*

 After an examination of the briefs and the record, we have concluded that

oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the

record. See Fed. R. App. P. 34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 20, 2006*

Decided December 21, 2006

Before

Hon. FRANK H. EASTERBROOK, Chief Judge

Hon. RICHARD A. POSNER, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

No. 06-2432

MELLONDIE BENSON,

Plaintiff-Appellant,

v.

JOHN E. POTTER, Postmaster

General, et al.,

Defendants-Appellees.

Appeal from the United States District

Court for the Southern District of

Indiana, Indianapolis Division.

No. 04 C 1607

Larry J. McKinney, 

Chief Judge.

O R D E R 

Mellondie Benson was fired by her employer, the United States Postal

Service, because she secretly recorded a conversation with her supervisors and,

after they found out, repeatedly refused instructions to turn over the tape. 

Recording work-related conversations and disobeying supervisors’ instructions are

both specifically prohibited under the terms of the Postal Service’s employee

handbook, the Employee and Labor Relations Manual (“ELM”). Benson, a member

of the American Postal Workers Union and its Indianapolis-area affiliate

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 06-2432 Page 2

(collectively “the Union”), asked a shop steward to file a grievance on her behalf,

and the Union pursued her case all the way through arbitration. The arbitrator

found that the Postal Service had just cause for terminating Benson’s employment,

as required by the collective bargaining agreement (“CBA”) between the Union and

Postal Service. 

After unsuccessfully bringing a charge against the Union with the National

Labor Relations Board, Benson filed this hybrid action against the Postal Service

and the Union. A hybrid suit consists of a claim that the employer breached the

collective bargaining agreement and a claim that the union breached its duty of fair

representation. DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164 (1983). 

The claims are “inextricably interdependent”; neither is sustainable if the other

fails. Id. at 164-65; see Neal v. Newspaper Holdings, Inc., 349 F.3d 363, 368 (7th

Cir. 2003); McLeod v. Arrow Marine Transp., Inc., 258 F.3d 608, 613 (7th Cir. 2001).

A typical hybrid claim stems from § 301 of the Labor Management Relations Act, 29

U.S.C. § 185, but where the employer is the Postal Service, the suit is grounded in

39 U.S.C. § 1208(b). E.g., Gibson v. USPS, 380 F.3d 886, 888-89 & 888 n.1 (5th Cir.

2004). In either case, the same law applies. See id. Here, the district court

determined that Benson did not demonstrate that the Union acted arbitrarily,

discriminatorily, or in bad faith in its handling of her grievance. See Vaca v. Sipes,

386 U.S. 171, 190 (1967); Neal, 349 F.3d at 369. Accordingly, it concluded that the

entire action failed and granted summary judgment for the defendants. 

On appeal Benson principally argues that, although the Union shepherded

her grievance all the way through arbitration, its advocacy was merely perfunctory. 

See Vaca, 386 U.S. at 191; Neal, 349 F.3d at 363. In order to prevail she must

establish not just that the union’s representation was inadequate but also that it

adversely affected the outcome of arbitration. See Hines v. Anchor Motor Freight,

Inc., 424 U.S. 554, 568 (1976); Garrison v. Cassens Transp. Co., 334 F.3d 528, 539

(6th Cir. 2003); Garcia v. Zenith Elecs. Corp., 58 F.3d 1171, 1176-77 (7th Cir. 1995).

On this record, Benson is hard-pressed to demonstrate that the district court

erroneously concluded that the Union fulfilled its duty of fair representation. The

Union argued that the Postal Service lacked just cause for Benson’s termination

and reasserted this position throughout the grievance process. The arbitration

award supports the Union’s position that it advocated zealously on Benson’s behalf;

the arbitrator’s order devoted three pages to summarizing the Union’s arguments

for reinstating her. See Garcia, 58 F.3d at 1178-79. The attention given to

Benson’s grievance does not support the conclusion that the Union acted “without

concern or solicitude” or gave Benson’s grievance “only cursory attention.” Martin

v. American Airlines, Inc., 390 F.3d 601, 606-07 (8th Cir. 2004) (citation omitted).
No. 06-2432 Page 3

Moreover, Benson did not establish that the Union’s allegedly deficient

performance caused the unfavorable outcome of the arbitration. As the district

court noted, the case against Benson was straightforward: she violated one rule by

recording a conversation with her supervisors and another by not complying with

instructions to turn over the tape. Benson admitted to the conduct underlying the

rule violations, and the arbitrator did not find her excuses credible because she gave

contradictory testimony. Thus, as the district court reasoned, the arbitrator’s

decision cannot be attributed to “a failure on the part of the Union in the

presentation of the case.”

Benson cites several examples of what she characterizes as arbitrary conduct

by the Union, but none supports her argument that the district court erroneously

concluded that the Union did not breach its duty. For example, Benson asserts that

the Union failed to investigate her grievance, but the record shows that Union

representatives gave Benson’s complaint immediate attention and conducted

thorough fact-finding during the early stages of the grievance process and in

preparation for the arbitration hearing. Benson also maintains that the Union

arbitrarily refused to give her a choice of arbitration representatives, but, as the

district court explained, no such right exists with respect to the arbitration of

grievances under the CBA. Rather, the Union’s internal rules allow a member

charged with an infraction against the Union to select his or her representative. 

Finally, Benson contends that she should have been invited to the meeting between

her shop steward and the Postal Service designee at step two of the grievance

process, but nothing in the ELM or the CBA requires the grievant’s presence at that

stage. At best, Benson’s objections to the Union’s handling of her grievance amount

to disagreement with its strategy. But a union’s strategic choices are entitled to

deference unless they are irrational, discriminatory, or in bad faith, see Garcia, 53

F.3d at 1177, and its conduct must fall outside a “wide range of reasonableness” in

order to violate is duty of fair representation, see McLeod, 258 F.3d at 613 (citation

omitted). 

We note that Benson also asserts that the Union “did not afford [her] the

same representation as it would its male members,” but she does not develop or

support this contention, and it therefore is waived. See Culver v. Gorman & Co.,

416 F.3d 540, 550 (7th Cir. 2005).

 

Having concluded that Benson did not establish arbitrary, discriminatory, or

bad-faith conduct on the part of the Union, we need not delve into whether the

Postal Service breached the CBA by firing her. The district court properly granted

summary judgment for the defendants.

AFFIRMED.