                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-1649



DARLENE M. THOMAS,

                                              Plaintiff - Appellant,

           versus


SIEMENS    VDO     AUTOMOTIVE    CORPORATION;
INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, Lodge No. 2461 of District
Lodge 74, AFL-CIO,

                                            Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Robert E. Payne, District
Judge. (CA-03-680-3)


Argued:   May 26, 2005                     Decided:   August 9, 2005


Before WILLIAMS and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: David Raymond Simonsen, Jr., Richmond, Virginia, for
Appellant.    Dana Lewis Rust, MCGUIREWOODS, L.L.P., Richmond,
Virginia; James J. Vergara, Jr., VERGARA & ASSOCIATES, Hopewell,
Virginia, for Appellees. ON BRIEF: Michele L. Settle, Jennifer M.
Campbell, MCGUIREWOODS, L.L.P., Richmond, Virginia, for Appellee
Siemens VDO Automotive Corporation.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                             - 2 -
PER CURIAM:

     Darlene Thomas (Thomas) filed this hybrid action under § 301

of the Labor-Management Relations Act of 1947, 29 U.S.C. § 185,

against Siemens VDO Automotive Corp (Siemens) and the International

Association of Machinists and Aerospace Workers, Lodge No. 2461 of

District Lodge 74, AFL-CIO (the Union). Thomas claims that Siemens

discharged her from employment without just cause in violation of

the applicable collective bargaining agreement.    She also claims

that the Union breached its duty to her of fair representation by

not challenging her discharge through arbitration.      After full

discovery, the district court granted summary judgment in favor of

Siemens and the Union.   Thomas timely appealed.   We affirm.



                                I.

     A.   Background.

     Siemens manufactures fuel injectors and fuel assemblies for

automotive manufacturers and suppliers at its plant in Newport

News, Virginia.   The Union has represented the hourly production

and maintenance workers at Siemens’ Newport News plant since 1971.

     At all times relevant to this case, Siemens and the Union were

parties to a collective bargaining agreement (the CBA), with the

Union maintaining an office on-site at Siemens’ Newport News plant.

Under the “Management Rights” clause of the CBA, Siemens has the

right to discharge Union employees “for proper and just cause.”


                               - 3 -
(J.A. 65).       If Siemens suspends or discharges an employee, the

Union, pursuant to the CBA, may file a grievance on the employee’s

behalf.

       The CBA sets forth a three-step grievance procedure that,

after    the     third   step,   may    culminate     in   final   and    binding

arbitration.       The CBA, however, does not require arbitration in

every case; rather, the Union has exclusive control over which

employee grievances will be prosecuted through arbitration.                     An

individual     employee    has   no    right   or   ability   to    arbitrate   a

grievance without the approval and support of the Union.

       On April 15, 2003, Siemens discharged Thomas for violating its

strict policy against violence in the workplace on March 28, 2003.

Such    policy    provides   that      “[v]iolence,    threats     of   violence,

. . . intimidation, aggressive or other disruptive behavior will

not be tolerated within SVAC.”             (J.A. 123).      It states further

that:

       Reports of all violent or threatening behavior will be
       taken seriously and dealt with appropriately. . . . If
       an investigation concludes that an employee has committed
       violent or threatening behavior, SVAC will take prompt,
       appropriate actions, including disciplinary action that
       could include termination.

Id.     Thomas admits that she was required to comply with Siemens’

strict policy against violence in the workplace.




                                       - 4 -
     B.    Details of Events Leading To Thomas’ Discharge.

     On   Friday,     March   28,    2003,   Thomas   arrived   for   work    at

approximately 6:45 a.m.           After clocking-in, Thomas learned that

several of her Union co-workers, including Nancy Vance, Linwood

Sykes, and Charlotte Williamson, were distributing a notice to

night-shift employees who had just finished their shifts, which

notice    announced    that   a    petition,   requesting   a   revote   on    a

previously defeated proposal to make the Newport News plant a

continuous shift operation, had been signed by sixty-five percent

of Union members at the plant.1         Maggie Taylor, Thomas’ friend of

eighteen years and fellow Union co-worker, then showed Thomas a

copy of the notice.      Maggie Taylor, like Thomas, opposed a revote

on the Continuous Shift MOA.

