International Broth. of Elec. Workers v. Briscoe
| Citation | 239 S.E.2d 38,143 Ga.App. 417 |
| Decision Date | 19 September 1977 |
| Docket Number | No. 3,No. 54443,54443,3 |
| Parties | , 97 L.R.R.M. (BNA) 2214, 82 Lab.Cas. P 55,092 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS et al. v. A. L. BRISCOE |
| Court | United States Court of Appeals (Georgia) |
Fink, Young, Meyers & McLam, Fredrick C. McLam, Charles M. Richards, Atlanta, for appellants.
Novy & Rumsey, Eugene Novy, Penelope W. Rumsey, Atlanta, for appellee.
Adrian Lee Briscoe obtained employment in January, 1976 as a superintendent for F. A. Tucker Construction Company which had a contract to build for Georgia Power Company the Bonaire to Baxley 500 KV transmission line. For some 18 years he had been a linesman, a foreman and a general foreman engaged in the construction of large electrical transmission lines and the steel structures which support those lines. Nine or ten years of that time he had been a member of defendant International Brotherhood of Electrical Workers, but his membership terminated in 1974. In that year, construction business having declined and Briscoe being unemployed, he accepted a 3-day job with the City of Hampton. The union, Local No. 74, filed charges against him for working on a nonunion job, and after trial the union found him to be in violation of its rules and assessed him $500, the amount he had been paid on the nonunion job. Briscoe chose not to pay the assessment and forfeited his membership in the union.
In late 1975 Briscoe responded to an advertisement in the Atlanta Journal that nonunion line work was available with the Tucker Company on the Bonaire Project. He was invited for an interview in Atlanta and referred to Wilbur Morrow, whom he knew and who was project manager. Morrow telephoned him, and he went to the job site at McRae for another interview. At that time he told Morrow of his former union membership and how he forfeited that membership. He was assured by Morrow, who himself was a 35-year union member, that this would present no problem. They discussed the specifics of his prospective job and reviewed the project, the builder's particular needs, the hourly pay rate of $8.70, the guaranteed 40-hour work week, his use of a company truck, overtime compensation, the length of the job approximately 15 months and that Briscoe would be superintendent of the steel yards. The project manager wanted him to go to work the next day, but Briscoe for personal reasons said he couldn't report until the following Monday, January 12, which he did.
The union had as steward on the job the other defendant in this case, Clifford Taylor. The union steward was appointed by the Fifth District vice president of IBEW to try to handle grievances between employees and the company and to report only to the vice president of IBEW. Those grievances which could not be settled between himself and the foreman would be submitted by the steward to the International vice president. The steward and Briscoe had exchanged greetings when Briscoe went to see the project manager, at which time Briscoe told him why he came. On the day that Briscoe reported to begin his work, the steward came to the project manager's office, drew him aside and conversed out of Briscoe's hearing. The steward told the project manager about Briscoe's former relationship with the union, that a lot of the people in the local didn't like him, that union men didn't want him on the job, that the men wouldn't work for the foreman under Briscoe if Briscoe were on the job, and that there would be trouble there "was going to be problems." The steward testified that the kind of trouble he was talking about could affect the project manager, his position, and his performance "to get the job done," that one of the problems if Briscoe were retained could be "a work slow-down," and that the four men then on the job would not work for Briscoe. After the conversation with the union steward, the project manager discussed it with Briscoe and told him that as a result it would be necessary to discharge him from employment.
Briscoe filed his complaint against IBEW, John B. Pate as its vice-president, and Clifford Taylor, as an employee and representative of the union, alleging his employment by F. A. Tucker Construction Company, and that the defendants maliciously and wilfully intimidated and coerced or caused Tucker to break its employment contract with him, for which he sought damages in lost wages, punitive damages, and attorney's fees.
A motion to dismiss J. B. Pate as a defendant was sustained. Motions to dismiss the action on grounds of federal preemption of subject matter and personal jurisdiction, and to dismiss IBEW on grounds there was no evidence that it participated in or authorized any interference with Briscoe's employment contract, were denied. The jury returned a verdict of $20,000 damages plus $3915 attorney's fee, and judgment was entered thereon. IBEW's and Taylor's motion for new trial was denied. In their appeal they enumerate seven alleged errors.
