602 F.2d 15 (1st Cir. 1979), 79-1105, Hayes v. New England Millwork Distributors, Inc.

Docket Nº:79-1105.
Citation:602 F.2d 15
Party Name:Joseph J. HAYES, Plaintiff, Appellant, v. NEW ENGLAND MILLWORK DISTRIBUTORS, INC., Defendant, Appellee.
Case Date:July 10, 1979
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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602 F.2d 15 (1st Cir. 1979)

Joseph J. HAYES, Plaintiff, Appellant,

v.

NEW ENGLAND MILLWORK DISTRIBUTORS, INC., Defendant, Appellee.

No. 79-1105.

United States Court of Appeals, First Circuit

July 10, 1979

Argued June 7, 1979.

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[Copyrighted Material Omitted]

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Frederick T. Golder, Boston, Mass., with whom Shulman & Golder, Boston, Mass., was on brief, for plaintiff, appellant.

Louis A. Rodriques, Boston, Mass., with whom Edward R. Lev, Boston, Mass., was on brief, for defendant, appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

This is an appeal by an employee from the granting of his former employer's motion for judgment on the pleadings in a suit brought pursuant to § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, for alleged breach of the collective bargaining agreement. He appeals as well the district court's refusal, both before and after judgment, to permit him to amend his complaint to add his union as a defendant, to add a count against the union for breach of its duty of fair representation, and to supplement the allegations he had made against his employer.

The dispute among the parties arose in May of 1974, when appellant, a truckdriver for appellee for twenty years, failed to report to work for twenty days. According to the complaint, appellant had a "terrible argument" with his wife. He told one of his co-workers that he was ill and would not be going to work and then fell into an "alcoholic stupor", remembering "very little of what happened until June 13, 1974 when he came to his senses." In the interim, he received notice from appellee that due to his failure to report for work and to explain his whereabouts to the company, he had "voluntarily quit and abandoned his employment".

Appellant then filed a grievance against appellee through his union, charging that he had been discharged in violation of that provision of the collective bargaining agreement which provides that terminations be "for cause". Although the union originally agreed to process the grievance and met with appellee for that purpose, it eventually "upon advice of counsel and after careful consideration, . . . elected to withdraw for lack of merit the arbitration procedure concerning Mr. Joseph Hayes." The union did negotiate a financial settlement on behalf of appellant, but he rejected it.

In June of 1976, appellant filed the instant suit. The case did not move forward, however, for approximately two years, when appellant initiated discovery. Shortly thereafter, in November of 1978, appellee filed a motion for judgment on the pleadings. Appellant responded with an opposition to that motion and moved as well to amend his complaint as described above. After a hearing on the merits and the proposed amendment, the court entered judgment for appellee and denied appellant the opportunity to amend his complaint. After judgment, appellant moved once again to amend, this time to add that "the defendant repudiated the grievance procedure of the Collective Bargaining Agreement and refused

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at all times to arbitrate the plaintiff's discharge." This motion was denied as well.

We turn first to appellant's contention that the complaint in its original unamended form stated a cause of action and thus that judgment on the pleadings was entered improperly for appellee. Appellant's suit was brought pursuant to § 301 of the Labor Management Relations Act, which enables an employee or his union to sue his employer for his failure to comply with the collective bargaining agreement. Hines v. Anchor Motor Freight, 424 U.S. 554, 562, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 183, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). There is, however, an important qualification to a plaintiff's right to bring such a suit: "(s)ince the employee's claim is based upon breach of the collective bargaining agreement, he is bound by terms of that agreement which govern the manner in which contractual rights may be enforced." Vaca v. Sipes, supra, 386 U.S. at 184, 87 S.Ct. at 914. Thus, if the contract provides for a grievance and arbitration procedure, as is the case here, a court ordinarily may not...

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