Terrell v. Local Lodge 758, Intern. Ass'n of Machinists

• Decision Date: 09 April 1957
• Citation: 150 Cal.App.2d 24,309 P.2d 130
• Court: California Court of Appeals Court of Appeals
• Parties: , 32 Lab.Cas. P 70,686 Hugh M. TERRELL, Plaintiff and Appellant, v. LOCAL LODGE 758, INTERNATIONAL ASSOCIATION OF MACHINISTS and Menasco Manufacturing Company, a Corporation, Defendants, Local Lodge 758, International Association of Machinists, Respondent. Civ. 21976.

Page 130

309 P.2d 130

150 Cal.App.2d 24, 32 Lab.Cas. P 70,686

Hugh M. TERRELL, Plaintiff and Appellant, v. LOCAL LODGE 758, INTERNATIONAL ASSOCIATION OF MACHINISTS and Menasco Manufacturing Company, a Corporation, Defendants Local Lodge 758, International Association of Machinists, Respondent.

Civ. 21976.

District Court of Appeal, Second District, Division 3, California.

April 9, 1957.

Hugh M. Terrell, in pro. per.

Rose, Klein & Marias and Robert P. Dockeray, Los Angeles, for respondent.

VALLEE, Justice.

Plaintiff appeals from a summary judgment granted on motion of defendant Local Lodge 758, International Association of Machinists, to be called 'Union.' ¹

Union is affiliated with International Association of Machinists as a local lodge. Prior to the time in question it had entered into a collective bargaining agreement with Menasco Manufacturing Company which provided four steps for the processing of grievances. Step One did not apply to the discharge of an employee. Step Two was a meeting between representatives of Union and of Menasco in an attempt to settle the grievance. If no agreement was reached an appeal could be taken to Step Three--an appeal board. If a settlement was not reached under Step Three the grievance could be appealed to Step Four--arbitration.

The complaint alleges: On or about July 7, 1952, plaintiff became a member of Union, and Union promised in writing to process any grievance of plaintiff against Menasco 'which it considered meritorious' through the steps set forth in the collective bargaining agreement. On September 12, 1953, plaintiff was in the employ of Menasco and he was discharged without cause. Plaintiff filed a grievance with Menasco; Step Two and Step Three meetings were held as provided in the agreement, which terminated without settlement of the grievance. On information and belief, Union considered the grievance meritorious but negligently failed to appeal to Step Four. As a direct consequence of Union's failure to appeal to Step Four plaintiff sustained damages of $34,320. Union's answer admitted the discharge of plaintiff; admitted it did not carry the grievance procedure further than Step Three; denied it ever agreed either in writing or otherwise with plaintiff to carry any grievance of his through to arbitration.

In considering a defendant's motion for summary judgment, the trial court is to determine whether the plaintiff has presented any facts which give rise to a triable issue. Gardner v. Jonathan Club, 35 Cal.2d 343, 347, 217 P.2d 961. 'Section 437c, Code of Civil Procedure, provides, inter alia, that if it is claimed that an action has no merit the defendant may, upon proper notice make a motion, supported by an affidavit of any person having knowledge of the facts, that the complaint be dismissed and judgment entered. The plaintiff however, 'by affidavit or affidavits, shall show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact.' If it appears from an examination of the affidavits that no triable issue of fact exists, and that the affidavits in support of the motion state facts which, if proved, would support a judgment in favor of the moving party, then summary judgment is proper. [Citation.] It is thus apparent that the propriety of granting or denying the motion depends upon the sufficiency of the affidavits that have been filed.' Cone v. Union Oil Co., 129 Cal.App.2d 558, 562, 277 P.2d 464, 467.

In support of the motion for summary judgment Union filed an affidavit of Alfred Klein to which there was attached as a part thereof the deposition of plaintiff, and an affidavit of C. C. Bogardus, business representative of Union, to which there was attached a copy of the constitution of Grand Lodge, International Association of Machinists. Plaintiff filed a counter-affidavit. The affidavit of Mr. Klein disclosed that plaintiff relied on the constitution of the Grand Lodge and the collective bargaining agreement between Union and Menasco as the sole basis for his claim that Union had promised in writing to process any grievance in his behalf. The specific provision of the constitution of the Grand Lodge on which plaintiff relied, as disclosed by his deposition, reads:

'The Grand Lodge of the International Association of Machinists aims: * * *

'5. To settle all disputes arising between our members and employers, by direct negotiation whenever possible and in cases where Arbitration is resorted to, to reserve our freedom to accept or reject the decision rendered except in those cases where it is previously agreed by both parties that the decision shall be binding.'

The affidavit of Mr. Klein also disclosed that plaintiff relied on a provision of the constitution of the Grand Lodge which is set out in the margin. ² The specific provision of the collective bargaining agreement on which plaintiff relied, as shown by his deposition, is set out in the margin. ³ The affidavit of Mr. Bogardus incorporated the collective bargaining agreement as a part of it; stated there was nothing in plaintiff's application for membership in the Union which bound the Union to process any grievance of plaintiff against Menasco; and that Union never at any time promised to process any such grievance. Thus there were before the trial court in support of the motion plaintiff's application for membership in Union and the particular parts of the constitution of the Grand Lodge and of the collective bargaining agreement on which plaintiff relied as supporting his claim that Union was obligated to process his grievance against Menasco to arbitration.

The counter-affidavit of plaintiff stated he became a member of Union on his own volition, predicated partially on an oral promise made by Mr. Bogardus in the presence of the director of industrial relations of Menasco 'which was prompted by an inquiry on the part of this affiant relative to their respective positions regarding the processing of grievances should this affiant ever decide to become a member of the union'; the collective bargaining agreement states the Union is the sole bargaining agent; the grievance was processed through Step Two without settlement; there is no record showing that Step Three was pursued; Union promised orally to process any meritorious grievance he had against Menasco; the constitution and the collective bargaining agreement 'contain nothing but promises...