Before going into the merits of the appeal, however, we give attention to Briscoe's request that the appeal be dismissed or in the alternative each of the enumerated errors be declared abandoned and the judgment thereby affirmed. His request is based on the fact that the enumeration of errors and the brief for IBEW and Taylor were not filed with the clerk within 20 days after the case was docketed in his office pursuant to Rules 14(a) and 16(a) of this Court (Code Ann. §§ 24-3614(a) and 24-3616(a)).
The motions are denied. Rule 14(a) provides that In this case the filing of the enumeration of errors and the brief was three days late, but no order had yet been issued directing the filing of the enumeration of errors. Had an order been issued, it is not likely to have provided less than three days. While the tardiness here does not meet with our approval and the rule was not complied with, we shall not now dismiss the appeal on the grounds argued.
1. IBEW and Taylor charge error in the trial court's denial of their motion to dismiss for lack of subject matter and personal jurisdiction, in that the National Labor Relations Act pre-empted that jurisdiction and vested this type of complaint exclusively in the National Labor Relations Board. They argue that this case (a) does not fall within the purview of Sheet Metal Workers, etc. Ass'n v. Carter, 133 Ga.App. 872, 212 S.E.2d 645 (1975), upholding the exercise of state court jurisdiction in a tort action for wilful and malicious conspiracy; (b) is controlled by Farmer v. Carpenters Local 25, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed. 338 (1977), holding that exercise of jurisdiction by state courts may not be based upon discrimination in employment opportunities; and (c) alleges conduct which, if proved, would constitute unfair labor practice, thereby placing the cause within the exclusive jurisdiction of the NLRB within the scope of San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244-45, 79 S.Ct. 773, 780, 3 L.Ed.2d 775, 782-83 (1959).
(a) We ruled in Sheet Metal Workers, etc. Ass'n v. Carter, 133 Ga.App. 872, 212 S.E.2d 645, supra (cert. denied 423 U.S. 1078, 96 S.Ct. 866, 47 L.Ed.2d 89), that the state court had jurisdiction of that action for malicious tort. There, as here, the question was presented whether the NLRA pre-exempts state jurisdiction in an action based upon a tort conspiracy brought by an employee against a labor union and its local. The employee union member alleged "the parent union and its local 'conspired together, maliciously and wilfully, to deprive the plaintiff of his employment in the Sheet Metal Industry' " and " 'maliciously, and without probable cause therefor, used the threat of union coercion and pressure to cause (him) to be denied employment of a job in his industry for which he was ready, willing and able to perform.' " Ibid., pp. 872-3, 212 S.E.2d p. 646.
Here, instead of an action by an employee union member, we have an action for damages by a nonunion person whose employment was terminated allegedly because the union and its steward "maliciously and with full intent intimidated and coerced . . . or caused F. A. Tucker Construction Company to be intimidated and coerced into breaking its contract" with him.
In the Sheet Metal case Judge Clark, in an opinion the logic of which we cannot improve upon, and the legal conclusions of which we will not seek to impair, states that, Ibid., p. 875, 212 S.E.2d p. 647. The power of the NLRB is limited by the provisions of the federal statute. "Congress did not establish a general scheme authorizing the Board to award full compensatory damages for injuries caused by wrongful conduct." International Union U.A.W. v. Russell, 356 U.S. 634, 643, 78 S.Ct. 932, 937, 2 L.Ed.2d 1030, 1037 (1958). The Supreme Court ruled therein that the plaintiff was entitled to maintain his action in the state jurisdiction for all damages caused by the alleged tortious conduct. It is our unqualified view, contrary to the argument of IBEW and Taylor, that the instant case does fall within Sheet Metal Workers, etc. Ass'n v. Carter, supra.
(b) We do not agree that the case at bar is controlled adversely by the recent ...
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