Schwab v. International Ass'n of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Local No. 782

• Decision Date: 02 March 1972
• Docket Number: AFL-CI,LOCAL
• Citation: Schwab v. International Ass'n of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Local No. 782, 67 Lab.Cas.P 52, 482 S.W.2d 143 (Tenn. App. 1972)
• Court: Tennessee Court of Appeals
• Parties: 81 L.R.R.M. (BNA) 2111, 67 Lab.Cas. P 52,754 Lawrence J. SCHWAB, Appellant-Appellee, v. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRON WORKERS,NO. 782 et al., Appellants-Appellees.

Page 143

482 S.W.2d 143

81 L.R.R.M. (BNA) 2111, 67 Lab.Cas. P 52,754

Lawrence J. SCHWAB, Appellant-Appellee, v.INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRON WORKERS, AFL-CIO, LOCAL NO. 782 et al Appellants-Appellees.

Court of Appeals of Tennessee, Western Section.

March 2, 1972 Certiorari Denied by Supreme Court June 5, 1972.

Anthony J. Sabella, Memphis, J. Howell Glover, Union City, for plaintiff in error.

Goheen, Schultz & Yaffe, Paducah, Heathcock & Cloys, Union City, for defendants in error.

MATHERNE, Judge.

The plaintiffLawrence J. Schwab sued for damages resulting from the malicious conduct of the defendants which caused plaintiff's employer to discharge the plaintiff from his employment.The named defendants are International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (hereinafter referred to as International); Local 782 of the International (hereinafter referred to as Local); and Wayne Larrison, individually and as agent for the Local.

At the conclusion of the plaintiff's proof the Trial Judge directed a verdict in favor of the International; the cause went to the jury as against the other two defendants.They jury returned a verdict for the plaintiff in the amount of $35,000.00.On motion for a new trial the Trial Judge suggested a remittitur of $10,000.00, which was accepted by the plaintiff under protest.

The Local raises two issues on appeal: (1) There is no material evidence to sustain the verdict, and (2) The verdict is excessive, and is so excessive as to indicate passion, prejudice and unaccountable caprice on the part of the jury.

The plaintiff on appeal raises the following issues: (1) The Trial Judge erred in excluding certain testimony of the plaintiff relative to statements made to him by the business agent of Local 290 of Dayton; (2)The Court erred in refusing to admit into evidence the Constitution and By-Laws of the International; (3)The Court erred in directing a verdict in favor of the International; and (4)The Court erred in suggesting a remittitur of $10,000.00.

The defendant Local filed a motion to dismiss the plaintiff's appeal in error because the plaintiff did not perfect and file a bill of exceptions within the time allowed by law; and the plaintiff did not file its assignments of error and brief within the time required by the Rules of this Court.The record reveals a complete bill of exceptions filed by the Local within the time allowed by law.That record does not belong to either party, but is equally available to both parties, whether on appeal in error or on writ of error.Waller v. Skeleton(1948)31 Tenn.App. 103, 212 S.W.2d 690;Davidson v. Burger(1952)36 Tenn.App. 486, 259 S.W.2d 541.The plaintiff can therefore assign errors on his appeal in error based upon the bill of exceptions filed.The plaintiff's attorney, Mr. Sabella, filed an affidavit in this Court that he was associated by attorney John Hart of Union City, who is now deceased; that attorney J. Howell Glover of Union City replaced Mr. Hart, and through a misunderstanding between Mr. Glover and Mr. Sabella as to which would file the assignments of error, the time for filing was inadvertently allowed to expire.We will accept that explanation and treat the time for filing assignments of error, brief and argument by the plaintiff as extended to the date of filing.The motion to dismiss the plaintiff's appeal in error is overruled.

It is established in this State that every man has the right of property in his own labor, and the right to work without interference; and whoever intentionally interferes with this right is liable in tort for the damages caused, unless he can show a privilege or justification for such interference.Dukes v. Brotherhood of Painters, Decorators and Paperhangers of America, Local No. 437, et al(1950)191 Tenn. 495, 235 S.W.2d 7;Large v. Dick(1960)207 Tenn. 664, 343 S.W.2d 693.We further hold the fact the employment is for no stipulated period of time but may be ended at the will of the employer or the employee is of no consequence, because such a right to terminate by the parties does not render the employment subject to the will of others.See: Hill Grocery Co. v. Carroll(1931)223 Ala. 376, 136 So. 789;Architectural Mfg. Co. of America v. Airotec, Inc.(1969)119 Ga.App. 245, 166 S.E.2d 744.The form of an action at common law for malicious interference with a person's employment has probably been most accurately designated as trespass on the case.See: Savard v. Industrial Trades Union of American(1950)76 R.I. 496, 72 A.2d 660.

