Encina v. Tony Lama Company

• Decision Date: 10 August 1970
• Docket Number: Civ. A. No. EP-70-CA-46.
• Parties: Julian ENCINA, Plaintiff, v. TONY LAMA COMPANY, Inc., et al., Defendants.
• Court: U.S. District Court — Western District of Texas

316 F. Supp. 239

Julian ENCINA, Plaintiff, v. TONY LAMA COMPANY, Inc., et al., Defendants.

Civ. A. No. EP-70-CA-46.

United States District Court, W. D. Texas, El Paso Division.

August 10, 1970.

Fred Weldon, Jr., El Paso, Tex., for plaintiff.

Woodrow W. Bean, El Paso, Tex., for defendant, Tony Lama Co., Inc.

L. N. D. Wells, Jr., Dallas, Tex., for defendant Amalgamated Meat Cutter and Butcher Workmen of North America AFL-CIO, and Amalgamated Meat Cutter and Butcher Workmen of North America AFL-CIO, Local Union 505.

GUINN, District Judge.

On the 31st day of July, 1970, came on to be heard the Motions for Summary Judgment filed by the Plaintiff and the Defendants, and the Court having received the exhibits and stipulations of the parties, and heard the oral argument of the attorneys, and considered the briefs filed in support of said Motions, does find that the Motion for Summary Judgment filed by the Plaintiff should be denied, and the Motion for Summary Judgment filed by the Defendants should be granted, and does hereby make the following Findings of Fact and Conclusions of Law, and enters the following Opinion and Judgment thereon.

FINDINGS AND CONCLUSIONS

Nature of the Case

Plaintiff Encina a long-time employee of defendant Tony Lama Company, Inc., is a member of defendant Local 505, which is chartered by defendant International Union.

Encina sues his employer Lama under 29 U.S.C. § 185 claiming that he was discharged without just cause in violation of and denied rights under the collective bargaining agreement between Lama and defendant unions. Plaintiff also asserts that defendant unions have, since November 1, 1968, breached their alleged duty to fairly represent Plaintiff with respect to wages, hours and conditions of employment.

Plaintiff seeks $75,000.00 damages jointly from all defendants, reinstatement to his employment with Lama, with restoration of seniority; or alternatively, that his claim be arbitrated, and specifically that defendant unions be ordered to present and process Plaintiff's grievance through arbitration, and to pay costs thereof.

All parties have presented motions for judgment. Extensive pre-trial discovery has brought before the Court by deposition, affidavits, exhibits, and (by stipulation) testimony under oath by plaintiff and others in proceedings before the Texas Employment Commission relating to the reasons for termination from Lama employment of plaintiff and others. All parties have presented extensive briefs, and oral argument, on the motions for judgment. On the basis of this record the Court finds that there is no genuine issue as to any material fact and that defendants are entitled to judgment as a matter of law. The facts thus established are:

The Material Facts

Plaintiff Encina has been employed by defendant Lama for more than thirty years. At all times material to this suit he was a member of defendant Local 505, which in turn is chartered by defendant International Union.

Lama and the unions entered into a collective bargaining agreement effective October 30, 1968, until October 29, 1970, and thereafter until terminated or modified according to its terms.

The agreement, applicable to plaintiff and several hundred other employees provides that the local union is the exclusive bargaining agent and further provides:

"Article 3. NO STRIKE OR LOCKOUT. The employer will not cause, permit or engage in any lock-out of its employees during the term of this Agreement. The Union will not authorize, cause, permit or engage in any strike, slow down, or work stoppage against the Employer during the term of this Agreement."

The agreement further provides:

"The Employer shall have the right of * * * direction of the working force * * * and for reasonable cause to discipline, * * * employees * * *"

Further, the contract provides:

"The Employer reserves the right to discharge any employee for just cause."

The agreement contains an elaborate grievance procedure—one of the requirements of which is that: "Grievances or disputes regarding alleged improper disciplinary lay-off or discharge must be filed in writing within three (3) working days after receipt of such lay-off or discharge. (Art. 11, Subsection 2). Plaintiff did not file as required by the cited provision.¹ His attorney did so, on December 2, 1969, more than a month after the discharge.

The collective bargaining agreement grants to the Local Union "final authority" to decline to process any grievance. Specifically, it provides (Article 11, Sec. 2, subsection 2, ¶ 3, p. 10):

"At any step in this grievance procedure, the Local Union shall have the final authority, in respect to any aggrieved employee covered by this Agreement, to decline to process a grievance, complaint, difficulty or dispute further if in the judgment of the Local Union such grievance or dispute lacks merit or lacks justification under the terms of this Agreement, or has been adjusted or justified under the terms of this Agreement to the satisfaction of the Union."

