NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0436n.06 No. 10-3078 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT RICHARD THOMASON, P laintif f, TIMOTHY EVANS, et al., P laintif fs-App ellants,

v. AMALG AMATED LOCAL NO. 863, et al., Defendan ts-Appellees. / ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE SOUTH ERN DISTRICT OF OHIO

BEFORE: GU Y, CLAY, and McK EAGU E, Circuit Judges. CLAY, Circuit Judge. Plaintiffs Timothy Evans, Michae l L ewis, and Michae l Og le appea l 1 the g rant of summary judgme nt for Def endant Amalg amated L ocal No. 863 (“L ocal Union”) and its
p ar en t union, Def

endant I nterna tional Union United Automobile, Aer ospace , and Ag ricultural I mplement Workers of Americ a (“I nterna tional Union” or “UAW”) , on the basis that the district
court e rre d in deny ing Plaintiffs’ motion for disc overy prior to the g rant of summar y judgme nt.

A fourth individual, Richa rd Thomason, was listed a s a Plaintiff in the Complaint, but the 1 district court dismissed him from the case , and he is not a pa rty to this appeal.No. 10-3078

Fo r the rea sons set forth below, we VACATE the g rant of summary judgme n t fo r Def endan ts, and REMAND with instructions to permit rea sonable discovery consistent with this opinion. BACK GR OUND I n 2 0 0 0 , Plaintiffs Timothy Evans, Michae l L ewis, and Michae l Og le wer e employ ed by For d Motor Company (“F ord”) at a plant in Sharonville, Ohio (“Shar onville Plant”), which was g overne d b y a co llective barg aining ag ree ment betwee n For d and the L ocal Union (“F ord CBA” ). At t h at time, the L ocal Union also had jurisdiction over a fac ility in Ba tavia, Ohio (“B atavia Plant”), which was owned by Z F Bata via LL C (“Z F” ), and opera ted as a joi nt enter prise with For d. The Batavia Plant wor kers wer e employ ed either by For d and subject to the For d CBA, or by Z F and subject to a collec tive barg aining ag ree ment betwee n Z F a nd the L ocal Union. I n 2001, Plaintiffs wer e laid off by For d, and subsequently beca me awa re of other jobs with For d outside of the jurisdiction of the L ocal Union. Acc ording to Plaintiffs, L ocal Union of ficials

encour ag ed them to take the work, stating that doing so was the best way to maintain their seniority

. The officia ls advised Plaintiffs that they could eventua lly return to the Sharonville Plant simply by signing a “Return- to-Ba sic Unit” form, and waiting to be rec alled in order of seniority from a “re turn home list.” I n Dec ember of 2001, Evans and L ewis beg an work at a Michig an truck fac ility , which was under the jurisdiction of UAW L ocal 900. Simi larly , in Septe mber of 2002, Og le beg an work at a Kentucky truck fac ility , which was under the jurisdiction of UAW L ocal 862. I t does not appea r that Plaintiffs paid dues direc tly to the L ocal Union during this time, b u t rathe r the new local unions

2No. 10-3078

withdrew union dues from their pay chec ks. The rec ord does not ref lect whether the new local unions remitted any

of the due s to the L ocal Union. Acc ording to Plaintiffs, they never paid an initiation fee to the new local unions, nor did they

ever deposit an honorable withdrawa l tr ansfe r car d (“Withdrawa l Ca rd”) , an item not well define d in the re co rd , with the new local unions. I n fac t, acc ording to Plaintiffs, the L ocal Union never issued a Wit hdraw al Card to Plaintiffs. This fac t is corr oborate d by the president of the L ocal Union, Phy llis Blust, who explained in an aff idavit that it is not the prac tice of the L ocal Union to issue such

a car d to a member who is laid o ff

. Bl u s t al so explained that the L ocal Union does not require individuals from other local unions to deposit a Wit hdraw al Card or pay an initiation fee to transfe r into the L ocal Union. I n J une 2 0 0 4 , Plaintiffs L ewis and Evans returne d to attend a L ocal Union membership meeting

. They wer e introduced as the “boy s from Michig an truck,” and alleg e that they participa ted during the meeting by , among other thing s, voting on issues pre sented. I n lat e 2 0 0 4 , ZF transfe rre d owner ship of the Ba tavia Plant to For d. Under a Transition Ag ree ment betwee n Z F a nd For d, Z F Employ ees would maintain their seniority , but be employ ed by For d. This would g ive Z F Employ ees “re troac tive seniority ” with For d, and place some of them ahea d of exis ting For d employ ees, including Plaintiffs, in terms of seniority

. I n meeting s held during Se p te mb e r 2 004, Z F Employ ees voted to approve the Transition Ag ree ment. Acc ording to Plaintif f s , For d Employ ees, including Plaintiffs, w ere excluded from attending the meeting s or voting on the Transition Ag ree ment.

