                               PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 14-1854


REBECCA GROVES; JONATHAN HADDEN,

                 Plaintiffs - Appellants,

           v.

COMMUNICATION WORKERS OF AMERICA, Communication Workers of
America District 3; COMMUNICATION WORKERS OF AMERICA, LOCAL
3702,

                 Defendants – Appellees,

           and

AT&T MOBILITY LLC,

                 Defendant.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.   Timothy M. Cain, District Judge.
(8:12−cv−03329−TMC)


Argued:   October 27, 2015                  Decided:   March 10, 2016


Before KEENAN, WYNN, and DIAZ, Circuit Judges.


Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Keenan and Judge Wynn joined.


ARGUED: Jeffrey Parker Dunlaevy, STEPHENSON & MURPHY, LLC,
Greenville, South Carolina, for Appellants.   Tessa Addie-Lee
Warren, QUINN, CONNOR, WEAVER, DAVIES & ROUCO, LLP, Decatur,
Georgia, for Appellees. ON BRIEF: Nancy Jo Thomason, Anderson,
South Carolina, for Appellees.




                              2
DIAZ, Circuit Judge:

      Section      301     of       the        Labor   Management    Relations     Act,    29

U.S.C. § 185, allows litigants to bring “[s]uits for violation

of contracts between an employer and a labor organization” in

federal district court.                   Usually, an employee who wants to sue

his   employer       for        a     violation        of   a    collective     bargaining

agreement must first exhaust the contractual remedies in that

agreement.      Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53

(1965).      “The reasoning behind this rule is simple.                               Federal

labor law policy favors adjustment by the parties of disputes

arising under a collective bargaining agreement.”                             Amburgey v.

Consolidation Coal Co., 923 F.2d 27, 29 (4th Cir. 1991).

      However, in a so-called hybrid § 301 action, an employee

may   forego       exhaustion             by     showing    “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 Am., 276 F.3d 651, 656 (4th Cir.

2002). *   A union breaches its duty of fair representation “if its

actions    are      either          ‘arbitrary,         discriminatory,       or   in     bad



      *While the employee must satisfy both prongs, he need not
sue both his employer and his union. DelCostello v. Int’l Bhd.
of Teamsters, 462 U.S. 151, 165 (1983) (“The employee may, if he
chooses, sue one defendant and not the other; but the case he
must prove is the same whether he sues one, the other, or
both.”).



                                                   3
faith.’”     Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65,

67 (1991) (quoting Vaca v. Sipes, 386 U.S. 171, 190 (1967)).

     Rebecca       Groves      and        Jonathan        Hadden       (collectively,

“Plaintiffs”) sued their employer, AT&T Mobility (“AT&T”); their

union, Communications Workers of America, District 3 (“CWA”);

and CWA’s local affiliate, Local 3702, under § 301.                           Plaintiffs

alleged that AT&T breached their collective bargaining agreement

by wrongfully terminating Plaintiffs’ employment, and that CWA

and Local 3702 breached their duty of fair representation by

failing    to   inform     Plaintiffs      of   a     settlement      offer    for   that

termination.         Plaintiffs     and    AT&T       settled,   and    the     district

court granted CWA and Local 3702’s motion for summary judgment.

Because we find that Plaintiffs’ allegations cannot form the

basis of a hybrid § 301 suit, we affirm.



                                          I.

                                          A.

     Plaintiffs        began      working       for     AT&T     as    retail        sales

consultants in Anderson, South Carolina, in December 2008.                            Both

became     members    of    CWA    and      Local      3702    (collectively,         the

“Union”).       On March 27, 2010, CWA, as the exclusive bargaining

representative       for    Plaintiffs,         entered        into    a      collective

bargaining agreement with AT&T that was effective until February

7, 2014.

                                           4
     Article 7 of the agreement set out the required grievance

procedure     for     allegations       “that     an      employee      has     been

discharged . . . or otherwise disciplined without just cause.”

J.A. 35.      Any grievance not resolved or addressed “informally

with the first level of [m]anagement” had to be submitted by the

Union to AT&T in writing within forty-five days of “the action

complained     of.”     Id.       The       agreement     also   provided       that

“[f]ailure to submit or pursue a grievance under the conditions

and within the time and manner stated above shall be construed

to be a waiver by the employee and the Union of the formal

grievance.”     J.A. 36.       Where such waiver occurred, the Union

could only grieve by “appeal[ing] to arbitration and ask[ing]

the arbitrator to decide the timeliness issue before addressing

the merits.”    J.A. 47.

