SACRAMENTO VALLEY CHAPTER, NECA v. IBEW, Civ. No. S-81-480 LKK.

• Decision Date: 03 June 1986
• Docket Number: Civ. No. S-81-480 LKK.
• Citation: 125 LRRM 2893,637 F. Supp. 1417
• Parties: SACRAMENTO VALLEY CHAPTER OF THE NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION (NECA) on behalf of itself, its members and contractors who have signed Letters of Assent or Given Powers of Attorneys to NECA, and all those similarly situated, Plaintiffs, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (IBEW)-INTERNATIONAL OFFICE (I-O), and Local 340 of the IBEW, Defendants.
• Court: U.S. District Court — Eastern District of California

637 F. Supp. 1417

125 LRRM 2893

SACRAMENTO VALLEY CHAPTER OF THE NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION (NECA) on behalf of itself, its members and contractors who have signed Letters of Assent or Given Powers of Attorneys to NECA, and all those similarly situated, Plaintiffs, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (IBEW)-INTERNATIONAL OFFICE (I-O), and Local 340 of the IBEW, Defendants.

Civ. No. S-81-480 LKK.

United States District Court, E.D. California.

June 3, 1986.

COPYRIGHT MATERIAL OMITTED

Mark R. Thierman, Thierman, Simpson & Cook, San Francisco, Cal., for plaintiffs.

Robert E. Jesinger, Wylie, Blunt, McBride & Jesinger, San Jose, Cal., for defendant IBEW Local 340.

Peter Nussbaum, Neyhart, Anderson, Nussbaum, Reilly & Freitas, San Francisco, Cal., for defendant International Broth. of Elec. Workers (IBEW).

MEMORANDUM AND ORDER

KARLTON, Chief Judge.

This order amends this court's previous order of May 22, 1986, and certifies the case for interlocutory appeal.

For the second time, this court turns to the litigation engendered by the strike engaged in by members of Local 340, International Brotherhood of Electrical Workers ("IBEW") against the members of the Sacramento Valley Chapter of the National Electrical Contractors Association ("NECA"). In Sacramento Valley Chapter, etc. v. International Brotherhood of Electrical Workers, 632 F.Supp. 1403 (E.D. Cal.1986), I dismissed defendant Local 340's cross-complaint which alleged that plaintiffs and a rival union violated the Sherman Act on the basis that Local 340 did not enjoy "antitrust" standing. In this opinion I consider the parties' cross-motions for summary judgment relative to plaintiffs' allegations that the defendants violated § 303(b) of the Labor Management Relations Act ("LMRA"). 29 U.S.C. § 187(b).

Plaintiffs seek to impose liability on defendants for injury which they allege was in part sustained by the Union's desire to include clauses in their collective bargaining agreement ("CBA") condoning illegal secondary conduct purportedly in violation of § 8(e) of the NLRA, 29 U.S.C. § 158(e), and a work preservation clause allegedly in violation of §§ 8(b)(4)(A) and (B) of the NLRA, 29 U.S.C. § 158(b)(4)(A) and (B).¹ Plaintiffs seek partial summary judgment in the form of a determination that the clauses at issue are illegal. Plaintiffs assert that the causal relationship between the clauses and the damages claimed is a material issue of fact in dispute and thus do not seek complete summary judgment.

Defendants, on the other hand, although they dispute plaintiffs' contentions concerning the legality of the clauses, argue that I need not address their legality. They contend that the clauses were not the cause of the strike nor a cause for its prolongation, and thus their legal character is irrelevant to any injury defendants sustained by virtue of the strike. On this basis, defendants seek summary judgment on plaintiffs' second and fourth causes of action.

I first articulate the relevant standard, and then turn to an exploration of the doctrine of causation relative to a § 303 complaint.²

I SUMMARY JUDGMENT STANDARDS UNDER FED.R.CIV.P. 56

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Poller v. C.B.S., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir.1985); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir. 1984).

Under summary judgment practice, the moving party bears the initial burden of establishing, through affidavits or otherwise, the absence of a genuine issue as to any material fact. Adickes, 398 U.S. at 157, 90 S.Ct. at 1608; Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 883 (9th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., ___ U.S. ___, ___, 106 S.Ct. 1348, 1357, 89 L.Ed.2d 538 (1986); First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979), cert. denied, 445 U.S. 951, 100 S.Ct. 1600, 63 L.Ed.2d 786 (1980).

