                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 10 2003
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 DIANN TRAFFAS,

               Plaintiff - Appellant,                       No. 02-3218
          v.                                                (D. Kansas)
 CESSNA AIRCRAFT COMPANY, a                     (D.C. No. 01-CV-1255-JTM)
 division of Textron Corporation;
 LOCAL LODGE 774 OF THE
 INTERNATIONAL ASSOCIATION OF
 MACHINISTS AND AEROSPACE
 WORKERS (AFL-CIO),

               Defendants - Appellees.


                             ORDER AND JUDGMENT         *




Before HENRY , ANDERSON , and O’BRIEN , Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
without oral argument. See Fed. R. App. P. 34(f);10th Cir. R. 34.1(G). The case

is therefore submitted without oral argument.

      Diann Traffas appeals from an adverse summary judgment dismissing her

action brought under § 301 of the Labor Management Relations Act (LMRA), 29

U.S.C. § 185, against the Cessna Aircraft Company (Cessna) and Local Lodge

774 of the International Association of Machinists (the Union). Ms. Traffas’s

suit, commonly referred to as a “hybrid” action, alleges that Cessna breached the

collective bargaining agreement (CBA) between Cessna and the Union when it

extended her probationary period of employment and then terminated her

employment during the extended period. Ms. Traffas contends that the Union

breached its duty of fair representation by agreeing to the probationary period

extension and by refusing to represent her upon the termination of her

employment.   1



      On appeal, Ms. Traffas reasserts her arguments in the district court,

contending, inter alia , that the district court erred in its interpretation and

application of the CBA with respect to the commencement of an employee’s

probationary period, and whether the period can be extended. She also argues


      1
       The complaint, as refined in the pretrial order, additionally alleged a Title
VII cause of action for retaliation. 42 U.S.C. § 2000e-3(a). The district court
also granted Cessna’s motion for summary judgment on that claim. On appeal,
Ms. Traffas does not develop any challenge to that ruling. Accordingly, we do
not address the subject.

                                           -2-
that the question as to whether the Union breached its duty of fair representation

should be submitted to a jury.

       Our review of the district court’s summary judgment is     de novo , applying

the same standard as the district court.   Nelson v. Holmes Freight Lines, Inc.     , 37

F.3d 591 (10th Cir. 1994). Summary judgment is appropriate if “there is no

genuine issue as to any material fact and . . . the moving party is entitled to a

judgment as a matter of law.” Fed R. Civ. P. 56(c);     Anderson v. Liberty Lobby,

Inc. , 477 U.S. 242, 250-52, 256 (1986). For the reasons set out below, we affirm.



                                     BACKGROUND

       The district court fully set out the facts of this case in its Memorandum

Order, filed May 22, 2002. We refer here only to those facts central to this

appeal.

       Ms. Traffas was employed by Cessna on May 15, 2000, beginning as a

sheet metal trainee at Cessna’s 21st Street Facility in Wichita, Kansas. On

October 3, 2000, she was transferred to the Wichita Area Vocational-Technical

School for further training. Upon completion of her training, on October 23,

2000, she began working at Cessna’s Mid-Continent Facility where she was

assigned to Department 134, the sand and fill area.




                                           -3-
       In late November and early December 2000, two or three incidents

involving Ms. Traffas and allegations of inappropriate comments and conduct

occurred, resulting in investigations by Cessna personnel. On December 13,

2000, Cessna’s labor relations representative, Traffas’s supervisors, and a union

representative met with Traffas and informed her that her status as a probationary

employee was going to be extended 60 days. On December 19, 2000, Ms. Traffas,

a Cessna manager, and Ms. Traffas’s Union steward signed a written agreement

extending Ms. Traffas’s probationary period for 60 days from the expiration of

her original 75-day probation. The agreement states in part that the extension is

“[i]n order to determine if   probationary employee   Diann Traffis [sic], badge

#40773, can develop the skills necessary    to become a bargaining unit employee

. . . .” Aplt’s App. (hereafter “App.”) Vol. 3 at 0572 (emphasis added).

Ms. Traffas wrote “under protest” beneath her signature.

       Ms. Traffas was advised that if she did not agree to the further probationary

period, she would be terminated immediately. The record supports the conclusion

that Cessna would in fact have terminated her if she had not agreed to the

extension, and would have done so with Union approval. It is undisputed that

Cessna, with Union approval, had for years extended an employee’s probation

because of questionable attendance, performance or conduct issues; and, that this

was the accepted alternative to discharge during the probationary period. Thus, as


                                           -4-
the district court correctly concluded in its Memorandum Order, the extension of

Ms. Traffas’s probation “occurred consistent with the past practice of the

employer and the Union.” App. Vol. 2 at 0871.

