Brinkman v. State

No. 86-37

IN THF SUPREME COURT OF THE STATE OF MONTANA
1986

ALBERT L. BRINKMAN,
Plaintiff and Appellant,

STATE OF MONTANA, STATE OF MONTANA
INSTITUTIONS, and HENRY RISLEY,
Warden, Montana State Prison,
Defendants and Respondents.

APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Robert Royd, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Leonard J. Haxby & David L. Holland, Butte, Montana
For Respondent:
Chris D. Tweeten, Agency Legal Services Bureau,
Helena, Montana
For Amicus Curiae:
Charles E. Erdmann, Montana School Boards Assoc.,
Helena, Montana
LeRoy H. Schramm, Montana University System, Hel-ena,
Montana.

Submitted on Briefs: June 6, 1986
Decided: December 11, 1P86

Filed: Dl3 111 8
96

Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

Plaintiff Albert Brinkman appeals a Powell County
District Court order granting summary judgment to the
defendants State of Montana, State of Montana Department of
Institutions and Warden Henry Risley in this wrongful
termination of employment case. The sole question on appeal
is whether the appellant is barred from suing for wrongful
discharge because of his failure to exhaust contractual
remedies under a collective bargaining agreement. We answer
in the affirmative and, therefore, we affirm.
In 1982, appellant worked as a correctional officer at.
the Montana State Prison. In June of that year, appellant
suffered an injury on State property at the prison. He
applied for and received workers' compensation benefits for
his injuries. Subsequently, he took leave several times from
his job citing a continuing disability from his accident.
The Department of Institutions has a written policy on
industrial accidents. The policy specifies certain rules and
procedures covering injured workers, their absences from
work, their return to work and protection for their jobs in
the interim. In certain situations, the policy requires a
worker to submit request for leave forms and a medical
statement to the employer to protect the worker's right to
return to work.
In July 1983, appellant had been on leave from work
continuously for several months. On July 8, 1983, Prison
Personnel Officer John Pemberton sent appellant a letter
requesting that appellant complete the acompanying request
for leave forms and return those forms with a doctor's
statement to the prison administration. The letter stated
that a job would be held for appellant until December 18,
1983, if appellant returned the requested items by July 22,
1983. Further, the prison would consider appellant on
unauthorized leave and, therefore, terminated if he did not
return the requested items by then. Appellant testified by
deposition that no request for leave forms were enclosed with
the letter. His wife testified that a prison employee
verbally extended the deadline until July 31, 1983, and
assured her that request for leave forms would be sent to
appellant. Appellant's wife further testified that the forms
were never received. In any event, it is undisputed that
appellant did not provide the items to the prison by July 22
or July 31, 1983.
On August 10 or 11, 1983, appellant and his wife went
to the prison carrying a doctor's statement releasing
appellant to return to work. Prison employees informed
appellant that he had been fired and that he could not be
allowed inside the prison main gate. At that time, appellant
attempted to contact his union representative, Mr. Beatty,
who was apparently then working inside the prison. A prison
employee, Osborne, called Beatty for appellant and informed
appellant that Beatty could not come for twenty to thirty
minutes. Appellant waited for Beatty for about forty
minutes. Osborne then called Beatty again at appellant's
request. Beatty said he would arrive to talk with appellant
in ten minutes. He failed to arrive within ten to fifteen
minutes and Osborne again called him. Osborne called Beatty
an unspecified number of times until appellant, feeling
uncomfortable and embarrassed, finally left. Appellant
concedes that he did not again try to contact his union in
any way about the termination of his employment.
 In September 1981, after appellant was hired to work at
the prison, he signed a form authorizing the prison to deduct
union dues from his paycheck and remit them to the Montana
Public Employees Association (MPEA) . An affidavit submitted
by the MPEA's staff counsel shows that the prison deducted
union dues from appellant's paycheck during all of 1982 and
the first three months of 1983. The affidavit states that:
[Tlhe fact that Albert Brinkman's union
dues were not paid for the months April,
May, June, July and August of 1983 would
not disqualify Brinkman from receiving
the benefits of the collective bargaining
agreement, including its grievance and
arbitration procedure, if Brinkman was
considered to be an employee of the
prison during that time.
Pemberton, the prison personnel officer, filed an
affidavit stating that:
Permanent employees who take leave
without pay status continue to be
considered employees of Montana State
Prison until their resignation,
retirement, or discharge. Albert
Brinkman was considered to be an employee
until the time of his discharge.
Appellant admitted in his deposition that he belonged to the
regular state prison union.
In March 1983, the MPEA and the state entered into a
collective bargaining agreement (CBA) which governed the
conditions of employment at the prison. Article 11, section
five of that agreement states:
The Employer may discharge any employee
with permanent status only for just
cause. The Employer shall furnish an
employee subject to discharge or
suspension with a written statement of
the grounds and specific reason(s) for
such actions and shall in addition notify
the Association of the removal of an
employee for cause. An employee with
permanent status may appeal his/her
dismissal, suspension or other punitive
disciplinary action through the grievance
procedure. This in no way limits
 management's prerogative to lay off
employees in accordance with Article 13.
Article X, section four of the CBA provides:
Any grievance or dispute which may arise
between the Parties, involving the
application, meaning, or interpretation
of this Agreement, shall be settled in
the following manner ...
The agreement then lists specific steps that an employee
should proceed through, with the help of his union, to
resolve the grievance. The agreement ultimately provides for
final and binding arbitration.
Other than appellant's attempts on August 10 or 11 to
contact his union representative, he did not follow the
grievance procedure set out in the CBA. In December 1983,
