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LONG v. INTERNATIONAL UNION OF ELEC.

August 25, 1982

EILEEN MARIE LONG
v.
INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, LOCAL 141 and THE MARKEL CORPORATION



The opinion of the court was delivered by: LUONGO

 LUONGO, Ch.J.

 Eileen Marie Long, plaintiff in this civil action, is suing her union, International Union of Electrical, Radio & Machine Workers, Local 141 (Local 141), and former employer, Markel Corporation (Markel), alleging that Markel suspended and later discharged her in violation of the collective bargaining agreement between Local 141 and Markel, and that Local 141 failed to fairly represent her in grievance proceedings involving both the suspension and the discharge. Plaintiff seeks reinstatement and back pay.

 Following the completion of a non-jury trial held on May 17-18, 1982, the parties submitted requests for findings of fact and conclusions of law. On pleadings, proof, and the written submissions of the parties, I make the following

 FINDINGS OF FACT

 1. Plaintiff, Eileen Marie Long, is an individual residing at 413 Maple Street, Conshohocken, Pennsylvania, who was employed as an extruder operator by Markel Corporation from August 30, 1976 to May 15, 1980, and was a member in good standing of International Union of Electrical, Radio & Machine Workers, Local 141 from 90 days after her employment with Markel began until May 15, 1980. (T. 151-52; P-1).

 2. Defendant, Local 141 of the International Union of Electrical, Radio & Machine Workers (Local 141), is an unincorporated association with its principal place of business at School Lane, Plymouth Township, Pennsylvania, and at all times relevant hereto was a labor organization and the exclusive bargaining representative of certain employees of Markel, including plaintiff. (Complaint para. 6).

 3. Defendant, Markel Corporation (Markel), is a corporation with its principal place of business at School Lane, Plymouth Township, Pennsylvania, and is engaged in the manufacture of electrical insulation, high temperature coaxial cables, and plastic tubing. (T. 152, 250; Complaint para. 5).

 4. At all times relevant hereto, Local 141 and Markel were parties to a collective bargaining agreement dated October 1, 1977. (T. 35; P-3).

 5. Schedule B to the collective bargaining agreement enumerated several "shop rules" adopted by Markel pursuant to its authority to govern the conduct of its employees. (P-3, Art. XV, section 1). An employee was subject to discipline, including suspension and discharge, for the breach of these rules. (P-3, Schedule B).

 6. One particular rule set forth in Schedule B provides that "excessive absenteeism without cause" is "just and proper cause for immediate discharge." The rule defines "excessive absenteeism" to mean "more than 5% within a three months' period" (P-3, Schedule B) [hereinafter, the excessive absenteeism rule shall be referred to as the "5% rule"].

 7. As historically interpreted and applied by Local 141 and Markel, an employee violated the 5% rule if he or she was absent more than three days in a three-month period. (T. 93, 133). At all times relevant hereto, plaintiff knew of this interpretation of the rule. (T. 198).

 8. As historically interpreted and applied by Local 141 and Markel, absences supported by a physician's excuse were counted in determining whether an employee had violated the 5% rule. This interpretation and application of the rule antedated plaintiff's employment with Markel. (T. 35-37, 190-91, 250-56, 360, 381-82).

 9. Article VIII, Part One of the collective bargaining agreement concerns the right of an employee to take an extended sick leave "without pay". An employee qualifying for sick leave is entitled to receive $100 per week from an insurance carrier for up to one year from the last day worked. Article VIII, Part One does not relate to or qualify the "without cause" language of the 5% rule. (T. 37-40, 131-33; P-3, Article VIII, Part One).

 10. Although Markel had the right under the collective bargaining agreement to discharge immediately a violator of the 5% rule (Finding 6, supra), Markel's disciplinary policy was, in practice, less severe. To encourage the habitually absent employee to "rehabilitate" himself, Markel disciplined violators of the 5% rule in the following manner: (a) First violation -- verbal warning; (b) another violation within six months -- written warning; (c) a violation within six months of a written warning -- suspension; and (d) a violation within six months of a suspension -- discharge. If six months passed without a violation, the employee's "slate" was wiped clean and the disciplinary cycle commenced anew. (T. 120-21, 281, 311-15).

 11. Prior to 1980, when the events which gave rise to this lawsuit occurred, plaintiff had received the following disciplines for violation of the 5% rule:

 
(a) July 29, 1977 -- verbal warning (T. 179-80; P-9; C-3)
 
(c) April 7, 1978 -- three-day suspension (T. 182-83; P-9; C-7)
 
(d) September 5, 1978 -- two-day suspension (T. 184-85; P-9, C-9)
 
(e) June 13, 1979 -- verbal warning (T. 185; P-9, C-10)
 
(f) August 10, 1979 -- written warning (T. 185-86; P-9; C-11)

 12. Even as measured by Markel's more liberal disciplinary policy (Finding 10, supra), the September 5, 1978 suspension of plaintiff referred to in Finding 10(d) was an act of leniency. Instead of discharging plaintiff, Markel merely suspended her and warned: "If this condition still continues after two suspensions she will be terminated." (C-9).

 13. The April 7, 1978 suspension referred to in Finding 10(c) was imposed after plaintiff returned from a three-day absence for which she produced a doctor's certificate. (C-8). Notwithstanding her medical excuse, plaintiff did not grieve the suspension. Nor did she grieve any of the other disciplines set forth in Finding 10. (T. 182-84, 190-91).

 14. On Monday, February 11, 1980, plaintiff returned to work after being absent due to illness the previous week. Although she produced a note from her family doctor stating simply that she was under his care (C-2), Markel suspended her for three days without pay for violating the 5% rule. *fn1" (T. 153-55; P-10; C-2).

 15. Because the grievance procedures contained in the collective bargaining agreement limited the right to file a grievance to Markel and Local 141 (T. 90-92, 195; P-3, Article VII, section 1), plaintiff asked Rose Weaver, shop steward, if Local 141 would file a grievance contesting the suspension. (T. 155, 195, 356).

 16. When plaintiff returned from her three-day suspension on February 15, 1980, Local 141 filed a grievance on her behalf (C-1), and an informal first step grievance meeting was held in accordance with the grievance procedures set forth in the collective bargaining agreement. (P-3, Article XII, section 2). *fn2" Although Theresa Storti, then President of Local 141, argued that it was unfair to suspend plaintiff, given her doctor's excuse, Markel refused to rescind the suspension because of plaintiff's overall attendance record. (T. 10-12, 94-95, 156-57). Plaintiff was present at this Step #1 meeting. (T. 156).

 17. After the first step meeting, Storti advised plaintiff that it would look better for her in subsequent grievance proceedings if she obtained a second doctor's note which reflected the contagious nature of her illness. (T. 32-35, 159). In addition, Storti prepared for further proceedings by reviewing plaintiff's attendance record which Local 141 had on file. (T. 13-14).

 19. Subsequent to the second step hearing, Storti notified Thomas Donohue, the International representative of Local 141, who was responsible for prosecuting for the local all grievances beyond the second step level. Storti explained plaintiff's grievance to Donohue and later provided him with plaintiff's attendance records. In anticipation of pressing plaintiff's grievance, Donohue reviewed arbitration decisions in cases similar to plaintiff's. Donohue also met with plaintiff prior to the third-step hearing. (T. 16, 213-14, 265).

 20. A third step hearing was later held, but not within five days of the second step as required by the collective bargaining agreement. (P-3, Article XII, section 2). Markel agreed to waive the five-day requirement to accommodate Local 141. Plaintiff agreed to this ...


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