                                                             FILED
                                                  United States Court of Appeals
                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                     September 13, 2007
                                     TENTH CIRCUIT
                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court

 RANDALL R. HINKLEY,

                Plaintiff - Appellant,

           v.                                                 No. 06-3097
                                                     (D. Ct. No. 03-CV-2620-CM)
 ROADWAY EXPRESS, INC.; LOCAL                                  (D. Kan.)
 UNION #41 OF THE INTERNATIONAL
 BROTHERHOOD OF TEAMSTERS,

                Defendants - Appellees.



                               ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, SEYMOUR, and HOLMES, Circuit Judges.


       Plaintiff-Appellant Randall Hinkley filed suit pursuant to section 301 of the Labor

Management Relations Act, 29 U.S.C. § 185, alleging that his employer terminated him

in violation of the collective bargaining agreement between his employer and his union

and that his union breached its duty of fair representation in handling his grievance. The

District Court concluded that Mr. Hinkley had not presented any evidence that the union

breached its duty and entered summary judgment in favor of Defendants-Appellants

Roadway Express, Inc. (“Roadway”) and International Brotherhood of Teamsters Local


       *
        This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Union 41 (“Union”). Mr. Hinkley appeals the court’s decision. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and AFFIRM.

                                    I. BACKGROUND

       Mr. Hinkley worked as a city driver for Roadway, a nationwide trucking company.

He was also a member of the Union, which served as his exclusive bargaining agent

under a collective bargaining agreement (“CBA”) between Roadway and the Union.

Under the CBA, Mr. Hinkley may not be terminated “without just cause,” although “no

warning or notice need be given . . . before he is discharged if the cause of such discharge

is proven dishonesty,” which is in fact Roadway’s reason for firing Mr. Hinkley. The

CBA also establishes a grievance procedure for employment disputes, including the

discharge of an employee.

       In addition, under the CBA, Roadway may not use “computer tracking devices”

for disciplinary purposes except in a few limited situations not at issue in the present case.

Some Roadway trucks contain a Roadway Digital Dispatch system (“RDD”). The driver

uses the RDD system to record delivery and pick-up information, and the dispatcher uses

the RDD system to send messages to the driver. The RDD system also includes a

tracking system called a global positioning system (“GPS”), which tracks the location of

Roadway trucks by satellite. In handling Mr. Hinkley’s grievance against Roadway, the

Union argued that the CBA prohibits Roadway from using tracking data obtained from




                                             -2-
the GPS for disciplinary purposes.1

       On June 6, 2003, Mr. Hinkley worked from 4:00 p.m. to 12:30 a.m. He was

scheduled to make deliveries to two Home Depot stores—one in Bannister, Missouri, and

one in Lee’s Summit, Missouri. Between these two deliveries, Mr. Hinkley stopped at the

Home Depot store in Independence, Missouri.

       The following Monday, June 9, Darryl Hoag, Roadway’s driver manager,

reviewed Mr. Hinkley’s RDD entries and noticed significant time discrepancies and

missing entries for his shift on June 6. He then reviewed Mr. Hinkley’s loading guides,

dispatch summary sheet, delivery receipts, and the GPS positioning report. Based on the

GPS report, Mr. Hoag determined that Mr. Hinkley’s RDD entries were incorrect. He

then asked Mr. Hinkley to report to his office with a Union representative when he

arrived at work that day.

       Mr. Hinkley and a Union representative subsequently met with Mr. Hoag, who

questioned Mr. Hinkley about his whereabouts the previous Friday, June 6. During this

interview, Mr. Hinkley admitted he was at the Home Depot store in Independence where

he had no authorized company business. When Mr. Hoag asked him why he visited the



       1
        The District Court identified the GPS, rather than the entire RDD system, as the
computer tracking device that the Union argued Roadway could not use for disciplinary
purposes under the CBA. In his brief, however, Mr. Hinkley refers to both the RDD and
the GPS in discussing the computer tracking device specified in the CBA. Based on our
review of the record, we agree with the District Court. During the grievance hearings,
Mr. Hinkley’s Union representative referred to the GPS as the tracking device used by
Roadway to initiate discipline. When we refer to tracking data, we are therefore referring
to data obtained from the GPS, rather than the entire RDD system.

                                           -3-
Independence store, Mr. Hinkley replied that he was “taking care of the customer,” but

would not give specific details. He also stated he was taking his lunch break at this time.

Two days later, on June 11, Roadway terminated Mr. Hinkley for “proven dishonesty”

related to his actions on June 6.

       After Mr. Hinkley’s discharge, the Union filed a grievance on his behalf, and on

June 17, a joint labor-management committee called the Kansas City Local Cartage

Committee (“Local Cartage Committee”) held a grievance hearing. At the hearing, Mr.

