Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local No. 941 v. Whitfield Transp.

• Decision Date: 15 December 1954
• Docket Number: No. A-4247,A-4247
• Citation: 273 S.W.2d 857,154 Tex. 91
• Parties: TRUCK DRIVERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, LOCAL NO. 941, Petitioner, v. WHITFIELD TRANSPORTATION, Inc., Respondent.
• Court: Texas Supreme Court

Page 857

273 S.W.2d 857

154 Tex. 91

TRUCK DRIVERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, LOCAL NO. 941, Petitioner, v. WHITFIELD TRANSPORTATION, Inc., Respondent.

No. A-4247.

Supreme Court of Texas.

Dec. 15, 1954.

Rehearing Denied Jan. 19, 1955.

Mullinax & Wells, L. N. D. Wells, Jr., and Houston Clinton, Jr., Dallas, for petitioner. Burges, Scott, Rasberry & Hulse and Andress, Lipscomb & Peticolas, El Paso, for respondent.

GARWOOD, Justice.

On motion for rehearing the first opinion handed down in this cause is withdrawn and the present opinion substituted therefor.

The respondent-plaintiff Whitfield Transportation, Inc., a motor carrier, doing no intrastate business in Texas but carrying freight between El Paso and points west of this state, sued certain other interstate carriers, with El Paso offices, which had theretofore been delivering to and receiving from respondent-plaintiff interstate freight at El Paso for further transportation, as interstate commerce, west or east, as the case might be. The object of the suit was in substance to enjoin these defendant carriers 'and all other persons acting by or in concert with them' from suspending their above-mentioned practice, which, at least to some degree, they appear to have suspended following the picketing of the facilities of the respondent-plaintiff, Whitfield, in New Mexico by a union of Teamsters affiliated with the petitioner Union. The difficulty between the respondent-plaintiff and the New Mexico union is only remotely involved, since no picketing at El Paso by anyone is alleged, and the suit is not directed at enjoining the New Mexico Picketing. Neither the petitioner nor any other union or representative or member thereof was made a defendant, despite allegations that the defendants were 'participating * * * in a secondary boycott against plaintiff' with the A. F. of L. Teamsters' Union 'and/or other labor unions unknown to plaintiff.' However, the essence of the alleged cause of action against the defendant carriers, as evidenced by the combined pleadings, proof, fact findings of the trial judge and the judgment, was the alleged conduct of our petitioner, its officers, agents and members, in threatening and coercing the defendants to discontinue their erstwhile connections at El Paso with the respondent-plaintiff, Whitfield. The effect of such alleged coercive conduct would be what is termed in law a secondary boycott against the respondent-plaintiff.

The six defendant carriers were somewhat less than half of the carriers with whom respondent-plaintiff Whitfield did similar business at El Paso. The petitioner Union had collective bargaining contracts with all the defendant carriers and with about half of the others. Five individuals, who were executives or agents of one or more defendant carriers, were also made defendants.

The sworn answers of the defendants, all represented by the same firm of attorneys, denied the allegations of the respondent-plaintiff, especially as to any conspiracy or concerted action or boycott against the latter, and in substance alleged that their suspension of business with the respondent-plaintiff was due to the refusal of their employees to handle the corresponding freight.

The petitioner Union intervened with permission of the court and assumed the position of a defendant. It pleaded to the jurisdiction of the court in that the legality of the conduct of the defendant carriers was a matter for determination of the Interstate Commerce Commission or the Railroad Commission of Texas and later raised the point of exclusive jurisdiction of the federal tribunals under the Labor Management Relations Act of 1947, 29 U.S.C.A. § 151 et seq. It further pleaded an adequate remedy at law on the part of the respondent-plaintiff, denied the existence of any conspiracy or combination between the defendants or between the petitioner Union and the defendants with the object of boycotting the respondent-plaintiff and denied that the petitioner Union had threatened any of the defendants. It affirmatively alleged that any suspension of business on the part of the defendant carriers with the respondent-plaintiff was in the exercise of their own good business judgment and that the petitioner Union

'has advised several of Defendants of the fact that Plaintiff (respondent Whitfield) has refused to deal with other affiliates of the Teamsters' Union in the State of New Mexico and elsewhere and that it is advised that said other Teamsters' Local Unions, engaged in a labor dispute with Plaintiff, are engaged in lawful picketing of Plaintiff at Albuquerque, New Mexico, and Intervenor (petitioner union) would show that it has a right to advise Defendants of such fact.'

