MESA VERDE CONST. v. NORTHERN CAL. DIST. COUNCIL

• Decision Date: 11 February 1985
• Docket Number: No. C-84-4389-WWS.,C-84-4389-WWS.
• Parties: MESA VERDE CONSTRUCTION CO., Plaintiff, v. NORTHERN CALIFORNIA DISTRICT COUNCIL OF LABORERS, Defendant.
• Court: U.S. District Court — Northern District of California

602 F. Supp. 327

MESA VERDE CONSTRUCTION CO., Plaintiff, v. NORTHERN CALIFORNIA DISTRICT COUNCIL OF LABORERS, Defendant.

No. C-84-4389-WWS.

United States District Court, N.D. California.

February 11, 1985.

Mark R. Thierman, Deborah E.G. Wilder, Thierman, Simpson & Cook, San Francisco, Cal., for plaintiff.

Victor J. Van Bourg, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., for defendant.

ORDER

SCHWARZER, District Judge.

Defendant Northern California District Council of Laborers (the "Union") has moved, pursuant to Fed.R.Civ.P. 59(e) and 60(b), for alteration, amendment or vacation of this Court's order of December 13, 1984, 598 F.Supp. 1092, granting summary judgment in favor of Mesa Verde Construction Company ("Mesa Verde"). The Union seeks an order denying Mesa Verde's motion for summary judgment, without prejudice, and granting the Union an opportunity to conduct further discovery on the issue of whether or not Mesa Verde's payroll records demonstrate the existence of a core group of employees for purposes of establishing a presumption of majority status. On January 5, 1985, the Union filed an amended motion for alteration, amendment or vacation of judgment, requesting this Court to reconsider three issues addressed by the December 13 order: 1) whether this Court had jurisdiction to determine majority status; 2) whether the 1980 agreement was a "pre-hire" agreement; 3) whether Mesa Verde could repudiate the agreement when it had an on-going project at the time of repudiation.

A. Additional Discovery

The Union argues that summary judgment was premature because a fact issue continues to exist as to whether or not available evidence shows the existence of a core group of employees in Mesa Verde's work force. According to the Union, it limited its analysis of majority status to the year 1981, rather than considering the entire five year period covered by the agreements with Mesa Verde, because of the supposedly voluminous nature of Mesa Verde's payroll records. It argues that "there is a good possibility" that a core group of employees can be established for the year 1983 or by a combination of years.

A review of the proceedings is appropriate. On July 16, 1984, this Court stayed arbitration of a grievance filed by the Union pending resolution of Mesa Verde's declaratory relief action before this Court. During the argument, the Court asked counsel for the Union whether the case was ready for summary judgment. Counsel responded that there had not been adequate time in which to conduct discovery and therefore summary judgment at that time was improper. The Court then set September 28, 1984, as the date for summary judgment motions to allow time for discovery. The Union was given leave to engage in any needed discovery in the interim.

On August 21, 1984, the Union asked Mesa Verde to produce various payroll and personnel records for inspection and copying at the office of counsel for the Union on August 30, 1984. Mesa Verde agreed to produce payroll ledgers and trust fund reports for the period from June 20, 1980, to May 15, 1984, and to make these documents available for inspection at its corporate offices, but objected to any broader request. This discovery dispute was brought to the Court's attention on August 31, 1984, at the hearing on reconsideration of the order staying arbitration. Counsel for both sides agreed to try to settle the discovery dispute without the assistance of the Court, but their efforts proved unsuccessful.

On September 14, 1984, the Union filed its opposition to Mesa Verde's motion for summary judgment. It stated that it was unable to fully respond to Mesa Verde's allegations concerning majority status since Mesa Verde had failed to provide the Union with the necessary documents pursuant to its document request. At the hearing on the motion on September 28, the Court directed both sides to file supplemental memoranda on the issue of majority status by October 26, 1984. The Court further directed Mesa Verde to make available at Mesa Verde's corporate offices the documents requested by the Union and to have a copy machine available for the Union's use. The Union thus had four additional weeks to accomplish necessary discovery and prepare its supplemental memorandum.

On October 4, 1984, Union's counsel Paul Supton, accompanied by a law clerk, went to Mesa Verde's corporate offices and met with Mesa Verde's counsel. Payroll records and other relevant requested material for the entire five year period were produced. Supton has stated in a declaration filed with the Court that because of the voluminous nature of the material, he decided to limit his majority status analysis to the year 1981. The Union does not dispute that Supton and the law clerk spent only four hours at Mesa Verde's offices reviewing and copying this material.

