                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 08a0699n.06
                           Filed: November 14, 2008

                                            No. 07-5850

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


LOUIS COLE, JR.,                                          )
                                                          )         ON APPEAL FROM THE
       Plaintiff-Appellant,                               )         UNITED STATES DISTRICT
                                                          )         COURT     FOR     THE
v.                                                        )         WESTERN DISTRICT OF
                                                          )         TENNESSEE
CLEO, INC.; and PAPER, ALLIED-                            )
INDUSTRIAL, CHEMICAL AND ENERGY                           )                  OPINION
WORKERS INTERNATIONAL UNION, AFL-                         )
CIO; and its LOCAL UNION NO. 5-1766,                      )
Memphis, Tennessee,                                       )
                                                          )
       Defendants-Appellees.                              )




       BEFORE:         KENNEDY, SUTTON and McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge. Plaintiff Louis Cole, Jr., a forklift operator, was fired for

having negligently caused damage to company property. When Cole grieved his termination,

contending he was not responsible for the damage, the company offered reinstatement without back

pay. Cole rejected the offer, insisting he was entitled to back pay, and asked his union representative

to pursue arbitration. The union declined to do so, but Cole contends he was not aware of this

refusal and assumed that application for arbitration had been made per his request. When he finally

learned that his termination had become final and the union had not applied for arbitration, he filed

suit under § 301 of the Labor Management Relations Act, alleging his employer breached the
No. 07-5850
Cole v. Cleo, Inc.

collective bargaining agreement and his union breached its duty of fair representation. The district

court awarded the defendants summary judgment, finding the action time-barred and that, in any

event, the record presented insufficient factual support for Cole’s fair representation claim. On

appeal, Cole insists there are genuine issues of material fact both in connection with application of

the statute of limitations and on the merits of his claims. Cole has succeeded in identifying disputed

questions of fact, but ultimately, they are not material. We therefore affirm the district court’s

judgment.

                                       I. BACKGROUND1

       Plaintiff Louis Cole, Jr., was employed by defendant Cleo, Inc., manufacturer of paper

products, from October 6, 1997 to September 8, 2004. The terms of his employment were defined

by a collective bargaining agreement (“CBA”) between Cleo and plaintiff’s union, Paper, Allied-

Industrial, Chemical and Energy Workers International Union, AFL-CIO and its Local No. 5-1766

(“the union”). Cole was working as a forklift operator at Cleo’s warehouse in Memphis on

September 7, 2004, when an overhead sprinkler was damaged, causing water to spray onto product

inventory (wrapping paper). Cole claims not to know how the sprinkler was damaged; he discovered

the problem when he began his overtime shift shortly after midnight and attempted to minimize

damage while a co-worker summoned the shift supervisor. Cole dep. pp. 14-16, JA 259-61. When

the shift supervisor, James Graham, arrived at the scene, he concluded, without even making inquiry

of Cole, that Cole had caused the damage. Cole aff. ¶ 10, JA 306. Graham told Cole he didn’t need


       1
        This fact summary is based on review of the record in the light most favorable to plaintiff
Cole, except where otherwise specifically noted.

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Cole v. Cleo, Inc.

to complete a written incident report. Id. at ¶ 11. Because he was wet, Cole left without completing

his overtime shift. Id. at ¶ 12.

       When he returned to work the next day, Graham met him with written notice of his

termination, for “negligence resulting in damage or destruction of company property,” a

dischargeable offense under the CBA. Notice of Discharge, JA 687. Graham handed the notice to

him without saying anything. Cole dep. pp. 19-23, JA 263-66. In response, Cole said nothing. He

was stunned and frustrated: “I figured it was best not to say anything to him at the time because I

didn’t want to get any more frustrated than I was.” Id. at 23, JA 266.2 Union Steward Joe Bradley

was present, but he didn’t say anything either. Bradley left the building with Cole and, in the parking

lot, filled out a grievance form for Cole to sign, alleging simply that the discharge was unjust and

seeking return to work with back pay for lost time. Bradley dep. pp. 13-17, JA 743-44; Grievance

