Collins et al v. Laborers International Union of North America Local No 872 et al

Filing 168

ORDER Denying Plaintiff's 141 Motion for Partial Summary Judgment. The 154 , 163 , and 164 Motions to Strike are Denied as moot. Signed by Judge Lloyd D. George on 9/21/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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GENE COLLINS, et al.,

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Plaintiffs,

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v.

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Case No. 2:11-cv-00524-LDG (CWH)

LABORERS’ INTERNATIONAL UNION
OF NORTH AMERICA LOCAL NO.
872, et al.,

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ORDER

Defendants.

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The plaintiffs seek partial summary judgment (ECF No. 141) against defendant

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Laborers’ International Union of North America Local No. 872 (the Union) as to their third,

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fourth, and fifth claims for relief.1 They argue that judgment is appropriate because they

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obtained an arbitration award to which this Court should defer in considering whether

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summary judgment is appropriate on these claims. The defendants filed an opposition

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(ECF No. 147) which, for reasons stated below, the Court has not read or considered. The

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plaintiffs move to strike the opposition (ECF No. 154) because it is six pages longer than

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While the plaintiffs’ complaint alleges these claims against the defendants
generally, their motion for partial summary judgment seeks judgment solely as to the
Union.

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allowed by Local Rules. In response, the defendants filed an amended opposition (ECF

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No. 159) which plaintiffs move to strike (ECF No. 164) because the defendants did not first

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obtain leave of the Court to file the amended response.

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The plaintiffs also filed a reply to their motion for summary judgment. The

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defendants move to strike the declarations and evidence that plaintiffs attached to that

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reply (ECF No. 163), arguing that the evidence should have been attached to the original

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motion. The plaintiffs respond that the additional evidence is in rebuttal to arguments and

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evidence submitted by the defendants in their opposition.

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The Court reviewed only the plaintiffs’ motion for partial summary judgment and

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points and authorities, as well as the evidence submitted by plaintiffs in support of their

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motion. The plaintiffs did not meet their initial burden of showing that there are no genuine

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issues of material fact. Accordingly, the Court will deny the motion and, because the Court

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decided the motion without consideration of either the opposition or reply, will deny the

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various motions to strike as moot.

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Motions to Strike

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Regardless of whether the Court grants the plaintiffs’ and defendants’ motions to

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strike, the Court will be required to review plaintiffs’ papers in support of their motion for

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partial summary judgment. The Ninth Circuit has noted:

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Under Federal Rule of Civil Procedure 56, a moving party is entitled to
summary judgment only upon a showing that there are no genuine issues of
material fact requiring a trial. The party opposing the motion is under no
obligation to offer affidavits or any other materials in support of its opposition.
Summary judgment may be resisted and must be denied on no other grounds
than that the movant has failed to meet its burden of demonstrating the
absence of triable issues. A local rule that requires the entry of summary
judgment simply because no papers opposing the motion are filed or served,
and without regard to whether genuine issues of material fact exist, would be
inconsistent with Rule 56 . . ..

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Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). T he Ninth Circuit went on to
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observe that, even in the absence of an opposition, a court would abuse its discretion by
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granting “a motion for summary judgment where the movant’s papers are insufficient to

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support that motion or on their face reveal a genuine issue of material fact.” Id.

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As will be discussed below, the Court’s review of the plaintiffs’ evidence establishes

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that, even in the absence of an opposition by defendants, the plaintiffs did not meet their

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burden of establishing the absence of genuine issues of material fact. Accordingly, the

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Court will not consider the motions to strike, but will deny them as moot.

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Motion for Summary Judgment

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In considering a motion for summary judgment, the court performs “the threshold
inquiry of determining whether there is the need for a trial—whether, in other words, there

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are any genuine factual issues that properly can be resolved only by a finder of fact

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because they may reasonably be resolved in favor of either party.” Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 250 (1986); United States v. Arango, 670 F.3d 988, 992 (9th Cir.

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2012). To succeed on a motion for summary judgment, the moving party must show (1)

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the lack of a genuine issue of any material fact, and (2) that the court may grant judgment

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as a matter of law. Fed. R. Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322

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(1986); Arango, 670 F.3d at 992.

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A material fact is one required to prove a basic element of a claim. Anderson, 477

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U.S. at 248. The failure to show a fact essential to one element, however, "necessarily

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renders all other facts immaterial." Celotex, 477 U.S. at 323. Additionally, “[t]he mere

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existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.”

