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Dziewit v. Baso Products Division

July 31, 1974

VIRJEAN R. DZIEWIT, PLAINTIFF
v.
BASO PRODUCTS DIVISION, PENN CONTROLS INC. ET AL., DEFENDANTS.



Author: Drechsler

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 ...


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