The Union's attempt to suggest that it misunderstood the crucial issue in discovery to be whether laborers belonged to the union, rather than the stability of the work force, is disingenuous at best. In his letter of September 4, 1984, to counsel for Mesa Verde, Victor Van Bourg stated that items in the Union's discovery request were "clearly relevant to Plaintiff's claims that a stable work force never existed and/or that employees were not transferred from one jobsite to another." Thus counsel for the Union was well aware of the critical issue in this case when they made their decision to limit their examination of payroll records to 1981.

Counsel were of course also well aware that they could have sought additional time under Fed.R.Civ.P. 56(f). The Union concedes that it did not do so, but seeks to escape the consequences by relying on Deiches v. Carpenters' Health and Welfare Fund of Philadelphia, 572 F.Supp. 766 (D.N.J.1983), for the proposition that a court possesses the discretion to grant such a continuance despite a Rule 56(f) affidavit not having been filed. In Deiches, the plaintiff did not file a formal Rule 56(f) affidavit, but requested at oral argument that he be given an adequate opportunity to complete discovery and file affidavits. The Union here made no such request after having been twice afforded such an opportunity, first at the argument on July 16, 1984, and again at the argument on September 28, 1984. It could of course have made a further request at any time prior to December 13, 1984, when the Court issued its order on the summary judgment motions, but did not do so. The Deiches court noted, moreover, that "plaintiff's brief fairly implies that the plaintiff is not capable of responding to defendant's affidavits without such discovery." Id. at 776. By contrast, the Union asserted that it was entirely capable of responding to Mesa Verde's affidavits and statistics on the basis of the discovery conducted. In its Memorandum of Points and Authorities re Majority Status, the Union stated in a footnote, "Defendant submits that the analysis of 1981 demonstrates conclusively that the Union attained majority status among the employer's work force in 1981 and is therefore entitled to a presumption of majority status through the life of the agreement." Memo at p. 16 n. 5.

The Union also claims that it preserved its right to further discovery in its October 26 memorandum (p. 16, n. 5). Buried at the end of a lengthy footnote devoted to the argument that the Union had gained majority status because Mesa Verde hired out of the Union hiring hall is a sentence stating that, "if the Court disagrees, Defendant ... submits that an evidentiary hearing should be conducted for a thorough analysis of the employer's other jobsites in 1982, 1983 and 1984."

That hardly can be construed to be a reservation of rights to renew discovery should the ruling be adverse on the motion. Moreover, such a reservation would be wholly inconsistent with Rule 56. Subsection (e) specifically requires that "when a motion for summary judgment is made ... an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial." Subsection (f) further provides that if the adverse party "cannot for reasons stated present ... facts essential to his opposition, the court ... may order a continuance to permit ... discovery...." It would be wholly contrary to the letter or spirit of Rule 56 to permit a party to engage in the kind of sandbagging proposed by counsel for the Union. The Rule does not entitle a party unsuccessful in opposing a motion for summary judgment motion to get a second crack at trying to prevail.¹

B. Jurisdiction

The Union asks the Court to reconsider whether it had jurisdiction to determine the issue of majority status. First, it argues that Laborers Health & Welfare Trust Fund v. Kaufman & Broad of Northern Calif., Inc., 707 F.2d 412, 415-416 (9th Cir.1983) "simply has no application whatsoever to the instant case." The Union misreads the language of the Court's order. The point is not whether Mesa Verde is a Trust Fund as in Kaufman, but that the primary jurisdiction rule does not apply where a party has no standing to raise the issue before the National Labor Relations Board (NLRB). Kaufman, supra. This rule was extended In Operating Engineers Pension Trust v. Beck Engineering & Surveying Co., 746 F.2d 557 at 565 (9th Cir. Nov. 1, 1984), to apply to defenses which could not be presented to the NLRB. The defense raised by Mesa Verde to the Union's charge of breach of a collective bargaining agreement is that the agreement was a voidable pre-hire agreement. The Trust Fund in Beck argued, as does the Union here, that a § 8(f) agreement may only be repudiated by means of an NLRB election pursuant to a petition filed by the employer. The court specifically found that it would have been futile for Beck to have filed an election petition because the "NLRB will not certify or find appropriate a single person unit in a...