* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable J. Thomas Marten, District Judge, Uni ted States District Court for the District of Kansas, sitting by design ation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 13 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

RAYMOND F. EGINTON,

Plaintiff-Appellant,

v. MARVIN T. RUNYON, sued as United States of America ex rel.; UNITED STATES POSTAL SERVICE by and thru the Postmaster General; AMERICAN POSTAL WORKERS UNION, AFL-CIO by and thru the Oklahoma City Local,

Defendants-Appellees. No. 97-6002 (D.C. No. 94-CV-1099) (W.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, ** District Judge.1 Because § 1208(b) is analogous to § 301(a) of the L abor Management

Relations Act, case law developed under § 301(a) fo r private sector employees is equally applicable to actions brought by postal service employees under § 1208(b). See, e.g. , Bacashihua v. United States Postal Serv. , 859 F.2d 402, 405 (6th Cir. 1988); Trent v. Bolger , 837 F.2d 657, 659 (4th Cir. 1988). -2- After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff Raymond F. Eginton is an employee of the United States Postal Service who has filed numerous grievances under the collective bargaining agreement between the postal service and the Americ an Postal Workers Union (APWU). He appeals the district court’s grant of s ummary judgment on his claims under 39 U.S.C. § 1208(b) that, in dealing w ith his grievances, the postal service violated the agreement and the APWU breache d its duty of fair representation. In our de novo review of the recor d, we have identified no genuine issue of material fact and no error in the district court’s legal conclusions. See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). Eginton’s claims against the postal service and the APWU are “‘inextricably interdependent.’” See Nelson v. Holmes Freight Lines, Inc. , 37 F.3d 591, 594 (10th Cir. 1994) (quoting DelCoste llo v. International Bhd. of Teamsters , 462 U.S. 151, 164-65 (1983)). 1 To prevail against either the postal-3-

service or the APWU, he must establish that the APWU has breached its duty of fair representation. See Nelson , 37 F.3d at 594. A union, however, is granted broad latitude in deal ing with its members and its performance is viewed in a highly deferential l ight. See Air Line Pilots Ass’n, Int’l v. O’Neill , 499 U.S. 65, 78 (1991). “[T]o prevail in a claim for a breach of duty of fair representation, a plaintiff must prove that the union’s conduct was ‘arbitrary, discriminatory, or in bad faith.’” Arn old v. Air Midwest, Inc. ,100 F.3d 857, 862 (10th Cir. 1996) (quoting Vaca v. Sipes , 386 U.S. 171, 190 (1967)). A union’s actions are arbitrary only if, in light o f 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 reasonab leness as to be irrational. A union’s discriminatory conduct violates its duty of fair representation if it is invidious. Bad faith requi res a showing of fraud, or deceitful or dishonest action. Aguinaga v. United Food & Commercial Workers Int’l Union , 993 F.2d 1463, 1470 (10th Cir. 1993) (internal quotations and citations omitted). There is nothing in the record showing that the APWU acted in an arbitrary, discriminatory, or bad faith manner. At most, Eginton has shown that the APWU did not pursue his grievances as vigorously as it c ould have and misinformed him about the status of his grievances. This conduct d oes not amount to a breach of the duty of fair representation. Moreover, the fai lure to show breach on the part2 We have affirmed the grant of summary judgment and do not reach

Eginton’s argument that he was entitled to a jury trial against the postal service. We note, however, that other circuit courts of appe al have determined that there is no constitutional or statutory right to a jury trial against the postal service in this type of employment case. See Crawford v. Runyon , 79 F.3d 743, 744 (8th Cir. 1996); Young v. United States Postal Serv. (In re Young) , 869 F.2d 158, 159 (2d Cir. 1989). -4- of the APWU means that Eginton cannot establish his breach of contract claim against the postal service. See Nelson , 37 F.3d at 594. 2 For substantially the same reasons set forth in the district court’s order of November 4, 1996, the judgment is AFFIRMED.

Entered for the Court

John C. Porfilio Circuit Judge