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FRAME v. B. F. GOODRICH CO.

June 28, 1978

WARREN FRAME
v.
B. F. GOODRICH COMPANY



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 Plaintiff, Warren Frame, a retired employee of defendant, B. F. Goodrich Company ("Goodrich"), has filed this action pursuant to § 301 of the Labor Management Relations Act ("Act"), 29 U.S.C. § 185, alleging that Goodrich wrongfully withheld disability pension payments from him in violation of the Agreement on Employee Benefit Programs ("Agreement") between Goodrich and the plaintiff's Union. The Union, the International Union of the United Rubber, Cork, Linoleum, and Plastic Workers of America, AFL-CIO ("Union"), is not a defendant and no claim of improper representation has been made against it. The defendant has filed a motion for summary judgment on the ground that the plaintiff is precluded from bringing this action because the Agreement provides a specified grievance procedure as the exclusive method of settling all disputes arising under the contract. The plaintiff opposes the motion on the ground that he has exhausted his non-judicial remedies, and that this Court should adjudicate his dispute with Goodrich under § 301 of the Act. For the reasons hereinafter set forth, the Court will grant the defendant's motion for summary judgment.

 The material facts are not in dispute. Plaintiff is a former Goodrich employee who became disabled on July 13, 1973 and was placed on Goodrich's Disability Pension Roll as of January 1, 1974, pursuant to the terms of the Agreement. The amount of the plaintiff's disability pension payments was determined under Article 5, paragraph 5.3 of the Agreement, which sets the amount of an employee's disability pension at one of two levels, depending on whether or not the disabled employee is also eligible for unreduced disability benefits or unreduced primary old age insurance benefits under Social Security. Under the Agreement, employees who are not entitled to unreduced Social Security benefits receive from Goodrich approximately double the monthly benefit received by those entitled to unreduced Social Security benefits. The disability pension plan attempts to assure a rough parity of disability income for all employees covered by the Agreement.

 On January 1, 1974, the plaintiff became eligible for a disability pension under the Agreement, and was paid the higher level of benefits, as provided by the Agreement. The plaintiff had applied for Social Security disability benefits, but was declared ineligible. However, on April 9, 1976, after appeals, Social Security awarded him unreduced disability benefits retroactive to February, 1974. The Social Security awarded the plaintiff a lump sum payment in the amount of $5,230.63 ($6,983.10 less an authorized attorney's fee of $1,745.77) as past due benefits for the period February 1974 through April 1976, and the sum of $302.00 a month thereafter. The plaintiff had been receiving from Goodrich for the period February 1974 through April 1976 the higher level of benefits provided in the Agreement for those not entitled to unreduced Social Security benefits.

 Following the Social Security award to the plaintiff on April 9, 1976, Goodrich informed him that he had been overpaid the sum of $4,433.29 and that reimbursement in that amount should be made to Goodrich, either in a lump sum, by monthly payments, or by Goodrich's withholding future monthly disability payments. The plaintiff having resisted repayment, Goodrich advised him that commencing on May 1, 1976, for a period of twenty-five months, it would not make any monthly payments to him on the ground that his benefits had been prepaid for that period, but that at the expiration of the period it would resume making the monthly payments.

 Article 15 of the Agreement provides:

 
Appeals Procedure
 
If any dispute . . . shall arise between the Company and any Employee, Pensioner, or former Employee who has retired during the life of this Agreement . . . such dispute, shall as the exclusive means of settlement be taken up as a grievance beginning with the step next preceding arbitration, and be thereafter handled, in accordance with the grievance Procedure provided for in the Uniform Agreement . . . except that if any dispute arises during a period in which the Uniform Agreement. . . [is] not in effect, such dispute shall as the exclusive means of settlement be referred by the Local Union President as a grievance to the Plant Manager in the case of any Plant outside Akron . . . and if such dispute is not settled by these individuals, it may be agreement be referred to arbitration. (Emphasis added).

 Article 1(d) of the Agreement defines "Uniform Agreement" as follows:

 
"Uniform Agreement" shall mean the collective bargaining agreement dated May 31, 1973, between the Company, the International Union and the Local Unions, as may be amended or supplemented on any successor agreement.

 All the events concerning the dispute between the plaintiff and Goodrich occurred during the period when the "Uniform Agreement" was not in effect, and the plaintiff's dispute with Goodrich was processed in accordance with the grievance procedure provided in the above quoted article of the Agreement.

 The Agreement between the Union and Goodrich provided that in the event any dispute should arise between the company and the employee during a period when the collective bargaining agreement was not in effect, the exclusive method of settling the dispute should be a referral as a grievance by the local union president to the plant manager, and if such dispute is not settled by these two individuals, it may by agreement be referred to arbitration. No agreement was entered into between the Union and Goodrich to refer the plaintiff's grievance to ...


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