                           UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53



                   United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                           (Submitted August 23, 2006*)
                             Decided August 25, 2006


                                      Before

                   Hon. WILLIAM J. BAUER, Circuit Judge

                   Hon. RICHARD A. POSNER, Circuit Judge

                   Hon. DIANE P. WOOD, Circuit Judge

No. 06-1970

LENFORD HOLLOWELL,                           Appeal from the United States
         Plaintiff-Appellant,                  District Court for the
                                               Southern District of Indiana
              v.
                                             No. 3:05-CV-0023-RLY-WGH
BAKERY, CONFECTIONERY,
TOBACCO WORKERS AND GRAIN                    Richard L. Young, Judge.
MILLERS LOCAL UNION 280 and
LEWIS-VINCENNES, INC.
         Defendants-Appellees.


                                    ORDER

      Lenford Hollowell requested permission to work in place of an absent co-worker
at Lewis Bakeries (“Lewis”). Lewis denied the request because Hollowell would have


      *
        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).
No. 06-1970                                                                      Page 2


to be paid overtime if he picked up another shift, and the company’s policy is not to pay
employees at the overtime rate when “straight-time” employees are available.
Hollowell filed a grievance charging Lewis with violating the company’s collective
bargaining agreement (“CBA”) with the union, and the company denied the grievance.
The union opted not pursue the matter any further, stating in a letter to Hollowell
about a month after Lewis denied his grievance that its Executive Board “could not
find sufficient evidence to support arbitration with the company” and voted not to
proceed with the grievance.

           Hollowell then sued both Lewis and the union under § 301 of the Labor
Management Relations Act, 29 U.S.C. § 185, claiming that Lewis breached the CBA
and that the union breached its duty of fair representation. These “inextricably
interdependent” claims comprise what is known as a hybrid suit. See DelCostello v.
Int’l Bhd. of Teamsters, 462 U.S. 151, 164-65 (1983); McLeod v. Arrow Marine
Transport, Inc., 258 F.3d 608, 613 (7th Cir. 2001). Neither claim in the hybrid action
is sustainable if the other fails. See Neal v. Newspaper Holdings, Inc., 349 F.3d 363,
368 (7th Cir. 2003). Lewis and the union both filed motions to dismiss, which the
district court converted into motions for summary judgment. See Fed. R. Civ. P. 12(b).
Lewis submitted an affidavit from Danny Seyer, the plant manager at the facility
where Hollowell worked, in which he attests that “it has generally been the policy of
Lewis not to utilize an employee at overtime rate when there is a straight time
employee available.” Lewis also attached a copy of the CBA, which includes a
“management rights” clause vesting the employer with the sole right to “schedule
work” and to “assign work and working hours to employees.” The district court
concluded that Hollowell failed to raise a genuine issue of material fact as to whether
Lewis had violated any provision of the CBA and that, given the absence of an
actionable violation, the union did not breach its duty of fair representation by
declining to pursue a grievance on Hollowell’s behalf. The court granted summary
judgment for the defendants, and Hollowell appeals.

       On appeal Hollowell presses his claims that Lewis violated the CBA by not
letting him fill in for a coworker and that his union steward unreasonably refused to
sign his grievance form. But he does not refute the evidence that under the CBA,
Lewis maintains the sole authority to make decisions regarding its employees’ work
schedules and that it has a policy of not paying workers at the overtime rate when
“straight time” employees are available. In particular, Hollowell never points to any
provision of the CBA that Lewis may have violated by refusing his request to work
overtime. Instead he insists that “it is common law practice for Lewis employees . . .
to work in place of one another,” but he provides no admissible evidence to substantiate
this assertion, nor does he dispute the specific evidence that such substitutions are not
generally permitted if overtime is involved. And in any event, his lawsuit charges
Lewis with breaching the CBA, not deviating from its common practice.
No. 06-1970                                                                    Page 3


       Absent any actionable breach of the CBA committed by Lewis, Hollowell’s claim
against the union necessarily fails as well. Even independently, Hollowell adduced no
evidence that the union’s conduct in declining to pursue a grievance on his behalf was
arbitrary, discriminatory, or in bad faith, see Neal, 349 F.3d at 369 (citing Vaca v.
Sipes, 386 U.S. 171 (1967)), rather than legitimate.

                                                                         AFFIRMED.
