Baun v. Lumber and Sawmill Workers Union, Local No. 2740, of American Federation of Labor, 32677

• Decision Date: 26 May 1955
• Docket Number: No. 32677,32677
• Citation: 46 Wn.2d 645,284 P.2d 275
• Parties: Charles BAUN, Respondent, v. LUMBER AND SAWMILL WORKERS UNION, LOCAL NO. 2740 OF THE AMERICAN FEDERATION OF LABOR, Rufus Smith, Dudley Chew, Glen Richeson, Frank Damskey, Harrison Barrett, Al Cobane, John Griffin, Henry Evans, The Ellensburg Lumber Company, a corporation, O. W. Sinclair, as president of the Ellensburg Lumber Company, and O. W. Sinclair, individually, Appellants.
• Court: Washington Supreme Court

Page 645

46 Wn.2d 645

284 P.2d 275

Charles BAUN, Respondent, v. LUMBER AND SAWMILL WORKERS UNION, LOCAL NO. 2740 OF THE

AMERICAN FEDERATION OF LABOR, Rufus Smith, Dudley Chew, Glen

Richeson, Frank Damskey, Harrison Barrett, Al Cobane, John

Griffin, Henry Evans, The Ellensburg Lumber Company, a

corporation, O. W. Sinclair, as president of the Ellensburg

Lumber Company, and O. W. Sinclair, individually, Appellants.

No. 32677.

Supreme Court of Washington, En Banc.

May 26, 1955.

Rehearing Denied Aug. 2, 1955.

Wettrick, Flood & O'Brien, Seattle, for Lumber & Sawmill Workers' union.

Kern, Dano & Cone, Ellensburg, for Ellensburg Lumber Co. and others.

Nat U. Brown, Yakima, for other appellants.

Tonkoff, Holst & Hopp, Yakima, Steensland & Smith, Ellensburg, for respondent.

HILL, Justice.

This is an appeal by all defendants from a judgment for $10,000 based on the verdict of a jury in an action against a union, and certain members and officers thereof, and a corporation and its president, for a civil conspiracy to wrongfully procure the discharge of the plaintiff from this employment as superintendent of the sawmill belonging to the corporation.

The determination of this appeal has been long delayed, several opinions having been written in an effort to reconcile the diverse views of the members of the court on the jurisdiction issues involved, plus an almost equal diversity of views upon the merits.

An elaboration of the facts will be necessary to a consideration of the sufficiency of the evidence as against the various defendants, but for the presentation of the jurisdictional issues, suffice it to say that the Lumber and Sawmill Workers Union Local No. 2740, hereinafter called the union, voted to strike unless the Ellensburg Lumber Company, a corporation, hereinafter called the company, removed Charles Baun, hereinafter called the plaintiff, as superintendent of the company's sawmill. It is plaintiff's position that he was discharged by the company without cause by reason of this action of the union, and sustained substantial damages in consequence thereof. It is further his position that there was a conspiracy between the union and its members and the company and the company's president to bring about his discharge. It is urged by the union and its members that the plaintiff is complaining of an unfair labor practice for which the national labor relations board will give such relief as he may be entitled to have, and that its jurisdiction is exclusive.

We do not agree that the state's jurisdiction to deal with this controversy has been superseded by the Labor Management Relations Act, 1947, 29 U.S.C.A. § 141 et seq., because we do not believe the action of either the union or the company constitutes an unfair labor practice within the purview of that act.

The language relied on in this connection is that part of 29 U.S.C.A. § 158(b), which reads as follows:

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

* * *

* * *

'(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section * * *.'

The material part of subsection (a)(3) of § 158 reads as follows:

'It shall be an unfair labor practice for an employer----

* * *

* * *

'(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: * * *.' (Italics ours.)

It is not contended that the plaintiff was discharged 'to encourage or discourage membership in any labor organization'. Consequently, the union's activities in causing the company to discharge him, or the company's act in discharging him did not constitute an unfair labor practice within the meaning of the quoted portions of § 158(a) or (b).

Moreover, it will be noted that § 158(b) pertains to acts of discrimination against an 'employee.' Under § 152(3) of the act, defining the term 'employee', any individual employed as a supervisor is specifically excluded. It is conceded that the plaintiff was employed as a sawmill and box factory superintendent, and that he must, of necessity, be regarded as a supervisor.

