Joseph Kofoed v. International Brotherhood of Electrical Workers, Local 48,defendant-Appellee

value, cause, myriad of other or a age, it can obtain disputes,

factual faith claim- an insured’s bad genuine has raised if the insured

even rea- concerning the material fact

issues of conduct of the insurer’s

sonableness the claim.

processing in mind what this keep

It is essential is about about. The case

case is and is not dis- of a fact-based

whether the existence debatable, is sufficient to real or

pute, an insurer’s conclusion that

support claim is an insured’s processing

conduct matter of law. The record as a

reasonable genuine raises is- evidence that

contains concerning the rea- material fact

sues of treatment of Gue- of Allstate’s

sonableness jury to have a claim. She is entitled

bara’s I reverse and issues. would

decide these bad faith trial on Guebara’s

remand for

claims. KOFOED, Plaintiff-Appellant,

Joseph

INTERNATIONAL BROTHERHOOD WORKERS, LO- ELECTRICAL

OF 48, Defendant-Appellee.

CAL

No. 98-35030. Appeals,

United States Court

Ninth Circuit. Nov.

Submitted

Filed Jan. R.App. P. to Fed. argument oral unanimously agrees that ‍​​​‌‌‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​‌‌‌‌‌‌​​​‌​‌‌‌‌​​​‌‌​‌​​​‍this panel 1. This without appropriate submission case is HALL, Before: CYNTHIA HOLCOMB RYMER, GRABER, Judges. Circuit HALL, CYNTHIA HOLCOMB Judge: (“Kofoed”)

Joseph appeals Kofoed from magistrate judge granting order of the favor of Internation- al Brotherhood of Electrical Workers (“Local (“IBEW”), 48”), on Ko- foed’s claims under the Labor Manage- Reporting ment and Disclosure Act of 1959 (“LMRDA”), §§ and 415. judge had enter final in the case because parties orally magis- consented to the judge’s authority while before the subsequently filed written consent forms. We conclude that Local 48 did not violate the LMRDA and therefore affirm.

I. FACTUAL BACKGROUND Appellant Kofoed is member of party 48. Local 48 is a ato collec- (“CBA”) bargaining agreement tive with the National Electrical Contractors Associ- (“NECA”). ation In early Kofoed and other Local 48 members received not- for-rehire letters from employ- two NECA ers, Eleсtric, Inc., Christenson and Fri- berg Company. Electric The letters stat- ed employees that the were not eligible for rehire employers. 11, 1994, August