Hinkley’s Union representative, Victor Terranella, raised a point of order regarding the

CBA’s provision prohibiting the use of computer tracking devices (i.e., the GPS) for

disciplinary purposes. Mr. Terranella argued that because Mr. Hoag consulted computer

tracking data after noticing time gaps in Mr. Hinkley’s RDD entries, Roadway had used a

computer tracking device for disciplinary purposes in violation of the CBA, and Mr.

Hinkley should therefore be reinstated with full seniority and back pay. The Local

Cartage Committee deadlocked on the point of order.

       In accordance with the grievance procedure under the CBA, the Union then

pursued Mr. Hinkley’s grievance before the Missouri-Kansas Two-State Committee

(“Mo-Kan Committee”). On July 8, the Mo-Kan Committee held a hearing, at which Mr.

Terranella raised the same point of order regarding Roadway’s use of the GPS data. The

Mo-Kan Committee upheld the point of order and sent the grievance back to the Local

Cartage Committee to be heard on the merits without the use of any computer tracking

data. On July 22, the Local Cartage Committee held a hearing on the merits and upheld

                                            -4-
Mr. Hinkley’s discharge.

       Mr. Hinkley subsequently filed a claim against both Roadway and the Union under

section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, alleging Roadway

breached the CBA and the Union breached its duty of fair representation. The District

Court granted both defendants’ motions for summary judgment, concluding that Mr.

Hinkley had failed to present any evidence that the Union breached its duty of fair

representation—a necessary element of Mr. Hinkley’s claim against both defendants. Mr.

Hinkley appeals the court’s order, arguing that summary judgment was improper because

material issues of fact exist concerning the Union’s representation.

                                    II. DISCUSSION

       We review the District Court’s grant of summary judgment de novo, applying the

same standards that the District Court applied. Young v. United Auto. Workers-Labor

Employment & Training Corp., 95 F.3d 992, 996 (10th Cir. 1996). Roadway and the

Union are entitled to summary judgment if the evidence shows that “no genuine issue as

to any material fact” exists. Fed. R. Civ. P. 56(c). In making this determination, “[w]e

view the record and all inferences therefrom in the light most favorable to” Mr. Hinkley

as the nonmoving party. Nelson v. Holmes Freight Lines, Inc., 37 F.3d 591, 594 (10th

Cir. 1994).

A.     Standard Applicable to Duty of Fair Representation Claims

       Mr. Hinkley’s claim is a hybrid action under section 301 of the Labor Management

Relations Act. To prevail against either Roadway or the Union, Mr. Hinkley must prove:

                                            -5-
(1) his former employer, Roadway, violated the CBA, and (2) the Union breached its duty

of fair representation. Nelson, 37 F.3d at 594 (“In a hybrid action, an employee’s claims

are directed against both the former employer and the union, and allege a violation of the

collective bargaining agreement by the employer and a breach of the duty of fair

representation by the union.”). The sole issue before us on appeal is whether the Union

breached its duty of fair representation in handling Mr. Hinkley’s grievance against

Roadway.

       A union representing an employee in a grievance or arbitration procedure breaches

its duty of fair representation by acting “in a discriminatory, dishonest, arbitrary, or

perfunctory fashion.” Int’l Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 864 n.6

(1987) (quotation omitted); see also Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1239

(10th Cir. 1998) (noting that this Court has repeatedly described this standard “as

prohibiting arbitrary, discriminatory, bad faith, or perfunctory conduct”). In the case

before us, Mr. Hinkley argues that the Union’s conduct was arbitrary and perfunctory and

that it acted in bad faith.

       The Union’s representation of Mr. Hinkley is 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, 499 U.S. 65, 67 (1991) (citation and quotation omitted). For the Union to

act in a “perfunctory” fashion, it would have to act “‘without concern or solicitude, or

[give] a claim only cursory attention.’” Webb, 155 F.3d at 1240 (quoting Beavers v.

                                             -6-
United Paperworkers Int’l Union, Local 1741, 72 F.3d 97, 100 (8th Cir. 1995)). To

establish arbitrary or perfunctory action, Mr. Hinkley must demonstrate that the Union’s

actions constitute more than “mere errors in judgment,” Hines v. Anchor Motor Freight,

Inc., 424 U.S. 554, 571 (1976), or “mere negligence,” United Steelworkers v. Rawson,

495 U.S. 362, 372–73 (1990). To establish that the Union acted in bad faith, he must

present evidence of “fraud, deceitful action or dishonest action.” Mock v. T.G. & Y.

Stores Co., 971 F.2d 522, 531 (10th Cir. 1992).

