Filed: Aug. 31, 2020
Latest Update: Aug. 31, 2020
Summary: UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT AUG 31 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS VINCENT LYLE BADKIN, No. 19-35524 Plaintiff-Appellant, D.C. No. 3:17-cv-05910-BHS Western District of Washington, v. Tacoma LOCKHEED MARTIN CORPORATION, ORDER DBA Lockheed Martin Space Systems Company, a Maryland corporation; INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, DISTRICT 160 AND LOCAL LODGE 282, a Washington labor union, Defendants-Appellees. VINCENT LYLE B
Summary: UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT AUG 31 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS VINCENT LYLE BADKIN, No. 19-35524 Plaintiff-Appellant, D.C. No. 3:17-cv-05910-BHS Western District of Washington, v. Tacoma LOCKHEED MARTIN CORPORATION, ORDER DBA Lockheed Martin Space Systems Company, a Maryland corporation; INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, DISTRICT 160 AND LOCAL LODGE 282, a Washington labor union, Defendants-Appellees. VINCENT LYLE BA..
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UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 31 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
VINCENT LYLE BADKIN, No. 19-35524
Plaintiff-Appellant, D.C. No. 3:17-cv-05910-BHS
Western District of Washington,
v. Tacoma
LOCKHEED MARTIN CORPORATION, ORDER
DBA Lockheed Martin Space Systems
Company, a Maryland corporation;
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, DISTRICT 160 AND LOCAL
LODGE 282, a Washington labor union,
Defendants-Appellees.
VINCENT LYLE BADKIN, No. 19-35559
Plaintiff-Appellee, D.C. No. 3:17-cv-05910-BHS
v.
LOCKHEED MARTIN CORPORATION,
DBA Lockheed Martin Space Systems
Company, a Maryland corporation,
Defendant,
and
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, DISTRICT 160 AND LOCAL
LODGE 282, a Washington labor union,
Defendant-Appellant.
VINCENT LYLE BADKIN, No. 19-35576
Plaintiff-Appellee, D.C. No. 3:17-cv-05910-BHS
v.
LOCKHEED MARTIN CORPORATION,
DBA Lockheed Martin Space Systems
Company, a Maryland corporation,
Defendant-Appellant,
and
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, DISTRICT 160 AND LOCAL
LODGE 282, a Washington labor union,
Defendant.
Before: NGUYEN and BUMATAY, Circuit Judges, and SIMON,* District Judge.
The prior memorandum disposition filed on July 21, 2020, is hereby
amended concurrent with the filing of the amended disposition today.
The panel has voted to deny the petition for panel rehearing and to deny the
petition for rehearing en banc, and Judge Simon has so recommended.
*
The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
2
The full court has been advised of the petition for rehearing en banc and no
judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.
P. 35.
The petition for panel rehearing and the petition for rehearing en banc are
denied. No further petitions for rehearing will be accepted.
3
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 31 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VINCENT LYLE BADKIN, No. 19-35524
Plaintiff-Appellant, D.C. No. 3:17-cv-05910-BHS
v.
AMENDED MEMORANDUM*
LOCKHEED MARTIN CORPORATION,
DBA Lockheed Martin Space Systems
Company, a Maryland corporation;
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, DISTRICT 160 AND LOCAL
LODGE 282, a Washington labor union,
Defendants-Appellees.
VINCENT LYLE BADKIN, No. 19-35559
Plaintiff-Appellee, D.C. No. 3:17-cv-05910-BHS
v.
LOCKHEED MARTIN CORPORATION,
DBA Lockheed Martin Space Systems
Company, a Maryland corporation,
Defendant,
and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, DISTRICT 160 AND LOCAL
LODGE 282, a Washington labor union,
Defendant-Appellant.
VINCENT LYLE BADKIN, No. 19-35576
Plaintiff-Appellee, D.C. No. 3:17-cv-05910-BHS
v.
LOCKHEED MARTIN CORPORATION,
DBA Lockheed Martin Space Systems
Company, a Maryland corporation,
Defendant-Appellant,
and
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, DISTRICT 160 AND LOCAL
LODGE 282, a Washington labor union,
Defendant.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted July 6, 2020
Seattle, Washington
2 19-35524
Before: NGUYEN and BUMATAY, Circuit Judges, and SIMON,** District Judge.
Vincent Badkin (Badkin) appeals the district court’s grant of summary
judgment in favor of his former employer, Lockheed Martin Corporation
(Lockheed), and his former union, the International Association of Machinists and
Aerospace Workers, District 160 and Local Lodge 282 (Union). We have
jurisdiction under 28 U.S.C. § 1291 and review a district court’s grant of summary
judgment de novo. Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759
(9th Cir. 2017). We affirm.
1. In this “hybrid § 301” claim brought under Section 301 of the Labor
Management Relations Act, 29 U.S.C. § 185, Badkin alleges that (1) Lockheed
breached its collective bargaining agreement (CBA) by terminating Badkin’s
employment and (2) the Union breached its duty of fair representation by declining
to advance Badkin’s grievance to arbitration. To avoid summary judgment, Badkin
must show at least a genuine issue of material fact on both prongs. See DelCostello
v. Int’l Bhd. of Teamsters, 462 U.S. 151, 165 (1983); Soremekun v. Thrifty Payless,
Inc.,
509 F.3d 978, 988 (9th Cir. 2007). We conclude that Badkin has not shown a
genuine issue of material fact on the Union’s breach of its duty of fair
representation.
