
    Charles G. WRIGHT, Plaintiff, v. John MERK and Jane Doe Merk, husband and wife and their marital community, if any, and International Association of Sheet Metal, Air, Rail, and Transportation Workers, Local 55 (Smart), Defendants.
    No. 4:14-CV-5090-RMP.
    United States District Court, E.D. Washington.
    Signed July 28, 2015.
    
      Michael J. Davidson, Scott M. Kinshella, Davidson Law Center, Pasco, WA, for Plaintiff.
    Jacob H. Black, Andrew G. Lukes, Rob-blee Detwiler & Black PLLP, Seattle, WA, for Defendants.
   ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION TO AMEND COMPLAINT

ROSANNA MALOLTF PETERSON, Chief Judge.

BEFORE THE COURT is Defendants’ Motion for Summary Judgment, ECF No. 15, and Plaintiffs Motion to Amend Complaint, ECF No. 23. The Court heard oral argument on the motions on July 23, 2015, in Richland, WA. Attorney Scott M. Kin-shella appeared on behalf of Plaintiff Charles G. Wright, and attorney Jacob H. Black appeared on behalf of Defendants John and Jane Doe Merk, and International Association of Sheet Metal, Air, Rail, and Transportation Works, Local 55. The Court has reviewed the motions, considered the parties’ arguments, and is fully informed.

BACKGROUND

Plaintiff Charles Wright was and is a member of International Association of Sheet Metal, Air, Rail, and Transportation Workers Local # 55 (“SMART Local # 55”), a labor union operating in Washington and Idaho. ECF No. 19 at 1. Beginning in March 2010, through July 3, 2014, Mr. Wright served as a Union Organizer for SMART Local #55. . Wright Dep., ECF No. 17-1 at 21-22. Mr. Wright’s position as a Union Organizer was subsidized by the International Association of Sheet Metal, Air, Rail, and Transportation Workers (“International”): SMART Local # 55 paid half of his salary, and International paid the other half. Wright Dep., ECF No. 31-1 at 13; ECF No. 17-1 at 14; Merk. Deck, ECF No. 18 at 3-4.

Mr. Wright was an at-will employee who served a one-year, renewable term of employment. Wright Decl., ECF No. 19 at 2; Merk Dep., ECF No. 21-1 at 60. International’s constitution states that a local organizer “serve[s] at the discretion of the business manager.” ECF No. 18-1, Ex. A at 71. Mr. Wright’s term was renewed five successive years. Wright Deck, ECF No. 19 at 2. Mr. Wright states that, when he was hired, the applicable pay structure was explained to him “in a way that made it clear that [he] was under a one year contract which could be renewed for other one year terms with an increase in pay.” Wright Deck, ECF No. 19 at 2. He understood this term structure to mean “that each March [his] employment would be renewed for another year term assuming [he] was doing [his] job.” Wright Deck, ECF No. 19 at 2.

Mr. Wright alleges that when he was appointed one of the International Organizers, Sean Mahoney, gave him a copy of the 2009 Policy for the Local Union Subsidized Organizers Program and “pointed out the application of its provisions to local organizers and to Local- 55,” Wright Deck, ECF No. 19 at 3-4; EC However, Defendant John Merk contends that “Local 55 did not create the policy, did not distribute the policy to its employees, and did not inform its employees that the policy applied to them.” Merk. Deck, ECF No. 18 at 6-7. The policy states:

The Local Union and the International Association, over time, will invest large sums of money training, educating, and outfitting the subsidized local union organizer. The knowledge and skills gained by the organizer over a period of years is invaluable to our organization. This is not an investment to be taken lightly. Obviously, when a local union Subsidized Organizer is not doing the assigned duties, the Business Manager may take disciplinary action, up to and including termination.

ECF No. 18-1, Ex.- D at 13 (emphasis in original). Additionally, the policy states that “[t]he selection of the organizer by the local union is a critical step in the success of an organizing program and should be undertaken without personal or political motivation.” ECF No. 18-1, Ex. D at 9.

As a Union Organizer, Mr. Wright engaged in picketing and handbilling, promoting SMART Local # 55. Wright'Dep., ECF No. 17-1 at 54-64. He worked to incorporate new targets, or labor forces, into the Union, sometimes engaging directly with nonorganized employees, and sometimes engaging upper management regarding recognizing the Union. Wright Dep., ECF No. 17-1 at 54-64. He states that all of his decisions regarding who to target, where to picket or handbill, and the content of the handbills, had to be approved by either 'the International Organizer Sean .Mahoney or SMART Local # 55’s Business Manager / Financial Secretary, John Merk. Wright Deck, ECF No. 19 at 7 (“I had no control over the decision-making process.”); Wright Dep., ECF No. 17-1 at 54-64. Mr. Merk states that Mr. Wright “played a significant role in developing and implementing Local 55’s organizing strategy.,. In accomplishing these tasks, Wright often consulted with both [Merk] and the International’s organizer for our region, Sean Mahoney.” Merk.Decl., ECF No. 18 at 4. However, Mr. Merk described Mr. Wright’s position as a Union Organizer as being “in a policy-implementing level,” as opposed to a “policy-making” position. Merk Dep., ECF No. 2Í — 1 at 75.

