against Fischbach & Moore, not the

IBEW.

Inside Agreement. Cooper Declaration, Exhibit

B. The Committee deadlocked on the grievance,

and forwarded it to the Council, which sits in

Washington, D.C. Cooper Declaration, Exhibit

Cc.

On November 15, 1990, the Council issued

its ruling in favor of Fischbach & Moore,

finding no violation of the referral procedure

promulgated in § 4 of the Inside Agreement.

According to the Council, “inasmuch as

Fischbach & Moore signed documents stating they

were responsible for all of Corbin-Dykes’ debts

and responsibilities, the Union properly

regarded them as one employer for the purposes

of Referral Procedure." Cooper Declaration,

Exhibit G.

Plaintiff did not participate in any of

these proceedings. In response to the

notification letter from the Local’s counsel,

plaintiff wrote that "[a]ll such matters will

now be litigated before the district court, and

not before any ‘Committee’ as represented in

your letter." Moore Declaration, Exhibit B.

Throughout the arbitration process, plaintiff’s

position was purportedly asserted by the Local.

Plaintiff claims that he never filed a

grievance against the Union or F & M.

Factually, plaintiff’s allegation is supported

by the evidence before the court. Neither

Fischbach & Moore nor any of the other

defendants have produced any record of a

grievance filed by plaintiff. In fact, the

Declaration of Dick Smith states that "[t}he

first notice that the Union had of Lawrence

Moore and Walter Whelan’s9 discriminatory

dispatch issue was when I was served with the

complaint in Case NO. 87-0172-B(M)." If Smith,

as business manager of the Local, was unaware

of any grievance filed by plaintiff, then the

court infers that none was filed by plaintiff.

Regardless of whether plaintiff filed the

grievance himself, Fischbach & Moore now claims

that summary judgment is appropriate

because the Inside Agreement states that

arbitration is the sole and exclusive remedy

for alleged violations of any section of that

Agreement and the decision of the arbitrator is

final and binding on all parties. Cooper

Declaration, Exhibit A (Copy of § Inside

Agreement), §§ 1.04-1.06.

Section 1.06 (A-2) of the Inside Agreement

provides that "these provisions shall be the

sole and exclusive remedy for any claims or

alleged violation of any Section of this

Agreement or any grievances arising pursuant to

any of the provisions of this Agreement." The

same section continues: "The final decision of

the grievances resolution bodies [the Committee

and the Council) shall be final and binding

upon all parties hereto, including the

employees employed by employers, pursuant to

the provisions of this Agreement."2

In addition to its res judicata argument,

Fischbach & Moore asserts that plaintiff’s

2 Section 1.06 (A-2) concludes by stating

that any party who "initiates legal proceedings

attacking . . . the final decision of an

arbitration, appeals or appellate body

established pursuant to this section. . . who

is unsuccessful in such endeavor, shall pay the

reasonable costs and attorney fees of the party

prevailing in such action or litigation."

. 10

claim is barred by a six-month statute of

limitations on breach of contract claims

contained in 29 U.S.C. § 160(b). Since

plaintiff’s complaint was filed in February,

1987, all breaches occurring before July, 1986

allegedly are not actionable. Plaintiff

responds that the applicable statute of

limitations is four years.

In addition to opposing the motion on the

merits, plaintiff alternatively argues that

summary.judgment would be premature at

this time under Fed. R. Civ. Proc. 56(f).

Plaintiff has also moved for sanctions.

DISCUSSION

: Summary Judaqment Standard

In order to prevail on a motion for

summary judgment, the moving party must

establish that no material fact is in "genuine

dispute" such that a "reasonable jury could not

return a verdict for the non-moving party."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986); Fuller v. Frank, 916 F.2d 558, 562

n. 6 (9th Cir. 1990).

po Fischbach & Moore’s Motion for Summary

Judgment

A. The Finality Doctrine

As recognized by § 203 (dad) of the Labor

Management Relations Act ("LMRA") and the

Supreme Court, arbitration provisions in

collective bargaining agreements generally are

final and district courts do not have the power

to review the merits of arbitration rulings.

See United States Steel Workers v. American

Manufacturing Company, 363 U.S. 564 (1960);

United States Steel Workers v. Warrior & Gulf

Navigation Co., 363 U.S. 574 (1960); United

States Steel Workers v. Enterprise Wheel & Car

Corp., 363 U.S. 593 (1960) ("Steel Workers

Trilogy") ; A > & T Technologies Vv.

Communications Workers, 475 U.S. 643, 648

(1985) (reaffirming Steel Workers Trilogy).

As described above, the evidence presented

to the court suggests that plaintiff did not

file a grievance attacking the hiring

procedures of Fischbach & Moore. Fischbach &

Moore argues that this is immaterial because

Mt Ca Rae ls

the Local and Fischbach & Moore. properly

brought the issue to the Committee under § 301

of the LMRA, since the question involved

contract interpretation. According to

Fischbach & Moore, grievances under the Inside

Agreement are not initiated by individual

members; rather, such grievances are initiated

by the Local Union or the local National

Electrical Contractors Association chapter. In

whatever manner the arbitration process is

initiated, it is asserted that the individual’s

lack of participation "does not affect the

binding nature of the decision." See Mosely

Declaration, para. 20.

If this case presented a typical union-

employee-employer relationship, Fischbach &

Moore’s argument on this point would be

persuasive. Because plaintiff, as a member of

the Union, is a signatory to the Inside

Agreement, it is clear that his participation

is not necessary in order for the arbitrator to

render a final, non-appealable decision on this

issue.

However, where the union does not fairly

represent the employee against the employer,

the finality doctrine of Steel Workers Trilogy

does not apply. Hines v. Anchor Motor Freight,

424 U.S. 554, 563 (1975). In Hines v. Anchor

Motor Freight, 424 U.S. 554, 563 (1975). In

Hines, union truck drivers were allegedly

discharged without cause by their employer.

Id., at 556-57. The union took the matter to

the arbitration committee, but failed to

competently investigate or present the drivers’

defense. Id., at 559-60 n. 4. The discharge

was upheld by the arbitration committee. Id.,

at 557-58. The district court dismissed the

drivers’ complaint because of the finality

doctrine, Id., at 559, and the Court of Appeals

affirmed. Id., at 560.

In reversing, the Supreme Court held:

The union’s breach of duty relieves

the employee of an express or

implied requirement that disputes be

settled through contractual

grievance procedures; if it

seriously undermines the integrity

of the arbitral process the union’s

breach also removes the bar of the

finality provisions of the contract.

Gai. OC 5367. By so holding, the Court

explicitly rejected the policy argument urged

by the employer, who reasoned that "the

employer must be protected from relitigation by

the express contractual provision declaring a

decision to be final and binding." Id., See

also Vaca v. Sipes, 386 U.S. 171, 186 (1967)

(employer may not insist on exhaustion when

union has breached its representation duty in

processing grievance). This court recognizes

the employer’s policy argument in Hines as

being identical to that asserted by Fischbach

& Moore in this case.

The Ninth Circuit, in considering the

finality doctrine where the union has unclean

hands, has held:

To us, it makes little difference

whether the union subverts the

arbitration process by refusing to

proceed as in Vaca or follows the

arbitration trail to the end, but in

So doing subverts the arbitration

process by failing to fairly

represent the employee. In neither

case, does the employee receive fair

representation.

Vv a -, 501 F.2d 179, 180

(9th Cir. 1974).

B. Finali in this Case

Fischbach & Moore’s efforts to distinguish

Hines and its progeny are unpersuasive.

Fischbach & Moore argues that each of the cases

cited above, as well as some others cited by

plaintiff, involve suits against employers in

which the employee is seeking to preserve

"uniquely personal" rights encompassed by §

301. As examples of such rights, Fischbach &

Moore notes that the Supreme Court in Hines

mentioned wages, hours, overtime pay, and

wrongful discharge.

In this case, Fischbach & Moore argues

that plaintiff is asserting a mere contractual

right under the Inside Agreement. Fischbach &

Moore’s position creates a distinction without

a difference. Plaintiff is suing the employer

for breach of the collective bargaining

agreement. If plaintiff is improperly

relegated to the out of work list because of

Fischbach & Moore’s conduct, then plaintiff’s

asserted right falls squarely within those

contemplated by Hines, regardless of the

semantic labels Fischbach & Moore wishes to

attach to that right.3

In order to avail himself of the

protection afforded by Hines in resisting a

motion for summary judgment, plaintiff must

demonstrate that a genuine issue of material

fact exists as to whether the union’s breach of

duty "seriously undermines the integrity of the

arbitral process..." Hines, 424 U.S. at 567.

The parties have focused on the impartiality of

the Committee and the Council, without

reference to the relationship between the Local

and plaintiff. See Opposition Brief. pp. 7-13;

Reply Brief, pp. 7-12. By so doing, Fischbach

& Moore and plaintiff have ignored the crucial

issue under Hines. The issue is not the

3 If Fischbach & Moore’s position were

correct, then no remedy would exist for an

employee unfairly represented by his or her

union where the arbitration dispute involved

"contractual" rights. Accepting Fischbach &

Moore’s position, this court would be forced to

conclude that no matter how egregious the

union’s lack of representation, the "safety

net" created by Hines would not be available

Simply because of the label attached to the

right. This court declines to accept this

reading of Hines.

partiality or corruptness of the Council and

the Committee; rather,the issue is whether

plaintiff, as a member of the Local allegedly

injured by Fischbach & Moore’s’ transfer

practices, was fairly represented by the Local

in the administrative process. If not, then

the finality doctrine does not apply.

This court finds that a genuine issue of

material fact exists as to whether a conflict

of interest existed between plaintiff and the

Local, such that the Local did not represent

plaintiff’s position fairly before the

Committee and the Council. Specifically, the

participation of the current Local business

manager Tom Pridemore may have tainted the

arbitration proceeding. Pridemore, who is a

defendant in the present action, submitted a

declaration to this court in support of

Fischbach & Moore’s earlier motion for summary

judgment. In that declaration, Pridemore

verified certain business records of Fischbach

& Moore, and concluded: "Therefore, Fischbach

& Moore, Inc. and Corbin-Dykes Electric are one

employer for the purposes of the hiring hall

agreement." Cooper Declaration, Exhibit Dp

(Pridemore Declaration contained therein) .4

However, once this court ruled against

Fischbach & Moore, and the arbitration process

began, Pridemore became the Local’s (and

therefore plaintiff’s) advocate in attacking

the hiring practices of Fischbach & Moore. In

the Labor-Management Committee hearing,

Pridemore sat as a union representative, as did

two other defendants in this case. More

importantly, when the issue went to the

Council, Pridemore signed the Local’s brief and

appeared for the Local at the hearing. Cooper

Declaration, Exhibits E, G.

Given the history of this case, the court

4 Fischbach & Moore attempts to limit the

impact of this declaration by stating that it

was purely an evidentiary vehicle, but did not

"state any position either ‘for’ or ‘against’

Plaintiff Moore." This statement is incorrect.

As noted above, Pridemore concluded in his

declaration that F & M and Corbin-Dykes were

one entity, a position which is directly

contrary to Moore’s claim in this lawsuit and

the purported position of the Local in the

arbitration process.

concludes that an issue of fact remains as to

the Local’s fulfillment of its duty of fair

representation. 5 Accordingly, the Hines

exception may apply to this case and preclude

Fischbach & Moore from relying on the finality

doctrine enunciated in Steel Workers Trilogy.

Therefore, Fischbach & Moore’s motion for

summary judgment on this ground must be denied.

C. Statute of Limitations

Fischbach & Moore asserts in the

alternative that a breach of contract claim

against an employer’ must be brought within six

months under 29 U.S.C. § 160(b). Plaintiff

argues that the relevant statute of limitations

5 The court takes judicial notice of the

evidence received during the trial in Civil

Case No. 85-1719-B. Accordingly, the court

recognizes the long running dispute between

plaintiff and the Local, a dispute which has

now been before this court for more than five

years. Although this court is not in a

position to quantify the effect of this dispute

on the ability of the Local to oppose Fischbach

& Moore on plaintiff’s behalf in an arbitration

context, the court observes that the

deterioration of the relationship between

plaintiff and his union raises’ serious

questions as to whether the finality doctrine

should be imposed on plaintiff.

is four years, pursuant to California law.

Both sides cite DelCostello v. Teamsters, 462

U.S. 151 (1983), in which the Court held that

in the absence of an applicable federal statute

of limitations, courts should apply the most

closely analogous statute of limitations under

state law. In DelCostello, the employee’s suit

sought to vacate an arbitration award, and the

Court found that there was nO closely analogous

state statute of limitations. Id., at 166-68.

Accordingly, the Court applied the six-month

Statute of limitations provided by § 10(b) of

the National Labor Relations Act. Id., at 171.

However, where the suit is for breach of the

collective bargaining agreement against the

employer, the Court applies the state statute

of limitations for breach of contract. See

Auto Workers v. Hoosier Cardinal Corp., 383

U.S. 696, 702 (1966).

In this case, while an arbitration award

is involved, plaintiff’s cause of action

against Fischbach & Moore, unlike the complaint

in DelCostello, does not seek to vacate the

arbitration award. Rather, plaintiff is

alleging violation of the collective bargaining

agreement by the employer, as in Hoosier

Cardinal. Therefore, the California breach of

contract statute applies, and Fischbach &

Moore’s motion for summary judgment on this

ground must be denied.

III. Discovery and Evidentiary Disputes

Because the court has reached its ruling

based only upon the evidence and declarations

cited in this memorandum opinion, the court

need not reach the various evidentiary issues

asserted by the parties. Moreover, plaintiff’s

argument under Rule 56(f) is moot since the

motion for summary judgment has been denied on

the record presently before the court.

IV. Sanctions

Plaintiff requests sanctions against

counsel for Fiechbach & Moore. No good cause

appearing, the motion is’ denied.

