                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         January 30, 2007

                         FOR THE FIFTH CIRCUIT           Charles R. Fulbruge III
                                                                 Clerk
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                             No. 06-50460
                           Summary Calendar

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MANUEL BANLES MIRANDA,

                Plaintiff-Appellant,

     v.

NATIONAL POSTAL MAIL, National Postal Mail Handlers Union;
NATIONAL POSTAL MAIL HANDLERS UNION, LOCAL 311,

                Defendants-Appellees.


           Appeal from the United States District Court
                 for the Western District of Texas
                          No. MO-06-CV-012



Before DeMOSS, STEWART, and PRADO, Circuit Judges.

Per Curiam:*

     Plaintiff-Appellant Manuel Banles Miranda (“Miranda”)

appeals a district court order granting summary judgment to

Defendants-Appellees National Postal Mail Handlers Union

(“NPMHU”) and its Local 311 (collectively, “Defendants”). For the



     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.

                                   1
reasons that follow, we AFFIRM the judgment of the district

court.

              I. FACTUAL AND PROCEDURAL BACKGROUND

     Miranda has been an employee of the United States Postal

Service (“USPS”) since 1981. He began there in a mail handler

position in the Odessa, Texas post office and in 1989 was

transferred to a mail handler position at the Midland Processing

and Distribution Facility. Defendant NPMHU is the exclusive

bargaining representative for members of the mail handler craft

employed by USPS, and Defendant Local 311 represents the mail

handlers at the Midland facility.

     In June 2001, Miranda voluntarily transferred to a letter

carrier position in Odessa, Texas, a position outside the mail

handler craft. In January 2002, however, he returned to a mail

handler position in Midland, Texas. Sometime after Miranda’s

return, he discovered that he had lost his seniority due to his

transfer. Because he returned to a mail handler position within

one year of his transfer out, Miranda believed that he should

have retained his seniority. Miranda filed a grievance through

his union steward. USPS initially complied with Miranda’s

request, restoring his seniority date to 1981.

     Sometime in the fall of 2003, however, Local 311 official

Robert Rodriguez (“Rodriguez”) contacted USPS management,

claiming that the restoration of Miranda’s seniority had been in


                                2
error. According to Rodriguez, the collective bargaining

agreement between NPMHU and USPS provided that seniority could be

restored only for persons in management positions. Miranda’s

seniority was again rescinded, and a seniority list reflecting

this correction was posted on the employee bulletin board in

November 2003. Miranda claims that the loss of his seniority has

prevented him from obtaining vacation time during Thanksgiving

week and has precluded him from successfully bidding on certain

jobs. Miranda also claims that Rodriguez “used intimidation

tactics against him” by convincing management to schedule Miranda

for work on December 25, 2004, after Miranda had initially be

given that day off.

     Miranda filed suit against the Defendants for breach of

fiduciary duty in Texas state court on December 27, 2005.

Defendants filed a notice of removal to federal court on January

20, 2006. Subsequently, Defendants moved for summary judgment on

the basis of untimeliness. Defendants argued that Miranda’s state

law claim was preempted by the National Labor Relations Act

(NLRA), 29 U.S.C. § 151 et seq., and that a six-month statute of

limitations applied. The district court determined that removal

to federal court was proper under this court’s holding in

Richardson v. United Steel Workers of America, 864 F.2d 1162,

1170 (5th Cir. 1989). Finding that Miranda’s claim was cognizable

only as a duty of fair representation claim under the NLRA, the

district court concluded that a six-month limitation period

                                3
applied. Because none of the instances of Defendants’ purported

breach of duty occurred within six months of the date Miranda

filed his suit, the district court granted the Defendants’ motion

for summary judgment.1 On appeal, Miranda does not renew his

objection to the removal of his suit, and only challenges the

district court’s granting of summary judgment.

               II. JURISDICTION AND STANDARD OF REVIEW

     Pursuant to 28 U.S.C. § 1291, this court has jurisdiction

over an appeal from a grant of summary judgment. We review a

district court’s grant of summary judgment de novo. Dallas County

Hosp. Dist. v. Assocs. Health & Welfare Plan, 293 F.3d 282, 285

(5th Cir. 2002). Summary judgment is proper when the pleadings,

discovery responses, and affidavits show that there is no genuine

issue of material fact and that the moving party is entitled to a

judgment as a matter of law.    FED. R. CIV. P. 56(c).   A dispute

about a material fact is genuine if the evidence is such that a

reasonable fact-finder could return a verdict for the non-moving

party.    Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).    When deciding whether there is a genuine issue of

material fact, this court must view all evidence in the light

most favorable to the non-moving party.    Daniels v. City of

Arlington, 246 F.3d 500, 502 (5th Cir. 2001).

