T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n

• Citation: 809 F.2d 626
• Decision Date: 05 February 1987
• Docket Number: No. 86-1646,86-1646
• Parties: 124 L.R.R.M. (BNA) 2575, 55 USLW 2478, 106 Lab.Cas. P 12,374, 1987-1 Trade Cases 67,433 T.W. ELECTRICAL SERVICE, INC., Shigeru Shinno dba Fairway Electric, Allied Electric Incorporated, N.N. Electric Company, Inc., Tri-Electric, Inc., Oskins Electric Co., Inc., Wasa Electrical Services, Inc., and Globe Electric, Inc., Plaintiffs-Appellants, v. PACIFIC ELECTRICAL CONTRACTORS ASSOCIATION, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 626

809 F.2d 626

124 L.R.R.M. (BNA) 2575, 55 USLW 2478,

106 Lab.Cas. P 12,374,

1987-1 Trade Cases 67,433

T.W. ELECTRICAL SERVICE, INC., Shigeru Shinno dba Fairway

Electric, Allied Electric Incorporated, N.N. Electric

Company, Inc., Tri-Electric, Inc., Oskins Electric Co., Inc., Wasa Electrical Services, Inc., and Globe Electric, Inc., Plaintiffs-Appellants, v. PACIFIC ELECTRICAL CONTRACTORS ASSOCIATION, Defendant-Appellee.

No. 86-1646.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Nov. 7, 1986.

Decided Feb. 5, 1987.

Bert T. Kobayashi, Jr., Honolulu, Hawaii, for plaintiffs-appellants.

Robert S. Katz, Honolulu, Hawaii, for defendant-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before NELSON, REINHARDT and WIGGINS, Circuit Judges.

NELSON, Circuit Judge:

Eight electrical contractors appeal from the district court's grant of summary judgment in favor of defendant Pacific Electrical Contractors Association on all of the contractors' federal antitrust and related state claims. We affirm.

I. BACKGROUND

Plaintiff-appellants are eight electrical contractors ("the contractors") that perform electrical construction work in Hawaii and employ electrical construction workers who are members of Local 1186 of the International Brotherhood of Electrical Workers ("IBEW"). Appellee is Pacific Electrical Contractors Association ("PECA"), a trade association that, on behalf of its member electrical contractors, negotiates collective bargaining agreements with Local 1186. PECA also represents electrical contractors who are not members of PECA but who have authorized PECA to represent them in multi-employer bargaining.

PECA's activities are financed by contributions from electrical contractors to a fund ("the Fund") established in a series of four Master Agreements entered into by PECA, signing electrical contractors, and Local 1186 in 1977, 1980, 1983, and 1985. The first two Master Agreements established In 1981, several PECA members sought to establish a new trade association and stopped contributing to the PECA Fund. PECA sued these contractors, who included all of the eight plaintiffs in the present suit except Wasa Electrical Services ("Wasa"). As part of a court-approved settlement, in late November and early December 1983, each of the seven contractors--T.W. Electrical Service, Fairway Electric, Allied Electric, N.N. Electric, Tri-Electric, Oskins Electric, and Globe Electric ("Globe")--agreed to turn over their delinquent contributions to the Fund and authorized PECA to be their exclusive negotiator in collective bargaining with Local 1186 until September 30, 1987. Each of these seven settlements also included a stipulation that the contractors agree to dismiss and waive "all claims ... arising out of any action by PECA, its officers, directors or members prior to the date of this Stipulation." Subsequent to these settlements, PECA entered into the 1983 and 1985 Master Agreements with Local 1186, which established the ASFF.

the Pacific Electrical Industry Fund ("PEIF"). The latter two Master Agreements established the Association Service Fee Fund ("ASFF"). All of these agreements provide for the same method of contribution to the Fund: "Each Employer shall contribute" to the Fund an amount equal to a specified percentage of the wages earned by each of the Local 1186 workers whom the electrical contractor employs.

