Does the National Labor Relations Act pre-empt state jurisdiction in an action based upon a tort conspiracy brought by an employee against a labor union and its local? This question is presented by the instant appeal. For in-depth discussions of the doctrine of federal pre-emption in labor disputes see articles in 83 Harv. L. Rev. 552 (1969) and 85 Harv. L. Rev. 1337 (1972). 1
Carter sued the Sheet Metal Workers International Association and its Augusta local union in the Superior Court of Richmond County. His complaint alleges the parent union and its local "conspired together, maliciously and wilfully, to deprive the plaintiff of his employment in the Sheet Metal Industry and of his means of livelihood, to cause the plaintiff to be denied employment in this Industry, to deny the plaintiff his *873 right and privilege to be a member of defendants’ union, to impair the plaintiffs reputation among prospective employers, and to subject the plaintiff to embarrassment, scorn and derision among his friends, associates, relatives and fellow employees.” (R. 4). He avers that in January 1972 the representatives of the defendants "acting for and under the specific instructions of all defendants herein, maliciously, and without probable cause therefor, used the threat of union coercion and pressure to cause the plaintiff to be denied employment of a job in his industry for which he was ready, willing and able to perform.” (R. 5). The pleading further states defendants forced an employer of the plaintiff to discharge him and that as a result of defendants’ acts, he has been unable to find employment. Plaintiff-appellee sued for $25,000 as damages, $50,000 as punitive damages, and $10,000 as attorney fees.
Each defendant filed separate motions to dismiss upon the ground that "this court does not have jurisdiction of the subject matter of this complaint” together with their answers denying the allegations. The trial court denied both motions to dismiss from which judgments these appeals have been taken separately with requisite review certificates.
The Unions succinctly state their position to be that "the matter is arguably covered by the National Labor Relations Act, 29 U. S. C., §§ 157 and 158; therefore exclusive jurisdiction of the matter rests with the National Labor Relations Board.” In their erudite briefs able counsel for both unions have listed many cases, including our Supreme Court cases of
United Brotherhood of Carpenters &c. v. Briggs,
We noted (as did appellants) that the Garmon case also states at its conclusion on page 247 that previous holdings ". . . have allowed the States to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and imminent threats to the public order. . . [and] to enjoin such conduct.”
It is true that the instant case does not involve the specific excepted circumstances of violent conduct and imminent threats to public order. Nevertheless, it must be observed that there are other situations where state court jurisdiction is appropriate. Thus, in Linn v. United Plant Guard Workers,
Subsequently in Taggart v. Weinacker’s, Inc.,
*875
We recognize the instant case may be within the jurisdiction of the National Labor Relations Board even though it does not involve an employer as a party. Nevertheless, the state’s concern "to protect the rights of its citizens” requires us to acknowledge that the plaintiff here would be deprived of certain legal rights in the event we ruled the state court lacked jurisdiction. We refer to the fact that the power of the NLRB is limited by the provisions of the federal statute. When the board finds either a union or an employer guilty of an unfair labor practice it has the power to enter a cease and desist order "... and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter:
Provided,
that where an order directs reinstatement of an employee, back pay may be required of the employer or labor organization, as the case may be, responsible for the discrimination suffered by him. . .” 29 U. S. C. § 160 (c). Although the appellant Unions argue that this remedy would enable the NLRB to make the plaintiff whole, it is obvious that it does not include power to award him exemplary damages or attorney fees. Under Georgia law a plaintiff has the right upon presentation of proper proof satisfactory to the court and jury to receive punitive damages (Code § 105-2002). Reasonable attorney fees also may be awarded in certain instances. Code § 20-1404;
Traders Ins. Co. v. Mann,
As is observed in the Linn case at page 63: "The Board can award no damages, impose no penalty, or give any other relief to the defamed individual. On the contrary, state remedies have been designed to compensate the victim and enable him to vindicate his reputation. The board’s lack of concern with the 'personal’ injury caused by malicious libel, together with its inability to provide redress to the maligned party, vitiates the ordinary arguments for pre-emption.” The court’s observation dealt with a libel action but those views are appropriate to the instant case. Moreover, this special situation as to punitive damages was recognized in International Union U. A. W. v. Russell,
In making our decision we decline to follow the 1955 ruling of our court in
Collins v. Merritt-Chapman & Scott,
In
Hudgens v. Local 315, Retail &c. Union,
In ruling that the state court has jurisdiction of this malicious tort action we do not infringe upon or rule contrary to the holding of Local No. 438, Construction &c. Laborers’ Union v. Curry,
Judgment affirmed.
Notes
These are respectively by Michael A. Broomfield, Preemptive Federal Jurisdiction Over Concerted Trespassory Union Activity and by Archibald Cox, Labor Law Preemption Revisited.