Williams v. Clean Coverall Supply Co., Inc.

• Decision Date: 16 December 1980
• Docket Number: No. 41294,41294
• Citation: 613 S.W.2d 659
• Parties: 25 Wage & Hour Cas. (BNA) 51 Bobby WILLIAMS, Plaintiff-Appellant, v. CLEAN COVERALL SUPPLY CO., INC., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 659

613 S.W.2d 659

25 Wage & Hour Cas. (BNA) 51

Bobby WILLIAMS, Plaintiff-Appellant, v. CLEAN COVERALL SUPPLY CO., INC., Defendant-Respondent.

No. 41294.

Missouri Court of Appeals, Eastern District, Division One.

Dec. 16, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 13, 1981.

Larry W. Glenn, St. Louis, for plaintiff-appellant.

H. Kent Munson, St. Louis, for defendant-respondent.

STEWART, Presiding Judge.

Plaintiff, a former employee of defendant, filed a three count petition against defendant seeking damages for failure to compensate plaintiff for all hours worked by plaintiff. Count I alleges the breach of an oral contract between the parties in which plaintiff was to receive compensatory time off for hours worked in excess of forty hours per week and seeks compensation for 6000 hours of overtime. Count II alleges that plaintiff worked for defendant as fleet manager and truck mechanic "accumulating 6000 hours of those services for which he was not paid, reimbursed, nor compensated in any manner by defendant," that "(d)efendant has been unjustly enriched by accepting the services of plaintiff and not compensating him therefor in any manner." Count III places the factual allegations of Count I in the posture of an action in fraud. It alleges that in offering plaintiff compensatory time off for overtime, defendant did not intend to compensate plaintiff "(b)y allowing him paid time off as aforesaid." It further alleges that plaintiff, relying on defendant's offer, accepted employment with defendant. The trial court granted summary judgment in favor of defendant and plaintiff appeals.

We affirm.

From the pleadings, interrogatories, documents and affidavits on file the facts viewed favorably to plaintiff ¹ reveal that plaintiff had been employed by defendant as a mechanic on August 21, 1964; his employment was terminated on March 4, 1977. During his period of employment plaintiff was a member of the bargaining unit represented by Local 777 of the International Association of Mechanics and Aerospace Workers, AFL-CIO, hereafter referred to as the "union." The work performed by plaintiff was covered by a collective bargaining agreement between defendant and the union. Plaintiff and defendant entered into an oral agreement whereby plaintiff was to receive seventy cents an hour above the current minimum union wage scale for forty hours a week regardless of the number of hours worked over forty hours. He was being paid the sum of $345.20 per week at the time of his discharge. It was also agreed that plaintiff would be compensated for overtime work by allowing him paid time off. At various times throughout his employment he made demand to be compensated for overtime worked and was promised that he would be compensated by way of compensatory time off. At the time of his discharge he had worked 6000 hours of overtime without the promised compensation.

On February 24, 1977, a written grievance was filed by plaintiff charging inter alia that the defendant was in violation of the collective bargaining agreement in failing to pay for overtime. This grievance has not been fully processed.

The issue that is determinative of this case is whether the controversy between the parties is required to be processed under the grievance procedures provided by the collective bargaining agreement between defendant and plaintiff's union.

The collective bargaining agreement, Article IX, Section I provides:

"Grievance Procedure

Section I. All complaints and/or grievances shall be disposed of between the Employer and the Local Union, or an employee of the Employer, within five (5) working days after the complaint first arises. If not so disposed of, the complaint shall be reduced to writing and presented to the Employer within three (3) days thereafter and shall be processed in accordance with the procedure set forth in this Article. If not so reduced to writing and presented to the Employer within the time period prescribed herein, it shall be considered as dropped.

Section 2. All question of interpretation of this Agreement, or grievances arising hereunder, shall be determined in the following manner."

Then follows the various steps in the grievance procedure from informal discussions through arbitration. The contract further provides that a decision at any level of the proceedings, if not appealed to the next level, "... shall be final and binding upon the Employer, the Union and the employee."

Many of the cases refer to the grievance procedure as the arbitration clause. In most instances the effect of following the grievance procedure would result in binding arbitration. The terms are sometimes used interchangeably in the cases.

There is no dispute between the parties as to the basic legal premise in this case. In the State of Missouri, where a collective bargaining agreement provides a grievance procedure for the settlement of disputes between the employer and the union or the employee, the parties aggrieved must exhaust the remedies provided by the agreement before resorting to the courts for redress. Transcontinental & Western Air, Inc. v. Koppal, 345 U.S. 653, 73 S.Ct. 906, 97 L.Ed. 1325 (1953); Ware v. St. Louis Car Company, 384 S.W.2d 287 (Mo.App.1964); Mayfield v. Thompson, 262 S.W.2d 157 (Mo.App.1953).

The primary issue here is whether the dispute between plaintiff and defendant is within the contemplation of the grievance procedures set out in the collective bargaining agreement.

As to Count I of plaintiff's petition it is plaintiff's contention that the separate oral agreements he had with defendant were not within the purview of the grievance procedure provided in the collective bargaining contract and as a result the trial court has jurisdiction of this action.

In approaching the issues in this case we are cognizant of the principle that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed to submit." United Steel Workers of America v. Warrior and Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960).

However the collective bargaining agreement differs from the ordinary commercial contract in that it "is an effort to erect a system of industrial self-government," 363 U.S. at 580, 80 S.Ct. at 1351, and the "grievance machinery ... is at the very heart of the system ...." Id. at 581, 80 S.Ct. at 1352. A particular dispute must be processed through the grievance procedure "unless it may be said with positive assurance that the arbitration clause is not susceptible of any interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." Id. at 582-583, 80 S.Ct. at 1353.

The nature of the collective bargaining agreement and its relations to individual express contracts of hire was delineated early in the development of modern labor management relations. To capsulize the principles set out in J. I. Case & Co. v. National Labor Relations Board, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944), the collective bargaining agreement between the employer and the representatives of a unit of employees usually provides terms that govern hiring, the nature of the work to be performed by the covered employees, hours of work and rate of pay. The collective bargaining agreement is not a contract of employment. When the employer makes individual hirings, the individuals covered by the agreement are identified and become entitled to the benefits of the agreement even if they would go to work on less favorable terms. "The individual hiring contract is subsidiary to the terms of the trade agreement ..." and the parties to any individual agreement may not waive any of its benefits. The individual may, under certain circumstances, add to matters covered by the bargaining contract but...