53 F. 3d 340 -

MEMORANDUM**

William Senter ("Senter") appeals from the district court's summary judgment in favor of defendants Hughes Aircraft Co. ("Hughes") and Electronic and Space Technicians Union, Local 1553, AFL-CIO ("Union"). Senter argues that the district court erroneously: (1) granted summary judgment in favor of Hughes on his claim alleging layoff in breach of the collective bargaining agreement and in favor of the Union on his claim for breach of its duty of fair representation by failing to pursue his grievance against Hughes to final arbitration,1 (2) concluded that his state law claims under Cal. Labor Code Secs. 923 and 1122 were preempted by Sec. 8 of the National Labor Relations Act ("NLRA"), and (3) denied his motion for reconsideration.

(1) Senter's Claims against Hughes and the Union

A good faith discretionary judgment of the Union not to pursue Senter's claim to final arbitration precludes a finding of breach of its duty of fair representation even if that judgment was erroneous or negligent. Stevens v. Moore Business Forms, Inc., 18 F.3d 1443, 1447-48 (9th Cir. 1994). In order to determine whether the Union's decision qualifies as a good faith discretionary decision we first evaluate the strength of Senter's grievance against Hughes. Peters v. Burlington N.R.R., 931 F.2d 534, 541 (9th Cir. 1991).

Senter makes two breach of contract contentions:

The first is based on rights he believes he has under the Southern California Collective Bargaining Agreement ("Southern California Agreement"). After being notified of the transfer of the Microelectronic Systems Division to the Carlsbad Plant, Senter met with Union officials in order "to remind them that the Southern California CBA expressly requires MSD [Microelectronic Systems Division] to have a timekeeper in its bargaining unit." Accordingly, he argues that when Hughes moved the Microelectronic Systems Division to Carlsbad, his unionized timekeeper job and his right to that job would also move.

The Southern California Agreement, however, does not vest rights in employees by virtue of the particular division they work for, but rather by virtue of their being employed at a particular Hughes' plant. In the same paragraph of the Southern California Agreement which Senter relies on to claim that timekeeping is part of the bargaining unit, the Agreement also provides that the bargaining unit is defined by the plants it covers, and not by employment in particular Hughes' product lines or divisions:

The Employer recognizes the Union as the sole and exclusive Bargaining Agent for all production, maintenance, shop clerical employees employed in factory areas, and all employees in the job classifications listed in the Appendices of this Agreement and who are employed in its El Segundo, Fullerton, Newport Beach, Santa Margarita, Malibu, Torrance, Canoga Park, Long Beach, Irvine area plants, and the Corporate Headquarters located in Los Angeles, CA, and referred to in NLRB certifications and applicable orders and agreements. Excluded from the Bargaining Unit are all supervisors, all administrative, professional, engineering and office employees, confidential employees, all plant protection and security employees, and all Finance Department employees, except timekeepers, all welders and maintenance electricians.

(Emphasis added.) The Southern California Agreement, therefore, by its terms protects Senter's unionized timekeeper job only at the Rancho Santa Margarita Plant and other plants covered by that agreement to which Senter may have seniority bump rights. Senter's claim that the Southern California Agreement requires that Hughes unionize timekeeping for the Microelectronic Systems Division operations when moved to a facility not covered by the Southern California Agreement is unfounded.

Article II, Section B of the Southern California Agreement provides that, "[M]anagement shall have the right ... to determine the extent to which the Plants or any unit of the Plants shall be operated or shut down." Senter does not challenge Hughes' right to close the Rancho Santa Margarita Plant and move the Microelectronic Systems Division operations to the Carlsbad-Plant. Hughes had no obligation to transfer him under the Southern California Agreement.

Senter also contends that he has a right to timekeeping under the integrated collective bargaining agreement resulting from the adoption of the Carlsbad Agreement "en toto" as an addendum to the Southern California Agreement. However, even if Senter is correct, and the integration did apply all of the provisions of the Southern California Agreement to the Carlsbad Plant, and therefore made timekeeping part of the bargaining unit at Carlsbad, Senter has presented no evidence indicating that he had any bump rights, or other contractual rights, to that job at the Carlsbad plant.

In short, the Union and Hughes presented evidence that timekeeping at Carlsbad was not unionized, and that even if timekeeping had been unionized, Senter would have had no contractual rights to that position. In view of the weakness of Senter's claims, the Union's decision not to pursue Senter's claim to final arbitration due to its lack of merit was a legitimate exercise of discretionary judgment. Cf. Burlington N.R.R., 931 F.2d at 540. Having reviewed Senter's additional claim of a conspiracy between Hughes and the Union to deprive him of his position and finding it meritless, we hold that Senter has failed to present sufficient evidence raising a genuine issue of material fact regarding the Union's breach of its duty of fair representation. Summary judgment in favor of the Union and Hughes was appropriate.

(2) Preemption Under the NLRA

Senter argues that the district court erred in ruling that his state law claims under Cal. Labor Code Secs. 923 and 11222 were preempted by federal law, and that the district court abused its discretion by not remanding these claims to state court after granting summary judgment in favor of the defendants on his other federal claims. Senter's arguments are meritless.

When a federal court determines that removal jurisdiction was improvidently granted over a case involving claims all of which are arguably preempted by sections 7 or 8 of the NLRA, a district court should remand to the state court to determine whether such claims are in fact preempted. Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1400-02 (9th Cir. 1988). In the present case, however, removal of the case was not improvidently granted since the district court had federal subject matter jurisdiction over Senter's claims against Hughes and the Union under 28 U.S.C. Sec. 185(a). Once the district court resolved these federal claims, it still possessed discretionary jurisdiction over Senter's remaining state claims under its supplemental jurisdiction pursuant to 28 U.S.C. Sec. 1367(a).

The district court correctly determined that Senter's state claims would be preempted by Section 8 of the NLRA, 29 U.S.C. Sec. 158.3 It is well settled law that "[w]hen an activity is arguably subject to Sec. 7 or Sec. 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board...." Castaneda v. Dura-Vent Corp., 648 F.2d 612, 616 (9th Cir. 1981) (quoting San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959)).

Senter presents no meritorious argument indicating that the district court's decision to exercise supplemental jurisdiction was an abuse of discretion.

(3) Denial of Motion for Reconsideration

We conclude that the district court did not abuse its discretion in denying Senter's motion for reconsideration in light of Senter's failure: 1) to pursue discovery diligently prior to summary judgment, 2) to move for a Fed. R. Civ. P. 56(f) continuance prior to summary judgment, and 3) to provide the court with any grounds sufficient to merit reconsideration as provided by the district court's Local Rule 7.16. Qualls By & Through Qualls v. Blue Cross, 22 F.3d 839, 844 (9th Cir. 1994) (internal quotation omitted; emphasis in original), and see discussion in District Court's Order Denying Senter's Motion for Reconsideration and Hughes' Request for Sanctions, ER at 100-102.

AFFIRMED.