*The Hon. Richard H. Battey, Chief Judge, United States

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.

In mid-1993, McDonnell Douglas Corporation fired Charles

Kelley Smith for trying to force a fellow employee to the shoulder

of the road as the two drove on an interstate highway in St. Louis

County, Missouri. Smith, a member of the International Association
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of Machinists and Aerospace Workers union, claims that his

dismissal violated the collective bargaining agreement because the
 The Hon. Carol E. Jackson, United States District Judge for 1

the Eastern District of Missouri.

 The Union and McDonnell Douglas ultimately settled this

2

grievance, agreeing that McDonnell Douglas would reimburse Smith

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

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dismissal was not for just cause, and that the union violated its

duty of fair representation by failing to pursue the matter to

arbitration. The District Court granted summary judgment to the

1

company and the union. We affirm.

I. Background

Aside from a three year stint in the Marine Corps, Charles

Kelley Smith was an employee of McDonnell Douglas from 1974 until

his dismissal in mid-1993. From 1990 until his dismissal, he

served as a fabrication worker and was a member of a collectivebargaining unit. While serving in this capacity, Smith received

five employee incident reports. Each of the first three was for

repeated tardiness or absenteeism and contained the following

warning: "IMMEDIATE AND SUSTAINED IMPROVEMENT MUST BE MADE ON YOUR

PART OR YOU WILL BE SUBJECT TO FURTHER DISCIPLINARY ACTION UP TO

AND INCLUDING DISCHARGE."

 The fourth report Smith received was the apparent result of

an ongoing dispute between himself and Walter Campbell, Smith's

supervisor at the time, over Campbell's treatment of other

employees and Campbell's alleged use of a company phone to make

personal long distance calls. According to the report, Smith

directed obscene language at Campbell and threatened him, asking

him, for example, if he "ever had the flesh ripped out from under

[his] rib cage?" For this behavior, Smith received a suspension

and a final warning that any similar future violation would result

in his immediate termination.2
agreement itself could not be used in any future arbitration

proceeding. 

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 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.

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Smith's fifth and final report also resulted from his ongoing

feud with 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 employees, forcing the van towards the

shoulder as the two vehicles traveled west on an interstate

highway. Smith does not deny that the incident took place but

claims that he swerved towards Campbell's car because he thought

that Campbell was pointing a gun at him as the two drove next to

each other. Two days later, according to the report, Smith was

seen threatening Campbell on company premises and attempting to

provoke a fight. Campbell was no longer Smith's supervisor at this

point, and, according to Smith, the two worked "in a different

area." 

For these infractions and for his overall work record, the

company fired Smith. His fifth and final incident report stated

3

that his conduct on the highway and later conduct on the premises

violated three of the company's standards of behavior: "No. 14 -

`Unsatisfactory conduct (conduct detrimental to the interests of

the Company or others).'; No. 21 - `Threatening, intimidating,

coercing, or otherwise interfering 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 of

Smith. After two meetings with the company to discuss the

grievance, the Union formally requested an arbitration hearing

pursuant to the collective-bargaining agreement. Two weeks after

the selection of an arbitrator, District 837 of the Union was

placed under the supervision of the International Association of 
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Machinists and Aerospace Workers, AFL-CIO. The new Deputy of

District 837 instituted a policy requiring all pending grievances

to be reviewed by a randomly selected panel of three business

representatives.

Two of the three panel members assigned to review Smith's case

(Gerald Oulson and James Baker) decided not to submit Smith's case

to arbitration. The third, Fred Golleher, thought the case should

be submitted. In determining that Smith's case would have been

unwinnable at arbitration, Oulson, who had handled Smith's case

since the filing of the grievance, reviewed the statements of two

witnesses to the highway incident as well as Smith's disciplinary

record. Oulson had also been at an earlier hearing where both

Smith and the company presented their sides of the story. He spoke

with the Plant Chairman and shop steward, who, according to Oulson,

felt strongly that the case should proceed to arbitration, about

the grievances and with other witnesses to confrontational

incidents between Smith and Campbell. Also, he consulted an

arbitration text to determine whether and under what circumstances

off-premises conduct is grounds for dismissal. He then reported

his findings and made his recommendation to the other two panel

members. Neither of the other two had independently investigated

the matter, though both reviewed the statements of two witnesses 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 the case.

A week after the panel's decision, Oulson wrote Smith a letter

informing him that the Union did not intend to pursue the grievance

further. 

 

II. 

To prevail on his claim, Smith must establish that McDonnell

Douglas terminated him in violation of the collective bargaining
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agreement, and that the Union failed in its duty of fair

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.

