Jacobs v. Retail Clerks Union, Local 1

• Decision Date: 16 July 1975
• Citation: 49 Cal.App.3d 959,123 Cal.Rptr. 309
• Parties: , 77 Lab.Cas. P 53,762 David J. JACOBS, Plaintiff and Respondent, v. RETAIL CLERKS UNION, LOCAL NO. 1222, etc., Defendant and Appellant. Civ. 14081.
• Court: California Court of Appeals Court of Appeals

Page 309

123 Cal.Rptr. 309

49 Cal.App.3d 959, 77 Lab.Cas. P 53,762

David J. JACOBS, Plaintiff and Respondent, v. RETAIL CLERKS UNION, LOCAL NO. 1222, etc., Defendant and Appellant.

Civ. 14081.

Court of Appeal, Fourth District, Division 1, California.

July 16, 1975.

John W. Porter, San Diego, for defendant and appellant

Domnitz, Prochazka & Mazirow by H. Ronald Domnitz, San Diego, for plaintiff and respondent.

OPINION

AULT, Associate Justice.

Plaintiff David J. Jacobs filed this action against defendant Union, his former employer, to recover unpaid wages and punitive damages under Labor Code section 203. Partial summary judgment granted Jacobs on July 25, 1973 ordered that he recover $8,297.28 from the Union in severance pay. On September 25, 1973 the court dismissed the punitive damage issue from the case with prejudice on Jacobs' motion and then entered complete and final summary judgment in his favor. It later denied the Union's motion for new trial. The Union appeals from the entire judgment, including the partial summary judgment merged therein.

Although Jacobs was in fact a Member of the Union at all times material to this case (stipulation at motion for new trial), he filed his 'Complaint for Wages' alleging simply that he had been employed by the Union as an organizer, a salaried employee, continuously for 20 years, during which time he had not received compensation for unused sick leave or for overtime work. His complaint set forth the following resolution adopted by Union's membership in 1970:

"WHEREAS, employees of the Local Union staff who are salaried employees do not receive compensation for unused sick leave; and,

"WHEREAS, these staff employees do not receive overtime pay for the many hours worked in excess of eight (8) hours per day and forth (40) hours per week;

"NOW, THEREFORE, BE IT RESOLVED THAT:

"Upon the severence (sic) of any salaried staff Local Union employee from the Local Union, said staff employee or his heir shall receive as severance pay, a sum equivalent to one week's pay for each full year's service."

Jacobs' complaint further alleged he severed his employment with the Union by retiring on January 19, 1973, at which time his weekly rate of pay was $469. Under the terms of the resolution, Jacobs claims severance pay in the amount of $9,380. Because the Union had refused his demand for severance pay for more than 30 days, Jacobs also claimed punitive damages pursuant to Labor Code section 203 in the amount of $2,016.70.

The Union's answer disputed the dates Jacobs' employment began and ended and the amount of his salary, then set up a single affirmative defense alleging the Union's membership had effectively revoked and rescinded the resolution providing for severance pay to salaried staff employees before Jacobs had severed his employment by retiring.

Jacobs moved for summary judgment, supporting his motion with his own declaration, points and authorities and attached exhibits. The Union filed one declaration in opposition with attached exhibits.

From these declarations and documents the following undisputed facts appear. On January 1, 1973 Marvin Brown and Herbert Langfeldt had both retired from employment with the Union and had both received severance pay based upon service of 25 years and 23 years respectively. Brown, who had been the Union's Secretary-Treasurer and Chief Executive Officer, received net severance pay in the amount of $13,772.62; Langfeldt, who had been Brown's administrative assistant, received net severance pay in the amount of $10,141.68.

On January 10, 1973 Jacobs sent a letter to the Retail Clerk's International Association acknowledging his intention to retire as the local Union's organizer and business representative, effective February 1, 1973. The following day he sent a similar letter to the local Union's executive board.

