*The H on. Richard H. Battey, Chief Judge, United State s

District Court for the District of South Dakota, sitting by designation. United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________ No. 96-2276EM

_____________ Charles Kelley Smith, * * Appellant, * * v. * * On Appeal from the United * States District Court McDonnell Douglas Corporation, * for the Eastern District a Missouri Corporation, and * of Missouri. International Association of * Machinists and Aerospace * Workers, Lodge 837, * * Appellees. *

___________ Submitted: February 10, 1997 Filed: February 25, 1997

___________ Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and BATTEY, District Judge.

*

___________ RICHARD S. ARNOLD, Chief Judge.

Inmid-1993, McDonnell Douglas Corporation fired Charle s Kelley Smith for trying to for ce a fellow employee to the shoulder of the road as the two drove o n an interstate highway in St. Louis County, Missouri. Smith, a member of the International Asso ciation-2-

of Machinists and Aerospace Workers union, claims that hi s dismissal violated the collect ive bargaining agreement because theThe Hon. Carol E. Jackson, United States District Judge for 1 the Eastern District of Missouri.

The Union and McDonnell Douglas ultimately settled thi s 2 gr ievance, agreeing that McDonnell Douglas would reimburse Smit h for five days of the two-week suspension if he were reinstated as a result of the pending arbitration proceeding in the grievance related to his discharge. The parties agreed that the settlement -3- dismissal was not for just cause, and that the union violated its dutyof fair representation by failing to pursue the matter t o arb itration. The District Court granted summary judgment to th e 1 company and the union. We affirm.
I. Background

Aside from a three year stint in the Marine Corps, Charle s Kelley Smith was an employee of McDonnell Douglas from 1974 until his dismissal in mid-1993. From 1990 until his dismissal, h e served a s a fabrication worker and was a member of a collective

bar gainingunit. While serving in this capacity, Smith receive d five emp loyee incident reports. Each of the first three was fo r repeated tardiness or absenteeism and contained the followin g warning: "IMMEDIATE AND SUSTAINED IMPROVEMENT MUST BE MADE ON YOUR PART OR YOU WILL BE SUBJECT TO FURTHER DISCIPLINARY ACTION UP T O AND INCLUDING DISCHARGE."
The fourth report Smith received was the apparent result of
an o ngoing dispute between himself and Walter Campbell, Smith' s
su pervisor at the time, over Campbell's treatment of othe r employees and Campbell's alleged use of a company phone to mak e per sonal long distance calls. According to the report, Smit h direct edobscene language at Campbell and threatened him, askin g him, for example, if he "ever had the flesh ripped out from under [his] rib cage?" For this behavior, Smith received a suspensio n and a final warning that any s imilar future violation would result in his immediate termination. 2agreem ent itself could not be used in any future arbitratio n

proceeding. -4-The company had laid off Campbell several days before Smith's 3 termination, though it appears that Campbell was never officially disciplined for his role in the feud with Smith. -5- Smith's fifth and final report also resulted from his ongoing feud w ith Campbell. Shortly after a night shift in May of 1993 , Smith's car swerved towards a van driven by Campbell and carrying two other McDonnell Douglas em ployees, forcing the van towards the shoulder as the two vehicles traveled west on an interstat e hi ghway. Smith does not deny that the incident took place bu t cla ims that he swerved towards Campbell's car because he though t that Campbell was pointing a gun at him as the two drove next t o each other. Two days later, according to the report, Smith wa s
seen threatening Campbell on company premises and attempting t o provoke a fight. Campbell was no longer Smith's supervisor at this point, and, according to Smith, the two worked "in a differen t area."

For th ese infractions and for his overall work record, th e
co mpanyfired Smith. His fifth and final incident report state d 3 that his conduct on the highway and later conduct on the premises violated three of the company's standards of behavior: "No. 14 - `U nsatisfactoryconduct (conduct detrimental to the interests o f th e Company or others).'; No. 21 - `Threatening, intimidating , coercing, or otherwise interfe ring with others on Company premises at any time, including lunch and rest periods.'; and, No. 29

- `Willful abuse, or deliberate damage to Company property or to the property of others.'" See Appellant's App. Item 7, Exhibit 3.

