Grubb v. Leroy L. Wade & Son, Inc., 50661

Decision Date14 December 1964
Docket NumberNo. 50661,No. 1,50661,1
Citation384 S.W.2d 528
CourtMissouri Supreme Court
PartiesR. Douglas GRUBB, Garlon Hale, George Akeman, Richard Thurston and Dairl Mears, Appellants, v. LEROY L. WADE & SON, INC., a corporation, and Transport Terminal Corporation, a corporation, Respondents

Stephen R. Pratt, North Kansas City, Clancy D. Tull, Harry D. Pener, Kansas City, for plaintiffs-appellants.

Harold A. Thomas, Jr., Nelson W. Hartman, Fordyce, Mayne, Hartman, Renard & Stribling, St. Louis, for defendants-respondents.

HOUSER, Commissioner.

Action by five members of Over-the-Road and City Transfer Drivers, Helpers, Dockmen and Warehousemen, Local Union No. 41, Kansas City, to recover damages for loss of wages, vacation pay and punitive damages, based upon allegations of conspiracy and breach of a collective bargaining agreement. Defendants are Leroy L. Wade & Son, Inc., employer of plaintiffs, and the alleged co-conspirator, Transport Terminal Corporation.

Under Supreme Court Rule 74.04(b), V.A.M.R. defendants Wade and Terminal filed separate motions for summary judgment on plaintiffs' petition, attaching supporting affidavits and exhibits. Plaintiffs made no response to the motions by affidavit or otherwise. The trial court examined the pleadings, motions, affidavits and exhibits of defendants, written briefs filed by the parties, and after hearing oral arguments found no genuine issue for trial as to any material fact necessary to entitle defendants to judgment as a matter of law and entered summary judgment for defendants and against plaintiffs.

We have jurisdiction of plaintiffs' appeal because the amount in dispute, $168,053.46, exceeds the sum of $15,000. Art. V, Sec. 3, Constitution of Missouri, 1945, V.A.M.S.; Sec. 477.040, V.A.M.S.

The facts stated in the affidavits and exhibits filed by defendants in support of their motions for summary judgment stand admitted, for the reason that plaintiffs filed no verified denial of these facts. Gruenewaelder v. Wintermann, Mo.Sup., 360 S.W.2d 678, 686.

Prior to August 10, 1962 the five plaintiffs had been employed by Wade as 'checkers' or as 'drive-out drivers' at Wade's terminal at Liberty. Wade is a contract carrier engaged in the business of delivering automobiles from the Ford Motor Company plant at Claycomo. For years the plant had been serviced by three automobile carrier companies, Wade, Dealers Transport, and Associated Transports, Inc., each of which provided substantially dentical services: delivering automobiles from the plant to dealers, after a preliminary 'check-out' service to verify the fact that all cars leaving the plant were undamaged and that they carried all of the equipment specified on the invoice; and 'drive-out' service, which involved transporting new automobiles to the carrier's own nearby terminal, from which actual delivery runs to dealers originated. Prior to 1957 each of the three carriers handled its own check-out and drive-out service, employing its own checkers and drivers at the Ford plant. In 1957, to increase efficiency, Ford Motor Company took from Dealers and Associated the functions of check-out and drive-out service and gave this over to Terminal, which was not a carrier as such but a company providing terminal services for several carriers at that plant. Wade, however, continued to perform these functions until August, 1962, through eight employees, five of whom were these plaintiffs. In August, 1962 Ford Motor Company, having determined that it was inefficient for Wade to continue to perform its own check-out and drive-out services, notified Wade and Terminal that beginning with the production of 1963 model cars all such work for all three carriers would be performed exclusively by Terminal. Thereafter only Terminal employees were in the Ford plant performing these services, instead of three separate sets of employees performing the same functions for three separate employers. Wade no longer having any such work to perform, on August 10, 1962 offered its check-out and drive-out employees the choice of continuing in its employ on an indefinite lay-off basis, not to exceed the two-year period reserved under the collective bargaining agreement, or of being put on the seniority roster of Terminal. If no choice was made they were notified that they would automatically be transferred to the Terminal seniority list. Wade's employees were not discharged, or their employment terminated. They were laid off due to lack of work. They were entitled to be recalled to active employment by Wade in the event of an increase in force at Wade's terminal. When the problem arose it was discussed by Wade with representatives of Local No. 41 and agreement was reached to follow the solution adopted in 1957 when Ford terminated these services by the other two carriers, i. e., by placing the former employees of Dealers and Associated on the payroll seniority list of Terminal, where they were merged with the employees already on the list as of the date of their original date of hire with their respective companies. The terms and conditions of employment of plaintiffs and other employees of Wade were governed by a comprehensive collective bargaining agreement between Local Union No. 41 and Wade, consisting of 37 articles. Terminal and the union had an identical contract covering its employees.