On Kofoed carried a sign job outside a site where both Chris- tenson Electric and Friberg Electric were working. Kofoed’s sign said “Good Morn- ing” on one side and “Be Safe” on the other. day, On that same fellow union ‍​​​‌‌‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​‌‌‌‌‌‌​​​‌​‌‌‌‌​​​‌‌​‌​​​‍member Brad Twigger sign carried а Joseph Portland, per, Pro Ore- the message, “Blacklisted for no reason.” gon, plaintiff-appellant. signs Both painted were black with white Paul Hays, Carney, C. Buckley & Twigger letters. sign had carried his Hayes, Batchelor, Jeffrey M. Jeffrey job front days site on several Batchelor, P.C., Portland, M. Oregon, for joined him with his “Be sign. Safe” the defendant-appellee. Kofoed clаims that he sign carried his because he was concerned with safety at site, particularly safety workers who were forced to very cross a busy street. Twigger testified that he car- sign get response ried his timely from filed his notice appeal manager 48 business Ed 6,1998. Barnes concern- January ing not-for-rehire letters. 13, 2000, January On Local 48 filed a 25, 1994, August On Local 48 brought motion district сourt seeking an disciplinary charges against Kofoed based order correcting the record. Local 48 had picketing.” on his “unauthorized Local 48 discovered that parties the neglected had charged violating provisions Kofoed with to file written consent consenting CBA, of NECA’s Local bylaws, 48’s and the magistrate jurisdiction judge’s under provisions IBEW’s constitution. The CBA 636(c). 28, U.S.C. 2000, On Fеbruary included the CBA’s par- statement that all Kofoed and Local 48 filed with the district ties would benefit from peace” “continuous court stipulations written to the magistrate adjustment and by of differences “rational judge’s jurisdiction. 6, 2000, On March methods,” common sense an agree- magistrate the judge entered an order cor- ment that all disputes would be in handled recting the rеcord to reflect that counsel accordance with the pro- CBA. The CBA parties all previously had consented to vided a grievance procedure for union jurisdiction the a magistrate of judge, and bylaw members. provisions stated that their consent was by confirmed that Local 48 would principles establish recently filed written consent forms. practices conciliation and arbitra- tion in settling differences with employers. II. JURISDICTION The IBEW constitution prohibited num- bers from engaging acts that were con- reaching Before the merits of this trary to responsibility their to IBEW or we must first determine whether we have interfered with Local legal 48’s or jurisdiction over Kofoed’s appeal. See Ha contractual obligations. jek Co., v. Burlingtоn N. R.R. 186 F.3d 1105, Absent one of A on hearing charges began on Oc- statutory exceptions, which inappli 6, 1994, tober but Kofoed left hearing. here, cable “[l]ack of a judgment final day, The next Local 48 notified Kofoed the district court precludes our appellate that it had withdrawn charges its with the jurisdiction.” 1108; Id. at see also 28 stipulation that it could refile them later 1291, §§ 1292. Our jurisdiction dе with additional evidence. On August pends upon magistrate whether the judge 1995, upon Kofoed’s inquiry, 48 in- had authority to render judgment final on formed Kofoed that pursue it would not behalf of the district court. See 28 U.S.C. the matter. 636(c)(3); Hajek, see also 186 F.3d at Kofoed filed against the instant suit Lo- 1107-08; Peoplesoft, Nasca v. 7, 1996, cal 48 on claiming October (9th Cir.1998). 578, 579 provisions 48 had violated LMRDA, 636(c) §§ 29 U.S.C. 411 and 415. The Title jurisdic- confers case was Magistrate assigned Judge magistrate judge to “conduct Jelderks, John who already was all hearing proceedings or in a jury nonjury or civil related case. The orally consented matter entry and order the judgment (1) to the magistrate judge’s jurisdiction to the case” when the magistrate judge hear their judgment, case and enter “specially dеsignated has been to exercise their consent writing court,” was reduced to such the district (2) and filed with the court at that time. On magistrate 1, 1997, December judge’s authority. See also Alaniz Cali- granted summary judgment Processors, Inc., F.2d fornia (9th Cir.1982). as to all Kofoed’s claims. The Magistrate Judge Jelderks entered on December designated by the district court to the case with dismissing prejudice. hear Kofoed’s case. We must determine OF REVIEW III. STANDARDS effective con- parties provided whether sent. grant review a We Serv., Elec. de novo. See T.W. 636(c) specify does not While Ass’n, 809 Elec. Contractors Inc. v. parties’ timing precise Pacific (9th Cir.1987). Viewing the F.2d record reflect consent, we light most favorable evidence ex unambiguous “clear and parties’ we must determine non-moving party, protect order of consent” in pression issues of genuine there are whether Alaniz, of consent. voluntariness the district fact and whether material Int’l, 720; King v. Ionization see also at law. correctly applied the substantive Cir.1987) court Inc., See id. 630-31. 636(c) is silent as (noting 73(b) consent). the Feder of of Rule party The decision to requires Procedurе al Rules of Civil under 29 intra-union remedies exhaust written con and file a parties the execute 411(a)(4) filing suit is re before form, the voluntariness protect also to sent See for an of discretion. viewed abuse Fed.R.Civ.P. parties’ consent. See No. Stelling v. Local Union 73(b) note. We also advisory committee Cir.1978). 1379, 1391 from the conduct will not infer consent or a local rule parties, the even where § 411 IV. LMRDA CLAIM inference. provides for such general order argues magistrate the Kofoed (local rule); Hajek, 186 F.3d at 1109 summary judgment for granting erred order). Nasca, at (general Kofoed’s claim that Local Local 48 on judge has not re Where 411(a)(2). violated 29 U.S.C. he parties, full ceived the consent that Local violated his statuto- contends judgmеnt has no to enter secured under ry speech rights free case, judgment is a any purported and 411(a)(2) brought disciplinary when it 1108; Hajek, F.3d at Ald nullity. See carried charges against him after he his Bowen, rich v. job union site. sign “Be at The Safe” magistrate judge not err. did did parties the instant In 411(a)(2) provides: Section their written consent forms with not file Every organiza- member of labor the magistratе the district court until after to meet right shall have the and the case was entered members; freely assemble However, the record on reflects views, arguments, or express any and to gave express oral consent that the meetings of express and to opinions; jurisdiction while magistrate judge’s to the views, upon organization the labor his magistrate judge they wеre before the labor candidates an election of dispositive ruling.2 made a before he prop- organization upon any business Thus, acting was subject to erly meeting, ‍​​​‌‌‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​‌‌‌‌‌‌​​​‌​‌‌‌‌​​​‌‌​‌​​​‍he entered parties’ when and reason- organization’s established The case. to the conduct of pertaining able rules authority to enter fi judge therefore had meetings.... judgment, nal hаve we members’ Union appeal pursuant over Kofoed’s to 28 U.S.C. 29 U.S.C. un- subject to the speech rights free 1291. simply failed magistrate judge’s correcting judge’s jurisdiction order complete and file 73 written consent record confirms this The communica- Rule fact. time; remaining intention at the counsel for the as well tions between merely clearly part the intention Hays indicate that of counsel was as the affidavit magis- forms. gave express to file written consent counsel right adopt ion’s “to and enforce reason- members to follow. than Rather follow responsibility every able rules as to the procedures CBA’s to air his complaints member toward the as an in- regarding site, safety job at the stitution and to refraining his from conduct еxpress circumvented the provisions of the that would interfere with performance its CBA sign and carried a in front of job legal of its or contractual obligations.” Id. site. Kofoed’s “picketing”3 also had the potential to 411(a)(2) disrupt work at the site in adopted