3No. 10-3078

At some point afte r the disputed vote, Plaintiffs wer e eac h rec alled to the Sharonville Plant, and subsequently transfe rre d to the Ba tavia Plant. But sometime in 2006, Plaintiffs wer e ag ain laid off by For d, at which point “Plaintiffs lear ned that Z F [E] mploy ees had not been laid off even though they had bee n For d employ ees f or a shor ter pe riod of time.” ( Pls.’ Br. a t 47.) On November 9, 2006, Plaintiffs f iled a complaint ag ainst Defe ndants in the district court, alleg ing violations of the L abor Manag ement Report and Disclo s u re Act, 29 U.S.C. § 401 et seq. (“L MRDA”), in c onnection with t he vote on the T ransition Ag ree ment. The litiga tion was stay ed for near ly two y ear s pending an i n t er n al u nion appea l—details of which are not contained in the

rec ord—but once the stay was lifted, Plaintiffs filed a n amende d complaint on April 10, 2009. On J une 5, 2009, Def

endants filed a motion to dismiss , asser ting that Plainti ff

s we re n o t members of the L ocal Union at the time of the disputed vote. Three day s later, Plaintiffs s er v ed Def endants with discovery reque sts. Def endants did not respond, but instead s o u gh t a protec tive order that would stay discovery

. On J une 30, 2009, Plaintiffs responde d to the motion to dismiss

. Both pa rties aske d the district court to consider matters outside of the ple ading s. On J uly 28, 2 0 0 9 , Plaintiffs filed a motion for discovery pursuant to Rule 56(d), seeking discovery into the issue of membership, among other topics. On J anuar y 5, 2010, the district court simult aneously conver

ted Def endants’ motion t o dismiss into one for summary judgme nt; denied Plaintiffs’ Rule 56(d) motion as futile; g rante d summary judgme nt for Def endants on the basis that Plaintiffs wer e not members of the L ocal Union at the time of t h e d i s p u t ed vote and thus lacke d standing under the L MRDA; and denied a s moot Defenda nts’ motion for a prote ctive orde r.

4No. 10-3078 DISCUSSIO N On appea l, Plaintiffs arg ue that the district cour t ab u s ed its discretion by g ranting Def endants’ motion for summary judgme nt pr ior to a ny discovery

. Plaintiffs contend that without

a rea sonable opportunity for discovery , they wer e unable to prese nt evidenc e that would be materia l
to their opposition to Def endants’ motion. Def

endants respond that the district court did not abuse its discretion; acc ording to Def endants, Plaintiffs’ reque st for discovery was vague, and no g enuine issues of mater ial fac t remaine d outstanding tha t would have r equire d discovery

. Be cause we find that it was an a buse of discr etion, under the circ umstances of this c ase, to
enter summary judgme nt prior to any discovery , we VACATE the g rant of summary judgme nt, and REMAND with instructions to permit reasonable discovery consistent with this opi nion. Prior to the entry of summary judgme nt, Plaintiffs reque sted leave to take discovery pursuant to Rule 56(d), which pr ovides: I f a nonmovant shows by aff idavit or decla

ration that, for specifie d rea sons, it cannot prese nt fac ts essential to justify its opposit ion, the court may : (1) de fer considering the motion or deny it; (2) a llow time to obtain affidavits or dec lara tions or to take discover y ; or (3) issue a

ny other a ppropriate order

. Fe d. R. Civ. P. 56(d). The district court denied Plaintiffs’ reque st for discovery , and we revie w for an ab u s e of discretion. See CenTra, Inc. v. Estrin , 538 F.3d 402, 419 (6th Cir. 2008). “An abuse of di scre tion occur s when the r eviewing court is left with the de finite and firm conviction t hat t he trial court committed a clea r err or of judgme nt.” United States v. Hunt , 521 F.3d 636, 648 (6th Cir. 2008) (inter

nal quotation marks omitted).

