UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

CARL BUCK, 

 Plaintiff-Appellant, 

v. 

CF&I STEEL, L.P., 

 Defendant-Appellee. 

No. 13-1017 

(D.C. No. 1:11-CV-02801-WYD-CBS) 

(D. Colo.)

 

ORDER AND JUDGMENT*

 

Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges. 

 

 At his employer’s insistence, Carl Buck submitted to a randomized drug test, 

and the results weren’t good. In fact, the lab determined that Mr. Buck had likely 

tampered with the sample he turned in. That led his employer, CF&I Steel, L.P., to 

terminate his employment, and that led Mr. Buck to initiate this lawsuit. Ultimately, 

the district court granted the employer’s motion for summary judgment, and it is this 

result Mr. Buck now appeals. 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 5, 2013

Elisabeth A. Shumaker 

Clerk of Court
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 When Mr. Buck underwent the drug test, he submitted what was supposed to 

be a sample of his urine. But the lab reported back, “INVALID RESULT: Abnormal 

Physical & Chemical Characteristics which may include one or more of the 

following: no uric acid, no urine odor, abnormal appearance, or no foaming.” Aplt. 

App. at 132. Interpreting this report as evidence that Mr. Buck had faked or 

adulterated his urine sample, CF&I Steel issued him a provisional discharge for 

refusing to cooperate with the company’s drug testing efforts. Id. at 88. Under the 

collective bargaining agreement, an employee’s “refusal to cooperate regarding the 

collection of samples” is indeed grounds for a provisional discharge. Id. at 78. 

Before notifying Mr. Buck of the provisional discharge, however, CF&I Steel had 

him take a second test, just three days after the first. Several weeks later, the results 

of the second drug test came back positive for methamphetamine. But it is the 

alleged tampering with the first test that the company cited to support its decision to 

let Mr. Buck go, for under the terms of the collective bargaining agreement failing to 

pass an initial drug test would not have warranted termination, but instead a second 

chance. 

Because Mr. Buck’s discharge for tampering with the first sample was 

provisional, his union was able to appeal it by requesting a grievance hearing, and it 

did. At the hearing, the union insisted that Mr. Buck should be sent to treatment 

rather than terminated. The company disagreed and denied the grievance. The union 

next appealed that denial and arranged a second hearing with the company. This 
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time, the union stressed that the first drug test results hadn’t identified what was in 

the sample that Mr. Buck provided, and argued that a sample isn’t necessarily 

adulterated just because the lab labels it invalid. Once again, the company denied the 

grievance, citing lab evidence that the sample wasn’t human urine and claiming that 

Mr. Buck had confessed to adulterating the sample. After one final meeting with the 

company, the union decided not to take the matter to arbitration and dropped the 

grievance. This suit followed. 

Mr. Buck challenges his termination using section 301 of the Labor 

Management Relations Act of 1947, now codified at 29 U.S.C. § 185. The particular 

claim he brings is known as a hybrid claim because it is based on both an alleged 

breach of the employer’s collective bargaining agreement and an alleged breach of 

the union’s duty to represent the employee fairly. To prevail on a hybrid § 301/duty 

of fair representation claim, Mr. Buck must prove “(1) Some conduct by the worker’s 

union that breached the duty of fair representation; (2) A causal connection showing 

that the union’s breach affected the integrity of the arbitration process, and; (3) A 

violation of the collective bargaining agreement by the company.” Webb v. ABF 

Freight Sys., Inc., 155 F.3d 1230, 1239 (10th Cir. 1998). At summary judgment, the 

district court could find no genuine issue of material fact to support a possible breach 

of the union’s duty of fair representation. Neither can we. 

 A union breaches its duty of fair representation when it “acts in a 

discriminatory, dishonest, arbitrary, or perfunctory fashion.” Id. at 1239. Mr. Buck 
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focuses on the third and fourth possibilities. To be arbitrary, however, the union’s 

decision must fall “so far outside the wide range of reasonableness accorded union 

representatives as to be irrational.” Young v. UAW Labor Emp’t & Training Corp., 

95 F.3d 992, 998 (10th Cir. 1996) (brackets and internal quotation marks omitted). 

And a union handles a claim in a perfunctory manner by “act[ing] without concern or 

solicitude, or g[iving] a claim only cursory attention.” Webb, 155 F.3d at 1240 

(internal quotation marks omitted). Mr. Buck does not identify any facts that suggest 

the union might have come close to any such failing. Rather, he explains why, in his 

judgment, his claim was a good one, and he faults the union for not sharing his view. 

Aplt. Reply Br. at 7-8. As we have said before, though, that it is not enough. We 

will not replace “the Union’s good faith, nondiscriminatory judgment in assessing 

and presenting its members’ grievances” with our own second guesses. Young, 95 

F.3d at 997. 

Mr. Buck suggests that a union automatically breaches its duty of fair 

representation when it fails to provide a convincing and contemporaneous 

explanation to the employee for its failure to pursue his claim in the manner the 

employee wishes. And that the union does so no matter how rational and thoughtful 

that decision may prove to be. But there is no such requirement in the statute or our 

case law. To be sure, Mr. Buck cites a Ninth Circuit case that stated as follows: “If a 

union provides an explanation for having ignored a particularly strong argument 

during a grievance procedure that is based on reasoning, we will not question 
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whether the reasoning was faulty or not.” Peters v. Burlington N. R.R. Co., 931 F.2d 

534, 540 (9th Cir. 1990). But Mr. Buck reads too much into this statement. The 

court went on to fault the union for offering no explanation to it, and not the affected 

employee. See id. at 541. Nowhere does Peters mandate the sort of 

contemporaneous explanation Mr. Buck supposes. 

The judgment of the district court is affirmed. 

 Entered for the Court 

 Neil M. Gorsuch 

 Circuit Judge