Dow v. UBC ( 1993 )


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    UNITED STATES COURT OF APPEAL
    FOR THE FIRST CIRCUIT


    _________________________

    No. 93-1127

    JOSEPH DOW, ET AL.,

    Plaintiffs, Appellants,

    v.

    UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, ET AL.,

    Defendants, Appellees.

    _________________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Edward F. Harrington, U.S. District Judge]
    ___________________

    _________________________

    Before

    Torruella, Selya and Boudin, Circuit Judges.
    ______________

    _________________________

    Paul Alan Levy, with whom Mark D. Stern and Public Citizen
    ______________ _____________ ______________
    Litigation Group were on brief, for appellants.
    ________________
    Christopher N. Souris, with whom Feinberg, Charnas &
    _______________________ ______________________
    Schwartz was on brief, for appellees.
    ________

    _________________________

    July 28, 1993

    _________________________
























    SELYA, Circuit Judge. This appeal pivots on the
    SELYA, Circuit Judge.
    ______________

    meaning and applicability of two documents concerning the

    internal governance of a labor union, Local No. 218 ("the

    Local"): the constitution of its umbrella union, the United

    Brotherhood of Carpenters and Joiners ("the International" or

    "UBCJA") and the by-laws of Local 218 itself. Much to the dismay

    of two dissident members of the Local, the district court

    deferred to the International's construction of the texts and

    entered judgment accordingly. We affirm.

    I
    I
    _

    Background
    Background
    __________

    Local No. 218 is affiliated with, and subject to the

    direction of, the International. The latter's constitution and

    the Local's by-laws both speak to the manner in which mid-term

    vacancies in leadership positions on the local level are to be

    filled. The constitution states that:

    [w]hen vacancies occur in any elective office
    or in the position of Business
    Representative, the President may appoint a
    qualified member to fill the vacancy pro-tem,
    until such time as appropriate notices are
    sent to the membership for the holding of an
    election to fill the vacancy.

    UBCJA Const., 32(B). Yet, with regard to the position of

    Business Manager/Financial Secretary ("Manager"), the Local's by-

    laws provide that, if a vacancy occurs:

    the Business Representative shall assume the
    duties of the Business Manager/Financial
    Secretary and shall appoint a Business
    Representative.

    By-Laws of Local No. 218, art. II, 1(A).

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    In 1992, the latent tension between these two

    provisions surfaced. The incumbent Manager resigned. The

    Local's President, Joseph Dow, appointed himself to fill the

    vacancy on a temporary basis and called for an election pursuant

    to section 32(B) of UBCJA's constitution. Dow viewed the

    provisions we have quoted as conflicting and reasoned that the

    constitution trumped the by-law provision for automatic

    succession.

    The International resisted Dow's attempt to grab the

    reins of power.1 Its president, Sigurd Lucassen, directed Dow

    to give effect to the by-law provision by allowing the Business

    Representative, Robert Cataldo, to succeed to the Manager's post.

    Lucassen found no conflict between the two instruments of

    governance; the by-law provision simply mandates automatic

    succession to fill a particular vacancy while section 32(B) of

    the constitution specifies a procedure for filling vacancies when

    no other mechanism has been provided. Because the by-law

    provision operated ex proprio vigore to fill the Manager's
    __ _______ ______

    position simultaneously with the incumbent's resignation, it

    prevented a vacancy from occurring and eliminated any need for

    resort to the constitutional provision. It was on this

    understanding, Lucassen intimated, that the International

    approved the inclusion of article II, section 1(A) in Local 218's



    ____________________

    1Inasmuch as the Manager's position is the brightest and
    most coveted star in a local union's administrative firmament,
    the struggle over succession takes on added significance.

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    by-laws.2

    Little placated, Dow and a fellow union member, Robert

    Renda, sued in federal district court, premising their action on

    section 301(a) of the Labor-Management Relations Act, 29 U.S.C.

    185 (1988), and section 101(a)(1) of the Labor-Management

    Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. 412 (1988).

    The plaintiffs named the International, the District Council of

    Carpenters, and Local 218 as defendants.3 They sought to compel

    recognition of Dow's status as Manager pro tem and to precipitate
    ___ ___

    an election to fill the balance of the unexpired term. On cross

    motions for summary judgment, the district court gave controlling

    weight to the International's interpretation of the governing

    documents and entered judgment for the defendants. This appeal

    ensued.

    II
    II
    __

    Analysis
    Analysis
    ________

    A.
    A.
    __

    Summary judgment is appropriate when the record

    documents that possess evidentiary force "show that there is no

    genuine issue as to any material fact." Fed. R. Civ. P. 56(c).

