Ware v. St. Louis Car Co.

• Decision Date: 17 November 1964
• Docket Number: No. 31751,31751
• Citation: 384 S.W.2d 287
• Parties: Deloyd WARE, Plaintiff-Appellant, v. ST. LOUIS CAR COMPANY, a Division of General Steel Industries, Inc., a Corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 287

384 S.W.2d 287

Deloyd WARE, Plaintiff-Appellant, v. ST. LOUIS CAR COMPANY, a Division of General Steel Industries, Inc., a Corporation, Defendant-Respondent.

No. 31751.

St. Louis Court of Appeals, Missouri.

Nov. 17, 1964.

Wilson Gray, St. Louis, for plaintiff-appellant.

Frank C. Mansfield, St. Louis, for defendant-respondent.

DOERNER, Commissioner.

Plaintiff claims to have been wrongfully discharged from his employment with defendant, and brought this action to recover damages. After the defendant had filed its answer and the defendant had responded thereto by his reply, the court sustained defendant's motion for summary judgment, from which plaintiff brings this appeal.

The undisputed facts disclosed by the pleadings and the defendant's motion for summary judgment, including two affidavits filed in support thereof, show that plaintiff was employed by defendant, a St. Louis manufacturing concern, from 1952 to October, 1962. On October 20, 1962, plaintiff was suspended from his job for 'allegedly threatening a fellow employee with an open knife and using abusive language * * *' as plaintiff expressed it, or for assaulting a fellow employee '* * * with a deadly weapon, a violation of the laws of the City of St. Louis and State of Missouri,' as defendant described it. Plaintiff was a member of Local Union No. 1055 of the United States Steel Workers of America, AFL-CIO, the collective bargaining representative of the unit to which plaintiff belonged. Prior to plaintiff's discharge the Union and the defendant had entered into a collective bargaining agreement which included, among other matters, certain provisions regarding the processing of discharge cases and the adjustment of grievances. Article X of the Agreement provided, in brief, that in exercising its prerogatives of management the Company would not summarily discharge an employee, but would first suspend him; that the employee, if he believed he had been unjustly dealt with, would be furnished with a written statement of the offense or misconduct for which he was suspended, and, upon written request, was entitled to a hearing before a representative of the Company or the Company Executive Shop Committee.

At his request plaintiff was furnished with a written statement setting forth his offense, and was afforded a hearing, held on October 23, 1962 before the Company Executive Shop Committee, at which he testified and was offered the right to be represented and to adduce evidence in his favor. As authorized by Article X of the labor contract, the Company Executive Shop Committee decided that plaintiff's suspension should be converted into a discharge. Written notice of the Committee's decision (the date of which does not appear in the record) was sent to Local Union No. 1055, but not directly to the plaintiff.

Plaintiff alleged in his petition that he did not learn of the notice of his discharge until he was given a copy by the Union on October 31, 1962. Plaintiff further pleaded in his petition that '* * * because of said wrongful action on the defendant's part in mailing the notice of discharge to the Local Union and not to the plaintiff, the plaintiff was thereby prevented from appealing his discharge within twenty-four hours as provided in Article X of the Agreement (actually, 48 hours) but did make the appeal within twenty-four hours after his knowledge of the defendant's decision.' Plaintiff also alleged in his petition that his discharge was in violation of Rule No. 16 of the defendant's rules and regulations as set forth in a booklet titled 'On The Job With St. Louis Car Company' which rule stated:

"Threatening, intimidating, coercing or interfering with fellow employees on the premises. First Offense, Warning. Second Offense, Three days off. Third Offense, Discharge."

The gravamen of plaintiff's action, as contained in the concluding paragraph of his petition, is as follows:

'7. That the discharge of plaintiff by the defendant without allowing him a chance to appeal his dismissal and in refusing to hear his appeal when made and discharging him contrary to the above Rule 16 was wrongful and unjust and as a result thereof, his reputation and character have been irreparably damaged. That he has been deprived of working at his usual occupation or any employment commensurate with his experience and ability; that he has suffered loss of seniority rights and other fringe benefits that he has suffered undue hardships, humiliation and loss of income and has caused his health to become impaired through nervousness and mental anguish all to his damage to the sum of $5,000.00.'

