Aeronautical Dist. Lodge No. 70 of Intern. Ass'n of Machinists and Aerospace Workers v. Beech Aircraft Corp., 54434

• Decision Date: 28 July 1983
• Docket Number: No. 54434,54434
• Parties: AERONAUTICAL DISTRICT LODGE NO. 70 OF the INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, Appellant, v. BEECH AIRCRAFT CORPORATION, Appellee.
• Court: Kansas Court of Appeals

Page 1204

666 P.2d 1204

8 Kan.App.2d 703

AERONAUTICAL DISTRICT LODGE NO. 70 OF the INTERNATIONAL

ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, Appellant, v. BEECH AIRCRAFT CORPORATION, Appellee.

No. 54434.

Court of Appeals of Kansas.

July 28, 1983.

Syllabus by the Court

In a case where the plaintiff union brought an action alleging collective bargaining agreement violation by the defendant company and the determination of whether there was violation requires interpretation of the agreement, it is held the parties must resort to the means provided by the agreement for its interpretation.

Roger M. Theis and Paul L. Thomas, of Render & Kamas, Wichita, for appellant.

Marvin J. Martin, of Martin, Churchill & Overman, Wichita, for appellee.

Before REES, P.J., and SPENCER and PARKS, JJ.

REES, Judge:

Plaintiff and defendant are parties to a collective bargaining agreement containing grievance procedure provisions. Two sets of grievances were asserted by employees of defendant who are members of plaintiff. One was that of J.R. Dennis and J.A. Orton (Dennis grievance); the other was that of S.J. Chrisman, D.L. Sander and W.J. McGovern (Chrisman grievance). Upon failure to achieve mutually acceptable disposition of the two grievances, plaintiff brought this lawsuit. Without pretrial, the case was tried to the court without a jury on an amended petition alleging the existence of the collective bargaining agreement and "various memorandum and letter agreements"; refusal of defendant to hear the Dennis grievance in violation of the collective bargaining agreement; refusal of defendant to carry the Chrisman grievance to conclusion according to the procedures set forth in the collective bargaining agreement; and refusal of defendant to properly hear the grievances in violation of the memorandum and letter agreements. Judgment was entered in favor of defendant. Plaintiff appeals. We affirm.

In the collective bargaining agreement, it is recited:

"ARTICLE XXVII

....

"It is the intent of the parties hereto that this Agreement, with respect to rate of pay, hours of work, and conditions of employment, shall be observed by the Company, the Union, and the employees covered by this Agreement; to provide procedures for equitable adjustment of grievances ...."

"ARTICLE IV

....

"(a) ... All overtime shall be divided as evenly as possible within a department on a calendar year basis....

....

"(d) Employees required to report back to work after their regular working hours will be guaranteed two hours and forty minutes work and time worked will be paid at one and one-half times their regular rate."

"ARTICLE IX

....

"(a) When an employee is required to fill a position in an occupation or grade paying a higher rate, he shall receive at least the minimum rate of that occupation and grade within thirty (30) days after being assigned to the new position."

"ARTICLE VII

....

"(e) Any grievance involving the financial status, classification, layoff or transfer of an employee due to the action of the Company, or its supervision, must be presented in writing within three days from time of discovery.

"Only those grievances which are in violation of rates of pay as set forth in this Agreement may be retroactive beyond the date of filing of the grievance.

....

"(g) All disputes shall be handled in accordance with the following procedure.

"ARTICLE VIII

....

"(a) Any employee having a grievance regarding wages, hours or working conditions ... may present his or her grievance on a verbal basis to the supervision of the department on the shift to which the employee is assigned.... [I]f the grievance is not answered satisfactorily within three (3) days, then the employee may present the grievance in writing to the departmental steward for further handling.

"Step (1) The departmental steward will proceed to handle the grievance presenting a written copy of the grievance to the foreman of the department concerned.

"Step (2) If Step (1) results in failure to reach a mutual or satisfactory settlement within three (3) working days, the shop chairman and the steward will proceed to handle the grievance with the general foreman and manager of the department concerned.

....

"Step (3) If Step (2) results in failure to reach a mutual or satisfactory settlement within three (3) working days, the shop chairman and the steward may appeal the case to the Division Manager.

"Step (4) If satisfactory settlement is not reached in Step (3) above, the shop chairman and steward may, within 3 working days, appeal the case to the Vice President of the division involved and/or Director-Industrial Relations.

