Donnelly v. United Fruit Co.

Decision Date06 May 1963
Docket NumberNo. A--68,A--68
Citation40 N.J. 61,190 A.2d 825
PartiesFrancis A. DONNELLY, Plaintiff-Appellant, v. UNITED FRUIT COMPANY, a corporation of the State of New Jersey, and the Brotherhood of Marine Officers, Local 13212, District 50, United Mine Workers of America, an unincorporated association, Defendants-Respondents.
CourtNew Jersey Supreme Court

Ernest Gross, New Brunswick, for plaintiff-appellant (Gross & Weissberger, New Brunswick, attorneys).

Willard G. Woelper, Newark for defendant-respondent United Fruit Co. (Anthony J. Iannarone, Belleville, on the brief, Toner, Crowley, Woelper & Vanderbilt, Newark, attorneys).

Abraham L. Friedman, Newark, for defendant-respondent Brotherhood of Marine Officers (Samuel L. Rothbard, Newark, of counsel, Rothbard, Harris & Oxfeld, Newark, attorneys).

The opinion of the court was delivered by


This suit seeks recovery for pecuniary loss suffered by plaintiff, an employee, allegedly as the result of breach of a collective bargaining contract entered into between defendants, employer and union. The asserted breach of contract is of a twofold character: (1) discharge of plaintiff by defendant employer in violation of its terms: and (2) failure and refusal of defendants, employer and union, to process plaintiff's claim of unlawful discharge in accordance with the grievance procedure set out in the contract. The Law Division of the Superior Court entered summary judgment against plaintiff, 70 N.J.Super. 370, 175 A.2d 494 (1961), and the Appellate Division affirmed. 75 N.J.Super. 383, 183 A.2d 415 (1962). We granted plaintiff's petition for certification. 38 N.J. 316, 184 A.2d 425 (1962).

Plaintiff, Francis A. Donnelly, had been employed by defendant United Fruit Company as an assistant purser (a staff officer) for about four years prior to April 7, 1955. During that period he was a member of defendant labor union, Brotherhood of Marine Officers, Local 13212, District 50, United Mine Workers of America. Prior to the events which produced this litigation, United Fruit and the union had executed a contract whih recognized the union as the exclusive representative of all staff officers employed on American flag vessels operated by the company, and which set forth the stipulations of the parties respecting wages, hours and conditions of employment. The agreement reserved to United the right to discharge an employee 'for cause,' and contained a clause banning discrimination by the employer against any member of the union.

The usual subject of grievances and arbitration was covered by the contract. It provided in Article XI:

'In the event of any dispute or controversy arising during the life of this Agreement, the Staff Officers will continue to work pending an adjustment of the trouble as follows:

Matter in dispute to be submitted to a Committee of four (4), two (2) of whom shall be representatives of the Brotherhood and two (2) of the Company; a decision of a majority of this Committee to be final and binding. In the event of failure on the part of the Committee of four (4), to reach an agreement, they shall proceed to select a fifth man as Chairman, which man must be satisfactory to both sides and the decision of a majority of this Committee so augmented shall be final and binding upon the parties signatory to this agreement.'

On April 3, 1955, Donnelly completed a voyage as assistant purser on the S.S. Fra Berlanga. On April 7 United notified him that his services were no longer required. On inquiry as to the reason for the discharge, he was told that it was his inefficiency. Donnelly then consulted Edward J. Farr, the secretary-treasurer of the union to whom the union had delegated the investigation and processing of grievances. He informed Farr of his difficulty and asked him to take the steps necessary under the bargaining agreement to bring about reinstatement.

There seems to be no substantial doubt that Farr conducted an investigation of the matter and of the company's claim that the dismissal was for just cause. It is clear also that officers of United were consulted as well as fellow employees of Donnelly. Moreover, Farr and a vice-president of the union conferred with representatives of United who explained the causes leading to the discharge. Whether that conference was the first formal step in the grievance procedure, I.e., the committee of four consideration of the matter, cannot be said with certainty. The record gives the impression that it was part of the union's informal investigation rather than pursuit of an actual step in the formal grievance process. In any event, Farr became satisfied that the discharge was for proper cause and declined to pursue the matter further, advising Donnelly that he had 'no case.' Subsequently, there were some additional meetings between Farr and Donnelly, and Farr and a United representative. But nothing came of them, and union and employer closed the matter, Farr telling plaintiff neither the union nor the company would proceed to arbitration.

