Vikman v. International Broth. of Elec. Workers, Local Union No. 1269

Decision Date30 January 1995
Docket NumberNo. 93SC73,93SC73
Citation889 P.2d 646
Parties149 L.R.R.M. (BNA) 2039, 130 Lab.Cas. P 57,901 Edwin T. VIKMAN and Duane Vikman, Petitioners, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 1269, an Unincorporated Association, Respondent.
CourtColorado Supreme Court

Sherman & Howard, James E. Hautzinger, N. Dawn Webber, Wayne W. Williams, Denver, for petitioners.

Fattor & Kittle, P.C., James C. Fattor, Rita Byrnes Kittle, Denver, for respondent.

Justice KIRSHBAUM delivered the Opinion of the Court.

In International Brotherhood of Electrical Workers/Local Union 1269 v. Vikman, 854 P.2d 1302 (Colo.App.1992), the court of appeals reversed the trial court's judgment directing verdicts in favor of the petitioners, Edwin T. Vikman and Duane Vikman, and against the respondent, International Brotherhood of Electrical Workers, Local 1269 (Local 1269), on claims by Local 1269 for collection of fines imposed as the result of disciplinary proceedings instituted by Local 1269 against the Vikmans. The court of appeals also reversed jury verdicts for the Vikmans and against Local 1269 on counterclaims by the Vikmans for willful breach of contract, outrageous conduct, and punitive damages. The court of appeals held that the trial court erred in concluding as a matter of law that the disciplinary proceedings were unfair; in determining that the Vikmans were required to prove their counterclaims by a preponderance of the evidence; and in failing to determine whether the Vikmans failed to exhaust available internal union remedies in the course of the disciplinary proceedings, thus barring them from challenging the fairness of those proceedings and from asserting their counterclaims against Local 1269. The court of appeals also concluded that on retrial additional instructions should be given to the jury to ensure that any verdicts for the Vikmans on their outrageous conduct counterclaims would satisfy the requirements of Farmer v. United Brotherhood of Carpenters and Joiners, Local 25, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977). Having granted certiorari to review the propriety of the court of appeals' judgment, we reverse and remand the case to the court of appeals with directions.


In August of 1983, Local 1269 was the bargaining group for workers who sold telephone directory advertisements for Mountain States Telephone and Telegraph Company (hereafter Mountain Bell). 1 On August 7, 1983, Local 1269 initiated a strike against Mountain Bell. Edwin and Duane, twin brothers who were members of Local 1269, did not work at Mountain Bell during the early days of the strike.

Both Edwin and Duane have heart disease. On August 10, 1983, while walking a picket line, Edwin experienced chest pains and was taken to a hospital for treatment. Eight days later a Mountain Bell management employee told Edwin that Edwin would not be eligible for medical insurance benefits if he did not return to work.

Greatly troubled by this information, Edwin returned to work at Mountain Bell on August 22, 1983. Duane also returned to work at that time, believing that his absence from work would jeopardize Edwin's health and safety. Edwin and Duane made sales calls on August 22, 23, and 24, 1983. Pursuant to a practice established by Mountain Bell, Edwin backdated certain contracts and other documents to reflect that he had worked continuously during the strike.

On August 25, 1983, Gerald Linder, a member of Local 1269's executive committee, informed Edwin that the information given to Edwin about his medical insurance benefits was incorrect and that such benefits would remain in effect for the duration of the strike. Edwin then told Linder that both of the Vikmans would immediately rejoin the strike, and the Vikmans ceased working for Mountain Bell that day. The strike ended on September 6, 1983.

By separate letters dated October 17, 1983, Local 1269 informed Edwin and Duane that on October 7, 1983, they had been charged with crossing a picket line during a strike, in violation of Local 1269's constitution, 2 and that a hearing on the charges would be held on December 3, 1983, in San Francisco, California. The letters did not specify the days the Vikmans allegedly worked or what penalties might be imposed. The union's offices are located in San Francisco.

