The opinion of the court was delivered by: Politan, District Judge.
Summary judgment is appropriate where "the pleadings,
depositions, answers to interrogatories and admissions on
file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). The movant bears the initial burden of
demonstrating the absence of a genuine issue of material fact.
Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct.
1598, 1608, 26 L.Ed.2d 142 (1970). In testing whether the
movant has met this burden, the court must resolve all
ambiguities against the movant. Lopez v. S.B. Thomas, Inc.,
831 F.2d 1184, 1187 (2d Cir. 1987) (citing United States v.
Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d
176 (1962)). The movant may discharge the burden by
demonstrating to the court that there is an absence of evidence
to support the non-moving party's case. Celotex Corp. v.
Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265
(1986). The non-moving party then has the burden of
demonstrating "specific facts showing that there is a genuine
issue for trial." Fed.R.Civ.P. 56(e). The non-movant must "do
more that simply show that there is some metaphysical doubt as
to the material facts." Matshuhita Electric Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986). Speculation, conclusory allegations and
mere denials are not enough to raise genuine issues of fact.
Id. at 600-601,
Where such long range employment contracts are sued upon,
the intention of the parties to make such a contract must be
clearly, specifically and definitely expressed, and the intent
of the parties may be ascertained from the language employed,
from all attending circumstances, and from the presence or
absence of consideration from the employee additional to the
services incident to his employment. See, e.g. Shiddell v.
Electro Rust-Proofing Corp., supra, 34 N.J. Super. at 289,
112 A.2d 290; Shebar, supra, 111 N.J. at 288-290, 544 A.2d 377.
Additionally, in order to be enforceable, the terms of such a
contract must be sufficiently clear and capable of judicial
interpretation. Shebar, supra, 111 N.J. at 290, 544 A.2d 377.
Given these well established legal principles, the initial
question for the court is whether the alleged agreement was
"clearly, specifically and definitely expressed." Savarese v.
Pyrene Manufacturing Co., 9 N.J. 595, 600-601, 89 A.2d 237
(1952); Shiddell, supra, 34 N.J. Super. at 289, 112 A.2d 290.
The second question is whether it was supported by
"consideration additional to the services incident to the
employment. . . ." Ibid. For the reasons outlined below, both
questions must be answered in the negative.
Fregara asserts that the terms of the agreement were well
defined. His own deposition testimony, however, belies that
notion. In support of his allegation, Fregara offers only his
"impression" that such a contract existed. (See plaintiff's
deposition I at p. 23). Indeed, at his deposition, Fregara
could not identify any specific oral promises of job security
or lifetime employment that he allegedly received from the
defendant. In fact, plaintiff testified that his "oral
contract" had no specific terms. (See plaintiff's deposition
I at p. 18).
Fregara explained the basis for his allegation that he was
employed pursuant to an oral contract as follows:
Q. Do you remember the conversation?
A. Well, not verbatim, no.
Fregara further described this alleged oral contract in his
Q. What did he say?
A. He wished me luck in my career at EAF.
(See plaintiff's deposition II at pp. 18-19).
Fregara's deposition testimony clearly demonstrates that the
alleged oral agreement lacks the degree of clarity and
specificity requisite for enforcement. The rights accepted and
the obligations imposed were never clearly and unequivocally
expressed in the contract. The language which Fregara relies
upon in support of his assertion that an oral contract existed
is not even strong enough to suggest that an offer or promise
of employment was ever made, much less that the terms were
"clearly, specifically and definitely expressed." Savarese v.
Pyrene Manufacturing Co., supra, 9 N.J. at 600-601,
89 A.2d 237.*fn6 No specific promise of life-time employment or job
security was ever made to Fregara. Moreover, Fregara cannot
point to any language which addresses the specific terms of the
alleged oral contract (i.e., wages, hours, job
responsibilities, definition of "just cause for termination",
etc.). The only possible foundation for a contract was
Fregara's testimony that John Crawford (the Vice President of
Maintenance) "wished me luck in my career at EAF . . . [and]
[t]hey told me that as long as I performed my job, that I have
a job there. . . ." These words, however, do not comport with
the precision and clarity required by the law. The former
statement is more in the nature of a friendly expression to
someone beginning a new job, while the latter is nothing more
than a colloquial expression of confidence in a new employee.
These words can in no way be translated into a promise of
Fregara's "impression" that he had an oral contract
providing for job security, completely unsupported by the
record, does not provide a basis for avoiding summary
judgment. As the court noted in Carney v. Dexter Shoe Co.,
701 F. Supp. 1093, 1103 (D.N.J. 1988):
Id. (emphasis supplied).
Fregara's deposition testimony demonstrates not only the
absence of a precise agreement, but also the absence of
consideration to support such an agreement. Specifically,
Fregara testified at his deposition:
Q. Did you at any time negotiate for a contract?
Even assuming arguendo that Fregara could establish that
there was an oral offer of job security with precise terms, his
alleged oral contract must fail for lack of consideration. See
Woolley v. Hoffman La Roche, Inc., 99 N.J. 284, 293, 301 n. 8,
491 A.2d 1257 (1985), modified, 101 N.J. 10, 499 A.2d 515
(1985); Shebar, supra, 111 N.J. at 287-88, 544 A.2d 377;
Shidell v. Electro Rust-Proofing Corp., 34 N.J. Super. 278,
289, 112 A.2d 290 (App. Div. 1954) (to create enforceable
employment contract, employee must give "consideration
additional to the services incident to his employment"). At
oral argument, on February 25, 1991, plaintiff asserted that he
agreed to give up his right to be promoted or the prospect for
promotion as additional consideration in return for the oral
promise of job security. When questioned at his deposition
about this additional consideration, Fregara replied:
The essential requirement of consideration is a bargained
for exchange of promises or performance that may consist of an
act, or forbearance, or the creation, modification, or
destruction of a legal relation. See Restatement 2d of
Contracts, § 71 (1981). Fregara's deposition testimony
demonstrates that there was no bargained for exchange of
promises or performance but rather, that these were the terms
and conditions of employment (i.e., a job offer with little or
no opportunity for advancement). Fregara suffered no detriment
because he had no right to be promoted. Moreover, the defendant
employer received no benefit as it had no obligation to promote
In support of his argument that foregoing his right to be
promoted constituted additional consideration, Fregara relies
heavily on Greene v. Oliver Realty Co., 363 Pa. Super. 534,
526 A.2d 1192 (1987). In Greene, the Pennsylvania Superior Court
upheld an employer's promise of lifetime employment in exchange
for an employee's agreement to work at a rate below the union
scale. The Greene case is distinguishable from the facts of
this case for two reasons. First, in Greene, there was a
specific promise of life-time employment. In this case, Fregara
has failed to establish an essential element of an oral
contract for employment, namely, a specific promise or offer of
job security. Secondly, in Greene, the employee had an
independent right to receive union wages as soon as he began
his employment. The employer in Greene was not free to impose
wages below the union standard as a condition of employment
without an employee's consent. When the employee accepted a job
for life in exchange for his agreement to work below union
wages, he accepted terms and conditions of employment which
deviated from those guaranteed him by a contract between his
employer and the union. Clearly, the employer in Greene
received a benefit since it would be obligated to pay the
employee the higher union wages absent his agreement to forego
that legal right.
