Day v. Northwest Division 1055

CourtSupreme Court of Oregon
Writing for the CourtBefore McALLISTER; SLOAN; PERRY; ROSSMAN
Citation238 Or. 624,389 P.2d 42
PartiesElmer J. DAY, Respondent, v. NORTHWEST DIVISION 1055 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employes of America, a labor union, and C. A. Bankhead, an individual, Appellants.
Decision Date29 January 1964

Page 42

389 P.2d 42
238 Or. 624
Elmer J. DAY, Respondent,
NORTHWEST DIVISION 1055 of the Amalgamated Association of
Street, Electric Railway and Motor Coach Employes
of America, a labor union, and C. A.
Bankhead, an individual, Appellants.
Supreme Court of Oregon, In Banc.
Argued and Submitted July 1, 1963.
Decided Jan. 29, 1964.

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Paul T. Bailey, Portland, argued the cause for appellants. With him on the briefs were Bailey, Swink & Gates and Harl H. Haas, Portland.

Maurice Sussman, Portland, argued the cause for respondent. With him on the brief were Sussman & Sussman, Portland.


[238 Or. 625] SLOAN, Justice.

Plaintiff Day was employed as a driver by Western Greyhound Lines. His employment was governed by a contract between Greyhound and defendant local union Northwest Division 1055. Amongst other things this contract required Day to remain a member of the union in good standing in order to retain his employment. On November 3, 1959, Day's employment was terminated by Greyhound at the request of the individually named defendant, Bankhead. The latter was financial secretary of the union. The ostensible cause of Bankhead's request that Day's employment be terminated was the failure of Day to pay his union dues on time. There was evidence to show, and the jury found, that the real cause was a conspiracy to get Day out of the union. Day brought this action for tortious interference with his employment and received a large jury verdict for general and punitive damages. Defendants union and Bankhead appeal.

Other defendants were originally named; we need not consider them. They have been removed from the case. Other detailed facts could be stated. This is unnecessary. The basis of our determination of the case is two recent decisions of the United States Supreme Court on the subject of federal pre-emption of disputes like the instant case. These cases, Local 100 of the United Association of Journeymen and Apprentices v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638, and Local No. 207, International Association of Bridge, Structural and Ornamental Iron Workers Union v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646, were both decided on June 3, 1963. Unfortunately these decisions were filed after the pre-emption issue was decided on a pleading's issue by the trial court and after briefs were filed by the parties here.

Our study of these and other cases and authority have caused us to conclude that Borden and Perko [238 Or. 626] limit plaintiff's relief here to the National Labor Relations Board. The earlier case of International Ass'n of Machinists v. Gonzales, 1958, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018, which gave support to plaintiff's claim here has now been substantially modified if not overruled, by later cases. The first case after Gonzales to further restrict the jurisdiction of the state courts was San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 1959, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775. The Garmon decision caused the Second District, Division One of the California Court of Appeals in Fullerton v. International Sound Technicians, etc., 1961, 194 Cal.App.2d 801, 15 Cal.Rptr. 451, by an extensive opinion, to conclude that federal authority had pre-empted all cases of the

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kind now before us. And in Perko the Court stated at 373 U.S. 705, 83 S.Ct. 1431, 10 L.Ed.2d 646 that:

'At the outset we note that for the reasons set forth in Borden, 373 U.S. 690, 83 S.Ct. 1423 [10 L.Ed.2d 638], the rationale of the Gonzales case does not support state jurisdiction here, and are need not now consider the present vitality of that rationale in the light of more recent decisions.'

The dissenting opinion in the Borden case provides strong emphasis that Gonzales can no longer be held to support state jurisdictions in the instant and other like cases.

It is true that in United Const. Workers, Affiliated with United Mine Workers of America v. Laburnum Const. Corp., 1954, 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025, followed later by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (U.A.W.-C.I.O.) v. Russell, 1958, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030, the Court sustained recovery in state courts for damages in tort. But in the later case of Garmon, supra, at 359 U.S. 236, 247, 79 S.Ct. 773, 3 L.Ed.2d 775, the Laburnum Construction Corporation and Russell cases were limited to torts by violence which created a 'compelling state interest' to maintain domestic peace.

