* This order and judgment is not binding precedent, e xcept under the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

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

### APR 10 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DIANN TRAFFAS,

Plaintiff - Appellant, No. 02-3218

v. (D. Kansas) CESSNA AIRCRAFT COMPANY, a division of Textron Corporation; LOCAL LODGE 774 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS (AFL-CIO),

Defendants - Appellees. (D.C. No. 01-CV-1255-JTM)

ORDER AND JUDGMENT *

Before HENRY , ANDERSON , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a dec ision on the briefs1 The complaint, as refined in the pretrial order, ad ditionally alleged a Title

VII cause of action for retaliation. 42 U.S.C. § 2 000e-3(a). The district court also granted Cessna’s motion for summary judgment o n that claim. On appeal, Ms. Traffas does not develop any challenge to that ruling. Accordingly, we do not address the subject. -2- without oral argument. See Fed. R. App. P. 34(f);1 0th Cir. R. 34.1(G). The case is therefore submitted without oral argument. Diann Traffas appeals from an adverse summary judgm ent dismissing her action brought under § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, against the Cessna Aircraft Company ( Cessna) and Local Lodge 774 of the International Association of Machinists (the Union). Ms. Traffas’s suit, commonly referred to as a “hybrid” action, al leges that Cessna breached the collective bargaining agreement (CBA) between Cessn a and the Union when it extended her probationary period of employment and then terminated her employment during the extended period. Ms. Traffas contends that the Union breached its duty of fair representation by agreein g to the probationary period extension and by refusing to represent her upon the termination of her employment. 1 On appeal, Ms. Traffas reasserts her arguments in the district court, contending, inter alia , that the district court erred in its interpretati on and application of the CBA with respect to the commence ment of an employee’s probationary period, and whether the period can be extended. She also argues-3-

that the question as to whether the Union breached its duty of fair representation should be submitted to a jury. Our review of the district court’s summary judgment is de novo , applying the same standard as the district court. Nelson v. Holmes Freight Lines, Inc. , 37 F.3d 591 (10th Cir. 1994). Summary judgment is app ropriate if “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed R. Civ. P. 56(c); Anderson v. Liberty Lobby,
Inc. , 477 U.S. 242, 250-52, 256 (1986). For the reason s set out below, we affirm.

BACKGROUND The district court fully set out the facts of this case in its Memorandum Order, filed May 22, 2002. We refer here only to t hose facts central to this appeal. Ms. Traffas was employed by Cessna on May 15, 2000, beginning as a sheet metal trainee at Cessna’s 21st Street Facility in Wichita, Kansas. On October 3, 2000, she was transferred to the WichitaArea Vocational-Technical School for further training. Upon completion of he r training, on October 23, 2000, she began working at Cessna’s Mid-Continent F acility where she was assigned to Department 134, the sand and fill area.-4-

In late November and early December 2000, two or th ree incidents involving Ms. Traffas and allegations of inappropri ate comments and conduct occurred, resulting in investigations by Cessna per sonnel. On December 13, 2000, Cessna’s labor relations representative, Traf fas’s supervisors, and a union representative met with Traffas and informed her th at her status as a probationary employee was going to be extended 60 days. On Dece mber 19, 2000, Ms. Traffas, a Cessna manager, and Ms. Traffas’s Union steward s igned a written agreement extending Ms. Traffas’s probationary period for 60 days from the expiration of her original 75-day probation. The agreement state s in part that the extension is “[i]n order to determine if probationary employee Diann Traffis [sic], badge #40773, can develop the skills necessary to become a bargaining unit employee . . . .” Aplt’s App. (hereafter “App.”) Vol. 3 at 0572 (emphasis added). Ms. Traffas wrote “under protest” beneath her signature. Ms. Traffas was advised that if she did not agree t o the further probationary period, she would be terminated immediately. The r ecord supports the conclusion that Cessna would in fact have terminated her if sh e had not agreed to the extension, and would have done so with Union approv al. It is undisputed that Cessna, with Union approval, had for years extendedan employee’s probation because of questionable attendance, performance or conduct issues; and, that this was the accepted alternative to discharge during th e probationary period. Thus, as-5-

the district court correctly concluded in its Memor andum Order, the extension of Ms. Traffas’s probation “occurred consistent with the past practice of the employer and the Union.” App. Vol. 2 at 0871. On February 13, 2001, Ms. Traffas made an inappropr iate comment about, and within hearing of, a co-worker. Upon receiving a report of the incident, Cessna investigated, and then terminated Ms. Traffa s’s employment on February 14, 2001. She then approached the Union t o file a grievance. However, the Union declined to represent her becaus e she was still in probationary status.

