Fray v. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local Union No. 248

• Decision Date: 08 March 1960
• Docket Number: LOCAL,AFL-CI
• Citation: 9 Wis.2d 631,101 N.W.2d 782
• Parties: , 45 L.R.R.M. (BNA) 2903, 39 Lab.Cas. P 66,315 Michael FRAY, Appellant, v. AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA,UNION NO. 248, Respondent.
• Court: Wisconsin Supreme Court

Page 782

101 N.W.2d 782

9 Wis.2d 631, 45 L.R.R.M. (BNA) 2903,

39 Lab.Cas. P 66,315

Michael FRAY, Appellant, v. AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, LOCAL UNION NO. 248, Respondent.

Supreme Court of Wisconsin.

March 8, 1960.

Lakes & Marcuvitz, Milwaukee, for appellant.

Goldberg, Previant & Cooper, Hugh Hafer, H. L. Kastrul, Milwaukee, for respondent.

HALLOWS, Justice.

The issue presented is whether or not a union member can sue his union for negligently failing to represent him in his employment relations with his employer. The complaint alleges the plaintiff was an employee of City Dressed Beef Company and, as a member in good standing of defendant union, the defendant owed him the duty to perform with care, skill, reasonable expedience, and faithfulness all matters in which the union represented his employment interests. It is further alleged the plaintiff was unlawfully discharged by his employer on December 23, 1957, and immediately thereafter the plaintiff gave due notice of his discharge to the union; that the union was under a duty to register a formal grievance with the employer within two working days and make a formal request for arbitration within five working days, which duties the union negligently failed to perform; and, as a result of defendant's failure to act, the plaintiff lost his reinstatement rights, his seniority rights, and earnings to the extent of $14,000.

The trial court decided and the defendant argues an unincorporated labor organization has no legal entity or existence apart from that of its members, and while the union may be sued in its union name as a matter of procedure, in substance the action is against all members of the union and, because the plaintiff is a coprincipal with all other union members, he is in effect suing himself and the other coprincipals for the negligence of their common agent, which he cannot do. The defendant relies, as did the lower court, on this court's decision in Hromek v. Gemeinde, 1941, 238 Wis. 204, 298 N.W. 587. In the Hromek Case suit was for personal injuries by the plaintiff who was a member of the interpleaded defendant union which had rented a meeting room in Jefferson Hall in the city of Milwaukee from the defendant. The plaintiff had entered the hall for the purpose of attending the union meeting and tripped over a platform at the rear of the hall. Negligence of the union's officers was alleged in respect to maintaining the platform in such a location. The trial court held the plaintiff could recover from the owner of the building and the owner could have contribution against the union. On appeal this court affirmed the judgment against the owner but reversed the judgment against the union because there was no common liability owing by the union to its member, the plaintiff. In holding that a union member could not recover from the union for its negligence, this court reasoned the union was an unincorporated association having no existence apart from that of its members who were coprincipals and while a principal may sue an agent for dereliction of duty, he may not sue his coprincipals for the dereliction of their common agent.

In the Hromek Case the duty of the union was owed generally to everyone in the hall and not to the plaintiff by reason of his membership or by reason of the function of the union in the process of collective bargaining. An injured nonmember could have sued the union and stated a cause of action. The theory of imputing negligence to members of union as coprincipals was applied in a similar situation in De Villars v. Hessler, 1950, 363 Pa. 498, 70 A.2d 333, 14 A.L.R.2d 470, and recovery denied to a union member injured as a result of the negligent operation of a steam table maintained by his union at a county fair. However, the Hromek Case, or the doctrine that a union member cannot sue his union because it has no separate entity, has been followed or adopted in other situations where there existed a duty to the particular member. See Kordewick v. Brotherhood of Railroad Trainmen, 7 Cir., 1950, 181 F.2d 963, dismissing the complaint of members of a railroad union against the union for damages suffered by reason of the withdrawal of their claims against the railroad by the officers of the union; Marchitto v. Central R. Co. of N. J., 1952, 9 N.J. 456, 88 A.2d 851, involving an action by a member of the Brotherhood of Railroad Trainmen against the railroad and the union for failure of the union to prosecute wage claims and seniority rights of the plaintiff. Other cases so holding are: Roschmann v. Sanborn, 1934, 315 Pa. 188, 172 A. 657; Storms v. United Grain & Millworkers' Union, 1940, 64 Ohio App. 19, 27 N.E.2d 781; McClees v. Grand International Brotherhood, 1938, 59 Ohio App. 477, 18 N.E.2d 812; Brotherhood of Railroad Trainmen v. Allen, Tex.Civ.App., 1950, 230 S.W.2d 325; Huth v. Humboldt Stamm, 1891, 61 Conn. 227, 23 A. 1084. See also 363 Pa. 498, 70 A.2d 333, 14 A.L.R.2d 471-473.

