The opinion of the court was delivered by: Foreman, Chief Judge.
Before the Court are defendant Shop 'N Save Warehouse Foods,
Inc.'s Motion for Summary Judgment and defendant United Food
and Commercial Workers' International Union, Retail Clerks'
Local 304's Motion for Summary Judgment. Plaintiff was
employed by defendant Shop 'N Save in 1979 as a checker. On
November 21, 1983, she was discharged. Between May 4, 1981,
and October 22, 1983, plaintiff was issued twelve Employee
Correction Reports as a result of disciplinary infractions;
most of these reports were signed by plaintiff, and plaintiff
does not dispute that these disciplinary measures were taken
or that the underlying behavior which triggered the
disciplinary actions occurred. In fact, plaintiff
admits to other infractions which did not result in
On September 14, 1983, plaintiff was placed on probation for
carelessness regarding a check transaction. On October 12,
1983, plaintiff was suspended for five working days for
defective, improper work and carelessness. The conduct
underlying this infraction involved opening another checker's
cash drawer, without the other checker's knowledge, for the
purpose of making change. This conduct was expressly
prohibited, as demonstrated by a memorandum posted by the
management of Shop 'N Save and admittedly initialed by
plaintiff. On October 22, 1983, plaintiff was again issued an
Employee Correction Report for defective, improper work and
carelessness for failing to balance her till within company
policy; her probation period was extended until March 9, 1984.
Plaintiff did not file a grievance over any of the
above-mentioned disciplinary actions.
On November 19, 1983, plaintiff checked out merchandise
purchased by her grandfather, in direct contravention of
company policy as expressed in the Shop 'N Save Employee
Handbook, which sets forth policies and rules to be followed
by employees. Plaintiff had signed a statement to the effect
that she received a copy of this handbook, read the company
policies and rules, and agreed to follow these rules.
Depositions of both plaintiff and her grandfather indicate
that plaintiff habitually checked out her grandfather's
merchandise. Further, plaintiff had previously been admonished
regarding other incidents involving her checking out purchases
of other family members. On November 21, 1983, the decision
was made to discharge plaintiff. All of the foregoing facts
Following her discharge, plaintiff filed a grievance with
the union. The union, however, decided not to pursue her
grievance or submit the matter of her termination to
arbitration pursuant to the collective bargaining agreement.
Plaintiff filed a lawsuit in this Court asserting jurisdiction
under Section 301 of the Labor Management Relations Act. Count
I of plaintiff's Complaint challenges Shop 'N Save's October
19, 1983, five-day suspension of plaintiff for using another
checker's cash drawer, as well as this defendant's termination
of plaintiff's employment for checking out merchandise
purchased by relatives. Plaintiff implies that her discharge
resulted from a conversation she had regarding the hiring of
new personnel. Count II of plaintiff's complaint alleges that
the union breached its duty of fair representation. Both
defendants have filed Motions for Summary Judgment pursuant to
Rule 56 of the Federal Rules of Civil Procedure.
Summary judgment is appropriate only where the record shows
that "there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law." Fed.R.Civ.P. 56. The party moving for summary judgment
has the burden of establishing the lack of a genuine issue of
material fact. Korf v. Ball State University, 726 F.2d 1222,
1226 (7th Cir. 1984). The Court must view the evidence, and the
reasonable inferences to be drawn therefrom, in the light most
favorable to the party opposing summary judgment. Where the
moving party fails to meet its strict burden of proof, summary
judgment cannot be entered even if the opposing party fails to
respond to the motion. Yoker v. Pittsburg Corning Corp.,
733 F.2d 1215 (7th Cir. 1984).
Where the moving party has met its initial burden and the
opposing party asserts the existence of a question of fact,
the Seventh Circuit has identified two considerations to be
used in determining whether summary judgment is proper. The
Court must determine whether the non-moving party has
established that there is a genuine issue as to that fact.
