Zuniga v. United Can Co.
| Decision Date | 06 March 1987 |
| Docket Number | 85-2030,Nos. 85-2013,85-2489,s. 85-2013 |
| Citation | 812 F.2d 443 |
| Parties | 124 L.R.R.M. (BNA) 2888, 55 USLW 2523, 106 Lab.Cas. P 12,247 Jesus ZUNIGA, Plaintiff-Appellee, v. UNITED CAN COMPANY; and Driver-Salesmen, Produce Workers, and Helpers, Local 588, Retail Delivery Drivers, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kenneth N. Silbert, San Francisco, Cal., and Kent Jonas, San Francisco, Cal., for defendants-appellants.
Michael Friedman, Oakland, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of California.
Before SNEED and FARRIS, Circuit Judges, and McDONALD, * District Judge.
I
This is an action brought by a union member under section 301 of the Labor-Management Relations Act, 29 U.S.C. Sec. 185 (1982), against his employer and union. The union and employer had entered into a collective bargaining agreement governing the terms and conditions of plaintiff's employment and containing grievance procedures for resolving disputes arising thereunder. The complaint contended that the employer had breached the collective bargaining agreement and that the union had breached its duty of fair representation with respect to plaintiff's claim for sick leave benefits owing for the period from January 4, 1982, through September 27, 1982.
The collective bargaining agreement provides that employees of United Can Company who are "incapacitated and unable to perform available work" for certain stated reasons including occupational illness or disease are entitled to sick leave pay. When reports filed by the company's physician and the employee's physician disagree as to whether the employee is disabled so as to be entitled to sick leave benefits, the collective bargaining agreement provides for "medical arbitration." The employer and the union jointly select a third physician whose opinion as to the employee's condition will be final and binding.
Jesus Zuniga was first employed by United Can Company on June 4, 1962. At the time he was hired, Zuniga joined Local 768 of the Driver-Salesmen, Produce Workers, and Helpers.
During May and September 1981, United Can Company received separate reports from two physicians stating that Zuniga's employment duties should be restricted to jobs classified as "light duty" since Zuniga was experiencing physical difficulties arising out of a work-related injury to his left arm. In October and November 1981, Zuniga was reassigned to "light duty" jobs from the more physically demanding jobs he had previously performed.
On January 4, 1982, Zuniga presented United Can Company with a report from his own physician stating the Zuniga was suffering "total temporary disability." This medical conclusion conflicted with the two physicians' reports previously received by United Can Company. Zuniga did not On January 11, 1982, Zuniga filed the required forms with United Can Company requesting that he be allowed sick leave benefits under the provisions of the collective bargaining agreement and discussed his claim with both the plant personnel manager and the Secretary-Treasurer of Local 768. At trial, the testimony was conflicting with respect to the substance of information provided to Zuniga and the processing of his claim by representatives of both the company and the local union. For example, Zuniga testified that the personnel manager merely stated that the company would not accept his physician's conclusion of "total temporary disability" and that Zuniga would have to return to his assigned light duty job. The personnel manager, however, testified that Zuniga was informed on January 11, 1982, of three options: (a) return to his light duty assignment; (b) resolve the dispute in the physicians' reports through medical arbitration; or (c) remain on an unpaid leave of absence.
work at the company from January 4 to September 27, 1982.
In April 1982, United Can Company directed Zuniga to be examined by a physician at Stanford University. Zuniga was so examined, and that physician reported that Zuniga was physically capable of performing specific light duty work.
In mid-June 1982, Zuniga met with the Secretary-Treasurer of Local 768. Zuniga testified that this was the first time he was informed by the union representative that another doctor might become involved and that, if the company wanted to send Zuniga to a "third doctor," then the decision of that doctor would be final.
