Southwest Regional Council Car v. Phil Limon

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 5, 2021
• Docket: 19-56047
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 5 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SOUTHWEST REGIONAL COUNCIL OF No. 19-56047 CARPENTERS, et al., D.C. No. Plaintiffs-Appellees, 2:17-cv-06582 DSF (MRWx)

v. MEMORANDUM* PHIL LIMON,

Defendant-Appellant.

Appeal from the United District Court for the Central District of California Hon. Dale S. Fischer, District Judge, Presiding

Submitted November 18, 2020** Pasadena, California

Before: RAWLINSON and HUNSAKER, Circuit Judges, and ENGLAND,*** Senior District Judge.

Defendant-Appellant Phil Limon appeals from the district court’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Morrison C. England, Jr., United States Senior District Judge for the Eastern District of California, sitting by designation. determination that he was not deprived of a fair hearing in union disciplinary

proceedings, as guaranteed by the Labor-Management Reporting and Disclosure

Act of 1959, 29 U.S.C. § 401, et seq. (“LMRDA”). We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

Section 101(a)(5) of the LMRDA (as codified at 29 U.S.C. § 411(a)(4))

requires that union disciplinary proceedings be conducted in accordance with basic

procedural safeguards. The mere presence of union counsel during deliberations

does not amount to a per se violation; instead, whether the union’s lawyer

attempted to change the outcome is “a question of fact and credibility to be decided

by the trial court.” Bldg. Material & Dump Truck Drivers, Local 420 v. Traweek,

867 F.2d 500, 511 (9th Cir. 1989). The district court did not clearly err when it

determined that the presence of the union’s lawyer did not influence the decision of

any of the members. It also permissibly concluded that the union had a history of

making legal counsel available to its trial committees. Because these findings were

not clearly erroneous, the district court properly determined that a fair hearing was

afforded.

Ample evidence supports the district court’s conclusion that Limon was

guilty of the charges levied against him. Limon argues that when he selectively

distributed the proceeds of a grievance settlement, he was adhering to an

“unwritten rule” that should not have subjected him to discipline. The district

2 court permissibly rejected this argument, however, finding that Limon did not

actually follow that alleged rule. Limon has pointed to no clear error underlying

this decision.

The district court properly found that a showing of “actual bias” on the

part of committee members was the correct standard and made permissible factual

findings that no such bias had been demonstrated. No extraordinary

circumstances here compelled the district court to presume bias otherwise. See

United States v. Olsen, 704 F.3d 1172, 1191-92 (9th Cir. 2013).

Nor is Limon’s challenge to the UBC’s constitutional prohibition against

“causing dissension” persuasive. The LMRDA “offers a considerably narrower

protection to speech than does the First Amendment.” Massey v. Inland Boatmen’s

Union of Pac., 886 F.2d 1188, 1190 (9th Cir. 1989). Member “speech can be

impaired by union rules if they are reasonable,” id., and rules prohibiting

dissension are reasonable in the union context. See, e.g., Ferguson v. Int’l Ass’n of

Bridge, Structural & Ornamental Iron Workers, 854 F.2d 1169, 1171, 1174 (9th

Cir. 1988).

Limon’s arguments that he should have been permitted to copy union

records and to challenge the dissolution of his local union chapter even after being

expelled from union membership necessarily fail as well. Because Limon was

permissibly expelled from the union, he lacks any injury in fact sufficient to confer

3 standing to pursue such claims. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547-48

(2016).

AFFIRMED.