Oss v. Birmingham

• Decision Date: 11 March 1965
• Docket Number: No. 7370,7370
• Citation: 399 P.2d 655,97 Ariz. 242
• Parties: J. J. OSS, Eddie Beckel, Hyman Weiss, Herb Skievis, Bob Jackson, Clifford Strong and Jim Kuhens, Appellants, v. William T. BIRMINGHAM and David L. Birmingham, Appellees.
• Court: Arizona Supreme Court

Page 655

399 P.2d 655

97 Ariz. 242

J. J. OSS, Eddie Beckel, Hyman Weiss, Herb Skievis, Bob Jackson, Clifford Strong and Jim Kuhens, Appellants, v. William T. BIRMINGHAM and David L. Birmingham, Appellees.

No. 7370.

Supreme Court of Arizona, In Banc.

March 11, 1965.

Minne & Sorenson, by A. D. Ward, Phoenix, for appellants.

Lewis, Roca, Scoville, Beauchamp & Linton, Phoenix, by John P. Frank and John J. Flynn, Phoenix, for appellees.

LOCKWOOD, Chief Justice:

The plaintiffs in this case were lathing contractors. The defendants according to the testimony of the plaintiff, David Birmingham, were all members constituting the Executive Board of Local 374. Defendant Oss was the financial secretary and business agent of the Union, defendant Jackson was the president, defendant Mastrangelo was the recording secretary.

David Birmingham, one of the plaintiffs herein, had been a journeyman lather and a member of Local 374. In February of 1957, he went into business with his father, plaintiff William Birmingham, as a lathing contractor. An Arizona contractor's license was required for any person to act as a lathing contractor. In order to hire members of Local 374, the plaintiff were required to obtain a permit or 'boss card' from the Union which the Union would grant only after the permittee had obtained the contractor's license.

Local 374 issued the plaintiff, David Birmingham, a 'permit' or 'bosscard' on February 14, 1957. This 'Contractor's Resignation Certificate' 'granted' to Dave Birmingham:

'the privilege of becoming a lathing contractor, in accordance with the constitution of the International Union and the laws of our Local which require him to resign his membership upon becoming a lathing contractor.

'He is not permitted to use tools of the trade but may contract work wherever he wishes with the understanding that he must always conform to the laws, working rules and wage scale of the jurisdiction of the local in which his work is done.'

This 'Contractor's Resignation Certificate' was signed by Robert L. Jackson, President, and John J. Oss, Secretary, of Local 374.

David Birmingham executed a labor agreement between the Lathing Contractors and Plastering Contractors signatory thereto and Local 374.

Article XXII of this agreement states:

'This agreement shall remain in effect from the date of June 1, 1955, to May 31, 1959. Either party desiring to terminate the Agreement or to change its terms shall notify the other in writing not less than sixty (60) days prior to June 1, 1959. If such notice is not given, this Agreement shall be renewed for the period from June 1, 1959, to May 31, 1960, and from year to year thereafter until terminated at the end of a yearly period and notice in writing by either party delivered to the other not less than sixty (60) days before the end of such yearly period.'

In October of 1957, defendant Oss claimed that Birmingham's union permit to contract had been obtained by subterfuge. After an Executive Board and Membership Meeting on October 10, 1957, the Local did not continue to deal with or bargain collectively with David Birmingham as an employer.

From the testimony of David Birmingham, it appears that at the time the complaint was filed herein, on December 26, 1957, the plaintiffs were aware of the controversy between themselves and Local 374 over the union's permit. The trial court found that it had not been obtained by subterfuge or false pretenses. Birmingham also testified the defendants had said that they would black-ball the plaintiffs and put them out of business and that the defendant Oss, the financial secretary and business agent of Local 374, had said that the Union was going to remove the plaintiffs' employees, all of whom were members of Local 374, from their jobs with the plaintiffs.

