Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Submitted March 14, 1988.
N.D.Cal.
AFFIRMED.
Appeal from the United States District Court for the Northern District of California; Honorable Robert P. Aguilar, District Judge, Presiding.
Before CHAMBERS, SCHROEDER and FLETCHER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3.
Robert Kauth appeals the district court's order granting summary judgment against him on his petition to vacate an arbitration decision. We affirm.
Kauth, who was proceeding pro se in this matter, died May 13, 1987. His mother Edna Nelson has been substituted in place of the deceased and is represented by counsel.
Kauth was discharged from the San Jose Mercury News newspaper (the News) for unsatisfactory work performance. The matter went to arbitration and Kauth's discharge was upheld. He sued in state court to vacate the arbitration award and for rehearing. The News and the San Jose Newspaper Guild (the Union) removed to federal court where the district court granted summary judgment in favor of appellees. We review de novo a grant of summary judgment confirming an arbitration award. New Meiji Market v. United Food and Commercial Workers Local Union # 905, 789 F.2d 1334, 1335 (9th Cir.1986).
Kauth contends the district court erred by denying his motion to remand. The removal of a case from state to federal court is a question of federal subject matter jurisdiction which we review de novo. Lou v. Belzberg, 834 F.2d 730, 734 (9th Cir.1987).
Section 301 of the Labor Management Relations Act (LMRA) grants federal courts jurisdiction over "suits for violation of contracts between an employer and a labor organization representing employees in an industry which affects interstate commerce." 29 U.S.C. § 185a. "The district court has jurisdiction under § 301 of the LMRA to vacate or enforce a labor arbitration award." Millmen Local 550 v. Wells Exterior Trim, 828 F.2d 1373, 1375 (9th Cir.1987). Because the district court had jurisdiction of the petition to vacate the arbitration award under § 301 of the LMRA, the district court's denial of the motion to remand was proper.
Kauth contends the district court erred by finding he lacked standing to attack the validity of the arbitration award. An individual employee does not have standing to challenge an arbitration proceeding to which the Union and the employer were the sole parties, unless he alleges breach of the duty of fair representation, fraud or deceit. Andrus v. Convoy Co., 480 F.2d 604, 606 (9th Cir.), cert. denied, 414 U.S. 989 (1973). See generally Anderson v. Norfolk and Western Ry. Co., 773 F.2d 880, 882 (7th Cir.1985). Kauth was neither a party to the arbitration proceeding nor did he allege in his petition fraud, deceit or breach of the duty of fair representation. The district court therefore did not err by finding Kauth lacked standing to attack the award.
Kauth also contends arbitrator Griffin engaged in misconduct by receiving during the pendency of the arbitration proceeding the complaint alleging Kauth's wrongful discharge in a separate case. A party may vacate an arbitration award when there is evidence of partiality or corruption in the arbitrator. 9 U.S.C. § 10b. " 'Evident partiality' means more than a mere appearance of bias." Florasynth, Inc. v. Pickholz, 750 F.2d 171, 173 (2d Cir.1984) (citation omitted).
Kauth alleges no facts which demonstrate Griffin was biased. Moreover, his conclusory allegations are refuted by Griffin's affidavit that he did not read the pleading and that his decision was not influenced by either his receipt of the complaint or its contents.
Kauth contends the arbitration award is untimely because American Arbitration Association (AAA) Rule 37 requires the arbitrator render his decision within 30 days of the hearing. Kauth alleges no facts which support his contention that the AAA rules governed the arbitration proceeding. In fact, the record is to the contrary.
Kauth argues that the district court erred by granting summary judgment in favor of the Union because the Union never filed a motion for summary judgment or a motion in opposition to Kauth's motion for summary judgment. The district court's conclusion that the arbitration award was valid disposed of both the claims of the News and the Union. Because no genuine issue of material fact is presented as to either the News or the Union, entry of summary judgment in favor of both parties was proper.
We find Kauth did not file a motion to amend and that the district court did not deny such a motion. Finally, we conclude there is nothing in the record to suggest Kauth's constitutional rights were violated. The judgment of the district court is AFFIRMED.