United Steelworkers of America v. Phelps Dodge Corporation, a New York Corporation, Defendants

865 F.2d 1539 130 L.R.R.M. (BNA) 2353 , 57 USLW 2467 , 110 Lab.Cas. P 56,017 UNITED STEELWORKERS OF AMERICA; et al., Plaintiffs-Appellants, v. PHELPS DODGE CORPORATION, a New York corporation; et al., Defendants- Appellees. No. 86-2811. United States Court of Appeals, Ninth Circuit. Argued En Banc and Submitted Sept. 20, 1988. Decided Jan. 18, 1989. Bruce R. Lerner, Bredhoff & Kaiser, Washington, D.C., for plaintiffs-appellants. James G. Speer, Evans, Kitchel & Jenckes, P.C., Phoenix, Ariz., for defendants-appellees. Appeal from the United States District Court for the District of Arizona. Before GOODWIN, Chief Judge, WALLACE, TANG, SCHROEDER, FLETCHER, NORRIS, REINHARDT, BEEZER, THOMPSON and O'SCANNLAIN, and TROTT, Circuit Judges. WALLACE, Circuit Judge: 1 Following a bitter strike, unions representing employees of a Phelps Dodge Corporation facility (Phelps Dodge) and certain individuals (collectively the Steelworkers) sued Phelps Dodge, law enforcement officials and others for conspiracy to violate the civil rights of the Steelworkers. After dismissing some defendants, the district court granted summary judgment for Phelps Dodge, and judgment was entered pursuant to…

Following a bitter strike, unions representing employees of a Phelps Dodge Corporation facility (Phelps Dodge) and certain individuals (collectively the Steelworkers) sued Phelps Dodge, law enforcement officials and others for conspiracy to violate the civil rights of the Steelworkers. After dismissing some defendants, the district court granted summary judgment for Phelps Dodge, and judgment was entered pursuant to Fed.R.Civ.P. 54(b). The Steelworkers appealed, and a panel of this court affirmed. The appeal was subsequently taken en banc.

*1540 The district court had jurisdiction pursuant to 28 U.S.C. § 1343 , and we have jurisdiction under 28 U.S.C. § 1291 . We reverse the judgment of the district court and remand the action for further proceedings. The opinion of the three-judge panel, reported at 833 F.2d 804 (9th Cir.1987), is withdrawn.

I

The background of this appeal was succinctly stated in the panel opinion:

United Steelworkers of America v. Phelps Dodge Corp., 833 F.2d 804, 805 (9th Cir.1987).

We review the entry of summary judgment independently. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). We are governed by the same standard used by the trial court…

dissenting, in which BEEZER, Circuit Judge, joins in parts I, II, and III:

I write in dissent for four reasons. First, in my judgment, the majority’s opinion does not adequately differentiate between conduct that causes other conduct, and an agreement to violate or to disregard the law. The latter, of course, is the essence of a conspiracy; the former is *1548 not. I am concerned, with all due respect, that although the majority is clearly saying “conspiracy,” it may nevertheless be thinking “causation.”

Second, the majority, in arriving at its conclusion, gives too much importance to a handful of words spoken at a post-riot meeting attended by representatives of Phelps Dodge, command level of law enforcement, and the County Attorney’s office. Phelps Dodge, in the shadow of considerable unrest and violence surrounding its attempt to keep its business open, not surprisingly asked at this meeting whether arrests would be made. When the answer was in the affirmative, Phelps Dodge opined that if so, bond should be set high enough to keep the arrestees off the street. Even viewed in the context of all the facts and circumstances surrounding this case, which apparently aren’t enough…