Sarro v. Retail Store Employees Union

• Decision Date: 04 April 1984
• Docket Number: No. A010637,A010637
• Citation: 155 Cal.App.3d 206,202 Cal.Rptr. 102
• Court: California Court of Appeals Court of Appeals
• Parties: Juliette P. SARRO, Plaintiff and Appellant, v. RETAIL STORE EMPLOYEES UNION, LOCAL NO. 410, et al., Defendants and Respondents. Civ. 53566.

Page 102

202 Cal.Rptr. 102

155 Cal.App.3d 206

Juliette P. SARRO, Plaintiff and Appellant, v. RETAIL STORE EMPLOYEES UNION, LOCAL NO. 410, et al., Defendants and Respondents.

No. A010637.

Civ. 53566.

Court of Appeal, First District, Division 2, California.

April 4, 1984.

James Paul Green, San Francisco, for plaintiff and appellant.

Davis, Cowell & Bowe, J. Thomas Bowen and Richard G. McCracken, San Francisco, for defendants and respondents.

MILLER, Associate Justice.

A union member appeals from the dismissal of her complaint alleging that her union failed to adequately represent her in the grievance procedure after her discharge from employment. We conclude that the complaint does not state a cause of action under federal law for the breach of the union's duty to give union members "fair representation" and that the causes of action under state tort and contract law cannot be maintained in light of federal preemption of this area. Accordingly, we affirm the superior court's dismissal of the complaint.

After 10 years of employment, Juliette Sarro (hereafter "appellant") was terminated from her position as head cashier at Grodins' department store on February 4, 1975. ¹ At the time of her discharge, appellant was a member in good standing of Retail Store Employees Union Local 410 (hereafter "union"). The union was notified of appellant's termination, it investigated appellant's grievance, and some time later a Board of Adjustment hearing was convened. This hearing, held before two representatives of the employer and two representatives of the union, was the first step in the grievance and arbitration procedure as outlined in the collective bargaining agreement between Grodins and the union. Appellant's interests were represented by an attorney she had personally retained, the president of the union, and the union's attorney. The parties were unable to effectuate a resolution of appellant's grievance at this hearing.

Shortly thereafter a second Board of Adjustment hearing was held. At this hearing, Grodins made a settlement offer to appellant which included (1) full reinstatement to her prior position with no seniority or pay loss; (2) transfer to another store; (3) half-day work schedule for one month to evaluate appellant's performance and serve as an adjustment period; (4) retroactive contributions to appellant's pension fund to keep her account current; and (5) payment of $750, the difference between appellant's unemployment benefits and her salary, to compensate appellant for lost wages during the period of her unemployment. Appellant's consideration for Grodins' offer was to be not only acceptance of these terms as full settlement of the labor contract grievances, but, in addition, a waiver of all her rights against Grodins, whether based upon contract, tort, or otherwise.

Upon her attorney's advice, appellant refused to accept this offer. The president of the union attempted to persuade her otherwise. Appellant was subsequently notified that the union members of the Adjustment Board had voted to accept Grodins' offer. Appellant sought to bring the matter to arbitration. When it became apparent that the union had taken no action in this regard, she informed the union that she was prepared to return to work under the terms of Grodins' offer. On approximately November 8, 1975, appellant returned to work. Because of physical injuries sustained in an automobile accident in June, appellant had difficulties performing her duties and she had to return home on sick leave after only 11 days.

Appellant informed the National Labor Relations Board of her belief that she was discharged by Grodins because of her activities on behalf of the union and that the union had failed to fairly represent her in processing her grievance. In response to appellant's complaint against the union's handling of her grievance, the National Labor Relations Board informed appellant that the company's "willingness to restore her to eventual full-time employment with no loss of seniority or other fringe benefits, and a substantial lump-sum payment, could not be found in derogation of the Union's statutory obligations." The complaint against Grodins was similarly rejected. The present litigation followed.

