The opinion of the court was delivered by: Mills, District Judge.
Discharged employee vs. his union.
Defendants move for summary judgment.
Robert Cottrell brings this action against his employer, the
Paul F. Beich Company (Beich), for breach of a collective
bargaining agreement under section 301 of the Labor Management
Relations Act (LMRA), 29 U.S.C. § 185. He also sues the Candy
Workers Union Local 342 of the Bakery, Confectionery and Tobacco
International Union, AFL-CIO-CLC (union), charging that it
breached its duty of fair representation by: (1) failing to
prosecute a grievance to arbitration, and (2) not allowing
Plaintiff to pursue arbitration on his own behalf after the
union's refusal to do so.
Mr. Cottrell worked for Beich from 1979 to April of 1984 and
was, during his employment with Beich, a member of the union. A
collective bargaining agreement governs the relationship between
Beich, its employees, and the union. Pursuant to the agreement,
Beich employees are required to abide by certain work rules, one
of which prohibits fighting.
While at work on April 17, 1984, Plaintiff was attacked by John
Boylan, a fellow employee, and a fight ensued. According to
Plaintiff's complaint, the attack was unprovoked, and Plaintiff
fought only to the extent necessary to defend himself.
Two days later, on April 19, Beich discharged both Plaintiff
and Boylan for their involvement in the altercation. Although
company work rules prohibit fighting, Plaintiff filed a
grievance, claiming that he was wrongfully discharged in that he
was merely protecting himself from an unprovoked attack.
After Cottrell filed his grievance, a meeting was convened
between union and company representatives, and Cottrell and
Boylan, as required by the grievance procedure contained in the
collective bargaining agreement (CBA). Mr. Gene Midden, the
union's international representative, was also at the meeting.
According to Cottrell, his presence was required because the
union recognized that Beich was setting a precedent by
terminating an employee for fighting, something that had not
previously been done.
Cottrell claims that the manner in which his grievance was
handled evidences that the union did not meet its duty to fairly
represent him. He first alleges that he was not given adequate
time to prepare his case before the grievance meetings were held
and that the meetings themselves lasted only a couple of minutes.
Cottrell further states that not only was his participation in
the meetings discouraged, but he was even asked to leave the room
Cottrell further alleges that the union did not prosecute his
grievance to arbitration because of the union officers' belief
that Cottrell was a troublemaker. As evidence of this alleged
personal animus against Cottrell, Plaintiff points to certain
comments made by Mr. Midden to union president Virden about
Cottrell's inability to get along with other employees.
(Plaintiff denies that this was in fact the case, and argues that
the unanimous vote of the union membership to send his case to
arbitration contradicts the allegation that he does not get along
with the other employees.)
The union, on the other hand, argues that it fully considered
the merits of Cottrell's grievance. For instance, the union notes
that Cottrell was given an opportunity to state his case before
the general membership, whereupon the membership unanimously
voted to authorize the union's executive board to consult with
legal counsel and proceed to arbitration if necessary.
Thereafter, the executive committee consulted with at least two
attorneys as well as with Mr. Midden before determining that the
union would not be successful in arbitrating the matter.
Although the union felt that a penalty less than termination
was appropriate, they decided that in view of the fact that a
physical exchange of blows occurred, it would not be in the
overall best interests of the union and its members to pursue the
matter to arbitration. The union was also apparently concerned
about the danger of losing a case involving fighting in that it
could set a precedent for future discharges on this basis.
In addition to the union's failure to prosecute his grievance
to arbitration, Cottrell charges that the union breached its duty
of fair representation by refusing to allow Plaintiff to
arbitrate on his own behalf pursuant to Article XIV of the CBA.
After the union's decision not to pursue the grievance, Cottrell
sent a letter to the union requesting that he be allowed to
individually arbitrate the grievance. The union, however,
responded by a letter informing him that he had "exhausted his
union remedies." According to Plaintiff, this letter was written
despite Ms. Virden's deposition testimony that she was aware of
a provision in the CBA allowing an individual employee to proceed
to arbitration on his own with union approval; but that she did
not know what to do with the request. Plaintiff states that
instead of acting on the request herself or seeking the advice of
counsel, she merely let the union's international vice president