RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                   File Name: 12a0063p.06

              UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                              X
                                               -
 BRANDON CHAPMAN,
                                               -
                              Plaintiff-Appellant,
                                               -
                                               -
                                                   No. 10-3616
          v.
                                               ,
                                                >
                                               -
                                               -
 UNITED AUTO WORKERS LOCAL 1005;

                     Defendants-Appellees. -
 GENERAL MOTORS COMPANY,
                                               -
                                              N
                Appeal from the United States District Court
               for the Northern District of Ohio at Cleveland.
               No. 09-00074—Dan A. Polster, District Judge.
                                  Argued: March 2, 2011
                          Decided and Filed: March 1, 2012
Before: BATCHELDER, Chief Circuit Judge; MARTIN, BOGGS, MOORE, COLE,
    CLAY, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN,
           KETHLEDGE, WHITE, and STRANCH, Circuit Judges.*
                                   _________________

                                         COUNSEL

ARGUED: David W. Neel, DAVID W. NEEL, LLC, Cleveland, Ohio, for Appellant.
Joan Torzewski, HARRIS RENY TORZEWSKI, L.P.A., Toledo, Ohio, Angela M.
Tsevis, LATHROP & GAGE, Kansas City, Missouri, for Appellees. ON BRIEF:
David W. Neel, DAVID W. NEEL, LLC, Cleveland, Ohio, for Appellant. Joan
Torzewski, HARRIS RENY TORZEWSKI, L.P.A., Toledo, Ohio, Angela M. Tsevis,
David C. Vogel, LATHROP & GAGE, Kansas City, Missouri, for Appellees.




      *
       The Honorable Bernice Bouie Donald, Circuit Judge, did not participate in deciding the case.


                                               1
No. 10-3616           Chapman v. UAW Local 1005, et al.                             Page 2


                                  _________________

                                       OPINION
                                  _________________

        JANE B. STRANCH, Circuit Judge. Brandon Chapman brought an action
against his employer, General Motors (GM), alleging breach of the collective bargaining
agreement, and against his union, the United Auto Workers Local 1005 (UAW), alleging
breach of the duty of fair representation, a combination referred to as a hybrid § 301/fair
representation case. He alleged the UAW failed to pursue his oral complaint against GM
through the contractual grievance procedure. Chapman did not challenge the alleged
union error through the appeals procedure mandated by the UAW Constitution. Instead,
he filed this suit.

        The district court held that Chapman was barred from suit because he failed to
exhaust his internal union remedies and granted summary judgment to GM and the
UAW. Chapman appeals, arguing that our decision in Williams v. Molpus, 

, 369 (6th Cir. 1999), requires that his case be remanded for a trial on his fair
representation claim to determine whether the exhaustion bar to suit is excused.

        This case was accepted for initial en banc review to determine whether we erred
in Molpus when we held the general requirement that a plaintiff must exhaust internal
union remedies or be barred from suit is excused if the union breaches its duty of fair
representation. Our reasoning on this issue in Molpus resulted from a misunderstanding
of Supreme Court precedent and the national labor policy upon which it relies. For the
reasons articulated below, we overrule Molpus in part and, to the extent noted, its
progeny, Burkholder v. Int’l Union, 299 F. App’x 531 (6th Cir. 2008). We AFFIRM
the district court’s grant of summary judgment in favor of GM and the UAW.
No. 10-3616       Chapman v. UAW Local 1005, et al.                            Page 3


                                I. BACKGROUND

        Chapman was hired as a temporary hourly employee at GM on June 5, 2006, was
released from employment during the regular two-week summer plant shutdown and
rehired in July 2006. In June of 2007, Chapman wanted to take an additional week off
after the annual shutdown to tour with his band. Chapman asked his stepfather, Bill
Newman, who was a Union Committeeman for UAW Local 1005, if he could take off
the additional week. Chapman did not speak with his assigned union representative or
any member of GM management.

        Newman spoke with Tom Danzey, a GM labor relations representative, about
Chapman’s situation. Danzey told Newman temporary employees were not entitled to
leaves of absence; but, because Chapman had a clean record, he would not be barred
from consideration for future temporary positions. Newman then told Chapman he was
“good to go on vacation.” Chapman never spoke with any management personnel at GM
regarding the request for time off nor did he request or receive any paperwork showing
that the time off had been approved.

