Collier v. Operating Engineers Local Union No. 101, 1290

• Court: United States State Supreme Court of Kansas
• Writing for the Court: FROMME
• Citation: 612 P.2d 150,228 Kan. 52
• Parties: , 109 L.R.R.M. (BNA) 2233, 90 Lab.Cas. P 12,414 Jimmy R. COLLIER, d/b/a Service and Maintenance Construction Company, Appellant, v. OPERATING ENGINEERS LOCAL UNION NO. 101, and Construction and General Laborers' Local Unionppellees.
• Docket Number: A,No. 1290,No. 51179,1290,51179
• Decision Date: 14 June 1980

Page 150

612 P.2d 150

228 Kan. 52, 109 L.R.R.M. (BNA) 2233,

90 Lab.Cas. P 12,414

Jimmy R. COLLIER, d/b/a Service and Maintenance Construction

Company, Appellant, v. OPERATING ENGINEERS LOCAL UNION NO. 101, and Construction and General Laborers' Local Union No. 1290, Appellees.

No. 51179.

Supreme Court of Kansas.

June 14, 1980.

Syllabus by the Court

1. When the status of a motion under K.S.A. 60-212(b )(6) has been converted to that of a motion for summary judgment reasonable opportunity to present all material pertinent to such a motion should be given.

2. An appellate court in examining the validity of a motion for summary judgment should read the record in the light most favorable to the party who defended against the motion. It should accept such party's allegations as true, and it should give him the benefit of the doubt when his assertions conflict with those of the movant.

3. It is generally understood because of the doctrine of federal pre-emption state courts have no jurisdiction to entertain actions arising from labor combat except under special circumstances.

4. The Labor Management Relations Act of 1947, 29 U.S.C. § 187(b), expressly provides a clear exception to the exclusive jurisdiction of NLRB, and grants the state courts primary jurisdiction concurrent with federal courts to decide claims for damages when the cause of action is grounded on a violation of 29 U.S.C. § 158(b)(4).

5. For a violation of 29 U.S.C. § 158(b)(4), condemning secondary boycotts, double remedy is available to the aggrieved party, one being an administrative remedy generally available by bringing the dispute to the National Labor Relations Board, and the other a remedy for damages under 29 U.S.C. § 187(b), and these remedies are independent of one another.

6. Punitive damages may not be recovered for § 303 violations of the Labor Management Relations Act in an action brought under 29 U.S.C. § 187(b).

7. A proper pleading need only contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which the pleader deems himself or herself entitled. All pleadings shall be so construed as to do substantial justice.

8. In an action brought to recover damages from two labor unions because of an alleged secondary boycott the record is examined and it is held the court erred in dismissing the plaintiff's petition with prejudice.

Laurence M. Jarvis, of Laurence M. Jarvis, Chartered, Kansas City, argued the cause and was on the brief for the appellant.

Robert S. Fousek, Kansas City, Mo., argued the cause, and John J. Manning, Kansas City, Mo., and Timothy Evans, Kansas City, were with him on the brief for Operating Engineers Local No. 101, appellee.

Richard B. Thompson, of Blake & Uhlig, Kansas City, argued the cause and was on the brief for the Construction and General Laborers' Local Union No. 1290, appellee.

FROMME, Justice:

The plaintiff Jimmy R. Collier appeals from an order of the district court dismissing his petition for damages with prejudice. The court reasoned that it was without subject matter jurisdiction because the controversy concerned matters arguably protected by the Labor Management Relations Act of 1947, or arguably prohibited by said act.

The plaintiff filed the cause of action for damages against two local labor unions for intentionally, willfully, and maliciously interfering with the plaintiff in the performance of a contract and causing Owens-Corning Fiberglas Corporation (Owens-Corning) to terminate said contract with plaintiff. Plaintiff alleged the acts of the unions constituted tortious interference with an existing contract to build a parking lot on the premises of Owens-Corning. It was further alleged that as a result of defendants' wrongful acts they intentionally procured a breach of said contract. Both compensatory and punitive damages were sought for loss of business and loss of business profits.

Construction and General Laborer Local Union No. 1290 (Union No. 1290) and Operating Engineers Local Union No. 101 (Union No. 101) filed separate motions to dismiss which were treated as motions for summary judgment in that both the plaintiff and the labor unions filed affidavits supplementing the allegations in the petition.