The problem is not a question of whether the union can be sued in its common name. We have held it can be on the ground of convenience. Otherwise, all members of the union would be required to be named defendants or the procedural device of a class suit would have to be employed. See the Hromek Case and cases therein cited.

The question presented is one of substantive law, i. e., whether the union being an unincorporated association can under some circumstances be liable to one of its members for the negligence of its agent. Assuming for the purpose of argument that one who acts for a union is the common agent of its members who are coprincipals, can it be said this concept of an unincorporated association should be applied to a particular situation where the facts will not support or justify its application? A critical examination of this theory leads one to ask what are the limits and the scope that should be placed on its application when applied to modern labor unions as they exist in fact today. It would seem the essential element of the theory is that the act or the omission to act complained of should be one which can reasonably be considered as done or omitted on behalf of the injured member. To say that an agent, who willfully or negligently violates a duty to his principal, acts on his behalf would be an unwarranted extension of the agency concept and certainly out of keeping with reality. This reasoning is well explained in Bonsor v. Musicians' Union (Eng.), 3 W.L.R. 788, 3 All E.R. 518.

In several recent cases the doctrine of imputation to all members of a union was not applied and the wrongful act was not imputed to an injured member when committed in the course of an undertaking that was strictly adverse to the member's interest. In United Ass'n of Journeymen and Apprentices of Plumbing and Pipefitting Industry of United States and Canada v. Borden, Tex.1959, 328 S.W.2d 739, 742, the court held that a complaint stated a cause of action for damages by a member of a labor union for wrongfully depriving him of the right to work on a construction job when the acts alleged were willful and malicious and constituted a conspiracy. The court stated:

'This is simply another version of the agency rule that a principal is not liable for the torts committed by his agent while acting adversely to him. See 3 C.J.S. Agency § 259; Mechem on Agency, 2d ed. 1914, Vol. 2, p. 1311, § 1728.'

The Borden Case, however, made a distinction between a willful tort and the previously decided Allen Case, supra, on the ground that the Allen Case involved negligence in performing services for the benefit of the union member and other union members, and therefore the imputation of the negligence to the plaintiff union member was proper.

In Taxicab Drivers' Local Union No. 889 v. Pittman, Okl. 1957, 322 P.2d 159, 167, the imputation doctrine was not applied in a suit by a member against his union for damages for being wrongfully suspened from work at the request of the union because he would not pay a fine wrongfully levied. In answer to the contention the union was not liable for the acts of its agent because the plaintiff member was equally responsible for the wrongful conduct, the court said:

'We note, however, that in each of those cases [holding that a labor union or other unincorporated association is not liable to a member for damage caused by the association's agent] the conduct of the agent was in the performance of his duty on behalf of the association in some project from which the plaintiff could reasonably expect to benefit just as much as any other member, at the inception of the project. * * * Common sense leads inexorably to the conclusion that officers of the Union causing plaintiff to be suspended from work without pay are anything but his agents for that purpose. The contrary conclusion would smack of flagellantism, an unlikely theory upon which to determine legal liabilities. The use of the agency doctrine under these specific circumstances has no support either in reason or public policy.'

We believe there may be fact situations when it would be unjust or unrealistic to apply the Hromek Case doctrine of imputation of a...