        After his absence, Chapman did not contact GM management about returning to
work nor did he attempt to return to the plant. Instead, he spoke with Newman who
contacted Danzey. Danzey said there were no openings for temporary employees.
Chapman again talked to Newman, who said he would “take care of it” though Chapman
stated he did not know what Newman meant by that. Chapman understood he could file
a grievance but never filed one and never spoke to anyone in GM management, his own
union representative, or anyone from the union except his stepfather. Newman discussed
Chapman’s situation with the new UAW Shop Chairman, Danny Smith, who told
Newman not to write a grievance for Chapman. Chapman took no further action for a
year.

        On June 16, 2008, Chapman was re-hired as a temporary employee at GM. He
alleges that around this time he learned that UAW representatives had not filed a
grievance on his behalf and approached Ken Jelen, the UAW Shop Chairman who had
replaced Smith, to explain his situation. On October 30, 2008, Jelen sent Chapman a
No. 10-3616        Chapman v. UAW Local 1005, et al.                              Page 4


letter explaining Chapman had no case to pursue. Chapman alleges Jelen told him that
Smith had “messed it up” and Chapman’s predicament should have never happened.
Chapman did not pursue an appeal of Jelen’s decision through the internal grievance
procedures as required by the UAW Constitution.

       Instead, Chapman brought suit. His hybrid § 301/fair representation action
alleged breach of the collective bargaining agreement against GM and breach of the duty
of fair representation against the UAW. See 29 U.S.C. § 185. The district court granted
the motions for summary judgment of GM and the UAW and dismissed the case. See
Chapman v. UAW Local 1005, No. 1:09-CV-74, 

(N.D. Ohio Apr. 6,
2010). To litigate the merits of his § 301 claim against the employer, the district court
reasoned, Chapman must first prevail on his fair representation claim against the UAW.

The court held that Chapman’s fair representation claim failed because
Chapman did not exhaust his internal union remedies as required by the UAW
Constitution. 

                           II. STANDARD OF REVIEW

       This Court reviews a grant of summary judgment de novo and considers the facts
and any inferences drawn from the facts in the light most favorable to the non-moving
party. White v. Detroit Edison Co., 

, 424 (6th Cir. 2006). Summary
judgment is appropriate if there is no genuine dispute as to any material fact and the
moving parties are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). When
the non-moving party fails to make a sufficient showing of an essential element of his
case on which he bears the burden of proof, the moving parties are entitled to judgment
as a matter of law and summary judgment is proper. Celotex Corp. v. Catrett, 

, 323 (1986).

                                   III. ANALYSIS

       The case before us and the aspect of Molpus we reconsider hinge on
understanding the difference between two sets of remedies: contractual remedies arising
from a collective bargaining agreement and internal union constitutional remedies. Here,
No. 10-3616             Chapman v. UAW Local 1005, et al.                                             Page 5


the contractual remedy is the grievance procedure established in the contract between
the UAW and GM, a procedure created to settle disputes between an employee and GM.
The internal union remedy is the appeal procedure established in the UAW Constitution,
a procedure created to settle disputes between the UAW and the employees it represents
in the workplace. A hybrid § 301/fair representation case encompasses both sets of
remedies, each of which has its own distinct exhaustion doctrine. In Molpus, we applied
the wrong exhaustion doctrine. An overlap in terms and doctrines led to our confusion;
an overview of labor policy and case precedent will clear it up.

A. Historical Underpinnings of Exhaustion

         Congressional policy is the touchstone guiding development of the labor-law
case precedent that applies to this case. Section 203(d) of the Labor Management
Relations Act (LMRA) provides, “[f]inal adjustment by a method agreed upon by the
parties is declared to be the desirable method for settlement of grievance disputes arising
over the application or interpretation of an existing collective-bargaining agreement.”
29 U.S.C. § 173(d). The seminal Supreme Court instruction on this national policy is
found in the Steelworkers Trilogy,1 three labor law opinions issued in 1960 that explain
why the judiciary shall defer to the method of dispute resolution selected by the parties.
Congress and the courts determined that allowing the parties to implement their own
system of industrial self-government would help achieve industry stabilization and
industrial peace. Warrior & 

–79. They also recognized that rapid
and industry-specific resolution of all disputes between the parties would relieve the
judiciary from the adjudication of disputes that otherwise could overwhelm the court
system.



