                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                       IN THE UNITED STATES COURT OF APPEALS
                                                                                          July 5, 2006
                                FOR THE FIFTH CIRCUIT
                               _________________________
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk
                                          No. 05-30824
                                        Summary Calendar
                                   _________________________

STEVEN M. SUTER,

                                                                                  Plaintiff-Appellant,

versus

LOUISIANA PHILHARMONIC ORCHESTRA; AFM LOCAL 174-496;
AMERICAN FEDERATION OF MUSICIANS UNITED STATES AND CANADA,

                                                                              Defendants-Appellees.
                         ________________________________________

                           Appeal from the United States District Court
                               for the Eastern District of Louisiana
                                        (No. 2:05-CV-600)
                         ________________________________________

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

         In an employee’s suit against his employer and union, the district court granted dispositive

motions and dismissed the case. For the reasons that follow, we affirm.

                                I. FACTS AND PROCEEDINGS

         Steven Suter, a professional musician, was employed by and a member of the Louisiana

Philharmonic Orchestra (“LPO”). The LPO was organized in 1992 as a nonprofit membership



         *
        Pursuant to 5th CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.


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corporation that is comprised of musicians as members.1 Suter began working for LPO at its

inception and was discharged in March 2004. At all relevant times, Suter was a member in good

standing of Local 174-496 (the “Local”) of the American Federation of Musicians (the “AFM”). In

the years following its inception, the LPO has entered into a series of collective bargaining

agreements (“CBA”) with the Local. And while the CBAs address certain aspects of the employment

relationship between the musicians and the LPO, musicians also enter into personal services contracts

with the LPO. The personal services contracts are based on the LPO Operating Rules.

        The CBA at issue for the purposes of this appeal was executed in September 2003. The CBA

provides that the Local is “the sole collective bargaining agent for AFM members who may be

employed with respect to wages, hours, benefits, and terms and conditions of employment.”

Moreover, the CBA expressly incorporates the bylaws of the Local and the AFM into the CBA.2 The

CBA does not incorporate the LPO Operating Rules.

        After he was fired, Suter challenged the LPO’s decision to discharge him by filing a grievance

with the Local against the LPO and some of the LPO’s members.3 Initially, the Local began hearing

Suter’s grievance in an arbitration. After the Local initially determined that it had jurisdiction to hear

Suter’s grievance, the AFM’s International Executive Board determined that the Local did not have

jurisdiction. Thereafter, the AFM ordered the Local to cease hearing Suter’s grievances.


        1
      Before the LPO was created, the musicians were employed by the New Orleans Philharmonic
Symphony Society and represented by the same union as present.
        2
         The CBA provides: “Neither the employer nor its agents shall enforce any rule or regulation
at variance with the laws of the Local and/or the Federation and said laws are hereby made part of
this agreement.”
        3
         Suter also initiated suit in state court bringing claims related to his discharge, which is
currently pending.

                                                  -2-
       After the Local refused to hear his grievance, Suter filed a three-count complaint in federal

court. The first count is a state-law claim against the LPO for wrongful discharge. The second count

is a claim against the LPO for a breach of the CBA. The third count is a claim against the Local and

the AFM for a breach of the duty of fair representation. According to Suter, the CBA incorporated

grievance and arbitration provisions from the bylaws of the Local and the AFM. Because the LPO

resisted arbitration, Suter maintains that the LPO failed to adhere to its obligations under the CBA.

The AFM’s order to the Local to cease the arbitration, Suter contends, constituted a violation of its

duty of fair representation. LPO moved the district court for summary judgment; the Local and the

AFM moved to dismiss.

       The district court determined that the viability of Suter’s claims depended upon the existence

of grievance and arbitration provisions in the CBA. Finding that the CBA contained no such

provisions, the district court granted the motion for summary judgment in favor of the LPO on the

second count. The Local and the AFM argued to the district court that they did not have a duty of

fair representation because they were not Suter’s exclusive bargaining agent for the purposes of issues

related to his termination. The district court agreed and, noting that Suter’s third claim also depended

on a finding that the LPO breached the CBA, granted the motion to dismiss the third count against

the Local and the AFM. Having dispensed with the two federal claims, the district court declined to

exercise supplemental jurisdiction over the state-law claim. With all parties raising essentially the

same arguments presented to the district court, Suter now appeals.

                                  II. STANDARD OF REVIEW

       This court reviews a district court’s grant of summary judgment de novo. Cooper Tire &

Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir. 2005) (citing Ford Motor Co. v. Tex. Dep’t of


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Transp., 264 F.3d 493, 498 (5th Cir. 2001)); Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir.

