Price, Sullivan and Leonard. The opinion of the court was delivered by Price, S.j.a.d.
Plaintiff Louis M. Carlini appeals from an order of the Superior Court, Law Division, which, on defendant's motion for summary judgment, R.R. 4:58, dismissed his complaint against his employer, defendant Curtiss-Wright Corporation (Curtiss). By said complaint plaintiff sought compensatory and punitive damages against said corporation as well as reinstatement in his job, from which he alleged he had been discharged unlawfully. In support of its motion defendant relied upon the pleadings and upon an affidavit and exhibits referred to therein while, in opposition thereto, plaintiff relied upon the complaint and his own affidavit.
Plaintiff had been an employee of defendant for a number of years prior to his discharge effective July 6, 1959. The complaint alleged that defendant breached its "collective bargaining contract" with Local 669, UAW (hereinafter union), of which plaintiff was a member, in that it discharged him without "just cause." The complaint further alleged that plaintiff "has duly sought the relief provided by the said collective bargaining contract and has exhausted all his remedies under the said collective bargaining contract." Damages, reinstatement, and payment of "back" wages were demanded on the theory that plaintiff was either a third-party beneficiary of the contract or that the union was his agent in executing it.
Plaintiff asserts in his brief on appeal that the "substantive issue involved in the cause is the legality of the discharge" of plaintiff from defendant's employ "for alleged excessive absenteeism." However, it is clear from an examination of the record before us that the true issue was whether plaintiff, on the allegations contained in the complaint herein, may maintain such an action against his corporate employer based on an alleged breach of his rights flowing from the collective bargaining contract existing between the employer and the aforesaid union.
The aforesaid contract provides, inter alia , that "No employee shall be discharged without proper cause," and that all grievances from such alleged discharge "shall be handled only in accordance with the * * * procedure" therein specified. The stated procedure is a hearing before the labor relations manager whose decision, upon notice of appeal, is reviewable by the industrial relations manager. The decision of the latter is "final unless notice of appeal to the Umpire is filed by the Union * * * within fourteen (14) calendar days after the date" of the industrial relations manager's decision. Plaintiff's discharge was upheld by both the labor relations manager and the industrial relations manager. The union appealed the decision of the former and accepted the decision of the latter.
With the record before it revealing the foregoing, the trial court, as recited in its order from which the appeal is taken, concluded that "the pleadings, together with the affidavits submitted in support of and in opposition to the motion of the defendant show palpably that there is no genuine issue as to any material fact challenged and that plaintiff's complaint does not state a cause of action." The order directed the dismissal of the complaint. Paradoxically, the order further provided "that plaintiff is granted leave to apply to this court for permission to file an amended complaint in this cause." The order imposed limitation on the time for the making of such application and the time for the service of the notice of motion therefor and the documents in support thereof.
Apparently motivating the last mentioned portion of the aforesaid order was plaintiff's affidavit averring that the union "failed and refused to provide" him "with the protections to which" he was "entitled as a member of the union * * *," despite his repeated requests therefor, and characterizing the union's action as "discriminatory, willful, and arbitrary." Although not specifically so stating, the affidavit suggests the existence of a conspiracy between defendant and the union designed to terminate plaintiff's
employment without justifiable cause and to deny him the safeguards afforded by the collective bargaining contract. It charged that the union "collaborated with the defendant in breaching the contract" and also alleged that defendant "acted, together with the union, to breach" plaintiff's "rights under the contract. * * *"
Plaintiff elected not to apply for permission to "amend" his complaint and appealed to this court from the summary judgment aforesaid.
Plaintiff, in challenging the propriety of the trial court's action in granting judgment in favor of defendant upon the pleadings and affidavits, charges that such action was erroneous because of "the existence of numerous controverted issues of material fact." Assessment of justification for plaintiff's contention requires that in examining the record placed before the trial court on defendant's motion for summary judgment, we contrast the allegations contained in plaintiff's complaint with those presented in his affidavit in opposition to defendant's aforesaid motion. Moreover, the fact that plaintiff, as conceded on oral argument, deliberately refrained from availing himself of the opportunity to amend his complaint serves further to focus attention on the divergent allegations contained in the complaint and those contained in the aforesaid affidavit of plaintiff.
Following allegations that plaintiff was an employee of defendant and that an existing "collective bargaining contract" between defendant and the aforesaid union covered the terms of his employment, the complaint alleged that said contract provided that, absent proper cause, plaintiff should not be discharged from such employment; that the contract prescribed the procedure for prosecuting the asserted grievance of an employee; that plaintiff's aforesaid discharge was without "just" cause; that, despite demand therefor by plaintiff, defendant had ...