The lower court found that four days prior to the date set forth in the complaint as the date on which the allegedly defamatory statements which form the basis of the charge in the complaint were made, the defendant Oss wrote a letter to the Phoenix Building and Construction Trade Council stating that the Union had taken action against the plaintiffs 'for working unfair and deterimental to the trade.' The letter asked the Council to put the plaintiffs on the 'official unfair list.' It was against this background of controversy with the Union that the plaintiffs filed the complaint herein.

The complaint charged that defendants who 'at all times * * * were members of the Executive Board of Local 374, the Lathers Union' slandered plaintiffs by making statements concerning them to plaintiffs' employees who 'were all union men' to the effect 'he is unfair'. The plaintiffs alleged in their complaint that this statement caused their employees to cease working for them and that plaintiffs thereby lost their business as lathing contractors.

Paragraphs III and V of the complaint read as follows:

'That on or about the 15th day of October, 1957, and thereafter, the defendants, and each of them, stated to certain persons and employees of the plaintiffs, concerning the plaintiffs, that 'he is unfair.'

'That by reason of the committing of the said grievances by the defendants, and each of them, to wit: 'He is unfair,' he union employees of the plaintiffs were persuaded, and did, terminate their employment with these plaintiffs.'

In their answer the defendants asserted as an affirmative defense that if the statement 'he is unfair' was stated by any of the defendants it was

'stated or communicated to fellow labor unionists having an interest common to that of the defendants, and for the purpose of protecting or advancing that interest, namely, that of encouraging compliance with the constitutions, bylaws, contracts and policies of Local No. 374 of the Lathers Union, Phoenix Building and Construction Trades Council, and other unions.'

The trial court found the phrase 'he is unfair' was defamatory, and gave judgment for plaintiffs and against the defendants, (except defendants Mastrangelo and Horton, against whom plaintiffs voluntarily dismissed the complaint).

During the course of the trial below, the defendants moved to dismiss the case on the ground that the subject matter of the litigation was within the exclusive jurisdiction of the National Labor Relations Board and that the superior court was therefore without jurisdiction of the subject matter.

Although defendants list twenty-one assignments of error, we need consider only one--that the exclusive jurisdiction of the subject matter was in the National Labor Relations Board.

This Court in 1956 in United Association of Journeymen and Apprentices of Plumbing and Pipefitting Industry of United States and Canada, Local No. 469, and Local No. 741 v. Marchese, 81 Ariz. 162, 302 P.2d 930, discussed this problem of jurisdictional pre-emption by the National Labor Relations Board in cases involving questions of unfair labor practices within the meaning of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 141 et seq. We held that the statements of the United States Supreme Court that unfair labor practices were within the exclusive primary jurisdiction of the National Labor Relations Board were unequivocal. We also held that every tribunal has the power to hear and determine it own jurisdiction, and that power to make this determination was within the pre-empted activites of the National Labor Relations Board. We cited Garner v. Teamsters, Chauffeurs, and Helpers Local No. 776, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228, to the effect that Congress had decided that centralized administration of procedures was necessary to obtain uniform application in order to avoid diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies. We concluded

'that the only appropriate forum to determine whether the [Labor Relations] Board will exercise its primary jurisdiction is in that tribunal wherein the discretion lies.'

We also held that among the other issues for the National Labor Relations Board to determine is the question of whether or not interstate commerce is involved, as follows:

'We * * * hold that the National Labor Relations Board has the exclusive jurisdiction in the first instance to determine whether there is * * * an unfair labor practice within the meaning of Congress and, if so, whether such practice has resulted in a controversy affecting interstate commerce.'

We also said that parties may not attempt successfully to

'by-pass the remedies created for them by Congress, and thus * * * circumvent its plain mandate that jurisdiction in the first instance of such matter is vested exclusively in the National Labor Relations Board.'

We concluded that the trial court could not take jurisdiction because to do so would 'prevent the National Labor Relations Board from exercising its jurisdiction completely freed of interference by other tribunals.'

The conclusions of this Court in that case were completely borne out three years later by the United States Supreme Court, in 1959, in San Diego Building Trades Council Millmen's Union Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, which remains the leading case on this question of pre-emption of jurisdiction by the National Labor Relations Board.

The United States Supreme Court, in a now famous statement said:

'When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts...