bargaining unit is arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, supra at 190. A union is required "to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Id. at 177.
The Supreme Court has recognized that the union must retain discretion in determining whether a certain grievance merits consideration. Id. "The union has an obligation in exercising its power as bargaining agent to act fairly under the collective bargaining agreement and not to assert or press grievances which it believes in good faith do not warrant such action." Bazarte v. United Transportation Union, supra at 872.
There is no absolute right to compel a union to process a grievance through any of the preliminary steps or to arbitration. Vaca v. Sipes, supra; Adams v. UAW Local 1193, 96 L.R.R.M. 2867 (M.D. Pa. 1977). The mere refusal of a union to take a complaint to arbitration does not establish a breach of the Union's duty of fair representation. Findley v. Jones Motor Freight, 639 F.2d 953 (3d Cir. 1981). A union is not required to prosecute a grievance that it honestly believes lacks merit. Vaca v. Sipes, supra. There is no duty to prosecute a frivolous claim. Dutrisac v. Caterpillar Tractor Company, 749 F.2d 1270 (9th Cir. 1983). "Just as a union must be free to sift out wholly frivolous grievances which would only clog the grievance process, so it must be free to take a position on the not so frivolous disputes." Humphrey v. Moore, supra at 349.
The plaintiff contends that "the Union did not meet its duty of fair representation." Plaintiff's Brief in Opposition to Motion for Summary Judgment, Document 34 of the Record at 6. The plaintiff fails to support this argument with any citation to the record. Indeed, a review of the record reveals that there is not a scintilla of evidence to support such an allegation.
It is clear that O'Hara regarded plaintiff's grievance as meritless and advised Faust that he was confident the matter ultimately would be decided against him. Faust Deposition at 62; O'Hara Affidavit para. 9. Assuming, arguendo, that O'Hara's advice was tantamount to a refusal to prosecute the grievance any further, the court holds that such a refusal was justified under the circumstances and was not a violation of the union's duty of fair representation.
At the time the grievance was withdrawn, the union had twice conferred with Center representatives in an effort to resolve the matter. During the third meeting, O'Hara asked what position the Center would take with respect to job references and unemployment compensation. Knox stated that the Center would follow its standard procedure. Although this would not assure plaintiff of receiving unemployment compensation benefits, it did guarantee that the reason for discharge would not be communicated to a prospective employer. After receiving this concession, the union and Faust withdrew the grievance. Faust Deposition at 61; O'Hara Affidavit, paras. 8-9; Knox Deposition at 63-4.
As plaintiff never disputed the fact that he possessed alcohol while on Center property, O'Hara was justified in evaluating plaintiff's grievance as frivolous. The union did not breach the duty of fair representation by withdrawing the grievance after receiving the above described concession from the defendant.
WRONGFUL DISCHARGE CLAIM
The court also finds against the plaintiff on the merits of his claim against his employer. To recover against defendant, it must be established that plaintiff "did not receive fair representation from the union as well as proving his claim against the employer." Findley v. Jones Motor Freight, supra at 957 (3d Cir. 1981) (citing Vaca v. Sipes, supra); Aiello v. Apex Marine Corporation, 610 F. Supp. 1255 (E.D. Pa. 1985). "The suit against the employer rests on § 301, since the employee is alleging a breach of the collective bargaining agreement." DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 164, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983). "The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both." Id. at 165.
Faust was discharged from employment on May 22, 1984 for violating a work rule which prohibits possession of intoxicants on Center property. The Center had mailed a copy of the Rules of Conduct to all employees in 1983 and 1984. Knox Deposition at 64, 65. Plaintiff was cognizant of the fact that possession of alcohol on Center premises was prohibited. Faust Deposition at 36. Plaintiff does not dispute the fact that he had taken alcohol onto Center property. Faust Deposition at 54.
Plaintiff's brief does not explain how defendant breached the agreement reached by the Union and defendant. It is patently clear that the Rules of Conduct authorize defendant to dismiss an employee who is in possession of alcohol. It is uncontradicted that the decision to terminate Faust was reached only after Knox, Petchel and Joseph considered the following factors: First, Faust was a "long term" employee; second, Faust was regarded as a competent electrician; and third, the seriousness of the violation considering that Faust was required to drive a vehicle and work in a potentially dangerous electrical environment. Knox Deposition at 55, 56; Petchel Deposition at 11.
Without explanation plaintiff's brief states "the employer defendant breached the collective bargaining agreement by the summary termination in violation of the just cause requirement for termination. . . ." Plaintiff's Brief in Opposition to the Motion for Summary Judgment, Document 34 of the Record at 6. A review of the deposition testimony of Mr. Petchel and Mrs. Knox indicate that the plaintiff was apparently attempting to establish that defendant had not terminated other employees who violated the rule pertaining to alcohol. These depositions, however, establish that all employees who violated this rule were terminated. Petchel gave the following testimony in his deposition:
Q: What was the basis of his [Faust] termination?