Article 7 consists of three sections.

Section 1 contains an agreement not to strike 'without first using all possible means of a settlement, as provided for in this Agreement, of any controversy which might arise.'

Section 2(a) provides that disputes shall first be taken up between the employer and the local union. Disputes not settled there shall go to the local joint committee, from whose majority vote decision settling a dispute no appeal could be taken to the Automobile Transporters Joint Conference Committee. Where there is no local joint committee, direct appeal to the joint conference committee is provided for. Decisions of the local joint committee by majority vote 'shall be final and binding on both parties.'

Section 2(b) provides that where a local joint committee is unable to agree it shall, on request, be appealed to the joint conference committee.

Section 2(e) provides that 'Any decision of the Automobile Transporters Joint Conference Committee shall be final and conclusive and binding upon the Employer and the Union, and the employees involved.'

Section 2(c) provides that if any grievance or disagreement is not satisfactorily settled under Section 2(a) and (b), both the union and the employer shall submit the grievance to a board of arbitration consisting of three members, one appointed by the union; one by the employer, and the two together appointing a third disinterested arbitrator; the findings of the arbitration board 'shall be final.'

Section 2(d) provides that all matters pertaining to the interpretation of any provision of this agreement must be submitted to the full committee of the Automobile Transporters Joint Conference Committee, which committee, after listening to testimony on both sides, shall make a decision.

Article 6 Sec. 2 provides that the employers and unions shall together create a joint conference committee which shall consist of duly elected delegates of the employers and unions. This committee was created and duly approved a procedure under which the joint conference committee was composed of a union panel of no less than 8 representatives of the local unions and an employer's panel of no less than 8 representatives. At each arbitration hearing no less than 5 representatives from each panel were to be selected to hear each case presented. If the joint conference committee reached a decision on a grievance by a majority vote 'said decision shall be final and binding upon the parties,' but if unable to reach a decision on a grievance it was to be handled under the arbitration provisions [Article 7 Sec. 2(c)].

Article 4, 'Seniority,' provides that any controversy over employees' standing on seniority lists 'shall be submitted to the joint grievance procedure (ARTICLE 7)'; that controversies over reduction in board, if not settled by the joint city committee, are to be submitted by telegram to the joint conference committee, 'who shall render a final decision.' Section 5 of Article 4 provides: 'In the event that the Employer absorbs the business of another private, contract or common carrier, or is a party to a merger of lines, the seniority of the employees absorbed or affected thereby shall be determined by mutual agreement between the Employer and the Unions involved. Any controversy with respect to such matter shall be submitted to the joint grievance procedure (ARTICLE 7).'

The provision of the collective bargaining agreement which these plaintiffs claim was violated is Article 29(b), on the subject of 'Subcontracting,' which provides: 'For the purpose of preserving work and job opportunities for the employees covered by this Agreement, the Employer agrees that no work or services presently performed or hereafter assigned to the collective bargaining unit will be subcontracted, transferred, leased, assigned or conveyed in whole or in part to any other plant, person, or non-unit employees unless otherwise provided in this Agreement. The Employer may subcontract work when all of his regular employees are working except that in no event shall road work presently performed or runs established during the life of this Agreement be farmed out. No yard work shall be farmed out, except for existing situations established by agreed-to past practices. * * * Alleged violation of this provision shall be submitted to the grievance procedure.'

On September 21, 1962 plaintiffs filed a written grievance under the foregoing grievance procedure, protesting what they considered to be a violation of Article 29 (b), in that 'Due to a change in the methods of operation by [Wade] certain work formerly performed...

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