Fairchild, Chief Judge, Cummings, Circuit Judge, and Grant, Senior District Judge.*fn*
This suit was filed under Section 301(a) of the Labor Management Relations Act (29 U.S.C. § 185(a)). Plaintiff was an employee of defendant Consolidated Freightways Corporation of Delaware ("Consolidated") and a member in good standing of defendant Local Union No. 710 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the "Union"), the bargaining representative of Consolidated's truck drivers, including the plaintiff. Consolidated, an interstate shipper, employed plaintiff as an over-the-road truck driver at its Waukegan, Illinois, office.
On March 5, 1970, in St. Louis, Missouri, plaintiff had an accident while driving an empty Consolidated tractor and trailer. When plaintiff returned to the St. Louis terminal to report the accident, Robert Weber, defendant's Freight Operations Manager in St. Louis, asked plaintiff to take a sobriety test. Plaintiff refused even after Weber warned him that if he did not take the test, he could be fired. On the day after the accident, when in Chicago, plaintiff telephoned John Kelly, a business agent of the Union, and informed him of what transpired in St. Louis. Kelly told plaintiff that he should have called him from St. Louis and should have taken the sobriety test. Six days later, plaintiff received Consolidated letter discharging him for refusing to submit to a sobriety test. Plaintiff then contacted Kelly, who twice asked M. L. Jones, the manager of Consolidated's Waukegan terminal, to put Cannon back to work. When these efforts failed, Kelly filed a grievance on March 16th with the Joint Grievance Committee, consisting of three union and three management representatives, on plaintiff's behalf. After a hearing where plaintiff was represented by Kelly, the grievance was denied on the basis of an informal rule that the refusal to submit to a sobriety test was a presumption of drunkenness.*fn1
Thereafter plaintiff filed suit in district court alleging that the Union breached its duty of fair representation in failing to raise the defense that "he was being discharged by virtue of the consequences of refusing to take a [sobriety] test which consequences had not been adequately made known to him beforehand," and that the Grievance Committee decision violated the collective bargaining agreement in that the rule had not been properly promulgated.*fn2 Accordingly, plaintiff sought reinstatement with back pay without loss of benefits (such as pension and seniority rights) plus $50,000 punitive damages and reasonable attorneys' fees.
Pursuant to a motion of the Union and over objection of Consolidated, on January 22, 1973, the district court dismissed the Union with prejudice and without costs. On April 25, 1973, Consolidated moved for summary judgment on the ground that plaintiff failed to prove a breach of the Union's duty of fair representation because the district court had dismissed the Union with prejudice and lacked jurisdiction to rehear a final and binding grievance decision. On July 2, 1973, the district court handed down a brief memorandum opinion and order denying the motion for summary judgment, holding that plaintiff was still free to attempt to prove a breach of the duty of fair representation by the Union because the court's January 22, 1973, order "did not constitute a merits determination. All that it represents is a final determination that a subsequent legal action may not be maintained by the plaintiff against the union for the events involved in this lawsuit. Plaintiff is still free to attempt to prove a breach of the duty of fair representation by the union in the instant action." The court also held that although its scope of review of grievance decisions was limited, it had jurisdiction to consider the legality of the grievance decision.
After a two-day trial in March 1974, the district court delivered an oral opinion adverse to Consolidated. The court held that the Union failed to represent plaintiff adequately in the grievance proceedings because it did not argue that the sobriety rule had been improperly promulgated. Having found that the Union breached its duty of fair representation, the court considered the merits of the breach of contract claim and concluded that the Grievance Committee's decision was invalid because it was not shown that plaintiff knew or should have known of the consequences of his refusal to take the sobriety test. It ordered the plaintiff reinstated with back pay and with restoration of his seniority and pension rights; because no malice was found in Consolidated's conduct, other relief was denied. We reverse.
This appeal presents two questions: whether the Union breached its duty of fair representation and whether the district court exceeded its authority in reviewing the merits of the Grievance Committee's ruling.
"A breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. 171, 190, 17 L. Ed. 2d 842, 87 S. Ct. 903. To prove arbitrary or discriminatory treatment, the plaintiff must show that the Union's conduct was intentional, invidious and directed at that particular employee. Motor Coach Employees v. Lockridge, 403 U.S. 274, 301, 91 S. Ct. 1909, 29 L. Ed. 2d 473; Desrosiers v. American Cyanamid Co., 377 F.2d 864 (2d Cir. 1967). Our review of the record satisfies us that the Union did not breach its duty of fair representation in this case.
The union business agent, John Kelly, made two efforts to convince Consolidated to put Cannon back to work, based on his record of satisfactory service. When the efforts failed, Kelly instituted grievance proceedings. As the district court found, Kelly was "bent on doing a good job" in representing the plaintiff before the Committee. What transpired at the hearing demonstrates that Kelly made a good faith effort to plead plaintiff's case.
At the March 30th grievance hearing, Consolidated's representative read the letter terminating Cannon and the affidavit of R. G. Weber, its Freight Operations Manager in St. Louis. The affidavit stated that Cannon had refused to take a sobriety test and concluded "I explained the consequences if he [Cannon] refused to take the test and again offered him the opportunity to take the test. He refused the second time and I terminated him." Statements of two other St. Louis witnesses confirming Weber's account were read into the hearing record.*fn3
For plaintiff, Kelly argued to the Joint Committee that it was unlikely that anyone would have been drinking at 11:00 A.M. when the St. Louis accident occurred. He also noted that the police had not arrested plaintiff for being under the influence of alcohol and commented that Consolidated's truck might have had equipment defects. Kelly summed up as follows:
"I also advised them that Mr. Cannon had 18 years with this company, he had a good safety record, and to the best of my knowledge, as long as I have been handling the barn, I had never heard any charges of intoxication against him while he was working, and in my opinion this fellow ...