5No. 10-3078

I n revie wing the denial of a motion for discovery , we consider a number of fac tors, incl u d in g : “(1) when the appellant lear ned of the issue that is the subject of the desired discovery ; (2) whether the desired discovery would have chang ed the ruling below; (3) how long the discovery period had lasted; (4) whether the appellant was dilatory in its di scover

y eff orts; and (5) w hether

the appe llee

was responsive to discovery reque sts.” C en T r a , 5 3 8 F.3d at 420 (quoting Plott v. Gen. Motors Corp. , 71 F.3d 1190, 1196- 97 (6th Cir. 1995)). Having revie wed the rec ord, we are left with the definite and firm conviction that the district
court abused its discretion. A straig ht-forw ard application of the fac tors set forth above compels our conclusion. Be cause the district court permitted no discovery whatsoeve r, the first and third fac tors weig h in Plaintiffs’ favor

. The fourth fac tor is inapplicable, and the fifth fac tor weig hs in Plaintiffs’ fa vor beca

use Def endants failed to respond to Plaintiffs’ discovery reque sts and instead s o u gh t a protec tive order to stay

discovery . Additionally , the s econd fac tor, as ex plained below, weig hs in Plaintiffs’ favor beca

use Plaintiffs soug ht evidenc e that would be g erma ne to the summary judgme nt motion. This case prese nts no compelling rea son to de part from the oft-re peate d rule in this Circuit that “whe n the parties have no opportunity for discovery , deny ing the Rule 56[(d)] motion and ruling

on a summary judgme nt motion is likely to be an abuse of discreti o n . ” Id

. (c o llecting case s). Although a district court ordinarily does not abuse its discretion in deny ing a Rule 56(d) reque st that is “too vag ue,” the district court in this case did not deny t h e m otion on that basis. I nstead, the district court rea soned only that “ther e wer e no questions of fac t which neede d t o b e re s o l v ed in

6No. 10-3078

discovery for a decision on Def endants’ Motion.” This was leg al err or insofar as an inadequate

rec ord pre vented a

ppropriate consideration of the motion for summary judgme nt. We rec og nize that case law g overning standing under the L MRDA is somewhat sparse . We nonetheless believe that some measure of discovery was nece ssary in this case to proper ly define and
prese nt the issues to be considere d on summary judgme nt. Given the dear th of case law in this are a, we br iefly

explain why

the evidentiar

y rec ord bef

ore the district court was insufficient to permit a g rant of summar

y judgme nt. Section 411 of Title 29 of the U.S. Code establishes a “union bill of rig hts.” Hooks v. Truck Dr i vers, Chauffeurs & Helpers, Local 100 , 39 F. App’x 309, 312 (6th Cir. 2002). The Secti o n provides in re levant par

t: Every member of a la

bor org anization shall have equa l r ights and privileg es within such org anization to nominate candida tes, to vote in elec tions or ref ere ndums of the l ab o r o rg anization, to attend membership meeting s, and to participa te in the delibera tions and voti ng upon the bus iness of such meeting s, subject t o rea sonable rules and r eg ulations in such org anization’s constituti on and by laws. 29 U.S.C. § 411(a) (1). I t is we ll settled tha t only a “member of a labor org anization” has standing
to enfor ce the rig hts g uara nteed by § 411. See id. §§ 411, 412; United Bhd. of Carpenters & Joiners of Am., Dresden Local No. 267 v. Ohio Carpenters Health & W elfare Fund , 926 F.2d 550, 556 (6th Cir. 1991). Under the statute, a “member ” is define d as “[( 1 )] an y person who has fulfilled the require ments for membership in [a labor] org anization, and [(2)] who neither has voluntarily withdrawn fr o m me mb e r s h ip n o r h a s b e e n [a p p r o p r ia te ly ] e xp elled or suspended from membership.” 29 U.S.C. § 402(o). I n considering an individual’s me mbership status, c ourts defe r to the interna l