IT IS SO ORDERED. DATED: March 19, 1991

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Order affirming magistrate judge’s order;

bifurcating trial; granting in part and denying

in part motion for summary judgment by

defendant IBEW; granting in part and denying in

part motion for summary judgment by defendant

Local 569

May 2, 1991

The above captioned matter came on

regularly for hearing on April 1, 1991, before

the Honorable Rudi M. Brewster. Plaintiff

Lawrence Moore appeared in propria persona;

Lewis N. Levy, Esq., appeared on behalf of

defendant Local 569 of the International

Brotherhood of Electrical Workers and the

individual Local defendants (Local 569); Terry

R. Yellig, Esq., appeared on behalf of

defendant International Brotherhood of

Electrical Workers and the individual

International defendants (IBEW); and Norman R.

Allenby, Esq., and Dorothy J. Almour, Esq.,

appeared on behalf of defendant Fischbach &

Moore (F & M). Upon consideration of the

supporting and opposing briefs, and the oral

argument thereon, the court hereby enters the

following order.

I. Appeal from the Magistrate Judge’s Order

The order of the Magistrate Judge requiring

plaintiff to undergo a physical examination at

the IBEW’s expense is affirmed. The court

finds that plaintiff’s objections to the

qualifications of the doctor selected by the

IBEW are without merit. Likewise, the order of

the Magistrate Judge denying the IBEW’s request

that plaintiff undergo a mental exam is

affirmed.

II. Motion for Separate Trial by F & M

The court finds that the fifth cause of

action against defendant F & M is sufficiently

independent from plaintiff’s other causes of

action that bifurcation is warranted. Subject

to change as future events may warrant,1

1 The court notes that F & M has filed a

motion for reconsideration of the order denying

summary judgment in its favor, and a new motion

for dismissal based upon plaintiff’s alleged

lack of standing. Concurrently, plaintiff is

seeking leave to amend his third amended

complaint (TAC) in order to expand the scope of

his allegations against F & M.

the court will bifurcate the trial so that the

fifth cause of action against F & M will

proceed first before the jury, after which the

jury shall return a verdict on that cause of

action only, followed by the remainder of the

case against Local 569 and the IBEW before the

same jury.2

III. Motion for Summary Judgment by IBEW

A. First Cause of Action: Duty of Fair

Representation

The IBEW argues that plaintiff can only

bring this claim against Local 569, since the

latter defendant is the exclusive bargaining

representative of the union members. The law

is clear that "(ajn international or regional

affiliate of a local union may not be liable

2 The court recognizes the reciprocal impact

the bifurcated trials may have on each other,

e.t., if F & M’s transfer policy does not

constitute a breach of the Inside Agreement,

then a _ fortiori the Local did not breach its

duty of fair representation in failing to

protect its members from said policy. Such

impacts shall be managed by the court as they

arise, and do not outweigh the prejudice which

F & M will endure if the case is not

bifurcated.

for the local’s unfair labor practices merely

by virtue of its affiliation with the local."

Abreen Corp. v. Laborers’ Int’l Union, 709 F.2d

748, 757 (lst Cir. 1983), cert. denied, 464

U.S. 1040 (1984). As the First Circuit has

held in applying § 301 of the Labor Management

Relations Act (LMRA) :

A plaintiff seeking to place

liability on an international for a

local’s allegedly illegal conduct

must further show that the local

acted as the international’s agent

or that the international

independently participated in the

unlawful conduct.

Boroweic v. Local No. 1570, 889 F.2d 23, 26

(lst Cir. 1989) (citing Abreen, 709 F.2d at

757, and Carbon Fuel Co. v. United Mine Workers

of America, 444 U.S. 212, 213-17 (1979).

In response to the general rule, plaintiff

posits two factual assertions: (1) the IBEW

has a veto power over all local union

contracts; and (2) the IBEW signed and ratified

the Local’s contract with Atkinson Mechanical

Contractors (Atkinson) .3

3 The Atkinson Agreement was actually

Upon review of the Atkinson Agreement, the

court finds that the IBEW’s position is

persuasive. The signature pages of the

Atkinson Agreement reveal that only the Local

Business Manager, defendant Paul Blackwood,

signed the document. On that page, there is an

IBEW stamp which states, "Portion agreed to and

Signed by LU 569 is hereby approved." This

stamp of approval reflects the veto power

exercised by the International.

In responding to the Barry Declaration,

plaintiff has relied almost exclusively on

conclusory allegations. Plaintiff has not

Supplied this court with any tangible evidence,

e.g., deposition excerpts or documents,

suggesting that the IBEW engaged in affirmative

conduct or unreasonably meddled in the Local’s

affairs with respect to plaintiff and his fair

representation claims.

negotiated by Atkinson and the Imperial County

Building and Construction Trades Council, AFL-

CIO, with which the Local is affiliated. The

contract involved work to be performed on the

Ormesa Geothermal Project.

Based upon all of the above, the IBEW’s

motion for summary judgment on the first cause

of action is granted.

B. Second Cause of Action: Prima Facie Tort,

or Blacklisting, and Ninth Cause of Action:

Intentional Infliction of Emotional Distress

The IBEW argues that jurisdiction over

‘these tort claims is preempted by the exclusive

jurisdiction of the National Labor Relations

Board (NLRB) . The IBEW is correct, as the

preemptive effect of the NLRA is not altered by

plaintiff’s characterization of these

allegations as state based causes of action.

See Magnuson v. Burlington Northern, Inc., 576

F.2d 1367, 1369 (9th Cir.) ("Artful pleading

cannot conceal the reality that the gravamen of

the complaint is wrongful discharge.'), cert.

denied, 439 U.S. 930 (1978).

In Magnuson, the court went on to hold

that the complaint did not fit within "the

narrow exception to federal preemption"

explained in Farmer _v. United Brotherhood of

ters i , 430 U.S. 290

(1977). Magnuson, 576 F.2d at 1369.

Preemption will not apply if the wrongful

conduct is "a merely peripheral concern" of

federal law, and affects interests which are

"deeply rooted in local feelings and

responsibility." Farmer, 430 U.S. 296 (quoting

San Diego Building Trades Council v. Garmon,

359 U.S. 236, 243-44 (1959)). In Magnuson, the

Ninth Circuit concluded, "Unlike Farmer, this

action is based on a matrix of facts which are

inextricably intertwined with the grievance

machinery of the collective bargaining

agreement and of the R.L.A." Magnuson, 576

f.2d at 1369 (emphasis supplied).

In this case, it is clear that plaintiff’s

allegations are based on a "matrix of facts"

which are "inextricably intertwined" with the

NLRA. The Farmer exception is "narrow" and was

not "a signal that these causes of action for

infliction of emotional distress were generally

exempted from preemption." Id. Plaintiff will

not be permitted to use artful pleading to

avoid preemption. Therefore, the IBEW’s motion

for summary judgment on the second and ninth

causes of action is granted.

C. Third Cause of Action: Violations of § 101

of the Labor-Management Reporting and

Disclosure Act (LMRDA)

1. Direct Restrictions Imposed by the IBEW

on the Democratic Process

Plaintiff alleges LMRDA violations based

upon an IBEW rule which prevented him from

running for IBEW convention delegate in 1986.

Complaint, para. 175. Under Titles I and IV of

the LMRDA, a union may adopt reasonable rules

relating to the nominating and elective

process. Steel Workers v. Sadlowski, 457 U.S.

102, 111 (1982). However, where an eligibility

rule has a "large" undemocratic effect, the

rule must serve a valid union interest. Doyle

¥. Brock, 821 F.2d 778, 785 (D.C.Cir. 1987)

(citing Local 3489, United Steelworkers v.

Usery, 429 U.S. 305, 310 (1977)).

Plaintiff’s application of Doyle and Usery

to this case is strained. In those two cases,

the court invalidated eligibility provisions

which required that candidates attend fifty

percent of union meetings over the last year

(Doyle) or three years (Usery). In Doyle, the

court noted that both provisions "rendered 97%

of the membership ineligible to run for

office." Doyle, 821 F.2d at 783 (emphasis

supplied).

Because plaintiff falls far short of the

anti-democratic showing made in the cases upon

which he relies, the deferential standard of

Sadlowski applies. Plaintiff has not created

a genuine issue of material fact as to the

reasonableness of the policy. Therefore,

summary judgment is granted to the IBEW as to

this portion of the third cause of action.

2. IBEW Liability for Undemocratic Acts

of the Local; Agency under the LMRDA

In order to hold the IBEW liable for the

misconduct of the Local defendants, plaintiff

must demonstrate that the IBEW ratified the

Local’s conduct. Rodonich v. House Wreckers

Union Local 95, 817 F.2d 967, 973-74 (2nd Cir.

1987). In Rodonich, the Second Circuit held

that "ratification would occur if [the

international] affirmed the discipline imposed

on plaintiffs with full knowledge that it was

part of an overall scheme to suppress dissent

in violation of the LMRDA." Id. at 974. The

court concluded that ratification did not

occur, even though the International affirmed

the decisions of the Local trial board against

plaintiffs. Id.

Under Rodonich, plaintiff has not created

a genuine issue of material fact with respect

to ratification.4 Therefore, to the extent

plaintiff’s LMRDA claims seek to impose broad

agency

liability on the IBEW, the motion for summary

judgment on the third cause of action is

granted.

3. Building Trades Assessment

The IBEW asserts that count 5 is moot

because the alleged violation was corrected by

4 Plaintiff’s citation to Aquirre v.

Automotive Teamsters, 633 F.2d 168, 170 (9th

Cir. 1980) is unpersuasive, as that decision

considered agency principles with respect to

union officers and the local union, not the

local and the International. Although the

International was also a defendant in Aguirre,

the discussion does not implicate the concept

of local-international agency. —

a second ballot which was secret, and because

plaintiff received a refund of the amount that

Local No. 569 improperly collected from him.

See McCann Declaration, Attachments 6, 16.

However, plaintiff makes credible

allegations that the purportedly corrective

vote was also taken in violation of the LMRDA.

Specifically, plaintiff alleges: (1) there

were not two readings at two separate union

meetings as required by Local 569’s bylaws and

the notice requirements of the LMRDA; (2) there

was no mention of any retroactive effect; and

(3) non-affected members’ voted. Moore

Declaration, para. 15.

Because plaintiff’s allegations raise

genuine issues of material fact as to the

validity of the second vote and the IBEW’s role

in its administration, the motion for summary

judgment on count five of the third cause of

action is denied. Accordingly, count five

constitutes the only surviving allegation of

the third cause of action against the IBEW.

D. Seventh Cause of Action: Breach of

Contract

This court has jurisdiction under § 301(a)

of the LMRA over a suit brought by a union

member against an international union for

violation of the union constitution. Kinney v.

Int’l Brotherhood of Elec. Workers, 669 F.2d

1222, 1229 (9th Cir. 1962). The individual

IBEW defendants argue that no provision of the

IBEW Constitution creates contractual

liability. Plaintiff cites Article XxII,

Section 3, and Article XXVII, Section 1, of the

IBEW Constitution. See Complaint, para. 231.

The court finds that triable issues of fact

remain as to the liability of the individual

IBEW dutentente under the relevant articles,

and the vicarious liability of the IBEW for the

conduct of those individual defendants.5

5 The IBEW’s reliance on Teamsters Local 420

v. Traweek, 867 F.2d 500, 508, is misplaced.

In Traweek the Ninth Circuit only considered a

suit against two non-officer members, where the

plaintiffs eschewed the internal grievance

process. In finding that the district court

did not have subject matter jurisdiction, the

court in Traweek did not foreclose suits for

declaratory relief against union officers in

their official capacities, as in this case.

E. ight ause o ction: Violation o

09 0

Section 609 of the LMRDA states that it

“Shall be unlawful for any labor organization

"to fine, suspend, expel, or otherwise

discipline any of its members for exercising

any right to which he is entitled under the

provisions of this chapter." The phrase

"otherwise discipline" refers "only to actions

‘undertaken under color of the union’s right to

control the member’s conduct in order to

protect the interests of the union or its

membership.’" Breininger v. Sheet Metal

Workers Intern., 110 S.Ct. 424, 439 (1989)

(quoting Miller v. Holden, 535 F.2d 912, 915

(5th ote. 1076)).

In this case, the IBEW asserts that

plaintiff is only charging individual

retaliation, as opposed to the improper use of

‘the union’s formal discipline machinery.

However, plaintiff’s eighth cause of action

does not refer to ad hoc retaliation, but

instead to official conduct which led to his

suspension and expulsion. TAC, para 249.

Therefore, the motion for summary judgment on

the eighth cause of action is denied.

IV. Local 569’s Motion for Summary Judgment

A. First Cause of Action: Duty of Fair

Representation

1. Count 1: The Hiring Hall

In count 1, plaintiff charges a variety of

breaches of the duty of fair representation

which relate to Local 569’s administration of

the hiring hall.

a. Short Call Abuse

Local 569 alleges that this claim is

barred by the six month statute of limitations

applicable to fair representation claims, as

contained in § 10(b) of the LMRDA. See Conle

v. IBEW Local 639, 810 F.2d 913, 915 (9th Cir.

1987) (applying six month statute to fair

representation claims involving hiring hall).

Since plaintiff filed his only charge on this

issue with the NLRB in June, 1985, defendants

posit that the claim accrued well before the

complaint was filed in February, 1987.

However, plaintiff raises a triable issue

36.

of material fact with respect to Local 569’s

alleged continuing wrongful administration of

the out-of-work list (List). See Moore

Declaration, para. 25, 26. Although plaintiff

filed one formal complaint in June, 1985 on

this issue, that fact alone does not signify

necessarily that the conduct itself ceased.

