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May 12, 1986

JOHN H. FAUST, Plaintiff

William J. Nealon, Chief Judge.

The opinion of the court was delivered by: NEALON


 This matter is before the court by way of defendant's Motion for Summary Judgment filed pursuant to Fed.R.Civ.P. 56(b). On October 19, 1984 the plaintiff filed a complaint against Defendant RCA Corporation (RCA) alleging three (3) common law causes of action. Jurisdiction was based upon diversity of citizenship as plaintiff is a Pennsylvania citizen and defendant a Delaware corporation. On December 10, 1984 the defendant filed a Motion to Dismiss for failure to state a claim upon which relief can be granted or, in the alternative, for Summary Judgment. On February 11, 1985, the plaintiff filed an amended complaint incorporating his previously alleged counts and adding a new count based upon Section 301 of the Labor Management Relations Act, 29 U.S.C. ยง 185. By Order dated April 10, 1985 the court dismissed the common law causes of action and allowed the defendant to proceed upon the Section 301 claim.


 A brief summary of the factual background of this action is necessary for the resolution of defendant's motion. *fn1" The record demonstrates that the parties substantially agree upon the material facts. See Documents 28 and 33 of the Record.

 The plaintiff, John H. Faust, commenced employment as an electrician maintenance specialist with the Keystone Job Corps Center (Center) on July 27, 1970. Defendant's Answer to Amended Complaint, Document 17 of the Record, para. 6. The Center is operated by a division of RCA. In furtherance of his duties, the plaintiff was required to operate a vehicle owned by the federal government. *fn2" On May 22, 1984 the plaintiff was discharged from his employment for a violation of the Center's Rules of Conduct. The text of this rule states in relevant part:

It is mandatory that employees comply with these Rules of Conduct (and with others that may be established in the future). Since breaking any of these Rules of Conduct could result in serious loss to the Company, the Government, independent contractors, and other employees, the Company reserves the right to discipline, up to and including termination of, employees who do not abide by them.
Involvement in any of the following types of activity is considered a violation of Company Rules of Conduct;
. . . .
Reporting to work while under the influence of intoxicants, or the possession or use of intoxicants while on Company premises.

 Rules of Conduct marked as Exhibit A-1 of Appendix to Defendant's Motion to Dismiss the Complaint or, in the Alternative, to Grant Summary Judgment, Document 7 of the Record. (emphasis supplied).

 The circumstances leading to the plaintiff's termination began approximately ten days prior to the actual discharge. Mr. Edward Chonskie, Center Support, Logistics Coordinator, was working in the vicinity of the maintenance garage and needed a gasoline siphon. A maintenance employee suggested that Mr. Chonskie search in the plaintiff's truck which was parked in the garage. While Mr. Chonskie was looking in the truck for the gasoline siphon he noticed two empty beer cans. Chonskie immediately reported this finding to Steve Hollock, Administrator of Fire Safety and Security. See Affidavit of Edward Chonskie, Document 29 of the Record, Exhibit II.

 At approximately 2:00 p.m., plaintiff approached his personal vehicle. Hollock observed plaintiff unlock the door and remove the brown paper bag. Faust relocked the car and drove off in the maintenance vehicle. Mr. Hollock proceeded to follow Faust and, via radio, requested the security guard to check the plaintiff's vehicle and confirm that the bag had been removed. While Hollock was following Faust, he received radio confirmation from the guard that the bag had been removed. Id. at 40-41. Hollock and Faust simultaneously arrived at the maintenance garage where he approached Faust who had remained seated inside the maintenance vehicle. Hollock asked to see the bag and Faust voluntarily handed it to him. The bag contained two unopened cans of beer. Id. at 41. Mr. Hollock confiscated the beer and immediately reported the incident to the Center Director, Elwood Petchel. Id. at 42. At deposition, Hollock testified that he provided Mr. Petchel with "a very detailed report of exactly what happened." Id. at 45.

 After receiving this information, Mr. Petchel conferred with Mary Ann Victor Knox, Manager of Employee Relations, and Gregory Joseph, Administrator and Support Manager. Deposition of Elwood Petchel, Jr., Document 30 of the Record at 13, [Petchel Deposition]; Deposition of Mary Ann Victor Knox, Document 30 of the Record at 54, [Knox Deposition]. This group collectively decided that termination was the appropriate sanction and the plaintiff was informed of this decision. Knox Deposition at 54.

 At approximately 4:00 p.m., the plaintiff met with Petchel, Knox and Joseph. At this meeting, Mr. Faust was again advised that he was being terminated. Deposition of John Faust, Document 31 of the Record at 58, 59 [Faust Deposition].

 On May 23, 1984, plaintiff filed a grievance report and, on the same day, a meeting was held pursuant to Section 13.02 of the agreement between RCA and Local Union 406 (Local 406). *fn3" The plaintiff's grievance, which protested his discharge, could not be resolved and a second meeting was scheduled. This second meeting was, again, held pursuant to Section 13.02 of the agreement between Local 406 and RCA. The respective parties were again unable to resolve the matter and the Company adhered to its decision to terminate the plaintiff. It would appear from a review of the record that different representatives were present at each meeting.

 Pursuant to the agreement, the Union and Mr. Faust appealed the decision and the grievance was scheduled for a third meeting. This meeting was held on May 29, 1984. The plaintiff was represented by Chief Steward Joseph Pollakusky and Joseph O'Hara, President and Business Agent of the Union. The Center was represented by Petchel, Knox and Joseph. Affidavit of Joseph O'Hara, Document 29 of the Record -- Exhibit II, para. 5 [O'Hara Affidavit].

 After Mr. Petchel had presented the defendant's position, Faust, O'Hara and Pollakusky left the room. O'Hara Affidavit para. 6, Faust Deposition at 61. The affidavit executed by O'Hara states that Faust was no longer interested in challenging his discharge but was only concerned with what type of job reference he would receive and his eligibility to receive unemployment compensation. O'Hara Affidavit, para. 6. See also Faust Deposition at 61, 62.

 Plaintiff paints a different picture of what transpired at the May 29, 1984 meeting. Faust alleges that O'Hara "tried very hard to convince me that I could not go any further with my grievance and that I would have no rights." Faust Affidavit, para. 2. At deposition plaintiff testified that he had no choice but to withdraw his grievance because the Union would not support it.

 The three men then returned to the meeting and O'Hara "asked what treatment would be afforded Faust with respect to job references and unemployment compensation if he withdrew the grievance." O'Hara Affidavit, para. 7. Mrs. Knox then explained the Center's position with regard to unemployment compensation claims and employment references. Mrs. Knox stated that the Center would follow its standard procedures with regard to these matters. Before a claimant is eligible to receive unemployment compensation the employer is apparently required to provide the Pennsylvania Office of Employment Security with certain information. The Center's standard procedure dictated that it only submit to the Office of Employment Security a copy of the Center's Rules of Conduct and a copy of the report describing the circumstances of the discharge prepared by Gregory Joseph. Further, the Center would not send a representative to an unemployment compensation appeal hearing, in the event such a hearing was required. *fn4" Finally, in the event the Center was requested to provide Faust with a job reference it would only supply a prospective ...

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