February 4, 1993  UNITED STATES COURT OF APPEALS

                      FOR THE FIRST CIRCUIT

                                           

No. 92-1796

                      RALPH J. MILLER, JR.,

                      Plaintiff, Appellant,

                                v.

              UNITED STATES POSTAL SERVICE, ET AL.,

                      Defendants, Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

             [Hon. Shane Devine, U.S. District Judge]
                                                    

                                           

                              Before

                    Torruella, Circuit Judge,
                                            

                  Bownes, Senior Circuit Judge,
                                              

                     and Cyr, Circuit Judge.
                                           

                                           

     Charles  G. Douglas III, with whom Douglas &amp; Douglas, was on
                                                         
brief for appellant.
     William B.  Peer, with whom  Barbara L. Camens,  Barr, Peer,
                                                                 
Cohen  &amp; Camens, were on brief for appellee National Rural Letter
               
Carriers' Association (NRLCA).
     Gretchen Leah Witt, Assistant United States Attorney, Chief,
                       
Civil  Division,  with  whom  Jeffrey R.  Howard,  United  States
                                                
Attorney, was on brief for appellee U.S. Postal Service.

                                           

                                           

          TORRUELLA, Circuit  Judge.  Appellant Ralph  J. Miller,
                                   

appeals  from a  summary judgment  in an  action under  39 U.S.C.

  1208(b)  (1980)1  for breach  of  contract  against the  United

States Postal Service  ("Postal Service"), and for breach of duty

of  fair   representation  against  the   National  Rural  Letter

Carrier's  Association  (the  "Union").    This  joint  cause  is

commonly referred  to as  a "hybrid"  suit.  See,  e.g., Reed  v.
                                                             

United Transp.  Union, 488 U.S. 319,  327 (1989).  We  affirm the
                     

district court's judgment.

          Appellant, a rural carrier, lost his job at the  Postal

Service  on  May  21,  1986.    As a  member  of  the  collective

bargaining  unit,  he  filed  a grievance  under  the  collective

bargaining agreement  between the  Union and the  Postal Service.

The  matter culminated  in arbitration,  in which  the arbitrator

found that the Postal Service fired appellant without just cause,

and ordered  reinstatement and lost earnings.   Approximately one

month after this ruling,  the Postal Service reinstated appellant

                    

1  Section 1208(b) provides:

            Suits for violation of  contracts between
            the   Postal   Service   and    a   labor
            organization representing  Postal Service
            employees,  or  between  any  such  labor
            organization,  may  be  brought   in  any
            district  court  of  the   United  States
            having   jurisdiction  of   the  parties,
            without   respect   to   the  amount   in
            controversy.

Because this language  is identical in  all relevant respects  to
that of   301(a) of the Labor Management Relations Act, 24 U.S.C.
  185(a) (West  Supp. 1992), cases interpreting  the latter apply
to   1208(b).  Bowen v. United States Postal Serv., 459 U.S. 212,
                                                  
232 n.2 (1983) (White,  J., concurring in part and  dissenting in
part).

but  refused to afford  him back pay.   The Postal  service based

this  refusal  on appellant's  alleged  failure  to mitigate  his

damages  by  attempting to  obtain  other  employment during  the

thirteen-month  period of  suspension as  required by  the Postal

Service's Employee and Labor Relations Manual (the "Manual").

          Consequently,  appellant filed a new grievance for back

pay which  proceeded through the various  contractual steps until

it reached national arbitration  on July 28, 1989.   In addition,

on  July  10, 1990,  appellant filed  the  present action  in the

United States  District Court for the District  of New Hampshire.

The Union subsequently withdrew the grievance from arbitration.

          Appellant  initially proceeded  pro  se in  his federal
                                                 

court  action against  the  Postal Service  and  the Union.2    A

series   of   amendments   followed   his   original   complaint.

