Jenkins v. Wm. Schluderberg-T. J. Kurdle Co.

• Decision Date: 23 July 1958
• Docket Number: No. 293,SCHLUDERBERG-T,293
• Citation: 144 A.2d 88,217 Md. 556
• Parties: Josephine JENKINS v. WM.J. KURDLE CO.
• Court: Maryland Court of Appeals

Page 556

217 Md. 556

144 A.2d 88

Josephine JENKINS v. WM. SCHLUDERBERG-T. J. KURDLE CO.

No. 293.

Court of Appeals of Maryland.

July 23, 1958.

I. Duke Avnet, Baltimore (Avnet & Avnet, Baltimore, on the brief), for appellant.

Earle K. Shawe and William J. Rosenthal, Baltimore (Sidney J. Barban, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

BRUNE, Chief Judge.

This is an appeal by Josephine Jenkins, a former employee of Wm. Schluderberg-T. J. Kurdle Co., appellee, from an order and judgment of the Superior Court of Baltimore City, sustaining without leave to amend, appellee's demurrer to her declaration. Her suit is for damages for her allegedly wrongful discharge from employment by the appellee in violation of a collective bargaining agreement between the union of which she was a member, the Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 149, A.F.L.C.I.O. (the 'Union'), and the appellee (sometimes referred to below as the 'Employer'). Her declaration states that she had been an able and satisfactory employee of the appellee for fourteen years prior to her discharge; that the Union failed and refused to arbitrate her grievance although she requested it to do so; that the Union acted in a 'discriminatory, wilful, and arbitrary manner toward the plaintiff, which accounted for its failure and refusal to arbitrate plaintiff's discharge'; and that the Employer refused to comply with her request for reinstatement and back pay.

The appellee's demurrer was based chiefly on two theories: (1) that the collective bargaining agreement barred the plaintiff from maintaining this suit for wrongful discharge (though this was not explicitly stated as a ground of demurrer); and (2) that state courts are precluded by the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., from asserting jurisdiction in such an action. At the hearing on the demurrer, the appellee did not urge the second point, and on appeal it has not relied on this point, which we assume has been abandoned. ¹ The trial court sustained the appellee's demurrer on the first theory, and we shall consider solely the correctness of this ruling.

The collective bargaining agreement between the Union and the Employer is an elaborate document covering all the usual aspects of labor-management relations. Section 1(B) of the agreement provides that 'No employee shall be unjustly discharged or laid off.' The appellant claims that she was unjustly discharged in that the employer has committed a breach of the agreement.

There no longer seem to be any doubt that in certain situations an individual employee may sue his employer for the breach of a collective bargaining agreement. Several theories have been advanced to explain this result. ² One view is that although the agreement gives no rights to individual workers, whenever a man goes to work, his individual contract incorporates the union agreement as a local custom or usage so that every breach of the collective agreement is also a breach of the individual contract of employment. A second theory holds that a collective bargaining agreement is a contract with the employer as promisor, the union as promisee, and the employees as third party beneficiaries. A third view is that the collective bargaining agreement is like a trust, with the union holding the employer's promises in trust for the benefit of the individuals. Under any of these theories, the individual may sue the employer for infringement of his individual rights.

What are these 'individual rights' for which he can sue? Certainly, promises relating to such things as union security, recognition, deduction of dues, the use of bulletin boards, and access to the plant run to the union and are not individual rights. On the other hand, it is felt that claims regarding wages, seniority, and wrongful discharge peculiarly affect the individual and for them he should be able (at least in the absence of some bar under the agreement) to bring an individual action. With a discharge, for example, it is his job that is at stake and his income. Writing specifically with regard to discharge cases, Professor Cox has stated, 'The great weight of authority sustains the individual's right of action.' 'Rights under a Labor Agreement', 69 Harv.L.Rev. 601, 647 (1956). And see cases cited in Annot., 18 A.L.R.2d 352, 367 (1951). See, also, Association of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 348 U.S. 437, 75 S.Ct. 489, 99 L.Ed. 510.

