{
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  "name": "JAMES C. ELLER v. THE COCA-COLA COMPANY and COCA-COLA COMPANY, U.S.A.",
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    "judges": [
      "Judges CLARK and HILL concur."
    ],
    "parties": [
      "JAMES C. ELLER v. THE COCA-COLA COMPANY and COCA-COLA COMPANY, U.S.A."
    ],
    "opinions": [
      {
        "text": "MARTIN (Robert M.), Judge.\nDefendants assign as error the denial of their motion to dismiss and, as grounds for this assignment, assert that the courts of North Carolina lack jurisdiction over the subject matter of this action. In this matter, their appeal is proper since an appeal lies immediately from the denial of a motion to dismiss for want of jurisdiction. Kilby v. Dowdle, 4 N.C. App. 450, 166 S.E. 2d 875 (1969). We shall review, therefore, defendants\u2019 contention that State court jurisdiction has been preempted by federal law and that jurisdiction is reserved exclusively by the National Labor Relations Board.\nUnder the National Labor Relations Act, 29 U.S.C. \u00a7 151, et seq., the National Labor Relations Board has jurisdiction to consider and to act upon alleged violations of the substantive provisions of the Act. According to defendants, plaintiff should have proceeded under 29 U.S.C. \u00a7\u00a7 157 and 158. Simply stated, 29 U.S.C. \u00a7 157 protects employees in their right to organize; on the other hand, 29 U.S.C. \u00a7 158 proscribes unfair labor practices (such as interference with an employee\u2019s \u00a7 157 rights) on the part of employers. Defendants correctly argue that in the case of San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed. 2d 775 (1959), the Supreme Court established that, if an activity in question is arguably protected or prohibited by the National Labor Relations Act, the preemption doctrine applies to oust state courts of jurisdiction. In order for the National Labor Relations Act to apply to the case at bar, it is necessary that the plaintiff and the defendants have an employee-employer relationship.\nBy statutory definition, the term \u201cemployer\u201d includes \u201cany person acting as an agent of an employer, directly or indirectly. . . .\u201d 29 U.S.C. \u00a7 152(2). The term \u201cemployee\u201d includes \u201cany employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise. . . .\u201d 29 U.S.C. \u00a7 152(3). The vagueness of these definitions has been remedied somewhat by judicial interpretation. In determining the question of employer-employee status in cases involving independent contractors, the courts have considered whether parties like defendants herein possessed sufficient \u201cindicia of control\u201d over the work of employees of the independent contractor. See, e.g., Boire v. Greyhound Corp., 376 US. 473, 84 S.Ct. 894, 11 L.Ed. 2d 849 (1964); N.L.R.B. v. Jewell Smokeless Coal Corp., 435 F. 2d 1270 (4th Cir. 1970). The question of the employer-employee relationship is, therefore, a factual one.\nAfter having reviewed the record of the case sub judice, this Court is of the opinion that the court below failed to elicit sufficient facts upon which to make the determination of subject matter jurisdiction.\nWhenever a trial court, on its own motion or on the motion of a party in the suit, must determine the question of subject matter jurisdiction, it \u201cnecessarily has inherent judicial power to inquire into, hear and determine the question of its own jurisdiction, whether of law or fact, the decision of which is necessary to determine the questions of its jurisdiction.\u201d Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E. 2d 806, 808 (1964). See also Kilby v. Dowdle, supra. In Tart v. Walker, 38 N.C. App. 500, 248 S.E. 2d 736 (1978), this Court pointed out that matters outside the pleadings may be considered and weighed by the court in determining the question of subject matter jurisdiction. See Barron and Holtzoff, Federal Practice and Procedure, \u00a7 352.\nIn the case before us, it is difficult to determine what the trial court considered in ruling on defendants\u2019 motion to dismiss for lack of subject matter jurisdiction. It would appear, however, that the only documents before the judge were the complaint filed by the plaintiff and a letter from the National Labor Relations Board. The trial court made no findings of fact and no conclusions of law. Given the complexity of the question of subject matter jurisdiction, we believe, and so hold, that, in the case at bar, the trial judge should have considered matters outside the pleadings in order to determine the question of subject matter jurisdiction. Furthermore, although G.S. 1A-1, Rule 52 does not require the trial court to make findings of fact or conclusions of law on decisions of any motion (unless requested by a party or by Rule 41(b)), we believe the better practice in this case would be to set forth the findings and conclusions on which the court determines its order. If subsequent appeal from the order is taken, this Court would thereby have before it a record more susceptible to meaningful review.\nDefendants also raise questions as to whether plaintiffs complaint states valid claims for relief. The appeal on these issues, however, is premature, Hankins v. Somers, 39 N.C. App. 617, 251 S.E. 2d 640, disc. rev. denied, 297 N.C. 300, 254 S.E. 2d 920 (1979), and is, therefore, dismissed.\nFor the reasons set forth above, the order from which appeal was taken is vacated and this case is remanded to the trial court for a hearing to determine the question of subject matter jurisdiction.\nVacated and remanded.\nJudges CLARK and HILL concur.",
        "type": "majority",
        "author": "MARTIN (Robert M.), Judge."
