Saginario v. Attorney General , 87 N.J. 480 ( 1981 )

The opinion of the Court was delivered by

SCHREIBER, J.

This case involves the relationship among a public employee, his duly designated representative, and his public employer in the administration of the arbitration procedure provided in a collective negotiation agreement. More specifically, the question is whether a public employee, whose interests conflict with ■ the position taken by the employees’ majority representative in invoking and processing a matter through the grievance procedure and arbitration, must be given notice and the opportunity to be heard in those proceedings. Resolution of this question depends on interpretation of section 5.3 of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34.13A-5.3.

On September 15, 1978 the plaintiff, Carmen Saginario, was promoted from the rank of State Trooper I to Sergeant in the Division of State Police (Division). On September 26, 1978 the State Troopers Fraternal Association of New Jersey, Inc. (Association), the exclusive representative for all troopers in the Division, instituted grievance procedures in accordance with the collective negotiation agreement between the Association and the Division, asserting that the promotion violated the agreement.

The agreement covered numerous matters relating to the terms and conditions of troopers’ employment. One article was devoted to promotions, including promotions from Trooper I to Sergeant. Such promotions were to be based in part on a competitive written examination to be weighted at 34% and in part on five other factors to be weighted at 66%. These factors were “length of service,” “performance rating,” “record of conduct,” “medical condition” and “ability to perform in the next higher rank or grade.” The Division assigned a maximum number of points to each of these six factors and detailed a breakdown of points within each factor. For example, length of service with a maximum of five points was graded as follows:

7-10 years — 1

10-15 “ — 2

15-20 “ — 3

Over 20 “ — 5

The total maximum for all factors aggregated 66 points.

The Association, invoking the grievance procedure, claimed that plaintiff’s points had been miscalculated in the categories of job-related experience and record of conduct and that the trooper with the highest overall promotional points should be promoted retroactive to the September promotion date. The basic grievance procedure consisted of five steps, the fifth step consisting of binding arbitration. Though a grievance could be initiated either by a trooper or the Association, only the Association could demand arbitration. The Division denied the Association’s grievance and the matter progressed to arbitration. Plaintiff was not notified of any of the grievance or arbitration proceedings. Nor did he participate in the arbitration hearing.

The issue presented to the arbitrator by the Association and the State was whether plaintiff’s promotion had violated the Agreement and, if so, what the remedy should have been. One witness, the secretary of the Division’s promotional review board, testified. The remainder of the record consisted of a stipulation of facts, exhibits, and argument of counsel. The Association contended that plaintiff was entitled to 15, not 20, points for his job-related experience and to zero, rather than SV2, points for his record of conduct. The State argued that plaintiff’s prior experience as a Sergeant justified the point total for job-related experience and that a prior disciplinary action was not relevant.

The arbitrator agreed with the Association and held the promotion should be rescinded and the trooper with the highest overall promotional points should be promoted retroactive to September 8,1978. On January 4,1979 the arbitrator’s determination was implemented by the Division and Saginario was returned to the rank of Trooper I.

Plaintiff then commenced two actions, one in lieu of prerogative writs in the Superior Court, Law Division, and the other an appeal to the Appellate Division. When the State asserted that the matter was properly before the Appellate Division as an appeal from a determination of the Division, the plaintiff agreed to dismiss the Law Division action without prejudice. The trial court entered a judgment of dismissal.

The Appellate Division, although conceiving the appeal before it to be from the decision of the arbitrator and therefore cognizable in the Law Division, decided to exercise its original jurisdiction in the interest of judicial efficiency. Premising its decision on this Court’s opinion in Donnelly v. United Fruit Co., 40 N.J. 61 (1963), the Appellate Division held that the arbitral award must be vacated and another arbitration hearing held in which Trooper Saginario would be permitted to participate. We granted the Association’s petition for certification. 85 N.J. 467 (1981).

I

The Appellate Division, professing that it was “obliged to follow” Donnelly v. United Fruit Co., supra, held that the plaintiff could not be bound by the arbitration of which he had no notice and in which he had not been given an opportunity to participate. We find, however, that this case is not governed by Donnelly and that Donnelly itself is no longer sound. Donnelly involved an employer-union-employee relationship governed by the federal Labor Management Relations Act, 29 U.S.C. § 141 et seq. Donnelly also predated Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), which undercut the foundation upon which Donnelly was based.

