author: Mintk, J. S. C.

text:
    JOSEPH DEMARCO, PLAINTIFF, v. THATCHER FURNACE COMPANY, A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE AND AUTHORIZED TO DO BUSINESS IN NEW JERSEY; T. F. C. HOLDING CORP., A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE AND AUTHORIZED TO DO BUSINESS IN NEW JERSEY; HOLLAND FURNACE COMPANY, A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE AND AUTHORIZED TO DO BUSINESS IN NEW JERSEY AND ATHLONE INDUSTRIES, INC., A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE AND AUTHORIZED TO DO BUSINESS IN NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided July 22, 1968.

      Mr. John A. Granar for plaintiff (Messrs. Graner & Brennan, attorneys).

      Mr. Thomas E. Walsh, Jr., for defendants (Messrs. Carpenter, Bennett & Morrissey, attorneys).
   Mintk, J. S. C.

Plaintiff Joseph R. DeMarco alleges that he was wrongfully discharged by his employer, Thatcher Furnace Company. He argues that his union did not adequately and fairly represent him in the grievance procedure prescribed in the collective bargaining agreement. As a result of his discharge, he was unemployed for several months. He seeks a money judgment for his loss of wages.

Thatcher Furnace Company was a Delaware corporation and a wholly owned subsidiary of Holland Furnace Company, also a Delaware corporation. In 1964 Thatcher Furnace Company changed its name to T.F.C. Holding Corp. On May 28, 1965 this company ceased doing business in New Jersey and apparently was dissolved. On May 24, 1966 Holland Furnace Company changed its name to Athlone Industries, Inc. It is urged that since T.F.C. Holding Corp. is out of business, this court should fashion its remedy by making plaintiff whole out of that company’s assets in the hands of Athlone, since Athlone is really a trustee in dissolution for T.F.C. Holding Corp., the successor to Thatcher Furnace Company.

Plaintiff had been employed as a welder by the Thatcher Furnace Company (hereinafter the company) for approximately 13 years prior to his discharge on April 2, 1964. He was a member in good standing of the International Molders and Allied Workers Union, AFL-CIO, Local No. 305, and for almost a year prior to his discharge served as an elected committeeman for his department, the Plate Shop.

The terms and conditions of employment at the company’s plant were governed by successive "Conference Agreements” —collective bargaining contracts between the international union, the exclusive collective bargaining agent in the plant, and the Manufacturers’ Industrial Relations Association (hereinafter M.I.R.A.) of which the company was a member.

During the summer of 1963 a dispute smoldered among the welders in the Plate Shop over the piece rates set by the company with respect to work on the tube bundle line. The international union was called in to time-study the welding jobs on the tube bundle line and reached a rate settlement with the company. Thereafter welders on the tube bundle line, notably plaintiff, renewed their complaints about unsatisfactory piece work rates and the company countered with charges that plaintiff had been wrongfully "controlling production” and urging other welders to do the same so as to convince the company that its piece work rates were unrealistically demanding. During this period plaintiff was consistently a leading producer among welders on the tube bundle line. As early as November 23, 1963 the company discharged plaintiff for "controlling production.” Before plaintiff even filed a grievance, the union interceded on his behalf and shortly effected his reinstatement.

Hpon plaintiff’s return to his job the same bickering resumed and the company discharged him again on December 5, 1963. This time plaintiff filed a grievance pursuant to the "Conference Agreements” which read as follows:

“An employee who has been discharged, suspended or laid off, shall not suffer any loss of pay if it is found that such discharge * * * is unjust, provided the employee files a grievance promptly.” Conference Agreements Between I. M. & A. W. TJ. and M. I. R. A. (1962-1963), Art. Ill, el. 12, p. 11.

The company, plaintiff and the local union could not reach agreement through the first two steps of the grievance procedure outlined in the aforementioned “Conference Agreements.” At step 3 Bernard Butsavage, a vice-president of the International Union, was called in to meet with Mr. Grosser, the company lawyer. The company presented charts purporting to illustrate how plaintiff by his output engaged in the control of production on the tube bundle line. The union representative disclaimed the probative value of these charts for this purpose and plaintiff appeared at the conference to rebut the accusations leveled against him. No resolution of the grievance resulted at this step and the parties referred the grievance to step 4, a conference between the presidents of the international union and the M.I.R.A.

On January 6, 1964, with the grievance in this posture and plaintiff out of work for one month, executives of the company, the local’s business agent Anthony Mastandrea, and several members of the local’s shop committee met to discuss plaintiff’s reinstatement and several other related matters. The company drafted an agreement which was signed and read in part as follows:

“1. We agree that control of production in order to affect prices unfairly is illegal and results in unjustifiably increasing cost. We will not engage in it nor condone it in others.
2. We agree that the methods of finish welding tube bundles will be changed and piece work prices reestablished on the basis of time study and a proper relationship between effort and earnings.
S. We agree that Joe DeMarco shall, in view of the above, be reinstated immediately, without back pay (but he will receive holiday pay for Christmas and New Year’s Day).
4. We agree to recommend to Messrs. Butsavage and Grosser that the above constitute the final adjudication of this grievance and that they so agree in writing—in anticipation of this, this agreement is made effective as of the date hereof.

E. B. Tuttle

E. B. Tuttle

Gerald J. Toner Geo Gray

G. Toner George Gray

E. Ostergaard H. Van Nest

E. Ostergaard H. Yan Nest

Joseph DeMarco

J. DeMarco’ The above signatures on the left represent those of members of the local union shop committee, and those on the right of company executives. It appears that the agreement was drafted in expectation that Mastandrea would sign. However, although urging others to sign, Mastandrea unexplainedly refused to do so himself, and his name under the first signature line on the left was obliterated.

Grosser apparently accepted this local agreement as a final adjudication of the formal grievance, but there is a conflict in the evidence as to whether Butsavage ever did so.

After plaintiff’s return to work on January 7, the company altered the method of welding tube bundles and conducted a new time study of the job and fixed a new piece rate. Plaintiff, on behalf of himself and other welders in the plate shop continued to press for a higher piece rate. Finally, on March 12, 1964 the Company filed a grievance against the arc welders of the plate shop, including plaintiff, wherein it accused them of violating the January 6 agreement by engaging in “control of production” during the course of the time studies and refusing to accept the new rates issued by the company on the revamped job. At a meeting convened on April 2, 1964 with union vice-president Butsavage present, the company discharged plaintiff once more. Plaintiff testified that Butsavage said this was the first time he had heard of the January 6 agreement and apparently expressed his disapproval of the same.

Plaintiff immediately filed a grievance and the union and the company agreed to reactivate the grievance machinery at step 4 and set a June 3, 1964 date for a conference between the president of the international union and the president of the M.I.R.A. Butsavage allegedly told plaintiff that this resort to the grievance machinery meant that the January 6 agreement was to be disregarded.

In the meantime, the Appeal Tribunal of the Division of Employment .Security, New Jersey Department of Labor and Industry, upheld on May 22, 1964 a hearing examiner’s decision that plaintiff had not been “discharged for misconduct connected with his work” and hence was not disqualified from eligibility for unemployment benefits. N. J. 8. A. 43:21—5 (6). The appeals examiner wrote that the company had not sustained its burden of proving that plaintiff had controlled production.

