233 F.2d 296 (8th Cir. 1956), 15402, Meier & Pohlmann Furniture Co. v. Gibbons

Docket Nº:15402.
Citation:233 F.2d 296
Party Name:MEIER & POHLMANN FURNITURE COMPANY, a Corporation, Appellant, v. Harold J. GIBBONS, Individually and as Officer, Agent and Member, Representative of Warehouse & Distribution Workers' Union, Local 688, A.F.L., Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, A.F.L., and all other Members of S
Case Date:April 26, 1956
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 296

233 F.2d 296 (8th Cir. 1956)

MEIER & POHLMANN FURNITURE COMPANY, a Corporation, Appellant,

v.

Harold J. GIBBONS, Individually and as Officer, Agent and Member, Representative of Warehouse & Distribution Workers' Union, Local 688, A.F.L., Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, A.F.L., and all other Members of Said Local Union, et al., Appellees.

No. 15402.

United States Court of Appeals, Eighth Circuit.

April 26, 1956

Rehearing Denied May 23, 1956.

Page 297

Page 298

Thomas Rowe Schwarz, St. Louis, Mo. (Fordyce, Mayne, Hartman, Renard & Stribling, St. Louis, Mo., was with him on the brief), for appellant.

Gregory M. Rebman and Harold I. Elbert, St. Louis, Mo., for appellees.

LaTourette & Rebman and Gregory M. Rebman, St. Louis, Mo., were on the brief for appellees Anderson Motor Service, Inc., Hussman & Roper Freight Lines, Inc., Lovelace Truck Service, L. A. Tucker Truck Lines, Inc., and Consolidated Forwarding Co., Inc.

Thompson, Mitchell, Thompson & Douglas, Edmonstone F. Thompson, and Harold I. Elbert, St. Louis, Mo., were on the brief for appellees Southern Plaza Express Co., Inc., and Interstate Dispatch, Inc.

T. D. Drury, St. Louis, Mo., was on the brief for appellees Ben Gutman Truck Service, Inc., and Central Motor Freight, Inc.

Wiley, Craig & Armbruster and Harry Craig, St. Louis, Mo., were on the brief for appellees Harold J. Gibbons and Union defendants.

Rosenfeld & Wolfe and Robert G. Wolfe, Terre Haute, Ind., LaTourette & Rebman and Gregory M. Rebman, St. Louis, Mo., were on the brief for appellee Eastern Motor Express, Inc.

Max Sigoloff, St. Louis, Mo., was on the brief for appellee B-Mac Transport Co., Inc.

Bryan, Cave, McPheeters & McRoberts and William H. Charles, St. Louis, Mo., were on the brief for appellee Roadway Express, Inc.

Albert E. Schoenbeck, St. Louis, Mo., was on the brief for appellee Wabash Railroad Co.

Wilton D. Chapman, St. Louis, Mo., was on the brief for appellee New York Central Railroad Co.

William R. Gentry and Herbert E. Bryant, St. Louis, Mo., were on the brief for appellee Railway Express Agency, Inc.

Harlan & Harlan and John L. Harlan, St. Louis, Mo., were on the brief for appellee Riss Truck Lines.

Page 299

Paxton H. Ackerman, St. Louis, Mo., was on the brief for appellee Pic Freight Co., Inc.

Before GARDNER, Chief Judge, and WOODROUGH and VAN OOSTERHOUT, Circuit judges.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal from final judgment dismissing on its merits the action of Meier & Pohlmann Furniture Company, a Corporation, plaintiff below and appellant here, against two railroads, a pick-up and delivery service under contract with the railroads, one express company, thirteen motor carriers, two local unions, one international union, and one union official. For convenience we will generally refer to the parties as plaintiff and defendants.