In its answer defendant admitted the existence of the collective bargaining agreement, plaintiff's suspension, his request for a hearing, the holding of the same, and the decision to discharge plaintiff. Affirmatively, it alleged that Local Union No. 1055 represented plaintiff at the hearing before the Company Executive Shop Committee; that plaintiff never advised defendant that the Union did not represent plaintiff; and that in sending the notice of discharge to the Union it followed strictly the grievance procedure prescribed in Article V, Paragraph 4 of the collective bargaining agreement, relating to the procedure for the adjustment of grievances; that '* * * the Union did not notify it that its reply was not satisfactory and/or that it desired to appeal such decision. Therefore, the matter was considered closed on the basis of this provision of the labor-management agreement. Defendant further states that it went beyond the terms of this contract in an effort to be completely fair with Plaintiff and that the 'Chief Executive Officer of the Company' personally heard Plaintiff's appeal in several lengthy telephone conversations and after serious consideration affirmed the decision that dismissal was fair and even necessary.' Defendant also denied that plaintiff's discharge was a violation of Rule 16, alleged that it was based on the more serious charge of assaulting a fellow employee with a deadly weapon, in violation of the laws of the city and state, and alleged that the last two sentences of the booklet state:

'* * * 'GENERAL--Violation of any Shop or Safety Rule subjects an employee to disciplinary action whether or not provided herein. When no penalty is provided, the action taken will be such as is warranted by circumstances.''

On the same day on which defendant filed its answer it also filed its motion for summary judgment, supported by two affidavits. One was by Glenn R. Foelsch, defendant's Personnel Manager, and the other by Severin Merz, who supervised the administration of labor problems for defendant, particularly those involving Local Union No. 1055. The substance of the affidavits, so far as material here, is that after his suspension plaintiff admitted to Foelsch that he had pulled a knife on Troy Brewer, plaintiff's fellow employee and fellow union member; that the Union represented plaintiff, '* * * at all times mentioned in Plaintiff's Petition against St. Louis Car'; that at the hearing Brewer testified that plaintiff had assaulted him in the Tin Shop with a large open knife, accompanied by a menacing attitude and obscene, vicious words; that the Company Executive Shop Committee decided that plaintiff's suspension should be converted to dismissal; that the Union and its officers were advised of that decision and that they did not appeal the decision.

Plaintiff did not file any affidavit in opposition to those filed by the defendant, but before defendant's motion for summary judgment was heard and submitted plaintiff filed his reply to defendant's answer. He denied therein that the Union had represented him at the hearing and alleged that he had represented himself, as he had a right to do '* * * under the Labor Management Relations Act of 1947 as amended, Section 9(a) * * *,' from which he quoted; and that '* * * therefore any further action on the part of the employer defendant would have to be based on Article X of the Labor-Management Agreement of June 1, 1960, Subject--Discharge Cases and the plaintiff denies that the employer defendant followed said Article X.'

Plaintiff has incorporated in his brief copies of certain letters between the Union and plaintiff, and between plaintiff and the defendant. Since the correspondence was not before the court at the time it sustained defendant's motion for summary judgment, and is not properly a part of the record before us, we cannot, of course, give it any consideration. Cooper v. Finke, Mo., 376 S.W.2d 225, 228. Parenthetically, we add that the correspondence, if considered, would hurt rather than help plaintiff's position.

It is important to note that plaintiff did not deny that he assaulted or threatened his fellow employee with a knife. The cause of action attempted to be pleaded in his petition is not based on a denial of the charge which culminated in his dismissal, but on the grounds, first that under Rule 16 the extent of the penalty was limited to that of a warning, and that the discharge was therefore wrongful; and second, that the action of the defendant in discharging the plaintiff, '* * * without allowing him a chance to appeal his dismissal and in refusing to hear his appeal when made * * *' was wrongful and unjust. Plaintiff argues that both of these matters were genuine issues as to material facts which should have been tried,...