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June 2, 2005.

DAVID R. PANZIER, II, Plaintiff,

The opinion of the court was delivered by: MICHAEL J. REAGAN, District Judge


Now before the Court is Defendant The Dial Corporation's (hereinafter "Dial") motion for summary judgment (Doc. 25) and memorandum in support (Doc. 26) and Defendant Local 618, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America's (hereinafter "Local 618") motion for summary judgment (Doc. 27) and memorandum in support (Doc. 28) as to Plaintiff David R. Panzier, II's two-count second amended complaint under Section 301 of the Labor Management Relations Act, 29 U.S.C. 185 (Doc. 18). In Count One, Panzier alleges Dial breached its collective bargaining agreement with Local 618 when it discharged Panzier without proper cause. In Count Two, Panzier alleges Local 618 breached its duty to fairly represent Panzier when it allegedly acquiesced or unreasonably permitted Dial to terminate Panzier's employment without just or proper cause and then failed to take his case to arbitration without any good faith basis. Panzier responded jointly to the motions for summary judgment at Doc. 29. Dial replied at Doc. 31 and Local 618 replied at Doc. 30. This matter being fully briefed, the Court begins its analysis with a brief recitation of the factual background and procedural history.

Factual Background and Procedural History

  Dial operates a plant in St. Louis, Missouri where it manufactures dry detergent, liquid detergent and related products during three daily shifts. Panzier began working for Dial on September 26, 1988, and was employed by Dial for approximately 15 years until his employment was terminated on May 15, 2003, retroactively effective May 9, 2003. At the time of his termination, Panzier worked as a Technician III Line Leader directing a crew of employees.

  Local 618 is the labor union that represents the bargaining unit employees employed by Dial at its St. Louis plant. The bargaining unit employees's employment, which included Panzier, is governed by a collective bargaining agreement (hereinafter "CBA") negotiated by Dial and Local 618. Article 20 of the CBA, the "Management Rights" clause, provides in part:
All management functions, rights, powers and authority which the Company has not specifically and clearly limited or abridged by this Agreement are recognized by the Union as being retained solely and exclusively by the Company, including, but not limited to, and by way of example only: . . . the direction of the working forces including but not limited to the right to hire, promote, transfer, suspend, demote, discipline or discharge for proper cause. . . .
Doc. 26, Exh. E. Article 7 of the CBA sets forth the three steps of the grievance procedure. The first step provides that the employee should discuss his grievance to his supervisor. Step two provides that in the event a satisfactory conclusion cannot be reached in the first step, the employee should provide a written grievance to his supervisor. Within five days of Dial's receipt of the written grievance, a meeting will be held between the employee and a member of the grievance committee or a Local 618 representative and a representative of Dial, and Dial will render its decision in writing within five working days after the meeting. The last step, step three, provides that in the event a satisfactory conclusion is not reached in step two, Local 618 may appeal the second step answer to Dial within ten calendar days and a meeting would then be held within thirty calendar days from the date of the third step appeal to resolve the grievance. Dial then will respond to Local 618 in writing of its decision within fourteen calendar days. Thereafter, if a satisfactory settlement still has not been reached, the grievance may be referred to arbitration by Local 618 if it gives Dial written notice of its intent to do so within thirty calendar days from its answer in step three.

  As well, Dial has "Plant and Distribution Center Rules" (hereinafter "Plant Rules") that apply to the bargaining unit employees. In Article 27 of the CBA, Dial and Local 618 agreed that Dial could implement such rules concerning certain standards of conduct and what constitutes proper cause for termination of employment.

  The Plant Rules separate infractions into three categories of increasing severity: general, major and serious. The Plant Rules provide that an employee's accumulation of two written notices for general or major infractions in a twelve-month period will result in suspension, while accumulation of three warning notices in a twelve-month period for general or major infractions "will result in permanent separation" of that employee. Specifically, the Plant Rules state:
Infractions of these rules will be dealt with by using the written warning notice concept, starting with the first written warning notice. Letters of reprimand and written warning notices can be issued concurrently, depending upon the seriousness of the infractions.
Warning notices are cumulative, regardless of the nature of the infraction, and will remain in effect for twelve months. Letters of reprimand remain in effect for two years. A second written warning notice will result in a disciplinary suspension. Should an employee's conduct warrant the issuance of a third written warning, as a progression on the first and second notices, the employee will be permanently separated from employment.
Doc. 28, Exh. HH.

  During his employment with Dial, Panzier was involved in a couple of infractions. On August 8, 2002. Panzier was counseled for violating Plant Rule II-T (morally or socially unacceptable behavior) on July 7, 2002. On July 7, 2002, in response to a manager's request to obtain a product sample, Panzier apparently became angry and threw his cup from which he was drinking, shouted at management, and started slamming drawers and lab equipment. In that counseling, Dial specifically informed Panzier that further inappropriate conduct would subject him to further discipline up to and including termination.

