Unkovich v. N.Y. Cent. R. Co., 97/244.

• Decision Date: 14 March 1934
• Docket Number: 97/244.
• Citation: 16 A.2d 558,128 N.J.Eq. 377
• Parties: UNKOVICH et al. v. NEW YORK CENT. R. CO. et al.
• Court: New Jersey Court of Chancery

16 A.2d 558

128 N.J.Eq. 377

UNKOVICH et al.

v. NEW YORK CENT. R. CO. et al.

97/244.

Court of Chancery of New Jersey.

March 14, 1934.

Syllabus by the Court.

1. Senior comprehends one older in office, or whose entrance upon an office was anterior to that of another.

2. A custom or usage, before its benefits can be invoked, must be proved to exist; it must be established, known, certain, uniform, reasonable and not contrary to law.

Suit by Anthony Unkovich and others against the New York Central Railroad Company and the Lighter Captains' Union of the Port of New York and Vicinity, Local 996, International Longshoremen's Association, to compel defendants to recognize plaintiffs' seniority rights as members of the lighter or barge craft in the marine department of the railroad company and to reinstate plaintiffs on the active list of such craft.

Decree dismissing bill of complaint advised.

Decree affirmed 117 N.J.Eq. 20, 174 A. 876.

Pesin & Pesin, of Jersey City, for complainants.

Wall, Haight, Carey & Hartpence, of Jersey City, for defendant New York Cent. R. Co.

Saul Nemser, of Jersey City, for defendant Local 996.

EGAN, Vice Chancellor.

The complainants, eleven in number, are employed in the Marine Department of the defendant, the New York Central Railroad Company. That department of the railroad service appears to consist of two several crafts—(1) the tug, or float craft; and (2) the lighter, or barge, craft. These complainants at various times, in the year 1915, in the years 1920, 1921, 1922 and 1926, entered the railroad company's marine service in the tug, or float craft. Subsequently, in, or about, the year 1926, they were transferred from the tug, or float, craft to the lighter, or barge, craft. They remained in this latter service until sometime in April, 1931, when nine of them were withdrawn, or suspended therefrom. They, thereupon, complained about their suspension to Howard C. Forbes, a delegate, or representative, of the defendant, the Lighter Captains' Local 996 of the International Longshoremen's Association, of which union they were members; and Forbes, without direction from the said union, as he stated, and independently of it, conferred with Leroy Relyea, an official, or representative, of the railroad company, about the question of the complainants' suspension from service. The day following this conference, the suspended complainants were reinstated, or returned, to active service—they had been absent therefrom four days.

They then continued in service until January 13, 1933, when they were again suspended or "laid-off". At the same time, other employees, longer in the lighter craft service, but with less years in service in the Marine Department, were not disturbed and were kept on the active list in the lighter, or barge, craft. Complainants insist they should have been retained and preferred over the others who, though they concede them to be their seniors in the lighter, or barge, craft, are their juniors in years of entire service in the Marine Department. They maintain that their total years of combined tow and lighter craft service endowed them with these "senior rights". This conclusion the defendants ignored and complainants now urge they should be compelled to respect it because of (1) custom; (2) the "Stone Award"; and (3) agreement. These conclusions, the defendants say, are without warrant of fact or of law. They say that the tow, or float, craft never carried seniority rights; and that rights of seniority did not attach to complainants until after they became associated with the lighter, or barge, craft—only then and there.

Senior comprehends "one older in office, or whose entrance upon an office was anterior to that of another." State v. Hueston, 44 Ohio St. 1, 4 N.E. 471, 474.

Where in this case does an instance of (1) custom appear to have been successfully invoked to support seniority rights of complainants, or any other employee of the railroad company? It is not in the testimony. The record does not disclose that such custom existed while any of the complainants were in the tow craft. Complainants produced witnesses Relyea and Forbes who testified a tow boat captain could at any time, at will, dismiss an employee from service in the tow craft. Masten (a complainant) testified (page 57 of testimony) :

"Q. And you had been in service in the tug division since 1920, and I suppose that there were men in the towing division who came into service after you did. That's between 1920 and 1926, is that right? A. I suppose there was.

"Q. And those men continued to work on their tugs when your tug was laid up, is that right? A. Yes.

"Q. Did you seek to displace any of those junior men? A. There was no such thing as bumping men. The captains could hire their own men at that time.

"Mr. Pesin. What?

"The Witness. The captains could hire their own deckhands at that time.

"The Court. When was that?

"The Witness. In 1926.

"Mr. Pesin. That was on the tugs and floats ?

"The Witness. Yes.

"Mr. Pesin. That's all."

Certainly testimony of this character by complainants' witnesses does not tend to support the contention of complainants—the effect is quite the reverse. A custom or usage, before its benefits can be invoked, must be proved to exist; it "must be established, known, certain, uniform, reasonable, and not contrary to law." Steward and Metier v. Scudder, 24 N.J.L. 96; Barton v. McKelway, 22 N.J.L. 165; Greenleaf, vol. 2, par. 251. The testimony shows no custom or usage whatever.

The fact that when nine of these complainants were withdrawn, or suspended, from service in April, 1931, and after a conference between Relyea, an official of the railroad company, and Forbes, a representative of the defendant union (who denied he conferred in his capacity of union delegate), were reinstated, carries no probative force of the existence or the recognition of seniority rights. I cannot find as a fact the railroad company, in substance or otherwise, declared "you have rights of seniority which we recognize, and because of those rights, we reinstate you." The evidence permits no such inference; it does not disclose the reason for the dismissal, nor does it state why the men returned to service; it simply shows that the railroad company restored them to active employment. Why it did so, is not apparent to me and, therefore, I can draw no conclusion.

Relyea, the railroad official with whom Forbes, the complainants' representative, conferred, and Forbes, both testified on behalf of the complainants as to the incident of the dismissal and reinstatement; neither of them stated that the men were returned to work because of the recognition of seniority rights by either the union or the railroad company. In fact, Forbes, testifying for complainants, said they had no seniority rights "for tow boat men" under the (2) "Stone Award" (page 4 of testimony). The contention of the complainants that the April, 1931, dismissal, followed by reinstatement, was an acknowledgment of seniority rights, and the observance of a custom to hold employees who were senior in point of service, is without weight; the sole act of reinstatement in itself does not establish usage or custom. Our courts say that "usage cannot be proved by isolated instances, but must be so certain, uniform, and notorious that it must be presumed to have been understood by the parties as entering into and constituting a part of the contract." Steward and Metier v. Scudder, supra.

Complainants say that (2) the "Stone Award" favored and created seniority rights for complainants. This frequently discussed "Stone Award" carries the date of March 7, 1919; it regulated the pay and working conditions of employees in the Marine Service of railroads under the jurisdiction of the United States, or Federal, Railroad Administration, in New York Harbor; the chairman of the Railroad Administration was A. J. Stone. It, among other things, provided: "This schedule becomes effective as of March 1st, 1919, and provided Federal control continues, will remain in full force for one year and thereafter until thirty days notice is given by either party of a desire to change. No change will be made until approved by the proper officer, and the duly authorized committee representing the employees shall have been heard. In filling a vacancy, qualifications being equal, seniority will prevail."

Under its terms it was to exist for a period of one year, or until March 1, 1920—provided Federal control continued. The Federal government has long since relinquished its control and returned the railroads to private ownership. The "Stone Award" presents a rule for filling vacancies. I have no warrant or power to read into it, or into the contract of employment of these complainants with the railroad company, any terms or conditions not calculated or comprehended by the parties, which does not properly belong there. I may interpret, but I cannot add. There is no evidence in the case which shows that the "Stone Award" rule...