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MARTIN CONNOR and MARK WILLIAMS
vs.
CROWLEY AMERICAN TRANSPORT, INC., et al.
 
Case:
CIVIL ACTION NO. 92-5334
 
Location:
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
 
Date:
February 24, 1994, Decided
 
Attorneys:
For Martin Connor, Mark Williams, Plaintiffs: Michael P. Forbes, Forbes & Purl Phila, PA.
For Crowley Maritime Corporation, Defendant: Peter L. Agostini, Meyner, and Landis, Newark, NJ. For United Industrial Workers Service Transportation Professional And Government of North America Seafarers International Union Atlantic Gulf Lakes and Inland Waters District AFL-CIO Defendant: Margaret A. Browning Spear, Wilderman, Borish, Endy, Browning, and Spear Phila, PA.
 
Court:
HUTTON J.
 
Author:
The Hon. Justice Herbert J. Hutton
 

Presently before Court are the defendant, Crowley Maritime Corporation and Crowley American Transport, Inc.'s (collectively "Crowley") Motion for Summary Judgment, the defendant, United Industrial Workers Service Transportation Professional and Government of North America Seafarers International Union Atlantic Gulf Lakes and Inland Waters District AFL-CIO's ("Union") Motion for Summary Judgment the plaintiffs' response and the Union's reply.

I. INTRODUCTION

This suit involves the plaintiffs' claim that they were wrongfully discharged from their employment after they tested positive for drug use on two separate occasions. The plaintiffs allege that by terminating their employment Crowley breached a collective bargaining agreement in violation of section 301 of the Labor Management Relations Act ("Act") 29 U.S.C. SEC. 185 and that the Union breached its implied statutory duty of fair representation under section 9(a) of the Act 29 U.S.C. SEC. 159(a). For reasons that will be discussed at greater length infra these claims are inextricably intertwined.

II. FACTUAL BACKGROUND

Plaintiff Martin Connor ("Connor") was hired by Crowley in or around November 1985 as a mechanic at Crowley's Petty Island New Jersey terminal and was employed by Crowley until March 16 1992 when his employment was terminated. Connor Deposition at 6). Plaintiff Mark Williams ("Williams") was hired by Crowley in or around August 1983 as a mechanic at the Petty Island terminal and was employed by Crowley until March 16 1992 when his employment was terminated. (Williams Deposition at 4). Both Connor and Williams were members of the Union at all times material to this suit. (Connor Deposition at 6; Williams Deposition at 4).

In 1980 Crowley and the Union established an Employee Assistance Program ("EAP") to provide assistance and treatment to such employees and their families. (Nuernberger Affidavit P 3). The EAP was designed to help those who suffered from inter alia alcohol or drug problems. (Id.). Since 1984 Guenther Nuernberger ("Nuernberger") an employee of Crowley has been the Director of the EAP. (Nuernberger Deposition at 2-3). Nuernberger is responsible for administering the program and determining how to proceed with referrals. (Id.). Nuernberger is certified by the State of California as an addiction Counselor. (Id. at 6-7).

In late 1989 Crowley became aware of what it believed to be widespread drug and alcohol use by employees at Petty Island. (Leming Deposition at 71-73; Nuernberger Deposition at 9). More specifically on several occasions Nuernberger received anonymous calls from employees at the Petty Island facility advising him of drug dealing and alcohol usage at the terminal. (Nuernberger Deposition at 9). There had also been an incident at the Petty Island facility in 1984-85 in which a Crowley employee was killed in a crane accident. (Id.). The autopsy revealed high levels of several controlled substances in his system. (Id.).