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United States v. $133,420.00 in U.S. Currency, 672 F.3d 629, 638 (9th Cir. 2012) (quoting

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Anderson, 477 U.S. at 252).

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“[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after

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adequate time for discovery and upon motion, against a party who fails to make a showing

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sufficient to establish the existence of an element essential to that party’s case, and on

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which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. “Of
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course, a party seeking summary judgment always bears the initial responsibility of

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informing the district court of the basis for its motion, and identifying those portions of ‘the

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pleadings, depositions, answers to interrogatories, and admissions on file, together with the

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affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material

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fact.” Id., at 323. As such, when the non-moving party bears the initial burden of proving,

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at trial, the claim or defense that the motion for summary judgment places in issue, the

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moving party can meet its initial burden on summary judgment "by 'showing'–that is,

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pointing out to the district court–that there is an absence of evidence to support the

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nonmoving party's case." Id., at 325. Conversely, when the burden of proof at trial rests

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on the party moving for summary judgment, then in moving for summary judgment the

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party must establish each element of its case.

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Once the moving party meets its initial burden on summary judgment, the non-

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moving party must submit facts showing a genuine issue of material fact. Fed. R. Civ. Pro.

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56(e); Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir.

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2000). As summary judgment allows a court "to isolate and dispose of factually

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unsupported claims or defenses," Celotex, 477 U.S. at 323-24, the court construes the

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evidence before it "in the light most favorable to the opposing party." Adickes v. S. H.

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Kress & Co., 398 U.S. 144, 157 (1970). The allegations or denials of a pleading, however,

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will not defeat a well-founded motion. Fed. R. Civ. Pro. 56(e); Matsushita Elec. Indus. Co.

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v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). That is, the opposing party cannot

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“‘rest upon the mere allegations or denials of [its] pleading’ but must instead produce

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evidence that ‘sets forth specific facts showing that there is a genuine issue for trial.’”

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Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed.

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R. Civ. Pro. 56(e)).

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Background
In March 2015, the Court determined that plaintiffs’ third, fourth, and fifth claims for

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relief were “subject to the procedures of the Master Labor Agreement regarding arbitration.”

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The Court stayed this matter pending resolution of that procedure.

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As asserted by the plaintiffs in their memorandum of points and authorities, “the

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arbitration directed by this Court . . . occurred and produced final and enforceable awards

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for each of the Plaintiffs against Defendant Local Union 872.” Plaintiffs’ Memorandum of

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Points and Authorities, p.1, ll.1-2 (ECF No. 141). 2 More specifically, they assert that in

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response to the Court’s March 2015 order, they “initiate[d] a grievance against Defendant

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Union under the MLA on February 5, 2016.” Id., p.2, ll.3-4. “An arbitration hearing was

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held before a Board of Adjustment formed under Article G of the [Master Labor Agreement

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(MLA)].” Id, ll.8-9. “[T]he Board of Adjustment issued a decision and award and served it

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on the Union.” Id, ll.9-10. “The Union’s time to challenge the award has elapsed.” Id.

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As asserted by the plaintiffs in their Statement of Undisputed Facts and Claims, they

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served a Joint Grievance against the Union on February 5, 2016, but the Union did not

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meet with them. On March 23, 2016, the plaintiffs assigned their grievance to a meeting of

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the Board of Adjustment, scheduled for April 13, 2016 at the Associated General

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Contractors’ (AGC) office. On that same date, the Board of Adjustment scheduling letter

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was delivered to the Union. The place of the meeting was subsequently changed and, on

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March 25, 2016, the Revised Notice of Meeting was delivered to the Union. The plaintiffs

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selected Yolanda Dyess and Rosemary Phillips to be their Board of Adjustment members.

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The Union did not request a postponement or rescheduling of the Board of Adjustment

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As the Court has limited its consideration to the plaintiffs’ Points and
Authorities and their evidence, all further citations will cite to Points and Authorities and the
relevant page and line. Further, as the plaintiffs offer only the declaration of Rosemary
Phillips and the exhibits attached to that declaration as evidence in support of their motion,
the citations to the evidence will either identify that it is to the Phillips’ Declaration, or the
relevant Exhibit attached to that declaration.
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meeting. On April 13, 2016, the Board of Adjustment met and heard the plaintiffs’

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grievance. The Union did not appear at the hearing. By majority vote, the Board of

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Adjustment found the Union had violated the MLA. On April 15, 2016, the Board of

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Adjustment notified the Union of its decision. The Union did not challenge the award.

