Mitchell v. Hercules Incorporated

• Decision Date: 20 March 1976
• Docket Number: No. CV275-20.,CV275-20.
• Citation: 410 F. Supp. 560
• Parties: Wyman B. MITCHELL, Plaintiff, v. HERCULES INCORPORATED, Defendant.
• Court: U.S. District Court — Southern District of Georgia

410 F. Supp. 560

Wyman B. MITCHELL, Plaintiff, v. HERCULES INCORPORATED, Defendant.

No. CV275-20.

United States District Court, S. D. Georgia, Brunswick Division.

March 20, 1976.

COPYRIGHT MATERIAL OMITTED

Robert Lee O'Brien, Jr., John D. Mattox, Jesup, Ga., for plaintiff.

Richard M. Scarlett, Brunswick, Ga. (Bennet, Gilbert, Gilbert, Whittle, Harrell & Gayner), Brunswick, Ga., H. Lane Dennard, Jr. (Thompson, Ogletree & Deakins), Greenville, S.C., for defendant.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

LAWRENCE, Chief Judge.

I

Plaintiff complains that Hercules Incorporated, the defendant, discharged him without cause while employed at its Brunswick, Georgia plant in violation of the Collective Bargaining Agreement between the Company and Union. The suit was initially brought in the Superior Court of Glynn County on December 20, 1974, and was removed to this Court pursuant to 28 U.S.C. § 1441 and 29 U.S.C. § 185. The Union is International Association of Machinists and Aerospace Workers, Lodge Number 839. It is not a party to this action.

The complaint alleges that plaintiff was wrongfully discharged on the ground that he was no longer physically able to perform his work as a Machinist First Class.¹ In the alternative, Mitchell seeks recovery of medical expenses, loss of wages and general damages from Hercules for injuries "received while on his job and in the performance of his work".

Judge Alaimo who was originally assigned to the case recused himself after learning that he was disqualified. At that time a motion was pending for reconsideration of his Order overruling the defendant's motion for summary judgment based on failure of the Union to exhaust the grievance remedies in the Collective Bargaining Agreement. The Order denying the motion of Hercules was vacated by Judge Alaimo. The matter is now before me de novo on the record as it presently stands.

II

Plaintiff contends that the failure by his Union to request arbitration of his unlawful discharge was a breach of its statutory duty of fair representation of employees and that he is thereby relieved of the necessity of resorting to the arbitration procedure.

"The only claim that I have," Mitchell testified, is that "the Union did not take a thorough investigation of the over-all situation and that upon asking for advice on what I should do, I was told to get myself a personal attorney." Deposition, p. 7. The Union had declined to carry the claim to arbitration after it had come before the Grievance Committee. "The Union representative told me that this was as far as the Union could take this procedure, and it was his advice to me to get me a personal attorney." Mitchell deposition, pp. 12, 7-8.

Article IX, Section 2, A of the Bargaining Agreement provides that in the case of a grievance the employee shall first discuss the matter with his immediate superior. If the employee wishes to carry the grievance further, it must be placed in writing and submitted to the immediate superior. Within three days thereafter the latter, the employee and his steward shall meet with the maintenance supervisor and plant engineer in an attempt to settle the matter. If unsuccessful, the complaint is referred to the Grievance Committee and the plant manager or his representative.

Grievances involving the discharge of any employee shall be referred directly to the Grievance Committee and thereafter be subject to the grievance procedure provided in the Agreement. If no agreeable solution is reached, either party may submit the matter to a Board of Arbitration composed of three arbitrators selected.² The Union agrees that "any employee shall have the right to present grievances . . . to the Management and to have such grievances adjusted without the intervention of the Union. . . ." Article IX, Section 2, H.

III

Federal labor policy favors the use of arbitration of grievances under collective bargaining contracts. "Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement." 29 U.S.C. § 173(d). "The arbitrators under these collective agreements are indispensable agencies in a continuous collective bargaining process." United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424, 1427.

