Seeley v. BROTHERHOOD OF PAINTERS, DECORATORS, ETC.

• Citation: 308 F.2d 52
• Decision Date: 11 October 1962
• Docket Number: No. 19287.,19287.
• Parties: Ward A. SEELEY, Appellant, v. BROTHERHOOD OF PAINTERS, DECORATORS AND PAPER HANGERS OF AMERICA et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

308 F.2d 52 (1962) Ward A. SEELEY, Appellant, v. BROTHERHOOD OF PAINTERS, DECORATORS AND PAPER HANGERS OF AMERICA et al., Appellees.

No. 19287.

United States Court of Appeals Fifth Circuit.

August 31, 1962.

Rehearing Denied October 11, 1962.

John W. Cooper, C. V. Stelzenmuller, Birmingham, Ala., Moore, Thomas, Taliaferro, Forman & Burr, Birmingham, Ala., of counsel, for appellant.

Jerome A. Cooper, Birmingham, Ala., Herbert Thatcher, Washington, D. C., Cooper, Mitch & Crawford, Birmingham, Ala., for Union appellees.

George Peach Taylor, Dominick, Fletcher, Taylor & Yeilding, Birmingham, Ala., for appellees, Wiscombe Painting Co. and Wiscombe Southern Painting Co.

Before RIVES, CAMERON and GEWIN, Circuit Judges.

RIVES, Circuit Judge.

This appeal is from a judgment dismissing an action for failure of the complaint to state a claim upon which relief might be granted or, in the alternative, of which the district court has jurisdiction.

According to the complaint, plaintiff was employed by Wiscombe Painting Company, Inc. (hereinafter called "Wiscombe") in 1951 at which time he was an active member of the Brotherhood of Painters, Decorators and Paper Hangers of America, a labor organization within the meaning of the Labor Management Relations Act. He became General Superintendent of Field Operations for Wiscombe in December, 1955, and was then issued a withdrawal card by said Brotherhood. The complaint alleges that, "Plaintiff has been an inactive member of said Union subsequent to said date."

In February 1958, the stockholders of Wiscombe organized and incorporated Wiscombe Southern Painting Company, Inc. (hereinafter called "Wiscombe Southern"), and plaintiff was transferred to Wiscombe Southern as Vice President and later became General Manager. He acted at all times under the direction and control of one Leland M. Wiscombe, the President of both Wiscombe and Wiscombe Southern.

The first labor difficulties encountered by Wiscombe Southern were at Tullahoma, Tennessee, with Local 456 of the Brotherhood. The negotiations were handled on behalf of Wiscombe Southern ostensibly by plaintiff but under explicit and detailed instructions from Leland M. Wiscombe.

In May 1958, Wiscombe and Wiscombe Southern "as a joint-venture of the two corporations" contracted for painting on the Jackson Lock and Dam on the Warrior River at Coffeeville, Alabama. Work started on said joint-venture in July 1959. Arrangements for labor were made through Local 779 of the Brotherhood.

Shortly after beginning work on the joint-venture, Wiscombe and Wiscombe Southern experienced labor difficulties in securing labor for the joint-venture and on August 26, 1959, they filed a suit, signed and sworn to by plaintiff, against the defendant Brotherhood of Painters, Decorators and Paper Hangers of America Local Union No. 779, Dulaney Parker, its business agent, and others, in the Circuit Court of Choctaw County in Equity, praying for an injunction and damages against said defendants by reason of said labor difficulties caused by them. In addition to said bill for injunction and damages, in October 1959 three charges were filed with the National Labor Relations Board against defendant Brotherhood of Painters, Decorators and Paper Hangers of America and defendant Brotherhood of Painters, Decorators, and Paper Hangers of America Local No. 779.

The plaintiff appeared in said cases, "and testified fully, freely and truthfully by oral testimony or affidavit against the defendants named therein."

All of the labor negotiations pertaining to the joint-venture at Jackson Lock and Dam, the bill for injunction and the charges filed with the NLRB were handled by plaintiff under the direction, control and instructions of Leland M. Wiscombe. Leland M. Wiscombe did thereafter falsely and maliciously represent to defendant Brotherhood at a joint meeting of the Union and an Association of Painting Contractors, known as Painting and Decorating Contractors of America, at LaFayette, Indiana, in November 1959, that the plaintiff had conducted the labor negotiations contrary to his orders and instructions and without his knowledge.

The defendant Unions threatened Wiscombe and Wiscombe Southern with coercive measures, such as strikes and the like, wherever Wiscombe and Wiscombe Southern had contracts unless and as a condition to not using such coercive measures the plaintiff was discharged. As a proximate consequence of the threats and coercion of the defendant Unions, the plaintiff was discharged by Wiscombe and Wiscombe Southern in December 1959.

