Newman v. AVCO CORP.-AEROSPACE STR. DIV., NASHVILLE, TENN., Civ. No. 5258.

• Decision Date: 10 June 1970
• Docket Number: Civ. No. 5258.
• Citation: 313 F. Supp. 1069
• Parties: Robert F. NEWMAN v. AVCO CORPORATION-AEROSPACE STRUCTURES DIVISION, NASHVILLE, TENNESSEE, and International Association of Machinist and Aerospace Workers, Aero Lodge No. 735, Nashville, Tennessee.
• Court: U.S. District Court — Middle District of Tennessee

313 F. Supp. 1069

Robert F. NEWMAN v. AVCO CORPORATION-AEROSPACE STRUCTURES DIVISION, NASHVILLE, TENNESSEE, and International Association of Machinist and Aerospace Workers, Aero Lodge No. 735, Nashville, Tennessee.

Civ. No. 5258.

United States District Court, M. D. Tennessee, Nashville Division.

March 26, 1970.

Order June 10, 1970.

Avon N. Williams, Jr., Nashville, Tenn., and Jack Greenberg, Robert Belton and William B. Turner, III, New York City, for plaintiff.

Cecil D. Branstetter, and Carrol D. Kilgore, Branstetter, Moody & Kilgore, Nashville, Tenn., for defendant Aero Lodge No. 735.

William Waller, Waller, Lansden, Dortch & Davis, Nashville, Tenn., and Naphin, Sullivan & Banta, Chicago, Ill., for defendant Avco Corp.

MEMORANDUM

FRANK GRAY, Jr., District Judge.

Plaintiff, Robert F. Newman, brought this class action pursuant to Title VII of the Civil Rights Act of 1964 (hereinafter Title VII) against defendants, Avco Corporation—Aerospace Structures Division (hereinafter Avco) and the International Association of Machinists and Aerospace Workers, Aero Lodge No. 735 (hereinafter the Union), alleging racial discrimination. The Union has made assertions in the Third Defense in its Answer, which assertions the court construes to constitute a motion for summary judgment. Avco has made a formal motion for summary judgment supported by a brief. Plaintiff has not filed a brief in opposition thereto.

Plaintiff, a Negro employee of Avco and member of the Union, was discharged from Avco on February 1, 1966, allegedly for failure to perform properly a newly assigned job involving the lifting of stoves from a conveyor belt at specified intervals. On February 2, 1966, pursuant to the collective bargaining agreement (hereinafter the Agreement) between Avco and the Union, a grievance protesting his discharge was signed by plaintiff and filed with Avco by the Union, plaintiff's sole collective bargaining agent. Plaintiff sought reinstatement "in appropriate employment which he is able to perform in the Company's Plant," and sought an award for back pay and other expenses "occasioned by his wrongful discharge."

The Union alleged that Avco knowingly placed the plaintiff in a job he was incapable of performing because of injuries received in a prior automobile accident, that plaintiff was not allowed the proper training time required by the Agreement, and that because of plaintiff's thirteen years of service, Avco should have placed him on a job within his capabilities. On February 7, 1966, plaintiff filed an Amendment to Grievance in which he averred that his discharge was "unjust and racially discriminatory, in violation of the Union Agreement effective June 21, 1965, and also in violation of Title VII of the Civil Rights Act of 1964." Also, in his amendment, plaintiff requested that his personal attorney be allowed to participate in the gievance hearing in his behalf, which request was allowed.

In accordance with the Agreement which provided that "the decision of the Arbitrator shall be final and binding upon the Company and the Union," an arbitration hearing was held on April 21 and 22, 1966. At the outset the parties stipulated that they were properly before the Arbitrator. Plaintiff was represented by the Union and by his personal attorney, and all parties were accorded the opportunity to be heard and to adduce the testimony of such witnesses as they desired, subject to full cross-examination. Upon conclusion of the hearing, plaintiff's personal attorney filed a post-hearing Individual Brief of Grievant reiterating plaintiff's allegations as to racial discrimination. On June 28, 1966, the Arbitrator rendered his opinion and held that the plaintiff was dismissed "for failure to perform his job," and made the express finding on the charge of racial discrimination that "the sole cause for discharge was grievant's failure to perform satisfactorily."

On May 2, 1966, seeking individual relief, plaintiff filed a charge with the Equal Employment Opportunity Commission (hereinafter EEOC) which found reasonable cause to believe that Avco and the Union were in violation of Title VII. Thereafter, upon notification by the EEOC of failure to achieve voluntary compliance with Title VII through conciliation, the plaintiff brought the present action "on behalf of himself and all other Negroes who are similarly situated."

Avco moves for summary judgment on the grounds that, first, in pursuing the collective bargaining procedure to a final conclusion before the Arbitrator, plaintiff made a binding election of remedies which forecloses his pursuit of individual relief in this action, and second, that in seeking general relief on behalf of the class, plaintiff raises issues in his complaint which were not raised in the charge filed with the EEOC and, therefore, the class action is barred. The Union also asserts that the plaintiff's pursuit of the collective bargaining procedure to its final conclusion before the Arbitrator constituted a binding election of remedies. The court is of the opinion that the Union's assertion and the first of Avco's grounds are well taken and disposive of this action and, therefore, does not consider the second of Avco's grounds.

Avco relies primarily on the case of Washington v. Aerojet-General Corporation, 282 F.Supp. 517 (C.D.Cal. 1968), in support of its first ground. In ...