Berry v. Michigan Bell Telephone Company, Civ. No. 27742.

• Court: United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
• Writing for the Court: KAESS
• Citation: 319 F. Supp. 401
• Decision Date: 27 October 1967
• Docket Number: Civ. No. 27742.
• Parties: Ethel BERRY, Plaintiff, v. MICHIGAN BELL TELEPHONE COMPANY, Defendant.

319 F. Supp. 401

Ethel BERRY, Plaintiff,
v.
MICHIGAN BELL TELEPHONE COMPANY, Defendant.

Civ. No. 27742.

United States District Court, E. D. Michigan, S. D.

October 27, 1967.

319 F. Supp. 402

McWilliams & McWilliams, Dearborn, Mich., for plaintiff.

Philip L. Wettengel, Detroit, Mich., for defendant.

ORDER AND OPINION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

KAESS, District Judge.

This is a breach of contract action brought by a former employee of the defendant. The complaint originally filed in the Circuit Court for Wayne County, Michigan, alleged that plaintiff was dismissed from her status as an employee on or about November 1, 1967, following the expiration of a leave of absence for illness, in violation of the rights accruing to her as an employee under "Company policies and procedures" and as a third party beneficiary under a collective bargaining agreement then in force between defendant and the Communications Workers of America, AFL-CIO. The action was removed to this court under the provisions of Section 1441 of Title 28, United States Code.¹ Following removal, an amended complaint was filed changing the characterization of her severance from "dismissal" to "negligently separated," and adding a count for breach of plaintiff's "constitutional rights to engage in a common calling".

Defendant now moves for summary judgment on the grounds that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law because plaintiff either resigned, in which case she abandoned any contractual rights, or was "constructively dismissed" by defendant, in which case she is barred from this action by her failure to use the grievance procedures established by the collective bargaining agreement between defendant and the union.²

Plaintiff opposes the motion on the basis that there are material issues of

319 F. Supp. 403

fact as to whether plaintiff resigned, whether she did exhaust the union remedies available to her, and whether defendant's personnel procedures and policies were a part of her contract of employment apart from the collective bargaining agreement. It is plaintiff's position that these questions of fact must be determined before the legal issues can be resolved, thus precluding summary judgment

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

The party moving for summary judgment has the burden of clearly establishing the non-existence of any genuine issue of fact that is material to a judgment in his favor. 6 Moore, Federal Practice & Procedure, ¶ 56.15(3) (2nd Ed. 1965). In ruling on a motion for summary judgment, the court must construe the evidence in the light most favorable to the party opposing the motion. Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir. 1962).

Viewing the facts in the light most favorable to the plaintiff, and acknowledging that there are some important questions of fact extant in this case, this court finds that those facts essential to a resolution of the issue of law raised by defendant's motion are not in dispute.

For several months prior to November 1, 1962, plaintiff was on a leave of absence from defendant recovering from a prolonged respiratory illness. In August of that year, when contacted by her supervisor, plaintiff informed the supervisor that she did not know, but in all probability she would not be able to return when her benefits ran out November 1, 1962.³ Plaintiff did not contact defendant prior to or immediately after November 1, 1962 to request extension of her leave of absence or make inquiry as to her status after that date. Neither did the defendant contact plaintiff to inform her of the separation, which occurred on October 31, 1962. (Defendant's records reflect that the separation was classified as a resignation.) In January of 1963, realizing that she was no longer receiving certain employee benefits, plaintiff requested a union representative, Mr. Florkey, to look into it for her.⁴ After three weeks, she again contacted Mr. Florkey, who told her she'd been taken off the payroll and asked what she wanted done about it. Plaintiff replied that she would like to be put on a disability leave of absence.⁵ Plaintiff neither heard nor did anything further until January 31, 1964 when she wrote to Mr. Mackay.⁶ There was discussion and correspondence between the defendant and the union on the matter, and in August 27, 1964, the defendant's report to the union was sent to plaintiff for comment.⁷ Further correspondence and negotiation took place between defendant and the union,⁸ and on December 4, 1964 the union representative, Mr. Shelton, wrote to plaintiff informing her that "we have done all we can in your case."⁹

319 F. Supp. 404

The United States Supreme Court in Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), held that where the collective bargaining agreement between the company and the union contains a procedure for the orderly settlement of employee grievances, this procedure is exclusive unless it is specifically agreed that they shall not be exclusive. In ruling that an employee may not sidestep these procedures by bringing a court action without having attempted to use the remedies under the agreement, the Court stated on pages 652-653, 85 S.Ct. on pages 616-617:

"As a general rule in cases to which federal law applies, federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress. If the union refuses to press or only perfunctorily presses the individual's claim, differences may arise as to the forms of redress then available. See Humphrey v. Moore, 375 U. S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370; National Labor Relations Board v. Miranda Fuel Co., 2 Cir., 326 F.2d 172. But unless the contract provides otherwise, there can be no doubt that the employee must afford the union the opportunity to act on his behalf. Congress has expressly approved contract grievance procedures as a preferred method for settling disputes and stabilizing the `common law' of the plant. LMRA § 203(d), 29 U.S.C. § 173(d); § 201(c), 29 U.S.C. § 171(c) (1958 ed.). Union interest in prosecuting employees grievances is clear. Such activity complements the union's status as exclusive bargaining representative by permitting it to participate actively in the continuing administration of the contract. In addition, conscientious handling of grievance claims will enhance the union's prestige with employees. Employer interests, for their part, are served by limiting the choice of remedies available to aggrieved employees. And it cannot be said in the normal situation, that contract grievance procedures are

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