Clark v. Claremont Apartment Hotel Co.

• Decision Date: 01 October 1943
• Docket Number: 28846.
• Citation: 141 P.2d 403,19 Wn.2d 115
• Parties: CLARK v. CLAREMONT APARTMENT HOTEL CO. et al.
• Court: Washington Supreme Court

141 P.2d 403

19 Wn.2d 115

CLARK v. CLAREMONT APARTMENT HOTEL CO. et al.

No. 28846.

Supreme Court of Washington, En Banc.

October 1, 1943

Suit by Charles A. Clark against Claremont Apartment Hotel Company and others to recover the difference between wages paid plaintiff by hotel company during a period of three years' employment and wages allegedly earned during the period by virtue of a collective bargaining agreement between hotel company and labor union of which plaintiff was a member. From a judgment entered upon a directed verdict in favor of defendants, plaintiff appeals.

Judgment affirmed.

BEALS J., SIMPSON, C.J., and MALLERY and BLAKE, JJ., dissenting.

Appeal from Superior Court, King County; Calvin S. Hall, judge.

Roy H Bullack and William R. Bell, both of Seattle, for appellant.

Evans McLaren & Lane, of Seattle, for respondents.

STEINERT Justice.

Plaintiff, Charles A. Clark, brought suit against Claremont Apartment Hotel Co., a corporation, and its managers, as defendants, to recover the difference between the wages paid him by the hotel company during a period of three years' employment and the wages which he claimed to have earned during that period by virtue of an alleged collective bargaining agreement between the hotel company and the labor union of which plaintiff was a member. In their answer, defendants admitted plaintiff's employment for the period claimed; admitted that the hotel was operated under a contract and agreement with the particular union; but denied that they had violated any of the terms of that agreement; and further alleged that the hotel company had paid the plaintiff the full amount of wages owing to him under the provisions of the agreement had with the union. In an affirmative defense, defendants alleged additionally that plaintiff had regularly accepted, without protest, the periodic checks issued to him by the hotel company in payment of the wages due him for each preceding two weeks. In his reply, plaintiff denied the allegations of the affirmative defense.

The cause was tried to a jury which, at the direction of the trial court at the conclusion of all the evidence, returned a verdict in favor of the defendants. Plaintiff appealed. We shall hereinafter refer to the defendant hotel company as though it were the sole respondent.

It may be stated at the outset that, as between the respondent hotel company and the labor union of which appellant is a member, there is no divergence of view concerning the effect of the alleged collective bargaining agreement or concerning respondent's obligations thereunder. On the contrary, the union and its officers are at one with the hotel company on those questions and, likewise, so far as the record discloses, are averse to the contention made by the appellant.

The facts as shown by the evidence are these: Appellant entered the employ of the respondent, Claremont Apartment Hotel Co., on or about February 1, 1934, as assistant engineer and janitor. From that date until July 15, 1937, his agreed wage was as follows:

From February 1, 1934, to April 15, 1937, $75 a month;

From April 15, 1937, to July 15, 1937, $18 a week (which amounted to $78 per calendar month).

At all times hereinafter referred to, respondent was a member of Seattle Hotel Association, a voluntary association of hotels in the city of Seattle, and appellant was a member of International Union of Operating Engineers, Local No. 843. On or about June 1, 1937, Seattle Hotel Association entered into a written agreement with International Union of Operating Engineers, Locals No. 843 and 843A, covering hours, wages, and conditions of employment of certain employees of members of the hotel association. The agreement purported to cover 'those members of the union employed by members of the association, and to apply to all hotels, non-members as well as members.' In so far as is material here, the agreement provides:

'This agreement to be in full force and effect from June 1, 1937 to September 15th, 1938, and will continue from year to year thereafter unless one of the contracting parties notifies the other in writing ninety (90) days prior to expiration that changes are desired. * * *

'Association members [hotel operators] to have unrestricted right to hire and to discharge for cause. * * *

'No engineer shall be required to do janitor work other than the cleaning of his boiler and engine room. * * *

'The following scale of wages shall be paid during the life of this agreement. * * *

'Assistant engineers working under a chief engineer in smaller hotels, $125.00 per month. * * *

'It is mutually agreed that smaller hotels having only small heating boiler which is usually in charge of the janitor shall not be deemed a part of this agreement; however, where a man's time is fully occupied by general maintenance repair and heating he shall come under the terms of this agreement.'

