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MIRKIN v. CINTAS CORP.

April 8, 1982

BRAD MIRKIN
v.
CINTAS CORPORATION



The opinion of the court was delivered by: GILES

Presently before me is defendant's Motion for Summary Judgment. Plaintiff commenced the underlying action in the Philadelphia Court of Common Pleas pursuant to Pennsylvania's Wage Payment and Collection Law, 43 Pa. Cons. Stat. Ann. §§ 260.1-.45. (Purdon Supp. 1981-1982). Defendant properly removed the action to this court. *fn1"

 Plaintiff alleges that he was an employee of defendant who was dismissed by defendant without notice. Under the terms of the collective bargaining agreement, plaintiff claims to be entitled to: (1) two weeks salary since plaintiff was dismissed without notice and (2) vacation pay at the rate of one vacation day for each full two months of employment.

 Defendant has filed this motion for summary judgment asserting that plaintiff is barred from bringing any claim for wages arising out of his dismissal since he did not comply with the four-step grievance procedure culminating in binding arbitration, which is to be followed under the collective bargaining agreement in the event of discharge or suspension. Further, defendant asserts that plaintiff does not qualify for vacation pay, since he was not employed for the requisite one-year period.

 The defendant has come forward with evidence in the form of an affidavit and requests for admission, which is uncontradicted by plaintiff, and from which the following facts can be gleaned.

 Plaintiff was employed by defendant from January 2, 1979, to October 4, 1979, when he was dismissed without notice by defendant. At the time of his discharge, he was a member of Teamsters Local Union 830 ("Local 830") and was subject to the terms of a collective bargaining agreement, ("the Agreement") between Local 830 and defendant which governed questions relating to wages, hours, and conditions of employment. The Agreement provides that before terminating the employment relationship either party must give two-weeks notice. In lieu of two-weeks notice, the employer could pay the employee two-weeks salary. The Agreement further provides that these provisions shall not apply to an employee who is dismissed "for just cause." The Agreement also contains separate provisions regarding entitlement to vacation pay upon dismissal. Based on these provisions of the Agreement, plaintiff claims he should have received vacation pay and severance pay upon dismissal.

 The Agreement provides at Article 19 and 20 for grievance procedures which apply to "any controversy complaint, misunderstanding, or dispute that an employee or the Union has with the company arising under the terms of the Agreement." Agreement, Article 20. The four-step grievance procedures culminate in final and binding arbitration. In the event of discharge, the grievance procedures are to be followed, but are preceded by an additional requirement that the discharged employee give notice of his desire to appeal the discharge to the Union and the employer.

 It is undisputed that at no time following plaintiff's discharge did defendant receive any written grievance from Local 830 concerning plaintiff's discharge or of plaintiff's claim for wages and vacation pay. Local 830 did not give written notice of its intention to appeal plaintiff's discharge or pay claims to Arbitration. Nor did plaintiff give defendant written notice of his desire to grieve or appeal his discharge or pay claims, nor of his intent to implement the procedures under the Agreement for resolving grievances. Thus, it is clear that in bringing this action to recover wage payments and vacation pay, plaintiff has side-stepped the grievance procedures provided in the Agreement.

 It is well-established that beneficiaries of a collective bargaining agreement must exhaust available grievance and arbitration procedures before recourse to judicial remedies. Republic Steel Corp. v. Maddox, 379 U.S. 650, 13 L. Ed. 2d 580, 85 S. Ct. 614 (1965). See also Clayton v. International Union, UAAAIW, et al., 451 U.S. 679, 68 L. Ed. 2d 538, 101 S. Ct. 2088 (1981) (dictum).

 In Maddox, plaintiff sued in state court to recover severance pay allegedly due under the terms of the applicable collective bargaining agreement. After concluding that the contract sued on was subject to § 301 of the LMRA, and was therefore governed by federal law, the court noted that the suit was essentially based on the contract. Noting that the contract provided for a grievance process culminating in arbitration and that federal policy encouraged resolution of disputes under collective bargaining agreements by arbitration, the court held:

 
As a general rule in cases to which federal law applies, federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress.

 Id. at 652. (footnote omitted).

 While certain judicially recognized exceptions exist to the Maddox rule, plaintiff does not allege that any of them apply here. See, e.g., Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 67 L. Ed. 2d 641, 101 S. Ct. 1437 (1981) (wage claims under Fair Labor Standards Act not barred by unfavorable arbitral decision since rights under FLSA are independent of collective bargaining process); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 47 L. Ed. 2d 231, 96 S. Ct. 1048 (1976) (union's breach of duty of fair representation relieves employee of exhaustion requirement); U.S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 27 L. Ed. 2d 456, 91 S. Ct. 409 (1971) (seaman has remedy for wages under 46 U.S.C.§ 596 which is not abrogated by § 301 and its exhaustion requirements); Glover v. St. Louis-San Francisco Railway Co., 393 U.S. 324, 21 L. Ed. 2d 519, 89 S. Ct. 548 (1969) (failure to exhaust contractual remedies under collective bargaining agreement not a bar where resort to them would be fruitless); Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967) (failure to exhaust contractual remedies under collective bargaining agreement no bar if union breaches duty of fair ...


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