Unpublished Disposition, 928 F.2d 408 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 408 (9th Cir. 1991)

John A. BREDA, Plaintiff-Appellant,v.OREGON SYMPHONY ASSOCIATION, American Federation ofMusicians, Local 99, Defendants-Appellees.

No. 90-35360.

United States Court of Appeals, Ninth Circuit.

Submitted March 6, 1991.* Decided March 15, 1991.

Appeal from the United States District Court for the District of Oregon, No. CV-89-683-MA; Malcolm F. Marsh, District Judge, Presiding.

D. Or.




John Breda appeals from summary judgment for the defendants on his claims for vacatur of an arbitration award and for breach of the duty of fair representation. He also contends that the district court erred by denying his motion to continue the summary judgment hearing and his post-hearing motion for leave to supplement an incomplete exhibit.


Beginning in the 1982-83 season, Breda played bass and third clarinet for the Oregon Symphony Association (OSA). As an OSA musician, he belonged to a collective bargaining unit represented by the American Federation of Musicians, Local 99.

He was given a warning letter from the OSA on January 25, 1989 based on three incidents of "inattention to duties" in as many months. These were Breda's failure to bring the correct instrument to rehearsal on November 6, his absence from a rehearsal on December 1, and his failure to return to the stage for the end of a January 17, 1989 performance. The warning letter advised Breda that any future violations of his responsibilities under the labor contract would result in discipline, up to and including immediate dismissal.1 

On April 2, 1989, Breda was 20 minutes late for a performance because, he said, he was unaware of the change to daylight saving time. By letter of April 5, 1989, the OSA advised him of "his immediate dismissal for cause in accordance with" the collective bargaining agreement.

Breda grieved his dismissal. Pursuant to that agreement, the union brought the grievance to a hearing before Arbitrator Thomas Levak, a lawyer with extensive experience. He heard testimony and received evidence from both the OSA and the union. He issued an opinion and award denying Breda's grievance. He found that each of the four incidents leading to Breda's dismissal was "not excusable."

After the arbitration, Breda brought the present action against both the union and the OSA to vacate the award. His amended complaint relied upon the Federal Arbitration Act, 9 U.S.C. §§ 1-14, and section 301 of the National Labor Relations Act, 29 U.S.C. § 185. It also charged that the union's representation was perfunctory, amounting to a breach of its duty of fair representation.2 

Cross-motions for summary judgment were filed by Breda and both defendants. Judge Marsh heard arguments on these motions on February 26, 1990. A month later, he granted the defendants' motions and denied Breda's.

At the February 26 hearing, Breda's counsel, attorney Boga-Rosh, moved for a continuance and time extension so she could file more affidavits. She asserted that she had just received "two more affidavits ... on the facts," that she had "boxes and boxes full of documents" obtained from OSA during discovery of which her review and analysis were incomplete, and that she had secretarial problems. In denying the motion, Judge Marsh said:

I really feel that I understand your position. I know what your responses are to them. You have given me extreme amounts of documents to set forth your arguments. You've given me extremely detailed factual analysis for me to follow. And I really don't think I need any more argument to decide this matter.

More than two weeks thereafter, Boga-Rosh moved to supplement an incomplete exhibit which she had submitted "to illustrate that based on OSA's own documents ... lateness and absences among orchestra members were not unusual and that Plaintiff's conduct, therefore, was neither grounds for discipline nor for just cause termination." Judge Marsh denied the motion as untimely.


This court reviews de novo a summary judgment. Peters v. Burlington N. R.R. Co., 914 F.2d 1294, 1298 (9th Cir. 1990). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. Id. We must also determine whether the district court properly applied the relevant substantive law. Id.

Breda formulates the first issue in this appeal by asking whether the trial court erred in granting summary judgment for OSA "despite evidence that the arbitrator's award was based upon perjured testimony." OSA and the union argue that we should not reach this issue, because it either was not properly raised in the district court or was abandoned by Breda before appeal.

