Eastwood, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
This appeal concerns itself primarily with the validity of a judgment of the Law Division disavowing jurisdiction of the subject matter of the action set forth in the complaint.
The appellants, Anna Kuzma and William Kuzma, are husband and wife. According to the complaint, which contains six counts, on and prior to April 9, 1951 Anna Kuzma was in the employ of Betmar Hat Company of Passaic, New
Jersey, and a member in good standing of the respondent Millinery Workers Union, which was the bargaining representative of the employees of the company. The individual respondents, Morris Hacker and Isadore Herman, are said to have been at the time "members, officers and agents of the union"; Abraham Mandellowitz, another named defendant, was not served with process and the action was discontinued as to him.
The vital allegation of the first count is that:
"The defendants, well knowing the premises as above set forth and willfully and maliciously contriving to injure the plaintiff, Anna Kuzma, did unlawfully, maliciously and wantonly and without legal or justifiable cause or excuse, willfully coerce, threaten, instigate, persuade, procure, entice and induce the officers, owners and agents of the said Betmar Hat Company to refuse to continue the said plaintiff, Anna Kuzma, in its said employment as a sewing machine operator, or in any other capacity, and to discharge the said plaintiff, Anna Kuzma, from said employment."
The third count is based upon the assertion of a conspiracy among the defendants to inflict the wrongs of which complaint is made.
The fifth count contains the further charge that in the same manner the defendants induced and coerced other employers, where the union was also the bargaining representative, to refuse to employ the plaintiff.
Then it is alleged that, as the result of these acts, this appellant was deprived of her employment and unable to obtain further employment in the industry, thereby suffered wage losses, "great pain, humiliation, mental and nervous anguish, and mental and emotional distress," and she was caused permanent nerve disability which required medical care.
Predicated on these charges, a demand is made for both compensatory and punitive damages against the defendants jointly and severally.
The other three counts set forth the derivative claim of the husband, William Kuzma, for medical expenses and loss of society and services of his wife.
The pretrial order recites the factual claim of appellant employee to be that the union asked for a voluntary contribution to a collection taken in the plant for purposes of a gift to one of its officials, who was about to leave for Europe to attend a conference. When she refused, the union, through its agents the individual defendants, informed the employer that no union member would work in the shop until she was discharged. It is claimed also that the members in fact refused to return to their machines until she was discharged. The employer yielded and her employment was terminated.
Defendants first moved to strike from the three counts of Anna Kuzma the claim based upon pain, humiliation, mental anguish and emotional distress on the ground that under the cause of action pleaded such damages are not recoverable. And they moved also to dismiss the three per quod counts of the husband because the wife's cause of action was not such as to give rise to a claim by him for any relief. These motions were granted and the order is made one of the grounds of appeal.
Subsequently, the matter came on for trial and at this time the defendants moved for dismissal of the complaint upon the ground that the cause of action pleaded constituted an unfair labor practice under the National Labor Relations Act, and was therefore reparable exclusively before the National Labor Relations Board. The trial court concluded that the objection was well taken; that the Superior Court had no jurisdiction over the subject matter, and accordingly the dismissal was granted.
At the outset of our consideration of the case, it is plain that there must be a reversal. The National Labor Relations Act, both in its original and amended form, applies only to those industries whose employer-employee relations affect interstate commerce. 29 U.S.C.A. §§ 141, 142, 151, 152. There is no allegation in the complaint that the hat company is engaged in interstate commerce or that a labor dispute between it and its employees would affect commerce. Consequently there is no basis for the attachment of the jurisdiction of the National Labor Relations Board.
This basic postulate of federal control was not discussed in the briefs of the parties. However, the Labor Board and the federal courts have taken an extremely broad and liberal view of the percentage of the operations of an employer, either in the form of raw materials coming to it in interstate commerce or of finished products moving out into interstate commerce, necessary to subject him to the federal control. N.L.R.B. v. Jones & Laughlin Steel Corp. , 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 (1937); N.L.R.B. v. Fruehauf Trailer Co. , 301 U.S. 49, 57 S. Ct. 642, 81 L. Ed. 918 (1937); N.L.R.B. v. Friedman-Harry Marks Clothing Co. , 301 U.S. 58, 57 S. Ct. 645, 81 L. Ed. 921 (1937); N.L.R.B. v. Associated Press , 301 U.S. 103, 57 S. Ct. 650, 81 L. Ed. 953 (1937); Santa Cruz Fruit Packing Co. v. N.L.R.B. , 303 U.S. 453, 58 S. Ct. 656, 82 L. Ed. 954 (1938); Consolidated Edison Co. v. N.L.R.B. , 305 U.S. 197, 59 S. Ct. 206, 83 L. Ed. 126 (1938); N.L.R.B. v. Fainblatt , 306 U.S. 601, 59 S. Ct. 668, 83 L. Ed. 1014 (1938); Jurisdiction of the National Labor Relations Board , 5 Univ. of Newark L. Rev. 224 et seq. Bearing this liberality in mind, in order to deal with the jurisdictional question as it was presented to the trial court and thus avoid the possibility of another appeal, we will assume that adequate proof exists of the hat company's interstate activities to bring it within the ambit of the board's authority.
It is a commonplace of constitutional law that the Federal Government has control over interstate commerce. If a Congressional enactment, either expressly or by necessary implication, occupies and preempts a particular field of commerce, state control thereof terminates. And this doctrine is applicable to the labor relations of employers whose operations are in commerce to the requisite degree. Amalgamated Ass'n of Street, Electric Railway & Motor Coach Employees, etc., v. Wisconsin Employment Relations Board , 340 U.S. 383, 71 S. Ct. 359, 95 L. Ed. 364 (1951); International Union of United Automobile, Aircraft and Agricultural Implement Workers, etc., v. O'Brien , 339 U.S. 454, 70 S. Ct. 781, 94 L. Ed. 978 (1950); La Crosse Telephone
Corp. v. Wisconsin Employment Relations Board , 336 U.S. 18, 69 S. Ct. 379, 93 L. Ed. 463 (1948); Plankington Packing Co. v. Wisconsin Employment Relations Board , 338 U.S. 953, 70 S. Ct. 491, 94 L. Ed. 588 (1950); Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Board , 336 U.S. 301, 69 S. Ct. 584, 93 L. Ed. 691 (1949).
The respondent contends that by virtue of the Labor-Management Act of 1947, supra , the acts charged against the union and its agents constitute an unfair labor practice, the remedy for which is ...