City of Fairmont v. Retail, Wholesale, and Dept. Store Union, AFL-CIO

• Decision Date: 21 October 1980
• Docket Number: AFL-CIO,No. CC911,CC911
• Citation: 283 S.E.2d 589,166 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: , 106 L.R.R.M. (BNA) 2083 CITY OF FAIRMONT, a municipal corporation, doing business as Fairmont General Hospital v. RETAIL, WHOLESALE, AND DEPARTMENT STORE UNION,, et al.

Page 589

283 S.E.2d 589

166 W.Va. 1, 106 L.R.R.M. (BNA) 2083

CITY OF FAIRMONT, a municipal corporation, doing business as Fairmont General Hospital v. RETAIL, WHOLESALE, AND DEPARTMENT STORE UNION, AFL-CIO, et al.

No. CC911.

Supreme Court of Appeals of West Virginia.

Oct. 21, 1980.

Concurring Opinion June 18, 1981.

Syllabus by the Court

1. In general, American courts have not followed the English common law surrounding the suppression of labor unions.

2. While some constitutional protection is extended under the First Amendment to public employees to organize, speak freely and petition, it is clear that a public employer is not required to recognize or bargain with a public employee association or union in the absence of a statutory requirement.

3. Where public employees, who have no employment contracts with their employer, engage in a work stoppage which is peaceful and directed only against the employer with no attempt to interfere with his customers or bar ingress to other employees, there is no common law right to damages on the part of the public employer.

4. "In the absence of a statute or rule of practice authorizing such procedure, an unincorporated society or association can not be sued as an entity by its name, nor can judgment be rendered against it merely by name; but to confer jurisdiction, the members composing the association, or some of them, must be named as parties and process served upon them individually." Syllabus Point 2, State ex rel. Glass Blowers Association v. Silver, 151 W.Va. 749, 155 S.E.2d 564 (1967).

5. The procedural changes brought about by W.Va. Code, 21-1A-7, are applicable only to parties and disputes covered by the act and cannot be construed to have changed our settled common law in regard to the suability of labor unions that are outside the ambit of the act.

6. "Statutes in derogation of the common law are allowed effect only to the extent clearly indicated by the terms used. Nothing can be added otherwise than by necessary implication arising from such terms." Syllabus Point 3, Bank of Weston v. Thomas, 75 W.Va. 321, 83 S.E. 985 (1914).

Furbee, Amos, Webb & Critchfield and Stephen R. Brooks, Fairmont, Thorp, Reed & Armstrong, Charles R. Volk and Martin J. Saunders, Pittsburgh, Pa., for plaintiff.

Grant F. Crandall, Bradley J. Pyles, Logan and Robert Poyourow, Charleston, for defendants.

McIntyre, Haviland & Jordan, James B. McIntyre and James M. Haviland, Charleston, for amicus curiae--W.Va. Labor Federation, AFL-CIO and Certain Locals of American Federation of Teachers, AFL-CIO.

MILLER, Justice.

The Circuit Court of Marion County determined that upon the limited facts presented to it through pleadings, affidavits and a summary judgment hearing that a peaceful strike by employees of a municipal hospital did not give rise to a cause of action for damages against certain labor unions. It thereupon certified its rulings to this Court under the provisions of W.Va. Code, 58-5-2. The certified questions are set out in the margin. ¹ For reasons more fully stated herein, we decline to address the certified questions in the precise manner in which they are formulated to us since we believe there is some redundancy in the legal questions posed. Two basic questions are posed. First, whether as a matter of law the facts present a substantive cause of action for damages. Second, whether a labor union may be sued as an entity. We have traditionally maintained that upon receiving certified questions we retain some flexibility in determining how and to what extent they will be answered. West Virginia Water Service Co. v. Cunningham, 143 W.Va. 1, 98 S.E.2d 891 (1957).

Because the issues involved in this case are matters of substantial public importance, and because in this area of labor law there is a critical necessity for precise delineation of the operative facts, it is important to summarize the key factual events upon which this opinion is predicated.

I. The Operative Facts

The City of Fairmont as a municipal corporation operates a hospital known as the Fairmont General Hospital. Prior to the filing of the complaint on September 11, 1978, the hospital had entered into a collective bargaining agreement with the Retail, Wholesale and Department Store Union, AFL-CIO, and its Local 550. This collective bargaining agreement covered a three-year period from March 2, 1977, to March 2, 1980. The employees included in the bargaining unit were non-professional maintenance employees. Included within this collective bargaining agreement was a provision that:

"The union agrees that for the duration of this contract it will not attempt to organize, admit to membership or represent any employees not currently included in the above bargaining unit."