     Upset that Union members were distributing Union materials

during work time in apparent violation of the CBA, at approximately

7:00 a.m., Thomas, Maggie Taylor, and Helen Blain, another employee

opposed to a revote on the Continuous Shift MOA, collectively

proceeded to and entered the Union’s on-site office in order to

complain to a Union representative.            Two other employees, Lillian

Cooter and Marion Williams, and Union President Byron Carter (Union


     1
      On March 20, 2003, Union members at Siemens’ Newport News
plant had voted on a proposed memorandum of agreement between the
Union and Siemens to modify the CBA in order to make the Newport
News plant a continuous shift operation (the Continuous Shift MOA).
The Union rejected the Continuous Shift MOA by a close vote of 161
to 155. Thomas had voted to reject the Continuous Shift MOA and
was opposed to a revote.

                                     - 5 -
President Carter), were already present in the Union’s on-site

office when Thomas and the others arrived. Notably, Lillian Cooter

did not know Thomas, Maggie Taylor, or Helen Blain.

     Once in the Union’s on-site office, Thomas stood near its

half-glass door, facing Union President Carter’s desk.       In the

meantime, employees Nancy Vance, Charlotte Williamson, and Linwood

Sykes proceeded to the Union’s on-site office to return extra

copies of the notice.

     What happened next is the subject of some dispute.   According

to Nancy Vance, she opened the office door a few inches and asked

Union President Carter if he was busy.   Believing that he signaled

her to enter, Nancy Vance opened the door ten more inches.    Then,

testified Nancy Vance in deposition, Thomas “poked her head around

the door and saw me standing there [and] took her body and shoved

[the door] against me.” (J.A. 480). Nancy Vance further testified

that Thomas threw her shoulder into the door violently in an

attempt to prevent her from entering the office.       She further

testified:

          At that point a contact had hit me in the elbow and
     just shot the pain through my arm. I slid back. My foot
     got trapped in the door. And [Thomas] continuously tried
     to shove me out of the way, out of the room, which I
     really never got a chance to go into until my foot popped
     loose and I actually went back into Charlotte
     [Williamson].




                              - 6 -
Id. In various depositions and interviews, Lillian Cooter, Linwood

Sykes,     Charlotte       Williamson,       and   Union    President   Carter

corroborated Nancy Vance’s version of events.

       Not surprisingly, Thomas disputes Nancy Vance’s version of the

incident.     Thomas claims that Nancy Vance aggressively opened the

door   into    her,    causing      her    pain.   Thomas   admits   that   she

immediately responded by pushing the door shut with her arm and

hip, but denies that she did so violently or with the intent to

hurt Nancy Vance.

       In an April 3, 2003 letter to Mike Lindsey, Siemens’ human

resource      specialist     (HRS    Lindsey),     Maggie   Taylor   generally

corroborated Thomas’ version of events.             Helen Blain did the same

in an undated letter to Mike Lindsey.

       Immediately after the incident, Nancy Vance complained about

Thomas’ behavior to a Siemens supervisor and HRS Lindsey.                Nancy

Vance also promptly reported her injury to the plant nurse and

filed criminal assault and battery charges against Thomas.                   In

addition, Nancy Vance, who also belonged to the Union, filed a

grievance against Siemens under the CBA, alleging that Siemens had

failed to provide her with a violence-free workplace by permitting

Thomas to assault her in the plant.

       In contrast, Thomas did not make a complaint to Siemens’ Human

Resources Department about the door incident, nor did she seek




                                          - 7 -
treatment from the plant nurse or file criminal charges.                     Rather,

Thomas left the plant because she said she had a headache.

     HRS Lindsey immediately began investigating Nancy Vance’s

complaint.    He interviewed available witnesses, including Union

President    Carter   and    Linwood    Sykes.       Union    President       Carter

confirmed that Thomas had forcefully tried to slam the door shut on

Nancy Vance, striking her and “throwing her body weight against the

door, maybe four or five times.”             (J.A. 135).     Linwood Sykes also

reported    that   Thomas    had    slammed    the   door    into    Nancy    Vance,

striking her on the arm and catching her foot in the door.                      HRS

Lindsey attempted to interview Thomas, but learned that she had

already left the plant.

