Carnation Co. v. Borner

• Decision Date: 15 August 1979
• Docket Number: No. B1969,B1969
• Citation: 588 S.W.2d 814
• Parties: CARNATION COMPANY, Appellant, v. Willie Ellis BORNER, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 814

588 S.W.2d 814

CARNATION COMPANY, Appellant, v. Willie Ellis BORNER, Appellee.

No. B1969.

Court of Civil Appeals of Texas, Houston (14th Dist.).

Aug. 15, 1979.

Rehearing Denied Sept. 5, 1979.

Ron D. Daugherty, Barlow, Lacy, Smith & Pollard, Houston, P. Anthony Burnham, Los Angeles, Cal., for appellant.

Laron D. Robinson, W. Michael Leebron, II, Leebron & Robinson, Houston, for appellee.

Before J. CURTISS BROWN, C. J., and COULSON and CIRE, JJ.

COULSON, Justice.

This is a suit for the recovery of damages due to wrongful discharge of an employee under Article 8307c of the Texas Workmen's Compensation Law, Tex.Rev.Civ.Stat.Ann. article 8307c (Supp.1978). Appellant Carnation Company, defendant below, appeals from a judgment in favor of appellee Borner, plaintiff below. We affirm the judgment of the trial court.

Appellee Borner was employed by the appellant Carnation Company in 1955 and continued in that employment until his discharge on August 10, 1973. His job with Carnation at the time of his discharge was that of a milk-loader. While performing his duties as a milk-loader, Borner was hit by a stack of falling crates in October of 1971, and injured his shoulder. In March of 1973, another stack of crates fell on Borner, reinjuring his shoulder and causing him to be off the job until May 14, 1973, when he was released to return to work by his physician and did return to his same job. Following his 1973 injury Borner hired a lawyer and filed a workmen's compensation claim for both his 1971 and 1973 injuries. This claim was settled by a compromise settlement agreement following a prehearing conference before the Industrial Accident Board and Borner received a lump sum cash settlement. Carnation terminated Borner as an employee on August 10, 1973, some two days after the settlement agreement was approved by the Industrial Accident Board. Borner had been back on the job since May 14, 1973, with no complaints filed by Carnation about his job performance, although he had had some absences in the interim, but the reason given by Carnation for discharging him was that he was "Physically unable to perform assigned work."

After his discharge Borner reported the facts of his discharge to his union which filed a grievance on his behalf with Carnation. The written grievance contended that Borner's discharge was "unjust and contractually illegal" and requested that Borner be reinstated and be reimbursed for his lost benefits. Apparently Carnation did not respond to the grievance for a long period of time, although its contract with the union specified that the Company and the Union should meet promptly to settle any grievance, ¹ because R. B. Moon, Secretary-Treasurer of the Union, wrote twice more to Carnation's General Manager requesting that Carnation comply with the grievance procedure and reply to Borner's grievance. The first of these follow-up letters was dated October 4, 1973, and the second was dated December 4, 1973. Carnation responded in a letter dated January 2, 1974, which stated:

The company agrees for a period of one (1) year, effective from August 10, 1973, to allow Mr. Borner to return to work at such time that in our opinion he is physically able to perform heavy duty work.

Upon receiving this letter, Borner testified, he went to Moon, his Union Representative, and asked what the letter meant. He stated that Moon told him that he (Moon) did not know what the letter meant and told Borner to see his own lawyer. It is undisputed that no further action on Borner's grievance was ever taken by the Union or by Carnation. On July 16, 1975, one and one-half years after the letter from Carnation was written, Borner filed this suit claiming that his discharge violated Tex.Rev.Civ.Stat.Ann. art. 8307c (Supp.1978) which is entitled "Protection of Claimants from Discrimination by Employers; Remedies . . ." and provides in pertinent part:

Section 1. No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmen's Compensation Act, or has testified or is about to testify in any such proceeding.

Section 2. A person who violates any provision of Section 1 of this Act shall be liable for reasonable damages suffered by an employee as a result of the violation, and an employee discharged in violation of the Act shall be entitled to be reinstated to his former position. The burden of proof shall be upon the employee.

