Day v. Northwest Division 1055

389 P.2d 42, 238 Or. 624, 1964 Ore. LEXIS 294, 55 L.R.R.M. (BNA) 2456

• Court: Oregon Supreme Court
• Decided: January 29, 1964
• Status: Published

Opinions

SLOAN, J.

Plaintiff Day was employed as a driver by Western Greyhound Lines. His employment was governed by a contract between Greyhound and defendant local union Northwest Division 1055. Amongst other things this contract required Day to remain a member of the union in good standing in order to retain his employment. On November 3, 1959, Day’s employment was terminated by Greyhound at the request of the individually named defendant, Bankhead. The latter was financial secretary of the union. The ostensible cause of Bankhead’s request that Day’s employment be terminated was the failure of Day to pay his union dues on time. There was evidence to show, and the jury found, that the real cause was a conspiracy to get Day out of the union. Day brought this action for tortious interference with his employment and received a large jury verdict for general and punitive damages. Defendants union and Bankhead appeal.

Other defendants were originally named; we need not consider them. They have been removed from the case. Other detailed facts could be stated. This is unnecessary. The basis of our determination of the case is two recent decisions of the United States Supreme Court on the subject of federal pre-emption of disputes like the instant case. These cases, Association of Journeymen v. Borden, 373 US 690, 83 S Ct 1423, 10 L Ed2d 638, and Iron Workers Union v. Perko, 373 US 701, 83 S Ct 1429, 10 L Ed2d 646, were both decided on June 3, 1963. Unfortunately these decisions were filed after the pre-emption issue was decided on a pleading’s issue by the trial court and after briefs were filed by the parties here.

Our study of these and other cases and authority have caused us to conclude that Borden and Perko limit plaintiff’s relief here to the National Labor Relations Board. The earlier case of Machinists v. Gonzales, 1958, 356 US 617, 78 S Ct 923, 2 L Ed2d 1018, which gave support to plaintiff’s claim here has now been substantially modified, if not overruled, by later cases. The first case after Gonzales to further restrict the jurisdiction of the state courts was San Diego Unions v. Garmon, 1959, 359 US 236, 79 S Ct 773, 3 L Ed2d 775. The Garmon decision caused the Second District, Division One of the California Court of Appeals in Fullerton v. International Sound Technicians, Etc., 1961, 194 CA2d 801, 15 Cal Rptr 451, by an extensive opinion,, to conclude that federal authority had pre-empted all cases of the kind now before us. And in Perko the Court stated at 373 US 705 that:

“At the outset we note that for the reasons set forth in Borden, ante, p. 690, the rationale of the Gonzales case does not support state jurisdiction here, and we need not now consider the present vitality of that rationale in the light of more recent decisions.”

The dissenting opinion in the Borden case provides strong emphasis that Gonzales can no longer be held to support state jurisdictions in the instant and other like cases.

It is true that in United Workers v. Laburnum Corp., 1954, 347 US 656, 74 S Ct 833, 98 L Ed 1025, followed later by Automobile Workers v. Russell, 1958, 356 US 634, 78 S Ct 932, 2 L Ed2d 1030, the Court sustained recovery in state courts for damages in tort. But in the later case of Garmon, supra, at 359 US 236, 247, the Laburnum Construction Corporation and Bus-sell cases were limited to torts by violence which created a “compelling state interest” to maintain domestic peace.

We learn from cases like National Lab. Rel. Bd. v. Technicolor Motion Pic. Corp., (9th Cir USCA, 1957), 248 F2d 348, and International Union of Electrical, R. & M. Wkrs. v. N.L.R.B., (USCA-DC 1962), 307 F2d 679, that a union may lawfully require an employer to discharge an employe for a failure to maintain good standing in the union, when the union contract permits it, as in the instant case. If the request for discharge has been honest and for the actual reason assigned, the union and employer are within their rights and it is held that no unfair labor practice has occurred. But, if the discharge for failure to pay dues was used as a subterfuge to hide some other improper motive, as in the instant ease, the union, at least, has been guilty of an unfair labor practice and the National Labor Relations Board will, presumably, protect the workman’s rights. The cases leave no doubt that the decision as to the true nature of the discharge is within the cognizance of the Board.

Garmon, supra, Borden and Perko all tell us that if the conduct alleged “may reasonably be asserted to be subject to Labor Board’s cognizance,” then the courts, both state and federal, are without any right to proceed. In this case the Board does reasonably have cognizance of the question at issue and we must desist from further proceedings.

We have no hesitancy in stating that we reach that conclusion with reluctance. However, the result has been fortified by Retail Clerks Internat’l Ass’n, Local 1625 v. Schermerhorn, decided December 2, 1963, 84 S Ct 219, 223, 11 L Ed2d 179, 185, wherein the Court made this reference to the Borden and Perico cases:

“We held in Plumbers’ Union v. Borden, 373 US 690, 10 L ed 2d 638, 83 S Ct 1423, and in Iron Workers v Perko, 373 US 701, 10 L ed 2d 646, 83 S Ct 1429, that Garmon preempted the field where employees were suing unions for damages arising out of practices that arguably were unfair labor practices subject to regulation by the National Labor Belations Board. * *

It follows that the action must be dismissed.