RODNEY NEAL and ANTHONY BRANDON v. Newspaper Holdings , Inc .

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-2126 & 02-2127
R ODNEY N EAL and A NTHONY B RANDON ,
Plaintiffs-Appellants,
v.
N EWSPAPER H OLDINGS , I NC .,
Defendant-Appellee.
____________
Appeals from the United States District Court
for the Central District of Illinois.
Nos. 00 C 2176 & 00 C 2177—Michael P. McCuskey, Judge.
____________
A RGUED J ANUARY 7, 2003—D ECIDED N OVEMBER 5, 2003
____________
Before C OFFEY , R OVNER , and E VANS , Circuit Judges.
R OVNER , Circuit Judge. After losing their jobs with
Newspaper Holdings, Inc. (“NHI”), Rodney Neal and
Anthony Brandon each filed a so-called “hybrid” section
301/fair representation action against NHI and their union
pursuant to section 301 of the Labor-Management Relations
Act, 29 U.S.C. § 185, and sections 8(b) and 9(a) of the
National Labor Relations Act, 29 U.S.C. §§ 158(b), 159(a).
See generally DelCostello v. International Brotherhood of
Teamsters, 462 U.S. 151, 163-65, 103 S. Ct. 2281, 2290-91
(1983); Breininger v. Sheet Metal Workers Int’l Ass’n Local
Union No. 6, 493 U.S. 67, 86-87, 110 S. Ct. 424, 436 (1989).
They contended that the company had discharged them

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2 Nos. 02-2126 & 02-2127
in breach of the collective bargaining agreement between
NHI and the union and that the union in turn had breached
its fiduciary duty to them as union members by failing to
pursue timely grievances on their behalf. The union was
dismissed by stipulation from both suits after Neal and
Brandon settled with it, leaving the company as the sole
defendant. The district court consolidated the two suits for
decision and subsequently entered summary judgment in
favor of NHI, reasoning that the plaintiffs had not shown
that the union had breached its duty of fair representation,
as they must in order to succeed on claim under section 301.
See, e.g., Filippo v. Northern Indiana Public Serv. Corp.,
141 F.3d 744, 748 (7th Cir. 1998). We affirm.
I.
NHI operates a newsprint business in Danville, Illinois
under the name Commercial-News. Neal and Brandon
worked for NHI from July 1998 (when NHI acquired Com-
mercial-News) until January 2001, when each was fired.
Both men were members of the Graphics Communications
International Union, Local No. 657C (“GCIU”), which
served as their bargaining representative.
Neal was fired after he failed to report for work on two
days in January 2001. NHI employees were required to
report anticipated absences before their shifts began; but it
was common practice for employees simply to call in and
leave a message on their supervisor’s voicemail. When ill-
ness caused Neal to miss his scheduled shifts on January 14
and 15, 2001, he left messages on each of those days prior
to the beginning of his shift on the voicemail of Mike Latoz,
his supervisor and foreman. Nonetheless, when he reported
for work on January 18, Latoz informed him that NHI was
terminating him for having missed his shifts on the 14th
and 15th and for having failed to report his absence in

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Nos. 02-2126 & 02-2127 3
advance as the company required.
Neal contacted George Wilson, his shop steward (referred
to within the union as the chapel chairman) and asked
Wilson what the union was going to do about his discharge.
Wilson told Neal that he needed some proof that Neal had
telephoned in to report his absences and suggested that
Neal obtain his calling records from the telephone company.
In the meantime, Wilson took it upon himself to check
Latoz’s office voicemail, where he found evidence that Neal
had, in fact, left messages to advise NHI that he would not
be reporting for work on the 14th and 15th. Wilson made a
tape recording of those messages and gave the tape to Neal.
Wilson also discussed Neal’s discharge with Latoz and Scott
Porter, NHI’s Production Director, on January 24. Wilson
confronted Latoz with Neal’s messages but Latoz, according
to Wilson, denied knowing about them or how they got onto
his voicemail. After meeting briefly in private with Porter,
Latoz informed Wilson that the company would not rehire
Neal. Two weeks after Neal was fired, Wilson advised him
that the discharge decision was final; he also informed Neal
that the time for filing a grievance had already expired.
At the time that Neal and Brandon were discharged, the
collective bargaining agreement between GCIU and NHI
contained the following provision regarding employee
grievances:
A grievance hereunder shall be defined as any dispute
arising during the term of this agreement involving
interpretation or application of a specific provision of
this Agreement. The employee or employees involved
must discuss any such grievance with their chapel
chairman and with the foreman . . . within five (5) reg-
ular working shifts following the day upon which the
event giving rise to the grievance occurred. If either
party desires to process further such grievance referred
to above, then it must be referred to the Joint Standing

