Fiorita v. McCorkle

Hammond, J., delivered the opinion of the Court. The suit below was by Fiorita, a discharged employee of the Pennsylvania Railroad Company, against the Brotherhood of Railroad Trainmen, Lodge No. 124, an unincorporated group of which he was a member in good standing, and the ⁵²⁶ chairman of the grievance committee of the Lodge, McCorkle. The appeal is from a judgment for defendants for costs, Judge Tucker having sustained demurrers to the amended declaration after holding (1) that a member of an unincorporated union cannot sue the group as an entity, and (2) that the declaration did not allege any breach of duty owed Fiorita by McCorkle. The case was presented below, and comes here on appeal, in a most unsatisfactory posture.

The parties stipulated that the constitution of the Brotherhood of Railroad Trainmen “may be referred to or used for any purpose by any of the parties * * *.” Whether this was intended to incorporate into the declaration, subject to the demurrers, all parts of the constitution deemed relevant by any party, or to cause the pleadings to be treated as the rough equivalent of a motion for summary judgment by the plaintiff and each defendant, respectively, is not apparent. It is obvious however that if parties intend to seek a decision without trial by amplifying the pleadings, they should in almost every instance, resort to motion for summary judgment and not to demurrer. The amended declaration alleges that Fiorita was employed as a trainman, that his contract of employment incorporated the terms of an agreement between the railroad and the Brotherhood of Railroad Trainmen, which provided that a trainman should not be suspended or dismissed without a fair and impartial trial, and, if charged “in disciplinary matters” may, if he desires, be represented at his trial by a “duly accredited representative,” defined as the Grievance Committee of the local, the chairman thereof, any member thereof designated to act as chairman, or an officer of the Lodge. The declaration alleges further that on September 7, 1957, Fiorita was “held out of service” on disciplinary charges; that he requested an investigation of the charges; that at investigatory hearings held on September 9 and September 11, M. P. Walsh, vice-chairman of the Grievance Committee, and C. A. Trenor, a fellow Lodge member and co-worker, appeared with Fiorita; that the defendant McCorkle returned from an absence to his position of chairman of the Grievance Committee and Fiorita asked him to act for him as his “duly accredited ⁵²⁷ representative” and, after a meeting at Fiorita’s house “to discuss the case” (Trenor being present), McCorkle agreed to represent Fiorita “in cooperation with Trenor.” Then, it is alleged, McCorkle “without justification or explanation” told Fiorita “that if he permitted C. A. Trenor to act as a representative that he, the Plaintiff, would be discharged from the Railroad,” and “Further the Defendant unreasonably advised the Plaintiff to admit his guilt to the charges, contrary to the desires and interests of the Plaintiff, and which the Plaintiff refused to do.” 1 The declaration goes on to allege that at the resumed investigatory hearing on October 2, McCorkle, Trenor and a lawyer retained by Fiorita appeared.

McCorkle again demanded that he be the exclusive representative of Fiorita, who refused the demand. McCorkle then left the hearing “in the presence of the agent hearing officers of the Railroad, thereby depriving the Plaintiff of a duly accredited representative.” 2 It is claimed that McCorkle intended by his de ⁵²⁸ mand for exclusive representation to publicize hostility “to the Plaintiff and his remaining representatives,” that his refusal to represent Fiorita was a breach of duty owed by him and the Lodge, deprived him of a fair and impartial trial and amounted to a malicious interference with Fiorita’s employment rights. It is alleged that as a result of the matters complained of, Fiorita was brought to trial before the Railroad and caused to appeal to the National Railroad Adjustment Board “without the support and assistance of the Defendant Dodge No. 124 and with the overt hostility of the Defendants to the Plaintiff and his representative, C. A. Trenor, the Plaintiff was discharged from his employment with the Railroad.” The courts have differed as to whether a member in good standing of an unincorporated union can sue the union for breach of a duty owed him in connection with his employment relations or status. The greater number of decisions have held that he cannot on the theory that an unincorporated group is not a separate legal entity in the eyes of the law, having no existence apart from that of its individual members, (at common law it could neither sue nor be sued) and the plaintiff and every other member of the group are co-principals in a joint enterprise.

Therefore, as a principal, a member has no cause of action or standing to sue his co-principals for the wrongful act of their common agent. The cases adopting this view point out that statutes such as that of Maryland, (found in Code (1957), Art. 23, Sec. 138: “Every unincorporated association or joint stock company having a recognized group name may sue or be sued in such group name in any action affecting the common property, rights and liabilities of such association or joint stock company”), are procedural provisions which do not in any way change the legal status of the group or its substantive rights and liabilities or create new causes of action. See Marchitto v. Central Railroad Co. of New Jersey (N. J.), 88 A. 2d 851 ; De Villars v. Hessler (Pa.), 70 A. 2d 333 ; 14 A. L. R. 2d 470; McClees ⁵²⁹ v. Grand International Brotherhood of Locomotive Engineers (Ohio), 18 N. E. 2d 812 ; Storms v. United Grain & Millworkers’ Union (Ohio App.), 27 N. E. 2d 781 ; Kordewick v. Brotherhood of Railroad Trainmen (7th Cir.), 181 F. 2d 963 ; Huth v. Humboldt Stamm, No. 153 (Conn.), 23 A. 1084 . The cases that have taken the opposite view reason that an essential element of the majority theory is that the act or omission complained of must be one which reasonably can be considered as done or omitted on behalf of the injured members, and therefore to say that an agent who wilfully or negligently violates a duty to his principal acts on behalf of that principal is an unwarranted extension of the agency concept, which is out of keeping with reality.

These cases have refused to apply the doctrine of imputation to an injured member of the union when the wrongful act was committed in the course of an undertaking which was strictly adverse to the member’s interests. See Fray v. Amalgamated Meat Cutters, etc. (Wis.), 101 N. W. 2d 782 ; United Association of Journeymen, Etc. v. Borden (Tex.), 328 S. W. 2d 739 ; Taxicab Drivers’ Local Union No. 889 v. Pittman (Okla.), 322 P. 2d 159 ; see also Title 1, Sec. 101 (a) (4), Labor-Management Reporting and Disclosure Act of 1959, 29 U. S. C. A., Sec. 411 (a) (4), providing that no labor organization (in industry affecting interstate commerce) shall limit the ultimate right of a member to sue; Bonsor v. Musicians’ Union (Eng.) [1956] A. C. 104; Glover v. Brotherhood of Railway and Steamship Clerks (N. C.), 108 S. E. 2d 78 ; and compare Jenkins v. Wm. Schluderberg-T. J. Kurdle Co., 217 Md. 556 . We see no present need to decide which of the conflicting views is the sounder.

We shall assume, without deciding, that a member of an unincorporated union can sue the union for negligently or wilfully failing to represent him either properly or at all in his employment relations or status, because we find that the declaration in the case before us fails to state a cause of action against either McCorkle or the Lodge. The declaration is composed of over twenty-five hundred words, many of them characterizations like “unreasonable” and “hostility” and “unjustifiably” and “maliciously” ⁵³⁰ but, when analyzed, it alleges no more than that McCorkle after first agreeing to act with Trenor, reconsidered (by almost inevitable inference, after learning the facts), and insisted upon the right the Lodge had to act as exclusive representative of Fiorita or not to act for him at all, and advised him to admit his guilt. The allegations that this advice was “unreasonable” and that the refusal of McCorkle to act for Fiorita in conjunction with Trenor and Fiorita’s lawyer was evidence of “hostility” to Fiorita and his representatives are conclusions, not allegations of fact. 3 Neither McCorkle nor the Lodge was