In reply, Breda all but admits that he amended a perjury claim out of his complaint. Nonetheless, we find his perjury charges are properly before us. "All pleadings shall be so construed as to do substantial justice." Fed. R. Civ. P. 8(f). When issues that the pleadings do not raise specifically are litigated by the parties' implied consent, then the pleadings are treated as amended to conform to the evidence. Id. 15(b).

During discovery, Breda asserted that he had the right to have materials that might support his claim of perjury by arbitration witnesses. He devoted part of his Opposition to Defendants' Motions for Summary Judgment to arguing that the arbitrator based his decision on false testimony. The OSA's brief responded that Breda's contentions of perjured testimony were based on an incomplete quotation taken out of context. Even if the amended complaint abandoned the perjury issue, it was resurrected during discovery and thereafter.

On the merits of Breda's claim for vacatur, we find we must reject it. The touchstone of our analysis is the highly deferential approach to arbitration awards recently reaffirmed by this court in Stead Motors of Walnut Creek v. Automotive Machinists Lodge No. 1173, 886 F.2d 1200, 1204 (9th Cir. 1989) (en banc), cert. denied, 110 S. Ct. 2205 (1990):

[W]hen reviewing the award of an arbitrator chosen by the parties to a collective bargaining agreement, we are bound--under all except the most limited circumstances--to defer to the decision of [the arbitrator], even if we believe that the decision finds the facts and states the law erroneously.

" [T]o protect the finality of arbitration decisions, courts must be slow to vacate an arbitral award on the ground of fraud." Dogherra v. Safeway Stores, Inc., 679 F.2d 1293, 1297 (9th Cir.), cert. denied, 459 U.S. 990 (1982). Obtaining an award by perjured testimony constitutes fraud. Id. To come within this rule, Breda must prove perjury by clear and convincing evidence, show that he could not, with due diligence, have discovered it before the arbitration and show that it was material to an issue arbitrated. Id.

Breda charges that perjury infected the arbitrator's findings about each incident for which he was warned and the one that precipitated his dismissal. He contends that the OSA witnesses falsely testified he was its only employee who had ever been late or absent except for a true emergency and that he was the only member ever to have been late to a service or caught offstage without a needed instrument.

Arbitrator Levak's opinion shows that he based his finding that the November 6, December 1 and April 2 incidents were not excusable partly upon what various OSA witnesses could recall about the symphony's attendance practices. While the arbitrator's reliance on this testimony makes it material, Breda offered no evidence that these witnesses lied about their recollections. Nor has he raised a genuine factual issue about whether, with due diligence, he could have discovered the alleged perjuries during the arbitration process.

As to the January 17 incident, Breda failed to show that the alleged perjury was material to the arbitrator's opinion. The opinion does not rely on the testimony of any OSA witness in finding that this incident was not excusable.

Breda failed to raise genuine issues of material fact concerning all elements that he must prove to establish perjury. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). We affirm the summary judgment against Breda on his claim for vacatur.

II. Dismissal of Claim for Breach of the Duty of Fair Representation

Breda argues that he has raised triable issues of fact as to whether the union acted arbitrarily or in bad faith in representing him. The district court considered and rejected six alleged breaches of the duty of fair representation:

(1) union counsel failed to argue a 'critical theory' [pretextual dismissal] ... put forth by plaintiff ...; (2) union counsel cross examined key management witnesses in a perfunctory or non-existent fashion; (3) union counsel failed to offer favorable evidence showing industry standards concerning dismissals from other orchestras; (4) union counsel refused to ask for a continuance in order to obtain further evidence; (5) the union investigated the discharge and conducted discovery in an arbitrary or perfunctory manner; and (6) union counsel did not move to exclude irrelevant and damaging evidence concerning incidents which occurred prior to the events which formed the basis of the discharge.

To prove a breach of the duty of fair representation, the employee must show the union's conduct toward him was arbitrary, discriminatory or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190 (1967). Arbitrary conduct includes ignoring meritorious grievances and processing them in a perfunctory fashion. Id. at 191, 194. The duty of fair representation arises from the union's status as exclusive representative of the bargaining unit, see id. at 182, so it must be narrowly construed to protect unions' discretion to act in the best interests of all members. Peters, 914 F.2d at 1299. "The policy of promoting strong unions ... often must trump the claims of individual employees." Id. (citation omitted).

