Corey v. Avco-Lycoming Division, Avco Corp.
| Decision Date | 05 July 1972 |
| Docket Number | AVCO-LYCOMING |
| Citation | 163 Conn. 309,307 A.2d 155 |
| Court | Connecticut Supreme Court |
| Parties | , 4 Fair Empl.Prac.Cas. (BNA) 1028, 4 Empl. Prac. Dec. P 7912 Barbara COREY v.DIVISION, AVCO CORPORATION. |
David J. Della-Bitta, Asst. Atty. Gen., with whom were F. Michael Ahern, Asst. Atty. Gen., and on the brief, Robert K. Killian, Atty. Gen., for the appellant (plaintiff).
Warren G. Sullivan, Greenwich, with whom were Dwight F. Fanton and Gregory L. Thornton, Bridgeport, and, on the brief, James B. Stewart, Bridgeport, for the appellee (defendant).
Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and FITZGERALD, J.J.
This is an appeal by the named plaintiff from a judgment of the Superior Court setting aside a decision and order of a hearing tribunal of the Commission on Human Rights and Opportunities finding that the Avco-Lycoming Division, Avco Corporation, hereinafter referred to as Avco, had discriminated against her in violation of the Fair Employment Practices Act by terminating her employment because of her religion. General Statutes § 31-126(a). The plaintiff has appealed to this court.
There were only two witnesses who testified before the hearing tribunal, the plaintiff and Pasquale Cipriano, the assistant director of industrial relations for Avco. The plaintiff printed no appendix of evidence to her brief, as required by Practice Book § 645. The evidence printed in the appendix to the defendant's brief discloses the following: The plaintiff Barbara Corey was employed by the defendant Avco on September 3, 1968, as a rate clerk and was assigned to the traffic division, department 2K. Her scheduled hours of work were from 8:15 a.m. to 5 p.m., Monday through Friday. She had been fully informed previously of these details during her job interview and at that time made no objection to working those hours.
Three bargaining units at the Avco Stratford plant represent approximately one-half of Avco's employees and they include Local 376 of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, U.A.W., of which Mrs. Corey was a member. There is a collective bargaining agreement between Avco and Local 376 dated August 4, 1967, which was in effect during the period of time when Mrs. Corey was employed by Avco.
The plaintiff worked from September, 1968, until November, 1968. During this period she had one day off, with pay, for personal reasons. When an employee takes an occasional day off for personal reasons the company does not always know whether the time off is taken for a religious observance. Late in October, 1968, the plaintiff went to see Mr. Marfiak, the manager of the traffic department, told him she was a Seventh Day Adventist and asked permission to leave work before sundown on certain Fridays in order to observe the Sabbath. She testified that Seventh Day Adventists celebrate a Sabbath which begins at sundown on Friday and continues until sundown on Saturday and that it was her own interpretation of her religious obligations which required her to leave work early on Fridays. Marfiak informed her that she could not have the time off as requested. Subsequent to this interview she was advised to see Mrs. Stoddard concerning a job on an earlier shift. Mrs. Stoddard attempted to find a comparable job for her with earlier hours. The plaintiff was in the hospital from November 4 to November 9, 1968, and returned to work on November 10, 1968. On Friday, November 15, 1968, the sun set before 5 p.m. and she again informed Marfiak of the necessity of leaving the plant about 4:45 p.m. She showed him a calendar stating the exact time of sundown in Massachusetts to indicate the times at which she wished to leave the plant each Friday for the next sixteen weeks. He again denied her request. In spite of her failure to obtain permission, the plaintiff left work about thirty-five minutes early on Friday, November 15, 1968. On Monday, November 18, at a meeting with Marfiak, two union stewards and two other men, she was terminated from her employment for insubordination. Following the termination of her employment she filed a grievance pursuant to the terms of the collective bargaining agreement charging that her discharge violated the contract because it was discriminatory on religious grounds. She also filed a complaint with the Commission on Human Rights and Opportunities alleging that the same conduct violated § 31-126(a) of the General Statutes.