At the step 4 conference on June 3 the company again presented charts purporting to show how DeMarco purposely controlled his output. Again DeMarco appeared and again the union representative, contesting plaintiff’s discharge, stated that the company’s charts proved nothing. The parties failed to resolve the grievance at this level and referred it to step 5. There a conference committee, composed of six members of the M.I.E.A. and six union representatives, was to render a decision “final and binding on all parties concerned.” Conference Agreements, supra, Art. II, sec. 2, cl. 11, p. 9. This procedure is characterized by the collective bargaining agreement as governed by the “principle of arbitration.” Id., Art II, sec. 1, cl. 8, p. 7. Apparently no stenographic record of the proceedings was requested and none kept. There is no evidence as to what notice plaintiff had of the hearing, but he was not asked to attend nor did he request to do so. Also, no competent evidence was presented as to the substance of respective agruments made by the Union during the conference committee proceeding.

The decision of the conference committee, dated August 7, 1964, signed by the presidents of the international union and the M.I.E.A., is as follows:

“The Conference Committee met and considered all of the information on this discharge that had been presented to the officers at the third and fourth steps of the grievance procedure.
The agreement which was signed on January 6, 1964, reinstating Joseph DeMarco to his job, was reviewed.
It was brought out that at the meeting between the President of the two Associations in the fourth step of the grievance procedure, Mr. DeMarco stated that this agreement was meaningless except for the provision for his reinstatement.
It was found that the Thatcher Furnace Company carried out the terms of the January 6, 1964 agreement and did reinstate Mr. DeMarco and as he did not carry out the terms of the agreement with respect to Ms obligations as set forth, the Conference Committee decided that his discharge was for just cause because of his violation of the agreement.”

Subsequent to notification of this decision, plaintiff filed a charge against his employer with the National Labor Relations Board alleging that the company had discharged him because of his union activities. He filed no unfair labor practice charge against the union, although in this suit he charges it violated its statutory duty of fair representation to him. After a two-month investigation the Regional Director of the N.L.R.B. refused to issue a complaint on DeMarco’s charge. This decision was affirmed on appeal by the Office of the General Counsel of the Board.

The plaintiff claims that the company, by unjustly discharging him, violated the collective bargaining agreement and that the union, though not a party to this litigation and though it processed his grievance to arbitration, violated its duty of fair representation during the arbitral process in which plaintiff played no part. In Vaca v. Sipes, 386 U. S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967), followed in Zalejko v. Radio Corp. of America, 98 N. J. Super. 76, 236 A. 2d 160 (App. Div. 1967), it was held that if an employee has a meritorious grievance and if his union processes his grievance arbitrarily, discriminatorily or in bad faith—a breach of its statutory duty of fair representation—he may be entitled to an appropriate remedy. The defendant employer may set up as a defense to such suit the union’s disposition of the grievance so long as the union honored its duty of fair representation in handling the employee’s claim. In order to be entitled under this doctrine to a nullification of the conference committee decision and to a recovery from his employer for damages incurred by his discharge, plaintiff must prove both that the union violated its duty of fair representation to him and that the discharge was unjust.

Plaintiff predicates the union’s alleged breach of its duty of fair representation in that it arbitrarily represented him before the conference committee. Plaintiff urges that his case at step 5 of the grievance procedure was prejudiced by the following alleged derelictions by the union:

(1) Its failure to adduce additional evidence in support of plaintiff’s denial that he controlled production.
(2) Its failure to argue that the company must produce evidence in addition to the controverted production charts in order to prove its case to the conference committee.
(3) Its failure to advocate at step 5 that the agreement of January 6, 1964 was null and void and no conference committee decision could be based upon it,
(a) because union vice-president Butsavage, whose assent was a requisite to the agreement’s continued effectiveness, had repudiated it;
(b) because Butsavage, by reactivating at step 4 the grievance procedure established by the collective bargaining agreement, removed the locally executed document from consideration;
(e) because the agreement was “inconsistent with the collective bargaining agreement then in effect,” see. 9 (a), Labor Management Relations Act (1947), 29 D. S. G. A. 159 (a), amending National Labor Relations Act (1935), and is therefore contrary to the national labor policy and unenforceable.

Furthermore, he urges that the decision of the conference committee be nullified because his position was not adequately presented before it and because the union did not afford him an opportunity to appear personally or by counsel.

Defendants contend that the step 5 conference committee decision is an arbitration award within the meaning of N. J. 8. 2A :24^-l to 11. It is argued that since plaintiff has neither complied with, nor does his complaint meet, the requisites for vacating an award, N. J. 8. 2A :24^7, 8, relief based upon the doctrine of Vaca v. Sipes, supra, is foreclosed to him.

In Kenney v. McLean Trucking Co., 54 N. J. Super. 533 (App. Div. 1959), the court held that a committee, jointly and equally composed of international union officials and management association members and empowered to make decisions final and binding upon the affected parties, is essentially an arbitration committee created by the collective bargaining agreement of which plaintiff grievant is a beneficiary. Hence, to challenge a determination of such a committee, a grievant must comply with the arbitration statute, N. J. 8. 2A :24-l to 11. A dissatisfied party must commence a summary action within three months of his receipt of the decision in order to vacate an award of arbitration. N. J. 8. 2A :24r-7. Plaintiff filed his complaint on May 10, 19671, almost 33 months after delivery to him of the Conference Committee decision. The grounds upon which a court may vacate an award in arbitration are specified in N. J. 8. 2A :24r-8. It would appear that an employee who had a Vaca claim against his union for its mishandling of his grievance at arbitration has no remedy under this statutory provision.

If the Vaca rule does not apply to a grievance processed to arbitration, this all but disposes of plaintiff’s claim. However, Vaca points the other way. The case holds that where a collective bargaining agreement empowers a union to supervise the grievance machinery and invoke arbitration on behalf of the employees, a union does not breach its duty of fair representation, and thereby open up a suit by the employee for breach of contract, merely because it settled an employee’s grievance short of arbitration, so long as said grievance was not disposed of arbitrarily, discriminatorily or in bad faith. The court did not discuss the converse proposition : that a union’s recourse to arbitration for the disposition of a grievance necessarily immunizes it from a violation of said duty. Zalejko v. RCA, supra, which also involves a short-circuiting of the grievance procedure prior to arbitration, also sheds no light on this issue. In Vaca the Supreme Court suggests that to arbitrarily process an employee’s grievance in a perfunctory fashion could result in a union’s breach of its duty of fair representation, 386 U. S., at p. 191. It is plaintiff’s contention that a union, even while processing a grievance to arbitration, can breach its duty in its role as advocate of said grievance at arbitration.

