Conn v. National Can Corp.

• Decision Date: 16 October 1981
• Citation: Conn v. National Can Corp., 177 Cal.Rptr. 445, 124 Cal.App.3d 630 (Cal. App. 1981)
• Parties: Opal Lee CONN, et al., Plaintiffs and Appellants, v. NATIONAL CAN CORPORATION, Defendant and Respondent. Civ. 4924.
• Court: California Court of Appeals

Page 445

177 Cal.Rptr. 445

124 Cal.App.3d 630

Opal Lee CONN, et al., Plaintiffs and Appellants, v.NATIONAL CAN CORPORATION, Defendant and Respondent.

Civ. 4924.

Court of Appeal, Fifth District, California.

Oct. 16, 1981.

Strauss, Neibauer & Anderson, and John J. Hollenback, Jr., Modesto, for plaintiffs and appellants.

[124 Cal.App.3d 633] Martin, Crabtree, Schmidt & Zeff, Robert W. Crabtree and James E. Mesnier, Modesto, for defendants and respondents.

OPINION

WOOLPERT^*, Associate Justice.

STATEMENT OF THE CASE

The appeal is by union members who brought this action against their employer and the union to which they belonged and which was certified as their bargaining agent.Prior to the appearance of the union defendantthe respondent employer was granted summary judgment.Though the ultimate issues concern labor law, a reversal is required because of the failure to properly apply summary judgment principles to the papers before the trial court.

For our purposes the facts are important only to illustrate the summary judgment problem presented the court.Appellants(employees) had seniority rights ranging from 18 to almost 20 years.Respondent(employer) and the defendant bargaining agent (union) entered into an employment contract, with the employees' approval.The contract provided that employees upon achieving 20 years status would be entitled to 13 weeks paid leave.Also, laid off employees were to have seniority rights which permitted the "bumping" of less senior employees of similar category.

The complaint is simply that these employees were laid off just short of their 20-year goal, thereby depriving them of the special leave, and then were refused bumping privileges though less senior employees were working.It is alleged that the employer and union conspired to cause the employees to lose these employment rights.The conspiracy being for certain mutual advantages of the employer and union, it is charged that the union thereby breached its duty of fair representation.

Of labor law significance, the multi-count complaint sets forth the relationship of the parties, the employment and contract, and the conspiracy resulting in the untimely loss of employment, all leading to a prayer for injunctive relief and damages.In anticipation of the defense of failure to exhaust contractual remedies, the employees allege that the union was their collective bargaining agent and had a fiduciary duty of fair representation.At some length, various union actions and inactions are alleged which amounted to a refusal of the union to institute grievance proceedings or to otherwise fairly and diligently protect the employees' interests in the administration of the collective bargaining agreement.

Though the complaint is somewhat uncertain in its factual allegations, and lacking in specifics, the alleged union activity included refusal to act, purposeful concealment, and false representations.A demurrer was filed by the employer.We assume that it was taken off calendar on respondent's choice to try the summary judgment procedure without any attempt to clarify the complaint by demurrer.From what transpired later, it is clear that the employer was confident that even admitting the wrongful breach of contract, it would be insulated from any recovery by these employees because of their failure to exhaust the grievance procedure provided by the agreement.

THE APPLICABLE LABOR LAW

A collective bargaining agreement traditionally covers the employment terms, rights and obligations, and sets forth procedures for a non-judicial resolution of employee complaints.The union part in the labor triangle is that of being the employees' bargaining agent, with express and implied duties of "fair representation."As in this case, the contract spells out a multi-level grievance procedure with precise time requirements.The result is a final one if the dispute is properly resolved.Mere neglect on the part of the employee or his union representative may bar relief because of this contractual process.With certain exceptions there is no court remedy available.

An exception to the finality provision of the contractual grievance procedure depends upon proof of union fiduciary misconduct of the kind alleged in this case.If the union agent fails in its duty of fair representation in a manner amounting to more than mere neglect, the employer and union may be successfully sued by the employee in either a federal or state court.A recent publication, in discussing the union duty of fair representation, had this to say:

"The employer has an interest in the union's proper performance of its duty of fair representation because the employer may be exposed to liability in a variety of factual situations in which the collective bargaining agreement has been breached and the union has not properly represented an employee in the bargaining unit.For example, the union's wrongful refusal to prosecute an employee's grievance properly may expose the employer to suit by the employee for breach of contract.SeeVaca v. Sipes(1967)386 U.S. 171(87 S.Ct. 903, 17 L.Ed.2d 842), discussed in§ 11.8.In Hines v. Anchor Motor Freight, Inc.(1976)424 U.S. 554(96 S.Ct. 1048, 47 L.Ed.2d 231), the employer was held subject to liability when the union had taken the grievance to arbitration but had not adequately investigated the underlying facts....

