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Tse v. United Food and Commerical Workers Union

United States District Court, W.D. Washington, Seattle

February 19, 2014

WING KAI TSE, Plaintiff,


RICHARD A. JONES, District Judge.


This matter comes before the court on a motion to dismiss by defendant United Food and Commercial Workers Union, Local 367 (the "Union"). Dkt. # 4. Pro se plaintiff Wing Kai Tse appears to allege the following causes of action: (1) Violation of the National Labor Relations Act ("NLRA"), § 8(b)(3) & (4), 29 U.S.C. § 158(b)(3) & (4); (2) Violation of the Washington Law Against Discrimination ("WLAD"), RCW 49.60 et seq.; and (3) racial discrimination or conspiracy to violate civil rights under 42 U.S.C. §§ 1981, 1983, 1985. Dkt. # 1.

As a preliminary matter, Mr. Tse cannot bring claims on behalf of someone else in his pro se capacity. See Johns v. Cnty of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) ( pro se party "has no authority to appear as an attorney for others than himself."). Accordingly, the court GRANTS defendant's motion with respect to any claims brought on behalf of Mr. Wu.

Having considered the pleadings, briefing, exhibits, and the record herein, the court GRANTS defendant's motion to dismiss.


Plaintiff, an individual of Chinese national origin, worked for a grocery store owned by Haggen Inc. from November 2002 until October 2008. Dkt. # 1 (Compl.) ¶¶ 4-5. As an employee of Haggen, plaintiff was a member of the Union. Id. ¶ 7. The Collective Bargaining Agreement ("CBA") required that the employer provide laundering of the required uniforms for the employees. Id. ¶ 24. However, when plaintiff began work in November 2002, he was required to sign an agreement in which he agreed to launder his uniform. Id. ¶ 31. Plaintiff alleges that every employee was required to sign a similar agreement, but that Haggen laundered the uniform of other workers in the meat and bakery department and the head cook of the Orient Express department where he worked, but continued to refuse to launder the uniforms of the Chinese cooks. Id. ¶¶ 34-35. Plaintiff also alleges that beginning in June 2006, Haggen mandated the Chinese cooks at his store to do arduous and excessive amounts of heavy lifting, moving, transporting, and stocking of weighty items, and that in June 2008, the arduous tasks became his responsibility. Id. ¶¶ 36-37.

Around May or June 2008, plaintiff initiated an EEOC complaint against Haggen regarding the uniform and arduous task issue. Id. ¶ 38. From August 2008 to approximately November 2008, the Union appears to have taken action with respect to plaintiff's complaints. Id. ¶¶ 43-49. Plaintiff alleges that the Union's period of inaction began in November 2008 and continued through its filing of an unfair labor practice charge against Haggen in February 2009. Id. ¶¶ 56, 58. Plaintiff alleges that a letter from the Union around January or February 2009 "clearly indicated that the union's noncommittal position favored the employer by default in all issues immediately after [his] separation from employment."[1] Id. ¶ 56 (emphasis omitted).

With respect to the unfair practices labor charge filed by the Union in February 2009, plaintiff alleges that the Union notified him of the revised charge form in April 2009, and that he received no other information about it. Id. ¶ 59. In August 2009, plaintiff received a letter from the Union that it was closing his file. Id. ¶ 62. In March 2010, plaintiff sent a letter to the Union inquiring about the status of the unfair practices labor charge, but he did not receive a response. Id. ¶ 64. In May 2010, plaintiff sent a letter to Region 19 of the National Labor Relations Board ("NLRB"), inquiring about the status of the charge. Id. ¶ 65. On May 6, 2010, Region 19 responded to plaintiff that Haggen had reached a private agreement with the Union in April or May 2009, so the Union withdrew the charge. Id. ¶ 66. Plaintiff alleges that May 6, 2010, is the date he discovered that the union withdrew the labor charge. Id.


When considering a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), "the court is to take all well-pleaded factual allegations as true and to draw all reasonable inferences therefrom in favor of the plaintiff." Wyler Summit P'ship v. Turner Broadcasting Sys., Inc., 135 F.3d 658, 663 (9th Cir. 1998). However, the complaint must indicate more than mere speculation of a right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[F]or a complaint to survive a motion to dismiss, the non-conclusory factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009).

Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). This court holds the pleadings of pro se complainants to less stringent standards than those of licensed attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972). Nevertheless, every complainant must demonstrate some claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).

The court generally may not consider material beyond the pleadings in ruling on a motion to dismiss. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). However, where documents are referenced extensively in the complaint, form the basis of plaintiffs' claim, or are subject to judicial notice, the court may consider those documents in the ...

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