    The mechanics of Rule 56 are familiar: once the moving party

    avers "an absence of evidence to support the nonmoving party's


    ____________________

    2Section 32(B) of the constitution was in effect when the
    International approved the Local's by-laws. Absent such
    approval, the by-laws could not have taken effect.

    3For ease in reference, we discuss the issues as if Dow and
    the International were the sole parties in interest.

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    case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the
    _____________ _______

    burden of production shifts to the nonmovant. To defeat a

    properly focused motion, the nonmovant must tender "significant

    probative evidence," First Nat'l Bank v. Cities Serv. Co., 391
    _________________ ________________

    U.S. 253, 290 (1968), which, when viewed in the light most

    flattering to the nonmovant, illumines a genuine and material

    factual dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S.
    ___ ________ ___________________

    242, 247-48 (1986); Medina-Munoz v. R.J. Reynolds Tobacco Co.,
    ____________ __________________________

    896 F.2d 5, 8 (1st Cir. 1990); Garside v. Osco Drug, Inc., 895
    _______ ________________

    F.2d 46, 48 (1st Cir. 1990). While the required proof need not

    necessarily rise to the level of admissible trial evidence, see
    ___

    Celotex, 477 U.S. at 324, it must consist of something more than
    _______

    "conclusory allegations, improbable inferences, and unsupported

    speculation." Medina-Munoz, 896 F.2d at 8; accord Fragoso v.
    ____________ ______ _______

    Lopez, 991 F.2d 878, 886 (1st Cir. 1993); Kelly v. United States,
    _____ _____ _____________

    924 F.2d 355, 357 (1st Cir. 1991). Brash conjecture, coupled

    with earnest hope that something concrete will eventually

    materialize, is insufficient to block summary judgment.

    This appeal implicates a specialized application of

    Rule 56. It is common ground that a labor union's internal

    affairs comprise an enclave best kept free from judicial

    intrusion. See Local No. 48 v. United Bhd. of Carpenters &
    ___ _____________ _____________________________

    Joiners, 920 F.2d 1047, 1051 (1st Cir. 1990); Howard v. United
    _______ ______ ______

    Ass'n of Journeyman & Apprentices, Local # 131, 560 F.2d 17, 21
    ________________________________________________

    (1st Cir. 1977). Thus, the scope of judicial inquiry is narrowly

    circumscribed in such cases. And, moreover, the resultant


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    circumscription is particularly stringent when, as now, a labor

    organization's interpretation of its own constitution is

    singularly at issue. See Local No. 48, 920 F.2d at 1052.
    ___ ____________

    B.
    B.
    __

    In Local No. 48, a case construing the very union
    ______________

    constitution that is at issue here, this court concluded that a

    general union's interpretation of its own governance documents

    will ordinarily be upheld "unless that interpretation is patently

    unreasonable." Id. On that basis, we refused to second-guess
    ___

    the International when it advanced a "plausible" reading of its

    constitution. Id. At bottom, then, Local No. 48 stands for the
    ___ ____________

    proposition that, in the absence of bad faith,4 a labor

    organization's interpretation of internal union documents puts an

    end to judicial scrutiny so long as the interpretation is

    "facially sufficient" or grounded in "'arguable authority.'" Id.
    ___

    (citation omitted); accord Newell v. International Bhd. of Elec.
    ______ ______ ___________________________

    Workers, 789 F.2d 1186, 1189 (5th Cir. 1986); Local 334, United
    _______ __________________

    Ass'n of Journeymen & Apprentices v. United Ass'n of Journeymen &
    _________________________________ ____________________________

    Apprentices, 669 F.2d 129, 131 (3d Cir. 1982); Stelling v.
    ___________ ________

    International Bhd. of Elec. Workers, Local Union No. 1547, 587
    ____________________________________________________________

    F.2d 1379, 1389 n.10 (9th Cir. 1978), cert. denied, 442 U.S. 944
    _____ ______

    (1979).

    This black letter law simplifies our task. We afford

    plenary review to the entry of summary judgment below. See
    ___

    ____________________

    4Here, Dow adduced no evidence that the International
    formulated its interpretation in bad faith. What is more, he has
    not asserted a claim of bad faith on appeal.