In May 2014, Mr. Wright decided to run for the. position of Business Manager / Financial Secretary. Wright Decl., ECF No. 19 at 6. Mr. Wright ran against the incumbent, John Merk. Wright Deck, ECF No. 19 at 5-6; Merk Deck, ECF No. 18 at 4. In so doing, Mr. Wright campaigned under the slogan “New People with New Ideas,” on a slate with two other candidates: Mark Born, who successfully ran for Tri-Cities Business Agent, and Tracey Henderson, who unsuccessfully ran for Boise Business Agent. ECF 17, Ex. D.

While campaigning, Mr. Wright was openly critical of Mr. Merk’s performance as the incumbent Business Manager. Wright Dep., ECF No. 17, Ex. A at 84, 91-92. He- stated that Mr. Merk didn’t “have a future in this union,” that he. “talks down” about the members, and that he was “weakening [the] organizing program.” Wright Dep., ECF No. 17, Ex. A at 84. He spoke critically of Mr. Merk’s budget decisions, his decision to reduce organizing costs, and the fact that the telephones at the union hall often went unanswered. Wright Dep., ECF No. 17, Ex. A at 91-92. He promised, if he was elected, to hire more Union Organizers, to require the Business Representatives to spend more time in the field, to hire a secretary to answer the phones, to have quarterly staff meetings, and to hire two additional employees. Wright Dep., ECF No. 17, Ex. A at 91-92.

Mr. Merk narrowly defeated Mr. Wright in the election on June 24, 2014. Wright Deck, ECF No. 19 at 6. On July 3, 2014, Mr. Merk terminated Mr. Wright’s employment as a Union Organizer. Wright Deck, ECF No. 19 at 7; Mérk Deck, ECF No. 18 at 5. According to Mr. Wright, Mr. Merk told him that he was terminating Mr. Wright because he ran against him in the election. Wright Deck, ECF No. 19 at 7. Defendants do not contend that Mir. Wright was performing his duties unsatisfactorily. Instead, Mr. Merk admits:

In my opinion, to lead Local 55 effectively, I need a professional staff that supports my policies. I felt that by running against me that Wright had exhibited that he was disloyal to me and to my leadership. The members voted for me rather than Wright. I took this as a mandate to implement my policies and plans for Local 55. Since Wright had. campaigned against me and my policies, I did not have confidence that he could work cooperatively with me to achieve my goals for Local 55. In light of Wright’s statements during the election, T no longer believed that Wright was capable of working with me in my ád-ministration and carrying out the membership’s mandate.

Merk Deck, ECF No. 18, at 5-6.

Mr. Wright contends that he was never informed by anyone at SMART Local # 55 or Intel-national that his employment might be terminated if he ran against Mr. Merk and lost. Wright Deck, ECF No. 19 at 5-6. Mr. Merk admits that he never told Mr. Wright that if his campaign was unsuccessful, he would be terminated. Merk Dep., ECF No. 21-1 at 48.

Mr. Wright filed a complaint in Franklin County Superior Court on August 21, 2014. ECF No. 2-1. The complaint alleges three causes of action based on Mr. Wright’s termination: (1) wrongful termination / retaliatory discharge in violation of public policy; (2) breach of implied contract; and (3) discriminatory discharge in violation of RCW 42.17A.495. ECF No. 2-1. All three causes.of action are based on Washington state law. ECF No..2~l. >

Defendants move for summary judgment on all three' causes of action as preempted by federal labor law. ECF No. 15. Mr. Wright concedes that his first and third causes of action are preempted and withdraws them. ECF No-. 20 at 3. Mr. Wright contends that his second cause of action claiming a breach of implied contract is not preempted. ECF No. 20 at 4. He moves to amend his complaint to include two additional federal causes of action based on §§ 101-102 of the Labor-Management Reporting and Disclosure Act (“LMRDA”) and' § 301 of the Labor Management Relations Act (“LMRA”). ECF No. 23.

DISCUSSION

A, Motion for Summary Judgment

Summary judgment is appropriate when the moving party establishes that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).. If the moving party demonstrates the absence of a genuine issue of material fact, the burden then shifts to the non-moving party to set out specific facts showing a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of> material fact exists if sufficient evidence supports, the claimed.factual dispute, requiring “a jury or judge to resolve the parties’ differing, versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987).