     New employees received copies of the collective bargaining

agreement and were informed of their right to file grievances at

their orientations.        Both Plaintiffs attended an orientation.

Groves received a copy of the agreement, while Hadden does not

recall if he did.

     Hadden and Groves were fired on May 31, and June 2, 2012,

respectively, for failing to meet sales goals after receiving

previous    disciplinary      warnings.         Neither    Hadden    nor      Groves

contacted the Union about the earlier warnings or about their

terminations    and   neither    filed      a   grievance.       AT&T    does    not

                                        5
notify the Union that it has fired a Union member; generally,

the   Union   learns   of    a     termination     only     when   the   employee

requests that the Union file a grievance.

      On August 22, 2012, Steve Frost, the executive director of

labor relations at AT&T, emailed Betty Witte, CWA administrative

director, to explain that AT&T had discovered in July that the

reports from April and May 2012 that had led to the termination

of sixteen employees, including Plaintiffs, were flawed.                     Frost

asked Witte to reach out to the affected employees to let them

know that AT&T was offering them a settlement of either $2,500

and reinstatement, or $5,000 without reinstatement.                      He asked

for a response by August 31.

      Witte   forwarded     this    email     to   Gerald    Souder,     a   staff

representative   for   CWA.        On   August     24,   Souder    forwarded   the

email to Les Powell, the president of Local 3702, asking him to

contact Plaintiffs, and noting “[t]here may or may not be . . .

a grievance filed.”         J.A. 115.       Souder emailed Powell again on

September 19 because he had received no response.

      Local 3702 had membership cards for Plaintiffs with their

contact information, but Powell admits that he made no attempt

to contact Plaintiffs because they had not filed grievances or

otherwise communicated with the Union.               Souder attested that he

was “under the impression Local 3702 had been unable to contact



                                        6
Plaintiffs,”         J.A.    45,    but    Powell     stated    that    he   never    told

Souder that he could not locate Plaintiffs.

       Groves later learned of the settlement offers independently

and informed Hadden.               Both contacted Souder, who told them that

only    the     $5,000      offer    without       reinstatement   remained      on   the

table.        Plaintiffs each expressed a preference for reinstatement

and a desire to file a grievance.                     Souder responded that there

was no provision for filing a grievance beyond the forty-five-

day limit.

                                              B.

       Plaintiffs sued AT&T and the Union under § 301 of the Labor

Management Relations Act, 29 U.S.C. § 185, alleging that AT&T

breached the collective bargaining agreement by firing them on

the basis of faulty data, and that the Union breached the duty

of     fair    representation         by     failing    to     inform    them    of   the

settlement offers.            Plaintiffs settled with AT&T, and they were

reinstated to their former positions in March 2013.

       Plaintiffs        moved      for    partial      summary    judgment      as    to

liability, and the Union moved for summary judgment.                            After a

hearing,       the    district       court     denied    Plaintiffs’         motion    and

granted the Union’s motion.                   The court held that a threshold

requirement for a § 301 action was to establish that the Union

“breached [its] duty so as to prevent Plaintiffs from exhausting

their claims under the [collective bargaining agreement] against

                                               7
AT&T.”     Groves v. AT&T Mobility, LLC, No. 8:12-3329-TMC, 2014 WL

3809665,     at   *    3     (D.S.C.          Aug.       1,    2014).          Because    Plaintiffs

“argue[d] only that the Union[] failed to timely notify them of

the   settlement        before          it     expired”—and              not    that     “the     Union

breached     a    duty       of        fair     representation             in     regard     to      any

grievances”—Plaintiffs failed to meet that threshold.                                    Id.

      This appeal followed.



                                                 II.

      The central question raised by this appeal is whether a

hybrid    § 301       suit      can      properly             be   used    to    challenge        union

conduct    that,      though       obstructive,                did   not       contribute       to   the

employees’ failure to exhaust their contractual remedies for the

employer’s conduct.               Because such use would extend the hybrid

§ 301 suit beyond its logical scope, we hold that it cannot.

                                                     A.