Hnder a regime of collective bargaining the possibility of a conflict of interests between individual employees or groups of employees and the bargaining unit represented by a union is indeed real. For an example of a careful legislative attempt to balance these interests in the settlement of grievances see section 9(a) of the Labor Management Relations Act (1947). The Supreme Court of Wisconsin in Clark v. Hein-Werner Corp., 8 Wisc. 2d 264, 99 N. W. 2d 132 (1959), rehearing denied 100 N. W. 2d 317 (1960), addressed the issue of potential conflict of interests between the union which administers the grievance procedure and the grieving employee. The court said:

“So long as the union is fighting the battle of the employees through the arbitration proceeding the employees’ interests are being represented and there is no need for courts to provide protection to the employees. Sound public policy dictates that a court should not interfere with or disturb the orderly working of the arbitration process unless a compelling reason for invoking the court’s equitable powers is presented. One of the principal purposes of arbitration is to reach a speedy final result and to avoid protracted litigation.
However, as pointed out in a Comment in 6 U. C. D. A. Law Review (1959), 603, 628, ‘Often the substantial interests of the individual employee and the union diverge. At this point it is difficult for the union to adequately represent the individual’s interest. This may occur when he is a non-union member of the collective-bargaining unit, or he belongs to a minority faction of the union, or he is the ‘square peg in the round hole’ type, or merely because the union officials do not believe in his claim.’ * * *” (99 N. W. 2d, at p. 135)

When unions and grievants differ, rather than risk a charge of betrayal by rejecting the worker’s claim at earlier steps of the grievance process, unions have been known to carry such grievances to binding arbitration. Although a union may then offer only token representation of the grievant’s ease, and indeed may even in an unrecorded proceeding make its indifference known to the arbitrator, the onus of responsibility for the decision is shifted from the union to the arbitrator. Report of Committee of Improvement of Administration of Union Management Agreements, 1954—Individual Grievances, 50 Nw. U. L. Rev. 143, note 1, at p. 155 (1955), cited in Note, 66 Yale L. J. 946, 947 (1957). In the present case the collective bargaining agreement gives the union, and not the employee, the sole power to invoke the latter stages of the grievance procedure and does not provide for the grievant to appear at step 5. Thus, all of the above concerns are present in the instant case.

Judicial protection could be extended to employees whose interests were not being represented by the union in the arbitral process by reopening the arbitration to permit the grievant to appear, Clark v. Hein-Werner Corp., supra, or by imposing upon the union a duty to fairly advocate the grievance. The latter method appears consonant with the court’s desire in Vaca not to undermine the exclusive power of unions and management over the administration of the grievance procedure. Generally, under the rule of this case dissatisfied grievants must be bound by their union’s representation of their interests and cannot attempt to override settlements of their grievances, either in court or through the internal grievance machinery, absent some specific malfeasance by the union. See Note, 81 Earv. L. Rev. 252, 253 (1967); Note, 77 Tale L. J. 559, 561 (1968).

It might seem that judicial intervention on behalf of grievants in the arbitral process would conflict with the strong public policy of the courts to refuse to review the merits of arbitration awards. See United Steelworkers v. Enterprise Corp., 363 U. S. 593, 596, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960). However, in view of a union’s duty of fair representation to employees, I am doubtful that this judicial policy of nonintervention in arbitration awards should necessarily bar a court from scrutinizing the manner by which a union advocates a grievance in arbitration. Since the grounds for a court’s reversal of an arbitration award under Vaca are stringent and the grievant must shoulder the added burden of documenting a union’s conduct in the arbitration proceeding, it does not appear that the arbitral process would be much disturbed if the duty of fair representation were extended to include the union’s advocacy of the grievant’s cause during the arbitration proceeding.

Under the controlling “Conference Agreements” herein, there is no provision for an impartial arbitrator of grievances. International union and management officials equally comprise the conference committee panel. Although there is no express provision for advocacy of the grievant’s claim before the conference committee, it would appear that in an arbitration proceeding of this peculiar nature it becomes the duty of the union representatives on the committee to adequately present the grievant’s case to the whole panel.

The accommodation of this safeguard for grievants in arbitration with N. J. S. 2A :24r-8 is still another matter. Kenney v. McLean Trucking Co., supra, is not dispositive on this issue. There the grieving employee, disappointed by an arbitration award, sued the arbitration committee and its secretary for damages for their alleged interference with his rights as an employee. No breach of his union’s fiduciary duties was alleged. In setting up the arbitration award and N. J. 8. 2A :24-8 as a bar to relief, the court stated that it “would be intolerable to countenance” plaintiff’s action, 54 N. J. Super., at p. 540, because, it implied, exposing industrial arbiters to liability would jeopardize the usefulness of the arbitral process, a most valuable procedure for the prevention of industrial strife. See United Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574, 578, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960). This rationale has only marginal force in regard to the application to the arbitral process of the Vaca doctrine, for as observed above, a breach of the duty of fair representation is carefully restricted so as not to interfere unduly with the collectively bargained for grievance procedure.

On the other hand, see Note, 14 Rutgers L. Rev. 143, 184 (1959) for a plea that the judiciary “will scrupulously limit themselves to the grounds set out in the [arbitration] statute for * * * vacation of an award.” Yet section (c) of N. J. S. 2A :24-8, which permits vacation of an arbitration award if the arbitrator refuses to hear evidence “pertinent and material to the controversy,” offers a possibly helpful analogy. It is concerned with evidentiary decisions by the arbitrator which prevent him from making an informed judgment. Wthen a union represents a grievant whose interests diverge from those of the group, a faulty presentation of the grievant’s ease by the union creates the same undesirable result.

As already noted, plaintiff in effect urges that the conference committee decision be disregarded. Hence, the complaint should be treated as including an application to vacate an arbitration award. Assuming, arguendo, that in light of Vaca plaintiff is not bound by the three-month limitation in which to initiate such proceeding, N. J. S. 2A :24-7, and that he is not limited on such application by the provisions of N. J. S. 2A :24^8, I find that plaintiff has failed to sustain his dual burden of proving both a meritorious breach of contract claim against the company and a breach of the duty of fair representation by the union.

As noted earlier, Vaca set forth the view that a union violated its statutory duty of fair representation to a grieving employee when its conduct toward him is arbitrary, discriminatory or in bad faith. But the court found that the grievant’s union did not breach its duty under the facts of that case. Owens, the original plaintiff, had been dismissed from his job because of poor health. The union initiated a grievance, but upon receiving an unfavorable medical report, decided to drop the grievance at the fourth step just prior to arbitration, and instead urged Owens to accept a company offer to refer him to a rehabilitation center. Owens refused and filed suit against the union in a Missouri state court. The Supreme Court, in finding no breach, cited the union’s attempt to gather sufficient medical evidence to prove Owens’ case, its efforts at securing less vigorous work or rehabilitation treatment for him, and the lack of any evidence of personal hostility by union officials toward the grievant.

In Zalejko v. Radio Corp. of America, supra, the court applied the doctrine of Vaca to its facts and held that the •union had violated its statutory duty to the grievant and granted relief. In that case the grievant had been injured in an accident and had been granted a medical leave of absence by the employer because she was physically unable to work. About two months later the plant physician concluded that grievant was physically able to resume her job and the company terminated grievant’s medical leave. When grievant failed to return to work, RCA terminated her employment. Plaintiff filed a grievance which the union processed through the first four steps of the grievance procedure, without resolution. At this point the employer offered to reinstate plaintiff, but she refused, claiming continued physical disability. The union’s attorney then advised it that under the terms of the collective bargaining agreement an employee was under a duty to return to work or face termination if the plant physician certified that the employee was able to return. Based upon his advice and the other information before it, the union notified RCA that it did not intend to process the grievance to arbitration. The Appellate Division affirmed the trial court’s referral of the grievance to arbitration on the ground that the union’s conduct, in following the advice of its attorney and in making no effort to obtain or present to the company available medical reports favorable to the grievant, could be distinguished from that of the union in Vaca and did not constitute fair representation of her on her grievance.

