Selles v. Local 174 of Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America

• Citation: 50 Wn.2d 660,314 P.2d 456
• Decision Date: 08 August 1957
• Docket Number: No. 28,No. 33527,28,33527
• Parties: Dell L. SELLES, Respondent, v. LOCAL 174 and Joint CouncilOF the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA; George Cavano and Jimmy Martin, Appellants.
• Court: Washington Supreme Court

Page 660

50 Wn.2d 660

314 P.2d 456

Dell L. SELLES, Respondent, v. LOCAL 174 and Joint Council No. 28 OF the INTERNATIONAL

BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA; George Cavano

and Jimmy Martin, Appellants.

No. 33527.

Supreme Court of Washington, En Banc.

Aug. 8, 1957.

Bassett, Geisness & Vance, Seattle, for appellants.

Houghton, Cluck, Coughlin & Henry, Paul Coughlin, Seattle, for respondent.

SCHWELLENBACH, Justice.

Dell L. Selles commenced action in the superior court for King county seeking damages for the alleged refusal of defendants, through the union's hiring hall, to send him out to work as a teamster. The jury awarded him $6,572.15. A motion for judgment notwithstanding the verdict was denied and this appeal follows.

At the times in question, Selles was, and still is, a member of Local 174 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. He had been a truck driver in the beverage and brewing industries and for several years had secured employment through the teamsters' hiring hall with companies engaged in interstate commerce.

For some time prior to April 3, 1952, there had been a controversy within the local with respect to the method of electing officers and the accessibility of information relative to union funds. Selles and others arranged for a meeting of members sympathetic with their views for the purpose of discussing their grievances. At about the time the meeting was to get under way, approximately one hundred fifty other members, not sympathetic, marched into the hall five abreast and broke up the meeting.

A few days later when Selles went to the hiring hall he was told that there would be no work for him. This was done in retaliation against him for his activities in helping to organize the meeting of April 3, 1952. He was without work for over a year, except for two short periods of time, and was ultimately compelled to leave the industry and find less remunerative work in another field.

Selles filed a complaint with the National Labor Relations Borad, alleging the facts above related. The Board took jurisdiction and issued a complaint. However, before a hearing could be had, he withdrew his charge and instituted this action in the state court to enforce a common-law tort liability for interference with his employment.

Appellant contends that the action complained of constitutes an unfair labor practice under the Labor Management Relations Act of 1947, 29 U.S.C.A. § 141 et seq.; that Congress, by that Act, pre-empted the field; and the state court had no jurisdiction of the cause.

Section 8(b) of the Act (Chapter 120, Eightieth Congress, Sess. I [61 Stat. 141] approved June 23, 1947) 29 U.S.C.A. § 158(b) provides in part:

'(b) It shall be an unfair labor practice for a labor organization or its agents----

'(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: * * *.'

Section 7, 29 U.S.C.A. § 157, provides:

'Employees shall have the right to self-oranization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).'

The right of self-organization includes the right to attempt to change the leadership and policies of a union. Brown v. National Union of Marine Cooks and Stewards, D.C., 104 F.Supp. 685.

In Joanna Cotton Mills Co. v. National Labor Relations Board, 4 Cir., 176 F.2d 749, 752, the court said:

'Not all activities in which employees act together are 'concerted activities' within the meaning of the statute, * * *.

'The words 'concerted activities' are limited in meaning by the words with which they are associated (noscitur a sociis), which have relation to labor organization and collective bargaining, and by the purpose of such 'concerted activities', which is expressly limited by the immediately succeeding language to concerted activities 'for the purpose of collective bargaining or other mutual aid or protection.' * * *

