On appeal from Superior Court, Law Division, Atlantic County.
Allcorn, Seidman and Botter. The opinion of the court was delivered by Seidman, J.A.D.
The only significant issue presented by this appeal is whether a member of a labor union, injured while at work, may sue the union in a negligence action for the claimed failure of the union's representatives on the plant safety committee to "report and remedy" an allegedly defective machine which caused the injury. This issue has not been considered in any reported case in this State; at least, none has been cited to us and our own research has not uncovered any. However, as will appear later herein, it has been dealt with elsewhere in federal and state courts.
Plaintiff Ulysses G. Brooks was employed as a maintenance mechanic by Wheatons Plasti-Cote Corporation at its plant in Mays Landing. He sustained an injury to his arm while working on a machine, the safety switch of which had been disconnected, and in due course received a worker's compensation award. A negligence suit was instituted thereafter (his wife joining per quod) against New Jersey Manufacturers Insurance Company (insurer), the employer's compensation carrier; Local Union # 126, Glass Bottle Blowers Association of the United States and Canada (Local), of which plaintiff was a member, and, by amended complaint, International Union of the Glass Bottle Blowers of the United States and Canada (International).
The complaint charged the insurer with negligently failing to discover or remedy the hazard in the course of its inspection of the plant. The Local's negligence was stated to be the breach
by its safety committee of the latter's duty to report and remedy unsafe conditions in the plant. As to the International, it is stipulated that the only basis for liability on its part was vicarious in that the Local forwarded to it a portion of the members' dues.
The Local and the International moved for summary judgment. Both motions were granted, the trial judge ruling, with respect to the former, that the safety committee owed no duty to plaintiff as a matter of law, and further, since the members of the committee were either coworkers or management officials, plaintiff's sole remedy was under the workers' compensation statute. The trial judge found nothing in the agreement between the International and the Local which created any obligation on the part of the International inuring to the benefit of plaintiff. Summary judgment was also entered in favor of the insurer on the ground that any inspection it may have made was of the type on which the insured would not rely and, in fact, did not rely.
We are satisfied that the trial judge correctly entered summary judgment in favor of the insurer. The unrefuted facts are that a representative of the insurer would visit the plant about once a year and, in the company of the plant's assistant manager, make an "eyeball tour" or "walk-through" of the plant; that safety was the sole responsibility of management, and that the company did not in any way rely on the insurer's annual tour of the plant. The insurer was not under a contractual obligation to inspect the plant. The policy provided that the insurer would be "permitted but not obligated" to make such inspection, and, additionally, that "neither the right to make inspections nor the making thereof * * * shall constitute an undertaking on behalf of or for the benefit of the insured or others, to determine or warrant that such work places, operations, machinery or equipment are safe." On similar facts, we recently held in Jackson v. N.J. Mfrs. Ins. Co. , 166 N.J. Super. 448, 456-460 (App.Div.1979), that plaintiff there failed to establish
a cause of action against the insurer. Jackson is applicable here. See also, Viducich v. Greater N.Y. Mut. Ins. Co. , 80 N.J. Super. 15, 23 (App.Div.1963), certif. den. 41 N.J. 129 (1963); Restatement, Torts 2d, §§ 323, 324A (1965).
Plaintiff's argument respecting International's "vicarious" liability is limited to one paragraph in his brief, and is completely unsupported by case or statutory law. His concept seems to be that since no affidavits or other supporting papers were filed by International delineating its relationship with the Local, "there appears no basis for granting the international union summary judgment." Since defendant challenged the existence of any duty owed to plaintiff, the latter bore the burden of establishing such duty. He failed to do so. The record is devoid of any facts from which any duty owed by International to plaintiff can be spelled out. See Meistrich v. Casino Arena Attractions, Inc. , 31 N.J. 44, 56 (1959).
The thrust of plaintiff's argument, as it relates to the Local, is the union's undertaking "by affirmative conduct the recognition of a duty to safeguard its employees of known or discoverable hazards." He contends that genuine issues of fact exist as to whether such duty of care was owed by the Local to its members, whether there was a breach of that duty, and whether plaintiff's injury was proximately caused by the breach, thus precluding summary judgment. Judson v. Peoples Bank and Trust Co. of Westfield , 17 N.J. 67, 74 (1954). The Local's response is that its duty was one of fair representation, contractually imposed upon it by the collective bargaining agreement, and that, under governing federal labor law, it breached no duty owed to plaintiff.
It appears that the plant where plaintiff worked had a safety committee consisting of employer and union representatives. The pertinent article in the collective bargaining agreement between the employer and the union, after "recogniz[ing] the importance of an effective safety program," provided ...