The instant case, unlike Vaca and Zalejlco, does not involve a union’s decision to short-circuit the processing of a grievance. Instead at issue here is the fairness of the union’s advocacy of plaintiff’s cause before an arbitration panel, the proceedings of which are not stonographically recorded.

Plaintiff urges that the arbitration decision should be nullified because in several respects the union did not provide him fair representation before the conference committee and did not afford him an opportunity to present his own case personally or by counsel. He complains that the union made no effort to unearth additional evidence to support his denial that he controlled production or advocated that others do so. Among the important indicia of a union’s fair representation which the court cited in both the Vaca and Zalejko cases was that it had “attempted to gather sufficient evidence t© prove [grievant’s] case,” 386 U. S., at p. 194, 87 S. Ct., at p. 919; 98 N. J. Super., at p. 81. Unlike the situation in Zalejho, the record reveals no item of evidence offered to the union but rejected by it, or any material item which it could have discovered with any investigative effort which rebuts the company’s assertions that plaintiff broke his agreement not to control production.

The argument that the union allegedly neglected to demand that the company present the conference committee with a degree of proof that plaintiff broke his agreement higher than that represented by the disputed work performance charts also carries no weight. The record contains no evidence as to whether the union made such a demand or whether the company did in fact supplement its evidence at the arbitration proceeding. Nor does the record show whether the union altered its position and decided to concede the probity of the charts. Plaintiff seems to think that because the work performance chart did not satisfy the union representative at step 4 and no further proof was adduced by the company at arbitration, the conference committee composed of as many labor as management representatives could not in majority conceivably find against him. This view reflects a misconception of the role of the union members of the conference committee. They are essentially arbitrators. Because one or several union officials took a certain position on an offer of proof at one stage of the grievance procedure, this position cannot bind the entire union contingent. Otherwise step 5 arbitration would invariably terminate in deadlock and be inoperable.

The aspect of the union’s handling of plaintiff’s case which appears to upset plaintiff most is that, on the • one hand, he says international vice-president Butsavage led him to believe that by invoking step 4 of the grievance procedure 'the agreement of January 6, 1964 could be considered repudiated, and, on the other, the conference committee based the propriety of plaintiff’s discharge on his violation of the self-same agreement and not flatty on his alleged endeavors to control production.

De Marco asserts that Butsavage’s statement seemed to have considerable force to him. The agreement of January 6, 1964 provided in somewhat ambiguous language that it was effective from its execution but that the occurrence of the condition subsequent of the refusal of either Butsavage or Grosser to assent would invalidate the agreement. Grosser did assent; the evidence conflicts as to whether Butsavage ever did so. The company grievance filed March 13, 1964 asserts that Butsavage had given his consent. Plaintiff’s hearsay recollection of Butsavage’s comments on April 2, 1964 were that the latter claimed ignorance of said agreement. Assuming for the sake of argument that the union’s knowing failure to advocate at arbitration the ineffectiveness of the agreement by reason of Butsavage’s nonassent constituted a breach of its duty of fair representation, plaintiff has failed to sustain his burden of proving his premise that Butsavage had not approved the agreement. If the union believed such assent had been given, its decision not to argue this issue is clearly not arbitrary.

Plaintiff also testified that Butsavage told him he could disregard the January 6 agreement because the union and company were to reactivate the grievance machinery for his claim at the step 4 stage. Plaintiff faults the union for not pressing in arbitration the position that a return to the grievance procedure rendered the January 6 agreement meaningless. The conference committee decision indicates quite clearly it considered plaintiff’s position, which is based upon Butsavage’s alleged advice. Perhaps the union disavowed its vice-president’s opinion or perhaps plaintiff misunderstood Butsavage. In any event, plaintiff’s position was made known to the arbitrators. Since plaintiff proffers no other evidence or authority which the union could have utilized in his behalf, even if it, as alleged, yielded to the conclusion that the agreement was valid and binding despite the re-institution of the grievance procedure, such conduct with respect to the grievant is not arbitrary.

Plaintiff also complains that the union should have objected to the arbitration tribunal that the January 6, 1964 agreement violated the proviso of section 9(a) of the Labor Management Eelations Act, that any private grievance adjustment must not be “inconsistent with the collective bargaining agreement then in effect”, and should be nullified. The presence of Mastandrea, the union’s business representative, at the discussions prior to and at the execution of the agreement, satisfied the statutory condition that the union be given an opportunity to be present at the private settlement. Assuming that the agreement’s provision that the company change the methods of welding tube bundles, conduct a time-study and re-establish the piece work rate on the line is inconsistent with the collective bargaining agreement, the exclusive bargaining agent, the party for whom this proviso is designed to benefit, chose not to challenge the private adjustment on this ground. That choice is within its discretion and not the grievant’s.

Hence, plaintiff failed to sustain his burden of proof that the union violated its duty of fair representation in its advocacy at an arbitration hearing of which there is no record. But plaintiff also asserts that he is entitled to a vacation of the award and damages against the company because the union did not afford him notice of the arbitration hearing and an opportunity to appear personally or by counsel.

As earlier noted, some commentators have concluded that in certain situations an employee must present his own case at the arbitral proceeding, not merely to secure more effective representation but to obtain any representation at all. Note, 66 Yale L. J. 946, 947 (1957). For instance, see Clark v. Hein-Werner Corp., supra, in which it was held that certain nonunion employees who were engaged in a seniority dispute with union members and represented at arbitration by a union hostile to their interests were deprived of due process when they were not afforded proper notice of the arbitral hearing. This plaintiff, however, presents no evidence to show that the union was hostile to him or his grievance, which might lead to the inference that at arbitration the grievant could only expect perfunctory advocacy. On the contrary, the testimony is to the effect that at least at step 3 and step 4 the union steadfastly supported plaintiff. In these circumstances it would appear plaintiff’s grievance did not present any peculiar aspects calling for a departure from the terms of the collective bargaining agreement investing the union with sole power to administer the final three steps of the grievance procedure.

Finally, plaintiff is barred from relief against the company because he has failed to sustain his burden of proving that he was unjustly discharged.

At several stages of the grievance procedure the company presented work performance charts which purportedly proved that DeMarco had controlled his own output. Plaintiff can only deny their probity and point to the union’s agreement with him at various steps of the grievance procedure on this point. His status as leading producer on the tube bundle line welding operation and as the worker whose output approached closest to the time study rates certainly does not logically preclude the probability that he “controlled” his output.

The finding of the Appeal Tribunal of the State Division of Employment Security that plaintiff had not been “discharged for misconduct connected with his work” is not persuasive. It is not binding on this court and resulted from a failure by the company to sustain a burden of proof. As noted above, the burden of proof in this matter lies with DeMarco.