Accordingly, the short call Charges are not

time barred.

b. Removal of Plaintiff from the List

i a 87

Defendants argue that plaintiff’s removal

was performed with reference to objective, non-

discriminatory criteria. Smith Declaration,

para. 22 (removal on this basis not unusual) ;

Exhibit I (removal of Conrad Mollar for same

reason). Moreover, defendants note that

plaintiff himself had previously filed charges

against other members in which he alleged

double-booking, and thus was aware of the

Local’s prohibition against the practice.

In his Declaration, plaintiff states, "I

know that it is the practice all over the

country for union electricians to maintain

their position on their home out of work lists

while working out of town." Moore Declaration,

para. 24. In light of this declaration, the

court finds that the removal of one other

electrician does not prove that the policy was

uniformly applied. Because the declarations

are in direct conflict, there is a genuine

issue of material fact as to whether this

policy uniformly existed at the time plaintiff

was removed, and summary judgment is

inappropriate on these charges.

c. Required Registration in Group II in

May or June, 1987

By his Declaration, plaintiff has

established an issue of material fact as to

whether this relegation was retaliatory and

based upon his practice of printing individual

defendants’ salaries and expense accounts in

his dissident union newsletter.

d. Transfer of George England

Local 569 asserts that an electrician may

be tvénddasied from one employer to another,

without going back on the List, if the

electrician possesses "special skills" and the

’ 38

Local approves the transfer. According to the

Local, England had detailed knowledge of the

work being performed at Berg Electric, and thus

had the "special skills" required for a

transfer when the work being performed at Berg

was moved to Chula Vista Electric by the

general contractor.

However, the Tarleton Declaration

indicates that Tom Tarleton worked on the Chula

Vista job with England, and [t]he job was

ordinary electrical work and required no

special skills." Tarleton Declaration, para.

8. Accordingly, a genuine issue of fact exists

as to the alleged "back-dooring" of England.

e. Sound Book Claim

Plaintiff recovered $43,156.31 in damages

in the first trial, as the jury found that the

Local breached its duty of fair representation

by failing to notify plaintiff that he could

remain on the List while working under the

Sound Agreement. The doctrine of claim

preclusion bars all grounds for recovery which

could have been asserted, whether they were or

not, in a prior suit between the same parties

on the same cause of action. McClain v.

Apodaca, 793 F.2d 1031 (9th Cir. 1986).

Plaintiff’s response to this argument is

unpersuaSsive. Plaintiff offers no authority

suggesting that disappointment with the size of

a jury’s verdict allows a claim to be brought

against the same defendant twice. Accordingly,

summary judgment should be granted on the sound

book claim. —

Based upon all of the above, the Local’s

motion for summary judgment on count one is

denied except with respect to the sound book

claim, upon which summary judgment is granted.

2. Counts 2 and 3: Grievance Against

Atkinson

In resisting summary judgment on these

counts, plaintiff relies on his allegations of

collusion between Atkinson and the Local.

Moore Declaration, para. 8, 9, and 10. Most

importantly, plaintiff has provided telephone

records which show that Richard White was

communicating with the Local while plaintiff

was driving to the Atkinson job site in the

Imperial Valley. While defendants portray

these calls as "routine," their existence,

coupled with the deposition testimony cited by

plaintiff in para. 9 and 10 of his declaration,

establish facts upon which a reasonable jury

could base a verdict in plaintiff’s favor.

Accordingly, summary judgment is denied on

counts two and three.

3. Count 4: Ratification of Collective

Bargaining Agreements

In the context of the collective

bargaining process, the duty of fair

representation is breached only if the disputed

union procedures are wholly irrational or

arbitrary. Airline Pilots Association v.

O'Neill, U.S. , 91 DAR 3211, 3214 (March

19, 1991). According to Local 569, since the

mail ballot was conducted in accordance with

the IBEW Constitution and for a legitimate

union interest, this claim must be dismissed as

a matter of law. However, plaintiff’s

countervailing evidence establishes sufficient

irregularity to create a genuine issue of

material fact. Moore Declaration, para. 27

(ruling by Robbins concerning return

addresses).

With respect to plaintiff’s charges

concerning the 1987 amendment to the prior

Agreement, there is also a triable issue of

fact. Even. if Barry properly delegated the

authority to implement the amendment, the court

is not convinced that the delegates exercised

it properly. Accordingly, the motion for

summary judgment on count 4 is denied.

4. Count 5: Derogation of Work Status

This count refers to plaintiff’s most

recent derogation, when defendant Pridemore put

him on Group II after he re-signed the List in

January, 1990. Plaintiff has raised an issue

of fact as to whether the assignment to Group

II was retaliatory. Most importantly,

plaintiff alleges that he did not have the

requisite experience for Group I because he had

been kept out of work by defendants’ allegedly

discriminatory practices in the last four

years. Therefore, Local 569’s motion for

summary judgment on count 5 is denied.

5. : s olic

Plaintiff originally complained abour F &

M’s transfer policy on March 1, 1988.

Defendants assert that under the six month

statute of limitations, plaintiff’s complaint

can only reach ~back to October 1, 1987.

Therefore, defendants argue that plaintiff must

show damage between October 1, 1987, and the

cessation of the transfer policy, which he

cannot do because he was not even on the List

during this period.

At the hearing, the court requested

additional factual briefing on the standing

issue, and this aspect of the Local's motion

for summary judgment is accordingly taken under

submission. 6

B. Second Cause of Action: Prima Facie

Tort, or Blacklisting, and Ninth

ircuit Cause of Action: Intentional

Infliction of Emotional Distress

Like the IBEW, the Local defendants argue

6 The standing issue is also the basis of a

new motion to dismiss filed by F & M. See

supra n.1.

that these claims are preempted by the LMRA.

However, while the IBEW claimed preemption

under § 10(a) of the LMRA, the Local is

asserting preemption under § 301 of the LMRA,

which is appropriate as Local 569 is a

Signatory to the collective bargaining

agreement at issue.

Under Allis-Chalmers Corp. v. Lueck, 471

U.S. 202, 211-13 (1985), § 301 preempts any

state claims which could only be resolved by

reference to a collective bargaining agreement.

Where the terms of a collective bargaining

agreement govern job security or employment

opportunities, any state tort claim intertwined

with those pro... sions is preempted. Jackson v.

Southern California Gas Co., 881 F.2d 638, 643

(9th Cir. 1989). This circuit has recently held

that the preemptive effect of § 301 is negated

only when the right asserted would exist even

in the absence of a collective bargaining

agreement, e.g., "[t]he nonnegotiable right not

to be discharged for filing a workers’

compensation [claim] ...." Eldridge v. Felec

| Services, Inc., 920 F.2d 1434, 1438 (9th Cir.

1990).

Under this authority, plaintiff must

establish that his claims in the second and

ninth causes of action are wholly unrelated to

the collective bargaining agreement

(Agreement).7 Clearly, each one of plaintiff’s

allegations relate in some way to the Agreement

and the defendants’ administration and alleged

manipulation of said Agreement. The

allegations of blacklisting and emotional

distress all have their genesis in improper

conduct under the Agreement. Therefore, these

claims are preempted.8

7 Plaintiff’s alternative argument, that his

blacklisting tort claim may be considered

improper "discipline" under the LMRDA, is

foreclosed by Breininger, 110 S.Ct. at 440

(informal "blacklisting" and other ad hoc

practices do not constitute "discipline" under

the LMRDA).

8 Plaintiff is unpersuasive in his discussion

of pendent jurisdiction, which does not apply

where claims are preempted. Plaintiff’s

citation to Young v. Anthony’s Fish Grottos,

Inc., 830 F.2d 993, 999 (9th Cir. 1987), is

taken out of context, as the court’s decision

considered pendent jurisdiction over tort

claims in the § 301 context only insofar as

Where claims are preempted by § 310, they

must be dismissed unless plaintiff has

exhausted his contractual grievance.

procedures. Jackson, 881 F.2d at 646.

However, the employee "may obtain judicial

review of his claim despite his failure to

exhaust contractual remedies if he can show

that the union breached its duty of fair

representation." Id. (citing Vaca v. Sipes,

386 U.S. 171, 185-86 (1967)). Here, there is

a genuine issue of material fact as to whether

Local 569 breached this duty. See supra pp.

10-15. Therefore, although these claims are

preempted by § 301, preemption does not prevent

this court from hearing plaintiff’s claims.

Accordingly, Local 569’s motion for summary

judgment is denied on the amoend and ninth

causes of action.9

removal was concerned. Indeed, among the

rationale supporting the exercise of pendent

jurisdiction was "the significant federal

interest in deciding the preemption defense."

Id. (emphasis supplied).

9 The court finds that this holding is not

inconsistent with the court’s holding on the

e. j Caus ion: Violations

1. Counts 1 and 2: Delegate Election

and Publication of Attacks in

Newsletter

Local 569 is entitled to summary judgment

on the delegate election issue because the rule

preventing a member from running for delegate

and business manager at the same time is not

unreasonable. See supra p. 6. Moreover, with

respect to the newsletter claim, there is no

right created by statute or otherwise providing

a right of rebuttal in union publications.

Even if the disputed articles amounted to

campaign literature financed by the incumbent

regime, this allegation does not suggest that

plaintiff was prevented from independently

responding, but merely that plaintiff was not

IBEW’s motion for summary judgment on the

second and ninth causes of action, as the

latter ruling did not implicate the duty of

fair representation owed by the Local. Indeed,

the court held that the IBEW is not under a

duty of fair representation to plaintiff. See

supra pp. 3-4. With respect to the IBEW,

plaintiff’s preempted claims are within the

exclusive jurisdiction of the NLRB under §

10(a), and plaintiff has not made any

allegations suggesting that his pursuit of

grievances under § 10(a) would be futile.

provided free rebuttal space. Accordingly,

summary judgment is granted on the delegate

election and newsletter claims contained in

counts 1 and 2. TAC, para. 175, 176, 184, 185.

2. Count 3: Right to Sue

Despite defendants’ characterization of

count three as implicating the validity of the

1986 and 1989 elections, the complaint

indicates that plaintiff is attempting to

vindicate his right to sue. See para. 190,

193. Plaintiff is seeking damages

under Title I based upon the alleged

infringement of his right to sue, and triable

issues of fact remain oon that’ clain.

Accordingly, the motion for summary judgment on

count 3 is denied.

3. Count 4: Wrongful Discipline

Plaintiff alleges that he was unfairly

disciplined by the trial boards convened in

January, 1987, November, 1987, and March, 1990.

With respect to the first two proceedings,

plaintiff’s opposition amounts to nothing more

than a repeat of his defense to the charges

brought by Charles Morrison. Even assuming

that plaintiff was innocent, however, plaintiff

has failed to create an issue of fact as to

whether the conduct of the trial boards

violated- his LMRDA Title I rights. It is not

for this court to determine the validity of the

outcome, but merely whether the outcome was

tainted by the procedures used, and whether

there was some evidence for the outcome.

In: seeking summary judgment of the

allegations based upon the March 5, 1990 trial

. board, defendants contend that plaintiff failed

to exhaust his internal appeals. Plaintiff

admits that he did not appeal to the IBEW, but

argues futility. There is at least a triable

issue of fact as to whether an appeal at this

stage would have been futile. Accordingly,

summary judgment is granted on count 4 only

with respect to the first two trial boards.

4. Count 5: Building Trades Assessment

Because plaintiff makes credible

allegations concerning the votes taken on this

assessment, summary judgment is denied on count

Plaintiff has alleged financial

improprieties concerning a car auction, paid

vacations for union officers, and pension

contributions. Local 569’s contrary assertions

merely join the issues, and do not resolve all

issues of material fact. Accordingly, the

motion for summary judgment on the fourth cause

of action is denied.

E. Sixth Cause of Action: Assault

Again, the dispute between the parties is

merely factual. Although Local 569 has

submitted declarations assailing plaintiff’s

allegations, plaintiff has answered with his

own submissions. See Moore Declaration, para.

30, 31; Rodman Declaration, para. 6 (threats) ;

Williamson Declaration, para. 7 (Degener

pointed gun at plaintiff). While Local 569 is

correct in asserting that mere words do not

constitute assault, plaintiff has demonstrated

that there is an issue of fact as to whether he

at least reasonably believed that he was about

SS eS ee

to suffer bodily injury, as required by

California law. Therefore, summary judgment on

the sixth cause of action is denied.

F. Sev tion: Breach of

Contract versus Individual Union

Officers

The court in Traweek did not foreclose

suits under § 301 for injunctive and

declaratory relief against union officers in

their official capacities. See supra n. 5 and

accompanying text. Accordingly, the motion for

summary judgment on the seventh cause of action

is denied.

IT IS SO ORDERED DATED May 2, 1991

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Order dismissing plaintiff’s objection to order

of magistrate judge; denying plaintiff’s motion

to amend and for class certification; granting

defendants’ motion for protective order;

dismissing plaintiff’s notice of default of

J.J. Barry; denying defendant Fischbach &

Moore’s motion for reconsideration; granting in

part and denying in part defendant Fischbach &

Moore’s motion to dismiss.

June 5, 1991

The above captioned matter came _ on

regularly for hearing on May 28, 1991, before

the Honorable Rudi M. Brewster. Plaintiff

Lawrence Moore appeared in propria persona;

Lewis N. Levy, Esq., appeared on behalf of

defendant Local 569 of the International

Brotherhood of Electrical Workers and the

individual Local defendants (Local 569); Terry

R. Yellig, Esq., and Jennifer T. Messersmith,

Esq., appeared on behalf of defendant

International Brotherhood of Electrical Workers

and the individual International defendants

(IBEW); Oscar F. Irwin, Esq., and Craig A.

Brown, Esq., appeared on behalf of defendant

Fischbach & Moore (F & M); and John C. Nangle,

Esq., appeared for the Department of Labor.

Upon consideration of the various motions

filed, and the oral argument thereon, the court

hereby enters the following order.

I. Plaintiff’s Objection to Order of

Magistrate Judge

Plaintiff’s objection to the order of the

Magistrate Judge quashing the subpoena served

on the Department of Labor’s motion for a

protective order, is hereby dismissed.