Form, JA 697.3




       2
        According to Graham, he questioned three of Cole’s co-workers in the warehouse and
determined that none of them had witnessed the accident. Observing that Cole alone was wet, he
concluded that Cole’s negligence was the cause of the accident. When he confronted Cole with this
conclusion, Cole did not contradict it. Graham then sent Cole home and, after completing the
damage clean-up, prepared the Notice of Discharge. Graham aff. ¶¶ 5-8, JA 310.
        3
         Bradley testified that, at this time, Cole privately admitted to him that he caused the damage
to the sprinkler. Bradley dep. pp. 12-13, JA 690-91. Cole reportedly explained to Bradley that he
had stacked his forklift with a double-high order (because he was under pressure to keep up with
other employees), raised the load too high, and accidentally struck the sprinkler. Id.
        Cole denies that he ever admitted causing damage to the sprinkler. Cole aff. ¶¶ 20, 23, JA
307. He contends that Bradley, together with Union President Lee Anderson, fabricated the story
“in order to cover their perfunctory handling of his grievance and lack of any investigation.”
Appellant’s Reply Brief p. 5.

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No. 07-5850
Cole v. Cleo, Inc.

       Because the grievance involved Cole’s discharge, it proceeded directly to a third step

meeting on October 19, 2004. In the meantime, within one week after his discharge, Cole had

approached Ken Hardy in Cleo’s Human Resource Department. Cole dep. pp. 108-09, JA 96-97.

Hardy advised him within a week thereafter that he could have his job back if he agreed to waive

recovery of back pay. Id. at 109, 132, JA 97, 105. Cole refused the offer because he didn’t want

to admit guilt for something he did not do. Id. Bradley then approached Hardy on Cole’s behalf

and received the same answer. Id. At the October 19 meeting, Cole was represented by Union

President Lee Anderson. Cole spoke for himself at the third step meeting and Anderson presented

his case just as Cole instructed him, contending the discharge was unjust because Cole had not

caused the damage to the sprinkler. Anderson dep. p. 43, JA 120; Cole dep. p. 119, JA 100. To this

point, Cole was satisfied with the union’s handling of his grievance. Cole dep. at 119, 128, JA 100,

104. Yet, the company’s position remained unchanged: Cole was offered reinstatement without

back pay, which was unacceptable to him. Id. at 83, JA 90.

       Cole then advised Anderson that he wanted to proceed to arbitration. Cole aff. ¶¶ 27, 29, JA

381; Anderson dep. pp. 66, 78, JA 130, 135. Cole did not receive an answer regarding arbitration,

but the union took his grievance to a fourth step meeting. Cole aff. ¶ 29, JA 381; Cole dep. pp. 80,

93, JA 89, 93; Anderson dep. pp. 82-84, JA 136-38.4 The fourth step meeting was conducted on


       4
        Bradley testified that Cole asked him about arbitration, but he advised Cole it was not his
decision to make; Cole would have to call Anderson. Bradley dep. pp. 38-39, JA 750. At some
point Anderson told Bradley the union would not pursue arbitration, but Bradley did not so advise
Cole, preferring to refer him to Anderson. Id. at 43-44, JA 751.
       Anderson testified that he advised Cole the union would not pursue arbitration. Anderson
dep. pp. 78, 82-84, 102-03, JA 135-40. Anderson made this decision following the third step

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Cole v. Cleo, Inc.

December 8, 2004. Cole was present but did not participate. Cole dep. p. 80, JA 89. Cole was

thoroughly familiar with his rights under the CBA and knew this fourth step was the final step in the

grievance process. Id. at 79-80, JA 88-89.