Judgment for defendants. An appropriate form of judgment will be submitted, consented to as to form or to be settled on notice.


source: Caselaw Access Project

author: Labrecque, J. A. D.

license: Public Domain

text:
    RUTH NEWMARK AND DUDLEY NEWMARK, HER HUSBAND, PLAINTIFFS-APPELLANTS, v. GIMBEL’S INCORPORATED, A CORPORATION, AND SELIGMAN & LATZ PARAMUS CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 22, 1968—Supplemental Briefs Filed July 30, 1968
    Decided August 7, 1968.

      Before Judges Coneord, Codlester and Labrecque.

      Mr. Herman B. Packer argued the cause for appellants (Mr. 8aul Peres, attorney).

      Mr. John ~W. Grady argued the cause for respondents.
   The opinion of the court was delivered by

Labrecque, J. A. D.

Plaintiffs Ruth Newmark and Dudley Newmark, her husband, appeal from denial of their motion for judgment in their favor and from a judgment in favor of defendants based upon a jury verdict of no cause for action. For purposes of the present appeal defendants will be considered as one.

Mrs. Newmark sued for injury to her skin and loss of hair following a permanent wave treatment at defendant’s beauty parlor. Her husband sued per quod. The trial was before the judge and a jury. There was no transcript, the appeal being submitted to us on a statement of facts approved by the trial court.

' From the statement of facts it appears that on November 16, 1963, when Mrs. Newmark, a regular customer, kept her standing weekly appointment to have her hair washed and set at defendant’s beauty parlor, she inquired about a permanent wave that was on special sale. She was waited on by one Yalente, a beauty technician, who told her that her fine hair was not right for the special permanent and that she needed a “good” permanent wave. She agreed to this. Her hair was then cut, w;ashed and dried after which it was sectioned off and a waving solution was applied with cotton. Then her hair was rolled section by section following which more waving solution was put on with an applicator bottle and a cream was applied along the hairline and covered with cotton. About three to five minutes after the last of the waving solution had been applied she experienced a burning sensation on the front part of her head. Upon her complaint to Valente he added more salve (cream) to that which had already been applied along the hairline. The burning sensation continued but was alleviated when her hair was rinsed in lukewarm water.

The curlers were thereafter removed and a neutralizing solution applied which was allowed to remain about seven minutes, following which her hair was rinsed and then set by Yalente and she was put under a dryer. While under the dryer the burning sensation on the top of her scalp returned and persisted for almost the entire 25 minutes that she was there. When she complained Yalente turned down the dryer heat, and this gave her some relief. Her hair was then combed and she left with a severe headache which she did not at the time associate with the permanent wave job.

Her forehead became red that evening. On the following day her whole forehead was red and blisters had appeared. An unusually large amount of her hair fell out when it was combed. On the following Tuesday (November 19), she returned to the heauty parlor where Yalente gave her a conditioning treatment which, he said is given when the hair is dry, and which Mrs. Newmark testified made her hair feel singed at the hairline.

Valente admitted that the permanent wave procedure followed was at his suggestion. It is conceded that the permanent wave solution he used was “Candle Glow,” a product of Helene Curtis. Valente testified that the processing products he used were applied as they were taken from the original packages or containers, and that it was common for a customer to feel a burning or tingling sensation when the waving lotion was applied. He stated that persons were affected “in varying degrees” by the treatment. When he began the treatment there was “nothing wrong” with her hair or scalp.

On Friday, November 22, Mrs. Newmark visited a dermatologist who also saw her twice thereafter. He diagnosed her condition as contact dermatitis causally related to the hair solution, and loss of hair following dermatitis.' Under his treatment the redness and tenderness of the scalp gradually diminished. After the last visit she continued to take medications at his suggestion. At the time of his deposition (date not indicated) there was still loss of hair on the top of her head and he deposed that he could not definitely estimate the time it would take for this to be replaced. Mrs. Newmark also suffered from anxiety and nervousness due to the loss of her hair.

Defendant’s brief recites that the package containing the “Candle Glow” lotion contained an instruction to “Ask the patron her previous experience with cold waves to be sure she does not have a sensitivity to waving lotion.” Plaintiffs contend in their reply brief that the complete instructions on the package (as set forth in defendant’s answers to interrogatories) were in the form of a warning reading as follows :

“Always wear rubber gloves when giving a wave. Make sure patron’s hair and sealp are in condition to receive a cold wave. Never brush or rub the scalp vigorously either before or after shampooing. If the scalp is excessively tender or shows evidence of sores or abrasions, the wave should not be given. Ask the patron her previous experience with cold waves to be sure she does not have a sensitivity to waiving lotion.”

Defendant’s medical expert, a dermatologist who had examined Mrs. Newmark four months after the incident, noticed a diminution in hair growth in several areas at that time but attributed it to her use of wire brush curlers. He found no scar tissue and on this basis concluded that there was no permanent injury to the scalp.

Plaintiffs’ complaint was based upon negligence and breach of implied and express warranties. The court ruled as a matter of law that plaintiffs were not entitled to recover on the basis of breach of either express or implied warranty, and submitted the case to the jury on the issue of negligence only. Plaintiffs moved for a direction of a verdict (judgment) in their favor as to liability and as to the defense of contributory negligence. The former motion was denied and the latter granted. Following the jury’s verdict of no cause for action plaintiffs moved for a new trial or, in the alternative, for an order for judgment n.o.v. in their favor on the issue of liability. Both motions were denied.

The core question here presented is whether warranty principles permit a recovery against a beauty parlor operator for injuries sustained by a customer as a result of use on the customer of a product which was selected and furnished by the beauty parlor operator. Defendant concedes in its brief that had the product in question been dispensed by it directly to Mrs. Newmark for home use and subsequently proved defective, Magrine v. Krasnica, 94 N. J. Super. 228 (Cty. Ct. 1967), affirmed sub nom. Magrine v. Spector, et al., 100 N. J. Super. 223 (App. Div. 1967) would support plaintiffs’ position. Accord, Griffin v. James Butler Grocery Co., 108 N. J. L. 92, 96—97 (E. & A. 1931). In ruling that warranty did not apply here the trail judge reasoned that the transaction between the parties amounted to the rendition of services rather than the sale of a product, hence defendant could be held liable only for negligence in the performance of such services. Our consideration of the question convinces us that his ruling was a mistaken one.

It would appear clear that the instances in which implied warranties may be imposed are not limited to “sales” that come strictly within the meaning of c. 2 of the Uniform Commercial Code. In the comment to the warranty provision of the latter, N. J. S. 12A :2—313, it is said:

“Although this section is limited in its scope and direct purpose to warranties made by the seller to the buyer as part of a contract for sale, the warranty sections of this Article are not designed in any way to disturb those lines of case law growth which have recognized that warranties need not be confined either to sales contracts or to the direct parties to such a contract. They may arise in other appropriate circumstances such as in the case of bailments for hire, whether such bailment is itself the main contract or is merely a supplying of containers under a contract for the sale of their contents. * ® *” (at p. 190)

In Cintrone v. Hertz Truck Leasing, 45 N. J. 434, 446 (1965), the court said:

“There is no good reason for restricting such warranties to sales. Warranties of fitness are regarded by law as an incident of a transaction because one party to the relationship is in a better position than the other to know and control the condition of the chattel transferred and to distribute the losses which may occur because of a dangerous condition the chattel possesses. These factors make it likely that the party acquiring possession of the article will assume it is in a safe condition for use and therefore refrain from taking precautionary measures himself. 2 Harper and James, Torts, § 28.19 (1950). Harper and James point out that the presence of such factors in sales set in motion the development of the doctrine of implied warranties. They decry the notion, however, that because the doctrine had its origin in sales, the warranty protection should be withheld in other situations when the same considerations obtain. And they argue persuasively that in the face of present-day forms of business enterprise, development of the warranty doctrine in sales should point the way by suggestive analogy to similar results in cases where a commodity is leased. Id,., at p. 1577.”

