Apolinario v. United Healthcare Workers-West Service Employees International, CTW, CLC, 102416 FED9, 14-17109

Docket Nº:14-17109
Party Name:RICARDO APOLINARIO, Plaintiff - Appellant, v. UNITED HEALTHCARE WORKERS-WEST, SERVICE EMPLOYEES INTERNATIONAL, CTW, CLC; SETON MEDICAL CENTER; and DOES ONE THROUGH TWENTY FIVE, Defendants - Appellees.
Judge Panel:Before: GRABER and MURGUIA, Circuit Judges, and COLLINS, Chief District Judge.
Case Date:October 24, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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RICARDO APOLINARIO, Plaintiff - Appellant,

v.

UNITED HEALTHCARE WORKERS-WEST, SERVICE EMPLOYEES INTERNATIONAL, CTW, CLC; SETON MEDICAL CENTER; and DOES ONE THROUGH TWENTY FIVE, Defendants - Appellees.

No. 14-17109

United States Court of Appeals, Ninth Circuit

October 24, 2016

NOT FOR PUBLICATION

Submitted October 20, 2016 [**] San Francisco, California

Appeal from the United States District Court for the Northern District of California D.C. No. 3:13-cv-04219-VC Vince G.Chhabria, District Judge, Presiding

Before: GRABER and MURGUIA, Circuit Judges, and COLLINS, [***] Chief District Judge.

MEMORANDUM [*]

Plaintiff Ricardo Apolinario appeals from two district court orders dismissing his claims against his former employer, Seton Medical Center ("Seton") and labor union, United Healthcare Workers-West Service Employees International Union ("the Union"). The first order granted the Union's motion to dismiss Apolinario's claim for a breach of the duty of fair representation under the National Labor Relations Act. The second order granted Seton's motion for judgment on the pleadings concerning his claims brought under the Labor Management Relations Act, 1947. We review dismissals under Federal Rules of Civil Procedure 12(b)(6) and 12(c) de novo. See Lyon v. Chase Bank USA, 656 F.3d 877, 883 (9th Cir. 2011) (judgment on the pleadings); Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005) (motions to dismiss). We now affirm.

To prevail against either Seton or the Union, Apolinario has the burden to demonstrate the Union breached its duty of fair representation. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71 (1976); see also United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 62 (1981). A union breaches its duty of fair representation to an employee by engaging in conduct that was "arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. 171, 190 (1967). Whether to pursue a grievance is typically a decision in which unions "retain wide discretion to act in what they perceive to be their members' best interests." Peterson v. Kennedy, 771 F.2d 1244, 1253 (9th Cir. 1985). Apolinario's operative complaint does not allege...

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