Baue v. Embalmers Federal Labor Union No. 21301 AFL-CIO

• Decision Date: 09 March 1964
• Docket Number: No. 49789,AFL-CLO,49789
• Citation: 376 S.W.2d 230
• Parties: 55 L.R.R.M. (BNA) 2623, 49 Lab.Cas. P 51,044 Arthur C. BAUE and David Baue, Appellants, v. EMBALMERS FEDERAL LABOR UNION NO. 21301, an unincorporated labor organization, et al., Respondents.
• Court: Missouri Supreme Court

Page 230

376 S.W.2d 230

55 L.R.R.M. (BNA) 2623, 49 Lab.Cas. P 51,044

Arthur C. BAUE and David Baue, Appellants, v. EMBALMERS FEDERAL LABOR UNION NO. 21301 AFL-CLO, an unincorporated labor organization, et al., Respondents.

No. 49789.

Supreme Court of Missouri, En Banc.

March 9, 1964.

Robert V. Niedner, Niedner, Niedner & Moerschel, St. Charles, John R. Stockham, Stockham & Breckenridge, St. Louis, for appellants.

J. F. Souders, Gruenberg, Schobel & Souders, St. Louis, for respondents.

Henry Andrae, Jefferson City, Hendren & Andrae, Jefferson City, of counsel, for National Selected Morticians, a not for profit association, amicus curiae.

Edward D. Summers, Jefferson City, for Missouri Funeral Directors & Embalmers Ass'n, Inc., amicus curiae.

HYDE, Judge.

This case, first heard in Division No. One, was transferred to Banc without an opinion being adopted. However, an opinion prepared in Division stated the following facts which we adopt in substance without quotation marks.

Arthur C. and David Baue, as copartners, sued to enjoin the picketing of their funeral home in St. Charles by Embalmers Federal Labor Union No. 21301 AFL-CIO, an unincorporated labor organization, and certain named members thereof as fairly and adequately representing the class consisting of that union's membership.

After a preliminary hearing, the trial chancellor denied the Baues a temporary order enjoining the picketing and, after a change of judge and a further hearing for a permanent order, the new trial chancellor again denied the injunctive relief sought. The Baues have appealed from the ensuing judgment.

It is not contended that interstate commerce is sufficiently involved or affected by appellants' business to deprive the courts of this state of jurisdiction of the dispute; and inasmuch as the appellants have preserved points involving the construction of specified portions of the Constitutions of the United States and the State of Missouri, this court has jurisdiction of the appeal.

John Clay Smith, then a resident of Arkansas, was employed for an indefinite term as a licensed embalmer of January 3, 1961, by the Arthur C. Baue Funeral Home, a corporation (incorporated in 1952 or 1953), all of the stock of which was held by Arthur C. Baue, his wife, and his son, David. Smith continued in that employment until his discharge on April 20, 1962. The Baues claimed they had conducted their St. Charles funeral home as a partnership since March 28, 1962, although the corporation which formerly operated that business was never dissolved and in fact continued to operate a funeral home in a nearby town. A few days after Smith's discharge the union began picketing their St. Charles establishment.

From time to time during the period of Smith's employment (approximately a year and four months), he and the Baues had discussed the matter of the possibility of his being interested in or joining an embalmers union and the Baues had indicated their firm opposition to such a move, making clear their view that if Smith joined the union he would be unable to continue in their employ because they, Arthur and David, were also licensed embalmers and did part of the embalming work at their St. Charles funeral home and a union contract would prohibit their continuing to do that work. During those conversations Smith indicated his lock of interest in joining a union and made certain statements clearly suggesting his opposition to union membership under the circumstances.

Nevertheless, during the first week of April 1962 (all dates hereinafter mentioned are in 1962), Smith contacted the union's president, Mr. Van Fossan, and indicated that he wanted that union to be his sole agent for collective bargaining with his employer. The union, whose total membership at trial time was eighty, agreed to try to help him. As a result, Van Fossan sent to Smith for signature an 'authorization for representation' designating the union as his 'sole and exclusive representative for the purposes of collective bargaining, to negotiate and execute an agreement on my behalf with my said employer covering my wages, hours and all other conditions of employment.' Smith signed that paper on April 9 and returned it. On April 13 the attorney for the union directed a letter to 'Arthur C. Baue Funeral Home, Inc.' (received on April 14), advising of the fact that the union represented the embalmer employees of the corporation and demanding recognition of he union as bargaining agent for such employees and requesting a meeting on April 17 'for the purpose of negotiating a labor agreement for such unit.' The meeting was held April 20.