     After interviewing the witnesses present in the plant, HRS

Lindsey preliminarily concluded that Thomas was the aggressor in

the door incident and that she had repeatedly, forcefully, and

intentionally slammed the Union’s on-site office door into Nancy

Vance.   Accordingly,       HRS    Lindsey    suspended     Thomas   pending    the

completion of his investigation.             On Sunday, March 30, 2003, HRS

Lindsey contacted Thomas at home and notified her that she was

suspended pending completion of his investigation.

     Homer Tipton, the Assistant Directing Business Representative

for the Union, immediately filed a grievance on Thomas’ behalf

challenging her suspension. The grievance requested that Thomas be




                                      - 8 -
reinstated   and   made   whole.    Thomas    admits   that   Homer   Tipton

properly filed this grievance on her behalf.

     HRS Lindsey continued his investigation by interviewing Thomas

on Wednesday, April 2, 2003.        Union Steward Marion Williams and

Union Vice President Bernard Banks (Union Vice President Banks)

represented Thomas during the interview.         Thomas admitted pushing

the office door shut with her arm and hip, but denied hitting Nancy

Vance with the door.

     HRS Lindsey also met with and obtained statements from Lillian

Cooter and Charlotte Williamson.           Helen Blain and Maggie Taylor

provided HRS Lindsey with statements indicating that the office

door made contact with Thomas and that Thomas then pushed the door

closed.

     After completing the investigation, HRS Lindsey concluded that

the weight of the evidence established that Thomas had exhibited

violent, threatening, and intimidating behavior that could have

resulted in serious injury to Nancy Vance.              Accordingly, HRS

Lindsey recommended to Siemens’ Human Resources Director Russ

Sewell (HRD Sewell) that Thomas be discharged.

     HRD Sewell agreed and, on April 15, 2003, Thomas’ suspension

was converted to a discharge.         In reaching this decision, HRD

Sewell relied primarily on the testimony of Union President Carter,

who had the best view of what occurred.           Union President Carter

believed that Thomas had intentionally tried to harm Nancy Vance


                                   - 9 -
because, according to him, Thomas repeatedly slammed the door on

Nancy Vance.    HRD Sewell also relied on the testimony of Lillian

Cooter, who HRD Sewell believed was particularly reliable because

she did not know the parties in the altercation and had no cause

for bias.

     When Homer Tipton learned that Thomas had been discharged, he

immediately converted the Union’s grievance of Thomas’ suspension

to cover her discharge.        Homer Tipton then began an independent

Union    investigation,      obtaining     statements       and     interviewing

witnesses.    Homer Tipton interviewed Thomas, Lillian Cooter, Union

President    Carter,   Helen     Blain,        Marion    Williams,     Charlotte

Williamson, and Maggie Taylor.

     According to Homer Tipton, in two separate interviews, Maggie

Taylor told him that she yelled to Thomas “No Darlene,” (J.A. 180),

and “‘stop,’” (J.A. 442), because she was concerned about Thomas

trying to hurt Nancy Vance.2       Union Vice President Banks, who was

present during Homer Tipton’s first interview with Maggie Taylor,

confirmed    that   Maggie   Taylor    made      these    statements.      Union

Directing Business Representative Larry Young (Union Directing

Business    Representative    Young)     was    present    during    the   second

interview and confirmed that Maggie Taylor made these statements.



     2
      In deposition testimony in the present case, Maggie Taylor
denies that she told Thomas “no” or “stop” and denies that she told
Homer Tipton during the interviews that she had uttered such words
at the time of the door slamming incident.

                                  - 10 -
     As his investigation progressed, Homer Tipton became concerned

about the impact of multiple union eyewitnesses, including the

Union President, testifying against Thomas in an arbitration.

Despite his concerns, Homer Tipton dutifully represented Thomas

throughout the three-step prearbitration grievance process.             This

process culminated in the third-step meeting between Union and

Siemens officials.3     (J.A. 433-34).

