Branham v. Miller Elec. Co.

• Decision Date: 30 January 1961
• Docket Number: AFL-CIO,No. 17739,17739
• Citation: 118 S.E.2d 167,237 S.C. 540,92 A.L.R.2d 592
• Court: South Carolina Supreme Court
• Parties: , 92 A.L.R.2d 592 Jess W. BRANHAM, Appellant, v. MILLER ELECTRIC COMPANY and International Brotherhood of Electrical Workers,, of which Miller Electric Company is, Respondent.

Page 167

118 S.E.2d 167

237 S.C. 540, 92 A.L.R.2d 592

Jess W. BRANHAM, Appellant, v. MILLER ELECTRIC COMPANY and International Brotherhood of Electrical Workers, AFL-CIO, of which Miller Electric Company is, Respondent.

No. 17739.

Supreme Court of South Carolina.

Jan. 30, 1961.

Thomas C. Bradley, Jr., Columbia, for appellant.

Boyd, Bruton & Lumpkin, Charles W. Knowlton, Columbia, for respondent.

LEGGE, Justice.

This is an action for damages alleged to have resulted from unlawful termination of plaintiff's employment in violation of the South Carolina Right to Work Law (48 Stat. at L.1692). Plaintiff appeals from an order sustaining the defendant company's demurrer to the complaint.

The allegations of the complaint are, in substance, as follows:

In March, 1958, plaintiff, a member of the defendant union, was in the employ of the defendant company as a general foreman on a construction job in Lexington County. On March 24, the journeymen electricians employed by the defendant company walked off the job and refused to work during the rest of that day and for several days thereafter. Plaintiff did not join in the walkout at any time; but on the afternoon of March 24, being told by the superintendent, Mr. Winters, that there would be no pay for the rest of that day, plaintiff and the other foremen left the job. Early next morning plaintiff went to the project site for the purpose of going to work as usual; he found a large number of men milling around the entrance gate, and, after waiting near the gate for a short while, he realized that no one was working or going to work, and therefore returned to his home. On the evening of the following day, in response to a message from Mr. Baker, the defendant company's assistant superintendent, he telephoned Mr. Baker, who told him to see Mr. Jones, (the representative of the defendant union) and come back on the job. On the following day plaintiff went to see Mr. Jones at his headquarters in Columbia, but Mr. Jones refused to give him permission to return to the job, stating as his reason that plaintiff had engaged in the unauthorized walkout of March 24 and therefore was not in good standing with the union. Plaintiff then telephoned Superintendent Winters and informed him of Jones' refusal to approve his return to the job, whereupon Winters told plaintiff that they were doing all they could to get him back on the job, and that he, Winters, would see Jones about it. Later, plaintiff received a telephone call from Assistant Superintendent Baker to the effect that they hoped to be able to get him back on the job in a few days. Finally, on April 9, Superintendent Winters told plaintiff that he could not come back to work except with the union's approval. The defendant union has refused to approve him for employment because it considers him as not in good standing. The defendant company bases its refusal to permit him to return to work solely upon the ground that he has not been cleared through the defendant union. Plaintiff is informed and believes that the defendants have an agreement whereby membership in good standing in the defendant union is required as a condition to employment or continued employment by the defendant company. The action of the defendants in thus conditioning employment, or continuance of employment upon clearance through and referral by the defendant union is in violation of the Act of March 19, 1954 (48 Stat. at L. 1692); and as the result of such action the plaintiff has sustained damage.

The defendant union answered; and this appeal is concerned only with the defendant company's demurrer and the order of the circuit court sustaining it. The demurrer was for insufficiency, charging that the complaint, on its face:

1. Showed no violation of the Right to Work Law, because it affirmatively showed that the plaintiff had not been discharged from membership in the defendant union;

2. Affirmatively showed that plaintiff had participated in a strike or walkout and that the defendant company therefore had valid ground for discharging him;

3. Failed to show that the defendant company was obligated by contract or law to hire the plaintiff or to continue his employment;

4. Affirmatively showed that the controversy was one exclusively within the purview of the Federal Labor Management Relations Act, 29 U.S.C.A. § 141 et seq., and without the jurisdiction of the state courts; and

5. Failed to allege violation of any duty or obligation owned to the plaintiff by the defendant company.

The Act of March 19, 1954, which appears in the 1960 Supplement to the Code of Laws, 1952, as Sections 40-46 through 40-46.11, contains the following provisions pertinent to our inquiry here:

Section 1 (Code Supplement Section 40-46). It is hereby declared to be the public policy of South 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.

Section 2 (Code Supplement Section 40-46.1). Any agreement or combination between any employer and any labor organization whereby persons not members of such labor organization shall be denied the right to work for such employer or whereby such membership is made a condition of employment, or of continuance of employment by such employer, or whereby any such union or organization acquires an employment monopoly in any enterprise, is hereby declared to be against public policy, unlawful and an illegal combination or conspiracy.

Section 3 (Code Supplement Section 40-46.2). It shall be unlawful for any employer:

(a) To require any employee, as a condition of employment, or of continuance of employment, to be or become or remain a member or affiliate of any labor organization or agency;

(b) To require any employee, as a condition of employment, or of continuance of employment, to abstain or refrain from membership in any labor organization;

(c) To require any employee, as a condition of employment, or of continuance of employment, to pay any fees, dues, assessments or other charges or sums of money whatsoever to any person or organization.

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Section 5 (Code Supplement Section 40-46.3). It shall be unlawful for any labor organization to enter into or seek to effect any agreement, contract or arrangement with any employer declared to be unlawful by Section 2 or Section 3 of this act (Code Supp. Sections 40-46.1 or 40-46.2).

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Section 8 (Code Supplement Section 40-46.10). Any employer, labor organization or other person whomsoever who shall violate any provision of this act shall be guilty of a misdemeanor, and, upon conviction thereof in any court of competent jurisdiction, shall be punished by imprisonment for not less than ten nor more than thirty days or by a fine of not less than ten nor more than one thousand dollars or by both in the discretion of the court.

Section 9 (Code Supplement Sections 40-46.7, 40-46.8 and 40-46.9). Any person whose rights are adversely affected by any contract, agreement, assemblage or other act or thing done or threatened to be done and declared to be unlawful or prohibited by this act shall have the right to apply to any court having general equity jurisdiction for appropriate relief. The court, in any such proceeding, may grant and issue such restraining, and other, orders as may be appropriate, including an injunction restraining...