       On February 13, 2001, Ms. Traffas made an inappropriate comment about,

and within hearing of, a co-worker. Upon receiving a report of the incident,

Cessna investigated, and then terminated Ms. Traffas’s employment on

February 14, 2001. She then approached the Union to file a grievance.

However, the Union declined to represent her because she was still in

probationary status.



                                    DISCUSSION

       In her complaint Ms. Traffas denominates this suit as a “hybrid” action

(where the alleged wrongful conduct of the employer and that of the Union are

intertwined), under § 301 of the LMRA. App. Vol. 1 at 0001. In a hybrid action

the plaintiff must prove   both that the employer violated the collective bargaining

agreement with the Union     and that the Union breached its duty of fair

representation.   See Young v. UAW-LETC , 95 F.3d 992, 996 (10th Cir. 1996);

Jarvis v. Nobel/Sysco Food Servs. Co.    , 985 F.2d 1419, 1422 (10th Cir. 1993).

That requirement is incorporated in the pretrial order in this case. App. Vol. 1 at

0027-0028.


                                          -5-
                                         A.

      Ms. Traffas does not dispute that if she was still in a probationary status

when she was terminated on February 14, 2001, then neither of the requirements

of a hybrid suit are satisfied. That is, the termination would not have violated the

CBA, and she would have no claim concerning the Union’s duty of fair

representation. Thus, a major issue on appeal is whether or not Ms. Traffas was

still a probationary employee at the time she was terminated. She focuses her

argument on the extension, contending first that her probationary period had

already expired by December 19, 2000, and, the CBA does not provide for the

revival or creation of a new probationary period after the protections of the CBA

have attached. Second, she argues that even if she was still in a probationary

status on December 19, 2000, the CBA does not allow extensions of that status.



                                         1.

      The first question, then, is when did Ms. Traffas’s probationary period

start? In support of her arguments that her probation had already been served,

and had expired by the time she began work at the Mid-Continent Facility on

October 23, 2000 (and, therefore, was not on probation in December when the

“extension” was signed), Ms. Traffas relies primarily on Article VI of the CBA

which provides in relevant part as follows:


                                         -6-
                                ARTICLE VI
                     Dismissal and Grievance Procedure
      Section A – Dismissal Procedure

      42.    Any person who has been an employee of the Company
      seventy-five (75) calendar days or less is considered a probationary
      employee and may be discharged or laid off without cause at the
      discretion of the Company, and such proceedings shall be the sole
      right of the Company.

             ...

      44.    All employees who have been in the continuous employment of
      the Company for a period of more than seventy-five (75) calendar
      days may be discharged by the Company for cause such as the
      following: Insubordination, intoxication, or being under the influence
      of intoxicating liquor or drugs while on duty, gross inefficiency,
      breach of trust, including commission or concealment of errors,
      sabotage, and excessive absences.

App. Vol. 1 at 0094.

      Referring to the term “employee” in Article VI, she reasons that the 75-day

probationary period commenced when she was first hired as a trainee on May 15,

2000, because the term “employee” as defined by the Fair Labor Standards Act

includes trainees, and, for that matter, virtually anyone receiving compensation

from, and rendering a benefit to, the employer.

      She contends, in the alternative, that in July or August 2000, while she was

at the 21st Street Training Facility, her probation, or any future probation, ended

because she worked at some “covered” jobs on the subassembly side of the




                                         -7-
facility. She asserts that as soon as she began doing that particular work, she

became a full-fledged member of the bargaining unit. Appellant’s Br. at 12-15.

      Cessna and the Union respond that the record shows Ms. Traffas to have

been a trainee until she was transferred from the Vo-Ed school to the Mid-

Continent Facility on October 23, 2000, at which time her 75-day probationary

period started. They contend that the word “employee” as used in the CBA refers

to employees in the bargaining unit rather than anyone who is employed by

Cessna, including trainees; so the FLSA definition of “employee” is irrelevant.

Thus, they conclude, Ms. Traffas was still in her probationary period on

December 19, 2000, when her probation was extended.

      The record fully supports the latter position. Ms. Traffas stipulated in the

pretrial order as follows:

      4.     STIPULATIONS.

             a.     The following facts are uncontroverted:

                    ....

                    (2)      During plaintiff’s training period at the 21st Street
                             Facility, she was not covered by the collective
                             bargaining agreement.

                    ....

                    (11)     Plaintiff’s 75 day probationary period started on
                             October 23, 2000.