**
The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
3 19-35524
2. When a hybrid § 301 claim challenges the exercise of a union’s
judgment, as opposed to conduct that is merely ministerial or procedural, a plaintiff
“[t]ypically . . . may prevail only if the union’s conduct was discriminatory or in
bad faith.” Demetris v. Transp. Workers Union of Am., AFL-CIO, 862 F.3d 799,
805 (9th Cir. 2017); Burkevich v. Air Line Pilots Ass’n, Int’l,
894 F.2d 346, 349
(9th Cir. 1990); Moore v. Bechtel Power Corp.,
840 F.2d 634, 636 (9th Cir. 1988).1
The Union’s decision not to advance Badkin’s grievance to arbitration was an
exercise of the Union’s judgment. Beck v. United Food & Com. Workers Union,
Loc. 99,
506 F.3d 874, 879-80 (9th Cir. 2007) (distinguishing “intentional conduct
by a union exercising its judgment” from “actions or omissions that are
unintentional, irrational or wholly inexplicable, such as an irrational failure to
perform a ministerial or procedural act”). A union’s action is discriminatory only if
there is intentional and severe discrimination unrelated to legitimate union
1
In Demetris, we noted that “a union’s conduct generally is not arbitrary when the
union exercises its judgment” and that in such circumstances a union’s action “can
be classified as arbitrary only when it is irrational, when it is without a rational
basis or explanation.”
Demetris, 862 F.3d at 805 (simplified). The earlier cases of
Burkevich and Moore are even more deferential to a union’s judgment. See
Burkevich, 894 F.2d at 349 (noting that if the conduct involved a union’s
judgment, “the plaintiff may prevail only if the union’s conduct was discriminatory
or in bad faith”);
Moore, 840 F.2d at 636 (same and explaining that when a union’s
judgment is in question, “[a]rbitrariness alone would not be enough”). We need not
resolve this potential tension in the case law because here no reasonable jury could
find the Union’s action to be without rational basis or explanation. The Union
simply viewed the relative strength of Badkin’s claim differently than did Badkin.
4 19-35524
objectives. Id. Here, there is no evidence of discrimination. Badkin admitted at
deposition that he had no reason to believe that the Union was acting towards him
with ill will or hostility. Likewise, the Union’s representative testified that he
treated Badkin as he would have treated any other member of the Union under
similar circumstances. Badkin presents no evidence to the contrary.
3. In the context of a hybrid § 301 claim, a union acts in bad faith only
when there is substantial evidence of fraud, deceitful action, or dishonest conduct.
Beck, 506 F.3d at 880. Badkin argues that the Union’s decision not to proceed to
arbitration was done in bad faith. Badkin, however, fails to show a genuine issue of
material fact on bad faith. Although Badkin argues that the Union failed to timely
inform him about or provide him with a copy of the August 2016 resolution of
Badkin’s grievance between Lockheed and the Union, the Union consulted with its
former attorney and concluded that Badkin’s grievance did not have enough merit
to proceed to arbitration. The facts are unclear why the Union did not on
September 21, 2016 (or earlier) inform Badkin about or give him a copy of the
written August 2016 memorialization of the resolution of Badkin’s grievance, but
there is no evidence from which a reasonable jury could conclude that the Union’s
failure to do so was in bad faith. At most, the Union was negligent. Mere
negligence, however, cannot support a claim of unfair representation. See Peterson
v. Kennedy,
771 F.2d 1244, 1253 (9th Cir. 1985).
5 19-35524
4. Because Badkin fails to show a genuine issue on whether the Union
breached its duty of fair representation, we need not decide whether there is a
genuine issue regarding Lockheed’s alleged breach the CBA. We also need not
decide the cross-appeals of Lockheed and the Union, arguing that summary
judgment was appropriate under the applicable six-month statute of limitations or
that the district court erroneously excluded certain evidence offered by Lockheed
and the Union.
5. Badkin also raises a new issue on appeal. He argues for the first time
that Lockheed violated his due process rights under the Fourteenth Amendment by
terminating his employment without affording him either a pre-termination or post-
termination hearing. In support, Badkin relies on Cleveland Board of Education v.
Loudermill, 470 U.S. 532 (1985). Badkin, however, does not explain how
Lockheed’s actions as a private employer trigger any duties under the Fourteenth
Amendment. In any event, we decline to address Badkin’s new issue because it
was not presented to the district court. See Dodd v. Hood River County,
59 F.3d
852, 863 (9th Cir. 1995) (holding that we generally do not consider an issue not
raised below); see also Cmty. House, Inc. v. City of Boise,
490 F.3d 1041, 1053
(9th Cir. 2007) (declining to consider a constitutional claim presented for the first
time on appeal).
6. Finally, Badkin and Lockheed each have filed motions on appeal.
6 19-35524
Badkin asks us to take judicial notice of the fact that the attorney whom the Union
consulted had resigned from the Washington State Bar approximately two years
before the Union discussed Badkin’s matter with that attorney. Badkin also seeks
leave to file his accompanying supplemental brief on this issue. We grant Badkin’s
motion. We have considered Badkin’s additional evidence and argument, and we
conclude that it does not affect the outcome. Lockheed asks us to receive a
physical exhibit, specifically, a recording of the 911 call made to law enforcement
on the day of Badkin’s arrest. Because there is already ample evidence of what
occurred that day and additional evidence is not relevant to our analysis of the
Union’s duty of fair representation, we deny Lockheed’s motion.
AFFIRMED.
7 19-35524