       The company communicated its final position to Anderson in writing, dated December 20,

2004. JA 169. The company offered reinstatement with full seniority but no back pay. In addition,

the company agreed to reduce the seriousness of the disciplinary warning notice from “third

warning” to “second warning.” Id. Cole was not provided a copy of this letter. Cole aff. ¶ 35, JA

382. In fact, Cole was not even told what the result of the fourth step meeting was. Id.; Cole dep.

pp. 83, 90-91, JA 90-92. He had made it clear that he would not return to work unless he was also

granted full back pay. Id. Yet, when he attempted to contact Bradley after the fourth step meeting

to find out about the status of arbitration, he was unable to get a response. Id. at 93, 95, JA 93-94;




meeting after discussing it with the union executive board. He gave Cole two reasons for this
refusal. First, the company had offered reinstatement, which was the primary relief sought in the
grievance; the matter of back pay for a couple of weeks of missed work was relatively insignificant.
Anderson thought it preferable for Cole to return to work and then continue negotiating for back pay.
Second, the union knew that Cole had already admitted causing the damage, as Bradley had advised
the executive board of Cole’s admission. Id.; Bradley dep. pp. 30-31, 40-41, JA 748, 750. Hence,
although Anderson thought Cole deserved reinstatement, he remained unpersuaded that Cole’s
grievance for back pay had such merit as to warrant arbitration. Id. at 82-83, JA 136-37.

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No. 07-5850
Cole v. Cleo, Inc.

Cole aff. ¶¶ 30, 36, JA 381-82.5 Cole did not attempt to contact Anderson anymore, because an

earlier telephone conversation between the two had gone badly. Cole dep. pp. 82-83, JA 278-79.6

       Then came a period of silence, which Cole described as follows:

       I knew it ended in some kind of way, and I had to do something to see if I could get
       things going on, if it was headed to the Federal Court under the grievance process or
       if I had to do whatever I could with anybody that I could get in touch with before a
       period of time. I couldn’t get in touch with nobody. I left voice mails on Ken
       Hardaway’s (sic) phone. I called Joe Bradley, and I never could get him. And things
       just went into total silence and limbo for a period of time.

Id. at 84-85, JA 280-81. Cole next sent a letter by certified mail to both Ken Hardy, on behalf of

Cleo, and Joe Bradley, on behalf of the union, on September 7, 2005. JA 317-20. The letter

requested written notice of the final decision on his termination. It was delivered on September 8,

2005. Cole did not wait for a response, however. On September 8, he commenced this action by

filing his complaint in the Western District of Tennessee. JA 1.

       The complaint asserts a single cause of action, a hybrid action under § 301 of the Labor

Management Relations Act, 29 U.S.C. § 185, contending Cleo wrongfully discharged him and the

union breached its duty of fair representation. The complaint prays for reinstatement with full

seniority, plus damages and back pay in the amount of $300,000. In conjunction with its answer,



       5
        Bradley testified that he always kept Cole informed about the status of his case. Bradley
dep. pp. 43-44, JA 751. He acknowledged, however, that he did not advise Cole the union would
not take his case to arbitration. Id.
       6
         Anderson explained that after receiving the company’s final offer in the December 20, 2004
letter, he contacted Ken Hardy and made a final request for reconsideration, which was denied.
Anderson dep. pp. 88-90, 97-98, JA 492-96. But Anderson had no further communication with Cole
and received no further inquiry from Cole. Id.

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No. 07-5850
Cole v. Cleo, Inc.

Cleo moved to dismiss the complaint as time-barred under the governing six-month statute of

limitations. The district court denied the motion on May 23, 2006, concluding it could not be

determined from the complaint when Cole’s claim accrued, i.e., when Cole should reasonably have

known that the union had abandoned his claim.

        After discovery was completed, Cleo and the union both moved for summary judgment. The

district court issued a 19-page opinion granting their motions on June 7, 2007. Even accepting

Cole’s version of the facts, the court concluded that Cole should have known by December 8, 2004

(i.e., the date of the fourth step meeting), that the union had elected to proceed under step four of the

grievance process rather than pursue arbitration. Hence, the complaint, filed more than six months

thereafter, was held to be untimely. Further, the court held that Cole failed to adduce evidence on

which a reasonable jury could conclude that any deficiencies in the union’s representation rose to

the level of arbitrary and irrational conduct. On appeal, Cole insists the district court erred in both

conclusions, contending there are genuine issues of material fact that preclude ruling as a matter of

law.