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4 Nos. 02-2126 & 02-2127
Committee [made up of two representatives appointed
by the employer and two appointed by the union] within
[ten] (10) regular working shifts following the day upon
which the event giving rise to the grievance occurred.
Collective Bargaining Agreement, § XIV(1). Neal and
Brandon both had been involved in the negotiations that
culminated in the agreement containing this provision.
Wilson testified that it was GCIU’s practice to require a
union member to submit a written grievance request form
when he wished the union to formally pursue a grievance
on his behalf; Wilson would then transmit the grievance to
NHI. According to Wilson, this requirement had been in
place for years and was common knowledge among employ-
ees of the pressroom, where both Neal and Brandon worked.
Neal testified in his deposition that he had asked Wilson to
file a grievance on his behalf, but it is undisputed that Neal
never tendered a written grievance form to Wilson or any
other union official. Wilson had filed grievances on Neal’s
behalf in the past, but on those occasions Neal had com-
pleted written grievance forms. Neal Deposition Exs. 2, 4,
5. Not having received such a form on this occasion, Wilson
did not pursue a grievance challenging Neal’s termination.
NHI terminated Brandon after he refused a last-minute
demand that he work overtime for the company. Brandon
was but fifteen minutes away from the end of his shift
on the evening of January 19, 2000, when Charles Lindsay,
the assistant supervisor of the pressroom, informed
Brandon that he could not leave as scheduled at 10:00 p.m.
because the company had overtime work for him to do.
Brandon, whose next shift was scheduled to begin at 6:00
a.m. on the following day (January 20), refused the demand
and left work at 10 o’clock. Brandon was of the view that
because the collective bargaining agreement was silent as
to whether or not overtime work was mandatory, he was not
obligated to comply with Lindsay’s demand. But when
Brandon reported for work the following morning, Latoz,

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Nos. 02-2126 & 02-2127 5
his supervisor, informed him that the company had termi-
nated him for insubordination.
NHI previously had warned Brandon that the failure to
complete an assigned work shift could result in his termina-
tion. On April 5, 1999, Brandon received a written warning
from Latoz after he had refused to stay at work for a
scheduled shift two days earlier. Latoz’s memorandum
concluded with the following admonition:
Whenever you are assigned a work shift, you are ex-
pected to be here and work that shift. Your behavior . . .
is insubordination by refusing to stay and work and
refusing to follow a direct order by your supervisor. Any
repeated incident of the above will result in discipline
up to and including termination.
Brandon Deposition Ex. 5.
On January 21, Brandon spoke with Wilson about his
termination. According to Brandon, Wilson agreed that his
discharge was “wrongly done” (Brandon Deposition at 18)
although by Brandon’s own account the two did not discuss
the facts underlying his discharge at that time (id.).
Brandon asked Wilson to do “[a]ll that he could possibly do”
to secure his reinstatement. Id.
Following Wilson’s conversation with Brandon, Latoz
spoke with Wilson and told him why Brandon had been
fired; Lindsay and other pressroom employees also re-
counted what had happened. Wilson asked these individu-
als no questions; he simply listened to their accounts. Be-
lieving that employees were obligated to work overtime if
asked to do so by a supervisor, Wilson concluded that there
was “no evidence of Mr. Brandon not being guilty of his
termination.” Wilson Deposition at 29.
On February 21, 2000, just over four weeks after NHI
fired him, Brandon asked Wilson for a grievance form so
that he could protest his discharge. As in Neal’s case,

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6 Nos. 02-2126 & 02-2127
Wilson testified that GCIU normally files a grievance only
after a union member presents a written grievance form to
the chapel chairman. Wilson said that it was not his obli-
gation to prepare a grievance for a union member; instead,
he simply filed the grievance with the company after the
employee filled out the form. Like Neal, Brandon had com-
pleted grievance request forms on prior occasions. Brandon
Deposition Exs. 2-4. As it turned out, the form that Wilson
gave to Brandon was not the correct form. Having previ-
ously served as a union representative (Brandon not only
had participated in negotiations over the collective bargain-
ing agreement in effect at the time of his discharge, but had
served as assistant chapel chairman prior to 1998),
Brandon had the appropriate form in his locker at NHI. He
was able to retrieve the correct form and after his attorney
completed the form, Brandon tendered it to Wilson on
February 28. Wilson told Brandon that he would pass the
form on to NHI, and he (eventually) did so, although he
considered the grievance untimely; NHI received the form
on March 7, 2000.
On March 8, 2000, the day after it received Brandon’s
grievance, NHI determined that it was time-barred and so
advised Wilson by letter. On or about March 21, Wilson
gave Brandon a copy of that letter.
Based on the foregoing facts, the district court granted
summary judgment in favor of NHI. The court concluded
that the plaintiffs could not show that GGIU had breached
the duty of fair representation that it owed to them as
union members, and without a valid fair-representation
claim against the union, the plaintiffs could not recover
from NHI for breach of the collective bargaining agreement.
The court noted that there was no evidence of bad faith or
discrimination on the union’s part. Nor was there evidence
suggesting that the union had treated either plaintiff in an
arbitrary fashion: although Neal and Brandon both asserted
that GCIU had failed to file timely grievances on their