      We review a district court’s grant or denial of summary

judgment de novo.               Hunter v. Town of Mocksville, 789 F.3d 389,

395   (4th    Cir.     2015),           cert.     denied           136    S.    Ct.    897      (2016).

Summary judgment is appropriate when, viewing the facts in the

light most favorable to the nonmoving party, id., “there is no

genuine    dispute         as     to    any     material           fact    and     the    movant     is

entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a).



                                                     8
                                               B.

       The hybrid § 301 action exists to avoid the “unacceptable

injustice”      that     would    occur    if       an   employee      were    required    to

exhaust     his     contractual        remedies          even     though       “the     union

representing the employee in the grievance/arbitration procedure

act[ed]    in     such    a   discriminatory,             dishonest,        arbitrary,    or

perfunctory        fashion        as      to        breach      its     duty       of    fair

representation.”          DelCostello v. Int’l Bhd. of Teamsters, 462

U.S. 151, 164 (1983).

       The Supreme Court has repeatedly framed the hybrid § 301

action as a solution to that specific injustice: an employee

unable to exhaust contractual remedies because of his union’s

breach of the duty of fair representation.                             Thus, in Vaca v.

Sipes,    the     Court    held    that        an    “employee        may   seek    judicial

enforcement of his contractual rights” where “the union has sole

power under the contract to invoke the higher stages of the

grievance       procedure,       and   if . . . the          employee-plaintiff           has

been prevented from exhausting his contractual remedies by the

union’s wrongful refusal to process the grievance.”                            386 U.S. at

185.     Similarly, in Hines v. Anchor Motor Freight, Inc., the

Court explained that because the contractual remedies for an

employer’s mistreatment of an individual employee are “at least

in their final stages controlled by union and employer,” the

hybrid    § 301    action     provides         an    alternative        remedy     in   cases

                                               9
where the union “refuse[s] to utilize [the contractual remedies]

or,     if      it   does        [utilize       them],       assertedly       [does]      so

discriminatorily or in bad faith.”                  424 U.S. 554, 564 (1976).

       Our      sister      circuits      have      placed     express    and        implied

limitations on the use of the hybrid § 301 action that align

with that understanding of its purpose.                       For example, the First

and    Sixth     Circuits      both     have     causal      nexus    requirements       for

hybrid § 301 claims.              See Blesedell v. Chillicothe Tel. Co., 811

F.3d     211,     221     (6th     Cir.     2016)     (“In     addition       to     proving

arbitrary, discriminatory, or bad-faith conduct, a hybrid-claim

plaintiff must prove that a union’s actions or omissions ‘more

than likely affected’ the outcome of the grievance procedure.”

(quoting Dushaw v. Roadway Express, Inc., 66 F.3d 129, 132 (6th

Cir. 1995))); Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 20

(1st Cir. 2003) (“To reach this [hybrid § 301] safe harbor, the

claimant must prove an erroneous discharge, a breach of duty on

the union’s part, and a causal nexus between the two, that is,

‘that [the] union’s breach of its duty “seriously undermine[d]

the    integrity     of     the    [grievance]       process.”’”       (alterations       in

original) (quoting United Parcel Serv., Inc. v. Mitchell, 451

U.S. 56, 61 (1981))).              The Second Circuit has repeatedly defined

hybrid       § 301   actions       as     involving       claims      “that    the    union

breached      its    duty    of    fair    representation        in    redressing       [the

employee’s] grievance against the employer.”                            White v. White

                                               10
Rose Food, 128 F.3d 110, 113 (2d Cir. 1997); see also McKee v.

Transco Prods., Inc., 874 F.2d 83, 86 (2d Cir. 1989) (“A hybrid

[§ 301] case is one in which the employee has a cause of action

against both the employer and the union. . . . The claim against

the    union    is   that      the   union    did    not    properly       represent      the

employee in pressing his grievance against the employer.”).

                                             C.

       Consistent with these cases, we hold that a hybrid § 301

claim requires an allegation that the union’s breach of its duty

of     fair    representation        played       some     role    in     the    employee’s

failure to exhaust his contractual remedies.                        This understanding

of the hybrid § 301 claim best accords with the Supreme Court’s

articulation of the claim’s purpose, and our sister circuits’

limitations on the claim.              To hold otherwise would transform the

hybrid § 301 suit from a safeguard for wronged employees whose

unions fail to assert the employees’ rights, to a tool to bypass

the normal exhaustion rule for claims against an employer, any

time    employees       also    have   some       unrelated       claim    against       their

union.

