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Davenport v. Terry

Decided: May 6, 1975.

CHARLES R. DAVENPORT, PLAINTIFF-APPELLANT,
v.
ALFRED TERRY, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AND INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL NUMBERS 52, 102, 164, 211, 262, 269, 358, 400, 439, 456, 581, 592, 375, 334, AND 367 AND BERNARD J. CLARKIN, E. LOUIS BARAM, HOWARD SCHIER, JR., HARRY F. HILTNER, JR., ROBERT CARTWRIGHT, JR., DONALD KENNEDY, JOHN C. BOLL, GRANTE TATE, JR., PHILIP KELLY, FRANK MARCHITTO, FRANK KELLY, GEORGE J. ROWSON, JOHN O'CONNOR, THOMAS ALLEN, ROBERT J. SHAFFER AND WALTER TERRY, DEFENDANTS-RESPONDENTS



Lora, Crane and Kole. The opinion of the court was delivered by Kole, J.A.D.

Kole

[134 NJSuper Page 91] Plaintiff instituted this action on January 28, 1973 against Alfred Terry, his son Walter Terry, the International Brotherhood of Electrical Workers (IBEW), 15 locals of IBEW and the business agents of each local for allegedly conspiring tortiously to interfere with his employment and cause it to be terminated by

spreading false and malicious statements concerning his character. The complaint also requested relief against Alfred Terry alone for tortious interference with plaintiff's employment relationship. Compensatory and punitive damages were sought. Defendant moved for summary judgment and dismissal of the complaint, claiming that jurisdiction over the subject matter of the action had been preempted by the National Labor Relations Act, as amended (NLRA), and that plaintiff's cause of action, if one for slander or libel, was barred by the one-year statute of limitations, N.J.S.A. 2A:14-3. The motions to dismiss the complaint were granted, predicated on lack of jurisdiction. Plaintiff appeals.

The allegations of the complaint, which were not disputed for the purposes of the motions, showed the facts which are hereafter set forth.

The National Electrical Contractors Association, New Jersey Chapter (NECA), an organization that represents electrical contractors in their bargaining relationship with various electrical worker trade unions, hired plaintiff in 1968 to serve as its manager. The following year plaintiff was promoted to the position of general manager and the NECA employed Walter Terry, Alfred Terry's son, as an assistant manager. A conflict with Alfred Terry, an international representative of IBEW, followed plaintiff's selection of someone other than Terry's son to assist plaintiff in handling an increased workload. Threats of union reprisal and bribery attempts were thereafter made by the elder Terry to induce plaintiff to give Walter Terry "first consideration" in placement and promotion within the NECA. Alfred Terry also sought $1,000 cash for his son or "your contractors will have a hell of a lot of trouble." He further instructed plaintiff to discharge his new assistant, in which event, he said, plaintiff would be given a better position, have a car at his disposal, paid a good salary and would be "well taken care of."

In July 1970 plaintiff fired Walter Terry on the grounds of incompetence and conduct detrimental to the interests of the NECA. Plaintiff thereupon became the subject of a malicious campaign directed principally by Alfred Terry, in which veiled charges of corruption were made concerning plaintiff's handling of certain NECA funds, assaults upon his character were made by the heads of defendant locals, and work stoppages by IBEW members were encouraged on jobs they were performing for NECA contractors. Alfred Terry also disrupted and caused a termination of a union-management negotiating meeting by alleging that plaintiff, who was participating therein, was associated with organized crime. Plaintiff asserts that these acts and statements, together with pressure exerted upon members of the NECA and its national office, were intended to effect, and were responsible for, his dismissal.

From the description of plaintiff's duties contained in the complaint, plaintiff is a supervisor as that term is defined in 29 U.S.C.A. § 152(11). As a representative of management he would not be protected by the NLRA insofar as his relationship with his employer, the NECA, is concerned. See Beasley v. Food Fair of North Carolina, 416 U.S. 653, 94 S. Ct. 2023, 40 L. Ed. 2d 443 (1974).

The present dispute, however, involves a union rather than an employer. Under these circumstances, the actions complained of describe possible violations of NLRA provisions that prohibit unfair labor practices by labor organizations or their agents.

29 U.S.C.A. § 158(b)(1)(B) provides that it is an unfair labor practice for a union to "restrain or coerce * * * an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances."

Plaintiff was discharged because of his refusal to advance, and his later firing of, Walter Terry. The conduct of defendants in causing such dismissal would adversely

affect plaintiff's performing the duties of, and acting in his capacity as, a collective bargainer on behalf of his employer, NECA. The unions and their agents may be said to have attempted thereby to dictate to the employer association who would represent its members in collective bargaining. To that extent defendants' conduct arguably constitutes an unfair labor practice under 29 U.S.C.A. § 158(b)(1)(B) subject to the exclusive jurisdiction of the National Labor Relations Board (NLRB) and thus are matters preempted from state court jurisdiction. See Florida Power & Light Co. v. Int'l Bhd. of Elec. Workers, 417 U.S. 790, 94 S. Ct. 2737, 41 L. Ed. 2d ...


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