Sometime in August, 1978, the hospital learned that a number of its nursing staff, as well as certain other technical employees, desired to organize collectively and be represented by Local 1199 of the National Union of Hospital and Health Care Employees, which is also a member of the AFL-CIO. There was apparently some confusion on the part of the hospital as to whether Local 1199 of the Hospital and Health Care Employees was in fact representing the nurses or whether it was Local 550 of the Retail, Wholesale and Department Store Union, which had agreed under the collective bargaining agreement not to expand its bargaining unit. Part of this confusion was engendered by the fact that both locals had utilized the same business agent, the defendant Tom Woodruff.

Correspondence and telegrams were exchanged between the hospital and Mr. Woodruff, and it was the latter's position that the nurses were being represented by Local 1199 of the Hospital and Health Care Union. Several nurses, together with Mr. Woodruff, made abortive attempts to discuss the union's representation with the hospital administrative staff and to present to the hospital management a petition signed by 156 nurses affirming their desire to have Local 1199 act as their bargaining agent.

When the hospital refused to meet with nursing representatives and Mr. Woodruff, it was advised that by vote of 145 to 9 the nurses and other technical employees would on September 11, 1978, refuse to work. The involved employees offered to set up an emergency care committee; however, the hospital management declined this offer and made arrangements to close the hospital facility except for emergency and out-patient services.

The work stoppage occurred on September 11, 1978, and was accompanied by informational picketing at the situs of the hospital. The picketing was peaceful and nonobstructive to other hospital employees. The hospital initially sought a temporary injunction but this was declined by the Circuit Court of Marion County.

Thereafter, the case proceeded on the question of whether the hospital could collect damages as a result of the work stoppage from the various defendants, who were the Retail, Wholesale and Department Store Union, AFL-CIO; Local 550, Retail Wholesale and Department Store Union, AFL-CIO; Local 1199, National Union of Hospital and Health Care Employees; Tom Woodruff; Buhl Tennant; John Doe; and Jane Doe. The hospital asserted that it had a cause of action for damages based on the fact that the work stoppage constituted a tortious interference with its business relations or was a public nuisance in view of the fact that a public employees' strike is illegal. The trial court declined to give damages, holding as a matter of law that a peaceful strike by employees under the facts of this case did not give rise to a cause of action for damages. It also concluded that from a procedural standpoint the various union defendants could not be sued as entities.

II. The Common Law Right To Damages

The hospital asserts the broad proposition that since it is generally held that public employees have no right to strike, that it follows that such a strike is illegal and as a consequence it may recover damages as a result of the strike. ² We do not agree with this reasoning. Whether there is a right to sue for damages in this case will depend upon common law labor principles. ³

In Krystad v. Lau, 65 Wash.2d 827, 400 P.2d 72 (1965), the Washington Supreme Court, sitting en banc, made a rather exhaustive analysis of the common law surrounding labor unions and took particular pains to point out that in general American courts have not followed the English common law surrounding the suppression of labor unions:

"American courts gave scant heed to the common-law rules for the suppression of labor unions. Only two states of the United States seem to have accepted the curious view that a combination of workmen to raise wages constituted a criminal conspiracy. People v. Melvin, 2 Wheeler's Crim.Cases 262 (New York, 1810); People v. Trequier, 1 Wheeler's Crim.Cases 142 (New York, 1823); Philadelphia's Cordwainers' Case (Pennsylvania, 1805), reported 41 Yale L.Jour. 165 (1931). Despite dicta to the contrary, the idea that a labor union is a criminal conspiracy seems not to have taken root in this country. Witte, Early American Labor Cases, 35 Yale L.Jour. 825 (1926); Nelles, The First American Labor Case, 41 Yale L.Jour. 165 (1931). Any lingering doubts that the roots of the idea were shallow indeed, if they can be said to have taken hold at all in American law, may be put to rest by a reading of Commonwealth v. Hunt, 45 Mass. (4 Metcalf) 111, 38 Am.Dec. 346 (1842), a landmark in the field of labor law, and quite possibly the foundation upon which the American law of labor unions is built." (65 Wash.2d at 835, 400 P.2d at 77) ⁴

Commonwealth v. Hunt, 45 Mass. (4 Met.) 111, 134 (1842), cited in Krystad, contains these statements which in effect test the lawfulness of a union's conduct as reflected by its activities:

"[A]ssociations may be entered into, the object of which is to adopt measures that may have a tendency to impoverish another that is, to diminish his...