Kennedy v. Bell Telephone Co.

213 A.2d 181, 206 Pa. Super. 305, 60 L.R.R.M. (BNA) 2172, 1965 Pa. Super. LEXIS 800

• Court: Superior Court of Pennsylvania
• Decided: September 16, 1965
• Docket: Appeal, No. 176
• Status: Published

Opinion

Opinion by

Jacobs, J.,

On September 18, 1959, The Bell Telephone Company of Pennsylvania, appellee herein, and hereinafter referred to as defendant, entered into a collective bargaining agreement with The Pennsylvania Telephone Union, Local 1944, of the International Brotherhood of Electrical Workers, AFL-CIO, hereinafter referred to as Union. Appellant, hereinafter referred to as plaintiff, was a member of the Union. The defendant was engaged in interstate commerce, within the meaning of the Labor Management Relations Act, 61 Stat. 136, 29 U.S.C. §111 et seq.

Under Section 8.08 of tbe collective bargaining agreement it was provided that each regular employee of the defendant laid off as tbe result of “force surplus” would be paid a “layoff allowance” in accordance with a schedule based on tbe number of years tbe employee bad been with the company. On July 1, 1960, tbe defendant sold its toll facilities in Johnstown to tbe General Telephone Company of Pennsylvania. As a result of said sale tbe plaintiff was laid off on June 30, 1960. Plaintiff who bad been employed by tbe defendant for fourteen years now claims that such layoff entitled her to a layoff allowance under Section 8.08 of tbe collective bargaining agreement. She brought suit against tbe defendant on October 2, 1963, by action of assumpsit filed in tbe Court of Common Pleas of Cambria County.

Defendant demurred to tbe complaint on tbe ground that tbe plaintiff was bound to use tbe grievance and arbitration procedures set forth in the collective bargaining agreement and, not having alleged that she bad utilized those procedures, could not sue in a court of law. Plaintiff answered tbe preliminary objections claiming that tbe collective bargaining agreement was no longer in effect when she learned that she bad a claim resulting from her layoff which was twenty months after she had been discharged, at which time she was no longer an employee of tbe defendant nor was she a member of tbe Union, and that, therefore, tbe procedures for grievance and arbitration were no longer available to her. Tbe court below sustained tbe demurrer and dismissed tbe complaint on tbe ground that tbe grievance and arbitration provisions of tbe contract were exclusive procedures which bad not been invoked by tbe plaintiff. We find that tbe court below acted properly.

Section 10 of the collective bargaining agreement covers the subject of grievances. Subsection 10.01 provides as follows: “Grievances shall be presented by the employee affected, or by the Union for the employee affected to the Chief Operator, or other immediate management supervisor of such employee, in an effort to reach a mutually acceptable adjustment of the disputed matter. . . .”

This is followed by Subsection 10.02 which has the following provision: “If the matter is not adjusted to the satisfaction of the employee or Union, it may then be taken up with any higher ranking management supervisor in the traffic department having authority over the matter up to and including the general traffic manager, provided that the grievance is first reduced to writing. ...”

The agreement then provides for binding arbitration under Section 11. The arbitration procedures are to begin: “If at any time a controversy arises between Union and Company regarding the true intent and meaning of any provision of this agreement, or regarding a claim that either party thereto has not fulfilled its obligations hereunder, upon written request of either party setting forth its contention, . . . .”

A lengthy discussion of this case is not required because it is controlled by Republic Steel Corporation v. Maddox, 379 U.S. 650, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965)¹. In Maddox the plaintiff brought suit in an Alabama State Court against his employer for severance pay allegedly owed him under the terms of the collective bargaining agreement between his employer and his union, the plaintiff having been laid off by the employer. The appellate courts of Alabama held in. favor of the plaintiff on the theory that state law applies to suits for severance pay and that under Alabama law the plaintiff was not required to exhaust the contract grievance procedures. The Supreme Court reversed the Alabama Courts holding that where an employer is engaged in interstate commerce within the meaning of the Labor Management Relations Act, supra, federal law governs suits for severance pay, that severance pay disputes are contract grievances and that an employee who has a grievance must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress. We see no difference between the claim for severance pay made in Maddox, supra, and the claim for layoff allowance made in this case. Both parties to this suit use the terms interchangeably.

Maddox answers the only argument raised by the plaintiff which requires an answer to decide this case when it states, “And it cannot be said, in the normal situation, that contract grievance procedures are inadequate to protect the interests of an aggrieved employee until the employee has attempted to implement the procedures and found them so.” Nothing in the record shows any effort on the part of the plaintiff to use the contract grievance procedures either individually or through the union.

The contract grievance provisions of the collective bargaining contract were mandatory on the plaintiff. Subsection 10.01, quoted above, which provides that grievances “shall” be presented by the employee or by the union, was a command that the grievance procedure, leading to arbitration, be used. The only option it gave plaintiff was that of initiating the grievance personally or through the union. It did not give her the option of disregarding the entire grievance and arbitration procedure in favor of a law suit. The plaintiff having failed to attempt, let alone exhaust, her remedies tinder the contract cannot maintain this action against defendant.

Decree affirmed.

Hoffman, J., took no part in the consideration or decision of this case.

1 In Beebe v. Union Railroad Company, 205 Pa. Superior Ct. 146, 208 A. 2d 16 (1965), we held Maddox to be controlling in a suit brought by a railroad employee.