Section CBA, violation of the “promote whether or democracy” by union not it ensuring so, actually that “uniоn members are did because sign free to discuss his was de- policies signed union and criticize the to attract the leadership attention of workers without of reprisal.” fear United Steel at the site. Because Kofoed thus engaged Sadlowski, workers Am. v. 457 U.S. in conduct that would interfere with Local (1982). 102 S.Ct. 72 L.Ed.2d 707 48’s obligations contractual and violated Section provide doеs not rights Kofoed’s responsibilities toward the in scope identical provided by those the LMRDA prohibit does not Amendment, First however. See id. at from bringing disciplinary charges against may S.Ct. 2339. adopt Unions him. and enforce rules that interfere with the Furthermore, Kofoed has presented no 411(a)(2) protected by § interests long so evidence that Local 48 brought charges as thе rules are reasonable. Id. Under against him as part of a scheme to sup- Sadlowski, a court must “first consider press dissent within the in retalia- whether the [union’s] rule interferes with for speech, union-related or for protected by interest part the first improper purpose such that oth- 411(a)(2) [§ ].” Id. The court then deter erwise lawful charges might violate the mines whether the rulе is reasonable. Compare LMRDA. Ruocchio v. United question “The critical is whether a rule Union, Transp. 60, 376, Local 181 F.3d partially protected interferes with a (3d Cir.1999) 383 (allowing a LMRDA interest is reasonably nevertheless related claim to proceed where charges were filed to the protection as an against the in plaintiff retaliation for his 111-12, institution.” Id. at 102 S.Ct. 2339. suppоrt of alternative in candidates union Assuming that charges Local 48’s elections, even though charges were against implicate ‍​​​‌‌‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​‌‌‌‌‌‌​​​‌​‌‌‌‌​​​‌‌​‌​​​‍the interests re — denied, later dropped), U.S. —, cert. lating promotion to the democracy of union 1158, (2000); 120 S.Ct. 145 L.Ed.2d 1070 411(a)(2) was intended protect, to Murray 324, v. Laborers Union Local No. undisputed facts show that Local 48 (9th Cir.1995) 1445, 55 F.3d (finding could properly bring charges against Ko union speech member’s free foed charges because the in this case fall rights infringed by union actions that were 411(a)(2), proviso within the to preserv part of a suppress scheme to dissent with ing right the union’s to adopt and enforce union); in the Bise v. AFL-CIO reasonable rules. See 29 U.S.C. 1969, 1299, Cir. The CBA between Local 48 1979) (finding a LMRDA violation where employers and the NECA at the site the union’s motive for imposing discipline where Kofoed carried his sign provides against was to retaliate plaintiff stoppage “[t]here shall be no of work lines); crossing picket union Bros. by either strike or lockout because of ... Keeffe 592, v. Teamsters Local Union No. dispute over relating matters to this (4th Cir.1977) Agreement. (finding All such matters must be handled as stated herein.” LMRDA violation where the union CBA then refused provides a grievance procedure for plaintiff union the readmission to the union “to 3. Kofoed asks the court "picketing” for "clarification of to define in order to decide this picketing.” the word unnecessary We find it VI. CONCLUSION his exercise penalize plaintiff in union part take right speak reasons, we AFFIRM. foregoing Fоr the right exercise his well as to meetings as public”). RYMER, dissenting: Judge, union affairs about speech free did not violate that Local 48 also is clear It of oral I can find no record Because Kofoed for by disciplining § 529 by rights § 411 because exercising his proceed under judge’s him. against charges 48 dismissed 636(c), only but 18, IBEW, v. Local Childs February court in the district filed the “final” years three after nearly 2000— December was entered on no evidence Finally, presented the notice of years two after 1997 and any alleged involved that Local 48 was 1998) (January was filed appeal only evidence of Kofoed’s —I blacklisting. judgment, dismiss the vacate the would issuance to Kofoed blacklisting is the court. remand to the district appeal, and employеrs. letters two