Anna Spainhouer v. Western Electric Company, Inc.

IN THE SUPREME COURT OF TEXAS NO. B—9176 ANNA SPAINHOUER, § § Petitioner, § § , v. § FROM DALLAS COUNTY § WESTERN ELECTRIC COMPANY, § NINTH DISTRICT INC., § § Respondent. § ON MOTION FOR REHEARING Our opinion of March 11, 1981, is withdrawn and this opinion is substituted in its stead and the parties are given 15 days within which to file an Amended Motion for Rehearing. This is a suit for wrongful termination of employment. The trial court granted summary judgment for respondent and the court of civil appeals affirmed. 592 S.W.2d 662 . We reverse and remand. Petitioner, Anna Spainhouer, was employed by respondent, Western Electric Company, Inc., and was injured in the course of her employment. She claimed worker's compensation benefits and after settling her claim she was ordered to report to work but refused do to so on the ground that she had not sufficiently recovered from her injuries. She was discharged for failure to report. She was a member of the Communications Workers of America which had a collective bargaining agreement with respondent. Petitioner complained to her union that she had been wrongfully discharged and the union commenced a grievance procedure with respondent pursuant to the collective bargaining agreement. As set out in the collective bargaining agreement, the grievance procedure consists of five steps, followed by binding arbitration at the option of either party. After completion of the fifth step the local union submitted the file to the district office of the international union without recommendation as to whether arbitration should be invoked. The district office declined to ask for arbitration. Upon being informed of this decision the petitioner filed suit for wrongful termination pursuant to TEX. REV. CIV. STAT. ANN. art. 8307c, which provides: Section 1. No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmen's Compensation Act, or has testified or is about to testify in any such proceeding. The summary judgment evidence consisted of affidavits from two union representatives who stated that they had instituted a grievance procedure under Articles 22 and 29 of the collective bargaining agreement. Further, they stated that after completing the grievance procedure as set out in Article 10 of the agreement the district office of the international union declined to pursue the matter to arbitration. There was also an affidavit from petitioner in opposition to the motion for summary judgment, stating that she had requested the union to file a grievance for wrongful termination. The trial judge'rendered a summary judgment which did not recite any findings of fact or conclusions of law. However, in a letter to each of the attorneys, a copy of which is in the record before us, the trial court set out its reason for the summary judgment, stating that it found Thompson v. Monsanto Co., 559 S.W.2d 873 (Tex. Civ. App. Houston [14th Dist.] 1977, no writ) to control this case. We granted the application for writ of error in this case based on petitioner's point that the case is controlled by our recent decision in Carnation Company v. Borner, 610 S.W.2d 450 (Tex. 1980). In Borner, we distinguished Thompson v. Monsanto Co. pointing out that in Monsanto the employee had pursued his rights under the collective bargaining agreement to final arbitration; whereas in Borner, the grievance procedure under the collective bargaining agreement had broken off at an early stage and there was no arbitration. In order to determine whether the steps taken by the union on petitioner's behalf precluded her from pursuing her rights under Art. 8307c we must look to the collective bargaining agreement itself. As previously noted, the summary judgment evidence consists of affidavits from two union representatives and the petitioner. The affidavits of the union representatives stated that they were involved in the grievance procedure which was filed under Articles 22 and 29 of the collective bargaining agreement. They both.stated in their affidavits that a true and correct copy of the collective bargaining agreement was attached. However, the only portions of the agreement attached were copies of Articles 9, 10, ll, 22, 23, 29 and 30. Article 29 is entitled "Suspensions and Terminations of Employment — Relieved, Dropped or Discharged." This Article provides that the local union may question the justification of the acts taken ... in accordance with Article 10 — Grievance Procedure. Article 10 sets out the five step grievance procedure for settlement of grievances arising with respect to wages, hours of work and other conditions of employment. Article ll is entitled "Arbitration" and provides for binding arbitration following the five step