                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                    FILED
                      ________________________         U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            November 14, 2007
                             No. 07-11813
                                                          THOMAS K. KAHN
                         Non-Argument Calendar                  CLERK
                       ________________________

                 D. C. Docket No. 05-01601-CV-ORL-KRS

BARBARA J. BARRINGTON,


                                                          Plaintiff-Appellant,

                                  versus

LOCKHEED MARTIN,
U.A.W. LOCAL 788, International Union
of Automobile, Aerospace-Agricultural
Implement Workers of America,


                                                        Defendants-Appellees.
                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                           (November 14, 2007)

Before ANDERSON, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:
      Barbara Barrington, proceeding pro se, appeals the district court’s grant of

summary judgment in favor of Lockheed Martin (“Lockheed”) and the

International Union of Automobile, Aerospace Workers of America Local Union

788 (“the Union”). After a thorough review of the record, we conclude that the

district court properly granted summary judgment because Barrington failed to

provide any evidence that the Union breached its duty of fair representation.

Accordingly, we affirm.

      I. Background

      Barrington was terminated from her employment with Lockheed after she

cut co-worker Rickey Wilson’s hair without permission. Although Wilson was

not upset, he filed a complaint with Lockheed, which he later sought to rescind.

Thereafter, Barrington and two female co-workers engaged in a confrontation in

the restroom, apparently because Barrington believed that these women had

bullied Wilson into filing the complaint in an effort to have her fired. Based on

this incident, Barrington filed defamation suits in state court against the two

co-workers, although she later voluntarily dismissed the cases. Lockheed then

terminated Barrington’s employment on the grounds that her conduct violated

workplace rules against violent behavior, inappropriate contact, and horseplay.

Barrington proceeded through the Union’s grievance process under the collective

                                          2
bargaining agreement (“CBA”), challenging her termination and defending her

interaction with Wilson. At the first arbitration hearing, Barrington did not testify

or present any witnesses on the advice of her Union representative, Michael

Barnette. Barnette had determined that Lockheed had not met its burden to show

cause for Barrington’s termination, and that presenting evidence or allowing

Barrington to testify would open the door to issues likely to place Barrington in a

bad light. Unhappy with Barnette’s advice, Barrington requested a continuance

and notified the Union and the arbitrator that she wished to testify. The arbitrator

re-opened the proceedings to permit Barrington to testify and present other

witnesses. During the proceedings, Barrington believed that Barnette was angry

with her and that the arbitrator had become biased against her, and requested that

both Barnette and the arbitrator be replaced. The Union declined to do so.

Although the arbitrator found that the hair-cutting incident did not provide just

cause for termination, the arbitrator ultimately upheld the termination given

Barrington’s other misconduct of filing frivolous lawsuits. The Union did not

appeal. Barrington then filed the instant motion to vacate an arbitration award,

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

§ 185, and the Federal Arbitration Act (“FAA”), 9 U.S.C. § 10, on the grounds that

the arbitrator exceeded his powers and engaged in fraud, and that the Union

                                          3
breached its duty of fair representation.

       The court granted summary judgment in favor of Lockheed and the Union,

finding that the Union had not breached its duty of fair representation, as its

actions were supported by rational explanations, were not discriminatory, and

there was no evidence the Union acted in bad faith, and that Barrington could not

establish a claim under § 301 of the LMRA if she could not show any breach.1

Barrington now appeals.

       II. Analysis2

       Barrington identifies the following instances in which the Union breached



       1
         The district court also concluded that Barrington’s failure to exhaust administrative
remedies should be excused. Although the Union challenges this finding, it did not file a cross-
appeal. Therefore, we lack jurisdiction to address this issue. Sizzler Family Steak Houses v.
Western Sizzlin Steak House, 793 F.2d 1529, 1541 (11th Cir. 1986); see also Fed. R. App. P.
4(a)(3).
       2
           Barrington seeks relief under both § 301 of the LMRA and the FAA. This circuit has not
determined whether the FAA applies to issues arising under CBA’s. And we need not reach this
issue in this case because, even if the FAA applied, Barrington has not shown that the arbitrator’s
award was “procured by corruption, fraud, or undue means,” that there was “evident partiality or
corruption in the arbitrators,” or that the “arbitrators exceeded their powers.” 9 U.S.C. § 10(a); B.L.
Harbert Int’l, LLC v. Hercules Steel Co., 441 F.3d 905, 909-10 & n.2 (11th Cir. 2006). Nor has she
established that the “the award was arbitrary and capricious.” B.L. Harbert Int’l, LLC, 441 F.3d at
910 (internal citations omitted). In her own testimony, Barrington admitted that she had no evidence
that the arbitrator committed fraud or was biased against her. She simply believed that this was the
case. Moreover, there is no evidence that the arbitrator exceeded his powers in reaching his decision.
Essentially, Barrington misunderstands the arbitrator’s role and what evidence he may properly
consider. The fact that Barrington did not include the incidents with other co-workers in her
grievances did not prevent the arbitrator from considering such conduct when it was presented as
evidence in Barrington’s own testimony at the hearing. Therefore, summary judgment was proper
on this claim.

                                                  4
its duty of fair representation: (1) she was not permitted to testify or call her own

witnesses at the first arbitration hearing; (2) the Union representative engaged in

ex parte communications with the arbitrator; (3) the Union representative refused

to consider issues she wanted included in the appellate brief; (4) the Union refused

to replace the arbitrator upon her request; and (5) the Union refused to appeal the

arbitrator’s award. She further contends that the arbitrator was biased, engaged in

fraud, and exceeded his authority by considering evidence not properly before

him.

