Armstrong Cork Co. v. Joiner

• Citation: 147 S.E.2d 317,221 Ga. 789
• Decision Date: 02 February 1966
• Docket Number: No. 23292,23292
• Parties: ARMSTRONG CORK COMPANY v. Robert W. JOINER, Jr., et al.
• Court: Supreme Court of Georgia

Page 317

147 S.E.2d 317

221 Ga. 789

ARMSTRONG CORK COMPANY v. Robert W. JOINER, Jr., et al.

No. 23292.

Supreme Court of Georgia.

Feb. 2, 1966.

Rehearing Denied Feb. 23, 1966.

Syllabus by the Court

1. The evidence being sufficient to find an arguable violation of Sec. 158(b) (4)(ii)(B) of the National Labor Relations Act (29 U.S.C.A. § 158(b)(4)(ii)(B)) pertaining to secondary boycotts, the court did not err in granting defendant's plea to the jurisdiction and finding exclusive jurisdiction in the National Labor Relations Board.

2. The court having determined that its jurisdiction had been pre-empted by the National Labor Relations Act, the court did not err in denying plaintiff's prayer for an interlocutory injunction.

Bloch, Hall, Groover & Hawkins, Ellsworth Hall, Jr., Macon, for appellant.

Gilbert, Patton & Carter, Thomas L. Carter, Jr., Atlanta, for appellees.

ALMAND, Justice.

This is an appeal from an order in the trial court sustaining the defendants' plea to the jurisdiction and denying the plaintiff's request for an interlocutory injunction. This case was initiated when Armstrong Cork Company, hereinafter referred to as the appellant, brought a petition in the Bibb Superior Court against Robert W. Joiner, John T. Shaw, Jr., the International Association of Bridge, Structural & Ornamental Iron Workers Local 387 and Grady C. Gable, all of whom are hereinafter referred to as the appellees. The petition alleged that the appellees conspiring together and acting jointly on or about May 31st, 1965, were involved in certain picketing at appellant's Macon, Georgia, plant. The picketing was directed against Georgia Steel Erectors which appellant's petition identifies as a prime and secondary contractor performing construction work at appellant's plant. There were other contractors engaged in this construction work, but the signs carried by those engaged in the picketing read as follows: 'Notice to Public: Georgia Steel Erectors unfair to organized labor.' The picketing was at first carried on at the two main gates of the appellant's plant, and as a result, the employees of the other contractors and subcontractors refused to cross the picket lines and construction came 'substantially' to a halt. On June 4th, 1965, appellant erected a third gate for the use of Georgia Steel Erectors and Macon Prestressed Concrete Company. A picket was placed at this third gate also, and the pickets remained at the two main gates in addition. Appellant's petition alleged that 'defendants have deliberately chosen to picket in a manner that will harm your petitioner and the purpose of such picketing is to induce and procure breaches of contract by employees of the other contractors and subcontractors with their respective employers and the contracts between their employers and your petitioner.' Appellant also alleged that one Geeslin, an agent and representative of the defendant labor association had said that 'if such employees crossed the picket lines * * * the union would prefer charges against them.'