On September 1, 1982, Zuniga again met with the plant personnel manager and the Secretary-Treasurer of Local 768. The personnel manager indicated that, since it appeared Zuniga could perform no work for the company, United Can would refer Zuniga to a vocational rehabilitation program. However, the personnel manager offered Zuniga the option to be examined again by the physician at Stanford, stating that the company would allow Zuniga to return to work if he was released for work by that physician. Zuniga agreed to submit to another examination by the Stanford physician. On September 22, 1982, Zuniga was again examined and the physician released Zuniga for "heavy duty" work effective September 27, 1982.
On September 27, 1982, Zuniga returned to work for United Can Company at a job within the heavy duty work classification. Zuniga was able to perform this job without pain by using his right hand for heavy work.
A short time after returning to work, Zuniga learned that he could seek to recover sick leave pay for the period from January 4, 1982, until September 27, 1982, by using the grievance procedure in the agreement. With the assistance of his daughter and a union shop steward, Zuniga prepared and lodged his grievance. United Can denied the grievance on November 10, 1982, on the grounds that Zuniga had conflicting medical reports, had rejected the offer to return to light duty work, had rejected medical arbitration, and had therefore elected to remain on an unpaid leave of absence.
By letter dated November 29, 1982, Zuniga informed his union representative that he had received the company's denial of his grievance, had never refused light work, and had never been offered medical arbitration. After receiving no response from the union, Zuniga personally contacted the Secretary-Treasurer at the union hall on December 17, 1982. Zuniga testified at trial that when he asked his union representative why he had not responded to his letter, the representative said that he was tired of the matter and would do nothing more.
On January 28, 1983, Zuniga's attorney wrote a letter to the union requesting further action on the grievance. On February 14, 1983, the union moved the grievance to the next step.
The merger of Locals 768 and 588 in April 1983, delayed action on Zuniga's grievance. In the transition, records of the grievance were apparently lost. Local 588 asked United Can to provide the union with all medical records prior to proceeding with the next step of the grievance procedure.
The company responded by letter to Local 588, confirmed its prior agreement with Local 768 that Zuniga's grievance would proceed to the next step, restated its position that Zuniga was not entitled to benefits since he had declined medical arbitration, and raised a timeliness defense to further processing of the grievance, but agreed to participate in the next step.
On July 13, 1983, the next step meeting on Zuniga's grievance was held. On July 15, 1983, Local 588 advised Zuniga that the union had offered the option of medical arbitration but had not pursued it because the union perceived that it could jeopardize Zuniga's pending workers' compensation case. By letter dated July 15, 1983, the Secretary-Treasurer of Local 588 also advised Zuniga that the local union would pursue Zuniga's grievance no further.
On October 7, 1983, Zuniga's attorney appealed the decision to the Executive Board of Local 588. On November 10, 1983, the Executive Board held its regular meeting. At this meeting Zuniga was able to explain the substance of his grievance and his desire that the union proceed with the grievance. By letter dated December 5, 1983, the President of Local 588 notified Zuniga that the Executive Board had denied his appeal.
The By-Laws of Local 588 at Article XVII readopts as the Local's Constitution the Constitution of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers. The International Constitution provides that aggrieved members shall exhaust all remedies afforded in such Constitution and by the International Union before applying to the courts for relief. Article XIX, Section 12(a). The International Constitution further provides that persons aggrieved by the decision of the Executive Board of a local union may appeal to the Executive Board of the Joint Council. Article XIX, Sections 2(a) and 12(c). The International Constitution also provides that Article XIX, Section 13.
Zuniga did not appeal the decision of the Executive Board of Local 588 to the Executive Board of the Joint Council. Zuniga testified at trial that he was not informed, either orally or in writing, that further appeal rights may have been available to him. On January 6, 1984, Zuniga filed his complaint in district court.
Prior to submitting the case to the jury, the parties stipulated that plaintiff's damages for the breach of the collective bargaining claim amounted to $13,560.40, the total amount of sick leave claimed to be owing. The parties also stipulated that the employer was solely responsible for the amount of sick leave owing, if any, and that the trial judge, not the jury, would...
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