The Hon. Charles B. Kornmann, United States District Judge

*

for the District of South Dakota, sitting by designation.

 The Hon. Fernando J. Gaitan, Jr., United States District

1

Judge for the Western District of Missouri at Kansas City.

___________

No. 95-4172

___________

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, *

___________

 Submitted: June 13, 1996

 Filed: September 16, 1996

___________

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 Court granted summary judgment to UPS 1

and to the union. Smith appeals, contending the union's actions were

arbitrary,
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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