                                           II. ANALYSIS

        A. Standard of Review

        The court of appeals reviews de novo an order granting summary judgment. Johnson v.

Karnes, 398 F.3d 868, 873 (6th Cir. 2005). Summary judgment “should be rendered if the pleadings,

the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c). The court must view the evidence in the light most favorable to the non-moving party and

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No. 07-5850
Cole v. Cleo, Inc.

draw all reasonable inferences in its favor. Id. Not just any alleged factual dispute between the

parties will defeat an otherwise properly supported motion for summary judgment; the dispute must

present a genuine issue of material fact. Leadbetter v. Gilley, 385 F.3d 683, 689-90 (6th Cir. 2005).

A dispute is “genuine” only if based on evidence upon which a reasonable jury could return a verdict

in favor of the non-moving party. Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 451 (6th Cir.

2004). A factual dispute concerns a “material” fact only if its resolution might affect the outcome

of the suit under the governing substantive law. Id.

       B. Statute of Limitations

       There is no dispute between the parties on the standards governing the timeliness inquiry.

These standards are summarized as follows:

       The statute of limitations for filing a hybrid Section 301/duty of fair representation
       claim is six months. DelCostello v. International Brotherhood of Teamsters, 462
       U.S. 151, 169, 103 S.Ct. 2281, 2293, 76 L.Ed.2d 476 (1983); Schoonover v.
       Consolidated Freightways Corp., 49 F.3d 219, 221-22 (6th Cir.1995). Such a claim
       accrues when an employee discovers, or should have discovered with exercise of due
       diligence, acts giving rise to the cause of action. Chrysler Workers Ass'n v. Chrysler
       Corp., 834 F.2d 573, 578 (6th Cir.1987), cert. denied, 486 U.S. 1033, 108 S.Ct.
       2017, 100 L.Ed.2d 604 (1988). Perhaps most importantly, a party is not required to
       sue on a hybrid claim until the arbitration panel renders its final decision, or until the
       party reasonably should know that the union has abandoned the party's claim.
       Schoonover, 49 F.3d at 222.

Wilson v. Int’l Bhd. of Teamsters, 83 F.3d 747, 757 (6th Cir. 1996). As Cole’s grievance was not

taken to arbitration, the district court correctly determined that the critical question in this case is

when Cole, in the exercise of due diligence, reasonably should have discovered that the union had

abandoned his claim.



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No. 07-5850
Cole v. Cleo, Inc.

        Although Anderson testified he told Cole right after the third step meeting that the union

would not take his claim to arbitration, his position is refuted both by Cole’s affidavit and deposition

testimony, creating a genuine factual dispute. Nonetheless, because Cole acknowledged his

familiarity with the terms of the CBA, and because the CBA clearly requires either party to give the

other notice of its intention to submit the grievance to arbitration within five working days after the

step three decision, the district court concluded that Cole should have known, within five days after

the October 19 third step meeting, whether his right to arbitration had been preserved. Opinion p.

13, JA 767. Moreover, in any event, the court concluded that Cole, who acknowledged that step four

was the final step in the grievance process, must have known at the time of the fourth step meeting

on December 8 that the union’s representation of him had come to an end. Id. at 13-14, JA 767-78.

Cole contends both of the court’s conclusions are premised on erroneous readings of the CBA terms.

Cole appears to be right.

        First, although the CBA requires “either of the parties,” i.e., either the union or the company,

to notify the other of its intention to seek arbitration within five working days after the step three

decision, it does not explicitly require either party to notify the employee whose grievance is at issue.

CBA Art. VIII, Arbitration, § 1(a), p. 18, JA 155. Nor does the CBA require either party to notify

anyone of its intention not to pursue arbitration. One might reasonably expect the union to notify

the employee if either party had notified the other of any intention regarding arbitration, but the CBA

does not expressly require it and the five-day deadline clearly does not apply to any such

communication. Hence, Cole correctly argues that his familiarity with the CBA terms did not



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Cole v. Cleo, Inc.

necessarily give rise to constructive notice that the union had forfeited any right to pursue arbitration

as of five working days after the third step meeting.

