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July 11, 1979


The opinion of the court was delivered by: KNOX


Plaintiff, formerly the President of Steelworkers' Local 1573, was discharged from his employment with defendant on March 16, 1976 following his participation in a work stoppage at defendant's Erie, Pennsylvania plant which began on March 3, 1976 and ended on March 11, 1976. Under the terms of the collective bargaining agreement in effect at the time, plaintiff filed a grievance which was denied by an arbitrator on August 3, 1976. On March 16, 1978, plaintiff filed this action alleging that (1) the union breached its duty of fair representation in processing his grievance (see § 301 of the National Labor Relations Act, 29 U.S.C. § 185) and (2) although plaintiff is white, defendant discriminated against him by discharging him because of his espousal of the rights of defendant's black employees (see 42 U.S.C. § 1981). Defendant initially filed a motion for summary judgment on both counts of the complaint on August 10, 1978. Determination of this motion was postponed pending the completion of discovery. On April 2, 1979, defendant renewed its motion. Extensive briefs and supporting affidavits and exhibits were received from both parties and oral argument was heard by the court on May 22, 1979. After careful consideration of the issues presented by defendant's motion, the court has determined that the motion will be granted with respect to both counts of the complaint.

 (I) Count I 29 U.S.C. § 185

 We begin with the rule that summary judgment can be granted only where there is no genuine issue as to any material fact. Further, all inferences and doubts must be resolved against the moving party. Ely v. Hall's Motor Transit Co., 590 F.2d 62 (3rd Cir. 1978).

 Ordinarily, where a collective bargaining agreement provides for the arbitration of grievances, the arbitrator's decision is final and binding on the parties and not subject to review by the courts. Humphrey v. Moore, 375 U.S. 335, 84 S. Ct. 363, 11 L. Ed. 2d 370 (1964). In cases in which the union breaches its duty of fair representation in handling the employee's grievance, however, this finality rule is inapplicable. Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967). The Supreme Court in Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S. Ct. 1048, 47 L. Ed. 2d 231 (1976), held that a plaintiff must prove (1) "an erroneous discharge" and (2) "the Union's breach of duty (of fair representation)" which (3) "taint(s) the decision of the (arbitrator)," Id., at 572, 96 S. Ct. at 1060, in order to come within this exception to the finality rule. Thus, in order to prove his § 301 claim, plaintiff must establish that defendant breached the collective bargaining agreement by discharging him, that the union breached its duty of fair representation in its conduct of the arbitration, and that this breach by the union contributed to the arbitrator's erroneous decision.

 (A) Propriety of Plaintiff's Discharge

 The collective bargaining agreement in effect at the time of plaintiff's discharge provides:

Section 8. . . .
(c) In the event of any violation of the provisions of subparagraph (b) above (forbidding work stoppages), the Union shall make immediate, sincere and diligent effort to terminate all such improper action and any employee or employees taking part in, causing or inciting any such improper action may be subjected to disciplinary action including discharge, Which disciplinary action need not be the same for all such employees. In the event of any arbitration arising out of Company action pursuant to this subparagraph (c), The sole question for determination by the Arbitrator shall be whether or not the grievant did take part in, or did cause, or did incite, whichever is charged, The improper action. (Emphasis added). (Exhibit A to defendant's Answer).

 Under the explicit terms of this agreement, the arbitrator's role was limited "to determine only whether or not each grievant did take part in the illegal strike." Arbitrator's Decision at 9, Exhibit B to defendant's Answer. One of the bases for the arbitrator's denial of plaintiff's grievance in this case was his finding that plaintiff failed to comply with a March 8, 1976 request made by Chief Judge Weber of this court during a hearing on a motion for contempt that the officers of the Local, including plaintiff, would report to work by the 7 a.m. shift on March 9, 1976 and then clock out and travel to the court at 10 a.m., if necessary, to continue the contempt hearing. The primary dispute in this case in connection with the propriety of the discharge concerns the nature of this request and plaintiff's knowledge of it.

 At the arbitration hearing, defendant's counsel, Richard Zamboldi (Zamboldi), testified as to his recollection of the agreement reached. He stated that at Judge Weber's behest, all counsel agreed that the union officers would lead the rank and file members into the plant at 11 p.m. on March 8 or at 7 a.m. on March 9, at the latest. (Tr. 298-307, defendant's summary judgment exhibit A). Affidavits of the union attorneys present on that day were submitted to the arbitrator on plaintiff's behalf. These affidavits state generally that none of these attorneys stated to anyone that plaintiff agreed to this request. (Defendant's summary judgment exhibit B).

 The most persuasive evidence concerning the nature of the March 8 agreement reached in Judge Weber's chambers is contained in the transcript of an in-chambers conference held on the following day together with the testimony of plaintiff at a March 22 contempt hearing and at the arbitration hearing held on June 12, 1976. At the March 9 in-chambers conference, Judge Weber stated:

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