Donnelly v. United Fruit Co.

• Decision Date: 09 July 1962
• Docket Number: No. A--448,A--448
• Citation: 75 N.J.Super. 383,183 A.2d 415
• Parties: Francis A. DONNELLY, Plaintiff-Appellant, v. UNITED FRUIT COMPANY, a corporation of the State of New Jersey, and Brotherhood of Marine Officers, Local 13212, District 50, United Marine Workers of America, an unincorporated association, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 383

75 N.J.Super. 383

183 A.2d 415

Francis A. DONNELLY, Plaintiff-Appellant, v. UNITED FRUIT COMPANY, a corporation of the State of New

Jersey, and Brotherhood of Marine Officers, Local 13212,

District 50, United Marine Workers of America, an

unincorporated association, Defendants-Respondents.

No. A--448.

Superior Court of New Jersey

Appellate Division.

Argued June 11, 1962.

Decided July 9, 1962.

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

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

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

Before Judges GOLDMANN, FREUND and FOLEY.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Plaintiff appeals from a Law Division order granting defendants' motions for summary Defendant United Fruit Company (hereinafter United) employed plaintiff as a junior assistant purser from May 7, 1951 to April 7, 1955, except when he was on standby status, vacation or sick leave. During this period plaintiff was a member of defendant Brotherhood of Marine Officers, Local 13212, District 50, United Mine Workers of America (hereinafter the Brotherhood or union).

judgment. The opinion of the trial court is reported at 70 N.J.Super. 370, 175 A.2d 494 (Law Div.1961).

On April 7, 1955 United notified plaintiff, who had just finished a voyage as junior assistant purser aboard the S.S. Fra Berlanga, that his services would no longer be required. The next day plaintiff called on Edward J. Farr, secretary-treasurer of the union, informed him of the dismissal, and requested that the union take the necessary steps to have him reinstated under the terms of the collective bargaining agreement between United and the union, dated October 30, 1953.

The agreement reads, in part, as follows:

'ARTICLE I

Recognition

The Company agrees to recognize the Brotherhood as the exclusive representative for all the Staff Officers employed on the American flag vessels operated by the Company for the purpose of collective bargaining with respect to wages, hours, and other conditions of employment.

ARTICLE V

Employment and Transfer

(d) Nothing in this Article shall prevent the orderly termination by the Company of the employment of any of the Staff Officers covered by this Agreement from time to time as may be necessary due to the vessels being sold or taken out of active service, nor shall it prevent the discharge of any employee for cause.

Grievance and Arbitration

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:

Matters 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.'

Farr personally investigated plaintiff's claim, as well as United's contention that the discharge had been for cause. It appears that he discussed the termination of plaintiff's employment with captains of the ships on which plaintiff had worked, with Captain Foster, a vice-president of the union, and with representatives of United who fully explained the reasons for the discharge. In addition, Farr and Captain Foster met with two representatives of United, thoroughly discussed plaintiff's dismissal, and concluded that United had justifiably terminated the employment for cause. Satisfied that plaintiff had no just grievance, the union did not further press the matter. Arbitration was not requested.

Plaintiff insists there was no cause for dismissal since his service record with United containing nothing which would adversely reflect upon his character or the manner in which he had discharged his duties. He says that when he saw there was no possibility of having his discharge arbitrated, he agreed with Farr to submit his resignation to United. The letter of resignation was submitted September 28, 1955, but was dated April 7, 1955, the day of plaintiff's discharge.

Plaintiff admitted on deposition that United had done nothing to induce him to submit his resignation. He places responsibility for the resignation on Farr, the union official. In one of his affidavits he states:

'* * * I submitted the resignation contingent upon obtaining from defendant United Fruit Company a good recommendation for future employment. The said Edward J. Farr agreed to ask for such good recommendation. Also, I directed Mr. Farr to bring my resignation back, if the desired recommendation could not be obtained.'

On November 2, 1955 United gave plaintiff a letter of recommendation which he considers unsatisfactory because it stated merely that he had been 'sober and trustworthy in the handling of Company funds and supplies.'