7No. 10-3078

rules of the union, so long as those rules are rea sonable. See, e.g. , Hooks , 39 F. App’x at 312; Taylor

v. Great Lakes Seame n’s Union, Local 5000, United Steelworkers of Am. , 701 F. 2 d 5 90 (6th Cir. 1983) (pe r cur iam). The first question is whether Plaintiffs have fulfilled the require ments of membership in the L ocal Union. See 29 U.S.C. § 402(o). This question is answe red by looking to the internal rules and
reg ulations of the UAW perta ining to membership. Under Article 6, § 2 of the UAW Constit ution: Any person e ligible to become a member of the I nterna tional Union . . . may apply for membership to the L ocal Union having jurisdiction over the workplac e in which s/he is employ ed. The applicant must, at the time of the appli ca t i o n , be an actua l worke r in and around the work p l ac e. All applicants for membership in any L ocal Union of the I nterna tional Union shall fill out an official applica tion . . . . ( See UAW Const. art. 6, § 2.) This section seems to make membership in a local union conting ent
upon the applicant m ai n t ai n i n g a job within the local union’s jurisdiction “at the time of the application.” Whether another provision of the UAW Constit ution wou l d o p er ate differ ently , or whether there is a “long established, consistently applied policy

that continued employ

ment

. . . is

a condition of rete ntion of union membership,” Dale v. Major League Umpire’s Ass’n , No. 85-2669, 1986 WL 2883, at * 4 (E.D. Pa. Mar. 5, 1986), are questions of fac t to be discovere d, if at all, on

rema nd. I t is true , as the district cour t noted, that Article 6, § 10 of the UAW Constit ution provides that “[n] o member shall be allowed to hold membership in more than one (1) L ocal Union [] at the

same time[ .]” But § 10 on its fa ce does not pur port to r esolve the choice betwee n competing local unions; nor does it sugg est that the re medy for a violation is ex pulsion from one of t he competing local unions. More fundame ntally , in this case , it is unclea r whether § 10 even applies, as discovery

8No. 10-3078

is neede d t o d et ermine whether Plaintiffs ever attained membership in the new local unions, or whether the new loc al unions reg arde d Plaintiffs as having attained membe rship. The district court rec og nized that the UAW Constit ution provides that a member “shall establish her/his membership in a nother UAW L ocal Union by either” pay ing an initiation fe e and dues, or “obtaining an honorable withdrawa l transfe r car d and depositing same immediately in such other UAW L ocal Union.” (UAW Const. art. 17, § 3.) But Plaintiffs did neither, and there fore the question remains of w hether the Plaintiffs continued to be membe rs of the L ocal Union. On this question, the district court conclude d that Plaintiffs b e c a me me mbers of the new local

u n i o n s “whe n Plaintiffs left the jurisdiction” of L ocal 863. The district court did not addre ss the initiation fe e, an d summarily dismiss ed the Wit hdraw al Card proce dures as a “mer e formality ,”

rea soning that “it is not the actua l issuance of the car d which deter mine s m em b er ship.” Such a conclusion, howeve r, cannot be upheld on the basis of a plain rea ding of either UAW Constit ution

or the officia l interpre tation the reof , as neither addre sses whether an individual’s me mbership in a local union automatically terminates upon taking work within the jurisdiction of another local union without actual re ceipt and de livery of the Withdrawal Car d. I n support of its c onclusion, the district c ourt relied heavily on the purported interpre tation of the UAW Constit ution offe red by Blust. This was likely err or; as Def endants’ counsel conce ded at oral arg ument, it is doubtful that Blust, as an official wit h the L ocal Union, has t he authority to interpre t the I nterna tional Union’s Constit ution. Discover y is neede d on that point. Discover y may also be neede d to illumi nate the signific ance of Wit hdraw al Cards, the L ocal Union’s failure to issue

9No. 10-3078

such car ds, and Plaintiffs’ resulting inability to acc ept and deposit such car ds in the new local unions,
as appa rently contemplated by

the UAW Constit ution. I f P l aint iffs have fulfilled t he requirements of membership in the L ocal Union, the s econd question is whether Plaintiffs have “voluntarily withdrawn from membership [or] been expelled or suspended from membership afte r appropr iate proce eding s.” 29 U.S.C. § 402(o). Def endants limit their arg ument to voluntarily withdrawa l. Acc ording to Def endants, Plaintiffs voluntarily withdrew by acc epting work outside of the jurisdiction; by not pay ing dues to the L ocal Un i o n ; and by aff irmatively

pay ing due s to the new loca l unions. I t is unclea

r whether the district court rea ched this question. Volunt ary withdrawa l from membership in a local union is expressly g overne d by Article 6, § 1 7 o f t h e UAW Constit ution. Section 1 7 states that a member in a local union “may resig n or terminate membership only by written communicat i o n , s i gn ed by the member, to the Financ ial Secre tary of the L ocal Union.” (UAW Const. art. 6, § 17.) Discover y may be necessar

