Dugdale Const. Co. v. Operative Plasterers and Cement Masons Intern. Ass'n, Cement Masons Local 538 of Omaha, Neb.

• Decision Date: 08 June 1965
• Docket Number: No. O,No. T,No. 51651,O,T,51651
• Citation: 135 N.W.2d 656,257 Iowa 997
• Parties: DUGDALE CONSTRUCTION CO., a corporation, Appellant, v. OPERATIVE PLASTERERS & CEMENT MASONS INTERNATIONAL ASSOCIATION, CEMENT MASONS LOCAL 538 OF OMAHA, NEBRASKA, Duane P. Martin, John Doene, and John Doewo, Appellees.
• Court: Iowa Supreme Court

Page 656

135 N.W.2d 656

257 Iowa 997

DUGDALE CONSTRUCTION CO., a corporation, Appellant, v. OPERATIVE PLASTERERS & CEMENT MASONS INTERNATIONAL ASSOCIATION, CEMENT MASONS LOCAL 538 OF OMAHA, NEBRASKA, Duane P. Martin, John Doe No. One, and John Doe No. Two, Appellees.

No. 51651.

Supreme Court of Iowa.

June 8, 1965.

Leland C. White, Harlan, and Malcolm D. Young, Omaha, Neb., for appellant.

Robert E. O'Connor, Ohaha, Neb., and Robert C. Heithoff, Council Bluffs, for appellees.

LARSON, Justice.

This appeal comes to us as a result of the trial court's action in dissolving a temporary injunction and dismissing plaintiff's petition asking injunctive relief and damages as a consequence of picketing by defendants of a certain highway construction project undertaken by plaintiff in Pottawattamie County, Iowa.

Plaintiff is a Nebraska corporation engaged in highway construction, and defendants are a local union, a union business agent, and two members of the union.

Plaintiff's petition, filed July 10, 1964, initially consisted of four counts. In the first count plaintiff alleged signs carried by defendant pickets were false and misleading, as there was no dispute between plaintiff and its employees or members of the union as to the matters set out. In Count II plaintiff alleged the picketing violated the Iowa right-to-work law and was an attempt to force it to discharge certain employees and hire members of the defendant union. In Count III plaintiff alleged the picketing violated the Iowa law on secondary boycotts as attempting by coercion to force persons, firms, and corporations to cease selling, transporting, and delivering material and supplies to it until it hired members of defendant union. In Count IV plaintiff alleged the picketing caused a shut-down of its operations, unproductive expenses of maintenance and overhead, and damages to it in the sum of $900.00 per day. Injunctive relief and damages as above stated were prayed. An affidavit of Richard T. Dugdale was attached stating that the union was not authorized to represent any of plaintiff's employees in that county. Three unidentified resurfacing projects were involved.

On July 10, 1964, a temporary injunction was issued and served upon defendants, who filed a motion to dismiss the petition on the sole ground that jurisdiction had been preempted by federal legislation placing exclusive jurisdiction in such matters in the National Labor Relations Board, or the United States District Court, or both.

On July 20, 1964, plaintiff filed an amendment to its petition alleging in Counts V and VI that on July 1, 1962, plaintiff and Local No. 538 had entered into an agreement whereby the union was recognized as the collective bargaining agent for certain classes of plaintiff's employees in certain designated territories in Nebraska, and that under the agreement schedules of wages were set in those territories effective until December 31, 1964, and that now defendants were demanding that the schedule be applied in Pottawattamie County, Iowa, contrary to the agreement. It was further alleged the union agreed to exclude from the schedule in the agreement the specific territory in Pottawattamie County, Iowa, and that the agreement provided for arbitration in event there was a 'dispute or grievance' between them, as well as matter of 'interest to either or both parties'; that there was to be 'no cessation of work' before the disputed subject was referred to the arbitration committee; that regardless of the agreement defendants demanded the schedule of wage rates fixed in the agreement should presently apply in Pottawattamie County, Iowa; and that to force compliance the union resorted to coercive picketing. No further defendant pleading appears.

The trial court concluded the petition failed to state a cause of action upon which the state court could grant relief, dissolved its temporary injunction, and dismissed plaintiff's petition without prejudice. It found the matter in controversy had not been presented to the National Labor Relations Board, that there was no allegation of violence or mass picketing, that the federal government by its various acts had placed the exclusive jurisdiction of such peaceful labor disputes in the National Labor Relations Board. Apparently the court left the door open for further state action if the National Labor Relations Board or the federal courts refused to act.

