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October 7, 1971

Roscoe Davidson, Plaintiff
International Union United Automobile, Aerospace And Agricultural Implement Workers Of America, Local 1189 et al., Defendants

Lacey, D. J.

The opinion of the court was delivered by: LACEY


Plaintiff sues under Section 301 of the Labor Management Relations Act (29 U.S.C. § 185), charging his former employer with wrongful discharge and his union with breach of its duty of fair representation.

 Trial was had herein on September 28 and 30, 1971.

 The following constitutes, in opinion form, my Findings of Fact and Conclusions of Law, pursuant to F.R. Civ. P. 52(a).

 Plaintiff entered the defendants' employ in 1961. At all material times he was a member of and represented by, Local 1189 U.A.W. (Union), exclusive bargaining representative for employees at the companies' plant.

 In December, 1967, his company imposed upon the plaintiff, first, a disciplinary 5-day suspension, and then discharged him for what it termed good cause. The Union instituted at once the grievance procedures prescribed in the collective bargaining agreement (Ex. P-1 -- Article IV). *fn1" The grievance was denied on April 3, 1968.

  The plaintiff then requested arbitration under the collective bargaining agreement. Article V of the agreement provides for arbitration and states in pertinent part:


The decisions and awards of the Arbitrator shall be final and binding.

 The arbitration hearing occurred on January 15, 1969. The Board denied plaintiff's grievance in a decision returned on March 12, 1969.

 The pre-trial order sets out plaintiff's claims: Against the Union -- that it "breached its duty of fair representation by not properly representing him during the grievance procedure and by proceeding to arbitration in a matter which raised factual questions as to plaintiff's conduct and the conduct of others without giving him the opportunity to be present." Against the company -- that it "breached its duty to him by discharging him arbitrarily, capriciously, discriminatorily and without proper cause." Obviously, if the arbitration decision stands, there is no basis for a claim against either defendant.

 In the Steelworkers' Trilogy, the Supreme Court made it clear that, under our national labor policy, settlement of labor disputes by arbitration is favored. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960). See also, Amal. Ass'n. of Street, Elec. Ry., etc. v. Lockridge, 403 U.S. 274, 91 S. Ct. 1909, 29 L. Ed. 2d 473 (1971), dissenting opinion of Mr. Justice White (with whom Mr. Chief Justice Burger joined); Independent Oil Workers v. Mobil Oil Corp., 441 F.2d 651, 652 (3 Cir. 1971); Mason-Dixon Lines, Inc. v. Local Union No. 560, I.B.T., 443 F.2d 807, 809 (3 Cir. 1971); Local 616, I.U.E.R. & M. Workers v. Byrd Plastics, Inc., 428 F.2d 23, 25 (3 Cir. 1970); Northwest Airlines, Inc. v. Air Line Pilots Ass'n., 442 F.2d 251, 254 (8 Cir. 1971).

 Consistent with this judicially expressed enthusiasm for arbitral resolution of labor disputes is Section 203(d) of the Labor Management Relations Act, 29 U.S.C. § 173(d):


Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement. . . .

 Beyond this national decisional and statutory general policy, the parties here pursued the grievance and arbitration procedures under a collective bargaining agreement which, as has been stated, provides finality for an arbitration award.

 This contractual implementation and endorsement of the nation's labor policy for resolution of labor disputes has, as might be expected, been well received by our courts and the National Labor Relations Board. Thus, in Lockridge, supra, Mr. Justice White, dissenting, pointed out the extremely narrow grounds available for review of an arbitrator's award by the National Labor Relations Board, notwithstanding the preemption doctrine of San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959).

 Lomax v. Armstrong Cork Co., 433 F.2d 1277, 1280 (5 Cir. 1970), provides:


. . . where the grievance procedure provides that the decision is final and binding, the parties will be precluded from subsequently seeking an adjudication in the courts. . . . *fn2"

  Steinman v. Spector Freight System, Inc., 441 F.2d 599, 600-601 (2 Cir. 1971), states:


. . . Under familiar law, e.g., Humphrey v. Moore, 375 U.S. 335, 84 S. Ct. 363, 11 L. Ed. 2d 370 (1964); General Drivers Union v. Riss & Co., 372 U.S. 517, 83 S. Ct. 789, 9 L. Ed. 2d 918 (1963), plaintiff normally would have been required to abide by the arbitration award and could not have successfully sued in a court of law for breach of contract. . . . *fn3"

 In Boys Markets, Inc. v. Retail Clerk's Union, Local 770, 398 U.S. 235, 242-243, 90 S. Ct. 1583, 26 L. Ed. 2d 199 (1970), Mr. Justice Brennan stated:


. . . in the Steelworkers Trilogy we emphasized the importance of arbitration as an instrument of federal policy for resolving disputes between labor and management and cautioned the lower courts against usurping the functions of the arbitrator.