In Donnelly, we held that a private sector employee whose employment was subject to a collective bargaining agreement could not be deprived of the individual right to participate in an arbitration hearing when the union’s position was adverse to the individual’s interest, 40 N.J. at 81, and that the individual retained a right to invoke the provisions of the grievance procedure pro se when the union refused to process his grievance, id. at 92. Donnelly claimed that he had been discharged in violation of his contract, which eliminated the right to discharge an employee except “for cause.” The union agreed with his employer that the discharge was proper and refused to proceed to arbitration. The contract apparently empowered only the union to take that step. Donnelly instituted suit against his employer for wrongful discharge and the union for failure to arbitrate the propriety of the discharge.

We construed sections 9(a) and 301 of the federal Labor Management Relations Act¹ to permit the employee to “intervene in arbitration proceedings and obtain independent representation, if the union is acting adversely to his interests as they appear in, or derive from, the collective bargaining contract,” 40 N.J. at 80-81. We concluded that “an individual employee has a statutorily vested right to present his grievance to, and to have it determined by, his employer when the union declines to process it in his behalf.” Id. at 87.

The United States Supreme Court’s analysis of this federal statute has led it to a different position. After holding in Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), that section 301 encompassed substantive rights and in Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), that the employee was required to invoke and exhaust the contractual grievance procedures before resorting to judicial remedies, the Supreme Court substantially completed the outline of an employee’s rights in the private sector in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). There an employee sued his union for failure to process to arbitration his grievance, which arose out of his discharge. Id. at 173, 87 S.Ct. at 907, 17 L.Ed.2d at 848. The Court held that the employee did not have a right to compel the union to invoke arbitration and thus disregard the terms of the collective bargaining agreement. In reaching this holding the Court relied upon the following considerations: (1) the employer and union contemplated that each would endeavor to settle grievances short of arbitration; (2) the employer and union wanted frivolous grievances disposed of prior to costly and time consuming arbitration; (3) the settlement process would further the interest of the union as statutory agent and as coauthor of the negotiation agreement in representing the employees in enforcement of that agreement; (4) to permit the employee to compel arbitration would undermine the settlement machinery and destroy the employer’s confidence in the union.

However, under Vaca the employee was not left without any remedy. The union owed a duty “of fair representation in its handling of the employee’s grievance” and therefore the

employee [could] bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee [could] prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance. [Id. at 186, 87 S.Ct. at 914, 17 L.Ed.2d at 855]

In Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976), the Supreme Court was confronted with a situation in which the employees’ discharge had been upheld in arbitration. The employees sued the employer for breach of contract and the union for breach of the union’s duty of fair representation because of its failure to investigate and present a defense that would have shown no disciplinary action was warranted. The trial court dismissed the claim against the employer on the ground that the arbitration award was final and binding on the employees. The Supreme Court, reversing, held that the union’s breach of duty relieved the employees of an express or implied requirement that disputes be settled through contractual grievance procedures and, since the union’s breach seriously undermined the integrity of the arbitral process, it also removed the bar of the finality provisions of the contract. Id. at 567, 96 S.Ct. at 1057, 47 L.Ed.2d at 243. Thus, the arbitration award could be vacated and the employees would be entitled to an appropriate remedy against the employer and the union.

Nowhere in this federal scheme does the individual have the right to pursue his grievance to arbitration when the contract gives that right only to the union. Professor Kaden has pointed out that Vaca and Hines yield “the conclusion that the collective bargaining agreement confers rights [with respect to use of grievance procedures] only upon the collective interests who execute it: the union and the employer. The union’s basic right is its control of and access to the grievance machinery, which the employer is obliged to respect; the employer’s basic right is that of enforcement of the union’s promise not to strike during the contract term.” Kaden, “Judges and Arbitrators: Observations on the Scope of Judicial Review,” 80 Colum.L.Bev. 267, 279 (1980).

Nowhere does Vaca suggest that the employee be allowed to intervene in the arbitration procedure. If the employee were allowed to intervene and participate in the arbitration proceeding, it would undercut the legitimacy of the arbitration, predicated as it is on terms of the contract that the parties have voluntarily made. The individual employee’s claim against his employer and the union is therefore conditioned on the duty of fair representation owed to him by the union. It is this failure of fair representation that impelled the Court in Vaca and Hines to sanction a suit by the individual employee. Bad faith and arbitrariness on the part of the union triggers the breach of the duty of fair representation, which in turn permits the individual to have recourse to the courts and to vacate the arbitral award.

The Appellate Division has doubted the continued viability of Donnelly. Zalejko v. Radio Corp. of America, 98 N.J.Super. 76, 81-82 (App.Div.1967), certif. den. 51 N.J. 397 (1968) (“to the extent that [Donnelly ] conflicts with Vaca v. Sipes, [it] must yield in favor of the latter’s declaration of the applicable law”). See Vaca v. Sipes, 386 U.S. at 191 & n.13, 87 S.Ct. at 917 & n.13, 17 L.Ed.2d at 858 & n.13; Kaden, supra, 80 Colum.L.Rev. at 278. Donnelly, relying as it does on the Labor Management Relations Act, can no longer be considered viable precedent after Vaca and Hines.

Indeed, plaintiff Saginario, is a state employee whose relationship with the Division of State Police as his employer is not governed by the Labor Management Relations Act. 29 U.S.C. § 152(2). Therefore, even Vaca does not control the disposition of this case.

II

Saginario was not in the classified civil service, see State Troopers Frat. Assoc. v. State, 62 N.J. 302 (1973). His employment rights at issue here were created and governed by the collective negotiation agreement between the State Troopers Fraternal Association of N.J., Inc., the union representing state troopers, and the State. The lawfulness of that agreement stems from Article I, par. 19 of the State Constitution providing that “[p]ersons in public employment shall have the right to . .. present to and make known to .. . [public employers] their grievances and proposals through representatives of their own choosing” and the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., providing that representatives designated by public employees may engage in collective negotiation as exclusive representative of the employees concerning their terms and conditions of employment. Pursuant to the authority granted by the Constitution and the Act, the State entered into this collective negotiation agreement with the Association.

Since Saginario’s right to the promotion in the first place was based on the terms of the agreement entered into as a result of the collective negotiation, it is necessary to examine the dispute resolution mechanism in that contract in the context of N.J.S.A. 34:13A-5.3 and to determine whether that mechanism satisfies any rights he may have under the statute. The agreement defines grievances to include an improper application of its terms and misinterpretation of rules, regulations, policy or procedures affecting the terms and conditions of employment. It provides that every trooper “shall have the right to present his grievance in accordance with the procedures prescribed . . .. ” The grievance procedure consists of five steps, the fifth being arbitration. A State Trooper or the Association may present a grievance at the first step. However, grievances involving the issue of promotion may be filed initially at step three, as was done in this case, but only the union may initiate grievances commencing in step three and beyond. When, as here, the majority’s representative’s position is in direct conflict with the employee, the question then remains whether, in this instance, the contractual grievance procedure satisfies the statutory criteria.

The New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., authorizes the majority representative to meet and negotiate with the employer “with respect to grievances.” N.J.S.A. 34:13A-5.3. The last paragraph also provides:

Public employers ' shall negotiate written policies setting forth grievance procedures by means of which their employees or representatives of employees may appeal the interpretation, application or violation of policies, agreements, and administrative decisions affecting them, provided that such grievance procedures shall be included in any agreement entered into between the public employer and the representative organization. Such grievance procedures may provide for binding arbitration as a means for resolving disputes. Notwithstanding any procedures for the resolution of disputes, controversies or grievances established by any other statute, grievance procedures established by agreement between the public employer and the representative organization shall be utilized for any dispute covered by the terms of such agreement. [Ibid. (emphasis added)]

