Azzi v. Western Elec. Co.
| Decision Date | 02 May 1985 |
| Citation | 19 Mass.App.Ct. 406,474 N.E.2d 1166 |
| Parties | Kamal AZZI v. WESTERN ELECTRIC COMPANY. 1 |
| Court | Appeals Court of Massachusetts |
Neal H. Sahagian, Salem, for plaintiff.
David J. Kerman, Quincy, for defendant.
Before DREBEN, KAPLAN and SMITH, JJ.
The plaintiff, Kamal Azzi, was discharged from his employment as a machine operator with Western Electric Company (company) for not reporting to work after he was found capable of working by a physician. He commenced this action in the Superior Court on December 15, 1983, alleging that the company had (1) broken its implied contract and covenant of fair dealing, and (2) wrongfully discharged him for pursuing his rights under the Workers' Compensation Act. 2
On March 29, 1984 the company filed a motion requesting that the complaint be dismissed under Mass.R.Civ.P. 12(b)(1) or (6), 365 Mass. 755 (1974), or, in the alternative, for summary judgment pursuant to Mass.R.Civ.P. 56(b), 365 Mass. 824 (1974). The company contended that the plaintiff was covered by a collective bargaining agreement and that his remedy, if any, had to be pursued under the grievance and arbitration provisions of that agreement. In support of its motion, the company submitted a copy of the collective bargaining agreement, an affidavit of the manager of labor relations at its North Andover plant, and other materials. The plaintiff responded with an affidavit of his lawyer and various documents. On May 17, 1984, a Superior Court judge, after a hearing, allowed the company's motion and ordered the action dismissed. 3 The reason for his action was that the plaintiff was "covered by a collective bargaining agreement and those procedures were neither exhausted nor even resorted to by [the plaintiff]." The plaintiff has appealed the judge's action.
The following summary of uncontroverted facts is taken from the materials submitted to the motion judge by the plaintiff and the company. Prior to November 18, 1982, the plaintiff was employed by the company as a machine operator at its North Andover plant. He was represented for collective bargaining purposes by Local 1365 of the Communications Workers of America (union). The terms and conditions of his employment were governed by a collective bargaining agreement. That agreement contained grievance and arbitration clauses. The agreement specifically stated, in regard to the settlement of any grievances arising with respect to wages, hours of work and other conditions of employment, that the procedures contained in the agreement must be followed. Art. 10. Another provision of the agreement (Art. 28) governed the suspension and termination of employees and provided that the union might question the justification of the action taken by the company and "[a]ny such question shall be considered in accordance with the grievance procedure prescribed in [Art.] 10."
Beginning on December 7, 1982, the plaintiff was absent from work on a sickness disability from a work-related injury. While on disability leave, he filed a claim with the Industrial Accident Board in regard to his injury. 4 On April 4, 1983, the plaintiff was examined by a physician at the company's plant and was found capable of returning to work immediately. He refused to return to work. On April 6, 1983, he was informed by telegram that if he did not report to work by April 8, 1983, the company would assume he was no longer interested in working for it. Again, the plaintiff did not report to work and the company informed him that since he did not return to work, the company would classify him as having "resigned." The company subsequently informed the union that the plaintiff had "resigned."
The plaintiff in his complaint alleges that he was wrongfully discharged for failing to report to work and that his discharge was in retaliation for pursuing his rights under the Workers' Compensation Act. Thus, the plaintiff claims that the company discharged him without "just cause" and thereby violated the agreement. Before bringing an action against his employer for a violation of a collective bargaining agreement, the employee is required to exhaust the grievance procedures. Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 913, 17 L.Ed.2d 842 (1967). Balsavich v. Local Union 170, Intl. Bhd. of Teamsters, 371 Mass. 283, 286, 356 N.E.2d 1217 (1976). As an exception to that requirement, an employee may bring an action against his employer for a violation of a collective bargaining agreement if he alleges and shows that the union has failed in its duty to represent him fairly, or that his employer repudiated or otherwise nullified the grievance procedures. Ibid. Also see Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563-566, 96 S.Ct. 1048, 1055-1057, 47 L.Ed.2d 231 (1976); Hayes v. New England Millwork Distribs., Inc., 602 F.2d 15, 18 (1st Cir.1979).
There is no allegation in the plaintiff's complaint that the union violated its duty of fair representation. Further, the plaintiff does not allege any facts in his complaint that would constitute a claim that the company repudiated or otherwise nullified the grievance and arbitration procedures. 5 Conclusionary allegations, such as those set forth by the plaintiff, do not effectively state a claim of repudiation by the company. See Robbins v. George W. Prescott Publishing Co., 457 F.Supp. 915, 921 (D.Mass.1978). Also see Balsavich v. Local Union 170, Intl. Bhd. of Teamsters, 371 Mass. at 286-287, 356 N.E.2d 1217.
The plaintiff contends that the allegations contained in his complaint set out an independent common law claim against the company. He relies on Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 (1977), as the basis for his contention. The plaintiff argues that because of the existence of the common law claim, he does not have to invoke the grievance and arbitration procedures prior to bringing this action against the company.
The plaintiff's reliance on Fortune is misplaced. That case held that, in some circumstances, a covenant of good faith and fair dealing may be implied in an at-will employment relationship. Id. at 104, 364 N.E.2d 1251. There is no at-will employment relationship here. Rather, as the collective bargaining agreement states, the employee may only be discharged for "just cause." Thus, Bertrand v. Quincy Mkt. Cold Storage & Warehouse Co., 728 F.2d 568, 571 (1st Cir.1984). Unlike ...
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