In deciding whether unions have breached these duties, we have relied on a dichotomy between procedural and ministerial acts, for which the union may be liable, and judgments about grievance processing, for which the union will not be liable. See Peters, 914 F.2d at 1299 (discussing Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270 (9th Cir. 1983), and Peterson v. Kennedy, 771 F.2d 1244 (9th Cir. 1985), cert. denied, 475 U.S. 1122 (1986)). While we continue to entertain a "presumption ... that a union exercises its judgment when presenting the substance of a grievance before arbitrators," Peters, 914 F.2d at 1300, we recognize that the ministerial/judgmental dichotomy "is in some sense illusory" and is "merely a convenient shortcut for segregating acts of judgment from acts of nonjudgment." Id.

In Peters we said that "the labels 'ministerial act' and 'act of judgment' represent not absolute categories without relation to one another but opposing points on a continuum that broadly attempts to separate discretionary decision making from inexplicable conduct." Id. at 1300. While some substantive decisions by unions can be undertaken indifferently enough or recklessly enough to result in union liability, unions will not be liable for "actual, rational attempts ... to properly interpret a collective bargaining agreement or otherwise handle a grievance." Id.

Applying these principles, we affirm the summary judgment against Breda on the fair representation claim. Unlike the union in Peters, Local 99 did perform some minimal investigation of the pretextual dismissal theory. It chose not to present evidence on it because its attorney did not believe it material to Breda's dismissal. Taking Breda's other charges of perfunctory and inadequate representation at their face value, we find nothing that strays far enough from the protected end of the continuum in Peters to survive summary judgment.

III. Refusal of Continuance and of Leave to Supplement the Incomplete Exhibit

We review the denial of a continuance for abuse of discretion. See United States v. 2.61 Acres of Land, 791 F.2d 666, 670 (9th Cir. 1985) (per curiam). We use the same standard of review to determine whether a district court erred in refusing to accept late evidence. See Carpenter v. Universal Star Shipping, S.A., No. 88-4059, slip op. 1711, 1726 (9th Cir. Feb. 12, 1991).

Four factors determine whether a court abused its discretion in denying a continuance: (1) the diligence of the party seeking the continuance in preparing for the scheduled hearing; (2) the likelihood that the matter creating the need for a continuance could have been addressed if the continuance were granted; (3) the extent to which granting the continuance would have inconvenienced the court and the opposing party; and (4) the extent to which the party seeking the continuance might be harmed by its denial. 2.61 Acres, 791 F.2d at 671. "Absent a showing of prejudice, ... this Court will not disturb the ruling below." Id.

Judge Marsh did not abuse his discretion in refusing to continue the summary judgment hearing. Breda's weak case would not have been aided materially with more evidence to a court already deluged with his papers. That his counsel was still receiving affidavits on the day of the hearing, four months after she filed the amended complaint, suggests a lack of diligence, even considering her secretarial problems, to which the district judge was sympathetic. This is a far cry from the extreme situations in which a district court has been found to have abused its discretion by denying a continuance. Cf. 2.61 Acres, 791 F.2d at 667-68, 671-72.

Nor did the district court abuse its discretion in denying Breda leave to supplement his incomplete exhibit. The additional information would not have saved the claims from summary judgment. The court had properly denied a continuance, and the hearing was already closed.


We affirm the summary judgment against Breda on his claims for vacatur and for breach of the duty of fair representation. We find no abuse of discretion in the denials of a continuance and for leave to supplement an exhibit.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


The collective bargaining agreement covering Breda permitted cancellation of a musician's contract for "persistent inattention to his duties ... after having once been warned in writing ... not less than sixty (60) days prior to dismissal."


The amended complaint also claimed that OSA unjustly cancelled Breda's soloist contract. Breda admitted that OSA tendered the contract's consideration ($500) to him upon its cancellation, but sought consequential damages for injury to his career and professional reputation. The district judge held that Breda had accepted the $500 as payment in full and could not, under Oregon law, recover consequential damages. Breda did not appeal the adverse judgment on this claim