DISCUSSION In her complaint Ms. Traffas denominates this suit as a “hybrid” action (where the alleged wrongful conduct of the employerand that of the Union are intertwined), under § 301 of the LMRA. App. Vol. 1 at 0001. In a hybrid action the plaintiff must prove both that the employer violated the collective bargaini ng agreement with the Union and that the Union breached its duty of fair representation. See Young v. UAW-LETC , 95 F.3d 992, 996 (10th Cir. 1996); Jarvis v. Nobel/Sysco Food Servs. Co. , 985 F.2d 1419, 1422 (10th Cir. 1993). That requirement is incorporated in the pretrial or der in this case. App. Vol. 1 at
0027-0028.-6- A. Ms. Traffas does not dispute that if she was still in a probationary status when she was terminated on February 14, 2001, then neither of the requirements of a hybrid suit are satisfied. That is, the termi nation would not have violated the CBA, and she would have no claim concerning the Uni on’s duty of fair representation. Thus, a major issue on appeal is w hether or not Ms. Traffas was still a probationary employee at the time she was t erminated. She focuses her argument on the extension, contending first that he r probationary period had already expired by December 19, 2000, and, the CBA does not provide for the revival or creation of a new probationary period af ter the protections of the CBA have attached. Second, she argues that even if she was still in a probationary status on December 19, 2000, the CBA does not allowextensions of that status.

1. The first question, then, is when did Ms. Traffas’s probationary period start? In support of her arguments that her probat ion had already been served, and had expired by the time she began work at the M id-Continent Facility on October 23, 2000 (and, therefore, was not on probat ion in December when the “extension” was signed), Ms. Traffas relies primari ly on Article VI of the CBA which provides in relevant part as follows:-7- ARTICLE VI Dismissal and Grievance Procedure Section A – Dismissal Procedure 42. Any person who has been an employee of the Company seventy-five (75) calendar days or less is consider ed a probationary employee and may be discharged or laid off without cause at the discretion of the Company, and such proceedings sha ll be the sole right of the Company.

. . . 44. All employees who have been in the continuous empl oyment of the Company for a period of more than seventy-five (75) calendar days may be discharged by the Company for cause suc h as the following: Insubordination, intoxication, or being under the influence of intoxicating liquor or drugs while on duty, gros s inefficiency, breach of trust, including commission or concealment of errors, sabotage, and excessive absences. App. Vol. 1 at 0094. Referring to the term “employee” in Article VI, she reasons that the 75-day probationary period commenced when she was first hi red as a trainee on May 15, 2000, because the term “employee” as defined by the Fair Labor Standards Act includes trainees, and, for that matter, virtually anyone receiving compensation from, and rendering a benefit to, the employer. She contends, in the alternative, that in July or A ugust 2000, while she was at the 21st Street Training Facility, her probation , or any future probation, ended because she worked at some “covered” jobs on the su bassembly side of the-8-

facility. She asserts that as soon as she began do ing that particular work, she became a full-fledged member of the bargaining unit . Appellant’s Br. at 12-15. Cessna and the Union respond that the record shows Ms. Traffas to have been a trainee until she was transferred from the V o-Ed school to the MidContinent Facility on October 23, 2000, at which ti me her 75-day probationary period started. They contend that the word “employ ee” as used in the CBA refers to employees in the bargaining unit rather than any one who is employed by Cessna, including trainees; so the FLSA definition of “employee” is irrelevant. Thus, they conclude, Ms. Traffas was still in her p robationary period on December 19, 2000, when her probation was extended. The record fully supports the latter position. Ms. Traffas stipulated in the pretrial order as follows:
4. STIPULATIONS. a. The following facts are uncontroverted:

. . . . (2) During plaintiff’s training period at the 21st Str eet Facility, she was not covered by the collective bargaining agreement.

. . . . (11) Plaintiff’s 75 day probationary period started on October 23, 2000.2 After the defendants filed their motions for summary judgment, counsel

for Traffas filed a motion seeking to be relieved o f paragraph 4.a.(11) of the pretrial order on the ground of inadvertence. App. Vol. 1 at 0296. The motion concluded by stating that “[t]o allow the stipulati on to remain in the pretrial order would be fatal to plaintiff’s case . . . .” Id . at 0299. The district court denied the motion. App. Vol. 2 at 0865. That ruling is not c hallenged on appeal. Thus, we take the stipulated facts as they stand in the reco rd.