To create a question of fact, an adverse party
responding to a properly made and supported
summary judgment motion must set forth specific
facts showing that there is a genuine issue for
trial. . . . A party may not rest on mere
allegations or denials of his pleadings;
similarly, a bare contention that an issue of
is insufficient to raise a factual issue.
Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert.
denied, ___ U.S. ___, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983).
Furthermore, the disputed fact must be material, that is, it
must be outcome-determinative under the applicable law. Egger
v. Phillips, 710 F.2d 292, 296 (7th Cir.) (en banc), cert.
denied, ___ U.S. ___, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983).
Applying these principles to the instant case, the Court
finds that there is no issue of material fact and that
defendants are entitled to judgment as a matter of law.
Plaintiff concedes that the union did not breach its duty of
fair representation as regards her suspension, since plaintiff
did not seek union representation in this matter. (Plaintiff's
Memorandum in Opposition to Defendant Union's Motion for
Summary Judgment, page 9; Deposition of Plaintiff, page 124.)
With respect to the matter of alleged wrongful conduct on the
part of Shop 'N Save for its actions in suspending plaintiff
for five days, the law is clear that in the absence of
invoking available contractual remedies under the collective
bargaining agreement, a claim is not viable and must be
dismissed. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554,
563, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976); Republic Steel
Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580
(1965). Thus, summary judgment for both defendants is clearly
an appropriate disposition of plaintiff's claims regarding her
Plaintiff's claims regarding termination, however, require
further analysis, as plaintiff did seek union representation
for this disciplinary action. Plaintiff contends that the
union should have submitted her grievance to arbitration and
that it failed to adequately investigate her claim. In support
of her position, plaintiff alleges that a union
representative, Oma South, was unaware of plaintiff's
statement regarding a co-manager's receiving an oral warning
after checking out a pack of cigarettes for a relative.
According to plaintiff, this indicates that the matter of her
termination had not been fully investigated before the
decision was made that to arbitrate would be futile.
Plaintiff asserts that in Hines v. Anchor Motor Freight,
Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976), the
United States Supreme Court "held that a Union's failure to
investigate evidentiary leads submitted by an employee-grievant
was tantamount to a breach of their duty of fair
representation." (Plaintiff's Memorandum in Opposition to
Defendant Union's Motion for Summary Judgment, page 10.) A
careful reading of Hines, however, does not support plaintiff's
interpretation of the holding of that case. In Hines, the
question before the Supreme Court was expressly limited to the
finality of a decision reached after arbitration as regards a
later suit against an employer. 424 U.S. at 560-61, 96 S.Ct. at
1054-55. The Hines Court held that when it can be proved that a
union has breached the duty of fair representation, a § 301
remedy is not foreclosed against an employer, even in the face
of an arbitrator's decision in favor of the employer. 424 U.S.
at 570-72, 96 S.Ct. at 1059-60.
The facts of Hines are quite distinguishable from the facts
of the instant case. In Hines, employee truck drivers were
discharged for dishonesty after having been accused of seeking
reimbursement for motel expenses in excess of the actual
charges. The union represented the employees throughout the
grievance process, including arbitration. The joint arbitration
committee sustained the discharges. A year later, however, a
motel clerk admitted that he had falsified registration cards
and pocketed the funds at issue, thus explaining the
discrepancy. In Hines, the employees were innocent of the
infractions on which their discharges were based, and the Court
stated that "if they prove an erroneous discharge and the
Union's breach of duty tainting the decision of the joint
committee, [they] are entitled to an appropriate remedy against
the employer as well as the Union. It was error to affirm the
District Court's final dismissal of [the employees']
action against [the employer]. To this extent the judgment of
the Court of Appeals is reversed." Hines, 424 U.S. at 570, 96
S.Ct. at 1059.
In the instant case, plaintiff does not contend that she was
innocent of the infractions. Plaintiff cites Hines to establish
that the union breached its duty of fair representation because
it failed to adequately investigate the matter of her
termination, as shown, according to plaintiff, by South's lack
of awareness that a co-manager ...