                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            OCT 31, 2006
                             No. 05-15119                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D. C. Docket No. 03-22763-CV-AJ


PATRICIA TAAFFE,

                                               Plaintiff-Appellant,


                                  versus

BELLSOUTH TELECOMMUNICATIONS, INC.,
COMMUNICATIONS WORKERS OF AMERICA,
COMMUNICATIONS WORKERS OF AMERICA, LOCAL 3122,

                                               Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (October 31, 2006)

Before ANDERSON, BIRCH and HILL, Circuit Judges.
PER CURIAM:

        Patricia Taaffe appeals the grant of summary judgment to her employer on

her claim against both her employer for breach of contract by violation of the

collective bargaining agreement and her union for breach of its duty of fair

representation under 29 U.S.C. § 159(a). In such a hybrid § 301/fair representation

claim, plaintiff must be able to establish both that the employer breached its

collective bargaining agreement (the “CBA”) with the union, as well as that the

union breached its duty of fair representation of her. In this case, the district court

held that while there were material issues of genuine fact as to the former, Taaffe

failed to establish that the union acted irrationally or arbitrarily in settling a

grievance against her. We find no error in this conclusion.

                                             I.

        This case arises out of the selection of one employee over another for

promotion. The employer, Bell South Telecommunications, Inc., reviewed the

applicants and selected Patricia Taaffe for promotion to Material Services

Coordinator over the more senior employee, Debbie Markham. The collective

bargaining agreement between the employer and the union in this case provides

that:

        In the selection of employees within the bargaining unit for
        promotions within the bargaining unit, seniority shall govern if other

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      necessary qualifications of the individuals are substantially equal.

      Based upon her seniority, Markham grieved the selection to the union,

Communications Workers of America and Local 3122. The union settled the

grievance in Markham’s favor. Taaffe was returned to her former, lower-paying

position. She filed this action, alleging that the union breached its duty of fair

representation to her by settling the selection grievance in Markham’s favor.

      The union breaches its duty of fair representation to Taaffe if it unreasonably

concludes that the employer’s selection of her for promotion was arbitrary. Taaffe

argues that the union could not have reasonably reached such a conclusion

because, although Markham was senior, her qualifications were not “substantially

equal” to Taaffe’s because her attendance record was “significantly worse” than

Taaffe’s.

                                           II.

      It is important to keep in mind in this case that we are limited in our review

of the settled grievance. In assessing whether a union has breached its duty of fair

representation, we are limited to the determination of whether the union’s actions

were “arbitrary, discriminatory, or in bad faith.” Vaca v. Snipes, 386 U.S. 171, 190

(1967). “[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



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‘wide range of reasonableness’ . . . as to be irrational.” Airline Pilot’s Assoc. v.

O’Neill, 499 U.S. 65, 67 (1991). We have adhered to these principles, noting that

the “cases are uniform in holding that neither negligence of the union nor a mistake

in judgment is sufficient to support a claim that the union acted in an arbitrary and

perfunctory manner,” and that “nothing less than a determination that the union

acted with reckless disregard for the employee’s rights or was grossly deficient in

its conduct will suffice to establish [a breach of the duty claim].” Harrris v.

Schwermann Trucking Co., 668 F.2d 1204, 1206 (11 th Cir. 1982) (citations

omitted).

      Nor does our review of a union’s settlement of a grievance focus on whether

the underlying grievance had merit. “It is settled law that a breach of the fair

representation duty cannot be based on the trial court’s view regarding the

probability of success on the merits of the grievance.” Freeman v. O’Neal Steel,

Inc., 609 F.2d 1123, 1126 (5 th Cir. 1980). “Breach of the duty of fair

representation is not established by proof that the underlying grievance was

meritorious.” Vaca, 386 U.S. at 195. In short, the issue is not whether the union’s

interpretation of the facts and contract language was correct, but whether it was

arbitrary. Tedford v. Peabody Coal Co., 533 F.2d 952, 957 (5 th Cir. 1976).

      In this case, the record is clear that the CBA contains no definition or



                                           4
explanation as to what constitutes “substantially equal” qualifications. This lack of

definition afforded the union wide latitude in its assessment of the equality of

Taaffe and Markham’s qualifications. Although Taaffe’s attendance was better

than Markham’s, the evidence was that the employer considered both to have some

“attendance issues.” Nor was there any other evidence in the record from which

we could determine that it was unreasonable for the union to determine that the two

employees’ attendance records were not “substantially equal.”

      Although we may not agree with the union’s assessment of these two

employees’ qualifications, it is not within our authority to substitute our judgment

for that of the union’s in this regard. So long as the union’s interpretation of the

facts and the contract language in neither “arbitrary nor perfunctory,” and there is

no evidence that the union acted in reckless disregard for the employee’s rights, we

do not second-guess its determination that seniority prevails in this case over two

less-than-perfect attendance records.

      We agree with district court that:

             A seniority dispute between members of the same bargaining
      unit, however, places the Local in a position of conflict which may
      fairly be said to be inherent in the structure of federal labor laws . . .

             But we are not ready to find a breach of the collective
      bargaining agent’s duty of fair representation in taking a good faith
      position contrary to that of some individuals whom it represents nor in
      supporting the position of one group of employees against that of

                                            5
      another . . . . “Inevitably differences arise in the manner and degree to
      which the terms of any negotiated agreement affect individual
      employees and classes of employees. The mere existence of such
      differences does not make them invalid. The complete satisfaction of
      all who are represented is hardly to be expected. A wide range of
      reasonableness must be allowed a statutory bargaining representative
      in service of the unit it represents, subject always to compete good
      faith and honesty of purpose in the exercise of its discretion.”

(quoting Keane v. Eastern Freightways, Inc., Case Nos. 75-402 and 75-416, 1976

WL 1500 at *5-6 (D.N.J. May 5, 1976) (internal citations omitted).

      Thus, as there is also no evidence of discriminatory or bad faith conduct on

the part of the union in this case, we conclude that the evidence in the record is

insufficient to disturb the “wide range of reasonableness” to be afforded the Union

in the handling of this grievance.

                                          III.

      For the foregoing reasons, the district court’s judgment is

      AFFIRMED.




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