Convery, J.c.c. (temporarily assigned).
This is an action by plaintiff against his former employer, United Fruit (hereinafter referred to as United) and the Brotherhood of Marine Officers, Local 13212 (hereinafter referred to as the union) of which he is a former member. Each party has moved for summary judgment. The plaintiff has charged both defendants with wrongfully refusing to arbitrate his claim, and United with wrongful discharge.
Plaintiff, Francis A. Donnelly, was first hired by United in May 1951, and thereafter was employed from time to time during the period from May 7, 1951 to April 7, 1955 as a purser, to serve on voyages on various vessels operated by United. On April 7, 1955, at the end of a voyage on the S.S. Fra. Berlanga , United notified plaintiff that his services would no longer be required. At the time of the termination of plaintiff's employment there was in existence a written collective bargaining agreement dated October 30, 1953, the parties to which were the union and United. Plaintiff was a member of the union.
In November 1956 plaintiff instituted an action in the Supreme Court of New York against United seeking a declaratory judgment that (a) he was not discharged for inefficiency and insolence; (b) United's records be corrected accordingly; (c) United be enjoined from stating or representing that he was discharged for inefficiency and insolence; (d) in the event of a finding that he was discharged without just cause in violation of the collective bargaining agreement, that the court award him damages; and (e) the court
award him such other relief as might be proper. United made a motion upon the pleadings seeking a judgment dismissing the complaint on the merits. The trial court denied United's motion and upon appeal that determination was reversed by the Appellate Division "without prejudice to any other remedies of which plaintiff may be advised." Donnelly v. United Fruit Company , 4 A.D. 2 d 855, 166 N.Y.S. 2 d 392, 393 (Sup. Ct. 1957).
In this action United asserts that it properly terminated plaintiff's employment since the same was terminable at will with or without cause after any voyage; that the collective bargaining agreement did not require it to make any term contracts with plaintiff, but at most required it to observe seniority and not to discharge him without cause; that even if the termination were improper, plaintiff is barred within the meaning of the collective agreement and has no right to enforce said agreement; and that the submission of his resignation bars this action. United further asserts that the facts relied upon by plaintiff here are substantially the same as those relied upon in the New York action, and the issues as between it and plaintiff are substantially identical with those already settled by the determination of the New York court and hence the matter is res adjudicata.
The defendant union asserts that plaintiff has no standing to maintain this suit against his union, and that it was not required to prosecute to arbitration plaintiff's claim of wrongful discharge.
Each defendant has urged that the prior proceedings in the New York Supreme Court bar the present action, the matter being res adjudicata. The Appellate Division decision unanimously reversing that of the Special Term is a short memorandum and in full reads as follows:
"Order unanimously reversed. No opinion. Motion for summary judgment granted. The pleadings and affidavits establish that the relationship of master and servant terminated prior to the commencement of this action and plaintiff does not seek the revival thereof. There is no necessity for resort to a declaratory judgment
because no disputed jural relation will be stabilized or clarified. (Somberg v. Somberg , 263 N.Y. 1, 188 N.E. 137; Segal v. Associated Agents of Am. Inc. Sup. , 91 N.Y.S. 2 d 49, affirmed without opinion, 276 App. Div. 896, 94 N.Y.S. 2 d 820). Furthermore, a threatened libel will not be restrained. (Marlin Firearms Co. v. Shields , 171 N.Y. 384, 64 N.E. 163, 59 L.R.A. 310). The order appealed from therefore is reversed and defendant's motion for summary judgment granted. This disposition is without prejudice to any other remedies of which plaintiff may be advised. Settle order on notice."
In that action plaintiff prayed for a declaration that he was not discharged for inefficiency and insolence to the ship's master and for certain injunctive relief. The length of the opinion makes its definitive analysis difficult. The court denied the declaratory judgment because plaintiff was no longer an employee of United, and refused to restrain the threatened libel. The court also decided that its disposition was "without prejudice to any other remedies of relief which plaintiff may be advised." In view of the brevity of the opinion, and the concomitant speculative interpretations as to its effect, the New York judgment should not bar the present proceedings and plaintiff should have a full and final disposition on the merits of his claim.
The defendant union has urged that plaintiff has no standing to bring an action against it, positing this defense upon the theory announced in Marchitto v. Central R. Co. of N.J. , 9 N.J. 456 (1952). See also Goins v. Missouri Pacific Systems , 272 F.2d 458 (8 Cir. 1959); Martin v. Curren , 303 N.Y. 276, 101 N.E. 2 d 683 (Ct. App. 1953); Saint v. Pope , 12 A.D. 2 d 168, 211 N.Y.S. 2 d 9 (App. Div. 1961). Cf. DiMaio v. Local 80- A United, etc. C.I.O. , 29 N.J. Super. 341 (Law Div. 1954). The rule of these cases, as succinctly stated by Chief Justice Vanderbilt in Marchitto , at 9 N.J. 466-467, is that "As a member of the group the plaintiff is jointly responsible with all other members for the actions of the group itself, and accordingly as principal he has no cause of action against his co-principals for the wrongful conduct of their common agent." The
plaintiff, in joining the union, agreed to its objects and submitted himself to its powers. Marchitto is controlling as to plaintiff's claim against the union, and therefore, as against it plaintiff may maintain no action.
Plaintiff does not contend that there was a failure to investigate his claim of wrongful discharge, but rather asserts that he was legally entitled to arbitration, and the failure of defendant union to proceed thereto subjects it to liability for damages thereupon caused to him. It is apparent, therefore, that the substance of plaintiff's complaint, when stripped of the allegations of wrongful conduct, presents but one question, to wit, under the terms of the collective bargaining agreement between United and the union, was there an absolute obligation to prosecute to arbitration plaintiff's grievance? Plaintiff has urged that such an obligation does exist and has thus contended that he is vested with a right, the exercise of which is to compel United to prosecute his grievance to ...