                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 07a0314n.06
                                Filed: May 7, 2007

                                            No. 06-3948

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

 CHARLES BURNESON,                                    )
                                                      )
         Plaintiff-Appellant,                         )
                                                      )
 v.                                                   )   ON APPEAL FROM THE UNITED
                                                      )   STATES DISTRICT COURT FOR THE
 THISTLEDOWN, INC. and                                )   NORTHERN DISTRICT OF OHIO
 INTERNATIONAL BROTHERHOOD OF                         )
 TEAMSTERS, LOCAL 436,                                )
                                                      )
         Defendants-Appellees.                        )
                                                      )



 Before: DAUGHTREY and GIBBONS, Circuit Judges; and SCHWARZER, District Judge.*

       JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellant Charles Burneson filed this

hybrid § 301 action against his former employer Thistledown, Inc. (“Thistledown”) and the

International Brotherhood of Teamsters, Local 436 (the “Union”). The district court granted

defendants’ motions for summary judgment, finding that Burneson’s failure to avail himself of the

contractual remedies provided for in the Collective Bargaining Agreement (“CBA”) that governed his

employment relationship with Thistledown precluded his pursuit of a hybrid § 301 action in federal

court. We agree with the district court and affirm.



         *
         The Honorable William W Schwarzer, United States District Judge for the Northern District
 of California, sitting by designation.

                                                 1
                                                  I.

       Burneson’s suit arises from the termination of his employment with Thistledown in July of

2004. On July 9, 2004, Burneson was suspended from work pending an investigation into an alleged

altercation that occurred between him and another Thistledown employee. In a July 16, 2004,

telephone conversation, a Thistledown official informed Burneson that its investigation was complete

and also of its decision to terminate Burneson. Thistledown also sent a letter to Burneson dated July

16, 2004, confirming the information conveyed over the phone and informing him that notice of his

termination was sent to John Banno, Business Agent for the Union. After leaving a number of

messages for Banno, Burneson spoke with Banno on July 26, 2004. During their conversation,

Burneson claims that he was told by Banno that there was little that could be done because Burneson

failed to take the appropriate procedural steps to challenge his suspension and termination. According

to Burneson, in making this statement, Banno was operating under the erroneous understanding that

the time for Burneson to file a grievance with respect to his suspension and termination had expired.

       At no time did Burneson file a grievance in accordance with the procedures set forth in Article

8 of the CBA, a fact he does not dispute. Instead, Burneson filed the instant hybrid § 301 action

alleging violations of the Labor Management Relations Act. In his suit, he alleged both that

Thistledown violated the terms of the CBA in its suspension and termination of his employment and

that the Union breached its duty of fair representation in handling his dispute with Thistledown.

Following motions by the defendants, the district court granted summary judgment to both, noting that

Burneson’s failure to exhaust his contractual remedies proved fatal to his hybrid § 301 claim.

Burneson subsequently appealed.

                                                 II.



                                                  2
          This court reviews the grant of summary judgment de novo. DiCarlo v. Potter, 358 F.3d 408,

414 (6th Cir. 2004). Summary judgment will be affirmed if “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). If, on the other hand, “a reasonable jury could return a verdict for the

non-moving party,” summary judgment for the moving party is inappropriate. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing the district court’s decision, this court draws all

justifiable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).

          As the district court properly noted, a hybrid § 301 plaintiff is barred from bringing suit in

federal court unless that plaintiff has first sought relief through grievance procedures provided for

under the CBA governing his or her employment. See Garrish v. Int’l Union, United Auto., Aerospace

& Agric. Implement Workers of Am., 417 F.3d 590, 594 (6th Cir. 2005). The Supreme Court has

identified at least three exceptions to the exhaustion requirement: (1) where the employee can

demonstrate that the employer has repudiated the very contractual provisions governing the grievance

procedure; (2) where the union, in processing the employee’s grievance has breached its duty of fair

representation, see Vaca v. Sipes, 386 U.S. 171, 185-86 (1967); and (3) where proceeding through the

grievance process would be “futile,” see Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324, 330

(1969).

                                                   III.