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    Garside, 895 F.2d at 48. To do so here, we need only determine
    _______

    whether the International's synthesis of the juxtaposed

    documents, i.e., its view that section 32(B) of the constitution
    ____

    leaves room for, and can comfortably operate side by side with, a

    by-law provision mandating automatic succession to a particular

    post, is "so implausible or patently unreasonable as to be

    undeserving of deference." Local No. 48, 920 F.2d at 1052.
    ____________

    C.
    C.
    __

    We turn now to the record, first examining the relevant

    texts. On one hand, the constitution, quoted supra p. 2, states
    _____

    that when "vacancies occur in any elective office," the president

    of the local "may" appoint a replacement to serve until an

    election is held. On the other hand, the by-laws, see supra p.
    ___ _____

    2, state that "the Business Representative shall assume the

    duties of the [Manager]" if a "vacancy [in that position]

    occurs." While these provisions can assuredly be read to

    conflict and if they clash, the constitutional provision

    prevails, see UBCJA Const., 6(C), 25(A) a harmonious reading
    ___

    of them is hardly implausible. We think it is significant that

    the constitution uses precatory rather than mandatory language.

    The permissive "may" contained in the constitution, as opposed to

    the directory "shall" contained in the by-law, signals that a

    temporary, presidential appointment and subsequent election is

    but one available method for filling vacancies, impliedly

    suggesting that other, equally satisfactory methods can be

    employed. Accord La Joie v. Bay Counties Dist. Council, 143
    ______ _______ ____________________________


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    L.R.R.M. (BNA) 2547, 2549 (N.D. Cal. 1993) (refusing, for this

    reason, to find a conflict between the identical constitutional

    provision and the by-laws of a different local). On this

    (entirely plausible) reading, automatic succession is a

    permissible method of selection.5 Hence, there is ample textual

    support for the International's conclusion that the

    constitution's words are inapplicable here because a new Manager

    has already been designated that is, the vacancy has already

    been filled through an authorized alternative process.

    Dow contends that in determining whether the

    International proffered an interpretation worthy of deference, a

    reviewing court must not examine the letter of the texts in

    majestic isolation, but must read them in conjunction with

    available extrinsic evidence of past union interpretations and

    practices. We agree that "track record" evidence may often be

    illuminating and should be considered. After all, evidence that

    a union decision follows established custom might serve to

    strengthen the decision's inherent reasonableness and, by like

    token, evidence that a union decision constitutes a radical break

    from uniform past practice might undermine its seeming

    plausibility. Cf. Local No. 48, 920 F.2d at 1052 (citing the
    ___ _____________

    context "of an ongoing consolidation process" as one indicium of

    the reasonableness of the union's authorization of a merger).


    ____________________

    5We believe it is noteworthy that the United States
    Department of Labor's regulations implementing the LMRDA
    expressly authorize "automatic succession" to fill mid-term
    vacancies. 29 C.F.R. 452.25 (1992).

    8














    Here, however, the summary judgment record is barren of any

    evidence sufficient to support an inference that the

    International's present reading of the constitution is newly

    contrived or inconsistent with past practice.

    To be sure, appellant tried to plug this hole. His

    failed efforts center around three sworn statements signed by

    John S. Rogers, once a high-ranking officer of the International.

    Appellant tells us that these affidavits evidence a tradition of

    requiring elections to fill mid-term vacancies in the face of

    conflicting local by-laws. He is wrong. To the extent that the

    affidavits touch upon matters germane to this appeal, they are

    much too vague to forestall summary judgment.

    Appellant places greatest emphasis on Rogers's repeated

    statements that it has "always" been UBCJA's practice to conduct

    elections to fill mid-term vacancies. In context, however, this

    assertion constitutes no more than an empty generality. A purely

    conclusory statement of this sort is manifestly insufficient to

    support an inference of inconsistent past practice without an

    accompanying suggestion nowhere to be found that such a

    vacancy has ever before occurred in a local that had adopted an

    automatic succession rule. See Local No. 48, 920 F.2d at 1051
    ___ _____________

    (explaining that unsubstantiated conclusions are inadequate to

    block summary judgment); Oliver v. Digital Equip. Corp., 846 F.2d
    ______ ____________________

    103, 109 (1st Cir. 1988) (refusing to allow "unsubstantiated

    allegations" to defeat summary judgment). In the same vein,

    Rogers's general statement that "the Brotherhood and its local


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    unions" have deemed a resignation to create "a vacancy . . .

    regardless of whether or not the applicable Constitution or By-

    Laws contained a successorship provision" is devoid of

    significance absent an indication nowhere to be found that a

    particular incident actually occurred and that Rogers possesses

    some knowledge about it. See Anderson, 477 U.S. at 248-49
    ___ ________

    (stating that, in the summary judgment context, suggested

    inferences must be supported by "specific facts"); Medina-Munoz,
    ____________

    896 F.2d at 9 (terming plaintiff's attempted application of a

    conclusion to a different factual predicate "too large a leap").

