UNITED STATES CO URT 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 Bu ck 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 em ployer, CF&I Steel, L.P., to terminate his employment, and that led Mr. Buck to initia te this lawsuit. Ultimately, the district court granted the employer’s mo tion for summary judgment, and it is this

result Mr. Buck now appeals.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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- 2 - When Mr. Buck underwent the drug test , he submitted what was supposed to be a sample of his urine. But the la b reported back, “INVALID RESULT: Abnormal Physical & Chemical Characteristics wh ich may include one or more of the following: no uric acid, no urine odor, abnorm al 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 co mpany’s drug testing efforts. Id. at 88. Under the collective bargaining agreement, an employ ee’s “refusal to coope rate regarding the collection of samples” is indeed gr ounds for a provisional discharge. Id. at 78. Before notifying Mr. Buck of the provisi onal discharge, however, CF&I Steel had him take a second test, just th ree days after the first. Se veral weeks late r, the results of the second drug test came back pos itive for methamphetami ne. But it is the alleged tampering with the first test that the company cited to su pport 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 wa rranted termination, but instead a second

chance. Because Mr. Buck’s discharge for ta mpering 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 uni on insisted that Mr. Buck sh ould be sent to treatment rather than terminated. The company disagr eed and denied the grievance. The union next appealed that denial and arranged a second hearing with the company. This- 3 - time, the union stressed that th e first drug test results ha dn’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 ag ain, the company denied the grievance, citing lab evidence that the sample wasn’t hum an urine and claiming that Mr. Buck had confessed to adulterating the sample. After one fi nal meeting with the company, the union decided not to take th e 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 clai m because it is base d on both an alleged breach of the employer’s collective bargaini ng agreement and an alleged breach of the union’s duty to represent the employee fa irly. 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 repr esentation; (2) A causal connection showing that the union’s breach affected the integrity of the arbitration process, and; (3) A violation of the collective bargai ning 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 f act to support a possible breach of the union’s duty of fair repr esentation. Neither can we. A union breaches its duty of fair representation when it “acts in a discriminatory, dishonest, arbitr ary, or perfunctory fashion.” Id. at 1239. Mr. Buck- 4 - focuses on the third and fourth possibilities. To be arb itrary, 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) (bracket s and internal quotation marks omitted). And a union handles a claim in a perfuncto ry manner by “act[ing] without concern or solicitude, or g[iving] a clai m 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 fa iling. Rather, he e xplains why, in his judgment, his claim was a good one, and he fa ults 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’ grievan ces” with our own second guesses. Young , 95

F.3d at 997. Mr. Buck suggests that a union auto matically breaches its duty of fair representation when it fails to provi de a convincing and contemporaneous explanation to the employee for its failure to pursue his clai m 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. Bu ck cites a Ninth Circuit case th at stated as follows: “If a union provides an explanation for having ignored a particularly strong argument during a grievance procedure that is ba sed on reasoning, we will not question- 5 - 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 read s too much into this statement. The

court went on to fault the uni on for offering no explanation to it , and not the affected employee. See id. at 541. Nowhere does Peters mandate the sort of contemporaneous explana tion Mr. Buck supposes. The judgment of the distri ct court is affirmed.

Entered for the Court

Neil M. Gorsuch Circuit Judge