Jurisdiction under § 301 of the Labor-Management Act extends to suits to vindicate individual employee rights arising from a collective bargaining contract. Smith v. Evening News Association, 371 U.S. 195, 200, 83 S.Ct. 267, 270, 9 L.Ed.2d 246, 251; Hines et al. v. Anchor Motor Freight, Inc., et al., ___ U.S. ___, 96 S.Ct. 1048, 47 L.Ed.2d 231 (44 LW 4299, 4301). However, "employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress. . . A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it." Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53, 85 S.Ct. 614, 616, 13 L.Ed.2d 580, 583. The requirement of exhaustion of grievance procedures before bringing an action under 29 U.S.C. § 185(a) is firmly settled. "If the collective bargaining agreement contemplates the use of a grievance procedure to protest a specific employer action, an employee may not sue for breach of contract on the basis of that action without first resorting to the procedure." Boone v. Armstrong Cork Company, 384 F.2d 285, 288 (5th Cir.); Harris v. Chemical Leaman Tank Lines, Inc., 437 F.2d 167 (5th Cir.).

An exception to the exhaustion requirement exists where the union as bargaining agent has failed to fairly represent the employee in the handling of his grievances. ". . . The wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee's grievance." Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842, 855.³ "The lesson taught by Vaca v. Sipes, 386 U.S. 171 87 S.Ct. 903, 17 L.Ed.2d 842 64 LRRM 2369 (1967), is that it is not generally the role of the courts to review whether employees should have been discharged under the collective bargaining agreement. The courts limit their involvement to those cases wherein the Union has acted in bad faith so as to have nullified the very intention of the parties that the grievance procedure determine the claim." McFadden v. Ford Motor Co., 89 LRRM 2398 (E.D., Mich.).⁴

IV

On February 12, 1974, plaintiff's employment was terminated by Hercules. The last time Mitchell had worked was on November 9, 1973. The discharge was apparently precipitated by a letter to the defendant-employer dated January 17, 1974, from a neurosurgeon of the employee's own selection. He was examined on January 11th. During a two-day period of hospitalization at Jacksonville, Dr. Thomas R. Boulter whose diagnosis was "degenerative lumbosacral spine, L5-S1" concluded that there was "probably a chronic low back sprain problem" but without evidence of disc disease. He advised the patient to avoid heavy lifting and twisting movements. "Undoubtedly, at this relatively young age if he persists in a stressful back activities he will only continue to plague us with a chronic back syndrome."⁵

Upon his discharge, Mr. Mitchell initiated through his Union a grievance proceeding against Hercules. It was processed through the third step, that is to say, through the grievance committee/plant manager meeting which was attended by the employee. Apparently the first three stages of the grievance process took place in February, 1974. Mitchell obtained no relief. For reasons not appearing, the Union declined to take the grievance to arbitration. Plaintiff did not individually pursue the right to arbitrate his grievance.

I am of the view that the Collective Bargaining Agreement confers upon an employee the individual right to request arbitration of his grievance. Article IX, Section 2, H, provides, as noted, that the Union agrees that "any employee shall have the right to present grievances . . . to the Management and to have such grievances adjusted without the intervention of the Union. . . ."⁶ Under A of that Article "either the procedure set forth below in Paragraphs B-G, or the procedure set forth in Paragraph H, shall be followed in the handling of all grievances". I do not read this as meaning that "A" and "H" of Section 2 are mutually exclusive; that is to say, that an employee can avail himself of only one remedy and that the grievance once having been placed in the Union's hands and initiated cannot become individual prosecution by the employee himself at the arbitration stage of the controversy.

Nor does Hercules so construe the contract. Arbitration clauses in collective bargaining contracts are highly favored and are to be broadly and liberally construed. It has been said that they should be given the most liberal construction compatible with the intent of the parties as expressed therein. 51A C.J.S. Labor Relations § 426.

In Vaca v. Sipes, apparent significance was attached to the fact that the union had "sole power under the contract to invoke the higher stages of the grievance procedure". 379 U.S. at 185, 87 S.Ct. at 914, 17 L.Ed.2d at 855 (italic supplied). The bargaining agreement in Mikelson v. Wisconsin Bridge and Iron Company, 359 F.Supp. 444 (W.D., Wis.) provided that after the three initial steps of the grievance procedure either of the "parties" may request arbitration. The District Court stated that "since only the union and the company are parties to the agreement, the plaintiff had no power to commence arbitration"...