On November 2 1989 . conducted a substance abuse seminar at the Petty Island facility. (Id. at 50-51). Several days later on November 7 1989 the company conducted an unannounced facility-wide drug test. (Connor Deposition at 9). Crowley argued that the drug test was authorized by Article XXXII section 2 of the Collective Bargaining Agreement ("CBA") then in effect between Crowley and the Union which provides in pertinent part that "the company may administer urinalysis or breathalyzer tests to bargaining unit employees where it has reasonable cause to suspect drug or alcohol usage." (Exhibit A to Leming Affidavit) (emphasis added). Crowley interpreted this to mean reasonable cause on a facility-wide or individualized basis. (Heindel Deposition at 29-31). The Union objected to the test interpreting the phrase "reasonable cause" to require individualized suspicion. (Id.).

Nevertheless the Union did not press the matter to arbitration instead compromising with the Union. Under the compromise Crowley agreed not to discharge any employee who tested positive for drug use as a result of the facility-wide test. (Heindel Deposition at 30-31). In fact no employee who tested positive at that time was terminated. (Connor Deposition at 23). Connor and Williams were among those who tested positive. (Connor Deposition at 13 25; Williams Deposition at 12). Both were advised that any further positive test would lead to termination and both were advised that they were to meet with Nuernberger for evaluation. (Connor Deposition at 16-17; Williams Deposition at 15-16). Neither filed a grievance or complaint in connection with the 1989 test.(Connor Deposition at 22-23; Williams Deposition at 59-60).

Williams met with Nuernberger for evaluation on November 20 1989 at which time Nuernberger determined that the appropriate treatment for Williams wouldbe drug education. (Williams Deposition at 17; Nuernberger Deposition at 19). Connor met with Nuernberger on November 21 1989. (Connor Deposition at 31-32; Nuernberger Deposition at 11). After evaluating Connor Nuernberger determined that he should be referred to the West Jersey Recovery Network ("WJRN") a substance abuse treatment and rehabilitation center. (Connor Deposition at 31-32; Nuernberger Deposition at 11). The WJRN recommended that Connor not receive either inpatient or outpatient rehabilitation but rather that he receive drug education and attend Narcotics Anonymous. (Exhibit H to Leming Affidavit). Among the drug education which was offered to the plaintiffs was a day-long drug education seminar on January 6 1990 conducted by Nuernberger. (Williams Deposition at 20; Connor Deposition at 25). Connor attended the seminar; Williams did not attend. (Williams Deposition at 21; Connor Deposition at 27).

The second drug related incident involving the plaintiffs occurred in March 1992. On March 9 1992 Greg Jones ("Jones") a Crowley maintenance supervisor encountered Williams Connor and Jay Chapin ("Chapin") in a container which was Connor's designated work area. Jones observed Connor bending over a toolbox and ingesting what he believed to be cocaine. (Jones Deposition at 4-7 11). Jones left the area and returned with John Wozunk ("Wozunk") the shop steward. (Id. at 14-15). Jones advised Wozunk of what he had witnessed.

About an hour later Rudy Leming ("Leming") Crowley's Terminal Manager arrived on site and was advised of what had occurred. Williams Connor and Chapin were brought to Wozunk's office and confronted with what had occurred. (Connor Deposition at 53; Williams Deposition at 24). At that time Connor contended that he was not ingesting drugs but rather writing phone numbers on a piece of paper. (Connor Deposition at 51). Crowley advised Williams Connor and Chapin that he wanted them to take a drug test. (Williams Deposition at 25; Connor Deposition at 49). The plaintiffs then spoke with Heindel who advised them to abstain from taking the test until he had the opportunity to speak with the Union's Counsel Debbie Clineberg ("Clineberg").After Clineberg assessed what had occurred the plaintiffs agreed to submit to the drug test. (Connor Deposition at 49; Williams Deposition at 25).

Williams' drug test yielded a positive result for methamphetamine. (Exhibit J to Leming Affidavit). Connor's drug test yielded a positive result for marijuana metabolite and methamphetamine. (Exhibit K to Leming Affidavit). Based on the test results it was Nuernberger's opinion that the plaintiffs were under the influence of drugs on March 9 1992. (Nuernberger Deposition at 57). Consequently their employment was terminated.

The plaintiffs requested that the Union prepare grievances contesting their terminations. Baxter did so. (Williams Deposition at 27-28; Connor Deposition at 70). These grievances were submitted to Crowley for consideration on or about March 16 1992 (Williams Deposition at 28).

On March 17 1992 Leming met with the plaintiffs and advised them that their employment was being terminated. Williams admits that at the meeting Heindel argued on their behalf. (Williams Deposition at 67). Nevertheless Leming refused to reconsider and proceeded to terminate the plaintiffs' employment. He relied upon two independent sections of the CBA as providing Crowley the right to discharge the plaintiffs. Under Article XXIII section 1

The employer shall not discharge suspend or take any other disciplinary action as respects any employee without just cause but in respect to discharge suspension or other disciplinary action shall give at least one (1) warning notice of the complaint against such employee . . .; except that no warning notice need be given to an employee before he is discharged if the cause of such discharge is . . . under the influence of . . . narcotics while on duty . . . .

(Exhibit A to Leming Affidavit). Crowley also relied on Article XXXII section 2 which provides in pertinent part:

In the event a properly conducted urinalysis shows that a unit employee has in his or her urine any amount of a drug whose possession or use is unlawful . . .then the company may discipline the employee. . . .

If based on the test results . . . the Company disciplines an employee that employee shall attend a certified Alcoholic Rehabilitation Center or a certified Drug Rehabilitation Center. In the event that the employee satisfactorily completes either type of rehabilitation program the employee shall be placed back in his former position with no loss in seniority as soon as is practical. For the second offense the employee is subject to discharge after this above first procedure is followed. (Id.).

On April 4 1992 Leming wrote to Baxter advising him that the plaintiffs' grievances were denied. The plaintiffs then asked the Union to pursue arbitration on their behalf. The Union's Counsel determined that the terminations were permissible under the CBA and accordingly that arbitration was not appropriate. (Exhibit P to Leming Affidavit).

Subsequently the plaintiffs filed charges with the National Labor Relations Board ("NLRB") against both Crowley and the Union. On June 10 1992 the Union submitted a position statement indicating that it did not arbitrate the plaintiffs' terminations because in light of their prior records it believed an arbitrator would uphold the propriety of the discharges. (Id.). On June 15 1992 the NLRB advised the plaintiffs that it concurred with Crowley and the Union in their determination that the plaintiffs' claim lacked merit. Accordingly the NLRB declined to issue a complaint. (Exhibit Q to Leming Affidavit). This lawsuit followed.

III. DISCUSSION

A. The Standard For Summary Judgment

The purpose of summary judgment is to avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense. Goodman v. Mead Johnson & Co. 534 F.2d 566 573 (3d Cir. 1976) cert. denied 429 U.S. 1038 50 L. Ed. 2d 748 97 S. Ct. 732 (1977). When considering a motion for summary judgment this Court shall grant such motion "if the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When reviewing a motion for summary judgment this Court will resolve all reasonable doubts and inferences in favor of the nonmoving party. Arnold Pontiac--GMC Inc. v. General Motors Corp. 700 F. Supp. 838 840 (W.D. Pa. 1988).

The inquiry into whether a "genuine issue" of material fact exists has been defined by the Supreme Court as whether "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby Inc. 477 U.S. 242 248 91 L. Ed. 2d 202 106 S. Ct. 2505 (1986). "As to materiality the substantive law will identify which facts are material." Id.

The Supreme Court articulated the allocation of burdens between a moving and nonmoving party in a motion for summary judgment in Celotex Corp. v. Catrett 477 U.S. 317 91 L. Ed. 2d 265 106 S. Ct. 2548 (1986). Court held that the movant had the initial burden of showing Court the absence of a genuine issue of material fact but that this did not require the movant to support the motion with affidavits or other materials that negated the opponent's claim. Id. at 323. Court also held that Rule 56(e) requires the nonmoving party to "go beyond the pleadings and by her own affidavits or by the 'depositions answers to interrogatories and admissions on file ' designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed.R.Civ.P. 56(e)).

