Circuit Judge John Daniel Tinder recused himself and did 

not participate in the decision of this appeal, which is being

resolved by a quorum of the panel. See 28 U.S.C. § 46(d).

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2964

ROBERT YEFTICH, et al.,

Plaintiffs-Appellants,

v.

NAVISTAR, INC., and

INDIANAPOLIS CASTING CORP.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:09-cv-01045—Sarah Evans Barker, Judge.

ARGUED FEBRUARY 27, 2013—DECIDED JUNE 18, 2013

Before FLAUM and SYKES, Circuit Judges.



SYKES, Circuit Judge. We review here the dismissal of

a complaint filed by a group of unionized workers at

a Navistar engine plant in Indianapolis, Indiana. The
2 No. 12-2964

plaintiffs alleged that they were laid off by Navistar

and not rehired as work became available because

the company had actually subcontracted their work to

nonunion plants in contravention of the governing

collective-bargaining agreement. The workers brought

this action against Navistar under section 301 of the

Labor Management Relations Act (“LMRA”) for breach

of the collective-bargaining agreement.

A successful section 301 claim requires not only a

breach of contract by the employer but also a breach by

the plaintiffs’ union of its duty of fair representation.

The latter is required because the union is responsible

for representing its members’ interests and addressing

their complaints pursuant to whatever grievance process is set up by the relevant collective-bargaining agreement. Only when the union fails to carry out that

duty may union members pursue section 301 litigation

against their employer. To satisfy this requirement, the

plaintiffs alleged that they filed grievances challenging

Navistar’s subcontracting of work but the union intentionally failed to process the grievances in breach of its

duty of fair representation. The district court held that

the complaint lacked enough factual content to plead

a plausible claim for breach of the duty of fair representation and therefore dismissed the LMRA claim.

We affirm. The complaint identifies the elements of

a duty-of-fair-representation claim and contains allegations that each element is satisfied. But we agree with

the district court that because the allegations are almost

all conclusory, the complaint lacks the necessary factual
No. 12-2964 3

content to state a plausible claim under section 301 of

the LMRA. 

I. Background

The plaintiffs are union members who worked for

Navistar, Inc., and its wholly owned subsidiary Indianapolis Casting Corp. (collectively, “Navistar”), at its

engine-manufacturing plant in Indianapolis. They were

represented for collective-bargaining purposes by the

United Auto Workers, Local Union Nos. 98 and 226, and

their employment was subject to the terms of a collectivebargaining agreement and related letters of agreement

and other contract documents (collectively, the “CBA”).

The plaintiffs alleged that on unidentified dates they

were laid off from their jobs at the plant, ostensibly

for lack of available work, but Navistar actually subcontracted their work to nonunion plants in contravention of the CBA. They also alleged that Navistar

failed to recall them as work became available, also in

contravention of the CBA. They claim to have filed hundreds of grievances with the union and were assured

by unnamed union officials that the grievances were

being processed. Instead, the grievances were actually

diverted or stalled. On January 27, 2009, Navistar informed the union that it would be closing the Indianapolis plant; the plaintiffs allegedly heard this news at

some point after the union did. By August 2009 the

plant was closed.

The plaintiffs filed suit against Navistar under

section 301 of the LMRA, 28 U.S.C. § 185, alleging breach
4 No. 12-2964

of the CBA. When union members sue their employer

for breach of contract under section 301 of the LMRA,

they must also state a prerequisite claim of breach of

their union’s duty of fair representation. See Vaca v. Sipes,

386 U.S. 171, 186-87 (1967); Thomas v. United Parcel Serv.,

Inc., 890 F.2d 909, 914-16 (7th Cir. 1989). This is because

ordinarily, union members must first use the grievance

procedures specified in the CBA rather than directly

sue the employer; only when the union has breached

its duty to fairly represent the union members in that

grievance process may the union members bring a

claim against their employer. See, e.g., DelCostello v. Int’l

Bhd. of Teamsters, 462 U.S. 151, 163-64 (1983). In other

words, a section 301 suit is a “hybrid” claim consisting

of both a breach-of-fair-representation element and a

breach-of-contract element. Id. at 163-65. The breach-offair-representation requirement applies whether or not

the plaintiffs name the union as a defendant in their

LMRA suit.