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Nos. 02-2126 & 02-2127 7
behalf, the court observed that neither plaintiff had timely
completed a written grievance request form and tendered it
to their steward in accordance with union practice. At most
the facts suggested that the union had handled the plain-
tiffs’ discharges in a negligent fashion, and negligence, the
court reasoned, did not suffice to establish a breach of the
union’s duty of fair representation. Neal & Brandon v.
Newspaper Holdings, Inc., Nos. 00-2176 & 00-2177, Order
(C.D. Illinois Mar. 12, 2002).
Neal and Brandon asked the court to reconsider its sum-
mary judgment decision pursuant to Fed. R. Civ. P. 59(e).
The court denied the motion, observing that the plaintiffs
had failed to identify any basis for reconsideration. Neal &
Brandon v. Newspaper Holdings, Inc., Nos. 00-2176 &
00-2177, Order (C.D. Illinois April 1, 2002).
II.
Our review of the district court’s decision to enter sum-
mary judgment in favor of the union is de novo. Summary
judgment is appropriate (indeed, required) so long as the
facts material to the resolution of the case are not in dis-
pute and the movant (here, NHI) is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(c); e.g., Roxford v.
Ameritech Corp., 335 F.3d 661, 663 (7th Cir. 2003). In
deciding whether that is true in this case, we must view the
record in the light most favorable to the nonmovants (Neal
and Brandon) and grant them the benefit of all reasonable
inferences that may be drawn from the facts. Id.; see also
Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).
Our review of the district court’s decision to deny the ap-
pellants’ Rule 59(e) motion to alter or amend the judgment
is deferential. Only if the district court abused its discretion
in denying the request will we disturb its decision. E.g.,
Dersch Energies, Inc. v. Shell Oil Co., 314 F.3d 846, 855

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8 Nos. 02-2126 & 02-2127
(7th Cir. 2002).
We may make short work of the plaintiffs’ contention that
the district court abused its discretion in denying their Rule
59(e) motions. The purpose of such a motion is to bring the
court’s attention to newly discovered evidence or to a
manifest error or law or fact. E.g., Bordelon v. Chicago
School Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir.
2000). But the motions that Neal and Brandon filed identi-
fied no such basis for altering or amending the court’s
summary judgment ruling; the plaintiffs simply took the
opportunity to reargue the merits of their cases. The court
thus committed no abuse of discretion in denying the
motions to reconsider. We therefore turn to the heart of the
appeal—whether, on the facts before us, NHI was entitled
to summary judgment.
As we noted at the outset, the appellants have filed hy-
brid section 301/fair representation suits claiming that NHI
breached the collective bargaining agreement and that
GCIU breached the duty of fair representation it owes to its
members. See Reed v. United Transp. Union, 488 U.S. 319,
328, 109 S. Ct. 621, 627 (1989); McLeod v. Arrow Marine
Transp., Inc., 258 F.3d 608, 612-13 (7th Cir. 2001). In order
for a plaintiff to prevail in such an action, he must have a
meritorious claim against both the union and the employer;
the claims are interlocking in the sense that neither is
viable if the other fails. Crider v. Spectrulite Consortium,
Inc., 130 F.3d 1238, 1241 (7th Cir. 1997). Thus it is that
NHI sought and obtained summary judgment on ground
that GCIU did not breach the duty of fair representation
that it owed to Neal and Brandon as union mem-
bers—without a valid claim for breach of the duty of fair
representation, the plaintiffs cannot proceed against NHI.
Id. at 1241, 1243; McKelvin v. E.J. Brach Corp., 124 F.3d
864, 869 (7th Cir. 1997). We must therefore decide whether
the facts, viewed favorably to Neal and Brandon, would
support a finding that GCIU did breach the duty of fair

