                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-3211
RODNEY MATTHEWS,
                                          Plaintiff-Appellant,
                              v.

MILWAUKEE AREA LOCAL POSTAL
WORKERS UNION, AFL-CIO,
                                          Defendant-Appellee.
                        ____________
          Appeal from the United States District Court
             for the Eastern District of Wisconsin.
            No. 06 C 282—Lynn Adelman, Judge.
                        ____________
    ARGUED FEBRUARY 9, 2007—DECIDED JULY 23, 2007
                   ____________


 Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.
   BAUER, Circuit Judge. Rodney Matthews, a former
employee of the United States Postal Service (“Postal
Service”), filed suit against his union, the Milwaukee
Area Local of the American Postal Workers Union, AFL-
CIO (“the union”), claiming that it had failed to represent
him fairly in connection with a grievance that it had
filed on his behalf. The district court granted summary
judgment to the union. Matthews appeals, and we affirm.
2                                              No. 06-3211

                     I. Background
   On September 18, 2003, Rick Montgomery, a Postal
Service branch manager, found Matthews standing by his
locker away from his work station. Montgomery asked
Matthews if he was clocked in, and Matthews answered
untruthfully that he was not. Matthews then returned to
his work station, where he told Montgomery, “I owe you
one.” Montgomery asked Matthews to explain the remark,
and Matthews said, “You know what I mean, hero.” After
the incident, the Postal Service placed Matthews on an
emergency placement, non-pay suspension for violating
the Postal Service’s zero tolerance policy as to violence
or the threat of violence. Matthews asked the union to
file a grievance on his emergency placement immediately
after his suspension.
  Matthews suspension lasted eight days before the Postal
Service changed his status to administrative leave and
resumed paying him. On October 19, 2003, the union filed
a Step 1 grievance, challenging the emergency placement
suspension and demanding that Matthews be returned to
work with compensation for his eight days of lost pay.
After investigating the incident, the Postal Service denied
the Step 1 emergency placement grievance. Thereafter, the
union filed a Step 2 emergency placement grievance.
  On October 27, 2003, the Postal Service issued a Notice
of Proposed Removal to Matthews, indicating that it
intended to terminate his employment with the Postal
Service. The Postal Service contended that it had just
cause for terminating Matthews because he had violated
its zero tolerance policy and he had lied to his supervisor.
On November 7, 2003, the union filed a second grievance,
this one challenging Matthews’ proposed removal; how-
ever, Matthews decided to withdraw this grievance on
November 10, 2003. On December 5, 2003, Matthews
and his attorney met with the Postal Service to challenge
No. 06-3211                                               3

his proposed removal. During the meeting, Matthews
admitted that he was clocked in while away from his
work station on September 18 and that he had lied to
Montgomery.
  On January 8, 2004, the Postal Service denied the
union’s Step 2 emergency placement grievance. As justifi-
cation for its decision, the Postal Service referred to its
investigation of the September 18 incident and to
Matthews’ previous disciplinary proceedings with the
Postal Service.1
  The Postal Service terminated Matthews on January 9,
2004. Matthews appealed his termination of employment
to the Merit Systems Protection Board (“MSPB”).
  On January 15, 2004, the union appealed the denial of
the emergency placement grievance to arbitration. On
August 13, 2004, the union entered into an agreement
with the Postal Service to hold the arbitration of the
emergency placement grievance in abeyance pending the
outcome of the MSPB’s decision regarding Matthews’
removal. On September 8, 2004, an MSPB administrative
law judge upheld Matthews’ removal. Matthews appealed,
and the MSPB upheld the judge’s decision on August 30,
2005.
  After Matthews’ removal was upheld, the union at-
tempted to settle its emergency placement grievance.
Although the Postal Service initially declined to pay
Matthews for any of the eight days’ pay that he lost during
the emergency placement suspension, on September 30,
2005, the Postal Service agreed to settle the grievance for
16 hours of pay amounting to $367.76.


1
  In 2002, the Postal Service and Matthews entered into a
settlement agreement wherein Matthews agreed that any future
threatening behavior would result in his termination.
4                                                   No. 06-3211

  Matthews filed the present suit in Wisconsin state court,
claiming that the union failed to represent him fairly in
connection with the emergency placement grievance. The
union removed the case to federal court.2 Before the
district court, Matthews argued that the union’s han-
dling of the emergency placement suspension grievance
was arbitrary and perfunctory, claiming that the union
untimely filed the emergency placement suspension
grievance and that the union should have arbitrated the
grievance rather than holding it in abeyance pending the
MSPB’s proceeding. Matthews claims that had the union
brought the emergency placement grievance to arbitra-
tion in an timely manner, he would have been placed back
on duty, withdrawn his appeal to the MSPB relating to his
removal, filed a removal grievance, and prevailed at the
arbitration of the removal grievance.
  The union moved for summary judgment. The district
court found that the union’s handling of the emergency
placement grievance was not arbitrary, discriminatory, or
in bad faith. Accordingly, the district court granted
summary judgment to the union, concluding that a rea-
sonable factfinder could not find that the union breached
its duty to fairly represent Matthews.


