Duckstein v. General Dynamics Corp., Fort Worth Div.
| Decision Date | 21 September 1973 |
| Docket Number | No. 17429,17429 |
| Citation | 499 S.W.2d 907,73 Lab.Cas.P 14 |
| Parties | 86 L.R.R.M. (BNA) 2431, 73 Lab.Cas. P 14,288 Henry G. DUCKSTEIN, Appellant, v. GENERAL DYNAMICS CORPORATION, FORT WORTH DIVISION, Appellee. |
| Court | Texas Court of Appeals |
James M. Bond, Fort Worth, for appellant.
McBryde & Bogle and John McBryde, Fort Worth, for appellee.
The appeal is from a summary judgment granted on motion of the defendant General Dynamics Corporation, Fort Worth Division, against the plaintiff Henry G. Duckstein.
We affirm.
Plaintiff's allegations were that on May 27, 1967 he was a member of the Union which had a contract with the defendant affecting his interests as an employee of the defendant company; that at such time he went to Mexico on a vacation, upon termination of which he was to report back to work at 3:45 P.M. on June 6, 1967; that shortly prior to the time he was due to return to Fort Worth, Texas, his place of employment, he had a sudden attack of gout and that about June 4, 1967 his toenails became infected so that it was the advice of a Dr. Calderon, of Saltillo, Mexico, that his toenails should be surgically removed. Further, that on June 6, 1967 he sent a telegram to the defendant company reporting absence from work because of illness; that he visited the Hospital Civil de Saltillo in Saltillo, Mexico; that on June 8, 1967 he checked into the hospital and the following day had his toenails surgically removed.
Additional allegations were that on June 23, 1967 plaintiff was back home in Fort Worth and he learned that on June 6, 1967 the defendant company had sent a telegram to him at his Fort Worth address purporting to inform him that if he did not report for work by 7:00 A.M. on 8 June 1967 or furnish written medical proof of inability to do so his employment by defendant would be terminated. He also learned that on June 15, 1967 a telegram had been sent to his home address, which read: 'This is to advise that you are being terminated effective 8 June for failure to furnish written medical proof of inability to work or report to work as instructed.' No one had been present at plaintiff's home to receive them when the telegrams were sent. Thereafter plaintiff notified his Union of what had happened, but he could not immediately get proof from Mexico; further, that it was not customary for a sick employee to have to furnish a doctor's certificate if he missed only a few days of work.
By deposition taken of plaintiff, a part of the record before the court on the defendant's Motion for Summary Judgment, it was established that he elected to report to the machinery provided by the contract between plaintiff's Union and the defendant company to have application in instances of grievance initiated against the company. It is undisputed that plaintiff caused the grievance procedure to be initiated. Testimony of plaintiff relative to subsequent action by him established that the processing of his grievance was, as a matter of law, ratified and adopted by him until such processing reached what is termed by the contract as the third stage. At such time memorandum agreed to by the Plant Grievance Committee representing the plaintiff's Union and a representative of the defendant company was made to reflect disposition of plaintiff's case as follows:
On December 22, 1970 plaintiff filed suit against the defendant company in a District Court of Tarrant County, Texas. He plead the contract existent at all material times between his Union and the defendant as a basis for his cause of action for damages for breach of such contract on the part of the defendant company. He alleged damages in the amount of $49,250.00 in consequence of wrongful discharge from employment.
In the trial court the defendant company moved for summary judgment. Upon the hearing a take-nothing summary judgment was rendered in behalf of the defendant. The plaintiff appealed, and there was submission of the case to this appellate court.
On submission it appears from the arguments of both parties that there is no question but that the leading case applicable to the question of when a litigant in position of the plaintiff is entitled to maintain his cause of action in a suit filed for that purpose is Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).
Beginning at page 184 of 386 U.S., page 914 of 87 S.Ct. and page 854 of 17 L.Ed.2d of the opinion in Vaca v. Sipes is to be found the pertinent law applicable here. Pertinent paragraphs begin with that reading 'However, if the wrongfully discharged employee himself resorts to the court . . ..' Pertinent paragraphs conclude with citations of authorities, as follows: 'See generally Blumrosen, The Worker and Three Phases of Unionism: Administrative and Judicial Control of the Worker-Union Relationship, 61 Mich.L.Rev. 1435, 1482--1501 (1963); Comment, Federal Protection of Individual Rights under Labor Contracts, 73 Yale L.J. 1215 (1964). . . .'
The foregoing, in Vaca v. Sipes, states the general rule: Grievance procedures contracted upon by the employer and the union which represents the employee are the employee's exclusive method by which he must seek redress if so provided by the Company-Union Contract and the employee may not maintain a suit to litigate his controversy against the employer such grievance procedures have been exhausted. The court also proceeds to demonstrate when the rule will be to the contrary because of a breach of the contract by the employer or a breach of duty owing to him by the union to fairly prosecute his grievance. In light thereof we consider the situation in the instant case in a test to decide whether, within contemplation of law, there is reason to depart from the general rule so as to permit plaintiff to maintain his suit against the employer for damages for wrongful discharge from employment without having exhausted grievance procedures so contracted. Actually this being an appeal from a summary judgment granted the defendant, the test is whether defendant's proof established as a matter of law that plaintiff cannot by evidence make out a prima facie case.
For the purpose of arriving at answer we may, and will, presume that the defendant had wrongfully discharged plaintiff. Thereupon the plaintiff invoked the quasi-judicial process contractually provided by the contract agreed upon by and between the union of which he was a member and the defendant which was his employer. There would have been no cause of action for wrongful discharge but for the agreement mentioned; it is solely because there was such, and because of the provisions of that contract, that discharge of the plaintiff from his employment might be said to have given rise to such character of action.
The contract, in its essential particulars, provided that the employer and the union might settle a grievance filed on behalf of an employee at any of four 'stages', the last stage being arbitration procedure in the event the dispute occasioning prosecution of a grievance not be settled at stage three or some earlier stage; and further provided that if the grievance be not certified beyond stage three within 30 days after there is a decision thereat the grievance should be considered closed on the basis of such decision. Already stated was the decision and settlement of plaintiff's grievance at such stage of the grievance procedure, to-wit: ...
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