Dobson v. Grand Intern. Broth. of Locomotive Engineers

Decision Date14 December 1966
Docket NumberNo. 8107,8107
Citation101 Ariz. 501,421 P.2d 520
PartiesTruman G. DOBSON, Appellant, v. The GRAND INTERNATIONAL BROTHERHOOD OF LOCOMOTIVE ENGINEERS, George C. Boyer, J. P. Colyar, and Southern Pacific Company, Appellees.
CourtArizona Supreme Court

Herbert B. Finn and Stephen T. Meadow, Phoenix, for appellant.

Jennings, Strouss, Salmon & Trask, and Charles R. Esser, Phoenix, for appellees Grand International Brotherhood of Locomotive Engineers, George C. Boyer, and J. P. Colyar.

Evans, Kitchel & Jenckes, Phoenix, W. A. Gregory and Frederick L. Lenson, San Francisco, Cal., for appellee, Southern Pac. Co.

UDALL, Justice.

Truman G. Dobson, plaintiff below, brings this appeal from the trial court's granting of motions for summary judgment in favor of the defendants Grand International Brotherhood of Locomotive Engineers and the Southern Pacific Company.

On February 24, 1960 the Southern Pacific Company, acting through D. R. Kirk, Superintendent of the Tucson-Rio Grande Division, informed the plaintiff Dobson of his dismissal from his job as locomotive engineer. The dismissal came about as the final result of a formal hearing, held by the Company on February 23, 1960, at which time it was determined that the plaintiff had violated certain company rules by permitting his wife to ride in the locomotive from Tolleson to Phoenix, Arizona on February 13, 1960.

At the formal hearing the plaintiff, who had a record of prior violations and dismissals by the Company, did not deny the infraction, rather he tried to excuse it by showing that an emergency situation existed.

By letter dated March 24, 1960 plaintiff requested or authorized George Boyer, local chairman of the Brotherhood of Locomotive Engineers, to represent the plaintiff in an attempt to obtain relief from the Company's dismissal order.

In presenting the plaintiff's case for reinstatement to the Company, Boyer might have proceeded by either one of two methods: (1) file an appeal with the Company under the provisions of Article 25 of the collective bargaining agreement then in effect between the Company and the Brotherhood, or (2) present the case on a 'leniency basis,' which simply amounted to an admission of the guilt of plaintiff and a request for leniency. For reasons which will be indicated Boyer decided to present plaintiff's case on a leniency basis, and after extensive correspondence and communication between Boyer and D. R. Kirk, the Company Superintendent, the Company finally decided, in November of 1960, not to reinstate the plaintiff. In the meantime plaintiff's right of appeal under Article 25 of the collective bargaining agreement had expired, since the right of appeal was lost it not exercised within 90 days from the original date of dismissal, which occurred on February 24, 1960.

During the correspondence and communication between Boyer and Kirk, the plaintiff was kept fully informed of the effort being made in his behalf, and after he learned of the final decision of the Company in November of 1960, plaintiff wrote to Boyer on January 10, 1961, requesting that Boyer appeal the final denial of plaintiff's reinstatement request. A copy of the letter was mailed to the Company, purportedly to serve an appeal in the event that Boyer failed to act. Plaintiff received no action on his request from either the Company or Boyer and on September 25, 1962 commenced the present suit.

In his complaint plaintiff alleged that the defendant Brotherhood was liable to plaintiff for an indefinite amount of lost wages because the Brotherhood breached its duty to plaintiff by originally presenting his claim for reinstatement on a 'leniency basis,' rather than by appeal, with the result that the right of appeal was lost. Plaintiff further alleged, as to defendant Southern Pacific Company, that its failure to act upon plaintiff's appeal request of January 10, 1961 constituted a breach of contractual agreements between the Company and the Brotherhood.

After giving due consideration to the pleadings and affidavits the trial court granted summary judgment to both defendants.

