                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-1274
                                  ___________

Alfonso A. Waldron, Jr.;               *
Richard J. Clark; Christopher          *
Carmona; Darrell L. Frey;              *
Mark A. White,                         *
                                       * Appeal from the United States
           Plaintiffs/Appellants,      * District Court for the
                                       * Eastern District of Missouri.
     v.                                *
                                       *
The Boeing Company,                    *
                                       *
           Defendant/Appellee.         *
                                  ___________

                            Submitted: September 13, 2004
                               Filed: November 2, 2004
                                ___________

Before BYE, BOWMAN, and MELLOY, Circuit Judges.
                          ___________

BYE, Circuit Judge.

      Five employees of Boeing brought suit against their employer under section
301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, alleging
Boeing breached the terms of a collective bargaining agreement (CBA) between
Boeing and the employees’ union. The district court1 granted Boeing’s motion for


      1
       The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
judgment on the pleadings on the grounds that the employees failed to allege in the
complaint the union breached its duty of fair representation. We affirm.

        We review de novo the district court’s entry of judgment on the pleadings.
Potthoff v. Morin, 245 F.3d 710, 715 (8th Cir. 2001) (citing Nat’l Car Rental Sys.,
Inc. v. Computer Assocs. Int’l, Inc., 991 F.2d 426, 428 (8th Cir. 1993)). A motion for
judgment on the pleadings will be granted “only where the moving party has clearly
established that no material issue of fact remains and the moving party is entitled to
judgment as a matter of law.” Id. In our evaluation of the motion, we accept all facts
pled by the nonmoving party as true and draw all reasonable inferences from the facts
in favor of the nonmovant. Franklin High Yield Tax-Free Income Fund v. County of
Martin, 152 F.3d 736, 738 (8th Cir. 1998) (citing Lion Oil Co. v. Tosco Corp., 90
F.3d 268, 270 (8th Cir. 1996)).

       The complaint alleges the following relevant facts: Boeing is in the business
of manufacturing aircraft and related products. The employees are mechanic-
electrical/electronic (MEE) workers under the terms of a CBA between Boeing and
the union. In 1964, Boeing’s predecessor-in-interest, McDonnell Douglas
Corporation, entered into an agreement with the union which defined the work of
MEE employees and established guidelines limiting the circumstances under which
that work could be assigned to other classifications of employees. The agreement
was reaffirmed by Boeing and the union and remains in effect today. The complaint
alleges Boeing violated the terms of the agreement by assigning the work of MEE
employees to other classifications of employees under circumstances not permitted
by the agreement. The employees also pled that they fully exhausted the grievance
procedures under the CBA.

       The MEE employees contest the district court’s ruling that in order to bring a
suit directly against Boeing for breach of the CBA the MEE employees were required
to allege in the complaint the union breached its duty of fair representation.

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      In Smith v. Evening News Ass’n, 371 U.S. 195 (1962), the Supreme Court held
an employee may file an individual suit that alleges breach of the CBA against his
employer under section 301 of the LMRA. The Supreme Court has also held when
the CBA provides exclusive grievance and arbitration procedures an employee is
generally required to try to exhaust the contractual grievance or arbitration procedures
before filing an individual suit directly against the employer. DelCostello v. Int’l
Bhd. of Teamsters, 462 U.S. 151, 163 (1983) (citing Republic Steel Corp. v. Maddox,
379 U.S. 650 (1965)).2

       The MEE employees’ complaint alleges they have exhausted the CBA
procedures. Once an employee has exhausted the contract procedures, the employee
generally is bound by the results of that process by the finality provision contained
in the CBA. Id. at 164 (citing W.R. Grace & Co. v. Local 759, 461 U.S. 757 (1983);
Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960)); Hines v.
Anchor Motor Freight, Inc., 424 U.S. 554, 562-63 (1976). If an employee does not
agree with the results reached through the procedures of the CBA, the employee, in
order to bring an individual suit directly against the employer for breach of the CBA,
must allege and prove the union breached its duty of fair representation. See Bills v.
United States Steel L.L.C., 267 F.3d 785, 787 (8th Cir. 2001) (citing Carter v. Ford
Motor Co., 121 F.3d 1146, 1149 (8th Cir. 1997)); Trompeter v. Boise Cascade Corp.,
877 F.2d 686, 688 (8th Cir. 1989). This type of “hybrid” action requires the


      2
       There are exceptions to this general rule. An employee is not limited to the
exclusive remedial provisions of the CBA when “the conduct of the employer
amounts to a repudiation of those contractual procedures.” Vaca v. Sipes, 386 U.S.
171, 185 (1967) (citations omitted). Another exception is where “the union has the
sole power under the contract to invoke the higher stages of the grievance procedure”
and “the employee-plaintiff has been prevented from exhausting his contractual
remedies by the union’s wrongful refusal to process the grievance.” Id. The MEE
employees do not contend either one of these exceptions applies.

                                          -3-
employee to show both the union breached its duty of fair representation and the
employer breached the CBA in order to prevail against the employer. Scott v. United
Auto., 242 F.3d 837, 839 (8th Cir. 2001) (citing Vaca, 386 U.S. at 186-87).

        The MEE employees argue the only prerequisite to sue Boeing directly is the
exhaustion of the grievance and arbitration procedures in the CBA because the Smith
opinion does not state an employee is required to prove a claim of breach of the duty
of fair representation against the union. In Smith, however, “[t]here was no grievance
arbitration procedure in the contract which had to be exhausted before recourse could
be had to the courts.” Smith, 371 U.S. at 196 n.1. Thus, the MEE employees’
argument ignores both the context in which the Smith opinion was written and the
relevant case law governing situations in which the contract procedures have been
exhausted.

      The judgment of the district court is affirmed.
                     ______________________________




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