National Labor Relations Board v. Sheet Metal Workers Int'l Association, Local 293

Filing 76

ORDER IMPOSING SANCTIONS AGAINST SHEET METAL WORKERS INTERNAT'L ASSOCIATION, LOCAL 293, AND GRANTING NLRB'S REQUEST FOR SANCTIONS AGAINST ARTHUR TOLENTINO AND CHARLES KHIM re 72 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 1/19/12. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Charles Khim, Esq. served by first class mail at the address of record on January 19, 2012. The Financial Section for the District of Hawaii received a copy of this order through interoffice delivery (e-mail).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
NATIONAL LABOR RELATIONS
BOARD,

)
)
)
)
Plaintiff,
)
vs.
)
)
SHEET METAL WORKERS INT’L
)
)
ASSOCIATION, LOCAL 293,
)
)
Defendant.
_____________________________ )

CIV. NO. 11-00290 SOM/BMK
ORDER IMPOSING SANCTIONS
AGAINST SHEET METAL WORKERS
INTERNAT’L ASSOCIATION, LOCAL
293, AND GRANTING NLRB’S
REQUEST FOR SANCTIONS AGAINST
ARTHUR TOLENTINO AND CHARLES
KHIM

ORDER IMPOSING SANCTIONS AGAINST SHEET METAL WORKERS
INTERNAT’L ASSOCIATION, LOCAL 293, AND GRANTING NLRB’S REQUEST
FOR SANCTIONS AGAINST ARTHUR TOLENTINO AND CHARLES KHIM
This court held a hearing on December 28, 2011, regarding
the NLRB’s “Notice of Respondents’ Noncompliance with Court’s
October 3, 2011 Contempt Order and Request for Additional
Sanctions.”

For the reasons stated on the record at the December

28 hearing, this court imposes the following sanctions:
1.

Sanctions of $250 per day payable to the United States

Treasury and delivered to the Clerk of Court for the United
States District Court for the District of Hawaii are imposed
against Sheet Metal Workers Internat’l Association, Local 293,
for failure to comply with this court’s “Order Granting NLRB’s
Motion for Contempt Sanctions,” filed on October 3, 2011.
Specifically, the Union failed to permit a meaningful deposition
of Arthur Tolentino.

While it also failed to produce all

subpoenaed documents, it did, on December 28, provide new

information that certain documents in one category do not exist.
It also indicated that it had sought clarification from the NLRB
with respect to another category.

Under those circumstances, the

court does not rely on the failure to produce all subpoenaed
documents in the present order, although the Union remains
required to produce the documents.

The sanctions, which were

announced in this court’s October 3 order and so should come as
no surprise, are payable for each day during which noncompliance
continues, with the first day for which sanctions must be paid
being October 18, 2011, and the last day being the day before a
meaningful deposition occurs.
2.

Pursuant to Rules 30 and 37 of the Federal Rules of

Evidence, sanctions against Arthur Tolentino in his individual
capacity and Charles Khim in his individual capacity are imposed
jointly and severally for their actions relating to the
deposition.

Tolentino and Khim are ordered to pay to the NLRB

any court reporter fees incurred in connection with the
deposition of October 17, 2011, as well as attorney’s fees
totaling $4500 ($150 per hour times 30 hours), reflecting the
time spent by NLRB attorneys preparing for and attending the
October 17 deposition and preparing briefs and oral argument for
and attending the hearing seeking the imposition of sanctions
relating to the events of October 17.

As an additional ground

for imposing the above sanctions against Charles Khim, this court

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relies on 28 U.S.C. § 1927, finding that Khim acted with
knowledge and more than recklessness in flouting this court’s
October 3 order, inducing Sheet Metal Workers Internat’l
Association, Local 293, to flout that order, and rendering the
October 17 deposition tantamount to no deposition at all.

To

avoid any confusion, the court states that this sanction is
intended to make the NLRB whole with respect to the injury it
sustained relating to the October 17 deposition, and Tolentino
and Khim need not each pay the court reporter’s fee and
attorney’s fees of $4500, which would result in double recovery
by the NLRB.

Instead, Tolentino and Khim are both jointly and

severally responsible for ensuring that one or both of them
reimburses the NLBS for the court reporter’s fee and pays a total
of $4500 in attorney’s fees.
3.

In addition, the court, relying on its inherent

power and finding bad faith by both Tolentino and Khim, as more
fully set forth at the hearing on December 28, imposes sanctions
of $2500 on Tolentino individually and of $2500 on Khim
individually, to be paid to the United States Treasury and
delivered to the Clerk of Court of the United States District
Court for the District of Hawaii.

To be clear, the court states

that each of the two of them is separately sanctioned an
additional $2500 under the court’s inherent power.

As the court

stated at the December 28 hearing, the court recognizes that the

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NLRB did not in its Notice of Noncompliance expressly seek
sanctions under the court’s inherent power, but the court found
no prejudice to Tolentino and Khim in its issuance of sanctions
under its inherent power given the references to the court’s
inherent power in the Notice of Noncompliance, this court’s
earlier statements about that power, and Khim’s expectation that
sanctions required a finding of bad faith.

At the December 28

hearing, no dispute with this finding by the court was expressed,
and, although the court thereafter invited further written
comment on the issue, none was submitted.
4.

No later than December 30, 2011, the parties were

to agree on a date for the deposition of Tolentino to occur no
later than January 13, 2012.

Any documents responsive to the

subpoena not yet produced were to be produced by that date.

Any

objection made during the deposition could not exceed 10 words.
Given the unwarranted length of the numerous objections during
the October 17 deposition, the court imposed a sanction of $100
for each word exceeding the 10-word limit.

This limit did not

apply to instructions to the deponent not to answer a question
based on the attorney-client privilege.

If the deposition and

production have not yet occurred because the parties were waiting
for the issuance of the present order, then the discovery shall
occur by January 31, 2012, unless otherwise agreed to, and all of
the above rulings shall remain in effect.

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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 19, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

National Labor Relations Board v. Sheet Metal Workers Int’l
Association, Local 293; CIV. NO. 11-00290 SOM/BMK; ORDER IMPOSING
SANCTIONS AGAINST SHEET METAL WORKERS INTERNAT’L ASSOCIATION,
LOCAL 293, AND GRANTING NLRB’S REQUEST FOR SANCTIONS AGAINST
ARTHUR TOLENTINO AND CHARLES KHIM

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