                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                    February 1, 2007
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    J.D. RO BERTSON; J.E. W INTER S;
    R.K. LUNA; W .G. W ILK INS; J.
    M AXW ELL; T.L. PAYN E; JERRY
    W ILLIAM S; E.D. IRVIN; L.J.
    PA Y N E; G .W. B RA D SH A W; W.D.
    B OH A N NON ; LER OY G A RM AN,

             Plaintiffs-Appellants,                     No. 06-7058
                                                  (D.C. No. 05-CV-325-W )
     v.                                                 (E.D. Okla.)

    B URLING TO N N O RTH ER N AND
    SANTA FE RAILW AY COM PANY, a
    corporation; UN ITED
    TR AN SPO RTA TIO N U N IO N
    (“UTU”), an unincorporated
    organization,

             Defendants-Appellees.



                            OR D ER AND JUDGM ENT *


Before HO LM ES, M cKA Y, and BROR BY, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Plaintiffs were trainmen for defendant Burlington Northern and Santa Fe

Railway Company (BNSF) 1 who were furloughed in 1987 when BNSF sold its

line in their seniority district. In 1995, BNSF and defendant United

Transportation Union (UTU), executed an agreement that created a new

consolidated seniority district, altering employment rights of the trainmen

affected.

      Ten years later, plaintiffs filed this suit alleging that (1) BNSF “breached

the [1995 agreement] by failing to recall any of the furloughed plaintiffs and by

failing to notify the union or the furloughed employees of employment openings”;

(2) U TU “breached its duty of fair representation of union members by failing to

notify the plaintiffs of the provisions of the [1995 agreement] which affected

them and failing to monitor job openings at [BNSF]”; (3) “as a result of the joint

silence of the defendants, the plaintiffs were wholly without knowledge of the

agreement and their rights thereunder”; and (4) “had [BNSF] complied with the

provisions of the agreement, all plaintiffs w ould have been recalled to work with

much greater compensation and benefits than they were then receiving from their

then current employment.” Aplt. A pp. at 14-15.



1
       M ore precisely, plaintiffs were employed by a predecessor of       BN SF,
Burlington Northern Railroad Company (BN). BN merged with the              Atchison,
Topeka and Santa Fe Railway in 1995 to form BNSF. For purposes             of resolving
the issues in this appeal, the distinction betw een the tw o companies     is immaterial.
In the interest of clarity and consistency, we will refer to plaintiffs’   employer
throughout this order and judgment as BNSF.

                                          -2-
      The district court granted defendants’ motions for summary judgment, and

plaintiffs now appeal. W e review the district court’s decision de novo. See

Hagerman v. United Transp. Union, 281 F.3d 1189, 1194 (10th Cir. 2002). For

the reasons noted below, we AFFIRM .

      It has long been recognized that the N ational Railroad Adjustment Board

(N RAB) has exclusive jurisdiction under the Railway Labor A ct to arbitrate

employment-related disputes between rail carriers and their employees. See, e.g.,

Glover v. St. Louis-San Francisco Ry., 393 U.S. 324, 328 (1969) (applying

45 U.S.C. § 153 First (I)). It is also “beyond cavil that a suit against the [rail

employees’] union for breach of its duty of fair representation is not within the

[NRAB’s] jurisdiction.” Czosek v. O’Mara, 397 U.S. 25, 27-28 (1970). W hen

interrelated claims of both types are present, they may be joined together in a

single “hybrid” suit cognizable in federal court. Hagerman, 281 F.3d at 1194; see

Richins v. S. Pac. Co., 620 F.2d 761, 762-63 (10th Cir. 1980). In such a suit,

given the NRAB’s otherwise exclusive authority over employment disputes, “a

viable duty-of-fair-representation claim against an employee’s union is the

jurisdictional predicate for a correlative claim against the employer.” Spaulding

v. United Transp. Union, 279 F.3d 901, 912 (10th Cir. 2002). Thus, if the claim

against the union fails, the claim against the employer fails as well. See, e.g.,

M artin v. Am. Airlines, Inc., 390 F.3d 601, 608 (8th Cir. 2004); Ayala v. Union

De Tronquistas De Puerto Rico, 74 F.3d 344, 346 (1st Cir. 1996).

                                          -3-
      Plaintiffs’ allegations regarding the effectuation of the 1995 agreement

implicate the duty of fair representation, which applies “during the negotiation,

administration, and enforcement of collective-bargaining agreements.” Int’l Bhd.

of Elec. Workers v. Foust, 442 U.S. 42, 47 (1979); see Air Line Pilots Ass’n Intl.

v. O’Neill, 499 U.S. 65, 67 (1991) (acknowledging that duty of fair representation

“applies to all union activity, including contract negotiation”). However, to

establish that UTU breached that duty, plaintiffs must show that it engaged in a

specific kind of misconduct. Unions breach the duty of fair representation when

they act in a manner that is “arbitrary, discriminatory, or in bad faith.” M arquez

v. Screen Actors Guild, Inc., 525 U.S. 33, 44 (1998) (following Vaca v. Sipes, 386

U.S. 171, 177 (1967)). The district court correctly held that evidence of such

misconduct was absent here.