Before instituting his present action, plaintiff brought a declaratory judgment proceeding in the New York Supreme Court against United only. He there requested judgment: (1) declaring that he was not dismissed for inefficiency and insolence to the ship's master; (2) that United's records be conformed with its official log books and voyage reports to show that his conduct and efficiency were 'very good'; (3) restraining United from representing that he was discharged for inefficiency and insolence to the ship's master; (4) in the event that the court declared the discharge to have been without just cause, damages for loss of earnings suffered, and (5) incidental relief. United moved for summary judgment. The trial judge denied the motion, but on appeal this was reversed. Donnelly v. United Fruit Co., 4 App.Div.2d 855, 166 N.Y.S.2d 392 (App.Div.1957). The Appellate Division, in a brief Per curiam opinion, held:

'* * * The pleading and affidavits established that the relationship of master and servant terminated prior to the commencement of this action and plaintiff does not seek the revival thereof. There is no necessity for resort to a declaratory judgment because no disputed jural relation will be stabilized or clarified * * *. Furthermore, a threatened libel will not be restrained. * * * The order appealed from therefore is reversed and defendant's motion for summary judgment granted. This disposition is without prejudice to any other remedies of which plaintiff may be advised. * * *' (cited cases omitted)

Plaintiff took no appeal in New York, but filed the instant complaint in the Law Division on November 18, 1958. The suit was removed to the U.S. District Court. After defendants had filed their answers, plaintiff was permitted to file an amended complaint. Defendants answered the amended pleading. The federal judge then remanded the case to the state court, where the matter was pretried.

The amended complaint contains five counts, but the fifth--against the union for wrongful expulsion--has not been pressed. The first four counts may be summarized as follows: (1) against United for wrongful discharge, in violation of the collective bargaining agreement; (2) against United for failing and refusing to arbitrate plaintiff's claim pursuant to the agreement; (3) against the union for wrongfully and wilfully failing and refusing to arbitrate the discharge and to enforce compliance with the applicable provisions of the agreement, all in breach of its obligations under the agreement, and (4) against both defendants for their inducing plaintiff to resign from his employment by means of a promise, never fulfilled, that United would withdraw its discharge, conform its records respecting plaintiff's conduct and efficiency with its official log books, and give him a letter of recommendation conforming to the log books.

Following the pretrial conference plaintiff moved for summary judgment, relying upon the pleadings, affidavits, interrogatories, papers submitted in the New York action, and the collective bargaining agreement. Defendants then filed cross-motions for summary judgment on the basis of the pleadings, affidavits, plaintiff's depositions and other supporting papers.

The trial judge held that plaintiff's claims against defendant Brotherhood were barred by the decision in Marchitto v. Central R. Co. of N.J., 9 N.J. 456, 88 A.2d 851 (1952) (Marchitto II). He further concluded that 'the agreement between the union and United conferred no individual rights upon plaintiff which could set in motion the machinery of arbitration, and consequently there could be no breach of a nonexistent right.' (70 N.J.Super., at page 380, 175 A.2d 494) Accordingly, the Law Division judge granted defendants' motions for summary judgment.

I

Defendants contend that the judgment entered in the prior New York proceedings is Res judicata of the present action. The doctrine of Res judicata is applicable where a judgment in a prior proceeding, involving the same parties and the same subject matter, has settled their dispute on the ultimate merits. Central R.R. Co. v. Neeld, 26 N.J. 172, 139 A.2d 110 (1958), certiorari denied 357 U.S. 928, 78 S.Ct. 1373, 2 L.Ed.2d 1371 (1958).

The New York action, in the words of the trial judge there, was for a declaratory judgment 'to clear the (plaintiff's) record and to recover incidental damage for loss of salary.' A declaratory judgment may serve as the basis for a plea of Res judicata as to issues actually raised and litigated. Borchard, Declaratory Judgments (2d ed. 1941), pp. 438--439; Restatement, Judgments, § 77, p. 342 ...