Bales v. Journeymen Barbers', Hairdressers', Cosmetologists' and Proprietors' Intern. Union of America Local No. 867, s. 2331

• Decision Date: 30 September 1970
• Docket Number: Nos. 2331,2332,s. 2331
• Citation: 239 So.2d 624
• Parties: 75 L.R.R.M. (BNA) 2565, 64 Lab.Cas. P 52,415 Carnell BALES, Appellant, v. The JOURNEYMEN BARBERS', HAIRDRESSERS', COSMETOLOGISTS' AND PROPRIETORS' INTERNATIONAL UNION OF AMERICA LOCAL NO. 867, Appellee. Fred DUNBAR, Appellant, v. The JOURNEYMEN BARBERS', HAIRDRESSERS', COSMETOLOGISTS' AND PROPRIETORS' INTERNATIONAL UNION OF AMERICA LOCAL NO. 867, Appellee.
• Court: Florida District Court of Appeals

Page 624

239 So.2d 624

75 L.R.R.M. (BNA) 2565, 64 Lab.Cas. P 52,415

Carnell BALES, Appellant, v. The JOURNEYMEN BARBERS', HAIRDRESSERS', COSMETOLOGISTS' AND PROPRIETORS' INTERNATIONAL UNION OF AMERICA LOCAL NO. 867, Appellee.

Fred DUNBAR, Appellant, v. The JOURNEYMEN BARBERS', HAIRDRESSERS', COSMETOLOGISTS' AND PROPRIETORS' INTERNATIONAL UNION OF AMERICA LOCAL NO. 867, Appellee.

Nos. 2331, 2332.

District Court of Appeal of Florida, Fourth District.

Sept. 30, 1970.

John F. Law, Jr., of Ryan, Taylor & Law, North Palm Beach, for appellants.

Shepard Lesser, of Lesser & Lesser, West Palm Beach, for appellee.

TJOFLAT, GERALD BARD, Associate Judge.

On March 31, 1967, appellant, Carnell Bales, our case number 2331, a barber in Palm Beach County, entered into a written 'working agreement' with his Union, the Journeymen Barbers', Hairdressers', Cosmetologists' and Proprietors' International Union of America Local No. 867, the appellee in this case. He signed the form contract because its terms recited, 'the signing of this agreement shall be a requisite to union membership.'

Essentially, the contract was designed to accomplish two objectives: the establishment of fixed minimum prices for haircuts, mud packs and the like, and the designation of the hours and days a barber could work each week. The union considered Bales perpetually bound by these schedules because the parties had provided for the automatic renewal of the contract, without notice, on October first each year. It had also been agreed that Bales resignation from the union would not affect its right to enforce the contract.

A few months after the contract was signed, Bales terminated his union membership and repudiated the agreement. Thereafter, he kept his barbershop open after hours and on Mondays, a union holiday. ¹ He also reduced prices. The union was unable to convince him that he was still bound by the contract; and so it brought these injunction proceedings, in the Circuit Court of Palm Beach County, to prohibit him from working overtime or cutting prices.

In his answer to the complaint, Bales alleged that the contract was a nullity because he had signed it under duress, as the result of threats by union officials. Alternatively, he asserted that the contract had been terminated upon his separation from the union. On the merits, the trial judge resolved the duress issue in favor of the union and concluded that the agreement was perpetual. He held that Bales was powerless to terminate the contract without the union's consent and ordered him to conform to its price list and work schedule so long as he chooses to barber in Palm Beach County. In the language of the final judgment, Bales was permanently enjoined 'from operating his barbershop or from himself working as a barber at such times and hours and for such prices as are in violation of the provisions of the contract.' A motion for rehearing was denied, and this appeal followed.

In his brief, appellant assigned four alternative grounds for reversal: (1) the subject matter of this action is within the exclusive jurisdiction of the National Labor Relations Board, and, accordingly, the trial court lacked authority to entertain the union's application for injunctive relief; (2) by restricting Bales freedom to practice his trade in Palm Beach County, the contract contravenes the 'Right to Work Law' ² and is thus unenforceable; (3) the agreement is void for want of mutuality; and (4) the contract was terminated. A fifth ground for reversal, asserted initially in the oral argument before this court, is that the price fixing and restraint of trade aspects of the contract rendered it a nullity under the antitrust law of this state. ³

The first two grounds cited in the brief and the antitrust issue were neither raised in the trial court nor litigated by implied consent. ⁴ Nothing in the final judgment or any of the pre-trial orders indicates that they were considered and resolved by the trial judge. Accordingly, they will not be entertained by this court on appeal. ⁵ Mariani v. Schleman, Fla.1950, 94 So.2d 829; Jones v. Neibergall, Fla.1950, 47 So.2d 605. On the other hand, the third and fourth points were expressly adjudicated in the court below and have been properly lodged before us on this appeal.

In support of his third ground Bales argues that mutuality is lacking because every undertaking set out in the agreement is his, whereas the union promised nothing. 'Mutuality of obligation' is a way of expressing the proposition that a promise must be supported by adequate consideration to be enforceable. An agreement may have sufficient mutuality, even though one of the contracting parties may have undertaken no duty of future performance, if such party has given a genuine, Executed consideration. Here, the union membership and concomitant benefits Bales received when he signed the instrument was a sufficient Executed consideration to support the formation of a contract, and, thus, we are not inclined to disturb the trial judge's conclusion that a binding agreement was reached.

Our decision in this case turns instead on the premise that the agreement has been terminated. Paragraph 16 of the contract provides:

'It is understood and agreed that this agreement is effective from the date of the signing hereof and shall continue until October 1 of the following year and shall then be automatically renewed on the first day of October and each succeeding year without further notice to either party thereto. Each yearly renewal...