The Supreme Court further elaborated on the type of evidence that the nonmoving party is required to adduce in order to withstand a motion for summary judgment:

We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. Obviously Rule 56 does not require the nonmoving party to depose her own witnesses. Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c) except the mere pleadings themselves and it is from this list that one would normally expect the nonmoving party to make the showing to which we have referred [a genuine issue of material fact]. Id.

B. The Hybrid Section 301 Action

The plaintiffs have asserted two causes of action in their complaint. First they assert that Crowley violated section 301(a) of the Labor Management Relations Act 29 U.S.C. SEC 85(a) *fn1 by terminating their employment in violation of the CBA. Second they aver that the Union breached its duty of fair representation by failing to raise certain potentially meritorious arguments on their behalf and by refusing to arbitrate their discharges. This type of action is commonly referred to as a hybrid section 301 suit because to prevail on either claim the plaintiff must demonstrate both a breach of the collective bargaining agreement by Crowley and a breach of the duty of fair representation on the part of the Union. DelCostello v. International Brotherhood of Teamsters 462 U.S. 151 165 76 L. Ed. 2d 476 103 S. Ct. 2281 (1983).

1. The Union's Duty of Fair Representation

A labor union owes its members a duty of "fair representation." A duty of fair representation is imposed upon a labor union to counterbalance its position as the exclusive bargaining representative for employees within a given bargaining unit. See Hines v. Anchor Motor Freight Inc. 424 U.S. 554 47 L. Ed. 2d 231 96 S. Ct. 1048 (1976); Faust v. RCA Corp. 657 F. Supp. 614 (M.D. Pa. 1986); see also 29 U.S.C. SEC 159(a). As the Third Circuit Court of Appeals explained in Masy v. New Jersey Transit Rail Operations Inc. "the duty of fair representation is a judicially created rule designed to afford individual employees a certain degree of protection against discriminatory treatment by a union." 790 F.2d 322 327 (3d Cir.) cert. denied 479 U.S. 916 93 L. Ed. 2d 293 107 S. Ct. 320 (1986).

Although the union owes its members a duty of "fair representation " it is granted wide latitude in determining how to pursue its members' rights. Id. At 328. A union abuses its wide discretion and breaches its duty of fair representation 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 17 L. Ed. 2d 842 87 S. Ct. 903 (1967); Masy 790 F.2d at 328. The tripartite standard announced in Vaca was reaffirmed by Court in Air Line Pilots Ass'n Int'l v. O'Neill 499 U.S. 65 111 S. Ct. 1127 1130 113 L. Ed. 2d 51 (1991).

$=-Ba. The Bad Faith Standard

One way that a union breaches the duty of fair representation is by acting in bad faith. However in the present case the plaintiffs "concede that the union did not act with ill will towards them . . . ." (Plaintiff's Brief in Opposition to Defendants' Motion for Summary Judgment at 16). Even if they had not conceded this point there is no genuine issue of material fact as to the Union's good faith.

The plaintiffs candidly admit that they have no reason to believe the Union has or had any personal animosity or hostility toward them that prior to this lawsuit they never had any problems with the Union and that they had no reason to believe that the reason their terminations were not taken to arbitration was other than that suggested by the Union that is that they believed it would be futile to do so. (Williams Deposition at 57 65; Connor Deposition at 103-07). Because the Union did not act in bad faith the plaintiffs' unfair representation claim can only rest on an allegation that the Union acted arbitrarily. *fn2

b. The "Arbitrariness" Standard

A union violates its duty of fair representation if it acts arbitrarily in the course of representing its members. It is firmly rooted that where a union processes a grievance in a perfunctory manner its action can be characterized as arbitrary. See Vaca 386 U.S. at 191. In contrast mere negligence or poor judgment on the part of a labor union does not suffice to support a claim of unfair representation. Findley v. Jones Motor Freight 639 F.2d 953 959 (3d Cir. 1981); Bazarte v. United Transportation Union 429 F.2d 868 872 (3d Cir. 1970); D'Orazio v. McGraw Edison Power Sys. Div. 802 F. Supp. 1297 1305 (W.D. Pa. 1992).

