                                                                              FILED
                           NOT FOR PUBLICATION                                APR 18 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


WATSON NEWMAN,                                   No. 12-16415

              Plaintiff - Appellant,             D.C. No. 2:10-cv-00550-JCM-
                                                 GWF
  v.

CORNER INVESTMENT COMPANY,                       MEMORANDUM*
LLC, DBA Bill’s Gamblin’ Hall & Saloon
and INTERNATIONAL UNION OF
OPERATING ENGINEERS LOCAL NO.
501, AFL-CIO,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                    James C. Mahan, District Judge, Presiding

                      Argued and Submitted March 11, 2014
                           San Francisco, California

Before: FARRIS, REINHARDT, and TASHIMA, Circuit Judges.

       Watson Newman appeals from the district court’s grant of summary

judgment in favor of defendants Corner Investment Company, LLC DBA Bill’s



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Gamblin’ Hall & Saloon (“Corner”) and International Union of Operating

Engineers Local No. 501, AFL-CIO (“Local 501”). We review a district court’s

grant of summary judgment de novo, and we affirm. Bleisner v. Commc’n

Workers of A., 464 F.3d 910, 913 (9th Cir. 2006).

1.    Newman asserts in his action under § 301 of the Labor Management

Relations Act (“LMRA”) that his employer Corner breached the collective

bargaining agreement by discharging him without just cause. From 2000 until his

discharge in 2008, Newman held the title of Assistant Chief Engineer, an at-will

position under the terms of the collective bargaining agreements. Newman argues

that he was nonetheless covered by the just cause provisions applicable to the

Maintenance Engineer position because he had an agreement with management

that he would be Assistant Chief Engineer “in title only”and would be otherwise

treated as a Maintenance Engineer.

      The district court held that there was no issue of fact as to whether

Newman’s side agreement actually existed, and that even if it did exist, it would be

void and unenforceable under the National Labor Relations Act. We affirm the

district court’s legal conclusion and decline to consider the factual issue.

“[National labor] policy extinguishes the individual employee’s power to order his

own relations with his employer and creates a power vested in the chosen


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representative to act in the interests of all employees.” NLRB v. Allis-Chalmers

Mfg. Co., 388 U.S. 175, 180 (1967). Additionally, a side agreement is barred by

the terms of the collective bargaining agreement, which prohibits covered

employees from entering into “any individual contract” concerning the conditions

of employment.

      Contrary to Newman’s claim, while an employer cannot be compelled to

recognize a bargaining unit containing supervisors, it may recognize such a unit

voluntarily. E.G. & H. Inc. v. NLRB, 949 F.2d 276, 279 (9th Cir. 1991); see also

29 U.S.C. § 164.

2.    Newman argues that even if he was in fact Assistant Chief Engineer, Corner

breached the seniority provision of the collective bargaining agreement. That

provision provides that an employee with seniority will “have a preference for . . .

regaining employment” provided that the employee “has the ability to perform the

work involved satisfactorily.” However, Corner presented uncontroverted

evidence that management found Newman’s performance unsatisfactory. The fact

that Corner told Newman he was being discharged for budgetary reasons does not

mean that Corner did not also deem Newman’s performance unsatisfactory.

Corner is therefore entitled to summary judgment on this issue as well.




                                          3
3.    Newman argues that Local 501 breached its duty of fair representation by

settling and withdrawing the first grievance and withdrawing the second. We

affirm the district court’s holding that in light of the applicable provisions of the

collective bargaining agreement Local 501 did not breach the duty of fair

representation by its actions regarding the two grievances. Local 501’s decisions

to withdraw them were not arbitrary or in bad faith. Local 501 properly

determined after investigation that the grievances were without merit given the

restraints of the collective bargaining agreement, which excluded the Assistant

Chief Engineer from the Grievance and Arbitration procedures as well as from the

Discipline and Discharge procedures.

4.      To prevail in a hybrid suit under § 301 of the LMRA, Newman must show

both a breach of the collective bargaining agreement by the employer and a breach

of the duty of fair representation by the union. DelCostello v. Int’l Bhd. of

Teamsters, 462 U.S. 151, 164-65 (1983); Bliesner, 464 F.3d at 913-14. Because

under the collective bargaining agreement Local 501 had no duty to pursue a

grievance on behalf of an Assistant Chief Engineer, Newman cannot establish a

breach of duty on the part of the union. To the extent that Newman can bring

claims under § 301 of the LMRA against Corner without also bringing them

against the union, see Smith v. Evening News Ass’n, 371 U.S. 195, 200-01 (1962),


                                           4
his claims also fail. His wrongful discharge claim against Corner depends on an

invalid side agreement, and there is no issue of fact with respect to his claim for

breach of the collective bargaining agreement’s seniority provision.

      The district court’s summary judgment in favor of both defendants is

AFFIRMED.




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