Rodgers v. O'Connell

• Decision Date: 23 February 1962
• Parties: John W. RODGERS, Plaintiff, v. Joseph O'CONNELL, individually and as President, Al Tighe, individually and as Secretary Treasurer, and Arthur Kroner, individually and as Financial Secretary of Beer Driver's Union, Local 323, International Brotherhood of Teamsters, Defendants.
• Court: New York Supreme Court

Page 1004

224 N.Y.S.2d 1004

34 Misc.2d 62

John W. RODGERS, Plaintiff, v. Joseph O'CONNELL, individually and as President, Al Tighe individually and as Secretary Treasurer, and Arthur Kroner individually and as Financial Secretary of Beer Driver's Union, Local 323, International Brotherhood of Teamsters, Defendants.

Supreme Court, Special Term, Bronx County, Part I.

Feb. 23, 1962.

Philip C. Schiffman, New York City, for plaintiff.

I. Philip Sipser, New York City (Richard A. Weinmann, New York City, of counsel), for defendants.

NATHANIEL T. HELMAN, Justice.

This is a motion under rules 106 and 107 of the Rules of Civil Practice to dismiss the complaint on the grounds that the complaint does not state facts sufficient to constitute a cause of action, and on the grounds that the court does not have jurisdiction of the subject of the action.

The complaint alleges three causes of action; the first cause alleges that plaintiff was laid off improperly because defendant union failed to invoke the layoff procedure required by the contract between his union and employer, resulting in damages to plaintiff amounting to $4000.00 in earnings, and preventing plaintiff from enjoying full rights in defendant union pension fund.

The second cause of action alleges that the defendant union has wrongfully and improperly excluded 13 names of trailer jockeys and drivers from the seniority list of the Jacob Ruppert Keg Delivery Department and that said exclusion deprived the plaintiff of his rightful position on the aforesaid seniority list, since the 13 individuals with less seniority than plaintiff continues to enjoy employment while the plaintiff is without employment for the most part.

The third cause of action alleges that the defendant union has wrongfully and improperly and in derogation of the collective bargaining agreement, recalled employees with a lower classification of seniority than Group I employees, and that said wrongful and improper act of the defendant union is depriving plaintiff from enjoying full rights in defendant union and causing plaintiff to sustain damages by way of loss of earnings; that irreparable damage will continue to be sustained by plaintiff unless defendant is restrained.

The plaintiff demands judgment compelling defendant union to properly invoke the layoff procedure of the bargaining agreement; directing defendants to correct the seniority list so as to include the employees excluded therefrom; compelling defendants to recall to employment employees as provided by the bargaining agreement; restraining the individual defendants and any other office of defendant union from taking any action contrary to the rights of the plaintiff; granting the plaintiff judgment for his loss of earnings.

This motion is directed in general against all defendants and on the entire complaint. If the action is good as to any of the defendants on any of the causes of action the motion must be denied. (Log Cabin Rest. Inc. v. Alpine Wine & Liquor Corp., 280 App.Div. 943, 116 N.Y.S.2d 9; Courtney v. Marcus Loew Booking Agency Inc., Sup., 125 N.Y.S.2d 224, affd. 283 App.Div. 867, 129 N.Y.S.2d 915).

In paragraph 'Fifth' of the Complaint, which is repleaded by reference in the second and third cause of action, plaintiff pleads that he has complied in all respects with the constitution, by-laws and regulations of the defendant union.

Section 14 of Article XVIII of the International Constitution provides for exhaustion of remedies on the part of any aggrieved member before resorting to the courts.

In Brignola v. Barbieri, 11 A.D.2d 893, 20o N.Y.S.2d 370, the court held that 'the only allegation * * * in this respect is that the plaintiff 'has exhausted all of his available remedies' under the International Constitution and local by-laws. But there is no factual averment that plaintiff has done anything to review within the union the acceptance by the local of charges against him'.

Again, in Saint v. Pope, 12 A.D.2d 168, at 175, 211 N.Y.S.2d 9, at 15, the court stated 'The union constitution constituted a contract between plaintiff...