### The Hon. Charles B. Kornmann, United States District Judg e * 

### for the District of South Dakota, sitting by designation.

The Hon. Fernando J. Gaitan, Jr., United States Distric t 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

___________ Bef ore 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 collectiv e bargaining agreement and a claim against Teamsters Local 41 ("the union") for breach of the duty of fair repre sentation. The District Court granted summary judgment to UPS 1 and to the union. Smith appeals, contending the union's actions wer e arbitrary,

### -2-

dis criminatoryand in bad faith, thus causing the union and UPS to b e liable to him.

I. Factual Background Smith wor ked for UPS for approximately seventeen years. During his employment, Smith worked as a "package car" driv er, 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 teste d positive for methamphetamines and amphetamines. On February 1, 1993, Smit h filed a grievance wit h the union, complaining that: (1) the drug test was not admini stered according to the guidelines agreed to by UPS and th e International Brotherhood of Teamsters; and (2) he was improperly selected for a random drug tes t 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 Marc h 8, 1993, Smith's employment with UPS was terminated. Th e unionobjected to Smith's termination by letter on March 9, 1993, whic h constituted a second grievance. If UPS and the union are unable to s ettle a grievance, the grievance is handled through two levels of final and bindi ng arbitration. The union repres ented Smith during six hearings and one committee review, al l regarding his grievances. The grievances were u ltimately decided in favor of UPS and Smith's discharge was upheld. Smith now brings this actio n claiming that the union breached its duty of fair representation during th e hearings on Smith's grievances. Smith cla ims the union discriminated against him because he ran for politica l office in the local union. He contends the union acte d arbitrarily, deceitfu lly and in bad faith, primarily in two respects: (1) failing to obtain certain laboratory information and reports concerning hi s 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 a sserts that UPS purposefully had him tested (rather than bein g randomly selected) and that UPS

### -3-

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

II. Decision We review the District Court's grant of summary judgment de novo and wil l affirm only if the record, viewed in the light most favorable t o Smith, shows there is no genuine issue of materi al fact and the defendants are entitled to judgment as a matter of law. Fe d.R.Civ.P. 56(c); Allen v. United Transp. Union , 964 F.2d 818, 820 (8th Cir. 1992). Abrea ch of the duty of fair representation by a union occurs onl y when the union's cond uct 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 o n the part of the union is ins ufficient 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 circum stances at the time of the union's action or inaction, "th e union's behavior is s o far outside a `wide range of reasonableness' as to be irrational." Beavers v. United Paperworkers Intern. Union, Local 1741 , 72 F.3d 9 7, 100 (8th Cir. 1995) (citations omitted). "[A] union i s protected by the `wide range of reasonableness' shield only if it has acte d ingood faith." Schmidt v. International Broth. of Elec. Workers, Local 949 , 980 F.2d 1167, 1170 (8th Cir. 1992). To defeat summary judgment on the i ssue of bad faith, Smith must offer "evidence of fraud, deceitfu l action or dishonest conduct" by the union. Id. (citations omitted). Breach of the duty of fair representation by the union is a con dition precedent to UPS's liability on Smith's claim against UPS for breach of th e collective bargainingagreement. 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

### -4-

fraud, deceitful action or dishonest conduct by the union. Schmidt , 980 F.2d at 1170. Smith alleges the union discriminated against him fo r "ro cking the political boat with UPS and running for political office. " The r ecord shows that the union promptly filed grievances on behalf o f Smith and adequately represented Smith at several hearings on hi s grievances. We agree with the district court that there is no genuin e 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 unio n obtained the laborato ry 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 furthe r conten ds the union discriminated against him by delaying his grievanc e hearings during the union's election process. This claim is unfounde d because Smith has not produced any evidence to s how 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 wh ether the union's representation of him was arbitrary. The unio n adequately represented Smith during all the grie vance hearings, presenting both written and oral arguments in his favor. I n 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 yo u 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 re liability of the drug test administered by UPS. Whether the union should have obtained more records is a matter within the wide range of reasonablen ess 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 shoul d have procured, Smith has not been able to support his allegations that the drug test was

### -5-

tampered with or spiked. Smith's claim that the union breached its duty of fair represen tation by failing to obtain an expert witness to challe nge the reliability of the drug test is not supported by the record. A union is not necessaril y
re quired to obtain an expert witness to fulfill its duty of fai r representation. Walkv. P*I*E Nationwide, Inc. , 958 F.2d 1323, 1328 (6th Cir. 1992). The decision whether to procure an expert witness in thi s situationis a matter within the wide range of reasonableness afforded a uni onin pursuing grievances on behalf of its members. Smith has no t created a genuine iss ue of material fact that the union's conduct in this regard was arbitrary, discriminatory or in bad faith. No genuine issue of material fact ex ists as to the union's breach of the duty of fair repr esentation. Therefore, summary judgment in favor of UPS i s proper on Smith's claim for breach of the collective bargainin g agreement. Vaca , 386 U.S. at 186, 87 S.Ct. at 914-15, 17 L.Ed.2d at ___.

III. Conclusion 1 The judgment of the district court granting summary judgment t o defendants is affirmed.
A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT