                       United States Court of Appeals

                           FOR THE EIGHTH CIRCUIT




                              _____________

                              No. 96-2276EM
                              _____________


Charles Kelley Smith,                *
                                     *
           Appellant,                *
                                     *
     v.                              *
                                     *   On Appeal from the United
                                     *   States District Court
McDonnell Douglas Corporation,       *   for the Eastern District
a Missouri Corporation, and          *   of Missouri.
International Association of         *
Machinists and Aerospace             *
Workers, Lodge 837,                  *
                                     *
           Appellees.                *

                               ___________

                      Submitted:   February 10, 1997

                          Filed: February 25, 1997
                               ___________

Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and
     BATTEY,* District Judge.
                           ___________

RICHARD S. ARNOLD, Chief Judge.


     In   mid-1993,    McDonnell   Douglas   Corporation   fired   Charles
Kelley Smith for trying to force a fellow employee to the shoulder
of the road as the two drove on an interstate highway in St. Louis
County, Missouri.     Smith, a member of the International Association



     *The Hon. Richard H. Battey, Chief Judge, United States
District Court for the District of South Dakota, sitting by
designation.
of   Machinists   and   Aerospace   Workers   union,   claims   that   his
dismissal violated the collective bargaining agreement because the




                                    -2-
dismissal was not for just cause, and that the union violated its
duty of fair representation by failing to pursue the matter to
arbitration.        The District Court1 granted summary judgment to the
company and the union.        We affirm.


                               I.    Background


     Aside from a three year stint in the Marine Corps, Charles
Kelley Smith was an employee of McDonnell Douglas from 1974 until
his dismissal in mid-1993.            From 1990 until his dismissal, he
served as a fabrication worker and was a member of a collective-
bargaining unit.        While serving in this capacity, Smith received
five employee incident reports.            Each of the first three was for
repeated tardiness or absenteeism and contained the following
warning:     "IMMEDIATE AND SUSTAINED IMPROVEMENT MUST BE MADE ON YOUR
PART OR YOU WILL BE SUBJECT TO FURTHER DISCIPLINARY ACTION UP TO
AND INCLUDING DISCHARGE."


         The fourth report Smith received was the apparent result of
an ongoing dispute between himself and Walter Campbell, Smith's
supervisor     at    the   time,    over   Campbell's   treatment   of   other
employees and Campbell's alleged use of a company phone to make
personal long distance calls.              According to the report, Smith
directed obscene language at Campbell and threatened him, asking
him, for example, if he "ever had the flesh ripped out from under
[his] rib cage?"        For this behavior, Smith received a suspension
and a final warning that any similar future violation would result
in his immediate termination.2


     1
      The Hon. Carol E. Jackson, United States District Judge for
the Eastern District of Missouri.
         2
       The Union and McDonnell Douglas ultimately settled this
grievance, agreeing that McDonnell Douglas would reimburse Smith
for five days of the two-week suspension if he were reinstated as
a result of the pending arbitration proceeding in the grievance
related to his discharge. The parties agreed that the settlement

                                       -3-
agreement itself could not be used in any future arbitration
proceeding.

                            -4-
     Smith's fifth and final report also resulted from his ongoing
feud with Campbell.       Shortly after a night shift in May of 1993,
Smith's car swerved towards a van driven by Campbell and carrying
two other McDonnell Douglas employees, forcing the van towards the
shoulder as   the   two    vehicles    traveled    west   on    an   interstate
highway.    Smith does not deny that the incident took place but
claims that he swerved towards Campbell's car because he thought
that Campbell was pointing a gun at him as the two drove next to
each other.    Two days later, according to the report, Smith was
seen threatening Campbell on company premises and attempting to
provoke a fight.    Campbell was no longer Smith's supervisor at this
point, and, according to Smith, the two worked "in a different
area."


     For these infractions and for his overall work record, the
company fired Smith.3      His fifth and final incident report stated
that his conduct on the highway and later conduct on the premises
violated three of the company's standards of behavior:               "No. 14 -
`Unsatisfactory conduct (conduct detrimental to the interests of
the Company or others).'; No. 21 - `Threatening, intimidating,
coercing, or otherwise interfering with others on Company premises
at any time, including lunch and rest periods.'; and, No. 29 -
`Willful abuse, or deliberate damage to Company property or to the
property of others.'"      See Appellant's App. Item 7, Exhibit 3.


