Amalgamated Clothing & Textile Workers Intl. Union v. Earle Industries, Inc.

• Decision Date: 07 November 1994
• Docket Number: No. 94,94
• Citation: 318 Ark. 524,886 S.W.2d 594
• Parties: , 148 L.R.R.M. (BNA) 2555, 130 Lab.Cas. P 57,926 AMALGAMATED CLOTHING & TEXTILE WORKERS INTL. UNION, Appellant. v. EARLE INDUSTRIES, INC., Appellee. 00218.
• Court: Arkansas Supreme Court

Page 594

886 S.W.2d 594

318 Ark. 524, 148 L.R.R.M. (BNA) 2555,

130 Lab.Cas. P 57,926

AMALGAMATED CLOTHING & TEXTILE WORKERS INTL. UNION, Appellant. v. EARLE INDUSTRIES, INC., Appellee.

No. 94 00218.

Supreme Court of Arkansas.

Nov. 7, 1994.

Rick W. Skelton, Little Rock, for appellant.

Jeff Weintraub, Memphis, TN, James W. Moore, Little Rock, for appellee.

HOLT, Chief Justice.

This interlocutory appeal arises from a labor dispute involving appellant Amalgamated Clothing and Textile Workers International Union, an unincorporated association, and appellee Earle Industries, Inc., a corporation engaged in the manufacture of clothes hangers and garment bags.

Amalgamated raises two arguments on appeal, contending that the chancery court erred in denying (1) the union's motion to dismiss Earle Industries' complaint for failure to state facts upon which relief might be granted and (2) the union's alternative motion for summary judgment while granting Earle Industries' motion for a temporary restraining order. In support of these arguments, various sub-points have been presented, which focus on the conflicts in testimony concerning allegations of harm, the adequacy of other legal remedies, and the injuries to the union and the public interest.

It should be noted at the outset that Amalgamated's first point on appeal, relating to the denial of the motion to dismiss, cannot be considered by this court because it is couched in terms of an appeal of the denial of a motion to dismiss. The union's motion was based on Ark.R.Civ.P. 12(b)(6), which allows the defense of "failure to state facts upon which relief can be granted." However, Rule 12(b) also provides that:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

(Emphasis added.) Perusal of the record reflects that matters presented to the court outside the pleadings consisted of videotapes of newscast coverage and security surveillance of the picketing on September 14, 1993, the texts of various appellate decisions, and the testimony of various witnesses.

Unquestionably, the motion to dismiss was effectively converted, under our rules of civil procedure, to one for summary judgment, and its denial is not subject to review on appeal. Daniels v. Colonial Ins. Co., 314 Ark. 49, 857 S.W.2d 162 (1993). In his order granting a temporary restraining order, the chancellor specifically noted that "[a]t the hearings, both parties were given the opportunity to present evidence" and that the decisions to issue an order and to deny the motions to dismiss and for summary judgment were "[b]ased on the evidence adduced at the hearing, the arguments of counsel, and the record as a whole." In Eldridge v. Board of Correction, 298 Ark. 467, 768 S.W.2d 534 (1989), we reviewed a case involving a motion to dismiss as if it were an appeal following summary judgment where the chancellor had recited in his order that he had considered the "motions, the responses thereto, as well as the pleadings, briefs, exhibits attached thereto, and other matters."

Similarly, the portion of the second point on appeal relating to the chancellor's denial of the union's motion for summary judgment must also be disregarded. As we have repeatedly held, the denial of a motion for summary judgment is neither reviewable nor appealable. Daniels v. Colonial Ins. Co., 314 Ark. 49, 857 S.W.2d 162. What remains for us to consider, then, is a single issue: Amalgamated's appeal from the chancery court's granting of Earle Industries' motion for a temporary restraining order. Another item, however, should be briefly addressed before we proceed to the merits of this issue.

The union contends, in its reply brief, that Earle Industries' brief should be stricken for failure to comply with the requirement of Ark.Sup.Ct.R. 4-4(b). That rule states that "[b]riefs tendered to the Clerk will not be filed unless evidence of service upon opposing counsel and the trial court has been furnished to the Clerk." The certificate of service contained in Earle Industries' brief does not recite that a copy was sent to the trial court. No penalty is provided in the rules of the court for such an oversight, and the Clerk appeared to have been satisfied with the status of the brief when it was submitted. Thus, we see no prejudice in the Clerk permitting Earle Industries' brief to be filed.

