                                                                           FILED
                           NOT FOR PUBLICATION                             OCT 28 2014

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



                            FOR THE NINTH CIRCUIT


UNITED BROTHERHOOD OF                            No. 13-35095
CARPENTERS AND JOINERS OF
AMERICA; BUTCH PARKER; SCOTT                     D.C. No. 2:11-cv-05159-TOR
FLANNERY; WILLIAM CRAWFORD;
TRUMAN JORDAN,
                                                 MEMORANDUM*
              Plaintiffs - Appellants,

  v.

METAL TRADES DEPARTMENT, AFL-
CIO; HANFORD ATOMIC METAL
TRADES COUNCIL,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Thomas O. Rice, District Judge, Presiding

                        Argued and Submitted May 12, 2014
                               Seattle, Washington

Before: O’SCANNLAIN, KLEINFELD, and BERZON, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The United Brotherhood of Carpenters and Joiners of America

(“Carpenters”) appeals the district court’s dismissal for failure to state a claim of

its suit against the Metal Trades Department, AFL-CIO, (“Metal Trades”) and the

Hanford Atomic Metal Trades Council. We describe the facts and procedural

history and address the Carpenters’ primary allegation in an opinion filed

concurrently with this memorandum disposition. Here, we note that the

Carpenters’ complaint alleges that the Metal Trades violated the duty of fair

representation by threatening job-related harm unless a Carpenters-affiliated

worker switched unions; diverting Carpenters-affiliated workers’ wages to other

unions; declining to process Carpenters-affiliated workers’ grievances; denying

information to Carpenters-affiliated workers; and denying Carpenters-affiliated

workers a voice on employment matters.1

      Most of the complaint’s “well-pleaded factual allegations,” as opposed to

“mere conclusory statements,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), allege

that affiliated unions, not the Metal Trades, harmed individual Carpenters. The

complaint contains no statements, in any terms, of what their affiliation

relationship required the Metal Trades’ affiliates to do or not do. See Restatement

      1
       Although the Carpenters’ complaint alleges other wrongs, the Carpenters’
brief does not address them, and any challenges to their dismissal are waived. See,
e.g., Hayes v. Cnty. of San Diego, 736 F.3d 1223, 1228 n.2 (9th Cir. 2013).

                                           2
(Third) of Agency § 1.01 cmt. f(1). So there is no way to tell from the complaint

what those affiliates ““reasonably underst[ood]” the Metal Trades’ objectives to

be. See Restatement (Third) of Agency § 2.02(1). Therefore the complaint does

not “plausibly” suggest an agency relationship between the Metal Trades and its

affiliates, much less a relationship encompassing every action taken by any affiliate

anywhere against the Carpenters. Petzschke v. Century Aluminum Co. (In re

Century Aluminum Co. Sec. Litig.), 729 F.3d 1104, 1107–08 (9th Cir. 2013).

      The complaint’s factual allegations accuse affiliated unions, not the Metal

Trades, of threatening job-related harm unless a worker switched unions and of

diverting wages. Because the complaint fails to allege plausibly that the affiliates

have an agency relationship with the Metal Trades, it fails to state a claim against

the Metal Trades for those wrongs.

      As to declining to process grievances, the Carpenters’ complaint contains

one factual allegation against the Metal Trades. But it does not plausibly allege

that the Metal Trades “arbitrarily” or “perfunctorily” processed the worker’s

grievance in that instance, because it does not plausibly allege that the worker

brought his grievance “to [the Metal Trades’] attention.” Diaz v. Int’l Longshore

& Warehouse Union, Local 13, 474 F.3d 1202, 1207 (9th Cir. 2007).




                                          3
      Similarly, the complaint alleges one example of the Metal Trades’ denying

information to individual Carpenters. But it does not allege that it was the Metal

Trades’ obligation to provide such information, nor that any “substantial prejudice

to an employee, particularly the loss of employment” resulted. Robesky v. Qantas

Empire Airways Ltd., 573 F.2d 1082, 1090 n.17 (9th Cir. 1978).

      Finally, the complaint’s one factual allegation that the Metal Trades denied a

“voice” to a Carpenters’ member merely alleges that the worker was no longer

allowed to participate in the negotiation of a collective bargaining agreement. But

the duty of fair representation does not grant unaffiliated workers the right to

negotiate for themselves. Such a right would be inconsistent with the Metal

Trades’ role as exclusive bargaining agent. See 29 U.S.C. § 159(a); see also

Emporium Capwell Co. v. W. Addition Cmty. Org., 420 U.S. 50, 69–70 (1975).

The complaint does not plausibly allege that the Metal Trades failed to represent

Carpenters’ members fairly during the negotiations.

      AFFIRMED.




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