'We agree that the 'concerted activities' protected by the act are not limited to cases where the employees are acting through unions or are otherwise formally organized. It is sufficient that they are acting together for mutual aid or protection. See N. L. R. B. v. Peter Cailler Kohler Swiss Chocolates Co., Inc., 2 Cir., 130 F.2d 503. Thus, an employee may not be discharged for concerted activities to get pay for overtime work, N. L. R. B. v. Schwartz, 5 Cir., 146 F.2d 773, 774; nor for concerted activities in protesting the employment of a cashier whose employment the employees think will affect their earnings, N. L. R. B. v. Phoenix Mutual Life Ins. Co., 7 Cir., 167 F.2d 983 , nor for demonstrating in protest over the firing of a union president, Carter Carburetor Corp. v. N. L. R. B., 8 Cir., 140 F.2d 714. As said by Judge Duffy in N. L. R. B. v. Phoenix Mutual Life Ins. Co., supra , 'A proper construction is that the employees shall have the right to engage in concerted activities for their mutual aid or protection even though no union activity be involved, or collective bargaining be contemplated.' It is clear, however, that to be protected the purpose of the concerted activities must be the mutual aid or protection of the employees; * * *.'

Respondent and his companions, in organizing the meeting in question, were acting together, 'for mutual aid or protection' within the meaning of the Act.

Section 8(b)(2) makes it an unfair labor practice for a labor organization or its agents 'to cause or attempt to cause an employer to discriminate against an employee in violation of Subsection (a)(3) * * *.' That subsection refers to 'discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage membership in any labor organization * * *.'

The proof showed that the union, through its officers, controlled employment in respondent's field of work and that without approval of its officials no work could be obtained. The refusal to dispatch respondent for work, in retaliation for the part he played in organizing the meeting constituted 'discrimination in regard to hire.'

The facts reasonably bring the controversy within the purview of the Act. However, that alone is not determinative of the problem confronting us. Does the National Labor Relations Board have exclusive jurisdiction over matters involving conduct which constitutes an unfair labor practice under the Act, so as to preclude a state court from hearing and determining a common-law tort action for damages resulting from intereference with employment based on such conduct?

Concerning pre-emption in the filed of labor relations, the United States Supreme Court said, in International Union, etc., v. Wisconsin Empl. Rel. Bd., 336 U.S. 245, 69 S.Ct. 516, 521, 93 L.Ed. 651, 662:

'Congress has not seen fit in either of these Acts to declare either a general policy or to state specific rules as to their effects on state regulation of various phases of labor relations over which the several states traditionally have exercised control. * * * However, as to coercive tactics in labor controversies, we have said of the National Labor Relations Act what is equally true of the Labor Management Act of 1947, that 'Congress designedly left open an area for state control' and that 'the intention of Congress to exclude the States from exerting their police power must be clearly manifested.' Allen-Bradley Local No. 1111, U. E. R. & M. W. of America v. Wisconsin Employment Relations Bd., 315 U.S. 740, 749, 750, 62 S.Ct. 820, 825, 826, 86 L.Ed. 1154, [1164, 1165]. * * *'

That case involved a question whether the federal act took precedence over a state act under which the state board ordered a labor union to cease and desist from instigating certain intermittent and unannounced work stoppages under a plan for a new method of putting pressure upon the employer. The court concluded:

'We find no basis for denying to Wisconsin the power, in governing her internal affairs, to regulate a course of conduct neither made a right under federal law nor a violation of it and which has the coercive effect obvious in this device.'

In addition to the above case, the Supreme Court has recognized the jurisdiction of state courts in the following cases: Allen-Bradley Local, etc., v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154 (to enjoin mass picketing, threats of bodily injury and property damage to employees, obstruction of streets and public roads); Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Board, 336 U.S. 301, 69 S.Ct. 584, 93 L.Ed. 691 (allowed state to forbid enforcement of a maintenance-of-membership clause in a contract between employer and union); and United Const. Workers, etc., v. Laburnum Const. Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025 (action in common-law tort for damages). As evidence that the Supreme Court has recognized that the areas that have been pre-empted by the Federal act and thereby withdrawn from state power are still undetermined, the court, in Amalgamated Clothing Workers of America v. Richman Bros. Co., 348 U.S. 511, 75 S.Ct. 452, 458, 99 L.Ed. 600, stated:

'* * * insofar as a penumbral region must remain between state and federal authority touching industrial relations until finally clarified by definitive rulings here or further legislation by Congress, state litigation must, in view of [28 U.S.C.A] § 2283, be allowed to run its course, including the ultimate reviewing power in this Court.'

Appellants rely on Garner v....