Mellondie Benson v. JOHN E. POTTER, Postmaster General

* After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 20, 2006*
Decided December 21, 2006
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 06-2432
MELLONDIE BENSON,
Plaintiff-Appellant,
v.
JOHN E. POTTER, Postmaster
General, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 04 C 1607
Larry J. McKinney,
Chief Judge.
O R D E R
Mellondie Benson was fired by her employer, the United States Postal
Service, because she secretly recorded a conversation with her supervisors and,
after they found out, repeatedly refused instructions to turn over the tape.
Recording work-related conversations and disobeying supervisors’ instructions are
both specifically prohibited under the terms of the Postal Service’s employee
handbook, the Employee and Labor Relations Manual (“ELM”). Benson, a member
of the American Postal Workers Union and its Indianapolis-area affiliate
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

-- 1 of 3 --

No. 06-2432 Page 2
(collectively “the Union”), asked a shop steward to file a grievance on her behalf,
and the Union pursued her case all the way through arbitration. The arbitrator
found that the Postal Service had just cause for terminating Benson’s employment,
as required by the collective bargaining agreement (“CBA”) between the Union and
Postal Service.
After unsuccessfully bringing a charge against the Union with the National
Labor Relations Board, Benson filed this hybrid action against the Postal Service
and the Union. A hybrid suit consists of a claim that the employer breached the
collective bargaining agreement and a claim that the union breached its duty of fair
representation. DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164 (1983).
The claims are “inextricably interdependent”; neither is sustainable if the other
fails. Id. at 164-65; see Neal v. Newspaper Holdings, Inc., 349 F.3d 363, 368 (7th
Cir. 2003); McLeod v. Arrow Marine Transp., Inc., 258 F.3d 608, 613 (7th Cir. 2001).
A typical hybrid claim stems from § 301 of the Labor Management Relations Act, 29
U.S.C. § 185, but where the employer is the Postal Service, the suit is grounded in
39 U.S.C. § 1208(b). E.g., Gibson v. USPS, 380 F.3d 886, 888-89 & 888 n.1 (5th Cir.
2004). In either case, the same law applies. See id. Here, the district court
determined that Benson did not demonstrate that the Union acted arbitrarily,
discriminatorily, or in bad faith in its handling of her grievance. See Vaca v. Sipes,
386 U.S. 171, 190 (1967); Neal, 349 F.3d at 369. Accordingly, it concluded that the
entire action failed and granted summary judgment for the defendants.
On appeal Benson principally argues that, although the Union shepherded
her grievance all the way through arbitration, its advocacy was merely perfunctory.
See Vaca, 386 U.S. at 191; Neal, 349 F.3d at 363. In order to prevail she must
establish not just that the union’s representation was inadequate but also that it
adversely affected the outcome of arbitration. See Hines v. Anchor Motor Freight,
Inc., 424 U.S. 554, 568 (1976); Garrison v. Cassens Transp. Co., 334 F.3d 528, 539
(6th Cir. 2003); Garcia v. Zenith Elecs. Corp., 58 F.3d 1171, 1176-77 (7th Cir. 1995).
On this record, Benson is hard-pressed to demonstrate that the district court
erroneously concluded that the Union fulfilled its duty of fair representation. The
Union argued that the Postal Service lacked just cause for Benson’s termination
and reasserted this position throughout the grievance process. The arbitration
award supports the Union’s position that it advocated zealously on Benson’s behalf;
the arbitrator’s order devoted three pages to summarizing the Union’s arguments
for reinstating her. See Garcia, 58 F.3d at 1178-79. The attention given to
Benson’s grievance does not support the conclusion that the Union acted “without
concern or solicitude” or gave Benson’s grievance “only cursory attention.” Martin
v. American Airlines, Inc., 390 F.3d 601, 606-07 (8th Cir. 2004) (citation omitted).

-- 2 of 3 --

No. 06-2432 Page 3
Moreover, Benson did not establish that the Union’s allegedly deficient
performance caused the unfavorable outcome of the arbitration. As the district
court noted, the case against Benson was straightforward: she violated one rule by
recording a conversation with her supervisors and another by not complying with
instructions to turn over the tape. Benson admitted to the conduct underlying the
rule violations, and the arbitrator did not find her excuses credible because she gave
contradictory testimony. Thus, as the district court reasoned, the arbitrator’s
decision cannot be attributed to “a failure on the part of the Union in the
presentation of the case.”
Benson cites several examples of what she characterizes as arbitrary conduct
by the Union, but none supports her argument that the district court erroneously
concluded that the Union did not breach its duty. For example, Benson asserts that
the Union failed to investigate her grievance, but the record shows that Union
representatives gave Benson’s complaint immediate attention and conducted
thorough fact-finding during the early stages of the grievance process and in
preparation for the arbitration hearing. Benson also maintains that the Union
arbitrarily refused to give her a choice of arbitration representatives, but, as the
district court explained, no such right exists with respect to the arbitration of
grievances under the CBA. Rather, the Union’s internal rules allow a member
charged with an infraction against the Union to select his or her representative.
Finally, Benson contends that she should have been invited to the meeting between
her shop steward and the Postal Service designee at step two of the grievance
process, but nothing in the ELM or the CBA requires the grievant’s presence at that
stage. At best, Benson’s objections to the Union’s handling of her grievance amount
to disagreement with its strategy. But a union’s strategic choices are entitled to
deference unless they are irrational, discriminatory, or in bad faith, see Garcia, 53
F.3d at 1177, and its conduct must fall outside a “wide range of reasonableness” in
order to violate is duty of fair representation, see McLeod, 258 F.3d at 613 (citation
omitted).
We note that Benson also asserts that the Union “did not afford [her] the
same representation as it would its male members,” but she does not develop or
support this contention, and it therefore is waived. See Culver v. Gorman & Co.,
416 F.3d 540, 550 (7th Cir. 2005).
Having concluded that Benson did not establish arbitrary, discriminatory, or
bad-faith conduct on the part of the Union, we need not delve into whether the
Postal Service breached the CBA by firing her. The district court properly granted
summary judgment for the defendants.
AFFIRMED.

-- 3 of 3 --