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Our opinion of March 11, 1981, is withdrawn and this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 Labor-
Management 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

 

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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