Plaintiff concedes that at the time of the

motion before the Magistrate Judge he had not

complied with the appropriate regulations. If

plaintiff alleges that he has now complied with

the regulations, but is still being refused

discovery, his proper remedy is a motion to

compel before the Magistrate Judge.

II. Plaintiff’s Motion to Amend and for Class

Certification

Under Fed. R. Civ. Proc. 15, leave to

amend "shall be freely given when justice so

requires." In deciding whether an amended

complaint should be allowed, this court

considers four factors: (1) undue delay; (2)

bad faith of the moving party; (3) futility of

the amendment; and (4) prejudice to the

opposing party. How Vv. ited , 481

F.2d 1187, 1190 (9th Cir. 1973). While all of |

the factors mitigate against allowing the

proposed amendments, the first and fourth

factors are particularly compelling on the

facts of this four year old case, in which

plaintiff has already amended three times.

Accordingly, the motion to amend the third

amended complaint is hereby denied.

Under Fed. R. Civ. Proc. 23, plaintiff has

not met his’ burden in seeking class

certification. Plaintiff has not demonstrated

(1) numerosity; (2) commonality; (3)

typicality; and (4) adequacy of representation.

Accordingly, the motion for class certification

is hereby denied.

III. © a id

The notices served by plaintiff on

‘ 54

defendants’ counsel are not sufficient to

compel the attendance of the parties named

therein. In order to compel the attendance of

witnesses at trial, plaintiff must comply with

Fed. R. Civ. Proc. 45(e)(1), and all other

appropriate rules. Where necessary, plaintiff

must obtain and use deposition testimony of

those witnesses beyond the subpoena power of

this court.

IV. Plaintiff’s Notice of Default of J.J.

Barry

By order entered July 5, 1989, this court

dismissed the second amended complaint against

defendant J.J. Barry for lack of personal

jurisdiction. In so doing, the court did not

differentiate between the various causes of

action asserted against Barry, but rather ruled

globally with respect to all allegations

against Barry in the second amended complaint.

Because this court lacks personal jurisdiction

over Barry, the notice of default filed by

plaintiff against Barry is dismissed.

V. F_& M’s Motion for Reconsideration

By order entered March 26, 1991, this

court denied F & M’s motion for summary

judgment, primarily on the ground that the

"finality" doctrine generally applicable to

arbitration decisions does not apply in this

case. See Order, March 26, 1991, pp. 2-11. In

that order, the court also denied the statute

of limitations defense asserted by F & M,

finding that the period applicable to a breach

of contract claim against the employer is four

years. In so doing, the court relied primarily

on Auto Workers v. Hoosier Cardinal Corp., 383

U.S. 696, 702 (1966) (where employer breaches

collective bargaining agreement, state statute

of limitations for breach of contract applies).

Cf. DelCostello v. Teamsters, 462 U.S. 134, 261

(1983) (six month statute provided by § 10(b)

of the National Labor Relations Act applies).

F & M’s motion for reconsideration is

based upon Conle v. Int’s

Electrical Workers, 810 F.2d 913 (9th Cir.

1987), where the court considered the interplay

between Hoosier Cardinal and DelCostello in

cases where a plaintiff sues both the employer

and his or her union. The Ninth Circuit

concluded that in such "hybrid" cases the six-

month statute of limitations provided by §

10(b) should apply.

Under Conley,. plaintiff’s claim is clearly

a hybrid action. Therefore, contrary to the

court’s earlier ruling, Conley requires an

application of the six-month statute of

limitations to plaintiff’s claim against F & M.

Thus, the only question on reconsideration is

whether application of the six-month period is

fatal to plaintiff’s claim against F & M. In

a letter dated March 1, 1988, plaintiff states

that he "just learned" of F & M’s transfer

policy. Almour Declaration, Exh. B.

Plaintiff’s first amended complaint, filed on

September 29, 1988, names F & M as a defendant

for the first time. Therefore, F & M argues

that the claim is time-barred.

However, F & M fails to note that

plaintiff filed his motion to amend on May 13,

1988, as reflected in the court docket.

Moreover, the official court file contains a

lodged copy of plaintiff’s first amended

complaint, also dated May 13, 1988, which for

the first time names F & M as a defendant

because of its transfer policy. Therefore,

even under the six-month statute of

limitations, plaintiff’s claim against F &M is

not time-barred.1 Accordingly, the motion for

reconsideration is denied, except insofar as

the court will apply the six-month statute of

limitations to plaintiff’s hybrid claims.

VI. F & M’s Motion to Dismiss for Lack of

Standing

On April 1, 1991, this court requested

additional briefing on the issue of plaintiff’s

standing to sue F & M. Plaintiff was

1. F & M also notes that plaintiff, by letter

dated November 11, 1987, complained about the

transfer of certain employees from F & M to

Dynalectric. However, this charge reflects

plaintiff’s dissatisfaction with an isolated

transfer, and does not suggest knowledge or

notice of the transfer policy of F & M as is

related to Corbin-Dykes. It is that policy

which forms the basis of the fifth cause of

action.

en a ee oe

terminated from F & M on May 8, 1986, and was

returned to the out-of-work list (List). On

May 4, 1987, plaintiff’s name was removed from

the List, allegedly because he was "double-

booking," i.e., working in another district

while maintaining his position on Local 569’s

List. From the date of his removal, plaintiff

lacks standing to assert his breach of contract

claim against F & M, as plaintiff was not

available for hiring after his removal from the

List. While that removal may constitute a

breach by the Local of its duty of fair

representation, see Order, May 2, 1991, pp. 10-

11, it was not accomplished with the complicity

of F & M. Accordingly, F & M cannot be held

accountable for breach of contract after May 4,

1987.

With respect to the period between May 8,

1986, and may 4, 1987, the evidence presented

to the court indicates that plaintiff was on

the List in a position where enone éligtbie to

accept calls on those dates when F & M

transferred to Corbin-Dykes. See Almour

Declaration, Exh. C; Pridemore Declaration,

Exh. A; Brownfield Declaration, Exh. A.

However, on each of the relevant dates

plaintiff passed on calls which were made

available to him by other employers. Almour

Declaration, Exh. A. From this evidentiary

fact, F & M concludes that plaintiff would also

have rejected any calls to work for Corbin-

Dykes, had such calls been made.

The court declines to accept this

interpretation. Plaintiff’s reluctance to

accept some calls, or even all odie: does not

necessarily mean that he would have passed on

a call from Corbin-Dykes during the relevant

time frame. Accordingly, the motion to dismiss

is denied with respect to the period between

May 8, 1986 and May 4, 1987.

IT IS SO ORDERED. DATED: June 5, 1991

1S ie ORLA, EMS ALOR

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Order re motions for reconsideration

and motions in limine.

July 16, 1991

The above captioned matter came on for

hearing on June 6-7, and June 11, before the

Honorable Rudi M. Brewster. Plaintiff Lawrence

Moore appeared in propria persona; Lewis N.

Levy, Esq., appeared on behalf of defendant

Local 569 of the International Brotherhood of

electrical Workers and the individual Local

defendants (Local 569); Terry R. Yellig, Esq.,

appeared on behalf of defendant International

Brotherhood of Electrical Workers and the

individual International defendants (IBEW);

Oscar F. Irwin, Esq., and Craig A. Brown, Esq.,

appeared on behalf of defendant Fischbach &

Moore (F & M). Upon consideration of the

various motions filed, and the oral argument

thereon, the court hereby enters the following

order.

I. Plaintiff’s Motion for. Reconsideration

Plaintiff’s motion for reconsideration

amounts to nothing more than reargument of

issues already passed upon by this ‘court.

Because the court finds no good cause for

reconsidering its previous rulings granting

partial summary judgment to the IBEW and the

Local, plaintiff’s motion is hereby denied in

its entirety.

II. IBEW’s Motion for Reconsideration

A. Third Cause of Action, Count 5: LMRDA

Violations (Building Trades Assessment

and Proposed B Ww e ents

In count 5 of the third cause of action,

plaintiff alleges irregularities in the voting

procedures used to ratify a building trades

assessment against the members. Moreover,

plaintiff alleges in count 5 that he was

unlawfully prevented from presenting and

supporting five proposed bylaw amendments to

the neutiewehip. The court previously granted

summary judgment to the IBEW on all counts of

plaintiff’s third cause of action except for

count 5. See Order, May 2, 1991, pp. 6-8.

With respect to the increase in the

building trades assessment, the court is now

convinced that plaintiff does not state a cause

of action under the LMRDA for this alleged

violation. While the IBEW concedes that the

second, purportedly corrective vote on the

increase wan ordered by IBEW Vice-President

McCann and IBEW Representative Robbins, the

court finds that the allegedly unlawful

procedures employed in conducting said vote

were created, directed, and administered by

Local officials.

In conformance with this court’s earlier

rulings, see Id. at p. 7, this court will not

impose broad agency liability on the IBEW.

Plaintiff has offered no credible evidence

Suggesting ratification by the IBEW of the

Local’s allegedly unlawful administration of

the second vote. Accordingly, summary judgment

is granted to the IBEW on the building trades

assessment element of count 5 of the third

cause of action.

Similarly, the court is also satisfied that

summary judgment is appropriate with respect to

plaintiff’s allegations concerning the IBEW’s

role in consideration of his five proposed

bylaw amendments. First, although plaintiff

was initially prevented from reading the

proposed bylaw amendments at two membership

meetings, it is undisputed that IBEW President

Barry personally remedied this conduct by

directing IBEW Vice-President McCann to order

Local 569 to permit the proposed. amendments to

be lawfully considered by the membership, and

three were passed.1 Accordingly, the court

finds that this episode does not provide a

cause of action against the IBEW under the

LMRDA.

1 The court recognizes that by the time the

proposed amendments were considered, plaintiff

had been suspended from the Local based upon

unrelated internal union charges. However, the

court is unaware of any authority suggesting

that a union member has a personal right to

champion or sponsor a proposed bylaw amendment

which is otherwise lawfully considered, voted

upon, and passed. The court reserves comment

on the issue which would arise if plaintiff’s

suspension had simultaneously caused the

removal of his proposed amendments from any

consideration whatsoever by the membership.

—_

2 Ok el ele eh Ce A ee on .

Second, only one of the three bylaw

amendments passed by the membership involved

dues, thereby potentially implicating § 101(a)

(3) of the LMRDA. Specifically, the subject

amendment provided for a decrease of the IBEW’s

percapita tax, and was vetoed by IBEW President

Barry pursuant to his authority under the IBEW

Constitution. Based upon the IBEW’s citation

to the legislative history, and plaintiff

having failed to provide any contrary

authority, this court concludes that § 101(a)

(3) applies only to dues increases unilaterally

imposed by union officials. Here, by contrast,

plaintiff’s complaint focuses on Barry’s veto

of a dues decrease. In other words, Barry’s

veto protected the present dues structure, as

opposed to forcing an increase on the members.

Therefore, the court concludes that summary

judgment should be granted in the IBEW’s favor

with respect to this veto. Third, the veto by

IBEW President Barry of the remaining two bylaw

amendments was not unreasonable and was within

his authority under the IBEW Constitution.2

Accordingly, summary judgment is granted to the

IBEW on any claims arising from Barry’s veto of

these two amendments.

B. Seventh Cause of Action: Breach of

Contract

As discussed above, any alleged

improprieties associated with the second vote

on the building trades assessment do not

implicate the IBEW. Moreover, IBEW President

Barry acted-within his constitutional authority

in refusing to approve the three bylaw

amendments proposed by plaintiff and approved

by the membership. Accordingly, these

allegations do not give rise to a cause of

action for breach of the IBEW Constitution.

However, summary judgment is not

appropriate with respect to the IBEW’s alleged

failure to "Dass upon and determine"

plaintiff’s charges against Local officers.

2 These amendments involved vacation time

for certain union officers and written notice

for union meetings in which collective

bargaining agreement proposals would be

discussed. ,

Pg Ba Ok Chick AOC a Tt 2 oe a

. — ? Te

SORES GAN Bley resem cnane Mn SK te

See IBEW Constitution, Art. 27, § 9. If the

court were to accept the narrow interpretation

of this section offered by the IBEW, then the

IBEW would enjoy de facto sovereign immunity

for any and all action it takes, or refuses to

take, in responding to a union member’s charge,

no matter how egregious such action or inaction

may be.3 The plain language of Article 27

requires the court reject this interpretation.

instead, plaintiff shall be permitted to

attempt to prove to the jury that the IBEW

breached its own Constitution by refusing to

investigate and consider his charges in good

faith.4

3 Reducing the argument to its most obvious

hypothetical level, the IBEW would have the

court believe that no actionable breach of

contract would occur if the International Vice-

President, in the course of fulfilling his

duties under Article 27, § 9, conducted a

completely fraudulent investigation of a

member’s charges against a local officer. The

court simply cannot accept this result.

4 If plaintiff can demonstrate collusion

between the IBEW and the Local with respect to

his internal charges, then those facts may give

rise to additional causes of action against the

IBEW.

Cc. Eighth Cause of Action: Violation of

§ 609 of the LMRDA

Upon reconsideration of the facts

surrounding this cause of action as it relates

to the IBEW, the court concludes that summary

judgment should have been granted in the IBEW’s

favor. To the extent plaintiff alleges

discipline of the type recognized under

Breininger v. Sheetmetal Workers, 110 S.Ct. 424

(1989), this cause of action lies against the

Local, not the IBEW.

Based upon all of the above, plaintiff

shall proceed to trial against the IBEW on the

seventh cause of action only, as more

specifically described above.

