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CONKLE v. JEONG

May 2, 1994

SHEILA CONKLE, Plaintiff,
v.
SULINNA JEONG, dba LAIRD'S FOOD MARKET, BALDWIN JEONG, JADELIN ENTERPRISES, a corporation, dba LAIRD'S FOOD MARKET, UNITED FOOD AND COMMERCIAL WORKERS' UNION, LOCAL 1179 AFL-CIO, Defendants.


WALKER


The opinion of the court was delivered by: VAUGHN R. WALKER

 In October, 1992, Conkle experienced a "quick and fleeting" pain in her back while lifting something at work. She reported the pain to Sulinna Jeong, one of the owners of Laird's, who told her to file any workers compensation claim within three days. Conkle decided not to file a claim at that time because she believed that she would be able to handle her job without further problems.

 On November 5, 1991, Conkle was lifting a case of liquor from the floor to a shelf above her head when she suddenly felt a pain "like somebody had taken an ice pick and shoved it in [her] lower back." As a result of her injury, Conkle was unable to walk without experiencing pain in her back. Her supervisor, Baldwin Jeong, released her to go see her family practitioner, Dr. Dana Slauson. Dr. Slauson allowed Conkle to return to work on condition that she refrain from lifting.

 On November 8, 1991, Sulinna Jeong decided that Conkle should not continue to work if she was unable to lift. Conkle did not complain to any union representative about the fact that Sulinna Jeong was not permitting her to work. November 8, 1991, was the last day that Conkle actually "worked" for Laird's.

 On December 9, 1992, Conkle received a call from her worker's compensation lawyer, Gary Snyder. Mr. Snyder stated that Sulinna Jeong had agreed that Conkle could return to work with a 25 pound weight lifting limit. Although Conkle had not yet received a doctor's medical release stating that she could return to work at this time, she assumed that she could go back to work as a grocery checker with no modification of duties.

 On December 18, 1992, Sandra Twohy ("Twohy"), a Local 1179 representative, called Conkle to tell her that Laird's had been sold, and that all union employees would be laid off by December 28, 1992. Local 1179 questioned the "sale" of Laird's because Sulinna Jeong had "sold" Laird's to Jadelin Corporation, a California corporation formed between her children, Baldwin and Jade Jeong, for the sole purpose of purchasing Laird's. Local 1179 believed that the "sale" was, in effect, a repudiation of the collective bargaining agreement between Laird's and Local 1179.

 In response to the alleged repudiation of the union contract, Local 1179 filed a grievance under its collective bargaining agreement with Laird's to prevent the termination of Laird's union employees. Local 1179, through attorney David Rosenfeld, demanded that Laird's arbitrate Local 1179's grievance and threatened to compel arbitration through a federal court action. Moreover, on March 5, 1993, Local 1179 filed an unfair labor practice charge with the National Labor Relations Board, alleging that Laird's had refused to bargain with Local 1179 and had discriminated against its union employees.

 Laird's refused to submit the grievance to arbitration. The union members at Laird's feared that they would permanently lose their jobs. Specifically, Conkle was concerned that Laird's would not recognize the union contract. Consequently, Local 1179 began picketing on February 16, 1993. The object of the picketer was to return to their jobs under the same union contract that was in effect before the dispute. Picketing continued for a total of seventeen days.

 On March 10, 1993, Local 1179 settled its labor dispute with Laird's new owner, Baldwin Jeong. He agreed to be bound by the 1992-1995 Master Food Agreement and, in return, Local 1179 waived its claims for back pay for the period of December 28, 1992 through March 10, 1993. Additionally, Local 1179 agreed to withdraw all pending grievances and withdraw the unfair labor practice charge filed with the National Labor Relations Board.

 At the outset of the negotiations, Baldwin Jeong made it clear that he was reluctant to put Conkle back to work. Local 1179 representatives, Philip Carney ("Carney") and Twohy, told Baldwin Jeong that he would have to put Conkle back to work, so long as she provided a full medical release.

 On March 11, 1993, Conkle met with Baldwin Jeong. At the meeting, he gave her a written job description which required that she be able to lift boxes up to 50 pounds, stock shelves, and stand for a period of two hours at a time.

 On March 19, 1993, Conkle obtained a "qualified" medical release from Dr. Slauson. The release states that Conkle is able to do any work "which does not require prolonged bending, stooping or squatting." Moreover, Conkle "is able to lift articles up to [twenty-five pounds] if she is not required to bend over to lift them." The release further provides that Conkle "should not stand without moving for longer than an hour in any 4 hour period." Conkle admits that she was surprised to learn that Dr. Slauson had restricted her from standing for longer than one hour in a four hour period. Prior to receiving Dr. Slauson's release, Conkle had been under the impression that she could stand for longer than one hour within a four hour period.

 By letter dated March 21, 1993, Conkle informed Local 1179 that Baldwin Jeong had written her a note stating: "because of [Conkle's] past and present medical conditions, [she] did not meet the requirements of employment at his firm." Conkle requested Local 1179 to "please advise [her] of the union position on this matter A.S.A.P." By letter dated March 24, 1993, Conkle's attorney questioned: "what, if anything, Local 1179 intend[ed] to do in response to Sheila Conkle's [sic] of 3/21/93 in response to the discriminatory practices of Laird's Food Markets."

 On March 30, 1993, Local 1179's counsel responded with a letter stating: "Ms. Conkle's medical certificates indicate she cannot perform the duties required of her. There is no basis to conclude that the employer's job requirements are inappropriate, unrelated to the actual duties or applied discriminatorily. Moreover, it does not appear that even with reasonable accommodation, Ms. Conkle could perform the essential duties of the job." The letter concluded as follows: "If there is further information which would cause the Union to re-evaluate its position, please bring it to our attention. Otherwise, the Union is not in a position to proceed further in this matter."

 Neither Conkle nor her attorney responded to Local 1179's letter of March 30, 1993. In fact, the next time Local 1179 heard from Conkle was June 30, 1993, the date this action was filed. *fn1"

 Conkle's complaint includes three claims for relief: (1) a § 301 claim against both her union, Local 1179 (for breach of its statutory duty of fair representation), and her employer, Laird's Foods (for termination without "just cause" in violation of the collective bargaining agreement); (2) slander against Baldwin Jeong; and (3) intentional interference with prospective economic advantage against Baldwin Jeong.

 Defendants now move for summary judgment pursuant to FRCP 56 on each cause of action. Having reviewed the papers submitted and the arguments of counsel at the hearing on April 15, 1994, the court hereby: (1) GRANTS defendants' motion on count one for violation of § 301 of the Labor Management Relations Act; (2) GRANTS defendant Baldwin Jeong's motion on count two for slander; and (3) GRANTS defendant Baldwin Jeong's motion on count three for intentional interference with prospective economic advantage.

 I

 Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FRCP 56; British Airways Board v Boeing, Co., 585 F.2d 946, 951 (9th Cir 1978). The burden on the non-moving party is as follows:

 FRCP 56(e).

 If defendant is the moving party, he sustains his burden by demonstrating "that there is an absence of evidence to support the non-moving party's case." Celotex v Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the moving party makes such a showing, the burden shifts to the non-moving party to go beyond the pleadings and "designate specific facts showing that there is a genuine issue for trial." Id at 322. The non-moving party must do more "than simply show that there is some metaphysical doubt as to material facts . . . ." Matsushita Elec. Indus. Co. v Zenith Radio Corp., 475 U.S. 574, 586-87, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (citation omitted). "Where ...


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