Charles K. Smith v. McDonnell Douglas , 107 F.3d 605 ( 1997 )


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  •                        United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    _____________
    No. 96-2276EM
    _____________
    Charles Kelley Smith,                *
    *
    Appellant,                *
    *
    v.                              *
    *   On Appeal from the United
    *   States District Court
    McDonnell Douglas Corporation,       *   for the Eastern District
    a Missouri Corporation, and          *   of Missouri.
    International Association of         *
    Machinists and Aerospace             *
    Workers, Lodge 837,                  *
    *
    Appellees.                *
    ___________
    Submitted:   February 10, 1997
    Filed: February 25, 1997
    ___________
    Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and
    BATTEY,* District Judge.
    ___________
    RICHARD S. ARNOLD, Chief Judge.
    In   mid-1993,    McDonnell   Douglas   Corporation   fired   Charles
    Kelley Smith for trying to force a fellow employee to the shoulder
    of the road as the two drove on an interstate highway in St. Louis
    County, Missouri.     Smith, a member of the International Association
    *The Hon. Richard H. Battey, Chief Judge, United States
    District Court for the District of South Dakota, sitting by
    designation.
    of   Machinists   and   Aerospace   Workers   union,   claims   that   his
    dismissal violated the collective bargaining agreement because the
    -2-
    dismissal was not for just cause, and that the union violated its
    duty of fair representation by failing to pursue the matter to
    arbitration.        The District Court1 granted summary judgment to the
    company and the union.        We affirm.
    I.    Background
    Aside from a three year stint in the Marine Corps, Charles
    Kelley Smith was an employee of McDonnell Douglas from 1974 until
    his dismissal in mid-1993.            From 1990 until his dismissal, he
    served as a fabrication worker and was a member of a collective-
    bargaining unit.        While serving in this capacity, Smith received
    five employee incident reports.            Each of the first three was for
    repeated tardiness or absenteeism and contained the following
    warning:     "IMMEDIATE AND SUSTAINED IMPROVEMENT MUST BE MADE ON YOUR
    PART OR YOU WILL BE SUBJECT TO FURTHER DISCIPLINARY ACTION UP TO
    AND INCLUDING DISCHARGE."
    The fourth report Smith received was the apparent result of
    an ongoing dispute between himself and Walter Campbell, Smith's
    supervisor     at    the   time,    over   Campbell's   treatment   of   other
    employees and Campbell's alleged use of a company phone to make
    personal long distance calls.              According to the report, Smith
    directed obscene language at Campbell and threatened him, asking
    him, for example, if he "ever had the flesh ripped out from under
    [his] rib cage?"        For this behavior, Smith received a suspension
    and a final warning that any similar future violation would result
    in his immediate termination.2
    1
    The Hon. Carol E. Jackson, United States District Judge for
    the Eastern District of Missouri.
    2
    The Union and McDonnell Douglas ultimately settled this
    grievance, agreeing that McDonnell Douglas would reimburse Smith
    for five days of the two-week suspension if he were reinstated as
    a result of the pending arbitration proceeding in the grievance
    related to his discharge. The parties agreed that the settlement
    -3-
    agreement itself could not be used in any future arbitration
    proceeding.
    -4-
    Smith's fifth and final report also resulted from his ongoing
    feud with Campbell.       Shortly after a night shift in May of 1993,
    Smith's car swerved towards a van driven by Campbell and carrying
    two other McDonnell Douglas employees, forcing the van towards the
    shoulder as   the   two    vehicles    traveled    west   on    an   interstate
    highway.    Smith does not deny that the incident took place but
    claims that he swerved towards Campbell's car because he thought
    that Campbell was pointing a gun at him as the two drove next to
    each other.    Two days later, according to the report, Smith was
    seen threatening Campbell on company premises and attempting to
    provoke a fight.    Campbell was no longer Smith's supervisor at this
    point, and, according to Smith, the two worked "in a different
    area."
    For these infractions and for his overall work record, the
    company fired Smith.3      His fifth and final incident report stated
    that his conduct on the highway and later conduct on the premises
    violated three of the company's standards of behavior:               "No. 14 -
    `Unsatisfactory conduct (conduct detrimental to the interests of
    the Company or others).'; No. 21 - `Threatening, intimidating,
    coercing, or otherwise interfering with others on Company premises
    at any time, including lunch and rest periods.'; and, No. 29 -
    `Willful abuse, or deliberate damage to Company property or to the
    property of others.'"      See Appellant's App. Item 7, Exhibit 3.
    The union shop steward then filed a grievance on behalf of
    Smith.     After   two   meetings   with    the   company   to    discuss   the
    grievance, the Union formally requested an arbitration hearing
