Kostelac v. Triangle Transfer Co., WD
| Decision Date | 27 March 1984 |
| Docket Number | No. WD,WD |
| Citation | 668 S.W.2d 621 |
| Parties | 115 L.R.R.M. (BNA) 3707, 101 Lab.Cas. P 11,017 Albert A. KOSTELAC, Appellant, v. TRIANGLE TRANSFER COMPANY, Respondent. 34845. |
| Court | Missouri Court of Appeals |
Michael G. Newbold, Yonke, Shackelford & Arnold, P.C., Kansas City, for appellant.
Donald J. Quinn, Donald J. Quinn, II, Kansas City, for respondent.
Before TURNAGE, C.J., and MANFORD and LOWENSTEIN, JJ.
Albert A. Kostelac filed suit against Triangle Transfer Company for vacation pay. On Triangle's motion, the court entered summary judgment in the company's favor. Kostelac contends that summary judgment should not have been granted because questions of fact remain to be resolved. Reversed and remanded.
Kostelac alleged in his petition that he had been employed by Triangle and had earned vacation pay pursuant to the provisions of the Central States Area Local Cartage Agreement. He alleged that he had been discharged from his employment and was entitled, pursuant to the agreement, to a pro rata allowance for vacation pay.
Triangle, by its answer, denied that Kostelac had been fired, and alleged that Kostelac was still an employee of Triangle although Triangle was unable to allow him to work because of a dispute between Triangle and a union. The company further claimed that Kostelac's cause of action was barred even if he had been fired since he failed to follow the grievance procedure provided in the agreement under which he claimed vacation pay.
The deposition of Kostelac was taken but has not been filed with this court. Based on the briefs in this court, it appears the parties agree that Kostelac had been employed by Triangle for 19 years. In August of 1979, he reported for work at the Armco Steel plant where he was under direction to drive a truck. As he was leaving the plant he discovered that a picket line had been established by a union other than the one to which he belonged. Kostelac stopped his truck before crossing the picket line and called Fred Thomson, president of Triangle. Kostelac told Thomson about the picket line and stated that he did not cross it. Kostelac stated that Thomson told him that, if he did not drive the truck across the picket line, he was "on call" until further notice. Thomson told Kostelac that he could work if he wanted to and that Thomson wanted him to work. However, Kostelac refused to cross the picket line and has not worked for Triangle since that date.
Kostelac approached Thomson to request vacation pay but Thomson denied it was due since Kostelac had not worked 60% of the working days for the 1979 calendar year, as required by the labor agreement. Kostelac, thereafter, requested that his vacation pay be pro rated in accordance with a provision in the agreement which allows a pro rata vacation amount for a discharged employee.
Triangle filed a motion for summary judgment and attached an affidavit from Thomson. In his affidavit, Thomson stated that Kostelac had been a local truck driver for Triangle since January of 1960 and, in August of 1979, refused to cross a picket line at Armco Steel. He stated Kostelac had refused to return to work at Triangle because the strike giving rise to the picket line had not been settled. Thomson stated that Kostelac's driving job was available and he could return to work at any time. Thomson further stated that Kostelac had not been fired, discharged, or laid off, nor had Kostelac quit his job.
In addition to Thomson's affidavit, portions of the labor agreement were attached to Triangle's motion for summary judgment. One contract provision states that any claim for additional compensation or benefits brought by an employee covered by the agreement must be presented in writing within 30 days from the end of the month in which the employee obtains knowledge of said claim. The provisions relating to vacation pay provide that an employee who has quit or been discharged before he has worked 60% of the working days in a calendar year shall be entitled to vacation pay earned on a pro rata basis provided the employee has worked one full year.
Kostelac also filed a motion for summary judgment and attached his own affidavit. In the affidavit Kostelac recited his refusal to cross the picket line and Thomson's statement that if he did not cross the picket line he...
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