James M. WILLARD
v.
P. T. HUFFMAN, Individually and P. T. Huffman Transfer, Inc.
No. 602.
Supreme Court of North Carolina.
January 10, 1958.*374 Robert S. Cahoon, Greensboro, for plaintiff appellee.
Brooks, McLendon, Brim & Holderness, Greensboro, for defendant appellant.
DENNY, Justice.
The defendants assign as error the refusal of the court below to sustain their *375 motion for judgment as of nonsuit made at the close of plaintiff's evidence and renewed at the close of all the evidence.
We think the evidence adduced in the trial below, when considered in the light most favorable to the plaintiff, as it must be on such motion, is sufficient to carry the case to the jury, and we so hold. This assignment of error is, therefore, overruled.
In our Right to Work statute, enacted by Chapter 328, Session Laws of 1947, now codified as G.S. §§ 95-78 through 95-84, it was "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." (G.S. § 95-78.) See also In re Port Publishing Co., 231 N.C. 395, 57 S.E.2d 366, 14 A.L.R. 2d 842.
The plaintiff is relying upon the following provisions of our Right to Work statute as the basis for his right to recover in this action. G.S. 95-81. "Nonmembership as condition of employment prohibited.No person shall be required by any employer to abstain or refrain from membership in any labor union or labor organization as a condition of employment or continuation of employment."
GS 95-83. "Recovery of damages by persons denied employment.Any person who may be denied employment or be deprived of continuation of his employment in violation of §§ 95-80, 95-81 and 95-82 or of one or more of such sections, shall be entitled to recover from such employer and from any other person, firm, corporation, or association acting in concert with him by appropriate action in the courts of this State such damages as he may have sustained by reason of such denial or deprivation of employment."
The defendants' assignment of error No. 4 is to the following portion of the court's charge to the jury: "Now, if you find * * * by the greater weight of the evidence that on the night of January 17th that this plaintiff, with nine other employees of the defendant company, met at the plaintiff's home and discussed joining a union, and the members there, those ten men, voted to become members and notified Mr. Jones, and you find * * * that the defendant knew that the plaintiff had met with the other members in his employment for the purpose of joining some union, and you find by the greater weight of the evidence that that was the reason, and the sole reason, or one of the reasons why he was discharged by the defendant company and the individual defendant, Mr. Huffman, and you find those facts and all of them by the greater weight of the evidence, then * * * you'd answer this issue yes."
In other portions of the charge the court likewise instructed the jury to answer the first issue in favor of the plaintiff if it found that the sole reason or one of the reasons for plaintiff's discharge was because he did not abstain or refrain from becoming a member of the union or some labor organization. The defendants excepted to each one of these instructions and assign them as error.
These assigments of error present for determination this question: Is it sufficient to sustain a verdict in favor of a plaintiff in an action based on the alleged violation of the provisions of G.S. § 95-81, if the jury should find that the discharge for such violation was only one of the reasons for such discharge?
This identical question has not been presented heretofore to this Court for determination under the provisions of our Right to Work statute. However, the federal act, involving the same principle in respect to proof, has been interpreted. The federal statute in pertinent part reads as follows: "It shall be an unfair labor practice for an employer * * * by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership *376 in any labor organization: * * * ". 29 U.S.C.A. § 158(a) (3).
In Rubin Bros. Footwear v. National Labor Relations Bd., 5 Cir., 203 F.2d 486, 488, the Court said: "If anything is settled in labor law and under the act, we think it is that membership in a union does not guarantee the member against a discharge as such. It affords protection against discharge only where it is established that the discharge is because of union activity."
In the case of Stonewall Cotton Mills v. National Labor Relations Bd., 5 Cir., 129 F.2d 629, 632, the Court said: "* * * the invoked section (29 U.S. C.A., § 158(a) (3)) does not, of course, mean that membership or office in a union is a guarantee against discharge, layoff, or demotion. An employee, though he belong to or is an officer of a union, may, like any other employee, be discharged for any reason or for no reason at all, unless it is for a reason prohibited by the Act." This view is sustained by many authorities, among which we cite: Associate Press v. National Labor Relations Bd., 301 U.S. 103, 57 S. Ct. 650, 81 L. Ed. 953; National Labor Relations Bd. v. Jones & L. Steel Corp., 301 U.S. 1, 57 S. Ct. 516, 81 L. Ed. 893; National Labor Relations Bd. v. Electric City Dyeing Co., 3 Cir., 178 F.2d 980; 31 Am. Jur., Labor, section 149, page 895. See also Annotation: 123 A.L.R. 619; National Labor Relations Board v. Sands Mfg. Co., 306 U.S. 332, 346, 59 S. Ct. 508, 83 L. Ed. 682, 691.
We are bound to recognize that in many instances an employee may be discharged for one, or two or more reasons. Consequently, based on the evidence adduced in the trial below, in order for the plaintiff to recover for damages allegedly sustained as a result of his discharge in violation of the provisions of G.S. § 95-81, the burden is on him to show by competent evidence, and by the greater weight thereof, that he was discharged solely by reason of his participation in the discussions with his fellow employees in connection with their proposed plan to join a labor union or that such participation therein was the "motivating" or "moving cause" for his discharge.
Webster's New International Dictionary, 2nd Edition gives the following definition of "moving cause": "that which acts as the immediate agency for the production of effect * * *".
In National Labor Relations Bd. v. Whitin Machine Works, 1 Cir., 204 F.2d 883, 885, the Court said: "In order to supply a basis for inferring discrimination, it is necessary to show that one reason for the discharge is that the employee was engaging in protected activity. It need not be the only reason but it is sufficient if it is a substantial or motivating reason, despite the fact that other reasons may exist," citing National Labor Relations Bd. v. Electric City Dyeing Co., supra.
In the case of Wells, Inc. v. National Labor Relations Bd., 9 Cir., 162 F.2d 457, 459, it is said: "Nor, under the special facts of the case, is a motive for the discharge irrelevant, as Wells alternatively asserts. The prohibition of § 8(3), by its plain terms, extends to any discriminatory discharge the purpose and manifest effect of which is to discourage employee membership of a labor organization. The existence of some justifiable ground for discharge is no defense if it was not the moving cause."
In National Labor Relations Bd. v. McGahey, 5 Cir., 233 F.2d 406, 413, the Court said: "Management can discharge for good cause, or bad cause, or no cause at all. It has, as the master of its own business affairs, complete freedom with but one specific, definite qualification: it may not discharge when the real motivating purpose is to do that which Section 8(a) (3) forbids."
In light of the above authorities, in our opinion, where there is a conflict in the evidence as to the reason for discharge, in *377 an action brought under the provisions of our Right to Work statute, in order for a plaintiff to recover damages thereunder, the jury must find that the discharge resulted solely from the plaintiff's exercise of rights protected under the Act, or that the plaintiff's exercise of such rights was the motivating or moving cause for such discharge, and we so hold.
The assignments of error based on exceptions to portions of the charge, as pointed out herein, are sustained. Therefore, the defendants are entitled to a new trial, and it is so ordered.
The defendants filed a motion in this Court for alternative relief to that sought on their appeal, to wit: That this cause be remanded to the Superior Court of Guilford County to determine whether or not the State courts have jurisdiction of the cause. The defendants contend that the doctrine of federal pre-emption is applicable to the facts in this case. In view of the disposition made of this appeal, we deem it unnecessary to rule on this motion, since the defendants will have an opportunity to raise the question posed in the trial court.
New trial.