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Nos. 02-2126 & 02-2127 9
representation. See id. at 868. We conclude that they would
not.
A union breaches the duty of fair representation only if its
actions are arbitrary, discriminatory, or in bad faith. Vaca
v. Sipes, 386 U.S. 171, 190, 87 S. Ct. 903, 916 (1967). Each
of these possibilities must be considered separately in
determining whether or not a breach has been established.
See Ooley v. Schwitzer Div., Household Mfg. Inc., 961 F.2d
1293, 1302 (7th Cir. 1992), discussing Air Line Pilots Ass’n,
Int’l v. O’Neill, 499 U.S. 65, 111 S. Ct. 1127 (1991); see also,
e.g., Filippo v. Northern Indiana Public Serv. Corp., supra,
141 F.3d at 748-49; Crider, 130 F.3d at 1243.
We may quickly dispose of the latter two possibilities.
Whether or not a union’s actions are discriminatory or
in bad faith calls for a subjective inquiry and requires proof
that the union acted (or failed to act) due to an improper
motive. E.g., Crider, 130 F.3d at 1243; Trnka v. Local Union
No. 688, UAW, 30 F.3d 60, 63 (7th Cir. 1994); Ooley, 961
F.2d at 1304; see also Mock v. T.G.&Y. Stores Co., 971 F.2d
522, 531 (10th Cir. 1992). Although Neal and Brandon
suggest in passing that GCIU may have failed to pursue
grievances on their behalf for an improper reason, the
record lends no support to that possibility, as the district
court itself pointed out. Thus, only if GCIU’s actions were
arbitrary might Neal and Brandon have a valid claim
against the union.
Whether a union’s actions are arbitrary calls for an
objective inquiry. McLeod, 258 F.3d at 613. “A union’s
actions are arbitrary only if the union’s behavior is so far
outside a wide range of reasonableness as to be irrational.”
Filippo, 141 F.3d at 749 (internal quotation marks, cita-
tions, and ellipsis omitted); see also Marquez v. Screen
Actors Guild, Inc., 525 U.S. 33, 46, 119 S. Ct. 292, 300
(1998); McLeod, 258 F.3d at 613. This is an “extremely
deferential standard” that precludes the courts from “sub-
stitut[ing] their judgment for that of the union, even if, with

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10 Nos. 02-2126 & 02-2127
the benefit of hindsight, it appears that the union could
have made a better call.” Ooley, 961 F.2d at 1302. Moreover,
“mere negligence, even in the enforcement of a collective-
bargaining agreement, would not state a claim for breach of
the duty of fair representation.” United Steelworkers of
America v. Rawson, 495 U.S. 362, 372-73, 110 S. Ct. 1904,
1911 (1990).
Insofar as grievances are concerned, “a union may not
arbitrarily ignore a meritorious grievance or process it in a
perfunctory fashion.” Vaca, 386 U.S. at 191, 87 S. Ct. at
917. “The union must provide ‘some minimal investigation
of employee grievances.’ ” Garcia v. Zenith Elecs. Corp., 58
F.3d 1171, 1176 (7th Cir. 1995), quoting Castelli v. Douglas
Aircraft Co., 752 F.2d 1480, 1483 (9th Cir. 1985). “[B]ut the
thoroughness of this investigation depends on the particular
case, and ‘only an egregious disregard for the union mem-
bers’ rights constitutes a breach of the union’s duty.’ ”
Garcia, 58 F.3d at 1176, quoting Castelli; see also Vaca, 386
U.S. at 194-95, 87 S. Ct. at 919; McLeod, 258 F.3d 613;
Filippo, 141 F.3d at 749. The union is not obliged to take all
member grievances to arbitration. Vaca, 386 U.S. at 191, 87
S. Ct. at 917; Reed v. International Union of UAW, 945 F.2d
198, 202-03 (7th Cir. 1991). Rather, it has discretion to act
in consideration of such factors as the wise allocation of its
own resources, its relationship with other employees, and
its relationship with the employer. Rupe v. Spector Freight
Sys., Inc., 679 F.2d 685, 691 (7th Cir. 1982); see also Reed,
945 F.2d at 203.
Although Neal and Brandon chastise GCIU for failing to
pursue grievances on their behalf, it is undisputed that
neither of them timely initiated that process by tendering
a written grievance form to the union. As set forth above,
the collective bargaining agreement between NHI and
GCIU required an employee to bring his grievance to the
attention of his chapel chairman and foreman no more than
five regular working shifts after the date of the event giving