III. § fe) imitati

The court has previously ruled that it

would apply a six-month statute of limitations

to plaintiff’s breach of contract claim against

F & M. See Order, June 5, 1991, p. 4 (citing

Conley _v. Int’s Brotherhood of Electrical

Workers, 810 F.2d 913 (9th Cir. 1987)). The

‘ 68

MALO Sn

court concludes that this time bar applies only

to plaintiff’s filing of the complaint after

discovery of the wrongful conduct. In other

words, the six month period runs forward from

the date of discovery, preventing unjust delay

once a plaintiff discovers a claim.5

Contrary to the assertions of defendants,

however, the six-month period does not also

reach back from the date of discovery, thereby

limiting a plaintiff to six months worth of

damages. If defendants’ position were correct,

then a completely reasonable and justified

failure to discover a contractual breach would

bar a plaintiff from recovering his lawful

damages for more than a six-month period in all

cases. This is clearly not the state of the

law. Rather, a plaintiff who satisfies the

statute with respect to the filing of the

complaint is not barred by the same statute

from reaching back to sue for breaches which

occurred more than six months prior to

5 The court has already ruled that plaintiff

filed his complaint in a timely fashion.

Order, June 5, 1991, pp. 4-5.

discovery.

IV. Local 569’s Motions in Limine

A. Reference to 1986 and 1989 Elections

Because the propriety of these elections

has already been litigated, plaintiff is

precluded from attacking their validity in this

trial. Plaintiff shall not refer to these

elections as tainted, illegal, or otherwise

improper. This court considers Judge Enright’s

prior orders, which certified,.the results of

the 1986 and 1989 elections, as final judgments

barring plaintiff from attacking the validity

of said elections.

B. Reference to Disposition of Civil No.

85-1719-B

Plaintiff shall not refer to the verdict

or jury award in Civil No. 85-1719-B, except

insofar as plaintiff is prosecuting a cause of

action against the Local based upon alleged

retaliation against him due to said verdict and

award.

C. Medical Exam

The results of the medical test conducted

’ 70

epee ERA Oe OT, © <=

by defendants’ physician shall be admissible

with respect to plaintiff’s claims for

emotional distress, assuming all evidentiary

requirements are met.

D. References to January, 1987 and

November, 1987 Trial Boards

Because the court has previously granted

the Local summary judgment with respect to

these trial boards, plaintiff shall not refer

to them as tainted or otherwise unlawful.

E. Practices of Other Local Unions

Evidence concerning the practices and

conduct of other local unions’ shall _ be

inadmissible under Fed. R. Ev. 404(b).

V. Fischbach & Moore’s Motions in Limine

With respect to plaintiff’s claim for

breach of the Inside Agreement against F & M,

plaintiff shall not comment on any alleged

collusion between the IBEW and/or. Local

defendants and F & M. In addition, plaintiff

shall not comment on the debarment of F & M

from any federal contract work. Even assuming

arguendo that plaintiff’s theories concerning

motive are correct, the fact remains that

motive is not an element of a breach of

contract claim against an employer. The court

intends this prohibition to be broad in its

reach, and plaintiff is urged to refrain from

attempting to devise clever or subtle

mechanisms designed to place any such evidence

or commentary before the jury.

VI. Plaintiff's Motions in Limine

Plaintiff’s motions in limine are denied

without prejudice to the extent’ they become

relevant during trial. The court i ruling in

this manner because it cannot infer from

plaintiff’s conclusory arguments any valid

reason for excluding any of the subject

evidence.

VIII. General In Limine Rulings

In response to certain general evidentiary

and procedural matters raised by the parties

and not discussed above, the court hereby

enters the following rulings: (1) the court

RG IAEA RANI EE TIRE Le 3

shall conduct all voir dire; (2) evidentiary

disputes arising out of alleged discovery

failures or witness list omissions shall be

handled on an objection by objection basis, but

time charges shall be imposed against the

losing party; (3) events which occurred after

July, 1985 and were not litigated in the first

trial shall be admissible in this trial to the

extent they are otherwise relevant.

IT IS SO ORDERED. DATED: July 16, 1991

; UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

ORDER DENYING FISCHBACH & MOORE’S MOTION FOR

SUMMARY JUDGMENT

Nunc Pro Tunc to July 19, 1991

Filed August 7, 1991

After three days of trial in the above

captioned matter, the evidence presented by

plaintiff indicated that the cause of action

against defendant Fischbach & Moore (F & M) may

be vulnerable to summary adjudication pursuant

to Bowen v. United States Postal Service, 459,

U.S. 212-(1983). Upon consideration of this

proposition, and the oral argument thereon, the

court orally granted summary judgment in favor

of F & M. However, upon further consideration

of the issue, the court hereby rescinds its

oral ruling and denies F & M’s motion for

summary judgment.

In Bowen, plaintiff Bowen was terminated

from his position with the United States Postal

Service (Service) after an altercation with

another employee. Id. at 214. Although Bowen

filed a grievance with his union contesting his

termination, the union declined to take his

grievance to arbitration. Id. Now

dissatisfied both with his employer and his

union, Bowen filed suit in district court

alleging unlawful termination against’ the

Service and a breach of the duty of fair

representation against the union. Id.

With respect to the apportionment of

damages as between the Service and the Union,

the Court held:

It is true that the - employer

discharged the employee wrongfully

and remains liable for the

employee’s backpay. The union’s

breach of its duty of fair

representation, however, caused the

grievance procedure to malfunction

resulting in an increase in the

employee’s damages. Even though

both the employer and the union have

caused the damage suffered by the

employee, the union is responsible

for the increase in damages and, as

between the two wrongdoers, should

bear its portion of the damages

Id. at 223 (citation and footnote omitted).

In so holding, the Court created an

apportionment rule pursuant to which the

employer is responsible only for those damages

incurred by the employee through the date of

the arbitration award which would have occurred

had the union pressed the employee’s case in

good faith. The union is responsible for the

increased damages which are incurred from the

date of the tainted arbitration decision

through judgment in the district court.

In explaining the rationale underlying its

ruling, the Court stated, "Just as a

nonorganized employer may accept an employee’s

waiver of any challenge to his discharge as a

final resolution of the matter, .so should an

organized employer be able to rely on a

comparable waiver by the employee’s exclusive

representative." Id. at 226.

Applying this rationale to the instant

matter, the court was concerned that Local

569’s acquiescence in F & M’s transfer policy,

prior to the raising of any complaint by

plaintiff, constituted the type of "waiver"

discussed above. If this interpretation were

correct, the employer would be absolved from

all liability, and plaintiff’s cause of action

would stand only against his union.

However, Bowen explicitly recognized that

"this is not a situation in which either the

union or the employer has participated in the

other’s breach." Id. et 223,) mM. 11. (eiting

Vaca v. Sipes, 386 U.S. 171, 197 n.18). In the

passage cited from Vaca, the Court, relying on

relevant N.L.R.B. authority, noted that in such

situations the employer and the union would be

held jointly and severally liable.

As this language clearly indicates, Bowen

does not wholly excuse an employer’s breach of

the collective bargaining agreement, even where

the union participated in or endorsed the

breach. Instead, Bowen and its "waiver"

| discussion apply only in the context of post-

grievance liability apportionment. Because

this is a case in which the employer and the

union concede that the transfers were made with

the union’s approval, the employer and the

union are jointly and severally liable for any

§ 301 breaches arising out of the transfer

policy prior to the arbitration decision. This

analysis assumes that plaintiff can prove that

the arbitration decision was tainted by the

Local’s breach of the duty of fair

representation.

Accordingly, F & M’s motion for summary

judgment is hereby denied.

IT IS SO ORDERED DATED: AUGUST 2, 1991

eT oN 8 ne

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Findings of Fact and Conclusions of Law,

Judgment on Court Trial and Judgment on Special

Verdict - March 18, 1992

This- case came on regularly for trial on

July 16, 1991. Jury verdicts on bifurcated

issues were returned on July 24, 1991 and

August 22, 1991. Remaining non-jury issues

were tried on January 28 and 29, 1992.

Plaintiff appeared as his own attorney. Louis

Levy, Esquire appeared for Defendant Local 569

and Terrence Yellig, Esquire appeared for

Defendant IBEW.

On the first bifurcated jury trial

against Local 569 IBEW only, the jury found in

favor of defendant and against plaintiff on

Count Six of plaintiff’s First Cause of Action

alleging Breach of the Duty of Fair

Representation in connection with the Fischback

& Moore, Inc. to Corbin Dykes Company.

On the second bifurcated jury trial,

immediately following the first verdict and

before the same jury, the jury returned answers

to special questions covering all remaining

jury trial causes of action not previously

removed by pre-trial Orders of the Court as

follows:

We, the Jury in the above-entitled action,

find on each of the questions submitted to us,

as follows:

Question No. 1.

Has plaintiff proved by a preponderance

of the evidence that Local 569 violated its

duty of fair representation towards plaintiff

by acting in an arbitrary, discriminatory, or

bad faith manner, by encouraging, suggesting,

or requesting plaintiff’s rejection. from

employment with Atkinson Mechanical Contractors

on or about October 24, 1986?

Please answer "Yes" or "No."

Answer: No.

If you answered Question No. 1 "No," do

not sinmae Questions No. 2 or No. 3, but go

directly to Question No. 4. If you answered

Question No. 1 "Yes," please answer the next

question.

uesti ier

Has plaintiff proved by a preponderance

of the evidence that he has sustained any

injury or economic damage as a legal result of

the actions you have found by the Local 569 in

Question No. 1?

Please answer "Yes" or "No."

Answer:

If you answered Question No. 2 "No," do

not answer No. 3, but go directly to Question

No. 4. If you answered Question No. 2 "Yes,"

please answer the next question.

Question No. 3.

What injury or economic damage has

plaintiff proved by a preponderance of the

evidence?

Answer: §$

Question No. 4.

Has plaintiff proved by a preponderance

of the evidence that the Local 569 violated its

duty of fair representation towards plaintiff

in an arbitrary, discriminatory or bad faith

manner, when it removed plaintiff from the out-

of-work list after receiving a _ written

complaint from another member of Local 569,

Gary Degener, alleging that plaintiff was

working outside the contractual jurisdiction

area of Local 569?

Please answer "Yes" or "No."

Answer: Yes ™

If you answered Question No. 4 "No," do

not answer Questions No. 5 or No. 6, but go

directly to Question No. 7. If you answer

Question No. 4 "Yes," please answer the next

question.

Question No. 5.

Has plaintiff proved by a preponderance

of the evidence that he sustained injury or

economic harm as a legal result of Local 569’s

action described in Question No. 4 above?

Please answer "Yes" or "No."

Answer: Yes =.

If you answer Question No. 5 "No," do

not answer Question No. 6, but go directly to

Question i=. 7. If you answered Question No.

RE a

GRENDEL IES ER 2 feo oie > ett: ape at

5 "Yes," please answer the next question.

Question No. 6.

What damages for injury or economic

harm has plaintiff proved he sustained as a

legal result of Local 569’s action described in

Question No. 4 above?

Answer: S$ 26,400.00

Question No. 7.

Has plaintiff proved by a preponderance

of the evidence that Local 569 violated its

duty of fair representation by arbitrarily,

discriminatorily or in bad faith demoting him

from Group No. 1 to Group No. 2 in May, 1987?

Please answer "Yes" or "No."

Answer: Yes

If you answered Question No. 7 "No," do

not answer Question No. 8 or No. 9, but go

directly to Question No. 10. If you answered

Question No. 7 "Yes," please answer the next

question.

Question No. 8.

Has plaintiff proved by a preponderance

of the evidence that Local 569’s demotion from

Group No. 1 to Group No. 2 was a legal cause of

injury or economic harm to plaintiff?

Please answer "Yes" or "No."

Answer: Yes .

If you answered Question No. 8 "No," do

not answer Question No. 9, but go directly to

Question No. 10. If you answered Question No.

8 "Yes," please answer the next question.

Question No. 9.

What amount of damages based upon

injury or economic harm has plaintiff proved by

a preponderance of the evidence he has

sustained as a legal result of Local 569’s

actions?

Answer: $39,600.00 .

Question No. 10.

Has plaintiff proved by a preponderance

of the evidence that defendant International

Brotherhood of Electrical Workers (IBEW)

breached its Constitution by failing to act on

plaintiff’s appeal to the IBEW President of the

second Trial Board decision suspending and

fining plaintiff for wronging union member

Ree ee oe habe Act

Charles Morrison?

Please answer "Yes" or "No."

Answer: No.

If you answered Question No. 10 "No,"

do not answer Question No. 11 or No. 12, but go

directly to Question No. 13. If you answered

Question No. 10 "Yes," please answer the next

question.

Question No. 11.

Has plaintiff proved by a

preponderance of the evidence that the IBEW’s

breach of the Constitution was a legal cause of

any injury or economic harm to plaintiff?

Please answer "Yes" or "No."

Answer: °

If you answered "No" to Question No.

11, do not answer Question No. 12, but go

directly to Question No. 13. If you answered

"Yes" to Question No. 11, . please answer the

next question.

Question No. 12.

What amount of damages based upon

injury or economic harm has plaintiff proved by

a preponderance of the evidence he has

sustained as a legal result of the IBEW’s

action?

Answer: §$ i

Question No. 13.

Has plaintiff proved by clear and

convincing evidence that Local 569 violated

plaintiff’s Labor Management Reporting and

Disclosure Act rights by intentionally re-

submitting two by-law amendments to the union

membership for vote, which had been proposed by

plaintiff earlier, at a time when the plaintiff

was suspended from attendance to Union

membership meetings, and unable to speak in

support of his proposed amendments?

Please answer "Yes" or "No."

Answer: Yes "

If you answered "No" to Question No.

13, do not answer Questions No. 14, No. 15, No.

16, or No. 17, but go directly to Question No.

18. If you answered Question No. 13 "Yes,

please answer Question No. 14.

NES ASAI A. oe ¢

lest, Me Ly

Do you find nominal damages in favor of

Plaintiff as a legal result of Local 569’s acts

in Quest a No. 13?

Please annswer "Yes" or "No."

Answer: Yes :

If you answered "No" to Question NO.

