Beasley v. Food Fair of N. C., Inc.

• Decision Date: 02 August 1972
• Docket Number: No. 7221SC457,7221SC457
• Citation: 190 S.E.2d 333,15 N.C.App. 323
• Court: North Carolina Court of Appeals
• Parties: , 81 L.R.R.M. (BNA) 2234, 69 Lab.Cas. P 52,909 Ulysses Vernon BEASLEY et al. v. FOOD FAIR OF N.C., INC., and Ray F. Messick.

Page 333

190 S.E.2d 333

15 N.C.App. 323, 81 L.R.R.M. (BNA) 2234,

69 Lab.Cas. P 52,909

Ulysses Vernon BEASLEY et al. v. FOOD FAIR OF N.C., INC., and Ray F. Messick.

No. 7221SC457.

Court of Appeals of North Carolina.

Aug. 2, 1972 Certiorari Allowed by Supreme Court Sept. 14, 1972.

Eubanks & Sparrow by Larry L. Eubanks, Winston-Salem, for plaintiff appellants.

McCaul, Grigsby & Pearsall by Robert C. Moss, Richmond, Va., and Hudson, Petree, Stockton, Stockton & Robinson by R. M. Stockton, Jr., and James H. Kelly, Jr., Winston-Salem, for defendant appellees.

MORRIS, Judge.

It appears from the affidavit and copy of the National Labor Relations Board's order filed with defendants' motion that the plaintiffs, who are meat market managers, are classified as supervisors under the definition contained in the Labor Management Relations Act. This is conceded by plaintiffs. It also appears by stipulation that plaintiffs' appeal to the General Counsel of the National Labor Relations Board from a denial of their claim under the Act was denied. The pertinent portions of the letter of denial follow: 'Your appeal in the above matter has been duly considered. The appeal is denied. The four alleged discriminatees involved herein were supervisors within the meaning of Section 2(11) of the Act and hence were not entitled, in the circumstances herein, to the protection of the Act.'

Statutes dealing with labor organizations are contained in Article 10 of Chapter 95 of the General Statutes, and became effective 18 March 1947. Section 95--78 declares the policy:

'The right to live includes the right to work. The exercise of the right to work must be protected and maintained free from undue restraints and coercion. It is hereby declared to be the public policy of North Carolina that the right of persons to work shall not be denied or abridged on account of membership or nonmembership in any labor union or labor organization or association.'

G.S. § 95--83 provides:

'Any person who may be denied employment or be deprived of continuation of his employment in violation of §§ 95--80, 95--81 and 95--82 or of one or more of such sections, shall be entitled to recover from such employer and from any other person, firm, corporation, or association acting in concert with him by appropriate action in the courts of this State such damages as he may have sustained by reason of such denial or deprivation of employment.'

Plaintiffs contend that defendants have violated Section 95--81:

'No person shall be required by an employer to abstain or refrain from membership in any labor union or labor organization as a condition of employment or continuation of employment.'

Defendants, however, contend that plaintiffs are supervisors, a fact which is conceded by plaintiffs, and that under the provisions of the Labor Management Relations Act they are specifically excluded as employees entitled to protection of the Act; that the National Labor Relations Board took jurisdiction, and denied their claim because they are not afforded the protection of the Act; and that the Taft-Hartley Act, under its provisions, has excluded and preempted State jurisdiction.

This is a case of first impression in this State. Counsel have cited no authority directly in point, nor have we found any case on 'all fours'. Determination requires that we first consider certain sections of the Taft- Hartley Act (Labor Management Relations Act) hereinafter referred to as the Act. Reference to section numbers shall be to those adopted in United States Code Annotated, Title 29, unless otherwise indicated. Definitions are found in Section 152. Those pertinent to this appeal are:

'(3) The term 'employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include . . . any individual employed as a supervisor . . .'

'(8) The term 'unfair labor practice' means any unfair labor practice listed in section 158 of this title.'

'(11) The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.'

