Poole & Kent Corp. v. C. E. Thurston & Sons, Inc. , 21 N.C. App. 1 ( 1974 )

PARKER, Judge.

By assignments of error 4, 5, 6 and 7, plaintiff attacks the findings of fact made by the trial court in paragraphs 11, 15 and 26 of the judgment appealed from as not being supported by the evidence. While conceding that the evidence was sufficient to support a finding that members of the Asbestos Workers Union actively sought to persuade plaintiff to remove defendant from the construction project and that plaintiff had canceled its subcontract with defendant and ordered defendant off the project, plaintiff contends that this is as far as the evidence goes. In particular, plaintiff contends that there was no evidence to support the court’s findings in paragraphs 11 and 26 that the reason representatives of the union sought to have defendant removed from the project, and the reason for plaintiff’s action in obtaining the ex parte restraining order removing defendant from the project and its later action in canceling its agreement of subcontract with defendant, was because defendant’s employees were not members of the local union. A review of the record, however, reveals evidence sufficient to support the challenged findings.

At the outset we note that plaintiff alleged in its complaint, filed 15 December 1970, that as a result of the picket line established by the union on 10 December 1970, employees of plaintiff, of other subcontractors, and of the general contractor, refused to report for work “until such time as defendant either negotiates a collective bargaining agreement or desists the employment of nonunion labor.” (Emphasis added.) From this allegation, which was made by plaintiff at the very time the events complained of were taking place, it would appear that plaintiff then understood that one reason motivating the union’s activities was that defendant’s employees were not members of the union. That this understanding was correct was borne out by the evidence submitted at the trial.

Plaintiff’s branch manager, Brian Miller, testified to a meeting which he had with union representatives on 1 December 1970 at which the union spokesman “made it clear that he wanted to see C. E. Thurston removed from the job,” and expressed the hope to Mr. Miller that plaintiff “would find some way of using union personnel to do the insulation work.” Mr. Miller also testified that the union representatives had “suggested that there were three contractors in the State of North Carolina who would be acceptable to them,” that it was his understanding that all three had union agreements and that “the union made that clear to us when they told us that these three were acceptable to them.” On recross examination, Mr. Miller testified:

“The union told me that they wanted Thurston off the job because their people weren’t union. We terminated Thurston because of the job stoppage which put us in violation of our contract with the general contractor.”

Defendant’s witnesses gave even stronger support to the court’s findings. P. A. Winchester, general superintendent for McKee, the general contractor on the project, testifying concerning a meeting which he had about 1 December 1970 with certain union representatives, said:

“The union representatives in that meeting made state-ents to us about the possibility of a work stoppage. The best I recall, if there couldn’t be some agreement reached where — I believe, to the best of my knowledge, that if C. E. Thurston non-union employees continued working that there was a possibility of a work stoppage. . . . I’m sure I reported this conversation to Mr. Miller of Poole & Kent.”

Joseph W. Hoffman, an official of defendant, testified to a meeting he had on 30 November 1970 with Brian Miller, plaintiff’s representative, as follows:

“I told Mr. Miller the reason I was down here and he told me that he had at least one conversation with his Business Agent and Mr. Barber, who was the Business Agent of the Asbestos Workers, and that they wanted to have a meeting with him because we were working nonunion people on the job....”

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“Miller said that he had also discussed with Thomas and Barber the fact that — asked what did they propose, and they proposed that he get another contractor, and Mr. Barber said that he would have his union contractors contact Mr. Miller concerning doing the work if he could get us off. . . .

“The only other point that we discussed, he asked me could I possibly use Mr. Barber’s men, and I told him at that time that I didn’t see how in the world I could do that; we had capable people on the job doing work, and it was my understanding that it would be illegal to push those people out and put somebody else’s people in because of the union membership....”

“In my meeting with Mr. Miller he told me that the union representatives said that our people weren’t union people, they weren’t Mr. Barber’s people.”

We find that the evidence sufficiently supports the trial court’s findings of fact challenged by plaintiff’s assignments of error 4, 5, 6 and 7, and these assignments are overruled.

Plaintiff contends that in any event the judgment against it is erroneous as a matter of law. In this connection plaintiff points to paragraph 12 of the contract by which defendant agreed that all labor used by it throughout the work would be acceptable to plaintiff “and of a standing or affiliation that will permit the work to be carried on harmoniously and without delay.” Plaintiff contends that all of the evidence establishes that defendant breached this paragraph of the contract. To this, defendant responds that there is no evidence that its employees were in anywise unacceptable to plaintiff, saving only that they were not members of the union, and that under the laws of this State, particularly the North Carolina Right to Work Law, G.S. 95-78 et seq., paragraph 12 of the contract may not be lawfully enforced against it under the circumstances of this case, since the only purpose and effect would be to require that defendant employ only union members on the project. We agree with the defendant.'