        Second, Cole argues his knowledge that the union had taken his grievance to step four on

December 8, 2004, did not represent constructive notice that the union had decided against

arbitration. Contrary to the district court’s understanding of the CBA terms, Cole contends,

arbitration and step four negotiations are not necessarily mutually exclusive, but may be

complementary. The CBA provides that “[i]n the event the grievance is not settled in this Step [i.e.,

step three], then it may be referred by either party to Step 4 negotiation or arbitration.” CBA Art.

VIII, Grievance Procedure, Step 3, p.17, JA 154. Yet, dispelling any notion that step four and

arbitration represent “either/or” options is explicit language under step four to the effect that “[p]rior

to Arbitration, the grievance, if not settled, may be negotiated” between the union and the company.

Id., Step 4, p.18, JA 155. In other words, Cole, familiar as he was with the CBA terms, could

reasonably have viewed the December 8 step four meeting as a precursor to arbitration.

        Yet, the interpretational flaws in the district court’s reasoning do not necessarily undermine

the court’s ultimate conclusion. We accept as true Cole’s assertions that he told Anderson he wanted

the union to take his grievance to arbitration and that Anderson failed to clearly communicate the

union’s refusal to him. Still, though Cole may have requested arbitration, he knew the decision to

arbitrate or not was the union’s prerogative. Cole dep. p. 111, JA 99. Further, although Bradley had

advised Cole that he did not know about arbitration and that Cole would have to contact Anderson,

Cole has not identified any representation by Anderson or anyone else that would support his



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No. 07-5850
Cole v. Cleo, Inc.

professed “belief” that the union had given timely notice of its intent to seek arbitration.7 At best,

he avers that Anderson did not inform him that the union had decided not to pursue arbitration.

Considering Cole’s thorough familiarity with his rights under the CBA, which subsumes his

knowledge that the union was required to give notice of its intent to pursue arbitration within five

days after the step three decision, Cole’s unsubstantiated “belief” is exposed as nothing more than

an unsupported assumption, a mere hope, a matter of wishful thinking.

          It may not have been unreasonable for Cole to entertain such wishful thinking during the

course of the step four negotiations. Yet, even accepting that neither Bradley nor Anderson

communicated the company’s December 20, 2004 decision to Cole, he still knew, after the

December 8 step four meeting, that he did not return to work. He also knew the parties’ positions

had remained practically unchanged throughout the course of the negotiations. That is, since just

a week or two after Cole’s discharge, Cleo had consistently offered reinstatement without back pay

and Cole had continued to insist on reinstatement with back pay. When the step four negotiations

were concluded, Cole knew the grievance process had been completed. Cole dep. p. 80, 119, 125,

JA 89, 100-01. There was no reason to believe the parties’ impasse had been resolved or altered.

Arbitration was the only remaining recourse—if the union had preserved the option by giving timely

notice.


          7
        Cole argues in his appellate briefs that Anderson affirmatively represented that the union
would pursue arbitration. Appellant’s initial brief pp. 12-13; reply brief p. 8. In support of the
argument, he cites only his own affidavits; affidavits which are, however, devoid of evidence of any
such affirmative representation. Cole affs., JA 303, 381. In both affidavits, Cole goes no further
than to state that Anderson did not inform him that the union would not take his case to arbitration.
Cole aff. ¶ 18, JA 303; Cole aff. ¶¶ 29, 37, JA 381-82.

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No. 07-5850
Cole v. Cleo, Inc.