Upon receipt of that letter the Baues, either Arthur or David or both, talked with Smith inquiring specifically whether, and Smith denied that, the union had talked with him or had contacted him in any way. Although Smith explained at the trial that he had contacted the union and that he was not asked whether he had, it is entirely clear that Smith did not disclose that he had designated the union as his bargaining representative, even though that information was reasonably called for by the questions asked by his employer. He explained, 'I was afraid of being frank and candid because I was afraid of my job.'

Smith further testified that on April 14, after they had received the letter from the union, the Baues again admonished him to have nothing to do with the union and suggested that they wanted to enter into a partnership agreement with him and one Ermeling so he would be part of management, and suggested further that he was to deny to anyone who inquired that he did any embalming; that on April 16 a partnership agreement was presented but Smith did not sign it saying he wanted to discuss it with his Arkansas attorney; that Mr. Arthur Baue suggested that they might want Smith to leave town for a few days to avoid talking with union representatives and later that day told Smith to forget about the partnership agreement. On the 19th it was agreed that Smith could go home (to Arkansas) over Easter and Arthur suggested he stay there until they called him, but before leaving they wanted a letter of resignation back dated to April 7 so that his employers could show the union that he (Smith) was not an employee. Admittedly, Arthur Baue wrote such a letter on April 19, dated it twelve days prior thereto, i. e., April 7, and asked Smith to copy it and mail it or give it to them.

On April 19, the Baues also submitted to Smith a supplementrary limited partnership agreement and stated that the suggested letter of resignation would not affect the partnership agreement and that in any event Smith would continue to receive his salary. Arthur Baue testified that at the time they submitted the second limited partnership agreement they also furnished Smith with a copy of the partnership agreement which Arthur and David claimed to have executed on March 28, 1962; and Mr. Baue testified further that he intended to use the back-dated letter purporting to show Smith's resignation on the 7th in order to show the union that they did not have an embalmer employee. Smith did not sign the letter nor the partnership agreement. He took them with him to Arkansas but, in the meantime, informed Van Fossan of the proffered agreement and the suggested back-dated letter of resignation. Smith went to Arkansas on the 19th and, on the 20th, union representatives called on the Baues. The Baues demanded to know by what authority the union men were there, whereupon Van Fossan furnished a copy of the authorization which theretofore had been executed by Smith. The union representatives then presented the standard contract which it sought to have executed by the operators of funeral homes conducting in excess of 85 funerals a year (the Baues did 130 funerals in the preceding year), and that document was discussed. The Baues were familiar with it because a similar contract had been presented to them five years previously but had not been signed:

After some discussion, including the point that under the contract neither Arthur nor David could do embalming so long as they remained as owners, the Baues suggested they needed further time to consider the matter. The union acquiesced and it was specifically agreed that another meeting would be held at the funeral home on April 25 for further negotiations.

The following Monday, April 23, Smith returned to the funeral home where he was handed the following letter:

'Dear Mr. Smith:

'Since we have not received the letter of resignation from you, which you advised us on April 19, 1962 you would send us on April 20, we wish to advise you that your employment by Arthur C. Baue and David C. Baue is considered terminated by us as of April 20, 1962.

Very truly yours,

s/ Arthur C. Baue

s/ David C. Baue'

Although the foregoing states unequivocally that the reason for the discharge was the fact that Smith had failed to send the back-dated letter of resignation, the Baues testified that the reason stated was not the sole cause for Smith's discharge; that another was that he had not been truthful and candid with them in that he had failed to disclose the facts but, on the contrary, had deceived them concerning his contacts with the union.

Smith informed Van Fossan of the letter of discharge, whereupon the union directed and its attorney wrote the following letter to Arthur C. Baue Funeral Home, dated April 24th:

'Local 21301, Embalmers Federal Labor Union, AFL-CIO protests your unfair action in discharging from your employment embalmer John Clay Smith.

'We ask that you set a time, date and place for a meeting to discuss settlement of this issue. Local 21301 intends to use the legal and economic measures available, including picketing, to obtain a remedy of the said unfair action.'

On April 25 the union established a picket line at the funeral home consisting (at least shortly after its installation) of one picket at a time carrying a sign...