Douglas Aircraft Co. v. Local Union 379 of Intern. Broth. of Elec. Workers (A. F. of L.)

• Decision Date: 31 January 1958
• Docket Number: No. 413,No. 241,413,241
• Citation: 101 S.E.2d 800,247 N.C. 620
• Parties: , 41 L.R.R.M. (BNA) 2594, 34 Lab.Cas. P 71,352 DOUGLAS AIRCRAFT COMPANY, Inc., a corporation, v. LOCAL UNION 379 OF the INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (A. F. OF L.) and Floyd Henderson, Business Agent of Local Union 379 of I. B. E. W. (A. F. of L.); and International Association of Bridge, Structural and Ornamental Workers, Local Union(A. F. of L.) and J. E. McEiduff, Business Agent of International Association of Bridge, Structural and Ornamental Iron Workers, Local Union (A. F. of L.).
• Court: North Carolina Supreme Court

Page 800

101 S.E.2d 800

247 N.C. 620, 41 L.R.R.M. (BNA) 2594,

34 Lab.Cas. P 71,352

DOUGLAS AIRCRAFT COMPANY, Inc., a corporation, v. LOCAL UNION 379 OF the INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (A. F. OF L.) and Floyd Henderson Business Agent of Local Union 379 of I. B. E. W. (A. F. of L.); and International Association of Bridge, Structural and Ornamental Workers, Local Union No. 413 (A. F. of L.) and J E. McEiduff, Business Agent of International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 413 (A. F. of L.).

No. 241

Supreme Court of North Carolina.

Jan. 31, 1958

William H. Booe, Charlotte, for defendant-appellants.

Bell, Bradley, Gebhardt & DeLaney, Charlotte, for plaintiff-appellee.

RODMAN, Justice.

Defendants state the question presented by the appeal thus: 'Does the Labor Management Relations Act place exclusive primary jurisdiction in the National Labor Relations Board and the Federal Courts of a suit by an employer, engaged in an activity affecting commerce within the contemplation of said act, for an injunction against peaceful picketing when the facts reasonably bring the controversy either within the section of the Act prohibiting such conduct or within the protective section of that Act?'

Defendants argue that the courts of North Carolina are without jurisdiction to proceed in this action for either of two reasons: (1) Defendants' conduct is unlawful and unfair, and because of its unfairness the courts of North Carolina are without authority to suppress such conduct; (2) defendants' conduct is lawful and the courts ought not to enjoin defendants from pursuing their legal rights.

It seems preferable first to consider and determine the validity of the second reason assigned. That reason, based on good morals, is sound in law. If it is also supported by the facts, there will be no necessity of determining whether the courts are deprived of authority to prevent conduct which the Legislature, in the exercise of its power, has declared unlawful, and Congress has said is unfair.

North Carolina has consistently recognized the rights of employees or those seeking employment to orderly and peacefully picket an employer's place of business to secure the execution or performance of a contract not prohibited by law. State v. Van Pelt, 136 N.C. 633, 49 S.E. 177, 68 L.R.A. 760; Citizens' Co. v. Asheville Typographical Union, 187 N.C. 42, 121 S.E. 31; Hudson v. Atlantic Coastline R. Co., 242 N.C. 560, 89 S.E.2d 441.

Such picketing to enforce the right to collective bargaining is, as to employees in an industry affecting interstate commerce, guaranteed by congressional statute, 29 U.S.C.A. § 157.

Defendants' answer asserts the picketing was orderly, peaceful, and for a lawful purpose, i. e., to compel compliance by plaintiff with the provisions of a lawful contract between the parties. The court heard the evidence offered, both parol and by affidavit. It found that the picketing was peaceful, but rejected the assertion that it was for a lawful purpose. To the contrary, the court found that the picketing was intended to force plaintiff to commit a forbidden act.

While the findings of fact made by the judge who heard the case are not conclusive, nevertheless, the presumption is that the findings so made are correct. Huskins v. Yancey Hospital, Inc., 238 N.C. 357, 78 S.E.2d 116; Clinard v. Lambeth, 234 N.C. 410, 67 S.E.2d 452; Branch v. Board of Education, 230 N.C. 505, 53 S.E.2d 455; Brown v. Candler, 236 N.C. 576, 73 S.E.2d 550; Town of Fremont v. Baker, 236 N.C. 253, 72 S.E.2d 666; Banner v. Button Carolina Corporation, 209 N.C. 697, 184 S.E. 508. Our review of the evidence does not disclose anything which leads us to conclude that the findings made by Judge Moore are in any manner incorrect. Hence, it follows that defendants are not justified in seeking to have the restraining order dismissed because their conduct was a mere exercise of a legal right.

We are, therefore, required to evaluate the other reason urged for dismissal, viz.: Defendants are entitled to have the order vacated because their conduct, a violation of the criminal laws of North Carolina, was also an unfair labor practice as declared by the Congress of the United States.

