                     NONPRECEDENTIAL DISPOSITION
                       To be cited only in accordance with
                               Fed. R. App. P. 32.1




           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                             Argued February 6, 2007
                             Decided March 12, 2007

                                      Before

                   Hon. MICHAEL S. KANNE, Circuit Judge

                   Hon. DIANE P. WOOD, Circuit Judge

                   Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 06-2303

THOMAS D. EVANS,                               Appeal from the United States
             Plaintiff-Appellant,              District Court for the Northern
                                               District of Illinois, Eastern Division.
      v.
                                               No. 05 C 5470
UNITED STATES POSTAL
SERVICE,                                       Ruben Castillo,
            Defendant-Appellee.                Judge.


                                    ORDER

       Thomas Evans was a mail handler for the United States Postal Service
(“USPS”) until he was fired in 2003. USPS contends that Evans was absent without
leave for two weeks, and that this was its reason for firing him. Evans thought that
the termination violated the terms of the collective bargaining agreement (“CBA”)
between USPS and the National Postal Mail Handlers Union, so he asked the union
to intercede on his behalf. It did, invoking the CBA’s grievance procedure and
representing Evans in arbitration, but the arbitral body upheld his termination.
Evans then filed this action against USPS in federal court, again insisting that he
was improperly fired in violation of the CBA. The district court dismissed the
No. 06-2303                                                                      Page 2

complaint, holding that since Evans had made clear that he did not intend to argue
that the union had performed inadequately at the arbitration, he had to accept the
arbitral body’s decision and could not sue his employer. This appeal followed. We
agree with the district court and affirm the dismissal of the complaint.


        Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, allows
an employee to file a lawsuit for violation of the CBA between his union and his
employer. But a critical factor in such a suit is whether the CBA contains
procedures, such as arbitration, for resolving employment disputes. See Filippo v.
N. Ind. Pub. Servs. Corp., 141 F.3d 744, 748 (7th Cir. 1998). If the CBA does not
contain grievance procedures, then the employee can sue the employer in what is
known as a straightforward § 301 claim. See, e.g., Auto Workers v. Hoosier Cardinal
Corp., 383 U.S. 696 (1966). That type of suit is in many respects akin to an
ordinary contract action at common law. See id. However, if the CBA does contain
grievance procedures, then the employee’s options for filing a lawsuit are limited.
He must utilize those grievance procedures, and if he loses, he must accept the
arbitral result as final, for there is a strong policy against courts upsetting arbitral
decisions, particularly in the area of labor law. See Thomas v. United Parcel Serv.,
Inc., 890 F.2d 909, 915 (7th Cir. 1989).

       There are several well-established exceptions, however, to the finality of an
arbitral decision dealing with an alleged breach of a CBA. The one that is pertinent
here comes into play if the employee believes that his union did not adequately
press his rights during the grievance process. See Vaca v. Sipes, 386 U.S. 171,
185–87 (1967); see also DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 163–65
(1983). In that situation, the employee may file a “hybrid” suit alleging that his
union breached the duty of fair representation and that his employer breached the
CBA. The policy behind this exception is that it would be unjust to force a
disgruntled employee to abide by the CBA’s dispute process when his union did not
sufficiently represent him there. See Vaca, 386 U.S. at 185–86. So in any hybrid
suit, the first thing a plaintiff must show is that the union breached its duty of fair
representation; if he cannot, then his claims against his employer necessarily fail.
E.g., Greenslade v. Chi. Sun-Times, Inc., 112 F.3d 853, 868 (7th Cir. 1997). He need
not sue both the union and the employer, but he must make the showing against
the union in order to proceed. See DelCostello, 462 U.S. at 164–65.

       Here, Evans’s complaint makes no allegations against the union, and he
concedes that he was not dissatisfied with its handling of the arbitration. This
dooms his suit. He cannot convert what is, by its nature, a hybrid suit into a
straightforward § 301 claim simply by naming only his employer as a defendant.
See id. Perhaps Evans could amend his complaint or eventually show through
evidence that the union breached its duty, but he has stated repeatedly that he does
not intend to do this. This is not technically pleading himself out of court since
No. 06-2303                                                                   Page 3

these statements were not contained in pleadings, but the effect is the same, for he
has said too much. Evans must abide by the arbitral body’s decision to uphold his
termination. The case was properly dismissed, and the judgment of the district
court is AFFIRMED.