It has been suggested that National Labor Relations Board v. Talladega Cotton Factory, Inc., 5 Cir., 213 F.2d 209, 40 A.L.R.2d 404, is authority for the proposition that supervisory personnel have the remedy of reinstatement and back pay under the Federal act when discharged as the result of an unfair labor practice. We do not so construe that Talladega case, as the supervisors were not there reinstated for the protection of their own rights, but rather to protect the rights of the rank and file. The court there said:

'* * * Though the Board concededly has no authority, statutory or otherwise, to reinstate supervisors as 'employees' to redress their private grievance and penalize respondent, we see no reason why the Board, in the exercise of its statutory discretion, does not have the same remedial power to redress acts of indirect interference and restraint of ordinary employees through discharge of supervisors, * * *.' (Italics ours.) At page 217.

We are satisfied that neither the union and its members, nor the company, were guilty of an unfair labor practice within the meaning of 29 U.S.C.A. § 158(a) or (b), and that the plaintiff has no remedy before the national labor relations baord.

But it is urged that even if the plaintiff has no remedy under the Federal statute referred to, he still cannot maintain an action for relief in any court because the act of the union and its members was a 'concerted activity' for the purpose of 'mutual aid or protection,' within the meaning of 29 U.S.C.A. § 157, and as such, they are protected from restraint or compensatory relief in any form.

Surely, a supervisor who has no remedy under the labor management relations act is entitled to have determined whether the act of the union which brought about his discharge was for the purpose of 'mutual aid or protection,' or whether its action was malicious and without just cause or excuse.

In De Minico v. Craig, 1911, 207 Mass. 593, 94 N.E. 317, 42 L.R.A., N.S., 1048, it is said in the syllabus:

'A labor strike to get rid of a foreman because some of the workmen under him have a dislike for him is not a strike for a legal purpose.'

In that case, Judge Loring said:

'* * * The plaintiff had a right to work and that right of his could not be taken away from him or interfered with by the defendants unless it came into conflict with an equal or superior right of theirs. The defendants' right to better their condition is such an equal right. But to humor their personal objections, their likes and dislikes, or to escape from what 'is distasteful' to some of them is not in our opinion a superior or an equal right.

'It is doubtless true that in a certain sense the condition of workmen is better if they work under a foreman for whom they do not have a personal dislike; that is to say, one who is not 'distasteful' to them. But that is not true in the sense in which those words are used when it is said that a strike to better the condition of the workmen is a strike for a legal purpose. One who betters his condition only by escaping from what he merely dislikes and by securing what he likes does not better his condition within the meaning of those words in the rule that employes can strike to better their condition.'

We recognize that the opinion just quoted dates back to 1911, long prior to enactment of Federal legislation of the character with which we are here concerned, but whether it is called the 'right to better their condition', as in that opinion, or 'mutual aid or protection,' as in the labor management relations act, the employees who are trying to force the discharge of a foreman or superintendent must have some better reason than an arbitrary and capricious desire to get rid of him, or to enforce their will on an employer. See Barile v. Fisher, 1949, 197 Misc. 493, 94 N.Y.S.2d 346.

We concede arguendo that if the union and its members proved that their concerted activities in this case were for the purpose of 'mutual aid or protection,' that would be a defense to the present action, but we do not believe that it was ever intended that a discharged supervisor or superintendent should be deprived of a forum wherein it could be determined whether the action of the union and its members in interfering with his contract of employment was justified, and hence lawful, or unjustified, and hence unlawful. In short, 29 U.S.C.A. § 157 is a shield to defend labor and labor organizations when their concerted activities are within the scope of that section, but it is not an immunity bath for capricious and unjustifiable imposition of their will on an employer.

We conclude that, there being no unfair labor practice involved, the national labor relations board has no jurisdiction to give the plaintiff any relief, and we conclude, further, that the Labor Management Relations Act was not intended to and does not bar an action against a union and its members for tortious conduct in interfering with a contract of employment where that conduct is not in furtherance of their 'mutual aid or protection'.

Further, we put our conclusion that the Washington courts have jurisdiction of the subject matter of this litigation on the still broader base that the traditional jurisdiction of a state court to enforce a common-law tort liability has not been removed, at least in such a case as the present, by the Labor Management Relations Act, even though the tortious conduct constitutes an unfair labor practice under the act.

In considering this phase of the jurisdictional question, it is well to note at the outset what the plaintiff is not asking.

He is not asking that any activities of the union or its members, or that any action by the company be restrained or enjoined; he is not asking that he be...