                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 95-20067
                       _____________________

               ROSALINDA GUERRA; ARTHUR R. MARTINEZ,

                                               Plaintiffs-Appellants,

                                   and

                          DAVID R. NEWMAN,

                                                             Plaintiff,

                                  versus

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO; CWA LOCAL UNION 6132;

       CWA DISTRICT 6; SOUTHWESTERN BELL TELEPHONE COMPANY

                                                Defendants-Appellees,

                                   and

                       CWA LOCAL UNION 6222,

                                                       Defendant.
        ________________________________________________

          Appeal from the United States District Court
               for the Southern District of Texas
                         (CA-H-93-0557)
        ________________________________________________

                           June 14, 1996

Before BARKSDALE, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:*

     Rosalinda Guerra and Arthur R. Martinez, who were employees of

Southwestern   Bell   Telephone    Company   (SWBT)   and   members   of

Communications Workers of America, AFL-CIO (the union), challenge

*
     Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
post-verdict judgments as a matter of law, which were based on

rulings     that   Guerra   was    required,       but   failed,    to   exhaust

administrative remedies, and that Martinez's claims were time-

barred.   We AFFIRM.

                                      I.

     Guerra's employment with SWBT was terminated in mid-1990;

Martinez's in early 1991. In February 1993, they filed this action

with another against, inter alia, the union, their local, and SWBT.

Although their separate claims were tried together, different facts

underlie them.

     Guerra claimed that the union and her local, among others,

breached the duty of fair representation by their intentionally

delayed and ineffectual handling of her grievance.                After the jury

found that the union had breached that duty, the district court

granted it judgment as a matter of law, because Guerra had not

exhausted    administrative       remedies   and    there   was    insufficient

evidence of breach of the duty of fair representation.

     Martinez claimed that SWBT terminated his employment without

just cause under § 301 of the Labor Management Relations Act, 29

U.S.C. § 185, and that the union and his local, among others,

breached the duty of fair representation.                After the jury found

against SWBT and the local, the district court granted judgment

against Martinez's claims, concluding that, under the applicable

six-month limitations period, they were time-barred.

                                      II.




                                       2
     Needless to say, judgments as a matter of law are reviewed de

novo.

           In reviewing the district court's decision to grant
           a judgment as a matter of law, we use the same
           standard of review that guided the district court.
           We consider all the evidence with all reasonable
           inferences in the light most favorable to the party
           opposed to the motion.      If the facts and the
           inferences point so strongly and overwhelmingly in
           favor of [the movant] that reasonable jurors could
           not arrive at a contrary verdict, then the motion
           was properly granted.     If there is substantial
           evidence -- that is, evidence of such quality and
           weight that reasonable and fair-minded jurors might
           reach a different conclusion -- then the motion
           should have been denied.

Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 950-51

(5th Cir. 1994) (citations omitted), cert. denied, 115 S. Ct. 1110

(1995).

                                         A.

     Guerra    was    informed     on    August   14,    1990,    that    SWBT   was

considering    terminating       her    employment      because   of     poor    work

performance.     Later that day, she was fired for misconduct for

removing documents claimed proprietary.

     On the day that SWBT terminated her, Guerra filed a statement

of occurrence with her local.           Within three days, it contested her

discharge by filing a grievance.              And, it set a meeting with SWBT

for early October for the first step of the grievance procedure.

     At that meeting, the local's president argued for Guerra's

reinstatement;       afterwards,       Guerra    thanked   her    for    her     good

presentation.        SWBT denied the grievance at the close of the

meeting.



                                          3
     Rather   than    proceed    through    the   second   and   third   step

meetings, Guerra elected mediation, which entails bypassing the

second step, appealing to the third step, and, if the grievance is

denied, arranging mediation.        (If mediation is unsuccessful, the

employee then has 60 days to elect arbitration, as does an employee

whose   grievance    is    denied   after   the   second   and   third   step

meetings.)    Accordingly, the local promptly wrote a letter to

Currie Hallford, union representative, requesting him to proceed to

the third step of the grievance procedure and utilize mediation.

     Upon Hallford's demand, SWBT agreed to mediate, but later

informed him that it was unable to do so because Guerra had

initiated an action at law. (Another district court dismissed this

separate action, which pressed a Title VII claim against SWBT and

a § 301 claim against it and the local, for lack of jurisdiction

and failure to exhaust administrative remedies.            Guerra appealed;

but, as part of a later settlement with SWBT, discussed infra, she

dismissed the appeal.)

