
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1075                       UNITED PAPERWORKERS INTERNATIONAL UNION,                            LOCAL 14, AFL-CIO-CLC, ET AL.,                               Plaintiffs - Appellants,                                          v.                             INTERNATIONAL PAPER COMPANY,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                _____________________               Jeffrey  Neil  Young, with  whom  McTeague,  Higbee, Libner,               ____________________              __________________________          MacAdam, Case & Watson was on brief for appellants.          ______________________               Jane  B.  Jacobs, with  whom  Andrew  E.  Zelman and  Klein,               ________________              __________________      ______          Zelman, Briton,  Rothermel &  Dichter, L.L.P.  were on brief  for          _____________________________________________          appellee.                                 ____________________                                  September 7, 1995                                 ____________________                    TORRUELLA,  Chief  Judge.    The  plaintiff-appellants,                    TORRUELLA,  Chief  Judge                                ____________          United Paperworkers  International Union, Local 14,  AFL-CIO, and          International Brotherhood of Firemen  and Oilers, Local 246, AFL-          CIO  (the  "Unions"), appeal  the  district  court's decision  on          summary  judgment in  favor of  International Paper  Company (the          "Company"), ruling that a recall agreement between the Unions and          the    Company    became   unenforceable    upon    the   Unions'          decertification.  For the following reasons, we affirm.                                      BACKGROUND                                      BACKGROUND                    The Unions  and the  Company  agree that  there are  no          material facts in dispute.  The Company owns and operates a paper          mill in Jay, Maine  known as the Androscoggin Mill  (the "Mill").          Between  1965  and   March  1993,  employees  at  the  Mill  were          represented for purposes of  collective bargaining by the Unions.          Throughout  that  time,  the Unions  and  the  Company  have been          parties to  a series of collective  bargaining agreements setting          forth the  terms and conditions  of employment at  the Mill.   In          June  1987, when  the Company and  the Unions could  not reach an          accord over a succeeding collective bargaining agreement, members          of the  Unions engaged in an economic  strike.  The Company hired          replacement workers during the strike.                    In  October of 1987, the  Company laid off 151 striking          employees  (the "Employees").   All but three  of these Employees          had  recall rights for twelve  months after layoff.1   The twelve                                        ____________________          1   The other  three  employees resigned  in 1989  pursuant to  a          pension offer negotiated  by the Unions.  Therefore,  these three          employees are not at issue in this case.                                         -2-          month period  in which  the  Employees were  eligible for  recall          expired before the parties began strike settlement negotiations.                    On November 16, 1987, certain Mill employees petitioned          the  National  Labor Relations  Board  (the  "NLRB")  to  hold  a          decertification election to determine whether the Mill  employees          desired  continued  representation by  the  Unions.   The  actual          election was delayed for over a year.                    On October 9,  1988, the Unions ended their  strike and          made an unconditional offer  to return to work.   Between October          18  and October 26, 1988,  the Unions and  the Company negotiated          and  executed an  agreement  setting forth  terms and  procedures          under  which former  strikers  would be  recalled as  replacement          workers  left  and  their  positions became  available.    During          negotiations,  the Unions raised  the issue of  the 151 Employees          who had been laid off in October 1987 and whose recall rights had          technically expired.   The final recall  agreement provided, with          limited  exceptions, that  the 151  laid  off Employees  would be          among the employees recalled under the agreement.                    In April 1989, at the Unions' request, portions of  the          recall agreement  were renegotiated and amended  to include lists          setting forth the order  in which employees were to  be recalled.          The 151 laid  off Employees were included  on these lists.   Both          the October 1988 agreement and  the April 1989 amended  agreement          were  silent   as  to   its  duration   or   termination.     The          decertification petition was pending throughout the negotiations.                                         -3-                    In  July 1989,  the  NLRB  conducted a  decertification          election at the  Mill.   Of the employees  eligible to vote,  616          voted  for  decertification,  and   361  voted  against.    After          investigating  and holding a hearing  on the Unions' challenge to          the election, the NLRB issued  a decision upholding the  election          results and dismissing the  Unions' objections.  