[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 14, 2007
No. 07-11813
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-01601-CV-ORL-KRS
BARBARA J. BARRINGTON,
Plaintiff-Appellant,
versus
LOCKHEED MARTIN,
U.A.W. LOCAL 788, International Union
of Automobile, Aerospace-Agricultural
Implement Workers of America,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 14, 2007)
Before ANDERSON, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Barbara Barrington, proceeding pro se, appeals the district court’s grant of
summary judgment in favor of Lockheed Martin (“Lockheed”) and the
International Union of Automobile, Aerospace Workers of America Local Union
788 (“the Union”). After a thorough review of the record, we conclude that the
district court properly granted summary judgment because Barrington failed to
provide any evidence that the Union breached its duty of fair representation.
Accordingly, we affirm.
I. Background
Barrington was terminated from her employment with Lockheed after she
cut co-worker Rickey Wilson’s hair without permission. Although Wilson was
not upset, he filed a complaint with Lockheed, which he later sought to rescind.
Thereafter, Barrington and two female co-workers engaged in a confrontation in
the restroom, apparently because Barrington believed that these women had
bullied Wilson into filing the complaint in an effort to have her fired. Based on
this incident, Barrington filed defamation suits in state court against the two
co-workers, although she later voluntarily dismissed the cases. Lockheed then
terminated Barrington’s employment on the grounds that her conduct violated
workplace rules against violent behavior, inappropriate contact, and horseplay.
Barrington proceeded through the Union’s grievance process under the collective
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bargaining agreement (“CBA”), challenging her termination and defending her
interaction with Wilson. At the first arbitration hearing, Barrington did not testify
or present any witnesses on the advice of her Union representative, Michael
Barnette. Barnette had determined that Lockheed had not met its burden to show
cause for Barrington’s termination, and that presenting evidence or allowing
Barrington to testify would open the door to issues likely to place Barrington in a
bad light. Unhappy with Barnette’s advice, Barrington requested a continuance
and notified the Union and the arbitrator that she wished to testify. The arbitrator
re-opened the proceedings to permit Barrington to testify and present other
witnesses. During the proceedings, Barrington believed that Barnette was angry
with her and that the arbitrator had become biased against her, and requested that
both Barnette and the arbitrator be replaced. The Union declined to do so.
Although the arbitrator found that the hair-cutting incident did not provide just
cause for termination, the arbitrator ultimately upheld the termination given
Barrington’s other misconduct of filing frivolous lawsuits. The Union did not
appeal. Barrington then filed the instant motion to vacate an arbitration award,
pursuant to § 301 of the Labor Relations Management Act (“LMRA”), 29 U.S.C.
§ 185, and the Federal Arbitration Act (“FAA”), 9 U.S.C. § 10, on the grounds that
the arbitrator exceeded his powers and engaged in fraud, and that the Union
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breached its duty of fair representation.
The court granted summary judgment in favor of Lockheed and the Union,
finding that the Union had not breached its duty of fair representation, as its
actions were supported by rational explanations, were not discriminatory, and
there was no evidence the Union acted in bad faith, and that Barrington could not
establish a claim under § 301 of the LMRA if she could not show any breach.1
Barrington now appeals.
II. Analysis2
Barrington identifies the following instances in which the Union breached
1
The district court also concluded that Barrington’s failure to exhaust administrative
remedies should be excused. Although the Union challenges this finding, it did not file a cross-
appeal. Therefore, we lack jurisdiction to address this issue. Sizzler Family Steak Houses v.
Western Sizzlin Steak House, 793 F.2d 1529, 1541 (11th Cir. 1986); see also Fed. R. App. P.
4(a)(3).
2
Barrington seeks relief under both § 301 of the LMRA and the FAA. This circuit has not
determined whether the FAA applies to issues arising under CBA’s. And we need not reach this
issue in this case because, even if the FAA applied, Barrington has not shown that the arbitrator’s
award was “procured by corruption, fraud, or undue means,” that there was “evident partiality or
corruption in the arbitrators,” or that the “arbitrators exceeded their powers.” 9 U.S.C. § 10(a); B.L.
Harbert Int’l, LLC v. Hercules Steel Co., 441 F.3d 905, 909-10 & n.2 (11th Cir. 2006). Nor has she
established that the “the award was arbitrary and capricious.” B.L. Harbert Int’l, LLC, 441 F.3d at
910 (internal citations omitted). In her own testimony, Barrington admitted that she had no evidence
that the arbitrator committed fraud or was biased against her. She simply believed that this was the
case. Moreover, there is no evidence that the arbitrator exceeded his powers in reaching his decision.
Essentially, Barrington misunderstands the arbitrator’s role and what evidence he may properly
consider. The fact that Barrington did not include the incidents with other co-workers in her
grievances did not prevent the arbitrator from considering such conduct when it was presented as
evidence in Barrington’s own testimony at the hearing. Therefore, summary judgment was proper
on this claim.
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its duty of fair representation: (1) she was not permitted to testify or call her own
witnesses at the first arbitration hearing; (2) the Union representative engaged in
ex parte communications with the arbitrator; (3) the Union representative refused
to consider issues she wanted included in the appellate brief; (4) the Union refused
to replace the arbitrator upon her request; and (5) the Union refused to appeal the
arbitrator’s award. She further contends that the arbitrator was biased, engaged in
fraud, and exceeded his authority by considering evidence not properly before
him.