The district court dismissed the LMRA claim for

failure to state a claim, reasoning that the plaintiffs

had failed to adequately plead sufficient facts regarding the prerequisite element of the union’s breach

of its duty to fairly represent its members. The court

explained that most of the plaintiffs’ allegations in this

respect were conclusory, and the closest thing to a

specific factual allegation—that an unnamed union

official told the plaintiffs that their claims were being

processed when this was not true—was insufficient to

state a claim that the union breached its duty of fair

representation. A separate interference-with-benefits
No. 12-2964 5

claim under the Employment Retirement Income Security

Act of 1994 (“ERISA”), 29 U.S.C. §§ 1001, et seq., was later

resolved by summary judgment in favor of Navistar.

The plaintiffs appealed, initially seeking review of the

court’s orders on both the LMRA and ERISA claims.

Since then, 14 of the 43 plaintiffs abandoned their

appeal; we granted their counsel’s motion to withdraw

and dismissed their appeal for failure to prosecute.

The remaining plaintiffs press only the LMRA claim,

focusing specifically on the union’s failure to fairly represent them, so that is the sole issue we address here. Because our resolution of the duty-of-fair-representation issue is dispositive, we do not address Navistar’s alternative arguments for affirmance, including failure

to state a breach-of-contract claim and failure to

exhaust administrative remedies.

II. Analysis 

We review a Rule 12(b)(6) dismissal de novo,

construing the complaint in the light most favorable to

the plaintiffs, accepting as true all well-pleaded facts

and drawing reasonable inferences in the plaintiffs’ favor. FED. R. CIV. P. 12(b)(6); Tamayo v. Blagojevich,

526 F.3d 1074, 1081 (7th Cir. 2008). However, we need

not accept as true statements of law or unsupported

conclusory factual allegations. McCauley v. City of

Chicago, 671 F.3d 611, 616 (7th Cir. 2011). To survive a

motion to dismiss under Rule 12(b)(6), the complaint

must “state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
6 No. 12-2964

claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). “Where a complaint pleads facts that are ‘merely

consistent with’ a defendant’s liability, it ‘stops short of

the line between possibility and plausibility of entitlement to relief.’ ” Id. (quoting Twombly, 550 U.S. at 557)

(internal quotation marks omitted). In such a case, the

inference of liability is merely speculative. “[W]here the

well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—’that the

pleader is entitled to relief.’ ” Id. at 679 (quoting FED. R.

CIV. P. 8(a)(2)).

Here, the district court held that the plaintiffs failed to

state a section 301 claim against their employer because

they had not adequately alleged the prerequisite breach

by the union of its duty of fair representation. “When a

labor organization has been selected as the exclusive

representative of the employees in a bargaining unit, it

has a duty . . . to represent all members fairly.” Marquez

v. Screen Actors Guild, Inc., 525 U.S. 33, 44 (1998).

This duty exists through the negotiation of a collectivebargaining agreement and during the administration of

the agreement, see, e.g., Thomas, 890 F.2d at 917-18, 922;

Schultz v. Owens-Ill. Inc., 696 F.2d 505, 514 (7th Cir. 1982),

and the union’s obligation throughout is “to serve the

interests of all members without hostility or discrimination toward any, to exercise its discretion with complete

good faith and honesty, and to avoid arbitrary conduct,”

Vaca, 386 U.S. at 177. A union has wide latitude in per-
No. 12-2964 7

forming this obligation, however. “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.”

Id. at 190. “Each of these possibilities must be considered

separately in determining whether or not a breach has

been established.” Neal v. Newspaper Holdings, Inc., 349

F.3d 363, 369 (7th Cir. 2003). For example, declining to

pursue a grievance as far as a union member might

like isn’t by itself a violation of the duty of fair representation. Rather, “[t]o prevail on a claim that his

union violated its duty of representation by dropping

a grievance, a plaintiff-member must show that the

union’s decision was arbitrary or based on discriminatory or bad faith motives.” Trnka v. Local Union No. 688,

UAW, 30 F.3d 60, 61 (7th Cir. 1994).

The plaintiffs focus on bad faith and arbitrariness,

arguing that the allegations in their complaint are sufficient to give rise to an inference that the union

arbitrarily and in bad faith treated their grievances perfunctorily or not at all. The complaint generally alleges

that the union knew that Navistar had acted in contravention of the CBA and also contains the following superficially more specific allegations: the plaintiffs filed hundreds of grievances about Navistar’s actions “in a continuous and continuing basis through to the present”; the

union “intentionally mis[led] the [p]laintiffs as to the

status of the grievances when in fact the [u]nion[] invidiously diverted, stalled, and otherwise terminated and

abandoned the grievances”; the union “mis[led] the

[p]laintiffs by telling them that hundreds of such griev-
8 No. 12-2964

ances filed over a period of years await further action

by high [u]nion officials when in fact, upon information

and belief, none have been processed and all are dead”;

and the union refused to give the plaintiffs copies of

the CBA.

