UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HENRY CRAIG JENKINS,
Plaintiff-Appellant,

v.

KENNETH L. C. NETTLES; THE UNITED
RUBBER, CORK, LINOLEUM AND
                                                               No. 96-2295
PLASTIC WORKERS OF AMERICA;
LOCAL 959OF THE UNITED RUBBER,
CORK, LINOLEUM AND PLASTIC
WORKERS OF AMERICA,
Defendants-Appellees.

Appeal from the United States District Court for the
Eastern District of North Carolina, at Raleigh.
Alexander B. Denson, Magistrate Judge.
(CA-95-116-5-DE)

Submitted: June 24, 1997

Decided: August 25, 1997

Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Clifford Leon Lee, II, THE LEE LAW FIRM, P.A., Fayetteville,
North Carolina, for Appellant. Charles R. Armstrong, UNITED
STEELWORKERS OF AMERICA, Akron, Ohio, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Henry Craig Jenkins filed this action in state court against the
United Rubber Workers International Union, United Rubber Workers
Local 959 (the local), and the local's president, Kenneth L. C. Nettles.
He alleged that Nettles and the local had been grossly negligent in
representing him in arbitration of a grievance on Jenkins's behalf.
Jenkins had been discharged from Kelly-Springfield Tire and Rubber
Co. in Fayetteville, North Carolina. During the course of negotiation,
Kelly-Springfield offered to settle the grievance by giving Jenkins his
job back. Nettles rejected the offer, and Jenkins alleges that Nettles
failed to inform him of the offer. The arbitrator ultimately upheld the
company's action.

Jenkins filed an action in state court against these parties, alleging
that the failure to inform him of the offer constituted gross negli-
gence. Defendants removed the action to federal court. The magistrate
judge, hearing the case pursuant to 28 U.S.C. § 636(c) (West 1993 &
Supp. 1997), granted summary judgment for defendants and Jenkins
appeals. We affirm.

The magistrate judge held that Jenkins's state law claim was pre-
empted by federal law. On appeal, Jenkins asserts that a plaintiff has
the option of bringing such a claim in state court, as there is no need
for national uniformity in this type of case. He argues that the failure
to inform issue, in isolation, does not require federal consistency.

Under § 301 of the Labor-Management Relations Act, 29 U.S.C.
§ 185(a) (1994), suits for violation of collective bargaining agree-
ments may be filed in federal court. Federal courts have the duty to
develop a federal common law of labor rights. Allis-Chalmers Corp.
v. Lueck, 471 U.S. 202, 209 (1985). A purportedly state law claim that
depends for resolution on analysis of the terms of a collective bar-

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gaining agreement must be treated as a § 301 claim or dismissed as
preempted. Davis v. Bell Atlantic-West Virginia, Inc., 110 F.3d 245,
247 (4th Cir. 1997). State tort claims are preempted when reference
to a collective bargaining agreement is necessary to determine if a
duty of care exists or the scope of that duty. McCormick v. AT & T
Technologies, Inc., 934 F.2d 531, 536 (4th Cir. 1991).

In this case, Jenkins asserts that Nettles negligently represented
him to the employer by failing to inform Jenkins of a settlement offer.
As Jenkins admitted in his deposition, any duty Nettles or the local
might have had toward Jenkins arose from the collective bargaining
agreement. Therefore, this state law claim is preempted by federal law
and was properly dismissed.

Jenkins also argues that summary judgment was improperly
entered on his federal cause of action under § 301. Jenkins claims that
Nettles and the local breached a duty of fair representation. Such a
breach occurs when the union's conduct toward a member is arbi-
trary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190
(1967). Allegations of mere negligence are not enough to meet this
standard. United Steelworkers of America v. Rawson, 495 U.S. 362,
372-73 (1990). A union's actions are arbitrary as to the duty of fair
representation "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." Air Line Pilots
Ass'n, Int'l v. O'Neill, 499 U.S. 65, 67 (1991).

In this case, Jenkins alleged that Nettles's failure to inform him of
the company's offer was grossly negligent. Although he suggests that
the jury might find Nettle's action arbitrary and in bad faith, he has
offered no facts that would support such a finding. Therefore, Jenkins
has failed to meet his burden in the face of the summary judgment
motion to affirmatively demonstrate that a genuine issue of material
fact exists for trial. Celotex Corp. v. Catrett , 477 U.S. 317, 323
(1986).

We affirm the decision of the magistrate judge granting summary
judgment for Nettles, the union, and the local. We dispense with oral
argument because the facts and legal contentions are adequately pres-

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ented in the materials before the court and argument would not aid the
decisional process.

AFFIRMED

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