     The union shop steward then filed a grievance on behalf of
Smith.     After   two   meetings   with    the   company   to    discuss   the
grievance, the Union formally requested an arbitration hearing
pursuant to the collective-bargaining agreement.               Two weeks after
the selection of an arbitrator, District 837 of the Union was
placed under the supervision of the International Association of


    3
     The company had laid off Campbell several days before Smith's
termination, though it appears that Campbell was never officially
disciplined for his role in the feud with Smith.

                                      -5-
Machinists and Aerospace Workers, AFL-CIO.            The new Deputy of
District 837 instituted a policy requiring all pending grievances
to be reviewed by a randomly selected panel of three business
representatives.


      Two of the three panel members assigned to review Smith's case
(Gerald Oulson and James Baker) decided not to submit Smith's case
to arbitration.    The third, Fred Golleher, thought the case should
be submitted.      In determining that Smith's case would have been
unwinnable at arbitration, Oulson, who had handled Smith's case
since the filing of the grievance, reviewed the statements of two
witnesses to the highway incident as well as Smith's disciplinary
record.    Oulson had also been at an earlier hearing where both
Smith and the company presented their sides of the story.          He spoke
with the Plant Chairman and shop steward, who, according to Oulson,
felt strongly that the case should proceed to arbitration, about
the   grievances    and   with   other    witnesses   to    confrontational
incidents between Smith and Campbell.            Also, he consulted an
arbitration text to determine whether and under what circumstances
off-premises conduct is grounds for dismissal.             He then reported
his findings and made his recommendation to the other two panel
members.   Neither of the other two had independently investigated
the matter, though both reviewed the statements of two witnesses to
the highway incident as well as several other documents.            The new
Deputy of the District agreed with the majority's recommendation,
as did the International Union representative assigned to the case.
A week after the panel's decision, Oulson wrote Smith a letter
informing him that the Union did not intend to pursue the grievance
further.


                                   II.


      To prevail on his claim, Smith must establish that McDonnell
Douglas terminated him in violation of the collective bargaining


                                    -6-
agreement,   and   that   the   Union    failed   in   its   duty   of   fair
representation by failing to pursue the matter to arbitration.




                                   -7-
Establishing the latter is an especially difficult task.                Merely
demonstrating the error of the union's decision or even that the
decision was negligent is not enough.           So long as the union does
not play favorites among its members and "so long as a union
exercises its discretion in good faith and with honesty or purpose,
a `wide range of reasonableness must be allowed.'"             N.L.R.B. v. Am.
Postal Wkrs. Union, 618 F.2d 1249 (8th Cir. 1980) (quoting Ford
Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)).


       Smith advances two arguments to show why his termination was
improper.       First, he argues that he was not the aggressor on the
highway because he believed at the time that Campbell had pulled a
gun on him.4        Second, he contends that his actions on the highway
were not detrimental to the interests of the company or others,
primarily because the incident occurred off-premises.            Thus, unless
he can establish that the Union's investigation was so perfunctory
as to raise an inference of bad faith, Smith must establish either
the arbitrariness of the Union's decision that the arbitrator would
not have believed Smith's version of the facts, or of its legal
determination that Smith's conduct violated company standards.


       Smith has failed to establish the arbitrariness of either
decision.       First, it was eminently reasonable for the Union to
determine that the arbitrator would not believe Smith.               It is true
that       Oulson   interviewed   witnesses   (whose   names    he   could   not
remember) who confirmed that Campbell had threatened Smith in the
past, thus establishing that Campbell was not an innocent party in
the rivalry.        Yet aside from the implausibility of Smith's account
of the highway incident, Smith had received a prior report, which
was also a final warning, for threatening Campbell in an extremely
graphic manner, and he had received three disciplinary reports in
the two years prior to that incident.             There were no witnesses


       4
     Smith also denies that he threatened Campbell two days later
on company premises, as described in the fifth incident report.