The evidence presented by both the moving and non-moving parties must be admissible. Fed.R.Civ.P. 56(e). Evidence that may be relied upon at the summary judgment stage includes “depositions, documents, electronically stored information, affidavits or declarations, stipulations' ... admissions, [and] interrogatory ' answers.... ” Fed.R.Civ.P. 56(c)(1)(A),. The court will not presume missing facts, and non-specific facts in affidavits aré not sufficient to support or undermine.a claim. Lujan v. Nat’l Wildlife Fed'n 497 U.S. 871, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d. 695 (1990),

In evaluating a motion for summary judgment, the Court must draw all reasonable inferences in favor'of the non-moving party. Dzung Chu v. Oracle Corp. (In re Oracle Corp. Secs. Litig.), 627 F.3d 376, 387 (9th Cir.2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). However, “when opposing parties tell two different stories, one of which- is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of that facts.... ” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

i First and Third Causes of Action

In his first cause of action, Mr. Wright claimed that his termination violated two Washington statutes: the Little Norris-' LaGuardia Act, codified at ROW 49.32.020, which protects workers’ freedom to associate and organize; and ROW 42.17A.495(2), which prohibits an employer from discriminating against an employee “in the terms or conditions of employment” for political activism. ECF No. 2-1 at 7-8. In his third cause of action, Mr. Wright claimed that his termination constituted a discriminatory discharge in violation of RCW 42.17A.495.

Defendants argued that all of Mr. Wright’s claims, including the second cause of action, are preempted by federal labor law. ECF No. 15. Specifically, Defendants contend that any claims that Mr. Wright was terminated for engaging in union activity are preempted by the NLRA under San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). Defendants also argue that Mr. Wright’s claims fall within an area of the law that Congress intended to be left unregulated, and thus are preempted under Machinists Lodge 76 v. Wis. Emp’t Relations Comm’n, 427 U.S. 132, 149-51, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976) and Finnegan v. Leu, 456 U.S. 431, 435-36, 102 S.Ct. 1867, 72 L.Ed.2d 239 (1982).

Mr. Wright acknowledges that his first and third causes of action are preempted under federal labor law. ECF No. 20 at 3. Therefore, Mr. Wright withdraws those claims. ECF No. 20 at 3.

ii. Second Cause of Action

In his second cause of action, Mr. Wright claims that his termination breached an implied contract of continued employment created between him and SMART Local # 55 by the organization’s adoption of International’s Constitution and Policy for the Local Union Subsidized Organizers Program. ECF No. 2-1 at 9. Mr. Wright argues that the constitution and Subsidized Organizers Policy gave him the expectation that his employment term would be renewed each year if he performed the job satisfactorily and that he could not be terminated without good cause or based on political motivations. He argues that SMART Local #55 adopted those policies by communicating their contents to Mr. Wright, thereby creating an implied contract of continued employment. Mr. Wright also argues that he was never informed that he would be terminated if he ran against Mr. Merk in the election, and that he detrimentally relied on this implied contract and lack of information regarding the likelihood of his termination when he chose to accept the nomination for Business Manager. Mr. Wright’s claim is based on Washington state common law.

Defendants argue that Mr. Wright’s second cause of action is preempted by § 301 of the LMRA because it requires interpretation of two labor contracts: the constitution and the Subsidized Organizers Policy. ECF No. 15 at 10. Mr. Wright disagrees, arguing that his breach of contract claim does not seek to enforce the constitution or the Subsidized Organizers Policy as a contract, but rather, alleges that an implied contract existed between SMART Local # 55 and him which “incorporated some of the language present in the contract between Local 55 and the international.” ECF No. 20 at 5. According to Mr. Wright, “[a]ny language from [the constitution and policy] need only be interpreted indirectly, to the extent that it has been incorporated into the implied contract between Wright and Local 55.” ECF No. 20 at 5.

Section 301 establishes the proper venue for suits by and against labor organizations, permitting those suits to be brought “in any district court of the United States having jurisdiction of the parties....” 29 U.S.C. § 185(a). The Supreme Court has held that courts must apply federal law to suits brought under § 301. Textile Workers Union of America v. Lincoln Mills of Ala., 353 U.S. 448, 456, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Additionally, § 301 has a preemptive effect, prohibiting courts from applying state law to claims regarding collective bargaining agreements. Local 174, Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Lucas Flour Co., 369 U.S. 95, 103-04, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962) (“[W]e cannot but conclude that in enacting § 301 Congress intended doctrines of federal labor law uniformly to prevail over inconsistent local rules.”).

Later, the Supreme Court summarized the holding in Lucas Flour Co., stating that “a suit in state court alleging a violation of a provision of a labor contract must be brought under § 301 and be resolved by reference to federal law. A state rule that purports to define the meaning or scope of a term in a contract suit therefore is pre-empted by federal labor law.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). More so, “questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, must be resolved by reference to uniform federal law....” Id. at 211, 105 S.Ct. 1904. “Therefore, state-law rights and obligations that do not exist independently of private agreements, and that as a result can be waived or altered by agreement of private parties, are pre-empted by those agreements.” Id. at 213, 105 S.Ct. 1904. However, “as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement for § 301 pre-emption purposes.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 410, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988).

