Binder v. Construction and General Laborers Local Union No. 685

• Decision Date: 05 October 1957
• Docket Number: No. 40520,40520
• Parties: Albert BINDER, Lawrence Caldwell, Jim Davenport, Lawrence Einhaus, Irl Eppler, Juan Esparza, Roger A. Myers, David Hasker, Andrew Herrman, Elmer Herrman, Gilbert Herrman, Roy D. Langley, Lawrence Nightingale, I. V. Norwood, Joe Sandoval, Don Rider, Bruce Johnson, Ernest W. Shannon, Lloyd E. Steerman, Robert Streit, Leland Sutton, Ronald G. Sutton, Emery Wayne Turner, Gerald B. Webb, Frank Jacobs, Donald Janssen, Eldon Janssen, Oscar King and Gary Webb, Appellees, v. The CONSTRUCTION AND GENERAL LABORERS LOCAL UNION NO. 685, of Salina, Kansas, an unincorporated association; William Scholl and C. S. Harper, as individuals and as officers and members of said Union and representative of the class of members thereof; John Doe and Richard Roe, as individuals and as officers, representatives, and members of said Union whose names and addressed are unknown and representative of the class thereof, Appellants.
• Court: Kansas Supreme Court

Page 371

317 P.2d 371

181 Kan. 799

Albert BINDER, Lawrence Caldwell, Jim Davenport, Lawrence Einhaus, Irl Eppler, Juan Esparza, Roger A. Myers, David Hasker, Andrew Herrman, Elmer Herrman, Gilbert Herrman, Roy D. Langley, Lawrence Nightingale, I. V. Norwood, Joe Sandoval, Don Rider, Bruce Johnson, Ernest W. Shannon, Lloyd E. Steerman, Robert Streit, Leland Sutton, Ronald G. Sutton Emery Wayne Turner, Gerald B. Webb, Frank Jacobs, Donald Janssen, Eldon Janssen, Oscar King and Gary Webb, Appellees, v. The CONSTRUCTION AND GENERAL LABORERS LOCAL UNION NO. 685 of Salina, Kansas, an unincorporated association; William Scholl and C. S. Harper, as individuals and as officers and members of said Union and representative of the class of members thereof; John Doe and Richard Roe, as individuals and as officers, representatives, and members of said Union whose names and addressed are unknown and representative of the class thereof, Appellants.

No. 40520.

Supreme Court of Kansas.

Oct. 5, 1957.

Syllabus by the Court

1. Where the objective of peaceful picketing is to coerce or intimidate the employees either (a) directly to become members of the union or, in the event of their refusal to join, to injure the employees in their right to work and earn a livelihood, or (b) indirectly by coercing, intimidating and inducing the employer to coerce or intimidate its employees to become members of the union or, in the event of its refusal to in any way interfere with the rights of employees to join or not to join a labor organization, to injure the employer in its business; it is held that such picketing is unlawful under Kansas law even though conducted solely for organizational purposes.

2. Under G.S.1955 Supp., 44-814, the nonunion employees on a construction project are parties in interest and aggrieved under the facts set forth in Syllabus No. 1, an may properly bring an action in the district court to enjoin a union from such unlawful labor practices.

3. Industrial picketing is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated, and a state may enjoin acts and conduct which are an abuse of the right to picket rather than a means of peaceful and truthful publicity.

4. When evidence is attacked by demurrer, the court must accept all of the evidence as true, give it the benefit of all inferences that may be properly drawn therefrom, consider only such portions thereof as are favorable to the party adducing it, disregard that which is unfavorable, and weigh no contradictory part or differences between direct and cross-examination.

5. Where a trial court has made findings of fact and conclusions of law thereon, which either included or indicated a judgment, the same are not subject to review on appeal in the absence of a motion for new trial, lacking which the only question left for appellate review is the sufficiency of the findings and conclusions to support the judgment.

6. Where the judgment rendered by the trial court is supported by the facts in the case, and must necessarily have been rendered under the law on the facts presented, it will not be reversed because the trial court adopted a wrong theory of the law, and based its judgment on such erroneous theory.

7. Congress has vested exclusive jurisdiction in the National Labor Relations Board and empowered it to prevent any person from engaging in any unfair labor practice affecting (interstate) commerce. Whether an unfair labor practice, which is either protected or prohibited by the Labor Management Relations Act, 1947, and by the State statutes, affects (interstate) commerce is a question of fact upon which jurisdiction rests. An application for relief in a State court concerning an unfair labor practice empowers the State court to determine this question of fact from the evidence where State jurisdiction is challenged.

8. Where no evidence appears in the record disclosing that interstate commerce is affected, the local character of a school building project involving employers and employees engaged in the building trades cannot be declared to affect (interstate) commerce as a matter of law.

