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August 6, 1998

DAVID D. ADAMIEC, Plaintiff,

The opinion of the court was delivered by: CASTILLO


 David Adamiec began working for defendant Peoples Gas Light and Coke Company ("Peoples Gas") in 1979 and stayed there for over seventeen years. He eventually rose in the ranks to Crew Leader of the North Shop storeroom in the company's Purchasing and Stores Department, the unit responsible for buying supplies used in company operations. On May 31, 1996, however, Adamiec's employment came abruptly to a halt. He was unceremoniously summoned to a conference room by Stores Manager Pat Fergus and, with little explanation, suspended without pay. At Adamiec's request, his Union Steward, *fn1" John DeWitt, attended the meeting:

Fergus: The purpose of this meeting is to discuss a serious issue which will result in disciplinary action. . . . We are currently conducting an investigation into irregularities with Storeroom records, missing material and information regarding the reported May 30th [North Shop] break in. You may not contact any of your fellow employees, except the steward, regarding this investigation or in any way hamper or interfere with this investigation. You are not allowed on any company premises unless requested by your supervisors. If you have any questions you should contact me directly. This is a direct order! Failure to follow this order will be considered insubordination.
Effective immediately, you are placed on indefinite unpaid layoff subject to discharge pending completion of the investigation. We will contact you when we have finished the investigation and will inform you of any charges which may result. We may contact you as a part of the investigation. Do you have any questions?
Adamiec: What are the charges against me?
Fergus: We are currently conducting an investigation into irregularities with Storeroom records, missing material and information regarding the reported May 30th break in.
Adamiec: What specifically are the charges? You're not giving me any specifics!
Fergus: That's right. I'm giving you what I'm giving you.
DeWitt: Does it have to do with the files?
Fergus: It has to have something to do with the files.
DeWitt: What specific missing material?
Fergus: I can't tell you at this time.
. . .
Adamiec: How long is the layoff?
Fergus: Indefinite.
Adamiec: No specifics?
Fergus: Not at this time.
Adamiec: I don't understand.
Fergus: You'll have adequate time to respond.
Adamiec: Layoff, just like that?
Fergus: Yes, per the serious information I have.
Adamiec: What is the charge?
Fergus: You'll be told at a later time. No further questions.

 Pl.'s Ex. E. Adamiec and DeWitt were thus left with only the vaguest of notions about the charges prompting Adamiec's indefinite layoff.

 One month later, Adamiec was discharged. His alleged offenses were: (1) placing orders for supplies without authorization; (2) falsifying reports of a North Shop break in; (3) failure to maintain control over storeroom stock; and (4) insubordination for contacting an employee during his suspension. Adamiec filed a grievance under the procedures set forth in the Collective Bargaining Agreement ("CBA") between the Union and Peoples Gas, but the Union pursued his grievance only through the second step -- two steps short of arbitration. Within six months after the Union Executive Board's final decision to drop the grievance, Adamiec filed suit in this Court, alleging that both the company and the Union violated section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 ("LMRA"). Adamiec claims that the Union breached its duty of fair representation under the Act by refusing to take his grievance past the second step. He alleges that Peoples Gas breached the CBA in violation of the Act by, inter alia, discharging Adamiec without either just cause or a fair investigation. Pl.'s Complt. PP 7-11.

 Before the Court is the Union and Peoples Gas' joint motion for summary judgment. Defendants argue that Adamiec cannot demonstrate that the Union's handling of his grievance breached its duty of fair representation. Because proving this representational breach is one of two compulsory LMRA elements (the other being the company's breach of the CBA), defendants contend that summary judgment is in order. Although we question the treatment Adamiec received from management at Peoples Gas, we do not have doubts about the adequacy of the Union's representation. Under the facts presented here, no reasonable juror could find that the Union breached its duty of fair representation to Adamiec. As such, we grant the defendants' motion for summary judgment. *fn2"


 I. Summary Judgment

 Summary judgment is proper when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 150 (7th Cir. 1995). A genuine issue for trial exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court must view all evidence in a light most favorable to the nonmoving party, and draw all reasonable inferences from the evidence in the nonmovant's favor. Cincinnati Ins., 40 F.3d at 150. But if the evidence is merely colorable, or is not significantly probative, or just raises "some metaphysical doubt as to the material fact," summary judgment may be granted. Liberty Lobby, 477 U.S. at 261; Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 In making its determination, the court's sole function is to determine whether sufficient evidence exists to support a verdict in the nonmovant's favor. Credibility determinations, weighing evidence, and drawing reasonable inferences are jury functions, not those of a judge deciding a motion for summary judgment. Liberty Lobby, 477 U.S. at 255.

 II. LMRA Claims

 Section 301 of the LMRA grants an employee the right to sue for violation of a collective bargaining agreement between the employee's union and employer. 29 U.S.C. § 185(a). If the agreement contains an employment dispute resolution mechanism (such as a grievance procedure) the employee must prove two propositions to prevail under section 301: (1) the union breached its duty of fair representation and (2) the employer violated the agreement. Filippo v. Northern Indiana Pub. Serv. Corp., 141 F.3d 744, 748 (7th Cir. 1998) (citing DelCostello v. International Bhd. Teamsters, 462 U.S. 151, 163-64, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983); Vaca v. Sipes, 386 U.S. 171, 186, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967)). In these so-called "hybrid 301" cases, "the employee's claim against the union and his claim against the employer are interlocked: neither claim is viable if the other fails." Crider v. Spectrulite Consortium, Inc., 130 F.3d 1238, 1241 (7th Cir. 1997). The motion before us challenges only Adamiec's ability to establish the Union's representational breach; we focus our opinion accordingly.

