Albert M. RHYMER, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, Incorporated, Defendant-Appellee, and International Brotherhood of Teamsters, Local 391, Defendant

OPINION

PER CURIAM.

Albert Rhymer sued his former employer, United Parcel Service, Inc. (UPS), un der Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. Rhymer does not allege that his union breached its duty of fair representation. Rhymer nonetheless argues that he has standing to sue because he claims that UPS engaged in fraud during arbitration proceedings relating to his discharge. The district court dismissed Rhymer’s suit. The court held that Rhymer lacked standing because he does not allege that his union breached its duty of fair representation. In the alternative, the court dismissed the suit because Rhymer could have discovered the fraud prior to the arbitration proceedings. After considering the briefs, the joint appendix, and the arguments of counsel, we conclude that the district court reached the correct result. Accordingly, we affirm on the reasoning of the district court. See Rhymer v. United Parcel Service, Inc., No. 1:98CV00869 (M.D.N.C. Apr.10, 2000).

AFFIRMED.

MICHAEL, Circuit Judge,

concurring in the judgment:

I would hold that an employee may have individual standing to sue under Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, if his employer engaged in fraud during arbitration proceedings. See Dogherra v. Safeway Stores, Inc., 679 F.2d 1293, 1296 (9th Cir. 1982) (allowing employee to maintain suit because of employer’s fraudulent conduct during arbitration proceedings). I would require an employee to show (1) by clear and convincing evidence that there was fraud, (2) the fraud was not discoverable prior to or during the arbitration, and (3) the fraud materially related to the arbitration. See, e.g., Forsythe Int’l, S.A. v. Gibbs Oil Co., 915 F.2d 1017, 1022 (5th Cir.1990). I agree with the district court that any fraud here was discoverable by Rhymer prior to or during the arbitration proceedings. Accordingly, I concur in the judgment affirming the dismissal of Rhymer’s case. r