    In light of these gaps, the Rogers affidavits, carefully read, do

    not contradict UBCJA's sworn averment that, at least within the

    past five years, the International has never ordered a local

    operating under an approved automatic succession procedure to

    hold an election to fill a vacancy.6 Indeed, since the record

    demonstrates that the International has approved a number of

    local union by-law provisions incorporating automatic succession

    regimes, including the provision at issue here, the record

    virtually compels the inference that UBCJA's present construction

    of the juxtaposed instruments of governance is consistent with

    its past practice.


    ____________________

    6The shortcomings in the Rogers's affidavits are all the
    more striking because appellant extracted not one, but three,
    successive affidavits from Rogers, over a period spanning three
    and one-half months. The latest of these was executed a mere
    three days before the hearing on summary judgment. Since Dow
    thrice went to the well in an effort to secure supplemental
    information, we think it fair to assume that everything that
    could be said was in fact said.

    10














    In short, appellant's "past practice" proffer

    represents yet another situation where a court considering a

    motion for summary judgment "cannot accept, in lieu of documented

    facts, conclusory assertions." Sheinkopf v. Stone, 927 F.2d
    _________ _____

    1259, 1262 (1st Cir. 1991). Consequently, we hold that

    appellant failed to raise a genuine question regarding past

    practice that would bear on the reasonableness of the

    International's textual construction.

    We have said enough.7 While the International's take

    on the written provisions may not be the only possible one, or

    even the most natural one, it is well within the universe of

    acceptable interpretations. Because plausibility is all that is

    required in a situation of this kind, the lower court

    appropriately granted summary judgment on the existing record.

    III
    III
    ___

    Curtailment of Discovery
    Curtailment of Discovery
    ________________________


    ____________________

    7We reject out of hand appellant's claim that two other
    factual disputes sufficient to defeat UBCJA's motion for summary
    judgment lurk in the record. First, pointing to the absence, as
    of September 9, 1992, of documentary proof anent Cataldo's
    appointment as Business Representative, appellant speculates that
    Cataldo was not duly appointed and, therefore, could not succeed
    to the Manager's position pursuant to the by-laws. The
    speculation does not hold water: a nonmovant cannot defeat a
    motion for summary judgment solely by asserting that the movant
    has not adduced, or explained its failure to adduce, the best
    possible proof of a material point. See Celotex, 477 U.S. at
    ___ _______
    323; Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 182 (1st
    ____ ___________________________
    Cir. 1989). The second dispute concerns whether Cataldo, in
    violation of the constitution, assumed the Manager's position
    before resigning as Local 218's Recording Secretary. Because it
    is uncontradicted that Cataldo no longer held the latter position
    by October 7, 1992, at the latest, we, like the district court,
    deem the exact date of his resignation to be immaterial.

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    Appellant's fall-back position is that the judgment

    below must be vacated because the district court unduly curtailed

    discovery prior to deciding the summary judgment motions. See
    ___

    generally Celotex, 477 U.S. at 322 (recognizing the requirement
    _________ _______

    of "adequate time for discovery"); Fed. R. Civ. P. 56(f)

    (authorizing continuances so that a nonmovant, upon a proper

    showing, may gather "facts essential to justify [an] opposition"

    to summary judgment). The argument is cast in disingenuous terms

    and distorts the nature of the district court's discovery ruling.

    Early in the proceeding, the district court heard a

    cacophony of sounds on the issue of discovery: on one flank, the

    International urged a stay of discovery; on the opposite flank,

    Dow sought to expedite discovery and widen its scope. Confronted

    with cross motions for summary judgment that might be susceptible

    to resolution on the submitted papers, and anticipating that oral

    argument on the cross motions would take place on January 12,

    1993, the district court, in a ruling from the bench, halted

    discovery on December 18, 1992. The court, however, dropped an

    anchor to windward: since the full panoply of papers regarding

    the motions had not yet been filed, the judge invited Dow to

    request a continuance for the purpose of conducting discovery at

    the hearing on summary judgment if, by then, Dow still believed

    that he could not adequately argue the cross motions without such

    discovery.8 Hence, notwithstanding appellant's current

    ____________________

    8Various exchanges at the December 18 hearing tell the tale.
    We offer a few representative vignettes. The judge advised
    appellant's counsel that if the UBCJA "file[s] something of a

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    caterwauling about a categorical ban on discovery, the court's

    ore tenus order was plainly an interim measure, likely
    ___ _____

    extinguishable for the asking.