         1
           See United Steelworkers of Am. v. Enter. Wheel & Car Corp., 

, 596–97 (1960)
(federal courts are not to “review the merits of an arbitration award,” but only determine whether the award
“draws its essence from the collective bargaining agreement”); United Steelworkers of Am. v. Warrior &
Gulf Navigation Co., 

, 581–83 (1960) (holding that grievance machinery “is at the very heart
of the system of industrial self-government” and the courts should not deny an order to arbitrate “unless
it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that
covers the asserted dispute”); United Steelworkers of Am. v. Am. Mfg. Co., 

, 568 (1960)
(holding that because the parties bargained for the “arbitrator’s judgment,” the underlying “question of
contract interpretation” is for the arbitrator, and the courts have “no business weighing the merits of the
grievance”).
No. 10-3616         Chapman v. UAW Local 1005, et al.                                Page 6


        The two doctrines of exhaustion in question here developed in response to these
historical purposes. The extent of judicial deference was first made clear in the
application of exhaustion requirements to contractual grievance procedures. In Republic
Steel Corp. v. Maddox, the Supreme Court held that, before bringing suit, employees are
required to “exhaust” contractual grievance and arbitration procedures set forth in the
collective bargaining agreement. 

, 652–53 (1965). As will prove important
to this case, the Court referred to both codified national labor policy and the practical
need to solve a problem at its source when holding: “employees . . . must attempt use
of the contract grievance procedure agreed upon by employer and union as the mode of
redress[;]” and “there can be no doubt that the employee must afford the union the
opportunity to act on his behalf.” See 

(emphasis added). Failure to
exhaust contractual remedies thus became a bar to litigation.

        The workplace realities that prompted judicial deference to contract remedies
also set limits on that deference. The Supreme Court recognized that a litigation bar for
failure to exhaust contract remedies can work an unacceptable injustice when the union
acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its
duty of fair representation to the employee. See Vaca v. Sipes, 

(1967);
Hines v. Anchor Motor Freight, Inc., 

(1976). When the union breaches
this duty in representing the employee against the employer, the failure to exhaust
contractual grievance remedies may be the result of the union’s actions, not the
employee’s. See 

–86. Thus, where the employee can prove that
the union breached its duty in handling his grievance, his case may proceed despite his
failure to exhaust the contract remedies and notwithstanding the bar of finality normally
accorded the grievance or arbitration proceeding with the employer. See 

–67.

        Out of these cases grew the present litigation form, combining claims against the
employer and the union into one hybrid case. The suit against the employer alleges a
breach of the collective bargaining agreement under § 301 of the LMRA. The suit
against the union alleges breach of the union’s duty of fair representation, implied under
No. 10-3616        Chapman v. UAW Local 1005, et al.                                 Page 7


the scheme of the National Labor Relations Act. 29 U.S.C. § 158; DelCostello v. Int’l
Bhd. of Teamsters, 

, 164 (1983). The two claims, however, are inextricably
interdependent: “To prevail against either the company or the Union, [the employee]
must not only show that [his] discharge was contrary to the contract but must also carry
the burden of demonstrating breach of duty by the Union.” 

–71;
see also 

–65. The employee must prove both claims to
recover from either defendant. See 

; 

;
Driver v. USPS, Inc., 

, 868 (6th Cir. 2003). Vaca and Hines clarified the
hybrid form of § 301/fair representation cases and established the rules governing
exhaustion of contractual remedies arising from a collective bargaining agreement.

