Sipes v. Vaca

• Decision Date: 13 December 1965
• Docket Number: No. 51554,51554
• Parties: Niles SIPES, Administrator of Estate of Benjamin Owens, Jr., Deceased, Appellant, v. Manuel VACA et al., Respondents.
• Court: Missouri Supreme Court

Page 658

397 S.W.2d 658

Niles SIPES, Administrator of Estate of Benjamin Owens, Jr., Deceased, Appellant, v. Manuel VACA et al., Respondents.

No. 51554.

Supreme Court of Missouri, En Banc.

Dec. 13, 1965.

Rehearing Denied Jan. 10, 1966.

Allan R. Browne, Ennis, Browne & Martin, Kansas City, for appellant.

Henry A. Panethiere, Russell D. Jacobson, Kansas City, for respondents-defendants.

HOLMAN, Judge.

This action was instituted by Benjamin Owens, Jr., a discharged employee of Swift & Company and a member of the union, as a class action against the membership of the national and local union of the National Brotherhood of Packing House Workers. Certain officers of said unions were individually named as defendants representative of the class. Owens sought to recover actual and punitive damages resulting from his alleged wrongful discharge and the failure of the union to process his protest through all of the administrative appellate procedures provided for in the Master Agreement. The trial resulted in a verdict for plaintiff in the amount of $7,000 actual and $3,300 punitive damages. Upon motion of defendants the trial court set aside the judgment and entered judgment for defendants for the reason that jurisdiction of the subject matter had been pre-empted by the federal government. Plaintiff appealed to the Kansas City Court of Appeals. He died while the appeal was pending and his administrator was substituted as appellant.

The Kansas City Court of Appeals adopted an opinion affirming the judgment but one of the judges dissented and the court of its own motion transferred the case here. In that situation we will decide the case 'the same as on original appeal.' Article V, Sec. 10, Constitution of Missouri 1945, V.A.M.S.

We will continue, for convenience, to hereinafter refer to Benjamin Owens, Jr., as plaintiff. Plaintiff testified that in January 1960, when he was finally discharged by Swift & Company, he was forty-seven years old and had worked sixteen years for Swift; that part of his work was trimming loins, but he also handled heavy halves and quarters of beef; that he had a congenital heart murmur, was troubled with high blood pressure, and had become overweight; that all of his family had had these complaints and had worked hard and lived to a ripe old age; that in May 1959, he had been working long hours, felt bad, and decided to take sick leave for a time and rest up; that at that time he weighed 230 pounds and upon the advice of his physician began to lose weight; that in August his physician, Dr. Alexander, gave him a statement to the effect that he could go back to work and he attempted to do so. However, Dr. Saper, the company's physician, refused to authorize his return to work because of his blood pressure and cardiac condition. In January 1960, plaintiff was examined by Dr. Steinzeig who gave him a statement that he was able to go back to work. He presented this to the company nurse and she authorized his return to work and he worked three days. On the third day, the superintendent apparently learned that plaintiff was back at work and immediately discharged him on the ground that he was not able to work. Plaintiff testified that at that time he felt fine, had reduced his weight to 180 pounds, and was doing the work assigned to him. Plaintiff further testified that during the period from May 1959 to trial time (June, 1964) he had worked on various temporary jobs but could not get regular employment because he did not dare give Swift, his previous employer, as a reference; that he did hard physical labor for Spencer Chemical Company, Shostak Iron and Metal Company, Guy Campbell, a contractor, Jewish Community Center, and also did such work as cutting grass, trimming trees and things of that nature; that he was able to earn about $1,000 a year at that type of seasonal employment.