The grievance was processed through the various steps and through arbitration by Local 376 which was certified by the National Labor Relations Board to be the collective bargaining agent for the members of the collective bargaining unit to which the plaintiff belonged. Pursuant to the provisions of article IV of the collective bargaining agreement, a hearing was held before the board of arbitration on the plaintiff's grievance on March 27, 1969, at which hearing the plaintiff testified as a witness in her own behalf. Throughout the grievance proceedings the plaintiff was represented by a union representative of Local 376. Following the hearing on March 27, 1969, the board of arbitration issued its award dated April 28, 1969, and documented as American Arbitration Case No. 12 30 0040 69. The board of arbitration denied the grievance in all respects and sustained and confirmed the action of the company in terminating the grievant's employment. The award of the arbitrators was introduced in evidence before the commission.
The hours of work in department 2K during the months of October and November, 1968, were from 8:15 a.m. until 5 p.m. the plaintiff was the only employee in department 2K assigned to the job classification of rate clerk. Since the plaintiff was still in the midst of the training process up to the termination of her employment with Avco and she still required and received considerable supervision, she was not permitted to adjust her scheduled hours of work. Because she was the only rate clerk in the department, she received different substantive training than any other employee in her department. The plaintiff's training was dependent on a rate analyst for supervision but the analyst was not always available, at all times during the day, because he had other responsibilities to perform. No one was working in department 2K prior to 8:15 a.m. The need for the plaintiff to be present until 5 p.m. every day was the same need that existed for every other employee to be available in the event that anything had to be done. During the plaintiff's absence from department 2K, her work and duties were performed by a rate analyst who was in a higher job classification and was paid more than the plaintiff.
Since the basic claim of the plaintiff was that her employment was terminated because of discrimination against her because of her religion, evidence was offered as to the treatment of people of other religious faiths who were employees of the company. Those Jewish employees of Avco who were members of the bargaining unit were not generally permitted to take time off to observe Rosh Hashanah because the bargaining agreement sets forth only specific holidays. Some of these employees may be given the time off without pay, but this is a decision within the discretion of individual departmental supervisors. Yom Kippur is not a listed holiday for employees in the bargaining unit. From time to time employees of avrious religious beliefs requested time off for religious holidays and Avco acceded to certain of such requests on occasion, but the requests were very irregular and not for the same day for a period of sixteen weeks.
On March 19, 1969, Avco wrote to the plaintiff reaffirming a job offer which it claimed previously had been made to her by Mrs. Stoddard in the plant. The job referred to in the letter was for a crib control clerk in department 19S. In contrast to the plaintiff's earlier testimony that Mrs. Stoddard told her there was no job available on an earlier shift, she admitted to testifying before the board of arbitration that Mrs. Stoddard had advised her that there was shop work available on an earlier shift. The plaintiff showed no interest in the position offered to her.
On May 6, 1969, the hearing tribunal of the commission reached a decision in the plaintiff's favor. They concluded that there was, in fact, discrimination in that the plaintiff was deprived of her employment because of her religion and that no 'bona fide occupational qualifications or need' were shown and ordered the company to reinstate her with back pay and allow her to cease work at sundown on Fridays. On appeal to the Superior Court, the defendant urged as it has before the tribunal that the award of the board of arbitration was res judicata and that the hearing tribunal was thereby precluded from directing or ordering the defendant to act in contravention of the arbitration award; that the findings and conclusions of the hearing tribunal were not supported by substantial and competent evidence, and that the tribunal erred in concluding that the defendant had discriminated against the plaintiff because of her religion. The trial court concluded that the findings and conclusions of the board of arbitration constitute collateral estoppel by judgment binding the hearing tribunal and precluding contrary and inconsistent findings on identical issues; that the plaintiff by reason of her election of remedies was foreclosed from seeking a more favorable result than that rendered by the board of arbitration; and that the record of evidence before the tribunal indicates that the conclusions of fact were not supported by substantial evidence. In her appeal to this court the plaintiff assigns error in these conclusions of the trial court.
Article XIII, § 3 of the agreement between Avco and the union provides as follows: 'Neither the Company nor the Union...
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