Carnation filed, inter alia, a cross action against and a motion for leave to join the Union as a third party defendant in this suit. This cross-action was based upon allegations that the Union violated its duty of fair representation under the National Labor Relations Act. This motion was granted, whereupon the Union petitioned for removal of the entire case to Federal Court. Upon motion by Carnation the United States District Court for the Southern District of Texas, Houston Division, remanded Borner's cause of action against Carnation to the District Court of the State of Texas, but retained jurisdiction of Carnation's cause of action against the Union.

In state court Carnation made a motion for summary judgment which was denied. Borner's cause of action was tried to a jury which found that Carnation violated Article 8307c, Section 1, with respect to Willie Borner; that no settlement was reached on the grievance filed by Willie Borner, and that Carnation acted willfully and maliciously in discharging or otherwise discriminating against Willie Borner. The jury awarded damages in the amount of $24,768.00 for lost wages between August 10, 1973 and the time of trial, $52,000.00 for loss of wages Borner would probably incur in the future, and $44,000.00 for retirement and other benefits Borner would have been entitled to had he continued to work for Carnation. In addition the jury awarded $60,000.00 as exemplary damages. After denying Borner's trial amendment to increase the amount of damages pled, the trial court entered judgment on the verdict in the amount of $100,000.00, the total amount of damages pled for by Borner in his first amended petition. Carnation appeals from that judgment.

In its first point of error Carnation contends that the trial court erred in denying Carnation's motion for summary judgment under this court's holding in Thompson v. Monsanto, 559 S.W.2d 873 (Tex.Civ.App. Houston (14th Dist.) 1977, no writ). This point of error further urges that it was error to fail to instruct the jury that Borner's cause of action was foreclosed if it found that there existed in the contract between the Union and Carnation a "final and binding grievance and arbitration procedure" and that Borner failed to pursue "that exclusive remedy under his collective-bargaining agreement." We would first note that this is an appeal from a judgment resulting from a jury trial on the merits. The denial of such a motion for summary judgment is interlocutory in nature and is not appealable. Southwestern Materials Co. v. George Consol., Inc., 476 S.W.2d 454 (Tex.Civ.App. Houston (14th Dist.) 1972, writ ref'd n. r. e.).

Carnation's argument under this first point of error contends that this case is governed by our holding in Thompson v. Monsanto, supra. In the Thompson case the plaintiff, an employee who was injured within the scope of his employment, was awarded compensation under the Workmen's Compensation Act and was subsequently discharged from his employment. He filed a grievance asking to be reinstated and his Union exercised its right to arbitrate that grievance. The arbitrator found that the employer was justified in discharging the plaintiff since the extent of his injury precluded the plaintiff from safely performing any job within his classification and seniority. The employee subsequently filed suit in district court claiming that his discharge was due to his good faith effort to pursue his workmen's compensation claim and thus constituted a violation of Article 8307c. Monsanto asserted, as an affirmative defense to Thompson's suit, that the plaintiff had elected to pursue his claim to arbitration and, under the collective bargaining agreement, the arbitrator's decision was final and binding and therefore precluded further litigation. On appeal from a judgment in favor of Monsanto we concluded that an employee who has received an adverse binding arbitration award under a collective bargaining agreement was thereby precluded from bringing suit in state court under Article 8307c on the same claim of unlawful discharge.

Our opinion in Thompson v. Monsanto contains an in depth review of the federal and state cases which bear on the problem. Those cases led us to the conclusion that the policy of federal labor law requires employees to "attempt to use grievance processes agreed upon in the contract as the mode of redress" for grievances. Thompson v. Monsanto Co., supra at 874. The use of grievance procedures is the preferred method for "settling disputes and stabilizing the common law of the plant," Thompson v. Monsanto Co., supra at 874. We further held that when "final grievance processes" have been exhausted by the aggrieved employee he

"has no right to an independent judicial determination of the merits of his grievance unless he establishes a union breach of its duty to fair representation. Such a rule would negate the desired finality to grievance arbitration procedures. Employers would have little reason to rely upon the terms of a settlement agreement . . ."

if the matter could be relitigated in court. Therefore we applied the policy of precluding employees "who have pursued their claims through Final and binding grievance and arbitration from then having their claims litigated in the courts" (emphasis added) to suits under Article 8307c because we determined that "where...