    pursuant to the collective-bargaining agreement.               Two weeks after
    the selection of an arbitrator, District 837 of the Union was
    placed under the supervision of the International Association of
    3
    The company had laid off Campbell several days before Smith's
    termination, though it appears that Campbell was never officially
    disciplined for his role in the feud with Smith.
    -5-
    Machinists and Aerospace Workers, AFL-CIO.            The new Deputy of
    District 837 instituted a policy requiring all pending grievances
    to be reviewed by a randomly selected panel of three business
    representatives.
    Two of the three panel members assigned to review Smith's case
    (Gerald Oulson and James Baker) decided not to submit Smith's case
    to arbitration.    The third, Fred Golleher, thought the case should
    be submitted.      In determining that Smith's case would have been
    unwinnable at arbitration, Oulson, who had handled Smith's case
    since the filing of the grievance, reviewed the statements of two
    witnesses to the highway incident as well as Smith's disciplinary
    record.    Oulson had also been at an earlier hearing where both
    Smith and the company presented their sides of the story.          He spoke
    with the Plant Chairman and shop steward, who, according to Oulson,
    felt strongly that the case should proceed to arbitration, about
    the   grievances    and   with   other    witnesses   to    confrontational
    incidents between Smith and Campbell.            Also, he consulted an
    arbitration text to determine whether and under what circumstances
    off-premises conduct is grounds for dismissal.             He then reported
    his findings and made his recommendation to the other two panel
    members.   Neither of the other two had independently investigated
    the matter, though both reviewed the statements of two witnesses to
    the highway incident as well as several other documents.            The new
    Deputy of the District agreed with the majority's recommendation,
    as did the International Union representative assigned to the case.
    A week after the panel's decision, Oulson wrote Smith a letter
    informing him that the Union did not intend to pursue the grievance
    further.
    II.
    To prevail on his claim, Smith must establish that McDonnell
    Douglas terminated him in violation of the collective bargaining
    -6-
    agreement,   and   that   the   Union    failed   in   its   duty   of   fair
    representation by failing to pursue the matter to arbitration.
    -7-
    Establishing the latter is an especially difficult task.                Merely
    demonstrating the error of the union's decision or even that the
    decision was negligent is not enough.           So long as the union does
    not play favorites among its members and "so long as a union
    exercises its discretion in good faith and with honesty or purpose,
    a `wide range of reasonableness must be allowed.'"             N.L.R.B. v. Am.
    Postal Wkrs. Union, 
    618 F.2d 1249
    (8th Cir. 1980) (quoting Ford
    Motor Co. v. Huffman, 
    345 U.S. 330
    , 338 (1953)).
    Smith advances two arguments to show why his termination was
    improper.       First, he argues that he was not the aggressor on the
    highway because he believed at the time that Campbell had pulled a
    gun on him.4        Second, he contends that his actions on the highway
    were not detrimental to the interests of the company or others,
    primarily because the incident occurred off-premises.            Thus, unless
    he can establish that the Union's investigation was so perfunctory
    as to raise an inference of bad faith, Smith must establish either
    the arbitrariness of the Union's decision that the arbitrator would
    not have believed Smith's version of the facts, or of its legal
    determination that Smith's conduct violated company standards.
    Smith has failed to establish the arbitrariness of either
    decision.       First, it was eminently reasonable for the Union to
    determine that the arbitrator would not believe Smith.               It is true
    that       Oulson   interviewed   witnesses   (whose   names    he   could   not
    remember) who confirmed that Campbell had threatened Smith in the
    past, thus establishing that Campbell was not an innocent party in
    the rivalry.        Yet aside from the implausibility of Smith's account
    of the highway incident, Smith had received a prior report, which
    was also a final warning, for threatening Campbell in an extremely
    graphic manner, and he had received three disciplinary reports in
    the two years prior to that incident.             There were no witnesses
    4
    Smith also denies that he threatened Campbell two days later
    on company premises, as described in the fifth incident report.
    -8-
    (other than himself) to his version of the events on the highway,
    -9-
    while       two   McDonnell        Douglas       employees       and    members     of   the
    collective-bargaining unit who were traveling in Campbell's van
    corroborated Campbell's version.                  Two other witnesses, who were on
    the    highway     in    another     car,        saw   Smith's    car     swerve    towards
    Campbell's van.         Moreover, Smith was witnessed making threatening
    gestures to Campbell two days later.5
    Smith also assails the Union's investigation for "fail[ing]
