728 F.

2d 568
115 L.R.R.M. (BNA) 3215, 100 Lab.Cas. P 10,861,
1 Indiv.Empl.Rts.Cas. 364

Richard J. BERTRAND, Jr., Plaintiff, Appellant,

v.
QUINCY MARKET COLD STORAGE & WAREHOUSE
COMPANY, Defendant, Appellee.
No. 83-1659.

United States Court of Appeals,

First Circuit.
Argued Jan. 3, 1984.
Decided March 6, 1984.
1

James F. Freeley, Jr., Boston, Mass., with whom John E. Sheehy, Reading,
Mass., was on brief, for plaintiff, appellant.

David J. Kerman, Boston, Mass., with whom John H. Mason, and Ropes &
Gray, Boston, Mass., were on brief, for defendant, appellee.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and PETTINE,*

Senior District Judge.

PETTINE, Senior District Judge.

The plaintiff, Richard J. Bertrand, Jr., is a former employee of defendant,

Quincy Market Cold Storage & Warehouse Co. (Quincy Market). Bertrand's
employment with Quincy Market ended in February 1982, when he either quit
or was fired. He filed a complaint against Quincy Market in the district court on
June 9, 1982, alleging four causes of action: (1) breach of an implied covenant
of good faith and fair dealing in employment contracts; (2) violations of M.G.L.
c. 93A and c. 176D (which regulate business practices); (3) intentional
infliction of emotional harm; and (4) breach of his employment contract. The
defendant moved for, and the district court below granted, summary judgment
for the defendant on all four counts. We affirm.

Since this is a motion for summary judgment, we must view all facts in the

light most favorable to the nonmoving party, which, here, is the plaintiff, Mr.
Bertrand. Bertrand was a fork lift truck driver at Quincy Market's cold storage
facility in Watertown, Massachusetts. In this capacity, he spent a great deal of
time in refrigerated areas where the temperature was zero degrees fahrenheit.
Plaintiff suffered problems with his neck and back due to the cold. These
problems led to plaintiff filing for, and receiving, workmen's compensation
payments. The plaintiff was away from his job, and receiving compensation
payments, during three different periods. It was during the third of these
periods that this dispute arose.
Plaintiff's third industrial leave of absence began on August 18, 1981. On
November 5, 1981, the plaintiff was examined at the company's request by Dr.
Andrew A. Kerhulas. Dr. Kerhulas advised the plaintiff at that time "to seek
work outside the refrigeration plant, if possible." (Bertrand affidavit of July 13,
1982.) However, Dr. Kerhulas apparently felt that Bertrand was no longer
disabled; in a letter to Quincy Market on December 11, 1981, Kerhulas stated:

8 is my firm opinion that this boy has no definite objective findings at this time, his
It
symptoms are mainly subjective. He has been told not to return to any work being
exposed to cold storage and it is my opinion that this man's symptoms are all
subjective at this time and I can find no definite disability in regards to his injury in
his neck. I feel that he can return to work as of this date.
9

As a result, Quincy Market sent Bertrand a letter on February 3, 1982. Quincy

Market stated that in light of Kerhulas' letter, a copy of which was enclosed, he
was "directed" to return to work on February 8, 1982 or to contact Quincy
Market immediately and provide evidence that he could not return to work. The
letter reminded Bertrand of his contractual duty to report for work if he was not
actually disabled, and concluded that "[i]f you fail to return to work as directed
or to provide evidence establishing that you are not able to return to work, you
will be considered to have voluntarily terminated your employment."

10

February 8 passed without word from Bertrand. On February 16, Bertrand sent
Quincy Market a letter which simply acknowledged the February 3 letter and
advised Quincy Market to send any other correspondence directly to Bertrand's
attorney. Quincy Market sent Bertrand a letter on February 22 which, after
recounting that Bertrand had not complied with the February 3 letter, stated that
his employment had been terminated. Bertrand filed this suit four months later.

11

In the first count of his complaint, the plaintiff alleges that Quincy Market
breached an implied covenant of good faith and fair dealing in his employment
contract. The district court ruled for the defendant because the plaintiff had not

gone through the mandatory grievance and arbitration procedure prescribed in

the plaintiff's union contract, citing this court's decision in Hayes v. New
England Millwork, 602 F.2d 15 (1st Cir.1979). The plaintiff attempts to avoid
Hayes in this court by contending that the union contract does not cover his
claim in implied contract, that he was not a union member and, therefore, not
bound by the union contract in February 1982, that this is a tort claim which is
exempt from the bargaining agreement, and that he was discharged for failure
to obey a direct order, which is exempted from arbitration by the agreement.
12

Although an implied covenant of good faith and fair dealing is, by its very
nature, not explicitly in any contract, we think that the arbitration provisions of
the union contract in this case would cover a dispute over a claim of this nature.
Section 20.1 of the contract states that if the union claims that an employee was
dismissed without just cause, the dispute must be submitted to the grievance
and arbitration procedures. This provision surely is broad enough to cover the
plaintiff's implied contract claim.

