O'Brien v. Curran

• Decision Date: 30 April 1965
• Citation: 106 N.H. 252,209 A.2d 723
• Parties: Eugene O'BRIEN et al. v. Francis L. CURRAN et al.
• Court: New Hampshire Supreme Court

Page 723

209 A.2d 723

106 N.H. 252

Eugene O'BRIEN et al. v. Francis L. CURRAN et al.

Supreme Court of New Hampshire.

Argued Dec. 1, 1964.

Decided April 30, 1965.

Victor W. Dahar, Manchester, for the plaintiffs.

Booth, Wadleigh, Langdell, Starr & Peters, Philip G. Peters, Manchester, for defendant Quinn Freight Lines, Inc.

Upton, Sanders & Upton, Richard F. Upton, Concord, for defendant Labor Union and its Secretary-Treasurer, Basil D. French.

PER CURIAM.

The basic bone of contention in this case is whether the plaintiffs, although represented by the Union, can successfully attack the arbitration award because of the plaintiffs' absence from the arbitration proceeding where their interests are adverse to the position taken by the Union. The issue is not a frivolous one; the solution is not an easy one and the path to the absolutely correct answer is dimly lighted. In a recent article last month, Smith and Jones, The Supreme Court and Labor Dispute Arbitration: The Emerging Federal Law, 63 Mich.L.Rev. 751, 799 (1965), the problem is introduced as follows: 'The question raised here is whether, because of the absence from the proceeding of an employee subject to the labor agreement whose interests are adverse to the position being taken by the union in support of the grievance, the arbitrator lacks jurisdiction to render a valid award. An illustrative example is presented by almost any seniority case where the union, in deciding to process a grievance filed by a particular employee asserting a right to preferential treatment because of his seniority, has made an internal decision that the grievant's rights are superior to those of another employee. Involved is the fundamental relationship of the union, as representative of all the employees in the bargaining unit, to the individual employee in the negotiation and administration of the labor agreement.' See also, Sumner, Collective Power and Individual Rights in the Collective Agreement--A Comparison of Swedish and American Law, 72 Yale L.J. 421 (1963).

Having stated the main issue, we summarize the factual background of the dispute. The Union has contracts with employers in the trucking industry including Quinn, and the Union, whose jurisdiction covers the state, is the recognized bargaining agent of all Quinn employees under the Labor Management Relations Act of 1947. 29 U.S.C.A. § 159. In 1955 Quinn purchased Peterson's Motor Express, Inc. of Rochester, New Hampshire. The contract between Peterson and the Union was by its terms binding on the 'successors and assigns' of Peterson. Quinn recognized the original date of hiring by Peterson as the seniority dates of the former Peterson employees. In 1956 Quinn purchased Ames Motor Transportation, Inc. of Woodsville, N. H. under the same conditions. In 1957 a new contract was negotiated for the trucking industry in New Hampshire. It was signed by Quinn, the Union and other truckers and was binding on 'successors and assigns.' In 1959 Quinn purchased Roberts Express, Inc. of Manchester, New Hampshire, and recognized the seniority of these employees from the date of their employment with Roberts. In September 1960 Quinn purchased W. A. Stackpole Motor Transportation, Inc. of Manchester, N. H. The Stackpole employees were kept on a separate seniority list until December 1960 when the Stackpole terminal was closed by Quinn.

From January 1959 until March 29, 1961, Quinn followed substantially an integrated seniority list or 'dovetail list' although some change was made in 1960. On such a list the employees of the former companies purchased by Quinn were listed in order of their original dates of employment with their former employers. On March 29, 1961 Quinn established a new seniority list which did away with the dovetailing system and established seniority on the date that Quinn purchased the companies. Accordingly Peterson's employees were at the top of the list, followed by employees of Roberts and Ames. The former Stackpole employees did not appear on the list. The Union objected, negotiations were unsuccessful and the Union filed a grievance with the Arbitration Board which held a hearing on August 31, 1961.

At the arbitration hearing French, as Secretary-Treasurer, argued in favor of an integrated seniority list on the ground that it was a contractual obligation of Quinn as 'successor and assign' of each of the former employers. The attorney for Quinn argued against the Union's position and for a seniority list based on the date of the purchase of the companies. The attorney for the plaintiffs requested permission to intervene which was refused by the Arbitration Board in the absence of any written grievance as required by the contract between Quinn and the Union. No written grievance was filed with the Arbitration Board by the plaintiffs subsequent to the hearing of August 31. The Board's decision in favor of the Union requiring Quinn to maintain an integrated seniority list was made on November 28, 1961 and was clarified by a decision on December 29, 1961. Quinn appealed this decision to the Superior Court and in March 1962 the plaintiffs filed a petition to vacate the arbitration award.

In the summer of 1962 Quinn withdrew its appeal. The Union and Quinn in June 1962 agreed to accept the arbitration award and an integrated seniority list in accordance therewith was posted July 5, 1962. The plaintiffs sought an injunction against the enforcement of this seniority list which was denied by the Superior Court after hearing.

It was agreed by the parties that the remaining petition by the plaintiffs should be referred to a master whose report in 1963 approving the arbitration award was confirmed by the Superior Court. The plaintiffs' motion to set aside the master's report was denied March 10, 1964.

The plaintiffs attack the arbitration award and its confirmation by the master and the Court because they were not given notice of the hearing and were not allowed to intervene in the arbitration hearing. Reliance for this position is placed on Clark v. Hein-Werner Corp., 8 Wis.2d 264, 272, 99 N.W.2d 132, 137, holding that 'where the interests of two groups of employees are diametrically opposed to each other and the union espouses the cause of one in the arbitration, it follows as a matter of law that there has been no fair representation of the other group.' (Emphasis supplied). This view has been criticized, and represents a minority view which we do not follow. Koretz, Labor Law Decisions of the Supreme Court: 1963 Term, 16 Syracuse L.Rev. 1, 14 (1964); Bailer v. Local No. 470, 400 Pa. 188, 161 A.2d 343; Aaron, Some Aspects of the Union's Duty of Fair Representation, 22 Ohio St.L.J. 39, 49-54 (1961). The Union must make decisions and the determination of seniority cannot always be completely satisfactory to the same degree for all classes and groups of employees. 'The complete satisfaction of all who are represented is hardly to be expected. A wide...