In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, which support its contention that the dispute exists. Rule 56(e); First National Bank of Arizona, 391 U.S. at 289, 88 S.Ct. at 1592; Strong v. France, 474 F.2d 747, 749 (9th Cir.1973). The opposing party must demonstrate that the fact in contention is material, i.e., a fact which makes a difference in the litigation, Harris v. Tomczak, 94 F.R.D. 687, 690 (E.D.Cal.1982), and the dispute is genuine, Matsushita, ___ U.S. at ___, 106 S.Ct. at 1355. In this endeavor, the opposing party need not establish the material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First National Bank of Arizona, 391 U.S. at 290, 88 S.Ct. at 1593. Thus the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to determine whether there is a genuine need for trial.'" Matsushita, ___ U.S. at ___, 106 S.Ct. at 1356, citing Fed.R.Civ.P. 56(e); International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.1985).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); Poller, 368 U.S. at 468, 82 S.Ct. at 488; S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). All reasonable inferences which may be drawn from the facts placed before the court must be drawn in favor of the party opposing the motion. Matsushita, ___ U.S. at ___, 106 S.Ct. at 1355, quoting United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam); Abramson v. University of Hawaii, 594 F.2d 202, 208 (9th Cir.1979). Nevertheless, as I have previously explained, inferences are not drawn from the air, and it is the opposing parties' obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D.Cal.1985). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, ___ U.S. at ___, 106 S.Ct. at 1356, quoting Cities Service, 391 U.S. at 289, 88 S.Ct. at 1592.

II SECTION 303 CAUSATION

Section 303(b) of the LMRA provides in relevant part that "whoever shall be injured in his business or property by reason or sic any violation of subsection (a) 29 U.S.C. § 158(b)(4) may sue ... and shall recover the damages by him sustained...." 29 U.S.C. § 187(b). This provision requires a causal nexus between the alleged unlawful activity — the union's unfair labor practice — and the injury suffered by plaintiff. Frito-Lay, Inc. v. Local Union No. 137, 623 F.2d 1354, 1363 (9th Cir.), cert. denied, 449 U.S. 1013, 101 S.Ct. 571, 66 L.Ed.2d 472 (1980); Feather v. United Mine Workers of America, 711 F.2d 530, 537 (3d Cir.1983).

The language of § 303 is drawn directly from the treble damage provision of the Clayton Act, Mead v. Retail Clerks International Association, 523 F.2d 1371, 1376 (9th Cir.1975), citing Teamsters Union v. Morton, 377 U.S. 252, 260 n. 16, 84 S.Ct. 1253, 1259 n. 16, 12 L.Ed.2d 280 (1964), and § 303 was enacted as an alternative to subjecting unions to antitrust liability for secondary activities. Id., citing Connell Construction Co. v. Plumbers and Steamfitters Local 100, 421 U.S. 616, 634 and n. 15, 95 S.Ct. 1830, 1840 and n. 15, 44 L.Ed.2d 418 (1975). In the antitrust context, the "`by reason of' language is read as incorporating common law principles of causation citations omitted with such modifications as may be suggested by the statute as a whole, and by Congress' object and purpose." Id. The Ninth Circuit has taught that such a reading is appropriate in § 303 unfair labor practice cases. Id.

Problems of causation in a § 303 context may not, however, given the case law, simply be disposed of by reference to the causational analysis found in antitrust cases. As I explain below, § 303 causation tenders a variety of issues—some familiar to tort litigation, and others quite distinctive. As I further explain, subjecting problems which are unconventional to ordinary tort analysis is at best difficult, and in my opinion unnecessarily confusing.

A. Multiple Causes vs. Multiple Motivations

In Mead, the Ninth Circuit addressed two distinct notions under the general rubric of "causation."³Mead involved a suit by an employer under § 303 to recover damages allegedly sustained as a result of a strike conducted by a union. The union made two contentions. They first argued that there was insufficient proof that the Meads' loss of profits resulted from the strike and picketing rather than from other factors including business conditions and adverse publicity. 523 F.2d at 1376. The Union's second contention was that even if the Meads' business losses were attributable to the strike, pla...