Coleman v. Outboard Marine Corp.

• Decision Date: 04 December 1979
• Docket Number: No. 77-011,77-011
• Citation: 285 N.W.2d 631,92 Wis.2d 565
• Parties: , 103 L.R.R.M. (BNA) 2455, 89 Lab.Cas. P 55,271 William J. COLEMAN, Plaintiff-Appellant, v. OUTBOARD MARINE CORPORATION, Local 1302, United Steelworkers of America, and United Steelworkers of America, International, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 631

285 N.W.2d 631

92 Wis.2d 565, 103 L.R.R.M. (BNA) 2455,

89 Lab.Cas. P 55,271

William J. COLEMAN, Plaintiff-Appellant, v. OUTBOARD MARINE CORPORATION, Local 1302, United Steelworkers

of America, and United Steelworkers of America,

International, Defendants-Respondents.

No. 77-011.

Supreme Court of Wisconsin.

Submitted on Briefs Oct. 10, 1979.

Dec. 4, 1979.

Thomas R. Fahl and Brendel, Flanagan & Sendik, S. C., Milwaukee, for plaintiff-appellant.

Peter W. Bunde, Fred G. Groiss, Patricia K. Ballman and Quarles & Brady, Milwaukee, for defendant-respondent Outboard Marine Corp.

Zubrensky, Padden, Graf & Bratt, Milwaukee, for defendants-respondents Unions.

ABRAHAMSON, Justice.

The issue presented by this appeal is whether summary judgment should have been granted in this suit brought by an employee against the union and against his employer alleging breach of the duty of fair representation by the union and breach of the collective bargaining agreement by the employer. We hold that summary judgment should not have been granted.

William J. Coleman, the employee-plaintiff, served a summons and complaint upon his employer, Outboard Marine Corporation, and upon the local union, United Steelworkers of America, Local 1302, and the international union, United Steelworkers of America, International ¹ in September, 1975.

Issue was joined in February 1976. On March 29, 1977, the Union served and filed a notice of motion and motion for summary judgment on the grounds that there is no genuine issue as to any material fact. Documents were submitted in support of this motion but no affidavit describing the documents or otherwise setting forth evidentiary facts was submitted. The motion was based upon "the papers attached hereto and the pleadings filed herein and the exhibits attached which set forth evidentiary facts showing that the (Union) are entitled to summary judgment against the plaintiff."

On April 14, 1977, Outboard moved for summary judgment basing its motion upon the "papers and exhibits filed in support of the Motion for Summary Judgment dated March 29, 1977 filed by (the Union)." At the time of filing the motion, Outboard did not furnish a supporting affidavit. However on May 5, 1977, Outboard furnished an affidavit by one of its attorneys stating that "this motion is based upon the uncontroverted facts set forth in the pleadings and the exhibits previously filed . . . (and that Outboard) believes that this action has no merit."

Coleman submitted a brief in opposition to the motions for summary judgment, arguing that because of procedural improprieties, the motions should not be granted. Coleman's brief did not argue the merits of the motions and did not file any counter affidavits.

On May 10, 1977, the circuit court granted the defendants' motions for summary judgment and ordered that Coleman's complaint be dismissed. The circuit court concluded that "in briefs and at the hearing Coleman brought forth no material issue of fact which even approached the high standard necessary to prove a breach in the statutory duty of fair representation. Rather, he opposed the motions for summary judgment on the technical ground that they failed to comply with sec. 270.635, Wis.Stats." Coleman moved to set aside the order granting summary judgment, arguing in part that he should be allowed to present affidavits in opposition to the defendants' motions for summary judgment. This motion to vacate the order of May 10, 1977 was denied. Judgment was entered dismissing the complaint. Coleman appeals from both the judgment dismissing the complaint (which is based on the order granting summary judgment) and the order denying his motion to vacate the order granting summary judgment.

On appeal, Coleman again objects to the granting of the motions for summary judgment on the ground that the motions did not comply with the applicable statutory requirements. Sec. 270.635, Stats.1973, ² governs summary judgment in actions commenced prior to January 1, 1976, and sec. 802.08, Stats., ³ governs summary judgment in actions commenced on or after January 1, 1976. ⁴ The question Coleman raises is when was this action commenced and which statute applies. Coleman served the summons and complaint on the defendants prior to January 1, 1976, the effective date of the revised Rules of Civil Procedure. However, in ruling on a demurrer the circuit court dismissed the complaint against the Union on December 23, 1975, and an amended complaint was served on the Union and Outboard on January 12, 1976.

