Sheet Metal Workers' Intern. Ass'n, Local No. 355 v. N.L.R.B.

• Decision Date: 26 September 1983
• Docket Number: 81-7397,Nos. 81-7306,P,AFL-CI,s. 81-7306
• Citation: 716 F.2d 1249
• Parties: 114 L.R.R.M. (BNA) 2569, 99 Lab.Cas. P 10,494 SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION, LOCAL NO. 355, SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION,etitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1249

716 F.2d 1249

114 L.R.R.M. (BNA) 2569, 99 Lab.Cas. P 10,494

SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION, LOCAL NO 355, SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION, AFL-CIO, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

Nos. 81-7306, 81-7397.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 12, 1982.

Decided Sept. 26, 1983.

Collis Suzanne Stocking, Washington, D.C., for respondent, cross-petitioner.

David A. Rosenfeld, Van Bourg, Allen, Weinberg & Roger, San Francisco, Cal., for petitioner, cross-respondent.

Petition to Review a Decision and Order of the National Labor Relations Board.

Before FLETCHER, POOLE and CANBY, Circuit Judges.

FLETCHER, Circuit Judge:

This is an appeal from a decision and order of the National Labor Relations Board (Board) requiring Local 355 (Union) to compensate one of its members for losses suffered after the member had been discharged by his employer at the Union's request and enjoining the Union from further prosecuting a lawsuit in state court filed against the employee. 254 N.L.R.B. 773, 106 L.R.R.M. 1137 (1981). The Union seeks review under section 10(f) of the National Labor Relations Act, 29 U.S.C. Sec. 160(f) (1976) (Act). The Board cross-petitions for enforcement. We enforce the order of the Board granting back pay but deny enforcement of that portion granting an injunction and reimbursement for legal expenses and remand with instructions.

FACTS

David Gilson was employed at the Sacramento facility of Zinsco Products (Zinsco), which had a union shop agreement with the Union. Gilson fell behind in his union dues. Pursuant to the union shop agreement, the Union requested Zinsco to discharge Gilson unless he paid his back dues by February 9, 1979. Gilson was told that unless he paid the money he owed the Union by that date, Zinsco would discharge him.

The facts surrounding Gilson's payment of the back dues were in dispute before the administrative law judge. Gilson contended that the Union gave him an extension of time in which to pay the dues and that he paid them in accordance with the terms of the extension. The Union asserted that it gave Gilson no extension and that his payment was untimely.

The following facts were found by the administrative law judge (ALJ) and affirmed by the Board. On the afternoon of Thursday, February 8, 1979, after receiving his paycheck, Gilson telephoned Edgar Ingles, secretary-treasurer of the Union. Gilson identified himself, reminded Ingles that he was supposed to have his dues in by Friday, February 9, and asked whether Ingles wanted him to drive immediately to the Union's office in Oakland with the money or to mail it there instead. Gilson said that he doubted that the postal service would deliver the money by the next day. Ingles told Gilson to mail the money rather than deliver it personally and stated that he would talk with Gil Corvello, the Union's president, about the matter. Gilson stated that he did not want to jeopardize his job and asked whether Ingles was positive that it was all right for him to send the money by mail. Ingles told Gilson "not to worry about it, he would talk to Gil" and told Gilson, "go ahead and mail it in."

Gilson followed Ingles' instructions. On Thursday, February 8, immediately after talking with Ingles, Gilson purchased a money order for the amount he owed and mailed it to the Union's office. The Union On the afternoon of Friday, February 9, Zinsco's production manager, David Kelly, telephoned the Union's office and asked to speak to President Corvello. The woman who answered the telephone said that Corvello was not there. Kelly asked whether she was familiar with Gilson's situation and whether the Union had received Gilson's dues payment. She stated that she was familiar with Gilson's situation and that the Union had not received any money from Gilson. Acceding to the Union's earlier request, the Company terminated Gilson on February 9 and hired a replacement, who began work the following Monday morning.

did not receive the money until Monday, February 12.

On March 8, 1979, Gilson filed an unfair labor practice charge with the Board alleging that the Union had violated section 8(b)(2) of the Act, 29 U.S.C. Sec. 158(b)(2) (1976), by causing Zinsco wrongfully to terminate his employment. On April 27, the Board issued a complaint alleging that the Union had violated sections 8(b)(2) and 8(b)(1)(A) of the Act by causing Zinsco to discharge Gilson for failing to tender his dues "in the circumstances where [the Union had] granted Gilson an extension of time beyond the discharge date to pay said dues ... and where [the Union had] failed to notify [Zinsco] of said extension."

