Netherton v. Davis
| Decision Date | 02 April 1962 |
| Docket Number | No. 5-2626,5-2626 |
| Citation | 355 S.W.2d 609,234 Ark. 936 |
| Parties | , 50 L.R.R.M. (BNA) 2006, 45 Lab.Cas. P 50,518 J. F. NETHERTON, Individually and as Representative of I.B.E.W., Local 700, et al., Appellants, v. Lee DAVIS et al., d/b/a J. S. Davis & Sons, et al., Appellees. |
| Court | Arkansas Supreme Court |
Sexton & Morgan, Fort Smith, for appellants.
Lewis D. Jones, Fayetteville, for appellees.
This litigation arises out of a dispute between International Brotherhood of Electrical Workers, Local No. 700 () on one side and Lee Davis and Jeff Davis, Partners, d/b/a J. S. Davis & Sons, Contractors (a prime contractor in this instance), and Albert T. Hough, d/b/a Acme Electric Company, on the other side. We will hereafter refer to the Davis partnership as 'Davis', and to the Acme Company as 'Hough'. The Union is the appellant and Davis and Hough are the appellees.
Davis, the prime contractor, has a contract with Frez-N-Stor, Inc. to construct a cold storage building in Springdale, Arkansas. Under the contract Davis is to furnish all materials and labor. Hough, as a sub-contractor under Davis, is engaged in doing the electrical work on said building. Davis uses all union labor and has no labor dispute with Union.
On September 25, 1961 members of the Union (not employees of Davis or Hough) carrying signs which read: 'The electrical contractors on this job not paying prevailing wages', picketed the building construction site.
On September 29, 1961 Davis and Hough filed in chancery court a petition containing in substance the following material allegations--omitting facts above set out: (a) Hough operates an 'open shop' (employs some non-union labor) in the performance of his contract as he has a right to do under the 'Freedom to Work' Amendment; (b) Davis employs union laborers but they refuse to cross the picket line set up by the Union, and the picket banners are untrue because all electrical employees on the job are receiving union wages; that they (Davis and Hough) are therefore unable to perform their contracts; (c) the pickets have harassed and threatened petitioners' employees and interfered with their work, all of which amounts to an unlawful effort to force petitioners to enter into an unlawful contract to hire only union labor in violation of the 'Freedom to Work' Amendment; and, (d) petitioners are suffering and will suffer irreparable damage for which they have no adequate remedy at law. Petitioners' prayer was for a temporary injunction to restrain Union from picketing. On the same day the petition was filed the court ordered notice to be given to Union and set October 4 for a hearing.
On the above mentioned date Union filed an answer which, in addition to certain denials, contains, in substance, the following allegations: (a) Hough, over a long period of time, has failed to pay his employees union wages and by subterfuge has tried to conceal that fact; (b) at one time, when Hough was being picketed, he agreed to pay union wages and the pickets were withdrawn, but he failed to comply with that agreement and is not now paying his employees union wages 'on the said job'.
After hearing testimony by several witnesses for appellee and one witness for appellant the trial court made the following findings:
(a) 'The finding of the court on the evidence is, that the announced purpose of the picket to call to the attention of the world, in the exercise of their constitutional right of free speech, the fact or the alleged fact that Mr. Hough was not paying prevailing wages was true at the time the picketing commenced, but was not true on last Thursday, September 28th, and is not true today.'
(b) 'The court finds for that reason and on those facts that there exists no reason or purpose for the continuation of the picketing at this time.'
(c) The effect of the picketing as it relates to Davis is 'to deprive him of his property without due process of law. * * *'
Then the court entered an order restraining Union from maintaining pickets at the construction site, pending further orders. Union now appeals from the trial court's order.
One. The first question we consider is whether we should dismiss the appeal because the subject matter of the litigation is moot. We understand from the briefs and statements of counsel that Hough's job at the Frez-N-Stor location (where the picketing was being conducted) has been completed and that there is no longer any reason for Union to picket that place. In appellees' brief there appears this statement:
'We realize that the issues in this particular case are moot, however the problem involved herein is one of critical importance for all citizens of our state, and we feel that if the court holds that the union is to be permitted this encroachment upon the rights of innocent persons for the purpose of effectuating their labor objective, then there is no retreat left.'
We have concluded that the question involved in this litigation is of great importance to the general public and that it should be decided even though the subject matter is moot. In the recent case of Moorman v. Taylor, 227 Ark. 180, 297 S.W.2d 103, where an election contest was involved, we said: 'Although Perry was defeated by the Democratic nominee for the office, it is not our practice to dismiss such cases as moot, for the public interest demands that substantial questions concerning the election laws be set at rest.' In the case of Cain v. CarlLee, 171 Ark. 155, 283 S.W. 365, this Court, in an election contest, decided the controversial issue even though the subject matter was moot. The reason given for so doing was: 'The questions involved on this appeal were, and are, of practical importance to the public.' That decision was based on Wilson v. Thompson, 56 Ark. 110, 19 S.W. 321, where the Court construed an act of the legislature prohibiting the sale of intoxicating liquors within three miles of a church or school. See also: Brown v. Anderson, 210 Ark. 970, 198 S.W.2d 188. It is true that all the above cited cases, except the Wilson case, involved election contests, but they were all decided on the principle of public interest. The same principle applies with equal force to the case under consideration. This Court takes direct and judicial knowledge of the frequency of litigation over labor disputes, and there can be no doubt of its importance to the public and the general welfare. In this connection it is also noted that, in labor disputes, it is not unusual for the subject matter to become moot before the legal principles involved can be settled by the courts. So, as in the Moorman case, we elect not to dismiss the appeal because the subject matter is moot.
Two. The Issue. It is necessary to clearly define the exact issue with which we are here concerned. Both the trial court and the appellees appear to have been under the impression that Union's only grievance against Hough was that he was...
To continue reading
Request your trial
-
McCuen v. Harris
... ... See Netherton ... Page 798 ... v. Davis, 234 Ark. 936, 355 S.W.2d 609 (1962). We agree that because this case involves issues surrounding an election on a ... ...
-
C. Comella, Inc. v. United Farm Workers Organizing Committee
... ... Netherton v. Davis (1962), 234 Ark. 936, 355 S.W.2d 609; Milwaukee Boston Store Co. v. Hosiery Workers, Branch 16 (1955), 269 Wis. 338, 69 N.W.2d 762; Galler ... ...
-
Springdale Bd. of Educ. v. Bowman by Luker, 87-147
... ... See Netherton v. Davis, 234 Ark. 936, 355 S.W.2d 609 (1962) ... For its first point for reversal, the Board argues that the affirmative relief ... ...
-
State ex rel. Utilities Com'n v. Southern Bell Tel. & Tel. Co.
... ... 394, 213 S.E.2d 386 (1975); Matthews v. Dep't of Transportation, 35 N.C.App. 768, 242 S.E.2d 653 (1978); see also Netherton v. Davis, 234 Ark. 936, 355 S.W.2d 609 (1962); Walker v. Pendarvis, 132 So.2d 186 (Fla.1961); Payne v. Jones, 193 Okl. 609, 146 P.2d 113 (1944); 5 ... ...