14, do not answer Question No. 15, No. 16 or

No. 17, but go directly to Question No. 18. If

you answered "Yes" to Question No. 14, please

answer Question No. 15.

Question No. 15.

What amount of nominal damages do you

find in plaintiff’s favor against Local 569 as

a legal result of its acts of Question No. 14?

Answer: S$ 500.00

Question No. 16.

Has plaintiff proved by clear and

convincing evidence that the Local 569’s

conduct described in Question No. 13 was

motivated by ill will or a purpose to harm

plaintiff’s interest?

Please answer "Yes" or "No."

Answer: Yes ‘

If you answered Question No. 16 "No," do

not answer Question No. 17, but go directly to

Question No. 18. If you answered Question No.

16 "Yes," please answer Question No. 17.

Question No. 17.

What amount of punitive damages has.

plaintiff proved by clear and convincing

evidence against Local 569?

Answer: S$ 2,000.00 .

Question No. 18.

Has plaintiff proved by clear and

convincing evidence that defendant Local 569

violated his Labor Management Reporting and

Disclosure Act rights in its handling of the

first Trial Board on the Charles Morrison

complaint for any or all of the following

respects:

1) Failure to serve on plaintiff specific

~citten charges?

Answer "Yes" or "No."

Answer: No.

2) Failure to give plaintiff a reasonable time

to prepare for the hearing?

Answer "Yes" or "No."

Answer: No.

3) Failure to accord plaintiff a full and fair

hearing?

Answer "Yes" or "No."

Answer: No.

If you answered "No" to all of the above

questions, do not answer Questions No. 19, No.

20, No. 21, or No 22, but ‘go directly to

Question No. 23. If you answered Question No.

18 "Yes" as to one or more of the sub-parts,

please answer Question No. 19.

Question No. 19.

Has plaintiff proved by clear and

convincing evidence that he sustained any

injury or economic harm as a legal result of

the acts you found in Question No. 18 above?

Please answer "Yes" or "No."

Answer: e

If you answered "No" to Question No. 19,

do not answer Questions No. 20, No. 21, or No.

22, but go directly to Question No. 23. If you

answered "Yes" to Question 19, please go to the

next question.

Question No. 20.

What amount of damages do you find by

clear and convincing evidence plaintiff has

sustained for injury or economic harm as a

legal result of the conduct you found committed

by Local 569 in Question No. 18 above?

Answer: S$ ;

Question No. 21.

Has plaintiff proved by clear and

convincing evidence that Local 569’s conduct

described in Question No. 18 above was

motivated by ill will or a purpose to harm

plaintiff’s interests?

Please answer "Yes" or "No."

Answer: °

If you answered Question No. 21 "No," do

not answer Question No. 22, but go directly to

Question No. 23. If you answered Question No.

21 "Yes," please answer the next question.

Question No. 22.

What amount of punitive damages do you

find in favor or plaintiff and against Local

569 as a legal result of the conduct you found

in Question No. 18 above?

Answer: S

Question No. 23.

Has plaintiff proved by clear and

convincing evidence that defendant Local 569

violated his Labor Management Reporting and

Disclosure Act rights in its handling of the

second Trial Board on the Charles Morrison

complaint in any or all of the ' following

respects:

1) Failure to serve on plaintiff specific

written charges?

Answer "Yes" or "No."

Answer: No

2) Failure to accord plaintiff a full and fair

hearing?

Answer "Yes" or "No."

Answer: Yes é

If you answered "No" to both of the

above two questions, do not answer Questions

Wo. - 34, Bo. 25, ‘Wes 26 or - Xo. 27, but go

directly to Question No. 28. If you answered

Question No. 23 "Yes" as to one or more of the

sub-parts, please answer Question No. 24.

Question No. 24.

Has plaintiff proved by clear and

convincing evidence that he sustained any

injury or economic harm as a legal result of

the acts you found in Question No. 23 above?

Please answer "Yes" or "No."

Answer: Yes ‘

If you answered "No" to Question 24, do

not answer Questions No. 25, NO. 26 or No. 27,

but go directly to Question No. 28. If you

answered "Yes" to Question 24, please answer

Question No. 25.

What amount of damages do you find by

clear and convincing evidence plaintiff has

sustained for injury or economic harm as a

legal result of the conduct you found committed

by Local 569 in Question No. 23 above?

Answer: $ 0 ‘

Question No. 26.

Has plaintiff proved by clear and

convincing evidence that Local 569’s conduct

described in Question No. 23 above was

motivated by ill will or a purpose to harm

plaintiff’s interests?

Please answer "Yes" or "No."

Answer: Yes

If you answered Question 26 "No," do not

answer Question No. 27, but go directly to

Question No. 28. If you answered Question No.

26 "Yes," please answer the next Question No.

27.

Question No. 27.

What amount of punitive damages do you

find in favor of plaintiff and against Local

569 as a legal result of the conduct you found

in Question 23 above?

Answer: $ 500.00 .

Question No. 28.

Has plaintiff proved by clear and

convincing evidence that defendant Local 569

violated his Labor Management Reporting and

Disclosure Act rights in its handling of the

third Trial Board resulting in plaintiff’s six-

year expulsion and $6,000 fine in any or all of

the following aspects?

1) Failure to serve on plaintiff specific

written charges:

Answer "Yes" or "No."

Answer: Yes .

2) Failure to give plaintiff reasonable time

to prepare for the hearing?

Answer "Yes" or "No."

Answer: __No_.

If you answered "No" to Question No. 28,

do not answer Questions No. 29, No. 30, No. 31

or No. 32, but go directly to Cinthia No. 33.

If you answered "Yes" to Question No. 28,

Please answer Question No. 29.

Question No. 29.

Has plaintiff proved by clear and

convincing evidence that he sustained any

injury or economic harm as a legal result of

the acts you found in Question No. 28 above?

Answer "Yes" or "No."

Answer: Yes °

If you answered "No" to Question 29, do

not answer Questions No. 30, No. 31 or No. 32,

but go directly to Question 33. If you

answered "Yes" to Question 29, please answer

the next Questions No. 30 and No. 31.

Question No 30.

What amount of damage do you find by

clear and convincing evidence that plaintiff

has sustained for injury or economic harm as a

legal result of the conduct you found committed

by Local 569 as presented in Question No. 28

above?

Answer: S$ 6,000.00

Question No. 31.

Has plaintiff proved by clear and

convincing evidence that Local 569’s conduct as

described in Question No. 28 above was

motivated by ill will or a purpose to harm

plaintiff’s interests?

Please answer "Yes" or "No."

Answer: Yes P

If you answered Question 31 "No," do not

answer Question 32, but go directly to No. 33.

If you answered Question No. 31 "Yes," please

answer the next Question No. 32.

uestio ‘ ‘

What amount of punitive damages do you

find in favor of plaintiff and against

Defendant Local 569 as a legal result of the

conduct you found in Question No. 28 above?

Answer: S$ 37,400.00

Question No. 33.

Has plaintiff proved by clear and

convincing evidence that any or all of the

defendants violated their fiduciary duties

toward Local 569 by overseeing, allowing, or

ratifying pension contributions at the rate of

48 hours per week on behalf of all the full

time paid officers and union staff employees of

Local 569?

Please answer "Yes" or "No."

Answer: Yes

Question No. 34.

Has plaintiff proved by a preponderance

of the evidence that either or both of the

following defendants intentionally inflicted

severe emotional distress on plaintiff?

1) Gary Degener X

2) Ron Whitaker ees a

If you answered Question No. 34 "No as

to both defendants, do not answer any further

questions, but have your foreperson date and

sign this verdict form and return it to the

court.

If you answered Question No. 34 "Yes," please

answer the next question.

Ouestion No. 35.

Has plaintiff proved by a preponderance

of the evidence that he has sustained any

injury or economic harm as a legal result of

the conduct you found against either or both of

the above-named defendants?

Please answer "Yes" or "No."

Answer:

As to Degener: Yes °

As to Whitaker: No

If you answered Question No. 35 "No" as

to both defendants, do not answer any more

questions, but have your foreperson date and

sign the verdict form and return it to this

court.

If you answered "Yes" as to either of

the defendant(s] named above, please answer the

next question.

Question No. 36.

What amount of compensatory damages has

plaintiff proved by a preponderance of the

evidence as to either or both defendants?

Answer: Gary Degener $ _0

Ron Whitaker S$ 0 .

Ouestion No. 37.

Has plaintiff proved by clear and

convincing evidence that either or both of the

above-named defendants acted toward plaintiff

with malice or oppression?

Answer "Yes" or "No."

Answer: Yes .

If you answered Question No. 37 "No," do

not answer any further questions, but have your

foreperson date and sign the verdict form and

return it to this court.

If you answered Question No. 37 "Yes," please

answer the next question.

Question No. 38.

What do you assess against either or

both defendants by way of punitive damages?

Answer:

Gary Degener $ _1,500.00

Ron Whitaker $ 0O

DATED: 8/22/91 . Earlene Abeson

FOREPERSON

With respect to the non-jury trial of the

three remaining equitable issues, the Court now

enters the following FINDINGS OF FACT AND

CONCLUSIONS OF LAW:

A. VALIDITY OF LOCAL 569 BUILDING TRADES

COUNCIL ASSESSMENT

FINDINGS OF FACT

i. For at least the last 25 years,

defendant Local 569 has paid a per capita

payment monthly to the San Diego Building

Trades Council for each member employed in the

construction industry.

2. No evidence was presented as to the

original source of authorization for this

payment by the defendant Local 569 to the San

Diego Building Trades Council.

3. The International Brotherhood of

Electrical Workers (IBEW) is affiliated with

the Building and Trades Department of AFL-CIO,

and pays a per capita assessment to that

department for each IBEW member engaged in the

construction industry.

4. The payment by defendant Local 569 is

drawn from the general fund of the Local, which

in turn is made up of union dues and

assessments, within which is a member -

assessment for all members engaged in the

construction trade.

S. By prior order of this Court,

plaintiff is not subject to the .50 increase in

this assessment which was invalidly assessed by

the defendant Local 569 on ‘

CONCLUSIONS O W

1. Plaintiff has failed to prove by a

preponderance of evidence that the original

assessment, presently in the amount of $1.25

‘ 100

per member per month, violates any by-law,

regulation or practice of defendant Local 569.

2. In absence of proof, the Court will

not presume irregularity or invalidity of the

assessment.

I Judgment on the San Diego Building

Trades Council assessment shall be _ for

defendant Local 569 IBEW and against plaintiff.

B. TRANSMITTER ISSUE

FINDINGS OF FACT

1. The Transmitter is a monthly newspaper

published by defendant Local 569 under the

editorial policy control of the ex officio

Business Manager of the defendant Local 569.

2. The Transmitter has been used during

1986, 1987, 1988, 1989, 1990 and 1991 to

publish articles criticizing plaintiff for his

views and his actions in filing (and sometimes

winning) lawsuits against defendant Local 569

and the IBEW.

3. Since at least 1986, plaintiff has run

unsuccessfully for election as Business Manager

of Local 569 and is a potential opponent.

101

4. The monthly articles criticizing

plaintiff appear to have political themes as

well as themes of conflict over plaintiff’s

lawsuits and plaintiff’s claims of union

officers’ improper conduct.

S. Plaintiff requested, but has been

denied, any space in the Transmitter with which

to counter the adverse written campaign carried

on against him in the Transmitter.

6. Plaintiff has periodically published

his own news circular criticizing the officers

of Local 569, and asserting various

Linpecnee:eteiien and violations of law by

management of the Local.

7. Prior to the present office-holders,

members had been invited to publish their views

in the Transmitter. Plaintiff did not avail

himself of that opportunity during those

earlier years.

8. The Local’s present management

uniformly prohibits any access to Transmitter

space by any union member.

‘ 102

CONCLUSIONS OF LAW

1. To the extent the Transmitter is being

used aS a campaign tool of incumbent

management, it is a violation of 29 g.4a4.¢. ¢

481, which falls within the jurisdiction of the

Department of Labor in the form of post-

election remedies, but not in the U.S. District

Court in the first instance.

2. To the extent the Transmitter is being

used to criticize a member for the member’s

criticisms and lawsuits filed against the

Local, since it is not done discriminatorily

only against plaintiff, and since the

Transmitter is uniformly unavailable to any

member, plaintiff’s denial of access is not

being imposed unequally. The Court considers

the use of the Transmitter to attack plaintiff

to be an abuse of the use of the Transmitter,

but it does not seem to be reached by 29 U.S.C.

§411(a) or (b). See Murphy v. Intern. Union of

Operating Engineers, 774 F.2d 114, 129-132 (6th

Cir. 1985), since the denial of access to the

Transmitter is uniformly followed. Cf. Knox

103

County Local v. National Rural Letter Carriers’

Ass’n., 720 F.2d 936 (6th Cir. 1984).

a4 Judgment against plaintiff will be

entered on this issue.

C. RECONSIDERATION OF THE ISSUE WHETHER

THE LOCAL 569’S DENIAL OF A MEMBER’S RUNNING

SIMULTANEOUSLY FOR THE POSITION OF CONVENTION

DELEGATE AND BUSINESS MANAGER

The Court declines to reconsider its prior

order granting summary judgment in favor of the

defendant Local 569 on the grounds that the

policy is a reasonable one to be followed, and

the Court should not intrude into internal

union affairs in the absence of a violation of

established principles of law. See Furniture

Moving Drivers v. Crowley, 467 U.S. 526, 539

(1983); Calhoun v. Harvey, 379 U.S. 134, 140

(1964).

NOW, THEREFORE, based on the Jury’s

Special Verdicts and the Findings of Fact and

Conclusions of Law by the Court, and the Court

being fully advised in the premises, hereby

enters the following:

JUDGMENT

i. Plaintiff is awarded $26,400 plus

110A

costs of suit as damages against Local 569,

IBEW on his claim against Local 569, IBEW based

upon removal of plaintiff from the out-of-work

list after receiving written complaint from Mr.