    to discover previous arbitration decisions wherein arbitrators held
    that       employees    could      not     be    terminated      for     off-site    acts."
    Appellant's Br. 11.         Yet it is more than reasonable to think that
    an employee's attempt to run three McDonnell Douglas employees to
    the side of a highway while traveling at high speeds minutes after
    the end of a work shift, culminating a longstanding workplace
    rivalry that included past threats on company premises, is conduct
    that an employer may decide detrimentally affects its business
    regardless of whether or not those employees had to work together
    at the plant.           The arbitration decisions that Oulson supposedly
    failed       to   unearth     do     not        even   remotely        suggest    that   his
    6
    determination was wrong, let alone arbitrary.
    Finally, Smith suggests that the Union's investigation was so
    perfunctory that it reveals bad faith and secret hostility on the
    part of the Union.            He points to the fact that Oulson did not
    interview any witnesses to the incident, including Campbell, did
    5
    Smith asserts that Campbell admitted that this incident never
    took place. Appellant's Br. 8. This is not true. See Appellant's
    App. Item 7, 61.
    6
    The one decision cited by Smith that supports his argument at
    all is still easily distinguishable. He points to In re Honeywell,
    Inc., 
    68 LA 346
    (1977), where an arbitrator found that two
    employees were wrongly disciplined for fighting over a card game at
    an employer-sponsored social club. The arbitrator found that the
    two would have no trouble working with each other after the fight.
    A single fight is a far cry from the persistent problems engendered
    by the Smith-Campbell feud and the gravity of Smith's aggressive
    and dangerous actions on the highway.
    -10-
    not speak to the independent witnesses to the highway incident, and
    -11-
    did not record the names of witnesses given to him by Smith who
    would have corroborated Smith's version of the Smith-Campbell
    rivalry.     He also complains that Oulson would not return nine of
    his phone calls, though he admits they spoke a few times on the
    phone during the processing of the grievance, and that he falsely
    told Smith that the Union was actively pursuing the investigation
    when it was not.
    Absent from Smith's allegations is any suggestion of what a
    further investigation might have revealed that would have aided him
    in any way.       Smith identifies no witnesses that would corroborate
    his     version    of     the   highway    incident     or   absolve     him   of
    responsibility for the report he received for threatening Campbell.
    Moreover, as stated above, Oulson interviewed witnesses to past
    confrontational         incidents    between   Smith   and   Campbell.     Smith
    assails Oulson for failing to interview witnesses to the highway
    incident.     Yet without some indication of what such an interview
    could have revealed that did not appear in the statements of the
    witnesses, we cannot say that Oulson's failure to conduct the
    interviews was arbitrary.           He also suggests that Oulson should have
    probed more deeply in investigating the fourth report but does not
    identify any witnesses who would have corroborated Smith's version
    of that event.      Finally, Oulson's failure to return some of Smith's
    calls is serious only to the extent that Smith had anything
    substantive to tell Oulson that would have strengthened Smith's
    case.    Smith admitted in his deposition that the two spoke on the
    phone a few times, and Oulson was present at the meeting where
    Smith told his side of the story.              The record is devoid of any
    indication that future communication with Smith was necessary to
    conduct a proper investigation.            Insufficient attentiveness alone
    does not establish a violation of the duty of fair representation.
    Smith also claims that Oulson bore him a secret hostility
    because of earlier complaints Smith had made to Oulson's superiors
    -12-
    in the Union about Oulson's handling of employee grievances while
    Smith was shop steward.   Smith could tell that Oulson was hostile
    -13-
    to him by the "tone and inflection of his voice when speaking to
    [Smith], his mannerisms and demeanor when speaking to [him], and
    his reluctance to meet with [him] or to speak with [him] on the
    telephone."      Appellant's App. Item 4, Exhibit I.     There is no
    evidence that this supposed hostility affected the investigation in
    any way.   Allowing such allegations to defeat a motion for summary
    judgment would severely weaken the deference that courts owe to a
    union's exercise of its discretion not to pursue problematic
    grievances.
    III.
    We hold that the Union did not violate its duty of fair
    representation to Charles Kelley Smith.    There is therefore no need
    to determine whether or not Smith's termination violated the
    collective-bargaining agreement.       The District Court's grant of
    summary judgment to the company and the Union is
    Affirmed.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -14-
    

Document Info

Docket Number: 96-2276

Citation Numbers: 107 F.3d 605

Filed Date: 2/25/1997

Precedential Status: Precedential

Modified Date: 1/12/2023