See also Santor v. A & M Karagheusian, Inc., 44 N. J. 52 (1965); Schipper v. Levitt & Sons, 44 N. J. 70 (1965); Totten v. Gruzen, 52 N. J. 202 (1968).

The policy reasons applicable in the ease of sales-would likewise justify the extension of liability for breach of warranty to any commercial transaction where one person supplies a product to another, whether or not the transaction be technically considered as a sale. See Farnsworth, “Implied Warranties of Quality in Non-Sales Cases,” 57 Oolum. L. Rev. 653, 662-69 (1951) ; Magrine v. Krasnica, supra, 94 N. J. Super., at p. 231. The rationale underlying the liability of a retailer for defects in a product obtained from a reputable supplier and sold to a customer, has been explained as follows:

“The argument for the prevailing view points to the strict nature of warranty at common law and under the board terms of the Sales Act, which certainly do not suggest an exception for latent defects. If reliance upon the seller is needed, it may be found in the customer’s reliance on the retailer’s skill and judgment in selecting his sources of supply. Broader considerations are also urged. The retailer should bear this as one of the risks of his enterprise. He profits from the transaction and is in a fairly strategic position to promote safety through pressure on his supplier. Also, he is known to his customers and subject to their suits, while the maker is often unknown and may well be beyond the process of any court convenient to the customer. Moreover, the retailer is in a good position to pass the loss back to his supplier, either-' through negotiations or through legal proceedings.” 2 Harper and 'James, Torts, § 28.30, p. 1600 (1956).

Weighing the foregoing policy considerations, we-are satisfied and hold that, stripped of its nonessentials the transaction here in question, consisting of the supplying of a product for use in the administration of a permanent wave to plaintiff, carried with it an implied warranty that the product used was reasonably fit for the purpose for which it wts to be used. N. J. S. 12A :2-315.

Mrs. Newmark was a regular customer of defendant and had a weekly appointment to have her hair washed and set. On the day in question she received something in addition — a permanent wave. In essence, it involved application of a permanent wave lotion or solution and thereafter a neutralizer. The lotion was selected by one of defendant’s operators who was familiar with her scalp and hair from current examination and prior visits. The product was secured from sources known to defendant and only defendant knew of any special instructions concerning its use. The isk from use of the lotion was incident to the operation of defendant’s business, a business which yielded it a profit and placed it in a position to promote safety through pressure on suppliers. It was in a position to protect itself by making inquiry or tests to determine the susceptibility of customers to the use of the product, or by using another lotion which did not present the possibility of an adverse effect. It could secure indemnity from its suppliers through legal proceedings or otherwise. The fact that there was no separate charge for the product did not preclude its being considered as having been supplied to the customer in a sense justifying the imposition of an implied warranty against injurious defects therein.

The facts in Magrine v. Krasnica, supra, on which defendant principally relies, are clearly distinguishable. That case involved a hypodermic needle, a tool of the dental profession, which was never intended to be supplied to the patient or consumed in the course of dental treatment. Here the product supplied to Mrs. Newmark was used up in the process of giving her a permanent wave. While it was later rinsed out, its effect was intended to remain and be part of the finished product. In this respect the case is clearly analogous to Watson v. Buckley, (1940) 1. All E. R. 174 (K. B. 1939) where a hairdresser was held liable for breach of warranty by reason of the defective nature of the hair dye used on plaintiff. See also G. H. Meyers & Co. v. Brent Gross Serv. Co., 1 K. B. 46, 150 L. T. R. 96 (1933) (warranty applied to connecting rods which were installed in a motor and subsequently broke due to defects in their manufacture); Dodd v. Wilson [1946] 2 All E. B. 691 (K. B.) (veterinary surgeon held liable for injuries to cattle caused by a toxoid with which the cattle had been vaccinated).

Defendant also cites Perlmutter v. Beth David Hospital, 308 N. Y. 100, 123 N. E. 2d 792 (Ct. of App. 1954) and Epstein v. Giannattasio, 25 Conn. Sup. 109, 197 A. 2d 342 (Ct. Common Pleas 1963) in support of its position that the transaction here in question did not amount to a sale and hence could not be the subject of a warranty. The holding in the former case, that the furnishing of blood and the giving of it in a transfusion (which later caused hepatitis) did not constitute a sale by a hospital, has not been followed in this State. See Jackson v. Muhlenberg Hospital et al., 96 N. J. Super. 314, 333 (Law Div. 1967). Assuming that it had been, we incline to the view that that case may be better explained on the basis of special policy considerations in favor of hospitals, and on the further-ground that there was no way in which the blood could be tested to ascertain that all of the hepatitis strain had been removed. See Magrine v. Krasnica, supra, 94 N. J. Super., at p. 237. Nor are we impressed by the reasoning of the court in Epstein v. Giannattasio. While the transaction there was governed by the Uniform Commercial Code, the court, in ruling on demurrers to the complaint, relied in great part on Perlmuiter and on cases involving the service of foods under the former Connecticut Sales Act.

Defendant’s brief seeks to sustain the result below on the alternative ground that there was an absence of sufficient proof to establish that the product involved was so defective as to amount to a breach of implied warranty of fitness for purpose. The parties were granted leave to file supplemental briefs on that issue. These have been received and considered by the court. The argument is that plaintiff’s injury was the result of a unique allergic reaction on her part to the waving solution, therefore plaintiffs did not establish as part of their case the generally defective nature of the product. Plaintiffs reply that not all the proofs relevant to that issue were set forth in the approved statement of facts since the point stated was not thought to be in issue on the appeal, not having been urged by defendant below.

We need not pursue the procedural question. While the statement of facts presently before us leaves something to be desired, we are satisfied that the jury could have found from the evidence that the product was defective within the intent of the statute. In the first place the record does not show that plaintiff’s dermatitis was the result of an allergic attack peculiar to her own sensitivities. Neither medical witness so testified. Second, the product was accompanied by an instruction in the form of a warning from which it could be inferred that its use, in the absence of certain precautions, could adversely affect an appreciable number of persons. Some support for such an inference is found in Valente’s testimony that a burning or tingling sensation is fairly common [in such cases] and that each person was affected "in varying degrees.” It is conceded that plaintiff testified that she had received permanent wave treatments prior to and for two years subsequent to the incident in question with no adverse effects to her hair or scalp.