In O'Neill the Supreme Court clarified the meaning of the word "arbitrary" for purposes of the Vaca test. Court held that the duty of fair representation requires unions not only to act in good faith on behalf of their members but also to represent them adequately. *fn3 O'Neill 111 S. Ct. at 1134.Nevertheless Court emphasized that the arbitrary prong of the fair representation analysis is very deferential. Id. at 1129. More specifically Court held that a union acts arbitrarily where its actions are "'so far outside a wide range of reasonableness' . . . as to be irrational." Id. (quoting Ford Motor Co. v. Huffman 345 U.S. 330 338 97 L. Ed. 1048 73 S. Ct. 681 (1953)). Thus under Vaca and O'Neill a union acts arbitrarily if it processes a grievance in a perfunctory or otherwise irrational manner.

The plaintiffs' claim of unfair representation is premised on four acts or omissions by the Union. They are as follows: (1) the Union failed to challenge the propriety of the 1989 facility-wide drug test which was conducted without individualized "reasonable cause"; (2) the Union failed to pursue the plaintiffs' 1992 grievance to arbitration; (3) the Union failed to raise the argument that the plaintiffs had not attended a "Certified Drug Rehabilitation Center" prior to their terminations in violation of Article XXXII section 2 of the CBA; and (4) the Union handled the plaintiffs' grievances in a perfunctory manner. Court will address each argument in turn.

(1) The 1989 Drug Test

The Union's failure to grieve or arbitrate the 1989 facility-wide drug test cannot serve as the predicate for the plaintiffs' unfair representation claim. As the defendants correctly recognize the statute of limitations for a hybrid section 301/duty of fair representation action is the six month statute of limitations period borrowed from section 10(b) of the National Labor Relations Act 29 U.S.C. SEC 160(b). Delcostello v. International Brotherhood of Teamsters 462 U.S. 151 76 L. Ed. 2d 476 103 S. Ct. 2281 (1983). The plaintiffs' suit was filed in 1992 well after the statute of limitations expired as to conduct occurring in 1989.

(2) The Union's Refusal to Arbitrate the Discharges

In support of their contention that the Union's actions were "perfunctory " and therefore arbitrary the plaintiffs allege that the Union failed to take their grievances to arbitration. However contrary to the plaintiffs' assertion the duty of fair representation does not require a union to pursue each and every claim presented by its members. Vaca 386 U.S. at 191. Such requirement would strain unions' resources beyond workable limits. Indeed it is settled law in this circuit that the Union's mere refusal to arbitrate a member's grievance does not amount to a breach of the duty. Vaca 386 U.S. at 192-93; Findley 639 F.2d at 958. This holds true even if the plaintiff's claim would have been meritorious had the claim been submitted to arbitration. Vaca 386 U.S. at 192-93; Findley 639 F.2d at 958; King v. Fox Grocery Co. 678 F. Supp. 1174 1177 (W.D. Pa. 1988). Rather the Union may refuse to arbitrate a grievance so long as its decision is not arbitrary or made in bad faith. Bazarte 429 F.2d at 872; Bellesfield v. RCA Communications Inc. 675 F. Supp. 952 957 (D.N.J. 1987).

(3) The Union's Failure to Raise Potentially Meritorious Arguments

The plaintiffs also contend that there is a genuine issue of material fact as to whether the union acted arbitrarily by failing to raise potentially meritorious arguments during the grievance process or by failing to utilize these arguments as a basis for commencing arbitration. Specifically they assert There is no evidence presented by the defendants that the union attempted to resolve the differing and contrasting interpretations of the phrase "Certified Drug Rehabilitation Center." There was no attempt to explore this defense as part of a grievance that would go to a neutral arbitrator for interpretation.

(Plaintiffs' Brief in Opposition to Defendants' Motion for Summary Judgment at 17). Thus the question is what standard is to be applied where a union member claims that his union failed to raise issues of contractual construction that might have benefitted the union member.

