Widuk v. John Oster Mfg. Co.
| Decision Date | 02 October 1962 |
| Parties | , 51 L.R.R.M. (BNA) 2187, 46 Lab.Cas. P 50,638 Beulah Kugler WIDUK, Appellant, v. The JOHN OSTER MANUFACTURING CO., Respondent. |
| Court | Wisconsin Supreme Court |
George E. Kunde, Milwaukee, for appellant.
Quarles, Herriott & Clemons, John G. Kamps, L. C. Hammond, Jr., and T. A. Clemons, Milwaukee, of counsel, for respondent.
It is without dispute the plaintiff was discharged on November 18, 1959, for failure to notify the defendant of her absence from work for the two preceding days. The union contract in Article VII, Section 7C, provided seniority would be considered terminated when an employee was absent for two or more consecutive working days without notice to the company unless a satisfactory explanation was accepted by the company. On the morning of the 19th, the plaintiff conferred with the personnel director of the defendant, presenting a doctor's certificate that she had been under his care for severe migraine headaches. She stated she had called a cab on both the 17th and 18th to go to the doctor's office and could possibly have called a cab from the doctor's office to take her home. She admitted she did not notify the company. The personnel director was of the opinion the plaintiff did not make an honest effort to contact the company and to fulfill her contractual obligations and refused to accept the explanation of her failure to notify the company of her absence. The refusal to accept the explanation is the basis of the claimed wrongful discharge and of the breach by the defendant of the collective bargaining agreement.
Article VI of the agreement provides for four chronological steps to be taken in the procedure to settle disputes subject thereto. The first step sets forth a method of settlement between the management representative and the employee and the union steward. If the disposition of the matter is not satisfactory, the second step requires that within two regularly scheduled working days a request for a review is to be made to the superintendent and in such an event the matter is then considered a grievance, reduced to writing by the union and signed by the foreman, the employee and the employee's steward. All grievances, with exceptions not here material, are required to be filed within 15 working days after the occurrence of the grievance. The management representative then reviews the grievance with the representatives of the shop committee. The third step involves a request for review to the industrial relations department and a consideration at a meeting of the company and the shop committee representatives. The fourth step provides for arbitration.
On November 19th, the plaintiff called the union president who was then chairman of its executive board and told him of her discharge; he said he would investigate the matter. On the following day he advised the plaintiff he had talked to the company and the company would not reinstate her, but if she wanted to pursue the matter she could follow normal grievance procedures. The plaintiff testified, 'I called him the next evening at his home and he told me that they had been through it and they were justified in what they did, and I asked him about taking the other steps, I understood that you were supposed to make a written application and be represented by your union, and he said I might just as well forget it; I had gone as far as I could; it was final.' The plaintiff never asked for a review or requested the union to file a grievance in compliance with the second step of the grievance procedure. There was testimony that a grievance procedure had to be initiated in this type of case by the employee.
The question is thus presented on this appeal, whether an employee may seek the aid of the court against an employer to require the reinstatement of employment and the restoration of seniority rights without first exhausting the grievance procedures provided in the collective bargaining contract entered into between the employer and the union. In Pattenge v. Wagner Iron Works (1956), 275 Wis. 495, 82 N.W.2d 172, this court sustained an action brought by 17 discharged employees for a specific money claim which accrued to them under the terms of a collective bargaining agreement as vacation pay on the ground an individual employee may maintain an action to specifically enforce provisions of a collective bargaining contract which are for his individual benefit as contrasted with provisions which are for the benefit of the union. It was pointed out the action was not barred or subject to abatement because of the failure to exhaust or invoke the grievance procedures of the collective bargaining contract because it was apparent the union was hostile to the plaintiffs and, in fact, had taken the position it would not process any grievance of these plaintiffs. The case expressly left open the question of whether the plaintiffs' action for specific performance would have been barred or subject to abatement by reason of failure to invoke grievance and arbitration procedures if the union had been willing to afford to the plaintiff what might be called fair representation. The problem of court enforcement of rights derived from collective bargaining agreements was again considered in Clark v. Hein-Werner Corp. (1959), 8 Wis.2d 264, 99 N.W.2d 132, 100 N.W.2d 317, where this court granted relief to a class of employees in a suit to set aside a labor arbitration award which deprived the plaintiffs of certain seniority rights. In the Hein-Werner Case, we adopted the doctrine of fair representation and held as a matter of law a union, although acting completely objectively and with the best motives, espousing the cause of one group of members whose interests were diametrically opposed to another group of its members, did not give fair representation to the unrepresented group.
While the authorities are divided, the general rule is recognized that an employee claiming wrongful discharge under a collective bargaining agreement between his employer and his union must show he has exhausted the grievance procedure provided by contract as a condition precedent to the bringing of an action against the employer for the discharge. See Anno. 72 A.L.R.2d 1439. Some of the cases involve actions for damages for breach of the bargaining agreement while...
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...(Tex.Civ.App.1958), 311 S.W.2d 250; Crockett v. Union Terminal Co. (Tex.Civ.App.1960), 342 S.W.2d 129.29 Widuk v. John Oster Mfg. Co. (1962), 17 Wis.2d 367, 374, 117 N.W.2d 245.30 (1962), 16 Wis.2d 369, 114 N.W.2d 485.31 See also Fray v. Amalgamated, etc., Local Union No. 248 (1960), 9 Wis.......
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