After being discharged, plaintiff protested his being denied employment, asserted he was physically able to work, and sought the help of the union in contesting the issue and presenting his grievance. Section XIII of the Master Agreement between Swift & Company and the National Brotherhood of Packing House Workers provided for five administrative appellate steps for handling grievance procedures. The five administrative steps may be briefly described as follows: First step: Aggrieved employee may present his grievance 'with or without the union representative' to the foreman of the department. Second step: May present the grievance to the division superintendent. Third step: It may be presented to a grievance committee composed of three union and three company representatives. Fourth step: Reference may be made to the general superintendent of the company with a representative of the national union present. Fifth step: The grievance may be referred by the National Union to one Gabriel N. Alexander, who was designated arbitrator under the Agreement. It is conceded that the union processed plaintiff's grievance, without success, throughout the first four steps. Plaintiff cooperated by furnishing the union the statements of a number of physicians indicating that he was able to resume work. Dr. H. H. Hesser, on March 24, 1960, certified that he had taken plaintiff's blood pressure and that the reading was 160/93. Dr. Bruce P. McDonald on May 18, 1960, signed the following certificate: 'This is to verify Mr. Owens was examined and treated by me this date and that he is released to resume his regular work as of May 23, 1960.' On July 6, 1960, Dr. John M. Gill signed a statement to the effect that he had taken plaintiff's blood pressure that day and the reading was 160/100. On July 8, 1960, Dr. C. W. Alexander signed the following statement: 'This is to certify that Benjamin Owens has been examined by me. His blood pressure is 160/100. It is my opinion he is physically able to perform regular work.' The company in denying plaintiff's reinstatement did not question the qualifications or integrity of any of plaintiff's physicians but contended that it should have a report indicating a more detailed examination. The company also claimed to have a report from Dr. Saper and Dr. Morris which indicated that plaintiff was not physicially able to resume his employment. After the close of the hearing on the fourth step, the union and the company agreed that the grievance be held open at that stage pending further developments and the possible obtention of additional evidence. The union representatives suggested that he have a complete examination by a doctor of the choice and the union would pay for the examination. Plaintiff went to Dr. Hesser who sent him to Dr. H. W. Day and, after examining plaintiff, Dr. Day sent a report to the union indicating that plaintiff's blood pressure was 260/120 and that there was some kidney damage and slight heart damage. He expressed the opinion that plaintiff was not able to work.

Plaintiff testified that he asked Manuel Vaca, president of the local, to carry his grievance to the fifth step but that Vaca stated the union did not have the money to use for that purpose and that he would take it to the fifth step if plaintiff would give him $300, which, plaintiff stated, he refused to do. There is evidence that the executive committee of the local union thereafter decided not to take plaintiff's grievance to the fifth step because there was not sufficient favorable medical evidence. At about that time plaintiff employed an attorney who wrote several letters to Ernest Kobett, vice-president of the National Brotherhood, making inquiry as to what future action was contemplated by the union concerning plaintiff's grievance and Kobett did not answer those letters. This suit was filed by plaintiff against representatives of the union on February 13, 1962.

Defendants' evidence consisted of the testimony of four union officers and representatives. They testified as to the handling of plaintiff's grievance through the first four steps, without success, and as to their reason for refusing to take the fifth step. Manuel Vaca denied that he made any request of plaintiff for $300, or any other amount, and said that it would have been outrageous for an officer of the union to make such a request. Mr. Kobett testified that he attended the fourth step meeting and that, on May 8, 1964, he attended another meeting at which plaintiff's case was called up for review and since there was no new evidence to present he withdrew the grievance. He also stated that the president and general counsel of the National Union had advised him to withdraw the grievance. He further testified that out of 967 grievances filed during the two-year period preceding August 1963, only one had gone to the fifth step. He admitted that he did not obtain plaintiff's consent to withdraw the grievance, nor did he notify plaintiff that such had been done. In regard to the practice of handling grievances for members, he stated that: '* * * the employee who is a member of the union submits his case to be handled by the union officers. When he gives them that case it is theirs to dispose of as long as they go through the steps up to a point where we either feel we have a good case or we don't have a case. Then the union makes the decision * * *.'

Plaintiff at trial time testified that he was feeling good and had been working whenever he could get work; that he had worked for Spencer Chemical Company until two weeks before trial, handling bags of fertilizer weighing 80 pounds for as much as twelve hours a day; that he had been laid off because of lack of work.

As we have indicated, the trial court sustained the defendants' motion for judgment for the reason that 'under the pleadings, the law and the evidence, the conduct of the defendants herein was arguably conduct, which is protected by the Labor Management Relations or National Labor Relations Act, 29 U.S.C., Section 151 et seq., so that the jurisdiction over the subject matter of this...