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)