
USCA1 Opinion

	




                            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                                          I                                          _                                      Background                                      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                                          II                                          __                                       Analysis                                       Analysis                                       ________                                          A.                                          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.                                          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.                                          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                                         III                                         ___                               Curtailment of Discovery                               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                                          IV                                          __                                      Conclusion                                      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.          Affirmed.          ________                                          15