No evidence was presented and plaintiff does not here contend that defendant’s employees lacked appropriate skills, were not properly supervised, or that they failed in any manner to perform the work assigned to them diligently and efficiently. There was no evidence or contention that defendant and its employees failed to perform in a satisfactory manner that portion of the building project called for by defendant’s subcontract with the plaintiff. There was no evidence or contention that defendant’s employees failed to work harmoniously or that any delay was caused by the manner in which they performed their duties. All of the evidence shows that they were not acceptable to the plaintiff solely because they were not “of a standing or affiliation,” i.e., union members, which would “permit the work to be carried on harmoniously and without delay.” The question presented is whether, under these circumstances, the harmony clause contained in paragraph 12 may be lawfully invoked by plaintiff to establish a breach of contract by defendant sufficient to justify plaintiff’s actions in removing defendant from the project and canceling the contract between them. We hold that under the laws of this State it may not.

G.S. 95-78 and G.S. 95-80 are respectively as follows:

“§95-78. Declaration op Public Policy. — The right to live includes the right to work. The exercise of the right to work must be protected and maintained free from undue restraints and coercion. It is hereby declared to be the public policy of North Carolina that the right of persons to work shall not be denied or abridged on account of membership or nonmembership in any labor union or labor organization or association.”

“§95-80. Memership in Labor Organization as Condition of Employment Prohibited. — No person shall be required by an employer to become or remain a member of any labor union or labor organization as a condition of employment or continuation of employment by such employer.”

Enforcement of paragraph 12 of the contract by requiring that defendant remove its nonunion members from the project and replace them with union members would result in a direct violation of the public policy declared in G.S. 95-78 and of the express prohibition contained in G.S. 95-80. Plaintiff’s contention that the Right to Work Law is not applicable because the contract between the parties is not of the type declared illegal by G.S. 95-79, simply ignores the other sections of the statute noted above and involves a too restrictive application of the public policy declared by the Legislature. We hold that under the laws of this State paragraph 12 of the contract may not be lawfully enforced against defendant for the purpose which plaintiff has sought to enforce it in this case, since to do so requires a violation of our statutes. Under the facts found by the trial court and under all of the evidence in the record, there has been no showing that defendant breached paragraph 12 in any respect in which the language of that paragraph may be lawfully applied.

Plaintiff has also assigned as error the admission of oral testimony as to the contents of written collective bargaining agreements between plaintiff and the unions representing its employees and between the general contractor and unions representing its employees. Plaintiff contends that admission of this testimony violated the best evidence rule, was hearsay, and allowed nonexpert witnesses to testify to their opinion as to the legal question involved. We do not pass upon this assignment of error, since in our view the testimony in question and the trial court’s findings of fact related thereto were not necessary to support the judgment appealed from. The testimony to which plaintiff objects was to the effect that the collective bargaining agreements in question limited the unions’ right to strike and required them to provide personnel on the employers’ request, in default of which the employers had the right to hire men from the outside. The court made no findings of fact as to the contents or legal effect of the collective bargaining agreements in question, but did find as facts that “the plaintiff did not choose to institute any legal proceedings against the labor unions which represented its employees to require the unions to abide by their collective bargaining agreements with the plaintiff” (Finding of Fact No. 19), and that “if the plaintiff’s employees refused to work because of any labor disputes involving the defendant, the plaintiff had remedies available to require its employees to return to work or to hire other employees” (Finding of Fact No. 27), though the court did not specify what those remedies were. In our view, whether plaintiff or the general contractor had collective bargaining agreements with unions representing their employees and, if so, what rights and remedies those agreements provided, was immaterial to any issue in this litigation between plaintiff and defendant. Unquestionably the refusal of the union employees to continue to work on the building project while defendant’s nonunion employees were also present, placed plaintiff in a difficult position. However, whether plaintiff had, or had not, effective remedies against the unions or against its own or other union employees, and if it had such remedies, whether it did, or did not, resort thereto, simply has no bearing upon whether plaintiff had a lawful right to terminate its contract with defendant. In this view of the case, error, if any occurred, in admitting testimony as to the collective bargaining agreements in question was immaterial to any issue determinative of this case, and the court’s factual findings in Findings 19 and 27 were merely surplusage.

We also find no error in the court’s refusal to find as a fact, as requested by plaintiff, that “[o]n December 14, 1970, plaintiff reasonably believed it was in imminent danger of suffering cancellation of its contract with McKee.” Even had this been so, it furnished no legal justification for plaintiff terminating its contract with defendant.

The judgment appealed from is

Affirmed.

Judges Britt and Vaughn concur.