                                            -8-
App. Vol. 1 at 0022.    2



       Those stipulations are consistent with Ms. Traffas’s own deposition

testimony in which she acknowledged that it was her understanding that her 75-

day probationary status commenced on October 23, 2000, when she reported for

work at the Mid-Continent Facility, and, that she was still in that probationary

status on December 19, 2000.         Id. at 0061-64, 0067.

       Additionally, in Article I, ¶¶ 3 and 8, the CBA itself defines employees in

the bargaining unit, and covered locations—which do not include the 21st Street

Training Facility.     Id. at 0088. And, ¶ 127 of the CBA provides:

       127. Any employee transferring out of the bargaining unit after
       January 1, 1988, will cease to accumulate bargaining unit seniority
       while in positions outside of the bargaining unit. If such employee
       returns to the bargaining unit, they shall only be allowed to utilize
       the seniority they have accumulated in the bargaining unit.   It is
       understood between the parties than any company employee who has
       never been in the bargaining unit shall not be allowed to be placed in
       a bargaining unit position except as a new hire as far as seniority is
       concerned.

Id. at 0107 (emphasis added).    3




       2
        After the defendants filed their motions for summary judgment, counsel
for Traffas filed a motion seeking to be relieved of paragraph 4.a.(11) of the
pretrial order on the ground of inadvertence. App. Vol. 1 at 0296. The motion
concluded by stating that “[t]o allow the stipulation to remain in the pretrial order
would be fatal to plaintiff’s case . . . .” Id. at 0299. The district court denied the
motion. App. Vol. 2 at 0865. That ruling is not challenged on appeal. Thus, we
take the stipulated facts as they stand in the record.
       3
           Ms. Traffas contends that paragraph 127 supports her position because it
                                                                        (continued...)

                                             -9-
      Furthermore, Ms. Traffas did not make bargaining agreement wages until

October 23, 2000. CBA ¶¶ 77-79,         id. at 0100-101, App. Vol. 3 at 0197. And,

her job classification did not change until that date. App. Vol. 3 at 0197. It is

evident from her job classification record, and from her own deposition testimony

that although Ms. Traffas did some work at the subassembly side of the 21st

Street Facility during, perhaps, July or August 2000 (she was unsure of the dates

in her deposition), that was part of her training, not an entry into a bargaining

unit. Id. ; App. Vol. 2 at 0486-0496.   4



      In sum, we conclude that Ms. Traffas’s 75-day probation period

commenced on October 23, 2000, when she began work at Cessna’s Mid-

Continent Facility, and that she was still on probation on December 19, 2000,


      3
        (...continued)
fails to mention probation along with seniority when referring to employees who
are first placed in a bargaining unit as “new hires.” App. Vol. 2 at 0366. We are
unpersuaded. The defendants’ commonsense inference from this provision is the
more logical interpretation.
      4
       Ms. Traffas also contends that a February 15, 1990, letter from Cessna to
the Union—before the 21st Street Facility was built and more than six years prior
to the CBA at issue—proves that some bargaining unit members would be
stationed at the facility, and some covered work would be done there. Traffas
reasons that, therefore, when she did some of that work she became a member of
the bargaining unit and her probationary period ended. We disagree. Two letters
from the Union at that time, February 9, 1990, and February 15, 1990, if anything,
prove that trainees will continue to be just that—trainees—while learning to do
some subassembly jobs. App. Vol. 3 at 0667-0671. And, again, reference to Ms.
Traffas’s job classification record, id. at 0197, and her deposition, App. Vol. 2 at
0486-0496, show that she continued in a training status.

                                            -10-
when the agreement to extend her probation was signed. That conclusion

distinguishes this case from the one upon which Ms. Traffas places her principal

reliance, Bennett v. Local Union No. 66, Glass, Molders, Pottery, Plastics or

Allied Workers Int’l Union , 958 F.2d 1429 (7th Cir. 1992). In   Bennett , the

employer essentially attempted to create a new probationary period after the

initial period had expired and the full protections of the CBA had attached. The

Seventh Circuit held that probation could not be retroactively revived. That is not

the issue here.



                                          2.

      Ms. Traffas contends in the alternative that even if her 75-day probationary

period began on October 23, 2000—and, therefore, was still in effect on

December 19, when her probation was extended—the CBA contains no provision

for extending an existing probationary period. Rather, she argues, Article VI

stands unambiguously for the proposition that the period cannot be extended.

Thus, she asserts, the extension constituted a breach of the plain terms of the

CBA, and she was not in a probationary status when she was terminated on

February 14, 2001. Proceeding on the premise that the CBA does not permit

extensions of probation, she cites a number of cases standing for the general

propositions that employers and unions: (a) cannot ignore the unambiguous terms


                                         -11-
of the CBA; (b) changes in or modifications to the CBA must be made through

the collective bargaining process; (c) individual side agreements contrary to the

CBA are prohibited; and (d) that it is improper to rely on extrinsic evidence of

intent such as “past practice” or the “common law of the shop” when the CBA is

unambiguous and a gap does not need to be filled. In particular, she claims that

the district court erred by referring to the not-uncommon practice by Cessna,

approved by the Union, of extending periods of probation.

