Lynn v. Sheet Metal Workers' Intern. Ass'n
| Decision Date | 26 November 1986 |
| Docket Number | No. 75,No. 84-6447,75,84-6447 |
| Citation | 804 F.2d 1472 |
| Parties | 123 L.R.R.M. (BNA) 3273, 55 USLW 2356, 105 Lab.Cas. P 12,098, 6 Fed.R.Serv.3d 855 Edward LYNN, Plaintiff-Appellant, v. SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION and Localof the Sheet Metal Workers' International Association, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Bruce M. Stark, Long Beach, Cal., for plaintiff-appellant.
Julius Reich, Reich, Adell, Crost, Los Angeles, Cal., Donald W. Fisher, Toledo, Cal., for defendants-appellees.
Appeal from the United States District Court for the Central District of California.
Before BROWNING, KENNEDY, and HUG, Circuit Judges.
Lynn filed suit against the Sheet Metal Workers' International Association ("International") claiming that his removal from his position as business representative violated his free speech rights under the Labor-Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. Secs. 401-531 (1982). He also sued both the International and Local 75 of the Sheet Metal Workers' International Association ("Local" or "Local 75") for an alleged failure to refer him to work as required by the collective bargaining agreement. The district court granted summary judgment for the International on the job removal claim and also for Local 75 on the work referral claim; it dismissed the work referral claim against the International for failure to prosecute. Lynn now appeals the district court's actions. We reverse in part and affirm in part.
In June, 1981, plaintiff-appellant Edward Lynn was elected business representative of Local 75. Over the next year, Lynn and other members became increasingly critical of expenditures by the Local's officers and organized a dissident group, which successfully campaigned to defeat proposals to raise the Local's dues. In June, 1982, Local officers, including Lynn, wrote to International's president and asked him to take whatever action he deemed necessary, including trusteeship, to put the Local "on a sound financial basis." On June 22, the International president placed Local 75 under trusteeship pursuant to Article 3, Section 2(c) of the International's Constitution and Ritual ("constitution") and named Regional Director Richard Hawkins as trustee.
Hawkins proceeded to propose another dues increase. At a special meeting of the membership on July 24, Lynn spoke in opposition to the proposal, which was defeated. On July 29, Hawkins, citing his power as trustee, notified Lynn that he was removed from his position as business representative because of his opposition to the dues increase. In addition, on August 9, Hawkins filed charges with the union against Lynn, claiming, inter alia, that Lynn had acted contrary to the recommendations of the Executive Board, and that he had argued against the dues increase "in a belligerant manner." While Lynn did not receive a hearing on his removal from office per se, he appealed Hawkins's action through the three-step process set forth in the International's constitution. He also received a union trial on the Hawkins charges and was fined $2,500.
Following his removal from office, Lynn registered at the Local's hiring hall, which was created under the terms of a collective bargaining agreement with sheet metal industry employers. Because of his seniority, Lynn was placed on the "A" list and was entitled to be referred to work before non-"A" list members. Lynn alleges that non-"A" list members were referred to work instead of him. Lynn further alleges that when he attempted to file a grievance on this issue with Hawkins, he was told to file it with the Local's business representative; yet, when he attempted to file a grievance with the business representative, he was told to file it with Hawkins as trustee. Thus, no grievance was filed.
On November 3, 1983, Lynn filed a complaint in district court against the International and the Local. His first cause of action, against the International, claimed that his removal from the office of business representative violated sections 101, 102, and 609 of the LMRDA, 29 U.S.C. Secs. 411-412, 529, because it infringed upon his free speech rights. 1 His second cause On April 2, 1984, the district court heard the motions, and granted summary judgment for the International on the first cause of action. Two days later, it granted summary judgment for the Local on the second cause of action. Although this left both the complaint against the International on the second cause of action and the Local's counterclaim unresolved, all of the parties agreed that since the International was running the Local through its trustee, Hawkins, a final judgment on all issues had in fact been rendered. On May 4, Lynn appealed. After both parties had briefed the finality issue, this court held on August 8 that we lacked jurisdiction because there had been no final judgment on either the second cause of action vis-a-vis the International's or the Local's counterclaim. Our order was filed and served on August 24 and September 10, respectively.