Plaintiff contends that the employee handbook, published and
distributed by the defendant, formed the basis of a contract
which provided the plaintiff with job security. Defendant
maintains that the handbook did not contain any enforceable
promises of job security. It is well established that, in the
absence of a clear and prominent disclaimer, an implied
promise in an employee handbook that an employee will be
terminated only for cause may be enforceable against an
employer when the employment would otherwise be terminable at
will. Woolley v. Hoffman La Roche, Inc., 99 N.J. 284, 285,
491 A.2d 1257, modified, 101 N.J. 10, 499 A.2d 515 (1985). In
Woolley, the Hoffman La Roche manual was held to provide a
contractually enforceable promise of job security because of
its stated policy "to retain . . . the services of all
employees who perform their duties efficiently and
effectively", 99 N.J. at 310, 491 A.2d 1257, and to discharge
them only for specific, enumerated offenses. Woolley, 99 N.J.
at 287, 297, 300, 491 A.2d 1257. It was that policy, so
expressly stated, that "provide[d] for job security." Woolley,
99 N.J. at 297, 491 A.2d 1257.
Plaintiff points to the following provisions of the EAF
handbook in support of his assertion that there was an implied
promise to discharge employees only for cause:
Plaintiff contends that the mere existence of a
"probationary" category is inconsistent with the concept of
"at-will employment." The implication is that once the
probationary period is over, the company can no longer fire
for any reason or no reason at all. The rationale behind this
assertion is that if the company expressly reserves the right
to fire for any reason during the probationary period, then
the employee who survives has earned the protection of a "just
cause requirement" for termination. The court finds that
reasonable men could differ as to the meaning of this language
in the employee handbook and whether it could be relied upon
as an enforceable contract providing for job security.
However, I need not resolve that question since, even assuming
that the handbook constituted a contract of employment,
plaintiff's contract claims must be dismissed because he did
not invoke and exhaust the handbook's grievance and
The EAF handbook relied upon by Fregara contained an
elaborate and detailed employee grievance procedure which
provided, in pertinent part, as follows:
(See page 957 of Grievance Procedure attached hereto as
The procedure relating to matters of discipline and
discharge is set forth at page 958 of the Grievance Procedure.
An aggrieved employee has three (3) business days to appeal
the discharge action to the department head or his supervisor.
(See page 959, par. 2 of Grievance Procedure). An employee is
then entitled to a further appeal (which must be taken within
three (3) days) to the company's Board of Adjustment. (See
page 960, par. 5 of Grievance Procedure). The Board of
Adjustment is composed of four members, two of whom are
selected by non-supervisory company personnel, and two of whom
are appointed by the President of the company. (See page 961,
par. D.2 of Grievance Procedure). In the event of a deadlock,
an impartial referee is selected to serve as a tie breaker and
Chairman of the Board. (See page 963, par. B of the Grievance
Procedure). The decision of the five member Board is final and
binding. (See page 963, par. 6C of the Grievance Procedure).
Although defendant gave plaintiff a letter of termination,
plaintiff never made an effort to invoke the grievance
procedure. Plaintiff's deposition testimony reveals that,
although he was aware of the employee grievance procedure, he
simply chose not to invoke it:
A. There was a procedure, yes.
Q. Did you attempt to invoke it?
A. At that time [when he was terminated]?
(See plaintiff's deposition I at p. 133).
While courts in other jurisdictions have consistently held
that breach of contract claims based upon employee handbooks
are barred when an employee fails to exhaust the handbook's
grievance procedure,*fn7 there are no New Jersey cases
addressing this issue. When applying state law in diversity
cases, each federal court functions as a proxy for the entire
state court system, and therefore, must apply the law that it
conscientiously believes would have been applied in the state
court system, which includes the state appellate tribunals.
See Clark, State Law in the Federal Courts: The Brooding
Omnipresence of Erie v. Tompkins, 1946, 55 Yale L.J. 267,
290-95. See also, 19 Wright, A. Miller & E. Cooper,
Jurisdiction and Related Matters, § 4507 (West 1982). A federal
court sitting in diversity must determine issues of state law
as it believes the highest court of the state would determine
them, not necessarily as they have been decided by other state
courts in the past. See id. See also, Wise v. George C.
Rothwell, Inc., 496 F.2d 384 (3d Cir. 1974).
The doctrine of exhaustion of remedies is well established
in New Jersey. Ward v. Keenan, 3 N.J. 298, 70 A.2d 77 (1949).
The rule has been applied to members of labor unions or other
voluntary organizations seeking reinstatement or damages from
the organization, where there has been no showing that resort
to the internal remedies provided for in the constitution or
bylaws of the organization would be futile, illusory, or vain.
Jorgensen v. Pennsylvania R.R. Co., 25 N.J. 541, 556,
138 A.2d 24 (1958) (citations omitted). The rule of exhaustion has also
been applied to suits arising under the School Laws. See Redcay
v. State Board of Education, 128 N.J.L. 281, 285, 25 A.2d 632
(Sup.Ct. 1942). It has been applied to cases arising under the
Civil Service Act where employees claimed to have been
illegally discharged. Jorgensen, supra, 25 N.J. at 557,
138 A.2d 24. (Citations omitted). The rule has also been applied to
administrative bodies under the Zoning Laws. Id. at 557,
138 A.2d 24. (Citations omitted).
As previously noted, in situations involving collective
bargaining agreements, it has long been the rule in New Jersey
that the aggrieved employee must exhaust the remedies provided
by the agreement before resorting to the court for redress.
See Jorgensen v. Pennsylvania R.R. Co., 25 N.J. 541,
138 A.2d 24 (1958); Thompson v. Joseph Cory Warehouses, Inc.,
215 N.J. Super. 217, 521 A.2d 881 (App. Div. 1987). This principle
is no less applicable here where the rights asserted by plaintiff
are contained in an employee handbook. The handbook and company
policy provided for avenues of appeal which Fregara was
required to pursue before resorting to this court for redress.
The sole basis for the plaintiff's cause of action is the
employee handbook itself. Without this handbook, the plaintiff
would have no recourse in the event he was discharged with or
without cause. If the plaintiff seeks to rely on provisions in
the employee handbook as the source of an implied contract of
employment, then he must accept that agreement as a whole with
its attendant responsibilities. Plaintiff cannot seek to
enforce his rights under the agreement while avoiding his
responsibilities. In short, plaintiff must accept his
obligations along with his rights as in any agreement.
