              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                        File Name: 06a0143n.06
                        Filed: February 24, 2006

                                    No. 04-2180

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT




DARIN FOWLER,

             Plaintiff-Appellant,                  ON APPEAL FROM THE
                                              UNITED STATES DISTRICT
                                              COURT FOR THE EASTERN
                                              DISTRICT OF MICHIGAN


v.                                                     OPINION



UNITED AUTOMOBILE WORKERS
OF AMERICA,

          Defendant-Appellee.
______________________________________



Before: NORRIS and BATCHELDER, Circuit Judges; and RICE,* Senior District

Judge.

PER CURIAM.

      From October 25, 1993, until May 20, 1999, Appellant Darin Fowler (“Fowler”)

was employed by A.G. Simpson Automotive Systems (“A.G. Simpson”) at its Sterling

Heights, Michigan, manufacturing facility. Fowler’s employment was governed by a


      *
      The Honorable Walter H. Rice, Senior United States District Judge for the
Southern District of Ohio, sitting by designation.
collective bargaining agreement between Local 417 of the United Automobile,

Aerospace and Agricultural Implement Workers of America (“Local 417") and A.G.

Simpson, as well as by rules and regulations adopted by the latter.

      On May 20, 1999, A.G. Simpson fired Fowler for excessive absenteeism,

because he had been absent from work on May 10th and 11th, absences which A.G.

Simpson concluded were unexcused. The following day, May 21st, Local 417 initiated

grievance proceedings, contending that A.G. Simpson had breached the applicable

collective bargaining agreement and the rules and regulations by discharging Fowler.

On April 4, 2000, before that grievance could proceed to arbitration, it was withdrawn

by Dan McCarthy, President of Local 417, and Ernie Emery, the representative of the

United Automobile, Aerospace and Agricultural Implement Workers of America (“UAW”)

for Region 1. Fowler then took advantage of the internal union process to appeal

the withdrawal of the grievance on his behalf. On May 22, 2001, the Convention

Appeals Committee of the UAW directed the UAW and Local 417 to attempt to reinstate

Fowler’s grievance. The grievance was reinstated, and the matter was submitted to an

arbitrator, who found that Fowler had been discharged without cause, given that he had

valid excuses for having been absent from work on both May 10 and 11, 1999. The

arbitrator ordered that Fowler be reinstated and awarded him back pay, except for the

period from April 4, 2000, when the grievance was withdrawn, until June, 2001, when it

was reinstated.

      Fowler then brought this action against the UAW, seeking to recover back pay

for that period. He set forth a hybrid § 301 action, i.e., an action under § 301 of the

Labor Management Relations Act, 29 U.S.C. § 185. Fowler alleged that the UAW

                                          -2-
had acted arbitrarily and capriciously by withdrawing the grievance and that he had

been dismissed without cause because he had valid excuses for missing the two

days which led to his discharge.1

       After the parties had conducted discovery, the UAW moved for summary

judgment, arguing that the evidence failed to raise a genuine issue of material fact

on whether it had breached the duty of fair representation owed to Fowler. The

district court agreed and granted summary judgment to the UAW. Fowler appeals,

arguing that the grant of summary judgment was erroneous, because the evidence

raised such an issue of fact.

       We review the grant of summary judgment de novo. Schweitzer v. Teamster

Local 100, 413 F.3d 533, 536 (6th Cir.2005). In reviewing the grant of a motion for

summary judgment, we must construe the evidence in the manner most favorable to the

nonmoving party. Demski v. U.S. Dept. of Labor, 419 F.3d 488, 491 (6th Cir. 2005).

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that


       1
        A hybrid § 301 action has two elements: “breach of a collective bargaining
agreement by the employer and breach of the duty of fair representation by the
union.” Garrison v. Cassens Transport Co., 334 F.3d 528, 538 (6th Cir. 2003)
(internal quotation marks and citation omitted), cert. denied, 540 U.S. 1179 (2004).
Herein, the arbitrator concluded that A.G. Simpson had breached the collective
bargaining agreement which governed Fowler’s employment by discharging him
without just cause, given that he had valid excuses for missing work on both May
10th and May 11th. A union will breach its duty of fair representation by, inter alia,
arbitrarily handling an employee’s grievance. Vaca v. Sipes, 386 U.S. 171, 190
(1967). Fowler has not sued A.G. Simpson, his employer. It is, however, of no
consequence that he has brought suit against the UAW alone, since an employee
in a hybrid § 301 action “may, if he chooses, sue one defendant and not the other;
but the case he must prove is the same whether he sues one, the other, or both.”
DelCostello v. Teamsters, 462 U.S. 151, 165 (1983).

                                            -3-
there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

       Given that oral argument was waived, and having studied the record and the

briefs of the parties, we are not persuaded that the district court erred in granting

summary judgment to the Appellee. Given that the district court thoroughly and

correctly articulated the reasons why the Appellee is entitled to summary judgment, the

issuance of a detailed opinion by this Court would be superfluous and would serve no

useful purpose. Accordingly, we affirm the judgment of the district court, based upon

the reasoning set forth in its memorandum opinion filed on August 27, 2004.




                                            -4-