of action, against both the International and the Local, alleged that the Local's failure to refer him to work was a violation of the collective bargaining agreement and, thus, a violation of section 301, 29 U.S.C. Sec. 185 (1982). Both the International and the Local filed timely answers; the Local also filed a counterclaim to collect the fines levied against Lynn as a result of Hawkins's charges. In March, 1984, the International filed a motion for partial summary judgment on the first cause of action, the removal from office; Lynn filed a cross-motion for partial summary judgment on the same issue. At the same time, the Local filed a motion for summary judgment on the second cause of action, the "failure to refer" issue, on the basis that Lynn had failed to exhaust internal union remedies; Lynn filed an opposition to this motion, but did not file a cross-motion for summary judgment.
This shifted the case back to the trial court, where a pretrial conference had previously been scheduled for August 27. Since all parties believed that the case was properly on appeal, they had not prepared for the conference, and did not appear. On August 27, the court dismissed Lynn's action and the Local's counterclaim for failure to prosecute and for failure to comply with Local Rule 9, which governs pretrial conferences, but stayed the order and continued the conference until September 24. On September 10, Local 75 filed a notice of nonopposition to the dismissal of its counterclaim. Thus, with summary judgment having been granted for the International on the first cause of action and for the Local on the second cause of action, and with the union's acquiescence in the dismissal of its counterclaim, the only viable claim at this point was Lynn's second cause of action, the alleged failure to refer him for work, against the International. Lynn's counsel, who had been out of the country from August 8 to September 10, confirmed this with the court clerk shortly after his return.
During the course of this litigation, Lynn had filed charges with the National Labor Relations Board ("NLRB") about the "failure
to refer" claim and the NLRB had scheduled hearings on the matter for early October. Lynn and his counsel were under the impression that the NLRB was proceeding against both the International and the Local. Thus they decided on September 17 not to contest the dismissal of Lynn's second cause of action against the International, reasoning that the NLRB would handle the substantive aspects of Lynn's complaint and that the dismissal by the trial court would allow Lynn to appeal his first cause of action, because a final judgment on the entire complaint would have been rendered. On September 19, however, Lynn and his counsel discovered that the NLRB was proceeding only against the Local and not against the International; thus, contesting the dismissal suddenly became important. However, Lynn and his counsel had not taken steps to prepare this issue for the pretrial conference and, when the conference was held on September 24, asked for another continuance. The court denied the request, and the order dismissing Lynn's complaint became effective. Lynn appeals the grants of summary judgment and the dismissal. 2
Normally, a grant of summary judgment is reviewed de novo. Nevada v. United States, 731 F.2d 633, 635 (9th Cir.1984); Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983). An appellate court's review is governed by the same standard used by a trial court under Federal Rule of Civil Procedure 56(c). Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1328 (9th Cir.1983); M/V American Queen v. San Diego Marine Construction Corp., 708 F.2d 1483, 1487 (9th Cir.1983). The reviewing court must determine whether there is any genuine issue of material fact and whether the substantive law was correctly applied. Prestin v. Mobil Oil Corp., 741 F.2d 268, 269 (9th Cir.1984); Amaro v. Continental Can Co., 724 F.2d 747, 749 (9th Cir.1984). Thus, we will apply the de novo standard in reviewing the trial court's actions on Lynn's first cause of action, removal from his position as business representative.
Lynn's second cause of action against the Local involves both procedural and substantive issues. We will apply the de novo standard to the procedural issues. However, in considering Lynn's substantive claims, we will follow Clayton v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, 451 U.S. 679, 689, 101 S.Ct. 2088, 2095, 68 L.Ed. 538, 548 (1981), where the Court held that a trial court has discretion in deciding whether exhaustion of internal union remedies should be required before the court would hear the case. See also Scoggins v. Boeing Co., 742 F.2d 1225, 1229-30 (9th Cir.1984).
With regard to Lynn's third...
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