Jennings v. M & M Transp. Co.

• Citation: 249 A.2d 631,104 N.J.Super. 265
• Decision Date: 27 January 1969
• Docket Number: No. 478,No. C--1612--67,478,C--1612--67
• Parties: , 70 L.R.R.M. (BNA) 2591 James JENNINGS, Herman Vertorano and James Lonergan, individually and on behalf of all employees of M & M Transportation Company similarly situated, as a class, Plaintiffs, v. M & M TRANSPORTATION COMPANY, a corporation authorized to do business in New Jersey, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, an unincorporated labor organization, and Truck Drivers and Chauffeurs Union Local, affiliated with the I.B. of T., C., W., & H. of A., an unincorporated labor organization, Defendants.
• Court: Superior Court of New Jersey

Page 265

104 N.J.Super. 265

249 A.2d 631, 70 L.R.R.M. (BNA) 2591

James JENNINGS, Herman Vertorano and James Lonergan individually and on behalf of all employees of M &amp M Transportation Company similarly situated, as a class, Plaintiffs, v. M & M TRANSPORTATION COMPANY, a corporation authorized to do business in New Jersey, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America an unincorporated labor organization, and Truck Drivers and Chauffeurs Union Local No. 478, affiliated with the I.B. of T., C., W., & H. of A., an unincorporated labor organization, Defendants.

No. C--1612--67.

Superior Court of New Jersey Chancery Division.

Jan. 27, 1969.

John A. Craner, Elizabeth, for plaintiffs (Craner & Brennan, Elizabeth, attorneys).

Herbert New, Jersey City, and Arthur Liberstein, New York City, of the New York Bar, for defendant M & M Transp. Co. (Brenner, New & Brenner, Jersey City, and Herbert Burstein, New York City, of the New York Bar, attorneys).

Edward A. Cohen, Newark, and Florian Bartosic, Washington, D.C., for defendant International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Beckerman & Franzblau, Newark, and David A. Previant, Milwaukee, Wis., of the Wisconsin Bar, attorneys).

Thomas L. Parsonnet, Newark, for defendant Truck Drivers and Chauffeurs Union Local 478 (Parsonnet, Parsonnet & Duggan, Newark, attorneys).

MINTZ, J.S.C.

Plaintiffs are employees of defendant M & M Transportation Company (hereinafter M & M) and also members of defendant Truck Drivers and Chauffeurs Union Local No. 478 (hereinafter Local 478). They have instituted this action to specifically enforce section 1(c)(1) of their collective bargaining agreement as interpreted by an arbitrator's award. In effect, they seek confirmation of the arbitration award. They bring this action pursuant to section 301 of the Labor Management Relations Act, 1947. 29 U.S.C.A. § 185.

Initially, plaintiffs contended that Local 478 had violated its duty of fair representation owed them, thereby entitling them to maintain this action under the doctrine of Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Since Local 478 has adopted the position of plaintiffs and cross-claims for the same relief, the issue as to whether it did in fact violate its duty of fair representation, thus giving plaintiffs standing to sue, is rendered moot.

The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter International), comprising several hundred affiliated subordinate bodies, is governed by the provisions of the International constitution. Local 478 of Newark, New Jersey, and Local 773 of Allentown, Pennsylvania, are local unions affiliated with and controlled by the International constitution. Local 478 and Local 773 have separate work contracts with defendant employer M & M, a motor carrier which maintains terminals at Newark, New Jersey, and Allentown, Pennsylvania, and which is engaged in the transportation of property in interstate commerce.

Local 773 and M & M are parties to the 1964--1967 and 1967--1970 National Master Freight Agreement and to the Central Pennsylvania Over-The-Road Motor Freight Supplemental Agreement which cover a multi-union, multi-employer bargaining unit. When M & M opened its Allentown Terminal in 1962, members of Local 773 were assigned deliveries and/or pickups for M & M in New Jersey west of Route 206. Local 773 had been performing such work in New Jersey for other employers for over 25 years.

Local 478 and M & M were parties to a 1964--1967 collective bargaining agreement which, in part, sets out those areas in which Local 478 would perform company work. In 1967 Local 478 allegedly learned for the first time that Local 773 had been making deliveries and/or pickups in New Jersey west of Route 206. Thereupon Local 478 filed a grievance with M & M which was processed to arbitration under section 16 of the Local 478--M & M contract. Local 478 and its employer, M & M, were the only parties who appeared before the arbitrator, Daniel House. The precise issue presented was:

'Is the Employer violating the Agreement by making deliveries and/or pickups in certain New Jersey points through Employer's Allentown terminal? If so, what shall be the remedy?'