The union shop steward then filed a grievance on behalf o f Smith. After two meetings with the company to discuss th e grieva nce, the Union formally requested an arbitration hearin g pursuant to the collective-bargaining agreement. Two weeks after the selection of an arbitrator, District 837 of the Union wa s placed under the supervision of the International Association of-6-

Mac hinists and Aerospace Workers, AFL-CIO. The new Deputy o f District 837 instituted a policy requiring all pending grievances to be reviewed by a randomly selected panel of three busines s representatives.
Two of the three panel members assigned to review Smith's ca se (Gerald Oulson and James Baker ) decided not to submit Smith's case to arbitration. The third, Fr ed Golleher, thought the case should be submitted. In determining that Smith's case would have bee n unwi nnable at arbitration, Oulson, who had handled Smith's cas e since the filing of the grievance, reviewed the statements of two witnesses to the highway incident as well as Smith's disciplinary
re cord. Oulson had also been at an earlier hearing where bot h Smith and the company presented their sides of the story. H e spoke with the Plant Chairman and shop steward, who, according to Oulson, fel t strongly that the case should proceed to arbitration, abou t the grievances and with other witnesses to confrontationa l incide nts between Smith and Campbell. Also, he consulted a n arbitration text to determine whether and under what circumstances off -premises conduct is grounds for dismissal. He then reporte d his findings and made his recommendation to the other two pane l members. Neither of the other two had independently investigated the matter, though both reviewed the statements of two witne sses to the highway incident as well as several other documents. The new Deputy of the District agreed with the majority's recommendation, as did the International Union representative assigned to th e case. Aweek after the panel's decision, Oulson wrote Smith a lette r informing him that the Union did not intend to pursue the gr ievance further.

II.
To prevail on his claim, Smith must establish that McDonnell Dougla s terminated him in violation of the collective bargainin g-7-

agreement, and that the Union failed in its duty of fai r representation by failing to pursue the matter to arbitration.Smith also denies that he threatened Campbell two days later 4 on company premises, as described in the fifth incident report. -8- Est ablishingthe latter is an especially difficult task. Merel y demonstratingthe error of the union's decision or even that th e decisi onwas negligent is not enough. So long as the union doe s not pla y favorites among its members and "so long as a unio n exercises its discretion in good faith and with honesty or p urpose, a `wide range of reasonableness must be allowed.'" N.L.R.B. v. Am. Postal Wkrs. Union , 618 F.2d 1249 (8th Cir. 1980) (quoting For d Motor Co. v. Huffman , 345 U.S. 330, 338 (1953)).
Smith advances two arguments to show why his termination was improp er. First, he argues that he was not the aggressor on th e highway because he believed at the time that Campbell had pulled a gunon him. Second, he contends that his actions on the highwa y 4
were not detrimental to the interests of the company or others , primarily because the incident occurred off-premises. Thus, unless he can establish that the Unio n's investigation was so perfunctory as to raise an inference of ba d faith, Smith must establish either the arbitrariness of the Union's decision that the arbitrato r would not h ave believed Smith's version of the facts, or of its lega l determination that Smith's conduct violated company standards.

Sm ithhas failed to establish the arbitrariness of eithe r decision. First, it was eminently reasonable for the Union t o determine that the arbitrator would not believe Smith. It is true that Oulson interviewed witnesses (whose names he could no t remember) who confirmed that Campbell had threatened Smith in the past, thus establishing that C ampbell was not an innocent party in the rivalry. Yet aside from t he implausibility of Smith's account of the highway incident, Smith had received a prior report, which was also a final warning, for threatening Campbell in an extremely graphic manner, and he had received three disciplinary reports in th e two years prior to that incident. There were no witnesse s-9-