The Third Circuit addressed this precise issue in Findley. In Findley Court concluded that "to hold lay union representatives to the demanding tests applied to a trained lawyer would defeat the aims of informality and speedy resolution contemplated by labor-management grievance agreements." 639 F.2d at 958. Accordingly when presented with the plaintiff's claim that the union failed to raise a contractual provision which the plaintiff argued was relevant Court granted the defendants' motion for summary judgment reasoning that the union's alleged failure amounted to at most negligence which is insufficient to establish liability. Id. at 959-60; see also Dober v. Roadway Exp. Inc. 707 F.2d 292 295 (7th Cir. 1983) (recognizing that "it would be unrealistic to require workers 'grieving' on a part time basis to come up to some judicially devised standard of competent representation akin to that required of lawyers on pain of being found to have committed professional malpractice.").

The United States District Court for he Eastern District of New York addressed an analogous claim in Caputo v. National Ass'n of Letter Carriers 730 F. Supp. 1221 (E.D.N.Y. 1990). In Caputo the plaintiff cited a provision of the collective bargaining agreement which he claimed should have been raised by his union on his behalf. The parties disputed both the relevance and the meaning of the contractual provision at issue. Accordingly addressing the propriety of summary judgment Court noted "the relevance of this provision to Caputo's grievance and its import . . . is thus a disputed fact." Id. at 1231. Nevertheless relying on Findley Court held that "it is not a material dispute given that the allegation that an argument which could have been made was not made does not make out a claim for more than negligence which is insufficient to breach the duty of fair representation." Id. at 1232.

Thus the law on this point is clear. As in Findley and Caputo the Union's failure to raise contractual arguments on the plaintiffs' behalf amounts to no more than negligence even assuming that the plaintiffs' construction of the contractual provisions is correct. *fn4 Although there may be a factual dispute as to whether the plaintiffs attended a Certified Drug Rehabilitation Center in 1989 the dispute is not as to a material fact.

(4) Perfunctory Handling of the Grievances

Finally the plaintiffs argue that the Union handled their grievances in a perfunctory manner. The plaintiffs concede that Union shop steward James Baxter ("Baxter") filed grievances on their behalf after consulting with the plaintiffs. (Williams Deposition at 27-28; Connor Deposition at 70; Exhibit L to Affidavit of Rudy Leming). Beyond that Heindel prevailed upon Crowley to reconsider its decision to terminate the plaintiffs in light of the plaintiffs' prior work history and the fact that they were good employees. (Heindel Deposition at 20; Leming Deposition at 62-64 67). The plaintiffs do not deny this. (Williams Deposition at 67; Connor Deposition at 74). Crowley declined to reconsider its position. Nevertheless the Union contemplated the issue of arbitration and indeed Heindel discussed the matter with the Union's Counsel Debbie Clineberg who decided that an arbitrator would likely concur with Crowley and uphold the discharges. (Connor Deposition at 80). In light of these undisputed facts no reasonable factfinder could conclude that the Union's representation of the plaintiffs was perfunctory.

As several courts within this circuit have recognized where a claim of unfair representation is directed at a union "the proof requirements . . .are so uniquely high such cases are often susceptible to disposition on summary judgment." Bellesfield 675 F. Supp. at 956; Maoilo v. Klipa 655 F. Supp. 1139 1143 (W.D. Pa. 1987). This is such a case. There being no genuine issue of material fact the defendants are entitled to judgment as a matter of law on the duty of fair representation claim.

C. The Alleged Breach of the CBA

Court's holding that the Union is entitled to summary judgment on the plaintiffs' unfair representation claim obviates the need to consider the section 301 claim. As indicated a plaintiff must establish both a breach of the collective bargaining agreement and a breach of the duty of fair representation in order to recover under either claim. Accordingly where as here the plaintiffs cannot prevail on their unfair representation claim they likewise cannot prevail on their section 301 claim.

