Smith v. United Parcel Service, Inc.

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No. 95-4172
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V. Kirk Smith, *
*
Plaintiff-Appellant, * Appeal From the United States
* District Court for the
v. * Western District of Missouri
*
United Parcel Service, Inc.; *
International Brotherhood of *
Teamsters, Chauffeurs, *
Warehousemen, and Helpers of *
America, Local Union No. 41, *
Over-the-Road and City Transfer *
Drivers, Helpers, Dockmen and *
Warehouse Men, *
*
Defendants-Appellees, *

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Submitted: June 13, 1996

Filed: September 16, 1996
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Before RICHARD S. ARNOLD, Chief Judge, F. GIBSON, Senior Circuit Judge,
and KORNMANN,* District Judge.
___________

KORNMANN, District Judge.

V. Kirk Smith, appellant, brought a claim pursuant to section 301 of
the Labor Management Relations Act, 29 U.S.C. § 185, against United Parcel
Services, Inc. ("UPS") for breach of a collective bargaining agreement and
a claim against Teamsters Local 41 ("the union") for breach of the duty of
fair representation. The District Court1 granted summary judgment to UPS
and to the union. Smith appeals, contending the union's actions were
arbitrary,

*
The Hon. Charles B. Kornmann, United States District Judge
for the District of South Dakota, sitting by designation.
1
The Hon. Fernando J. Gaitan, Jr., United States District
Judge for the Western District of Missouri at Kansas City.
discriminatory and in bad faith, thus causing the union and UPS to be
liable to him.

I. Factual Background
Smith worked for UPS for approximately seventeen years. During his
employment, Smith worked as a "package car" driver, delivering packages in
his local area, and as a "feeder" driver, delivering packages in several
metropolitan areas.
In early 1993, Smith was given a random drug test. He tested
positive for methamphetamines and amphetamines. On February 1, 1993, Smith
filed a grievance with the union, complaining that: (1) the drug test was
not administered according to the guidelines agreed to by UPS and the
International Brotherhood of Teamsters; and (2) he was improperly selected
for a random drug test because such tests are applicable only to "feeder"
drivers, but he was working as a "package car" driver at the time he was
selected.
On March 8, 1993, Smith's employment with UPS was terminated. The
union objected to Smith's termination by letter on March 9, 1993, which
constituted a second grievance.
If UPS and the union are unable to settle a grievance, the grievance
is handled through two levels of final and binding arbitration. The union
represented Smith during six hearings and one committee review, all
regarding his grievances. The grievances were ultimately decided in favor
of UPS and Smith's discharge was upheld. Smith now brings this action
claiming that the union breached its duty of fair representation during the
hearings on Smith's grievances.
Smith claims the union discriminated against him because he ran for
political office in the local union. He contends the union acted
arbitrarily, deceitfully and in bad faith, primarily in two respects: (1)
failing to obtain certain laboratory information and reports concerning his
drug test so the test could be challenged as unreliable; and (2) failing
to hire an expert witness to attack the reliability of his drug test.
Smith asserts that UPS purposefully had him tested (rather than being
randomly selected) and that UPS

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tampered with the drug test to make the results positive for
methamphetamine and amphetamine drug use.

II. Decision
We review the District Court's grant of summary judgment de novo and
will affirm only if the record, viewed in the light most favorable to
Smith, shows there is no genuine issue of material fact and the defendants
are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Allen v.
United Transp. Union, 964 F.2d 818, 820 (8th Cir. 1992).
A breach of the duty of fair representation by a union occurs only
when the union's conduct is "arbitrary, discriminatory, or in bad faith."
Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967).
"Mere negligence, poor judgment, or ineptitude on the part of the union is
insufficient to establish a breach of the duty of fair representation."
Stevens v. Teamsters Local 600, 794 F.2d 376, 378 (8th Cir. 1986)
(citations omitted). A union's conduct is arbitrary if, considering all
the circumstances at the time of the union's action or inaction, "the
union's behavior is so far outside a `wide range of reasonableness' as to
be irrational." Beavers v. United Paperworkers Intern. Union, Local 1741,
72 F.3d 97, 100 (8th Cir. 1995) (citations omitted). "[A] union is
protected by the `wide range of reasonableness' shield only if it has acted
in good faith." Schmidt v. International Broth. of Elec. Workers, Local
949, 980 F.2d 1167, 1170 (8th Cir. 1992). To defeat summary judgment on
the issue of bad faith, Smith must offer "evidence of fraud, deceitful
action or dishonest conduct" by the union. Id. (citations omitted).
Breach of the duty of fair representation by the union is a condition
precedent to UPS's liability on Smith's claim against UPS for breach of the
collective bargaining agreement. Vaca, 386 U.S. at 186, 87 S.Ct. at 914-
15, 17 L.Ed.2d at ___.
Smith cannot defeat summary judgment on the issue of the union's bad
faith because Smith has not produced any evidence of

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fraud, deceitful action or dishonest conduct by the union. Schmidt, 980
F.2d at 1170. Smith alleges the union discriminated against him for
"rocking the political boat with UPS and running for political office."
The record shows that the union promptly filed grievances on behalf of
Smith and adequately represented Smith at several hearings on his
grievances. We agree with the district court that there is no genuine
issue of material fact as to whether the union acted in bad faith.
Smith contends he was discriminated against by the union but he does
not allege or provide any evidence that, for other union members, the union
obtained the laboratory records he alleges it should have obtained in his
case or that the union hired an expert to attack the reliability of drug
tests for other union members in similar situations. Smith further
contends the union discriminated against him by delaying his grievance
hearings during the union's election process. This claim is unfounded
because Smith has not produced any evidence to show that the union had any
control over the scheduling of his grievance hearings.
Smith has not shown that a genuine issue of material fact exists as
to whether the union's representation of him was arbitrary. The union
adequately represented Smith during all the grievance hearings, presenting
both written and oral arguments in his favor. In one of the last hearings
on Smith's grievances, he was asked, "Do you feel that Mr. McLaughlin and
Mr. Standley of Local 41 properly represented you in this case?", to which
Smith responded, "Yes I do. I believe that they represented me as well as
anyone could have." The union did obtain laboratory records of Smith's
drug test, but Smith claims the union should have obtained more records.
The union used these records to challenge the reliability of the drug test
administered by UPS. Whether the union should have obtained more records
is a matter within the wide range of reasonableness afforded to a union in
pursuing a grievance. See Beavers, 72 F.3d at 100. Even after obtaining
the records which Smith contends the union should have procured, Smith has
not been able to support his allegations that the drug test was

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tampered with or spiked.
Smith's claim that the union breached its duty of fair representation
by failing to obtain an expert witness to challenge the reliability of the
drug test is not supported by the record. A union is not necessarily
required to obtain an expert witness to fulfill its duty of fair
representation. Walk v. P*I*E Nationwide, Inc., 958 F.2d 1323, 1328 (6th
Cir. 1992). The decision whether to procure an expert witness in this
situation is a matter within the wide range of reasonableness afforded a
union in pursuing grievances on behalf of its members. Smith has not
created a genuine issue of material fact that the union's conduct in this
regard was arbitrary, discriminatory or in bad faith.
No genuine issue of material fact exists as to the union's breach of
the duty of fair representation. Therefore, summary judgment in favor of
UPS is proper on Smith's claim for breach of the collective bargaining
agreement. Vaca, 386 U.S. at 186, 87 S.Ct. at 914-15, 17 L.Ed.2d at ___.

III. Conclusion1
The judgment of the district court granting summary judgment to
defendants is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT

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