Sheet Metal Workers Intern. Ass'n v. Carter

• Decision Date: 14 January 1975
• Docket Number: Nos. 49788,49789,No. 1,s. 49788,1
• Citation: 133 Ga.App. 872,212 S.E.2d 645
• Parties: , 89 L.R.R.M. (BNA) 3041, 75 Lab.Cas. P 53,536 SHEET METAL WORKERS INTERNATIONAL ASSOCIATION v. Ben CARTER et al. LOCAL 85, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION v. Ben CARTER et al
• Court: Georgia Court of Appeals

Page 645

212 S.E.2d 645

133 Ga.App. 872, 89 L.R.R.M. (BNA) 3041,

75 Lab.Cas. P 53,536

SHEET METAL WORKERS INTERNATIONAL ASSOCIATION v. Ben CARTER et al.

LOCAL 85, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION v. Ben CARTER et al.

Nos. 49788, 49789.

Court of Appeals of Georgia, Division No. 1.

Jan. 14, 1975.

Rehearing Denied Feb. 6, 1975.

Jacobs, Jacobs & Davis, Joseph Jacobs, Atlanta, Mulholland, Hickey & Fisher, Donald W. Fisher, Toledo, Ohio, for International.

Lanier, Powell, Cooper & Cooper, Jack L. Cooper, Roger W. Dunaway, Jr., Augusta, for Local.

Harris, Chance & McCracken, William R. McCracken, Augusta, for appellees.

Syllabus Opinion by the Court

CLARK, Judge.

Does the National Labor Relations Act pre-empt state jurisdiction in an action based upon a tort conspiracy brought by an employee against a labor union and its local? This question is presented by the instant appeal. For in-depth discussions of the doctrine of federal preemption in labor disputes see articles in 83 Harv.L.Rev. 552 (1969) and 85 Harv.L.Rev. 1337 (1972). ¹

Carter sued the Sheet Metal Workers International Association and its Augusta local union in the Superior Court of Richmond County. His complaint alleges the parent union and its local 'conspired together, maliciously and wilfully, to deprive the plaintiff of his employment in the Sheet Metal Industry and of his means of livelihood, to cause the plaintiff to be denied employment in this Industry, to deny the plaintiff his right and privilege to be a member of defendants' union, to impair the plaintiff's reputation among prospective employers, and to subject the plaintiff to embarrassment, scorn and derision among his friends, associates, relative and fellow employees.' (R. 4). He avers that in January 1972 the representatives of the defendants 'acting for and under the specific instructions of all defendants herein, maliciously, and without probable cause therefor, used the threat of union coercion and pressure to cause the plaintiff to be denied employment of a job in his industry for which he was ready, willing and able to perform.' (R. 5). The pleading further states defendants forced an employer of the plaintiff to discharge him and that as a result of defendants' acts, he has been unable to find employment. Plaintiff-appellee sued for $25,000 as damages, $50,000 as puntive damages, and $10,000 as attorney fees.

Each defendant filed separate motions to dismiss upon the ground that 'this court does not have jurisdiction of the subject matter of this complaint' together with their answers denying the allegations. The trial court denied both motions to dismiss from which judgments these appeals have been taken separately with requisite review certificates.

The Unions succinctly state their position to be that 'the matter is arguably covered by the National Labor Relations Act, 29 U.S.C., §§ 157 and 158; therefore exclusive jurisdiction of the matter rests with the National Labor Relations Board.' In their erudite briefs able counsel for both unions have listed many cases, including our Supreme Court cases of United Brotherhood of Carpenters &c. v. Briggs, 218 Ga. 742, 130 S.E.2d 707, and Armstrong Cork Co. v. Joiner, 221 Ga. 789, 147 S.E.2d 317. Neither Briggs nor Joiner concerned an individual tort. Inasmuch as these as well as their foreign citations rest upon the leading case of San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, we will, in the interest of space, limit our discussion to that opinion. There Justice Frankfurther pointed out the basic point: 'The governing consideration is that to allow the States to control activities that are potentially subject to federal regulation involves too great a danger of conflict with national labor policy.' Id. p. 246, 79 S.Ct. p. 780. To avoid this hazard the tribunal established the principle which appellants here assert that 'when an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.'

We noted (as did appellants) that the Garmon case also states at its conclusion on page 247, on page 781 of 79 S.Ct., that previous holdings '. . . have allowed the States to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and imminent threats to the public order . . . (and) to enjoin such conduct.'

It is true that the instant case does not involve the specific excepted circumstances of violent conduct and imminent threats to public order. Nevertheless, it must be observed that there are other situations where state court jurisdiction is appropriate. Thus, in Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966) the court ruled the state judicial remedy of a tort suit by an aggrieved individual was available for malicious libel occurring during a union organizing campaign. There it was held that the state remedy for malicious libel could be pursued along with an NLRB remedy if the conduct complained of also constituted an unfair labor practice. In short, both the state and federal remedies would be available in appropriate cases when they are not inconsistent.

Subsequently in Taggart v. Weinacker's, Inc., 397 U.S. 223, 90 S.Ct. 876, 25 L.Ed.2d 240, a concurring opinion by Chief Justice Burger enlarged upon the situations wherein state jurisdiction existed in labor cases. We deem the Chief Justice's views to be applicable to the instant appeals. At page 228, 90 S.Ct. at page 878, he said 'Garmon left to the States the power to regulate any matter of 'peripheral concern' to the NLRA or that conduct that touches interests 'deeply rooted in local feeling and responsibility.' (359 U.S., at 243, 244, 79 S.Ct. at 779). Few concepts are more 'deeply rooted' than the power of a State to protect the rights of its citizens.'

We recognize the instant case may be within the jurisdiction of the National Labor Relations Board even though it does not involve an employer as a party. Nevertheless, the state's concern 'to protect the rights of its citizens' require us to acknowledge that the plaintiff here would be deprived of certain legal rights in the event we ruled the state court lacked jurisdiction. We refer to the fact that the power of the NLRB is limited by the provisions of the federal statute. When the board finds either a union or an employer guilty of an unfair labor practice it has the power to enter a cease and desist order '. . . and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter: Provided, That where an order directs reinstatement of an employee, back pay may be required of the employer or labor organization, as the case may be, responsible for the discrimination suffered by his . . .' 29 U.S.C. § 160(c). Although the appellant Unions argue that this remedy would enable the NLRB to make the plaintiff whole, it is obvious that it does not include power to award him exemplary damages or attorney fees. Under Georgia law a plaintiff has the right upon presentation of proper proof satisfactory to the court and jury to receive punitive damages (Code, § 105-2002). Reasonable attorney fees also may be awarded in certain instances. Code § 20-1404; Traders Ins. Co. v. Mann, 118 Ga. 381, 384, 45 S.E. 426; Roberts Pest Control v. McDonald, 132 Ga.App. 257, 260(4), 208 S.E.2d 13.

As is observed in the Linn case at...