       Moreover, even if the Union breached its duty of fair representation, Mr. Hinkley

must show that the breach “seriously undermined” the grievance proceedings. Webb, 155

F.3d at 1242; see also VanDerVeer v. UPS, Inc., 25 F.3d 403, 405 (6th Cir. 1994) (“[T]he

plaintiff must meet the onerous burden of proving that the grievance process was

seriously flawed by the union’s breach of its duty to represent employees honestly and in

good faith and without invidious discrimination or arbitrary conduct.” (quotation

omitted)). As we have previously noted, judicial review of a union’s conduct is highly

deferential. Young, 95 F.3d at 997 (holding that this Court will not second-guess a

union’s “good faith, nondiscriminatory judgment in assessing and presenting its

members’ grievances”).

B.     Evidence that the Union Breached Its Duty of Fair Representation

       Mr. Hinkley argues that the Union breached its duty of fair representation because

his Union representative, Mr. Terranella, acted in an arbitrary and perfunctory fashion by

failing to object to one of the panel members hearing his grievance and failing to

                                           -7-
introduce evidence of Roadway’s improper use of information obtained from the

computer tracking device. He also contends that certain remarks made by Mr. Terranella

indicate that the Union acted in bad faith. Based on our review of the record, however,

the Union did not act in bad faith or in an arbitrary or perfunctory manner in its handling

of Mr. Hinkley’s grievance. As we explain below, none of the conduct that Mr. Hinkley

identifies suggests that the Union breached its duty of fair representation.2

       First, Mr. Hinkley argues that Mr. Terranella acted arbitrarily in failing to object to

one of the panel members who heard his grievance. On July 8, 2003, the day of Mr.

Hinkley’s hearing before the Mo-Kan Committee, Yellow Corporation (“Yellow”)

announced its intent to acquire Roadway. The labor relations manager for Yellow

Transportation, John Graves, was a member of both the Local Cartage and the Mo-Kan

Committees that heard Mr. Hinkley’s grievance. Mr. Hinkley argues that Mr. Terranella

should have objected to Mr. Graves’s serving on these committees because, in light of the

pending merger, a Yellow employee would not be an impartial arbitrator. In support of



       2
         Mr. Hinkley argues that the District Court misapplied the standard applicable to
summary judgment motions by improperly weighing evidence and not considering the
record in the light most favorable to him as the nonmoving party. To support this
argument, he cites employment discrimination cases, in which we note that, once a
plaintiff presents evidence that an employer’s stated reason is a pretext for discrimination,
a jury should determine whether the employer actually had a discriminatory motive. See,
e.g., Randle v. City of Aurora, 69 F.3d 441, 453 (10th Cir. 1995). We fail to see how
these cases apply, as Mr. Hinkley has not alleged that the Union’s conduct was
discriminatory. To the extent he is arguing that a jury should decide whether the Union
acted in bad faith, he must present some evidence of “fraud, deceitful action or dishonest
action.” Mock, 971 F.2d at 531. As we note below, he has failed to do so.


                                             -8-
this requirement of impartiality, Mr. Hinkley notes that the CBA’s procedural rules do not

allow representatives of employers who are parties to the grievance to serve on the

committees hearing the grievance.

       The grievance procedures under the CBA do not, however, ensure the complete

impartiality of grievance committees. Instead, the CBA directs that employers and unions

appoint an equal number of committee members. Potential bias is therefore an inherent

part of the selection process; some members represent employers and some represent

unions. See United Steelworkers of Am. Local 1913 v. Union R.R. Co., 648 F.2d 905, 913

(3d Cir. 1981) (characterizing a public law board consisting of a carrier representative and

a union representative as “bipartisan rather than impartial and disinterested”). Indeed,

even though the CBA’s procedural rules also prohibit representatives of the local union

from serving on grievance committees, members of Mr. Hinkley’s union, Local 41, sit on

grievance panels because Local 41 is the only local in the area. Moreover, the Union had

not notified Mr. Terranella of any change in policy regarding the inclusion of Yellow

employees on panels hearing grievances involving Roadway, and although Yellow had

announced its intention to acquire Roadway, the acquisition was not complete until after

Mr. Hinkley’s grievance was resolved. Given the nature of joint labor-management

committees and the fact that Mr. Graves was merely a representative of an entity

intending to acquire Roadway, Mr. Terranella’s decision not to object to Mr. Graves as a

panel member is not arbitrary or perfunctory. It does not fall outside the “wide range of

reasonableness” accorded union representatives, see O’Neill, 499 U.S. at 67, or indicate a

                                            -9-
lack of concern for Mr. Hinkley’s grievance, see Webb, 155 F.3d at 1240.