appellant filed his complaint in the Powell County District
Court alleging (1) that the prison administration fired him
in retaliation for his work-related injury, thus violating
public policy, and (2) the prison fired him in violation of
an implied covenant of good faith and fair dealing. The
complaint named the State of Montana, the Montana Department
of Institutions, and Warden Henry Risley as defendants.
After extensive pre-trial discovery, the defendants moved for
summary judgment. The lower court granted summary judgment
defendants holding that appellant was barred from further
proceedings in court because of his failure to exhaust
contractual remedies. This appeal followed.
The standard of review is clear. Summary
judgment is only proper under Rule 56(c),
M.R.Civ.P., where the record discloses
that no genuine issue of material fact
exists and the moving party is entitled
to judgment as a matter of law.
Mutual Service Cas. Ins. Co. v. McGehee (Mont. 1985), 711
P.2d 826, 827, 42 St.Rep. 2038, 2039-2040.
 Initially we find that, contrary to appellant's
assertion, the CBA clearly covered the terms of appellant's
employment at the time of his termination. Appellant
conceded in response to a request for admission that he
authorized the prison to deduct union dues from his paycheck.
Appellant also testified in deposition that he was a member
of the "regular prison union." The MPEA's counsel filed an
affidavit stating that appellant was covered by the CBA so
long as he was considered a prison employee. The prison
personnel officer filed an affidavit stating that appellant
was considered an employee up until the time of his
termination. There is no issue of fact on this point which
would preclude summary judgment.
Section 39-31-101, MCA, enacted to establish the
official state policy on collective bargaining, states:
In order to promote public business by
removing certain recognized sources of
strife and unrest, it is the policy of
the state of Montana to encourage the
practice and procedure of collective
bargaining to arrive at friendly
adjustment of all disputes between public
employers and their employees.
Section 39-31-306, MCA, and § 39-31-310, MCA, also deal with
CBAs and are especially relevant to the instant case.
Section 39-31-306, MCA, states:
(1) Any agreement reached by the public
employer and the exclusive representative
shall be reduced to writing and shall be
executed by both parties.
(2) An agreement may contain a grievance
procedure culminating in final and
binding arbitration of unresolved
grievances and disputed interpretations
of agreements.
(3) An agreement between the public
employer and a labor organization shall
be valid and enforced under its terms
when entered into in accordance with the
provisions of this chapter and signed by
 the chief executive officer of the state
or political subdivision or commissioner
of higher education or his
representative. A publication of the
agreement is not required to make it
effective.
(4) The procedure for the making of an
agreement between the state or political
subdivision and a labor organization
provided by this chapter is the exclusive
method of making a valid agreement for
public employees represented by a labor
organization.
Section 39-31-310, MCA, states:
Nothing in 39-31-307 through 39-31-310
prohibits the parties from voluntarily
agreeing to submit any or all of the
issues to final and binding arbitration,
and if such agreement is reached, the
arbitration shall supersede the
factfinding procedures set forth in those
sections. An agreement to arbitrate and
the award issued in accordance with such
agreement shall be enforceable in the
same manner as is provided in this
chapter for enforcement of collective
bargaining agreements.
In interpreting the Montana statutes on collective
bargaining for public employees, this Court has looked to the
federal courts' construction of the National Labor Relations
Act. Small v. McRae (1982), 200 Mont. 497, 651 P.2d 982, In
Small, a college dean dismissed the plaintiff as chairman of
the college English department. Although a CBA covered the
employment relationship, the plaintiff filed suit in district
court without first pursuing his remedies under the CBA.
This Court stated:
Only in those cases where it is certain
that the arbitration clause contained in
a collective bargaining agreement is not
susceptible to an interpretation that
covers the dispute is an employee
entitled to sidestep the provisions of
the collective bargaining agreement.
(Citation omitted.)
Small. 651 P.2d at 986. The arbitration clause in this CBA
is certainly susceptible to an interpretation covering
appellant's dispute. The CBA states that:
An employee with permanent status may
appeal his/her dismissal, suspension or
other punitive disciplinary action
through the grievance procedure.
The affidavit of the MPEA's counsel states that "MPEA
processes grievances based on allegations of discharge
without just cause and has done so under this agreement.''
Thus, under the quote from Small (immediately above),
appellant is not entitled to sidestep the provisions of the
CBA.
In Small we also quoted with approval from a United
States Supreme Court case:
"As a general rule in cases to which
federal law applies, federal labor policy
requires that individual employees
wishing to assert contract grievances
must attempt use of the contract
grievance procedure agreed upon by
employer and union as the mode of
redress. If the union refuses to press
or only perfunctorily presses the
individual's claim, differences may arise
as to the forms of redress then
available. (Citations omitted. ) But
unless the contract provides otherwise,
there can be no doubt that the employee
must afford the union the opportunity to
act on his behalf. Congress has
expressly approved contract grievance
procedures as a preferred method for
settling disputes and stabilizing the
common law' of the plant. (Citations
omitted. )
"Union interest in prosecuting employee
grievances is clear. Such activity
compliments the union's status as
exclusive bargaining representative by
permitting it to participate actively in
the continuing administration of the
contract. In addition, conscientious
handling of grievance claims will enhance
the union's prestige with employees.
Employer interests, for their part, are
served by limiting the choice of remedies
available to aggrieved employees. - -
And it
 cannot - -
be said, - - normal situation,
in the
that contract grievance procedures are
inadequate to protect the interests - -
of an
aggrieved employee until the employee -
has
attem~tedto im~lementthe ~roceduresand
L L

