                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 21 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.
                                                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

“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); Moore v. Bechtel Power Corp., 840 F.2d 634, 636 (9th Cir. 1988). 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 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


                                           4                                    19-35524
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

provide him with a copy of the August 2016 resolution of Badkin’s grievance

between Lockheed and the Union, it is undisputed that on September 21, 2016, the

Union representative told Badkin that, after consulting with the Union’s attorney,

the Union had concluded that Badkin’s grievance did not have enough merit to

proceed to arbitration and that the Union considered the grievance resolved and

would not take any further action on it. The facts are unclear why the Union did

not at that time (or earlier) give Badkin 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).

      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


                                         5                                    19-35524
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.

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


                                          6                                    19-35524
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.




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