Spainhouer v. Western Elec. Co., Inc.

• Decision Date: 13 December 1979
• Docket Number: No. 8372,8372
• Citation: 592 S.W.2d 662
• Parties: 104 L.R.R.M. (BNA) 2980 Anna SPAINHOUER, Appellant, v. WESTERN ELECTRIC COMPANY, INC., Appellee.
• Court: Texas Court of Appeals

Page 662

592 S.W.2d 662

104 L.R.R.M. (BNA) 2980

Anna SPAINHOUER, Appellant, v. WESTERN ELECTRIC COMPANY, INC., Appellee.

No. 8372.

Court of Civil Appeals of Texas, Beaumont.

Dec. 13, 1979.

Rehearing Denied Jan. 10, 1980.

Stephen L. Holley, Dallas, for appellant.

Strasburger & Price, Dallas, for appellee.

KEITH, Justice.

Plaintiff below appeals from an adverse summary judgment entered in her suit against the defendant-employer for damages resulting from her alleged wrongful discharge. She sought damages under the provisions of Tex.Rev.Civ.Stat.Ann. art. 8307c (Supp.1978-79). Plaintiff was injured in the course of her employment with defendant and claimed worker's compensation benefits. She settled her claim with the compensation insurance carrier but when she failed to report for duty as instructed by defendant, she was discharged.

Claiming that she was wrongfully discharged by the defendant, she followed the grievance procedures contained in the contract between her union, Communications Workers of America, and Western Electric, being assisted by the local Union officials.

The Union diligently pursued her claim through the first four steps of the grievance procedure and then wrote to the International representative of the Union recommending that the grievance be pursued through the fifth step binding arbitration as prescribed in the contract. The International Union declined to take such step and so advised the local Union representative. Under the contract, if either party failed to institute arbitration procedures within sixty days, the right to arbitrate was deemed to have been conclusively waived.

The local officials of the Union advised plaintiff of the decision of the International Union not to pursue arbitration but no further action was taken thereon. Instead, she filed suit against the Company alleging that she had been discharged because she had filed a claim for worker's compensation benefits.

Defendant's motion for summary judgment urged the contention that plaintiff had elected to pursue her claim by way of the contractual remedy and had failed to exhaust her contractual remedies. Supporting affidavits were supplied by Union representatives. The Union was not made a party to the suit and no contention is made that the Union or any of its officials failed to discharge with fidelity and diligence every duty it owed to plaintiff.

The gravamen of plaintiff's complaint is that she was wrongfully discharged by the defendant employer. There was a comprehensive bargaining agreement providing an exclusive method of settlement of such disputes and plaintiff availed herself of such contractual provisions. ¹ For reasons which it did not articulate, the International Union refused to take the grievance to the fifth step. A similar refusal was not disapproved in Vaca v. Sipes, noted earlier. It is sufficient to state at the moment that no contention is made that the employee-plaintiff was "prevented from exhausting (her) contractual remedies by the union's Wrongful refusal to process the grievance." (386 U.S. at 185, 87 S.Ct. at 914, emphasis in original). See also, Ostrofsky v. United Steelworkers of America, 171 F.Supp. 782 (D. Maryland 1959), aff'd per curiam, 273 F.2d 614 (4th Cir.), cert. den'd, 363 U.S. 849, 80 S.Ct. 1628, 4 L.Ed.2d 1732 (1960).

The plaintiff chose the Union to process her grievance through the contractual machinery and is now bound by the acts...