2004) (citing Boston Old Colony Ins. Co. v. Tiner Assocs., Inc., 288 F.3d 222, 227 (5th Cir. 2002)).

In our review of a summary judgment, we apply the same standard as the district court. Cooper Tire,

423 F.3d at 454. Summary judgment is appropriate if there are no genuine issues of material fact and

the movant is entitled to a judgment as a matter of law. Id. (quoting FED. R. CIV. P. 56(c)).

       A court considering a motion for summary judgment must view evidence and inferences in

the light most favorable to the nonmovant. Bryan, 375 F.3d at 360. See also Moreno v. Summit

Mortgage Corp., 364 F.3d 574, 576 (5th Cir. 2004). The movant has the initial burden to

demonstrate “an absence of evidence to support the nonmoving party’s case.” Celestine v. Petroleos

de Venezuella SA, 266 F.3d 343, 349 (5th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317,

325 (1986)). If the movant meets this burden, “a nonmovant must bring forward sufficient evidence

to demonstrate that a genuine issue of material fact exists for every element of a claim.” Id. (citing

Fontenot v. Upjohn Co., 780 F.2d 1190, 1196 (5th Cir. 1986)). Summary judgment is appropriate

if the nonmovant “fail[ed] to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex

Corp., 477 U.S. at 322. See also Instone Travel Tech Marine & Offshore v. Int’l Shipping Partners,

Inc., 334 F.3d 423, 427 (5th Cir. 2003).

       This court conducts a de novo review of a district court’s order granting a motion to dismiss

under FED. R. CIV. P. 12(b)(6). Chiras v. Miller, 432 F.3d 606, 610 (5th Cir. 2005) (citing S.

Christian Leadership Conference v. Supreme Ct. of La., 252 F.3d 781, 786 (5th Cir. 2001)). In this

review, the court treats all facts pleaded as true and construes the pleadings in the manner most

favorable to the non-moving party. Id. at 611. The court will affirm the district court’s order if there


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are no specific facts on which the non-movant may prevail. Id. The non-movant “must plead specific

facts, rather than conclusory allegations” to avoid dismissal. Id. (citing Guidry v. Bank of LaPlace,

954 F.2d 278, 281 (5th Cir. 1992)).

                                           III. DISCUSSION

A.      The hybrid § 301/fair representation claim

        As the district court noted, Suter has brought a hybrid § 301/fair representation claim against

the LPO and the Local and the AFM. In such an action the plaintiff must allege and prove two

intertwined claims: The suit against the employer rests on § 301 of the Labor Management Relations

Act, 1947, codified as 29 U.S.C. § 185, and the suit against the union is one for breach of the union’s

duty of fair representation, which is implied under the scheme of the National Labor Relations Act.

See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164 (1983); Gibson v. U.S. Postal Serv.,

380 F.3d 886, 888 (5th Cir. 2004). A hybrid § 301/fair representation “action may be brought against

either the employer, the union, or both; regardless, both elements must be proven” for the action to

succeed. Gibson, 380 F.3d at 889 (citing Thomas v. LTV Corp., 39 F.3d 611, 621 (5th Cir. 1994)).

See also DelCostello, 462 U.S. at 164–65 (noting that the two claims are “inextricably

interdependent”) (internal quotations omitted). A failing in either of these claims is fatal to the entire

hybrid § 301/fair representation action.

        We first consider Suter’s contention that the LPO breached the CBA. The district court

determined that the CBA did not provide for a grievance and arbitration procedure for Suter’s

discharge. On appeal, Suter asserts that grievance procedures did form part of the CBA. According

to Suter, binding procedures can be drawn from two sources: (1) the bylaws of the Local and the

AFM and (2) the LPO Operating Rules. For different reasons, neither of these sources supply the


                                                  -5-
CBA with grievance and arbitration procedures for Suter’s discharge. Therefore, Suter’s CBA-

breach claim fails.

(1)     The Local and the AFM bylaws

        Suter’s complaint, as it relates to the alleged breach of the CBA, contains allegations that the

CBA incorporates the bylaws of the Local and the AFM. The plain language of the CBA supports

this contention and the defendants do not dispute it. But that does not end the inquiry. As the

incorporated rules are union bylaws, the union’s “interpretation of its own governing documents

should be accorded deference ‘unless it is patently unreasonable.’” O’Neill v. Airline Pilots Ass’n,

Int’l, 939 F.2d 1199, 1206 (5th Cir. 1991) (quoting Newell v. Int’l Bhd. of Elec. Workers, 789 F.2d

1186, 1189 (5th Cir. 1986)). The AFM concluded that the Local did not have jurisdiction to hear

Suter’s grievance under any provision of the AFM’s bylaws.