The record reveals the plaintiff is a member in good standing of the International, plaintiff's home local being No. 678 of Lake Charles, Louisiana.The plaintiff was sent on a shipping letter signed by Mobley and Speed Cement Contractors to the Goodyear Tire and Rubber Company plant being constructed in Union City, Tennessee, to be a foreman for Mobley and Speed under its sub-contract to lay wire mesh and pour concrete for the floors of the Goodyear plant.This shipping letter under the custom of the trade was delivered to the defendantWayne Larrison, the business agent for Local 782 of Paducah, Kentucky, it being the local out of which workers for the Goodyear plant would be obtained.Larrison and the plaintiff agreed on the numer of workers the Local would supply for the particular job, which appears to have been six men.

According to the record the rules of the Local and the International require a foreman and a job steward on each job where union members work.The job steward is one of the workers and it is his duty to take up with the foreman any complaints of the workers.The job steward on this Mobley and Speed job was Julian Woods.The Local had the complete say as to what men worked on the job, and who was the job steward.The foreman was not supposed to do any work which was normally the duty of the workers or journeymen.The plaintiff foremen had immediate charge of the job; he supervised the work; saw that it was accomplished according to specifications; kept the time record of the men working under him; and was responsible to the field superintendent, B. J. Watkins, who in turn was responsible to the general superintendent of Mobley and Speed, B. M. Housewright, of Dallas, Texas.

There is material evidence to sustain a finding that the workers under the plaintiff made complaints to the job steward that the plaintiff shorted them on time worked; he did on occasion do work which was the duty of the workers; he worked them too many hours in one day on several occasions; and, he screamed at them while they were working.The job steward took these matters up with the plaintiff, and also with Mr. Watkins.There is no proof in the record of an actual shorting of time by the plaintiff; the errors were apparently committed by the time keeper to whom the plaintiff delivered the time book once a week; these errors were corrected.There were two proven minor violations of the regulation which prohibited the plaintiff from doing any work, which appear to be insignificant; the work did progress for long hours on certain days because of the necessity to complete a 'pour' once it was started, but the hours worked without stopping were within the maximum number of hours the men agreed to work in any one day; the screaming charge did not cause any fright or apprehension on the part of the workers; there was on one occasion a failure to have drinking water available when a worker wanted a drink of water.These complaints do not, under the record, justify an interference with the plaintiff's right to work.

The record reveals conflicting evidence on whether the plaintiff did or did not consume alcohol on the premises of the job.The plaintiff admitted bringing each worker one bottle of beer one night with their supper while they were working overtime.The plaintiff's superior denied that plaintiff drank on the job, and rated him as an efficient and desirable foreman.There is material evidence from which the jury could conclude that the Local's charge that the plaintiff drank alcohol on the job was unfounded as a reason or justification for the Local's interference with the plaintiff's right to work.

The record reveals Julian Woods the shop steward felt strongly about the regulations under which he and his men, members of the International, worked, and did jealously guard those rights.The record also reveals the plaintiff was a competent, hard working, get-the-job-done type of foreman, which probably resulted in his having been employed by Mobley and Speed in that capacity throughout the south and southeast.It is not unusual that these two men had various complaints about each other.

There is material evidence that on Friday, October 11, 1968, some conversation took place between the plaintiff and Julian Woods concerning an error in the workers' checks.The plaintiff testified Woods told him he, Woods, was quitting and he wanted his check.The plaintiff got Woods' checks for time worked, and Woods left the job.The plaintiff left the job that morning to go to his home for the weekend.The job superintendent Watkins left the job at about 2:30 p.m. to go to his home.Woods testified that he did not quit but just went to the Local's hall on business.That testimony is contradicted by the fact he did receive his checks as on a termination.Woods was told by the Local's assistant business agent to return to the job; he did return to the job, and worked that weekend without permission from Watkins.The plaintiff and Watkins testified that when Watkins returned to the job on Monday morning, Watkins discharged Woods and paid him for work done that weekend.The testimony conflicts as to whether Woods told the other men to quit upon his being fired, but the fact is established they did all quit and go to the Local's hall in Paducah.

Mr. Watkins telephoned the defendant Larrison...