The court is aware that the doctrine of exhaustion of
remedies is not an absolute rule and is subject to several
exceptions in New Jersey. See Jorgensen, supra, 25 N.J. at 558,
138 A.2d 24. By way of example, the doctrine has not been
applied where the resolution of the matter depends
solely on the decision of a question of law, Nolan v.
Fitzpatrick, 9 N.J. 477, 89 A.2d 13 (1952); or where the
jurisdiction of the administrative tribunal is doubtful, or
where the charges asserted are so palpably defective as to make
the jurisdiction of the tribunal merely colorable, Ward v.
Keehan, 3 N.J. 298, 70 A.2d 77 (1949); or where the
administrative remedies are futile, illusory or vain. Naylor v.
Harkins, 11 N.J. 435, 94 A.2d 825 (1953). However, the
plaintiff in this case does not assert the existence of any
facts which would warrant a departure from the general rule
under the exceptions noted above.
Specifically, plaintiff presents two arguments in response
to his failure to invoke and exhaust the handbook's grievance
procedure. First, plaintiff contends that resort to the
grievance procedure would have been futile. Secondly,
plaintiff maintains that use of the grievance and arbitration
procedure was permissive and not mandatory. I must reject
plaintiff's futility argument outright. The grievance
procedure provided an extremely fair and specific methodology
by which an employee could have his rights vindicated. The
grievance procedures governing discipline and discharge
provides, in pertinent part, as follows:
If an employee was dissatisfied with the decision rendered
by the immediate supervisor or manager, then he had an
absolute right to make a written appeal to the department
head. (See Grievance Procedure, § B, par. 2). If the department
head was the employee's immediate supervisor, then the appeal
would be directed to the department head's supervisor.
Moreover, if an employee was also dissatisfied with the
decision of the reviewing supervisor, the procedures provided
for a further appeal to the EAF Company Board of Adjustment.
The Company Board of Adjustment consisted of four members, two
of whom were selected by non-supervisory company personnel,
elected annually by an employee vote, and two of whom were
selected and appointed by the president of the company. In the
event of a deadlock by the Board of Adjustment, an employee was
entitled to the selection of an impartial referee. Clearly,
there is nothing futile or illusory about this process at all.
To the contrary, the grievance procedures governing discipline
and discharge are extremely fair and impartial, and provide for
a series of appeals during which an employee or his counsel may
present evidence to the reviewing body. Plaintiff had a
responsibility to utilize these internal procedures. He was not
free to by-pass these remedies based upon his unfounded belief
that resort to such remedies would be futile.
The court now turns to plaintiff's argument that the
grievance procedure was permissive and not mandatory. In
support of his position that the grievance procedure was
permissive, plaintiff refers the court to a section of the
employee handbook which briefly describes the grievance
procedure as follows:
Plaintiff places great emphasis on the phrase "feel free to
use it" in asserting that the grievance procedures were
permissive. However, this language cannot be read in a vacuum.
This paragraph, read as
a whole, is more in the nature of an assurance to any employee
that he or she is free to utilize the grievance procedure to
solve any work-related problems, including nondisciplinary
problems, without the fear of reprisal or retaliation. In
short, it is intended to encourage employees to resolve any
and all work-related problems through internal grievance
procedures. Moreover, a thorough review and analysis of the
employee grievance procedure, a document separate and apart
from the employee handbook which references it, reveals that
the specific grievance procedures governing discipline and
discharge are outlined more in the nature of mandatory
language. (See employee grievance procedure, § B: Discipline
and Discharge, attached hereto as Appendix A). Page 1 of the
employee grievance manual notifies the employee that "[t]he
supervisor may not . . . issue a letter of reprimand to the
employee without following the grievance procedures." The first
page of the grievance manual also informs an employee that he
or she has certain obligations under the agreement which are as
Any employee who desires to file a grievance
concerning an action of the company affecting him
or her, shall have such grievance considered in
accordance with the following procedures, provided
any written appeal by the employee is received by
the appropriate company representative within the
time limits specified herein.
The section governing discipline and discharge procedures,
which is outlined in detail on page 3 of the grievance manual,
specifically describes the responsibilities and the steps to
be followed by both the reviewing body and the aggrieved
employee throughout the entire internal appeal procedure.
Clearly, when the employee grievance manual is read as a
whole, it becomes obvious that this elaborate, internal appeal
procedure is mandatory and not permissive. This result is
logically consistent with the theory underlying the decision
in Woolley. Woolley stands for the proposition that a binding
contract can be implied from provisions contained in an
employee handbook. This contract, if implied, is binding as a
whole. Plaintiff relies on sections of the employee handbook to
the extent that they benefit his cause of action. To the extent
that the grievance procedures outlined in the alleged Woolley
contract are detrimental to his cause of action, plaintiff
cavalierly dismisses them as permissive and non-binding.
Plaintiff can not selectively determine which aspects of the
contract are binding. If the provisions governing job security
are binding, then so too is the language concerning utilization
of the grievance procedures. Since plaintiff failed to invoke,
much less exhaust, the final and binding grievance procedure
established in the handbook which he claims was binding upon
the parties, defendants' motion for summary judgment on
plaintiff's second and fourth claims for breach of contract is
BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING
The New Jersey Supreme Court has held that there is an
implied covenant of good faith and fair dealing in every
contract. Onderdonk v. Presbyterian Homes of N.J., 85 N.J. 171,
182, 425 A.2d 1057 (1981); Bak-A-Lum v. Alcoa Building
Products, 69 N.J. 123, 129-130, 351 A.2d 349 (1976);
Association Group Life, Inc. v. Catholic War Veterans of U.S.,
61 N.J. 150, 293 A.2d 382 (1972); Palisades Properties, Inc. v.
Brunetti, 44 N.J. 117, 130, 207 A.2d 522 (1965). As a corollary
to that proposition, the Supreme Court of New Jersey commented
that it is reasonable to imply that neither party to a contract
shall injure the right of the other to receive the fruits of
the agreement. Onderdonk, supra, 85 N.J. at 182,
425 A.2d 1057 (citations omitted). A cause of action for breach of an
implied covenant of good faith and fair dealing is also
cognizable in an employment context where the employer attempts
to deprive the employee of the benefit of the employment
agreement without an honest belief that good cause for
discharge in fact exists. See Noye v. Hoffman La Roche, Inc.,
238 N.J. Super. 430, 570 A.2d 12 (App. Div. 1990), cert. denied,
122 N.J. 146, 584 A.2d 218 (1990); see also, Nolan v. Control
Data Corp., 243 N.J. Super. 420, 579 A.2d 1252 (App. Div. 1990).
In the absence of a contract, there is no implied covenant
of good faith and fair dealing. See Noye, supra, 238 N.J.
