The Honorable H. Franklin Waters, United States District Judge for t he Western 1 District of Arkansas. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2022

___________ Avery Allen Baxter, * * Appellant, * *
v. * Appeal from the United States * District Court for the United Paperworkers International * Western District of Arkansas. Union, Local 7370; United * Paperworkers International Union; * Whirlpool Corporation, * * Appellees. *

___________ Submitted: January 7, 1998 Filed: March 26, 1998

___________ Before McMILLIAN, BEAM, an d MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge.

Avery Allen Baxter app eals from the district court & s adverse grant of summary 1 ju dgment to his employer, Whirlpool Corporation (Whirlpool), and to the Unite d Paperworkers Internati onal Union and its Local 7370 (referred to collectively as UPI)-2-

in his action for unfair representation and breach of the col lective bargaining agreement (CBA). We affirm the judgment of the district court.
In February 1994, Baxter was discharged by Whirlpool for allegedly providing
an underco ver agent with marijuana on Whirlpool & s parking lot. Baxter, an hourl y employee, was represented by UPI. The CBA between UPI and Whirlpool included a grievance procedure, and UPI took Baxter & s grievance to arb itration, choosing Archie Robbins to represent him.

In May 1 994, Baxter was acquitted on a criminal charge arising out of th e alleged marijuana incident. Will ard Crane Smith, who represented him in the criminal matter, requested subpoenas from the arbitrator for Baxter & s Decem ber 1994 arbitration hearing, but neither Smith nor Baxter notified UPI of the subpoenas. When the hearing began, Robbins asked that Smith be excluded. The arbitrator, who was from Florida, denied the request, citing the Florida “Sunshine la w”; he reserved ruling on whether he would permit Smith to present evidence after UPI an d Whirlpool presented their cases. AfterWhirlpool & s attorney and Robbins conferred outside the room, Whirlpool & s attorney i ndicated that he and Robbins had “de-selected” the arbitrator and woul d choose another arbitrator in accordance with the CBA (under which the parties were to select the arbitrator), and the hearing ended.
UPI and Whirlpool chose another arbitrator, and the hearing was rescheduled for February 1995. UPI wrote to Baxter, encouraging him to participate in the hearing and notifying him UPI considered the arbitration to be betwee n the parties to the CBA (i.e., UPI and Whirlpool) and intended to exclude Baxter & s personal attorney from th e arbitrationhearing. No personal attorney appeared at the February hearing. Several months af

ter the hearing, the arbitrator issued a decision finding Baxter gave on e marijuana cigarette to the undercover agent, but decreasing Baxter’s penalty fro m discharge to a suspension from the date of his disc harge until the date of reinstatement.-3-

Baxter then brought this action, claiming unfair representation by UPI an d breach of the CBA by Whirlpool. The district court granted UPI & s summary judgment motion, fi nding Baxter failed to present sufficient evidence that UPI breached its duty of fai r representation. The court also granted Whirlpool & s su mmary judgment motion because a breach of UPI & s fair-representation duty was a prerequisite to Baxter & s claim against Whirlpool. This appeal ensued.

“A union br

eaches its duty of fair representation when its conduct is # arbitrary, discriminatory, or in bad faith. & ” See Washington v. Service Employees Int & l Union, Local 50 , 130 F.3d 825, 826 (8th Cir. 1997) (qu oted case omitted). Baxter argues that UPI acted arbitra

rily and in bad faith when it agreed with Whirlpool to exclude Smith and to disqualify the original arbitrator. To prov e arbitrariness, Baxter needed to show UPI & s conduct was ir

rational. See id. To prove bad faith, Baxter needed to establish the exi stence of fraud, deceitful action, or dishonest conduct. See id. We agree with the district court that Baxter proved neither.
The question of whether a union may exclude a grievant & s personal a ttorney from
an arbitration hearing is an issue of first impression in this circuit. Under th e circumstances here--i.e., Baxter & s criminal case had been resolved, he failed to show other employees were treated differently, his attorney had subpoenaed witnesse s wi thout notifying UPI, and there was no evidence of a specific need for Smith & s presence--we conclude that such exclusion did not constitute a breach of UPI’s duty of fair representation. See Garcia v. Zenith Elec. Corp. , 58 F.3d 1171, 1179-80 (7th Cir. 1995) (noting that in “unique context of labor relations,” union & s decision “t o disallow the presence of an independently-retained attorney in a particular case is not, standing alone, enough to show that the union acted arbitrarily”); Castelli v. Douglas Aircraft Co. , 752 F.2d 1480, 1483-84 (9th Cir. 1985) (“no court has adopted the rule that employees are entitled to independently retained counse l in arbitration proceedings
ortha t the exclusion of such attorneys from arbitration violates the duty of fai r representation”; participation of employee & s counsel could “bypass the union and-4-

undermine the policy of exclusive representation”); cf. Seymour v. Olin Corp. , 66 6 F.2d202, 209-10 & n.5 (5th Cir. 1982) (holding union & s failure to pursue grievance , be cause grievant would not discharge his attorney, was arbitrary and breach of fair

representation duty; noting union may limit participation of priva te counsel in grievance proc eedings, but leaving for “another day” question--which potential for crimina l proceedings complicates--whether union “may prohibit the mere presence of privat e counsel”).

We also conclude the evidence did not show that UPI’s agreement with Whirlp ool to decertify the arbitrator they had chosen together under the CBA wa s discriminatory, irrational, fraudulent, or dishonest. Insofar as Baxter argues that he was harmed by the arbitrator & s disqualification and the resulting delay, we refuse t o spe culate that the original arbitrator would have ruled in Baxter & s favor and mor e quickly.

Because w e conclude UPI was entitled to summary judgment on the fair

represent ation claim, summary judgment for Whirlpool on the claim for breach of the CBA was also proper. See Smith v. United Parcel Serv., In c. , 96 F.3d 1066, 1069 (8th Cir. 1996). We reject as meritless the remainder of Baxter’s arguments.
Accordingly, we affirm.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.