In February of 1976 appellant filed an action for damages in the Superior Court for the County of San Francisco against the union, certain officials of the union, Grodins, and appellant's immediate supervisor at Grodins at the time of her termination. In August of 1977, at appellant's request, the action was dismissed as to Grodins and its employee. The union interposed a demurrer to what was left of appellant's action on July 27, 1979. On October 1, 1979, the demurrer was granted with leave to amend as to six causes of action alleged by appellant against the union and its officials. Appellant's claims for intentional and negligent interference with prospective economic advantage survived appellant's challenge.

On November 14, 1979, an amended complaint (hereafter "complaint") was filed by appellant against the union and its officials. Because its sufficiency to state a cause of action is the subject of the present appeal, we will treat it in some detail. In count one appellant charges the union and its officials with breach of the collective bargaining agreement. Specifically, the union "in substantial violation of her rights under the ... [a]greement, arbitrarily, capriciously and/or in bad faith failed to process Plaintiff's said grievance ...." As a result of this breach of the collective bargaining agreement, appellant was unable to have her grievance presented to an impartial arbitrator.

In count two appellant charges the union and its officials with breaching the implied covenants of good faith and fair dealing in the collective bargaining agreement "by failing to act in good faith in processing plaintiff's said grievance." This breach allegedly resulted in appellant being "deprived of her right to obtain a full and fair consideration and determination of her said grievance."

In count three appellant charges the union and its officials with fraud in falsely representing to appellant that they "would actively pursue and were actively pursuing the grievance ... and that such pursuit included forcing said grievance to arbitration ...." In count four appellant basically realleges the facts as outlined in count three but charges the union and its officials with negligent and reckless misrepresentation in promising to pursue her grievance.

In count five appellant charges the union and its officials with breaching their duty of fair representation by "arbitrary, capricious, in bad faith, deceitful, dishonest and discriminatory" acts in connection with their processing of appellant's grievance.

In count six appellant alleges that the union and its officials intentionally performed and/or failed to perform acts "for the purpose and design of disrupting the economic and advantageous business relations by and between plaintiff and her employer ... for the purpose of depriving her of said employment." Specifically, the union failed to undertake and pursue her grievance. In count seven appellant basically realleges the facts as outlined in count six, but poses a claim of negligent interference by the union and its officials with her business relationship with her employer.

The union set forth a demurrer to the first five counts of appellant's complaint on the grounds that the facts alleged did not show a breach of the federal duty of fair representation and that the state law theories were preempted by federal law. On March 17, 1980, the superior court sustained the demurrer without leave to amend to appellant's allegations of fraud (count three) and negligent misrepresentation (count four). The union's demurrer to appellant's allegations of breach of contract (count one), breach of covenants of good faith and fair dealing (count two), and breach of the duty of fair representation (count five) was also sustained with the understanding that appellant would have 20 days in which to amend her complaint. As appellant has elected to pursue her appellate remedies rather than amend her complaint, it is presumed that she has stated as strong a case as possible against the union. (Logan v. Southern Cal. Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 127, 185 Cal.Rptr. 878; Gonzales v. State of California (1977) 68 Cal.App.3d 621, 635, 137 Cal.Rptr. 681; Vaughn v. Certified Life Ins. Co. (1965) 238 Cal.App.2d 177, 180, 47 Cal.Rptr. 619.)

Counts six and seven, charging the union with intentional and negligent interference with prospective economic advantages, were not dealt with on demurrer. Finding that "the action has no merit and that plaintiff has presented no triable issue of fact," the superior court on December 31, 1980 granted the union's motion for summary judgment on these two remaining counts of appellant's complaint. We now consider appellant's contention that her complaint against the union and its officials was improperly dismissed by the superior court.

In San Diego Unions v. Garmon (1959) 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, the Supreme Court held that the National Labor Relations Act preempts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the Act. However, the broad preemption principle of Garmon has been modified in subsequent cases and the Supreme Court has sanctioned the exercise of judicial power over specific conduct arguably protected or prohibited by the National Labor Relations Act. One of the most prominent exceptions to the Garmon rule recognized by the Supreme Court is illustrated by count five of appellant's complaint--a union member's charge that the union breached its duty of "fair representation" in handling a grievance. In Vaca v. Sipes (1967) 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842, the court refused to apply the preemption doctrine to...