In February 1960, he secured employment with Earl Paint Corporation of Utica, New York, and in March 1960 was working on a job for Earl Paint Corporation in Bartow, Florida. A jurisdictional dispute arose over the question of whether or not a member of the Brotherhood of Painters, Decorators and Paper Hangers of America should apply foam insulation to certain tanks on the job. Carl Griffin, a business or area representative for the Brotherhood and its locals, investigated the incident and falsely and maliciously reported to the Brotherhood that the plaintiff was the cause of said dispute. The Brotherhood demanded of Earl Paint Corporation that it discharge the plaintiff and threatened Earl Paint Corporation that if it did not discharge the plaintiff the Brotherhood would take coercive measures against Earl Paint Corporation in the form of strikes and the like throughout the United States. As a proximate consequence of the threats and coercive measures the Earl Paint Corporation discharged the plaintiff on March 30, 1960. Plaintiff requested a hearing before the Brotherhood to present the true factual situation in connection with each of the labor difficulties in which he was involved. The Brotherhood failed and refused to allow plaintiff a hearing.

The complaint alleges that:

"Plaintiff has been unable to secure work in a comparable position in the painting industry as a proximate consequence of the acts of the defendants and has been forced to secure employment in an entirely different field of endeavor.

"By reason of the said acts of defendants, plaintiff has sustained great damage to his property, and ability to work and earn a living for himself, his wife and four children, he has been deprived of the right to work in his chosen profession, he has suffered great loss of wages and will be deprived in the future of great loss of wages, he has been put to great expense in trying to secure employment in his field of training, and in clearing his name with said defendant Unions and their representatives, he has suffered great anxiety and worry, he has been deprived of his livelihood; and divers other damages have been sustained and will continue to be suffered, all in the sum of Fifty Thousand ($50,000.00) Dollars.

"WHEREFORE, Plaintiff demands judgment against defendants for the sum of Fifty Thousand ($50,000.00) Dollars and the cost of this suit."

The first count bases jurisdiction on 42 U.S.C.A. § 1985, and avers that:

"Defendants on, to-wit: October 3, 1959 and thereafter conspired together and with divers others to injure the plaintiff, a witness in a court of the United States within the meaning of 42 U.S.C.A., Section 1985, in his property and earning capacity on account of his having attended and testified in said court freely, fully, and truthfully."

The second count bases jurisdiction on Sections 101 (a) (5) and 102 of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 411(a) (5) and 29 U.S.C.A. § 412; and alleges that:

"Although plaintiff has withdrawn from active participation in the Brotherhood of Painters, Decorators and Paper Hangers of America, he is an inactive member of said Brotherhood. Plaintiff further avers that he has been disciplined as described hereinabove but has not been served with any written specific charges, has not been given reasonable time to prepare his defense, nor afforded a full and fair hearing; in fact plaintiff has been denied any hearing whatsoever although such hearing has been requested."

The third count bases jurisdiction on Sections 609 and 102 of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 529 and § 412, and alleges that:

"Plaintiff avers that although he has withdrawn from active membership in the Brotherhood of Painters, Decorators and Paper Hangers of America, he is an inactive member of said Brotherhood and the said defendants and divers others associated with said labor organizations have disciplined him for exercising his rights to which he is entitled under the provisions of the Labor Management Reporting and Disclosure Act of 1959."

The fourth count bases jurisdiction on Section 704(a) (4) (ii) (B) of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 158(b) (4) (ii) (B) and Section 303 of the National Labor Relations Act as amended, 29 U.S. C.A. § 187; and alleges that:

"Plaintiff further avers that defendants and divers other persons connected with said defendants have threatened, coerced and restrained defendants Wiscombe and Wiscombe Southern and Earl Paint Corporation, all of which were engaged in commerce or in an industry affecting commerce where an object thereof was forcing or requiring defendants Wiscombe and Wiscombe Southern and Earl Paint Corporation to cease doing business with the plaintiff."

The fifth count bases jurisdiction on 28 U.S.C.A. §§ 1331 and 1337, and alleges that:

"Plaintiff avers that said acts of said defendants amounted to a conspiracy to obstruct justice in the tribunals of the United States and to obstruct the administration of the laws of the United States.

"Interference with the right of witness to speak in a Federal Tribunal and then go unmolested constitute contempt of such tribunal. The National Labor Relations Board has no power to punish any person or organization for contempt, its powers being limited to those conferred by statute, which

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