Sheetmetal Workers' Intern. Ass'n, Local Union No. 223 v. Florida Heat & Power Inc., 1723

• Decision Date: 08 October 1968
• Docket Number: No. 1723,1723
• Citation: 214 So.2d 783
• Parties: v. FLORIDA HEAT AND POWER, INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 783

214 So.2d 783

v. FLORIDA HEAT AND POWER, INC., a Florida corporation, Appellee.

No. 1723.

District Court of Appeal of Florida, Fourth District.

Oct. 8, 1968.

Rehearing Denied Nov. 8, 1968.

Seymour A. Gopman and Allan M. Elster, of Kastenbaum, Mamber, Gopman, Epstein & Miles, Miami Beach, for appellants.

Robert M. Sturrup, of Thomas & Sturrup, Hollywood, for appellee.

WALDEN, Chief Judge.

Defendants, Sheetmetal Workers' International Association, Local No. 223 and Fletcher L. Sessoms, have brought this interlocutory appeal directed at an order denying their motion to dismiss for lack of jurisdiction.

Plaintiff, Florida Heat and Power, Inc., instituted this cause seeking a temporary injunction against defendants. After a hearing without notice, defendants were enjoined from picketing plaintiff. To this, the defendant union filed a 'Special Motion to Dismiss and/or Quash for Lack of Jurisdiction,' the denial of which is here appealed.

The complaint alleged that plaintiff had entered into contracts with A. P. Orleans Construction Co. to furnish the air conditioning and heating on one construction project and with Garden Builders, Inc., to furnish the air conditioning and heating for another project. All sheet metal work for both projects was subcontracted to Thermal-Air Flo, Inc., all of whose sheet metal workers belong to defendant union.

It was further alleged that since September 1, 1967, plaintiff has not employed any sheet metal workers, nor has it done any sheet metal work. Prior to September 1, 1967, plaintiff sold its sheet metal equipment to its then sheet metal workers who are now operating under the name of Fort Lauderdale Sheet Metal, Inc. That company is in no way involved in the present controversy.

Nevertheless, plaintiff alleged that on September 5, 1967, the defendant union, with actual knowledge that plaintiff employed no sheet metal workers, and with actual knowledge that all of the sheet metal employees of the subcontractor were members of defendant union, picketed the two projects with placards which read essentially:

'Florida Heat and Power on this job pays sheet metal workers sub-standard wages--lowers my standard of living and working conditions.'

Plaintiff asserted also that said picketing was for the purpose of coercing and intimidating plaintiff in the performance of its contracts and of forcing the general contractors to terminate plaintiff's contracts.

Finally, it was alleged:

'8. (a) That no labor dispute exists between plaintiff, its employees or defendant, Union. That plaintiff does not employ sheet metal workers at its Plant. That no demand or request has been made by defendants to bargain collectively for any employees of plaintiff. That defendants are not the bargaining agent for any of plaintiff's employees. That no demand or request has been made by any of plaintiff's employees to have defendants act as their bargaining agent.'

A temporary injunction was granted. Defendant union replied with a motion asserting a lack of jurisdiction over the subject matter of the suit because the union was charged with activities either protected or prohibited by the National Labor Relations Act.

At the hearing on the motion plaintiff stipulated that it was engaged in interstate commerce and that if a labor dispute were involved jurisdiction would lie with the National Labor Relations Board. Defendants presented no evidence.

The motion was denied, the court finding that 'the undisputed facts of this case clearly show that there is no labor dispute.' Defendants appeal. We affirm.

The sole question raised in this interlocutory appeal is whether the circuit court had jurisdiction to enjoin defendants or whether the National Labor Relations Act has pre-empted jurisdiction over the cause. This pre-emption doctrine becomes operative when interstate commerce is involved and the activities complained of are arguably protected or prohibited by the National Labor Relations Act. It has been stipulated that plaintiff is engaged in interstate commerce.

The second criterion for determining pre-emption is whether the activities of the union arguably come within the protection or prohibition of the National Labor Relations Act. San Diego Building Trades Council, etc. v. Garmon, 1959, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, contained the following principle:

'When an activity is arguably subject to § 7 or § 8 of the (National Labor Relations) 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.' 79 S.Ct. 779, 780.

'Arguably subject to' has remained the language of the United States Supreme Court. Liner v. Jafco, Inc., 1964, 375 U.S. 301, 84 S.Ct. 391, 11 L.Ed.2d 347; Local No. 438 Construction & General Laborers' Union v. Curry, 1963, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d 514.

Our Florida courts have also acknowledged that a state must yield the task of classifying activities which are arguably protected or prohibited by federal law to the National Labor Relations Board. Scherer & Sons, Inc. v. International Ladies' Garment Workers' Union, Fla.1962, 142 So.2d 290; United Steel Workers of America, etc. v. Nubar Tool and Engineering Co., Fla.App.1962, 148 So.2d 45. But it still remains for the ...