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
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).
2
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.
3
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
Analysis
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.
4
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
5
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.
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.
6
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.
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
7
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
9
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
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.
11
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
12
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).
13
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
14
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
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.
15