        In addition to contractual remedies and the exhaustion doctrine pertaining to
them, § 301/fair representation cases also concern internal union remedies and an
exhaustion doctrine applicable to them. This overlap of the language of remedies and
exhaustion led to our confusion in Molpus. The case of Clayton v. International Union,

(1981), can set us right again. There the Supreme Court explained the
distinction between the sets of remedies:

        In contrast to contractual grievance and arbitration procedures, which
        are negotiated by the parties to a collective-bargaining agreement and are
        generally designed to provide an exclusive method for resolving disputes
        arising under that agreement, internal union appeals procedures are
        created by the union constitution and are designed to settle disputes
        between an employee and his union that arise under that constitution.

(emphasis added). The Court also addressed an employee’s duty to
exhaust internal union remedies and explained when an employee is exempt from that
duty.

B. Exhaustion of Internal Union Remedies: Clayton

        In Clayton, the Supreme Court set forth guidance for determining when failure
to exhaust internal union remedies will bar § 301/fair representation litigation. It
focused on one strain of national labor policy articulated in Republic Steel, the
encouragement of “private rather than judicial resolution of disputes arising over the
No. 10-3616         Chapman v. UAW Local 1005, et al.                                Page 8


interpretation and application of collective-bargaining agreements.” 

(citing 

, 570–71). The Court noted two avenues for
satisfying that policy: “Where internal union appeals procedures can result in either
complete relief to an aggrieved employee or reactivation of his grievance, exhaustion
[of internal union remedies] would advance the national labor policy of encouraging
private resolution of contractual labor disputes.”        

(emphasis added).
Additionally, an important practical purpose is achieved by requiring exhaustion in
either circumstance; it allows the union the opportunity “to rectify the very wrong of
which the employee complains[.]” 

n.21.

        The Supreme Court recognized “courts have discretion to decide whether to
require exhaustion of internal union procedures[,]” but the Court articulated three factors
relevant to a court’s exercise of discretion: (1) “whether union officials are so hostile
to the employee that he could not hope to obtain a fair hearing on his claim”; (2)
“whether the internal union appeals procedures would be inadequate either to reactivate
the employee’s grievance or to award him the full relief he seeks”; and (3) “whether
exhaustion of internal procedures would unreasonably delay the employee’s opportunity
to obtain a judicial hearing on the merits of his claim.” 

If a court finds any
of these factors to exist, “the court may properly excuse the employee’s failure to
exhaust.” 

Precedent and Molpus

        Our circuit has followed the Clayton model, reviewing the affirmative defense
of failure to exhaust internal union remedies as the first step in § 301/fair representation
litigation. We required plaintiffs to show that internal union remedies were exhausted,
or were futile, before allowing them to litigate a claim alleging a union’s breach of the
duty of fair representation. See, e.g., Monroe v. Int’l Union, UAW, 

, 25–26
(6th Cir. 1983) (affirming district court’s grant of summary judgment for failure to
exhaust union appeals procedures under Clayton without examining whether union
breached duty of fair representation); Wagner v. Gen. Dynamics, 

, 127–29
(6th Cir. 1990) (per curiam) (holding plaintiff’s failure to exhaust internal union
No. 10-3616        Chapman v. UAW Local 1005, et al.                                  Page 9


remedies could not be excused); Rogers v. Bd. of Educ. of Buena Vista Schs., 

,
166–67 (6th Cir. 1993) (affirming dismissal, under Clayton, of claim based on
Michigan’s Public Employees Relations Act for failure to exhaust internal union
remedies).

       The exhaustion of remedies discussion in 

, carried into
Burkholder, 299 F. App’x at 535–37, stands as an anomaly in our jurisprudence. On
appeal to this Court in Molpus, the UAW reiterated its argument that plaintiff’s
§ 301/fair representation cause of action was barred by his failure to exhaust internal
union remedies. This Court disagreed, noting, “[t]he general requirement that a grievant
must exhaust his or her internal union remedies . . . is excused if the union breaches its
duty of fair representation.” 