On May 21, 1979, the Union filed a civil suit against Gilson in state court. The complaint alleged that Gilson had failed to pay his dues on time, that he had "claim[ed]" that the Union gave him an oral extension of the time in which to pay his dues, and that he had "claim[ed]" that the Union thereby breached a duty it owed to him. The complaint further alleged that "[a]n actual and present controversy exists between the parties regarding the questions referred to above" and that "the Union had been damaged in the sum of $30,000 by [Gilson's] conduct." In addition to damages, the complaint sought "declaratory relief."

Prior to the hearing before the ALJ on the unfair labor practice complaint, the Union moved the Board for summary judgment and requested the Board to transfer the proceedings to itself and to issue an order to show cause why the motion should not be granted. The Board denied the Union's motion.

After the hearing, the ALJ found that the Union had violated sections 8(b)(2) and 8(b)(1)(A) of the Act by causing Gilson's discharge. The ALJ also found that the Union had violated section 8(b)(1)(A) of the Act by filing the state court suit against Gilson in retaliation for Gilson's filing of an unfair labor practice charge.

The ALJ ordered the Union to compensate Gilson for any loss of wages suffered by Gilson from the date of discharge through the date five days after the date on which the Union informed the employer that the Union no longer objected to Gilson's reinstatement. The ALJ also directed the Union to withdraw its state court suit and to reimburse Gilson for all legal expenses incurred in his defense. The Board affirmed the ALJ's order, but modified the back pay award to require the Union to compensate Gilson for all wages lost by reason of his discharge, including those wages accruing more than five days after the Union had requested reinstatement.

DISCUSSION

I. Denial of Summary Judgment.

The Union first contends that the Board erred in denying the Union's prehearing motion for summary judgment. The Union maintains that, under section 10(b) of the Act, unfair labor practice proceedings "shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure for the district courts of the United States," 29 U.S.C. Sec. 160(b) (1976), including the summary judgment procedures set forth in Fed.R.Civ.P. 56. The Union does not assert, however, that the pleadings before the Board taken together with the Union's own affidavits did not raise any genuine issues of material fact in the sense of Rule 56(c). Rather, it argues that Rule 56 nonetheless We need not decide in this case whether Rule 56(e) is applicable in unfair labor practice proceedings. Even "[u]nder Rule 56 of the federal rules, a party against whom a motion for summary judgment is directed need not file any contravening affidavits or other materials but is entitled to a denial of the motion for summary judgment where the movant's papers are insufficient on their face or themselves demonstrate the existence of a material issue of fact." Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 (9th Cir.1976) (per curiam).

requires entry of summary judgment in the Union's favor because Rule 56(e) does not permit a party opposing a summary judgment motion to rest solely on the allegations contained in his pleading without producing any rebuttal affidavits.

In this case, an affidavit signed by Union President Corvello, that was appended to the Union's summary judgment motion, states that on February 5, 1979, Corvello told Gilson "to send some money in by Friday, February 9." This averment was insufficient to resolve the central issue, whether the Union had told Gilson that he could mail his dues payment on Thursday rather than hand-deliver it to the Oakland office of the Union by Friday. One reasonable construction of Corvello's averment is that Corvello told Gilson to put his payment in the mail before Friday rather than to ensure its receipt by Friday. The affidavit of Ingles, that was also appended to the Union's motion, while stating that Ingles did not "in any way make any arrangements with [Gilson] different from what Corvello had left when he left town on February 6, 1979," similarly leaves material facts unresolved. The affidavit does not state what the arrangements were or that Ingles had personal knowledge of them. In short, the Union's own "supporting" affidavits were insufficient on their face to show that there was no genuine issue of material fact. The Board did not err in denying the Union's motion.

II. Securing Gilson's Discharge.

The Union further contends that the Board erred in finding that the Union had violated section 8(b)(2) of the Act by securing Gilson's discharge without providing him "clear notice" of the means by which he could retain his job and in entering an order against the Union requiring the Union to compensate Gilson for wages lost from date of discharge until reinstatement by Zinsco. We reject both arguments and enforce the back pay portion of the Board's order in its entirety.

A. Section 8(b)(2) Violation.

Pursuant to...