Jones v. Local 926 of Intern. Union of Operating Engineers

• Decision Date: 09 September 1981
• Docket Number: No. 61734,61734
• Citation: 159 Ga.App. 693,285 S.E.2d 30
• Parties: , 109 L.R.R.M. (BNA) 2940, 94 Lab.Cas. P 13,500 JONES v. LOCAL 926 OF the INTERNATIONAL UNION OF OPERATING ENGINEERS et al.
• Court: Georgia Court of Appeals

Page 30

285 S.E.2d 30

159 Ga.App. 693, 109 L.R.R.M. (BNA) 2940,

94 Lab.Cas. P 13,500

JONES v. LOCAL 926 OF the INTERNATIONAL UNION OF OPERATING ENGINEERS et al.

No. 61734.

Court of Appeals of Georgia.

Sept. 9, 1981.

Rehearing Denied Sept. 25, 1981.

Certiorari Denied Nov. 9, 1981.

Eugene Novy, Robert F. Gore, Penelope W. Rumsey, Michael C. Murphy, Atlanta, for appellant.

James T. Langford, Charles W. Whitney, Harris Jacobs, Melvin Radowitz, Joseph Jacobs, Atlanta, for appellees.

SOGNIER, Judge.

This appeal raises the question whether the National Labor Relations Act preempts state jurisdiction in a case brought by a non-union employee against a union and employer for tortious interference with and conspiracy to deprive the plaintiff of his contract of employment.

Appellant Jones was offered employment by Superior Consolidated, one of the project contractors on the construction of a Georgia Power Company generating plant. Jones was employed as equipment maintenance superintendent by Superior and Georgia Power.

Jones is a former member of Local 926 of the International Union of Operating Engineers, but had not been a union member for four years. Archer was the business agent for Local 926 in 1974 when Jones stopped paying union dues and went to work for a non-union contractor. Archer is still the business agent for Local 926 and allegedly objected to Jones' employment as equipment maintenance superintendent.

Jones reported for work at the plant construction site on June 12, 1978. By agreement with Superior, Jones took the rest of the week off and reported back to work again on June 20, 1978. On the later date, a meeting took place among officials of Georgia Power, Superior and Local 926, represented by Archer, regarding the maintenance problems that had arisen at the plant which indicated a need for the hiring of an equipment maintenance superintendent. After this meeting, Jones was informed that his services would not be required in that position.

On June 28, 1978, Jones filed charges with the National Labor Relations Board charging Local 926 with procuring his discharge because he was not a member in good standing of the union. After a preliminary investigation of the charged violation of Section 8 of the National Labor Relations Act, the regional director of the NLRB concluded that there was insufficient evidence of an unfair labor practice to issue a formal complaint. Jones did not appeal this decision.

In December 1978, Jones filed suit in the State Court of Fulton County against Local 926, Archer and Georgia Power alleging (1) that Archer, acting as agent for Local 926, maliciously and intentionally coerced Georgia Power into breaching its employment contract with Jones and (2) that Georgia Power maliciously and intentionally discharged Jones because of his non-membership in the union. Appellant amended his complaint alleging that Georgia Power and Local 926 conspired to deprive him of his employment and interfered with his right to employment. Jones prayed for damages for lost wages, plus punitive damages and attorney fees.

Appellees moved to dismiss Jones' complaint on the ground that the trial court lacked jurisdiction to hear the case in that the subject matter of the complaint was preempted by the National Labor Relations Act. Appellees' motion to dismiss was granted and Jones appeals.

1. Appellant contends that the trial court erred in dismissing the action for tortious interference with an employment contract based on preemption by the NLRA.

(a) "Our courts have spoken loud and clear as to the right of one to earn a livelihood, and to seek redress against anyone who wrongfully causes him to be discharged from employment." Wiley v. Ga. Power Co., 134 Ga.App. 187, 190, 213 S.E.2d 550 (1975); overruled on other grounds, Ga. Power Co. v. Busbin, 242 Ga. 612, 615, 250 S.E.2d 442 (1978). Even though a person's employment contract is at will, he has a valuable contract right which may not be unlawfully interfered with by a third person. Ott v. Gandy, 66 Ga.App. 684(1), 19 S.E.2d 180 (1942); Ga. Power Co. v. Busbin, supra, 242 Ga. at 613, 250 S.E.2d 442.

