The opinion of the court was delivered by: MCCURN
MEMORANDUM-DECISION AND ORDER
Plaintiff James C. Harpp brings this action against his former employer General Electric Company (G.E.) for breach of contract, written and implied. He seeks reinstatement to his former job and damages for his wrongful discharge. The action was commenced on December 28, 1977 in New York State Supreme Court and removed to Federal Court as an action under Section 301 of the Labor-Management Relations Act (LMRA), 29 U.S.C. § 185.
Before the Court are defendant's motions for summary judgment pursuant to Fed. R. Civ. P. 56(b).
Plaintiff commenced working at General Electric's Schenectady plant on or about August 18, 1969, and claims that he was discharged without good cause during a period when he was unable to work due to illness. Both parties agree that the effective date of termination was January 27, 1977. Harpp received sick benefits from September 29, 1976 until December 19, 1976; the company suspended his benefits because its doctor determined that he was able to work. Harpp contends that his own doctor advised him not to return to work.
While employed at G.E., plaintiff was a member of Local 301, International Union of Electrical, Radio and Machine Workers (AFL-CIO). Local 301 and the International had a collective bargaining agreement with General Electric, which governed the terms and conditions of employment.
While decision was pending on defendant's motion for summary judgment for failure to exhaust contractual grievance and arbitration remedies, the defendant's answer, upon motion, was amended to assert a defense of timeliness and a further motion for summary judgment based thereon was made by defendant.
1. Exhaustion of Contractual Remedies
While plaintiff's complaint does not explicitly mention the collective bargaining agreement in effect between G.E. and the union, this action concerns a claim of wrongful discharge that is before the Court pursuant to Section 301 of the LMRA, 29 U.S.C. § 185. This section reads in pertinent part:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
Plaintiff's federal claim is for breach of the written contract; plaintiff, in his answers to interrogatories, states that the written contract on which he bases his claim is none other than the collective bargaining agreement between G.E. and the union. In addition, plaintiff asserts a pendent state claim for breach of implied contract; he submits that he had an unwritten agreement with his employer in which the two parties concurred that he could continue in his job indefinitely so long as he performed his duties faithfully.
The collective bargaining agreement governing plaintiff's employment contains provisions for grievance and arbitration. The plaintiff, in answering defendant's interrogatories, admits that he did not comply with these procedures. Under the agreement, grievances, depending on their nature, are processed through a two- or three-step process. See Defendant's Exhibit G, Article XIII. After the grievance procedure is exhausted, either the union or G.E. may submit still unresolved disputes, including those involving discharge, to arbitration. See Defendant's Exhibit G, Article XV.
It is well settled that where an agreement contains grievance and arbitration provisions, the employee must attempt to exhaust those provisions before seeking judicial relief, if those provisions are intended to constitute the exclusive remedy for breach of contract. Vaca v. Sipes, 386 U.S. 171, 184, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967). Unless the contract provides otherwise, the employee must attempt to make use of grievance procedures agreed upon by the employer and the union. Republic Steel Corp. v. Maddox, 379 U.S. 650, 658, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965). See United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960); United Steelworkers v. Warrior & Gulf N. Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960). See also Kowalik v. General Marine Transport Corp., 411 F. Supp. 1325 (S.D.N.Y. 1976), aff'd, 550 F.2d 770 (2d Cir. 1977), cert. denied, 4 ...