       Here, Plaintiffs do not allege that the Union’s conduct

prevented       them    from     grieving         their    terminations          under     the

collective bargaining agreement.                  And because Plaintiffs did not

file a grievance with the Union, the Union did not know that

Plaintiffs       were     terminated—and           therefore       did     not    have     an

                                             11
opportunity to discover that AT&T’s data was flawed—until after

the contractual period for filing a grievance had passed.                                 The

Union’s failure to contact Plaintiffs regarding the settlement

offers     was    irresponsible            at     best,     and     certainly       prevented

Plaintiffs from accepting AT&T’s original reinstatement offer.

However, having waived their right to grieve, Plaintiffs were

not    entitled      to    that      offer       under    the     collective    bargaining

agreement, and the Union’s conduct therefore had nothing to do

with     their    failure       to        vindicate       their     rights    through    the

contractually designated procedures.

       Plaintiffs contend that because they told the Union they

wanted to file grievances as soon as they learned about the

faulty     data,        they    “were        as       diligent      in   pursuing       their

contractual         remedies         as    they       possibly      could     have    been.”

Appellants’ Br. at 16.               This is, at base, a complaint about the

terms    of   the    collective           bargaining      agreement,        which    requires

grievances to be filed within forty-five days “of the action

complained       of,”     and   does       not    have    any     provision    for   tolling

where the underlying facts were unknown or undiscoverable.                              J.A.

35.     Plaintiffs do not allege the Union breached its duty of

fair    representation          in    negotiating         the     collective    bargaining

agreement, and they thus are bound by its terms.

       We do not decide today that an employee must always have

attempted to grieve before he can bring a hybrid § 301 claim.

                                                 12
In a case where an employee’s failure to invoke the grievance

process was caused by the union’s breach of the duty of fair

representation, a hybrid § 301 claim might well be viable.                                We

simply    hold     that        there   must    be   some    causal     nexus    between    a

union’s     breach        of    its    duty    of    fair    representation       and     an

employee’s failure to exhaust contractual remedies.

      Our       holding    is       consistent      with    those    cases     that     have

allowed a hybrid § 301 claim involving a union’s breach of the

duty of fair representation in its negotiation or amendment of

the collective bargaining agreement.                       See Lewis v. Tuscan Dairy

Farms, Inc., 25 F.3d 1138 (2d Cir. 1994); Adkins v. Int’l Union

of Elec., Radio, & Mach. Workers, 769 F.2d 330 (6th Cir. 1985).

In such cases, the employees are not attacking specific actions

by the employers as inconsistent with the collective bargaining

agreement, but rather the terms of the collective bargaining

agreement itself and the union’s role in crafting it.                                  Where

that occurs, the union’s breach would be causally connected to

the   employee’s          failure       to    exhaust,       because     requiring      the

employee to exhaust the allegedly flawed contract’s remedies,

controlled        by   the       allegedly      breaching      union,     would    be     an

“unacceptable injustice.”               DelCostello, 462 U.S. at 164.

      We hasten to add that our decision does not leave employees

without     a    remedy        on   these     facts,   as     Plaintiffs       could    have

brought a stand-alone breach of the duty of fair representation

                                               13
claim against the Union.           See O’Neill, 499 U.S. at 67 (“[T]he

rule announced in [Vaca]—that a union breaches its duty of fair

representation      if     its      actions           are    either       ‘arbitrary,

discriminatory,     or     in      bad     faith’—applies            to   all     union

activity . . . .”       (quoting    386        U.S.   at    190));    Breininger    v.

Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S. 67,

86-87   (1989)   (“The    duty     of    fair     representation . . .           arises

independently    from    the    grant     under . . .        the     [National    Labor

Relations Act] . . . of the union’s exclusive power to represent

all employees in a particular bargaining unit.                       It serves as a

‘bulwark to prevent arbitrary union conduct against individuals

stripped of traditional forms of redress by the provisions of

federal labor law.’” (quoting Vaca, 386 U.S. at 182)).



                                         III.

     Because the undisputed facts make it clear that any breach

of the Union’s duty of fair representation did not contribute to

Plaintiffs’ failure to exhaust their contractual remedies, we

affirm the district court’s judgment.

                                                                             AFFIRMED




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