Smith v. Evening News Ass'n, 39

• Decision Date: 09 January 1961
• Docket Number: No. 39,39
• Citation: 106 N.W.2d 785,362 Mich. 350
• Parties: Doyle SMITH, Plaintiff and Appellant, v. EVENING NEWS ASSOCIATION, a Michigan corporation, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 785

106 N.W.2d 785

362 Mich. 350

Doyle SMITH, Plaintiff and Appellant, v. EVENING NEWS ASSOCIATION, a Michigan corporation, Defendant and Appellee.

No. 39.

Supreme Court of Michigan.

Jan. 9, 1961.

Rothe, Marston, Mazey, Sachs & O'Connell, Detroit, for plaintiff and appellant.

Butzel, Eaman, Long, Gust & Kennedy, Detroit, for defendant and appellee.

Before the Entire Court.

KAVANAGH, Justice.

Plaintiff and his assignors are employees of defendant Evening News Association and are members of a labor organization, the Newspaper Guild of Detroit. The Guild had a collective bargaining agreement with defendant which provided, among other things:

'There shall be no discrimination against any employee because of his membership or activity in the Guild.'

A group of employees of defendant belonging to a union other than the Guild went on strike. Defendant permitted employees of the editorial department, business office and advertising department, who were not covered by a collective bargaining agreement, to report on the premises and they were paid full wages even though there was no work available.

Plaintiff and his assignors were willing to work but defendant permitted only a few to work and, as a result, plaintiff and his assignors lost considerable money in wages.

Plaintiff contends that defendant's refusal to pay full wages to plaintiff and his assignors and defendant's payment of full wages to other employees constituted discrimination against an employee because of his membership or activity in the Guild and, therefore, was a violation of the contract provision above quoted.

Plaintiff brought this action in the circuit court for the county of Wayne to recover damages for such breach.

Defendant moved to dismiss for lack of jurisdiction on the following grounds:

'1. Defendant is charged with acts which, if true, constitute an unfair labor practice as defined in the National Labor Relations Act, as amended, and

'2. The National Labor Relations Board has been vested by virtue of the such amended act with exclusive jurisdiction of the subject matter.'

The trial judge granted the motion to dismiss for lack of jurisdiction on the theory that Congress in adopting the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., had pre-empted the filed and placed the question of a statutory unfair labor practice exclusively within the control and jurisdiction of the National Labor Relations Board.

Plaintiff appeals, and we are presented with the following question:

Does a State court have jurisdiction of an action at law by an employee against his employer for breach of a contract between such employer and a labor organization to which such employee belongs where the action is based upon facts which if true would constitute both a breach of such contract and an unfair labor practice under the provisions of section 8(a) of the National Labor Relations Act as amended?

For the purpose of the decision on this particular motion to dismiss it was stipulated that defendant was engaged in commerce within the meaning of the National Labor Relations Act as amended. It should be further noted that plaintiff failed to bring a complaint to the Board under the unfair labor practices provisions of the National Labor Relations Act until after the expiration of the statutory period provided for the bringing of such complaint.

Plaintiff argues that under the decisions of the United States supreme court Congress has not pre-empted the entire labor field. He contends there are numerous exceptions to the rule. He argues that the case of Garner v. Teamsters, Chauffeurs and Helpers Local Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228, stands only for the proposition that peaceful picketing of the premises of an employer engaged in commerce may not be enjoined by a State court. He points out as an exception to the general rule that in the case of United Const. Workers, etc. v. Laburnum Const.Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025, where plaintiff sought damages in a State court from a union for engaging in coercive conduct, which conduct was also an unfair labor practice, the United States supreme court affirmed the right of plaintiff to damages against the union on the theory that Congress, in the National Labor Relations Act, had not provided nor suggested any substitute for the traditional state court procedure for collecting damages for injuries caused by tortious conduct. Plaintiff refers to the case of International Union United Automobile, etc. Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030, where the United States supreme court did not deprive the Alabama State court of jurisdiction where it had allowed an employee to recover damages from a union even where the union's conduct constituted an unfair labor practice and the National Labor Relations Board had jurisdiction to award back pay to the employee. Plaintiff calls particular attention to the fact that in the Russell case the court indicated there are cases in which there is a possibility that both the Board and the State court have jurisdiction to award lost pay.

Plaintiff contends this is simply an action for damages for breach of contract. He claims State courts have traditional and statutory jurisdiction to grant such relief.

Defendant, on the other hand, relying upon almost the same cases, contends that they hold that pre-emption exists limiting the jurisdiction of State courts in an action for damages for breach of contract when such action also constitutes an unfair labor practice.

Section 8(a) of the National Labor Relations Act provides in part as follows:

'It shall be an unfair labor practice for an employer--(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 * * * (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * * *.'

Section 10(c) of the act provides in part as follows:

'If upon the preponderance of the testimony taken the board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this act * * *.'

Whether plaintiff can maintain his action in the State court is entirely dependent upon whether Congress pre-empted the field as to this kind of action and vested exclusive jurisdiction in the National Labor Relations Board. This is, to say the least, a difficult question.

The United States supreme court itself has found difficulty in reconciling the effect and meaning of its decisions on this field of law. It seems we must start with the general premise that Congress has preempted the field in labor relations matters affecting interstate commerce and has vested exclusive jurisdiction in the National Labor Relations Board to determine such labor disputes where labor practices are either prohibited or protected by the Labor Management Relations Act.

In determining whether this is always true we turn to the latest available position on this subject--the discussion in San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775. There, the respondents, copartners in the business of selling lumber in California, began an action in the Superior court for the county of San Diego asking for an injunction and damages. The unions sought from respondents an agreement to retain in their employ only those workers who were already members of the union or who applied for membership within 30 days. Respondents refused until one of the unions had been designated as the collective bargaining agent. The unions began at once peacefully picketing respondents' place of business and exerting pressure on customers and suppliers in order to persuade them to stop dealing with respondents. The trial court found that the sole purpose of these pressures was to compel execution of the proposed contract. The unions protested this finding, claiming the purpose of their activities was to educate the workers and persuade them to become members. On the basis of its findings, the court enjoined the unions from picketing and from the use of other pressures to force an agreement. The court also awarded $1,000 damages for losses found to have been sustained. The United States supreme court granted certiorari and decided the matter along with Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601, and Amalgamated Meat Cutters, etc. v. Fairlawn Meats, Inc., 353 U.S. 20, 77 S.Ct. 604, 1 L.Ed.2d 613, holding that the refusal of the National Labor Relations Board to assert jurisdiction did not leave with the States power over activities they otherwise would be pre-empted from regulating. In vacating and remanding the judgment of the California court (353 U.S. 26, 77 S.Ct. 607, 1 L.Ed.2d 618) the United States supreme court pointed out that the Guss and Fairlawn cases involved relief of an equitable nature and controlled the injunctive question, but remanded to the State court the question of whether the judgment for damages would be sustained under California law. On remand, the State court sustained the award of damages. The California court held that those activities constituted a tort based on an unfair labor practice under State law. In so holding, the court relied on general tort provisions of the California civil code as well as State enactments dealing specifically with labor relations. The United States supreme court again granted certiorari. Justice Frankfurter delivered the opinion of the court. After pointing out the difficult...