The Unions  thus          became  decertified  as  of   March  30,  1993.     Both  parties          acknowledge   that   upon   decertification,  the   then-existing          collective bargaining agreement, which  would otherwise have been          effective until September 30, 1993, became null and void.                    In  August 1993,  the  Company advised  the Unions  and          several of  the 151 laid  off Employees that  as a result  of the          Unions' decertification,  the  Employees  no  longer  had  recall          rights.  The Unions thereafter  filed this  action in  the United          States District  Court for the District of Maine, contending that          the recall agreement, unlike the collective bargaining agreement,          survived the Unions' decertification and thus remained binding on          the Company.                    Following  cross-motions  for  summary   judgment,  the          district  court issued  its decision  on December  1, 1994.   The          district court found that  there was no indication in  the recall          agreement  itself  that  the   parties  intended  it  to  survive          decertification,  despite  the  fact  that   the  decertification          petition had been filed and was pending during the negotiation of          the  agreement.   The  court  explained that  because  the recall          agreement  establishes  rights  for  a  category  of  represented                                         -4-          employees, and explicitly specifies that its terms are to prevail          if  there is  any conflict  with "other  provisions of  the labor          agreement,"  the  recall  agreement  is  "tied  directly  to  the          collective  bargaining  agreement,"  such  that  it  contemplates          "ongoing union involvement."   Because the recall agreement would          affect  the Company's  negotiations with  a new union  seeking to          represent  a  majority  of  employees, and  would  "perpetuate  a          limited  portion   of  the  elements  ordinarily   covered  by  a          collective bargaining agreement," the  recall agreement cannot be          said to  be independent  of the collective  bargaining agreement.          Therefore,  the  court reasoned,  the  recall  agreement did  not          survive decertification.  Accordingly, the court granted  summary          judgment in the Company's favor.                                      DISCUSSION                                      DISCUSSION                    A.  Standards of Review                    A.  Standards of Review                        ___________________                    In  general,  summary judgment  is  proper  only if  no          genuine  issue of material fact exists and the movant is entitled          to  judgment  as  a matter  of  law.    Fed.  R. Civ.  P.  56(c).          Therefore,  a   party  seeking  summary  judgment   must  make  a          preliminary  showing  that  no  genuine issue  of  material  fact          exists.  Once  this showing is made, the non-movant must point to          specific facts  demonstrating that there is  a trialworthy issue.          National Amusements, Inc.  v. Town  of Dedham, 43  F.3d 731,  735          _________________________     _______________          (1st  Cir.  1995).   An  issue  is  "genuine"  when the  evidence          relevant to it, viewed in  the light most flattering to the  non-          moving party,  is "sufficiently  open-ended to permit  a rational                                         -5-          factfinder to resolve the  issue in favor  of either side."   Id.                                                                        __          (citation  omitted).    Because  the  summary  judgment  standard          requires the  trial court to  make a  legal determination  rather          than  to  engage in  factfinding,  appellate  review is  plenary.          Equal  Employment Opportunity  Comm'n  v. Steamship  Clerks Union          _____________________________________     _______________________          1066, 48 F.3d 594, 602 (1st Cir. 1995).          ____                    This standard is the norm.   Having stated it, however,          we must  note  that under  our  precedent, in  certain,  somewhat          unusual cases, this standard does not apply.  In a  nonjury case,          when the  basic dispute  between  the parties  concerns only  the          factual  inferences that one might draw from the more basic facts          to which the  parties have  agreed, and where  neither party  has          sought  to  introduce additional  factual  evidence  or asked  to          present witnesses,  the parties are, in  effect, submitting their          dispute  to the court as  a "case stated."   Steamship Clerks, 48                                                       ________________          F.3d  at 603 (citing Federaci n de Empleados del Tribunal Gen. de                               ____________________________________________          Justicia  v. Torres,  747 F.2d  35, 36  (1st Cir.  1984) (Breyer,          ________     ______          J.)).    The  district  court  is  then  "freed  from  the  usual          constraints  that attend  the  adjudication of  summary  judgment          motions,"  and may  engage in  a certain  amount of  factfinding,          including the drawing of inferences.  Id.                                                __                    By the same  token, the appellate court may assume that          the parties considered the  matter to have been submitted  to the          district court as  a case ready for decision on  the merits.  