not-for-rehire Local 48 was evidence that There is no to correct a sought first leave of the letters. involved the issuance by filing a in the record clerical error light most Viewing the evidence 60(b) in Fed.R.Civ.P. motion that Lo- we conclude favorable represented that court. The motion this summary judgment cal 48 was entitled proceed consentеd to § 411 claim. on Kofoed’s judge, through over- not filed sight, the written consent was § 415 CLAIM V. LMRDA the motion the court. construed We file a motion in the 48 a of intent to claims that Local as notice Kofoed also court, Lo- stayed to in district by failing violated 29 U.S.C. court, in district cal 48 then filed its motion rights under Kofoed of his counsel, of its own “Every along with the affidavits provides: LMRDA. Section and a lеtter from Kofoed’s Hays, mem Paul C. shall inform its labor counsel, Hays’s David Hollander. of this trial J. concerning provisions bers he had that Hollander and Stelling, In affidavit avers chapter.” Jelderks, Judge before agreed proceed that the district court to this court concluded agree- they that did not reduce to refuse to enter was within its discretion a consent with the writing or filе an action under 415 where ment tain Hays oversight realized the intra-union court. When failed to exhaust his plaintiff opening brief on receiving after Kofoed’s remedies to U.S.C. Hays talked with Hollander. appeal, union. he or even raise the issue with a letter up In the in followed the conversation Stelling, 587 F.2d at 1390-91. clarify in order to that Ko dated November there is no evidence stant letter, Hays In the re- position. Kofoed’s ever raised the issue with foed “ that that he and Hollander had “shared reason to conclude cited and there is ‘no Magis- of a conference with the Local will not accede to recollections” the officers of ” in the fall of 1996 Judge trate Jelderks request they comply that with the law.’ Schultz, it was “understood” that he during which (quoting at 1391 Broomer v. Id. (E.D.Pa.1965), case and take control of would F.Supp. aff'd Cir.1966)). (3d agreement that he should magis that “we were 356 F.2d 984 (Hays) had indicates that he Hays discretion in do so.” did not abuse his Judge specifical- Jelderks to exhaust his intra-un a recollection requiring Kofoed anyone any had remedies, as to whether granting ly inquiring not err in ion did him and his and objection consenting summary judgment for Local 48 on Ko proposal. with the agreement § 415 claim. Hollander’s foed’s recounts Hollander’s belief that a magistrate judge The letter also made other- signed a consent form on make, that he had wise could not are free one, or filed because the behalf to roll the dice on the outcome. This is in the shuffle. Hollander issue wаs lost costly system, for some or all of the responded Hays’s by indicating letter no proceedings will have to be redone if con- disagreement Hays’s recollection and sent has properly not been manifested. stating always my “[i]t that intent to contrast, By filling filing out and consent Judge Presiding consent to as the Jelderks forms at the outset is not onerous. There- and Locаl ‍​​​‌‌‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​‌‌‌‌‌‌​​​‌​‌‌‌‌​​​‌‌​‌​​​‍Judge.” Kofoed 48 then execut- fore, I adopt would a clear and clean rule ed consent forms. On March 2000 the jurisdiction consent to the exercise of motion, granted district court Local 48’s by a magistrate judge must given prior be noting that counsel both had magistrate judge’s exercising civil previously consented to the jurisdiction, trial and that it must be com- Magistrate and that this Judge or, orally municated either on the record had been confirmed with written consents. preferably, provided written forms suffices, Assuming that oral consent purpose. given none was here on the record. Cf event, In I would dismiss this appeal Trading Inc. v. Yale General Materials (the because the only definitive consents Handling Corp., 119 F.3d written forms executed Kofоed himself Cir.1997) (oral acceptable, where counsel) long and Local 48’s came after record). proceeding was on Counsel’s judgment. stops saying affidavit short of given consent was in court or to the court. 60(a) papers stipulate