     Homer Tipton asserted in the third-step meeting that Thomas

had not intended any violent action or harm to Nancy Vance.               He

also claimed that Nancy Vance was at fault because she had actually

pushed the door into Thomas.          Homer Tipton further argued that

Siemens should not discharge Thomas because it had not discharged

Nancy    Vance.    In   addition,   Homer    Tipton   argued   that   Thomas’

discipline was not consistent with discipline imposed upon other

employees.

     Thomas admits that she wanted Homer Tipton to make each of the

arguments he presented at the third-step meeting. There is also no

dispute that Thomas was able to personally make the additional

argument that Union President Carter was not a disinterested

witness because he supported the Continuous Shift MOA and a revote,

but she did not.    Thomas also claimed injury by being struck by the




     3
      The CBA provides that if the parties cannot resolve the
grievance following the third-step meeting, the Union can issue a
notice of intent to arbitrate.

                                    - 11 -
door when opened by Nancy Vance. Finally, Thomas stated during the

third-step meeting:       “‘I don’t believe in conflict.’”           (J.A. 425).

       HRD Sewell upheld Thomas’ discharge.                 Significant in his

decision to do so were the several eye-witness statements in favor

of Nancy Vance’s version of events, including the eye-witness

statement by Union President Carter.             Additionally, HRD Sewell did

not find Thomas’ claim of injury to be credible given that the

force of a door being opened twelve inches is minimal and the fact

that   Thomas    had    ample     opportunity    to   report   any   injury    she

sustained   in    the    incident     to   the    company’s    Return   to    Work

Coordinator (a registered nurse) or the company’s medical clinic

prior to her leaving the plant on the day of the incident, but did

not do so. Finally, in his written decision, HRD Sewell emphasized

that   although    the     door    slamming      incident   alone    constituted

sufficient cause to discharge Thomas, prior violent incidents

involving Thomas served as relevant background and directly refuted

Thomas’ statement that she did not believe in conflict.

       One such violent incident occurred in 1996, when Thomas

grabbed co-worker Louise Mitchell by the shirt during a Union

meeting and told her that “if she ever told [her, referring to

Thomas,] to shut the f**k up again, [she would] beat the sh** out

of her . . . .”        (J.A. 207).    When asked during her deposition in

the present case whether she considered her statement a “threat,”

Thomas testified “[no] I didn’t. . . . I considered it a warning of


                                      - 12 -
me telling her not to do it again, and a promise that if she did do

it again, that that’s what I was going to do.”    (J.A. 331).

     The co-worker filed criminal charges against Thomas and a

civil suit against her in connection with the incident.      In the

subsequent criminal proceeding, the judge found sufficient evidence

to convict Thomas. Union members also filed internal Union charges

against Thomas based on the assault and battery, which resulted in

Thomas being fined and prohibited from running for Union office for

three years.

     HRD Sewell’s final written decision following the third-step

meeting also described another violent incident involving Thomas,

which incident occurred approximately one month prior to the door

slamming incident on March 28, 2003. In February 2003, an employee

working in the same department as Thomas requested that she be

moved away from Thomas’ work area because Thomas told her:      “‘I’ll

get you when no one’s around.   I’ll f**k you up, you white b**ch.’”

(J.A. 425).

     Following HRD Sewell’s adverse decision, Homer Tipton decided

not to arbitrate Thomas’ discharge grievance.      When determining

whether to arbitrate a grievance, Homer Tipton considers factors

such as the merits of the grievance, if it is economically viable

to bring the grievance to arbitration and whether the arbitration

will have any broader, beneficial impact on other union employees.

According to Homer Tipton, Siemens had a strong case against Thomas


                                - 13 -
which would result in an unsuccessful arbitration of Thomas’

grievance.      Of    particular       importance      in    his    decision    not   to

arbitrate Thomas’ grievance were the multiple Union eyewitnesses,

including the Union’s president, who would testify against Thomas.

Indeed,     Homer     Tipton    testified       that    he        had   lost   several

arbitrations with Siemens specifically because Union employees had

testified against Union grievants.                  At the time Homer Tipton

decided not to arbitrate Thomas’ discharge grievance, the criminal

charges     against    Thomas    in    connection      with       the   door   slamming

incident had not yet been resolved.

