Layne v. International Broth. of Elec. Workers, (AFL-CIO), Local No. 382

• Decision Date: 31 August 1978
• Docket Number: No. 20758,AFL-CIO,20758
• Citation: 247 S.E.2d 346,271 S.C. 346
• Court: South Carolina Supreme Court
• Parties: , 99 L.R.R.M. (BNA) 2637, 88 Lab.Cas. P 55,220 Ruby LAYNE, Independent Executrix of the Estate of Howard Layne, Deceased, Respondent, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, (), LOCAL NO. 382, Appellant.

Page 346

247 S.E.2d 346

271 S.C. 346, 99 L.R.R.M. (BNA) 2637,

88 Lab.Cas. P 55,220

Ruby LAYNE, Independent Executrix of the Estate of Howard Layne, Deceased, Respondent, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, (AFL-CIO) LOCAL NO. 382, Appellant.

No. 20758.

Supreme Court of South Carolina.

Aug. 31, 1978.

Larry L. Eubanks of Eubanks & Walden, Winston-Salem, N.C., for appellant.

Stephen T. Savitz and Julian H. Gignilliat, Columbia, and Daryll N. Love, J. Roy Weathersby and Anthony L. Cochran, Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., for respondent.

RHODES, Justice:

Prior to his death, the respondent's decedent (the plaintiff) brought the present action seeking actual and punitive damages from the defendant unions for what is alleged to be a "malicious, wilful and wanton violation" of the South Carolina Right to Work Act, S.C.Code § 41-7-10 Et seq. (1976). ¹ From an order of the lower court overruling its demurrer to the complaint, the defendant appeals contending that: (1) the complaint fails to state a cause of action; (2) even if a cause of action is stated, the action does not survive the death of the plaintiff; and (3), the courts of this state do not have jurisdiction over the subject matter of the action because of Federal pre-emption. We affirm the lower court.

The following allegations taken from the complaint, constitute the basis for the claimed cause of action in this case:

Plaintiff was a member of Defendant International Union for over thirty-five years and paid dues and contributions to the Defendant International during the entire time he was a member with the expectation of drawing a pension upon his retirement. On or about June, 1974, Defendants expelled Plaintiff from membership because he was working on a construction project in Florence, South Carolina, with employees who were not members of Defendants International Union and/or Defendants Local Union and who were performing electrical work. Such action by Defendants was in violation of South Carolina's Right-to-Work Act, Supra, and caused Plaintiff to suffer substantial damage in that he lost the benefit of monies paid to Defendants over thirty-five years.

The complaint further alleges that, as a result of the defendant's violation of the Right to Work Act, the plaintiff "has suffered damage" (inferentially the loss of the expectancy of drawing retirement benefits) and "has suffered mental anguish and pain and suffering."

I

Under its first exception, the appellant contends that the complaint fails to state a cause of action because the conduct complained of does not constitute a violation of the Right to Work Act. We disagree and hold that the complaint states an action sounding in tort.

In determining whether a cause of action is stated, we are required to construe the complaint liberally in favor of the pleader. Turner v. ABC Jalousie Co. of N.C., 251 S.C. 92, 160 S.E.2d 528 (1968). In passing upon a demurrer, the Court is limited to consideration of the pleading under attack, and all of the factual allegations thereof that are properly pleaded are deemed admitted. Crowley v. Bob Jones University, 268 S.C. 492, 234 S.E.2d 879 (1977). It is settled that a cause of action sounding in tort may arise from conduct violative of South Carolina's Right to Work Act. See Gregory Electric Co. v. Custodis Construction Co., 312 F.Supp. 300 (D.S.C.1970); Kimbrell v. Jolog Sportswear, Inc., 239 S.C. 415, 123 S.E.2d 524 (1962); Brabham v. Miller Electric Co., 237 S.C. 540, 118 S.E.2d 167 (1961). Thus, in the present case, if the facts alleged, together with the inferences reasonably deducible therefrom, state conduct which is violative of the Right to Work Act, the complaint must be sustained. See, Turner, supra.