That agreement and all negotiations in connection therewith or relating thereto (including a subsequent oral agreement hereinafter more particularly set forth and considered) were entered into and conducted on behalf of International Union of Operating Engineers by Bert Swain, secretary and business agent of the union, and his assistant, Edgar D. Griffith. The authority of these two individuals to represent and act for the union is not questioned.

It is to be noted that the written agreement mentioned above was one between Seattle Hotel Association and the union, and related generally to hours, wages, and conditions of employment. Agreements between the union and the individual hotel operators, members of the hotel association, were matters to be subsequently arranged between the union and the respective hotel operators and were distinct from the general agreement with the Seattle Hotel Association. Such subsequent individual agreements were likewise matters in which Swain and Griffith were authorized to act for the union and involved, among other things, the proper classification of employees of the particular hotel and their rates of pay as determined by the classification. Mr. Criffith, assistant secretary of the union, testified:

'A. There being to many different classifications and sizes of hotels, it was left to me by the organization to segregate and to place these men, or the pay of the men, in what I figured was the proper place for them, the proper classification, which I did over a matter of some possibly two months.

'Q. And would that apply to all the hotels or just the small ones? A. Apply to all of them.

'Q. All of the hotels? A. There was some that I never even went into at all. I just looked at the outside, knowing that they could not afford and engineer.

'Q. Then you, as a representative of the Union would take arrangements or enter into an agreement with each individual operator. Is that correct? A. As to the classification.

'Q. And the pay? A. And the pay of their men.'

Mr. Swain, the secretary of the union, testified:

'Q. * * * Mr. Griffith is with your Union, is he? A. Yes, my assistant.

'Q. And what are his duties and what is his authority? A. He negotiates agreements under my direction.

'Q. And does he have authority to negotiate with the Claremont Hotel? A. Yes.

'Q. And he negotiated with the Claremont Apartment Hotel under your directions and authority? A. Yes.'

About a month after the execution of the written agreement between the union and the Seattle Hotel Association, a conference was held between Messrs. Swain and Griffith, representing the union, and Messrs. William D. Shannon and J. A. Ledward, manager in charge and resident manager, respectively, of the Claremont Apartment Hotel Co., and after considerable discussion among the four men an oral agreement was entered into between the union and the respondent hotel company fixing the wages of the hotel company's employees who were members of the particular union. By that agreement appellant's wages were fixed at one hundred dollars a month, which, it will be noted, was an increase of twenty-two dollars a month over his former wages, but twenty-five dollars less than the amount provided in the earlier written agreement for assistant engineers. The substance of that conference and he reasons for the agreement are set forth with particularity in the testimony of Mr. Griffith, as follows:

'Q. Now, at that time was there an employee of the Claremont by the name of Charles A. Clark. Were you acquainted with Mr. Clark? A. Yes, sir.

'Q. Were you familiar with his position and his work at the Claremont? A. I was.

'Q. And did you negotiate with the representatives of the Claremont regarding his classification and rate of pay? A. I did.

'Q. And what was the result of those negotiations? A. Am I permitted to give the reasons for those?

'Q. Yes, you can just tell the jury.

'The Court: Any discussion that was had between the respective parties. A. All right. When we first,--The first meeting I had with him [the representative, or representatives, of the respondent hotel company] almost the first thing that came up was the fact that they had two old men down there. One of them was partially incapacitated at the time. And understand, these are their arguments, and that if they paid the scale of wages that I was asking for them that these men would have to be replaced by younger men and better men put on the job. And I was told very plainly that there would be an order in our place for two men the next day if I insisted on it. It is not my plan at any time to put any man on the street, particularly a man that is along in years and possibly somewhat incapacitated. In lieu of that fact, I agreed that the wages at the Claremont Hotel be $100.00 and $125.00 a month respectively for Mr. Clark and Mr....