Crocker v. Synpol, Inc.

• Decision Date: 18 June 1987
• Docket Number: No. 09,09
• Parties: 111 Lab.Cas. P 11,177 Mark CROCKER, Appellant, v. SYNPOL, INC. and Dr. Houston G. Hamby, Appellees. 86 232 CV.
• Court: Texas Court of Appeals

Page 429

732 S.W.2d 429

111 Lab.Cas. P 11,177

Mark CROCKER, Appellant, v. SYNPOL, INC. and Dr. Houston G. Hamby, Appellees.

No. 09 86 232 CV.

Court of Appeals of Texas Beaumont.

June 18, 1987.

Rehearing Denied July 15, 1987.

Dale K. Hanks, Townsley, Bush, Lewis & Ramsey, Beaumont, for appellant.

T.J. Wray, Fulbright & Jaworski, Houston, for appellees.

OPINION

BROOKSHIRE, Justice.

Appeal from the granting of a joint Motion for Summary Judgment. The trial court granted Dr. Houston G. Hamby's Motion for Summary Judgment and Synpol, Inc.'s Motion for Summary Judgment.

The background of the dispute arises out of the termination of Mark Crocker's employment with Synpol, Inc. After certain meetings between Crocker, his union, and Synpol, Crocker requested and was allowed to resign his employment.

Before he resigned from his employment, the Appellant was confronted with some laboratory tests by way of urinalysis. These laboratory results purportedly reflected his use and consumption of marihuana. The use of marihuana was contrary to the policies of Synpol, Inc. However, it is interesting to relate how Crocker arrived at the clinic or office of Dr. Houston G. Hamby. Crocker had originally gone to a first aid station that was presided over by a nurse. Crocker said that he had injured his back on the job and was seeking some relief from the discomfort and pain of his job-incurred back injury. Then, the nurse decided to send him to the office of Dr. Hamby, who was a physician under a contractual arrangement with Synpol, Inc., and two other corporate employers. Dr. Hamby reported the findings of the urinalysis test, reflecting some trace of marihuana, to Synpol. The results were given to Synpol at once.

Thereafter, several conferences were held among Synpol, Inc., the local Oil, Chemical and Atomic Workers' Union representing Crocker, and Crocker himself taking part. Crocker's employment was covered and governed by a collective bargaining contract between Synpol, Inc., and his own local union, being O.C.A.W. Local 4-228. The local union appointed a committee that consulted with Crocker. Some member of the committee asked the Appellant if he had smoked marihuana on the day of the giving of the urine specimen and the Appellant replied "No". Apparently, some other member of the committee asked him how long it had been since the Appellant had smoked marihuana and Crocker then replied that it was "between a week to two weeks".

Then Crocker testified that he was told by a member of his own local union's committee:

"He said, 'Now, this doesn't really mean that you're guilty or nothing.' I said, 'Well, I know I haven't smoked--' I thought that it was too long for it to be in my system. He said, 'Well, with this evidence, you don't stand very much of a chance of proving. It's your word against their scientific facts, plus your record showing that you have already gotten busted for marijuana one time. With this evidence, we just really don't think you have any chance, whatsoever, of beating arbitration.' "

But the union was willing to take the matter to arbitration. Mark Crocker testified that he was with the union committeemen about 20 to 30 minutes. Crocker further testified that the people on the committee appeared to be sympathetic to him. The matter was never taken to arbitration or to a grievance procedure.

Apparently, after Crocker decided to terminate his employment by way of a resignation, he had a further meeting with the union committeemen. The Appellant was also familiar with the grievance procedure and knew about it. He said that he did not have any reason to believe that any of the members of the union committee had any personal animosity towards him. The Appellant decided not to pursue the grievance and arbitration clauses of the collective bargaining agreement that covered his employment. The local union is not a party to this appeal, nor was it a party in the trial court.

The Collective Bargaining Contract

Article XI sets out, in detail, the "Grievance & Arbitration Procedure". Article XVIII, entitled "Physical Examination" provides, inter alia, concerning "Periodic Check Ups" that:

"1. c. Employees will cooperate in submitting to annual physical examinations as scheduled by the Company. Such examinations will be at Company expense."

