Poole & Kent Corp. v. CE Thurston & Sons, Inc.

209 S.E.2d 450 (1974)

286 N.C. 121

The POOLE & KENT CORPORATION v. C. E. THURSTON & SONS, INCORPORATED.

No. 5.

Supreme Court of North Carolina.

November 26, 1974.

*454 Randolph & Randolph by Clyde C. Randolph, Jr., Winston-Salem, for plaintiff appellant.

Hudson, Petree, Stockton, Stockton & Robinson by Norwood, Robinson, Thompson, Ogletree & Deakins by Guy F. Driver, Jr., Winston-Salem, for defendant appellee.

HIGGINS, Justice.

The record before us discloses that the procedures in the trial court were regular, the evidence was sufficient to support the findings of fact, and the findings were sufficient to support the conclusions of law and the judgment.

The Court of Appeals, after its careful review, correctly concluded the judgment of the superior court should be affirmed. Judge Parker's opinion is so complete and well documented that little need be said here except that we approve.

Although the material facts in the case are not in dispute, nevertheless in view of the important questions of law involved, some discussion by this Court seems not altogether out of place.

At the time the parties entered into the contract which is the subject of this dispute, Thurston, a Virginia corporation, was party to a labor agreement with the Asbestos Workers Local Union No. 72. That agreement expired on May 1, 1969. On competent evidence, the trial court found: "[T]hat the Asbestos Workers Union did not sign collective bargaining agreements with contractors, such as the defendant, who did not maintain a permanent place of business within the local union's geographic jurisdiction." The defendant, a Virginia corporation which maintained its home office at Roanoke, Virginia, did not maintain a permanent place of business within North Carolina or within the geographic jurisdiction of the local Asbestos Workers Union.

The court found upon competent evidence that the defendant (Thurston) at all times "provided competent supervision, a sufficient number of skilled workmen, and adequate and proper materials to maintain the progress required by plaintiff on the said construction project." (Finding of Fact No. 16.) The court also found upon competent evidence that "the defendant hired employees to work on the said construction project irrespective of their membership or non-membership in a labor union." (Finding of Fact No. 17.)

The complaint and the picketing protest against Thurston were initiated by the Asbestos Workers Union solely because Thurston did not operate under a union contract with its employees. And yet the Union had refused to enter into such contract unless the defendant established and maintained a permanent business office in the jurisdiction of Asbestos Workers Local Union No. 72. Thurston did not accede to the Union's demand that it move its headquarters from Roanoke, Virginia, or that it set up additional headquarters in the Winston-Salem area. Thurston claims, therefore, that the responsibility for its failure to renew its contract with the local union, was the Union's unreasonable demand that Thurston establish permanent headquarters in Winston-Salem, which at no time did Thurston agree to do.

The trial court properly concluded the Union was alone responsible for the failure of Thurston and the Union to renew the contract. The record fails to disclose any right on the part of the Asbestos Workers Union, or any other agency, to require that Thurston move its headquarters to Winston-Salem. The record discloses that Thurston, in the absence of a contract, continued to pay union wages and provide fringe benefits to all members of its labor force regardless of membership or lack of it in a labor union.

At the time the critical events in this case occurred, North Carolina Statutes G.S. *455 § 95-79, G.S. § 95-80 and G.S. § 95-81 were in effect.

"§ 95-79. Certain agreements declared illegal.Any agreement or combination between any employer and any labor union or labor organization whereby persons not members of such union or organization shall be denied the right to work for said employer, or whereby such membership is made a condition of employment or continuation of employment by such employer, or whereby any such union or organization acquires an employment monopoly in any enterprise, is hereby declared to be against the public policy and an illegal combination or conspiracy in restraint of trade or commerce in the State of North Carolina. "§ 95-80. Membership 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. "§ 95-81. Nonmembership as condition of employment prohibited.No person shall be required by an employer to abstain or refrain from membership in any labor union or labor organization as a condition of employment or continuation of employment."

These statutes have been held by this Court to constitute the public policy of North Carolina with respect to the right to work. Aircraft Co. v. Union, 247 N.C. 620, 101 S.E.2d 800; Willard v. Huffman, 247 N.C. 523, 101 S.E.2d 373, citing as authority many cases including decisions of the Supreme Court of the United States.

The foregoing statutes, stripped to their nakedness, disclose that North Carolina, acting under its police power, has established that the public policy is to protect a workman's right to obtain and hold a job without regard to membership or lack of it in a labor union.

Valid laws existing at the time and place a contract is entered into and at the place where it is to be performed, are read into and become a part of a contract unless a clear intent to the contrary is disclosed by the contract. "It is a general rule that contracting parties are presumed to contract in reference to the existing law; indeed, they are presumed to have in mind all the existing laws relating to the contract. . .." 17 Am.Jur.2d, Contracts, § 257, page 654; Farmers and Merchants Bank of Monroe v. Federal Reserve Bank of Richmond, 262 U.S. 649, 43 S. Ct. 651, 67 L. Ed. 1157; Adair v. Burial Assoc., 284 N.C. 534, 201 S.E.2d 905; Pike v. Trust Co. 274 N.C. 1, 161 S.E.2d 453; Spearman v. Burial Assn., 225 N.C. 185, 33 S.E.2d 895; Bateman v. Sterrett, 201 N.C. 59, 159 S.E. 14.

The foregoing North Carolina Statutes are presumed to have been within the contemplation of the parties to this action when they entered into the contract of March 27, 1969.

As the trial court concluded, the legal responsibility for the breach of the contract of March 27, 1969, should be charged to Poole & Kent for the unwarranted cancellation of the contract upon the sole ground Thurston's force was not operating under a union contract. Poole & Kent gave notice the contract was cancelled. Also it applied for and obtained from the court a temporary order removing Thurston's men, material and equipment from the project.

We conclude the decision of the North Carolina Court of Appeals is amply supported by the record. That decision should be and is now

Affirmed.

BOBBITT, C. J., not sitting.