Pokigo v. Local No. 719 Intern. Broth. of Elec. Workers

• Decision Date: 05 October 1965
• Citation: 106 N.H. 384,213 A.2d 689
• Parties: Robert J. POKIGO et al. v. LOCAL NO. 719 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS et al.
• Court: New Hampshire Supreme Court

Page 689

213 A.2d 689

106 N.H. 384

Robert J. POKIGO et al. v. LOCAL NO. 719 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS et al.

Supreme Court of New Hampshire.

Argued March 3, 1965.

Decided May 24, 1965.

Motion to Remand Denied Oct. 5, 1965.

James M. Winston, Manchester, for plaintiff.

Frederic T. Greenhalge, Pittsfield, for the intervenor Arthur Costigan, filed no brief.

Bois & Laflamme, Manchester, and Segal & Flamm, Boston, Mass., Arthur J. Flamm, Boston, Mass., for defendants.

WHEELER, Justice.

On June 8, 1964 the defendant filed a plea to the jurisdiction on the grounds that the Superior Court did not have jurisdiction over the subject matter in that the dispute between the parties is within the exclusive jurisdiction of the National Labor Relations Board since said Board has ruled it would assert jurisdiction in this case.

The first contention of the plaintiff is that by filing a general appearance the defendant submitted to the jurisdiction of the Court and has thus forfeited its right to contest jurisdiction. It is well settled law here that parties cannot confer jurisdiction by consent if jurisdiction of the subject matter is lacking. Keenan v. Tonry, 91 N.H. 220, 222, 16 A.2d 705, 132 A.L.R. 1362; Hartnett v. Hartnett, 93 N.H. 406, 407, 43 A.2d 153. By filing a general appearance the defendant could not consent or submit to the jurisdiction of the subject matter if it was otherwise lacking, and the plaintiff's exception is overruled.

The plaintiff excepted to the denial of the motion for rehearing. In substance this motion requested that the record be reopened for the purpose of offering evidence 'to prove the absence of a bona fide 'labor dispute' * * *.' At the hearing on April 7, 1964 plaintiff's counsel was permitted to introduce evidence through the defendant's business agent regarding a labor dispute and the record does not disclose that he was in any way limited in pursuing this aspect of the case. In the denial of the motion to reopen the case we find no abuse of discretion.

Costigan on March 18, 1964 filed a complaint of unfair labor practices with the Regional Director of the National Labor Relations Board. As a result of this complaint an investigation was undertaken and a motion to intervene was filed by the Regional Director of the National Labor Relations Board which, after reciting certain jurisdictional facts asserted that the National Labor Relations Board had asserted jurisdiction in similar cases.

Thereafter under date of May 27, 1964 the National Labor Relations Board filed an 'Advisory Opinion,' (147 NLRB No. 26) which advised in part that '* * * on the allegations submitted and the assumptions made herein, the commerce operations of the Primary Employer, Costigan, and those of the secondary employers, including Amoskeag, at the Mt. St. Mary's Seminary High School project in Nashua, New Hampshire, the location affected by the Petitioner's secondary conduct, are such that the Board would assert jurisdiction with respect to labor disputes cognizable under Sections 8 or 10 of the Act.'

While Congress has not pre-empted exclusive jurisdiction in the field of labor relations, the point at which state jurisdiction must yield is difficult of ascertainment. 'The national Labor Management Relations Act, as we have long before pointed out, leaves...