This statute clearly permits the parties to include dispute resolution mechanisms, including arbitration, in the negotiated agreement. Does the statute permit the employees’ association to foreclose an employee from utilizing that grievance procedure when the public employee has a dispute involving the terms of the agreement which satisfy the substantive requirements of a grievance as defined in the contract? The first sentence quoted above is written in the alternative — the grievance procedures shall prescribe the means by which “employees or representatives of employees” may be heard. It can be read to authorize alternative choices, enabling the parties to decide who, the employee or the union, shall initiate and process grievances to and including arbitration. We have previously rejected such an interpretation in Red Bank Reg. Educ. Ass’n v. Red Bank Reg. High Sch. Bd. of Educ., 78 N.J. 122 (1978). There the contract authorized only the employee to initiate a grievance. We agreed with the employees’ association that employees have a constitutional right under the New Jersey Constitution (1947), Art. I, par. 19, to have their majority representative present grievances on behalf of employees and that “public employees could not constitutionally be limited to presenting their grievances personally.” 78 N.J. at 136. We concluded that N.J.S.A. 34:13A-5.3 “must be read as according the majority representative ... of the unit employees, the right to initiate an organizational grievance when requested to do so by a unit employee who claims that he has been aggrieved by an action of the public employer.” 78 N.J. at 137. Therefore the contract had to provide the majority representative with the right to utilize the grievance procedure.²

The legislative intent to afford the public employee participation in the grievance procedure when he is directly involved in the dispute is underscored by the last sentence in the statute quoted above, which, in brief, states that grievance procedures shall be utilized for any dispute covered by the terms of the contract. That sentence was added by a 1974 amendment. L. 1974, c. 123, § 4. Literally, it mandates the use of the grievance procedures established by the collective negotiation agreement “for any dispute covered by the terms of such agreement” and governs all disputes arising out of the rights and duties created by the contract.

One other provision of the Act should be mentioned. In N.J.S.A. 34:13A-5.4 the Public Employment Relations Commission has been authorized to prevent an employee organization from “[interfering with, restraining or coercing employees in the exercise of the rights guaranteed by this act.” N.J.S.A. 34:13A-5.4(b)(l). This provision seeks to insure that unions will not frustrate rights guaranteed employees under the Act. Central to the theme of this section is the protection to be afforded the employee to have his grievance presented to the employer. Consonant with that notion is an interpretation of N.J.S.A. 34:13A-5.3 so as to provide that the grievance procedure afford the employee an opportunity to be heard.³

Whether section 5.4(b)(1) encompasses an obligation on the part of a union to process an employee’s grievance through the grievance procedures, including arbitration, as provided in the contract is unclear.⁴ Its applicability is particularly doubtful here. This is not simply a case of fair representation in the classic sense of Vaca, but rather one in which the organization position was advanced in good faith, was not arbitrary, and favored another employee. There is a direct conflict of interest. No party has sought to invoke PERC’s jurisdiction under the statute and we need not decide applicability of section 5.4(b)(1). See Kaczmarek v. New Jersey Turnpike Authority, 77 N.J. 329, 345-46 (1978) (Pashman, J., concurring) (union refused to pursue arbitration in discharge case, but we did not pass upon whether violation of fair representation was included in section 5.4(b)(1)).⁵

We are aware of the policy reasons supporting the position that initiating and processing grievances should be entrusted exclusively to the union. These were discussed in Vaca and have been noted above.⁶ Perhaps a more compelling factor leading to the opposite conclusion here is the statutory requirement that the contract creating the employee’s interest also entitles him to the use of the machinery for dispute resolution with respect to the very controversy set up in that contract. This accords with the public policies expressed in the statute that the best interests of the people of this State are served by the prompt settlement of labor disputes in the public sector, N.J.S.A. 34:13A-2, which will be furthered if the entire controversy is resolved in one proceeding, and also that the contractual grievance procedures shall be utilized for any dispute covered by the terms of the agreement. N.J.S.A. 34:13A-5.3. Moreover, access to the grievance procedure by the employee will eliminate possible conflicting results and remedies by different forums.

Clearly the plaintiff has an important interest at stake and he, as other public employees, should be treated fairly and evenly. His union representative cannot represent him since the union position is in direct conflict with his. Moreover, the employee should not have to rely on the public employer to present his contention, for their interests are not identical. The public employer may be concerned with little more than liability for back pay and face saving, whereas the employee’s exposure is much greater. The employee understandably would have less than full confidence in the public employer’s representation since the employer has no obligation to provide such representation. The employee merely seeks access to a fair hearing where he has the opportunity to be heard to enforce what he contends the contract grants him. Since the public employer and the majority representative have created certain benefits for the employee, they should not be able to ban him from the grievance procedure chosen to help give those benefits life and meaning.⁷