foundL - e-so.
th m (Emphasis supplied.)
"A contrary rule which would permit an
individual employee to completely
sidestep available grievance procedures
in favor of a lawsuit has little to
commend it. In addition to cutting
across the interests already mentioned,
it would deprive employer and union of
the ability to establish a uniform and
exclusive method for orderly settlement
of employee grievances. If a grievance
procedure cannot be made exclusive, it
loses much of its desirability as a
method of settlement. A rule creating
such a situation 'would inevitably exert
a disruptive influence upon both the
negotiation and administration of
collective agreements.' (Citations
omitted. ) "
Small, 651 P.2d at 986; quoting from Republic Steel
Corporation v. Maddox (1965), 379 U.S. 650, 652-653, 85 S.Ct.

This Court went on to say that,
To allow a member of the collective
bargaining unit to completely sidestep
available procedures would, just as under
federal law, exert a disruptive influence
upon both the negotiation and
administration of collective bargaining
agreements and effectively deprive
employers and unions of the ability to
establish a uniform and exclusive method
for the orderly settlement of employee
grievances.
Small, 651 P.2d at 986.
Other courts have addressed the same tort alleged here
(wrongful retaliatory discharge for filing a workers'
compensation claim) and held that the plaintiff's suit was
barred for failure to exhaust contractual remedies. See,
e.g., Schuyler v. Metropolitan Transit Com'n. (Minn.App.
1985), 374 N.W.2d 453; Payne v. ~ennzoil Corp. (~riz.~pp.
1983), 672 P.2d 1322. We hold that under the Small decision
appellant is similarly barred.
In Malquist v. Foley (Mont. 1986), 714 P.2d 995, 43
St.Rep. 270, this Court expressed sentiments which may be
construed as in conflict with our holding today. Therefore,
we find it appropriate to analyze and harmonize the Malquist
decision. In Malquist, three union electricians and their
union local sued several companies alleging the companies
blacklisted the individuals and seeking punitive damages
under 39-2-803, MCA, entitled "Blacklisting prohibited."
This Court reversed the district court's holding that the
plaintiffs' suit was pre-empted by federal labor law. In
holding that the plaintiffs could pursue their claims in
state court, we adopted the following rationale from the
Ninth Circuit Court of Appeals;
"A claim grounded in state law for
wrongful termination for public policy
reasons poses no significant threat to
the collective bargaining process; it
does not alter the economic relationship
between the employer and employee. The
remedy is in tort, distinct from any
contractual remedy an employee might have
under the collective bargaining contract.
It furthers the state's interest in
protecting the general public--an
interest which transcends the employment
relationship. (Citation omitted.)"
Malquist, 714 P.2d at 999, quoting Garibaldi v. Lucky Food
Stores, Inc. (9th Cir. 1984), 726 F.2d 1367, 1375. The quote
from Garibaldi was not crucial to the holding in Malquist.
In Malquist, exhaustion of contractual remedies was not at
issue because the plaintiffs' union determined that the CBA
did not cover the conduct complained of.
Nevertheless, the Garibaldi language runs contra our
holding today on the plaintiff's claim for wrongful discharge
in violation of public policy. However, subsequent federal
cases have limited the broad language used in Garibaldi.
A brief analysis of federal law is appropriate at this
point. Section 301 of the federal Labor Management Relations
Act (LMRA), 29 U.S.C. S 185, gives jurisdiction to federal
district courts over suits for violations of CBAs covering
employees in an industry affecting commerce. Section 301
preempts state court claims alleging violations of those
defined CBAs. Allis-Chalmers Corp. v. Lueck (1985),
U.S. , 105 S.Ct. 1904, 85 L.Ed.2d 206. Section 301 also
preempts many state court claims alleging torts which arise
out of violations of CBAs.
In Garibaldi, the court held that although the
plaintiff was covered by a CBA, 5 301 did not preempt his
state court claim alleging wrongful discharge against public
policy. The plaintiff claimed that "he was discharged
because he reported a shipment of adulterated milk to the
health officials after his supervisors ordered him to deliver
it." Garibaldi, 726 F.2d at 1374. Although the Garibaldi
passage quoted in Malquist (above) seems to allow any state
law claim for wrongful discharge in violation of public
policy (even though there is a CBA subject to federal
jurisdiction), the Ninth Circuit has subsequently reexamined
that idea.
In Olguin v. Inspiration Consol. Copper Co. (9th Cir.
1984), 740 F.2d 1468, the plaintiff alleged he was discharged
(1) in violation of an agreement of employment between
himself and the company, and (2) in violation of public
policy, i.e., in retaliation for safety complaints and for
engaging in concerted labor activity. Olguin originally
filed his complaint in state court relying mainly on state
tort law. The defendant removed the case to federal court
claiming federal labor law controlled. The Ninth Circuit
affirmed the federal district court rulings which (1) denied
a motion to remand to state court, (2) found that all claims
arose under federal law which provided exclusive remedies,
and ( 3 ) dismissed Olguin's complaint because he had failed to
follow procedures in the collective bargaining agreement
which his union had entered into. Addressing the claim of
wrongful discharge in violation of an agreement of
employment, the Ninth Circuit stated:
Like the personnel policy manual, any
independent agreement of employment could
be effective only as part of the
collective bargaining agreement. That
agreement explicitly provides for
dismissal on just cause. Even if the
"wrongful discharge" is based on state
tort law, it is preempted. The agreement
provides the same or greater protection
of job security that state tort law seeks
to provide for nonunionized employees;
accordingly federal law preempts state
law. (Citation omitted. ) Olguin 's
alleged right not to be dismissed without
just cause is essentially equivalent to a
right created by the collective
bargaining agreement. It is apparent
that the true nature of Olguin's wrongful
discharge complaint concerns the terms
and conditions of employment as they are
set out in the collective bargaining
agreement.
Olguin,
As to the claim for wrongful discharge in violation of
public policy, the court said:
A tort of wrongful discharge has
developed in some states to protect
employee job security despite the
historical common law rule of employment
at will. (Citation omitted.) As we have
indicated, this tort is supplanted by the
provisions of the collective bargaining
agreement. (Citation omitted.)
Olguin, 7 4 0 F.2d at 1 4 7 5 . The court declined to apply the
Garibaldi exception to the federal preemption doctrine.
 The most telling case is Evangelista v. Inlandboatmen's
Union of Pacific (9th Cir. 1985), 777 F.2d 1390. plaintiff
Evangelista filed suit in state court alleging, among other
things, wrongful discharge in violation of public policy.
The public policy asserted was the protection of citizens
from harassment on t h e job. The court held t h a t t h e claim