Id.                                                                        __          The  standard for  appellate review  consequently shifts  from de                                                                         __          novo  review to clear-error review; that is, the district court's          ____                                         -6-          factual inferences should be  set aside only if they  are clearly          erroneous.  Id. (citing United States v. Ven-Fuel, Inc., 758 F.2d                      __          _____________    ______________          741, 744 n.1 (1st Cir. 1985)).                    In  the  instant  case,  the  parties  cross-moved  for          summary  judgment, yet both agreed that there was no dispute over          the basic  facts of  the case.2   Nor did  either party  give any          indication  that it  intended to  present additional  evidence or          witnesses, or request a jury trial.  The only dispute in the case          stems  from the inferences that  the parties claim  must be drawn          from  those  basic facts  --  what legal  significance  should be          ascribed  to those  facts.   In  effect,  therefore, the  parties          submitted their case to the district court as a case stated.  See                                                                        ___          Steamship  Clerks,  48 F.3d  at  603 (holding  same  in virtually          _________________          identical procedural circumstances).  Similarly, the parties both          state in their appeal  briefs and during oral argument  that they          agree upon the basic material facts of the case.  Accordingly, we          are bound to  apply the more deferential clear-error  standard of          review when examining the inferences drawn by the district court.          Id.  The district court's legal conclusions nevertheless engender          __                                        ____________________          2  Of course, the mere fact that the parties moved simultaneously          for summary  judgment does not automatically  change the district          court's analysis  or render  the customary standard  of appellate          review obsolete.  Unless the special circumstances described here          are present,  "the nisi  prius court  must  consider each  motion                             ____  _____          separately, drawing  inferences against each movant  in turn, and          the court of appeals must  engage in de novo review."   Steamship                                               __ ____            _________          Clerks,  48 F.3d  at 603 n.8  (citing El  D a, Inc.  v. Hern ndez          ______                                _____________     _________          Col n,  963 F.2d  488, 492  n.4 (1st  Cir. 1992);  Griggs-Ryan v.          _____                                              ___________          Smith, 904 F.2d 112, 115 (1st Cir. 1990)).              _____                                         -7-          de novo review.  Id. (citing McCarthy v. Azure, 22  F.3d 351, 354          __ ____          __          ________    _____          (1st Cir. 1994)).                    B.  The District Court's Decision                    B.  The District Court's Decision                        _____________________________                    The Unions'  primary contention  on appeal is  that the          district court erred  as a matter of law, and  that its ruling is          contrary  to  the  Supreme  Court's  decision  in  Retail  Clerks                                                             ______________          Internat'l Ass'n Local 128 v. Lion Dry Goods, 369 U.S. 17 (1962).          __________________________    ______________          Specifically, the Unions  argue that the Lion  Dry Goods decision                                                   _______________          compels  the legal  conclusion that the  recall agreement  in the          instant  case  is an  enforceable contract.    We think  that the          Unions' argument ascribes too much to the Lion Dry Goods case and                                                    ______________          too little to the district court's decision here.                    In addressing the issue of whether the recall agreement          survived the Unions' decertification, the district court began by          noting  that  "decertification  ends the  enforceability  of  any          collective bargaining agreement," and observing that both parties          concede that the  Company is  no longer obliged  to negotiate  or          bargain with the  Unions or to honor the terms  and conditions of          the  previous  collective bargaining  agreements.    Going on  to          discuss the issue of  the recall agreement's continued viability,          the court explained:                         [The  recall agreement  was] [d]rafted                      at  a  time when  the  Unions were  still                      certified    as    majority    bargaining                      representatives,  [and] it  requires that                      the  Unions receive a  copy of any recall                      notice  sent  to  unreinstated  strikers.                      The  recall  contract establishes  rights                      for   this    category   of   represented                                         -8-                      employees  and  affects their  seniority.                      