Oliver v. Chesapeake & Potomac Telephone Co., of Virginia, AFL-CI

• Decision Date: 02 May 1988
• Docket Number: D,AFL-CI,No. 87-1735,87-1735
• Citation: 850 F.2d 689
• Parties: Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Joan S. OLIVER, Plaintiff-Appellant, v. CHESAPEAKE & POTOMAC TELEPHONE COMPANY, OF VIRGINIA; Communications Workers of America, Local 2205; Communications Workers of America,efendants-Appellees, and Sickness and Accident Disability Benefits Plan and Long Term Benefit Plan of the Bell Atlantic; Sickness and Accident Disability Benefits Plan of the Chesapeake and Potomac Telephone Company of Virginia, Defendants. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 689

850 F.2d 689

Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Joan S. OLIVER, Plaintiff-Appellant, v. CHESAPEAKE & POTOMAC TELEPHONE COMPANY, OF VIRGINIA Communications Workers of America, Local 2205 Communications Workers of America AFL-CIO, Defendants-Appellees and Sickness and Accident Disability Benefits Plan and Long Term Benefit Plan of the Bell Atlantic; Sickness and Accident Disability Benefits Plan of the Chesapeake and Potomac Telephone Company of Virginia, Defendants.

No. 87-1735.

United States Court of Appeals, Fourth Circuit.

Argued: May 2, 1988.

Decided: June 30, 1988.

Oldric J. LaBell, Jr., for appellant.

R. Michael Smith (Frank, Bernstein, Conway & Goldman, on brief), Norman M. Gleichman, for appellees.

Before CHAPMAN and WILKINS, Circuit Judges, and EUGENE A. GORDON, United States District Judge for the Middle District of North Carolina, sitting by designation.

PER CURIAM:

Joan Oliver appeals the dismissal of her hybrid action alleging breach of a collective-bargaining agreement by her employer and breach of her union's duty of fair representation. We affirm.

I.

Oliver was employed by Chesapeake & Potomac Telephone Company of Virginia (C & P). In 1982, after a personnel reorganization, C & P notified Oliver that she would be transferred from Newport News to Virginia Beach. Because of Oliver's objection and her claim that this transfer would present problems with her son's special education classes, C & P attempted to find a job for her nearer her child's school. These efforts were unsuccessful and in March Oliver was told again that she would be transferred to Norfolk.

Following this notification, Oliver began an extended period of sick leave due to an alleged psychological disability. Meanwhile, C & P continued its efforts to address Oliver's needs. It allowed her to test for another position closer to Newport News but, unfortunately, she failed the examination. During the testing period, Oliver was released from her doctor's care and returned to work. However, she resumed sick leave immediately after learning that she had failed the test and would be required to report to Norfolk.

A follow-up examination by a C & P physician concluded that, rather than being psychologically disabled as her doctor indicated, Oliver was simply angry over her transfer. After the C & P physician indicated that Oliver could return to work, C & P instructed her to report to Norfolk on June 9 with the understanding that she would be allowed leave when her son's needs required it. She failed to report as instructed, and on June 24 received a final warning that she would be terminated if she did not report by July 1. She was discharged on July 3 when she failed to report to Norfolk.

Oliver then filed a grievance challenging her transfer and termination, her failure to receive a termination allowance, and termination of sick leave benefits. She was represented by Local 2205 (Local 2205) of the Communication Workers of America (CWA) in the grievance proceeding. C & P denied the grievance, but again offered her the job assignment in Norfolk. Oliver rejected the offer and the union representative timely appealed under the grievance procedure. Again, the offer of a position in Norfolk was made and rejected, and the grievance was denied. The union representative then notified C & P of the union's demand for arbitration of Oliver's grievance. Although C & P asserted initial questions as to the timeliness of the demand and the arbitrability of the claim, the record establishes that such objections previously had not barred arbitration with the...