     1
      The district court also granted Defendants’ summary
judgment motion as to a claim for retaliation that Miranda
alleged for the first time in his response. Miranda has not
raised this issue on appeal.
                                  4
                         III. DISCUSSION

     Miranda maintains that his claim against the Defendants is a

state law claim for breach of fiduciary duty. It is clear from

Supreme Court and this court’s caselaw, however, that Miranda’s

claim is cognizable only as a duty of fair representation claim

under the NLRA. As such, it is timed barred under the applicable

six-month statute of limitations.

A.   Preemption Under the Duty of Fair Representation

     The duty of fair representation is a duty held by the

Supreme Court to be implied in the NLRA. See, e.g., Ford Motor

Co. v. Huffman, 345 U.S. 330 (1953); Steele v. Louisville &

Nashville R.R. Co., 323 U.S. 192 (1944). Because the NLRA

empowers a union to become the exclusive bargaining agent of all

employees in a bargaining unit, whether or not members of the

union, it correspondingly implies a duty of fair representation

by the union of all those employees. Bass v. Int’l Bhd. of

Boilermakers, 630 F.2d 1058, 1062 (5th Cir. 1980). The duty of

fair representation requires the union “fairly to represent all

of those employees, both in its collective bargaining with [the

employer] . . . and in its enforcement of the resulting

collective bargaining agreement” and “to serve the interests of

all [bargaining unit] members without hostility or discrimination

toward any.” Vaca v. Sipes, 386 U.S. 171, 177 (1967).

     In Richardson v. United Steel Workers of America, 864 F.2d


                                5
1162, 1166 (5th Cir. 1989), this court interpreted Vaca as

holding that the federal duty of fair representation preempts

state substantive law. In Richardson, as in the instant case, we

faced an appeal by plaintiffs who brought a claim against their

representative union for breach of a “Texas common-law tort duty

owed by a union to its members.” Id. at 1164. We explained that

“[b]ecause the plaintiffs in this case alleged that the Union

breached a duty that arose from its status as their exclusive

collective bargaining agent under the NLRA, Vaca requires that

this duty be defined by federal law.” Id. at 1166-67. We held

that “[t]he Union’s right to act as plaintiffs’ bargaining agent

is conferred by the NLRA, and . . . the duties corresponding to

this right conferred by federal labor law are likewise defined

solely by federal labor law.” Id. at 1165. Thus, though the

appellants had depicted their claims as state law claims, we

affirmed the district court’s characterization of those claims as

“NLRA duty of fair representation claims.” Id. at 1167.

     The circumstances of this case and those in Richardson are

fundamentally alike. As in Richardson, the duty allegedly

breached by the Defendants arises from their status as Miranda’s

collective bargaining representatives, thus compelling the

conclusion that Miranda’s claims are also properly characterized

as duty of fair representation claims.

B.   Attempts to Distinguish Richardson



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     Miranda does not address Richardson directly, but he does

make arguments that appear to be implicit attempts to distinguish

that case.

     1.   Defendants’ Conduct as Bargaining Agent

     In Richardson, the plaintiffs acknowledged explicitly that

the union’s duties stemmed from its status “as the bargaining

agent for Plaintiffs.” Id. at 164. Miranda, however, argues that

he “is not complaining of the Union’s representation against him

against the employer” and that “the Union was not acting as the

exclusive bargaining representative on conditions of employment

for Miranda.” Rather, Miranda proposes that he “is complaining of

the insular conduct of the Union” and that “[Rodriguez] acted

unilaterally to rescind the seniority to [his own] advantage.”

This characterization of Miranda’s claim is inaccurate. Rodriguez

was acting in his capacity as collective bargaining agent when he

persuaded USPS management to rescind Miranda’s seniority in

accordance with Rodriguez’s interpretation of the collective

bargaining agreement. That Rodriguez’s action may have been

improperly motivated by hostility, bias, or self-interest does

not imply that Rodriguez did not act as collective bargaining

representative. Rodriguez’s motivations go to the merits of

Miranda’s claim but do not change the fact that this claim is

properly characterized as a duty of fair representation claim.

     2.   Independent State-Law Duty



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     Our opinion in Richardson acknowledged that that case did

not “present the question of whether the Union was subject to an

independent state-law duty of care . . . arising simply from the

relationship of the union to its members” and not preempted by

the NLRA.   Id. at 1167 (internal quotation marks omitted).2 The

Richardson plaintiffs’ petition “did not even allege that

plaintiffs are or were members of the union.” Id.