The Division of Police promoted Saginario to the position of sergeant, after applying the criteria specified in the collective negotiation agreement. It weighted these criteria by employing what it considered to be proper evaluation guidelines. When the Association subsequently objected to the promotion, the Association instituted its grievance at the third step in the grievance process. Saginario had no notice of this action and under the contract had no right to be heard. If the proceeding had started at the first step, then Saginario could have legitimately contended that he had a right to be heard and such a hearing would have satisfied the statutory mandate and, in the absence of a contractual provision, he would not have had a right to carry the matter further. See New Jersey Turnpike Authority, 6 NJPER 560 (¶ 11284, 1980) (employee has no right to compel union to proceed to arbitration where he had the right to present his grievance at a prior step in the grievance procedure). However, under the somewhat unusual circumstances here, he was foreclosed. He should not have been. Since the matter has proceeded through arbitration, we believe that proper relief will be to permit him to participate and be heard in a new arbitration proceeding rather than remanding the matter to the third step of the grievance procedure.⁸

Ill

The Appellate Division referred to the “procedural anomalies” implicit in this appeal. We agree with the Appellate Division that the proper procedure was the action instituted in the Law Division of the Superior Court attacking the finality of the arbitration award. Since the matter had proceeded to the last step in the contractual grievance procedure, we also agree, as observed above, that the entire controversy should be resubmitted to arbitration with full participation by Saginario as party. As such he should bear his proportion of the costs of the arbitration as provided in the contract. We do not pass upon or suggest what the appropriate remedy should be if the plaintiff prevails.

In summary we hold that where a public employee has a substantial interest arising out of the agreement entered into between the State and the majority representative of the employees as a result of collective negotiations and the agreement provides for a grievance mechanism to resolve disputes arising out of the agreement including the particular dispute of the public employee, then the public employee is entitled to be heard within that dispute mechanism either through his majority representative or, if his position is in conflict with the majority representative, then through his personal representative or pro se.

The judgment of the Appellate Division is affirmed as modified herein.

1 Section 9(a) reads as follows:

(a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further. That the bargaining representative has been given opportunity to be present at such adjustment. [29 U.S.C. § 159(a)] Section 301(a) reads as follows:

(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, 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. § 185(a)]

2 In Lullo v. Intern. Assoc. of Fire Fighters, 55 N.J. 409 (1970), we held that the legislative decision in N.J.S.A. 34:13A-5.3, authorizing a majority representative as the exclusive authority to negotiate a contract governing the terms and conditions of a group of public employees, was constitutional. Lullo pointed out that in the private sector it was settled that the majority representative could have the exclusive right to process all employees’ grievances, citing Vaca v. Sipes, supra, for that proposition. 55 N.J. at 432. Lullo did not decide whether that preclusion could automatically apply to an individual public employee’s right to present and process his grievance. Id. at 435-36. The only constitutional right mentioned in Lullo was that which an individual might have under Art. I, par. 19 of the New Jersey Constitution, viz. providing that public employees may organize and present their grievances through representatives of their own choosing. See N.J. Turnpike Employees Union v. N.J. Turnpike Auth., 64 N.J. 579 (1974), aff'g 123 N.J.Super. 461 (App.Div.1973), and Red Bank Reg. Educ. Ass'n v. Red Bank Reg. High Sch. Bd. of Ed., supra, wherein we also refrained from ruling on the same constitutional question.

3 We are not unmindful that a public employee may have constitutional rights to be heard when he faces deprivation of his position despite a statutory or contractual entitlement creating a property interest. See Board of Regents v. Roth, 408 U.S. 564, 576-77, 92 S.Ct. 2701, 2708-09, 33 L.Ed.2d 548, 560-61 (1972); Cunningham v. Dep't of Civil Service, 69 N.J. 13 (1975); Connors v. City of Bayonne, 36 N.J.Super. 390, 398 (App.Div.1955), certif. den., 19 N.J. 362 (1955). We need not decide whether Saginario’s right to the job constitutes a property interest deserving constitutional protection in view of our statutory interpretation.

4 N.J.S.A. 34:13A-5.4(a)(5), for example, expressly makes it an unfair practice for an employer to refuse “to process grievances presented by the majority representative.”