Super. at 433, 570 A.2d 12. However, an implied obligation of
good faith is applicable to those aspects of the
employer/employee relationship which are governed by some
contractual terms, regardless whether that relationship is
characterized generally as being "at will". Nolan v. Control
Data Corp., 243 N.J. Super. at 429, 579 A.2d 1252. The
employment agreement upon which Fregara now bases his claim for
breach of an implied covenant of good faith and fair dealing is
the purported Woolley contract evidenced by the EAF employee
Defendant contends that plaintiff committed various offenses
(e.g., signing off on items without having the repair done,
letting planes go out without being inspected, violating FAA
regulations, etc.), which, as a matter of law, formed the basis
for an honest belief that good cause for discharge existed.
Plaintiff maintains that he did not once compromise the
company's position in the performance of his duties and that he
always exercised his sound judgment aided by 33 years of
experience. Moreover, plaintiff argues that he followed the
same procedures of "signing off on items" and "inspecting
planes before take offs" in previous years and he was always
evaluated as "excellent". Plaintiff's contentions in this
regard are part and parcel of his breach of contract claim.
These are all arguments concerning the issue of just cause for
termination which plaintiff had both an absolute right and an
obligation to advance and exhaust through the internal review
Plaintiff also asserts that defendant breached the covenant
of good faith and fair dealing by failing to follow its own
evaluation procedures prior to disciplinary discharge.
Specifically, plaintiff alleges that, during the last four
years of his employment, defendant failed to provide him with
performance evaluations in a timely manner. Thus, plaintiff
argues that defendant breached its promise contained in the
employee handbook to forewarn him about any deficiencies in
job performance before resorting to discharge. In addition,
plaintiff alleges that defendant acted in bad faith and in
violation of the company handbook when it failed to provide
copies of documents to him which were utilized in the decision
to terminate him. Plaintiff emphasizes the fact that his last
evaluation, due November 1988, was dated January 1989, and was
not given to plaintiff until May of 1989. Although Kunert
testified that the reason for the delay in completing
plaintiff's evaluation was that he wanted to be sure of the
evaluation, the final product was a word for word copy of a
memorandum to plaintiff some 15 months prior.
Plaintiff's claim that defendant breached its covenant of
good faith and fair dealing is not a tort claim, but rather is
contractual in nature. See Noye v. Hoffman La Roche, Inc.,
supra, 238 N.J. Super. at 437, 570 A.2d 12. (The Appellate
Division held that tort damages are not recoverable for breach
of the covenant of good faith and fair dealing and that
plaintiff's remedies are contractual in nature.). Assuming
arguendo that a contract existed, and assuming plaintiff could
adduce facts which might establish his claim of a violation of
the implied covenant of good faith and fair dealing, he is
barred from pursuing his claim in this forum based upon his
failure to invoke and exhaust the dispute resolution procedures
set forth in the employee handbook and grievance manual.
Plaintiff's claims, if proven, could have been fully redressed
through the grievance procedures. Accordingly, defendants'
motion for summary judgment to dismiss plaintiff's fifth claim
for breach of the duty of good faith and fair dealing is
TORTIOUS INTERFERENCE WITH CONTRACTUAL
RELATIONSHIP/CONSPIRACY TO WRONGFULLY TERMINATE EMPLOYMENT
Plaintiff's sixth count, fairly read, alleges a cause of
action for tortious interference with economic benefit.
Plaintiff may not pursue this action since he has failed to
establish interference by third parties to the relationship.
In addition, Fregara cannot establish the requisite element of
New Jersey law clearly establishes that an action for
tortious interference cannot be maintained "where the claim is
by one party against the other party to the contract and not
against a third party interloper who has interfered with the
contractual relationship." Sandler v. Lawn-A-Mat Chemical &
Equipment Corp., 141 N.J. Super. 437, 450, 358 A.2d 805
(App. Div. 1976), cert. denied, 71 N.J. 503, 366 A.2d 658
(1976), see also, Cappiello v. Ragen Precision Industries,
Inc., 192 N.J. Super. 523, 529, 471 A.2d 432 (App. Div. 1984)
(employer cannot interfere with its own employment contract).
As Dean Prosser aptly stated, "the defendant's breach of his
own contract with the plaintiff is of course not a basis for
the tort (of malicious interference with contractual
relations)." Prosser, Law of Torts, § 129, at 990 (5th Ed.
In this case, plaintiff cannot maintain an action for
tortious interference against his own employer, Jet Aviation.
Jet cannot interfere with its own employment relationship with
plaintiff. Similarly, plaintiff's supervisors, Kunert and
Baillif, the individual defendants, were not interlopers or
third parties to Jet's employment relationship with plaintiff.
In Meyer v. Bell & Howell Co., 453 F. Supp. 801, 802 (E.D.Mo.
1978), appeal dismissed, 584 F.2d 291 (8th Cir. 1978), the
court dismissed an action against two supervisory employees for
tortious interference with an employment contract. In
dismissing plaintiff's action, the Meyer court stated:
[a] party to a contract cannot be liable for
conspiracy to induce its breach. Although the
corporation is the real party in interest to the
contract, the corporation can act only through
its agents. As employees who have the authority
to hire or fire plaintiff, Cohen and Hauser would
reasonably be considered parties to the contract.
(Citing, Lyon Ford, Inc. v. Ford Marketing Corp.,
337 F. Supp. 691, 694 (E.D.N.Y. 1971)).
The alleged tortious activities of Kunert and Baillif were
undertaken in their capacity as supervisors and agents of Jet.
Where, as here, the employer ratified and participated in the
conduct complained of, there exists no question but that the
employer acted through its agents. Thus, as agents of Jet,
Kunert and Baillif cannot be viewed as third parties or
interlopers and could not have committed the tort of malicious
interference with economic benefit. Plaintiff cannot maintain
an action against any of the defendants for interference with
his economic relationship with Jet.
Moreover, plaintiff cannot avoid summary judgment by
advancing this claim in his brief as one for "conspiracy".
Plaintiff has failed to demonstrate that the courts of New
Jersey have recognized or would recognize a cause of action
for "conspiracy to wrongfully discharge". On the contrary, the
case law establishes that New Jersey courts would not expand
upon the law to create a new cause of action in tort. See Noye
v. Hoffman La Roche, Inc., 238 N.J. Super. at 438, 570 A.2d 12
(the appellate division rejected a cause of action for
The core of a conspiracy action is not the conspiracy
charged, but the tort working
damage to the plaintiff. Prosser, Law of Torts, § 47 at 324
(5th Ed. 1985). There must be some act committed by one of the
parties in pursuance of the agreement which is itself a tort.
