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Donnelly v. United Fruit Co.

Decided: July 9, 1962.


Goldmann, Freund and Foley. The opinion of the court was delivered by Goldmann, S.j.a.d.


[75 NJSuper Page 386] Plaintiff appeals from a Law Division order granting defendants' motions for summary

judgment. The opinion of the trial court is reported at 70 N.J. Super. 370 (Law Div. 1961).

Defendant United Fruit Company (hereinafter United) employed plaintiff as a junior assistant purser from May 7, 1951 to April 7, 1955, except when he was on standby status, vacation or sick leave. During this period plaintiff was a member of defendant Brotherhood of Marine Officers, Local 13212, District 50, United Mine Workers of America (hereinafter the Brotherhood or union).

On April 7, 1955 United notified plaintiff, who had just finished a voyage as junior assistant purser aboard the S. S. Fra Berlanga , that his services would no longer be required. The next day plaintiff called on Edward J. Farr, secretary-treasurer of the union, informed him of the dismissal, and requested that the union take the necessary steps to have him reinstated under the terms of the collective bargaining agreement between United and the union, dated October 30, 1953.

The agreement reads, in part, as follows:



The Company agrees to recognize the Brotherhood as the exclusive representative for all the Staff Officers employed on the American flag vessels operated by the Company for the purpose of collective bargaining with respect to wages, hours, and other conditions of employment.


Employment and Transfer

(d) Nothing in this Article shall prevent the orderly termination by the Company of the employment of any of the Staff Officers covered by this Agreement from time to time as may be necessary due to the vessels being sold or taken out of active service, nor shall it prevent the discharge of any employee for cause.

Grievance and Arbitration

In the event of any dispute or controversy arising during the life of this Agreement, the Staff Officers will continue to work pending an adjustment of the trouble as follows:

Matters in dispute to be submitted to a Committee of four (4), two (2) of whom shall be representatives of the Brotherhood and two (2) of the Company; a decision of a majority of this Committee to be final and binding. In the event of failure on the part of the Committee of four (4) to reach an agreement, they shall proceed to select a fifth man as Chairman, which man must be satisfactory to both sides and the decision of a majority of this Committee so augmented shall be final and binding upon the parties signatory to this Agreement."

Farr personally investigated plaintiff's claim, as well as United's contention that the discharge had been for cause. It appears that he discussed the termination of plaintiff's employment with captains of the ships on which plaintiff had worked, with Captain Foster, a vice-president of the union, and with representatives of United who fully explained the reasons for the discharge. In addition, Farr and Captain Foster met with two representatives of United, thoroughly discussed plaintiff's dismissal, and concluded that United had justifiably terminated the employment for cause. Satisfied that plaintiff had no just grievance, the union did not further press the matter. Arbitration was not requested.

Plaintiff insists there was no cause for dismissal since his service record with United contained nothing which would adversely reflect upon his character or the manner in which he had discharged his duties. He says that when he saw there was no possibility of having his discharge arbitrated, he agreed with Farr to submit his resignation to United. The letter of resignation was submitted September 28, 1955, but was dated April 7, 1955, the day of plaintiff's discharge.

Plaintiff admitted on deposition that United had done nothing to induce him to submit his resignation. He places responsibility for the resignation on Farr, the union official. In one of his affidavits he states:

"* * * I submitted the resignation contingent upon obtairing from defendant United Fruit Company a good recommendation for future employment. The said Edward J. Farr agreed to ask for such good recommendation. Also, I directed Mr. Farr to bring my

resignation back, if the desired recommendation could not be obtained."

On November 2, 1955 United gave plaintiff a letter of recommendation which he considers unsatisfactory because it stated merely that he had been "sober and trustworthy in the handling of Company funds and supplies."

Before instituting his present action, plaintiff brought a declaratory judgment proceeding in the New York Supreme Court against United only. He there requested judgment: (1) declaring that he was not dismissed for inefficiency and insolence to the ship's master; (2) that United's records be conformed with its official log books and voyage reports to show that his conduct and efficiency were "very good"; (3) restraining United from representing that he was discharged for inefficiency and insolence to the ship's master; (4) in the event that the court declared the discharge to have been without just cause, damages for loss of earnings suffered, and (5) incidental relief. United moved for summary judgment. The trial judge denied the motion, but on appeal this was reversed. Donnelly v. United Fruit Co. , 4 App. Div. 2 d 855, 166 N.Y.S. 2 d 392 (App. Div. 1957). The Appellate Division, in a brief per curiam opinion, held:

"* * * The pleading and affidavits established 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 * * *. Furthermore, a threatened libel will not be restrained. * * * The order appealed from therefore is reversed and defendant's motion for summary judgment granted. ...

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