International union constitutions are “contracts” under § 301. Wooddell v. Int’l Broth, of Elec. Workers, Local 71, 502 U.S. 93, 99-100, 112 S.Ct. 494, 116 L.Ed.2d 419 (1991) (“Since union constitutions were at the time of enactment of Taft-Hartley (and remain) probably the most commonplace form of contract between labor organizations, we concluded that Congress would not likely have used the unqualified term ‘contract’ without intending to encompass union constitutions.”). Similarly, a union’s bylaws constitute a contract under § 301. Wooddell, 502 U.S. at 100, 112 S.Ct. 494. The parties have not presented any case law finding that an international labor union’s policy, such as the Subsidized Organizer Policy, constitutes a contract under § 301. However, for purposes of this analysis, the Court will presume that a labor union policy is analogous to a union’s bylaws and therefore constitutes a contract under § 301.

Mr. Wright cites Derrico v. Sheehan Emergency Hosp., 844 F.2d 22 (2d Cir.1988), to show that a state law implied contract claim is not preempted by § 301. Derrico is inapposite. In Derrico, a plaintiff sought to enforce the terms of an expired collective bargaining agreement. Derrico, 844 F.2d at 23, The Second Circuit found that § 301 did not apply to the plaintiffs claim because the collective bargaining agreement was expired. Id. at 25. The court stated that “the district court correctly held that section 301 has no application in the absence of a currently effective CBA. Section 301 would of course preempt any attempt to enforce the CBA itself by resort to state law.” Id. at 25. Only after forming this conclusion did the court state that its holding was “bolstered” by the fact that the plaintiffs claim alleged an implied contract. Id. at 25. The Circuit stated that it knew of “no case holding that a contract between an employer and an individual employee falls under section 301.” Id. at 26. :

Mr. Wright's argument that the Court only need analyze the constitution and policy indirectly is unpersuasive. Mr. Wright alleges that an International employee, Sean Mahoney, showed him the provisions in the constitution and Subsidized Union Organizers’ Policy that applied to his position. He argues that in showing him these provisions, SMART1 Local #55 adopted the terms of the documents, and that combined with statements made by other employees; an implied contract was formed between Mr. Wright and SMART Local # 55. Mr. Wright contends that the actions and words of union personnel comprise the alleged implied contract because there is no written employment contract between Mr. Wright and SMART Local #55. Therefore, the act of showing Mr. Wright the constitution and policy itself arguably makes up part of the implied contract.

In this ease, Mr. Wright alleges that the constitution and policy are at least part of the alleged implied contract. Therefore, the Court must read the constitution and policy in order to determine which provisions allegedly make up.the implied contract, as well as read the context of those provisions.. Under Lucas Flour Co. and Allis-Chalmers Corp., the Court is prohibited from analyzing the constitution, and arguably the policy, in order' to determine a claim pursuant to state law. .;

Defendants also argue that Mr. Wright’s second cause of action is preempted by the NLRA because it is based on Mr. Wright’s having engaged in “concerted protected activities” and because the second cause of action is related to his termination. ECF No. 29. Therefore, under Ga/nnon, Mr. Wright’s, breach of. contract claim is preempted. ECF No. 15 at 2 — 5.

In Garmon, the Supreme Court "held that “[w]hen an activity is arguably subject to § 7 or § • 8 of the [NLRA], the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.” Garmon, 359 U.S. at 245, 79 S.Ct. 773. Section 7 of the NLRA protects workers’ rights to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection....” 29 U.S.C. § 157. Under § 8 of the NLRA, it is an “unfair labor- practice” for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” by § 7. 29 U.S.C. § 158(a)(1).

This Court previously considered whether an employee’s claim of wrongful termination, based on the employee’s participation in an election, was preempted by § 7 of the NLRA. Kirwin v. Teamsters Local Union No. 609, CV-10-365-RMP, 2012 WL 553993, *7 (E.D.Wa. Feb. 21, 2012). The Court reasoned that because the employees’ state law claim “springs from their employment with the Union, not their membership in the union,” the state law claim is “included within the protections of § 157, and the NLRA is applicable.” Kirwin, 2012 WL 553993, at *8. The Court concluded that “the adverse employment action resulting from the campaign conduct described in this record is ‘arguably’ protected under the NLRA. [] As that is all that is required for state remedial schemes to be preempted,” the Court held the employees’ wrongful termination claim to be preempted by the NLRA. Id. at *9.