Indeed, it  specifies that its  terms are                      to prevail if there  is any conflict with                      "the  other  provisions   of  the   labor                      agreement"  .  .  .  . Thus,  the  recall                                             __________________                      agreement   is   tied  directly   to  the                      _________________________________________                      collective  bargaining   agreement:    it                      __________________________________                      supersedes  or   amends  any  conflicting                      portions  of  the  collective  bargaining                      agreement;  it  affects seniority  rights                      under    the     collective    bargaining                      agreement;  and  its  notice  requirement                      contemplates  ongoing  union involvement.                      To say that this contract survives, then,                      would affect any negotiations with  a new                      union  that might  seek  to  represent  a                      majority of International Paper employees                      and  in the  meantime would  perpetuate a                      limited    portion   of    the   elements                      ordinarily   covered   by  a   collective                      bargaining   agreement  .   .  .   .  The                      conclusion is  therefore unavoidable that                      this recall and  seniority contract  does                      not survive decertification.                         I  do  not need  to  decide  whether a                         ______________________________________                      company  and  a  union can  ever  make an                      _________________________________________                      agreement that will be  enforceable after                      _________________________________________                      a  decertification.   Here,  there is  no                      _________________________________________                      indication in the  recall agreement  that                      _________________________________________                      the  parties  intended   it  to   survive                      _________________________________________                      decertification . .  . . I  conclude that                      _______________                      on  the  undisputed  record   the  recall                      agreement   became   unenforceable   upon                      decertification of the Unions.          (Emphasis  added)(footnotes  omitted).   In  a  footnote to  this          discussion,  the  district  court   noted  that  Lion  Dry  Goods                                                           ________________          "suggests that contracts with minority unions may be enforceable,          but the only  matter actually decided there was that jurisdiction          existed under   301 [of the LMRA]."                    We agree with the district court that Lion Dry Goods is                                                          ______________          not dispositive of the issue in the instant case.  Our reading of          that  case indicates that  the Supreme Court  was only addressing                                         -9-          the narrow issue of whether a strike settlement agreement between          a minority union and an employer constitutes a "contract" as that          term is  employed in    301(a) of the  LMRA, 29 U.S.C.    185(a).          Lion Dry  Goods, 369 U.S.  at 27.   Reasoning that the  language,          _______________          purpose,  and legislative history  of the statute  do not support          the  exclusion of such agreements from  the purview of    301(a),          id. at 26-28, the  Court held that claims for  alleged violations          __          of such agreements  are "cognizable" under   301(a).   Id. at 29-                                                                 __          30.3                    The parties in the instant case disagree over the scope          of  the Court's holding in  Lion Dry Goods;  the Company contends                                      ______________          that  it  is merely  a grant  of  jurisdiction, while  the Unions          contend that it stands for the proposition that contracts between          unions and employers remain enforceable even after  the union has          lost its majority representative status.                    We  need  not  resolve  this dispute,  however.    Even          assuming arguendo that Lion Dry Goods holds, as the Unions claim,                   ________      ______________          that contracts between unions and employers are enforceable after          decertification, it cannot by any stretch be said to require that          all such contracts must be  enforced regardless of the intentions                             ____              ____________________________          of the parties to the contract.   Indeed, the district court  did          ______________________________          not  hold  that  recall  agreements  were  as  a  general  matter          unenforceable  after decertification.    It  merely analyzed  the                                        ____________________          3  In so holding, the  Court rejected arguments that the language          of   301 contemplated only those  contracts between employers and          unions representing a majority  of employees, explaining that the          language and history of the statute did not support such a narrow          construction.  