Naturally, the employer does not wish to be harassed with a lawsuit each time an employee has a grievance regarding wages, seniority, or wrongful discharge. Nor does he want to incur the risk of a strike because the union may sympathize with a disgruntled employee. Hence the collective bargaining agreement usually provides for a detailed procedure through which all grievances are channeled. In the instant case, the grievance procedure, we understand, is of a rather usual type. It is as follows:

'Should any difference arise between the Union or employee members, and the Company, as to the application and interpretation of this Agreement, there shall be no strike, stoppage or suspension of the work on the part of the Union or its members, or lockout on the part of the Company on account of such conditions. The following procedure shall be followed in settling such difference:

'(A) Complaints or Grievances presented by the Union and/or employees:

'(1) Employee or Shop Steward or both shall take up question with the foreman.

'(2) In the event a satisfactory conclusion is not reached, question may be taken up with the Sectional Superintendent.

'(3) In the event a satisfactory conclusion is not reached, question may be taken up with Plant Superintendent.

'(4) If the Complaint or Grievance is not satisfactorily determined by steps 1, 2, and 3 above, representatives of the Company Management shall meet with a Grievance Committee, consisting of not more than six (6) employees selected by the Union and/or its Business Representative, at the Union's option, to discuss such complaint or grievance in an attempt to resolve the same.

'(5) Any such complaint or grievance not satisfactorily settled by step 4 above, shall upon the application of either the Company or the Union, be referred to an Impartial Arbitrator to be selected by the mutual agreement of both parties. If the parties shall fail, within 10 days after notice for arbitration, to agree upon an Impartial Arbitrator, such arbitrator shall be appointed by the then Chief Judge of the Supreme Bench of Baltimore City. The decision of the Impartial Arbitrator so selected or appointed shall be final and conclusive upon the Company, the Union and the employees.'

The general rule is that before an individual employee can maintain a suit, he must show that he has exhausted his contractual remedies:

'This rule, which is analogous to the rule requiring the exhaustion of administrative remedies as a condition precedent to resorting to courts * * * is based on a practical approach to the myriad problems, complaints and grievances that arise under a collective bargaining agreement. It makes possible the settlement of such matters by a simple, expeditious and inexpensive procedure, and by persons who, generally, are intimately familiar therewith. * * * The use of these internal remedies for the adjustment of grievances is designed not only to promote settlement thereof, but also to foster more harmonious employee-employer relations.' Cone v. Union Oil Co., 1954, 129 Cal.App.2d 558, 564, 277 P.2d 464, 468.

Thus, if the employee refuses to take even the initial step of requesting the processing of the grievance, he will not be granted relief in the courts. The difficulty arises when he presents his grievance to the union and he is dissatisfied with the way in which the union handles his case. There are not many cases on this issue, but the trend seems to be that he cannot sue the employer if he does not like the result of the union efforts at negotiation. See Cox, 'Individual Enforcement of Collective Bargaining Agreements', 8 Lab.L.J. 850 (1957). ³

However, that is not the case which confronts us. For purposes of a ruling on demurrer, we must accept as true the facts in appellant's declaration. The Employer has not elected to press any challenge to the allegations of wrongful discharge on its part and of wilful, arbitrary and discriminatory conduct on the part of the Union in failing and refusing to carry the plaintiff's grievance to arbitration, on the ground that these allegations are not sufficient as statements of fact, but constitute mere conclusions of the pleader. Cf. Conrad v. City of Takoma Park, 208 Md. 363, 118 A.2d 497; Lord Calvert Theatre, Inc., v. Mayor and City Council of City of Baltimore, 208 Md. 606, 119 A.2d 415; Marranzano v. Riggs Nat. Bank, 87 U.S.App.D.C. 195, 184 F.2d 349. It should also be noted that the plaintiff's declaration makes no allegations of compliance with steps 1, 2, 3 or 4 of the grievance procedure, but the defendant makes no point of that either. The case thus comes to us on the bald allegations of wrongful discharge by the employer, arbitrary, etc. refusal of the Union to take up the cudgels of arbitration on behalf of the discharged employee, and the terms of the collective bargaining agreement. The heart of the Employer's contention is that the discharged employee 'is limited in contesting the validity of her discharge to the remedies specified in the contract,' that 'only the Union or the Company [Employer] can invoke arbitration and 'where the Appellant's bargaining representative has refused to arbitrate her discharge, the Appellant is bound by that determination [and] has no right to * * * maintain an individual action at law against the [Employer].'

The collective bargaining agreement in the instant case does not contain any express,...