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POCKALNY v. ELWELL PARKER ELEC. CO.

May 10, 1985

CREIGHTON POCKALNY and ELINOR POCKALNY, Plaintiffs,
v.
ELWELL PARKER ELECTRIC CO., INC., INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, DOUGLAS FRASER, as President of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, LOCAL #846, UNITED AUTOMOBILE AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, and S. C. LUTKA, as President of Local #846, United Automobile, Aerospace and Agricultural Implement Workers of America, Defendants; INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, and LOCAL #846, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, Defendants and Third-Party Plaintiffs, vs GENERAL MOTORS CORPORATION, Third-Party Defendant.



The opinion of the court was delivered by: ELFVIN

MEMORANDUM and ORDER

In this action seeking monetary damages for personal injuries sustained by plaintiff Creighton Pockalny ("Creighton"), defendants International Union, United Automobile, Aerospace and Agricultural Implement Workers of America ("the International Union") and Local #846, United Automobile, Aerospace and Agricultural Implement Workers of America ("Local 846") have moved for summary judgment pursuant to Fed.R.Civ.P. rule 56.

 The Complaint alleges that Creighton had been struck by an unmanned moving forklift on or about September 27, 1978 while employed at General Motors Corporation's plant in the Town of Tonawanda, N.Y. and that as a result of such he had suffered painful and permanent serious injuries. The action had been commenced in New York State Supreme Court and was removed to this Court October 22, 1981.

 The forklift which struck Creighton allegedly was not in safe working order. A "deadman switch," a device which eliminates all power to the machine and sets the brakes after the operator has lifted his weight from the seat, allegedly had been disconnected. Further inspection of the forklift allegedly had demonstrated that directional controls had been improperly connected as well as other improprieties.

 At the time of the incident Creighton was a member of Local 846. In certain documents relating to the agreements among General Motors Corporation ("GM") and the International Union, and the Tonawanda Forge Plant and Local 846, provisions had been made regarding the health and safety of employees at the plant. Plaintiffs have initially referred to specific language in a certain document, which is set forth in a booklet which also contains the collective bargaining agreement ("the cba"), to support their position that the union defendants had assumed an affirmative duty to seek out and secure corrections of hazards to the health and safety of employees at the plant. The document comprises that part of the booklet which is entitled "INTERPRETATIONS, STATEMENTS, LETTERS AND THE MEMORANDUM OF UNDERSTANDING ON HEALTH AND SAFETY." Its title page, page 209 of the booklet indicates:

 "(The following documents connected with the 1976 GM-UAW negotiations are not a part of the National Agreement but have been included in this booklet for informational purposes.)"

 The "Memorandum of Understanding Health and Safety" (pages 216-225 of the booklet) states, among other things, that the "Union recognizes its obligation to cooperate in maintaining and improving a safe and healthful working environment" (p. 216), "that the employer will provide unspecified safety clothing, training and equipment" (ibid.), that "a National Joint [management and union] Committee on Health and Safety" would be established (p. 218) and that "Local Joint [management and union] Committees on Health and Safety" would be established for each bargaining unit (pp. 219-222). It was further provided that the Local Committees shall meet at least once each month to review health and safety conditions within the plant and shall make a biweekly health and safety inspection and carry out other health and accident-related duties. Plaintitts have also invited the Court's attention to similarly worded portions of a document entitled "UAW-GM National Informational Subcouncils, April 2 - April 5, 1978 * * * Memorandum of Understanding Health and Safety," an educational booklet, drafted and assembled by members of the International Union for presentation, explanation and discussion at informational subcouncil meetings of local union delegates from GM's plants. (This booklet ["the 1978 Memorandum"] is attached as an exhibit to the plaintiffs' September 30, 1983 joint affidavit which is part of their response (filed on that date) to defendants' motion for summary judgment.)