13

As to the plaintiff's allegation that he was dismissed for failure to obey a direct
order, he claims that under section 20.2, such conduct, if proved, would be
conclusively presumed to be just cause and not subject to arbitration, thereby
allowing him to pursue his remedy in court. Even conceding the plaintiff's
argument, here he contends that the direct order was merely a pretext for firing
him. We cannot accept that section 20.2 bars arbitration in such a situation.
Section 20.2 states that failure to obey a direct order will be conclusively
presumed to be just cause only "if proved"; the order must be given in good
faith and not be a sham for some ulterior purpose. Therefore if the February 3
letter were a direct order, it could still come within the agreement if it was
outrageous and merely a pretext for firing the plaintiff as he contends. The
decision was, in any event, clearly for the arbitrator, not a court. E.g., Mobil Oil
v. Local 8-766, Oil, Chemical & Atomic Workers, 600 F.2d 322, 327-28 (1st
Cir.1979).

14

The plaintiff's claim that he was not covered by the contract is equally without
merit. Bertrand contends that this was raised as an issue of fact by his affidavit
of July 13, 1982, in which he says "I am not presently covered by the
agreement between Quincy Market and local 504 ..." (emphasis added). His
statement, however, does not go to the heart of his argument--whether he was
covered by the contract in February 1982. However, we need not debate exactly
what the plaintiff meant by this line in his affidavit because whether or not
Bertrand was covered by the contract at a certain time is a question of
interpreting the contract, which makes it a question of law. Various provisions
in the contract evidence a clear intent for the contract to cover the employment

rights of all employees in the refrigeration plant, including those on industrial

leave of absence. Interestingly, the very affidavit which seeks to raise the issue
of whether Bertrand was a union member covered by the contract also verifies
the factual allegations of the complaint, among which are that he was a union
member covered by the contract.
15

The plaintiff's argument that the defendant's breach of its implied covenant of
good faith and fair dealing is a tort and not subject to grievance procedure is
misplaced. By definition this is an implied covenant in an employment
contract; perforce it is a contract claim and not a tort.

16

Finally, we doubt that the Massachusetts courts would ever imply the covenant
in this case. This covenant has generally been implied in contracts of
employment "at will." This, however, was not an at will employment contract;
the company had negotiated away its right to discharge anyone except for "just
cause." Since there is an explicit contractual provision giving the employee
greater protection than the implied covenant, there is no need to imply the
covenant. See Blades, Employment At Will v. Individual Freedom: On
Limiting the Abusive Exercise of Employer Power, 67 Colum.L.Rev. 1404,
1410-13 (1967) (comparing the protections of discharge only for just cause
provisions in union contracts with the lack of protection given at will
employees).

17

The same logic by which we sustain the district court's summary judgment as to
Count I for failure to comply with the contract's grievance procedures also
applies to Count IV. Count IV alleges that the plaintiff's union contract was
breached by his discharge. If the termination subject to the February 3 letter
was truly a pretext, then the union should have grieved it. If it was not pretext,
then the employer had just cause. Either way, the plaintiff has no cause of
action now.

18

Count II of the complaint alleged violations of M.G.L. c. 93A and 176D.

M.G.L. c. 93A prohibits deceptive trade practices while M.G.L. c. 176D
regulates deceptive practices in the insurance industry. However, even though
the defendant is a self-insurer under the workmen's compensation statute, it
does not fall within the terms of c. 176D. Section 1 of the chapter states that it
applies to any self-insurer "which is engaged in the business of insurance ...." A
self-insurer under the workmen's compensation law does not thereby become an
insurance company. Similarly, c. 93A was intended to "encourage more
equitable behavior in the marketplace." Manning v. Zuckerman, 388 Mass. 8,
12, 444 N.E.2d 1262 (1983). In Manning, the Supreme Judicial Court held that
Sec. 11 of c. 93 A did not apply to employee-employer disputes; although the

defendant is a self-insurer and although plaintiff could attempt to use Sec. 9

instead of Sec. 11 of c. 93 A, Manning bars the action because this is not a
marketplace transaction. Cf. International Brotherhood of Teamsters v. Daniel,
439 U.S. 551, 99 S.Ct. 790, 58 L.Ed.2d 808 (1979) (compulsory payments by
employer into union pension plan does not constitute purchase of a "security"
under the federal Securities Acts by an employee).
19

Finally, the third count of the complaint alleged intentional infliction of

emotional distress. The district court applied Foley v. Polaroid Corp., 381
Mass. 545, 413 N.E.2d 711 (1980), to bar this action. In Foley, the court held
that actions for intentional infliction of emotional distress caused by an
employer's actions during the employment relationship were barred by the
exclusivity provision of the workmen's compensation statute. M.G.L. c. 152,
Sec. 24. In this case, although the last letter may have been sent after the
employment relationship ended, it was part of a single course of conduct begun
by the first letter while the plaintiff was still a Quincy Market employee. As the
employer's conduct substantially took place while the plaintiff was an
employee, and it explicitly concerned his employment, the plaintiff suffered "a
personal injury arising out of and in the course of his employment ...." M.G.L.
c. 152, Sec. 26.

20

Affirmed.

Of the District of Rhode Island, sitting by designation