Construed liberally in favor of the pleader, the essence of the complaint is that the defendant has interfered or has attempted to interfere with the free exercise of the plaintiff's right to work and engage in a lawful vocation. In other words, by its power to terminate union membership and defeat the plaintiff's expectancy of retirement benefits, the union has sought by coercion to control the plaintiff's employment.

We hold that the attempt to coerce the plaintiff from engaging in the particular employment by means of threatening his expected retirement benefits constitutes a tortious violation of the Right to Work Act.

Code § 41-7-70 provides, in part, that:

It shall be unlawful for any person, acting alone or in concert with one or more persons:

(1) By force, intimidation, violence or threats thereof, or violent or insulting language, directed against the person or property, or any member of the family of any person (a) to interfere, or attempt to interfere, with such person in the exercise of his right to work, to pursue or engage in, any lawful vocation or business activity, to enter or leave any place of his employment, or to receive, ship or deliver materials, goods or services not prohibited by law or (b) to compel or attempt to compel any person to join, or support, or refrain from joining or supporting any labor organization . . . .

Applying this section to the facts alleged in the complaint, it can reasonably be said that the union's actions constituted coercion and intimidation directed against the plaintiff and his property which was designed to effect compulsory support of the union and accomplish union control of the plaintiff's employment.

The appellant contends that, assuming Arguendo that the union's actions could give rise to a cause of action under § 41-7-70, the plaintiff has failed to allege facts sufficient to bring the action within the prohibitions of that section. One of the examples pointed out by the appellant is that under § 41-7-70 it is "persons" who are prohibited from engaging in the proscribed conduct and, as the appellant asserts, the union is not a "person". The appellant concedes that unions do act through persons but correctly contends that there is no allegation that any person was acting in a representative or agency capacity for the union so as to render it liable under the principles of respondeat superior.

While the complaint suffers from a lack of artful pleading, we do not view such lack as fatal. It is inferable from the facts pled that the conduct complained of is attributable to the appellant which unquestionably acted through a person. However, even if the allegations of the complaint did not bring the action within the explicit language of § 41-7-70, a cause of action would still lie. As this Court pointed out in Brabham v. Miller Electric Co., supra, "(W)here legislative intent to declare an act unlawful is apparent from consideration of the statute, it matters not that the prohibition of the act is not declared in specific language, for an act that violates the general policy and spirit of the statute is no less within its condemnation than one that is in literal conflict with its terms," 237 S.C. at 546, 118 S.E.2d at 170. The Brabham Court further stated that one of the evils to which the legislative intent and remedial purpose of the statute is directed is union control of employment. As we have pointed out above, based upon the facts alleged in the complaint, one of the objectives of the union's conduct was to control the employment of the plaintiff. In addition, Code § 41-7-10 states that it is "the public policy of this state that the right of persons to work shall not be denied or abridged on account of membership or nonmembership in any labor union or labor organization." It was precisely on account of the plaintiff's membership that he was not free to choose his own employment with the free exercise of his right to work being abridged by the union.

II

As stated previously, the plaintiff died shortly after this action was commenced. The appellant asserts that, even if a cause of action is stated, it does not survive the death of the plaintiff.

South Carolina Code § 15-5-90 provides that causes of action for and in respect to "any and all injuries to the person or to personal property shall survive" to the personal representative of the deceased person. Although there are certain exceptions, ² it is the general rule that any cause of action which could have been brought by the deceased in his lifetime survives to his representative under the Survival Act, Gowan v. Thomas, 237 S.C. 223, 116 S.E.2d 761 (1960). The appellant cites no authority or precedent which would weigh against application of the general rule in this case. The only cases cited in support of its contention Layne v. International Brotherhood of Elec. Workers (AFL-CIO), 418 F.Supp. 964 (D.S.C.1976) and Barnes Coal Corp. v. Retail Coal Merchants Assn., 128 F.2d 645 (4th Cir. 1942) involved the survival of statutory causes of action under federal law and are irrelevant to the survivability of the...