5 PERC has accepted jurisdiction under N.J.S.A. 34:13A-5.4(b)(I) of an unfair practice claim filed against the union by an employee for failure to file a grievance on his behalf. In the Matter of Board of Chosen Freeholders of Middlesex County, 6 NJPER 555 (¶ 11282, 1980); AFSCME, Council No. 1, 5 NJPER 21 (¶ 10013, 1978); N.J. Turnpike Employees Union, 5 NJPER 412 (¶ 10215, 1979); N.J. Turnpike Authority, 6 NJPER 560 (¶ 11284, 1980). In each decision involving the charge against the employees’ organization, PERC has found no violation of the duty of fair representation. In none of the opinions did it rationalize the basis for its jurisdiction. PERC has held that unfair practice claims against the employer cannot be maintained unless the employee first demonstrates that the majority representative violated its duty of fair representation. However, it has not yet conclusively determined that, even if that condition precedent is satisfied, such an individual charge can be maintained. See In re New Jersey Turnpike Authority, 6 NJPER 106 (¶ 11055, 1980).

6 This position has been advocated by Professor Cox, “Rights Under a Labor Agreement,” 69 Harv.L.Rev. 601 (1972). The contrary view has been expressed by Professor Summers, “Individual Rights in Collective Agreements and Arbitration,” 37 N.Y.U.Law Rev. 362 (1962).

7 Justice Clifford’s dissenting and concurring opinion adopts the position that the Association violated its duty of “fair representation” owed to the plaintiff. Therefore, he contends the arbitration award should be set aside and the plaintiff should be given the opportunity to present his grievance at the first step in the grievance procedure. We find it unnecessary to decide whether the Association’s statutory duty of fair representation included the obligation to permit the plaintiff to be heard in the organization’s grievance proceedings.

We do observe, however, that this reasoning appears to undercut the proposition that the majority representative has the exclusive authority on behalf of all public employees to negotiate and enter into a contract with the public employer setting up a grievance procedure including arbitration which may be triggered and carried on only by the union. In the absence of a statute, constitutional provision or public policy, there seems to be no reason why the initiation and processing of all grievances may not be entrusted to the union, provided the parties (the union and the employer) so agree. This is the clear implication of Vaca and Hines, which upheld actions in the private sector of employees against the union and employer for damages. Those actions did not hold that the employee had a right to be heard in the grievance proceedings. Rather, the Supreme Court recognized that the grievance procedure as provided in the contract between the union and employer in the private sector was preemptive. The employee’s relief when the union breached its duty of fair representation was in an independent action for damages for that breach. Recognition of a public employee’s right to participate in the grievance procedure, when that right is expressly conferred in the contract upon the union, arguably undercuts the underlying principle of Vaca.

Moreover, we also note that the Supreme Court’s concept of “fair representation” is a limited one. It has held that “[a] breach of the statutory [Labor Management Relations Act] duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. at 916, 17 L.Ed.2d at 857 (emphasis supplied). This case does not come within that pattern. The dissenting and concurring opinion agrees that though the Association’s conduct was not arbitrary, discriminatory or in bad faith, it still had an obligation to present the employee’s case. The opinion relies for its broadened interpretation of fair representation on an opinion of the Eighth Circuit Court of Appeals, Smith v. Hussman Refrigerator Co., 619 F.2d 1229 (8th Cir.), cert. den., 449 U.S. 839, 101 S.Ct. 116, 66 L.Ed.2d 46 (1980). We are not, however, prepared in the context of this case to regard Smith as a convincing precedent. Consequently, we choose not to consider the alleged breach of the duty of fair representation as an alternative thesis for our determination.

8 The dissenting and concurring opinion’s position that Saginario should not properly have been involved in the union’s grievance, infra at 499-500, entails a rigid approach to the contractual language of what constitutes a grievance and fails to give sufficient weight to the statutory requirement that the grievance procedures “shall be utilized for any dispute covered by the terms of such agreement.” To argue that Saginario was not concerned with the Association’s grievance is unrealistic. The issues raised in the Association’s grievance are identical to any grievance which may have been filed by Saginario. The opinion ultimately recognizes as much when it concludes the plaintiff should be permitted to participate in the new organizational grievance.