Gary Degener.

ae Additionally, plaintiff is awarded

$39,600 plus costs of suit against Local 569,

IBEW as damages on his claim based upon

demoting plaintiff from Group I to Group II in

May, 1987.

3. Additionally, plaintiff is awarded

$500 plus costs of suit against Local 569, IBEW

on his claim for damages based upon re-

submitting by-law amendments earlier proposed

by plaintiff to the union membership at a time

when the plaintiff was suspended from

attendance at union membership meetings.

4. In addition, plaintiff is awarded

$2,000 as punitive damages against Local 569,

IBEW based upon the same clain.

5. Plaintiff is awarded no damages,

compensatory or punitive, on his claim against

Local 569, IBEW based upon the jury’s finding

’ 105

of a failure to accord plaintiff a full and

fair hearing in the second Trial Board trial on

the Charles Morrison complaint; however, it is

the judgment of this Court that such Trial

Board judgment shall be and is hereby reversed

and the fine imposed of $500 shall be and is

Ordered returned to plaintiff forthwith with

interest according to law.

Although the jury found punitive damages

of $500 for this claim, the Court declines to

adjudge them as the jury found no compensatory

damages upon which to base their award of

punitive damages on this claim.

6. Additionally, on plaintiff’s claim

based on the Third Trial Board resulting in

plaintiff’s expulsion from Local 569, IBEW and

$6,000 fine, judgment is entered for plaintiff

and- against defendant Local 569, IBEW in the

sum of $6,000 compensatory damages, and $37,400

punitive damages.

7. In addition, it is the judgment of the

Court that plaintiff be reinstated retroactive

to the date of his expulsion, and restored to

‘ me 106

all his rights and privileges then accrued to

him, and that the defendant Local 569, IBEW

credit plaintiff with full payment of all

applicable dues to the date of plaintiff’s

reinstatement.

8. Additionally, the Court enters

Declaratory Judgment that defendants violated

their fiduciary duties toward Local 569, IBEW

by overseeing, allowing, or ratifying pension

contributions at the rate of 48 hours per week

on behalf of all the full time paid officers

and union staff employees of Local 569. Court

costs of suit are awarded to plaintiff on this

clain.

9. Additionally, on plaintiff’s claim

against Gary Degener, based upon intentional

infliction of emotional distress, plaintiff

shall recover judgment against defendant Gary

Degener the sum of no dollars compensatory

damage. Although the jury found punitive

damages of $1,500 against defendant Degener,

the Court declines to award judgment for any

sum of punitive damages in view of the jury’s

107

finding of no compensatory damages sustained by

plaintiff arising out of the said conduct by

defendant Degener. Court costs are awarded to

plaintiff on this claim and against defendant

Degener.

1. Judgment is entered in favor of

defendant Ron Whitaker and against plaintiff,

with costs of suit to said defendant.

zis NOW, THEREFORE, as a result of the

above, Judgment shall be entered in favor of

the plaintiff Lawrence V. Moore and against

Defendant Local 569, IBEW in the total of

$72,500 as compensatory damages, and $39,400 as

punitive damages, plus plaintiff’s costs of

suit.

Judgment shall be entered in favor of

plaintiff and against defendant Gary Degener

but for zero dollars, plus costs of suit to

plaintiff.

Judgment shall be entered in favor of

defendant Ron Whitaker and against plaintiff

Lawrence V. Moore, with costs of suit to

defendant Ron Whitaker.

‘ 108

Judgment shall be entered in favor of

defendant IBEW and against plaintiff with costs

of suit to defendant.

Declaratory judgment shall be entered

under the Fourth Cause of action against

defendants Paul Blackwood, Wayne Lovin, Jim

Westfall, Tom Pridemore, Joe Heisler, Dick

Smith, Terry Godshalk, Keith Widdop, George

England, Kris Hartnett, Don Withem, Steve

Workman, Mike Reilly, John Simpson, Ray

Altmeyer, Richard White, Jim Brandon, Sharon

Hahn, Bob Riel, Jim Aylsworth and Charles

Wilder, declaring that said defendants violated

their fiduciary duties toward Local 569, IBEW,

by overseeing, allowing or ratifying pension

contributions at the rate of 48 hours per week

on behalf of all the full time paid officers

and union staff employees of Local 569, IBEW.

Costs of suit are awarded to plaintiff on

this clain.

IT IS FURTHER THE ORDER, JUDGMENT AND

DECREE of this Court that, based upon the

evidence in this case and the Jury Special

109

Verdict, the third Trial Board Judgment is

reversed and the defendant Local 569, IBEW

reinstate plaintiff Lawrence V. Moore to active

membership in said union Local 569 and the

IBEW, retroactive to the date of expulsion,

with restoration of all rights and privileges

accrued on the date of expulsion; further that

plaintiff be credited with full payment of all

dues and assessments which would have been paid

during the period of expulsion to the date of

his reinstatement.

Costs of suit to the plaintiff on this

claim.

Finally, judgment is hereby entered in

favor of defendant Local 569 for declaratory

relief on the issues of election procedure and.

use of Transmitter, as set forth in the

Findings of Fact and Conclusions of Law herein,

and aginst plaintiff Lawrence V. Moore, with

defendant’s costs of suit incurred on said

claims. Dated: March 11, 1992

‘ 110

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAWRENCE MOORE,

Plaintiff-Appellee,

CA No. 92-55515

DC No. CV-87-172

LOCAL UNION 569 OF THE -RMB (HRM)

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS; PAUL

BLACKWOOD; WAYNE LOVIN; JAMES)

WESTFALL; TOM PRIDEMORE; JOE )

HEISLER; DICK SMITH; TERRY )

GODSHALK, et al. )

)

Vv. )

)

Defendants-Appellants.

LAWRENCE MOORE,

Plaintiff-Appellant,

Vv.

DC No. CV-87-172

LOCAL UNION 569 OF THE -RMB (HRM)

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS; PAUL )

BLACKWOOD; WAYNE LOVIN; JAMES)

WESTFALL; TOM PRIDEMORE; JOE )

HEISLER; DICK SMITH; TERRY )

GODSHALK et al; INTERNATIONAL)

)

}

) CA No. 92-55517

)

BROTHERHOOD OF ELECTRICAL +

WORKERS; J.J. BARRY; S.R. )

MCCANN; RICHARD ROBBINS; )

ATKINSON MECHANICAL; FISCHBCH)

FISCHBACH & MOORE, INC., )

)

Defendants-Appellees._)

111

LAWRENCE MOORE, )

)

) CA No. 93-55381

Vv. ) DC No. CV-87-172

) -RMB (HRM)

LOCAL UNION 569 OF THE )

INTERNATIONAL BROTHERHOOD OF )

ELECTRICAL WORKERS; BILLY

)

SMITH; RAY ALTMEYER; S.R. )

MCCANN )

)

Plaintiff-Appellee,

MEMORANDUM*

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of California

Rudi M. Brewster, District Judge, Presiding

Argued and Submitted March 9, 1994

Pasadena, California

WALLACE, Chief Circuit Judge; FARRIS, and

KLEINFELD, Circuit Judges:

I. APPEAL BY LOCAL 569

The jury’s verdict included the following

findings: (1) Local 569 violated its duty of

fair representation by removing Moore from an

"out of work" list and assigning him a lower

hiring preference; (2) Local 569’s officers and

staff employees breached their fiduciary duties

by overseeing pension contributions on their

* This disposition is not appropriate for

publication and may not be cited to or by the

courts of this Circuit except as provided by

‘Ninth Circuit Rule 36-3.

‘ 112

behalf that violated the union’s bylaws; and

(3) a disciplinary hearing held on March 5,

1990 violated Moore’s right to a full and fair

hearing under the LMRDA. On appeal, Local 569

argues that the district court erred in denying

its motion for judgment notwithstanding the

verdict on the first and third claims, and that

we should reverse the jury’s verdict on the

second claim. The record satisfies us that

there is substantial evidence to support the

jury’s verdicts. We affirm. Landes Constr.

Co. v. Royal Bank of Canada, 833 F.2d 1365,

1370-71 (9th Cir. 1987).

A. Duty of Fair Representation

Under Section 9 of the LMRA, 29 ¥.8.¢.

159, a union has a duty of fair representation

"’to serve the interests of all members without

hostility or discrimination toward any, and to

exercise its discretion with complete good

faith and honesty, and to avoid arbitrary

conduct.’" United Steelworkers v. Rawson, 495

U.S. 362, 372 (1990) (quoting Vaca v. Sipes,

386 U.S. 171, 177 (1967)). The duty of fair

113

representation extends to a union’s

administration of a hiring hall pursuant to a

collective bargaining agreement. Breininger v.

Sheet Metal Workers, 493 U.S. 67, 87-90 (1989);

NLRB v. Iron Workers Local 433, 600 F.d 770,

773, 776-77 (9th Cir. 1979), cert. denied, 445

U.S. 915 (1980).

Local 569 contends that it removed Moore

from the “out of work" list because he was

working as an electrician for another IBEW

local in different city. Local 569 also

asserts that it required Moore to register in

a group with a lower priority for job referrals

because he had not accumulated sufficient hours

of employment with signatory employers to

maintain his high priority status. In both

instances, Local 569 followed procedures

specified by the collective bargaining

agreement and the union’s bylaws.

However, Moore and four other witnesses

testified that Local 569 selectively and

arbitrarily enforced its hiring hall rules as

part of a campaign to punish him for

challenging the union’s leadership. Local 569

mistakenly argues that it could not have

breached its duty of fair representation so

long as it acted pursuant to the collective

bargaining agreement and the union’s written

policies. A union breaches its duty when it

enforces its hiring hall policies against a

dissident member in a discriminatory manner.

NLRB v. Laborers’ Int’l. Union, Local 300, 613

F.2d 203, 207-08 (9th Cir. 1980). Although

there is conflicting evidence in the record, a

reasonable juror could have credited the

testimony of Moore and his witnesses and

concluded that Local 569 arbitrarily chose to

enforce the rules in Moore’s case and ignore

them in others.

B. Breach of Fiduciary Duties

When a complaint alleges that a union

officer personally benefitted from a labor

organization’s expenditure, the officer must

establish both a valid authorization, after

adequate disclosure, and that the expenditure

was not manifestly unreasonable. Ray v. Young,

115

753 F.2d 386, 389-91 (5th Cir. 1985); Morrissey

¥, Gurren, 690 -F.24 iAZz6?, 4272979 tame Cae.

1981); cf. Stelling v. IBEW Number 1547, 587

F.2d 1379, 1389 (9th Cir. 1978), cert. denied,

442 U.S. 944 (1979) (deferring to a union

officer’s interpretation of a union

constitution unless the interpretation is

"patently unreasonable"). Local 569 failed to

satisfy the jury that the membership ever

authorized the pension contributions. Local

569 described the process by which the

membership authorized the salaries of the local

officers and staff employees. But this alone

did not establish that the membership

authorized the pensions.

C. Improper Discipline Claim and Damage Awards

Under Section 101 (a) (5) of the LMRDA, 29

U.S.C. 411 (a) (5), before a union member may

be disciplined (except for non-payment of

dues), a union must do three things: (1) serve

the member with written, specific charges, (2)

give a reasonable time to prepare a defense,

and (3) provide a full and fair hearing. 29

U.S.C. 411 (a) (5); Building Material and Dump

Truck Drivers, Local 420 Vv. Traweek, 867 F.2d

500, 510 (9th Cir. 1989). The jury found clear

and convincing evidence that Local 569 failed

to give Moore written notice of the charges

against him as required by Section 101 (a) (5).

Local 569 emphasizes the evidence which

jndicates Moore might have received the

requisite written notice. The union separately

mailed--by regular delivery and registered

mail--two written notices of the charges and

hearing. Moore appeared at the hearing on

time, appeared to be aware of the charges, and

was prepared to defend himself against the

charges. He also declined to request a

continuance. Previously, Moore falsely had

claimed that he had not received written notice

of another disciplinary hearing.

On the other hand, there is evidence to

support the jury’s finding. Moore testified

that he never received any written notice, but

learned about the charges and the hearing

through other members. He also testified that

117

he inquired about getting a written copy of the

charges prior to the hearing. And Local 569

did not produce a receipt from the registered

letter with Moore’s signature.

The jury determines matters of

credibility. Moore v. Local Union 569 of the

IBEW, 989 F.2d 1534, 1546 (9th Cir. 1993). A

reasonable juror could have found Moore’s

testimony credible and found that he had not

received written notice.

Local 569 argues that’ the jury’s

compensatory damage award of $6,000 was

unsupported by the evidence and excessive. In

Brett v. Hotel, Motel, Restaurant, Constr. Camp

Employees and Bartenders Union, Local 879, 828

F.2d 1409 (9th Cir. 1987), we restated the

standard for determining if a jury has awarded

excessive damages:

Absent a total want of evidence on

all or certain portions of the case,

or the erroneous exclusion .. . of

appropriate matters or a showing of

bias or prejudice on the part of the

jury, this court may not reverse the

trial court unless the verdict can

be said to be grossly excessive or

monstrous ... .

‘ 118

Id., at 1417 (quotations and cites omitted).

Moore described his damages to a jury, as did

an accountant who testified as an expert

witness for Moore. They testified that Moore

was fined $6,000 by the union and that during

his suspension, which had lasted for two years

at the time of the trial, he was denied access

to the union’s’ hiring hall. Local 569

emphasizes that Moore failed to introduce

documentary evidence corroborating these

damages. But the testimony by Moore and his

expert witness, if believed, supports the

jury’s compensatory damage award of $6,000.

Bise v. IBEW, Local 1969, 618 F.2d 1299, 1305

(9th Cir. 1979), cert. denied, 449 U.S. 904

(1980).