An examination of applicable statutes and the interpretation of these statutes by the court charged with the responsibility of making the interpretation is necessary to find an answer to the question defendants propound.

Public policy has for many years required governmental needs to be supplied pursuant to contracts with low bidders ascertained by public advertisement. 10 U.S.C.A. ch. 137, as re-enacted August 10, 1956. North Carolina has for many years so provided. G.S. § 143-129. Neither plaintiff nor Boyd & Goforth are employees of the government. They are independent contractors entitled to exercise their judgment as to the manner of performing their contracts. Hence we find no support for the assertion by plaintiff that the exclusion of the United States in the definition of 'employer' in the Labor Management Relations Act of 1947 (29 U.S.C.A. § 152(2)) makes that Act inapplicable to this case. True the United States is affected by the strike, but that is a mere incident. The strike, on the evidence, is intended to force plaintiff and Boyd & Goforth, who are employers, to submit to the demands of defendants.

Prior to 1947 orderly and peaceful picketing to induce an employer to limit employment to union members violated no law of the State of North Carolina. It was but the exercise of a legal right. Public policy did not condemn a contract so obtained. State v. Van Pelt, supra; Hudson v. Atlantic Coastline R. Co., supra.

By ch. 328, S.L.1947, now art. 10, ch. 95, General Statutes, ratified March 18, 1947, the Legislature in emphatic language declared its public policy with respect to conditions incident to the right to employment. Sec. 2 of the Act (G.S. § 95-79) provides:

'Any agreement or combination between any employer and any labor union or labor organization whereby persons not members of such union or organization shall be denied the right to work for said employer, or whereby such membership is made a condition of employment or continuation 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 and an illegal combination or conspiracy in restraint of trade or commerce in the State of North Carolina.'

The Act was promptly attacked as unconstitutional. This Court, by opinion filed December 19, 1947, held the Act a valid exercise of legislative authority. State v. Whitaker, 228 N.C. 352, 45 S.E.2d 860. In a companion case decided the same day it was declared that a violation of this statute was a crime punishable as a misdemeanor. State v. Bishop, 228 N.C. 371, 45 S.E.2d 858.

The decision of this Court in the Whitaker case was appealed to the Supreme Court of the United States. It was there argued and considered with a similar case from Nebraska. The Supreme Court of the United States held that the Legislature of North Carolina did not, by the enactment of the questioned statute, impair any constitutional right and affirmed the judgment of this Court. Lincoln Fed. L. U. v. Northwestern I. & M., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212.

As pointed out above, orderly and peaceful picketing to obtain a lawful result is but the exercise of constitutional rights and cannot be prohibited; but when picketing, for a lawful purpose, is such as to disturb the public peace, it can and has repeatedly been enjoined or otherwise punished. Carolina Wood Turning Co. v. Wiggins, 247 N.C. 115, 100 S.E.2d 218; Citizens Co. v. Asheville Typographical Union, supra; State v. Dalton, 168 N.C. 204, 85 S.E. 693; Youngdahl v. Rainfair, 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151; United A. A. & A. I. W. v. Wisconsin Emp. Rel. Bd., 351 U.S. 266, 76 S.Ct. 794, 100 L.Ed 1162; Allen-Bradley Local, etc., v. Wisconsin E. Rel. Bd., 315 US. 740, 62 S.Ct. 820, 86 L.Ed. 1154.

But the power of a court of equity to enjoin is not exhausted merely because violence is not present. If the threat to destroy one's business by the picketing is to accomplish an unlawful and forbidden purpose, courts may enjoin unless forbidden by some controlling statute. J. A. Jones Construction Co. v. Local Union, etc., of Electrical Workers, 246 N.C. 481, 98 S.E. 2d 852, is an affirmance of that power as related to the statute here under consideration.

Devin, J., (later C. J.), speaking in Burke Transit Co. v. Queen City Coach Co., 228 N.C. 768, 47 S.E.2d 297, 300, said: 'Wrongful acts, which may also be criminal, but which threaten injury to private property rights may invoke the aid of equity to prevent irreparable loss. The power of the courts to enjoin wrongful and injurious acts is not divested because such acts may also be in violation of the criminal law. 'Injunction will issue to inhibit a criminal act when the act invades civil or property rights and where there is no other adequate remedy available.' 43 C.J.S. Injunctions § 151 [p. 762]; 28 A.J. 339. Particularly is this so where a public service is involved.'

It is, we think, now authoritatively settled that an order which prohibits picketing intended to consummate a criminal act impairs no constitutional right. International Brotherhood, etc., v. Vogt, 354 U.S. 284, 77 S.Ct. 116, 1 L.Ed.2d 1347.

The United States and the individual states each have areas in which they may exercise supreme legislative authority. Congress may, however, permit state action in any area in which its authority is supreme.

The problems growing out of labormanagement relations which affect interstate commerce are unquestionably in the field in which Congress has supreme authority. If the order issued in this case runs counter to congressional legislation as interpreted by the Supreme Court of...