3 Ms. Traffas contends that paragraph 127 supports he r position because it (continued...) -9- App. Vol. 1 at 0022. 2 Those stipulations are consistent with Ms. Traffas’ s own deposition testimony in which she acknowledged that it was herunderstanding that her 75- day probationary status commenced on October 23, 20 00, when she reported for work at the Mid-Continent Facility, and, that she w as still in that probationary status on December 19, 2000. Id. at 0061-64, 0067. Additionally, in Article I, ¶¶ 3 and 8, the CBA its elf defines employees in the bargaining unit, and covered locations—which do not include the 21st Street Training Facility. Id. at 0088. And, ¶ 127 of the CBA provides: 127. Any employee transferring out of the bargaining un it after January 1, 1988, will cease to accumulate bargainin g unit seniority while in positions outside of the bargaining unit. If such employee returns to the bargaining unit, they shall only be allowed to utilize the seniority they have accumulated in the bargaining unit. It is understood between the parties than any company emp loyee who has never been in the bargaining unit shall not be allo wed to be placed in a bargaining unit position except as a new hire as far as seniority is concerned. Id. at 0107 (emphasis added). 33 (...continued)

fails to mention probation along with seniority whe n referring to employees who are first placed in a bargaining unit as “new hires .” App. Vol. 2 at 0366. We are unpersuaded. The defendants’ commonsense inference from this provision is the more logical interpretation.

4 Ms. Traffas also contends that a February 15, 1990, letter from Cessna to the Union—before the 21st Street Facility was builtand more than six years prior to the CBA at issue—proves that some bargaining uni t members would be stationed at the facility, and some covered work wo uld be done there. Traffas reasons that, therefore, when she did some of that work she became a member of the bargaining unit and her probationary period end ed. We disagree. Two letters from the Union at that time, February 9, 1990, and February 15, 1990, if anything, prove that trainees will continue to be just that—t rainees—while learning to do some subassembly jobs. App. Vol. 3 at 0667-0671. And, again, reference to Ms. Traffas’s job classification record, id. at 0197, and her deposition, App. Vol. 2 at 0486-0496, show that she continued in a training st atus. -10- Furthermore, Ms. Traffas did not make bargaining ag reement wages until October 23, 2000. CBA ¶¶ 77-79, id. at 0100-101, App. Vol. 3 at 0197. And, her job classification did not change until that date. App. Vol. 3 at 0197. It is evident from her job classification record, and fro m her own deposition testimony that although Ms. Traffas did some work at the suba ssembly side of the 21st Street Facility during, perhaps, July or August 200 0 (she was unsure of the dates in her deposition), that was part of her training, not an entry into a bargaining unit. Id. ; App. Vol. 2 at 0486-0496. 4 In sum, we conclude that Ms. Traffas’s 75-day probation period commenced on October 23, 2000, when she began work at Cessna’s MidContinent Facility, and that she was still on probation on December 19, 2000,-11-

when the agreement to extend her probation was sign ed. That conclusion distinguishes this case from the one upon which Ms. Traffas places her principal reliance, Bennett v. Local Union No. 66, Glass, Molders, Pottery, Plastics or Allied Workers Int’l Union , 958 F.2d 1429 (7th Cir. 1992). In Bennett , the employer essentially attempted to create a new prob ationary period after the initial period had expired and the full protections of the CBA had attached. The Seventh Circuit held that probation could not be re troactively revived. That is not the issue here.

2. Ms. Traffas contends in the alternative that even i f her 75-day probationary period began on October 23, 2000—and, therefore, wa s still in effect on December 19, when her probation was extended—the CB A contains no provision for extending an existing probationary period. Rat her, she argues, Article VI stands unambiguously for the proposition that the p eriod cannot be extended. Thus, she asserts, the extension constituted a brea ch of the plain terms of the CBA, and she was not in a probationary status when she was terminated on February 14, 2001. Proceeding on the premise thatthe CBA does not permit extensions of probation, she cites a number of case s standing for the general propositions that employers and unions: (a) cannotignore the unambiguous terms-12-