[238 Or. 627] We learn from cases like National Labor Relations Board v. Technicolor Motion Pic. Corp., (9th Cir. U.S.C.A., 1957), 248 F.2d 348, and International Union of Electrical, Radio and Machine Wkrs. v. N. L. R. B., (U.S.C.A.-D.C.1962), 113 U.S.App.D.C. 342, 307 F.2d 679, that a union may lawfully require an employer to discharge an employe for a failure to maintain good standing in the union, when the union contract permits it, as in the instant case. If the request for discharge has been honest and for the actual reason assigned, the union and employer are within their rights and it is held that no unfair labor practice has occurred. But, if the discharge for failure to pay dues was used as a subterfuge to hide some other improper motive, as in the instant case, the union, at least, has been guilty of an unfair labor practice and the National Labor Relations Board will, presumably, protect the workman's rights. The cases leave no doubt that the decision as to the true nature of the discharge is within the cognizance of the Board.

Garmon, supra, Borden and Perko all tell us that if the conduct alleged 'may reasonably be asserted to be subject to Labor Board's cognizance,' then the courts, both state and federal, are without any right to proceed. In this case the Board does reasonably have cognizance of the question at issue and we must desist from further proceedings.

We have no hesitancy in stating that we reach that conclusion with reluctance. However, the result has been fortified by Retail Clerks Internat'l Ass'n, Local 1625 A.F.L.-C.I.O. v. Schermerhorn, decided December 2, 1963, 84 S.Ct. 219, 223, 11 L.Ed.2d 179, 185, wherein the Court made this reference to the Borden and Perko cases:

'We held in Local 100 of the United Ass'n of Journeymen and Apprentices [Union] v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638, and in Local [No.] 207, Intern. Ass'n of Bridge, Structural and Ornamental Iron [238 Or. 628] Workers Union v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646, that Garmon preempted the field where employees were suing unions for damages arising out of practices that arguably were unfair labor practices subject to regulation by the National Labor Relations Board. * * *'

It follows that the action must be dismissed.

PERRY, Justice (dissenting).

The majority fail to set forth the facts which are necessary to determine this case, so I shall do so.

The material facts in this case are that plaintiff Day was a member of the defendant Local 1055, a labor union; that he was employed as a bus driver by the Greyhound Corporation, a corporation engaged in interstate

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commerce. The union had a unionshop agreement with Greyhound. A check-off system for the payment of dues was inaugurated by the officers of the union and acquiesced in by Greyhound. A number of the employees, among them this plaintiff, protested the deduction of dues from pay checks because they had not signed authorization cards, and thereafter plaintiff received his pay check without the deduction. This change required the plaintiff to pay his dues directly to the union.

After this change was made in the method of the payment of dues, the defendant Bankhead, as financial secretary of the union in charge of collection of membership dues, wrote a letter to plaintiff, advising him that he was delinquent in the payment of his September dues, but would be allowed until October 28, 1959, to make this payment, or be suspended.

Plaintiff, on October 27, 1959, went to the union office and paid his September dues. At this time, Bankhead advised plaintiff that his October dues were [238 Or. 629] owing and must be paid by October 31, 1959. Bankhead then determined the defendant was no longer a member of the union. On November 2 Bankhead notified Greyhound to discharge plaintiff, as he had suspended himself from membership in the union and was, therefore, no longer a member in good standing as required under the union-shop agreement.

Pursuant to Bankhead's notification, Greyhound on November 4 notified plaintiff that he was discharged. The morning of November 5 the amount of the dues, $14.00, was received by defendant for plaintiff's October and November dues. This money had been placed in the mails on November 3, one day before his discharge by his employer. The tender of dues was then rejected by the union on the basis that at the time the tender was received the plaintiff was not then employed as a bus driver or in any activity or industry over which the union exercised jurisdiction.

On November 12, on an approved form, plaintiff filed a 'charge' against the union, alleging it had engaged in an unfair labor practice 'within the meaning of Section 8(b) subsections 1 and 2 of the National Labor Relations Act, * * * affecting commerce * * *,' as follows:

'The above labor organization successfully and unlawfully demanded my discharge by the employer named below for the reason of delinquency in dues. I was notified by the Company's chief dispatcher at about 6:00 P.M. on November 4, 1959, that I was discharged. On November 3, 1959, by deposit in the mails, addressed to the Union, I tendered my dues payment for October and November, 1959, and the dues payment was in possession of the Union prior to my discharge.'

[238 Or. 630] On December 15 the plaintiff...

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