Mr. Wright relies on Belknap, Inc. v. Hale, 463 U.S. 491, 103 S.Ct. 3172, 77 L.Ed.2d 798 (1983), for the contention that “independent state law contract claims” are not preempted by the NLRA. ECF No. 20 at 8. In Belknap, the Court considered whether a suit alleging misrepresentation and breach of contract with replacement workers was preempted by the NLRA. Belknap, 463 U.S. at 496, 103 S.Ct. 3172. The Court held that the contract claims were not preempted by the NLRA. Id. at 510, 103 S.Ct. 3172.

The Court relied on the rule that “[u]n-der Garmon, a state may regulate conduct that is of only peripheral concern to the Act or which is so deeply rooted in local law that the courts should not assume that Congress intended to preempt the application of state law.” Id. at 509, 103 S.Ct. 3172. The Court cited three previous cases in support of the rule: Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), holding that the NLRA did not preempt an action based on false and malicious statements in the course of a labor dispute; Farmer v. Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977), holding that the NLRA did not preempt a state action for intentional infliction of emotional distress; and Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978), holding that the NLRA did not preempt a trespass action. Id. The Court stated that the “critical inquiry in applying the Garmon rules, where the conduct at issue ... is said to be arguably prohibited by the Act and hence within the exclusive jurisdiction of the NLRB, is whether the controversy presented ,. is identical with that which could be presented to the Board.” Id. at 510,103 S.Ct. 3172. ,

The analysis applied by this Court in the Kirwin case applies here. “[T]he adverse employment action resulting from the campaign conduct described in this record is ‘arguably1 protected under the NLRA.” Kirwin, 2012 WL 553993, at *9. Conduct only need be “arguably subject to § 7 or § 8 of the [NLRA]” to be preempted under Garmon, Garmon, 359 U.S. at 245, 79 S.Ct. 773. Accordingly, Mr. Wright’s implied contract claim is preempted under Garmon.

Belknap provides a poor’basis for finding an exception in this ease, since the three cases it cites in support of an exception are all distinguishable from the instant case. A claim for breach of' an implied employment contract is not “peripheral” to the NLRA in the same way that a claim for false and malicious statements, intentional infliction of emotional distress, or trespass, may be peripheral. Additionally, the claim alleged in this ease by Mr. Wright is identical to a claim Mr. Wright could have brought before the NLRB,' but chose not to pursue. Indeed, Mr. Wright’s former co-plaintiff did file a claim with the NLRB on the same basis. Wright Dep., ECF No. 17, Ex.'E.

Defendants also argue that, if the Court were.to reach the merits of Mr. Wright’s breach of implied contract claim, the claim fails on the merits because Mr. Wright cannot show that the implied contract contained a “promise of specific treatment in specific, situations,” as required under Washington law. ECF No. 15 at 12 (citing Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 222, 685 P.2d 1081 (1984) (en banc)). Because the Court finds that Mr. Wright’s second cause of action is preempted by federal labor law, the Court need not reach the issue of whether Mr. Wright’s claim fails on the merits.

Therefore, the Court grants Defendant’s motion for summary, judgment on Mr. Wright’s -second cause of action alleging a breach of an implied contract of continued employment because that claim is preempted under § 301 of the LMRA and under the NLRA and Garmon.

B. Motion to Amend Complaint

Mr. Wright moves to amend his complaint to include two additional causes of action based on federal labor law: a claim for violation of rights secured under §§ 101-102 of the LMRDA, and a claim to enforce the provisions of the Subsidized Organizer Policy under § 301 of the LMRA. ECF No. 23. Mr. Wright argues that he should be permitted to amend his complaint under Federal Rule of Civil Procedure 15(a)(2), which permits a party to amend a pleading with leave of the court. ECF No. 23 at 3. The rule states that “[t]he court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2).

Defendants contend that Mr. Wright must be required to meet the higher burden of good cause, because Mr. Wright seeks to amend the complaint after the deadline set by the Court in the Court’s scheduling Order, ECF No. 23. The Order required that any motion to amend pleadings be filed no later than November 20, 2014,- and states that the “schedule shall not be modified unless the Court finds good cause to grant leave for modifications” pursuant to Rule 16. The Court agrees with Defendants that Mr. Wright must show good cause to amend the Complaint because he failed to meet the deadline established in the Court’s Order.