      }
    ],
    "attorneys": [
      "Smith, Patterson, Foll\u00edn, Curtis, James and Harkavy, by Norman B. Smith, for plaintiff-appellee.",
      "Smith, Moore, Smith, Schell and Hunter, by Martin N. Erwin, for defendant-appellants."
    ],
    "corrections": "",
    "head_matter": "JAMES C. ELLER v. THE COCA-COLA COMPANY and COCA-COLA COMPANY, U.S.A.\nNo. 8018SC1179\n(Filed 18 August 1981)\n1. Appeal and Error \u00a7 6.3\u2014 lack of jurisdiction \u2014 appeal proper\nDefendants\u2019 appeal from the trial court\u2019s denial of their motion to dismiss was proper since an appeal lies immediately from the denial of a motion to dismiss for want of jurisdiction.\n2. Master and Servant \u00a7 15.1\u2014 violation of right to work laws \u2014 jurisdiction\nWhere plaintiff alleged violation of N.C.\u2019s right to work laws and malicious interference with an employment relationship, but defendants moved to dismiss for want of jurisdiction, contending that State court jurisdiction had been preempted by federal law, the determinative question was whether plaintiff and defendants had an employee-employer relationship, and the trial court should have considered matters outside the pleadings in order to determine the question of subject matter jurisdiction.\nAppeal by defendants from Walker, Judge. Order entered 30 October 1980, in Superior Court, Guilford County. Heard in the Court of Appeals 27 May 1981.\nPlaintiff filed a complaint against defendants, alleging violation of North Carolina\u2019s right to work laws, specifically G.S. 95-81, and malicious interference with an employment relationship. According to his complaint, plaintiff, an employee of American Stevedoring Corporation, worked at defendants\u2019 syrup manufacturing plant in Greensboro, North Carolina, from 1976 to 1979. In 1979, Thomas Van Winkle, an employee of defendants, forced plaintiffs employer to discharge plaintiff solely in retaliation for plaintiff\u2019s efforts to organize a union at the defendants\u2019 Greensboro plant. This, according to plaintiff, violated the provisions of G.S. 95-81 and constituted the tort of malicious interference with plaintiffs contract of employment.\nThe defendants filed a motion to dismiss on the basis that the complaint failed to state a claim upon which relief could be granted and on the basis that the North Carolina courts lacked jurisdiction over the subject matter of this action. By order dated 30 October 1980, the trial court denied defendants\u2019 motion to dismiss. From the denial of their motion, defendants appealed.\nSmith, Patterson, Foll\u00edn, Curtis, James and Harkavy, by Norman B. Smith, for plaintiff-appellee.\nSmith, Moore, Smith, Schell and Hunter, by Martin N. Erwin, for defendant-appellants."
  },
  "file_name": "0500-01",
  "first_page_order": 528,
  "last_page_order": 531
}
