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August 15, 1974


Ditter, District Judge.

The opinion of the court was delivered by: DITTER


 Plaintiff, Joseph Lucas, Jr., brought this action against Philco-Ford Corporation (the company), his former employer, and Radio and Television Workers Local No. 101, of the International Union of Electrical, Radio, and Machine Workers, AFL-CIO (the union), his union local. He alleges that he was wrongfully discharged by the company, that the union failed fairly to represent him, and that the company and union acted in concert to injure and harass him. He prays for damages and equitable relief. Jurisdiction is founded upon Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and Section 102 of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 412.

 Presently before the court are the motions of both defendants for summary judgment pursuant to Rule 56, Fed. R. Civ. P., and the defendant union's motion, pursuant to Rule 39(a) (2), Fed. R. Civ. P., to strike plaintiff's demand for a jury trial. For the reasons expressed herein, the company's motion for summary judgment will be granted, and both of the union's motions will be denied.

 Despite inconsistent accounts and markedly different interpretations of pertinent incidents, some important facts are well crystallized: Plaintiff was employed by Philco-Ford in various capacities from September, 1952, until early March of 1972, when he was terminated for refusal to accept overtime assignments. During the course of his employment he was a member in good standing of the defendant union local, and, in fact, ran unsuccessfully for its presidency in September, 1971. *fn1"

 Article VII of the collective bargaining agreement between defendants establishes a grievance and arbitration procedure for the resolution of all differences and disputes under the terms of their contract. The procedure contains five grievance steps, the final one involving a submission to the American Arbitration Association. Article II of the collective bargaining agreement establishes certain basic policies regarding overtime work assignment and provides, inter alia, in subsection (c) that "employees will be excused from working overtime only for reasonable reasons."

 From September, 1971, until his dismissal some six months later, plaintiff declined numerous overtime work assignments. What reasons he gave to his superiors for these refusals is disputed. *fn2" Plaintiff's refusals persisted despite two written warnings in January, 1972, and a five-day disciplinary furlough in February, 1972. On March 3, 1972, he was discharged.

 Thereafter, plaintiff filed a grievance, and the procedure established by the collective bargaining agreement was set into motion. The first three steps of the five-step procedure were utilized swiftly. Plaintiff contends that thereafter the union failed or refused to represent him fairly. In his supplementary affidavit, William Mandia, the president of the local, states that on three occasions since 1965 the union has taken the issue of what constitutes a "reasonable reason" within the meaning of Article II to final and binding arbitration. In each instance, the company's position was sustained and the grievance was denied.

 After the institution of the present action, the company and the union offered to submit the question of the propriety of plaintiff's discharge to the American Arbitration Association for a final and binding decision. Plaintiff contends that because he viewed the proposed arbitration as coming a year too late, and then only in an attempt to avoid this litigation, he steadfastly refused to agree. His attorney, Steven A. Hyman, Esquire, however, did discuss the possibility of arbitration with defendants' attorneys on numerous occasions, and participated with the union's counsel in the selection of an impartial arbitrator. Mr. Hyman asserts that in so doing he merely was attempting to convince his client of the union's sincerity and to protect plaintiff's interests should he later decide to accept arbitration. In any event, an arbitration hearing was scheduled for June 4, 1973. On May 10, 1973, Mr. Hyman advised the union that plaintiff would not participate in the hearing and indicated that plaintiff was prepared to seek to enjoin it. The hearing thereafter was cancelled.


 Philco-Ford has moved for summary judgment on the ground that since plaintiff has failed to utilize and exhaust the grievance and arbitration procedure contained in Article VII of the collective bargaining agreement, the sole remedy contemplated by the contract for the wrongs alleged here, his action, at least against the company, is barred. On two conditions, which I shall set forth presently, I agree.

 It is well settled that if a wrongfully discharged employee resorts to the courts before grievance procedures authorized by the collective bargaining agreement have been fully utilized, the employer may defend on the ground of failure to exhaust contractual remedies. *fn3" Vaca v. Sipes, 386 U.S. 171, 184, 87 S. Ct. 903, 914, 17 L. Ed. 2d 842 (1967); cf. Rothlein v. Armour & Company, 391 F.2d 574 (3rd Cir. 1968). However, the Supreme Court has recognized certain instances where these contractual remedies may prove unsatisfactory or unworkable for the individual grievant, Vaca v. Sipes, supra, 386 U.S. at 185, 87 S. Ct. at 914, including the situation where the union has sole power under the terms of the contract to invoke the higher stages of the grievance procedure. The Court in Vaca stated:

It is true that the employer in such a situation may have done nothing to prevent exhaustion of the exclusive contractual remedies to which he agreed in the collective bargaining agreement. But the employer has committed a wrongful discharge in breach of that agreement, a breach which could be remedied through the grievance process to the employee-plaintiff's benefit were it not for the union's breach of its statutory duty of fair representation to the employee. To leave the employee remediless in such circumstances would, in our opinion, be a great injustice. We cannot believe that Congress, in conferring upon employers and unions the power to establish exclusive grievance procedures, intended to confer upon unions such unlimited discretion to deprive injured employees of all remedies for breach of contract. Nor do we think that Congress intended to shield ...

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