Jacobs v. Retail Clerks Union, Local 1

CourtCalifornia Court of Appeals
Citation49 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.
Decision Date16 July 1975

Page 309

123 Cal.Rptr. 309
49 Cal.App.3d 959, 77 Lab.Cas. P 53,762
David J. JACOBS, Plaintiff and Respondent,
RETAIL CLERKS UNION, LOCAL NO. 1222, etc., Defendant and Appellant.
Civ. 14081.
Court of Appeal, Fourth District, Division 1, California.
July 16, 1975.

[49 Cal.App.3d 960]

Page 310

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

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


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.

[49 Cal.App.3d 961] 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

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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;


"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 [49 Cal.App.3d 962] 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

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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 [49 Cal.App.3d 963]...

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