On July 1, 1985, the contractors filed this action. At that time, Wasa and Globe were members of PECA; the six others had authorized PECA to represent them until September 30, 1987 under the November/December 1983 settlements. The complaint alleged that PECA, Local 1186, the national IBEW, and other unidentified co-conspirators conspired between 1977 and the present to require all electrical contractors--both PECA members and non-PECA contractors--who use IBEW labor to contribute to the Fund, thus stabilizing the price of procuring a contract for union electrical construction services and depriving non-PECA contractors of a competitive advantage over PECA members. This conspiracy, the complaint alleged, violated Sec. 1 of the Sherman Antitrust Act, 15 U.S.C. Sec. 1 (1982). The contractors alleged that this conduct also violated Hawaii's antitrust and unfair competition statutes, Haw.Rev.Stat. Secs. 480-2, 480-4 (1976). Furthermore, the complaint included a waste-of-assets claim under state law, charging that PECA used the Fund for purposes other than those specified in the Master Agreements.

In December 1985, in a brief opinion, the district court entered summary judgment in favor of PECA on all of the contractors' claims. First, it held that the contractors had not produced any evidence of a conspiracy between PECA, Local 1186, and the national IBEW in violation of federal or state antitrust laws or the state unfair competition statute. It found that the Fund contribution provisions did not require all electrical contractors to contribute to the Fund, but only those who are PECA members or who have authorized PECA to negotiate with Local 1186 on their behalf. It also found that all of the contractors fell in these categories and were bound to contribute to the Fund. Second, the district court held that the federal and state antitrust and unfair competition claims "based on the alleged 1977 conspiracy" are barred (1) by the November/December 1983 stipulations and (2) by the statutes of limitations in 15 U.S.C. Sec. 15b (1982) and Haw.Rev.Stat. Sec. 480-24 (1976). Third, it held that there was no evidence that PECA wasted assets of the Fund.

The contractors challenge all of these rulings on appeal. ¹ Jurisdiction over this appeal is based on 28 U.S.C. Sec. 1291 (1982).

II. DISCUSSION

This court reviews a district court's grant of summary judgment de novo. E.g., 49er Chevrolet, Inc. v. General

                Motors Corp., 803 F.2d 1463, 1466 (9th Cir.1986).  The district court's determinations of the law governing federal and state claims are equally subject to de novo review.   In re McLinn, 739 F.2d 1395, 1403 (9th Cir.1984) (en banc).  Therefore, when reviewing a grant of summary judgment, this court sits in the same position as the district court and applies the same summary judgment test that governs the district court's decision
                

A. The Summary Judgment Test

Rule 56 provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." ² Fed.R.Civ.P. 56(c). A "material" fact is one that is relevant to an element of a claim or defense and whose existence might affect the outcome of the suit. The materiality of a fact is thus determined by the substantive law governing the claim or defense. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., --- U.S. ----, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

Whether a "genuine" issue can be said to exist with respect to a material fact is often a close question. Clearly, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., --- U.S. ----, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Rule 56 provides further guidance. If the party moving for summary judgment meets its initial burden of identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact, see Celotex Corp. v. Catrett, --- U.S. ----, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1600, 26 L.Ed.2d 142 (1970), the nonmoving party may not rely on the mere allegations in the pleadings in order to preclude summary judgment. First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289 & n. 19, 88 S.Ct. 1575, 1593 n. 19, 20 L.Ed.2d 569 (1968). Instead, the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added); see Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103-04 (9th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 435, 93 L.Ed.2d 384 (1986). Hence the nonmoving party may not merely state that it will discredit the moving party's evidence at trial and proceed in the hope that something can be developed at trial in the way of evidence to support its claim. See Anderson, 106 S.Ct. at 2514; Cities Serv., 391 U.S. at 289-90, 88 S.Ct. at 1592-93. Instead, it must produce at least some "significant probative evidence tending to support the complaint." Id. at 290, 88 S.Ct. at 1593.

"[T]he issue of material fact required by Rule 56(c) to be present to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." Id. at 288-89, 88 S.Ct. at 1592. Thus, at this stage of the litigation, the judge does not weigh conflicting evidence with respect to a disputed material fact. Anderson, 106 S.Ct. at 2513. Nor does the judge make credibility determinations with respect to statements made in affidavits, answers to interrogatories, admissions, or depositions. See id. These determinations are within the province of the factfinder at trial. Therefore, at summary judgment, the judge must view the evidence in the light most favorable to the nonmoving party:

                if direct evidence produced by the moving party conflicts with direct evidence produced by the nonmoving party, the judge must assume the truth of the

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