On September 28, 1955 plaintiff submitted a letter of resignation to United Through Farr. According to Donnelly's alleged understanding with Farr, delivery of the letter was to be conditional upon obtaining from United a good letter of recommendation which would enable him to secure employment elsewhere. A letter of recommendation was given by the company but it was not satisfactory to Donnelly. Accordingly, he renewed his request for arbitration but Farr refused. Thereafter, Donnelly was unemployed for substantial periods until April 3, 1958 when he received an appointment from another employer as an assistant junior purser, a position of lower grade than he had held with United.

On November 23, 1956 Donnelly instituted a declaratory judgment proceeding in the New York Supreme Court against United alone. There he sought, among other things, a declaration that his discharge was improper and that he had not been inefficient or insolent to the ship's master. United obtained summary judgment in its favor, which disposition was entered without prejudice. It is contended in the present case that the New York judgment is Res judicata. Our Appellate Division held to the contrary. 75 N.J. Super., at p. 391, 183 A.2d, at p. 419. We agree and find no need for further discussion of the issue.

In November 1958 this damage action was brought in the Superior Court, Law Division, against United and the union. The claim against United was predicated on an alleged wrongful discharge from employment, and on a refusal to arbitrate the propriety of the discharge, all in violation of the collective bargaining agreement between United and the union. As to the union, the charge was improper refusal to seek and obtain arbitration of plaintiff's wrongful discharge grievance as it should have done under the bargaining contract.

The suit was removed to the United States District Court and then remanded to the Law Division where, following pretrial conference, cross-motions for summary judgment were made by the parties. The motions were presented on the pleadings, affidavits, interrogatories and deposition of plaintiff in this case, as well as on the pleadings and other pertinent papers in the New York case. The trial court granted summary judgment for both defendants on the grounds, (1) that under Marchitto v. Central R.R. Co. of N.J., 9 N.J. 456, 88 A.2d 851 (1952), the complaint did not state a claim against the union on which relief could be granted; and (2) that the collective bargaining agreement conferred no individual right on plaintiff to insist that the union proceed to have his grievance processed in accordance with the union-management contract.


In Marchitto, plaintiff was a member of the Brotherhood of Railroad Trainmen, and in the employ of Central Railroad of New Jersey as a switchtender. The Brotherhood had a collective bargaining agreement with the railroad under which plaintiff claimed he was entitled to extra wages and certain seniority rights. He sued the Brotherhood for damages alleging a willful and fraudulent failure to prosecute his claims through the grievance procedure created by the contract, thereby breaching its duty of trust to him. The trial court dismissed the complaint for failure to state a cause of action and this court affirmed.

The Supreme Court opinion pointed out that the Brotherhood was an unincorporated association, having no separate existence apart from its individual members, and not suable as an entity at common law. In legal effect, the court said, plaintiff and every other member were coprincipals linked together in a joint enterprise to accomplish a common purpose with their relationships to each other and to the group being governed by the association's constitution and bylaws, and by the common law. As a member of the group plaintiff was held to be jointly responsible with all other members for the actions of the group itself, and therefore as a principal he could have no cause of action against his co-principals for the wrongful conduct of their common agent. 9 N.J., at pp. 466, 467, 88 A.2d, at pp. 856, 857.

At the time of Marchitto, New Jersey, like many other states, had a statute, N.J.S. 2A:64--1, N.J.S.A., which authorized suit against unincorporated associations consisting of seven or more persons, and having recognized names 'in any civil action affecting its common property, rights and liabilities, with the same force and effect as regards such common property, rights and liabilities as if the action were prosecuted by or against all the members thereof.' The common assets of the association were made subject to levy on a judgment obtained in such an action. N.J.S. 2A:64--3, N.J.S.A. If the judgment was unsatisfied in whole or in part, the membership remained liable as at common law. N.J.S. 2A:64--4, N.J.S.A. It was provided also that the bringing of the suit against the entity on a...

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