grievance procedure, upon application Within the specified time by either party to the grievance procedure. And it further provides that the right to arbitrate any dispute should be deemed waived if either party fails to institute arbitration proceedings within sixty days following the receipt of the final answer of the company. When read together it is clear that a dispute would still be alive after the final step in the grievance procedure set out in Article 10. The dispute would be finally settled under the collective bargaining agreement only on submission to arbitration and a ruling by the arbitrator. This never took place in the instant case, so there was no final settlement of the dispute under the agreement. This case is thus distinguished from Monsanto, where there was a final award by the arbitrator. Respondent contends that Section 301a of the LaborManagement Relations Act (Taft—Hartley Act) 29 U.S.C. § 185 (1970) preempts Article 8307c and that petitioner is barred from bringing this action. This point is not before us because there were no pleadings or evidence to raise the issue. The judgments of the courts below are reversed and this cause is remanded to the trial court for trial on the merits. es P. Wallace ustice OPINION DELIVERED: April 14, 1981 w i1»- 2 {1' ’ ‘, in . “at. W“ x «r K... ‘ - “3 ft; g: .H _ u :-: ‘r Y. "1 {a a. ; «/ FéLED , p .N; iUPREME COURI I (‘5? TF‘IN APRIS GARSON R. JACKSON.¢Ll-RK “wamy / « vmd‘vr‘ I} THE SUPREME COURT OF TEXAS CHIEF JUSTICE RC. BOX 12248 CAPITOL STATION CLERK JOE R GREENHILL AumN TEXAS 78711 GARSON R JACKSON JUSTICES EXECUTIVE ASST JACK POPE WILLIAM L WILLIS . M SEARS MCGEE arch Tl , 1981 ADMINISTRATIVE ASST “MB 6' DEMON MARY ANN DEFIBAUGH CHARLES w BARROW ROBERT M. CAMPBELL FRANKLIN S. SPEARS C. L RAY JAMES P WALLACE Mr. Stephen L. H011ey, Atty H011ey & HoTTey 5217 Ross Ave., Suite 918 DaTTas, Texas 75206 Mr. Patrick F. McGowan, Atty Strasburger & Rrice 1200 One Main Piace DaTTas, Texas 75250 RE. B-9176: ANNA SPAINHOUER vs. WESTERN ELECTRIC COMPANY, INC. Ninth Court of Civi1 AppeaTS No. 8372 192nd District Court of DaTTas County No. 78-487-0 GentTemen. Today, the Supreme Court of Texas deTivered an opinion in the above referenced cause. The opinion by Justice WaTTace reversed the judgments of the courts beTow and remanded the cause to triaT court for a triaT on the merits. Copies of the encTosed opinion are being maiTed to Justice Quentin Keith, Ninth Court of CiviT Appeals, Judge Snowden Leftwich in the 192nd District Court, and Da11as County District CTerk, Mr. 8111 Shaw. Very truTy yours, GARSON R. JACKSON, C1erk akefield Duty EncT. opinion THE SUPREME COURT OF TEXAS CHIEF P.O. BOX 12243 UHTOL STATION JOE R GREENHILL mm“ TEXAS 78711 GARSON R JACKSON fiSHGB DEGHHEAST JMXPom VmuMMmeus SEARS MCGEE - MMEGJENKW Aprll 15: 1981 ADWNSRMTTNET CHARLES w BARROW MARY ANN DEFIBAUGH ROBERT M. CAMPBELL FRANKLIN S. SPEARS C. L RAY JAMES P \XALLACE Mr. Stephen L. Holley, Attorney 5217 Ross Avenue - Suite 918 Dallas, Texas 75206 Mr. Patrick F. McGowan, Attorney 1200 One Main Place Dallas, Texas 75250 Dear Sirs: Today the Supreme Court withdrew the opinion in the case of ANNA SPAINHOUER vs, WESTERN ELECTRIC COMPANY, INC., No. B-9l76, that was delivered on March 11, 1981, and the opinion delivered on this date is substituted therefor. The Court is allowing fifteen days in which to file an amended motion for rehearing. Very truly yours, ééa/MLtV‘KQ arson R. J kson, Clerk CC: Hon. Quentin Keith, Justice Court of Civil Appeals Beaumont, Texas 77701 Hon. Snowden M. Leftwich,Jr., Judge 192nd District Court Dallas, Texas 75202 Hon. Bill Shaw, District Clerk Dallas County Courthouse Dallas, Texas 75202 THE SUPREME COURT OF TEXAS CHIEF JUSTICE P.O. BOX 12248 CAPITOL STATION CLERK 105 R GREENE” AUSTIN. TEXAS 78711 CARSON R JACKSON JUSTICES EXECUTIVE ASS'T JACK POPE May 21 , 1981 WILLIAM L. WILLIS 15AM Es ADMINxsmATwE ASS‘T CHARLES w mow MARY ANN DEFIBAUGH ROBERT M. CAMPBELL FRANKLIN S. SPEARS C. L RAY JAMES P \X’ALLACE Mr. BiTT Shaw District CTerk DaTTas County Courthouse Dallas, Texas 75201 RE. ANNA SPAINHOUER vs. WESTERN ELECTRIC COMPANY, INC. No. B-9T76 in the Supreme Court No. 78-487-K in the T92nd District Court of DaTTas County, Texas Dear Mr. Shaw The judgment of the Supreme Court of Texas is now finaT in the above referenced cause. As RuTe 507, Texas RuTes of CiviT Procedure has been satisfied, we are issuing the mandate as of this date. EncTosed with the mandate is a certified copy of our cost biTT showing the charges and payments as refTected by the record for your use in settTement between the parties. Very truTy yours, GARSON R. JACKSON, CTerk EncT. mandate cost biTT CC Tetter onTy to. Mr. Stephen L. HoTTey, DaTTas Mr. Patrick F. McGowan, DaTTas