       We review a district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the party opposing the motion. Skrtich

v. Thorton, 280 F.3d 1295, 1299 (11th Cir. 2002). Summary judgment is

appropriate if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show there is no genuine

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

matter of law. Fed. R. Civ. P. 56(c); Eberhardt v. Waters, 901 F.2d 1578, 1580

(11th Cir. 1990).

       We have jurisdiction to review decisions of labor arbitrators under § 301 of

the LMRA, which permits individual employees to seek review of decisions

related to, inter alia, wrongful discharge. See Major League Baseball Players

                                           5
Ass’n v. Garvey, 532 U.S. 504, 509, 121 S.Ct. 1724, 1728 (2001); Darden v.

United States Steel Corp., 830 F.2d 1116, 1119 (11th Cir. 1987).

      “[R]eview of a labor arbitration award is limited to a determination of

whether an award is irrational, whether it fails to draw its essence from the

collective bargaining agreement or whether it exceeds the scope of the arbitrator’s

authority.” Osram Sylvania, Inc. v. Teamsters Local Union 528, 87 F.3d 1261,

1263 (11th Cir. 1996) (quotation marks omitted). Nevertheless, “as long as the

arbitrator is even arguably construing or applying the contract and acting within

the scope of his authority, that a court is convinced he committed serious error

does not suffice to overturn his decision.” Id. (quoting United Paperworkers v.

Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 371 (1987)). “It is only when the

arbitrator strays from interpretation and application of the agreement and

effectively dispenses his own brand of industrial justice that his decision may be

unenforceable.” Garvey, 532 U.S. at 509 (internal quotation marks and alteration

omitted).

      To succeed on a § 301 claim, Barrington must show that the Union breached

its duty of fair representation. This issue presents a question of law that we review

de novo. Bianchi v. Roadway Express, Inc., 441 F.3d 1278, 1282 (11th Cir.), cert.

denied, 127 S.Ct. 397 (2006).

                                          6
      A labor union has a statutory duty of fair representation “to serve the

interests of all members without hostility or discrimination toward any, to exercise

its discretion with complete good faith and honesty, and to avoid arbitrary

conduct.” Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910 (1967). If the

union representing the employee “acts in such a discriminatory, dishonest,

arbitrary, or perfunctory fashion as to breach its duty of fair representation,” an

employee may sue both the employer and the union, regardless of the outcome or

finality of the grievance or arbitration proceeding. DelCostello v. Int’l

Brotherhood of Teamsters, 462 U.S. 151, 164, 103 S.Ct. 2281, 2290 (1983). Such

a suit consists of two causes of action: one against the employer under § 301 for

breach of the CBA, and the other against the union for breach of the union’s duty

of fair representation. Id. Thus, to prevail, a plaintiff must demonstrate both that

the CBA was breached and that the union breached its duty of fair representation.

DelCostello, 462 U.S. at 165; Hines v. Anchor Motor Freight, Inc., 424 U.S. 554,

570, 96 S.Ct. 1048, 1059 (1976)

      A union breaches its duty of fair representation only if its actions toward a

member are “arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S. 190. “[A]

union’s actions are arbitrary only if, in light of the factual and legal landscape at

the time of the union’s actions, the union’s behavior is so far outside a ‘wide range

                                           7
of reasonableness’ as to be irrational.” Air Line Pilots Ass’n, Int’l v. O’Neill, 499

U.S. 65, 67, 111 S.Ct. 1127, 1130 (1991) (internal citation omitted). Nevertheless,

“[a] union’s broad discretion in prosecuting grievance complaints includes not

only the right to settle the dispute short of arbitration but also to refuse to initiate

the first steps in the appeal procedure when it believes the grievance to be without

merit.” See Turner v. Air Transport Dispatchers’ Ass’n, 468 F.2d 297, 300 (5th

Cir. 1972).3

       Here, the district court properly granted summary judgment because there

was no evidence that the Union breached its duty by acting arbitrarily or in bad

faith.4 According to the records, Barnette’s decisions were supported by

reasonable strategy. Barnette explained that he did not want Barrington to testify

because Lockheed had not met its burden to establish cause for Barrington’s

termination, and Barrington’s testimony would only open the door to other issues.

Barrington was able to testify and present her witnesses at the re-opening of the

proceedings. And as the arbitrator explained, his decision to uphold the

termination was not based on the hair-cutting incident, but rather resulted from

       3
         In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this court
held that all decisions handed down by the old Fifth Circuit before the close of business on
September 30, 1981, are binding precedent in the Eleventh Circuit.
       4
          Barrington does not argue, and there is no evidence to support a claim that the Union acted
in a discriminatory fashion.

                                                 8
Barrington’s own testimony that she engaged in other misconduct that would

justify termination.

      Moreover, a review of the record established that Barnette incorporated

Barrington’s issues into his appellate brief. Furthermore, according to the

evidence, the Union’s own policy was not to appeal arbitration awards. There was

nothing arbitrary or discriminatory about its refusal to do so in Barrington’s case.

      Because Barrington cannot establish a breach by the Union, she cannot

succeed on her § 301 claim, and we need not consider whether Lockheed breached

the CBA, or whether the arbitration award should have been vacated.

Accordingly, we AFFIRM.




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