Id. In this case, plaintiff's "claim of conspiracy" is based on
the underlying acts of his supervisors in allegedly provided
untimely and inaccurate evaluations. Since New Jersey law does
not recognize a cause of action for negligent evaluation and
has already rejected a cause of action for negligent
supervision, see Noye, supra, plaintiff's claim of conspiracy
must fall. Accordingly, defendants' motion for summary judgment
on plaintiff's sixth count is hereby GRANTED.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
In his seventh count, Fregara alleges that Jet and the
individual defendants maliciously and intentionally inflicted
emotional distress upon him. New Jersey courts have adopted
the definition of the Restatement 2d of Torts, § 46 (1965)
for the intentional infliction of emotional distress. Buckley
v. Trenton Savings Fund Soc., 111 N.J. 355, 544 A.2d 857
(1988); Hume v. Bayer, 178 N.J. Super. 310, 428 A.2d 966 (Law
Div. 1981). Under this definition, the plaintiff must prove
conduct by the defendant "so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community." Id. 111 N.J. at 366,
544 A.2d 857 (quoting, Restatement 2d of Torts, § 46,
comment d). The act must have been done with the intent to do
the act and to produce the emotional distress, or in deliberate
disregard of a high degree of probability that emotional
distress will follow. Id. The defendant's actions must have
been the cause of the emotional distress, and the distress must
be "so severe that no reasonable man could be expected to
endure it." Id. (Quoting Restatement 2d of Torts, § 46,
comment j); Hume, 178 N.J. Super. at 317-319, 428 A.2d 966.
The difficulty of establishing such a claim in an employment
related dispute has been recognized by the courts. Thus, in
Cautilli v. G.A.F. Corp., 531 F. Supp. 71 (E.D.Pa. 1982), the
court (applying New Jersey law) granted summary judgment
dismissing plaintiff's cause of action for intentional
infliction of emotional distress and stated:
We do not believe that [New Jersey] courts would
extend this tort to cover an employment contract
dispute such as that before us. To the contrary,
application of this tort must be restricted to
instances of extreme and outrageous conduct;
indeed, the limited scope of the tort tolerates
many kinds of unjust, unfair and unkind conduct.
Id. at 74. See Brunner v. Abex Corp., 661 F. Supp. 1351 (D.N.J.
1986); see also, Cox v. Keystone Carbon Co., 861 F.2d 390, 395
(3d Cir. 1988) (". . . it must be recognized that it is
extremely rare to find conduct in the employment context which
will rise to the level of outrageousness necessary to provide a
basis for recovery. . . .").
Plaintiff has failed to produce any evidence of "extreme and
outrageous" conduct directed at him by the defendants. At his
deposition, plaintiff admitted that the following alleged
conduct on behalf of Kunert and Baillif was the only evidence
he had in support of his claim of intentional infliction of
1. Plaintiff was told that if he fouled up, he would be out
2. Plaintiff was asked to resign;
3. Plaintiff was overworked;
4. Plaintiff was required to attend counselling sessions
dealing with his performance;
5. Plaintiff was told he wasn't doing a good job;
6. Plaintiff was given warning notices; and
7. Plaintiff's performance was closely monitored.
(Plaintiff's deposition I at pp. 138-142).
Assuming plaintiff's allegations are true, as I must,
actions of the type which he alleges fall far short of
all bounds usually tolerated by decent society," the standard
established in Hume. Hume, 178 N.J. Super. at 315,
428 A.2d 966.
Furthermore, it is fatal to plaintiff's cause of action that
he cannot establish that he suffered severe emotional
distress. The following deposition testimony illustrates this
A. After I was let go I wasn't feeling too well
for a while.
Q. How [did] that manifest itself?
A. I was very anxious about what I was going to
do for a living.
Q. You didn't seek professional help then?
A. No. . . .
(Plaintiff's deposition I, at p. 7).
Proof of the suffering of severe emotional distress is a
necessary element to plaintiff's cause of action. See Hume,
supra, 178 N.J. Super. at 319, 428 A.2d 966. See also, Weber v.
L.D.C./Milton Roy, 1 I.E.R. Cases (B.N.A. 1509, 1520 (D.N Y
1980) ("[plaintiff] was not examined by a physician or
psychiatrist to treat his alleged condition, and there is
simply no evidence supporting his claim.")) Since there is
simply no evidence to support a finding that plaintiff suffered
severe emotional distress, defendants' motion for summary
judgment on plaintiff's claim for infliction of emotional
distress is hereby GRANTED.
For all of the foregoing reasons, defendants' motion for
summary judgment is GRANTED on all seven counts of plaintiff's
EMPLOYEE GRIEVANCE PROCEDURE POLICIES:
In any sizeable organization, friction or misunderstanding may
arise because of the wide variety of circumstances under which
employees work. It is, therefore, to the advantage of both the
employee and the Company that a method of presenting problems
be provided so that corrections and adjustments can be made
where appropriate. In this light, the employee grievance
procedure has been established as outlined below to provide a
method for correcting the misapplication of Company policies
and/or procedures. The grievance procedure does allow for you
to influence Company policies by obtaining clarification of
policies and procedures. The Grievance Procedure is not
intended, nor can it be used, as a procedure for seeking
revisions to Company policies or procedures.
Please note that any employee who elects to use the grievance
procedure will not be discriminated against at any time in his
or her career because he or she filed a grievance or
grievances. It is well to bear in mind that good judgment on
the part of persons in authority can never be replaced by a
set of rules. The true essentials of proper discipline are
fair dealing and mutual trust, with each disciplinary
situation dealt with on its own merits.
Personal discussions between a supervisor and an employee do
not constitute discipline. The grievance procedure was not
intended to, and does not, affect the day-to-day contact
between a supervisor and the employees under his supervision.
Any supervisor has the right to discuss a matter of Company
business with an employee and grievance procedures impose no
restrictions on this right. The supervisor may not, however,
issue a Letter of Reprimand to the employee without following
the grievance procedures. If the supervisor desires to keep a
personal notation of his discussion, he may do so, and such
notation may be placed in the employee's file, but it may not
be considered in a future case as prior "discipline."
This procedure is available to non-management employees who
feel that Company policy has been applied to them improperly.
Employees who have not completed their probationary period may
not utilize the grievance procedure in the event of
discipline, but may utilize the grievance procedure
for other matters affecting their employment.
Any employee who desires to file a grievance concerning an
action of the Company affecting him or her, shall have such
grievance considered in accordance with the following
procedures, provided any written appeal by the employee is
received by the appropriate Company representative within the
time limits specified herein.
SECTION A. NON-DISCIPLINARY GRIEVANCES:
Any employee, including probationary, who has a grievance
concerning any action of the Company affecting them, except
matters involving discipline, which are covered by Section B,
shall have such grievance considered in accordance with the
following procedures provided such grievance is filed within
thirty (30) days after the employee(s) reasonably would have
had knowledge of the facts upon which the grievance is based.
This does not preclude claims for adjustment arising out of
bookkeeping errors beyond thirty (30) days but less than 12
months from the date of reasonable knowledge of the facts.
1. A written request for a hearing setting forth a detailed
statement of the known facts out of which the grievance
arose and a request for specific relief shall be filed with
his or her supervisor.
