                                                                           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                            NOT FOR PUBLICATION                             OCT 8 2014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


                                            2                                    12-16799
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).


                                          3                                     12-16799
      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.




                                            4                                     12-16799
      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.




                                           5                                     12-16799