Prior to the execution of the above agreement on November 19, 1968, there had been no collective bargaining agreement affecting this employer or these employees. Although the agreement forbade strikes, as aforesaid, within the first few months there were several strikes of short duration, which the employer condoned.

When another strike occurred in April 1969, the employer wrote Local 505 advising "This is the third and last violation of Article III that the company will tolerate. We believe that by this time all employees should understand the law and the contractual agreement covering strikes, slowdowns and work stoppages during the term of the contract. To insure the above understanding and because of the seriousness of this kind of violation, the company will attach to each paycheck, in English and Spanish a statement quoting the contract language and expressing the company's position on future incidents of this nature."

The company did attach such statement to the employees' paychecks, viz:

"ATTENTION ALL EMPLOYEES

The following language is quoted from the Company Union Contract:

ARTICLE III

NO STRIKE OR LOCK-OUT. The Employer will not cause, permit or engage in any lock-out of its employees during the term of this Agreement.

The Union will not authorize, cause, permit or engage in any strike, slow down, or work stoppage against the Employer during the term of this Agreement.

There have been three violations of this provision since the contract was signed. The company has exercised restraint believing that some employees might not understand the seriousness of these violations.

However, in the future any employee who strikes, participates in a work stoppage or slowdown in violation of Article III shall be discharged or disciplined depending upon their participation in the illegal activity.

TONY LAMA COMPANY, INC."

On October 31, 1969, plaintiff Encina along with more than a hundred other employees engaged in another work stoppage. Plaintiff says that he "ceased work operations in protest of * * * the jailing of a fellow worker and the bad treatment received from the foreman." While plaintiff denied intention to strike, he acknowledged his intention "just to make a work stoppage to make the company put that man out of jail" and to try to bring some grievances to the attention of the employer. I find that plaintiff's action in concertedly ceasing work with other employees was a "strike" or "work stoppage" within the meaning of the collective bargaining agreement. Moreover, on the argument herein plaintiff's counsel admitted that plaintiff struck.

Plaintiff and the other strikers were told to go back to work. In plaintiff's own words, supervisors Vargas and Montelongo "* * * told us to work or get out * * *" Plaintiff and more than a hundred others refused to work and left the building.

The strikers, including plaintiff, thereupon congregated outside the Lama plant at about 10:30 a. m. Employer thereupon made the following announcement, in both English and Spanish:

"ATTENTION ALL EMPLOYEES THE `WALK OUT' OF EMPLOYEES IS AN ILLEGAL STRIKE. IT IS A `WILD CAT' STRIKE.

THE COMPANY HAS DECIDED TO TAKE THE FOLLOWING ACTION: ANY EMPLOYEE NOT AT HIS JOB WORKING AT 12:30 TODAY IS TERMINATED. THOSE EMPLOYEES WHO HAVE WALKED OUT AND RETURN TO WORK BY 12:30 TODAY SHALL RECEIVE DISCIPLINARY LAY OFFS OF BETWEEN ONE TO FIVE DAYS.

WE ARE ADVISING YOU OF YOUR RIGHTS, AND WHAT ACTION THE COMPANY WILL TAKE SO THAT YOU MAY MAKE YOUR OWN DECISION AS TO CONTINUE ON THE JOB OR TO STRIKE.

TONY LAMA COMPANY, INC."

Plaintiff, and the other strikers, ignored this notice.

Thereupon, at about 11:00 to 11:30 a. m. one Monzano, the chief union steward who stayed in and worked, came out of the plant to address the strikers. As plaintiff admitted, "He (Monzano) told us that if we didn't come to work by 12:30 we were going to be fired * * *"

Again, shortly after 12:30 p. m. Monzano returned to the strikers and advised them that they were fired.

Plaintiff's affidavits and testimony in the T.E.C. hearings establish that plaintiff knew that the collective bargaining agreement was in effect, that it forbade strikes or work stoppages, and that the procedures it provided should be followed.

On November 6, 1969, plainiff abandoned the strike and attempted to return to work. He was told by a management representative that he would not be reinstated, but that his application as a "new" employee would be considered.

Thereafter on December 2, 1969, plaintiff's attorney filed a grievance in plaintiff's behalf, and sought to arbitrate it. The Federal Mediation Service would not appoint an arbitrator in the absence of request for arbitration by the local union.

Thereafter the local union sought to discuss a grievance on behalf of plaintiff and others. Defendant Lama refused on the grounds inter alia that: "* * * all issues relating to the termination of employees for violation of the no-strike clause of our...