On appeal from the Superior Court, Law Division, Hudson County.
Pressler, Gaulkin and Ashbey.
On December 17, 1982, plaintiff, then an employee of defendant, was "suspended from employment pending review." The suspension was converted into a dismissal 10 days later. Pursuant to a collective bargaining agreement, the dismissal was submitted to arbitration. On April 14, 1983 the arbitrator determined that "just and sufficient cause" existed for plaintiff's discharge.
Plaintiff then filed the present action in the Law Division in which he alleged that defendant had "failed to continue [his] pay as required by Article VII" of the collective bargaining agreement, which provides that an employee's pay shall continue until the arbitrator's final decision unless the discharge is for being "caught . . . in a dishonest act, or intoxicated on duty, or if absent without legitimate good cause for five (5) days or more in a ninety (90) day period. . . . " That issue had not been presented or passed upon in the arbitration proceeding, and plaintiff did not pursue any further grievance after the arbitration decision.
On cross-motions for summary judgment, the Law Division judge held that plaintiff was contractually entitled to be paid to the date of the arbitrator's decision and that "the failure to submit that [issue] to the arbitration does not warrant dismissal of this complaint." He therefore entered judgment for plaintiff. Defendant appeals.
Although plaintiff's complaint did not refer to the Labor Management Relations Act (LMRA), 29 U.S.C. §§ 185 et seq., his claim for relief based upon an alleged violation of his collective bargaining agreement could only be brought under LMRA § 301. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209, 105 S. Ct. 1904, 1910, 85 L. Ed. 2d 206, 215 (1985). While the state court has jurisdiction of such a claim (Smith v. Evening News Assoc., 371 U.S. 195, 200-201, 83 S. Ct. 267, 270, 9 L. Ed. 2d 246 (1962)), it must apply federal substantive law in its resolution. Allis-Chalmers Corp. v. Lueck, supra; Textile Workers
v. Lincoln Mills, 353 U.S. 448, 456, 77 S. Ct. 912, 917, 1 L. Ed. 2d 972 (1957).
The general rule is that an employee seeking to bring a contract grievance "must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress." Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-653, 85 S. Ct. 614, 616, 13 L. Ed. 2d 580 (1965). Exceptions to this general rule exist where the union has breached its duty of fair representation, Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967); where the grievance procedures have been repudiated, ibid.; where resort to the grievance and arbitration provisions would be futile, Glover v. St. Louis-San Fran. R. Co., 393 U.S. 324, 89 S. Ct. 548, 21 L. Ed. 2d 519 (1969); and where the parties to the collective bargaining agreement have expressly agreed that arbitration was not the exclusive remedy, Republic Steel Corp. v. Maddox, supra, 379 U.S. at 657-658, 85 S. Ct. at 618-619. See Annotation, "What circumstances justify employee's failure to exhaust remedies provided in collective bargaining agreement before bringing grievance suit against employer in federal court, under § 301 of the Labor Management Relations Act of 1947 (29 U.S.C.A. § 185)," 52 A.L.R.Fed. 591, 600-639 (1981).
The motion judge was not unaware of these strictures. He entertained plaintiff's complaint because he found that arbitration was not the exclusive remedy under the contract:
Although one must normally exhaust all contractual remedies before seeking relief from the courts, the collective bargaining agreement at issue states in Article Roman Numeral 12, that these remedies, and I put in brackets, submission of the dispute to binding arbitration, close brackets, are in addition to all other legal or equitable remedies of either of the parties hereto for any breach of this agreement.
We find that reading of the agreement to ...