of the CBA; (b) changes in or modifications to the CBA must be made through the collective bargaining process; (c) individual s ide agreements contrary to the CBA are prohibited; and (d) that it is improper to rely on extrinsic evidence of intent such as “past practice” or the “common law o f the shop” when the CBA is unambiguous and a gap does not need to be filled. In particular, she claims that the district court erred by referring to the not-un common practice by Cessna, approved by the Union, of extending periods of prob ation. The authorities cited by Ms. Traffas for these gene ral propositions are all distinguishable from this case. They become genera lly relevant only when one accepts her premise that the CBA at issue here clea rly and unambiguously prohibits extensions for existing probationary peri ods. Cessna and the Union insist, and the district courtat least impliedly found, that because the CBA is completely silent as to ext ensions of probation, it is ambiguous on the point, or there is a gap in the CB A, which permits the court to take past practice into consideration. Further, Ce ssna and the Union argue, and the district court expressly concluded, that the extension here was consistent with the CBA. See Memorandum Order at 5-6, App. Vol. 2 at 0870-0871. Article VI of the CBA, set out in part, above, coul d support an argument either way. That is, if an extension is not expres sly permitted, it is prohibited. Or, the provision’s silence on the subject creates a gap in the agreement, or at-13-

least renders it ambiguous, allowing for reference to past practice and the obvious intent of the parties to give probationary employee s a further chance instead of terminating them. We are inclined to the latter view, which was the s ubstance of the district court’s opinion on the subject. However, it is notnecessary to rest our disposition on the point because, as discussed belo w, we conclude that the Union did not breach its duty of fair representation, and summary judgment on that point was not improper.

B. The Supreme Court has made it clear that the Union breaches its statutory duty of fair representation only when its conduct t oward a covered employee is arbitrary, discriminatory, or in bad faith, and so far outside the wide range of reasonableness as to be irrational. See Air Line Pilots Ass’n Int’l v. O’Neill , 499 U.S. 65, 67, 81 (1991); Vaca v. Sipes , 386 U.S. 171, 190 (1967); James v. Int’l Bhd. of Locomotive Eng’rs , 302 F.3d 1139, 1145 (10th Cir. 2002). In Nelson v. Holmes Freight Lines, Inc. , 37 F.3d 591 (10th Cir. 1994), we expressly recognized these standards, stating: A breach of the duty of fair representation occurs when the union’s conduct toward the employee is “arbitrary, discrimi natory or in bad faith.” (quoting Vaca v. Sipes , 386 U.S. 171, 190 (1967)). In Arguinaga v. United Food & Commercial Workers Int’l Union , 993-14-

F.2d 1463 (10th Cir. 1993), we noted the limited sc ope of arbitrariness and discrimination as applied to acti ons by the union: A union’s action are arbitrary only if, ‘in light o f the factual and legal landscape at the time of the unio n’s actions, the union’s behavior is so far outside a “ wide range of reasonableness” as to be irrational.’ . . . A union’s discriminatory conduct violates its duty of fair representation if it is ‘invidious.’ Id. at 1479 (quoting Air Line Pilots Ass’n. Int’l. v. O’Neill , 499 U.S. 65, 67 & 81, 111 S. Ct. 1127, 1128 & 1137, 113 L. E d. 2d 51 (1991). Acts by the union which are merely negligent do notstate a claim for breach of a duty of fair representation. United Steelworkers of America, AFL-CIO-CLC v. Rawson , 495 U.S. 362, 372-73 (1990). Id. at 594 (emphasis added). There is no question, in light of our conclusion th at Ms. Traffas’s 75-day probationary period began on October 23, 2000, thatCessna could have terminated her in December 2000, as an at-will empl oyee. The Union representatives established (and it is not disputedby Traffas) that the Union’s actions in agreeing to a 60-day extension of the pr obationary period were solely in her best interests. That motivation related to the subject of extensions generally. As Mr. Larkin, a business representative of International Association of Machinists, testified: I look at it from the perspective of the union tryi ng to keep a person employed. I – I mean, if I’m in that position, and I have a chance for somebody to get another chance with the company andkeep her from getting terminated, that’s what I’m going to do. I – you’re looking out for that person’s well-being, . . .-15-

App. Vol. 2 at 0450. On this record, the Union’s action in agreeing to a n extension of Ms. Traffas’s probation, and then declining to represent her when she was terminated in February 2001 because she was still on probationas the Union had agreed, can in no sense be so far outside the range of reasonab leness as to be irrational or in bad faith. Furthermore, a jury trial on such a que stion is not an absolute requirement, as our opinion in Young (affirming a grant of summary judgment on a § 301 hybrid claim) illustrates and when the prov isions of Fed. R. Civ. P. 56(c) have been satisfied.

CONCLUSION For the reasons stated above, the judgment of the d istrict court is
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge