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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 963

## Text

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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).

11

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.

13

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.

19

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

oC

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

22

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

23

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.

25

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

26

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.

27

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

29

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

30

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

31

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. —

32

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.

33

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.

34

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.

35

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

37

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

39

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

40

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

41

(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.

42

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.

43

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

45

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

46

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.

47

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

A2

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

49

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

50

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

51

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

53

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,

F

57

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.

4
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

59

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.

61

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

62

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.

63

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.

64

—_
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

Sl

. — ? 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.

67

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

71

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

72

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

73

; 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

75

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

76

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

77

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

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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

79

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

81

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

85

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

89

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.

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-

93

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

95

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

97

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

99

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 iss

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0401%3A2. Public record. Not legal advice.