     Accordingly,     by   an   early   January    1991,   letter   to   SWBT,

Hallford withdrew the mediation request.            He then set the third

step meeting in Austin (Guerra's home) at the earliest possible

date, considering the schedules of Guerra, the local officers,

various company officers, and himself.            But, Guerra relocated to

Houston; upon her request, Hallford in early-January cancelled the

Austin meeting and scheduled it for the end of April in Houston.

     At that April meeting, SWBT again denied the grievance.

Guerra claims that Hallford spent inadequate time preparing her


                                        4
case for the meeting, resulting in the denial. Hallford testified,

however, that he had a lengthy telephone conversation with Guerra

before she left Austin, reviewed the grievance file before going to

Houston, met with Guerra for 30 or 45 minutes prior to the

grievance meeting, listed six or eight questions Guerra wanted

asked and asked them at the meeting, argued that SWBT did not have

just cause to discharge Guerra, and gave her the opportunity to

speak at the end of the meeting, at which time she said she had

nothing to     add.     Hallford    testified    that   he   presented     every

consideration and tried earnestly to get Guerra reinstated.

      Hallford advised Guerra by an early May letter that, based on

his review, he could not recommend to the union that her discharge

be submitted to arbitration, because he felt that an arbitrator

would sustain her discharge, but that she had the right to appeal

his decision. Guerra did so; Hallford was overruled; and the union

requested arbitration in late July.

      Arbitration      was   conducted     by   the   American     Arbitration

Association.    An arbitrator was selected in October 1991, with the

arbitration date being subject to his schedule.          The first dates he

offered were in June 1992, and the union agreed to those, as well

as to others. The AAA scheduled the arbitration for that November.

      Guerra claims that the arbitration was postponed further

because the union's attorney, Glenda Pittman, was not prepared.

Although Guerra disclosed to the union that, as noted supra, she

was   originally      told   she   would   be   discharged   for    poor   work

performance, ultimately, the reason she was discharged, as she told


                                       5
the union, was misconduct.        Therefore, as Guerra testified, it was

reasonable for Pittman to construct the grievance case on discharge

for    misconduct.      When    Pittman    began   reviewing   the   file   for

arbitration, however, it appeared that SWBT then claimed to have

discharged Guerra not only for misconduct, but also for poor work

performance.       Accordingly, Pittman sought a pre-hearing ruling

limiting the grounds to misconduct.           But, after a conference call

with counsel, the arbitrator declined to limit the grounds and

postponed    the   November     hearing    until   mid-December,     to   allow

preparation for the work performance issue.

       Next, the December arbitration was postponed at the request of

SWBT's attorney because of pregnancy complications.             Upon pressure

from    Pittman,     however,   SWBT   obtained     another    attorney;    the

arbitration was scheduled for late January 1993.

       While the union was processing her arbitration, Guerra filed

a second separate action against SWBT.             It settled that action;

pursuant to the settlement agreement, Guerra dismissed all pending

actions and, by a January 11, 1993, letter to the union, ordered

the arbitration cancelled, only 11 days before it was scheduled.

And a few weeks later, this action was filed.

       Guerra asserts that, if the union breached its duty of fair

representation, she is relieved under Vaca v. Sipes, 386 U.S. 171,

186 (1967), of the obligation to exhaust administrative remedies.

She bases breach on two intertwined grounds.             First, she claims

that the union was perfunctory in processing her grievance, that

its representative failed to properly investigate and interview


                                       6
pertinent witnesses, and that its attorney was unprepared.                 But, a

breach of the duty of fair representation occurs only when the

union's conduct is "arbitrary, discriminatory, or in bad faith, so

that it undermined the fairness or integrity of the grievance

process".    Landry v. The Cooper/T. Smith Stevedoring Co., 880 F.2d

846, 852 (5th Cir. 1989).            "A union does not breach its duty of

fair   representation,       however,    through    simple    negligence      or   a

mistake in judgment."        Id.      Nor does it breach that duty if its

"conduct in processing an employee's grievance was `less than

enthusiastic' and `not perfect'".           Id.

