Broadcast Service of Mobile, Inc. v. Local 1264, Intern. Broth. of Elec. Workers

• Decision Date: 12 December 1963
• Docket Number: 1 Div. 163
• Citation: 159 So.2d 452,276 Ala. 93
• Parties: BROADCAST SERVICE OF MOBILE, INC. v. LOCAL 1264, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS et al.
• Court: Alabama Supreme Court

Page 452

159 So.2d 452

276 Ala. 93

BROADCAST SERVICE OF MOBILE, INC. v. LOCAL 1264, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS et al.

1 Div. 163.

Supreme Court of Alabama.

Dec. 12, 1963.

Rehearing Denied Jan. 16, 1964.

Stone & Howard and Kilborn, Darby & Kilborn, Mobile, for appellant.

Pierre Pelham, Mobile, and Adair, Goldthwaite & Stanford, Atlanta, Ga., for appellees.

SIMPSON, Justice.

This is an appeal from a final decree of the Circuit Court of Mobile County, Alabama, in Equity, dissolving a temporary injunction theretofore in effect and dismissing the cause on the ground that the court's jurisdiction was pre-empted by the National Labor Relations Act.

The action was commenced on September 4, 1962, by appellant by verified bill of complaint, which, among other things, prayed for a temporary restraining order, enjoining Local 1264, International Brotherhood of Electrical Workers, et al., from interfering with the conduct of appellant's business.

Appellant on February 10, 1963, filed a verified amended complaint alleging that the appellant, prior to August 1, 1962, purchased certain assets of Radio Station WAIP, Prichard, Alabama, and commenced operation of the station with a full complement of personnel. Around August 3, 1962, appellee demanded that appellant employ David Fridge as radio engineer and demanded that appellant recognize appellee as the collective bargaining representative of appellant's employees although none of the employees of appellant had designated the appellee as his collective bargaining representative. Appellant refused to terminate any of its employees in order to employ Fridge. On August 10, 1962, appellee began picketing appellant's office in Prichard, Alabama; none of the persons who picketed appellant had ever been employees of appellant. Appellee 'since August 10, 1962, has by picketing, letters addressed to persons, firms and corporations and by personal contact sought to effect a boycott of complainant and to cause persons doing business with complainant to refrain from doing business with complainant'. Since August 10, 1962, appellee by letter and personal contact induced customers of appellant to cancel advertising agreements with appellant. The object of the picketing and boycotting was to force and require appellant to bargain with appellee although appellee had not been selected by any of appellant's employees for the purpose of collective bargaining; to force appellant to violate the Alabama Right to Work Act; to force appellant's employees to join the appellee; to force appellant to employ members of the appellee; to ruin the business of appellant and to require persons advertising over appellant's radio station to breach their advertising contracts with appellant. The complaint alleges that irreparable damage would be caused to appellant unless the picketing and related conduct is enjoined.

Appellee filed a plea in adatement to the jurisdiction of the court on the ground that the National Labor Relations Board had exclusive jurisdiction over the matters alleged in the complaint. The plea to the jurisdiction admitted that the appellee had by letter and by personal contact requested advertisers in Mobile, Alabama, to advertise over radio stations other than WSIM. After a hearing in open court on September 13, 1962, the trial court issued a temporary injunction upon the amended bill of complaint and affidavits submitted by the appellant and appellee. In its temporary injunction the court found:

'1. The picketing conducted by the respondent union and its agents is entirely peaceful and that there is no threat or apprehension of physical violence;

'2. The complainant has five employees none of whom belong to or desire the respondent union to represent them;

'3. The purpose of the respondent union's picketing, respondent union's letters addressed to 'All Merchants of the Mobile-Prichard Area' and personal contacts by representatives of the respondent union with advertisers over complainant's Radio Station is to require complainant to recognize the respondent union as the bargaining agent of complainant's employees or to require the complainant to employ a member of the respondent union as a radio engineer at complainant's station located in Prichard, Alabama.

'The Court further finds that each of the objectives of the picketing is contrary to the public policy of the State of Alabama as expressed in the Alabama Right to Work Law and the common law of the State of Alabama.

'The Court further finds that the picketing, personal solicitation and solicitation by letter is causing irreparable damage to the complainant and the Court being of the opinion that the complainant's application for a temporary writ of injunction as prayed for in the amended bill of complaint should be granted.'

In its answer to the amended complaint the appellee admitted that respondent since August 10, 1962, had by picketing, letters addressed to persons, firms and corporations and by personal contact sought to effect a boycott of complainant and to cause persons doing business with or desiring to do business with complainant to cease doing business with complainant or to refrain from doing business with complainant.

Appellee's answer further admitted that appellee by personal contact and by mail contacted advertisers of WSIM for the purpose of inducing them to cease advertising over radio station WSIM but sought to justify the action on the ground that it was protected in its activity under the National Labor Relations Act and the First and Fourteenth Amendments to the Constitution of the United States.

On May 23, 1963, after hearing in open court, the court entered an order dissolving the temporary injunction and dismissing the cause on the ground that jurisdiction of the Circuit Court of Mobile County, Alabama, was pre-empted by the National Labor Relations Act. This appeal followed.

While there are several assignments of error, only one question is presented: Did the Circuit Court err in determining that it did not have jurisdiction of the subject matter?

Appellee argues that all of the acts and conduct alleged in the complaint are subject matter regulated by the National Labor Relations Act, as amended, and as to which the National Labor Relations Board has exclusive authority to adjudicate legalities and illegalities if the dispute affects interstate commerce. It is further argued that state courts are without authority to adjudicate the merits of a labor dispute as to which it is arguable that the Labor Relations Board would assert jurisdiction and that each case must be first submitted to that Board to determine in the first instance whether it will assert jurisdiction.

Appellant, on the other hand, argues that the entire field of labor relations has not been pre-empted by federal legislation; that there remains a substantial area in which the states may act, and that in fact the activity complained of here has been expressly left to the states by Congress through the enactment of an amendment to the Labor Management Relations Act of 1947, as amended in 1959 (29 U.S.C.ode Ann. § 161[c] and ), providing:

Section 164(c)(1):

'The Board, in its discretion, may, by rule of decision or by published rules adopted pursuant to the Administrative Procedure Act, decline to assert jurisdiction over any labor dispute involveing any class or category of employers, where, in the opinion of the Board, the effect of such labor dispute on commerce...