Pursuant to Rule 16(b), a party must establish “good cause” to justify modification of a scheduling order. See Fed.R.Civ.P. 16(b)(4). “Unlike Rule 15(a)’s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609. (9th Cir.1992). “If that party was not diligent, the inquiry should end.” Id.

i Diligence

Defendants contend that Mr. Wright was not diligent in amending the complaint. ECF No. 27 at 2. First, Defendants note that Mr. Wright “knew all the facts necessary to plead an LMRDA violation at the time he filed the Complaint,” as evidenced by the fact that he states that his complaint “provide[s] a sufficiently plausible factual basis” for the claim. ECF No. 27 at 2. Second, Defendants state that, prior to filing the complaint, Mr. Wright’s attorney sent Defendants’ attorney a letter explaining his LMRDA theory, which he now seeks to add to the complaint. ECF No. 27 at 2; ECF No. 28-1. Third, Defendants note that Mr. Wright’s attorney was on notice of the § 301 claim he now seeks to add because Defendants described the Subsidized Organizer Policy as “a contract between two labor organizations” under § 301 of the LMRA in the Notice of Removal. ECF No. 27 at 2; ECF No. 1. Finally, Defendants argue that Mr. Wright’s attorney is an experienced lawyer who has been licensed since 1982, and. that therefore he is “presumed to know the law.” ECF No. 27 at 2.

Mr. Wright did not reply to Defendants’ response memorandum. During oral argument, Mr. Wright’s attorney did not provide any justification for the delay in seeking amendment of the complaint, stating only that he has seen delayed complaint amendments in similar cases before, and asking the Court to forgive the error.

Based on the evidence available to the Court, it does appear that Mr. Wright’s attorney was not diligent in seeking amendment of the complaint and that there was no justifiable excuse for the delay. Typically, the Court is hesitant to fault a plaintiff for his counsel’s error. However, the Court also finds and discusses below that amendment of the complaint to include Mr. Wright’s LMRDA claim likely would be futile, and amendment may be futile as to Mr. Wright’s LMRA claim. Additionally, amending the complaint to add the LMRA claim would require additional discovery and a continuance of the trial date which would unfairly prejudice Defendants.

ii. Futility

Mr. Wright seeks to amend his complaint to add a claim for violation of rights secured under § 101 of the LMRDA, which “guarantee^] equal voting rights, and rights of speech and assembly, to every member of a labor organization.” Finnegan v. Leu, 456 U.S. 431, 436, 102 S.Ct. 1867, 72 L.Ed.2d 239 (1982) (quoting sections 101(a)(1) and (2) of the LMRDA, codified at 29 U.S.C. §§ 411(a)(1)) (internal quotation marks omitted). Mr. Wright also seeks to amend his complaint to add a claim under § 102 of the LMRDA, which provides a civil right of action for persons whose rights secured in § 101 are violated. 29 U.S.C. § 412.

The Supreme Court in Finnegan held that § 101 of the LMRDA did not apply to “union officers dr employees.” Finnegan, 456 U.S. at 437, 102 S.Ct. 1867. However, the Supreme Court specifically “le[ft] open the question whether a different result might obtain in a case involving nonpolicy-making and nonconfidential employees.” Id. at 441, n. 11,102 S.Ct. 1867. .

Mr. Wright argues that as a union organizer, he was a nonpolieymaking and non-confidential employee falling outside the scope of Finnegan. Wright Decl., ECF No. 19 at 7-8. Defendants contend that Mr. Wright was a “policymaking employee” who does not fall under the footnote exception to the Finnegan rule. ECF No. 27 at 6. Both parties present testimony from Mr. Wright and Mr. Merk in support of their positions, although Mr. Merk admits that Mr. Wright’s position was “in a policy-implementing level.” ECF No. 21-1 at 75; see supra Background section.

In support of their position, Defendants cite two cases from other circuit courts, Witmeyer v. Brotherhood of Ry. Airline & S.S. Clerks, 779 F.2d 206, 208 (4th Cir.1985), and Rutledge v. Aluminum, Brick & Clay Workers, Int’l Union, 737 F.2d 965 (11th Cir.1984), as well as two cases from state courts of appeal. ECF No. 27 at 6-7. None of the cases cited by Defendant is binding precedent in this Court. The Eleventh Circuit case cited by Defendants, Rutledge, held that Finnegan applies to union employees who implement policy as well as those that make policy. Rutledge, 737 F.2d at 967. Given Mr. Merk’s admission that Mr. Wright was a policy-implementing employee, Defendants appear to be relying on the Rutledge case for their position that Finnegan bars claims by employees who implement policy as well as those who make policy.

The Ninth Circuit held that Finnegan barred the wrongful discharge claims of a local union ■ business representative brought pursuant to the LMRDA because her membership rights were not affected by her employment termination. Childs v. Local 18, Intern. Broth, of Elec. Workers, 719 F.2d 1379, 1383-84 (9th Cir.1983), abrogation on unrelated grounds recognized by Swift v. Realty Exec. Nev. Choice, 211 Fed.Appx. 571 (9th Cir.2006). The court in Childs did not address whether the plaintiff had held a policy-making or policy-implementing role, and’that distinction did not appear relevant to the court’s analysis. Id. at 1384; see Lynn v. Sheet Metal Workers’ Int’l Ass’n, 804 F.2d 1472 (1986) (finding that a discharged business representative whose membership rights were unaffected by his termination could not bring a claim under § 101 of the LMRDA and neglecting to consider, whether the employee served in a policy-making or policy-implementing role). This Court is not aware of a Ninth Circuit case discussing the distinction between a policy-making and a policy-implementing employee under Finnegan. Therefore, the Court declines to find that alleged distinction has any bearing on whether Mr. Wright’s proposed LMRDA claim is viable.

