concurring in part and dissenting in part.
Although I agree with the majority that Apperson lacked standing to assert his antitrust claim, I believe that the majority, like the District Court, has decided disputed issues of fact in its approval of the grant of summary judgment with regard to his Labor claim. Consequently, I dissent from the majority’s conclusion that Apper-son failed to adequately demonstrate disputed issues of fact concerning the claim that the arbitration decision should be set aside on grounds of bias.
Summary judgment is appropriate only when there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In this case, however, as the majority opinion itself demonstrates, Apperson advanced facts relevant to the existence of bias in the composition of the National Committee and to the existence of bad faith on the part of the Union. The trial judge was in fact required to weigh the evidence in order to grant summary judgment on the question of Parr’s bias.
The error of the court below is even more evident in its ruling on the breach of the duty of fair representation claim. Relying on defendants’ affidavits and ignoring plaintiffs’ contradictory affidavits, the District Court found that the Union had raised before the National Committee the issue whether Fleet Carrier and FCDS were separate companies. It is strange immediately thereafter to read in the District Court’s order, “On the basis of these facts, the Court concludes that plaintiffs’ allegations have not created a genuine issue of material fact as to whether [the *1362Union representative’s] conduct amounted to unfair representation.” Apperson v. Fleet Carrier Corp., No. 82-70719, at 18 (E.D.Mich. Sept. 30, 1987). It is stranger still to read in the very next sentence that plaintiffs might be able to establish a genuine issue of material fact by pursuing further discovery and that they would be permitted to reassert their unfair representation claim pursuant to such discovery. The proper solution to the dilemma which evidently vexed the District Court was not to issue summary judgment on improperly made findings of fact and then to attempt to soften the effect of this final judgment, but to deny defendants’ summary judgment motion outright and to permit discovery to proceed.
These disputed issues of fact preclude summary judgment and mandate trial on the merits. I would reverse the grant of summary judgment with regard to the second set of claims and remand for trial.