George E. McCullough, Robert L. Kimbrough and Leon W. Lundblade, Topeka, were on the briefs for appellants.

Thomas M. Lillard, Jr., Salina, argued the cause, C. L. Clark and James P. Mize, Salina, were with him on the briefs for appellees.

SCHROEDER, Justice.

This is an appeal in equity from an order of the trial court granting an injunction, both temporary and parmanent, against picketing for organizational purposes.

The appellees (hereafter plaintiffs) are twenty-nine individual nonunion workmen who were employed by Jarvis Construction Company (hereafter Jarvis), prime contractor, in the construction of a Fine Arts Building at Marymount College in Salina, Kansas. The plaintiffs are all of Jarvis' employees on the job except two.

The appellants (defendants below) are The Construction and General Laborers Local Union No. 685, of Salina, Kansas, an unincorporated association, William Scholl and C. S. Harper (as individuals and as officers) and members of the said Union, for convenience hereafter collectively referred to as the Union (Local No. 685) or defendants.

The parties stipulated that the evidence and testimony submitted on the hearing for a temporary injunction be considered by the court in its determination as to whether or not a permanent injunction should issue. The defendants interposed a demurrer to the evidence of the plaintiffs and the trial court took the ruling under advisement requesting briefs and suggested conclusions of fact and conclusions of law. The defendants then rested their cause without presenting any evidence or testimony other than a stipulation entered into by counsel for the parties subject to objection of the plaintiffs that the facts stipulated were irrelevant and immaterial to the action.

The trial court overruled the demurrer to the evidence and granted both the temporary and permanent injunctions in accordance with conclusions of fact and conclusions of law entered July 26, 1956. Without filing a motion for new trial the defendants appealed from the judgment, rulings, findings, decisions and orders made on July 26, 1956, specifying as error:

'1. Overruling of defendants' Demurrer to Evidence.

'2. That the judgment is against the weight of the evidence, and considering all of it to be true, the judgment is erroneous as a matter of law.'

When evidence is attacked by demurrer, the court must accept all of the evidence as true, give it the benefit of all inferences that may be properly drawn therefrom, consider only such portions thereof as are favorable to the party adducing it, disregard that which is unfavorable, and weigh no contradictory part or differences between direct and cross-examination, and if so considered there is any evidence in the record before this court which sustains plaintiffs' case, the demurrer must be overruled. Balin v. Lysle Rishel Post No. 68, 177 Kan. 520, 280 P.2d 623; Brent v. McDonald, 180 Kan. 142, 300 P.2d 396; and Hamilton v. Ferguson, 181 Kan. 474, 312 P.2d 232.

Under the foregoing rules the evidence establishes that:

(1) Jarvis was the prime contractor on a Fine Arts Building at Marymount College located in Salina, Kansas, which was in the process of construction on May 23, 1956.

(2) The plaintiffs are twenty-nine individual nonunion workmen employed by Jarvis on the Marymount construction project. They are all of Jarvis' employees on this project except two, thus comprising a substantial majority. Some are masons and the remainder are mason tenders or common laborers. All are properly subject to organization, except that the masons are not eligible to join the defendants (Local No. 685).

(3) The plaintiffs are gainfully employed in a lawful business, conducted by Jarvis, for the purpose of earning a livelihood for themselves and their families. They desired to continue in their work with an employer who desired to continue their services.

(4) The construction project at Marymount College, in addition to Jarvis' employees, involved gypsum deck installation men, metal lathers, plumbers, electricians, sheet metal men, glaziers and carpenters, who were employed by subcontractors and other prime contractors on the Marymount project, other than Jarvis. These workmen were all union tradesmen. None were members or affiliated with the defendants (Local No. 685).

(5) The Union (Local No. 685) established a picket line, by placing one picket with a banner reading:

'Laborer Employees of Jarvis Construction Co. are invited to join Laborers Local Union No. 685 to obtain & help maintain union wages & working conditions. Labor Local No. 685, 148 1/2 S. Santa Fe, Salina, Kansas, Phone 70077'

at the Marymount College construction site on May 23, 1956, at 7:30 in the morning. The picket was left on until 4:30 in the afternoon. This routine of picketing was repeated each working day until Jane 5, 1956.

(6) The purpose of the picketing conducted by the Union (Local No. 685) was to organize the nonunion employees of Jarvis, ultimately to have Jarvis enter into collective bargaining and negotiations with the Union (Local No. 685).

(7) The picketing has at all times been peaceful picketing by the same individual, an employee of the Union (Local No. 685) and in no way associated or affiliated with any employer or other Union having workmen on the Marymount construction project, thus properly termed stranger picketing.

(8) The immediate effect and result of the picket line was that all union personnel refused to work on the Marymount project, Jarvis' foreman testified:

'* * * All of the union workmen reported for work on May 23, 1956 and appeared to be ready to go to work at that time. When they saw the picket up...