(emphasis added). The opinion
quoted Hines as authority, stating “‘[t]he union’s breach of duty relieves the employee
of an express or implied requirement that disputes be settled [through] contractual
grievance procedures[.]’” Id. (quoting 

) (emphasis added).
Molpus mistakenly applied the exhaustion doctrine applicable to contractual grievance
procedures discussed in Hines to a case that turned on failure to exhaust internal union
remedies. Because Chapman relies on the Molpus analysis in this appeal, we accepted
the case en banc to address the confusion in Molpus and Burkholder. Though the
conflation of exhaustion doctrines continued in Burkholder, the concurrence in that case
challenged the lead opinion’s analysis of Molpus and suggested a need to correct
Molpus:

       [I]ts broad language unconditionally waives the exhaustion requirement
       for any plaintiff who alleges a breach of duty of fair representation in his
       or her complaint. This consequence is contrary to the general policy of
       having labor disputes first submitted to internal union grievance
       procedures . . . and the UAW appropriately criticizes the Molpus
       language for that reason.
       . . . Molpus should . . . be closely scrutinized if the issue comes before a
       future en banc panel of this court.

Burkholder, 299 F. App’x at 538 (Gilman, J., concurring) (internal citations omitted).
No. 10-3616        Chapman v. UAW Local 1005, et al.                              Page 10


       The overly broad language regarding exhaustion of internal union remedies in
our Molpus decision resulted from our reliance on Hines, a contractual remedies case.
We confused constitutional union remedies with contractual grievance procedure
remedies arising from a collective bargaining agreement. See Willetts v. Ford Motor
Co., 

, 856 (6th Cir. 1978) (“Exhaustion of internal union remedies and
resort to exclusive contractual remedies are separate prerequisites to an employee suit.”).
This led to application of the exhaustion doctrine for contractual remedies instead of the
exhaustion doctrine applicable to internal union appeals procedures as explained by the
Supreme Court in Clayton. Cf. Winston v. Gen. Drivers, Warehousemen & Helpers,
Local Union No. 89, 

, 255 (6th Cir. 1996) (describing distinction between
contractual remedies and internal union remedies, but holding Clayton inapplicable
because contractual remedies, not internal union remedies, were at issue in that case).

       The Burkholder concurrence recognized that the use in Molpus of the contractual
exhaustion doctrine for an internal union remedies case undercut the rationale of prior
labor-law precedent. Hines had reasoned that it is appropriate to excuse an employee
from exhaustion of the contractual grievance procedure where failure to exhaust is due
to the union’s error or wrongdoing and, thus, is beyond the employee’s control. Clayton
recognized that where the employee chooses not to undertake exhaustion of internal
union remedies, and thereby denies the union an opportunity to correct the very error of
which he complains, the rationale of Hines is simply inapplicable.

       Continuation of the Molpus analysis would also ignore practical considerations,
recognized since the Steelworkers Trilogy, that undergird national labor policy.
Exercising internal union remedies requires dialogue among those involved in the
process and can repair a claimed wrong or explain why no wrong occurred, all short of
litigation. Allowing employees to sidestep this system substitutes litigation for the
method chosen by the employer and union for orderly resolution of employee
grievances. It denies the system an opportunity to work and, because the suit is a hybrid
§ 301/fair representation case, carries both employer and union into the courthouse.
Plaintiffs are encouraged to file complaints alleging a breach of the duty of fair
No. 10-3616        Chapman v. UAW Local 1005, et al.                              Page 11


representation because that allegation results in a trial on the merits under Molpus. That
defeats the purpose of exhaustion and wastes judicial resources.

       These are the problems Congress sought to avoid by enacting a policy declaring
private resolution by the parties as the preferred method for settling workplace disputes.
Therefore, in light of both judicial precedent and Congressional policy, we overrule
those portions of Molpus and Burkholder analyzing the exhaustion of internal union
remedies, 

; Burkholder, 299 F. App’x at 535–37, thus aligning
our precedent with the analysis articulated in Clayton. The remaining aspects of Molpus
and Burkholder remain good law.

D. Application of Clayton to This Case

       It is undisputed that Chapman failed to undertake his obligation to exhaust the
internal union remedies mandated by the UAW Constitution. He did not avail himself
of an appeal at any level of the multi-level appeal process provided in Article 33 of the
UAW Constitution. To determine whether his failure to exhaust internal union remedies
should be excused, we begin with review of the three relevant Clayton factors. We
inquire: whether union officials were so hostile that Chapman could not hope to obtain
a fair hearing on his claim; whether the internal union appeals procedures would be
inadequate either to reactivate his grievance or to award him the full relief he seeks; or,
whether exhaustion of internal procedures would unreasonably delay his opportunity to
obtain a judicial hearing on the merits of his claim. 

