there are triable issues as to the reasonableness of the Union's decision not to proceed. For example, Guy Masocco, president of the local, stated that he voted against arbitration because "with the last chance agreement, there was no prospect of winning [Smith's] grievance." Masocco Affidavit in Support at P 25. Masocco relied almost entirely on the fact that Smith was subject to the last chance agreement to justify discontinuing the grievance procedure. The Union, it is clear, was willing to arbitrate Rusert's grievance for the same misconduct but not Smith's because Rusert was not subject to such an agreement and had a better work record than did Smith. See Masocco Reply Affidavit at PP 3 and 10. For example, James Diabo, a Union grievance committee member who processed Smith's grievance, similarly concluded that Smith's conduct violated the shop rule and "based on that [last chance] agreement and [Smith's] conduct, did not feel that the grievance was meritorious or that we could win it in arbitration." Diabo Affidavit in Support at P 3. Roe Harrison, the Union grievance committee chairman who handled Smith's grievance also concluded that as Smith was subject to the last chance agreement "the grievance did not merit arbitration" despite the fact that the Union was aware other employees in other Company departments did not attend the United Way meeting. Harrison Affidavit in Support at P 18.
Further, all three committee members pointed to the fact that Smith's employment record, unlike Rusert, was not unblemished. See Masocco Affidavit in Support at P 25, Diabo Affidavit in Support at P 7, Diabo Reply Affidavit at P 6 and Harrison Affidavit in Support at P 15.
It is clear that the Union's decision not to proceed to arbitration was profoundly influenced if not dictated by a belief That Smith's last chance agreement and employment record rendered further arbitration fruitless. However, the agreement (See Exhibit 11 to Defendants' motion filed January 4, 1993) provided only that "if [Smith] violates any shop rules [sic] for a probationary period of 1 year, he will be subject to immediate discharge." (emphasis added.) A jury could reasonably find that the agreement neither foreclosed Smith from challenging an ITT disciplinary charge nor that it necessarily mandated automatic discharge for any such violation. This is consistent with ITT's termination notice to Smith that his employment was being terminated for just cause under the collective bargaining agreement. See Exhibit 12 to Defendants' motion filed January 4, 1993.
As noted, the last chance agreement does not specifically waive any of Smith's grievance rights under the collective bargaining agreement. The Union, however, apparently believed Smith's grievance lacked merit because of the mere existence and effect of the last chance agreement. Further, the Union also concluded that Smith's past record precluded any reasonable possibility of success in arbitration. In either case, the fact that Smith's last chance agreement may be interpreted as justifying termination does not foreclose the issue of the existence of a shop rule violation. Moreover, Smith's past record would arguably have been relevant to the appropriate choice of sanction, but it is not necessarily relevant to whether he was insubordinate in this instance. Neither the Union nor ITT in their motions claim that the agreement foreclosed further arbitration of whether a violation in fact occurred. The jury could reasonably conclude that the Union based its decision on factors which had nothing to do with the critical question of whether Smith has violated the shop rule.
While the Union affidavits in support of its motion assert neither Smith nor Rusert advised the grievance committee members that they had not in the past attended United Way meetings, it is clear that the Union was aware this could be an issue as it was aware other employees were not required to attend. The opposing affidavits of Smith and Rusert do not directly contradict this position, however, Defendants' themselves have asserted that when confronted by his foreman for not attending the United Way meeting, Smith belligerently demanded that he be shown that such attendance was required by the collective bargaining agreement. Also, neither Defendant denies that the Union would have taken Rusert's case to arbitration if it had not been earlier resolved. These two facts could support an inference that Smith's alleged failure to advise the Union that the lack of attendance at the United Way meeting by Smith and Rusert was not significant to the Union's consideration of the merits or that, if it was important, the Union had some basis to be aware of or ascertain that fact.
The jury could, if it accepts Smith's evidence, conclude therefore that, even if Smith had been directed to attend the meeting as Defendants claim, the Union's decision not to contest his discharge through arbitration, in the circumstances presented, was so unreasonable as to be fundamentally unfair and irrational. These same considerations also provide a basis on which the jury could conclude that ITT's finding of insubordination was not authorized by the last chance agreement and, therefore, violated the collective bargaining agreement.
There are genuine issues of material facts going to the merits of Plaintiff's claim on a breach of the Union's duty of fair representation based upon an arbitrary refusal to carry Smith's grievance to arbitration. Additionally, there are genuine issues of material facts as to the claim against ITT for improper discharge under the contract. Accordingly, Defendants' motions for summary judgment on these issues are DENIED. However, as there are no material issues of fact relating to Plaintiff's bad faith claim, Defendant Union's motion for summary judgment on this claim for relief is GRANTED.
LESLIE G. FOSCHIO
UNITED STATE MAGISTRATE JUDGE
Dated: July 21, 1993
Buffalo, New York