On this appeal plaintiff claims that the trial court erred in granting summary judgment because there was a genuine issue of material fact raised by plaintiff's affidavit, submitted in opposition to the motions for summary judgment.

In the interests of clarity, we will deal with each defendant separately, and will first determine whether there was a genuine issue of material fact as to the Brotherhood.

In support of its motion for summary judgment the Union offered evidence to indicate that the Union acted vigorously and with the utmost good faith in handling plaintiff's reinstatement request, and that consequently, it did not breach any duty owed to plaintiff. In this respect, the affidavit of George Boyer is most important.

In his affidavit Mr. Boyer stated that in February of 1960 he asked plaintiff to write a letter, telling Boyer how to proceed in presenting plaintiff's reinstatement request. On March 24, 1960, plaintiff wrote the following to Boyer:

'Confirming our telephone conversation regarding my recent dismissal by the Southern Pacific Company, I will appreciate it very much if you will handle this grievance for me.

'If you feel I am entitled to compensation for lost time, naturally I will appreciate you endeavoring to get me reinstated with compensation. However I will leave it up to your good judgment as to how you handle it.'

In his affidavit Boyer further stated that after receiving plaintiff's letter, he decided that '* * * this matter could not be successfully handled as a grievance for reinstatement with pay since this would require conclusive proof that plaintiff did not violate the company rules for which he was dismissed.' It has been noted previously that at the formal hearing even plaintiff did not deny the violation, rather, he had tried to justify it by showing an emergency. After making the decision indicated above, Boyer wrote to D. R. Kirk, the Company superintendent, requesting that plaintiff be reinstated on a leniency basis, with seniority rights unimpaired. A copy of the letter was mailed to plaintiff on or about March 28, 1960.

According to Boyer's affidavit, between April and November of 1960 Boyer and Kirk exchanged six additional letters, and at Boyer's request, a conference was held between the two men in May of 1960. The topic of all these communications was, of course, plaintiff's reinstatement request. The copies of all letters referred to above are attached to Boyer's affidavit, and their contents indicate that the Union was making a strong and continuing effort to get plaintiff reinstated.

Although in the trial court there was a difference of opinion between the parties as to the extent of authority conferred upon Boyer by plaintiff's original letter, in which Boyer's assistance was requested, plaintiff is not claiming on this appeal that there was any triable issue of fact raised in connection with his letter. The proper interpretation of the letter appears to be immaterial, because the record conclusively indicates that the Union's power to act for plaintiff was controlled not by the letter but by the following provisions of the by-laws of the Brotherhood:

'Each and every member of the Brotherhood of Locomotive Engineers grants to the duly authorized representative * * * of the Brotherhood full and complete authority to present and handle each and every member's claims, complaints, and grievances against the railroad on which he is employed. Said power and authority shall include the handling of such claims, complaints and grievances before any and all officials of the railroad, and shall include the right to collect, settle, compromise, amend, withdraw, dismiss, or in any manner dispose of, such claims, complaints and/or grievances, and shall also include the power to submit such claims, complaints and grievances, for determination to any person, court or board or other tribunal provided by law or otherwise as may be deemed necessary or advisable by such authorized representatives * * *.'

On this appeal plaintiff does claim that in spite of the broad discretion which the Brotherhood possessed, its action in prosecuting plaintiff's case on a leniency basis was arbitrary, discriminatory and taken in bad faith, and that a genuine issue was raised in this respect by the following statements, made in the affidavit which plaintiff filed in opposition to the Brotherhood's motion for summary judgment:

'Truman G. Dobson, being first duly sworn, deposes and says:

'(1) Tha...

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    ...of the motion has the burden to produce sufficient evidence that there is indeed an issue. Dobson v. Grand Internat'l Brotherhood of Locomotive Engineers, 101 Ariz. 501, 421 P.2d 520 (1966). Where the facts set forth in support of the motion are not controverted by the opposing party, they ......
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