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Analysis

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The plaintiffs fail to establish there is an absence of a genuine issue of fact that a

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Board of Adjustment was formed under Article G of the MLA. Rather, their evidence, which

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plaintiffs mis-characterize in their Points and Authorities and their Statem ent of Facts,

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establishes that genuine issues of fact remain whether a Board was ever formed that had

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authority to enter an award against the Union.

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In their Statement of Fact #9, the plaintiffs cite to ¶17 of the Phillips’ Declaration and
Exhibit E for the propositions that:

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[o]n March 23, 2016, the matter was assigned by Plaintiffs as Grievants to a
meeting of the Board of Adjustment per Article IV ¶G of the MLA. The Board
was scheduled to meet at the Associated General Contractors office . . . on
April 13, 2016.

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In their Statement of Fact #10, the plaintiffs cite to ¶18 and Exhibit F for the proposition
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that:
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[t]he March 23, 2016, Board of Adjustment scheduling letter was hand
delivered to and received by the Defendant Union on March 23, 2016.

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In their Points and Authorities, the plaintiffs assert: “Board Members Phillips’ and Dyess’

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March 23 and 25, 2016, letters notified Local 872 of the time and place of the Board

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meeting.”

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The plaintiffs’ Statements of Fact are materially incomplete recitations, and material

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misstatements, of Phillips’ statements in her Declaration. Their argument that the letters

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were from “Board Members” exemplifies the triable issue of material fact that precludes a

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grant of summary judgment.

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In her declaration, Phillips does not offer any statement suggesting that, on March

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23, 2016, the plaintiffs assigned their grievance to a meeting of a Board of Adjustment. At

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most, in ¶17, Phillips recites that “[o]n March 23, 2016, Yolanda Dyess and I signed a letter

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advising that the Board of Adjustment meeting was scheduled for 10:00 a.m. on April 13,

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2016" at the AGC office. She attests that Exhibit E is a true and correct copy of that letter.

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Exhibit E is a letter dated March 23, 2016, written on Six Star letterhead. The letter is

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signed by Phillips for plaintiff Six Star Cleaning and by Dyess for Step by Step Cleaning.

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The letter recites that the plaintiffs served a grievance on the Union. It further recites:

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Article IV G of the 2005-2010 Labor Agreement Between Associated General
Contractors Association and Laborers International Union of North America
No. 872 provides that if “a settlement is not reached within five (5) days, the
matter shall be submitted to a Board of Adjustment. . ..”

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The letter concludes: “A meeting of the Board of Adjustment is now scheduled for 10:00
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a.m., April 13, 2016, at the” AGC office.
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Omitted from the plaintiffs’ Statement of Facts are additional statements by Phillips
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providing context to her declarations in ¶17. According to her declaration, Philips is the
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president of Six Star Cleaning & Carpet Services, Inc., one of the plaintiffs in this litigation.
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Phillips states, in ¶13, that after the Union did not timely respond to the written grievance,
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she “contacted the other Plaintiffs and we agreed to submit the Grievance to the next level,
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to the Board of Adjustment using the procedure set forth in Article IV paragraph G of the
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MLA.” In ¶14, Phillips states that the plaintiffs “selected Yolanda Dyess of Step by Step
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Cleaning Service and me as members of the Board of Adjustment to pursue and resolve
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the Plaintiffs’ Joint Grievance.”3 Phillips continues, in ¶15, that on March 15, 2016, she

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spoke with Associated General Contractors (AGC)’s Director of Labor Relations regarding
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the procedures to conduct a Board of Adjustment and to reserve an AGC conference room
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The plaintiffs proffer this as Statement of Fact #13.
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for a Board of Adjustment meeting. Further, on March 22, 2016, she then spoke with

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AGC’s Office Manager to confirm use of the room.

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The relevant portion of Article IV ¶G of the MLA provides:

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If the parties at this step (job-level attempt to resolve the initial written
grievance) cannot resolve the grievance within the five day period, either
party may notify the other party involved in writing that it invokes the next
step.