"Remedies that may be sought from the employer include back pay (seeVaca v. Sipes, supra), reinstatement (seeDe Arroyo v. Sindicato de Trabajadores Packinghouse(1st Cir.1970)425 F.2d 281), and monetary damages (seeDe Arroyo, supra;Richardson v. Communications Workers(8th Cir.1971)443 F.2d 974).

"Thus employer's counsel should be familiar with the union's duties in representing bargaining unit employees under the collective bargaining agreement and be alert to situations that may subject the employer to lawsuits by employees even though it has not participated in the union's misfeasance or malfeasance."(Advising Cal. Employers (Cont.Ed.Bar 1981)Employer Considerations, § 11.1, p. 484.)

One of the appellants apparently used the grievance procedure but not the last level of review.He claimed that the process was aborted because of a refusal to hear certain evidence.On the subject of a challenged use of the grievance procedure, the United States Supreme Court has stated:

"Even though under Vaca the employer may not insist on exhaustion of grievance procedures when the union has breached its representation duty, it is urged that when the procedures have been followed and a decision favorable to the employer announced, the employer must be protected from relitigation by the express contractual provision declaring a decision to be final and binding.We disagree.The union's breach of duty relieves the employee of an express or implied requirement that disputes be settled through contractual grievance procedures; if it seriously undermines the integrity of the arbitral process the union's breach also removes the bar of the finality provisions of the contract."(Hines v. Anchor Motor Freight, Inc.(1976)424 U.S. 554, 567(96 S.Ct. 1048, 1058, 47 L.Ed.2d 231).)¹

Therefore, when the demurrer was taken off calendar and the motion for summary judgment was argued, the complaint alleged certain joint efforts of the employer and union agent to deprive the employees of contractual rights, with an affirmative challenge to the union's fair representation in the grievance process.To be successful at trial the employees would have to prove the union's unfair conduct in order to overcome the protective shield ordinarily provided by such collective bargaining agreement grievance procedures.

THE SUMMARY JUDGMENT ERROR

A motion for summary judgment may be made even though no answer is on file and a demurrer has not yet been decided.(Snider v. Snider(1962)200 Cal.App.2d 741, 746-747, 19 Cal.Rptr. 709;Orange County Air Pollution Control Dist. v. Superior Court(1972)27 Cal.App.3d 109, 112, fn. 2, 103 Cal.Rptr. 410;Code Civ.Proc., § 437c.)However, if there are pleading or discovery problems, it may be more prudent to delay the motion until after a full use of demurrer, requests for admissions, interrogatories and depositions.(Segura v. Brundage(1979)91 Cal.App.3d 19, 29, 153 Cal.Rptr. 777.)In this casethe parties stipulated to a waiver of time so as to bring the motion without waiting the usual 60 days.

Attached to the employer's motion were declarations by its own officers affirming the nature of the contract and swearing to the failure of the employees to use the contractual grievance remedies, excepting the one plaintiff who had only done so in part.Each declared that the company had not refused to cooperate with the employees or union.No union representative declaration was filed and no employer declaration attempted to question the allegations in the complaint as to (1) the employer's contractual violations, (2) the conspiracy, or (3) the union failure to fairly represent the employees in the grievance process.

As we will shortly point out, it was unnecessary for the employees to present declarations on the subject of unfair representation.Nevertheless, they proceeded to do so.Challenges were made to these declarations and objections to certain parts of them were sustained.Enough was left in them to make a colorable showing of controversies between the employees and the union representatives concerning the grievance process and the wisdom of using such contractual procedures.

We need not resolve the question of the adequacy of the employee declarations to raise inferences of union conduct amounting to more than mere neglect.Summary judgments are reversible on the finding of factual issues based on inferences first drawn by the appellate court.(Maxwell v. Colburn(1980)105 Cal.App.3d 180, 163 Cal.Rptr. 912.)We do recognize that an employer declaration that grievance procedures...