Finally, regardless of what the law may be elsewhere, see Annotation, 26 A. L. R. 2d 963 (1952), it is settled in New Jersey that the mere fact that only a small proportion of those using a certain product would thereby suffer injury does not absolve the seller from liability on the basis of implied warranty. Zirpola v. Adam Hat Stores, Inc., 122 N. J. L. 21 (H. & A. 1938). In Reynolds v. Sun Bay Drug Co., 135 N. J. L. 475 (E. & A. 1947), where plaintiff had also sustained a skin infection, the court unanimously disallowed the contention that the product there involved (a lipstick) was, as a matter of law, to be regarded as reasonably fit for the purpose for which it was sold, where only a small proportion of those using it would be adversely affected. See also Bianchi v. Denholm & McKay Co., 302 Mass. 469, 19 N. E. 2d 697, 121 A. L. R. 460 (Sup. Jud Ct. 1939); Smith v. Burdine’s, Inc., 144 Fla. 500, 198 So. 223, 131 A. L. R. 115 (Sup. Ct. 1940); Crotty v. Shartenberg’s—New Haven, Inc., 147 Conn. 460, 162 A. 2d 513 (Sup. Ct. of Err. 1960).

Defendant urges that we overrule Zirpola but that ease is an expression of our highest court, reaffirmed later in Reynolds, and we may not do so. Moreover, the rule seems consonant with the more liberal approach our cases have been taking for the protection of the rights of consumers.

It follows that the issue of defendant’s liability for breach of implied warranties of fitness for purpose and merchantability should have been submitted to the jury.

Plaintiffs also urge that Valente’s assertion that Mrs. Newmark needed a “good” permanent wave, a proposition to which she agreed, amounted to an express warranty which could be found to have been breached by defendant. We disagree. The reference in question was in the context of his testimony that Mrs. Newmark had very fine hair. Thus the adjective “good” had reference to the effectiveness, so far as her hair was concerned, of a regular permanent wave as compared with the wave which was on sale, rather than to the safety of the solution or lotion used in administering the wave. We therefore find no case whatever for breach of express warranty.

Plaintiffs’ motion for judgment in their favor as to liability was properly denied since there were issues of fact for determination by the jury. We find it unnecessary to pass upon the propriety of the court’s denial of plaintiffs’ motion for a new trial.

Reversed and remanded.


author: Coneord, S. J. A. D.

text:
    EMILE J. KARAM, INDIVIDUALLY, AND t/a THE CREST, AND FRANK O’HARA, INC., A CORPORATION OF THE STATE OF NEW JERSEY, t/a O’HARA’S CAFE, PLAINTIFFS-APPELLANTS, v. ALCOHOLIC BEVERAGE CONTROL BOARD OF WEST ORANGE, AND RALLO’S RESTAURANT & PANTRY, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 6, 1968
    Decided August 8, 1968.

      Before Judges Coneord, Collester and Labrecque.

      Mr. William J. Gearty argued the cause for appellant Emile J. Karam, &c.

      Mr. Harry P. Durkin argued the cause for appellant Frank O’Hara, Inc., &e.

      Mr. Harry A. Margolis argued the cause for respondent Board of Alcoholic Beverage Control of West Orange (Messrs. Margolis ■& Margolis, attorneys).

      Mr. Martin Gelber argued the cause for respondent Rallo’s Restaurant & Pantry, et al.

   The opinion of the court was delivered by

Coneord, S. J. A. D.

Two neighboring owners of licensed premises appeal from the affirmance by the Division of Alcoholic Beverage Control of the approval by the West Orange Board of Alcoholic Beverage Control (West Orange Board) of a transfer of a plenary retail consumption license from Green’s Hotel, Inc., at 103 Pleasant Valley Way, to Rallo’s Bar, Inc (Rallo’s), at premises theretofore designated as 650 Eagle Rock Avenue, but changed to 3 Beasley Street (identical premises) for purposes of the application for the transfer.

The significant issue raised is whether the location of the transferee was impermissible under the provisions of the West Orange ordinance which bars the grant or transfer of such a license to premises “within a distance of 500 feet from any other premises then covered by” a similar license. Specifically, appellants argue that their respective premises, each of which has such a license, are less than 500 feet from Rallo’s premises. We decide that Rallo’s is less than 500 feet from OTIara’s Cafe, thereby invalidating the transfer, and consequently do not reach the question of illegal propinquity to the other premises in question, The Crest.

A review of the legal criteria for measurement of the pertinent distance will precede an outline of the facts.

The ordinance provides that the 500-foot distance “shall be measured in the same manner as required by statute for the measuring of 200 feet relative to schools or churches.” That statute, N. J. S. A. 33 :l-76, provides that the “two hundred feet shall be measured in the normal way that a pedestrian would properly walk from the nearest entrance of said church or school to the nearest entrance of the premises to be licensed.” Of the various waj^s, if more than one, by which a pedestrian can properly go from one place to another, the shortest is to govern. Presbyterian Church, etc. v. Div. of Alcoholic Bev. Con., 53 N. J. Super. 271, 279 (App. Div. 1958): Finally, applying the practical construction by the Division for many years of the term, “nearest entrance,” as recognized by us in the case just cited, the measurement should be “between points on the sidewalk intersecting (sic) any walk which a person would use in entering the properties in qxiestion.” (Id., at p. 276). We take this to mean the point at which the line between the sidewalk and the premises proper would intersect a line from the entrance door to the nearest sidewalk which a pedestrian would normally traverse in leaving or entering the premises, as the case might be.

For some time prior to the original application giving rise to this dispute Eallo’s Eestaurant had been operating (under the same proprietary interest), pursuant to a zoning variance necessitated by the fact that it was in a residential zone, in a two and one-half story converted dwelling on the south side of Eagle Eock Avenue in West Orange, about 80 feet east of the southeast corner of the intersection of Eagle Eock Avenue and Pleasant Valley Way. O’Hara’s Cafe, the other measuring point here pertinent, is situate on the west side of Pleasant Valley Way, distant about 75 feet north of the northwest corner of the same street intersection. The entrance to Eallo’s was always on Eagle Eock Avenue, the natural front of the building, with a prominent name sign affixed thereon. The records of the municipal zoning board, building inspector and tax assessor show the address of the premises to have been 650 Eagle Eock Avenue. The distance from this entrance on Eagle Eock Avenue to the point where a line from O’Hara’s Cafe’s entrance intersects the sidewalk in front of it, by any normal pedestrian route, is less than 290 feet. Thus the distance between the respective critical locations was prima facie substantially under the 500-foot minimum of the ordinance.

Not abashed by the foregoing difficulty, Eallo’s filed for approval of the transfer with the West Orange Board by specifying its address as 3 Beasley Street (that being the street intersecting Eagle Eock Avenue to the east of the premises). This was deemed colorable, since Eallo’s has a parking lot east of its building occupying the southwest corner of the intersection of Eagle Eock Avenue and Beasley Street, and the building had a side entrance on its east side (apparently originally a delivery entrance), designated on the application for the transfer as the “bar entrance.” Thus the “distance” from O’Hara’s Cafe was swollen by the assumption that the hypothetical patron-pedestrian, bored with the variety of drink (or company) available at O’Hara’s, and eager to sample that afforded by Eallo’s, would saunter right past Eallo’s front entrance on Eagle Eock Avenue, proceed around the corner, walk southerly up the sidewalk on Beasley Street to a point sufficient to make the total distance traversed 500 feet, and effect his entry to the premises therefrom across the parking lot.

