Kilkenny, Carton and Fritz. The opinion of the court was delivered by Kilkenny, J.A.D.
Defendant Radio Corporation of America (hereinafter "RCA") alone appeals from a judgment of the Chancery Division entered on January 3, 1967 permitting plaintiff to present, by herself or through representation by defendant union, her grievance against RCA at step No. 3 of the grievance procedure provided in the collective bargaining agreement made by RCA, her former employer, with the union, of which she was at the time in issue a member. The judgment further provided that plaintiff shall first request defendant union that it represent her, and if the request is denied, then plaintiff may present the grievance herself at said step No. 3.
Other relief sought by plaintiff was denied, but she takes no cross-appeal from such denial. Though served, defendant
union has informed the court that it has decided to file no brief or appendix in this pending appeal.
Plaintiff's grievance is a claim of wrongful termination of her employment by RCA. A brief summary of the facts is essential in order to put the legal issues in proper focus.
Plaintiff was in the employ of RCA from August 1, 1956 until termination of her employment on December 10, 1962. On September 30, 1962 she was involved in an automobile accident unrelated to her employment. She suffered injuries, consisting principally of a low back sprain and a "whiplash" of the neck. The consequential disability made her physically unable to perform the duties of her job. Though no hospitalization was required, plaintiff was under the medical care of Dr. Fenick, who advised against her returning to work until she was able to do so.
On October 22, 1962 plaintiff, who was still absent from work, submitted to a physical examination by Dr. Schutt, a plant physician of RCA. He granted her a medical leave of absence. Dr. Schutt further examined her on November 21, 1962 and again on November 30, 1962. When he then found no objective signs of injury, he sent her for examination on the last-mentioned date to a Dr. Sweeney, an orthopedic surgeon. Dr. Sweeney was of the opinion that she could return to work. Dr. Schutt examined her once more on December 7, 1962 and concluded that she was physically able to resume her job.
Plaintiff's medical leave was terminated as of December 10, 1962. That same day she was notified by telegram to return to work. When she failed to do so, RCA terminated her employment. Plaintiff's grievance is that RCA acted wrongfully when it did so because she was not yet physically able to return and her own treating physician advised her not to return.
Plaintiff presented her grievance to representatives of defendant union for processing under the collective bargaining agreement. Her position was that she was unjustly terminated while on medical leave.
The union processed plaintiff's grievance through the initial steps of the grievance procedure set up in the collective bargaining agreement. Representatives of RCA and the union met on December 27, 1962 to discuss the grievance in question. This was the meeting required in the third step of the agreement. RCA and the union met once again on February 4, 1963 as the fourth step of the grievance procedure. Plaintiff was present at that meeting. There were further discussions between RCA and the union in connection with the grievance between February 5 and February 12, 1963. RCA told the union that it would reinstate plaintiff if she returned to work immediately. This offer was communicated to her but she declined to accept it for the reason, as testified to by Eleanor Goldsmith, the union's representative:
"She said it would be impossible for her to come to work because she wore a brace and it would be hard for her to perform her job and that her doctor said she could not come to work; she was not ready. That's when I asked her for more information ...