FILED NOT FOR PUBLICATION SEP 04 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES A. OSBURN, its duly elected No. 17-55022 Business Representative/Executive Director; ELIZABETH S. ALVAREZ, D.C. No. 2:14-cv-01310-MWF-CW
Plaintiffs-Appellants, MEMORANDUM* v.
INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES; MOVING PICTURE MACHINE OPERATORS OF THE UNITED STATES AND CANADA, AFL, CIO, CLC; MATTHEW LOEB, its International President; MICHAEL F. MILLER,
Defendants-Appellees.
Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted August 8, 2018 Pasadena, California
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: CLIFTON and CALLAHAN, Circuit Judges, and HOYT,** District Judge.
James Osburn and Elizabeth Alvarez appeal the district court’s grant of
summary judgment in favor of Matthew Loeb, Michael Miller, and the
International Alliance of Theatrical Stage Employees (IATSE). We review a
district court’s grant of summary judgment de novo. Branch Banking & Tr. Co. v.
D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017). We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
1. The district court did not err in granting summary judgment on the
free speech and assembly claims brought under § 101(a)(2) of the
Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). There are
three actions at issue here: 1) Osburn and Alvarez were removed by IATSE from
their positions as elected officers of Local 695; 2) Osburn was suspended from
membership with the union for one year; and 3) Alvarez was terminated from her
appointed position as an employee with Local 695.
We first address the removal of Osburn and Alvarez from their positions as
elected officers. IATSE argues that its constitution required the removal of all 16
elected officers upon the imposition of the trusteeship. If all 16 officers were
** The Honorable Kenneth M. Hoyt, United States District Judge for the Southern District of Texas, sitting by designation. 2 indeed removed because of the imposition of the trusteeship, then Osburn and
Alvarez cannot establish that they were targeted for removal for exercising their
speech or assembly rights.1
A union’s interpretation of its own constitution is entitled to deference.
Local 1052 of United Bhd. of Carpenters & Joiners of Am. v. Los Angeles Cty.
Dist. Council of Carpenters, 944 F.2d 610, 613 (9th Cir. 1991). “Absent bad faith
or special circumstances, an interpretation of a union constitution by union
officials, as well as interpretations of the union’s rules and regulations, should not
be disturbed by the court.” Id. (internal quotation marks and alterations omitted).
IATSE’s interpretation of its constitution is reasonable, and Appellants have not
cited any persuasive evidence of bad faith or special circumstances in the record.
Appellants argue that all 16 officers were not, in fact, removed, but they cite no
clear evidence to contradict the records of removal cited by IATSE. Accordingly,
the district court did not err in granting summary judgment as to the removal.
We next turn to the suspension of Osburn’s membership. IATSE cited
evidence in the record that Osburn advised members not to pay work assessments
in other jurisdictions. Osburn has not provided any express evidence to the
1 The LMRDA provides a different avenue for challenging an improper imposition of a trusteeship. See 29 U.S.C. § 464. Osburn and Alvarez do not challenge the imposition of the trusteeship on appeal. 3 contrary. At oral argument, he contended that he wanted members to obtain
invoices before paying assessments, but he cited no evidence contradicting the
evidence submitted by IATSE that he told members not to pay. Accordingly,
IATSE had a non-discriminatory reason for suspending Osburn.
Finally, we turn to the termination of Alvarez from her position as an
employee. The leader of a local union has the power to appoint his own supporters
to his staff, and such appointments do not violate the speech or assembly rights
guaranteed by the LMRDA. See Finnegan v. Leu, 456 U.S. 431, 441 (1982). The
trustee became the leader of Local 695 upon the imposition of the trusteeship, and
did not violate the LMRDA by terminating Alvarez and replacing her with a staff
member of his choice.
We pause to note that at oral argument, IATSE suggested that we must defer
to the factual findings of the union’s disciplinary tribunal. We disagree. If IATSE’s
position were correct, then IATSE could always defeat summary judgment by
resolving factual findings in its own favor before a case ever reaches federal court.
In support of its position, IATSE cited our opinion in Local 1052 and the Supreme
Court’s opinion in International Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers & Helpers, AFL-CIO v. Hardeman, 401 U.S. 233 (1971).
Neither case supports IATSE’s position. In Local 1052, we noted that we defer to a
4 union’s interpretation of its own constitution, as well as its rules and regulations,
absent bad faith or special circumstances. Local 1052, 944 F.2d at 613. The case
had nothing to do with fact-finding in a disciplinary action, and we never
suggested that we must accept a disciplinary tribunal’s fact-finding as true.
In Hardeman, the Supreme Court dealt with the procedural requirements for
disciplinary proceedings guaranteed by § 101(a)(5). The Court held that we must
affirm the imposition of discipline if the charging party provides “some evidence at
the disciplinary hearing to support the charges made.” Hardeman, 401 U.S. at 246.