Following a temporary restraining order, the case was tried to the court. Testimony was introduced by the respondent-plaintiff and the petitioner Union but not by the defendants, whose counsel also forebore to cross-examine the witnesses testifying. The trial court rendered judgment for the respondent-plaintiff, making in its decree sundry express findings of fact including the following:

'Members, agents, employees and representatives of the union combined to formulate and put into effect a plan to cause a secondary boycott to be instituted and carried on by defendants against plaintiff at El Paso, Texas, with respects to interline freight; that union by threats, express or implied, coerced the defendants into establishing and carrying on the said secondary boycott, defendant's action in this respect being put into effect pursuant to signal given by the Intervenor and kept in effect from that time until the issuance of the temporary restraining order issued in this cause; and that Intervenor, its agents, employees, representatives and members, and defendants, did combine and engage in said secondary boycott, and pursuant thereto did divert from plaintiff interline freight at El Paso, Texas, which otherwise would have been delivered by defendants to Plaintiff; * * * and that in connection with all of said acts of defendants and intervenor, their agents, representatives, members, and employees, there was a concert of action among them, and all of them.'

The court concluded that the foregoing, and the consequent interference with commerce and injury to the respondent-plaintiff which were likewise found to exist, constituted

'a violation of the anti-trust laws of the State of Texas, and of the provisions of Article 5154f of the Vernon's Revised Civil Statutes of Texas, 1925, as amended and said acts on the part of defendants and intervenor are illegal, and should be enjoined, * * *.'

The injunction restrained the defendants, 'their officers, agents, employees and servants, and Intervenor, * * * its officers, agents and members and all persons in active concert or participation with all parties herein restrained * * *' from (in effect) continuing to suspend any normal business with the respondent-plaintiff, except 'if, after tendering it to plaintiff under preceding provisions of this injunction, plaintiff is unable to transport it, or deliver it in the ordinary course of business.'

None of the defendants appealed, but the petitioner Union did, the judgment of the trial court being affirmed by theEl Paso Court of Civil Appeals. 259 S.W.2d 947.

We granted writ of error upon the point that the Labor Management Relations Act, supra, as applied in Garner v. Teamsters, etc., Union, 346 U.S. 485, 74 S.Ct. 161; Building Trades Council v. Kinard Construction Co., 346 U.S. 933, 74 S.Ct. 373; and Capital Service, Inc., v. N. L. R. B., 347 U.S. 501, 74 S.Ct. 699, had preempted for the appropriate federal tribunals controversies of the type here involved and so held in our original opinion, but, on reconsideration of the matter upon the motion for rehearing and amicus curiae briefs of the Attorney General of Texas and numerous others, have concluded that we were in error.

Whether we were correct or not in the view that the nature of this particular controversy (as gathered from the pleadings, evidence and findings) fell so clearly within the terms of the relevant portion of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 158(b)(4) as to render inapplicable the 'express power' limitation of the Garner line of cases, this limitation is not the only one to be considered. The Garner opinion observes with evidently studied purpose that in that case it did not appear 'that the federal Board (N. L. R. B.) would decline to exercise its powers once its jurisdiction was invoked.' (346 U.S. 485, 74 S.Ct. 164.) This limitation, repeated in the per curiam opinion in the Kinard Construction Co. case, 346 U.S. 933, 74 S.Ct. 373, was clearly recognized also in the recent decision of the Supreme Court of New Jersey in Busch & Sons, Inc., v. Retail Union of New Jersey, 15 N.J. 226, 104 A.2d 448. True, the court in the latter case applied the rule of the Garner case to the controversy before it (which, incidentally, was one of picketing and much closer to the Garner case on the facts than the instant case) and actually overruled the argument for retention of state jurisdiction based on the alleged doubt as to whether the N. L. R. B. would take jurisdiction. However, the decision refused to apply the limitation in question only because no positive reason appeared in the particular case why the Board might not take jurisdiction. 104 A.2d 448, 452, Syl. par. 5.

In the instant case the positive reason exists and appears in the formally declared view of the Board that it has no jurisdiction. Matter of Local Union No. 878, etc., and Arkansas Express, Inc., 92 N. L. R. B. 255. That decision involved facts strikingly similar to the facts of the instant case, including particularly the matter of participation in the events said to constitute the boycott by the union member employees of the allegedly boycotting employers. True, the Busch case, supra, speaks in terms of a discretionary...