UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
July 31, 1974
VIRJEAN R. DZIEWIT, PLAINTIFF
BASO PRODUCTS DIVISION, PENN CONTROLS INC. ET AL., DEFENDANTS.
DRECHSLER, D.J.: Motions after verdict in an action by plaintiff for damages against her former employer, defendant Baso Products, and the union of which she was a member, defendant Local No. 323, for alleged wrongful termination of her employment by Baso and for the union failing to take her grievance to arbitration.
Defendant Baso's motion for judgment upon the verdict of the jury dismissing the action against it, upon the merits with its taxable costs and disbursements, will be granted.
Defendant Local No. 323's motion for judgment dismissing the complaint and action will be granted and the complaint and action against it will be dismissed upon its merits, with its taxable costs and disbursements.
Plaintiff's motions after verdict will be denied. It would serve no useful purpose to here detail the evidence, except as may be required for the purpose of this decision.
Plaintiff was a member of Local 323 and was employed by Baso or its predecessors between May 20, 1950, and February 2, 1968; notified of the termination of her employment on February 5, 1968.
It is undisputed and was stipulated that Baso was engaged in Interstate Commerce, and subject to National Labor Relations Act and Board provisions.
She had been a union steward for ten years to two years before termination during which time she did not attend numerous meetings (Exhibit 12) and did not pay "fines" because thereof.
She had taken numerous leave of absences from her work (Exhibit 4) during the period of her employment. Baso had a liberal leave of absence policy, but was firm on enforcing the provision as to overstaying leave of absences of the agreement, (Exhibit 1) with the Union. The first sentence of section 13.07, reads:
"An employee who fails to return to work upon the expiration of a leave of absence shall be deemed to have quit the employment of the company."
The employee must return to work on the day after the leave of absence expires. Request for extension of a leave of absence can be made by telephone or in writing before the leave of absence period expires. (Article 13.01 of Exhibit 1)
Request for the leave of absence, Exhibit 8, was made out for from Wednesday, January 31, 1968, through Thursday, February 1, 1968. It was so made in writing by the Chief Shop Steward, Fred Praxel. He testified that he received a telephone call from plaintiff at about 2 p.m. on January 31, 1968, in which she asked for a leave of absence for that day and the next day. He asked if she wanted it for Friday, also. She said, "No, if I feel better, I'll be there on Friday." So he made it out for Wednesday and Thursday, signed it and took the same to the department head's office, upon her request for those two days.
She testified that she called him by telephone on January 31, and asked him to put her down for a leave of absence for that day and tomorrow and if she felt better she would be there on Friday, that she requested three days.
She did not come to work on that Friday. On Sunday afternoon, February 4, she telephoned Fred Praxel at his home. He was not able to come to the telephone, so she asked his wife to ask him if he had put her down for Friday. She did and relayed to plaintiff his answer that he had not.
On Friday, February 2, 1968, according to the practice of Baso, in cases where an employee overstays a leave of absence, her time card was removed from the rack and a note left for her not to go to work but to report to the employment manager's office.
On February 5, when she came to work, she noticed that her time card was not there. She went to her department. She was called by Parker Henry, the employment department manager, to come to his office where, after talking to her, he told her that her employment was terminated because under section 13.07, it was deemed that she had quit by not returning the day after the leave of absence expired.
She then talked to Norman Jensen, the President of Local 323, when she had telephoned the day before, after she had talked to Mrs. Praxel. He told her to come to the plant the next morning.
Mr. Jensen called a meeting of Union Stewards, or foremen, with her present. Fred Praxel was not there, still being sick. They discussed whether the leave requested was for three or two days. They discussed suggestions on what to do. A grievance to Baso was written and signed by her, (part of Exhibit 3) dated 2-5-68, 11:00 a.m., which reads:
"Nature of Grievance I request my job and all right under our present Labor agreement, because I do not consider the action taken by the Company reasonable in denying my request for (2) two days vacation."
A grievance committee of the Union was assembled and met on February 7, 1968. Mr. Henry and the superintendent of production attended. The Union men asked if any consideration could be given so that she would not be terminated. They asked that the Company consider her long employment and that it deviate from its long practice of terminating employment when an employee overstays a leave of absence.
The Company's response, dated February 6, 1968, to the grievance, is a part of Exhibit 3, which response is addressed to Norman Jensen, Chairman Bargaining Committee, and reads as follows:
"The office of the Superintendent of Production acknowledges receipt of the above grievance report submitted by Virjean Dziewit, Clock #650, i.e., I request my job and all rights under our present Labor Agreement, because I do not consider the action taken by the company reasonable in denying my request for (2) two days vacation.
Please advise Mrs. Dziewit that of several options available under our current Labor Agreement, she choose a leave of absence.
Therefore, failure on her part to comply with the provisions of Article 13 thereof, by (1) not returning to work upon expiration of her leave of absence or (2) not requesting an extension thereof, resulted in her termination."
That exhibit has attached to it a copy of the Employment Termination Notice, "Reason: In accordance with Section 13.07 of the current Local #323 labor agreement"; signed by P. Henry, Processor.
Exhibit 4 is a tabulation of the record of leaves of absences and other absences of plaintiff during her employment by Baso and its predecessors. She had 48 requests in 18 years. Exhibit 6 is a first notice warning relative to her absences and leaving early given to her by Baso, on June 2, 1965. Exhibit 7 is a notice given to her by Baso, on July 7, 1967, as to her absences, that continuance will lead to termination. Exhibit 13 is a notice from Local 323 to all its members dated September 13, 1966, calling attention to the fact that violators of section 8.07 and 13.07 by the employee would result in such employee "shall be deemed to have quit." Those sections were quoted in the notice.
