DEC 13 1970 J A HULGAN. mm B 1 "7 COURT or chL APPEALS 9 A .r 5 NINTH SUPREME JUchlAL 913mm , BE mom. 15x 3 No. 8372 ANNA SPAINHOUER APPELLANT V. WESTERN ELECTRIC COMPANY, INC. APPELLEE

Plaintiff below appeals from an adverse summary judgment entered in her suit against the defendant—employer for damages resulting from her alleged wrongful discharge. She sought damages under the provisions of TEX. REV. CIV. STAT. ANN. art. 8307c (Supp. 1978-79). Plaintiff was injured in the course of her employment with defendant and claimed worker's compensa- tion benefits. She settled her claim with the compensation insurance carrier but when she failed to report for duty as instructed by defendant, she was discharged.

Claiming that she was wrongfully discharged by the defendant she followed the grievance procedures contained in the contract between her union, Communications Workers of America, and

Western Electric, being assisted by the local Union officials.

The Union diligently pursued her claim through the first four steps of the grievance procedure and then wrote to the International representative of the Union recommending that the grievance be pursued through the fifth step--binding arbitra- tion--as prescribed in the contract. The International Union declined to take such step and so advised the local Union representative. Under the contract, if either party failed to institute arbitration procedures within sixty days, the right to arbitrate was deemed to have been conclusively waived.

The local officials of the Union advised plaintiff of the decision of the International Union not to pursue arbitration but no further action was taken thereon. Instead, she filed suit against the Company alleging that she had been discharged because she had filed a claim for worker's compensation benefits.

Defendant's motion for summary judgment urged the contention that plaintiff had elected to pursue her claim by way of the contractual remedy and had failed to exhaust her contractual remedies. Supporting affidavits were supplied by Union repre— sentatives. The Union was not made a party to the suit and no contention is made that the Union or any of its officials failed to discharge with fidelity and diligence every duty it owed to plaintiff.

The gravamen of plaintiff's complaint is that she was wrongfully discharged by the defendant employer. There was a comprehensive bargaining agreement providing an exclusive

method of settlement of such disputes and plaintiff availed

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l/ herself of such contractual provisions. For reasons which it

did not articulate, the International Union refused to take the grievance to the fifth step. A similar refusal was not disap- proved in Vaca v. Sipes, noted earlier. It is sufficient to state at the moment that no contention is made that the employee- plaintiff was "prevented from exhausting [her] contractual remedies by the union's wrongful refusal to process the grievance." (386 U.S. at 185, emphasis in original) See also, Ostrofsky v. United Steelworkers of America, 171 F.Supp. 782 (D. Maryland 1959), aff'd per curiam, 273 F.2d 614 (4th Cir.), cert. den'd, 363 U.S. 849 (1960).

The plaintiff chose the Union to process her grievance through the contractual machinery and is now bound by the acts of its agent. Harris v. Chemical Leaman Tank Linesz Inc., 437 F.2d 167, 170 (5th Cir. 1971).

Chief Justice Curtiss Brown wrote a scholarly opinion on the narrow subject now under discussion in the case of Thompson v. Monsanto Company, 559 S.W.2d 873 (Tex. Civ. App.--Houston

[14th Dist.] 1977, no writ), and held that federal law preempted the state law. His analysis of the statutes and decisions is approved and is now followed by this Court.

There is but one factual difference in the two cases. in Thompson, the parties went to binding arbitration, while here, plaintiff's Union declined to take the fifth step. But, as

1/ The steps in the grievance procedure in the contract before us are substantially the same as those set out in

Vaca V. Sipes, 386 U.S. 171, 175, 87 S.Ct. 903, 17 L.Ed.2d 2, 9, fn. 3 (1967).

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noted above, plaintiff does not contend that the Union wrong- fully refused to pursue her claim. See Sartwelle, "Workers' Compensation, Annual Survey of Texas Law”, 33 SW. L.J. 3312

367 (1979), for a discussion of Thompson, supra. See also, Brown v. Gulf Coast Machine & Supply Co., 551 S.w.2d 397, 400 (Tex. civ. App.--Beaumont l977, writ ref'd n.r.e.), concurring opinion.

Finally, after considering the very recent opinion in Carnation Company v. Borner, ___ S.W.2d __p (Tex. Civ. App.-- Houston [14th Dist.], No. B1969, August 1A, 1979, not yet reported), we are of the opinion that the language used in Vaca v. Sipes and Monsanto relating to arbitration controls the disposition of this cause. The local Union in our case did far more than merely file a grievance. Whatever may have been the motivating factors compelling the International Union to forego its demand for arbitration did not confer private rights upon plaintiff to pursue her tort claim against her employer.