By letter dated November 11, 1983, Edwin informed Local 1269 that he would not be able to travel to San Francisco because of his health and requested Local 1269 to specify the charges and the days he allegedly worked. On February 16, 1984, Local 1269 sent Edwin a letter stating that his hearing had been continued to March 2, 1984. Edwin sent a letter dated March 1, 1984, to Local 1269 requesting that the charges be dismissed. He argued, inter alia, that the charges were not sufficiently specific, that Local 1269's constitution required any hearing on such charges to be held no later than forty-five days after they were filed, and that a fair hearing could be held only in Colorado. He also explained why he had returned to work, stated that he did not obtain any significant financial benefit during the strike, and requested that a member of Local 1269 be appointed to represent him at the hearing pursuant to Article XXVII, section 5, of Local 1269's constitution. Although Local 1269 received Edwin's March 1, 1984, letter prior to the commencement of the March 2, 1984, hearing, its executive committee, acting as a trial board, proceeded with the hearing and did not appoint a union member to represent Edwin.

At Edwin's March 2, 1984, hearing the trial board considered the charges contained in the October 17 letter to Edwin and Edwin's correspondence. The trial board found Edwin guilty of the charged violations on March 2, 1984. On April 6, 1984, the executive committee met and assessed a fine of $7,168.70 against him. No transcripts or minutes of these proceedings were introduced into evidence.

Duane did not respond to the October 17, 1983, letter. He testified at trial that he concluded that any fine imposed would probably not exceed the cost of air fare to and from San Francisco and that if the fine did exceed that amount he could appeal the decision. He also testified that he believed Edwin's correspondence would apply to him as well as to Edwin.

Local 1269 conducted a hearing on the charges against Duane on December 3, 1983. No transcripts of the proceeding were admitted into evidence. Article XXVII, section 7, of Local 1269's constitution provides as follows:

If the accused wilfully fails to stand trial--or attempts to evade trial--the trial board shall proceed to hear and determine the case just as though the accused were present.

Testimony elicited at trial indicated that pursuant to Local 1269 policy a union member who does not appear at disciplinary proceedings is deemed to have admitted the charged violations. The trial board found Duane guilty of the alleged violations on December 3, 1983.

Joanne Malik, Local 1269's recording secretary and a member of the executive committee, was present at all the proceedings held with respect to the Vikmans. She testified at trial that on December 3, 1983, the trial board read the charges contained in the October 17, 1983, letter sent to Duane and determined that he should be fined. She also testified that the trial board received information from Peter Pusateri, Local 1269's business manager, that Duane and Edwin had worked for three weeks, and that Pusateri had obtained his information from Gerald Linder. Linder testified that he told Pusateri he, Linder, had no actual knowledge of the amount of time the Vikmans had worked but assumed the period was three weeks. On April 6, 1984, Local 1269's executive committee met and assessed a fine of $5,733.02 against Duane. 3

Neither Edwin nor Duane was notified in advance of the April 6, 1984, executive committee meeting. Edwin testified at trial that he never received any notice of the executive committee's actions in his case until he was served with the summons and complaint in this civil action. Malik testified at trial that on April 12, 1984, she typed and mailed a letter to Edwin by certified mail, return receipt requested. The letter was signed by Michael Shanks, Local 1269's president; informed Edwin that on April 12, 1984, the executive committee had assessed a fine of $7,168.70; and described the process for any appeal. 4 Malik testified that she remembered receiving a return receipt from that mailing but that she did not recall whether the return receipt was signed. No return receipt was introduced as evidence at trial. Malik also testified that she erroneously typed the date of the executive committee's meeting as "April 12, 1984," rather than April 6, 1984.

On April 12, 1984, Michael Shanks sent a similar letter to Duane by certified mail, return receipt requested. The letter stated that the executive committee had met on April 12, 1984, and had assessed a fine of $5,733.02. The letter also described the appeal procedures available pursuant to Local 1269's constitution. On May 7, 1984, that letter was returned to Local 1269 as unclaimed. Gerald Linder gave a copy of the letter to Duane sometime in April.

Duane mailed a letter dated May 17, 1984, to Michael Shanks and sent copies thereof to three other persons, including Local 1269's international vice president. The letter indicated that Duane wished to appeal the assessment against him. Local 1269 did not respond to Duane's letter.

At trial, Gerald Linder testified that when he told Pusateri he assumed that the Vikmans had worked for three weeks during the strike, Linder knew that the Vikmans had participated in the strike for the first week thereof, that Edwin had been hospitalized for a period of time, that the only documentation Linder had reviewed suggested that the Vikmans may have worked for Mountain Bell for a period of two weeks, and that he saw no reason...

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