                       II. Discussion
  We review a district court’s grant of summary judgment
de novo. Konen v. Int’l Bhd. of Teamsters, Local 200, 255
F.3d 402, 406 (7th Cir. 2001). In doing so, we draw every


2
  Under § 2 of the Postal Reorganization Act, district courts with
personal jurisdiction over the parties have subject matter
jurisdiction over “suits for violations of contracts between the
Postal Service and a labor organization representing Postal
Service employees. . . .” See 39 U.S.C. § 1208(b).
No. 06-3211                                                  5

justifiable inference from the record in the light most
favorable to the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed.
2d 202 (1986). Summary judgment is proper when the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with any affidavits, show that
there is no genuine issue of material fact and the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
  A union breaches its duty of fair representation if its
conduct is arbitrary, discriminatory, or in bad faith. Vaca
v. Sipes, 386 U.S. 171, 190, 87 S. Ct. 903, 17 L. Ed. 2d 842
(1967); McKelvin v. E.J. Brach Corp., 124 F.3d 864, 867
(7th Cir. 1997). On appeal, Matthews does not contend
that the union’s actions were discriminatory or in bad
faith. Instead, he argues that the union processed the
emergency placement grievance in an arbitrary and
perfunctory manner. In order to prevail on this claim, in
addition to showing that the union acted arbitrarily,
Matthews must also establish that he “was actually
harmed by the union’s actions” and that “the outcome of
the [grievance] would probably have been different but for
the union’s activities.” Garcia v. Zenith Elecs. Corp., 58
F.3d 1171, 1176-77 (7th Cir. 1995) (citing Black v. Ryder,
15 F.3d 573, 585 (6th Cir. 1994); Ooley v. Schwitzer Div.,
Household Mfg. Inc., 961 F.2d 1293, 1303-04 (7th Cir.),
cert. denied, 506 U.S. 872, 113 S. Ct. 208, 121 L. Ed. 2d
148 (1992)).
  “Our review of whether a union acted arbitrarily in
deciding not to pursue a grievance or arbitration is ‘highly
deferential.’ ” See McKelvin, 124 F.3d at 867 (quoting Air
Line Pilots Ass’n Int’l v. O’Neill, 499 U.S. 65, 67, 111 S. Ct.
1127, 113 L. Ed. 2d 51 (1991)). “In applying this ex-
tremely deferential standard, we will ‘not substitute
6                                                 No. 06-3211

[our] judgment for that of the union, even if, with the
benefit of hindsight, it appears that the union could have
made a better call.’ ” Id. (quoting Garcia, 58 F.3d at 1176).
Matthews’ burden on summary judgment, “is not just to
establish that his position is as plausible as the union’s,
but to show that the union’s position ‘could eventually be
deemed not even colorable[.]’ ” Id. at 868 (quoting Trnka
v. Local Union No. 688, 30 F.3d 60, 61 (7th Cir. 1994)).
  Matthews argues that the union processed his grievance
in an arbitrary and perfunctory manner by (1) waiting
thirty-one days to file the Step 1 emergency placement
grievance rather than within fourteen days of his suspen-
sion;3 (2) failing to provide sufficient background facts
concerning the incident between Matthews and Montgom-
ery on the emergency placement grievance form; (3)
holding the emergency placement grievance in abeyance
pending the outcome of the MSPB’s decision regarding
Matthews’ removal; and (4) settling the emergency place-
ment grievance rather than proceeding to arbitration. For
several reasons Matthews is unable to establish that the
union’s actions in processing the grievance were irrational
or that its actions harmed the outcome of the grievance.
  First, the Postal Service never challenged the timeliness
of the emergency placement grievance. The Postal Service
treated the grievance just as if it had been filed within
fourteen days of the initial incident and denied the griev-
ance on its merits. Second, the grievance prepared by the
union stated that “grievant was placed on emer[gency]
placement without just cause” and requested that
“grievant be made whole for all lost wages and brought
back to work immediately.” This was enough information


3
  The Collective Bargaining Agreement, under Article 15.2,
Step 1, suggests that the union file a grievance within fourteen
days of the incident.
No. 06-3211                                              7

for the Postal Service to initiate an investigation of the
September 18 incident. Before denying the emergency
placement grievance, the Postal Service reviewed the
facts surrounding the September 18 incident and took
note of Matthews’ previous disciplinary proceedings
with the Postal Service. There is no evidence that the
outcome of the grievance would have been different had
it been filed earlier or had it detailed all the facts sur-
rounding the exchange between Matthews and Montgom-
ery.
  Next, the union’s decision to hold the emergency place-
ment grievance in abeyance pending the outcome of
Matthews’ MSPB appeal was not irrational. Matthews
offers no evidence that holding the grievance in abeyance
actually added time to the arbitration process. The griev-
ance already had been on the arbitration docket for eight
months when the union and Postal Service agreed to stay
the arbitration. The union’s decision to preserve its
resources and allow the MSPB to address the allegations
of Matthews’ misconduct on which his emergency place-
ment and removal were based prior to proceeding to
arbitration was not “so far outside a wide range of reason-
ableness as to be irrational.” Ooley, 961 F.2d at 1302
(explaining that a “wide degree of deference is war-
ranted because Congress did not intend courts to interfere
with the decisions of the employee’s chosen bargaining
representative.”).
  Finally, “a union does not breach its statutory duty of
fair representation . . . merely because it settled the
grievance short of arbitration.” Vaca, 386 U.S. at 191. The
union’s decision to settle rather than arbitrate the emer-
gency placement was not arbitrary. Settlement was a
reasonable alternative considering that the most that the
union could have won by arbitrating the grievance was
eight days of back pay. The decision was also reasonable
because the union had a relatively weak case to present at
8                                             No. 06-3211

arbitration: Matthews had a past record of misconduct at
the Postal Service; Matthews agreed in 2002 that any
future threatening behavior would result in his termina-
tion; Matthews’ comments to Montgomery could be classi-
fied as threatening; Matthews had lied to Montgomery
during the incident; and the MSPB had upheld the Postal
Service’s removal of Matthews. Given these circumstances,
the union did not act arbitrarily in settling the emergency
placement grievance for sixteen hours of back pay.
  We agree with the district court that no reasonable
factfinder could find that the union breached its duty of
fair representation.


                    III. Conclusion
  For the reasons stated above, we AFFIRM the district
court’s grant of summary judgment.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—7-23-07