 In Local 616, I.U.E. v. Byrd Plastics, Inc., supra, in referring to a "final and binding" arbitration clause, Circuit Judge Adams stated (428 F.2d at 26):


A clause stating that a decision of an arbitrator is "final and binding" is no doubt intended to establish a principle similar to that of res judicata, and to bar reconsideration of the disputes fully decided on the merits. *fn4"

 It is against these legal principles that plaintiff's claim must be put. It is of course now well settled that an employee may bring a § 301 suit against his employer for wrongful discharge, irrespective of Garmon, supra. See Lockridge, supra ; and for background and a scholarly analysis of an employee's rights under § 301, see Richardson v. Communications Workers of America, 443 F.2d 974 (8 Cir. 1971). See also Smith v. Evening News Ass'n., 371 U.S. 195, 83 S. Ct. 267, 9 L. Ed. 2d 246 (1962), allowing a § 301 suit in state court (there was no grievance arbitration procedure in the contract in suit); Steinman v. Spector Freight System, Inc., supra. Cf. Wells v. Order of Railway Conductors, 442 F.2d 1176 (7 Cir. 1971).

 Suit against the employer for wrongful discharge will not lie here, however, unless the plaintiff can cause the arbitrator's decision to be overthrown, a result not easily achieved in view of the foregoing decisions. *fn5"

 Plaintiff assails the grievance and arbitration procedure, and seeks to set the determinations thereof aside, under the doctrine of fair representation duty of Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967). *fn6"

 The Vaca duty of fair representation has been discussed recently in this Circuit in Bazarte v. United Transportation Union, 429 F.2d 868 (3 Cir. 1970), where the Court stated (at 871):


The fiduciary duty of fair representation in the negotiation, administration and enforcement of collective bargaining agreements has been imposed upon unions by federal law as an obligation correlative to the right of a union to represent all the employees in a bargaining unit as their exclusive bargaining agent despite the contrary wishes of a minority. *fn6" The duty originated in cases under the Railway Labor Act in which railroad unions were charged with racial discrimination. It has since been expanded as a principle of general application to collective bargaining representatives, who are required to "serve the interest of all members without hostility or discrimination toward any, to exercise [their] discretion with complete good faith and honesty, and to avoid arbitrary conduct."


This doctrine, however, does not confer on an employee an absolute right to force his collective bargaining agent to press his complaint all the way to the very end of the grievance procedures made possible by the collective bargaining agreement. The union has an obligation in exercising its power as bargaining agent to act fairly under the collective bargaining agreement and not to assert or press grievances which it believes in good faith do not warrant such action. . . .

 Fatal to plaintiff's claim here is our finding that there is no evidence to support a claim that the union arbitrarily, discriminatorily, or in bad faith failed to exhaust the contractual procedures, as in Vaca, or that it did anything but press plaintiff's claim fully and vigorously to the limits allowed by the collective bargaining agreement.

 The grievance procedures were filed promptly, each step was taken, and then arbitration was pursued, although, as we know from Vaca and Bazarte, where the full grievance and arbitration procedures were not pursued, this may not have been required under the fair representation doctrine.

  Plaintiff testified that throughout the period involved he was represented by counsel who wrote numerous letters to the company. These letters were never produced. However, even plaintiff himself, at trial, did not state that he ever registered any formal complaint at the grievance procedure outcome. Quite to the contrary, instead of so doing, he pressed the union to go to arbitration, which was done, again, from the testimony, at or about the time plaintiff was represented by counsel.

 Plaintiff complains that the Union representative told him not to come to the arbitration hearing. This certainly does not amount to bad faith. The record of the hearing was stipulated into evidence. It appears no testimony was taken of either company or Union witnesses. Plaintiff does not show here what he might have offered at the hearing had he been there. Certainly we know that his position, even as advanced at trial, was presented to the arbitrators by the Union. *fn7"

 As stated in Vaca v. Sipes, supra (386 U.S. at 190, 87 S. Ct. at 916, 17 L. Ed. 2d at 857): "A breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. . . ." The Supreme Court in Vaca, and the Court of Appeals in Bazarte, found no breach of this statutory duty where the Union had not exhausted the grievance-arbitration procedures. In the case at bar, the Union did! I find no merit to the plaintiff's unfair representation charge. *fn8" The Union diligently took each of the four grievance steps and then pursued arbitration. There is no claim or showing of hostility on the part of any Union representative toward the plaintiff, or that he otherwise sustained or suffered arbitrary or discriminatory treatment.

 I therefore find that the plaintiff has failed to carry the burden of his charges.

 An appropriate form of Judgment should be submitted.

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