. If
Chapman does not establish any of these factors, then his failure to exhaust his internal
union remedies bars him from bringing suit against the UAW and also bars his suit
against GM. See 

–65; Garrison v. Cassens Transp. Co.,

, 538 (6th Cir. 2003).

       Chapman introduced no evidence that union officials were hostile or that the
internal union appeal procedures would unreasonably delay a judicial hearing on his
claim. Accordingly, our review turns to the second factor, whether the internal union
remedies are adequate, i.e. whether they could have reactivated his grievance or
awarded him full relief.
No. 10-3616        Chapman v. UAW Local 1005, et al.                              Page 12


       The record reveals that the internal union appeal procedures are adequate. Upon
being told by Ken Jelen, the UAW Shop Chairman, that he had no case to pursue,
Chapman could and should have initiated the appeal procedures under Article 33 of the
UAW Constitution. Section 1 therein authorizes an appeal of “any action, decision, or
penalty” or a “failure or refusal to act” by a Local Union or its officers. Section 2
specifically references the progressive steps for “any challenge to the handling or
disposition of a grievance[.]” Chapman’s claim that a Union official told him he had no
valid grievance and refused to proceed with any processing is a classic example of a
“refusal to act” or improper “handling or disposition of a grievance” that should be
challenged through the internal union appeals procedures. See Ryan v. Gen. Motors
Corp., 

, 1110 (6th Cir. 1989) (“It is well-settled that the opinion of a union
representative cannot be construed as a waiver of the UAW’s constitutional appeal
requirements.”).

       Chapman could have initiated his internal union appeal orally or in writing to the
Local membership and continued to appeal beyond the Local to the International
Executive Board and then to the Convention Appeals Committee or the independent
Public Review Board (PRB). The PRB has the authority to require the Union to pay
money damages, back pay, or both and to require the Union to reinstate and process a
grievance.

       Chapman could have challenged the union’s failure to pursue his contractual
grievance whether that grievance had been initiated orally or in writing. Oral grievances
are a recognized part of the contractual grievance procedure in the collective bargaining
agreement: Step One begins with oral presentation of the grievance and concludes with
reducing the grievance to writing. Pursuant to a Letter Agreement between GM and the
UAW, had Chapman undertaken the internal union procedures and successfully appealed
the Union’s failure to pursue the grievance, GM could have reinstated Chapman’s
grievance at the step in the contractual procedure at which the erroneous disposition of
the grievance occurred. Therefore, the internal union appeal procedures were adequate
No. 10-3616        Chapman v. UAW Local 1005, et al.                             Page 13


to reactivate Chapman’s grievance and he cannot satisfy the second Clayton factor to
excuse his failure to exhaust.

       Chapman has not established any of the three Clayton factors upon which the
Court may properly excuse his failure to exhaust his internal union remedies. Therefore,
his fair representation claim against the UAW is barred. Because, in this hybrid case,
Chapman’s fair representation claim is “inextricably interdependent” with his § 301
claim, see 

–65, he must prevail on his fair representation
claim against the Union before he may litigate the merits of his § 301 claim against GM.
UPS, Inc. v. Mitchell, 

, 67 (1981) (Stewart, J., concurring).           Thus,
Chapman’s hybrid § 301/fair representation suit is barred for failure to exhaust internal
union remedies.

                                 IV. CONCLUSION

       Discrete portions of our decisions in Molpus and Burkholder are inconsistent
with Supreme Court precedent and contrary to national labor policy. Therefore, we
overrule those portions of Molpus and Burkholder, as fully explained in this opinion.
Because Chapman failed to establish a legally justifiable basis under Clayton for his
failure to exhaust his internal union remedies, his failure is not excused and the
exhaustion bar applies. Accordingly, we AFFIRM the district court’s grant of summary
judgment and dismissal of Chapman’s suit against GM and the UAW.