Jones may state his claim of malicious interference with his employment against Local 926 and Archer, as the third parties in this case. However, even where Jones has alleged a conspiracy against Georgia Power, his cause of action must fail. Georgia Power as employer could terminate Jones at will and cannot be held liable for a conspiracy to do that which they legally were entitled to do. Hill v. Delta Air Lines, 143 Ga.App. 103, 104, 237 S.E.2d 597 (1977); Ga. Power Co. v. Busbin, supra, 242 Ga. at 614, 250 S.E.2d 442. Dismissal of Georgia Power by the trial court was not error regardless of the preemption issue.

(b) The trial court in its order recognized that this court has decided two cases directly on point regarding preemption by the NLRB of a state case involving tortious interference with employment. In Sheet Metal Workers, etc., Assn. v. Carter, 133 Ga.App. 872, 212 S.E.2d 645 (1975), cert. den. 423 U.S. 1078, 96 S.Ct. 866, 47 L.Ed.2d 89, an employee brought suit against a union alleging, inter alia, that the union had caused him to be denied employment in the sheet metal industry. This court affirmed a denial of the union's motion to dismiss based on preemption by the NLRA. This case was again appealed after a jury trial and reversed on the question of service, Sheet Metal Workers, etc., Assn. v. Carter, 241 Ga. 220, 244 S.E.2d 860 (1978). However, the principles of law regarding preemption were not overruled and we view them as applicable here.

In Carter this court recognized the rule of preemption set forth in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959): " '[W]hen 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 Board if the danger of State interference with National policy is to be averted.' " Sheet Metal Workers, etc., Assn. v. Carter, supra, 133 Ga.App. at 874, 212 S.E.2d 645. However, Judge Clark goes on to state that there are situations in which state court jurisdiction is appropriate and has been recognized by the Supreme Court of the United States where conduct touches interests " 'deeply rooted in local feeling and responsibility.' " Id., at 874, 212 S.E.2d 645.

More recently the Supreme Court of the United States has discussed the Garmon rule and recognized that it has not been applied in a number of cases where "the Court has allowed a State to enforce certain laws of general applicability even though aspects of the challenged conduct were arguably prohibited by § 8 of the NLRA. Thus ... the Court has upheld state-court jurisdiction over conduct that touches 'interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.' [Cits.]" Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 194-195, 98 S.Ct. 1745, 1756, 56 L.Ed.2d 209 (1978).

In International Brotherhood v. Briscoe, 143 Ga.App. 417, 239 S.E.2d 38 (1977), this court reviewed a fact situation identical to that presented in the instant case, i. e., an action by a non-union person whose employment was terminated allegedly because the union had caused the employer to be intimidated and coerced into breaking its contract of employment with him. The Briscoe court, relying on Carter, held that the cause was not within the exclusive jurisdiction of the NLRB under Garmon.

This court also held in Briscoe that Farmer v. Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977), did not require a different result where "[t]here is little risk here that the state cause of action would interfere with the effective administration of national labor policy ... 'Viewed ... in light of the discrete concerns of the federal scheme and the state tort law, that potential for interference [with the regulatory jurisdiction of the Labor Board] is insufficient to counterbalance the legitimate and substantial interest of the State in protecting its citizens.' Farmer (430 U.S. at 304, 97 S.Ct. at 1065, 51 L.Ed.2d at 352)." Briscoe, supra, 143 Ga.App. at 422, 239 S.E.2d 38.

2. The trial court in the instant case declined to follow Carter and Briscoe because in neither case had an unfair labor practice charge been filed with the NLRB regarding the allegedly tortious activity. We disagree with the trial court that such a difference distinguishes the instant case from Carter and Briscoe, as to require a different result.

(a) Jones filed his charge against Local 926 and Archer on June 28, 1978 alleging that the union "caused and procured" his discharge and "thereby coerced the employer ... in the selection of its supervisors and bargaining representative, because said individual had not been a member in good standing of said labor organization." The charge was alleged as an unfair labor practice within the meaning of § 8(b) of the NLRA which states "[i]t shall be an unfair labor practice for a labor organization or its agents--(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 ... or (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances. (Emphasis supplied.) 29 U.S.C. § 158(b)(1)(A) and (B).

Upon investigation and consideration, the regional director of the NLRB refused to issue a complaint regarding the charges filed. In a letter to Jones, the regional director stated: "the evidence was insufficient to establish that the Union caused your discharged (sic) or that it restrained or coerced the Employer in the selection of its representative for the purpose of collective bargaining."

Jones did not appeal this decision. The question this court is asked to decide is...