Id. at 28-29.                         __                                         -10-          agreement before it, and inferred from the undisputed facts  that          the agreement  had not been intended  to survive decertification.                                      ________          The Lion Dry Goods case, regardless of the  scope of its holding,              ______________          is  therefore   inapposite,  and  the  Unions'   reliance  on  it          misplaced.4                    Having disposed of this argument, we are left only with          the   Unions'  contentions   that   the   district   court   drew          impermissible inferences  in concluding, based on  the undisputed          factual record before  it, that  the parties did  not intend  the          recall  agreement to  survive decertification.   As  we explained          supra, however, we review these  inferences only for clear error.          _____          After  carefully examining  the  record, we  can discern  no such          clear error on the part of the district court.                    The Unions  challenge the district court's finding that          the  recall  agreement  contemplated  an  "ongoing  relationship"          between the parties and therefore could not have been intended to                                        ____________________          4    Contrary to  the  Unions'  arguments, the  district  court's          decision did  not hinge on the fact that the Unions no longer had          majority representative status.  Rather, the court explained that          because  it found that the  recall agreement, by  its very terms,          was  "tied directly"  to the unenforceable  collective bargaining          agreement,  it  had  not been  intended  to  survive the  Unions'          decertification.  In other words, the court's decision rested not          on the  status of the  Unions, but  upon indicia of  the parties'          intentions in negotiating the agreement.            We also reject the Unions' arguments that  the district court's          concern  that  the  recall  agreement would  affect  a  successor          union's ability to  represent Company employees is  "ill-founded"          in light of  the Lion Dry Goods  case.  The  parties in Lion  Dry                           ______________                         _________          Goods  explicitly agreed  that their  contract would  have effect          _____  _________________          even after the Union lost its majority representative status, 369          U.S.  at 22-23,  a crucial  fact markedly  absent in  the instant          case.                                         -11-          remain in  effect after the Unions' decertification.   The Unions          concede  that the  provisions  cited by  the  district court  are          characterized  accurately;  the Unions  urge,  however,  that "it          could just as equally be said" that the agreement was intended to          survive decertification.  The Unions  offer no facts or  evidence          in support of this argument, nor do they claim that this actually          was  the parties'  intent.   They also  do  not indicate  how the          district court's  inference was  unreasonable or  erroneous; they          merely claim that the opposite conclusion could have been made in                                                    _____          interpreting the  agreement.  We think that  the district court's          inferences based on the undisputed record were well-supported and          reasonable.  We certainly cannot say that they rise to the  level          of clear error, so  we must reject the  Unions' argument on  this          score.                    Similarly, we are not persuaded by the Unions' argument          that the district court  erred in concluding that the  absence of          an  expiration  date  in  the  agreement,  among  other  indicia,          supported  the inference  that  it was  not  intended to  survive          decertification.  We agree that the absence of an expiration date          could  be  interpreted to  mean  that  the parties  intended  the          _____          agreement to remain in effect until all employees'  recall rights          were exhausted, regardless of  the Unions' representative status.          We do  not see, however, nor  do the Unions point  to, any reason          that  the  district  court's   conclusion  to  the  contrary  was          unreasonable.      The  decertification   petition   was  pending          throughout  the parties'  negotiations,  and neither  party could                                         -12-          have accurately  predicted when it would take  place.  Certainly,          if  the Unions had intended  for the recall  agreement to survive          their  possible  decertification, they  could have  bargained for          such a provision.  We think that the absence of  such a provision          or expiration date, under these circumstances, just as reasonably          supports the  inference that  the parties  had  not intended  the                                                          ___          agreement  to survive.      We therefore  find  no error  in  the          district court's conclusion to this effect.                                      CONCLUSION                                      CONCLUSION                    Finding no clear error, we affirm.                                               ______                                         -13-
