Bettencourt v. Boston Edison Co.
Decision Date | 06 September 1977 |
Docket Number | No. 77-1053,77-1053 |
Citation | 560 F.2d 1045 |
Parties | 96 L.R.R.M. (BNA) 2208, 82 Lab.Cas. P 10,109 . BOSTON EDISON COMPANY, Defendant, Appellee. United States Court of Appeals, First Circuit |
Court | U.S. Court of Appeals — First Circuit |
Fred Pearlmutter, Lynn, Mass., for plaintiff, appellant.
Lawrence M. Kearns, Boston, Mass., with whom Morgan, Brown, Kearns & Joy, Boston, Mass., was on brief for defendant, appellee.
Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, DOOLING, District Judge. *
Appellant Edward R. Bettencourt filed this action in Massachusetts Superior Court on April 15, 1975 against his former employer, Boston Edison Company, for damages resulting from breach of his contract of employment as an assistant watch engineer. The action was removed to the district court which had original jurisdiction under 29 U.S.C. § 185. The Company's answer raised the defense that Bettencourt's sole remedy for termination of his employment was to follow the grievance and arbitration procedures contained in the collective bargaining agreement between the Company and Bettencourt's union. The contract provides that the procedures shall be "final and binding". The district court stayed all proceedings pending outcome of arbitration which had been commenced by the union on behalf of Bettencourt. The matter was then extensively tried before the arbitrator, who issued a detailed opinion holding that Bettencourt's termination was not in violation of the collective bargaining agreement. Summary judgment was thereupon granted for defendant. Bettencourt appeals.
At about 8 p.m. on Saturday, March 10, 1973, while at work, Bettencourt slipped and fell down some stairs, injuring his right hip. He filled out the Company's Personal Injury Report Form at the time, reporting that he administered first aid to himself and lost no time due to the accident. He declined medical assistance or an offer to leave work early from his supervisor. Bettencourt had previously agreed to work an hour of overtime, 11:00-12:00 p.m., past his normal shift, and his Weekly Time Report, signed by him, indicates that he did work the additional hour. Bettencourt claimed that he left at 11:00, but the arbitrator found that he worked the hour of overtime.
On the following day, Bettencourt called in sick with a sore back. An absence notification form was filled out at the time, and next to the space marked "Probable Duration" was a question mark. Bettencourt next contacted the Company on Friday, March 16, when he phoned to request an emergency vacation. The Company informed him that because he had been out sick he would first have to be cleared by the medical department. In response, Bettencourt asked that his accident report be torn up. The Company declined to do so. Bettencourt, who said his doctor told him to stay put, declined to go to the medical department and said he would stay out on an industrial accident. Soon thereafter, the Company filed a first report of injury with its insurer, Liberty Mutual.
The following week, Bettencourt complained to his union that he was not being paid. The union made inquiry, and the Company informed it that Bettencourt would be suspended when he returned to work and this information was passed on to Bettencourt along with a union accident form. Bettencourt completed the form and returned it to the union. On April 19, a Company official, Mr. Robinson, visited Bettencourt in his home and informed him that he was being suspended. Robinson testified that he observed Bettencourt walking around normally and that Bettencourt said he was feeling fine. By registered letter sent the same day, the Company confirmed Bettencourt's suspension "for being absent without permission". A hearing on the suspension was scheduled for April 24, and Bettencourt admits to receiving notification of the hearing. Nevertheless he did not appear at the hearing, and efforts to contact him were unsuccessful. By registered letter dated April 24, the Company informed Bettencourt that he was being terminated as a "voluntary quit". The Company did not cite any authority for its action, but it later would rely on its right under Article V of the collective bargaining agreement "to suspend, discipline, demote or discharge employees".
On May 4, 1973 Bettencourt filed a claim for workmen's compensation with the Massachusetts Industrial Accident Board. The claim was contested by Liberty Mutual. The Board defined the issues before it as follows:
These issues were resolved in Bettencourt's favor. 1 The Board on July 15, 1974, found that he had sustained a personal injury arising out of and in the course of his employment; that he had been totally incapacitated for work from March 11, 1973 to July 24, 1973; that he had been partially incapacitated for work from July 24, 1973 to October 25, 1973; and that both his total and partial incapacity were causally related to his personal injury. The Company's insurer paid the ordered compensation. No appeal was taken.
On April 30, 1973, the union advised the Company that it was appealing Bettencourt's termination under Article XXXI of the collective bargaining agreement. This article gives the union the right to appeal an employee's discharge, to confer with the Company, and to request a hearing. If after the hearing, the parties disagree as to whether to reinstate the employee, the disagreement is subject to the grievance and arbitration procedure. The union took no further action under this Article until after the decision of the Industrial Accident Board. On September 12, 1974 it requested that a conference be held. A meeting was held on November 24, 1974. The Company maintained that Bettencourt was a "voluntary quit" and the Union disagreed. The Union then wrote the Company on December 27, 1974, referring to its "refus(al) to respond to the Local's appeal under the provisions of Article XXXI" and requesting a hearing under the provisions of Article XXXIII. This Article defines the procedures for arbitration, and a hearing was one of the first steps. Under Article V of the agreement, a claim that the Company "has exercised the right to suspend, discipline, demote or discharge employees in an unjust or unreasonable manner" is subject to arbitration. In a letter to Bettencourt's attorney on March 28, 1975, the union advised that the Company had refused to meet with it, contending that Bettencourt's status "is not a proper subject under the Collective Bargaining Agreement."
This action was brought in state court on April 15, 1975. On May 12, 1975 the union filed a "Demand for Arbitration" stating the nature of the dispute as "Employee Edward R. Bettencourt was terminated on March 10, 1973, in violation of the Collective Bargaining Agreement". The Company's answer to the complaint, filed on May 28, 1975, raised the defense that Bettencourt's sole remedy was to follow the grievance and arbitration procedures set forth in the Collective Bargaining Agreement. Reference was made to paragraph 1(f) of Article XXXIII of the agreement which provides that arbitration "shall be final and binding upon both parties". It was at this stage that the district court stayed further proceedings pending report of the arbitrator.
After a hearing, the arbitrator found that the Company had a reasonable basis for suspending Bettencourt on April 19. "Mr. Bettencourt's response to his suspension as something he was expecting (;) . . . (his) failure to appear at his suspension hearing; his failure to come forward with some offer of proof as to his condition at the time these events were taking place; and the complete absence of any persuasive excuse for not doing so only lead to the conclusion that he had no justifiable grounds for his absence". Noting evidence that the Company had in the past treated similar cases as voluntary quits, the Board went on to hold that Bettencourt's termination on April 24 "was not in violation of the contract between the parties".
On appeal, Bettencourt asserts error in the granting of summary judgment in favor of the Company on Bettencourt's claim for breach of contract after it had been determined by arbitration that Bettencourt's termination did not violate the Collective Bargaining Agreement. However, as none of the limited grounds for reviewing an arbitration award is present here, we hold that summary judgment was properly entered for the Company.
Where parties to a collective bargaining agreement have provided for arbitration as the final and binding method for settling grievances the...
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