The factual situation in Borner is inapplicable to our cause. The trial court properly granted the defendant's motion

for summary Judgment and such judgment is now AFFIRMED.

Quentin Keith Justice

Opinion delivered December 13, 1979

IN THE COURT, OF CIVIL APPEALS FORHTHE

NINTH SUPREME IHDICIAL DISTRICT OF TEXAS

At Beaumont, Texas

STATE OF TEXAS } COUNTY OF JEFFERSON

I, J. A. Hulgan, Clerk of the Court of Civil Appeals,

for the Ninth Supreme Judicial District of Texas, at Beaumont, Texas, do hereby certify that the foregoing F3E£___ pages,

is a true and correct copy of Court's Qpinign

in cause No. 8372 _m_uln

Anna Spainhouer —————-——p—wm—m——a—-—n———————u——i—————

v5, Western Electric ComEanx, Inc. mm

which was filed in said Court of Civil Appeals on the lggh day of

December , A,D. 19 79

Witness my hand and seal of said Court ofCivil Appeals, at

Beaumont, Texas, this 6th day of Februarx A.D. 19 89.

J. A. HULGAN, Clerk

Judgment Rendered _________ ________________________________________ __ 197 __________ -. __ vs. No..-____-_ 7 6 _ ________ __W§__S_t_§_r_n__._Eleg1;_ri§-__§_9mpan _1__-_:_[_IJ_Q-: ___________________________________________________________________________________________________ __ from ______________ "District. ______________________ _.Court of .............. _.Dallas _______________________________________________ __County Opinion by ..... "Associate ____________________________________________ _.Justice____Quenj;;Ln__.K§3,131.,

This cause came on to be heard on the transcript of the record, and, the same being inspected, because it is the opinion of the Court that there was _________________ _.n._9._ __________________________ __error in the judgment; it is therefore considered, adjudged and ordered that the judgment of the Court below be

in all things affirmed, and that all cost of this appeal be assessed against the appellant, Anna Spainhouer and the surety on her appeal bond, Lawyers Surety Corporation. A copy of this judgment, shall

be certified below for observance.

Order, made _.EEEEEILNJL__ 19 overruling motion for a rehearing

Motion No._______-__-; Cause No.-_-____.-__-__________.___.; ____._____-___________________-____

from _________________________________________________________ _.; motion for rehearing; the motion is overruled.

1, JOE A. HULGAN, Clerk of the Court of Civil Appeals, Ninth Supreme Judicial District of Texas, hereby certify that the foregoing page contains true and correct copies of the judgment of said Court and its order overruling the motion for a rehearing and the respective dates thereof in the above numbered and styled cause.

Witness my hand and the seal of said Court, this the ________ _§_Eh__day offlEEQE—EQEX _______ _.A. D 19 ..... .§-Q JOE A. HULGAN Clerk

CLERK'S OFFICE-Court of Civil Appeals at Beaumont

Anna Spainhouer BERTlFlED COPY

vs. BILL OF COSTS No? 8312 in the Eastern Electric co , Inc COURT OF CIVIL APPEALS, 9th DISTRICT T Clerk's Fees, Court of Civrl Appeals (Rule 388—Al $ 2500 Tran-script Fee _- W ‘ 52 L00 Statement of Facts Fee w. _ Total”, 77 00

I. J A. HULGAN. Clerk of the Court of Civil Appeals. Ninth Supreme Judicial District. at Beaumont. hereby certify that the above copy of Bill of Cost: is true and correct.

GIVEN UNDER MY HAND AND SEAL 0F SAID COURT. at Beaumont. this_£§_} }___ay of February A. 1).. 19 80

J_ge A. Hulgan ._ Clerk,

\ ‘ Rx MW “ - Dcpmv

Glnurt nf QIihiI (Appeals $61111 (Supreme illuhiniul @istrict 33mm, @2319 777111

MARTIN DIES. IR.. CHIEF IUS'I'ICE I. A. HULGAN QUENTIN KEITH. ASSOCIATE JUSTICE CLERK HAROLD R. CLAYTON, ASSOCIATE Iusnca February 6 , 1980 (713) Basra-102

Mr. Garson Jackson, Clerk Supreme Court Building Austin, Texas 78711

In Re: No. 8372, Anna Spainhouer vs Western Electric Co., Enc.

,1} Transcript

2i Brief of Appellant (3)

,3< Brief of Appellee (3)

4% Motion for Rehearing (3)

5. CC Court's Opinion

6. CC Judgment

7. Appellant's Application for Writ of Error (12) g. Cost Bill ($10.00 check, Holley & Holley)