    Although Dow held the key to discovery, he neglected to

    unlock the door. The January 12 hearing came and went without

    any semblance of a renewed request to conduct discovery. Nowhere

    did appellant ask, even as a form of alternative relief, that a

    decision on summary judgment be postponed until further discovery

    could be obtained. Rather, he chose to shelve the quest for

    discovery and dive head-first into the summary judgment

    maelstrom.9

    The rule in this circuit is clear that, when a court


    ____________________

    factual nature, and you need something to rebut, then I would
    move [on January 12] for discovery." The judge later reiterated
    the point, stating that once the paperwork is complete, "you
    [appellant's attorney] can see whether you need any discovery.
    If, for some reason, on the 12th you come in here and say, I
    can't argue the motion because there is a particular document or
    a factual allegation that has been made and I need to look at one
    particular thing, maybe I would do it."

    9Appellant's suggestion that he revived his discovery
    request at the January 12 hearing is, at best, wishful thinking.
    His counsel's oral argument contained only a fleeting reference
    to appellant's past inability to conduct discovery as he would
    have preferred. His suggestion that he renewed the request in a
    supplemental memorandum filed in connection with the hearing is
    equally jejune. The memorandum, directed primarily toward an
    entirely different matter, contained a solitary sentence more
    obfuscatory than illuminative, concerning "legitimate and
    necessary outstanding requests for discovery." These constitute
    no more than veiled references which, without more, cannot take
    the place of an affirmative request to conduct further discovery.
    Cf. Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec.
    ___ ___________________ ____________________________________
    Co., 840 F.2d 985, 989 (1st Cir. 1988) (holding that oral and
    ___
    written statements "complaining about [a] stay of discovery,"
    coupled with "cryptic allusions," are "entirely inadequate" to
    support a Rule 56(f) motion).

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    temporizes or otherwise defers a ruling on a discovery request,

    and the proponent thereafter fails to resurrect the issue in a

    timely fashion, he is deemed to have abandoned the point and

    cannot later complain on appeal concerning a denial of the

    discovery in question. See DesRosiers v. Moran, 949 F.2d 15, 22-
    ___ __________ _____

    23 (1st Cir. 1991). As we have said, "a party who seeks a ruling

    must persist in his quest to some reasonable extent." Id. at 23.
    ___

    Having flouted this rule, Dow finds himself mired in a

    pit similar to that which the government dug for itself in Reilly
    ______

    v. United States, 863 F.2d 149 (1st Cir. 1988). There, the
    ______________

    government moved for additional discovery at a pre-trial hearing

    before a magistrate judge. In denying the motion, the magistrate

    told the government that it might mull the matter for a few days

    and renew the request in a more specific form. A follow-up

    request never came. On appeal, the government attempted to press

    an objection to the denial of discovery. We overruled the

    objection, holding that the government had an obligation "to

    specify, face-up and squarely, what information it continued to

    seek." Id. at 168. By not resurfacing the point, despite an
    ___

    express invitation to do so, it "waived the right to protest the

    denial of" discovery. Id.
    ___

    The same result must obtain here. The district court

    voiced a clear invitation to seek discovery anew. Dow eschewed

    it. He cannot now "legitimately complain of lack of access to

    [discovery which he] never seasonably requested." Id. at 167.
    ___

    This is as it should be; any other outcome would squander


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    judicial resources and give parties who, like Dow, plunge

    headlong into the merits of a case without pausing to exhaust

    discovery options a second bite at the cherry. In the last

    analysis, "[c]ourts, like the Deity, are most frequently moved to

    help those who help themselves." Paterson-Leitch Co. v.
    ____________________

    Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 989 (1st
    _______________________________________

    Cir. 1988); see also Hebert v. Wicklund, 744 F.2d 218, 222 (1st
    ___ ____ ______ ________

    Cir. 1984) (refusing to "employ [Rule 56(f)] to spare litigants

    from their own lack of diligence").

    IV
    IV
    __

    Conclusion
    Conclusion
    __________

    We need go no further. By failing to renew his request

    for discovery at the appropriate time, Dow waived any objection

    to the district court's decision to resolve the summary judgment

    motions on the existing record. And, because the International's

    reconciliation of the arguable conflict between its constitution

    and the Local's by-laws is plausible in terms of that record, the

    entry of summary judgment in defendants' favor must stand.



    Affirmed.
    Affirmed.
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