McNish v. American Brass Co.

• Decision Date: 03 June 1952
• Court: Connecticut Supreme Court
• Parties: McNISH v. AMERICAN BRASS CO. et al. Supreme Court of Errors of Connecticut

Page 566

89 A.2d 566

139 Conn. 44

McNISH v. AMERICAN BRASS CO. et al.

Supreme Court of Errors of Connecticut.

June 3, 1952.

Reargument Denied June 21, 1952.

David R. Lessler, Bridgeport, for the appellant (plaintiff).

William J. Larkin, 2d, and Walter F. Torrance, Jr., Waterbury, with whom, on the brief, was William J. Larkin, Waterbury, for the appellee (named defendant).

Margaret C. Driscoll, Bridgeport, for the appellee (defendant union).

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

BALDWIN, Associate Justice.

The plaintiff brought a complaint in two counts against The American Brass Company, hereinafter referred to as the company, and the Ansonia Brass Workers' Union Local No. 445, Provisional Metal Workers Council of the Industrial Union of Marine and Shipbuilding Workers of America, Congress of Industrial Organizations, hereinafter referred to as the union. In the first count he charged the company with a breach of a collective bargaining agreement between the company and the union. In the second count he charged the company and the union with conspiracy to oust him permanently from employment. He claims damages for lost wages and an injunction compelling the performance of the agreement. The defendants' answers denied the breach and conspiracy and set up special defenses, to which the plaintiff demurred. The trial court overruled the demurrer and the plaintiff has appealed from the judgment entered upon his failure to plead over.

We direct our attention to the second count of the complaint, which incorporates by reference the allegations of the first count. The significant allegations are as follows: On September 23, 1940, the plaintiff entered the employ of the company at its Ansonia branch. He was transferred on February 15, 1943, to the cost department, the employees of which were a part of the clerical bargaining unit, with departmental and clerical unit seniority as of that date. He continued in that department until August 2, 1948. On that date the defendant union was the duly elected and exclusive bargaining representative for the clerical bargaining unit for the purposes of collective bargaining in respect to rates of pay, wages, hours and other conditions of employment such as seniority, layoff and discharge. It executed a collective bargaining agreement with the company providing, among other things, for seniority, and that layoffs and rehiring would be made by the company in keeping with the provisions thereof. On December 3, 1948, the plaintiff, while still a member of the unit, was laid off in violation of his seniority rights under the collective bargaining agreement. Although his seniority entitled him to re-employment in his regular department or to a transfer to another where he was capable of doing the work, the company refused to re-employ him. The plaintiff was not a member of the union. He had been debarred from membership in 1947. The company and the union rearranged seniority rights without the knowledge or permission of the plaintiff so that other members of the clerical bargaining unit, and particularly one or more members of the union, were wrongfully given rights of seniority superior to those of the plaintiff. He tried to obtain a determination of his rights by way of the grievance procedure provided in the collective bargaining agreement, but the defendants by plan, scheme and conspiracy ousted the plaintiff from his employment and precluded him from re-employment. These acts of the defendants constituted an unjust discrimination against the plaintiff and a deprivation of his seniority rights under the collective bargaining agreement and were violations of the Taft-Hartley Act.

The special defenses of the defendants may be summarized as follows: The company is engaged in interstate commerce as defined by the Labor Management Relations Act of 1947, the Taft-Hartley Act. On June 2, 1949, the plaintiff filed charges with the regional director of the national labor relations board which alleged that the defendants were under the jurisdiction of that board. The charges were that the defendants had discriminated against the plaintiff and violated the collective bargaining agreement by denying him his seniority rights and refusing to arbitrate his claim, which was an arbitrable matter under the contract and under the National Labor Relations Act, and that such actions constituted unfair labor practices affecting commerce. The plaintiff requested a hearing and such action as the board might determine. The charges were investigated, but the regional director declined to issue a complaint for lack of sufficient evidence. However, the director advised the plaintiff that he could appeal and told him the procedure to follow. The plaintiff failed to take an appeal. On June 7, 1950, after instituting this suit, the plaintiff sought to withdraw, nunc pro tunc, the charges he had filed with the regional director of the national labor relations board, but his motion to do so was denied. The claims advanced in the present complaint are identical with those which were made in the charges filed with the national labor relations board and which were there designated by the plaintiff himself as unfair labor practices.