  Panzier was also counseled on August 8, 2002 for violating Plant Rule II-U (failure to report or being late for scheduled or assigned overtime without proper substantiation) on August 3 and 4, 2002 when Panzier failed to report for overtime. Panzier was written up, and Panzier and Local 618 grieved the write up as Panzier claimed he was attending to a relative in the hospital. After the fact, Panzier provided a doctor's note indicating that his brother-in-law had been hospitalized. Employee Relations Manager Patricia Canada voided the counseling and explained to Panzier what would constitute proper documentation to prevent the issue of a counseling or discipline for violating Plant Rule II-U in the future.

  Thereafter, Panzier accumulated three warning notices within a twelve-month period that resulted in his employment being terminated in accordance with the CBA and Plant Rules. Panzier received the first written warning on October 3, 2002 for violating Plant Rule II-R (a major rule prohibiting smoking, eating or chewing snuff or tobacco). Panzier was found smoking a cigarette in the control room on September 23, 2002. Panzier and Local 618 filed a grievance over the discipline, which Dial denied. Local 610 pursued the grievance through the third step, however it did not arbitrate the grievance as Panzier did not ask that it be arbitrated.

  The next written warning was about a month later on November 8, 2002, when Panzier received a written warning for violating Plant Rule II-D (a major rule concerning changing clothes before punching out at the end of the shift without authorization). Panzier reported late that day for mandatory anti-harassment training. Panzier clocked out and went to shower and change his clothes before attending the meeting. Panzier responded that he did not know of the meeting. Panzier and Local 618 filed a grievance over the discipline and pursued the grievance to the third step, but Dial ultimately denied the grievance. Local 618 did not arbitrate the grievance as Panzier failed to notify Local 618 within thirty days after the third step meeting to express interest in pursuing the grievance to arbitration. Panzier did not protest Dial's denial of the grievance or otherwise protest Local 618's decision not to arbitrate the grievance.

  The third written warning occurred several months later as a result of three incidents. On April 24, 2003, Panzier was scheduled to report to work for overtime at 4:00 a.m. and did not report until 5:35 a.m. The next day, April 25, 2003, Panzier was again scheduled to work for overtime at 4:00 a.m. and did not report until 7:11 a.m. Dial determined that each instance was a violation of Plant Rule II-U (a major rule for being late for scheduled overtime without proper substantiation). However, Panzier states he had car trouble on both days. On April 24, he states his car's battery died. Then on April 25, his car's serpentine belt snapped and he had to wait for his wife to return home so he could use her car. Panzier took the car in for repair on May 4, 2003, at the end of his work week. Then on May 6, 2003, Panzier left the plant without being relieved of duty and without the approval of his manager. Dial employees are not allowed to end their shift until their relief has reported for work or until otherwise authorized. That day, five minutes prior to the end of his shift, Panzier asked his supervisor, Tim Jensen, if his relief, Angel Jennings, had reported for duty, and was told she had not. Later, Panzier thought he heard Jennings' voice while he was in the restroom. After exiting the restroom, Panzier asked Jensen if Jennings had called out and Jensen said she had not. Panzier then told Jensen he was leaving, and Jensen said that was fine. However, Panzier's replacement did not arrive until 5:02 p.m. that day, instead of 4:00 p.m., and did not call off work. Dial took the events of April 24, April 25 and May 6 and included them all in a third warning.

  Then on May 7 and 9, 2003, Dial, Panzier and Local 618 met to discuss the April 24, 2003, April 25, 2003 and May 6, 2003 incidents. During the May 7, 2002 meeting, Panzier claimed the tardiness on April 24 and 25 were the result of car problems. On May 5, 2003, Panzier had submitted receipts for a car battery and an engine belt. However, Dial rejected the receipts as proper documentation as the receipts were not dated for the date on which Panzier missed work. Panzier alleges it was impossible for him to get his car serviced that day as he was working from 5:35 a.m. until 4:00 p.m. on April 24, and was scheduled to be back at work at 4:00 a.m. on April 25. Additionally, Panzier and his wife were in bankruptcy and under financial stress and Panzier states he need to wait until he received his paycheck the following Thursday to repair his vehicles, which he did that next Saturday. Nonetheless, Dial chose to terminate Panzier.

  Then on May 14, 2003, Panzier, through the Local 618, grieved his suspension and Chief Shop Steward, Cindy Keys, signed the grievance. On May 15, 2003, Panzier was formally discharged, and Panzier grieved his discharge through Local 618. Again, Keys signed the grievance. On May 22, 2003, Local 618 and Dial conducted a combined second and third step grievance meeting pursuant to Article 7 of the CBA regarding Panzier's termination grievance. At the meeting were Panzier, Marvin Kropp, Business Representative and Recording Secretary for Local 618, Keys, Canada, and Mary Hoffman, Human Resources Manager of Dial.

  On May 29, 2003, Dial informed Local 618 that Panzier's termination grievance was denied. In accord with Article 7, Section 4 of the CBA, Local 618 had thirty days from Dial's May 29, 2003 denial of Panzier's grievances to notify Dial of its intent to arbitrate. Local 618 decided not to proceed to arbitration on Panzier's termination grievance and informed Panzier of its decision in a letter dated June 30, 2003. As Local 618 did not notify ...

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