Cussimanio v. Kansas City Southern Ry. Co., 50851

• Decision Date: 26 September 1980
• Docket Number: No. 50851,50851
• Citation: 617 P.2d 107,5 Kan.App.2d 379
• Parties: John L. CUSSIMANIO, Appellant, v. KANSAS CITY SOUTHERN RAILWAY COMPANY and United Transportation Union, Appellees.
• Court: Kansas Court of Appeals

Page 107

617 P.2d 107

5 Kan.App.2d 379

John L. CUSSIMANIO, Appellant, v. KANSAS CITY SOUTHERN RAILWAY COMPANY and United

Transportation Union, Appellees.

No. 50851.

Court of Appeals of Kansas.

Sept. 26, 1980.

Syllabus by the Court

1. In the absence of a contract, express or implied, between an employer and its employee covering the duration of employment, the employment is terminable at the will of either party.

2. An employer has a right to establish reasonable standards of physical fitness for its employees.

3. An employer may agree as a part of an employment contract to limit its right to discharge or discipline its employees.

4. Generally, an employer may terminate an employment contract when because of illness or injury an employee is unable to perform for a substantial part of the term of the contract and the employer's interests are materially affected thereby unless there is a stipulation to the contrary.

5. A union in representing a worker under a collective bargaining agreement has a fiduciary duty to serve the interest of the worker, to exercise its discretion with complete good faith and honesty and avoid arbitrary conduct.

6. A union in exercising its power as a bargaining agent under a collective bargaining agreement has a duty to act fairly and not to assert or press grievances unless it believes in good faith such action is warranted.

7. A worker, in order to recover against a union on a theory of unfair representation of a labor dispute under a collective bargaining agreement, must allege and prove arbitrary or bad faith conduct on the part of the union in processing the grievance.

8. In an action for wrongful discharge from employment and for unfair representation, it is held that the trial court did not err in granting summary judgment in favor of the defendants, Kansas City Southern Railway Company and United Transportation Union, and against the plaintiff, John L. Cussimanio.

Fred Spigarelli, Pittsburg, for appellant.

R. L. White, of White & Hudson, Chartered, Pittsburg, for appellee Kansas City Southern Ry. Co.

Daniel D. Sawyer of Hubbell, Lane & Sawyer, Kansas City, Mo. and Douglas L. Baker, Pittsburg, for appellee United Transp. Union.

Before ABBOTT, P. J., and REES and PARKS, JJ.

ABBOTT, Judge:

This is an appeal from an order granting summary judgment against the plaintiff, John L. Cussimanio, and in favor of the defendants, Kansas City Southern Railway Company (employer) and United Transportation Union (union), in plaintiff's suit based on his alleged wrongful discharge from employment and the union's alleged unfair representation.

The essential facts are not in dispute. The record consists solely of pleadings, affidavits and medical reports. The trial court heard no testimony.

Plaintiff was employed as a brakeman. He developed an acoustic neuroma (tumor) involving his right ear. He was granted a medical leave of absence at which time the tumor was removed and after which he had a 100 percent loss of hearing in the right ear.

Plaintiff subsequently requested that he be returned to work as a brakeman. His request was supported by a medical statement from his surgeon, Dr. Keith Whittaker, that he was able to resume his work as a brakeman. Although it is not in the record on appeal, all parties concede in their briefs that Dr. Whittaker agreed plaintiff has a 100 percent loss of hearing in the right ear. In response to plaintiff's request to return to work, the trainmaster advised him by letter that it was the opinion of Dr. Joseph Masucci, chief medical officer for the railroad, that plaintiff's hearing impairment was such that he should not be permitted to work on or around moving equipment or machinery. Dr. Masucci also found a 100 percent loss of hearing in plaintiff's right ear.

