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MCCONNEY v. A&P

August 23, 1978

William McCONNEY
v.
The GREAT ATLANTIC & PACIFIC TEA COMPANY and Baker's Local No. 492



The opinion of the court was delivered by: BRODERICK

MEMORANDUM AND ORDER

Plaintiff, William McConney ("McConney"), brings this action under § 301(a) of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), alleging breach of a collective bargaining agreement. Defendants in this action are: The Great Atlantic and Pacific Tea Company ("A&P"), McConney's former employer, who is charged with discharging him in breach of the agreement; and Baker's Local # 492 ("Union"), McConney's union, charged with violating its duty under the agreement to fairly represent McConney in processing his grievance concerning his discharge. Having heard the testimony of the witnesses for the plaintiff and for the defendants during a trial before the Court without a jury, the Court enters judgment for defendants.

 During the evening of May 25, 1973, electrical wires in the control panel of the roll oven in the bakery were intentionally cut. Subsequently, it was discovered that wires in the control panels of other equipment had also been cut. A&P called in Sentry Security Systems, Inc., to investigate the apparent vandalism. Vahe Garabidian, an employee of Sentry, met with Jack Crimaudo, the general manager of the bakery, M. R. Amiss, the maintenance supervisor at the bakery, and George McGrath, another A&P executive, in an attempt to ascertain the direction of the investigation. It was determined that the wires were selectively cut and that whoever cut them must have been familiar with the wiring of the equipment. They further determined that only three men with the requisite skill and knowledge would have had access to all the equipment that was damaged during the period when the wires were cut. The three maintenance persons to whom the finger of suspicion pointed were: Levi Cooper, Michael Zajac, and McConney.

 Cooper, Zajac and McConney were interviewed by Mr. Garabidian and Mr. Crimaudo. Daniel McLaughlin, the union shop chairman was present at the interviews. Each person interviewed denied cutting the wires. Mr. Garibidian asked each of the men to consent to a lie detector test concerning the incident. Each was told that the taking of the test was not a condition of his employment and that A&P could not discipline him for his refusal to take the test. The union protested the giving of a lie detector test and advised the three employees not to take the test. Cooper, Zajac and McConney declined to follow the advice of the union, signed a waiver and volunteered to take the test. Of the three men tested, only McConney "failed" the test. When notified that the test showed that he had lied, McConney requested to be re-tested stating that during the test he had deliberately tried to confuse the machine by thinking that he was wearing "one black and one brown shoe." He was re-tested four days later and again "failed". In spite of the test results, McConney insisted on his innocence. Mr. Crimaudo told McConney that the evidence pointed to him and that he would be discharged unless he produced some evidence that he did not cut the wires. McConney was allowed to return to work under close supervision, but produced no exculpatory evidence. A&P scheduled a meeting with the union on June 20, 1973, at which it announced its decision to discharge McConney revealing at the closed meeting that he had twice failed a lie detector test. Mr. Crimaudo also pointed out that in addition to the lie detector tests, other statements by McConney during the course of the investigation were considered by A&P as being incriminating. It was testified that when asked by Mr. Crimaudo whether he had cut the wires, McConney replied "you don't think that I cut the wires because of my suspension last March?" *fn1" He was asked whether he had shut down the roll oven on the Friday evening in question. He said that Zajac had done it. Zajac was immediately questioned about this and insisted that he had not shut down the roll oven. When presented with Zajac's testimony, McConney stated that he probably had shut down the roll oven. At one point, when questioned by Mr. Crimaudo, McConney denied cutting wires on the blender. This was the first time that Mr. Crimaudo had heard that wires on the blender had been cut. He immediately investigated and found those wires had also been cut. It was also testified that McConney had stated to several people, "Could I have done this thing and not remembered it?"

 At the June 20th meeting, members of the union shop committee stated that they had known McConney for years and could not believe that he had done such a thing, and, in any event, given the length of McConney's service for A&P, termination was too severe a sanction. Within a week of his discharge, McConney went to the union hall and requested that the union help him get his job back. He was told by union officials that they would do everything possible to get him reinstated. When these officials asked McConney why he had consented to a lie detector test, he replied that he thought he could beat the machine. McConney asked the officials whether they thought he "could . . . have done this thing and not remembered it?" The officials called the union's international which set up a meeting with A&P on July 11, 1973.