      Plaintiffs did not assert discrimination or bad faith on the part of UTU, nor

did they assert facts reflecting such wrongful motivation. See, e.g., Schwartz v.

Bhd. of M aint. of Way Em ployees, 264 F.3d 1181, 1185-86 (10th Cir. 2001)

(holding plaintiffs showed neither discrimination, which requires invidious

motive, nor bad faith, which requires fraud, deceit, or dishonesty). To premise

liability on “arbitrary” action, plaintiffs must point to conduct “so far outside a

wide range of reasonableness as to be irrational.” O’Neill, 499 U.S. at 67

(quotation and citation omitted); see M arquez, 525 U.S. at 45 (reaffirming O’Neill

standard). Plaintiffs have not done so. Among other things, UTU has argued

                                          -4-
persuasively that its failure to notify plaintiffs of the 1995 agreement was

reasonable because that agreement did not encompass plaintiffs’ seniority district.

Under industry practice, it apparently would not have been reasonable for the

agreement to include plaintiffs’ district because it had no available w ork to

contribute to the agreement after BNSF sold its line in 1987 (that is, the district

had no jobs that out-of-district trainmen covered by the 1995 agreement could bid

on).

       M ost significantly, negligence is a legally insufficient basis for a fair-

representation claim: “mere negligence, even in the enforcement of a

collective-bargaining agreement, would not state a claim for breach of the duty of

fair representation.” United Steelworkers of Am. v. Rawson, 495 U.S. 362, 372-73

(1990). Consistent with the pleadings, which sought redress for harm caused

“[b]y reason of the neglect of defendants,” Aplt. App. at 15, all of the plaintiffs

acknowledged that their claim against UTU was based on negligence, see id. at

209-10, 225, 244-45, 263-64, 278, 286, 301-02, 352-53, 362, 377-78, 391,

399-400. That acknowledgment is fatal to their claim.

       Plaintiffs argue in their reply brief that this court recognized a fourth,

alternative basis for a fair representation claim, i.e., “perfunctory” disregard of

union members’ interests, see Webb v. ABF Freight Sys., Inc., 155 F.3d 1230,

1239-40 (10th C ir. 1998), w hich they contend supports their case. However, w e

decline to consider this belated argument. See Tele-Communications, Inc. v.


                                           -5-
Comm’r, 104 F.3d 1229, 1233 (10th Cir. 1997) (“[T]o preserve the integrity of the

appellate structure, we should not be considered a ‘second-shot’ forum, a forum

where secondary, back-up theories may be mounted for the first time.”); United

States v. M urray, 82 F.3d 361, 363 n.3 (10th Cir. 1996) (declining to reach point

first raised in reply brief). 2 Plaintiffs w ill not be permitted at this late date to

recast the factual premise for their claim. Throughout this litigation, plaintiffs

have complained of negligence. And now they must abide by the consequences;

negligence simply is not enough.

       Because plaintiffs have failed to assert a viable fair-representation claim

against U TU, their correlative contract claim against BNSF lacks its


2
        It is true, as we noted in Webb, that the Supreme Court has referred to
perfunctory conduct in connection with the duty of fair representation. See, e.g.,
Int’l Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 864 n.6 (1987) (quoting
DelCostello v. Int’l Bhd. of Team sters, 462 U.S. 151, 164 (1983)). It is not clear,
however, that the Court intended to create a wholly separate basis for union
liability beyond the three grounds stated in its seminal Vaca decision. See
generally Vaca v. Sipes, 386 U.S. 171, 190 (1967). Indeed, after Webb, the C ourt
reaffirmed the Vaca formulation, which it specifically characterized as a
“tripartite standard.” M arquez, 525 U.S. at 44. Instead, in referring to
perfunctory conduct, the Court appears to have been providing a particular
example of conduct actionable under the tripartite standard. See Foust, 442 U.S.
at 47 (“[A] union breaches its duty when its conduct is ‘arbitrary, discriminatory,
or in bad faith,’ as, for example, when it ‘arbitrarily ignore[s] a meritorious
grievance or process[es] it in [a] perfunctory fashion.’” (quoting Vaca, 386 U.S.
at 190-91)); Webb, 155 F.3d at 1240 (noting that “it is easy to read” the Court’s
references to perfunctory conduct “as merely expressing a concrete example of
the kind of specific conduct prohibited by the tripartite standard”); see also
Schwartz, 264 F.3d at 1185 (reading Webb as concluding that perfunctory conduct
“may be actionable in certain contexts or as a specific type of arbitrary conduct”).
In any event, we need not determine here the precise role perfunctory conduct
plays in the law governing fair representation claims.

                                            -6-
“jurisdictional predicate.” Spaulding, 279 F.3d at 912. Accordingly, the district

court correctly rejected it.

      The judgment of the district court is AFFIRM ED.



                                                   Entered for the Court



                                                   Jerome A. Holmes
                                                   Circuit Judge




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