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.