Taylor v. Hoisting and Portable Engineers Local Union 101, AFL-CIO

• Decision Date: 20 January 1962
• Docket Number: AFL-CIO,No. 42370,42370
• Citation: 189 Kan. 137,368 P.2d 8
• Parties: B. J. TAYLOR, Appellee, v. HOISTING AND PORTABLE ENGINEERS LOCAL UNION 101,, an Unincorporated Labor Organization, Appellant.
• Court: Kansas Supreme Court

Page 8

368 P.2d 8

189 Kan. 137

B. J. TAYLOR, Appellee, v. HOISTING AND PORTABLE ENGINEERS LOCAL UNION 101, AFL-CIO, an Unincorporated Labor Organization, Appellant.

No. 42370.

Supreme Court of Kansas.

Jan. 20, 1962.

Syllabus by the Court

In an action for damages where plaintiff alleges that he has been discriminated against by both his employer and the union because of nonmembership in the union which caused him to lose his employment, it is held that the state court retained jurisdiction to try the case based upon the common law of the state and Article 15, section 12 of the state constitution despite the fact that such alleged action on the part of the union may have constituted an unfair labor practice under the National Labor Relations Act.

John J. Manning, Kansas City, Mo., argued the cause, and Clarence L. King, Jr., and William B. Stokes, Salina, were with him on the briefs, for appellant.

James P. Mize, Salina, argued the cause, and John H. Lehman, D. V. Romine, and William A. Gullfoyle, Abilene, and C. L. Clark, Tom Lillard, Jr., and James T. Graves, Salina, were with him on the briefs, for appellee.

JACKSON, Justice.

Appellee as plaintiff brought this action in the court below seeking the sum of $3,300 actual damages and the further sum of $6,600 as punitive damages from the present appellant Hoisting and Portable Engineers Local Union 101, AFL-CIO, an unincorporated labor organization, and another defendant Parkhill Truck Company, a corporation. Both defendants filed demurrers to the plaintiff's petition which were overruled by the trial court. Whereupon both defendants filed separate appeals. Later, the trucking company dismissed its appeal, and the present appellant the Union remains the sole appellant. We are advised the truck company has received a covenant not to sue and has been dismissed from the case.

The only question in this appeal is on the remaining defendant's demurrer, and that question depends on whether the trial court had jurisdiction over the action for damages. This depends upon the question of whether the facts alleged in the petition constituted an unfair labor practice under the National Labor Relations Act as amended, 61 Stat. 136, 29 U.S.C.A. § 141 et seq., and whether under the act exclusive jurisdiction was granted to the National Labor Relations Board to deal with such practices.

Turning now to the petition, plaintiff first alleges that he is a duly qualified, trained and experienced operator of caterpillar tractors and other heavy construction equipment, and throughout the petition plaintiff alleges that his work was eminently satisfactory to his employers. The petition then adequately describes the two defendants named in the petition.

Beginning with paragraph No. 4 and continuing through the pleading to the prayer the petition reads as follows:

'4. On June 15, 1960, and subsequently thereto, defendant Parkhill Truck Company was engaged in business within the State of Kansas, as a subcontractor, in hauling to and distributing pipe from its various pipe yards and distribution points, including Herington, Dickinson County, Kansas, along the right-of-way for the construction of a new interstate pipeline, said right-of-way therefor extending from a point near Seagraves, Texas, across the State of Kansas, to a point near Monticello, Wisconsin, with a separate loop to a point near Farmington, Minnesota, a total distance of approximately 2,300 miles.

'5. On the date aforesaid, and until his wrongful discharge hereinafter mentioned, plaintiff was employed as a caterpillar tractor operator by defendant Parkhill Truck Company near Herington, Kansas, in Dickinson County, Kansas, at a wage rate of $2.22 per hour, with time and a half for over 40 hours per week, upon the understanding said wage rate would be increased to $3.15 per hour as soon as the operation reached the Morris County, Kansas, line. At said time plaintiff's said employer was performing said subcontract by working out of Herington along said right-of-way from a generally southwest to northeast direction.

'6. Plaintiff is not and was not a member of defendant labor organization while working at his employment aforesaid, but duly notified both his said employer and said defendant labor organization that he was ready and willing to join said defendant labor organization. Plaintiff gave both defendants notice of his willingness to join said union at the time of and during his employment aforesaid.