       It was reasonable, of course, for Cole to make inquiry of Bradley concerning arbitration. Yet,

Cole received no answer from Bradley, as he deferred to Anderson. Obviously, if the union had in

fact given the company notice of its intent to refer the matter to arbitration, it would have been a

simple, ministerial task for Bradley simply to say so. The fact that he instead referred Cole to

Anderson should have suggested to Cole that the answer was not that simple. Yet, Cole deliberately

refrained from calling Anderson in order to avoid a potentially disagreeable encounter. Instead, he

repeatedly called Ken Hardy and Bradley and left voice mail messages that were never returned.8

Though their non-responsiveness is far from commendable, it certainly could not be reasonably

construed as affording Cole any encouragement. Far from lending support to Cole’s professed belief

that the union had timely referred his case for arbitration, it should have been reasonably understood

as signaling that Cole’s wishful thinking was no longer justified. Even though the ensuing period

of silence represented strong evidence that the union had in fact abandoned Cole’s claim, and even

though Cole recognized the urgent need to take some action if indeed he were “headed to Federal

Court,” he inexplicably took no action until nine months after the December 8, 2004 step four

meeting.

       The district court’s conclusion that Cole should have known that the union’s representation

was completed as of December 8 is not appropriate. After all, Anderson still sought reconsideration


       8
         This apparent antipathy between Anderson and Cole should have been a “red flag” to Cole.
That is, even though Cole claims Anderson never told him the union would not take the case to
arbitration, he implicitly acknowledges that Anderson was not sympathetic with or supportive of his
claim. Putting two and two together (i.e., Anderson’s antipathy and Bradley’s silence), Cole should
have realized the union had not preserved its right to seek arbitration by giving Cleo the required
notice within five days after the step three decision.

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Cole v. Cleo, Inc.

of the company’s step four decision sometime after December 20. Still, the question remains

whether a trier of fact could reasonably find that Cole should not be held to have discovered, in the

exercise of due diligence, that the union had abandoned his claim until sometime after March 7,

2005. We conclude the answer to this question is “no.” Though Cole says he repeatedly tried to

obtain information from Bradley and failed, his clear impression that Bradley was ignoring him

should have put him on notice that the union had abandoned him. What other conclusion could

reasonably be drawn? And in the face of Bradley’s persistent silence, how can Cole’s refusal to try

to contact Anderson—the very one to whom Bradley had referred Cole for arbitration

information—be viewed other than as a refusal to exercise due diligence?

        Cole attempted to justify his refusal to call Anderson simply by quipping, “But Lee

Anderson, I hope I never call him again because I probably would have invited him outside

somewhere the way he was talking to me.” Cole dep. p. 83, JA 90. Similarly, commenting on the

period of frustrating silence, Cole testified:

                 Well, they kept delaying and putting me off. I couldn’t get in touch with
        nobody, couldn’t communicate with nobody. I wasn’t going to go out there and
        break no doors down and talk to nobody, because I wouldn’t be in here, I would be
        in jail.

Id. at 94, JA 284. Cole thus casually dismissed two obvious and reasonable steps he could have

taken to discover the union’s position: a phone call to the union president and a personal visit to the

workplace. He justified his failure to take these reasonable steps by implicitly characterizing them

as too dangerous, because he has a short fuse. In other words, Cole would have the court excuse

his noncompliance with his duty of due diligence because he perceives that he’s been wronged and


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Cole v. Cleo, Inc.

he has a temper. The notion is facially nonsensical, of course, and Cole has cited no legal authority

to support it.

        Cole believes he was unjustly disciplined for a wrong he did not commit. But by his own

testimony, we learn that he was offered the opportunity to return to work within less than two

weeks—even before the grievance process began. The company refused to offer back pay, but this

amounted to less than two weeks’ wages—for work Cole did not do. Cole rejected the offer because

he insisted the company absorb the cost of its mistake by paying for his involuntary leave of absence.

Yet, it remained far from clear that the company had made a mistake. Hence, viewed from the

company’s (and the union’s) perspective, its offer of reinstatement represented a generous

compromise. Cole was not interested in compromise, however; he assumed a position of righteous

indignation and took a stand on principle. Then, ostensibly blinded by this principle and through his

own fault, Cole failed to exercise due diligence and failed to timely discover, as he reasonably should

have, that the union had in fact abandoned his claim.