 A union breaches its duty of fair representation under section 301 if its actions are arbitrary, discriminatory, or in pursued in bad faith. Air Line Pilots Ass'n Int'l v. O'Neill, 499 U.S. 65, 67, 113 L. Ed. 2d 51, 111 S. Ct. 1127 (1991); Vaca v. Sipes, 386 U.S. 171, 190, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967); Filippo, 141 F.3d at 748. Phrased in the alternative, this formulation presents three different ways in which the plaintiff can prove a representational breach; courts must separately examine the proof supporting each alternative. Garcia v. Zenith Elecs. Corp., 58 F.3d 1171, 1176 (7th Cir. 1995); Griffin v. Air Line Pilots Ass'n Int'l, 32 F.3d 1079, 1083 (7th Cir. 1995); cf. Filippo, 141 F.3d at 749 ("To defeat a motion for summary judgment, plaintiff must proffer evidence supporting at least one of these elements."). Judicial review of union representational activity is nonetheless "highly deferential." McKelvin v. E.J. Brach Corp., 124 F.3d 864, 867 (7th Cir. 1997). This deference stems from the fact that "Congress did not intend courts to interfere with the decisions of the employee's chosen bargaining representative." Id. (internal quotations and citations omitted); see also O'Neill, 499 U.S. at 78 ("Any substantive examination of a union's performance . . . must be highly deferential, recognizing the wide latitude that negotiators need for the effective performance of their bargaining responsibilities.").

 The arbitrariness test, for example, is "quite forgiving." Garcia, 58 F.3d at 1176. A union acts arbitrarily only if, in light of the factual and legal landscape at the time, its actions are "so far outside a wide range of reasonableness as to be irrational." O'Neill, 499 U.S. at 67. In the grievance context, this translates into the following principle: "so long as a colorable argument could be made at the time of the union's decision to drop its support that the grievance is meritless (and the union did not then treat substantively similar grievances differently from the plaintiff's), the decision cannot be regarded as arbitrary." Trnka v. Local Union No. 688, 30 F.3d 60, 61 (7th Cir. 1994). The union need only conduct a "minimal investigation" to assess the grievance's merit -- although the thoroughness required depends on the particular case -- and "only an egregious disregard for union members' rights constitutes a breach of the union's duty." Fillipo, 141 F.3d at 749 (internal quotations and citations omitted). To survive summary judgment on the arbitrariness factor, then, the plaintiff cannot simply show that his position on merits of the grievance is as viable as the union's, but must demonstrate that the union's position "could eventually be deemed not even colorable." McKelvin, 124 F.3d at 868 (internal quotations and citations omitted).

 While the arbitrariness question demands an objective review of the union's actions, the bad faith and discrimination components of fair representation "require[] inquiry into the subjective motivation behind union action." Id.; see Crider, 130 F.3d at 1243 ("Whereas the arbitrariness analysis looks to the objective adequacy of the Union's conduct, the discrimination and bad faith analyses look to the subjective motivation of the Union officials."). A plaintiff may prove that the union's action on her grievance was discriminatory by presenting evidence that the union treated substantively similar grievances more favorably, see id. at 1244 (plaintiff fired for refusing to take drug test claimed that previous discharges for refusing drug test were pursued farther in the grievance process), and may demonstrate bad faith with evidence that the union dropped a grievance in retaliation for the employee's perceived anti-union activity, see Filippo, 141 F.3d at 750 (plaintiff claimed union's grievance decision was bad faith retaliation for her election run against the incumbent union president); Trnka, 30 F.3d at 63 (plaintiff claimed union abandoned grievance in retaliation for his previous criticism of union leadership and policies).

 Adamiec contends that the Union breached its duty of fair representation under each of the three alternatives. He claims that the Union's conduct was arbitrary in two respects: (1) the CBA allegedly requires the Union to pursue through arbitration every grievance that is not resolved to the employee's satisfaction, but the Union dropped Adamiec's after the second step -- despite his dissatisfaction with the outcome; and (2) the Union's investigation was inadequate because it failed to evaluate the company's evidence, declined to interview the employees who implicated Adamiec, and ignored evidence that the company's charges were incredible. Adamiec maintains that the Union acted discriminatorily as well, insisting that the Union pursued similar grievances at least through the third step, if not through arbitration. Finally, he maintains that there is evidence of bad faith, arguing that his recent receipt of workers' compensation benefits and participation on a committee to improve employee-management relations angered union officials sufficiently to spur retaliation. We now examine the relevant facts, in light of the above legal standards, to determine whether Adamiec has produced evidence that would permit a reasonable juror to find in his favor on these claims. *fn3"


 I. Background Facts

 A. Grievance Procedures

 We begin with a look at the grievance procedure contained in the CBA that the Union and Peoples Gas executed in 1994:

* * * *
A grievance shall be processed from step to step promptly. The last decision given on any grievance in any of the first three steps shall be considered a satisfactory adjustment unless, within ten days after the decision has ...

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