Against the Twombly/Iqbal plausibility standard, these

allegations are insufficient to state a claim for breach of

the duty of fair representation. Although the plaintiffs

generally allege that the union is guilty of bad faith

because it “diverted, stalled, and otherwise terminated”

their grievances, the complaint lacks the factual

specificity required to state a plausible breach-of-fairrepresentation claim.

“Whether or not a union’s actions are . . . in bad faith

calls for a subjective inquiry and requires proof that

the union acted (or failed to act) due to an improper

motive.” Neal, 349 F.3d at 369. Bare assertions of the

state of mind required for the claim—here “bad

faith”—must be supported with subsidiary facts. See

Iqbal, 556 U.S. at 680-83. The plaintiffs offer nothing to

support their claim of bad faith apart from conclusory

labels—that the unnamed union officials acted “invidiously” when they failed to process the grievances, or

simply that the union’s actions were “intentional, willful,

wanton, and malicious.” They supply no factual detail

to support these conclusory allegations, such as (for

example) offering facts that suggest a motive for the

union’s alleged failure to deal with the grievances. Deceptive actions can be evidence of bad faith, see

Humphrey v. Moore, 375 U.S. 335, 348 (1964) (suggesting
No. 12-2964 9

that “fraud, deceitful action or dishonest conduct” can

be evidence of bad faith), but the plaintiffs have not

gone beyond their conclusory state-of-mind allegations.

Nor do the plaintiffs offer plausible allegations of

arbitrariness. “Whether a union’s actions are arbitrary

calls for an objective inquiry.” Neal, 349 F.3d at 369. “[T]he

arbitrary prong of the fair representation analysis is

very deferential . . . because Congress did not intend

courts to interfere with the decisions of the employee’s

chosen bargaining representative.” Ooley v. Schwitzer

Div., Household Mfg. Inc., 961 F.2d 1293, 1302 (7th Cir.

1992). “A union’s actions are arbitrary ‘only if . . . the

union’s behavior is so far outside a wide range of reasonableness’ as to be irrational.” Filippo v. N. Ind. Pub. Serv.

Corp., 141 F.3d 744, 749 (7th Cir. 1998) (quoting Air Line

Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991) (omission

in original) (citation and quotation marks omitted)).

While “a union may not arbitrarily ignore a meritorious

grievance or process it in perfunctory fashion,” Vaca,

386 U.S. at 191, it “has discretion to act in consideration of such factors as the wise allocation of its own

resources, its relationship with other employees, and its

relationship with the employer,” Neal, 349 F.3d at 369.

“The union must provide some minimal investigation

of employee grievances, but the thoroughness of this

investigation depends on the particular case, and only

an egregious disregard for union members’ rights constitutes a breach of the union’s duty.” Garcia v. Zenith

Elecs. Corp., 58 F.3d 1171, 1176 (7th Cir. 1995) (internal

quotation marks and citations omitted).
10 No. 12-2964

The plaintiffs generally allege an arbitrary failure to

act on their grievances (“upon information and belief,

none have been processed and all are dead”), but factual

detail in support of this otherwise conclusory allegation

is entirely missing. For example, the plaintiffs do not

identify who filed the grievances, give dates or even a

time frame across which grievances were filed, or otherwise describe the contents of the grievances. They do

not identify which union officials told which plaintiffs

that their grievances were being processed, nor do

they specify when these conversations occurred. And

perhaps most importantly, they do not explain how

long they waited after filing a grievance before concluding that it had been abandoned, or how they knew

that such a wait time was an abnormal and arbitrary delay. Without at least some background factual

content, the complaint’s allegations about “abandoned”

or “dead” grievances are wholly conclusory.

The complaint does allege that the union lied to the

plaintiffs, saying that the grievances were being processed when in fact they weren’t. Dishonesty can be

evidence of bad faith, and a lack of action on grievances

can be evidence of arbitrariness. But absent some specific

factual detail to color these bare conclusory allegations,

the complaint does not plausibly state a claim under

section 301 of the LMRA. It bears repeating that the

union enjoys substantial discretion in fulfilling its duty

of fair representation. See Neal, 349 F.3d at 369. Against

this backdrop principle, the complaint’s skeletal allegations simply mirroring the elements of a section 301 badfaith claim are not enough to take the plaintiffs’ complaint
No. 12-2964 11

over the line from a “possible” to a plausible claim of

entitlement to relief. See Iqbal, 556 U.S. at 678; Twombly,

550 U.S. at 557, 570. The district court properly granted

Navistar’s motion to dismiss.

AFFIRMED.

6-18-13