The following facts are gleaned from the affidavit filed by Collier. On April 5, 1978, he entered into a written contract with Owens-Corning to provide labor, materials and equipment necessary to prepare a parking lot on Owens-Corning's premises. On May 19, 1978, a representative of Union No. 1290 came to the job site where his employees were working and asked if Collier was a union contractor. Collier said he was not. He was then asked if he was going to become a union contractor. He again advised that he was not. On May 26, 1978, the representative of Union No. 1290 returned, accompanied by a representative of Union No. 101. They came on the lot and threatened to put a "banner" on the job. Collier told them not to interfere with his contract and reminded them of the Kansas right to work law. Collier had no contract with either union. On May 30, 1978, members of Union No. 1290 placed a picket at the job site and Owens-Corning then terminated its contract with Collier. Owens-Corning advised Collier that if the picket remained on the premises Owens-Corning employees would honor the picket and the plant would have to be shut down. It was better for Owens-Corning to terminate the contract and get a union contractor to finish the parking lot. Collier had performed at least fifty contracts for Owens-Corning. Collier had also received requests to bid on jobs of Owens-Corning on an average of once a week for nine or ten years. Ever since the incident ending with the picketing Collier has had no correspondence or requests for bids from Owens-Corning.

The unions, in support of the motions to dismiss, filed a memorandum arguing that under the doctrine of federal pre-emption the petition alleges conduct which is within the exclusive jurisdiction of the National Labor Relations Board (NLRB). In addition they filed an affidavit by the president of Union No. 1290 in which he stated he had received information that Collier was performing construction work at the Owens-Corning facility, that Collier was paying wages below the prevailing area standard for workers in the laborer's trade, and that he instructed his people to establish an area standards picket at the Owens-Corning facility to notify members of the public that the unions' established area working conditions were being broken down by Collier. The picket banner read "Jimmy R. Collier Breaking Down Established Working Conditions Laborers Local 1290, AFL-CIO." Collier was no longer retained on the job. The picket banner was removed. The union president stated he and the union did not procure or attempt to procure the breach of the contract between Collier and Owens-Corning. This latter statement appears to be in direct conflict with the statements in the petition and in the affidavit of Collier.

We are confronted at the outset with a question of procedure. The unions filed no pleadings except those designated as motions to dismiss under K.S.A. 60-212(b )(6). They alleged lack of subject matter jurisdiction and federal pre-emption of subject matter. However, an affidavit was filed in support of the motions setting forth facts showing at least one major factual disagreement with Collier's petition, i. e., the purpose or object of the picketing. K.S.A. 60-212(b )(6) provides for a dismissal for "failure to state a claim upon which relief can be granted." This statute further provides in pertinent part:

"If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by K.S.A. 60-256."

When the status of a motion under K.S.A. 60-212(b )(6) has been converted to that of a motion for summary judgment reasonable opportunity to present all material pertinent to such a motion should be given. The parties have lodged no objection by reason of this conversion and the plaintiff did respond by affidavit to the motion as if it were one for summary judgment. Under the circumstances we see no prejudice from this conversion. Both this court and the federal courts have recognized and permitted conversion of a motion to dismiss into a motion for summary judgment. Gardner v. McDowell, 202 Kan. 705, 706, 451 P.2d 501 (1969); 5 Wright & Miller, Federal Practice & Procedure: Civil § 1366 (1969).

Summary judgment should not be entered where there are disputed issues of material fact. Mildfelt v. Lair, 221 Kan. 557, 559, 561 P.2d 805 (1977). An appellate court in examining the validity of a motion for summary judgment should read the record in the light most favorable to the party who defended against the motion. It should accept such party's allegations as true, and it should give him the benefit of the doubt when his assertions conflict with those of the movant. Woods v. Cessna Aircraft Co., 220 Kan. 479, 481, 553 P.2d 900 (1976); Nordstrom v. Miller, 227 Kan. 59, 64, 605 P.2d 545 (1980).

For the purposes of this appeal we must accept plaintiff's allegations that the unions intentionally and maliciously placed the picket and banner on the Owens-Corning premises for the purpose of interfering with the existing contract and for the purpose of procuring a breach of that contract between Collier and Owens-Corning.

The unions call this court's attention to the doctrine of federal pre-emption under the United States Constitution and point out the United States Supreme Court acknowledges that...