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Nos. 02-2126 & 02-2127 11
rise to the grievance. Grievances selected for further action
were to be forwarded to the Joint Standing Committee
within ten regular working shifts of that same date. The
undisputed facts indicate that it was GCIU’s practice for an
aggrieved union member to submit a written grievance form
to the chapel chairman, who would in turn forward that
form to NHI; this was common knowledge among those
who, like Neal and Brandon, worked in the pressroom. In
this case, Neal never completed such a form. Brandon did
so, but well outside of the time period during which the
grievance was to be submitted to the Joint Standing
Committee as called for in the collective bargaining agree-
ment. See Filippo, 141 F.3d at 749 (“The Union cannot be
faulted for requiring that its own procedures be followed.”);
compare Vencl v. International Union of Operating Engi-
neers, Local 18, 137 F.3d 420, 426 (6th Cir. 1998) (absent
justification or excuse, union’s own failure to timely take
basic steps in pursuit of grievance may constitute arbitrari-
ness).
True, Neal testified in his deposition that he asked
Wilson to file a grievance, and Brandon testified that he
asked Wilson to do whatever he could do and to follow all
procedures to secure his reinstatement. Although in each
case, Wilson looked into the circumstances underlying dis-
charge decision, he did not (so far as the record reveals)
remind Neal or Brandon that they were required to submit
written grievance request forms nor did he take other steps
to ensure that such forms were completed and submitted so
that their grievances could be forwarded to the company
and/or Joint Standing Committee within the time specified
by the collective bargaining agreement. On the facts before
us, one certainly might argue that this was negligent
conduct for a union steward. But nothing in the record
suggests that the omission was more than negligent, and
simple negligence is not enough to establish a breach of
fiduciary duty in this context. Rawson, 495 U.S. at 372-73,

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12 Nos. 02-2126 & 02-2127
110 S. Ct. at 1911; but see Vencl, 137 F.3d at 426 (union’s
own failure to file timely written request for arbitration,
after union member filed grievance and employer denied it,
constituted arbitrariness).
It is also worth pointing out that both Neal and Brandon
were on notice of the need to tender a written grievance re-
quest form to the union. Neal was familiar with that form:
Wilson previously had submitted grievances on Neal’s
behalf that bore his signature. Neal Deposition Exs. 2, 4, 5.
For his part, Brandon had served as the assistant chapel
chairman and he, like Neal, had been involved in negotia-
tions over the collective bargaining agreement. He not only
knew that there was a form used for grievances in the
pressroom (Brandon Deposition at 19), but he had the
proper form in his own locker (id. at 20). And like Neal,
Brandon had submitted grievance request forms before.
Brandon Deposition Exs. 2-4. Given both men’s familiarity
with the grievance process, Wilson’s failure to make sure
that they completed and submitted written grievance forms
in a timely fashion is less disturbing than it otherwise
might be; the failure to file a timely grievance cannot, in
this case, fairly be ascribed to the union. Cf. Vencl, 137 F.3d
at 426 (union failed to file timely arbitration request
because its business agent was on vacation).
Moreover, Wilson’s actions belie the notion that he han-
dled the plaintiffs’ complaints in a perfunctory fashion or
with egregious disregard for their interests. Wilson spoke
with Neal about his discharge, advised him to gather evi-
dence in order to establish that it was improper, took steps
of his own to verify that Neal had, in fact, left messages
with his supervisor on the dates of his absences, and spoke
with Neal’s supervisor and production director about the
discharge decision. But company officials were unwilling to
reconsider, and at that point the only means left to chal-
lenge the discharge was the timely pursuit of a grievance,
which Neal did not request in writing. In Brandon’s case,

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Nos. 02-2126 & 02-2127 13
Wilson spoke with Latoz, Lindsay, as well as other employ-
ees who had witnessed the events underlying Brandon’s
discharge. After doing so, Wilson concluded that the deci-
sion to discharge Brandon was valid. Nonetheless, when
Brandon later submitted a written grievance request form,
Wilson signed the form and passed it along to NHI.
Under these circumstances, the district court properly
concluded that NHI was entitled to summary judgment. As
it stands, the record would not permit a reasonable fact-
finder to conclude that GCIU breached the duty of fair rep-
resentation it owed to both Neal and Brandon as union
members. Without a valid claim against the union, the
plaintiffs cannot obtain relief from NHI. Crider, 130 F.3d at
1241; McKelvin, 124 F.3d at 869.
III.
We A FFIRM the district court’s judgment. NHI’s request
for an award of sanctions pursuant to Federal Rule of
Appellate Procedure 38 is D ENIED ; the appeal, although
unsuccessful, was not frivolous in view of such cases as
Vencl, 137 F.3d at 426.

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14 Nos. 02-2126 & 02-2127
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-5-03

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