was preempted by federal law since the resolution of the
claim turned upon an interpretation of a collective
bargaining agreement. The court clarified the Garibaldi
decision by stating that in that case
[w]e reasoned that a state claim for
wrongful termination poses no significant
threat to the collective bargaining
process where it furthers a
state interest in protecting the generai
public which transcends - employment
the
relationship. (Emphasis supplied.)
Evanaelista, 777 F.2d at 1401.
Here, appellant's claims (that he was discharged in
violation of (1) public policy, and/or (2) the implied
covenant of good faith and fair dealing) do not further a
state interest in protecting the general public which
transcends the employment relationship. There is a state
interest here but it is completely and inexorably intertwined
with the employment relationship. The CRA in this case
protects an employee from discharge without just cause and
provides for grievance procedures to enforce that protection.
Therefore, appellant's tort claims pose a significant threat
to the collective bargaining process and, as such, they are
barred.
A federal district court decision, Costello v. United
Parcel Service, Inc. (D.C. Pa. 1984), 617 F.Supp. 123,
supports our holding today. In Costello, the plaintiff was
discharged from his job and his union filed a grievance
protesting the discharge. The union pursued the grievance
through arbitration until the claim was finally denied.
Costello then filed suit in state court alleging, among other
things, wrongful discharge violation public policy,
i.e., in retaliation for filing a workers' compensation
claim. The action was removed to federal court on the basis
of assertions of diversity and federal question jurisdiction.
The court d.ismissed the claim holding that the plaintiff's
exclusive remedy was provided by 5 301 of the National Labor
Relations Act, generally.the exclusive remedy for violations
of collective bargaining agreements. The court, relying on
Olguin, stated:
[Tlhe Commonwealth of Pennsylvania has a
legitimate interest in upholding the
proper enforcement of its workers
compensation laws, and thus in providing
a remedy against retaliation for filing a
compensation claim. But vindication of
that interest is not significantly
impeded by § 301 preemption. The "public
policy'' involved is directly related to
the employment relationship itself.
Plaintiff is attempting to sue his
employer for damages for wrongful
discharge, a matter governed entirely by
the collective bargaining agreement.
Costello, 617 F.Supp. at 124-125.
The United States Supreme Court case Allis-Chalmers
Corp. v. Lueck (1985), U.S. , 105 S.Ct. 1904, 85
L.Ed.2d 206, is also relevant here. The plaintiff there was
a union member subject to the terms of a CBA. The CBA
incorporated a group health and disability plan and provided
a grievance procedure for any insurance related dispute
arising from the CBA. Plaintiff sued Allis-Chalmers and
Aetna Life and Casualty Company, the insurance plan
administrator, in state court for breach of the duty to act
in good faith and deal fairly with plaintiff's disability
claims. Plaintiff did not attempt to grieve the dispute
first. The Supreme Court of Wisconsin, in Lueck v. Aetna
Life Ins. Co. (Wis. 1984), 342 N.W.2d 699, held that
plaintiff's suit was not preempted by federal law or subject
to dismissal for failure to exhaust contractual remedies.
The United States Supreme Court reversed holding that $ 301
of the LMRA preempted the state court claim. The Court
stated:
Perhaps the most harmful aspect of the
Wisconsin decision is that it would allow
essentially the same suit to be brought
directly in state court without first
exhausting the grievance procedures
established in the bargaining agreement.
The need to preserve the effectiveness of
arbitration was one of the central
reasons that underlay the Court's holding
in Lucas Flour. ... The parties here
have agreed that a neutral arbitrator
will be responsible, in the first