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If a settlement is not reached within five (5) days, the matter shall be
submitted to a Board of Adjustment, appointed as follows: The Employer
involved shall appoint two (2) members, or his designated representative, and
the Union shall appoint two (2) members.

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Other than the March 23 letter, the record lacks any evidence suggesting the plaintiffs

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notified the Union they were submitting their grievance to a Board of Adjustment. The

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plaintiffs do not offer any argument, nor direct the Court’s attention to any evidence that

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can be construed as such a written notice from the plaintiffs to the Union. The Court

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recognizes that some aspects of the letter are consistent with a construction that Phillips

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and Dyess signed the letter in their capacity as agents of the plaintiffs. The letter was

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written on Six Star Cleaning letterhead. Phillips’ and Dyess’ signature lines indicate they

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were signing as agents of the plaintiffs. The content of the letter, however, does not

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suggest that they wrote the letter on behalf of the plaintiffs to notify the Union that the

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plaintiffs were submitting their grievance to a Board of Adjustment.

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Rather, considered in the context of the acts of Phillips and the plaintiffs, the content

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of the letter indicates that Phillips and Dyess wrote the letter on behalf of a Board of

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Adjustment to notify the Union of the time and place at which it would conduct a hearing to

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resolve the plaintiffs’ grievance. Phillips declares that the plaintiffs agreed to submit their

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grievance to a Board of Adjustment and selected Phillips and Dyess as their appointed

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members. On March 15, (prior to any notification to the Union) Phillips began scheduling a

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time and place for a Board of Adjustment meeting. On March 22, she confirmed the time

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and place for a Board of Adjustment meeting. The plaintiffs, themselves, argue that
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Phillips and Dyess signed the letter as “Board Members” to notify the Union of the time and

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place of the Board of Adjustment meeting.

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In sum, according to the plaintiffs’ evidence and the conflicting constructions of the

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March 23, letter, before the Union had an opportunity to appoint any members to a Board

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of Adjustment, the plaintiffs had already appointed Phillips and Dyess as members of a

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Board of Adjustment. On March 15, before the Union had an opportunity to appoint any

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members to a Board of Adjustment, Phillips began unilaterally acting on behalf of a Board

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of Adjustment to schedule the date and place f or a meeting to hear the plaintiffs’ grievance.

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On March 22, before the Union had an opportunity to appoint any members to a Board of

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Adjustment, she continued to act unilaterally on behalf of the Board of Adjustment to

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confirm the time and place for a Board meeting. On March 23, Phillips and Dyess signed a

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letter both (a) as representatives of the plaintiffs, in which the plaintiffs assigned their

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grievance to a Board of Adjustment, and (even though the the Union had not had any

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opportunity to appoint any members to the Board) (b) as Board members unilaterally acting

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on behalf of the Board of Adjustment to notify the Union that a Board of Adjustment had

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scheduled the time and place of the hearing to resolve the plaintiffs’ grievance. At a

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minimum, a genuine issue of fact exists whether, consistent with the MLA and before any

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notice was provided to the Union, Phillips and Dyess could form a Board of Adjustment and

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unilaterally act on behalf of that Board. As one of those unilateral acts was the notification

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to the Union of the time and place of the Board hearing, a genuine issue of fact exists

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whether the Union was properly notified of the Board hearing. As an issue of fact exists

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whether the Union was properly notified of the Board meeting, an issue of fact exists

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whether Phillips and Dyess could convene a Board meeting on April 13 in the absence of

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Union-appointed Board members. These issues of fact preclude summary judgment.

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The plaintiffs argue that whether the steps in a contractual grievance process were
met is a question for the arbitrator to which this Court must defer. At issue, however, is
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whether the Phillips and Dyess had any authority to act as a Board of Adjustment under the

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MLA. As issues of fact remain whether a Board of Authority was formed, issues of fact

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remain whether Phillips and Dyess had any authority to enter an award against the Union.

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Therefore, for good cause shown,

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THE COURT ORDERS that Plaintiffs’ Motion for Partial Summary Judgment (ECF

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No. 141) is DENIED;
THE COURT FURTHER ORDERS that the Motions to Strike (ECF Nos. 154, 163,
164) are DENIED as moot.

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DATED this ______ day of September, 2017.

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Lloyd D. George
United States District Judge

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