On January 16 at two regular meetings of the defendant local, Jacobs' retirement letter was read, after which standing votes were taken proposing discontinuance of severance pay benefits for all past, present and future staff members. On January 17 Jacobs, by his attorney, submitted a new letter informing the Union he was changing the effective date of his retirement from February 1 to January 19. On January 22 at a general meeting the local membership took a final vote and Approved revocation of severance pay as proposed on January 16.

In moving for summary judgment, Jacobs claimed the issue was whether defendant could revoke the resolution retroactively, thereby depriving him of accrued benefits. In opposition, the Union disputed only the time Jacobs had commenced his employment and argued Jacobs had not shown that the 1970 severance pay resolution applied to other than elected officials.

On July 25, 1973 the court granted Jacobs partial summary judgment for $8,297.28, the amount having been reached by stipulation. On September 25, on Jacobs' motion, the court dismissed the one remaining issue (for penalty under Lab.Code § 203) and granted Jacobs complete and final summary judgment.

After entry of the judgment, the Union, by new counsel, made a timely motion for new trial, claiming for the first time (1) that Jacobs, as a member of the Union, was required to exhaust his remedies under the Union's constitution as a jurisdictional prerequisite and (2) that the severance pay resolution was not intended to apply to voluntary retirement. To support the motion, the new Union counsel filed his own declarations and more points and authorities. Vigorously opposed by plaintiff, the motion was denied by the court.

CONTENTIONS

On appeal defendant makes the same contentions he raised for the first time on his motion for new trial. He maintains the summary judgment must be reversed because:

1. Plaintiff failed to establish by evidence that the court had jurisdiction of the subject matter by showing he had exhausted his internal remedies with the Union before filing suit; and

2. There were triable issues relating to the interpretation of the severance pay resolution and its application to plaintiff.

DISCUSSION

I. FAILURE TO EXHAUST INTERNAL REMEDIES

Pointing out that Jacobs made no showing in obtaining summary judgment that he had exhausted the internal remedies for adjusting controversy provided in the Union's constitution, ¹ the Union contends the trial court was without jurisdiction to render judgment. It relies on cases which hold such failure deprives a court of subject matter jurisdiction (Holderby v. Internat. Union etc. Engrs., 45 Cal.2d 843, 846, 291 P.2d 463; American Society of Composers, Authors & Publishers (A.S.C.A.P.) v. Superior Court, 207 Cal.App.2d 676, 684, 24 Cal.Rptr. 772), and reminds us that lack of jurisdiction is not subject to waiver and may be raised at any stage of the proceedings (Sampsell v. Superior Court, 32 Cal.2d 763, 773, 197 P.2d 739; People v. Coit Ranch, Inc., 204 Cal.App.2d 52, 57, 21 Cal.Rptr. 875).

The contention misconstrues the nature and basis of Jacob's claim. His suit is premised upon employment by the Union, not upon membership in it. His claim for unpaid wages as an employee is not an internal controversy or grievance arising out of membership in the Union which the constitutional provisions relied upon seek to regulate. His right to judicial determination of his wage claim is no more limited by the provisions in the Union's constitution regulating its internal affairs than it would have been had he been injured and filed a claim for workers' compensation benefits.

The cases the Union relies upon are not in point. In both Holderby and A.S.C.A.P., supra, the plaintiff was seeking to enforce a right based upon membership. A careful reading of the rule, as stated in Holderby, discloses the distinction required here.

'It is the general and well established jurisdictional rule that a plaintiff who seeks judicial relief against an organization of which he is a member must first invoke and exhaust the remedies provided by that organization Applicable to his grievance.' (Emphasis added.) (Holderby v. Internat. Union etc. Engrs., 45 Cal.2d 843, 846, 291 P.2d 463, 466.)

Since Jacobs' dispute arises out of his employment by the Union and not his membership, or any rights connected with it, the constitutional provisions requiring exhaustion of internal remedies before resorting to the courts were inapplicable and presented no jurisdictional bar to...