Essentially, he alleged that:   (1) the Postal Service  failed to

abide  by  the arbitration  award,  and  the Manual's  mitigation

requirements  conflict  with  the  provisions of  the  collective

bargaining agreement; and (2) the  Union was "either unwilling or

unable to recover [his] money."  

          The  Postal Service counterattacked with its own motion

for  summary  judgment,  which  the  Union  joined.   The  motion

asserted   that:     (1)  the   collective  bargaining   contract

incorporated the Manual by reference;  (2) the Manual required  a

                    

2    Although in  one  of  the  motions  to amend  his  complaint
appellant  stated that his  "only dispute  . .  . [was]  with his
employer," he later filed a motion for summary  judgment accusing
the Union of breaching its duty of fair representation by failing
to "follow up on a lead" that he provided.

                               -3-

suspended  employee to  mitigate  damages  by seeking  employment

during  suspension  or discharge;  and  (3)  appellant failed  to

mitigate his damages.  Additionally, the Union asserted  that its

decision to withdraw appellant's grievance for back pay "was made

for rational, nondiscriminatory reasons."

          Appellant,  by   this  time  represented   by  counsel,

retorted  that the Postal Service was "not entitled to a judgment

as  a matter  of law  because the  defense now  asserted was  not

raised  in the  underlying  arbitration."   With  respect to  the

Union, appellant maintained that  it had treated his claim  "in a

perfunctory  manner"  and that  this  conduct,  coupled with  the

three-year delay  during which it  failed to inform  appellant of

alternate  modes of relief, amounted  to a breach  of the Union's

duty of fair representation when it withdrew the grievance.

          The district  court's summary  judgment for  the Postal

Service  is  narrowly tailored  and  deserves our  approval.   To

succeed  in a hybrid  breach of contract  and fair representation

claim,  appellant  must  establish  not only  that  the  employer

breached  the contract, but also that his union breached its duty
                                

of  fair representation.  Teamsters  v. Terry, 494  U.S. 558, 564
                                             

(1990); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71
                                           

(1976).    These  claims  are "inextricably  linked,"  Demars  v.
                                                             

General  Dynamics Corp.,  779 F.2d  95, 97  (1st Cir.  1985), and
                       

failure to prove  either one  of them results  in failure of  the

entire hybrid action.   See  DelCostello v.  Teamsters, 462  U.S.
                                                      

151, 164-65 (1983).

                               -4-

          The district  court found  no violation of  the Union's

duty toward appellant, and  we agree.  A Union breaches this duty

"only when  [its]  conduct  toward  a member  of  the  collective

bargaining unit  is arbitrary, discriminatory, or  in bad faith."

Vaca v. Sipes,  386 U.S.  171, 190 (1967);  Williams v.  Sea-Land
                                                                 

Corp.,  844 F.2d  17,  19 (1st  Cir.  1988).   The Supreme  Court
     

explained  that 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 'wide

range of reasonableness' as  to be irrational."  Air  Line Pilots
                                                                 

Ass'n Int'l v. O'Neill,  111 S. Ct. 1127, 1130  (1991) (citations
                      

omitted).  Courts may not substitute their own views for those of

the  union.     "[A]ny  substantial  examination   of  a  union's

performance  . . .  must be  highly deferential,"   id.  at 1135,
                                                       

because  of  the  well-recognized  need  to  allow  unions  ample

latitude in the performance of their  representative duties.  See
                                                                 

Steelworkers  v. Rawson, 495 U.S. 362, 374 (1990); Vaca, 386 U.S.
                                                       

at 191-93.  Thus, we have  held that a union's mere negligence or

erroneous  judgment will not constitute  a breach of  the duty of

fair representation.   Condon v. United  Steelworkers Local 2944,
                                                                

683 F.2d 590, 594 (1st Cir. 1982).  We also allow the union great

latitude in determining the merits of an employee's grievance and

the level of effort it will expend to pursue it.  Torres-Matos v.
                                                              

St.  Lawrence Garment Co., 901  F.2d 1144, 1148  (1st Cir. 1990);
                         

Williams, 844 F.2d at 21.  
        

