Valdivia v. Ohse Foods, Inc.

• Decision Date: 29 April 1993
• Docket Number: No. 91-4284-DES.,91-4284-DES.
• Parties: Anthony John VALDIVIA, Plaintiff, v. OHSE FOODS, INC.; Hudson Foods, Inc.; and United Food and Commercial Workers Local Union No. 576, Defendants.
• Court: U.S. District Court — District of Kansas

820 F. Supp. 574

Anthony John VALDIVIA, Plaintiff, v. OHSE FOODS, INC.; Hudson Foods, Inc.; and United Food and Commercial Workers Local Union No. 576, Defendants.

No. 91-4284-DES.

United States District Court, D. Kansas.

April 29, 1993.

Frankie D. Taff, Topeka, KS, for Anthony John Valdivia.

W. Stanley Churchill, Ross A. Hollander, Anthony J. Powell, Martin, Churchill, Overman, Hill & Cole, Chartered, Wichita, KS, for Ohse Foods, Inc., Hudson Foods, Inc.

Robert L. Dameron, Thomas H. Marshall, Blake & Uhlig, P.A., Kansas City, KS, for Local No. 576, United Food and Commercial Workers Intern. Union.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on the separate motions for summary judgment submitted by defendants United Food and Commercial Workers Local Union No. 576 ("Union") and Ohse Foods, Inc. ("Ohse Foods"), a division of Hudson Foods, Inc.

NATURE OF THE CLAIM

Plaintiff Anthony John Valdivia ("plaintiff") alleges that he was discharged from employment by Ohse Foods for excessive absenteeism, in breach of its collective bargaining agreement with the defendant Union. He further alleges that the defendant Union, his collective bargaining agent, breached its duty of fair representation. Plaintiff states a hybrid § 301/duty of fair representation claim, grounded in § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. See United Steelworkers of America v. Rawson, 495 U.S. 362, 373, 110 S.Ct. 1904, 1911, 109 L.Ed.2d 362 (1990); DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 165, 103 S.Ct. 2281, 2291, 76 L.Ed.2d 476 (1983); Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967); Baker v. Interstate Brands Corp., 801 F.Supp. 456, 458 (D.Kan.1992); McLinn v. Boeing Co., 715 F.Supp. 1024, 1029 (D.Kan.1989).

JURISDICTION AND VENUE

This action was originally filed in Shawnee County District Court on November 15, 1991. The defendants subsequently removed it to this court pursuant to 28 U.S.C. §§ 1441 and 1446. The court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 185(a). Venue is proper under 28 U.S.C. § 1391(b)(2).

SUMMARY JUDGMENT GUIDELINES

Under Fed.R.Civ.P. 56(c), the court is compelled to render summary judgment on behalf of a moving party if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). An issue of fact is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510.

The moving party has the burden of showing the absence of a genuine issue of material fact. This burden "may be discharged by `showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Thus, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id.

The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues. United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir.1986). The court must also consider the record in the light most favorable to the party opposing the motion. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985).

FACTS

For the purpose of deciding the pending summary judgment motions, the court makes the following findings of fact, which are supported by the record when construed in the light most favorable to the plaintiff as the party opposing summary judgment.

Anthony Valdivia began his employment at Ohse Foods on March 28, 1988.¹ Defendant Union was designated the exclusive collective bargaining agent for production workers at Ohse Foods. Plaintiff became a member of the Union shortly after he was employed by Ohse Foods as a production worker.

Prior to the date plaintiff was hired, rules and regulations on absenteeism were adopted by the company with the defendant Union's input. Characterized by the parties as a "no-fault" absenteeism policy, it permitted employees at least four and one-half unexcused absences from work within any six-month period, in addition to approved vacation time and excused absences for specified reasons such as funeral leave or hospitalization. However, if an employee exceeded the number of permissible unexcused absences in any six-month period, the policy provided for imposition of a four-step disciplinary process:

If an employee's absences, minus the largest occurrence^*, exceeds sic four and one half (4½) days per 6 month period, the following action will be taken by the immediate supervisor:

1) First offense — Written or Verbal Warning

2) Second Occurrence—6 month period immediately following the first offense — One Day In Plant Suspension

3) Third Occurrence—Same 6 month period as Step 2—One Week In Plant Suspension

4) Fourth Occurrence—Same 6 month period as Step 2—Termination

....

As interpreted and applied by Ohse Foods, the first absence in excess of the limit in any six-month period was also deemed to be the first "occurrence" for purposes of the six-month fixed disciplinary period for excessive absences.

Pursuant to the absenteeism policy, plaintiff received warning letters for excessive unexcused absences on August 25, 1988 (first occurrence), August 30, 1988 (second occurrence), and October 12, 1988 (third occurrence).² The six-month disciplinary period expired, however, before he incurred a fourth unexcused absence, which would have otherwise subjected him to termination.

Effective November 5, 1988, a new collective bargaining agreement took effect. Under the agreement, Ohse Foods was precluded from discharging any employee except for just cause, defined as violating company rules or policies including, but not limited to, such things as sleeping on the job and consuming alcohol or drugs on company premises. The agreement also reserved to Ohse Foods the management right to adopt reasonable rules and regulations not in violation of the terms and conditions of the agreement.

While negotiating the new agreement, the Union proposed a change in the absenteeism policy to provide that the unexcused absence triggering imposition of the four-step disciplinary process for excessive absenteeism would not also count against the employee as an "occurrence" for purposes of the subsequent six-month disciplinary period. However, the company rejected the proposed change during negotiations, and the absenteeism policy continued in force as then interpreted and applied by the company.³

Thereafter, plaintiff received warning letters pursuant to the absenteeism policy on April 10, 1989 (first occurrence), April 19, 1989 (second occurrence), and May 10, 1989 (third occurrence). As in 1988, however, the plaintiff did not reach the fourth step of the disciplinary process because he logged only three "occurrences" within the applicable six-month disciplinary period. Plaintiff subsequently had several additional unexcused absences from work in the latter half of 1989.

Plaintiff was again absent from work on January 4 and 5, 1990. These absences triggered plaintiff's third six-month disciplinary period for excessive unexcused absences within two years after he was hired. Plaintiff was given a written warning on January 7, 1990, informing him that the next occurrence would trigger a one-day in-plant suspension. On February 7, 1990, he was given another written warning following his unexcused absences on February 5 and 6, informing him that the next occurrence would result in a one-week in-plant suspension. On March 5, 1990, he was again given a written warning after his unexcused absence on March 2, 1990. This warning letter stated that the next occurrence would result in his termination. Plaintiff did not file grievances concerning any of the written warnings he received in 1988, 1989, or 1990.⁴ Nor does he contend that any of these absences should have been deemed excused absences under the policy.

On July 7, 1990, a Saturday, plaintiff knew he was expected to work overtime during his regular shift. However, he telephoned the plant supervisor prior to the time he was to start work and reported that he would not be in.⁵ The plant superintendent, John Gaffney, asked whether he would be at work the next day, and the plaintiff responded that he would. On Sunday, plaintiff worked his regular shift. However, when he reported to work on Monday, July 9, 1990, he was informed he had been terminated for excessive absenteeism, because he had reached the fourth step of the disciplinary process.

After he was told he was terminated, plaintiff inquired of the union steward, James Lundgren ("Lundgren"), whether there was anything he could do to get his job back, and specifically whether Lundgren thought plaintiff should file a grievance. Construed in the light most favorable to the plaintiff, the evidence indicates that Lundgren stated he did not think filing a grievance would do any good.⁶ Having thought it over while returning home from work, plaintiff called Tim McGrew ("McGrew"), the...