Facts

On September 14, 1993, members and supporters of Amalgamated gathered at the high school in Earle, Arkansas, for a rally. The Reverend Jesse Jackson delivered a speech, after which approximately sixty to seventy-five persons, ¹ carrying banners, marched down U.S. Highway 64 to Earle Industries' factory.

Law enforcement officials accompanied the group to ensure traffic control. When the marchers arrived at the manufacturing plant, they congregated at the main entrance, and the Reverend Jackson spoke with the personnel manager, Gary Smith, asking to see Peter Felsenthal, Earle Industries' senior vice president. Meanwhile, Melvin Luebke, a union activist, was arrested by the Earle Police Department on charges of criminal mischief and criminal trespass after he cut the lock and chain on the factory's back gate.

The demonstrators remained in front of the plant's main entrance during the employee lunch period for about forty or forty-five minutes, picketing, singing, chanting, and listening to a speech by the Reverend Jackson. Plant employees taking their lunch breaks were allowed to join the union supporters. The front gate was closed for the duration of the protest, and traffic was impeded on U.S. Highway 64. About fifty protesters sat down in the middle of the highway, and a number of them parked their vehicles on the side of the highway. All but one of the demonstrators, Steve Klawan, who was arrested, eventually moved out of the highway. Some vehicles remained on the roadside and they were towed. Two more union supporters, Kathleen Lee and Edna Mae Byars, were arrested for obstructing traffic by parking their cars on the highway, bringing to a total of four the number of protesters who were taken into custody. All four pled guilty and were released after a union representative paid their fines. Less than an hour after the protesters arrived, they dispersed.

On September 21, 1993, Earle Industries filed a complaint for injunctive relief against the union in the Chancery Court of Crittenden County, alleging that the "mass picketing" that occurred the previous week and the "threat of additional mass picketing" posed an "imminent threat of danger to the public safety and to the Plaintiff's business interests and employees, as well as a threat to Plaintiff's property interests...." Continued mass picketing, the complaint alleged, would result in "irreparable harm" to Earle Industries and its employees and would imperil the public safety "since the marching and parading of a large number of people would again block ingress and egress to the main employee entrance to Plaintiff's Plant and block Highway 64[,] which is a major public thoroughfare."

Asserting the lack of an adequate remedy at law, Earle Industries requested a temporary restraining order:

to restrain the Defendants, and those acting by, through, and in concert with them, from using or employing mass pickets in the act of picketing on Highway 64 or within a 50-foot radius of the fence surrounding Plaintiff's Plant; congregating, patrolling, walking, or sitting in parked cars within 50 feet of the fenced area immediately surrounding Plaintiff's Plant in Earle, Crittend[e]n County, Arkansas[,] or to interfere in any ma[nn]er, with the peaceful ingress and egress to and from Plaintiff's Plant or Highway 64 surrounding Plaintiff's Plant in Earle, Crittend[e]n County, Arkansas. Plaintiff also requests that this court enjoin Defendants and those acting on their behalf from employing more than three pickets in the area described herein. Plaintiff also requests that this court issue a Preliminary Injunction, and, following a trial in this matter, a permanent injunction.

A hearing was held on September 22, 1993, and testimony was delivered, and exhibits, including videotapes of both area news coverage and factory security surveillance of the incident, were received by the chancellor. Another hearing was held on September 29, 1993, and additional evidence was presented.

Prior to the beginning of the second hearing, Earle Industries filed a brief in support of its motions for a temporary restraining order and preliminary injunction. Simultaneously, Amalgamated filed a motion to dismiss and an alternative motion for summary judgment, asserting the allegations in the complaint were unsupported by "specific factual statements" and that adequate legal remedies were available for any future harm.

Following the September 29, 1993 hearing, the chancellor took the matter under advisement. On November 18, 1993, the chancery court issued an order granting to Earle Industries a temporary restraining order and denying the union's motions to dismiss and for summary judgment. The order stated, in part:

The Court finds that Defendants' action in (1) cutting the lock and chain on Plaintiff's gate; (2) blocking traffic on that portion of Highway 64 in front of Plaintiff's business; and (3) blocking Plaintiff's right of ingress and egress to one of its drives, are actions that should be restrained and enjoined.

* * * * * *

IT IS ... HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant ACTWU, Southwest Regional Joint Board, Local 828, their officials, and others cooperating with them are RESTRAINED AND ENJOINED from:

(1)...