'7. At all times while plaintiff was employed as aforesaid, he performed each and all of his duties and services as such employee in a careful, proper and entirely workmanlike manner.

'8. On or about June 16, defendants, and each of them, acting concurrently and jointly, knowing the quality and workmanship of plaintiff's services to his said employer in his said employment were entirely satisfactory to his said employer, and although defendants, and each of them, knew of plaintiff's willingness to join said Union, and although defendants and each of them, knew of plaintiff's rights under Article 15, Section 12, of the Constitution of the State of Kansas, defendants did willfully, intentionally and oppressively refuse to permit plaintiff to join said union, and did willfully, intentionally and oppressively cause plaintiff to be discharged from his said employment because plaintiff was not a member of said union, and did willfully, intentionally and in complete disregard of plaintiff's rights cause plaintiff's said job and employment to be given to one Virgil Sheete, a union member.

'9. As a direct and proximate result of the willful, intentional and oppressive tortious acts of defendants, and each of them, aforesaid, plaintiff was deprived of his right to retain his said employment because of his nonmembership in said defendant labor organization. Said cause of action arose in Dickinson County, Kansas.

'10. As a direct and proximate result of defendants' willful, intentional and oppressive tortious conduct, aforesaid, plaintiff has lost wages, sustained physical and mental suffering and humiliation, and incurred expense and inconvenience in trying to locate other employment to his actual damages in the amount of $3,300.00, and is further entitled to be awarded punitive damages in the sum of $6,600.00.'

The prayer requests damages in the amounts set out above. It requires no citation of authority to state that the demurrer filed by the Union admits the truth of all facts well pleaded.

There can be no question that it has long been the law of Kansas that one who willfully and intentionally intermeddles in the contract rights of another with the result of the loss of contractual rights possessed by one party may be used in tort for the resulting damages (Vaught v. Jonathan L. Pettyjohn & Co., 104 Kan. 174, 178 P. 623; Nulty v. Hart-Bradshaw Lumber & Grain Co., 116 Kan. 446, 227 P. 254; Hilton v. Sheridan Coal Co., 132 Kan. 525, 297 P. 413; Russell v. Bovard, 153 Kan. 729, p. 735, 113 P.2d 1064; and see Restatement, Torts § 766).

It will be noted in paragraph No. 8 of the petition quoted above, that plaintiff seems to base his right upon the provisions of Article 15, Section 12 of the Kansas state constitution. This section commonly known as the 'right to work amendment' was adopted by the people at the general election of 1958. It would seem to us that plaintiff may still place his right to sue upon the common law of the state, and that section of the constitution merely provides that the defendant Union has no right to intermeddle in plaintiff's contractual right to work. That is, the union is forbidden and has no right to urge plaintiff's dismissal from his job because he is not a member of the union.

In Higgins v. Cardinal Manufacturing Co., 188 Kan. 11, 360 P.2d 456, cert. denied 368 U.S. 829, 82 S.Ct. 51, 7 L.Ed.2d 32, this court held that the above constitutional amendment was self-executory and needed no further act of the legislature before becoming effective. Thus the state constitution fully protects plaintiff's right to bring his common law action for damages.

It may be noticed in passing that 'right to work laws' commonly allow or provide that the party injured may resort to an action for damages under the common law. The Virginia statute would seem to provide specifically that one so injured might bring an action for damages, see Finney v. Hawkins, 189 Va. 878, 54 S.E.2d 872.

In Willard v. Huffman, 247 N.C. 523, 101 S.E.2d 373, a union employee sued his employer for damages alleging discrimination against union men. In Dukes v. Brotherhood of Painters, Decorators & Paperhangers of America, Local Union No. 437 et al., 191 Tenn. 495, 235 S.W.2d 7, 26 A.L.R.2d 1223, the Tennessee court had a question of union interference with plaintiff's right to work although no specific statute seems to have been involved. The annotation following the case in A.L.R. treats generally of the common law right to relief for tortious interference with contractual rights.

The sole argument of the defendant union in this case is that the National Labor Relations Act has preempted from the courts of Kansas all jurisdiction in a case such as this and placed all relief before the National Labor Relations Board.

It will be readily apparent that there was no labor dispute between the employer and the union in the case at bar. Plaintiff sued both the employer and...