The arbitration award, rendered July 7, 1967, held that M & M was in violation of its 1964--1967 collective bargaining agreement with Local 478 by permitting its Allentown Terminal employees to make deliveries and/or pickups in New Jersey in the area in which Local 478, by contract, was entitled to the work Significantly, the arbitrator made the following further conclusion in his opinion and award:

'Dispute Between Local 478 and Local 773

It is possible that the events involved in this case or events following the Arbitrator's Award in this case could lead to a jurisdictional dispute; but no such dispute is before the Arbitrator here. The only dispute before the Arbitrator in this case is the alleged contract violation spelled out in the submission agreement recited at the beginning of this Opinion. The Arbitrator has the authority and the obligation under the terms of the current Agreement between the parties to decide that dispute.'

Following the rendition of the award Local 773, pursuant to article XII, section 12 of the International constitution, properly filed a jurisdictional dispute claim with the general executive board of International, asserting that past practice dictated that Local 773 was entitled to the work assignment in dispute. Article XII, section 12 of the International constitution expressly provides that where two or more local unions are in dispute concerning jurisdiction, there shall be no work stoppage of the involved operation but such controversy shall be submitted to International for determination. A complete hearing was held by International, with both Local 478 and Local 773 participating. The employer, M & M, though not a party to such proceeding, indicated its willingness to be bound by whatever decision was forthcoming.

On January 26, 1968 the general executive board of International adopted the recommendations of the hearing panel and held that Local 773 was entitled to perform the work in question. M & M, which had previously adhered to the arbitrator's award by assigning only employees of Local 478 to the disputed work, now reversed this practice, affirmed its prior statement to be bound by International's determination, and reassigned the work to Local 773. On February 19, 1968 plaintiffs instituted the present action.

The 1964--1967 contract between Local 478 and M & M expired on August 31, 1967, over a month after the arbitrator's award was promulgated and prior to the conflicting jurisdictional determination by International. Local 478 subsequently became a party to the 1967--1970 National Master Freight Agreement and the New York-New Jersey Supplement. After the decision by International and the institution of this suit, Local 478 entered into the 1967--1970 rider to that agreement which contained language identical to section 1(c)(1) of the original contract. Plaintiffs argued that Local 478 relied upon arbitrator House's interpretation of section 1(c)(1) when it entered into the rider agreement, but no testimony was offered in support of same. International asserted that Local 478 and M & M negotiated the rider agreement with full knowledge of the jurisdictional award and that such award became an implied term of the contract, or at the very least precluded Local 478 from negotiating any contractual provision in conflict with the jurisdictional award. However, it appears that in executing the rider agreement Local 478 did not intend to be bound by the jurisdictional award. The fact that the rider agreement using the identical language contained in the earlier agreement was executed after the institution of this suit is not persuasive in resolving the issues presented in this litigation.

It was urged that Local 773 is an indispensable party to this proceeding, and not having been joined, the action should be dismissed. Whether a party is indispensable depends upon the circumstances of the particular case. As a general proposition, a party is not truly indispensable unless he has an interest inevitably involved in the subject matter before the court and a judgment cannot justly be made between the litigants without either adjudging or necessarily affecting the absentee's interrest. Allen B. DuMont Labs, Inc. v. Marcalus Mfg. Co., 30 N.J. 290, 298, 152 A.2d 841 (1959). The nature and character of the claim in an action determines the identity and classification of the parties as necessary or indispensable. Insurance Company of North America v. Allied Crude Vegetable Oil Refining Corp., 89 N.J.Super. 518, 215 A.2d 579 (Ch.Div.1965). The gravamen of plaintiffs' suit and that of the cross-claimant, Local 478, is to specifically enforce a provision in a collective bargaining agreement as interpreted by the arbitrator's award. As already stated, they in effect seek confirmation of that award.

Local 773 was not a party to that collective bargaining agreement nor was it a party to the arbitration proceeding. It is, of course, interested in the outcome of this litigation. However, as already noted, the arbitrator expressly refrained from considering the possible jurisdictional dispute between Local 478 and Local 773 that did in fact follow his award. Consequently, his award did not purport to be a final adjudication of Local 773's conflicting claim. In this view, Local 773 is not an indispensable party in this proceeding.

It was further asserted that N.J.S.A. 2A:24--7 provides that a party to an arbitration award may within three months after the award is delivered to him commence a summary action for the confirmation of the award. In the instant case the arbitrator's award was rendered on July 7, 1967,...