Southwest Regional Council v. Michael McCarron

NOT FOR PUBLICATION FILED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
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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.
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