2. A review shall be held within not more than ten (10)
business days after receipt of such written request by the
supervisor or his/her designee and within five (5) business
days after the close of the review, the supervisor or
designee shall announce her/his decision in writing. All
notices of reviews and decisions reached therein shall be in
writing to the grievant(s) with copies to the President and
Chief Executive Officer and Company Board of Adjustment.
3. If an appeal is desired such appeal shall be made in
writing to the Department Head provided such appeal is filed
within ten (10) business days after the date the decision
was received by the grievant(s). Should the Department Head
be the originating reviewer, the next appeal step should be
to the Department Head's immediate superior.
4. Such an appeal review shall be held within ten (10)
business days after the receipt of the written appeal by the
Department Head. Within five (5) business days after the
close of such appeal review, the reviewer shall announce
her/his decision in writing to the grievant(s) and furnish
a copy to the Board of Adjustments and the President and
Chief Executive Officer or designee.
5. Further appeal by the grievant(s), if made, shall be to the
EAF Company President and Chief Executive Officer provided
such appeal is made within five (5) business days from the
date of receipt by the grievant(s) of the decision of the
Department Head or his/her designee. The President and Chief
Executive Officer or his/her designee shall review within
ten (10) business days the grievant's claim and afford the
grievant and Department Head an opportunity to present their
positions. Within five (5) business days of completing the
review, the President and Chief Executive Officer shall
issue to the grievant(s) and to the Department Head, his/her
decision which decision shall be final.
SECTION B. DISCIPLINE AND DISCHARGE:
1. a. When a supervisor decides that discharge or disciplinary
action may be required, the supervisor shall provide to
the employee verbal or written notice of the specific
charges against the employee.
b. Within one (1) business day of a giving of verbal notice,
as provided for in 1(a) above, such employee shall be
notified in writing by the Company of the precise charge
or charges against him/her. She/he shall be given at least
five (5) business days, after the receipt of written
notification of charges, to secure the presence of
witnesses and gather evidence and shall have the right to
be represented by
counsel or an employee of the Company. A review, at which
the employee and any witnesses and/or representative shall
be present, shall be held by the immediate supervisor or
manager or designee within five (5) business days after
the issuance of the letter of charge to determine what
action, if any, should be taken on the charge or charges.
c. Within five (5) business days after the close of the
review, a decision shall be announced in writing and, if
requested by the employee, a copy shall be furnished to
the Chief Executive Officer and Board of Adjustment.
d. (i) During the course of any discharge or discipline
proceeding in accordance with Section 1a, b, & c, the
Company may, at its option, hold the employee out of
(ii) The Company may at its discretion grant a request by
the employee for an extension of time. Any extension of
time limits granted at the request of the employee shall
be on a without pay basis for the period of the extension.
The employee shall continue to receive full pay and
benefits during any extension made at the request of the
2. If the employee is dissatisfied with any discipline or
discharge action of the Company and desires to appeal,
he/she shall within three (3) business days after receiving
such decision make a written appeal to the Department Head;
if the Department Head is the employee's immediate
supervisor, then to the Department Head's supervisor.
3. The Reviewing Supervisor, in 2 above, or his/her designee
shall hear such appeal within five (5) business days after
receipt of the employee's written request therefor.
4. Within five (5) business days after hearing such appeal,
the Reviewing Supervisor or her/his designee shall issue a
decision in writing to the employee and furnish a copy to
the President and Chief Executive Officer.
5. Further appeal only by the grievant(s), if made, shall be
to the EAF Company Board of Adjustment provided such appeal
is made within three (3) business days from the date of
receipt by the grievant(s) of the decision of the Reviewing
Supervisor or his/her designee.
6. Nothing in Section B shall be construed as extending the
rights of the Section B to an employee during his
SECTION C. GENERAL:
1. The time limits set forth in Sections A and B may be
extended by mutual agreement, in writing, of the Company by
the Department Head, President, and the grievant. The
absence of grievant or reviewer while on Company assignment
shall automatically extend the affected time period by the
duration of the absence. A copy of any such extension shall
be furnished to the Board of Adjustment Chairperson and the
Chief Executive Officer.
2. If any decision of the Company under the provisions of this
Sections A and B is not appealed by the grievant(s) within
the time limits prescribed herein for such appeal or any
extension mutually agreed upon, the decision of the Company
shall be final and binding. If any hearing or decision
required of the Company under the provisions of this Section
is not provided within the time limits herein, or any
extension mutually agreed upon, the grievant(s) shall
consider the request denied and may appeal it to the next
step of the grievance procedure.
Any grievance appealed to the Department Head may not be
remanded to the preceding step without the concurrence of
3. Nothing in Sections A and B shall be construed to prevent
the Company from holding an employee out of the service
without pay pending an investigation and review and appeal
4. a. If, as a result of any review or appeals therefrom, an
employee is exonerated, they shall be made whole for any and
all pay and benefits not received during the grievance
b. If, as a result of any hearing or appeals therefrom, an
employee is exonerated, all personnel records shall indicate
clearance of the charges.
5. When it is mutually agreed that a stenographic report is to
be taken of a review in whole or in part, the cost will be
borne equally by both parties to the dispute. When it is not
mutually agreed that a stenographic report of the
proceedings be taken and such stenographic record of the
hearing is made by either of the parties to the dispute, a
copy shall be furnished to the other party to the dispute
upon request, provided that the cost of such written record
so requested shall be borne equally by both parties to the
6. All notification in writing shall be accomplished by
personal delivery or by depositing such notice in the U.S.
Mail, postage prepaid, Certified Mail, addressed to the last
known address of the party to whom the notice is being
given. Notices to the Company supervisory personnel shall be
given to the Company office at which they are assigned.
7. The travel expenses of witnesses and representatives shall
be borne by the party requesting their presence.
Also, grievants, witnesses and their representatives who
are employees may be granted a leave of absence without
pay, subject to the needs of the Company, for the purpose
of investigating and gathering evidence associated with
8. When an employee is chosen to act as representative of or
a witness for another employee, such employee shall be given
sufficient time with pay to permit him/her to appear as such
representative or witness. The selection of a witness must
be reasonably related to the charges made. The number of
witnesses called by a grievant must be reasonable and the
Company will be obligated only in providing time-off with
pay for a maximum of three employee witnesses.
9. If more than one (1) management representative is
present(including the Supervisor) at a review or conference
with an employee concerning a matter which may result in
disciplinary action, such employee will be advised by the
Company of his right to have a representative of his choice
present, provided such representative will be available
within a reasonable period of time not to exceed twenty-four
(24) hours. Further, when an employee is requested to appear
at a disciplinary review or disciplinary conference, he/she
shall be advised of the nature of the subject to be
10. The Company shall consider any disciplinary action taken
against an employee as cleared from the employee's record
file after a three (3) year period of active service (five
(5) years in the case of discipline relating to aircraft
safety) from the date of issuance if no further discipline
has been imposed during that period.
