Hannan v. Enterprise Pub. Co.

• Decision Date: 08 November 1960
• Citation: Hannan v. Enterprise Pub. Co., 169 N.E.2d 894, 341 Mass. 363 (Mass. 1960)
• Parties: Ervin E. HANNAN v. ENTERPRISE PUBLISHING CO. et al.
• Court: Supreme Judicial Court of Massachusetts

Page 894

169 N.E.2d 894

341 Mass. 363

Ervin E. HANNAN v. ENTERPRISE PUBLISHING CO. et al.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Oct. 3, 1960.

Decided Nov. 8, 1960.

Lester S. Cramer, Boston, for plaintiff.

No argument nor brief for defendants.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTENMORE and CUTTER, JJ.

WILKINS, Chief Justice.

The plaintiff, a part time truck driver for the defendant Enterprise Publishing Co. and a member of the defendant Newspaper Guild of Brockton, brings this bill for declaratory relief. On April 9, 1953, he was ordered by his employer to go to the post office to pick up empty mail bags. He refused on the ground that 'he would go as a driver but not as a lumper,' and was discharged. The facts we recite are either admitted in the pleadings or contained in a report of material facts made by the trial judge under G.L. c. 214, § 23 (as amended through St.1947, c. 365, § 2). He found adversely to the plaintiff, who appealed from a final decree dismissing the bill.

A union-management agreement between the publishing company and the guild provided (art. IV, § 1), with an exception not now material, that no employee covered by this agreement should be discharged 'except for gross misconduct while on duty.' The plaintiff reported his discharge to the president of the guild, which took immediate action under the arbitration procedure mentioned in art. IX of the agreement. Section 3 of art. IX read: 'In the event that the publisher and the standing committee [of the guild] are unable to reach an agreement within five days of presentation of an issue, and there is not mutual agreement that this five-day period be expanded, either party may, on motion, submit the issue to arbitration providing the issue affects interpretation or application of any part of the agreement machinery for the arbitration to be set up by the publisher and the guild.'

In February, 1954, there was a hearing before an arbitrator 'agreed to by all parties.' The arbitrator found that the plaintiff's refusal to obey the order constituted 'gross misconduct,' and upheld the discharge. The trial judge's report states that there was 'nothing by way of agreement or otherwise' which on April 9, 1953, precluded the employer from assigning the plaintiff to the task he was ordered to do; that that task was similar to that performed on other occasions by part time truck drivers; that the plaintiff's refusal to obey the order constituted 'gross misconduct'; that the discharge was justified; that the guild and its officers employed their best efforts in behalf of the plaintiff, whose rights under the contract have been fully protected; and that there was no evidence to support the plaintiff's allegation of a conspiracy between the defendants to deprive him of his rights.

We construe the bill as seeking declaratory relief as to the rights of the plaintiff under the agreement. This necessarily must embrace the effect of the arbitration on those rights. It is of no consequence that the arbitration was not made the subject of a plea in bar. 'The proper office of a plea is to set forth some single fact or point, the establishment of which will defeat the suit or the part of the suit to which the plea applies.' S. Solomont & Sons Trust, Inc. v. New England Theatres Operating Corp., 326 Mass. 99, 110, 93 N.E.2d 241, 246. In the present case the hearing was of the entire case and not of such part as might have...