dissenting.
I respectfully dissent. The district court granted summary judgment in favor of the Des Moines Register & Tribune Co. Thus, we must assume for the purpose of this *655opinion that the facts alleged by Danylchuk are correct. Of significance for summary judgment is the company’s ultimatum that, unless the union agreed to withdraw its claim that the Danylchuk grievance be arbitrated, the company would not enter into a new collective bargaining agreement. The union, complied with this request by withdrawing its demand for arbitration and agreeing that the Danylchuk grievance would be submitted to nonbinding mediation. The likely result of this action was that Danylchuk could prevail only if the company agreed to a resolution of the grievance satisfactory to Danylchuk, an unlikely event in view of its posture during the relevant time period.
The company offers as a defense that the union had the right to abandon the Danylchuk grievance for the greater good of the union members. I do not believe that the union had the right to sacrifice a union member with a meritorious grievance in order to secure a new collective bargaining agreement with the company. Under these circumstances, the union’s responsibility was to file an unfair labor practice charge with the National Labor Relations Board alleging that the company refused to bargain in good faith. When an employer conditions signing a new collective bargaining agreement on the union abandoning a grievance or lawsuit, the employer commits an unfair labor practice by violating section 8(a)(5) of the Labor Management Relations Act, 29 U.S.C. § 158(a)(5). See Plattdeutsche Park Restaurant, Inc., 296 N.L.R.B. 133, 137-38, 1989 WL 224277 (1989); Inner City Broad. Corp., 270 N.L.R.B. 1230, 1233-34, 1984 WL 36519 (1984); Good G.M.C., Inc., 267 N.L.R.B. 583, 584, 1983 WL 24880 (1983); Laredo Packing Co., 254 N.L.R.B. 1, 19, 1981 WL 21130 (1981); Nordstrom, Inc., 229 N.L.R.B. 601, 601, 1977 WL 8648 (1977). Therefore, by insisting that the union waive the Danylchuk grievance as a condition of signing a new collective bargaining agreement, the company engaged in an unfair labor practice.
I have no quarrel with the' holdings of Vaca and Smith, the cases cited, by the majority. In neither case, however, did the union agree to waive arbitration of what it considered to be a meritorious grievance for the purpose of entering into a new agreement.
It may well be that if this case were remanded, as I think it should be, the district court would find that the company did not issue an ultimatum, but that the union acted to facilitate negotiations. If so, Danylchuk would not have a cause of action against the company. Here, however, we must take the facts in the light most favorable to Danylchuk. In that light, the company issued an ultimatum that unless the Danylchuk grievance was withdrawn, there would be no collective bargaining agreement.
A union representing members with conflicting interests acts properly when it proceeds in good faith and on the basis of reasoned, informed judgment. Beardsly v. Chicago & North Western Transp. Co., 850 F.2d 1255, 1266-68 (8th Cir.1988); Thomas v. Bakery, Confectionery & Tobacco Workers Union Local No. 4-38, 826 F.2d 755, 760 (8th Cir.1987) (citation omitted); Automotive, Petroleum & Allied Indus. Employees Union, Local 618 v. Gelco Corp., 758 F.2d 1272, 1276 (8th Cir.1985) (citation omitted). Certainly, then, a union has the right to. balance the interests of competing groups of employees within the union and enter into an agreement that it believes benefits the whole. In my view, however, a union does not have the right to waive arbitration of a meritorious grievance with respect to whether an employee had been unlawfully discharged by the company unless there is evidence that the employee’s grievance was of doubtful merit. I would remand to'the district court with instructions to hold a hearing to determine whether the company in fact issued an ultimatum to the union or whether the union abandoned Danylchuk’s grievance for no good reason.