Also, concerning "Lay Offs", the contract provides:

"1. a. In the event it becomes necessary to lay off employees, each employee will be required to submit to a physical examination at Company expense prior to the effective date of layoff."

Also, 2. c. provides:

"For the purpose of determining an employee's physical condition and fitness for performing his regular job or any to which he may be assigned, during any period of employment, the Company may require a check examination by either the Company physician or any other reputable physician selected and paid by the Company."

2. d. provides:

"If an employee is unwilling or refuses to accept the physician's verdict of any physical examination, provided for in Section 2 of this Article, he may select and be examined by any reputable physician and present to the Company a certificate attesting to the results thereof; this examination to be paid for by the employee...."

Initially, Crocker went to the nurse on duty at the first aid station, complaining of an injury to his back. Then, at the request of the nurse on duty, the company's manager of health and safety observed Crocker for several minutes and the manager concluded that Crocker appeared to be more sleepy and drowsy than hurt. Thereafter, the manager of safety suggested that a drug screen test be made. He suggested the same to Dr. Hamby. This communication to Dr. Hamby was by telephone. Mildred Holmes, the company nurse, had previously called Mr. Johnson, the safety manager, to come look at Crocker. After observing Crocker, he instructed the nurse to call Dr. Hamby and send Crocker over to find out what was wrong. A security guard accompanied the Appellant to Dr. Hamby's office, which was at another location.

We conclude that the trial judge was correct in granting the Motion for Summary Judgment in favor of, and filed by, Synpol, Inc. We determine that Crocker's claim for wrongful discharge against Synpol, Inc., was preempted by the federal Congress under the federal labor law. It is clear and, indeed, uncontradicted and undisputed that the Appellant was employed by Synpol, Inc., under an appropriate collective bargaining unit. This collective bargaining unit was covered and governed by a collective bargaining contract. The collective bargaining contract contains specific provisions dealing with physical examinations required by the company. This collective bargaining agreement also regulates the discharge of employees. This same agreement contains a grievance and arbitration procedure under which an employee may proceed when alleging an unjust action by the company, especially a termination or a resignation as an alternative to firing.

The U.S. Congress has mandated and has maintained a uniform, national labor policy. In order to effectively maintain such a uniform national labor policy, the Congress has preempted state court proceedings that threaten to interfere with the congressional labor policy. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). Regardless of whether his cause of action is described by the Appellant as being one in contract or one in tort, if the determination of a pleaded claim under State law is, in a meaningful way, substantially dependent upon an analysis, interpretation and construction of the terms of the collective bargaining agreement, such claim is preempted by the federal labor law. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). It is undisputed, under this record, that the Appellant did not exhaust the grievance procedures established in the collective bargaining agreement prior to bringing this state court action. Indeed, he did not start a grievance procedure.

In Allis-Chalmers Corp., supra, an employee had allegedly sustained a non-occupational injury to his back. The employee brought a Wisconsin state court action, sounding in tort, against his employer and its insurer in which he alleged bad faith in the handling of his claim for his back injury which had its basis in a disability plan included in a collective bargaining agreement. He sought damages. The employee did not exhaust or follow through with the grievance procedure established in the collective bargaining agreement. The case was appealed after a ruling on cross-motions for summary judgment.

The trial court, as well as the Wisconsin court of appeals, ruled in favor of the employer and the insurer holding that the employee had stated a claim under Sec. 301 of the Labor Management Relations Act, 29 U.S.C.A. Sec. 185 (1973). It was further concluded, in the alternative, that even if the claim was deemed to arise under state law, it was preempted by the federal labor law. The Wisconsin Supreme Court reversed.

The Supreme Court of the United States granted a writ of certiorari and, in a unanimous opinion of the eight participating justices, held that when a resolution of a state law claim is substantially dependent on the analysis of the terms of a collective bargaining agreement then that claim must be treated either as a Section 301 claim or dismissed as preempted by the federal labor law. The United States Supreme Court's ruling was further to the effect that the complainant, Lueck, should have had his complaint dismissed for failure to make use of the grievance procedure.

We conclude that the case sub judice is more substantially dependent on analysis of the terms of the collective bargaining contract than a tort action for the bad faith handling of a non-occupational back injury under a disability plan. The salient facts in our case deal directly with the termination of...