A temporary restraining order was issued preventing the picketing on June 7th, 1965, on the grounds that irreparable harm would be done to appellant before a hearing could be had on appellant's request for a temporary injunction. An attempt by the appellees to remove the case to the United States District Court for the Middle District of Georgia failed. Subsequently, the appellees filed a plea to the jurisdiction of the court alleging that exclusive primary jurisdiction of the subject matter was with the National Labor Relations Board, and thus, the trial court had no jurisdiction to consider the merits of appellant's petition. Other defensive pleadings were filed later by the appellees, but they are not before us at this time. As the result of a hearing on August 19th, 1965, the trial court determined from the evidence presented the following: '(1) The evidence shows that plaintiff, and the other contractors and employers named in the pleadings and in the evidence, and affected by the picketing were and are engaged in interstate commerce and in an industry affecting interstate commerce within the meaning of the National Labor Relations Act; (2) There is no labor dispute existing between the plaintiffs and the defendants but there is sufficient evidence to establish the existence of a labor dispute as to the non-payment of fringe benefits between defendants and Georgia Steel Erectors; (3) The pleadings and the evidence sufficiently show that defendants were arguably engaged in a secondary boycott prohibited by Section 8 of the National Labor Relations Act; (4) Based upon the foregoing findings, the exclusive jurisdiction of the subject matter of this suit is in the National Labor Relations Board and this court is without jurisdiction to adjudicate any of the issues involved in this complaint; and (5) The plaintiff will suffer damages in a substantial amount per day if the defendant union again pickets its plant.' The court, upon the foregoing findings, granted appellee's plea to the jurisdiction, denied appellant's prayer for an interlocutory injunction, assessed costs to the appellant and allowed a supersedeas bond to be filed. From this judgment of the court, appellant has brought an appeal assigning numerous grounds of error.

1. Appellant's first assignment of error is upon the court's ruling that its jurisdiction has been pre-empted by the National Labor Relations Act and that exclusive jurisdiction of the subject matter of this case is vested in the National Labor Relations Board. We have carefully read the record, and we conclude from the evidence before the trial court and in light of past decisions of the National Labor Relations Board of the United States Supreme Court which are cited below, the trial court correctly determined that its jurisdiction had been pre-empted.

The Federal statute with which we are concerned is Section 158(b)(4)(ii)(B) of the Labor Management Relations Act (29 U.S.C.A. § 158(b)(4)(ii)(B)) which reads in part as follows: '(b) It shall be an unfair labor practice for a labor organization or its agents- * * * (4) * * * (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is- * * * (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees * * *.' We think that there was sufficient evidence in the trial court to make the foregoing statute applicable to the situation before the court in this case for the following reasons. It appears that Section 158 was enacted for the protection of businesses engaged in interstate commerce which become involved in secondary boycott situations. The National Relations Board has stated as much in one case where a complaint alleged a secondary boycott in violation of Section 158. The board stated in its opinion that 'the Trial Examiner apparently concluded that he must, in each instance, find a violation before he could consider, for jurisdictional purposes, the commerce figures of the secondary employers. We do not agree. Under the rules of Jamestown and McAllister cases, where, as here, the primary employer does not meet the board's jurisdictional standard, the board will take into consideration for jurisdictional purposes not only the operations of the primary employer, but also the entire operations of the secondary employers at the locations affected by the alleged conduct involved. The requirement that secondary employers be affected by the conduct involved does not mean that a violation must first be found. It is sufficient that conduct occurred that involved the secondary employer, which conduct must be considered and ruled upon as alleged violations.' Madison Bldg. & Construction Trades Council, 134 N.L.R.B. 517, 518. In another case the board stated that 'we expressly adopt the interpretation of the Jamestown rule by Member Peterson in his dissenting opinion in the Vann case in which he took the view that it is not the particular business between the primary employer and the secondary employer at the location affected, but rather the entire business of the secondary employer at that location that governs in applying the board's jurisdictional standards in secondary boycott situations.' International Brotherhood of Teamsters et al., 110 N.L.R.B. 1769, 1772. The board in still another case concluded that 'in determining whether the board will assert jurisdiction in cases in which secondary boycotts are alleged, we must consider no only the operations of the primary employer, but also the operations of any second employers, to the extent that the latter are affected by the conduct involved.' Truck Drivers Local Union No. 649 et al., 93 N.L.R.B. 386, 387. The foregoing board decisions were cited with approval by the United States Supreme Court in the case of Hattiesburg Building & Trades Council v. Broome, 377 U.S. 126, 84 S.Ct. 1156, 12 L.Ed.2d 172. In a per curiam opinion, the court said: 'After finding that the primary employer was not in commerce and ruling that the pre-emption rule * * * was therefore not applicable, the state court enjoined picketing at the premises of the...