11. An employee will be furnished a copy of any information
which is placed in his personnel file that may be used in
the evaluation of his/her performance and/or employment
12. An employee or his/her authorized representative shall
have access at the Company's offices to all relevant
grievance related material at such time as there is an
active grievance on file that could result in discipline or
discharge. Right of access to Company files is strictly
confined to material personally relevant to the grievant and
no right of inspection of Company files in general is
provided for hereunder.
13. For the purpose of all time limits of the grievance
procedures, "business" days shall mean Monday through
Fridays except those days which are recognized by the
Company as holidays.
14. The employee shall provide a written confirmation to the
Company of any selection of a representative prior to that
representative exercising any procedural privileges provided
SECTION D. COMPANY BOARD OF ADJUSTMENT
1. In compliance with our grievance procedures, there is
hereby established a Company Board of Adjustment, which
be known as the "EAF Board of Adjustment" hereinafter
referred to as the "Board."
The Board's purpose shall be to adjust and decide disputes
which may arise under the terms of the company procedures
when such disputes have been properly submitted to the
2. Composition of the Board
a. The Board shall consist of four (4) members, two (2) of
whom shall be selected by non-supervisory company
personnel, elected annually by an employee vote, and two
(2) of whom shall be selected and appointed by the
President of the Company. These four individuals shall be
known as "Board Members." In addition, the employees and
the Company shall respectively elect and designate a first
and second alternate, and in the event of the
unavailability of a Board Member, the respective first or
second alternate, in order of availability, will act as a
Board Member in place of the absent Board Member. During
the month of May of each year, all non-supervisory
personnel interested in participating as members of the
Company Board of Adjustments, may submit in writing
his/her name to the Chairperson of the Board along with a
brief description of their qualifications. By June 16th,
a candidate ballot will be transmitted to each
non-supervisory employee along with a brief resume written
by each candidate. The ballots will provide for a first,
second, third, and fourth choice among the candidates.
Ballots will be submitted to the Chairperson and Vice
Chairperson of the committee to be counted. Candidates
receiving the highest numbers of votes will be elected as
regular Board members or first or second alternate as the
cumulative votes may indicate. Board member terms shall be
twelve (12) months from July 1 of each year. No individual
may serve two (2) consecutive terms, however, an
individual may serve for an unlimited number of
b. The two (2) Board Members appointed by the Company, and
the two (2) Board Members elected by company personnel and
their alternates shall serve for one (1) year from the
date of their appointment or election, and, thereafter,
until their successors have been duly appointed or
elected. Vacancies shall be filled in the same manner as
is provided herein for the election or appointment of the
original Board Members and the original alternates.
c. The Board Members shall select a Chairperson and a Vice
Chairperson, both of whom shall be members of the Board.
The term of office of Chairperson and Vice Chairperson
shall be one (1) year. Thereafter, from year to year, the
Board shall designate one of its members to act as
Chairperson and one to act as Vice Chairperson for one (1)
d. The office of Chairperson shall be filled and held in
alternate twelve month periods by the Board Member elected
by Company personnel and by a Board Member appointed by
the Company. When a Board Member elected by the employees
is Chairperson, a Board Member appointed by the Company
shall be Vice Chairperson, and vice versa. Subject to the
provisions of Paragraph 6, the aforesaid Chairperson, or,
in his absence the Vice Chairperson, shall preside at
meetings of the Board and at hearings. Both shall have a
vote in connection with all actions taken by the Board.
e. When there are cases filed with the Board for their
consideration, the Board shall meet in the city where the
general offices of the Company are maintained, (unless a
different place of meeting is agreed upon by the Company
and the Board).
3. Jurisdiction of the Board
a. The Board shall have jurisdiction only over disputes
between any employee and the Company resulting from
grievances. The Board shall solely review for correct
finding of fact(s) and whether or not company
policies or procedures, the breach of which resulted in
discipline, were clearly communicated to the grievant(s).
The jurisdiction of the Board shall not extend to proposed
changes in hours of employment, rates of compensation or
working conditions covered by existing Company
b. The Board shall consider any dispute properly submitted
by an employee or by the Company when such dispute has not
been previously settled in accordance with the terms
provided for in Section B.
4. Proceedings Before The Board
a. All disputes properly submitted to the Board for
consideration shall be addressed to the Members of the
Board, including all papers and exhibits in connection
therewith. Each case submitted shall show:
1. Question or questions at issue.
2. Statement of facts.
3. Position of employee or employees.
Copies of all papers and exhibits presented to the Board
shall be provided by either the grievant or the Company to
all Board Members and the other party, grievant or Company
as the case may be. When desired, joint submissions may be
made, but either party may submit the dispute and its
position to the Board. No matter shall be considered by
the Board which has not first been handled in accordance
with the provisions of Section B including the rendering
of a decision thereon by the Department Head or designee.
b. Upon receipt of notice of the submission of a dispute,
the Chairperson shall set a date as early as possible for
hearing at such place as the Chairperson and Vice
Chairperson shall agree upon, but not more than five (5)
days after such request for meeting is made and the
Chairman shall give the necessary notices in writing of
such meeting to the Board Members and to the parties to
c. Employees covered by this Agreement may be represented at
Board hearings by such person or persons as they may
choose and designate, and the Company may be represented
by such person or persons as it may choose and designate.
Evidence may be presented either orally, or in writing, or
d. On request of any individual Board Member, the Board may,
by the request of at least any two (2) Board Members
summon any witnesses who are employed by the Company, and
who may be deemed necessary by the parties to the dispute,
or by either party, or by any two (2) Board members.
e. The number of witnesses summoned at any one time shall
not be greater than the number which can be spared from
the operation without interference with the services of
f. Unless and until the provisions of Paragraph 6 of this
Section become applicable, the Board, composed of two (2)
Board Members appointed by the Company and two (2) Board
members elected by the employees, or their respective
alternates, shall be competent to hear the disputes
properly submitted to it and to decide said disputes
properly submitted to it and to decide said disputes by
majority vote. Decisions of the Board so composed shall be
final and binding upon the parties hereto and shall be
rendered as soon as is possible but in no event later than
ten (10) days after the close of the hearing.
5. The Panel of Referees
a. At as early a date as practicable, the Board shall
establish a panel of six (6) potential referees. The six
(6) referees agreed upon by the Board shall be designated
first, second and third, etc., in order. When it is
necessary that a referee sit with the Board as a member
thereof pursuant to Paragraph 6 of this Section, the first
named referee shall serve unless for any reason he is
unable to do so, in which case the second and third and
named referees shall serve as alternates in that order.
b. At as early a date as practicable after the selection of
the panel of referees referred to above, and upon the
request of either party, the first named referee shall
meet with all the Board for the purpose of reviewing and
streamlining the Board's procedures. The basis for such
review and modification shall be simplicity, expedition
and fairness. The referee shall be empowered to make the
final decision in such review and modification. When a
referee sits as a member of the Board pursuant to
Paragraph 6 of this Section, he shall have the right to
modify such procedures for the purpose of that hearing.
c. Any two Board members may, by three (3) months' written
notice to the other Board members, without cause, remove
any of the named referees. In such event, the referee so
removed shall complete matters, if any, pending before
him/her pursuant to Paragraph 6 of this Section, and the
remaining referee or referees shall serve in the relative
order as originally designated. When a referee is removed,
pursuant to this Paragraph, the parties shall meet to
select a replacement as soon thereafter as is practicable.
