Marino v. Writers Guild of America, East, Inc.
| Decision Date | 12 May 1993 |
| Docket Number | No. 91-56497,91-56497 |
| Citation | 992 F.2d 1480 |
| Parties | 143 L.R.R.M. (BNA) 2249, 125 Lab.Cas. P 10,681 Nick MARINO, Plaintiff-Appellant, v. WRITERS GUILD OF AMERICA, EAST, INC.; Writers Guild of America, West, Inc.; Francis Ford Coppola; and Mario Puzo, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gary E. Gans, Kenoff & Machtinger, Los Angeles, CA, for plaintiff-appellant.
Julius M. Reich, and J. David Sackman Members of Reich, Adell & Crost, A Professional Law Corp., Doreen Braverman, Cynthia R. Saffir, Writers Guild of America, West, Inc., Los Angeles, CA, for defendants-appellees.
Appeal from the United States District Court for the Central District of California.
Before: WALLACE, Chief Judge, O'SCANNLAIN and FERNANDEZ, Circuit Judges.
Nick Marino appeals the district court's summary judgment in favor of the Writers Guild of America ("WGA"), Francis Coppola and Mario Puzo in Marino's action seeking to vacate an arbitration award. WGA, as arbitrator, awarded screenwriting credit for "Godfather III" to Coppola and Puzo, and not to Marino and his cohort, Thomas Wright. Marino contends that the arbitration procedures used to determine the screenwriting credit were fundamentally unfair. Marino also argues that WGA violated its duty of fair representation by adopting the arbitration procedures and by failing to follow those procedures. Finally, Marino challenges the district court's denial of his request to discover the identities of the arbitrators. We affirm.
The WGA is a labor union which was certified as the collective bargaining representative of screenwriters in the movie industry. Marino has been a WGA member since 1985. Pursuant to a collective bargaining agreement between WGA and the employers of writers in the movie industry, WGA determines which writers will receive screen credit for the writing of a screenplay. Both economic benefits and the writer's status in the industry are affected by the receipt of screen credit. Absent the rights set forth in the collective bargaining agreement, the power to allocate credits would be in the hands of the movie producers.
A portion of the collective bargaining agreement titled "Theatrical Schedule A, Theatrical Credits," sets forth the general rules of credit determination. The procedures for arbitration of credit disputes are set out in WGA's "Credits Manual." They are not part of the collective bargaining agreement, but are approved by WGA's board of directors and by vote of its membership. According to the Credits Manual, the arbitration has three phases.
What we will call the first phase is a procedure through which common factual disputes can be resolved. If there are disputes as to "authenticity, identification, sequence, authorship or completeness of any literary material to be considered" a special committee conducts "a hearing at which all participating writers may present testimony and documentary evidence." Manual, Credit Determination Procedure (CDP) § D.4. That committee's factual determination is binding and forms a part of the basis of the material that goes to those who conduct the second phase of the process.
The second phase of the process is conducted by the use of three individuals, called arbiters. Unlike the decision makers in the first phase, the arbiters do not hear oral testimony or argument. They read and cogitate. Their task is to decide who should get screen credit for the screenplay. Their names are kept confidential from the public, the participating writers, and even from one another. CDP § D.1. Each arbiter makes this difficult decision on creativity in isolation and based upon written materials. Those are materials submitted by the film company and they include "all material written by participants as well as ... source material." CDP § D.3. The participating writers are encouraged to review that material and may ask that appropriate materials be added. A participating writer may also submit a position statement for the purpose of helping the arbiters in their consideration of the written materials. Id. Writers are encouraged to do so. Each arbiter then makes a decision and notifies the Credit Arbitration Secretary. A majority decides the question. After the arbiters have made their decision, the participating writers are informed and the third phase becomes available.
The third phase is a review procedure. Within twenty-four hours of notification of the credit determination, any of the writers involved may request a review by a Policy Review Board ("PRB"). CDP § D.5. The PRB's scope of review is limited to determining whether there has been "any serious deviation from the policy of the Guild or the procedure as set forth in this Manual." More specifically, the PRB may consider questions involving dereliction of duty on the part of the arbiters, or any of them, any use of undue influence upon the arbiters, any misinterpretation, misapplication, or violation of WGA policies, and any "[i]mportant new written material" which was, for valid reasons, not previously available. Id. The PRB has the authority to direct the original three arbiters to reconsider the case or to order a new proceeding. The entire arbitration process must occur within 21 business days. If it does not, the producer's own selection may become final.
In 1985, Marino and Wright wrote an adaptation of literary material, referred to as a treatment, for "Godfather III," which Paramount Pictures Corporation ("Paramount") purchased. 1
Paramount hired Marino to write a motion picture script, or screenplay, based on the treatment. Marino completed the screenplay in 1985, but Paramount chose not to produce it at that time.
In 1987, Marino wrote a second treatment and sent it to executives at a production studio owned by Coppola and related to the prior "Godfather" pictures. The production studio neither solicited nor purchased Marino's 1987 treatment. In 1989 and 1990, Coppola and Puzo co-wrote a screenplay for "Godfather III." The movie was produced and completed in 1990.
