General Motors Corporation v. Mendicki
| Decision Date | 29 September 1966 |
| Docket Number | No. 8365.,8365. |
| Citation | 367 F.2d 66 |
| Parties | GENERAL MOTORS CORPORATION, Appellant, v. E. Charles MENDICKI, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Lucian Lane, Kansas City, Mo. (John Murphy, Kansas City, Mo., James J. Lysaught, Kansas City, Kan., Tucker, Murphy, Wilson, Lane & Kelly, Kansas City, Mo., and McAnany, Van Cleave & Phillips, Kansas City, Kan., of counsel, on the brief), for appellant.
Bill E. Fabian, Kansas City, Kan. (Blake, Fabian & Fabian, Kansas City, Kan., of counsel, on the briefs), for appellee.
Douglas Stripp, Kansas City, Mo., Allan L. Bioff, and Watson, Ess, Marshall & Enggas, Kansas City, Mo., of counsel, filed a brief as amicus curiae.
Before MURRAH, Chief Judge, and PHILLIPS and HILL, Circuit Judges.
Mendicki brought this action against General Motors Corporation to recover damages for an alleged slander. From a judgment on a jury verdict in favor of Mendicki, General Motors has appealed.
From the latter part of 1949, until April 3, 1963, Mendicki was employed by General Motors at its Buick-Oldsmobile-Pontiac Division Assembly Plant in Kansas City, Kansas, as a pipefitter.
At all times herein pertinent, Mendicki was a member of Local #31 of the International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, AFL-CIO. The International Union will hereinafter be referred to as UAW.
On April 3, 1963, Mendicki was discharged by General Motors for alleged misappropriation of its property, in violation of its Shop Rules, which in part here pertinent provided:
The alleged slander was predicated on a statement made by one of four representatives of General Motors at a grievance procedure meeting of such representatives and two representatives of UAW and two representatives of Local #31, held on August 20, 1963, for the purpose of attempting to adjust a grievance of Mendicki growing out of his discharge before it reached the fourth and last step in the grievance procedures provided for in the bargaining agreement of September 20, 1961, between General Motors and UAW, namely, a hearing on an appeal to an impartial Umpire, on behalf of Mendicki, the procedures provided for in the first three steps not having resulted in an adjustment of the grievance.
About 2:30 p. m. on April 3, 1963, Mendicki requisitioned 50 sheets of sandpaper and placed them in his personal clothes locker, where he kept his street clothes during working hours, his working clothes while off duty, and other personal effects. About 3 p. m. of that day, Dorsey F. Kent, a Labor Relations Representative for General Motors, received information from one of its employees, whose clothes locker was located near to Mendicki's, that Mendicki was going to remove some property of General Motors from the plant. Thereupon, acting under Kent's instruction, another General Motors employee in its Plant Protection Division intercepted Mendicki as he was on his way from the plant and took him to General Motors Labor Relations Office. When thus intercepted, Mendicki had part of such sandpaper in his trousers belt, which sandpaper was concealed from view by an all-weather coat he was wearing. Labor Relations employees charged with plant protection questioned Mendicki and investigated the matter, following which Mendicki was discharged. The facts disclosed by the questioning and the investigation, which were evidenced by testimony of employees of General Motors while testifying as witnesses for Mendicki, were sufficient to justify General Motors concluding that Mendicki intended to take the sandpaper from the plant and appropriate it to his personal use. However, the jury found that the statement on which the alleged slander was predicated was not true.
The established policy of General Motors throughout its plant for violation of Shop Rule 28, on April 3, 1963, and for a long period prior thereto, was to impose a mandatory discharge.
The Kansas City plant was shut down by a strike from September 18 to October 20, 1958. During that period a routine inspection of the plant was made by General Motors Plant Security personnel. In the course thereof, an unusual amount of property, including several types of hand soap, 36 pairs of gloves, a paint spray gun, and other miscellaneous items, was discovered in a locked drawer in a work cart. Mendicki was known to use the cart and drawer and had a key to the drawer. He was suspended and an investigation followed. It disclosed facts giving General Motors good grounds for suspecting Mendicki was misappropriating General Motors property, but it could not be shown that Mendicki had exclusive use of the cart and drawer. Hence, the suspension was lifted and Mendicki was returned to work, with pay for the time he was under suspension. While the results of the investigation were not placed in Mendicki's personnel file and it showed that his record was clear, other records kept and preserved in the Labor Relations Department of General Motors and available to employees in that department fully reflected the results of such investigation.
The agreement between General Motors and UAW, in effect at all times here pertinent, provides a procedure for the adjustment of grievances of employees, consisting of four steps.1
In all grievance proceedings, the employee is represented by representatives of Local #31 or of UAW, who have complete and exclusive authority to act for him. The representatives of UAW have full authority to withdraw an appeal taken under Step Four, in behalf of the employee, to the impartial Umpire.
On April 3, 1963, and for many years prior thereto, it was the practice of UAW in grievance cases involving employees of General Motors, between the time the appeal was taken to the impartial Umpire and the time set for hearing of such appeal by the Umpire, to have its representative visit the plant where the grievance arose, investigate the grievance, and determine whether the appeal should be withdrawn, go on to a hearing before the Umpire, or be disposed of otherwise.2 Since 1953, the function last mentioned has been carried out by a permanent Board of Review, consisting of four full-time International Representatives, three of whom constitute a quorum. See Arbitration and the Law, Alexander, pp. 125-128.
During the period between the taking of an appeal by the Regional Director to an impartial Umpire and the time set for the hearing of such appeal, at all times pertinent in the instant case and for many years prior thereto, it was standard practice, although not specifically provided for in the bargaining agreement, for representatives of UAW and Local #31 and representatives of General Motors to meet and discuss cases pending on appeal to the impartial Umpire and attempt to adjust the grievance. As a result of such conferences, many appeals are disposed of, either by adjustment or the withdrawal thereafter by the representatives of UAW.
Such screening procedures, carried out by UAW and by General Motors, and the efforts of representatives of UAW and of General Motors to adjust grievances pending on appeal, result in the disposition of a very large percentage of the appeals to the Umpire before the hearing stage is reached and only comparatively few are heard and determined by the Umpire. See Arbitration and the Law, Alexander, p. 129.
In the instant case, Mendicki started a grievance procedure under Step One. It was not adjusted under the procedures provided for in Steps One, Two and Three, and on July 1, 1963, the Regional Director gave due notice of an appeal of Mendicki's grievance to an impartial Umpire.
Mr. Bolton, a Personnel employee of General Motors, while appearing as a witness for Mendicki, testified as follows:
At a meeting on August 20, 1963, Bolton, who was then Personnel Director, Mr. Roy Morter, a staff assistant of the Division Personnel Director of Central B-O-P Office in Detroit, Mr. Richard L. Hudson, a Supervisor of Labor Relations, Mr. Ardyth Blaise, a Labor Relations Representative, and Harold J. Fields, a Shift Supervisor of Labor Relations, were present and represented General Motors; Mr. Carl Stevens, International Representative for the Kansas City area of UAW and Mr. Ted Harson, also an International Representative, were present and represented UAW, and Mr. Carl Stinnett and Mr. Clifford Maxwell, employees at the Kansas City plant and members of Local #31, were present and represented the Local. The purpose of the meeting was to adjust grievance cases which had been appealed to the impartial Umpire, but had not yet reached a hearing stage,...
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