"Step (5) In the event it is necessary to carry a grievance beyond this point, the decision may be appealed, within 3 working days, to the President of the Company or his duly chosen representative. Grievances involving questions of overtime relating to administration of policy as set forth in the Company-Union Agreement may, if unresolved at the fourth step of the grievance procedure be appealed by the Union to the President of the Company."

"ARTICLE II

....

"Should an interpretation of any Article of this Agreement become necessary, it shall be made jointly by the Union and the Company."

Of particular note is the fact that no mediation or arbitration agreement, duty or right is applicable to this case. This is conceded and agreed by the parties.

The specific language of the September 22, 1978 Dennis grievance was:

"[We] grieve that [our] rights under Article IX, Item A ... of the contract have been violated. [We] wish to be made whole from the date assigned as [avionics technicians] to flight area."

When Dennis was transferred to "flight area" in 1975, his pay was at Labor Grade 6. His complaint was that he was assigned to a position calling for payment at Labor Grade 2 but he was not assigned Labor Grade 2 until more than thirty days after his transfer; there was no contention of present improper Labor Grade assignment. The grievance is related to Articles IX(a) and VII(e).

The specific language of the September 6, 1979 Chrisman grievance was:

"[We] grieve to be paid for work which is covered in [our] job write-up but was performed by employees not covered by the contract. [We] grieve to receive 2 hours and 40 minutes, at one and one-half times [our] regular rate."

This grievance concerned an instance when, because of sudden emergency weather conditions, during nonworking hours, personnel outside the bargaining unit moved aircraft under cover to protect them from possible storm damage. Chrisman was not called back. He complained that he was entitled to be paid for two hours and forty minutes at one and one-half times his regular rate. The grievance is related to Articles IV(a), IV(d) and VIII(a) Step (5).

Underlying this lawsuit are two factual matters: (1) at each step in the grievance process, without any hearing, the defendant rejected the Dennis grievance on the ground it was not presented "within three days from time of discovery" [see Art. VII (e) ] and (2) a hearing of the Chrisman grievance by the defendant's president was refused by the defendant on the ground the grievance did not involve a "[question] of overtime relating to administration of policy" [see Art. VIII(a), Step (5) ]. Plaintiff claims these acts of rejection and refusal by defendant violated its contractual grievance procedure duties.

The relief asked for in plaintiff's petition was that "defendant be required to submit the ... grievances ... to the appropriate boards and persons ... pursuant to the ... collective bargaining agreement." The amended petition, filed over defendant's objection, asked that "defendant be required to abide by its agreements ... that the defendant be required to account for the back wages due and owing the grievants ... [and] that the defendant be ordered to pay the grievants ... their back wages." Examination of the record on appeal convinces us plaintiff's counsel prosecuted this case at trial on the theory plaintiff should be granted a judgment ordering defendant to pay "back wages" to the grievants.

Where the trial court has made findings of fact and conclusions of law, our function is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court's conclusions of law. City of Council Grove v. Ossmann, 219 Kan. 120, 126, 546 P.2d 1399 (1976); Sunflower Electric Coop., Inc. v. Tomlinson Oil Co., 7 Kan.App.2d 131, 137, 638 P.2d 963 (1981), rev. denied 231 Kan. 802 (1982). A finding of fact made by the trial court was that "[t]he collective bargaining agreement between the parties ... is the controlling Agreement concerning the issues in this action" (emphasis added). This finding is supported by substantial competent trial evidence and is not challenged by plaintiff on appeal. It follows that the "various memorandum and letter agreements," concerning which there was considerable reference at trial and which were pivotal to plaintiff's claim of entitlement to a judgment ordering defendant to pay "back wages" to the grievants as opposed to an order requiring defendant to submit the grievances to appropriate boards and persons, are now irrelevant.

The essence of the questions upon which the parties differ is:

1. In regard to Article VII(e), what constitutes "discovery" and how or by whom the "time of discovery" is to be decided when that question is material in the handling of a grievance through the procedure directed by Article VIII(a)?

2. In regard to Article VIII(a) Step (5), what is a "question of overtime relating to administration of policy"?

How and by whom are these questions to be decided? We conclude they are not for judicial decision.

The parties correctly agree that state courts and the federal courts have concurrent jurisdiction in the field of labor relations and that in their exercise of this concurrent jurisdiction, ...