Opinion
Decided May 23, 1955.
Appeal from Superior Court, Appellate Division.
Mr. Thomas J. Brogan argued the cause for the appellant.
Mr. Wallace P. Berkowitz argued the cause for the respondents ( Mr. Sherwin D. Lester, on the brief).
On appeal from a judgment of the Superior Court, Appellate Division, where the following opinion was filed:
"Plaintiffs here, 43 in number, sued their employer, Dade Bros., Inc., and certain of its employees, and the Marine Warehousemen's Local No. 1478 and certain officers of the union, to recover compensatory and punitive damages which they claimed to have suffered because of a tortious and malicious interference with their right to work. The jury awarded each of them compensatory damages representing the actual loss of wages suffered and also punitive damages in the amount of $200. The awards were against Dade Bros., Inc., and the local; no verdict was returned against the individual employees and officers of the employer and the union. Although the issue of the liability of the individuals was submitted to the jury for determination along with that of Dade Bros. and the union, the jury was silent as to them. An appeal by Dade Bros. followed.
"When the matter was first presented to us we noted in the appendix that although no verdict had been rendered against the individuals, a judgment of no cause of action as to them had been entered against the plaintiffs. It was impossible to determine from the record whether such a judgment had been entered at the direction of the trial court or whether a clerical error had been made in recording the verdict. Consequently, the cause was remanded so that a motion could be made to correct the record. Such a motion was made, as the result of which an amendment was entered striking out the judgment of no cause of action in favor of the individual defendants and setting forth the true fact that the verdict was silent as to them. The matter has now been returned to us for decision on the merits of the appeal.
"The first point argued is that the verdict was contrary to the weight of the evidence. A motion for a new trial on that ground was presented to the trial court and denied, and the rules tell us that we should not alter that result unless, after having given due regard to the opportunity of the trial court and the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion. R.R. 1:5-3(a).
"The record discloses that plaintiffs were warehousemen in the employ of Dade Bros., Inc. at the Claremont Terminal, a waterfront pier in Jersey City. They were members of the defendant labor union, which had a collective bargaining contract with the employer. Under that contract the employees had certain seniority rights.
"Apparently the men were employed on a day to day basis. They would assemble or `shape up' on the pier each morning and an employee of Dade Bros., known as the hiring boss, would make individual selections among the men until the required number for the day was reached. The hiring boss was the defendant, Augustine De Acutis, also a member of the union and for part of the period involved president thereof. Originally he was engaged as a stevedore and later he became hiring boss, a position he held for about 18 months until the terminal closed on October 31, 1952.
"De Acutis was active in the union, which apparently was in the throes of internal dissension arising out of his conduct as hiring boss. The plaintiffs claimed that their seniority rights to employment under the contract were being ignored at the morning shape-ups by De Acutis with the consent and cooperation of the employer. Dade sought to take the position at the trial that De Acutis was designated hiring boss by the union and that it had no control over his activities. However, without detailing the evidence, a clear factual issue on this subject was presented for determination by the jury.
"In any event, on June 24, 1952, because of alleged indiscriminate hiring without regard to length of service and for other grievances connected with contract benefits, the aggrieved warehousemen struck. The strike lasted one day when, according to the plaintiffs, an oral agreement was reached to remedy the conditions and they returned to work.
"However, the next day at the shape-up the agreement was ignored and on June 26, 158 warehousemen struck and engaged in picketing until July 7. During this period plaintiffs asserted that the employer agreed with their committee to prepare and post a seniority list to be followed. Proof was introduced to demonstrate that this and other promises made were not fulfilled and that there continued to be a disregard of seniority. The result was that the men walked out again on July 24 and resumed picketing.
"Evidence was introduced to show that during the early part of this picketing the employer through its representatives, and particularly the vice-president in actual charge of the pier operation, stimulated and activated a situation between the non-strikers and the picketers which led to a serious commotion and near riot and which might have ended in a large-scale physical affray if it were not for the substantial efforts of the local police. In this connection a captain of the Jersey City Police Department said:
"`So when I heard the men marching out, I went over to Mr. Cissel [vice-president and general manager of Dade], who was standing by there, maybe about twenty-five or fifty feet away from the picket line, and I told him, "Do you know these men of yours are marching out on this picket line?" I said, "If there is any blood shed here, you are going to be arrested for inciting a riot." So he laughed and said, "Well, I guess I'll have to hire a lawyer." With that I notified Deputy Chief McLaughlin that there was going to be trouble, and he immediately responded.'" (Insertion ours)
"Thereafter, on August 5, a conference was held between the committee of the strikers and representatives of the union, with representatives of the employer in attendance. At this meeting one Connolly, a vice-president of the International Longshoremen's Association, said to the committee: `You'se fellows is out. Those loyal men are going to work and you is out.' This broke up the meeting and the strikers resumed picketing.
"In addition to the picketing, the strikers instituted an injunction suit in the Chancery Division of this court against the International, the local union and certain of their officers, including Connolly and De Acutis.
"Public officials of Jersey City having interested themselves in the affair, further conferences were held at the City Hall at which company, union and insurgents were present. Finally, on August 13 an agreement was reached and a written but unsigned memorandum made of the terms thereof.
"Under this memorandum among other things `the entire dispute' was to be submitted to independent arbitration. The specific nature of the dispute was not described but plaintiff contended that it related to the seniority question. In listing the matter agreed upon, paragraph 4, said, `Return of the men to work immediately, with insurgent members to be absorbed as soon as possible.'