                                      -8-
(other than himself) to his version of the events on the highway,




                               -9-
while       two   McDonnell        Douglas       employees       and    members     of   the
collective-bargaining unit who were traveling in Campbell's van
corroborated Campbell's version.                  Two other witnesses, who were on
the    highway     in    another     car,        saw   Smith's    car     swerve    towards
Campbell's van.         Moreover, Smith was witnessed making threatening
gestures to Campbell two days later.5


           Smith also assails the Union's investigation for "fail[ing]
to discover previous arbitration decisions wherein arbitrators held
that       employees    could      not     be    terminated      for     off-site    acts."
Appellant's Br. 11.         Yet it is more than reasonable to think that
an employee's attempt to run three McDonnell Douglas employees to
the side of a highway while traveling at high speeds minutes after
the end of a work shift, culminating a longstanding workplace
rivalry that included past threats on company premises, is conduct
that an employer may decide detrimentally affects its business
regardless of whether or not those employees had to work together
at the plant.           The arbitration decisions that Oulson supposedly
failed       to   unearth     do     not        even   remotely        suggest    that   his
                                                                  6
determination was wrong, let alone arbitrary.


       Finally, Smith suggests that the Union's investigation was so
perfunctory that it reveals bad faith and secret hostility on the
part of the Union.            He points to the fact that Oulson did not
interview any witnesses to the incident, including Campbell, did

       5
      Smith asserts that Campbell admitted that this incident never
took place. Appellant's Br. 8. This is not true. See Appellant's
App. Item 7, 61.
       6
      The one decision cited by Smith that supports his argument at
all is still easily distinguishable. He points to In re Honeywell,
Inc., 68 LA 346 (1977), where an arbitrator found that two
employees were wrongly disciplined for fighting over a card game at
an employer-sponsored social club. The arbitrator found that the
two would have no trouble working with each other after the fight.
A single fight is a far cry from the persistent problems engendered
by the Smith-Campbell feud and the gravity of Smith's aggressive
and dangerous actions on the highway.

                                             -10-
not speak to the independent witnesses to the highway incident, and




                               -11-
did not record the names of witnesses given to him by Smith who
would have corroborated Smith's version of the Smith-Campbell
rivalry.     He also complains that Oulson would not return nine of
his phone calls, though he admits they spoke a few times on the
phone during the processing of the grievance, and that he falsely
told Smith that the Union was actively pursuing the investigation
when it was not.


      Absent from Smith's allegations is any suggestion of what a
further investigation might have revealed that would have aided him
in any way.       Smith identifies no witnesses that would corroborate
his     version    of     the   highway    incident     or   absolve     him   of
responsibility for the report he received for threatening Campbell.
Moreover, as stated above, Oulson interviewed witnesses to past
confrontational         incidents    between   Smith   and   Campbell.     Smith
assails Oulson for failing to interview witnesses to the highway
incident.     Yet without some indication of what such an interview
could have revealed that did not appear in the statements of the
witnesses, we cannot say that Oulson's failure to conduct the
interviews was arbitrary.           He also suggests that Oulson should have
probed more deeply in investigating the fourth report but does not
identify any witnesses who would have corroborated Smith's version
of that event.      Finally, Oulson's failure to return some of Smith's
calls is serious only to the extent that Smith had anything
substantive to tell Oulson that would have strengthened Smith's
case.    Smith admitted in his deposition that the two spoke on the
phone a few times, and Oulson was present at the meeting where
Smith told his side of the story.              The record is devoid of any
indication that future communication with Smith was necessary to
conduct a proper investigation.            Insufficient attentiveness alone
does not establish a violation of the duty of fair representation.


      Smith also claims that Oulson bore him a secret hostility
because of earlier complaints Smith had made to Oulson's superiors


                                        -12-
in the Union about Oulson's handling of employee grievances while
Smith was shop steward.   Smith could tell that Oulson was hostile




                               -13-
to him by the "tone and inflection of his voice when speaking to
[Smith], his mannerisms and demeanor when speaking to [him], and
his reluctance to meet with [him] or to speak with [him] on the
telephone."      Appellant's App. Item 4, Exhibit I.     There is no
evidence that this supposed hostility affected the investigation in
any way.   Allowing such allegations to defeat a motion for summary
judgment would severely weaken the deference that courts owe to a
union's exercise of its discretion not to pursue problematic
grievances.


                                III.


     We hold that the Union did not violate its duty of fair
representation to Charles Kelley Smith.    There is therefore no need
to determine whether or not Smith's termination violated the
collective-bargaining agreement.       The District Court's grant of
summary judgment to the company and the Union is


     Affirmed.


     A true copy.


           Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                -14-
