Notice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.ramon Hayes, Plaintiff-appellant, v. Peoples Gas, Light and Coke Company and Gas Workers Local18007 Afl-cio, Defendants-appellees, 979 F.2d 853 (7th Cir. 1992)

ORDER

On January 20, 1988 Ramon Hayes, an employee of the Peoples Gas, Light and Coke Company (Peoples Gas), was indicted on one count of theft of gas meters and one count of delivery of a controlled substance. Peoples Gas suspended Hayes and then, after concluding he had violated the company theft rule, permanently discharged him. Hayes's union, Gas Workers Local 18007, filed a grievance contesting the company's actions. Before the grievance could be arbitrated, however, Hayes was convicted on the drug charge and sentenced to seven years. The union, mistakenly believing that Hayes had been convicted on the theft charge (thus proving he had broken the company rule), dropped the grievance and withdrew its request for arbitration.

A few months later it became clear that Hayes had not been stealing gas meters, and the State's Attorney dismissed the theft charge. Nevertheless, union attempts to reinstate the grievance or file a new one were rebuffed by Peoples Gas, which stated that the withdrawal of the grievance was final and that a new one would be untimely. Peoples Gas also stated that Hayes had been discharged both for violating the company theft rule and for violating its drug and alcohol policy. The union did not appeal Peoples Gas's refusal to arbitrate the grievance. It did so because it believed that the chances of success were slim, given that the felony drug conviction was a sufficient, independent reason for discharging Hayes.

Hayes then filed this hybrid suit under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. To prevail in a hybrid suit under § 301, the plaintiff must first prove that his union breached its duty of fair representation. Reed v. International Union of United Auto Workers, 945 F.2d 198, 204 (7th Cir. 1991). This may be done by demonstrating that the union acted arbitrarily, discriminatorily, or in bad faith. Air Line Pilots Ass'n, Int'l v. O'Neill, 111 S. Ct. 1127, 1132-35 (1991); Ooley v. Schwitzer Div., Household Mfg. Inc., 961 F.2d 1293, 1302 (7th Cir.), cert. denied, 61 U.S.L.W. 3261 (1992).

Hayes claims the union acted arbitrarily in withdrawing his grievance. A union acts arbitrarily when its behavior falls so far outside a "wide range of reasonableness" as to be irrational. O'Neill, 111 S. Ct. at 1136; Ooley, 961 F.2d at 1302. The union here may have been inept or negligent--it withdrew the grievance based on a misunderstanding of Hayes's conviction--but inept or negligent behavior does not violate a union's duty of fair representation. United Steelworkers of America, etc. v. Rawson, 495 U.S. 362, 372-73 (1990); Ooley, 961 F.2d at 1302. Moreover, the grievance lacked merit; Peoples Gas discharged Hayes for the alleged thefts, but it also had a rule concerning employees' use of drugs and alcohol, a rule that could be invoked to justify discharging Hayes. Thus the union's action was not irrational. Since the union did not breach its duty, Hayes cannot make a case under § 301. Reed, 945 F.2d at 204. Consequently, we AFFIRM the district court's grant of summary judgment for the defendants.