On appeal from the Law Division of the Superior Court, certified by the Supreme Court on its own motion.
For affirmance as to the defendant Brotherhood of Railroad Trainmen and reversal as to the defendant Giles -- Chief Justice Vanderbilt, and Justices Heher, Oliphant and Wachenfeld. For affirmance as to the defendant Brotherhood of Railroad Trainmen, reversal as to the defendant Giles and for remand with direction that the cause be retained but further proceedings therein be stayed at the trial level pending the final outcome of the plaintiff's proceeding against the Central Railroad Company of New Jersey before the National Railroad Adjustment Board -- Justice Burling. The opinion of the court was delivered by Vanderbilt, C.J.
[9 NJ Page 460] This action was instituted by the plaintiff against the Central Railroad Company of New Jersey by which he is employed as a switchtender, The Brotherhood of Railroad Trainmen of which he is a member in good standing, and Dennis A. Giles, the chairman of the general grievance committee of the Brotherhood. The action arose
out of claims for extra wages and seniority rights made by the plaintiff against the railroad and the failure of the brotherhood and Giles to prosecute the claims, some of which are now over 13 years old.
The plaintiff's complaint contains six counts. In the first count it is alleged that under the terms of a collective bargaining agreement entered into between the railroad and the brotherhood the plaintiff as an employee of the railroad and a member of the brotherhood, was entitled to certain extra wages in the amount of $35,000 for services performed from April 14, 1938 to January 4, 1950, which the Railroad refused to pay. Judgment against the railroad in the sum of $35,000, together with interest, is demanded. The second count states that the railroad failed to recognize certain seniority rights alleged to have been assured him by the collective bargaining agreement as the consequence of which the plaintiff was laid off from January 5, 1950, to November 23, 1950. Claim is made against the railroad for the loss of $5,000 in earnings, together with interest. The third count charges that by reason of his membership the brotherhood undertook to prosecute his claim against the railroad for wages due him under the collective bargaining agreement but that it willfully neglected and failed to do so diligently and properly, thereby breaching its duty of trust to him, as the result of which his claim against the railroad has been jeopardized and may be lost. Damages are demanded against the brotherhood in the sum of $35,000, together with interest. In the fourth count the plaintiff alleges that Giles had the duty as the agent of the brotherhood and representative of the plaintiff to prosecute the plaintiff's claim for extra wages but that he negligently, willfully and fraudulently failed to do so, thereby violating his duty to the plaintiff. Damages against Giles in the sum of $35,000, together with interest, are demanded. In the fifth count the plaintiff seeks judgment in the sum of $5,000, together with interest, against both the brotherhood and Giles on the ground that they caused him to be deprived of the seniority rights to which he was entitled under the
collective bargaining agreement as the result of which he suffered a loss of earnings. The sixth count charges that the railroad, the brotherhood and Giles, acting jointly and severally, deprived him of the extra wages and seniority rights to which he is entitled and demand is made for judgment against them, both jointly and severally, in the sum of $40,000, together with interest.
The complaint as against the railroad was ordered stricken by the trial court on the grounds that the National Railroad Adjustment Board created by the Railway Labor Act, 45 U.S.C., § 151 et seq., was vested with exclusive jurisdiction over disputes between an employee and a carrier "growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions." On a separate appeal this order of the trial court was affirmed by the Appellate Division of the Superior Court, Marchitto v. Central R. Co. of N.J., 18 N.J. Super. 163 (1952), certification denied, May 19, 1952.
The brotherhood and Giles both moved to strike the complaint as to them on the grounds (1) that the court lacked jurisdiction over the subject matter, the same being vested exclusively in the National Railroad Adjustment Board; (2) that the complaint failed to state a cause of action; and (3) that the plaintiff had failed to exhaust his administrative remedies as provided by the constitution of the brotherhood. In the alternative they requested that the court hold the complaint as to them in abeyance pending the determination of the plaintiff's appeal from the order striking the complaint as to the railroad. Following the submission of sharply conflicting affidavits the trial court granted the defendants' motion and struck the balance of the complaint, stating that:
"* * * This action against the defendants Brotherhood of Railroad Trainmen and Dennis A. Giles is prematurely brought. Until the National Railroad Adjustment Board hears the matter involving the violation of the rights of the plaintiff by the Central Railroad of New Jersey, and renders its decision, the plaintiff cannot be said to have sustained any loss chargeable to the defendants Brotherhood of Railroad Trainmen and Dennis A. Giles."
The judgment of dismissal, however, provided in addition that the action was being dismissed as against these defendants "for lack of jurisdiction over the subject matter." From this judgment the plaintiff appealed to the Appellate Division of the Superior Court and while there pending, we certified the appeal here on our own motion.
An appellate court is necessarily concerned with the propriety of the action appealed from rather than with the reasons advanced by the court below in support thereof, Procacci v. U.S. Fire Insurance Co., 118 N.J.L. 423, 427 (E. & A. 1937); National Surety Co. v. Clement, 133 N.J.L. 22 (E. & A. 1945); Hughes v. Eisner, 8 N.J. 228 (1951). Accordingly, on this appeal we must consider whether any of the grounds ...