(other than himself) to his version of the events on the highway,Smith asserts that Campbell admitted that this incident never 5 took place. Appellant's Br. 8. This is not true. See Appe llant's App. Item 7, 61. The one decision cited by Smith that supp orts his argument at 6 all is still easily distinguishable. He points to In re Hon eywell, Inc. , 68 LA 346 (1977), where an arbitrator found that tw o employees were wrongly disciplined for fighting over a card game at an employer-sponsored social club. The arbitrator found that the two would have no trouble work ing with each other after the fight. A single fight is a far cry from the persistent problems eng endered by the Smith-Campbell feud and the gravity of Smith's aggressiv e and dangerous actions on the highway. -10- while two McDonnell Douglas employees and members of th e coll ective-bargainingunit who were traveling in Campbell's va n corroborated Campbell's versio n. Two other witnesses, who were on the highway in another car, saw Smith's car swerve toward s Campbell's van. Moreover, Smith was witnessed making threatening gestures to Campbell two days later. 5
Smith also assails the Union's investigation for "fail[ing] to discover previous arbitration decisions wherein arbitrato rs held th at employees could not be terminated for off-site acts. " Appellant's Br. 11. Yet it is more than reasonable to think that an employee's attempt to run three McDonnell Douglas employees to the side of a highway while tr aveling at high speeds minutes after the end of a work shift, culminating a longstanding workplac e rivalry that included past thr eats on company premises, is conduct th at an employer may decide detrimentally affects its busines s regardless of whether or not those employees had to work together at the plant. The arbitration decisions that Oulson supposedl y fai ledto unearth do not even remotely suggest that hi s determination was wrong, let alone arbitrary. 6
Finally, Smith suggests that t he Union's investigation was so perfunctory that it reveals bad faith and secret hostility on the par t of the Union. He points to the fact that Oulson did no t interv iewany witnesses to the incident, including Campbell, di d-11-

not speak to the independent witnesses to the highway incide nt, and-12-

didnot record the names of witnesses given to him by Smith wh o would have corroborated Smith's version of the Smith-Campbel l rivalry. He also complains that Oulson would not return nine o f his phone calls, though he admits they spoke a few times on th e phone during the processing of the grievance, and that he falsely told Smith that the Union was actively pursuing the investigation when it was not.

Abs ent from Smith's allegations is any suggestion of what a further investigation might have revealed that would have ai ded him in any way. Smith identifies no witnesses that would corroborate his version of the highway incident or absolve him o f responsibility for the report he received for threatening Campbell. More over, as stated above, Oulson interviewed witnesses to pas t
con frontational incidents between Smith and Campbell. Smit h
ass ails Oulson for failing to interview witnesses to the highwa y incident. Yet without some indication of what such an intervie w could ha ve revealed that did not appear in the statements of th e wit nesses, we cannot say that Oulson's failure to conduct th e interviews was arbitrary. He also suggests that Oulson shou ld have probed more deeply in investig ating the fourth report but does not identify any witnesses who wou ld have corroborated Smith's version of that event. Finally, Oulson's failure to return some of Smith's calls is serious only to the extent that Smith had anythin g subs tantive to tell Oulson that would have strengthened Smith' s case. Smith admitted in his deposition that the two spoke on the ph one a few times, and Oulson was present at the meeting wher e Smithtold h is side of the story. The record is devoid of any indica tionthat future communication with Smith was necessary t o conduct a proper investigation. Insufficient attentiveness alone does not establish a violationof the duty of fair representation.

Smithalso claims that Oulson bore him a secret hostilit y because of earlier complaints Smith had made to Oulson's superiors-13-

in the Union about Oulson's handling of employee grievances while Smith was shop steward. Smith could tell that Oulson was hostile-14-

to himby the "tone and inflection of his voice when speaking t o [Sm ith], his mannerisms and demeanor when speaking to [him], an d his reluctance to meet with [him] or to speak with [him] on th e telephone. " Appellant's App. Item 4, Exhibit I. There is n o evidence that this supposed hostility affected the investiga tion in any way. Allowing such allega tions to defeat a motion for summary judgment would severely weaken the deference that courts owe to a union' s exercise of its discretion not to pursue problemati c grievances.

III.

We hold that the Union did not violate its duty of fai r representation to Charles Kelley Smith. There is therefore no need to det ermine whether or not Smith's termination violated th e coll ective-bargainingagreement. The District Court's grant o f summary judgment to the company and the Union is

Affirmed.

A true copy.

Attest:

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