      Second, Mr. Hinkley contends that Mr. Terranella should have introduced the first

page of an inter-office memorandum during the final grievance hearing. In that

memorandum, Mr. Hoag explained that his interview with Mr. Hinkley occurred after Mr.

Hoag noted discrepancies in Mr. Hinkley’s RDD entries and consulted GPS tracking data

for the day in question. According to Mr. Hinkley, this part of the memorandum shows

that his discharge was based on his employer’s use of a computer tracking device in

violation of the CBA. Mr. Terranella had made this very argument in the first hearing

before the Local Cartage Committee and then again before the Mo-Kan Committee,

urging both committees to order that Mr. Hinkley be reinstated because his discharge was

based on Roadway’s improper use of computer tracking data. The Mo-Kan Committee

agreed that the tracking data should be excluded from the grievance proceedings, but

directed that the case nevertheless be heard on “its merits on discussion with employee.”

Mr. Terranella understood the Mo-Kan Committee’s decision as a directive that the Local

Cartage Committee hear the case based on what transpired in Mr. Hinkley’s meeting with

Mr. Hoag. Relying on his understanding of the Mo-Kan Committee’s decision, Mr.

Terranella did not argue again that Roadway terminated Mr. Hinkley based on improper

use of computer tracking data. In other words, he made a rational decision not to reargue

an issue he thought had already been decided. Hence, his decision not to introduce the




                                          - 10 -
first page of the memorandum is not arbitrary.3

       In a related argument, Mr. Hinkley claims that Mr. Terranella acted arbitrarily in

not objecting to Roadway’s introduction of evidence based on his meeting with Mr. Hoag

because the meeting would not have occurred if Mr. Hoag had not reviewed the computer

tracking data and used it for disciplinary purposes in violation of the CBA. His theory is

based on an evidentiary rule applied in criminal cases: that is, because the CBA prohibits

use of a computer tracking device for disciplinary purposes, the statements Mr. Hoag

obtained during his interview with Mr. Hinkley were the “fruit of the poisonous tree” and,

as such, could not be used for disciplinary purposes. But this doctrine—intended to deter

unlawful governmental action—does not apply in this context. See Jenkins v. City of

New York, 478 F.3d 76, 91 n.16 (2d Cir. 2007) (“[T]he doctrine is an evidentiary rule that

operates in the context of criminal procedure and has generally been held to apply only in

criminal trials.” (quotation omitted)). Furthermore, the fact that Mr. Terranella did not

present a particular argument does not establish a breach of duty under section 301 when,

as in the instant case, the union representative presented other arguments in support of the

employee. Young, 95 F.3d at 998 (“[T]he failure to present a particular argument is

insufficient to create a genuine issue of material fact in light of the other efforts made by

[the union representatives].”); see also Mock, 971 F.2d at 531 (“Simply showing that the

       3
       Mr. Hinkley also claims that Mr. Terranella withheld the first page of this
memorandum from him until his grievance proceedings were finished. He argues that
Mr. Terranella intentionally (i.e., in bad faith) withheld this information to conceal his
poor representation, but he offers no evidence that would support his allegations of
improper motive. Consequently, we find this argument meritless.

                                            - 11 -
Union did not represent [the former employees] as vigorously as it could have does not

establish a section 301 violation.”).

       Finally, Mr. Hinkley claims that the Union acted in bad faith by discussing his

grievance in advance of the grievance hearings. He claims that Mr. Terranella indicated

that the Union members of the grievance committees were “on the same page” and that

the Union routinely works out deals in advance of grievance hearings. Mr. Hinkley

supports his allegation of bad faith by drawing our attention to a brief exchange he had

with Mr. Terranella. When asked by Mr. Hinkley whether the Union members of the

grievance committee were all “on the same page,” Mr. Terranella replied affirmatively,

remarking that “we discuss these things.” Even if this were true, the record contains no

evidence that the Union intentionally provided Mr. Hinkley with poor representation, see

Young, 95 F.3d at 997 n.1, or engaged in fraudulent, deceitful, or dishonest behavior in its

representation of Mr. Hinkley, id. In other words, even if Union members discussed the

case, nothing in the record suggests that Mr. Terranella or other Union members were

acting in bad faith in connection with Mr. Hinkley’s grievance.

                                    III. CONCLUSION

       Because no genuine issue of material fact exists as to whether the Union breached

its duty of fair representation, we AFFIRM the District Court’s grant of summary




                                           - 12 -
judgment in favor of the Union and Roadway.


                                      ENTERED FOR THE COURT,



                                      Deanell Reece Tacha
                                      Chief Circuit Judge




                                       - 13 -