        In our opinion, no reasonable jury could conclude other than that Cole should reasonably

have discovered that the union had abandoned his claim sometime during the months of January and

February 2005, as his phone calls were continuously ignored. It was during this period that his § 301

hybrid action accrued. Because such an action is subject to a six-month statute of limitation and

Cole’s complaint was not filed until more than six months after accrual of his claim, the hybrid

action was properly held to be time-barred. We therefore affirm the district court’s judgment in this

respect.



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Cole v. Cleo, Inc.

       C. Merits of Fair Representation Claim

       Although the determination that the action is time-barred obviates the need to consider the

merits of Cole’s claims, the district court employed alternative reasoning to support its award of

summary judgment to the defendants. The court evaluated the merits of Cole’s breach of duty of fair

representation claim and concluded that even if the action had been timely brought, it would fail on

the merits for lack of evidence that the union breached its duty. We find no error in this conclusion.

       There is no dispute as to the applicable standard:

               A breach of the statutory duty of fair representation occurs only when a
       union's conduct toward a member of the collective bargaining unit is arbitrary,
       discriminatory, or in bad faith.... Though we accept the proposition that a union may
       not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion,
       we do not agree that the individual employee has an absolute right to have his
       grievance taken to arbitration.

White v. Detroit Edison Co., 472 F.3d 420, 426 (6th Cir. 2006) (quoting Vaca v. Sipes, 386 U.S. 171,

190-91 (1967)). This court’s substantive examination of the union’s performance must be “highly

deferential” and the union’s decision whether or not to proceed to arbitration, in particular, is

accorded a “wide range of reasonableness.” Id. (quoting Air Line Pilots Assoc., Int’l v. O’Neill, 499

U.S. 65, 78 (1991)).

       The district court ruled as a matter of law that the union’s failure to pursue arbitration could

not reasonably be deemed arbitrary, discriminatory or in bad faith. On appeal, Cole maintains that

the union processed his meritorious grievance in a perfunctory fashion. Yet, as the district court

recognized, Cole, by his own testimony, appears to have been satisfied with the union’s handling of

his grievance through the step four negotiations. Opinion p. 17, JA 771. Indeed, Cole testified that


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No. 07-5850
Cole v. Cleo, Inc.

up to the point of the decision not to arbitrate, the union went through all the proper steps. Cole dep.

p. 119, JA 100. Cole’s chief complaint is that the union wrongfully refused to pursue arbitration on

his behalf. If the union had conducted a thorough investigation of the accident, Cole contends, the

dearth of evidence supporting the company’s finding that his negligence caused the damage to

company property would have been exposed and the appropriateness of pursuing arbitration would

have been apparent.

        Even accepting Cole’s version of the facts, when the union’s decision not to arbitrate is

viewed deferentially from its perspective, the decision simply cannot be characterized as arbitrary,

discriminatory or in bad faith. In step three and step four negotiations, the union had obtained the

company’s offer to reinstate Cole with full seniority. Anderson understandably and reasonably

considered this to be a substantially satisfactory resolution of the grievance. Anderson knew Cole

wanted to press for back pay, but he reasonably concluded this relatively insignificant item of relief

did not justify expenditure of union resources in arbitration. The union might have conducted a

more thorough investigation of the accident, but there is no reason to believe it would have made a

difference. There is no reason to believe there was any witness to the damage to the sprinkler, other

than Cole himself, who might have absolved Cole of apparent responsibility. Both Bradley and

Anderson could have done a better job of communicating with Cole, but there is no reason to believe

better communication would have altered the union’s decision not to arbitrate. If they had

communicated better with Cole, he would have known earlier that the union had abandoned his

claim, but this is a fact he should reasonably have discovered on his own in the exercise of

reasonable diligence.

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Cole v. Cleo, Inc.

       In sum, the district court correctly concluded there was no genuine issue of material fact and

that the union was entitled to summary judgment on the fair representation claim. This conclusion

was and is fatal to Cole’s claim against Cleo for wrongful discharge as well, because the two claims

must proceed together if at all.

                                      III. CONCLUSION

       Accordingly, the district court’s award of summary judgment to the defendants is

AFFIRMED.




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