Under both sec. 270.635, Stats.1973, and sec. 802.08, Stats., summary judgment must be denied if there is a genuine issue as to any material fact. Because we hold that the documents submitted by the defendants show that there is a genuine issue as to a material fact and that it was error to grant summary judgment, we need not determine whether there is merit to Coleman's objections to the motions on the grounds that defendants did not file appropriate documents or give him proper notice.

This court has in numerous cases set forth the procedure it follows in reviewing whether a summary judgment should have been granted. Initially the court must examine the pleadings to determine whether a cause of action has been stated and whether a material issue of fact is presented.

If the complaint states a claim and the pleadings show the existence of factual issues, the court examines the moving party's (in this case, the defendants') affidavits and other proof to determine whether there are disputed material facts sufficient to entitle the opposing party to a trial. Sec. 270.635(2), Stats.1973; sec. 802.08(3), Stats. Ricchio v. Oberst, 76 Wis.2d 545, 550-51, 251 N.W.2d 781 (1977); Krezinski v. Hay, 77 Wis.2d 569, 572, 253 N.W.2d 522 (1977).

On summary judgment the moving party has the burden to establish the absence of a genuine, that is, disputed, issue as to any material fact. On summary judgment the court does not decide the issue of fact; it decides whether there is a genuine issue. A summary judgment should not be granted unless the moving party demonstrates a right to a judgment with such clarity as to leave no room for controversy; some courts have said that summary judgment must be denied unless the moving party demonstrates his entitlement to it beyond a reasonable doubt. Madison v. Deseret Livestock Co., 574 F.2d 1027, 1037 (10th Cir. 1978). Doubts as to the existence of a genuine issue of material fact should be resolved against the party moving for summary judgment. Hopewell Township Citizens v. Volpe, 482 F.2d 376, 380 (3d Cir. 1973); 10 Wright & Miller, Federal Practice & Procedure: Civil sec. 2725, p. 510 (1973).

The papers filed by the moving party are carefully scrutinized. The inferences to be drawn from the underlying facts contained in the moving party's material should be viewed in the light most favorable to the party opposing the motion. If the movant's papers before the court fail to establish clearly that there is no genuine issue as to any material fact, the motion will be denied. 6 Moore on Federal Practice, 56.15(3), p. 56-463 Et seq. (2d ed. 1976). If the material presented on the motion is subject to conflicting interpretations or reasonable people might differ as to its significance, it would be improper to grant summary judgment. 10 Wright & Miller, Federal Practice & Procedure: Civil sec. 2725, p. 515 (1973); Kraemer Bros. Inc. v. United States Fire Insurance Co., 89 Wis.2d 555, 565-67, 278 N.W.2d 857 (1979).

We turn now to review Coleman's complaint under these standards. The amended complaint alleges that on June 18, 1975, Coleman was operating his assigned machine; that he discovered that the machine was not working properly; that he took a machine part to a repair station; that on his return to his job station, he was informed by his foreman that his work was "junk" and the foreman immediately suspended him; and that his suspension and discharge were not for proper cause. It further recites that the collective bargaining agreement provides a five-step grievance procedure; that on June 20, 1975, at the third-step hearing, Outboard decided that Coleman's suspension would continue and that his work record would show he made "junk," and that Coleman refused to accept this decision and requested the Union to take the matter to the fourth step of the grievance procedure. At the fourth step of the grievance procedure, at a meeting of Union and Outboard representatives on July 11, 1975, Outboard agreed that Coleman would be reinstated on July 14, 1975, that Coleman would not receive back pay, and that his work record would not be cleared of the incident.

Coleman alleges that he appeared at the plant on July 14, 1975 and informed the Union that while he agreed to return to work he wanted back pay and his record expunged. The amended complaint further recites that Coleman was not told that a settlement had been reached at the fourth step of the grievance procedure and that Coleman was led to believe that the Union was considering whether to go to arbitration (the fifth step of the grievance procedure) but that if he returned to work on July 14, 1975, arbitration would not be undertaken. Coleman did not return to work, and Outboard terminated him for failure to abide by the settlement reached at the fourth step of the grievance procedure.

Coleman's complaint charges the Union with numerous acts which Coleman asserts are the basis for his allegation that the Union's representation of him was arbitrary, discriminatory, and in bad faith and constituted a breach of the Union's duty of fair representation, including that the Union failed to inform him that a settlement had been reached at step four of the grievance procedure and that his failure to report to work would cause him to lose his job; that the Union led him to believe that his return to work on July 14, 1975 would waive the possibility of arbitration,...