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Establishing the latter is an especially difficult task. Merely

demonstrating the error of the union's decision or even that the

decision was negligent is not enough. So long as the union does

not play favorites among its members and "so long as a union

exercises its discretion in good faith and with honesty or purpose,

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 Ford

Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)). 

Smith advances two arguments to show why his termination was

improper. First, he argues that he was not the aggressor on the

highway because he believed at the time that Campbell had pulled a

gun on him. Second, he contends that his actions on the highway

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 Union's investigation was so perfunctory

as to raise an inference of bad faith, Smith must establish either

the arbitrariness of the Union's decision that the arbitrator would

not have believed Smith's version of the facts, or of its legal

determination that Smith's conduct violated company standards. 

Smith has failed to establish the arbitrariness of either

decision. First, it was eminently reasonable for the Union to

determine that the arbitrator would not believe Smith. It is true

that Oulson interviewed witnesses (whose names he could not

remember) who confirmed that Campbell had threatened Smith in the

past, thus establishing that Campbell was not an innocent party in

the rivalry. Yet aside from the 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

the two years prior to that incident. There were no witnesses
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(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 Appellant's

App. Item 7, 61.

 The one decision cited by Smith that supports his argument at 6

all is still easily distinguishable. He points to In re Honeywell,

Inc., 68 LA 346 (1977), where an arbitrator found that two

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 working with each other after the fight.

A single fight is a far cry from the persistent problems engendered

by the Smith-Campbell feud and the gravity of Smith's aggressive

and dangerous actions on the highway. 

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while two McDonnell Douglas employees and members of the

collective-bargaining unit who were traveling in Campbell's van

corroborated Campbell's version. Two other witnesses, who were on

the highway in another car, saw Smith's car swerve towards

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 arbitrators held

that 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 traveling at high speeds minutes after

the end of a work shift, culminating a longstanding workplace

rivalry that included past threats on company premises, is conduct

that an employer may decide detrimentally affects its business

regardless of whether or not those employees had to work together

at the plant. The arbitration decisions that Oulson supposedly

failed to unearth do not even remotely suggest that his

determination was wrong, let alone arbitrary.6

Finally, Smith suggests that the Union's investigation was so

perfunctory that it reveals bad faith and secret hostility on the

part of the Union. He points to the fact that Oulson did not

interview any witnesses to the incident, including Campbell, did
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not speak to the independent witnesses to the highway incident, and
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did not record the names of witnesses given to him by Smith who

would have corroborated Smith's version of the Smith-Campbell

rivalry. He also complains that Oulson would not return nine of

his phone calls, though he admits they spoke a few times on the

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.

Absent from Smith's allegations is any suggestion of what a

further investigation might have revealed that would have aided him

in any way. Smith identifies no witnesses that would corroborate

his version of the highway incident or absolve him of

responsibility for the report he received for threatening Campbell.

Moreover, as stated above, Oulson interviewed witnesses to past

confrontational incidents between Smith and Campbell. Smith

assails Oulson for failing to interview witnesses to the highway

incident. Yet without some indication of what such an interview

could have revealed that did not appear in the statements of the

witnesses, we cannot say that Oulson's failure to conduct the

interviews was arbitrary. He also suggests that Oulson should have

probed more deeply in investigating the fourth report but does not

identify any witnesses who would 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 anything

substantive to tell Oulson that would have strengthened Smith's

case. Smith admitted in his deposition that the two spoke on the

phone a few times, and Oulson was present at the meeting where

Smith told his side of the story. The record is devoid of any

indication that future communication with Smith was necessary to

conduct a proper investigation. Insufficient attentiveness alone

does not establish a violation of the duty of fair representation.

Smith also claims that Oulson bore him a secret hostility

because of earlier complaints Smith had made to Oulson's superiors
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in the Union about Oulson's handling of employee grievances while

Smith was shop steward. Smith could tell that Oulson was hostile
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to him by the "tone and inflection of his voice when speaking to

[Smith], his mannerisms and demeanor when speaking to [him], and

his reluctance to meet with [him] or to speak with [him] on the

telephone." Appellant's App. Item 4, Exhibit I. There is no

evidence that this supposed hostility affected the investigation in

any way. Allowing such allegations 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 problematic

grievances. 

III.

We hold that the Union did not violate its duty of fair

representation to Charles Kelley Smith. There is therefore no need

to determine whether or not Smith's termination violated the

collective-bargaining agreement. The District Court's grant of

summary judgment to the company and the Union is

Affirmed.

A true copy.

Attest:

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