Cone v. Union Oil Co. of Cal.
| Decision Date | 15 December 1954 |
| Citation | 129 Cal.App.2d 558,277 P.2d 464 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Gladys S. CONE, Plaintiff and Appellant, v. UNION OIL COMPANY OF CALIFORNIA, Defendant and Respondent. Civ. 20325. |
Thomas D. Griffin, Long Beach, for appellant.
L. A. Gibbons, Douglas C. Gregg, A. Andrew Hauk, Sheldon C. Houts, Los Angeles, Ball, Hunt & Hart, Long Beach, for respondent.
This is an appeal by plaintiff from a summary judgment in favor of the defendant Union Oil Company.
Plaintiff seeks to recover damages for the alleged violation by the defendant of a collective bargaining agreement between the Company and Local No. 128, Oil Workers International Union, C.I.O. Plaintiff claims that the Company breached certain agreements settling a strike that began in September, 1948, and ended on January 10, 1949. She alleges that the Company's breach consists of failing to employ her in accordance with the terms and conditions of this agreement and of employing others having less seniority than she had in job openings for which she could qualify. Plaintiff bases her suit on Exhibit A to the complaint, which is the strike settlement agreement with an addendum thereto. Plaintiff prays for wages allegedly accrued from January 10, 1949, to the date of filing her complaint and in addition for prospective loss of wages.
The Company, in its answer, denies liability and alleges that it has scrupulously abided by all the terms and conditions of the strike settlement. The Company also alleges that Exhibit A to plaintiff's complaint does not contain all of the addenda which were a part of the strike settlement agreement of January 10, 1949. The Company also pleads that the failure of the plaintiff to perform certain conditions precedent in the strike settlement agreement and addenda bars the maintenance of this action.
Defendant moved for summary judgment. In support of the motion it submitted the affidavit of Kenneth E. Kingman, its vice president, who conducted all negotiations with the Union at all times involved herein. The Kingman affidavit discloses that:
1. The collective bargaining agreement upon which plaintiff seeks recovery consists of the strike settlement agreement dated January 9, 1949 (effective January 10th), and three separate addenda thereto, all of which are attached as exhibits to the affidavit.
2. By agreement between the Union, of which plaintiff was a member and which was authorized to represent her as her collective bargaining agent, and the Company the grievance procedures set up in Article VII of the prior collective bargaining agreement between the parties dated March 4, 1946, were incorporated in the strike settlement agreement for use in settling disputes.
3. These grievance procedures consisted of seven detailed and specific steps, from initiation of the grievance to final arbitration in the event settlement of the dispute should not be effected or decision rendered in the intermediate steps.
4. Plaintiff initiated grievance No. 13, raising the identical matters set forth in her complaint herein, and the grievance procedure was pursued through the first six steps.
5. Step seven of the grievance procedure provided as follows:
6. Although the grievance was not settled or decided in the first six steps, neither plaintiff nor the Union on her behalf requested the selection of a third arbiter to decide the dispute, nor did plaintiff or the Union on her behalf request the conciliation service of the U. S. Department of Labor to assign a third party to act as arbiter.
7. Plaintiff, and the Union on her behalf, failed and neglected to exhaust the grievance procedures incorporated in the strike settlement agreement, and particularly those contained in said Article VII of the 1946 collective bargaining agreement, in that plaintiff, and the Union on her behalf, failed and neglected to pursue or utilize the seventh step in these grievance procedures. Furthermore, at no time did she, or the Union on her behalf, present or submit to defendant any other grievance arising out of the application to her of any of the terms or provisions of the strike settlement agreement.
8. An additional procedure for the settlement of grievances, based upon the application of paragraphs 9 and 10 of the strike settlement agreement, was provided in paragraph 13 of that document, namely, reference of complaints to a special Union-Management Committee, but at no time did plaintiff or the Union, on her behalf, refer any complaint to this special committee.
9. Finally, at no time did the defendant ever fail, refuse or neglect to cooperate with plaintiff, or the Union, with respect to exhausting, pursuing, continuing or complying with the grievance and arbitration procedures.
Plaintiff does not allege in her complaint that she ever made any demand on the Union to exhaust, pursue or continue with the arbitration of said grievance, or any other grievance, on her behalf, either pursuant to the grievance and arbitration procedure provided in Article VII of the 1946 agreement, or pursuant to the additional grievance procedure provided in paragraph 13 of the strike settlement agreement. Neither does she allege in her complaint that the defendant has refused to pursue or comply with the aforesaid grievance and arbitration procedures, nor does she charge that the Company has ever failed, refused or neglected to cooperate with her or with the Union in the pursuit or continuance of said grievance and arbitration procedures.
Plaintiff did not file any counter-affidavit, nor was any such affidavit filed on her behalf.
It is thus undisputed that plaintiff and the Union on her behalf have failed and neglected to pursue and exhaust the remedies given by the collective bargaining agreement, namely, the grievance and arbitration procedures provided therein, and that the Company was in no way in default or at fault in this regard.
The obvious purpose to be served by the summary judgment procedure is to expedite litigation by avoiding needless trials. While it is not a substitute for a regular trial and does not authorize the trial of any bona fide issues of fact which the affidavits may reveal, it permits the court to pierce the allegations of the pleadings to ascertain whether a genuine cause of action in fact exists or whether the defense interposed is sham or feigned. Kelly v. Liddicoat, 35 Cal.App.2d 559, 561, 562, 96 P.2d 186.
Section 437c, Code of Civil Procedure, provides, inter alia, that if it is claimed that an action has no merit the defendant may, upon proper notice, make a motion, supported by an affidavit of any person having knowledge of the facts, that the complaint be dismissed and...
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