 At the July 11th meeting with A&P, the union pleaded for McConney's reinstatement. The union pointed to his long years of service to the company and his family obligations and argued that if McConney were responsible for the vandalism, future damage could be prevented merely by transferring him to another job within the bakery where he would be more closely supervised. A&P replied that they would not reinstate McConney.

 A few days later, McConney went to the union hall where he was told the results of the July 11th meeting. He was informed that nothing more could be done for him. McConney testified at trial that he had requested the union to take his case to arbitration. All the union officials who testified denied that McConney had requested arbitration. They stated that even if he had made such a request, they would not have proceeded to arbitration with his grievance since his chances of succeeding in arbitration were "nil", and that arbitration would be a waste of time and scarce union funds.

 Article VII of the collective bargaining agreement between A&P and the union provides for a four step grievance procedure, the final step of which is binding arbitration. Congress has expressed a strong preference that employment grievances be settled by the "method agreed upon by the parties . . . ." 29 U.S.C. § 173(d). Such provisions are among those which may be enforced pursuant to § 301 of the LMRA. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S. Ct. 1048, 1055-7, 47 L. Ed. 2d 231 (1976). As a condition precedent to an employee proceeding under § 301 he first must exhaust the remedies provided by the collective bargaining agreement. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965). As recently pointed out by the Supreme Court in Hines, an employee who brings a wrongful discharge suit against his employer and the union under § 301 of the LMRA has the burden of showing not only that his discharge was contrary to the collective bargaining agreement, but also has the burden of demonstrating that his union breached its duty of fair representation in connection with the discharge. 96 S. Ct. at 1060. This Court finds on the basis of the record of this case that McConney has failed to establish by a preponderance of the evidence either that his discharge was contrary to the collective bargaining agreement or that the union breached its duty of fair representation.

 Article VIII of the collective bargaining agreement provides that "employees shall be discharged only for justifiable cause." (Exhibit P-1). A&P discharged McConney for his alleged role in the cutting of wires at the bakery. Before terminating McConney, A&P called in investigative experts to aid in the investigation of wire cutting. It was determined that only three men had the requisite knowledge, skill and access to cut the wires in question. Of the three, only McConney gave conflicting and incomplete answers to questions, made incriminating statements, and twice "failed" a lie detector test. A&P gave him the opportunity to come forward with exculpatory evidence. McConney produced no such evidence.

  Whether A&P had "justifiable cause" to discharge McConney within the meaning of the contract is a question for the finder of fact, in this case, the Court. Whitten v. Anchor Motor Freight, Inc., 521 F.2d 1335, 1338 (6th Cir. 1975); Scott v. Anchor Motor Freight, Inc., 496 F.2d 276, 281 (6th Cir.), Cert. denied, 419 U.S. 868, 95 S. Ct. 126, 42 L. Ed. 2d 107 (1974). As we previously stated, this Court finds that McConney failed to prove by a preponderance of the evidence that his discharge was without justifiable cause; in fact, we find that A&P had justifiable cause to terminate McConney.

 In order to prevail in this action, McConney (as we heretofore pointed out) would also have had to establish by a preponderance of the evidence that the union breached its duty of fair representation in connection with his discharge. The union is charged with the fiduciary duty to fairly represent the employee in his grievance with the employer. Bazarte v. United Transportation Union, 429 F.2d 868, 871 (3d Cir. 1970). The union breaches this duty "only when (its) conduct toward a member of the collective bargaining unit 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). Although McConney testified that he had requested the union to take his grievance to arbitration, all the union officials denied that he made such a request and testified that his chances of succeeding in arbitration were "nil" and that arbitration would be a waste of time and union funds. The Court in Vaca Went on to say:

 
There has been considerable debate over the extent of this duty in the context of a union's enforcement of the grievance and arbitration procedures in a collective bargaining agreement . . . Some have suggested that every individual employee should have the right to have his grievance taken to arbitration. Others have urged that the union be given substantial discretion (if the collective bargaining agreement so provides) to decide whether a grievance should be taken to arbitration, subject only to the duty to refrain from patently wrongful conduct such as racial discrimination or personal hostility.
 
Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement. . . . In providing for a grievance and arbitration procedure which gives the union discretion to supervise the grievance machinery and to invoke arbitration, ...

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