       Therefore, as a matter of law, Guerra has not shown that the

fairness or integrity of the grievance process was undermined.

Moreover, her conclusionary assertion of futility is insufficient;

she has not met her burden of producing "evidence that resort to

available grievance procedures would in fact be futile". Parham v.

Carrier Corp., 9 F.3d 383, 391 (5th Cir. 1993).                To the contrary,

she elected arbitration, but then cancelled it, thus depriving "the

union the opportunity to act on [her] behalf."                    Republic Steel

Corp. v. Maddox, 379 U.S. 650, 653 (1965).                 In sum, a reasonable

juror could not have found that the union breached its duty of fair

representation.

       For her second line of attack, Guerra claims that the delay of

over   two   years,   from     her   discharge     until    she   cancelled    the

arbitration, constituted a breach of that duty.                   For starters,

Guerra caused part of the delay.         In January 1991, the union had to

withdraw     its   mediation    request     because    she     had   prematurely


                                        7
initiated an action at law against SWBT and the local; and, in mid-

January, she caused the meeting scheduled for Austin to be delayed

until April 1991, because she had it changed to Houston.

      In   addition,      neither      the       delay        due    to     the    arbitrator's

schedule nor that caused by the pregnancy complications of SWBT's

attorney can be attributed to the union.                        And, finally, it cannot

be faulted for the delay caused by belatedly having to defend

against    discharge      for    poor       work       performance           in    addition     to

misconduct.       In short, the union was not dilatory and did not

breach its     duty    of    fair     representation                because       of   delays   in

Guerra's grievance procedure.

      The fact of the matter is this: on the brink of the much

delayed and hard fought for arbitration, Guerra cancelled it.                                   In

essence,    she    then     elected        her       remedy    --     her    contemporaneous

settlement with SWBT.            There was no breach by the union; the

district court properly granted judgment as a matter of law.

                                             B.

      Martinez's employment was terminated in February 1991 for

insubordination       equating        to    misconduct          for       failure      to   follow

instructions.      Dismissal was based also on his repeated violations

of   company      policies      and    practices          during          his     17   years    of

employment.

      Martinez filed a grievance with his local.                                  After it was

denied at the first and second step meetings, the third step

meeting was scheduled for mid-June 1991; but, when Martinez failed

to appear, it had to be rescheduled for the end of August.                                    SWBT


                                                 8
again denied the grievance at that meeting; and, pursuant to the

collective bargaining agreement, Martinez had 60 days to demand

arbitration.

     By   letter   dated    October   11,   1991,   union   representative

Hallford advised Martinez that he could not recommended arbitration

because of the difficulty in overcoming Martinez's disciplinary

record, but that Martinez could contact his local to appeal this

decision.   It was not until early that December that Martinez

requested an appeal of Hallford's decision.         The local, by letter

of December 4, requested that Hallford recommend arbitration.

     By letter dated January 6, 1992, to the local, with a copy to

Martinez, Hallford replied that the time for arbitration had

expired and that he did not know what further action could be taken

by the union. Hallford then sent another letter to Martinez, dated

April 3, 1992, stating that the union could not take further action

on the grievance.   Martinez testified that he did not realize that

he had a claim until his discussion with a union steward in

September, 1992, and asserts that only then did he become aware

that the union did not intend to pursue the claim further.

     The limitations period for filing an unfair labor practice

claim is six months.       DelCostello v. Int'l Bhd. of Teamsters, 462

U.S. 151, 169 (1983) (borrowing six-month period from § 10(b) of

National Labor Relations Act, 29 U.S.C. § 160(b)).            Pursuant to

Barrett v. Ebasco Constructors, Inc., 868 F.2d 170, 171 (5th Cir.

1989), the period begins to run when the plaintiff "knew or should




                                      9
have known" of any breach by the union of the duty of fair

representation.

     At the very latest, Martinez should have known that the union

did not intend to pursue his claim when he received Hallford's

April 3, 1992 letter, which stated that "[t]here is no further

action that [the union] can take in regards to your grievance....

Any further action that can be taken would have to be of a legal

nature and you would have to initiate those."   But, this action was

not filed until more than ten months later, in February 1993.   His

claims are time-barred.

                               III.

     For the foregoing reasons, the judgment is

                                                   AFFIRMED.




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