 It is alleged by plaintiffs that language in these documents has imposed upon the union's District Committeemen the duty to search out problems that represent a hazard or hazards to the employees in their respective districts and to secure correction of the same. Furthermore, the Local Committeemen, plaintiffs contend, had the duty to make a bi-weekly health and safety inspection and to investigate and make recommendations concerning conditions involving imminent danger. *fn1"

 The Complaint alleges in its first cause of action that, as a result of Local 846's and the International Union's failures to have complied with obligations contained in the contract with Creighton's employer, he was subjected to an unreasonable risk of harm and was severely injured. The second cause of action maintains that, as a member of Local 846 and in consideration of his payment of dues, Creighton was owed certain duties running to him from Local 846 and the International Union, such duties flowing from an alleged contract between these defendants and him. These obligations included the duty of these defendants to meet their obligations with the employer and, specifically, to protect Creighton from an unreasonable risk of harm while in the regular course of his employment.

 The third cause of action alleges negligence on the part of these defendants in failing to make timely inspections and/or that they had made such inspections in a negligent manner, as well as a failure to protect Creighton from an unreasonable risk of harm regarding the forklift truck. Creighton's wife, Elinor, seeks derivative damages for loss of consortium, services and society allegedly suffered as a result of her husband's injuries.

 The union defendants have contended that no statute, regulation, local ordinance or administrative directive places upon either of them a legal obligation to protect their members from safety or health hazards at GM, or to take corrective action should such a problem be found to exist. These defendants further maintain that the agreements merely allow for random inspections and specific investigation of conditions brought to the Local Committee's attention through the provided complaint procedures.

 In opposing the instant motion plaintiffs have maintained that the union defendants had taken on duties above and beyond the duty of fair representation owed to union members under federal labor law. Plaintiffs also have maintained that the duty owed to Creighton by the International Union and Local 846 extended beyond those which arose from the cba and therefore contend that any consideration of this action with reference to the duty of fair representation would be inappropriate.

 Plaintiffs have further asserted that, inasmuch as their claims against the union defendants are premised upon the law of negligence of the State of New York and not under the Labor Management Relations Act, 29 U.S.C. § 141 et. seq., this Court should consider remanding this action to the state court because it had been improvidently removed therefrom. See Helton v. Hake, 386 F. Supp. 1027 (W.D.Mo. 1974). However the very bases for plaintiffs' causes of action against the union defendants are documents connected with the 1976 cba negotiations between GM and these defendants. Plaintiffs may not rely on the terms of these documents to impute some form of due care on the parts of the union defendants and then attempt to have the unions' enforcement vel non of the "agreement" determined pursuant to state law regarding negligence. Inasmuch as plaintiffs' claims against the union defendants flow from documents connected with the cba negotiations and the parties' agreement to cooperate to maintain and improve the safety of the working environment, the unions' obligations undertaken to benefit their members arise from and are governed by federal law. Cf., Condon v. Local 2944, United Steelworkers, Etc., 683 F.2d 590, 594-596 (1st Cir. 1982); House v. Mine Safety Appliances Co., 417 F. Supp. 939, 944-947 (D.Id. 1976). Plaintiffs' claims are not of the type which touch so tangentially upon a union's bargaining duties as to allow an independent state law claim. See, e.g. Farmer v. United Board of Carpenters, 430 U.S. 290, 51 L. Ed. 2d 338, 97 S. Ct. 1056 (1977) (intentional infliction of emotional distress); Linn v. Plant Guard Workers, 383 U.S. 53, 15 L. Ed. 2d 582, 86 S. Ct. 657 (1966) (libel action). It is clear that federal law preempts the type of state law claim that plaintiffs have contended exists against these defendants. Cf. Condon v. Local 2944, United Steelworkers, Etc., supra; House v. Safety Applicances Co., supra.

 Although plaintiffs do not allege a breach of the unions' duty of fair representation, the policy embodied in the doctrine of fair representation, as well as the evolving federal common law regarding claims by a member against his or her ...


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