Plaintiff is a member of the defendant union. Pursuant to directions from T. H. Blocker, the union's general chairman, plaintiff wrote a letter to the trainmaster requesting an examination by a neutral physician. Blocker wrote a letter to the chief operating officer of the railroad designated to handle employee disputes, requesting either that plaintiff be returned to work immediately or that Article PF-54(c) of the collective bargaining agreement between the railroad and the union be invoked. This section provides in pertinent part:

"When a working employee is held out of service by the company and required to undergo physical examination and it is found in the opinion of the examining physician that he is unable to perform service, if the employee questions that diagnosis he will be privileged to have a physician of his own choosing to examine him. In case of disagreement between his physician and the physician representing the company, they shall select a neutral physician within a reasonable period, not exceeding 15 days from the date the employee is disqualified, and the decision of the majority of the three will be final. The three physicians will examine the employee and render a report of their findings within a reasonable time, not exceeding 15 days after their selection, setting forth the employee's physical condition and their conclusions as to whether he meets the requirements of the company's physical examination rules. The 15-day periods mentioned above may be extended through mutual agreement between the General Chairman and the Vice President-Personnel. If it is determined by the majority that the employee's condition did not warrant his being held from service, he will be returned to service and paid for all time lost." (Emphasis supplied.)

Pursuant to this request, Jerry C. Freeman, M. D., was selected as the neutral physician, and plaintiff was examined by Dr. Freeman on November 21, 1975. The audiological examination by Dr. Freeman confirmed that plaintiff had a total hearing loss in his right ear. In a report from Dr. Freeman to Dr. Masucci, Dr. Freeman stated:

"An audiogram reveals what we might expect, no functioning for the auditory portion of the right ear and an essentially normal left ear. According to AAOO standards this would produce a bineural impairment of only 17% an extremely minimal amount in this case.

"In reviewing your requirements with regard to hearing and use of hearing aids for employees in the area in which Mr. Cussimanio has functioned in the past, I am aware of your requirement with regard to the necessity for being able to hear in each ear independently without amplification.

"Mr. Cussimanio has mentioned to me that he worked in his capacity for the Kansas City Southern Railroad for nearly two years with essentially no hearing in that ear prior to the necessity for the removal of his benign acoustic tumor. Be that as it may, the stringent instructions which you mentioned, if they are to be applied as the letter of the law, would unfortunately exclude him from resuming his duties with you.

"It distresses me a great deal as he is an extremely well motivated young man who is in essentially excellent health and who I feel should most definitely be given an opportunity to prove himself as a completely qualified, capable employee without handicap. I therefore strongly recommend that he be retained by the railroad and that any arrangements necessary be made to expedite this for him."

On the basis that a majority of the three-doctor board agreed plaintiff did not meet the physical requirements of the employer, the employer advised the union that since plaintiff was totally deaf in his right ear he failed to meet the hearing standards and therefore he could not regain his position. Plaintiff requested a re-examination after he had been fitted with a hearing aid, but the employer refused on the basis that there was no change in his physical condition, and his being fitted with a mechanical appliance that would assist with his hearing did not change the physical impairment that originally disqualified him under the employer's standards.

Plaintiff ultimately filed suit against the employer and the union alleging that the employer wrongfully discharged him and that the union failed to fairly represent him. Plaintiff filed a motion for summary judgment. Both defendants filed motions to dismiss plaintiff's cause of action. The motions for dismissal were correctly considered by the trial court as motions for summary judgment in that matters outside the pleadings in the form of affidavits, admissions and exhibits were presented to and considered by the trial court. K.S.A. 60-212(b ). Summary judgment was granted for the defendants and against the plaintiff, and this appeal followed.

Plaintiff agrees that an employer has a right to establish reasonable standards of physical fitness for its employees. He argues that Article PF-54(c) of the collective bargaining agreement provides a method for determining the reasonableness of the employer's physical standards by use of a tripartite medical board presided over by a neutral doctor. The employer and union take the position that the employer has a legal right and duty to set the requirements of the physical condition of its employees for the various job classifications, and the function of the tripartite board is only to ascertain whether the workers' physical condition meets those standards.

The initial employment requirements for brakemen include that the applicant must hear ordinary conversations with each ear separately at a distance of twenty feet. They are not permitted to work with the use of a hearing aid. If ever a re-examination is required, as it was in this case, the employee must hear an ordinary conversation in one ear at not less than ten feet and in the other ear at not less than fifteen feet. In Johnson v. National Beef Packing Co., 220 Kan. 52, 54, 551 P.2d 779, 781 (1976), the Kansas Supreme Court set out the following rule:

"This court follows the general rule that in the absence of a contract, express or implied, between an employee and his employer covering the duration of...