instance, for interpreting the meaning of
their contract. Unless this suit is
pre-empted, their federal right to decide
who is to resolve contract disputes will
be lost.
Since nearly any alleged willful breach
of contract can be restated as a tort
claim for breach of a good-faith
obligation under a contract, the
arbitrator's role in every case could be
bypassed easily if §301 is not
understood to pre-empt such claims.
Claims involving vacation or overtime
pay, work assignment, unfair discharge
--in short, the whole range of disputes
traditionally resolved through
arbitration--could be brought in the
first instance in state court by a
complaint in tort rather than in
contract. A rule that permitted an
individual to sidestep available
grievance procedures would cause
arbitration to lose most of its
effectiveness ... as well as eviscerate
a central tenet of federal labor-contract
law under § 301 that it is the
arbitrator, not the court, who has the
responsibility to interpret the labor
contract in the first instance.
(Citations omitted..) (Emphasis
supplied.)
Allis-Chalmers, 105 S.Ct. at 1915-1916. This case supports
our decision to prevent appellant from sidestepping the
grievance procedure.
Lastly, we find there is an additional reason barring
appellant's claim for wrongful discharge in violation of the
covenant of good faith and fair dealing. In this case, the
CBA provided that the employer could only discharge employees
for "just cause." Therefore, we will not imply the covenant
of good faith and fair dealing into this employment
relationship. We agree with the reasoning of the First
Circuit Court of Appeals in Bertrand v. Quincy Market Cold
Storage & Warehouse (1st Cir. 1984), 728 F.2d 568.
This covenant [of good faith and fair
dealing] has generally been implied in
contracts of employment "at will." This,
however, was not an at will employment
contract; the company had negotiated away
its right to discharge anyone except for
"just cause." Since there is an explicit
contractual provision giving the employee
greater protection than the implied
covenant, there is no need to imply the
covenant. - Blades, Employment - -
See At Will
v. Individual Freedom:
- On Limiting - the
Abusive Exercise of ~ m p l y ~ e Power, 67
r
Colum.L.Rev. 1407, 1410-13 (1967)
(comparing the protections of discharge
only for just cause provisions in union
contracts with the lack of protection
given at will employees).
Bertrand, 728 F.2d at 571.
Moreover, this Court addressed the covenant of good
faith and fair dealing in Dare v. Montana Petroleum Marketing
Co. (Mont. 1984), 687 P.2d 1015, 1020, 41 St.Rep. 1735, 1739,
and stated:
Whether a covenant of good faith and fair
dealing is implied in a particular case
depends upon objective manifestations by
the employer giving rise to the
employee's reasonable belief that he or
she has job security and will be treated
fairly.
Section 39-31-306(4), MCA, provides that:
The procedure for the making of an
agreement between the state or political
subdivision and a labor organization
provided by this chapter is the exclusive
method of making a valid agreement for
public employees represented by a labor
organization.
Here, the CBA contained the objective manifestations of the
employer to the employee about the latter's status. The
employer agreed he would not discharge the employee but for
"just cause'' and, under 5 39-31-306(4), MCA, no other
covenant need be implied.
In response to the dissenting statement of Hon. Frank
B. Morrison, Jr., that this opinion deals a serious blow to
organized labor, it should be pointed out that upholding a
collective bargaining agreement supports the efforts of
organized labor and aids them in their efforts to continue to
exist as a vital, necessary force. Statements in that same
opinion that the defendant was entitled to summary judgment
on the facts seem inappropriate, as the trial judge did not
make his ruling on that ground, and the statements are not
responsive to the issue on appeal.
Affirmed.