In Lynn v. Sheet Metal Workers’ Int’l Ass’n, the Ninth Circuit expressly considered whether a discharged business representative could bring a claim against a local union under §§ 101 and 102 of the LMRDA after Finnegan. Lynn, 804 F.2d at 1478. The plaintiff in Lynn had spoken out against a union policy at a union meeting and subsequently been fired. Id. at 1476. The court concluded that the plaintiffs union employment did not qualify as a right protected by § 101, but that the plaintiffs free speech rights were protected by § 101. Id. at 1478. -

However, the Court noted that the plaintiffs free speech rights were not directly infringed because the plaintiff was not prevented from' attending" or speaking at the union meeting. Id. at 1479. The court concluded that under Finnegan, the plaintiff could not state a claim for relief under § 101 of the LMRDA because his membership rights had not been directly infringed -as required under Finnegan. Id. at. 1478-79 (<![A]n individual may state a cause of action under section 101 only for those acts which violate his membership rights, and not for those which infringe upon whatever rights he may have acquired by virtue of his status as an officer or employee.”).

The Lynn court next considered whether the plaintiff had a cognizable claim under § 102 of the LMRDA. Id. The court noted that, in Finnegan, the Supreme Court “neither defined the scope of a section 102 claim nor held that only a direct infringement of a Title I right was actionable.” Id. However, in Finnegan, the Court stressed that the “overriding objective” of the LMRDA was “to ensure that unions would be democratically governed, and responsible to the will of the union membership as expressed in open, periodic elections.” Id. (quoting Finnegan, 456 U.S. at 441, 102 S.Ct. 1867) (internal quotation marks omitted). Accordingly, the Supreme Court protected the right of an elected president to select her appointed administrators. - Id. (citing Finnegan, 456 U.S; at 441,102 S.Ct. 1867).

However, the Lynn court also recognized that “the power to remove an official from office may also be used to suppress dissent, either through retaliation, or through intimidation.” Id. (citing Finnegan, 456 U.S. at 441, 102 S.Ct. 1867). “The removal of an official under these circumstances can only impede the democratic governance of the union.” Id. Based on the theory that removing an elected official from union employment can serve to impede the democratic process, the Ninth Circuit held that the plaintiff had a cognizable claim against the local union under § 102 of the LMRDA. Id.

The Ninth Circuit has limited Lynn’s holding to the removal of elected officials, as opposed to appointed officials:

The Finnegan Court twice pointed out that the -foremost objective of the LMRDA “was to ensure that unions would be democratically governed, and responsive to the will of the union membership as expressed in open, periodic elections.” Finnegan, 456 U.S. at 441, 102 S.Ct. 1867. Given this emphasis, it follows that, newly elected officers should be given a. free rein to remove their predecessor’s appointees. The mandate of. an appointee stems directly from the elected official who appointed . her, and once the elected official has been removed from office by the membership, it would be anti-democratic to forbid the removal of that official’s functionaries. This rationale does not .support the removal of elected union officers. Their mandate comes directly from the membership, and the more democratic result would obtain were the membership able to maintain its authority over elected positions.

Brett v. Hotel, Motel, Rest., Const. Camp Emps. and Bartenders Union, Local 879, 828 F.2d 1409, 1415 (9th Cir.1987).

Like the plaintiff in Lynn, Mr. Wright’s free speech rights were not directly infringed by his termination. To the contrary, Mr. Wright actively participated in the election process, campaigning for himself and others while speaking out against the incumbent, Mr. Merk. Therefore, like the plaintiffs § 101 claim in Lynn, Mr. Wright’s proposed § 101 claim is not cognizable. Amendment of the complaint to add a § 101 claim is futile. Additionally, unlike the plaintiff in Lynn, Mr. Wright was an appointed employee. Under Brett, the Lynn holding permitting an elected employee to bring a claim under § 102 of the LMRDA does not apply to Mr. Wright. Amendment of Mr. Wright’s complaint to add a § 102 claim is also futile.

