Southwest Regional Council v. Michael McCarron

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 27, 2018
• Docket: 15-55879
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 27 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SOUTHWEST REGIONAL COUNCIL OF No. 15-55879 CARPENTERS, D.C. No. Plaintiff-Appellee, 2:14-cv-02762-JVS-JC

v. MEMORANDUM* MICHAEL MCCARRON,

Defendant-Appellant,

and

SOUTHWEST CARPENTERS TRAINING FUND; DECARLO & SHANLEY, P.C.,

Third-party-defendants.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Submitted February 23, 2018**

Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.

* 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). Michael McCarron appeals pro se from the district court’s interlocutory

order granting summary judgment in favor of Southwest Regional Council of

Carpenters (“SWRCC”), an affiliate of the United Brotherhood of Carpenters and

Joiners of America, on SWRCC’s claim and McCarron’s counterclaims under the

Labor Management Reporting and Disclosure Act (“LMRDA”). We have

jurisdiction under 28 U.S.C. § 1291. We review de novo, Corns v. Laborers Int’l

Union of N. Am., 709 F.3d 901, 907 (9th Cir. 2013), and we affirm.

The district court properly granted summary judgment on SWRCC’s claim

of breach of fiduciary duty under LMRDA § 501(a) because McCarron violated

the SWRCC’s bylaws, and thus breached his fiduciary duties as a union officer as a

matter of law, by making payments to the Southwest Carpenters Training Fund

(“SWTF”) without first referring the SWTF’s rental overpayment bills to the

SWRCC trustees for review. See Servs. Emps. Int’l Union v. Nat’l Union of

Healthcare Workers, 718 F.3d 1036, 1046 (9th Cir. 2013); Kerr v. Shanks, 466

F.2d 1271, 1276 n.3 (9th Cir. 1972). McCarron did not establish any affirmative

defense based on the SWRCC council executive committee’s approval of the

payments he made to SWTF because there is no good faith defense to a claim

under LMRDA § 501(a), see Servs. Emps. Int’l Union, 718 F.3d at 1046-47

(holding that belief that violations of union constitution were justified did not

absolve union officers of liability), and the defense of authorization does not apply

2 when an authorization is in conflict with a union’s constitution or bylaws, see id. at

1049. The district court properly found McCarron liable for damages to SWRCC

because, despite indications to the contrary, he conclusively admitted that the lease

amounts charged by SWRCC to SWTF were at market rate. See Fed. R. Civ. P.

36(b) (providing that a matter admitted “is conclusively established”); Gallegos v.

City of L.A., 308 F.3d 987, 993 (9th Cir. 2002).

The district court properly granted summary judgment on McCarron’s

counterclaims for retaliation and violation of his free speech rights under LMRDA

§ 101(a)(2) because he made no showing that the SWRCC took action against him

after he expressed his opposition to union policies. See United Steel Workers

Local 12-369 v. United Steel Workers Int’l, 728 F.3d 1107, 1118 (9th Cir. 2013)

(setting forth elements of claim).

McCarron’s requests for judicial notice, Docket Entry Nos. 13 and 22, are

granted.

AFFIRMED.