      On August 11, 2003, Darlene Thomas filed the present hybrid

§ 301 action, 29 U.S.C. § 185, against Siemens for breach of the

CBA   and   against    the     Union    for   breach        of    its   duty   of   fair

representation.        Thomas alleged five counts in her complaint.

Following the completion of discovery, Siemens and the Union moved

for summary judgment on all counts. The district court granted the

motion in toto. Thomas moved for reconsideration, but the district

court denied the motion.

      Thomas has only appealed the district court’s grant of summary

judgment with respect to Counts One and Two.                     In Count One, Thomas

alleged that Siemens breached the CBA by discharging her without

proper and just cause.         In Count Two, Thomas alleged that the Union

breached its duty of fair representation by not arbitrating her

discharge grievance.


                                       - 14 -
                                         II.

      Summary      judgment     is     appropriate     when     “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).        A mere

scintilla of evidence in support of the plaintiff’s position is

insufficient to stave off summary judgment; “there must be evidence

on   which   the    jury     could   reasonably    find   for   the    plaintiff.”

Anderson     v.    Liberty    Lobby,    Inc.,    477   U.S.   242,     252   (1986).

Moreover, “[c]onclusory or speculative allegations do not suffice

. . .” to stave off a properly made motion for summary judgment.

Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.

2002).

      We review the district court’s grant of summary judgment de

novo, viewing the evidence in the light most favorable to Thomas,

the nonmoving party.          Kubicko v. Ogden Logistics Servs., 181 F.3d

544, 551 (4th Cir. 1999).



                                        III.

      Thomas contends the district court erred in granting summary

judgment in favor of Siemens with respect to Count One and in favor

of the Union with respect to Count Two.




                                       - 15 -
     “This is a so-called ‘hybrid 301’ action, where in order to

prevail on the merits against either party, an employee must prove

both 1) that the union breached its duty of fair representation and

2) that his employer violated the collective bargaining agreement.”

Thompson v. Aluminum Co. of America, 276 F.3d 651, 656 (4th Cir.

2002).   As a hybrid action under § 301, a cause of action will lie

against Siemens only if the Union breached its duty of fair

representation.     Id.        “Accordingly, an employee must prevail upon

his unfair representation claim before he may even litigate the

merits of his § 301 claim against the employer.”                Id. at 656-67

(internal quotation marks omitted).

     “It is well established that unions, as exclusive bargaining

agents   in   the   negotiation,      administration   and     enforcement   of

collective bargaining agreements, have an implicit duty ‘to serve

the interests of all members without hostility or discrimination

toward any, to exercise [their] discretion with complete good faith

and honesty, and to avoid arbitrary conduct.’” Id. at 657 (quoting

Vaca v. Sipes, 386 U.S. 171, 177 (1967)) (alteration in original).

Accordingly, a union is found to have breached its duty of fair

representation      if    it    exercised   its   discretion    “arbitrarily,

discriminatorily or in bad faith . . . .”            Id. at 657.     See also

Smith v. Local 7898, United Steelworkers of Am., 834 F.2d 93, 96

(4th Cir. 1987).




                                      - 16 -
     On appeal, Thomas does not claim that the Union exercised its

discretion either arbitrarily or discriminatorily in deciding not

to arbitrate her discharge grievance.           Rather, Thomas claims that

the Union exercised its discretion in bad faith in deciding not to

arbitrate her discharge grievance.

     An analysis of whether a union exercised its discretion in bad

faith focuses upon the subjective motivation of the relevant union

decision maker or makers.      Thompson, 276 F.3d at 658.       For purposes

of this appeal, Taylor does not dispute that Homer Tipton alone

made the decision on behalf of the Union not to arbitrate her

discharge grievance.        Accordingly, our analysis focuses upon the

subjective motivation of Homer Tipton in deciding not to arbitrate

Thomas’ discharge grievance.

