Appeal from the United States District Court for the Southern District of Illinois.
No. 95 C 406 William D. Stiehl, Judge.
Before POSNER, Chief Judge, and MANION and EVANS, Circuit Judges.
ARGUED SEPTEMBER 10, 1997
DECIDED NOVEMBER 25, 1997
After returning from sick leave Donald Crider refused to submit to a routine drug test. The refusal escalated into a confrontation with his supervisors which cost him his job. His union filed a grievance for him, but when the employer held firm, the union chose not to take the grievance to arbitration. So Crider sued his former employer claiming that it breached the collective bargaining agreement, and sued his union claiming that it breached its duty of fair representation. The district court granted the defendants summary judgment. We affirm.
From March 1986 to November 1994, Crider worked in various positions for Spectrulite Consortium, Inc. ("Spectrulite"), at its Madison, Illinois, magnesium and aluminum extrusion plant. Crider's exclusive bargaining agent was the United Steel Workers and its Local 4804. Except where the distinction between the International and the Local is significant, we will refer to the two interchangeably as the "Union." A collective bargaining agreement (CBA), which the Union and Spectrulite had negotiated, governed Crider's employment.
In August 1994, Crider took a six-week leave of absence after having a hernia operation. On November 1, which was about two weeks after Crider had been back to work on full duty, Spectrulite told Crider that he would have to undergo a return-to-work physical, including a drug test. Spectrulite was relying on a "Comprehensive Alcohol/Drug Program," which the Union and Spectrulite had negotiated and which was made an attachment to the CBA. Section II.4 of the Program provided that Spectrulite could order an employee to undergo a drug test "for just cause." Section II.7 provides:
Non-Users: The policy protects their freedom. We apologize for testing non-users, yet it is in order to protect their safety and health. If anyone is falsely tested, the Company will pay the employee $250.00 and issue a written apology.
a) Employees who are absent from the plant for thirty (30) days or more . . . may be tested as part of the return to work physical. The $250.00 for a negative test result will not be required in their situation.
The Program also provides that "[a]ny employee refusing to allow the urine sample and/or blood test will be terminated."
Spectrulite first scheduled the physical and drug test for a time when Crider was not scheduled to work. Because the physical was supposed to be conducted during working hours, Crider--through his Union representatives--complained, and Spectrulite twice rescheduled the physical to accommodate Crider's work schedule. It was finally scheduled for November 9. On that day, Crider complained that he did not have transportation to the physical. Susan Damsgaard-Brand, Spectrulite's Human Resources Manager, agreed to provide transportation for Crider. Crider then asked Donald Devany, president of the Local, if Spectrulite would pay him $250 if he passed the drug test. Devany told him that it would not because the test was part of a return-to-work physical. Crider said that he would not take the drug test, then. Crider claimed that because he had already been back to work for 30 days, he was not obligated to take the physical. Devany answered that if he refused to take the drug test, Spectrulite would probably fire him. Crider responded, "Well, then, if that's the way it's going to be, that's the way it will be. If they can't go by the contract, then there it is."
Later that day, Devany and Ed Gray, another union official, urged Crider to take the drug test. They told him that if he took the test and passed, the Union would file a grievance if Spectrulite did not pay him $250. Crider rejected this advice. His foreman then told him to leave the plant if he wasn't going to take the physical. On his way out, Crider was met by Damsgaard-Brand and Randy Riebeling, a manager. Damsgaard-Brand told Crider that he would be fired if he refused to take the drug test. Crider asked if he would be paid the $250 if he passed, and Damsgaard-Brand told him "no." Crider responded, "That's all I need to know," and left. Spectrulite suspended Crider that day.
The Union requested a hearing concerning Crider's suspension. Prior to the hearing, Devany asked if Crider was open to settling the drug test issue. Crider stuck to his position: he would only take the drug test if Spectrulite first agreed to pay him $250 if he passed. At the hearing, Devany tried to put the best "spin" that he could on the events leading up to Crider's exchange with Damsgaard-Brand. He suggested that there had been a misunderstanding. He said that Crider was willing to take the drug test but believed that he would be entitled to the $250 if he passed. Plant Superintendent Julius Smith told Devany that Crider had been suspended both for refusing to take the test and for his insubordination toward Damsgaard-Brand, which Spectrulite saw as two separate offenses. According to Smith, Crider should have taken the drug test and then filed a grievance if he disagreed with ...