The plaintiff's demurrer admitted facts well pleaded in the special defenses. Hardy v. Scott, 127 Conn. 722, 723, 19 A.2d 420. On this basis the defendants claim: The plaintiff's charges are within the exclusive jurisdiction of the national labor relations board. The plaintiff having filed charges with the board upon which the board has taken action, the matter is res adjudicata. The exclusive remedy available to the plaintiff in under the collective bargaining agreement and the enforcement thereof by invoking the powers of the national labor relations board. The union also alleged in its first special defense that the acts done by the defendant were pursuant to and permissible under the contract.

While the plaintiff's demurrer reached the defenses of lack of jurisdiction in the courts, res adjudicata, and the failure to pursue an exclusive remedy prescribed under the Labor Management Relations Act of 1947, it did not reach the first special defense filed by the union. We profer, however, to base our decision upon the questions of substantive law arising under the demurrer.

The answer to the question whether the national labor relations board has exclusive jurisdiction to hear and determine the plaintiff's charges and grant or deny him relied, raised by the second and third grounds of the demurrer, is determinative of the case. The allegations of the special defenses attacked by the demurrer must be 'tested by the facts provable under them.' We must give to them the same favorable construction that a trier might deem itself required to give in admitting evidence under them to prove the facts asserted. Rutt v. Roche, 138 Conn. 605, 609, 87 A.2d 805.

In enacting the National Labor Relations Act of 1935, known as the Wagner Act, 49 Stat. 449, 29 U.S.C. § 151 (1940) [29 U.S.C.A. § 151 et seq.], and the Labor Management Relations Act, 1947, known as the Taft-Hartley Act, 61 Stat. 136, 29 U.S.C. § 141 (Sup. 4, 1951) [29 U.S.C.A. § 141 et seq.], Congress sought to reach only some of the aspects of the employer-employee relationship. Bethlehem Steel Co. v. New York Labor Relations Board, 330 U.S. 767, 773, 67 S.Ct. 1026, 91 L.Ed. 1234. In those fields in which it was intended that the legislation should be operative, the regulations enacted into law by the Congress are exclusive. Amalgamated Ass'n of Street, Electric Railway & Motor Coach Employees v. Wisconsin Employment Relations Board, 340 U.S. 383, 389, 71 S.Ct. 359, 95 L.Ed. 364; International Union of United Automobile, Aircraft and Agricultural Implement Workers v. O'Brien, 339 U.S. 454, 457, 70 S.Ct. 781, 94 L.Ed. 978; La Crosse Telephone Corporation v. Wisconsin Employment Relations Board, 336 U.S. 18, 24, 69 S.Ct. 379, 93 L.Ed. 463; Bethlehem Steel Co. v. New York Labor Relations Board, supra; Norris Grain Co. v. Seafarers' International Union, 232 Minn. 91, 99, 46 N.W.2d 94, 100; Pittsburgh Rys. Co., etc., Employees' Case, 357 Pa. 379, 382, 54 A.2d 891, 174 A.L.R. 1045. The confusion which would result from dual control is graphically described in the Bethlehem Steel Co. case, supra, 330 U.S. 775, 67 S.Ct. 1031.

One of the phases of this relationship which the national labor relations acts do purport to cover is the matter of unfair labor practices. The Labor Management Relations Act, 1947, provides: 'The [national labor relations board] is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice * * * affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise.' 61 Stat. 146, § 10(a), 29 U.S.C. § 160(a) (Sup. 4, 1951) [29 U.S.C.A. § 160(a)]. While the words '[t]his power shall be exclusive,' contained in § 10(a) of the National Labor Relations Act, 49 Stat. 453, 29 U.S.C. § 160 (1940) [29 U.S.C.A. § 160] were eliminated in the 1947 act, the amendment did not have the effect of giving the state courts jurisdiction to profide a remedy for unfair labor practices in direct proceedings. The board still retained exclusive jurisdiction. 'It is well settled that the exclusive remedy for the commission of an unfair labor practice was in proceedings before the National Labor Relations Board under the Wagner Act. 29 U.S.C.A. § 160(a); Amalgamated Utility Workers v. Consolidated Edison Co. of New York, 1940, 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738. The same is true under the National Labor Relations Act as amended by the Taft-Hartley Act, except in so far as the district courts are given jurisdiction over certain suits for injunctions brought by the Government and over suits brought by provate parties under §§ 301 and 303, discussed...