     By contrast, Miranda’s complaint and appeal do state that he

is a member of the NPMHU and its Local 311. To the extent that

Miranda attempts to establish an independent state-law duty of

care on this basis, however, his argument is woefully

unsupported. Miranda claims that the Defendants “breached a

fiduciary duty” toward him. To demonstrate that this duty exists,

Miranda cites to a single Texas case, Fitz-gerald v. Hull, 237

S.W.2d 256, 261 (Tex. 1951), for the proposition that “Texas

courts have found a fiduciary duty when one person trusts or

relies in another.” However, in addition to being an older case

that concerns the relationship of parties to a joint venture,

rather than that of union member to union, Fitz-gerald nowhere

indicates that subjective trust and reliance alone are sufficient

to create a fiduciary relationship under Texas law. Miranda has

failed to establish an independent state tort duty that would


     2
      We also noted that state law actions that involve strong
state interests such as “the health and well-being of its
citizens” and are only peripherally related to the NLRA are not
preempted by the NLRA. Id.
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escape preemption by the NLRA.

     3.   Preemption Under § 301

     Finally, Miranda proposes a standard for preemption

different from that established by this court in Richardson.

Miranda argues that whether a state law claim is preempted by

§ 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C.

§ 185, depends upon whether “resolution of the state claim

requires interpretation of a collective bargaining agreement.”

Wells v. Gen. Motors Corp., 881 F.2d 166, 173 (5th Cir. 1989)

(emphasis omitted). Arguing that his claim against the Defendants

does not require interpretation of the collective bargaining

agreement between the union and USPS, Miranda therefore contends

that his state law claim is not preempted.

     While Miranda correctly articulates the standard for

preemption under § 301, he fails to recognize that this standard

does not apply to his case. LMRA § 301 provides a cause of action

for suits to enforce the provisions of a collective bargaining

agreement. Miranda’s suit is not correctly categorized as a § 301

breach-of-contract claim, as he is not suing USPS for a failure

to uphold its responsibilities under the collective bargaining

agreement. Instead, Miranda’s claim is properly characterized as

a duty of fair representation claim, as he is suing his union for

its failure to represent him faithfully in its dealings with

USPS. See, e.g., DelCostello v. Teamsters, 462 U.S. 151, 164

(1983) (distinguishing between a § 301 claim against an employer

                                   9
and a duty of fair representation claim against a union).3

Consequently, the appropriate standard for preemption is whether

Miranda is alleging that “the Union breached a duty that arose

from its status as [his] exclusive collective bargaining agent

under the NLRA.” Richardson, 864 F.2d at 1167. Despite his

protestations to the contrary, Miranda is indeed alleging the

breach of such a duty.

C.   Statute of Limitations for Duty of Fair Representation Claim

     In DelCostello, the Supreme Court held that the six-month

statute of limitations of NLRA § 10(b), 29 U.S.C. § 160(b),

applies to a “hybrid § 301/fair representation claim,” that is, a

suit that combines a § 301 claim against the employer with a duty

of fair representation claim against the union. 462 U.S. at 163-

64, 171-72. In Richardson, 864 F.2d at 1167, and in Smith v.


     3
      In DelCostello, the Supreme Court acknowledged that a duty
of fair representation suit against a union was “inextricably
interdependent” with a § 301 suit against the employer, for “the
case [the employee] must prove is the same whether he sues one,
the other, or both.” 462 U.S. at 164-65. In order to prove injury
in a duty of fair representation suit against the union, an
employee must show that the employer violated the collective
bargaining agreement, and an employee normally cannot bring a
§ 301 action against his employer unless he can show that the
union breached its duty of fair representation in handling his
grievance. Teamsters v. Terry, 494 U.S. 558, 564 (1990).
Nevertheless, Richardson did not adopt the § 301 standard for
preemption analysis for duty of fair representation claims, and
we are bound to follow Richardson’s approach here.
     Even if we did apply the § 301 standard to Miranda’s claims,
however, it would be clear that his claims are preempted. In
order to show injury from the Defendants’ actions, Miranda would
have to demonstrate that USPS’s adjustment of his seniority
violated the collective bargaining agreement. This demonstration
would require interpretation of the collective bargaining
agreement, thus satisfying the test for preemption under § 301.
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International Organization of Masters, 296 F.3d 380, 382 (5th

Cir. 2002), this court held that the same statute of limitations

applies to duty of fair representation claims brought

independently.

     Miranda filed suit against the Defendants on December 27,

2005. Each of the supposed instances of breach of duty by the

Defendants, the last of which is alleged to have occurred in

December 2004, took place more than six months before Miranda

filed suit. Miranda’s claims are therefore untimely. See 29

U.S.C. § 160(b).

                         IV. CONCLUSION

     Because we agree with the district court that Miranda’s

claims against the Defendants are time barred, we AFFIRM the

order of the district court granting summary judgment to the

Defendants.

     AFFIRMED.




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