The Court also held that federal courts cannot determine the scope of offenses
warranting discipline. Id. at 244–46. But the Court never said that we must accept
the union’s fact-finding as true. Accordingly, we engage in an independent review
of the record and determine whether disputed facts exist that bar summary
judgment. We find no such disputed facts.
2. The district court did not err in granting summary judgment on the
claims brought under LMRDA § 609. A § 609 claim can only be brought to redress
retaliatory actions affecting a union member’s membership rights, not a member’s
rights as an employee or officer. See Finnegan, 456 U.S. at 437; United Steel
Workers Local 12-369 v. United Steel Workers Int’l, 728 F.3d 1107, 1117 (9th Cir.
2013). Accordingly, the only relevant action here is Osburn’s suspension from the
5 membership. But as explained above, IATSE had a non-discriminatory reason for
suspending Osburn.
3. The district court did not err in granting summary judgment on the
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FILED NOT FOR PUBLICATION SEP 04 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES A. OSBURN, its duly elected No. 17-55022 Business Representative/Executive Director; ELIZABETH S. ALVAREZ, D.C. No. 2:14-cv-01310-MWF-CW
Plaintiffs-Appellants, MEMORANDUM* v.
INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES; MOVING PICTURE MACHINE OPERATORS OF THE UNITED STATES AND CANADA, AFL, CIO, CLC; MATTHEW LOEB, its International President; MICHAEL F. MILLER,
Defendants-Appellees.
Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted August 8, 2018 Pasadena, California
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: CLIFTON and CALLAHAN, Circuit Judges, and HOYT,** District Judge.
James Osburn and Elizabeth Alvarez appeal the district court’s grant of
summary judgment in favor of Matthew Loeb, Michael Miller, and the
International Alliance of Theatrical Stage Employees (IATSE). We review a
district court’s grant of summary judgment de novo. Branch Banking & Tr. Co. v.
D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017). We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
1. The district court did not err in granting summary judgment on the
free speech and assembly claims brought under § 101(a)(2) of the
Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). There are
three actions at issue here: 1) Osburn and Alvarez were removed by IATSE from
their positions as elected officers of Local 695; 2) Osburn was suspended from
membership with the union for one year; and 3) Alvarez was terminated from her
appointed position as an employee with Local 695.
We first address the removal of Osburn and Alvarez from their positions as
elected officers. IATSE argues that its constitution required the removal of all 16
elected officers upon the imposition of the trusteeship. If all 16 officers were
** The Honorable Kenneth M. Hoyt, United States District Judge for the Southern District of Texas, sitting by designation. 2 indeed removed because of the imposition of the trusteeship, then Osburn and
Alvarez cannot establish that they were targeted for removal for exercising their
speech or assembly rights.1
A union’s interpretation of its own constitution is entitled to deference.
Local 1052 of United Bhd. of Carpenters & Joiners of Am. v. Los Angeles Cty.
Dist. Council of Carpenters, 944 F.2d 610, 613 (9th Cir. 1991). “Absent bad faith
or special circumstances, an interpretation of a union constitution by union
officials, as well as interpretations of the union’s rules and regulations, should not
be disturbed by the court.” Id. (internal quotation marks and alterations omitted).
IATSE’s interpretation of its constitution is reasonable, and Appellants have not
cited any persuasive evidence of bad faith or special circumstances in the record.
Appellants argue that all 16 officers were not, in fact, removed, but they cite no
clear evidence to contradict the records of removal cited by IATSE. Accordingly,
the district court did not err in granting summary judgment as to the removal.
We next turn to the suspension of Osburn’s membership. IATSE cited
evidence in the record that Osburn advised members not to pay work assessments
in other jurisdictions. Osburn has not provided any express evidence to the
1 The LMRDA provides a different avenue for challenging an improper imposition of a trusteeship. See 29 U.S.C. § 464. Osburn and Alvarez do not challenge the imposition of the trusteeship on appeal. 3 contrary. At oral argument, he contended that he wanted members to obtain
invoices before paying assessments, but he cited no evidence contradicting the
evidence submitted by IATSE that he told members not to pay. Accordingly,
IATSE had a non-discriminatory reason for suspending Osburn.
Finally, we turn to the termination of Alvarez from her position as an
employee. The leader of a local union has the power to appoint his own supporters
to his staff, and such appointments do not violate the speech or assembly rights
guaranteed by the LMRDA. See Finnegan v. Leu, 456 U.S. 431, 441 (1982). The
trustee became the leader of Local 695 upon the imposition of the trusteeship, and
did not violate the LMRDA by terminating Alvarez and replacing her with a staff
member of his choice.