        Article 5, section 37(a) of the AFM bylaws provides: “In representing members of symphonic

orchestras . . . for the purposes of collective bargaining with their employers, Locals shall provide,

at no additional expense to the members involved, . . . continuing contract administration, including

the handling of grievances and arbitration. . . .” Interpreting its bylaws, the AFM determined that no

provision in the union bylaws supplied authority for the Local to adjudicate Suter’s grievance. The

Local and the AFM read the bylaw provision as merely directing local AFM affiliates to provide

grievance arbitration services without charging additional fees in the event that a particular CBA

contemplates a grievance arbitration procedure. Because the current CBA lacks a specific grievance

arbitration provision, the Local and the AFM contend that the union bylaws do not impose the

missing procedure.

        Suter argues, but not beyond mere assertion, that the AFM’s interpretation is unreasonable.


                                                 -6-
Suter suggests that the union bylaws provide mandatory arbitration of disputes related to the

administration of LPO contracts.4 But the existence of a plausible alternative does not render the

union’s interpretation unreasonable. Suter’s construction is troubling for several reasons. First, the

Local would be required to conduct an arbitration for a violation of a personal services contract, not

the CBA. Second, the AFM can amend its own bylaws. Under Suter’s theory, the AFM could, by

unilateral action, alter the CBA, which forms the relationship between the union and the LPO,

without the LPO’s consent. Third, the presence of grievance provisions in earlier CBA versions

suggests that the later removal of those provisions was intended to have some effect. Any one of

these reasons supports the AFM’s interpretation of their bylaws as not imposing an obligation on the

Local to hear personal-services contract-related grievances against the LPO.

(2)    LPO Operating Rules

       On appeal, Suter places his emphasis on the LPO Operating Rules. These rules, as Suter

points out, provide for the hearing of wrongful discharge claims by the Local: “Any claim of

wrongful discharge of a tenured musician shall be processed by the Local under its bylaws.” It may

be correct that the discharge of musicians is addressed in the LPO Operating Rules, which make up

the individual personal services contracts between the musicians and the LPO. But the LPO

Operating Rules are not incorporated into the CBA. Because the LPO Operating Rules do not form

part of the CBA, the LPO’s failure, if any, to adhere to these rules is not relevant for the purposes




       4
         Suter also references the Local’s bylaws which (1) establish the composition of an arbitration
panel, in the event that one is convened, and (2) set out procedures for the prosecution of disciplinary
charges by union member against other union members for violations of union bylaws. Neither of
these provisions confer authority on the Local to hear a grievance for a discharge by the LPO.

                                                 -7-
of Suter’s claim that the LPO breached the CBA.5

          Neither the union bylaws nor the LPO Operating Rules provide the CBA with mandatory

grievance arbitration provisions. Therefore, Suter’s contention that the LPO breached the CBA by

refusing to participate in arbitration fails. As noted, Suter’s hybrid § 301/fair representation claim

depends on the viability of both the allegation that the employer breached the collective bargaining

agreement and the allegation that the union breached its duty of fair representation. See DelCostello,

462 U.S. at 165; Gibson, 380 F.3d at 888–89. Accordingly, Suter’s claim against the Local and the

AFM must also fail.6

B.        Supplemental jurisdiction

          After dismissing Suter’s federal claims, the district court declined to exercise supplemental

jurisdiction. 28 U.S.C. § 1367(c)(3) provides that a district court “may decline to exercise

supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which

it has original jurisdiction.” Such decisions are reviewed for abuse of discretion. Priester v. Lowndes

County, 354 F.3d 414, 425 (5th Cir. 2004) (citing Sibley v. Lemaire, 184 F.3d 481, 490 (5th Cir.

1999)).

          Here the district court properly dismissed all federal claims against the defendants. The

district court also noted that all parties to the suit are Louisiana citizens, that the non-federal claim

was brought under Louisiana law, and that Suter previously had initiated suit over the same dispute



          5
        The LPO contends that the LPO Operating Rules on which Suter relies are obsolete remnants
of previous versions of the rules. Aside from holding that the rules are not incorporated into the
CBA, we take no position on the validity of these rules.
          6
         Because of our resolution of the CBA breach allegation, we do not address the district
court’s conclusion that the Local and the AFM did not have a duty of fair representation.

                                                   -8-
in Louisiana courts. For these reasons, we hold that the district court did not abuse its discretion in

declining to exercise supplemental jurisdiction over the remaining state-law claim.

                                        IV. CONCLUSION

       Finding no error, we AFFIRM.




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