However, the West Orange Board did not view the matter as quite that simple. Although three of its five members were sympathetic with the objective of adding another fine restaurant, suitably accoutered with a liquor license, to an area already noted for fine dining places, they wisely perceived that the thirsty patron enroute from O’Hara’s might enter Eallo’s from its front entrance, or failing that, by its side entrance but via the parking lot from Ragle Rocíe Avenue, proceeding directly along the east side of the building to that entrance. This would not increase the distance from O’Hara’s Cafe anywhere near enough to add up to the 500 feet which the ordinance commanded as the patron-pedestrian’s minimum journey. But the Board was ready with a solution to the applicant’s problem. It approved the transfer but subject to the following conditions:

“1. Construction of a new entrance on the Beasley Street side of the premises in accordance with the plans submitted to the Board, said entrance to be appropriate in design for use as a main entrance.
2. Sealing of all entrance doors to the premises located on Eagle Bock Avenue except for those doors to be used as fire exits as maybe required by the Fire Department.
3. Construction of a 3-% foot high masonry wall of decorative design with no openings therein from point abutting building on Eagle Bock Avenue to the point on Beasley Street shown on plan submitted by applicant, said point being more than 500 feet from nearest holder of a Plenary Betail Consumption License.”

Rallo’s undertook to comply with the specified conditions. It can be seen that now the hypothetical pedestrian was physically barred from going into the premises from Eagle Rock Avenue, whether by the front door or the side door. He was blocked by a masonry wall built right up to the building, and he had to walk around the Beasley Street corner. But not far enough, according to the Division of Alcoholic Beverage Control, which on the first appeal thereto in this matter found that, according to the testimony of applicant’s expert surveyor (who is also Town Engineer of West Orange), the distance the pedestrian would traverse on Beasley Street—'62.6 feet—would not suffice to make the total trip from O’Hara’s consume the necessary 500 feet. It was only 493.7 feet. Thus the Division was “constrained” by the shortage of 6.3 feet to reverse the West Orange Board and deny the application, but “without prejudice to the filing of a new application based upon such facts as will meet the distance requirements of the applicable ordinance.”

On a renewed application to the West Orange Board, Rallo’s expert surveyor chose another route from O’Hara’s to the end of the new wall on Beasley Street which, he testified, made the distance 507.2 feet. This was accomplished apparently by using different cross-overs at the Eagle Rock-Pleasant Valley Way intersection from those the expert had used at the initial hearing. The objectors contested this showing with testimony of their own expert, who purported to lay out six pedestrian routes between O’Hara’s and Rallo’s altered entrance, all to the end of the newly constructed wall, five of which measured less than 500 feet.

One such Toute of less than 500 feet involved travel-ling the north rather than the south side of Eagle Rock Avenue going easterly from the intersection, and crossing that thoroughfare on the extension of a line of the sidewalk running along the west side of Beasley Street. This might well be supported by the decision in Hopkins v. Municipal Bd. of Alcoholic, etc. Newark, 4 N. J. Super. 484 (App. Div. 1949), which seemingly approves a crossing at a “T” intersection. Others involved walking along the building line of the sidewalk on Pleasant Valley Way and Eagle Eock Avenue, and traversing the intersection of those streets within their cross-walks but not stepping up on the curb corners. We incline to the view that the latter method was impermissible in terms of pedestrian safety. However, we do not pass upon it, or upon the controlling status of the route arguably validated by the Eoplcins ease, supra, as we are clear that the device of building the wall to compel the pedestrian to go around the Beasley Street corner to gain access to the premises was a fundamentally improper evasion of the letter and spirit of the ordinance in the light of the adjudicated cases. We disapprove of the countenancing of this device by the determination of the Division under review. In affirming the determination of the Board, the Division accepted the testimony of Eallo’s surveyor that all proper courses of travel would measure over 500 feet.

On countless occasions our courts have emphasized the sensitive nature of liquor control legislation. Local ordinances attuned to the public policy involved in this area should be fairly enforced, not regarded as nuisance hurdles to be sidestepped or evaded in the interest of a municipal policy, not reflected in any ordinance, of a contrary import. The obvious purpose of the 500-foot ordinance is the salutary one to prevent an undue concentration of licensed premises in any area. It should be administered in the spirit of its policy, not grudgingly. In other words, so long as such an ordinance is on the municipal books, it cannot be evaded to serve the object of building up a concentrated area of restaurants with appendant alcoholic consumption licenses.

We would concede that any functionally legitimate purpose in fixing the entrance of a licensed premises in one part of a building rather than another should not be vetoed by a court merely because an incidental result thereof would be the increase of the distance to another licensed premises enough to comply with a distance ordinance such as the present one. But here the long-standing and natural entrance to Rallo’s was its front entrance on Eagle Rock Avenue, and a pedestrian normally going there from O’Hara’s Cafe would use that entrance. We have severe doubts whether closing it off and forcing the trade to use the side entrance for the sole purpose of increasing the pedestrian’s walking distance from O’Hara’s to meet the ordinance is a valid method of achieving legal compliance with it.

But even if that problem were overcome, the building of the wall as here projected constitutes an evasion device which cannot be condoned. Without the wall, the patron coming from O’Hara’s, even if required to use the side entrance, would normally get there by the shortest route by walking from Eagle Rock Avenue across the parking lot, along the east wall of the building. The measuring point, in that event, would be the sidewalk on Eagle Rock Avenue adjacent to the east wall. Presbyterian Church, etc. v. Div. of Alcoholic Bev. Con., supra. The resulting distance from O’Hara’s would be a little over 300 feet—well short of the requirement.

In our view, it is an impermissible evasion of the ordinance to build a physical obstruction on licensed premises for no other purpose than to make it impossible for a pedestrian-patron to effect normal entrance to the building via the nearest sidewalk—and this solely in order to inflate the walking distance to the nearest licensed premises above the ordinance minimum.

And if all the foregoing were not enough, the final nail in the coffin of evasion was driven when the wall on Beasley Street was extended southerly well past a right-angle line from the side-entrance (now made the entrance to the premises) to the Beasley Street sidewalk. That maneuver was employed because termination of the wall at that point, which would have afforded the patron the shortest walk from Beasley Street to the entrance, would not have provided the necessary 500 feet from O’Hara’s. Thus the wall as extended blocked off some 15 feet of the previous Beasley Street driveway to the parking lot. By the logic of the argument of the respondents, if O’Hara’s were 100 feet nearer Hallo’s than it is, and Hallo’s had enough additional land to the south on Beasley Street, the wall could have been extended for the necessary additional 100 feet, and the tired but still thirsty patron-pedestrian relegated to the long walk along the wall, around it and all the way back to the side-entrance— all in perfect compliance with the ordinance.

We conclude that Hallo’s was not in compliance with the ordinance either before or after the physical tailoring of the premises to meet the conditions imposed by the West Orange Board. We need not explore the additional contention of appellants that the Hearer in the Division erred in excluding evidence concerning the zoning effects of the transfer.

Judgment reversed.

       Beasley Street makes a “T” intersection with Eagle Rock Avenue, the through street.

       As testified to by one of its members before the Division.