NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICARDO APOLINARIO,

 Plaintiff - Appellant,

v.

UNITED HEALTHCARE WORKERS -

WEST, SERVICE EMPLOYEES

INTERNATIONAL, CTW, CLC; SETON 

MEDICAL CENTER; and DOES ONE

THROUGH TWENTY FIVE,

 Defendants - Appellees.

No. 14-17109

D.C. No. 3:13-cv-04219-VC

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Vince G.Chhabria, District Judge, Presiding

Submitted October 20, 2016**

San Francisco, California

Before: GRABER and MURGUIA, Circuit Judges, and COLLINS,

*** Chief 

District Judge. 

 * This disposition is not appropriate for publication and is not precedent 

except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes that this case is suitable for decision 

without oral argument. Fed. R. App. P. 34(a)(2). *** The Honorable Raner C. Collins, Chief United States District Judge for 

the District of Arizona, sitting by designation.

FILED

OCT 24 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Plaintiff Ricardo Apolinario appeals from two district court orders

dismissing his claims against his former employer, Seton Medical Center (“Seton”) 

and labor union, United Healthcare Workers-West Service Employees 

International Union (“the Union”). The first order granted the Union’s motion to 

dismiss Apolinario’s claim for a breach of the duty of fair representation under the 

National Labor Relations Act. The second order granted Seton’s motion for 

judgment on the pleadings concerning his claims brought under the Labor 

Management Relations Act, 1947. We review dismissals under Federal Rules of 

Civil Procedure 12(b)(6) and 12(c) de novo. See Lyon v. Chase Bank USA, 656 

F.3d 877, 883 (9th Cir. 2011) (judgment on the pleadings); Knievel v. ESPN, 393 

F.3d 1068, 1072 (9th Cir. 2005) (motions to dismiss). We now affirm.

To prevail against either Seton or the Union, Apolinario has the burden to 

demonstrate the Union breached its duty of fair representation. Hines v. Anchor 

Motor Freight, Inc., 424 U.S. 554, 570–71 (1976); see also United Parcel Serv., 

Inc. v. Mitchell, 451 U.S. 56, 62 (1981). A union breaches its duty of fair 

representation to an employee by engaging in conduct that was “arbitrary, 

discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190 (1967). Whether 

to pursue a grievance is typically a decision in which unions “retain wide 

discretion to act in what they perceive to be their members’ best interests.” 

Peterson v. Kennedy, 771 F.2d 1244, 1253 (9th Cir. 1985). Apolinario’s operative 
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complaint does not allege enough specific facts to support a reasonable inference 

that the Union breached its duty of fair representation in handling his grievance, 

and mostly includes “threadbare recitals of a cause of action’s elements, supported 

by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). 

Notably, Apolinario does not allege specific facts (1) suggesting any motive the 

Union might have had for discriminating against him or acting in bad faith, (2) 

showing that similarly situated employees were treated differently by the Union, or 

(3) giving context to or explaining his bare allegation. Because he failed to 

“provide more[,]” his claims must fail. Mendiondo v. Centinela Hosp. Med. Ctr., 

521 F.3d 1097, 1104 (9th Cir. 2008).

AFFIRMED.