Trombetta v. Detroit, Toledo & Ironton R. Co.

• Decision Date: 23 February 1978
• Docket Number: Docket No. 77-1335
• Parties: , 115 L.R.R.M. (BNA) 4361 Frank TROMBETTA, Plaintiff-Appellant, v. DETROIT, TOLEDO & IRONTON RAILROAD COMPANY and C. P. Turner, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 385

265 N.W.2d 385

81 Mich.App. 489, 115 L.R.R.M. (BNA) 4361

Frank TROMBETTA, Plaintiff-Appellant, v. DETROIT, TOLEDO & IRONTON RAILROAD COMPANY and C. P. Turner,

Defendants-Appellees.

Docket No. 77-1335.

Court of Appeals of Michigan.

Feb. 23, 1978.

Rehearing Denied April 3, 1978.

Released for Publication May 10, 1978.

Barbara, Ruby, Domol, Bowerman, Miller & Aaron, P. C. by Larry K. Bowerman, Detroit, for plaintiff-appellant.

Joseph A. Sullivan, Detroit, for Detroit, Toledo & Ironton R. Co.

John J. Morad, Southfield, for Turner.

Before CAVANAGH, P. J., and J. H. GILLIS and RILEY, JJ.

J. H. GILLIS, Judge.

Plaintiff commenced this action on April 13, 1976, against defendants, Detroit, Toledo & Ironton Railroad Co. and C. P. Turner, ¹ alleging that defendants had wrongfully discharged him from their employ. Plaintiff did not assert rights arising under any written contract but maintained that his discharge violated the public policy of this state in that he was terminated after refusing to alter pollution control reports. These reports were filed with the state ² to insure that defendant company was in conformity with the state pollution control standards.

On August 20, 1976, defendants filed a motion for summary judgment alleging that plaintiff had (1) failed to state a claim upon which relief could be granted under GCR 1963, 117.2(1), and (2) failed to present a genuine issue of material fact for litigation under GCR 1963, 117.2(3).

Affidavits were attached to the motion stating that plaintiff lost his position due to insubordination, and in reality had only been demoted. Plaintiff responded to defendants' motion with a brief in support of his position but failed to attach any affidavits, depositions or documentary evidence to contradict the exculpatory statements contained in the affidavits attached to defendants' motion.

The trial court granted defendants' motion for summary judgment on both grounds after a hearing on October 4, 1976.

Approximately one month later, plaintiff moved the trial court for a rehearing in light of a recent decision handed down by this Court, Sventko v. Kroger Co., 69 Mich.App. 644, 245 N.W.2d 151 (1976).

Plaintiff maintained that the Sventko case, supra, recognized a cause of action for the wrongful discharge of an individual employed under a terminable at will employment contract. Plaintiff also contended that the trial court erred in granting defendants' motion for summary judgment on the grounds that plaintiff had failed to file counter affidavits.

Defendants filed a brief in opposition to plaintiff's motion and also submitted a motion for accelerated judgment under GCR 1963, 116.1(2) on the basis that plaintiff had failed to exhaust his administrative remedies under the Railway Labor Act, 45 U.S.C. § 151 et seq., and therefore the trial court lacked jurisdiction to entertain the suit.

The trial court reaffirmed its earlier findings that the summary judgment was properly granted but held defendants' motion for accelerated judgment in abeyance until both parties filed briefs in respect to this issue.

After briefs were filed, the trial court granted defendants' motion for accelerated judgment stating that plaintiff, as an employee of Detroit, Toledo & Ironton Railroad Co., was bound to pursue his exclusive administrative remedies under the Railway Labor Act rather than seeking judicial relief.

Plaintiff appeals as of right from both the accelerated and summary judgments.

Defendants' motion to limit issues on appeal was denied by this Court.

Plaintiff first contends that the trial court erred in granting defendants' motion for accelerated judgment.

The trial court concluded:

"Preliminarily it can be said that if it is demonstrated that plaintiff is an employee covered by the act involved in a dispute within the ambit of the act he is constrained to first pursue and exhaust the administrative remedies prescribed by the statute, former stare decisis to the contrary notwithstanding, Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089 (1941), for Moore and its progeny were expressly overruled, Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 326, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972). The Andrews Court held that provision for arbitration of a discharge grievance is not a matter of voluntary agreement under the Railway Labor Act, and that the provisions of the act are not merely optional, to be availed of as the employee chooses, but rather are compulsory, and failing to adhere to the dictates of the act precludes the claimant from seeking relief in a judicial forum."