Court's Final Judgment follows.

FINAL JUDGMENT

AND NOW this 24th day of February 1994 upon consideration of the Defendants Crowley Maritime Corporation and Crowley American Transport Inc.'s (collectively "Crowley") Motion for Summary Judgment the Defendant United Industrial Workers Service Transportation Professional and Government of North America Seafarers International Union Atlantic Gulf Lakes and Inland Waters District AFL-CIO's ("Union") Motion for Summary Judgment the Plaintiffs' response and the Union's reply IT IS HEREBY ORDERED that the Defendants Motions are GRANTED.

IT IS FURTHER ORDERED that Judgment is entered in FAVOR of the Defendants and AGAINST the Plaintiffs.

 
Notes:

*fn1 Specifically section 301(a) provides as follows: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter . . . may be brought in any district court of the United States having jurisdiction of the parties without respect to the amount in controversy or without regard to the citizenship of the parties. 29 U.S.C. SEC 185(a). It is axiomatic that such suits may be brought by members of a labor organization where the organization entered into a collective bargaining agreement with its member's employer. See Findley v. Jones Motor Freight 639 F.2d 953 (3d Cir. 1981).

*fn2 A third basis upon which a claim of unfair representation can rest exists where a union discriminates against a member or class of members. The plaintiffs do not allege discriminatory conduct on the part of the Union.

*fn3 The Third Circuit Court of Appeals has not addressed the impact of the Supreme Court's decision in O'Neill upon the law as articulated in Findley. Prior to O'Neill the Third Circuit approach required a plaintiff to prove a bad faith motive on the part of the union in order to establish a breach of the duty of fair representation. See Findley 639 F.2d at 959; Medlin v. Boeing Vertol Co. 620 F.2d 957 961 (3d Cir. 1980). This aspect of Findley appears to be at odds with Court's holding in O'Neill. See Ooley v. Schwitzer Div. Household Mfg. Inc. 961 F.2d 1293 1302 (7th Cir.) cert. denied 121 L. Ed. 2d 148 113 S. Ct. 208 (1992) (holding that O'Neill overruled prior Seventh Circuit law requiring plaintiffs to establish union bad faith in order to prevail in duty of fair representation actions). On the other hand the O'Neill decision does not overrule Findley to the extent that Findley requires plaintiffs to prove more than mere negligence on the part of a labor union in order to establish a breach of the duty of fair representation. See Justison v. National Postal Mail Handlers 815 F. Supp. 137 140 (D. Del. 1993). Further O'Neill does not alter the Third Circuit's observation that a union's failure to raise its member's construction of contractual provision amounts to mere negligence. See id. at 140 n.2.

*fn4 Moreover the Union's construction of the phrase "Certified Drug Rehabilitation Center " which permits the Director of the EAP a certified addiction Counselor to determine the appropriate treatment for those who use drugs is well within a "wide range of reasonableness" so as to be rational. See O'Neill 111 S. Ct. at 1129. Nuernberger testified that treatment for drug abuse must be tailored to the particular individual's level of drug or alcohol use. (Nuernberger Deposition at 6). After Nuernberger evaluated the plaintiffs in 1989 he concluded that the appropriate treatment for Nuernberger was drug education and that Williams should attend the West Jersey Recovery Network which recommended drug education as the appropriate treatment. (Id. at 10-21).

This evidence satisfies the defendants' initial burden under Celotex. The burden thus shifts to the plaintiffs to present evidence creating a genuine issue of material fact. See Celotex 477 U.S at 324. The plaintiffs have offered no such evidence to dispute these facts. Based upon the undisputed facts of record no reasonable factfinder could conclude that the Union's interpretation is so far outside a wide range of reasonableness as to be irrational and therefore arbitrary. See O'Neill 111 S. Ct. at 1129; Bache v. AT&T 840 F.2d 283 291 (5th Cir.) cert. denied. 488 U.S. 888 109 S. Ct. 219 102 L. Ed. 2d 210 (1988).