          Accordingly, failure to take a grievance to arbitration

                               -5-

constitutes a breach of the duty of fair representation only when

the  union's otherwise  good faith  decision is  arbitrary.   See
                                                                 

Col n-V lez v. Puerto Rico Marine Management, Inc., 957 F.2d 933,
                                                  

941  (1st Cir. 1992); see  also Vaca, 386  U.S. at 191 (employees
                                    

have no absolute right to have grievance taken to arbitration).

          The undisputed facts establish that the Union initially

supported appellant's grievance regarding his back-pay claim.  It

processed the grievance through  the various contractual steps up

to national arbitration.  Although  the Union knew of appellant's

failure to  mitigate, the  Union  believed that  a genuine  issue

existed  regarding  whether  the  mitigation   requirements  were

"punitive, unreasonable and in  conflict with other provisions of

the  National   Agreement."    It  thus   sought  arbitration  of

appellant's  claim and continued to investigate the matter.  As a

result of  this investigation, the Union  discovered that several

arbitrators    had    found   mitigation    requirements   valid.

Accordingly,  it decided that it was in everyone's best interests

to withdraw  the grievance from  arbitration.3  Before  doing so,

however, it attempted, unsuccessfully, to negotiate a  settlement

with the Postal Service.  On November 8, 1990, the Union withdrew

the grievance.

          Given these  undisputed facts, we cannot  conclude that

the Union's actions were irrational.  Furthermore, nothing in the

                    

3    To  continue a  meritless  grievance  adversely affects  the
Union's  credibility and finances.  See Williams, 844 F.2d at 21;
                                                
Berrigan  v. Greyhound Lines, Inc.,  782 F.2d 295,  298 (1st Cir.
                                  
1986).

                               -6-

record  intimates  that  the  Union  acted  in  a  perfunctory or

arbitrary  manner or  in  bad faith.    If anything,  the  record

exhibits diligence  and  an attempt  to make  the best  out of  a

difficult situation.   If the  Union failed, it  was not  through

lack  of  effort, but  rather  because  appellant's claim  lacked

merit.

          Finally,  at oral argument appellant argued principally

that  the  Union violated  its  duty  of  fair representation  by

failing  to  properly  advise  him  of  the  Manual's  mitigation

requirements.   This  is  a new  argument,  never raised  in  the

district  court.   Appellant's  change in  direction  has been  a

recurrent theme throughout this litigation.  See, e.g., Miller v.
                                                              

United States Postal Serv.,  792 F. Supp. 4, 6 n.4 (D.N.H. 1992).
                          

If the  argument  was mistakenly  overlooked  during the  pro  se
                                                                 

stages  of  the  case,  appellant  had  ample  opportunity,  once

represented by counsel, to correct any  earlier deficiencies.  It

is now  too late to do  so; we cannot consider  issues raised for

the first time on appeal.   G.D. v. Westmoreland Sch.  Dist., 930
                                                            

F.2d  942, 950 (1st Cir.  1991); Johnston v.  Holiday Inns, Inc.,
                                                                

595 F.2d 890, 894 (1st Cir. 1979).4  After considering  the other

issues raised  by appellant, we find  them equally insubstantial.

Thus,  we need go no further; as  appellant failed to make a case

                    

4   Notably,  appellant's  new  argument  appears to  lack  merit
anyway.   The failure to  adequately notify its  members of their
burden under the Collective  Bargaining Agreement does not amount
to  more  than  negligence.   Mere  negligence  or  a mistake  in
judgment is  insufficient to establish  a breach  of the  union's
duty."  Jenkins  v. Great  Lakes Plastics, Inc.,  119 LRRM  (BNA)
                                               
2191 (E.D. Mich. 1985).     

                               -7-

against the  Union, the  symbiotic  nature of  the hybrid  action

requires  that  we also  reject  the  action against  the  Postal

Service.

          Affirmed.  Costs to appellees.
                  

                               -8-