Exhibit 18 is Baso's work record card of plaintiff, dated 3-2-68, stating that her employment had been terminated "In accordance with section 13.07 of current Local #323 labor agreement," with a check mark following the words "Do not rehire.", and signed by the foreman, 2-9-68.
She was informed of the Company's response to the grievance by a Mr. Haebig that it was "no." She was also informed by Fred Praxel that the Company would not change its positions, and that the Union committee decided that it would not take the matter further, that it would not take it to arbitration. She did not appeal that decision to any monthly meeting of the membership. She did not ask the Chief Steward to carry it to arbitration.
Mr. Hewitt, the plant manager, testified that if the grievance had been taken to arbitration he would have been consulted; that at the grievance committee meeting the Union's presentation was vigorous, but the Company could not change the leave of absence policy.
Upon the evidence, thus summarized, the jury, in answering question 3 "no," found that Baso did not wrongfully terminate her employment on February 5, 1968. That answer cannot be changed to "yes," by the Court. Vierig v. Southwestern Wisconsin Gas Co., 212 Wis. 394, 395. The "no" answer is upheld by the evidence. Baso had before it the two-day leave of absence request and it adhered to the provisions of said section 13.07, and it had her "absence" record before it.
Local 323 contends that since the Jury found that the Employer did not wrongfully terminate her employment, the Court should order judgment for the defendants and against the plaintiff, dismissing the complaint. That contention is sustained.
Since Baso did not breach the labor contract, by terminating her employment, no cause of action for the plaintiff remains against the Union. The Union's duty of fair representation arose after she was severed from her employment by Baso, and if Baso did not wrongfully so do, then the Union could not alter that result, by arbitration hearing or otherwise.
Where it is found, as here that the employer's action was not in violation of the labor contract, then it can be said, as a matter of law, that the Union did not [act] in bad faith when it did not seek to have the denial of her grievance submitted to arbitration. Baso not having violated the labor contract in terminating her employment, the Union was under no duty to submit her grievance to arbitration. A wrongful discharge by the employer must first be proven before the Union can be held liable.
In Patrick v. International U. of Operating Engineers, (8th Cir. 1972) 456 F.2d 672 the court stated at p. 673,
"... Patrick's major assertion is that the International Union breached its statutory and contractual duties to fairly represent him in his grievance and that the trial court erred in dismissing his claim against it. We find this assertion to be without merit. The International Union's Statutory duty only required that its failure to process his grievance not be 'arbitrary, discriminatory, or in bad faith.' Vaca v. Sipes, 386 U.S. 171, 190... Richardson v. Communications Workers of America, 443 F.2d 974, 981 (8th Cir. 1971). It is difficult to understand how the International Union's conduct can be said to be 'arbitrary, discriminatory, or in bad faith' when the jury found that Patrick was properly discharged by I.D. Parking Company. Even under (Plaintiff's) theory that an International Union is liable for the acts of its locals and its officers, a wrongful discharge must first be proven....;"
and, in St. Clair v. Local U. No. 515, etc., (6th Cir. 1969) 422 F.2d 128 it is stated at p. 132,
"Furthermore, if the Company did not act wrongfully in firing St. Clair, then clearly the union owes him no damages, since even if its duty had been fully discharged, St. Clair would not have retained his job."
Under that language of those cases, Local No. 323 owes her no damages since, even if it had taken her grievance to arbitration, she would not have retained her job.
The labor contract (Exhibit 1) in section 2.05 provides:
"The arbiter may only interpret this Agreement and apply it to the particular case present to him, and shall have no power to add to or subtract from, or modify any of the provisions of this Agreement or any agreement made supplementary thereto...."
Under the undisputed facts, and that the jury found Baso did not wrongfully terminate her employment, there was no legal duty upon the Union to take her grievance to arbitration. The arbiter would have had to interpret section 13.07 of the labor agreement as did Baso that in overstaying the leave of absence, she "shall be deemed to have quit the employment of the Company."
Our Supreme Court in Cheese v. Afram Brothers Co., 32 Wis. 2d 320, said at p. 326:
"... However, the mere allegation that the union has failed to contest the discharge is insufficient to support a claim for damage. In Fray v. Amalgamated, etc., Local No. 248, (1960) 9 Wis. 2d 631, 641... we commented upon a union's discretion in determining whether to present an employee's grievance:
"The union has great discretion in processing the claims of its members, and only in extreme cases of abuse of discretion will courts interfere with the union's decision not to present an employee's grievance.... In certain cases for the greater good of the members as a whole, some individual rights may have to be compromised...." Also see Neider v. J. G. Van Holten & Sons, Inc., 41 Wis. 2d 602."
Plaintiff contends that since the jury found that the bargaining committee of Local 323 acted in bad faith in not submitting her grievance to arbitration, and her failure to pursue internal Union remedies was justified, and she is entitled to judgment against the Union for the amount of damages which is the jury's answer as to the Union. However, in view of the jury's answer to question 3, that the Company did not wrongfully terminate her employment on February 5, 1968, that contention of the plaintiff cannot be sustained. The cases relied upon by her in support of that contention are not applicable, the court believes, because in none of them were there findings of the jury as those above referred to. Since the Company properly terminated her employment, the jury's answers to the questions concerning the Union became of no consequence.
It was essential for plaintiff, in order to establish a cause of action against the Union, that she establish that Baso breached the employment contract by wrongfully terminating the same. This she did not do, and so no cause of action was established against the Union. Vaca v. Sipes, 386 U.S. 171.
Because of the foregoing conclusions of the Court, it is deemed to be unnecessary to discuss the other respective contentions presented by attorneys for the parties, other than to say that it has considered all of the contentions of the plaintiff's attorney and believes that none of them can be sustained.
The attorney for Local No. 323 will prepare and present for signature the order in conformity with this decision.
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