"At the trial the Dade Bros. contended that the concord signified by this paragraph was that pending the arbitration all of the `loyal' men who had not gone on strike would be employed first, regardless of seniority, and that when they were taken care of the strikers would be hired as the need arose. And it further claimed that the strikers agreed to waive seniority until the arbitration ended.
"The strikers claimed that the agreement was, and that paragraph 4 was intended to indicate, that all men were to return to work immediately, with the insurgents absorbed in the day to day hiring on the basis of seniority. And they claimed with much force that they would not have agreed to withdraw their picket line and give up or waive, pending the arbitration, the very thing which they had been struggling to enforce, i.e., their seniority rights.
"As to this the trial court held, and we concur in his view, that the language of the paragraph was ambiguous and that the jury should decide on the basis of the proof what the agreement between the parties was in fact.
"Plaintiffs' proof shows that Dade Bros. did not hire through De Acutis, the hiring boss, according to seniority between August 15 and September 22, the date of the rendition of the arbitrator's decision. In fact, Dade's brief on this appeal says that it `concedes that plaintiffs would have been entitled to employment during the period August 15th to September 22, 1952, by virtue of seniority, if there had not been a waiver of such seniority.' Of course, the verdict of the jury must be taken as a finding that no such waiver was made.
"The arbitration hearings were held on September 3 and 8, 1952, at which, according to the arbitrator, the sole issue submitted was whether the action of the union in depriving the strikers of their seniority for what the union called an unauthorized strike was proper. The written decision of the arbitrator rendered on September 22 was to the effect that the action was improper and that the deprivation of seniority could not be sustained.
"Plaintiffs offered proof tending to show that, despite this decision, the hiring boss and the company, with few exceptions, continued to ignore their seniority rights thereafter and down to October 15, 1952, the last date for which the plaintiffs claim compensation.
"Dade argued that plaintiffs engaged in wildcat strikes without authorization of the union and in violation of the management-union collective bargaining agreement which established machinery, including arbitration, for the handling of disputes. However, the jury must have regarded it as significant that Dade never undertook to discharge the plaintiffs, which manifestly would have been its right if there was no basis for the charges of unfair labor practices with regard to seniority and if the strikers were illegal.
"In any event, testimony was offered indicating that neither the union nor the employer's representatives would listen to the grievance complaints of these men, despite the fact that the vice-president in charge of the operation conceded he had complaints that De Acutis `took extreme and brutal discriminatory disciplinary action.' One witness said that both the company and the union laughed and sneered at their grievances. And there was evidence that the men were shunted back and forth between the union and the employer's officials, accomplishing nothing with respect to vindication of their claims. Another plaintiff said that one of two Dade representatives was always present at the shape-up. When De Acutis ignored his seniority in hiring the men for the day and he complained to these company men, he got nowhere. It appeared, however, that when the company's warehouse superintendent wanted a man put on, he said to De Acutis: `I am putting this man on to-day,' and it was done.
"There was much dispute in the testimony, the employer's position being that it was the innocent victim of dissension within the union. However, there was ample proof to warrant a finding by the jury that the employer and the union acted in concert in willfully and maliciously interfering with plaintiffs' right to employment under the collective bargaining agreement. Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super. 579 ( App. Div. 1953). Our appraisal of all of the proof made in the light of the basic rule that due consideration must be given to the opportunity of the trial court to see and hear the witnesses, has led us to the conclusion that the action of the jury was not contrary to the weight of the evidence.
"When the matter was before us originally the argument was made that the judgment of no cause of action in favor of the individual defendants required the setting aside of the judgment against the employer, Dade Bros. The theory was that since its responsibility was predicated upon the doctrine of respondeat superior, a finding exonerating the employees established a like immunity in their employer. If the record had remained in that state, this position would have been sound. Kelley v. Curtiss, 16 N.J. 265 (1954).
"However, as the result of the remand the error in recording the judgment has been corrected. The true situation now appears in the amended judgment, namely, that no verdict at all was rendered against the employees. Dade continues to argue that even as now entered, the absence of verdict against the individual actors is so inconsistent with a verdict against their employer that the present judgment must be reversed. But this does not follow. In such a situation, the rule is that the action against the employees stands as if it had never been tried; the status is the same as if a mistrial had occurred as to them. Dunbaden v. Castles Ice Cream Co., 103 N.J.L. 427 ( E. A. 1927). That this is the proper result is obvious. The action could have been instituted originally against Dade Bros. alone, charging a liability derived from the acts of its employees. It was not necessary to recovery that the employees be joined at all. The rule as to the employer's liability would be the same.
"It must be assumed from the charge of the court and the fact of the verdict against the employer that the jury found the employees, as representatives of their employer, guilty of the tortious conduct complained of. The fact that the personal liability of the employees was not declared by way of individual judgments against them, for some unexplained reason, should not and does not vitiate the declaration of the employer's responsibility.
"The other grounds of appeal urged have been considered and found to be without the substance required for reversal.
"The judgment is affirmed."
The judgment is affirmed for the reasons expressed in the opinion per curiam filed in the court below.
For affirmance — Chief Justice VANDERBILT, and Justices HEHER, OLIPHANT, WACHENFELD, BURLING, JACOBS and BRENNAN — 7.
For reversal — None.