Local 569 further contends that the

$36,000 in punitive damages award was also

excessive. Moore testified that Local 569

repeatedly denied his requests to read the

written charges. The jury found that Local

569’s “ill will" towards Moore motivated its

actions. The jury’s finding that Local 569

AAS

maliciously violated Moore’s LMRDA rights

supports the award of punitive damages. Bise,

618 F.2d at 1306.

The record does not support Local 569’s

contention that the punitive damages award must

be reduced because it would seriously impair

the union’s ability to serve its members.

II. CROSS-APPEAL BY MOORE

A. Motion to Disgqualify Counsel and Aw

Attorneys’ Fees

Moore brought a motion to disqualify Local

569’s counsel from representing the individual

defendants accused of violating their fiduciary

duties under Section 501 of the LMRDA, 29

U.8.C. 501. Finding that Moore had not

demonstrated a reasonable likelihood of success

on his Section 501 claim, the district court

denied Moore’s motion and required him to pay

the attorney’s fees incurred by Local 569 in

___opposing the motion. Eventually, however,

Moore did prevail on this claim. The district

court may well have properly reconsidered its

award of attorneys’ fees if Moore had made the

appropriate timely request. The record

reflects that he did not. We find no error in

the failure of the court to sua sponte revisit

the issue. It was not error to make the award

at the time that the court made at.

The district court acted within its

discretion when it declined to order the

individual defendants to reimburse Local 569

for the pension contributions and the cost of

their defense. Union funds should not be used

to defend officers against charges that they

fraudulently deprived members of their rights

or committed offenses that were "’seriously

detrimental to the union and its membership.’"

Ke Vv. anks, 466 F.2d 1271, 1277, (9th Cir.

1972) (quoting Milone v. English, 306 F.2d 814,

817 (D.C. Cir. 1962)), cert denied, 412 3.8.

918 (1973). Aithough Moore conteneced that some

officers were taking a month’s worth of

benefits for only a week’s worth of work, the

district court did not find that the local

officers acted fraudulently or that the members

suffered a serious detriment. In fact, there

121

was evidence that crediting the officers and

staff employees with 48 hours a week of pension

contributions put less money in their pension

accounts than if they had been credited for the

actual hours worked.

B. Claims Against Fischbach and Moore, Inc.

and Local 569

Moore claimed that one of his employers,

Fischbach and Moore, Inc., had violated the

regional collective bargaining agreement by

transferring some its employees to a subsidiary

without first seeking referrals from Local

569’s hiring hall. Moore also alleged that

Local 569 breached its duty of fair

representation under the LMRA by condoning

Fischbach’s practices. The district court

properly bifurcated Moore’s fair representation

and breach of contract claims, and correctly

dismissed the claim against Fischbach after the

jury found for Local 569. Hines v. Anchor

Motor Freight, Inc., 424 U.S. 554, 568-72

(1976) (holding that an employee who challenges

the finality of an arbitration proceeding must

first demonstrate that the union breached its

‘ 122

duty of fair representation before proceeding

against an employer for breach of a collective

bargaining agreement). Moore was-~ not

prejudiced by the district court’s exclusion of

prejudicial and irrelevant evidence. The

record supports the denial of Moore’s motions

for judgment NOV or a new trial.

Cc. Claims Against _ Atkinson Mechanical

Contractors, inc. and Local 569

Moore claimed that another contractor,

Atkinson Mechanical Contractors, Inc., breached

the regional collective bargaining agreement by

wrongfully refusing to hire him. Moore also

claimed that Local 569 violated its duty of

fair representation by asking Atkinson to

reject hin.

Atkinson argues that Moore does not have

standing to sue it for breaching the collective

bargaining agreement. Because Moore was not

employed by Atkinson at the time they rejected

him, Atkinson contends he an neither a member

of the bargaining unit covered by the agreement

nor a third party beneficiary to the agreement.

In Karo v. San Diego Symphony Orchestra Assoc.,

123

762 F.2d 819, 821-22 (9th Cir. 1985), a union

musician alleged that a symphony had breached

a collective bargaining agreement by failing to

hold auditions to fill an opening for a

percussionist, and that the union breached its

duty of fair representation by acquiescing.

Because the agreement protected only employees

of the symphony, we held that the plaintiff did

not have standing to sue the union. Id. And

because the terms of the agreement did not

indicate the audition procedure was for the >

benefit of nonemployee union members, we

further held that the plaintiff did not have

standing as a third party beneficiary to sue

the symphony. Id. See also, Sepulveda v.

Pacific Maritime Assoc., 878 F.2d 1137, 139-41

(9th Cir.) (finding that longshoremen whom a

union did not register as "best qualified"

applicants did not have standing to sue either

the union or the employer), cert. denied, 493

U.S. 1002 (1989).

Moore had standing to sue Local 569 and

Atkinson for alleged improprieties in the

: oe

hiring hall referral procedures. Pursuant to

the regional collective bargaining agreement,

Local 569, unlike the unions in Karo and

Sepulveda, operates a hiring hall. In

Breininger, the Supreme Court held that a

district court had jurisdiction over an

unemployed union member’s suit which alleged

the union breached its duty of fair

representation in the administration of a

hiring hall. 493 U.S. at 71, 73-85. The

Breininger Court was not called upon to decide

the issue of jurisdiction over a breach-of-

contract suit against an employer. But in

discussing Breininger’s fair-representation

claim, the Court repeatedly stated that it

could have been accompanied by a breach-of-

contract suit against the employer. Breininger,

493 U.S. at 80-85.

Nevertheless, the district court properly

granted summary judgment for Atkinson on

Moore’s breach-of-contract claim. The

agreement allowed an employer to reject an

employee, provided the employer did not

125

discriminate on the basis of union activity or

race, sex, and other similar grounds. In

rejecting Moore because he was litigious and

disruptive, Atkinson did not breach the terms

of the agreement. The record also supports the

jury’s verdict on Moore’s fair-representation

claim against Local 569. The district court

properly denied Moore’s motions for judgment

NOV or a new trial.

D. Election Claims

Local 569 and the IBEW prohibited Moore

from seeking election as a union officer and a

delegate at the same time. The district court.

granted summary judgment dismissing Moore’s

claim that this policy violated his rights

‘under the LMRDA. We dismiss Moore’s claim for

lack of subject-matter jurisdiction.

Federal courts lack jurisdiction over a

claim that challenges the rules governing the

eligibility of candidates for union office.

Calhoon v. Harvey, 379 U.S. 134, 138-41 (1964);

see also Bender v. Williamsport Area School

Dist., 475 U.S. 534, 541 (1986) (stating that

‘ ; 126

an appellate court always must consider

subject-matter jurisdiction). There is an

exception allowing for jurisdiction when the

plaintiff claims that the union applied its

election rules in a discriminatory manner.

Kupau v. Yamamoto, 622 F.2d 449, 454 (9th Cir.

1980). There is no evidence that Local 569 and

the IBEW applied the eligibility rules

unevenly.

Moore also claims that Local 569 and the

IBEW committed other violations of the LMRDA

during the 1986 election campaign. Moore had

previously sought relief for these claims

through an action filed with the Department of

Labor. The department and Local 569 settled

these claims. Another district court approved

the settlement. The record supports the

court’s conclusion that res judicata barred

Moore from relitigating.

E. Fiduciary Duty Claims

Moore contends that the district court

improperly limited his breach of fiduciary

duties claim to the issue of Local 569’s

127

pension contributions on behalf of its officers

and staff employees. The district court

correctly determined that this was the only

breach of fiduciary duty claim included in

Moore’s complaint that raised a triable issue

of fact.

F. Personal Jurisdiction

The district court properly dismissed

Moore’s claims against J.J. Barry, the

president of the IBEW, for lack of personal

jurisdiction and correctly denied Moore’s

motion for default judgment against Barry.

After Barry moved to dismiss for lack of

personal jurisdiction, Moore bore the burden of

coming forward with facts supporting personal

jurisdiction. Scott v. Breeland, 792 F.2d 925,

927 (9th Cir. 1986). Moore failed to establish

that Barry could reasonably have anticipated

"being haled into court" in California. World-

Wide Volkswagen Corp. v. Woodson, 444 U.S.

286,297 (1980). "[{A] corporate officer who

has contact with a forum only with regard to

the performance of his official duties is not

subject to personal jurisdiction in that

forum." Forsyth v. Overmyer, 576 F.2d 779,

783-84 (9th Cir.) (citing Chem Lab Products,

Inc. v. Stepanek, 554 F.2d 371 (9th Cir.

1977)), cert. denied, 439 U.S. 864 (1978).

Nothing in the record indicates that Barry

conducted any activity on his own behalf in

California.

G. Other Claims Against the IBEW

The district court properly ' dismissed

Moore’s claims that the IBEW and its officers

viclated his rights under Title I or Section

609 of the LMRDA. Moore did not present

evidence that the IBEW or its officers acted in

bad faith, were guilty of fraud, or ratified

any of the allegedly wrongful acts of Local 569

"*with full knowledge . . . of an overall

scheme to suppress dissent in violation of the

LMRDA.’" Moore v. Local Union 569, 989 F.2d

967, 973 (2a Cir. 1987)). The district court

also properly concluded that Moore had not

presented sufficient evidence to support his

claim that the IBEW and its officers breached

129

the IBEW constitution by, among other things,

refusing to approve bylaw amendments proposed

by Moore. Stelling, 587 F.2d at 1389 (holding

that courts should defer to a union officer’s

interpretation of a union’s constitution unless

it is "patently unreasonable"). Furthermore,

the district court appropriately denied Moore’s

motions for judgment NOV or a new trial

regarding the jury’s finding that the IBEW and

its officers did not breach the IBEW

Constitution in their handling of Moore’s

appeals from Local 569’s disciplinary hearings.

Id.; Landes Constr. Co., 833 F.2d at 1370-71,

72-

H. Jury Instructions

Claiming that the district court’s jury

instructions were flawed, Moore seeks the

reversal of the district court’s denial of his

motions for judgment NOV and a new trial ona

number of issues. Moore failed to object to

the jury instructions at trial. Federal Rule

of Civil Procedure 51 bars him from raising

this issue for the first time in his appeal.

130

Hammer v. Gross, 932 F.2d 842, 847 (9th Cis

1991) (en banc), cert. denied, 112 Ss. ce. S82

(1991).

I. District Court’s Management of the Trial

The district court did not abuse its

discretion by limiting the amount of time the

parties had to present their cases. Moore did

not suffer any prejudice as a result of these

limitations. During the trial, the court

generously extended the time available to

Moore.

J. Building Trades Assessment Claim

Because Moore was never accorded class

representative status as to his claims that

challenged the increase in the building trades

assessment owed by each member of Local 569,

the district court correctly declined to order

Local 569 to refund the increase to all the

members of Local 569. In addition, the

district court properly denied his request for

a jury trial on this claim. Moore was seeking

only declaratory and injunctive relief.

III. AWARD OF ATTORNEYS’ FEES TO MOORE

131

Most of the time during this litigation,

Moore proceeded as plaintiff in pro per. Part

of the time, though, he was represented by two

attorneys. The district court did not abuse

its discretion in awarding Moore attorneys’

fees. A court may award attorneys’ fees to a

plaintiff who prevails on claims brought under

the LMRA or the LMRDA if the plaintiff’s

success confers "substantial benefit" on his

fellow union members. Hall v. Cole, 412 U.S.

1, 4-9 (1973); Southerland v. International

Lonashoremen, Local 8, 845 F.2d 796, 798-90

(9th Cir. 1987). A plaintiff who vindicates

his rights under the LMRDA may _ confer

substantial benefits on fellow union members

even though the court awarded damages only to

the individual plaintiff or denied the

plaintiff any monetary relief whatsoever.

Southerland, 845 F.2d at 799-90. The district

court did not commit clear error in finding

that Moore had conferred substantial benefits

on his fellow union members by successfully

pursuing his claims against Local 569. Id. at

. ee 132

ee eee ee ee eS eg ae) a, ae

799.

We find no abuse of discretion in the

amount of attorneys’ fees awarded to Moore.

The district court made it clear that it had

"considered the relationship between the amount

of the fee awarded and the results obtained."

Hensley v. Eckerhart, 461 U.S. 424,-437 (1983);

Rivera v. City of Riverside, 763 F.2d 1580,

1582 (9th Cir. 1985), aff'd, 477 U-5- 561

(1986). Local 569 contends that the district

court failed to comply with the twelve criteria

set forth in Kerr v. Screen Extras Guild, Inc.,

526 F.2a 67 (9th Cir. 1970), cert. denied, 425

U.S. 951 (1976). In its attorneys’ fee order,

the district court did not explicitly address

all twelve of these criteria. Instead the

district court focused on the number of hours

worked by the attorneys, their hourly fees, and

the extent that Moore succeeded on his claims.

The Kerr court stated that "(t]he failure to

consider [the twelve] factors constitutes an

abuse of discretion." Kerr, 526 F.2d at 70.

More recently, however, we have relaxed the

standard, and stated that "application of at

least some of, or the most relevant, factors

may be sufficient for review on appeal."

Jordan v. Multnomah County, 815 F.2d 1258, 1263

n. 11 (Sth Cir. 1987).34

Finally, the district court properly

__limited the award of costs and expert witness

fees to Moore. He sought costs that were not

allowable under 28 U.S.C. 1920. Further, as

the court did not appoint his expert witness,

it could not award fees in excess of the limit

set by 28 U.S.C. 1821 (b). Crawford Fitting

Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442

(1987).

—————

1. “Although we do not sanction the district

court’s failure to explicitly set forth its

consideration of the Kerr factors, we believe

that the court’s decision, which sets forth a

consideration of the most relevant factors, is

sufficiently detailed for meaningful review on

appeal." obe v. te of j

System, 780 F.2d 776, 785 (9th Cir.), cert.

denied, 476 U.S. 1170 (1986).

AFFIRMED.

‘ 134

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.