The trial court ruled that the Andrews case, supra, stood for the proposition that every employee under the Railway Labor Act ³ was bound to pursue his administrative remedies under the act to the exclusion of his judicial avenues of relief. Plaintiff disagreed and argued that the exclusivity rule of Andrews, supra, did not apply to all employees, but only to those who had rights under a collective bargaining agreement.

The language of Andrews supports plaintiff's contention. The numerous cases cited by defendants also support plaintiff's interpretation of Andrews. A review of these cases ⁴ reveals that in each of them an employee was asserting rights under a collective bargaining agreement when he was denied judicial relief for failure to pursue his administrative remedies under the Railway Labor Act.

Where an employee is asserting rights outside of a collective bargaining agreement, the Andrews exclusivity rule does not apply.

"The parties appear to agree that this claim (discharge wrongful because based on plaintiff's union activity) which rests upon a charge that Delta violated the statute, 45 U.S.C. § 152, is not committed to the exclusive jurisdiction of the adjustment board, but is within the jurisdiction of the district court (Federal question jurisdiction). See Brotherhood of Railway Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952); Brotherhood of Railway Trainmen v. Smith, 251 F.2d 282 (6th Cir., 1958). We do not understand that Andrews * * * holds otherwise. It is clear that the dispute in Andrews stemmed 'from differing interpretations of the collective-bargaining agreement,' whereas the claim here involved is that the Act was violated." Conrad v. Delta Airlines, Inc., 494 F.2d 914, 918 (C.A. 7, 1974).

Applying a proper interpretation of Andrews to the instant matter reveals that the trial court erred in finding that, as a matter of law, any employee covered by the Railway Labor Act is bound to pursue his exclusive administrative remedies under the act. Plaintiff must be a union employee asserting collective bargaining rights in order to be bound by the Andrews exclusivity rule.

These facts were not resolved by the trial court due to its improper interpretation of Andrews, supra. There is some evidence on the record that plaintiff is not a union member, and that he does not possess collective bargaining contract rights.

Accordingly, we conclude that the trial court erred in granting defendants' motion for accelerated judgment under GCR 1963, 116.1(2).

Plaintiff next contends that the trial court erred in granting defendants' motion for summary judgment by concluding that plaintiff (1) had failed to state a claim upon which relief could be granted, and (2) had failed to present a genuine issue of material fact for litigation.

The trial court concluded that:

"The general rule of law is that contracts of employment for indefinite periods of time are terminable at the will of either party. It is true that the appellate courts of Michigan have carved out certain exceptions to this general rule, if the act of the employer in discharging an employee violates the public policy of the State of Michigan. In those appellate decisions, however, the courts have spelled out the type of conduct that is violative of public policy. The appellate courts, however, have not as yet specified that the alleged actions of the defendants as set forth in plaintiff's complaint violate the public policy of this State, thereby constituting an exception to the aforementioned general rule. And, if the actions of the defendants are to be construed as violative of public policy, then it should be left to the appellate courts or the legislature to fashion such a rule of law."

This Court has recognized exceptions to the well established rule that at will employment contracts are terminable at any time for any reason by either party. ⁵ These exceptions were created to prevent individuals from contravening the public policy of this state.

It is without question that the public policy of this state does not condone attempts to violate its duly enacted laws.

Plaintiff claims that defendants discharged him from their employ when he refused to manipulate and adjust sampling results used for pollution control reports which were filed with the state pursuant to M.C.L.A. § 323.1 et seq.; M.S.A. § 3.521 et seq. Such action would clearly violate the law of this state. M.C.L.A. § 323.10(1)(2); M.S.A. § 3.529(1)(1), (2).

Hence, we find that plaintiff has stated a claim upon which relief can be granted, and therefore the trial court erroneously granted defendants' motion for summary judgment on the basis of this ground.

We must now determine whether or not plaintiff presented a genuine issue of material fact for litigation.

The trial court granted defendants' motion for summary judgment, finding that the parties had failed to present a genuine issue of material fact under GCR 1963, 117.2(3).

"First, the facts contained in the affidavits of both defendants...