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LUDOVICO LA CHINA v. DANA CORP.

April 20, 1977

LUDOVICO LA CHINA
v.
DANA CORPORATION--PARISH FRAME DIVISION and UNITED STEEL WORKERS OF AMERICA LOCAL UNION NO. 3733



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, J.

 INTRODUCTION

 Plaintiff, an employee of defendant, Dana Corporation (Dana) charges that Dana has discriminated against him because of national origin and breached the collective bargaining agreement existing between Dana and the defendant, United Steel Workers of America, Local Union No. 3733, (Union) of which plaintiff was and is a member. Plaintiff also charges that the defendant Union breached its duty to adequately represent the plaintiff in failing or refusing to adequately represent the plaintiff in his dispute with Dana.

 The defendants jointly contend that res judicata applies because the plaintiff previously filed unfair labor practice charges before the National Labor Relations Board. Defendants contend that the decision or decisions of said Board was or were "on the merits" and, therefore, res judicata. Plaintiff contends otherwise.

 Dana separately contends that it did not breach the collective bargaining agreement. The Union agrees and separately contends that it did not breach its duty to adequately represent the plaintiff in failing or refusing to process a grievance on behalf of the plaintiff.

 All parties were represented by able counsel. The case was tried to completion and extensive testimony produced.

 FINDINGS OF FACT

 1. Plaintiff has been employed by Dana since May 11, 1965.

 2. Plaintiff has been a member of Union at all times relevant to plaintiff's complaint.

 3. Plaintiff was placed on layoff status on January 12, 1972, pursuant to notification by Dana.

 4. On January 28, 1972, plaintiff was injured in an automobile accident.

 5. On January 28, 1972, plaintiff received a telegram from Dana notifying plaintiff that he was to return to work in Department Number 34, second shift, as a helper on January 31, 1972.

 6. Because of his automobile accident and injuries sustained as a result thereof, plaintiff notified Dana that he would not be able to report to work as requested in the above-mentioned recall notice.

 7. Plaintiff was released by his attending physician to return to work on September 11, 1972.

 8. Plaintiff appeared on September 10, 1972 at Dana's plant with the required Form 740, executed by Dana's company physician, indicating plaintiff had recovered from his injuries and was able to and available for return to work.

 9. Due to a business decline, plaintiff was notified, upon presenting Form 740 to the personnel office of Dana, that he was once again being placed on a layoff status.

 10. While on layoff status, plaintiff was involved in a second automobile accident on or about October 6, 1972, as a result of which plaintiff received additional bodily injuries. Plaintiff reported the fact of the accident and the injuries sustained as a result thereof to Dana.

 11. During the course of plaintiff's layoff, commencing January 12, 1972, plaintiff received certain supplemental unemployment benefits payable by contract between Dana and Union.

 12. During the time of plaintiff's inability to work as a result of the aforementioned injuries, plaintiff, commencing January 31, 1972, also received certain supplemental sick pay benefits.

 13. Plaintiff's supplemental unemployment benefits and supplemental sick pay benefits expired on October 29, 1972.

 14. Supplemental employment benefits, commonly called sick sub benefits, are only available to those employees who become sick while on layoff. These benefits are provided by Dana. Dana's supplemental security plan provides additional compensation to workers in three categories. Those workers who are on layoff status and who are not sick are entitled to apply for State unemployment compensation and supplemental unemployment benefits provided from a non-contributory fund maintained by Dana. When an employee is on layoff status and becomes ill, he no longer is entitled to apply for State unemployment compensation benefits because he is unavailable for work. Consequently, he qualifies for sick sub benefits which are provided at a higher rate than the supplemental benefits in order to provide the employee with income comparable to that which he would receive from the State Unemployment Compensation Fund and from Dana's supplemental unemployment benefits program. A third-party category exists for workers who are not laid off but are injured on the job. These workers are entitled to receive workmen's compensation benefits. Blue Cross and Blue Shield benefits are available to employees and cover medical expenses incurred should they become sick either at work or while on layoff.

 15. Dana maintains a procedure for return to work from layoff. If an employee is laid off and is not sick, then he is subject to recall when work is available and he may also exercise seniority rights to claim-in to a job presently held by an employee with less seniority. If an employee is laid off and sick, then he must have Form 740 completed by the treating physician, take this form to the company doctor, and obtain an approval to return to work and then report to the employment office. The employee will then be returned to the lay-off recall list and may then exercise his claim-in rights to bump a person with less seniority in another department. This procedure must be followed both upon a recall and upon an attempt to exercise the claiming procedures of the agreement.

 16. Although plaintiff could have exercised his claim-in privileges in September 1972, he failed to do so.

 17. Plaintiff's seniority rights as an employee of Dana during the periods material to plaintiff's complaint are governed by the collective bargaining agreement between Dana and Union, effective December 16, 1973, at Article 6.

 18. A claim-in privilege entitles an employee who is permanently laid off to replace another employee in another department if he has sufficient seniority.

 19. Plaintiff's claim-in privileges as an employee of Dana during the periods material to plaintiff's complaint are governed by said agreement effective December 16, 1973 at Article 6, Section 9. This agreement provides in pertinent part as follows:

 
"(a) When an employee is permanently laid off, he shall, under the provisions herein contained, be entitled to replace another employee in another department. Application to replace another employee must be made within five (5) working days after effective date of lay-off through an interview with the Employment Office. If an employee elects not to make an initial claim within the five (5) working days after effective date of lay-off, he may after the expiration of thirty days (30) after the effective date of lay-off make a claim at that time. If there are no jobs available at that time into which he can claim, then he has the privilege of applying at the expiration of each succeeding thirty (30) calendar days thereafter during the lay-off until such time as a job is available into which he can claim. Management has the right to return such claimants in a reasonable manner so as not to adversely affect the operations of a new department or shift just started. The length of time he has to claim after the thirty (30) calendar days is five (5) working days. A copy of the form used for claim shall be returned by employee and a copy given to the Union."

 20. Pursuant to the pertinent provisions of said agreement, plaintiff's claim-in time in January of 1972 ran for a period of five working days commencing on January 13, 1972 and expiring on January 19, 1972. Plaintiff's claim-in time for the month of September 1972 ran for a period of five (5) working days commencing on September 9, 1972 and expired on September 15, 1972. The week-end days of September 9 and 10, 1972, are not considered working days.

 21. Plaintiff's claim-in period in January 1974 ran for a period of five (5) working days, commencing January 2, 1974 and expiring on January 8, 1974, not ...


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