          Burneson first argues that exhaustion of the CBA grievance process was not required because

the procedure only operates upon Thistledown’s proper termination of an employee under section 8.01



                                                    3
of the CBA. Burneson alleges that he was not given the required hearing prior to his suspension and

termination as contemplated by that section. Thistledown’s alleged breach of the CBA, argues

Burneson, excuses his failure to invoke the grievance process. Burneson’s argument lacks merit.1

Section 8.03 of the CBA provides, “[a] grievance shall be any complaint, controversy, dispute or other

grievance . . . arising between the Employer and . . . any employee or employees concerning the

questions of interpretation or application of the terms, conditions, and provisions of the Agreement.

. . .” Notwithstanding Burneson’s argument to the contrary, there is no language of exclusion in

section 8.01. That section simply provides that should a hearing fail to resolve a dispute, the grievance

procedure will govern its resolution. Burneson’s purported construction effectively reads section 8.03

out of the CBA and interprets section 8.01 in a manner that is simply not plausible.

       Though Burneson concedes that he never filed a grievance of any kind, he asserts that he is

excused from the exhaustion requirement because the Union breached its duty of fair representation

in its handling of his dispute with Thistledown. Burneson points to a number of acts and omissions

on the part of the Union and its officials that he asserts would justify our finding that the Union

breached its duty of fair representation: (1) the Union did not provide him with a copy of the CBA

prior to his requesting it, nor did any official explain to him his rights and obligations under the CBA;

(2) Banno erroneously told him that there “wasn’t a whole lot that [he] could do” and that Burneson

“didn’t go through the proper steps”; (3) the Union failed to provide him with information regarding




         1
          Independent of its merits, Burneson’s failure to raise this argument before the district court
 creates a formidable hurdle. See, e.g., Perez v. Oakland County, 466 F.3d 416, 430 (6th Cir. 2006)
 (“We do not consider an argument raised for the first time on appeal unless the party shows that
 refusal to consider the argument would result in a miscarriage of justice.”).

                                                   4
the processing of a grievance in a timely fashion and failed to assist him with the filing of said

grievance; and (4) the Union did not investigate his discharge by Thistledown.2

       To prove a breach of the duty of fair representation, Burneson “must demonstrate that the

union’s actions or omissions during the grievance process were arbitrary, discriminatory, or in bad

faith.” Garrison v. Cassens Transp. Co., 334 F.3d 528, 538 (6th Cir. 2003) (citing Vaca, 386 U.S. at

190). Burneson suggests that the Union acted in bad faith and in a discriminatory manner, but he

provides no support for these assertions. As the district court noted, Burneson’s ignorance of the

grievance procedures is no excuse for his failure to comply with the requirements. Cf. Rogers v. Bd.

of Educ. of Buena Vista Schs., 2 F.3d 163, 167 (6th Cir. 1993) (noting that in the context of mandatory

internal union appeals by employees seeking to reinstate a grievance, “[s]imple ignorance is no excuse

for failure to exhaust”). He has never claimed that the Union prevented him from filing a grievance

or that he was denied the opportunity to do so.3 Burneson simply never filed a grievance, and he now

wishes to excuse his failure to file his grievance by relying upon conclusory, unsupported allegations

that the Union breached its duty of fair representation. The blame for Burneson’s failure to exercise

his rights under the CBA rests squarely on his shoulders, and his claim that he need not have exhausted




         2
         Burneson does not claim that Thistledown repudiated the grievance provisions contained
 in the CBA, nor does he argue that resort to these grievance procedures would have been “futile.”
 Thus, the only exception to the exhaustion requirement that Burneson argues is applicable in this
 case involves his claim that the Union breached its duty of fair representation.
         3
          While Burneson does argue that Banno erroneously told him that there was little that could
 be done to assist him because he had not timely filed his grievance, Burneson does not allege that
 Banno or the Union purposefully misled him. Even assuming that Banno was incorrect when he
 expressed his opinion that the time for Burneson to grieve his dispute with Thistledown had passed,
 a mere mistake on the part of Banno hardly suffices to establish Burneson’s claim that the Union
 acted in bad faith or in a discriminatory manner. Moreover, “ordinary mistakes, errors, or flaws in
 judgment” do not establish that a union has acted in a arbitrary manner. Garrison, 334 F.3d at 538.

                                                  5
his contractual remedies prior to seeking relief in federal court is not well-taken. Accordingly, the

district court properly granted summary judgment in favor of the defendants.

                                                IV.

       For the foregoing reasons, we affirm.




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