     The primary evidence proffered by Thomas to carry her burden

of proving by a preponderance of the evidence that the Union, via

Homer Tipton, subjectively acted in bad faith in exercising its

discretion    not   to   arbitrate   her    discharge    grievance      is   the

deposition testimony of Maggie Taylor denying that she told Homer

Tipton in two separate interviews that she yelled to Thomas “No

Darlene,” (J.A. 180), and “‘stop,’” (J.A. 442), because she was

concerned about Thomas trying to hurt Nancy Vance.                As Thomas’

argument goes, because Maggie Taylor denies having made these

statements, Homer Tipton must have been lying when he testified

otherwise    during   his   deposition     in   the   present   case,    and   a


                                   - 17 -
reasonable   jury    could   infer    from    such    lying     that    bad   faith

motivated him not to arbitrate Thomas’ discharge grievance.                      As

evidence of Union bad faith against her in general, Thomas points

out that Union Vice President Banks and Union Directing Business

Representative Young have corroborated Homer Tipton regarding the

alleged Maggie Taylor statements at issue.

     Following our careful review of all record evidence, in the

light most favorable to Thomas, we conclude that Thomas has not

carried her burden of proffering sufficient evidence to prove by a

preponderance of the evidence that the Union subjectively acted in

bad faith in deciding not to arbitrate her discharge grievance.

Even assuming arguendo that Homer Tipton, Union Vice President

Banks, and Union Directing Business Representative Young were

somehow dishonest in reporting that Maggie Taylor made the “No

Darlene--stop”      statements    during      her    interviews,       the    record

discloses no evidence establishing a motive for such dishonesty or

lying, as Thomas posits, on what was actually a matter collateral

to Homer Tipton’s decision not to arbitrate Thomas’ discharge

grievance. Accordingly, a jury would necessarily have to engage in

rank speculation to find that bad faith motivated Homer Tipton to

decide not to arbitrate Thomas’ discharge grievance.

     The   following    excerpt    from    Homer     Tipton’s    uncontradicted

affidavit makes clear that he believed Siemens had a strong case

without regard to any statements by Maggie Taylor that she yelled


                                     - 18 -
at Thomas to stop shutting the door because she feared Thomas

wanted to go after Nancy Vance:

          15. After the third step meeting, Siemens upheld
     the decision to terminate. I was now faced with deciding
     whether to arbitrate the grievance.

          16. This decision is mine and mine alone. My job
     is to make the decision based on a number of factors, the
     foremost being the merit of the case.         It is not
     appropriate to arbitrate each and every grievance
     regardless of merit. . . .

          I knew from experience that Siemens had a strong
     case. I felt that if they discovered Maggie Taylor’s
     take on the facts, it would only get stronger. I decided
     not to arbitrate the Thomas grievance because in my
     opinion the merits of her case could not support a
     favorable award at arbitration.

(J.A. 442-44) (emphasis added).

     Indeed,    Siemens      had   an   overwhelmingly      strong   case   for

discharge against Thomas regardless of what statements Maggie

Taylor actually made during the March 28th incident. Several Union

members,    including      the   Union’s   president,    corroborated     Nancy

Vance’s version of events.         Of these witnesses, the statements of

Lillian Cooter were extremely damaging to Thomas’ case because

Lillian    Cooter   had    no    allegiance   to   Thomas   or   Nancy   Vance.

Additionally, Thomas had a well established history of violence

against coworkers.        Finally, the undisputed evidence in the record

discloses that Homer Tipton conducted a thorough investigation of

the March 28th incident on behalf of the Union and that he

thoroughly and fairly represented Thomas in the first three steps

of her grievance process.

                                     - 19 -
     In short, the record does not contain sufficient evidence,

when viewed in the light most favorable to Thomas, to create a

triable issue of fact that the Union, via Homer Tipton, exercised

its discretion not to arbitrate her discharge grievance in bad

faith.     Because   Thomas     cannot   prevail   upon   her    unfair

representation claim against the Union, as a matter of law, she

cannot prevail upon her breach of the CBA claim against Siemens.

Thompson, 276 F.3d at 656-57.    Accordingly, we affirm the judgment

entered by the district court in favor of Siemens and the Union.

                                                                AFFIRMED




                                - 20 -
