Bertrand v. Quincy Market Cold Storage & Warehouse Co., 83-1659
| Decision Date | 06 March 1984 |
| Docket Number | No. 83-1659,83-1659 |
| Citation | 728 F.2d 568 |
| Parties | 115 L.R.R.M. (BNA) 3215, 100 Lab.Cas. P 10,861, 1 Indiv.Empl.Rts.Cas. 364 Richard J. BERTRAND, Jr., Plaintiff, Appellant, v. QUINCY MARKET COLD STORAGE & WAREHOUSE COMPANY, Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
James F. Freeley, Jr., Boston, Mass., with whom John E. Sheehy, Reading, Mass., was on brief, for plaintiff, appellant.
David J. Kerman, Boston, Mass., with whom John H. Mason, and Ropes & Gray, Boston, Mass., were on brief, for defendant, appellee.
Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and PETTINE, * Senior District Judge.
The plaintiff, Richard J. Bertrand, Jr., is a former employee of defendant, Quincy Market Cold Storage & Warehouse Co. (Quincy Market). Bertrand's employment with Quincy Market ended in February 1982, when he either quit or was fired. He filed a complaint against Quincy Market in the district court on June 9, 1982, alleging four causes of action: (1) breach of an implied covenant of good faith and fair dealing in employment contracts; (2) violations of M.G.L. c. 93A and c. 176D (); (3) intentional infliction of emotional harm; and (4) breach of his employment contract. The defendant moved for, and the district court below granted, summary judgment for the defendant on all four counts. We affirm.
Since this is a motion for summary judgment, we must view all facts in the light most favorable to the nonmoving party, which, here, is the plaintiff, Mr. Bertrand. Bertrand was a fork lift truck driver at Quincy Market's cold storage facility in Watertown, Massachusetts. In this capacity, he spent a great deal of time in refrigerated areas where the temperature was zero degrees fahrenheit. Plaintiff suffered problems with his neck and back due to the cold. These problems led to plaintiff filing for, and receiving, workmen's compensation payments. The plaintiff was away from his job, and receiving compensation payments, during three different periods. It was during the third of these periods that this dispute arose.
Plaintiff's third industrial leave of absence began on August 18, 1981. On November 5, 1981, the plaintiff was examined at the company's request by Dr. Andrew A. Kerhulas. Dr. Kerhulas advised the plaintiff at that time "to seek work outside the refrigeration plant, if possible." (Bertrand affidavit of July 13, 1982.) However, Dr. Kerhulas apparently felt that Bertrand was no longer disabled; in a letter to Quincy Market on December 11, 1981, Kerhulas stated:
It is my firm opinion that this boy has no definite objective findings at this time, his symptoms are mainly subjective. He has been told not to return to any work being exposed to cold storage and it is my opinion that this man's symptoms are all subjective at this time and I can find no definite disability in regards to his injury in his neck. I feel that he can return to work as of this date.
As a result, Quincy Market sent Bertrand a letter on February 3, 1982. Quincy Market stated that in light of Kerhulas' letter, a copy of which was enclosed, he was "directed" to return to work on February 8, 1982 or to contact Quincy Market immediately and provide evidence that he could not return to work. The letter reminded Bertrand of his contractual duty to report for work if he was not actually disabled, and concluded that "[i]f you fail to return to work as directed or to provide evidence establishing that you are not able to return to work, you will be considered to have voluntarily terminated your employment."
February 8 passed without word from Bertrand. On February 16, Bertrand sent Quincy Market a letter which simply acknowledged the February 3 letter and advised Quincy Market to send any other correspondence directly to Bertrand's attorney. Quincy Market sent Bertrand a letter on February 22 which, after recounting that Bertrand had not complied with the February 3 letter, stated that his employment had been terminated. Bertrand filed this suit four months later.
In the first count of his complaint, the plaintiff alleges that Quincy Market breached an implied covenant of good faith and fair dealing in his employment contract. The district court ruled for the defendant because the plaintiff had not gone through the mandatory grievance and arbitration procedure prescribed in the plaintiff's union contract, citing this court's decision in Hayes v. New England Millwork, 602 F.2d 15 (1st Cir.1979). The plaintiff attempts to avoid Hayes in this court by contending that the union contract does not cover his claim in implied contract, that he was not a union member and, therefore, not bound by the union contract in February 1982, that this is a tort claim which is exempt from the bargaining agreement, and that he was discharged for failure to obey a direct order, which is exempted from arbitration by the agreement.
Although an implied covenant of good faith and fair dealing is, by its very nature, not explicitly in any contract, we think that the arbitration provisions of the union contract in this case would cover a dispute over a claim of this nature. Section 20.1 of the contract states that if the union claims that an employee was dismissed without just cause, the dispute must be submitted to the grievance and arbitration procedures. This provision surely is broad enough to cover the plaintiff's implied contract claim.
As to the plaintiff's allegation that he was dismissed for failure to obey a direct order, he claims that under section 20.2, such conduct, if proved, would be conclusively presumed to be just cause and not subject to arbitration, thereby allowing him to pursue his remedy in court. Even conceding the plaintiff's argument, here he contends that the direct order was merely a pretext for firing him. We cannot accept that section 20.2 bars arbitration in such a situation. Section 20.2 states that failure to obey a direct order will be conclusively presumed to be just cause only "if proved"; the order must be given in good faith and not be a sham for some ulterior purpose. Therefore if the February 3 letter were a direct order, it could still come within the agreement if it was outrageous and merely a pretext for firing ...
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