We concur: A
Mr. Justice Frank B. Morrison dissents as follows:

I concur in affirming summary judgment because I find no
evidence that plaintiff was terminated for filing a workers'
compensation claim. If he were so fired a violation of
public policy would have occurred and the rationale of
Garibaldi cited in the majority opinion would or should
control.
The majority opinion guts the law of wrongful discharge
as applied to union workers operating under a collective
bargaining agreement. The result of this decision handcuffs
the state in attempting to prevent unconscionable acts which
violate established public policy.
I believe the direction of the Court, perhaps
unwittingly, is clear. Greater job security found through a
tort remedy, is afforded to non union employees. They can
recover noneconomic compensatory damages plus punitive
damages while the union employee is left with the less
effective grievance procedure. Organized labor has been
dealt another serious blow by this decision. And it was all
unnecessary as defendant was entitled to a summary jud.gment
on the facts.
Mr. Justice John C. Sheehy, dissenting:

I dissent from affirming the summary judgment because I
find remaining genuine issue of material fact. The employee
has maintained in briefs here and below that he was not a
member of the employee's association, and therefore not bound
by the terms of the agreement executed by the association and
management. The employer was required to pay a "service
charge" equal to the union dues as a condition of his
employment, but the evidence is not clear that the employee
had joined the association and thereby agreed that the
association was his bargaining agent. I would. reverse the

summary judgment.

I '

;,A
-- e. -
,
Justice B