6. Procedure in Event of Deadlock
a. Within ten (10) days after the submission of a dispute to
the Board pursuant to Paragraph 4-a of this Section and
before a hearing has commenced, any two Board members may
by written notice to the other Board members, state their
desire that the dispute be heard by a five (5) member
Board consisting of the two (2) Board Members elected by
the employees and two (2) appointed by the Company, or
their respective alternates, and a member of the panel of
potential referees established pursuant to Paragraph 5 of
this Section. In such case, the referee shall be selected
in accordance with Paragraph 5 of this Section.
b. Where the hearing in a dispute properly submitted to the
Board has commenced before the Board, and where the Board
is then composed solely of the two (2) Board Members
appointed by the Company and the two (2) Board Members
elected by the employees, or their respective alternates,
and where the Board is unable by majority vote to decide
an issue before it relative to the dispute being heard,
the Board shall declare itself deadlocked and it shall
select a referee from the panel established pursuant to
the subject in the order specified in Paragraph 5 of this
Section. In the event the Board has failed to decide such
issue or declare itself deadlocked within ten (10) days
after the issue has been heard by the Board, then the
Board shall be deemed to be deadlocked for the purpose of
this Paragraph and shall select a referee as herein
provided. The referee so selected shall thereupon join the
Board as a member and as the Chairman thereof in the
subsequent consideration and disposition of the matter
over which the Company and employee Board Members
deadlocked and in the subsequent hearing, consideration
and disposition of the dispute then being heard.
c. When composed of five (5) members as a result of the
procedures set forth in Paragraphs 6-a or 6-b, the Board
shall be competent to hear the dispute properly submitted
to it and to decide said dispute by majority vote.
Decisions of the Board so composed shall be final and
binding on the parties and shall be rendered no later than
five (5) days after the close of the hearing.
d. Within ten (10) days after the selection of the referee
as provided in the preceding Paragraph 6, the five (5)
member Board shall consider and review the prior record in
the dispute, and it may call such witnesses and receive
such evidence as it may deem necessary. Either party may
make written request to the Board for the privilege of
presenting witnesses or documentary evidence, and the
may in its discretion permit such presentation.
e. When composed of five (5) members as a result of the
procedure set forth in Paragraph 6a and 6b above, the
Board shall be competent to decide said dispute by
majority vote. Decisions of the Board so composed shall be
final and binding on the parties and shall be rendered
later than five (5) days after the Board has considered
and reviewed the prior record in the dispute and/or has
received such additional evidence as deemed necessary,
whichever is later.
7. In the event the Board is unable to comply with the time
limits specified in Paragraphs 4 and 6 above, the
Chairperson of the Board shall, prior to the expiration of
ten (10) days, notify both parties in writing of the reasons
the Board is unable to comply with the time limits, and give
a date as early as is possible for when a decision will be
rendered. In no event shall the time limits for a return of
a decision continue for more than thirty (30) business days.
a. The expenses and reasonable compensation of the referees
selected as provided herein shall be borne equally by the
Company and grievant.
b. The time limits specified in this Section may be extended
in writing by mutual agreement of the President and the
Chief Executive Officer of the Company and the employee
c. Nothing herein shall be construed to limit, restrict or
abridge the rights or privileges accorded either to the
employees or to the employer, or to their authorized
d. The Board shall for a minimum period of five (5) years
maintain a complete record of all matters submitted to it
for its consideration and of all their findings and
e. The Company will assume the compensation, travel expense
and other related expenses of the Board Members.
f. Each of the parties hereto will assume the compensation,
travel expense and other expenses of the witnesses called
or summoned by it.
g. The Chairperson and the Vice Chairperson designated
pursuant to Paragraph 2-c, acting jointly, shall have the
authority to incur such other expenses as in their
judgment may be deemed reasonable and necessary for the
proper conduct of the business of the Board and such
expenses shall be borne one-half by each of the parties
hereto. Board Members who are employees of the Company
shall be granted necessary time for the performance of
their duties as Board Members. Board Members shall be
provided reasonable transportation expenses for the
purpose of attending meetings of the Board.
h. IT IS UNDERSTOOD AND AGREED THAT EACH AND EVERY BOARD
MEMBER SHALL BE FREE TO DISCHARGE HIS/HER DUTY IN AN
INDEPENDENT MANNER, WITHOUT FEAR THAT HIS/HER INDIVIDUAL
RELATION WITH THE COMPANY OR WITH THE EMPLOYEES MAY BE
AFFECTED IN ANY MANNER BY ANY ACTION TAKEN BY HIM/HER IN
GOOD FAITH IN THE CAPACITY OF A BOARD MEMBER.
i. The Board shall have the authority for the administration
and interpretation of this Section of the Agreement. In
the event the Board cannot agree on the administration or
interpretation of the Section, they shall refer the matter
to the first named referee.
j. In the event a member of the panel of referees is more
than ten (10) days overdue beyond any time limits
specified in this Section D for the rendering of a
decision or any other required act, the member shall not
be considered eligible for assignment of additional cases
until such decision or act is rendered.
The following are events which upon determination of their
occurrence will result in probation, suspension or discharge.
1. Safety related failure to comply with Company or government
rules or regulations which could not have endangered persons
or property — Probation for one year and a letter of
admonition. Second occurrence subject to suspension or
2. Safety related failure to comply with Company or government
rules or regulations which could have endangered persons or
property — Suspension — week without pay for first
occurrence and second occurrence discharge.
3. Theft of goods or services — Discharge.
4. Indictment for crime — Suspension with out pay during
5. Conviction of a crime — Discharge.
6. Written or oral falsification of any information required
by the Company — Discharge.
7. Intentionally providing misleading written or oral
communications subject to probation for one year and a
letter of admonition. Second occurrence subject to discharge
8. Conduct in the presence of Company personnel, clients, and
industry members which is inconsistent with high standards
of personal conduct, i.e. acting under the influence of
legal drugs or stimulants, participating in an altercation
— Probation for one year and letter of admonition or
suspension for first occurrence; second occurrence discharge.
8b. Use of illegal drugs and stimulants — Discharge.
9. Discussing or revealing confidential or proprietary Company
or client information. Probation for one year and letter of
admonition or suspension; second occurrence discharge.
10. Non-Safety related failure to comply with Company or
government rules, procedures and regulation — Probation for
one year and letter of admonition; second occurrence subject
to suspension or discharge.