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the party opposing the motion. Skrtich
v. Thorton, 280 F.3d 1295, 1299 (11th Cir. 2002). Summary judgment is
appropriate if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c); Eberhardt v. Waters, 901 F.2d 1578, 1580
(11th Cir. 1990).
We have jurisdiction to review decisions of labor arbitrators under § 301 of
the LMRA, which permits individual employees to seek review of decisions
related to, inter alia, wrongful discharge. See Major League Baseball Players
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Ass’n v. Garvey, 532 U.S. 504, 509, 121 S.Ct. 1724, 1728 (2001); Darden v.
United States Steel Corp., 830 F.2d 1116, 1119 (11th Cir. 1987).
“[R]eview of a labor arbitration award is limited to a determination of
whether an award is irrational, whether it fails to draw its essence from the
collective bargaining agreement or whether it exceeds the scope of the arbitrator’s
authority.” Osram Sylvania, Inc. v. Teamsters Local Union 528, 87 F.3d 1261,
1263 (11th Cir. 1996) (quotation marks omitted). Nevertheless, “as long as the
arbitrator is even arguably construing or applying the contract and acting within
the scope of his authority, that a court is convinced he committed serious error
does not suffice to overturn his decision.” Id. (quoting United Paperworkers v.
Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 371 (1987)). “It is only when the
arbitrator strays from interpretation and application of the agreement and
effectively dispenses his own brand of industrial justice that his decision may be
unenforceable.” Garvey, 532 U.S. at 509 (internal quotation marks and alteration
omitted).
To succeed on a § 301 claim, Barrington must show that the Union breached
its duty of fair representation. This issue presents a question of law that we review
de novo. Bianchi v. Roadway Express, Inc., 441 F.3d 1278, 1282 (11th Cir.), cert.
denied, 127 S.Ct. 397 (2006).
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A labor union has a statutory duty of fair representation “to serve the
interests of all members without hostility or discrimination toward any, to exercise
its discretion with complete good faith and honesty, and to avoid arbitrary
conduct.” Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910 (1967). If the
union representing the employee “acts in such a discriminatory, dishonest,
arbitrary, or perfunctory fashion as to breach its duty of fair representation,” an
employee may sue both the employer and the union, regardless of the outcome or
finality of the grievance or arbitration proceeding. DelCostello v. Int’l
Brotherhood of Teamsters, 462 U.S. 151, 164, 103 S.Ct. 2281, 2290 (1983). Such
a suit consists of two causes of action: one against the employer under § 301 for
breach of the CBA, and the other against the union for breach of the union’s duty
of fair representation. Id. Thus, to prevail, a plaintiff must demonstrate both that
the CBA was breached and that the union breached its duty of fair representation.
DelCostello, 462 U.S. at 165; Hines v. Anchor Motor Freight, Inc., 424 U.S. 554,
570, 96 S.Ct. 1048, 1059 (1976)
A union breaches its duty of fair representation only if its actions toward a
member are “arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S. 190. “[A]
union’s actions are arbitrary only if, in light of the factual and legal landscape at
the time of the union’s actions, the union’s behavior is so far outside a ‘wide range
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of reasonableness’ as to be irrational.” Air Line Pilots Ass’n, Int’l v. O’Neill, 499
U.S. 65, 67, 111 S.Ct. 1127, 1130 (1991) (internal citation omitted). Nevertheless,
“[a] union’s broad discretion in prosecuting grievance complaints includes not
only the right to settle the dispute short of arbitration but also to refuse to initiate
the first steps in the appeal procedure when it believes the grievance to be without
merit.” See Turner v. Air Transport Dispatchers’ Ass’n, 468 F.2d 297, 300 (5th
Cir. 1972).3
Here, the district court properly granted summary judgment because there
was no evidence that the Union breached its duty by acting arbitrarily or in bad
faith.4 According to the records, Barnette’s decisions were supported by
reasonable strategy. Barnette explained that he did not want Barrington to testify
because Lockheed had not met its burden to establish cause for Barrington’s
termination, and Barrington’s testimony would only open the door to other issues.
Barrington was able to testify and present her witnesses at the re-opening of the
proceedings. And as the arbitrator explained, his decision to uphold the
termination was not based on the hair-cutting incident, but rather resulted from
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this court
held that all decisions handed down by the old Fifth Circuit before the close of business on
September 30, 1981, are binding precedent in the Eleventh Circuit.
4
Barrington does not argue, and there is no evidence to support a claim that the Union acted
in a discriminatory fashion.
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Barrington’s own testimony that she engaged in other misconduct that would
justify termination.
Moreover, a review of the record established that Barnette incorporated
Barrington’s issues into his appellate brief. Furthermore, according to the
evidence, the Union’s own policy was not to appeal arbitration awards. There was
nothing arbitrary or discriminatory about its refusal to do so in Barrington’s case.
Because Barrington cannot establish a breach by the Union, she cannot
succeed on her § 301 claim, and we need not consider whether Lockheed breached
the CBA, or whether the arbitration award should have been vacated.
Accordingly, we AFFIRM.
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