FILED
NOT FOR PUBLICATION OCT 8 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSEMARY GARITY, No. 12-16799
Plaintiff - Appellant, D.C. No. 2:11-cv-01110-KJD-
CWH
v.
APWU-AFL-CIO; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted September 23, 2014**
Before: W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.
Rosemary Garity appeals pro se from the district court’s judgment
dismissing for failure to state a claim her employment action alleging, among other
things, violations of the National Labor Relations Act. We have jurisdiction under
28 U.S.C. § 1291. We review de novo. Diaz v. Int’l Longshore & Warehouse
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007). We affirm.
The district court properly dismissed Garity’s hybrid fair representation /
§ 301 claims because Garity failed to allege facts sufficient to show that her
unions’ conduct was arbitrary, discriminatory, or in bad faith. See Beck v. United
Food & Commercial Workers Union, Local 99, 506 F.3d 874, 879-80 (9th Cir.
2007) (discussing requirements for a breach of duty of fair representation claim by
a union member). Because Garity cannot succeed in her contract claim against her
employer without also showing that her unions breached their duty of fair
representation, the district court properly dismissed Garity’s claim for breach of
the collective bargaining agreement. See Bliesner v. Commc’n Workers of Am.,
464 F.3d 910, 913 (9th Cir. 2006) (“In order to prevail in any such [hybrid] suit,
the plaintiff must show that the union and the employer have both breached their
respective duties.”).
The district court properly dismissed Garity’s common law and state law
claims because they are preempted by § 301 of the Labor Management Relations
Act (“LMRA”). See Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 693 (9th
Cir. 2001) (en banc) (A state law claim is preempted by § 301 of the LMRA when
it “necessarily requires the court to interpret an existing provision of a [collective
bargaining agreement] that can reasonably be said to be relevant to the resolution
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of the dispute.”).
The district court properly dismissed Garity’s claims for violation of the
union constitution and bylaws and for violation of the Labor Management
Reporting and Disclosure Act because Garity failed to allege facts sufficient to
show that she exhausted internal union procedures. See Ackley v. W. Conference of
Teamsters, 958 F.2d 1463, 1477 (9th Cir. 1992) (recognizing requirement that
member must exhaust internal remedies provided by the union before bringing suit
against the union).
The district court correctly determined that Garity’s unfair labor practices
claim under the National Labor Relations Act (“NLRA”) and alleged violation of
her Weingarten rights were within the exclusive jurisdiction of the National Labor
Relations Board (“NLRB”). See Marquez v. Screen Actors Guild, Inc., 525 U.S.
33, 49-50 (1998) (statutory claims are within the primary jurisdiction of the
NLRB); see also NLRB v. Weingarten, Inc., 420 U.S. 251, 253 (1975) (Weingarten
guarantees the right of employees to have union representation at investigatory
interviews).
The district court properly dismissed Garity’s federal constitutional claim
because the unions are not state actors acting under color of law. See Blum v.
Yaretsy, 457 U.S. 991, 1002 (1982) (requiring state action).
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The district court properly dismissed Garity’s claim that the national union is
vicariously liable for the local union’s acts because Garity failed to allege facts
sufficient to show an agency relationship. See Carbon Fuel Co. v. United Mine
Workers of Am., 444 U.S. 212, 217 (1979) (applying common law agency test to
determine union liability for acts of local).
The district court did not abuse its discretion by denying Garity’s motion for
leave to amend. See Chodos v. West Publ’g Co., 292 F.3d 992, 1003 (9th Cir.
2002) (setting forth standard of review and noting that a district court’s discretion
is particularly broad where it has already granted leave to amend).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
We reject as without merit Garity’s contentions concerning discovery, after
acquired evidence, and motions “critical” to her case.
Garity’s opposed motion to supplement the record on appeal, filed on
January 26, 2013, is denied as unnecessary.
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American Postal Workers Union, Local #7156’s opposed motion to dismiss
it as a party and its counsel’s motion for leave to withdraw, jointly filed on
November 20, 2012, are granted.
AFFIRMED.
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