      The authorities cited by Ms. Traffas for these general propositions are all

distinguishable from this case. They become generally relevant only when one

accepts her premise that the CBA at issue here clearly and unambiguously

prohibits extensions for existing probationary periods.

      Cessna and the Union insist, and the district court at least impliedly found,

that because the CBA is completely silent as to extensions of probation, it is

ambiguous on the point, or there is a gap in the CBA, which permits the court to

take past practice into consideration. Further, Cessna and the Union argue, and

the district court expressly concluded, that the extension here was consistent with

the CBA. See Memorandum Order at 5-6, App. Vol. 2 at 0870-0871.

      Article VI of the CBA, set out in part, above, could support an argument

either way. That is, if an extension is not expressly permitted, it is prohibited.

Or, the provision’s silence on the subject creates a gap in the agreement, or at


                                         -12-
least renders it ambiguous, allowing for reference to past practice and the obvious

intent of the parties to give probationary employees a further chance instead of

terminating them.

       We are inclined to the latter view, which was the substance of the district

court’s opinion on the subject. However, it is not necessary to rest our

disposition on the point because, as discussed below, we conclude that the Union

did not breach its duty of fair representation, and summary judgment on that point

was not improper.



                                            B.

       The Supreme Court has made it clear that the Union breaches its statutory

duty of fair representation only when its conduct toward a covered employee is

arbitrary, discriminatory, or in bad faith, and so far outside the wide range of

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

U.S. 65, 67, 81 (1991);    Vaca v. Sipes , 386 U.S. 171, 190 (1967);    James v. Int’l

Bhd. of Locomotive Eng’rs , 302 F.3d 1139, 1145 (10th Cir. 2002).

       In Nelson v. Holmes Freight Lines, Inc.     , 37 F.3d 591 (10th Cir. 1994), we

expressly recognized these standards, stating:

       A breach of the duty of fair representation occurs when the union’s
       conduct toward the employee is “arbitrary, discriminatory or in bad
       faith.” (quoting Vaca v. Sipes , 386 U.S. 171, 190 (1967)). In
       Arguinaga v. United Food & Commercial Workers Int’l Union      , 993

                                           -13-
      F.2d 1463 (10th Cir. 1993), we noted the limited scope of
      arbitrariness and discrimination as applied to actions by the union:

             A union’s action 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 of reasonableness” as to be irrational.’  ... A
             union’s discriminatory conduct violates its duty of fair
             representation if it is ‘invidious.’

      Id. at 1479 (quoting Air Line Pilots Ass’n. Int’l. v. O’Neill , 499 U.S.
      65, 67 & 81, 111 S. Ct. 1127, 1128 & 1137, 113 L. Ed. 2d 51 (1991).
      Acts by the union which are merely negligent do not state a claim for
      breach of a duty of fair representation.  United Steelworkers of
      America, AFL-CIO-CLC v. Rawson , 495 U.S. 362, 372-73 (1990).

Id. at 594 (emphasis added).

      There is no question, in light of our conclusion that Ms. Traffas’s 75-day

probationary period began on October 23, 2000, that Cessna could have

terminated her in December 2000, as an at-will employee. The Union

representatives established (and it is not disputed by Traffas) that the Union’s

actions in agreeing to a 60-day extension of the probationary period were solely in

her best interests. That motivation related to the subject of extensions generally.

As Mr. Larkin, a business representative of International Association of

Machinists, testified:

      I look at it from the perspective of the union trying to keep a person
      employed. I – I mean, if I’m in that position, and I have a chance for
      somebody to get another chance with the company and keep her from
      getting terminated, that’s what I’m going to do. I – you’re looking
      out for that person’s well-being, . . .


                                         -14-
App. Vol. 2 at 0450.

      On this record, the Union’s action in agreeing to an extension of Ms.

Traffas’s probation, and then declining to represent her when she was terminated

in February 2001 because she was still on probation as the Union had agreed, can

in no sense be so far outside the range of reasonableness as to be irrational or in

bad faith. Furthermore, a jury trial on such a question is not an absolute

requirement, as our opinion in   Young (affirming a grant of summary judgment on

a § 301 hybrid claim) illustrates and when the provisions of Fed. R. Civ. P. 56(c)

have been satisfied.



                                   CONCLUSION

      For the reasons stated above, the judgment of the district court is

AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




                                         -15-