Appellant states that the sole question before this court is whether the district court, on the basis of this limited record, had jurisdiction over all or part of the causes of action stated in its petition and amendments thereto. We must agree that the trial court had no jurisdiction to issue the temporary injunction under the initial pleadings. However, when plaintiff's petition as amended is read in a light most favorable to it, we conclude it did state a cause of action for breach of a bargaining agreement which was triable in the state court. Therefore, since the court had jurisdiction of the parties, it could hear and determine the issues raised in Counts V and VI of plaintiff's petition and, if merited, grant appropriate relief.

I. Appellant contends correctly that the exclusive jurisdiction of the National Labor Relations Board is limited to matters affecting interstate commerce. The constitution gives Congress the power to regulate such commerce, and under that delegation it enacted the Taft-Hartley Law and other Labor Management Relation laws dealing with labor and management disputes. When it is clear, or may fairly be assumed, that the activities which a state purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for federal enactment requires the state jurisdiction must yield. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, 783. It is said therein: 'When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.' As to the allegations in the initial petition, that rule applies here.

While it does not appear what highway or highways were being resurfaced by plaintiff, it seems clear that they were close enough to the State of Nebraska that they would be used by persons and goods passing between the states and, as such, these roads would be classified as instrumentalities of interstate commerce. In Overstreet v. North Shore Corporation, 318 U.S. 125, 63 S.Ct. 494, 497, 87 L.Ed. 656, the Supreme Court held if vehicular roads and bridges are used by persons and goods passing between various states, they are instrumentalities of interstate commerce. Also see Mitchell v. Borwn, 8th Cir., 224 F.2d 359, certiorari denied 350 U.S. 875, 76 S.Ct. 119, 100 L.Ed. 773, and Austford v. Goldberg, 8th Cir., 292 F.2d 234 (1961), where it was recognized that, although the work on streets was primarily to serve intrastate purposes, they did carry goods and persons traveling between states and were recognized as instrumentalities of interstate commerce.

Certainly it is 'arguable' that these highways being repaired were used by persons traveling between states. We think that prerequisite is sufficiently clear here to sustain a finding that interstate commerce was involved.

Plaintiff's petition also alleges complaints which are arguably subject to § 7 or § 8 of the Act. The question as to whether the complaints do amount to violations of those provisions of the National Labor Relations Act in the first instance is for the National Labor Relations Board. San Diego Bldg. Trades Council v. Garmon, supra, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, 783. The petition does not allege this Board refused to act in the matter and the Board's policy on such disputes was not mentioned. Without discussing what happens if it refuses to consider the matter, it is clear there was no appeal to the Board here. Until the Board does act under authority of Section 14(c) of the National Labor Relations Act, which states: '(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 * * * where, in the opinion of the Board, the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction; * * *. (2) Nothing in this Act shall be deemed to prevent or bar any agency or the courts of any State * * * from assuming and asserting jurisdiction over labor disputes over which the Board declines, pursuant to paragraph (1) of this subsection, to assert jurisdiction', it is quite clear jurisdiction to regulate the activities related in plaintiff's initial petition was exclusively in the National Labor Relations Board. San Diego Bldg, Trades Council v. Garmon, supra; Local No. 438 Construction & General Laborers' Union v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d 514; Liner v. Jafco, 375 U.S. 301, 84 S.Ct. 391, 11 L.Ed. 347; and Amalgamated Meat Cutters, etc. v. Johnson, 178 Kan. 405, 286 P.2d 182, 28 Labor Cases, § 69, 374. The activities plaintiff asked the state to regulate in its first four counts reasonably fall within the protection of § 7, or the prohibition of § 8 of the National Labor Relations Act. Thus the basis upon which the temporary injunction was issued in this matter was improper, and were it not for the plaintiff's amendment, the court would have been correct in dissolving it.

II. When plaintiff amended its petition to allege violation of a bargaining agreement and asked both injunctive and monetary relief, we have another matter. Indeed, in our search we have found no authority which holds the federal government has taken from the state courts jurisdiction to pass upon breach of contract...