Section 157 gives to 'employees' the right 'to form, join, or assist labor organizations'. Section 158(a) sets out certain actions which shall be deemed unfair labor practices on the part of an employer. Among those are (1) interference with rights guaranteed to employees in Section 157 and (3) discrimination with respect to hiring or tenure of employment by reason of an employee's membership in any labor organization.

In defining 'supervisors', Congress had in mind supervisory personnel traditionally regarded as a part of management and to place into the employer category those who act for management in formulating and executing its labor policies. International Union of United Brewery, etc. v. N.L.R.B., 111 U.S.App.D.C. 383, 298 F.2d 297 (1961), cert. denied, Gulf Bottlers, Inc. v. N.L.R.B., 369 U.S. 843, 82 S.Ct. 875, 7 L.Ed.2d 847 (1962). In excluding supervisors from the rights and protections afforded employees, the purpose was to assure to employers their right to select their supervisors and to procure the loyalty and efficiency of their supervisors. National Labor Rel. Bd. v. Retail Clerks Intern. Ass'n, 211 F.2d 759 (9th Cir. 1954), cert. denied 348 U.S. 839, 75 S.Ct. 47, 99 L.Ed. 662 (1954). As was said in National Labor Relations Bd. v. Edward G. Budd Mfg. Co., 169 F.2d 571, 579 (6th Cir. 1948), cert. denied, Foreman's Ass'n v. Edward G Budd Mfg. Co., 335 U.S. 908, 69 S.Ct. 411, 93 L.Ed. 441 (1949): 'We believe it is clear that Congress intended by the enactment of Labor Management Relations Act that employers be free in the future to discharge supervisors for joining a union, and to interfere with their union activities.'

Erosion of this purpose appeared with the 1947 amendment (effective 23 June 1947, after the enactment and effective date of North Carolina's Right-to-Work Act), allowing supervisors to join a labor organization. Section 164(a) provides:

'Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this subchapter shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.'

The question of federal preemption in the labor relations field has frequently been before the courts since the enactment of Taft-Hartley. As was said in Garner v. Teamsters Union, 346 U.S. 485, 488, 74 S.Ct. 161, 164, 98 L.Ed. 228 (1953), '(t)he National Labor Management Relations Act . . . leaves much to the states, though Congress has refrained from telling us how much'.

'When a union attempts to organize supervisors, or when supervisors elect to become members of a union, a problem of federal preemption does arise.' 4 Jenkins, Labor Law, § 21.9, The Federal Preemption Doctrine, p. 103. In San Diego, Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), Mr. Justice Frankfurter, speaking for the majority, laid down certain guidelines when he said:

'If the Board decides, subject to appropriate federal judicial review, that conduct is protected by § 7 (29 U.S.C.A. 157), or prohibited by § 8 (29 U.S.C.A. 158), then the matter is at an end, and the States are ousted of all jurisdiction. Or, the Board may decide that an activity is neither protected nor prohibited, and thereby raise the question whether such activity may be regulated by the States.' 359 U.S., at p. 245, 79 S.Ct. at p. 780.

In Hanna Mining v. District 2, Marine Engineers, 382 U.S. 181, 86 S.Ct. 327, 15 L.Ed.2d 254 (1965), in an opinion by Mr. Justice Harlan, expressing the view of eight members of the Court, it was held that under the circumstances of that case, the federal act did not preempt the state's jurisdiction. Plaintiffs, employers, declined to negotiate with a union representing the marine engineers until it was established that the union represented a majority of the engineers whereupon the union picketed plaintiffs' ships. Employers petitioned that a representation election among its engineers be held. The petition was dismissed by the National Labor Relations Board on the ground that the engineers were 'supervisors' under the Act, and excluded from the definition of employees. The employers' charge alleging a violation of Section 8 (29 U.S.C.A. § 158) of the Act was dismissed on the ground that the union's conduct fell outside the provisions of the Act because it sought to represent 'supervisors' rather than 'employees'. Plaintiffs then brought suit in Wisconsin state court seeking injunctive relief. The state court dismissed for lack of jurisdiction. The Supreme Court of Wisconsin affirmed on the ground that the picketing, while illegal under Wisconsin law, arguably violated Sections...