y to deter mine whether and to what ex tent § 17 would opera te in this case, and whether any other rules or policies g overn voluntarily withdrawa l. I f Plaintiffs could voluntarily withdraw from membership by taking actions inconsiste n t w ith membership , as Def

endants appea

r to arg ue, further fac tual development is nece ssary prior to the consideration of summary judgme nt on this basis. For example, rele vant inquiry may be nece ssary into union dues and initiation fe es; membership rec ords maintained by the L ocal Union, new local unions, and/or I nter n at i onal Union; Plaintiffs’ participa tion, if any , as members of the new local unions or as members of the L ocal Union while outside of the jurisdiction; communication betwee n

10No. 10-3078

any of various parties and rele vant non-par ties; and the nature and substance of Plaintiffs’ underlying union gr ievanc e(s)

. Wit h reg ard to union dues specific ally , there is the question of whether Plaintiffs paid dues
to any local union du ri n g t h ei r p eriod of lay off. I f they did, there is the question of which local unions wer e paid dues and whether the local unions rec eiving the dues subsequently transfe rre d any portion of t he dues to another local union. I f P laintiffs did not pay dues t o the L ocal Union while working outside of the jurisdiction, then one must consider whether this had any conseque nce under the UAW Constit ution, particula rly wher e the Constit ution distinguishes betwee n membe rs and membe rs in good standing

. ( See, e.g. , UAW Const. art. 16, § 8 (stating that failure to pay dues will result in loss of “g ood standing membership”) .) There is also the question of whether Plaintiffs paid dues to the L ocal Un i o n u p o n their rec all to the Sharonville Plant. These questions should be explored on remand. CONCLUSION Be cause the district court, under the circ umstances of this case , abused its disc re t i o n b y
enter ing summary judgme nt prior to any discovery whatsoeve r, we VACATE the g rant of summary judgme nt, and REMAND with instructions to permit rea sonable discovery consistent with this opinion. 2
Contrary to the concur

renc e, the majority ex presse s no view on the merits of Plaintiffs’ 2 claims. We simply note that Plaintiffs’ claims ra i se numerous questions of law and fac t that the district court, or the jury , may be asked to resolve. See Chisom v. Roeme r , 501 U.S. 380, 403 (1991) (stating that the exis tence of complicated questions of fac t “ca nnot justify a judicially cre ated limit ation” on a broadly worde d reme dial statute). Whether Plaintiffs must show, as the concur renc e contends, that the result of the disputed elec tion would have been differ ent is a question that is not befor e us and on w hich we do not opine. 11No. 10-3078

McK EAGU E, Circuit Judge, concurring

. Plaintiffs claim that they wer e deprive d of the rig ht to vote on whether to approve the For d-Z F Transition Ag ree ment. But they wer e not the only

ones denied this chanc e to vote—only Z F employ ees participa ted, and thus all For d employ ees wer e excluded. Whil e I concur fully in the majority ’s conclusion that there are fac tual disputes that should be explored in discover

y , I question whether

these e ntire proc eeding s are ultimately futile. I find it hard to imag ine how Plaintiffs could ever rec over if they don’t now seek a new vote

or to otherwise “undo” the merg er. They would pres u m ably have to identify all who would have been elig ible if For d employ ees had been i n cl u d ed ; contac t this wide-r ang ing g roup of people individually ; and seek to prove, three y ear s later, how they would have voted. I am not awa re of any leg al authority , and plainti ff has n o t ci t ed any , that sanctions s uch an “af ter the fac t” i nquiry as t o how a person would have v o ted, as opposed to conducting a new vote, which plaintiffs expressly decline to seek. I s an aff

idavit from eac h putative voter sufficie nt? Or would cross-e x amination be require d? Are L ocal 863 and For d entitled to communicate with ea ch F ord employ ee who did not vote, to g ive their perspe ctive and explain the conseque nces (wha tever they may be) of such a nowadvisory vote? I f, and only i f, t h ey overc ome these leg al and prac tical hurdles—and presumably
many more—a

nd then can prove that the neg ative votes would have chang ed the outcome of the Ag ree ment’s approva l, can they obtain back- wag es as they now seek to do. Practica lly speaking , they cannot mee t this burden.

12