Lucas Flour Co. v. Local 174, Teamsters, Chauffeurs and Helpers of America

• Decision Date: 13 October 1960
• Docket Number: No. 35310,35310
• Citation: 356 P.2d 1,57 Wn.2d 95
• Court: Washington Supreme Court
• Parties: LUCAS FLOUR COMPANY, Respondent, v. LOCAL 174, TEAMSTERS, CHAUFFEURS & HELPERS OF AMERICA, an unincorporated association, Appellant.

Page 95

57 Wn.2d 95

356 P.2d 1

LUCAS FLOUR COMPANY, Respondent, v. LOCAL 174, TEAMSTERS, CHAUFFEURS & HELPERS OF AMERICA, an unincorporated association, Appellant.

No. 35310.

Supreme Court of Washington, Department 1.

Oct. 13, 1960.

MacDonald, Hoague & Bayless, Seattle, for appellant.

Allen, DeGarmo & Leedy, Seattle, for respondent.

HUNTER, Judge.

This is an appeal from a judgment for the plaintiff in an action for damages, which arose out of the following facts.

The plaintiff, Lucas Flour Company, is a Washington corporation, principally engaged in the wholesale distribution of flour. The plaintiff employed members of the defendant, Local 174, Teamsters, Chauffeurs & Helpers of America, with whom the plaintiff had entered into a collective bargaining agreement on April 1, 1955.

In 1953, the plaintiff had employed one Melvin T. Welsch, who first worked as a truck driver and then as a warehouseman. His work was unsatisfactory in both capacities and on more than one occasion only the intervention of the union forestalled his discharge. On May 12, 1958, Welsch started a fork-lift truck, used in the plaintiff's warehouse, while it was in gear and caused it to run off the end of the warehouse floor onto the railroad tracks four feet below. The truck was extensively damaged, and Welsch was injured. While at home recovering from these injuries, Welsch received the following memo from the plaintiff:

'* * * The enclosed check covers your second week of vacation. We have dicided that it would be better to take next week off for part of your vacation and than [sic] should we be busy the following week I will call you, otherwise take the second week of your vacation and rest. * * *'

On the same day, May 23, Welsch went to see Floyed Anderson, business agent and vice-president of Local 174, and stated that he was ready to return to work. Welsch obtained a written release from his doctor pursuant to Anderson's advice. He presented the release to the secretary-treasurer of the plaintiff corporation, who told him to take the week off and that they would call him if they were busy the following week. Welsch reported this to Floyd Anderson who called the plaintiff's plant, and on the morning of May 27, 1958 sent a business agent to the plant. The business agent was informed that Welsch had been discharged for unsatisfactory work, and he reported this to Floyd Anderson by telephone. The business agent then called the plaintiff's employees out on strike and the plant was picketed. The picketing continued until June 4, 1958, when it was terminated by a temporary injunction issued by the superior court for King county. On September 11, 1958, the matter of Welsch's discharge was submitted to arbitration, and on November 11, 1958 the arbitrators made the following findings and award:

'1. That the work of Melvin T. Welsch was unsatisfactory prior to his discharge, in that he failed to carry out his prescribed duties of keeping the warehouse clean and rotating the stock of merchandise; during his absences due to illness, he failed to notify the employer as to the reasons or when he expected to return; and failed to exercise proper care in the operation of a fork-lift truck, by starting the same while it was in gear and causing it to fall a distance of four feet from the warehouse floor to the railroad siding, thereby endangering his life and causing extensive damage to the truck.

'2. That such unsatisfactory work was the reason for Melvin T. Welsch's discharge on May 27, 1958.

* * *

* * *

'Award

'The Board hereby orders that the discharge of Melvin T. Welsch on May 27, 1958, was justified and that he is not entitled to reinstatement with his former employer, Lucas Flour Company.'

The action for damages came on for trial on March 16, 1959, both parties stipulating that the findings of the arbitrators were binding upon them. The trial court took additional evidence on matters which it considered had not been covered by the findings of the arbitrators, and at the conclusion of the trial entered judgment awarding damages, in the amount of $6,501.60, to the plaintiff. The defendant appeals.

The appellant, Local 174, contends the trial court was without jurisdiction because the national labor relations board had exclusive jurisdiction over the controversy:

Appellant cites the recent case of San Diego Building Trades Council v. Garmon, 1959, 359 U.S. 236, 79 S.Ct. 773, 779, 3 L.Ed.2d 775, wherein the United States supreme court said:

'When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act [61 Stat. 140], or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield * * *.

'At time it has not been clear whether the particular activity regulated by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections. But courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board * * *.'

In that case, the cause had proceeded through the courts on the assumption that it was an unfair labor practice. The instant case is not one in which it is clear, nor in which it may be fairly assumed, that the activity is protected by § 7 or prohibited by § 8 of the National Labor Relations Act. On the contrary, a reading of the sections makes it clear that the activities here involved fail to come within the purview of either of these sections. Section 7 of the act, 29 U.S.C.A. § 157, provides:

'Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection * * *.'

The collective bargaining agreement in force between these parties contained the following provision:

'The Employer reserves the right to discharge any man in his employ if his work is not satisfactory.'

The strike in the instant case was in protest against the discharge of an employee for admittedly unsatisfactory work; in clear violation of the agreement. It was an attempt to force the respondent to forego the exercise of a right expressly provided by the agreement. It could scarcely be argued that the same provision of the act, which gives the right to bargain collectively and to enter into collective bargaining agreements, also gives the right to ignore such agreements, or gives the right to do anything which would nullify the effect of such agreements.

The question then remains whether this was a strike which would constitute an unfair labor practice under § 8 of the act, 29 U.S.C.A. § 158, which provides:

'(b) It shall be an unfair labor practice for a labor organization or its agents----

'(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title: * * * or (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances;

'(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;

'(3) to refuse to bargain collectively with an employer, provided it is the representative of his employees * * *

'(4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or...