Hiller v. Liquor Salesmen's Union Local No. 2

• Citation: 338 F.2d 778
• Decision Date: 02 December 1964
• Docket Number: No. 97,Docket No. 29030.,97
• Parties: Roger L. HILLER and Kenneth A. Hiller, Administrators of the Estate of Louis L. Hiller, deceased, Plaintiffs-Appellants, v. LIQUOR SALESMEN'S UNION LOCAL NO. 2, Popper-Morson Corporation and The American Distilling Company, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

338 F.2d 778 (1964)

Roger L. HILLER and Kenneth A. Hiller, Administrators of the Estate of Louis L. Hiller, deceased, Plaintiffs-Appellants, v. LIQUOR SALESMEN'S UNION LOCAL NO. 2, Popper-Morson Corporation and The American Distilling Company, Inc., Defendants-Appellees.

No. 97, Docket No. 29030.

United States Court of Appeals Second Circuit.

Argued October 6, 1964.

Decided December 2, 1964.

Dora Aberlin, New York City, for appellants.

Victor Feingold, New York City, for appellee Union.

Simon Rosenzweig, William Rosenfeld, New York City, for appellee American Distilling Co., Inc. Irving J. Seaver, Van Buren, Schreiber & Kaplan, New York City, for appellee, Popper-Morson Corp.

Before LUMBARD, Chief Judge, and HAYS and ANDERSON, Circuit Judges.

HAYS, Circuit Judge:

Plaintiffs are the administrators of the estate of Louis L. Hiller. The complaint in the action alleges, in effect, that Hiller was unlawfully discharged in 1959 from his employment with The American Distilling Company, Inc. and in 1960 from his employment with Popper-Morson Corporation, and that these discharges were with the knowledge, consent and connivance of the Liquor Salesmen's Union, Local No. 2, of which Hiller was a member in good standing, that Hiller was unlawfully deprived of certain disability insurance and other benefits, that during his employment by Popper-Morson, Hiller was paid less than the salary provided for in the collective bargaining agreement between Popper-Morson and the Union, that this was with the Union's knowledge, consent and connivance, that The American Distilling Company, Inc. coerced Hiller into accepting a compromise of certain rights to commissions and seniority rights, and into signing a letter of resignation, all in violation of the collective bargaining agreement and all with the knowledge, consent and connivance of the Union. The plaintiffs demand damages totalling $48,690.

In the district court, the defendants moved for a stay pending arbitration and their motion was granted. 226 F.Supp. 161 (1964). This was error.

However inartistically stated, the amended complaint seeks to set forth a claim based upon denial by the Union of the right of fair representation. See Syres v. Oil Workers Int'l Union, 350 U. S. 892, 76 S.Ct. 152, 100 L.Ed. 785, reversing per curiam 223 F.2d 739 (5th Cir. 1955); Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952); Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944); Steele v. Louisville & N. R.R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944); cf. Ford Motor Co. v. Huffman, 345 U.S. 330, 337, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). When as is alleged here an employer joins with the union to defraud the employee of his rights, both union and employer are liable. See Ford Motor Co. v. Huffman, supra; Steele v. Louisville & N. R.R., supra; Richardson v. Texas & N. O. R.R., 242 F.2d 230 (5th Cir. 1957); Central of Georgia Ry. v. Jones, 229 F.2d 648 (5th Cir.), cert. denied, 352 U.S. 848, 77 S.Ct. 32, 1 L.Ed. 2d 59 (1956).

It is true that the collective bargaining agreements contain arbitration clauses and that if this were simply a suit for wrongful discharge, the arbitration...