In this action brought by the plaintiff against the union for breach of its duty of fair representation and against the Massachusetts Bay Transportation Authority (MBTA) for wrongful termination of employment *fn2 a Justice of the Superior Court allowed the defendants' motions for summary judgment. On appeal the plaintiff claims that the Court erred in allowing the motions because there were genuine issues of material fact as to whether the plaintiff was informed that he would be required to submit to a drug screen as a condition of reinstatement and whether he consented to the test. In affirming the judgment we take a somewhat different view of the primary issue of the appeal.

The plaintiff was hired as a part-time bus driver by the MBTA in 1985. During the 112 weeks that he was employed he had missed more than sixty days of work and had received a number of suspensions for absenteeism. On August 19 1987 he was suspended indefinitely pending a recommendation for discharge. A grievance was filed by the plaintiff's union representative and the latter obtained a conditional reinstatement. The plaintiff would have to take a physical exam including a screening for alcohol would have to maintain perfect attendance for the next two years and would have to start as a new employee. Although the union claimed that one of the requirements was that the plaintiff would have to take a drug test and that he consented to do so the plaintiff maintains that he had no notice prior to arriving at the examination that it would include a screening for drugs.

He claims contrary to the Court's conclusion that he did not consent and that his lack of consent creates a genuine issue of material fact which precludes the allowance of the defendants' motions. Whether the plaintiff consented prior to his coming to the examination is not however determinative of his claims against the union or against the MBTA.

In his deposition the plaintiff admitted that he was informed by the doctor prior to his physical that the exam would include testing for drugs.*fn3 He then submitted to the exam including the drug screening. When the test showed the presence of cannabis the recommendation for discharge was reinstated and the MBTA terminated the plaintiff's employment based on the excessive number of absences from the job.

The union pursued the grievance through the MBTA's director of human resources and its general manager but declined to seek arbitration. The plaintiff was informed that he had the right to appeal that decision to the membership at a meeting. Although the plaintiff attended the meeting he did not appeal.

1. Claim against the union for breach of duty of fair representation. Under SEC. 22.8 of the constitution of the Amalgamated Transit Union parties must not take legal action or go into court until they have exhausted all their rights within the Union. See Azzi v. Western Elec. Co. 19 Mass. App. Ct.406 408-409 474 N.E.2d 1166 (1985). The plaintiff not having appealed and hence not having exhausted his union remedies argues that he comes under an exception that permits "an employee [to] bring an action against his employer for a violation of a collective bargaining agreement if he alleges and shows that the union has failed in its duty to represent him fairly . . . " id. at 409.

A union is in breach of its duty of fair representation if its actions toward an employee are "arbitrary discriminatory or in bad faith." Vaca v. Sipes 386 U.S.171 190 17 L. Ed. 2d 842 87 S. Ct.903 (1967). The union may not "arbitrarily ignore a meritorious grievance or process it in perfunctory fashion." Id. at 191. Graham v. Quincy Food Serv. Employees Assn. & Hosp. Library & Pub. Employees Union 407 Mass. 601 606 555 N.E.2d 543 (1990). In order to find a breach "there must be substantial evidence of bad faith that is intentional severe and unrelated to legitimate union objectives." Id. at 609 (citations omitted). We conclude that the union has shown by material described in Mass.R.Civ.P.56(c), unmet by countervailing materials, that the plaintiff has no reasonable expectation of proving [this] essential element of [his] case. Brunner v. Stone & Webster Engr. Corp. 413 Mass. 698 705 603 N.E.2d 206 (1992). See Kourouvacilis v. General Motors Corp. 410 Mass. 706 711 575 N.E.2d 734 (1991).

Although the plaintiff claimed hostility on the part of the union there is nothing in the record to substantiate his claim. The only example of hostility cited by the plaintiff was that James Lydon his union representative was getting a little bit disturbed that I was calling him on a regular basis and more or less told me so. The plaintiff could muster no other acts of hostility.

Nor did the union arbitrarily ignore a meritorious grievance which the plaintiff describes as "a presumptively unconstitutional drug test." At the time of his discharge the law relating to drug tests had not as yet evolved and there was no presumption of unconstitutionality.*fn4 Indeed the practice of the union at that time as set forth in its unrefuted answers to the plaintiff's interrogatories was that "in resolving grievances the union and the grievants . . . accepted MBTA's insistence on a drug/alcohol screen as a condition of return-to-work agreements." The union's belief that the claim was not worth pursuing was reasonable. The plaintiff's attendance record was dismal and he had received numerous suspensions. The conditions that the MBTA and the union if not the plaintiff had agreed upon had not been met -- the plaintiff had failed the drug test. There is nothing in the record to suggest that the union was arbitrary in determining that pursuit of the grievance would not succeed and in deciding not to take the matter to arbitration. If a union's failure to press a grievance was the result of a reasonable and good-faith belief that [the] grievance[] [was] unmeritorious, the union was vested with the discretion not to pursue [it]. Graham v. Quincy Food Serv. Employees Assn. & Hosp. Library & Pub. Employees Union 407 Mass. at 609. Even if the union acting diligently and in good faith mis-Court the grievance it has not committed a breach of the duty of fair representation as long as it has acted rationally. Early v. Eastern Transfer 699 F.2d 552 555 (1st Cir.) cert. denied 464 U.S.824 78 L. Ed. 2d 100 104 S. Ct.93 (1983). Walsh A Judicial Guide to Labor and Employment Law 416-417 (1990). Thus the plaintiff has shown no reasonable expectation of proving that the union failed in its duty of fair representation. This is so whether or not the plaintiff consented to a drug screening prior to appearing at the exam.

2. Action against MBTA. Since the plaintiff has failed in his claim that the union was in breach of its duty of fair representation his action against the employer is barred.*fn5 See Johnston v. School Comm. of Watertown 404 Mass. 23 25 533 N.E.2d 1310 (1989); Azzi v. Western Elec. Co. 19 Mass. App. Ct. at 408-409.

Judgment affirmed.