Nor do the Rule previously given;

consent had been they

most reflect counsels’ intention to do

so.1

I believe that we should that for effective,

consent to be it must be clearly ALPHA unambiguously expressed THERAPEUTIC CORPORA- Clyde any proceed- conducts McCauley, TION and 636(e). ings pursuant to 28 U.S.C. As Plaintiffs-Appellants, provides, only the statute it “upon is parties” consent of the that a Nippon KYOKAI, Hoso Defendant-

judge may proceedings conduct and order Appellee. Likewise, entry judgment. as Rule provides, only it is “when all parties No. 98-55642. consent thereto” that a Appeals, may United States Court provided by exercise the 636(c) may conduct all Ninth Circuit. proceedings in a civil case. Prior consent is plainly Filed Jan. contemplated. PREGERSON, NOONAN,

Absent clear and Before: unequivocal communi- O’SCANNLAIN, dispositive rulings cation of consent before Judges. Here, misgiving arising I oversight have further about the use of from or omission.” 60(a) Rule in this case. Even if in some no clerical mistake or error in the record circumstances a motion to correct the record appears quite accurately record reflects —the might redressing be a vehicle sufficient the absence of consent record, 60(a) incorrect I do not see how Rule judge's jurisdiction. only "oversight” does the trick here. It allows for correction counsel, court, was a failure fill judgments, of "clerical mistakes in orders appropriate out and file the forms. parts of the record and errors therein

Case Details

Case Name: Joseph Kofoed v. International Brotherhood of Electrical Workers, Local 48,defendant-Appellee

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 12, 2001

Citation: 237 F.3d 1001

Docket Number: 98-35030

Court Abbreviation: 9th Cir.