Mr. Wright also seeks to amend his complaint to include a claim under § 301 of the LMRA. ECF No. 23. Defendants argue that Mr. Wright may not bring a § 301 claim under the LMRA because he is suing 'as an employee of' the union rather than as a member. ECF No. 27 at 7-8. In Wooddell, fhe Supreme Court held that a union member could sue a local union under § 301 of the LMRA for violations of the union’s constitution. Wooddell, 502 U.S. at 101-102, 112 S.Ct. 494. The Court stated:

Collectiverbargaining agreements are the principal form of contract between an employer and a labor organization. Individual union members, who are often the beneficiaries of provisions of collective-bargaining - agreements, may bring suit 'on these, contracts under § 301. Likewise; union constitutions are an important , form of contract between labor organizations. Members of a collective-bargaining unit are often the beneficiaries of such inter-union contracts, and when they are, they likewise may bring suit on these contracts under § 301.

Id. at 101,112 S.Ct. 494. •

Defendants ■ attempt to distinguish Wooddell by arguing that it applies only to “members” of a collective-bargaining unit, instead of union employees. ECF No. 27' at 8. Defendants cite to three cases from other circuits, none of which is binding on this Court. ECF No; 27 at 8-9. Additionally, the' Seventh Circuit case cited by Defendants, Korzen v. Local Union 705, Int’l Bhd. of Teamsters, supports the conclusion that Mr. Wright’s claim does fall within the ambit of § 301.

In Korzen, two employees brought suit against a local union employer after the union terminated their employment, allegedly in retaliation for their support of the former Chief. Korzen v. Local Union 705, Int’l Bhd. Of Teamsters, 75 F.3d 285, 287 (7th Cir.1996). The union employees claimed a violation of the international union’s constitution under § 301 of the LMRA. Id. The Seventh Circuit considered whether the federal court had jurisdiction over the claim and concluded': “there is federal jurisdiction over the plaintiffs’ claims for breach of the international’s constitution, of which they as members of the union are third-party beneficiaries. ...” Id. at 288. However, after analyzing the terms of the constitution, the court held that it did not grant the plaintiffs any rights to employment that had been infringed by their termination, and thus the claim failed on its merits. Id. at 289. Therefore, under Korzen, it seems that a union employee may assert a claim as a beneficiary to a § 301 contract depending on the content of that contract.

Additionally, the Ninth Circuit has permitted a union employee to bring suit against a local union for violation of the union’s constitution under § 301, albeit in an unpublished decision. Canez v. Laborers’ Int’l Union of North America, 40 F.3d 1246 (9th Cir.1994).

Under Wooddell, Korzen, and Canez, Mr. Wright may be able to bring a § 301 claim as a union employee. Additionally, in this case, both the constitution and the Subsidized Organizer Policy reference Mr. Wright’s position as a Union Organizer. Thus, there may exist a genuine issue of material fact as to whether the relevant provisions created rights to employment that were infringed by Mr. Wright’s termination.

However, additional discovery is necessary regarding whether the International Constitution and the Subsidized Organizer Policy gave Mr. Wright employment rights. Defense counsel noted at oral argument that whether or not Mr. Wright, in his position as a Union Organizer, was an individual intended to be protected by the constitution and policy, is a question of fact requiring additional discovery and depositions. The Court agrees.

The discovery deadline was April 17, 2015, and trial is scheduled to begin on October 5, 2015. Requiring the parties to reopen discovery and continue the trial date would unfairly prejudice Defendants, especially in light of the lack of diligence by Mr. Wright in amending the complaint. Therefore, the Court will not permit Mr. Wright to amend the complaint.

Accordingly, IT IS HEREBY ORDERED:

1. Defendants’ Motion for Summary Judgment, ECF No. 15, is GRANTED.
2. Plaintiffs Motion to Amend Complaint, ECF No. 23, is DENIED.

The District Court Clerk is directed to enter this Order, enter Judgment accordingly, provide copies to counsel, and close this case. 
      
      . Co-Plaintiff Tracey Henderson was dismissed upon the parties' stipulation on Janu-aiy29, 2015. ECF No. 14.
     
      
      . The Business Manager / Financial Secretary - is the "top executive position" in SMART Local #55. Merk .Deck, ECF No. 18 at 2.
     
      
      . Mr. Wright chose not to filé a charge with the National Labor Relations Board, but his former co-plaintiff did. • Wright Dep., ECF No. 17,-Ex. A at 43; Ex. E. . '
     
      
      . The Court notes that Mr, Mahoney is not an ’ employee of SMART Local # 55. Whether he had the authority to bind SMART Local #55 is an issue not briefed by the parties. -
     
      
      . The Court notes that the Ninth Circuit in Canez permitted the plaintiff to bring a claim under § 301 based on the local union's constitution, rather than the international constitution. Canez, at *3. The Seventh Circuit in Korzen held that union employees could not bring a claim in federal court under § 301 for violations of a union’s local constitution because the local constitution did not constitute a contract between two labor organizations. Korzen, 75 F.3d at 288. However, the court noted that, since a claim alleging a violation of a local constitution was a state law claim, a federal court might exercise supplemental jurisdiction over it. Id. at 289.
     