We pause to note that at oral argument, IATSE suggested that we must defer
to the factual findings of the union’s disciplinary tribunal. We disagree. If IATSE’s
position were correct, then IATSE could always defeat summary judgment by
resolving factual findings in its own favor before a case ever reaches federal court.
In support of its position, IATSE cited our opinion in Local 1052 and the Supreme
Court’s opinion in International Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers & Helpers, AFL-CIO v. Hardeman, 401 U.S. 233 (1971).
Neither case supports IATSE’s position. In Local 1052, we noted that we defer to a
4 union’s interpretation of its own constitution, as well as its rules and regulations,
absent bad faith or special circumstances. Local 1052, 944 F.2d at 613. The case
had nothing to do with fact-finding in a disciplinary action, and we never
suggested that we must accept a disciplinary tribunal’s fact-finding as true.
In Hardeman, the Supreme Court dealt with the procedural requirements for
disciplinary proceedings guaranteed by § 101(a)(5). The Court held that we must
affirm the imposition of discipline if the charging party provides “some evidence at
the disciplinary hearing to support the charges made.” Hardeman, 401 U.S. at 246.
The Court also held that federal courts cannot determine the scope of offenses
warranting discipline. Id. at 244–46. But the Court never said that we must accept
the union’s fact-finding as true. Accordingly, we engage in an independent review
of the record and determine whether disputed facts exist that bar summary
judgment. We find no such disputed facts.
2. The district court did not err in granting summary judgment on the
claims brought under LMRDA § 609. A § 609 claim can only be brought to redress
retaliatory actions affecting a union member’s membership rights, not a member’s
rights as an employee or officer. See Finnegan, 456 U.S. at 437; United Steel
Workers Local 12-369 v. United Steel Workers Int’l, 728 F.3d 1107, 1117 (9th Cir.
2013). Accordingly, the only relevant action here is Osburn’s suspension from the
5 membership. But as explained above, IATSE had a non-discriminatory reason for
suspending Osburn.
3. The district court did not err in granting summary judgment on the
due process claim brought under LMRDA § 101(a)(5). Section 101(a)(5) requires
certain procedural safeguards when a union member is to be fined, suspended, or
expelled. Osburn received written notice of his hearing, and he was given ample
time to prepare. The notice specified the basis of the charges against him. He was
present at his hearing, and he presented witnesses and evidence. There was
sufficient evidence to support the imposition of discipline. See Hardeman, 401
U.S. at 246 (The charging party must provide “some evidence at the disciplinary
hearing to support the charges made.”).
4. The district court did not err in granting summary judgment on the
claim for breach of the IATSE constitution. Appellants argue that IATSE violated
the procedural provisions of its constitution in three separate actions: 1) The
hearing placing Local 695 into a trusteeship and suspending the Local’s officers;
2) The hearing suspending Osburn from membership for one year; and 3) The
hearing issuing a $12,500 fine against a member named Josh Levy. As noted
above, a union’s interpretation of its own constitution is entitled to deference, and
6 Appellants have not cited any persuasive evidence of bad faith or special
circumstances. See Local 1052, 944 F.2d at 613.
We first turn to the hearing placing Local 695 into a trusteeship and
suspending the Local’s officers. In Article 7, Section 5, the IATSE constitution
expressly grants the IATSE president original jurisdiction when charges are
brought against a local union. IATSE did not violate any express provision of
Article 7, Section 5.
We next turn to the hearing on Osburn’s membership suspension. Per Article
16 of the IATSE constitution, charges against members and officers are generally
heard by local unions under the IATSE constitution. Osburn argues that IATSE
failed to abide by Article 16. But Osburn’s hearing was not held pursuant to Article
16. In Article 7, Section 5, the constitution confers jurisdiction upon the IATSE
president to try charges against individual members, provided that certain
conditions are met. Here, the IATSE president had original jurisdiction pursuant to
Section 5(b), which confers jurisdiction when charges are filed a against a member
of a suspended union, and Sections 5(e), which confers jurisdiction when charges
are filed against an officer for failure to comply with a lawful order of the
president. IATSE did not violate any express provision of Section 5.
7 Finally, we turn to the hearing issuing a $12,500 fine against a member
named Josh Levy. Mr. Levy is not a party to this case, and the district court did not
decide a claim as to Levy. Accordingly, any violation as to Levy is not before us.
5. The district court did not err in determining that Loeb is not
personally liable to the plaintiffs. The claims at issue here are against both Loeb
and IATSE, but all the alleged conduct is the same. Given that summary judgment
is appropriate in IATSE’s favor, judgment is also appropriate in Loeb’s favor.
6. We need not address Appellants’ argument regarding the standard of
proof required for a retaliatory removal claim under the LMRDA. Before the
district court, IATSE argued for a clear and convincing standard, but the district
court rejected the argument. On appeal, IATSE has expressly waived that
argument. Accordingly, the issue is not before us.
AFFIRMED.