Before the movie was distributed, Marino was notified that WGA would be conducting an arbitration to determine the writing credits for "Godfather III," pursuant to the collective bargaining agreement. Accordingly, Marino, Coppola and Puzo submitted written materials and statements for the arbiters' review. 2 On November 5, 1990, the Arbitration Secretary informed Marino that Coppola and Puzo would receive sole writing credit. Marino requested a hearing before the PRB where he objected to the arbitration procedure.
The PRB telephoned the three arbiters and presented Marino's allegations to them. The PRB discovered that one arbiter had not read Marino's 1985 treatment. That arbiter was sent the 1985 treatment for review, and the arbiter then reaffirmed the prior conclusion. In a letter dated November 21, 1990, the PRB informed Marino that a new arbitration was unnecessary and that the arbitration decision was final
Marino then filed this action in state court in which he sought to vacate the arbitration award and to obtain declaratory relief. The action was removed to district court on grounds that the proceedings were governed by a collective bargaining agreement and preempted by federal labor law. WGA moved for summary judgment as did Marino. On October 25, 1991, after a hearing, the district court granted WGA summary judgment.
The district court had jurisdiction pursuant to 28 U.S.C. § 1337, and we have jurisdiction under 28 U.S.C. § 1291.
The granting of summary judgment is reviewed de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). This court, viewing the evidence in the light most favorable to the opposing party, must determine whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).
Marino makes a number of attacks upon the arbitration procedures in general and upon their particular application to this case. A number of those revolve around his claim that it is fundamentally unfair to keep the identities of the arbiters confidential. That has the potential, he says, for concealing bias. Moreover, the result is that he cannot appear before them or cross examine witnesses before them. As we will explain, Marino waived the right to mount this group of attacks.
He also asserts that the procedures were applied to him in an improper manner. He claims that he was refused the right to have the participating writers remain anonymous, that he was prevented from submitting what he deemed to be relevant evidence, that he was unable to see the other writers' written submissions, that the arbiters considered evidence that they should not have, and did not consider evidence that they should have.
Arbitration is a favored method for the resolution of disputes, particularly in the labor area. See United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960). It is undoubtedly true that all notions of procedural fairness cannot be jettisoned simply because the parties have agreed to arbitrate. See Sunshine Mining Co. v. United Steelworkers of Am., 823 F.2d 1289, 1295 (9th Cir.1987). However, because arbitration is contractual, rather than imposed by law, what we have come to see as the hallmarks of judicial justice are not necessarily required in arbitral justice. See id.; Todd Shipyards Corp. v. Cunard Line, Ltd., 943 F.2d 1056, 1063-64 (9th Cir.1991). One reason is that arbitration can take account of unique problems. Arbitration can supply high-powered expertise to a particular and narrow...
To continue reading
Request your trial
-
Beck v. United Food and Commercial Workers Union
...that broadly attempts to separate discretionary decision making from inexplicable conduct."); see also Marino v. Writers Guild of Am., E., Inc., 992 F.2d 1480, 1486 (9th Cir.1993). On one end of the continuum is intentional conduct by a union exercising its judgment. Peters, 931 F.2d at 539......
-
Smith v. Pacific Bell Telephone Co., Inc.
...then the plaintiff may prevail if the union's conduct was arbitrary, discriminatory, or in bad faith." Marino v. Writers Guild of America, East, Inc., 992 F.2d 1480, 1486 (9th Cir.1993). The union is not liable for "mere negligence"; rather, "to be arbitrary, the union must have acted in `r......
-
Holmes v. Tenderloin Hous. Clinic Inc.
...or in bad faith. Wellman v. Writers Guild of America, West, Inc., 146 F.3d 666, 670 (9th Cir.1998); Marino v. Writers Guild of America, East, Inc., 992 F.2d 1480, 1486 (9th Cir.1993). If, on the other hand, the conduct involves the Union's judgment, the plaintiff may prevail only if the con......
-
Immersion Corp. v. Sony Computer Entm't Am. LLC, Case No. 16-cv-00857-RMW
...that Sony did not raise its public policy concerns during the arbitration. Dkt. No. 45 at 4, 12 (citing Marino v. Writers Guild of Am., E., Inc. , 992 F.2d 1480, 1484 (9th Cir.1993) ("it is well settled that a party may not sit idle through an arbitration procedure and then collaterally att......
-
'THE PECULIAR GENIUS OF PRIVATE-LAW SYSTEMS': MAKING ROOM FOR RELIGIOUS COMMERCE.
...Ctr. v. Blass Riddick Chilcote, 512 N.E.2d 363, 365 (Ill. App. Ct. 1987)). (171.) See, e.g., Marino v. Writers Guild of Am., E., Inc., 992 F.2d 1480, 1484 (9th Cir. 1993) (noting that "a party may not sit idle through an arbitration procedure and then collaterally attack that procedure on g......