Plaintiff was engaged in the furniture manufacturing business in St. Louis, Missouri. Labor trouble developed between the plaintiff and its employees represented by the Upholsterers' Union, not a party to this action, which ripened into a strike in February 1952. It is stipulated that such strike was a legal one in the sense that it was called by a union certified by the National Labor Relations Board as bargaining agent for certain of plaintiff's employees. The strikers set up a picket line. The facts bearing upon the issue of violence on the picket line will be developed hereinafter. After the institution of the strike at plaintiff's plant, it became increasingly difficult for plaintiff to get transportation service at its plant, particularly pick-up and delivery service. Such service tapered off until in the spring of 1953 pick-up and delivery service became practically unavailable. Since the termination of the strike in June of 1954, plaintiff has had no transportation or labor problems. During the strike period, save a few minor exceptions, the carrier defendants have handled outgoing and incoming freight and express shipments for plaintiff where outgoing shipments were delivered to the carriers' docks or stations and incoming items were received at such docks or stations.

Plaintiff's petition is in four counts. In Count I plaintiff seeks damages for business loss claimed to have resulted from failure of the carriers to furnish transportation, particularly pick-up and delivery service, charging all defendants had illegally conspired to and did discriminate against plaintiff by failing to render transportation service generally provided to shippers, thereby violating the duties imposed upon the carriers by 49 U.S.C.A. §§ 1 and 316(b). In Count I-a the plaintiff eliminates the conspiracy charge, and seeks damages for the same injury against all defendants, based upon the individual wrongful action of such defendant. Count II complains of a secondary boycott by the union defendants, charging violations of 29 U.S.C.A. § 187, and seeks damages against the union defendants. Count III is for injunctive relief, asking that the defendants be required to furnish plaintiff transportation service.

The defendants have filed separate answers which vary as to contents. All defendants deny the conspiracy charge, and each denies that the plaintiff has stated a cause of action against the answering defendant. Defendants, New York Central and Wabash, assert that because of the strike and the picket line they are excused from performing pick-up and delivery service by the pick-up and delivery tariff in effect, providing in part as follows:

'Nothing in this tariff shall require the carrier to perform pick-up or delivery service at any location from or to which it is impracticable, through no fault or neglect of the carrier, to operate vehicles because of:

'(C) Any riot, strike, picketing or other labor disturbance.'

The motor carriers assert that they are excused from furnishing pick-up and delivery service by their impracticable delivery tariff, substantially the same as the one pertaining to the railroads just set out. In addition, the motor carriers allege that they have a labor contract with their employees containing, among

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other things, union shop and picket line clauses.

Because of the voluminous pleadings and the variations in the defenses asserted, we deem it advisable to set out verbatim plaintiff's contentions in its brief as to the issues raised. Plaintiff states:

'The issues upon trial became:

'a. Was the refusal of the carriers and their employees or agents to provide pickup and delivery service and in some cases other transportation service, an unjust discrimination in violation of the Interstate Commerce Act and the Motor Carriers Act?

'b. Was the request of the plaintiff for service reasonable within the meaning of these acts or did the Impractical Operations Tariff Rule (where applicable) excuse the carriers from serving plaintiff?

'c. Did the written contracts between the carriers and their employees and agents (entered into as described in the evidence) providing that the employees could refuse to cross picket lines or perform work in an instance in which a picket had been established and which prohibited the carriers from employing others to do the work, excuse the rendition of service or when considered with the other actions of the defendants to a conspiracy not to render the service at the unions' discretion?

'd. Did the participation of those carriers (Wabash, New York Central and Railway Express Agency) who had no written contract provisions to the effect described in (c) above in the general program with the unions, sufficiently join them to the union induced plan of discrimination to make them co-conspirators?

'e. Did the activities of the unions in connection with the inducement of employee refusal to serve Plaintiff amount to a violation of the Labor Management Relations Act, in particular 29 U.S.C.A. Sec. 187?

'f. Did the entry into such agreements by the carriers with their employees restrict the freedom of the carriers to establish reasonable and just practices and, if so, whether the enforcement of such agreements should be enjoined?'

For convenience we will treat the issues raised by the plaintiff under the following headings and in the order here stated:

1. c and d, Conspiracy Issue.

2. a and b, Impracticable Operation Issue.

3. e, Boycott Issue.

4. f...

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