Cater Const. Co. v. Nischwitz

• Decision Date: 20 May 1940
• Docket Number: No. 7214.,7214.
• Citation: 111 F.2d 971
• Parties: CATER CONST. CO., Inc., et al. v. NISCHWITZ et al.
• Court: U.S. Court of Appeals — Seventh Circuit

111 F.2d 971 (1940)

CATER CONST. CO., Inc., et al. v. NISCHWITZ et al.

No. 7214.

Circuit Court of Appeals, Seventh Circuit.

April 30, 1940.

Rehearing Denied May 20, 1940.

John J. Moreschi, of Chicago, Ill., Vincent Morreale, of Washington, D. C., and David Fisher and Howard Ellis, both of Chicago, Ill., for appellant.

Emory J. Smith, of Chicago, Ill., and George B. Gillespie, Edmund Burke, and Louis F. Gillespie, all of Springfield, Ill., for appellee.

Before MAJOR and KERNER, Circuit Judges, and LINDLEY, District Judge.

MAJOR, Circuit Judge.

This is an appeal from a temporary injunction order, entered by the District Court December 13, 1939, enjoining the defendant from interfering by threats, violence and other unlawful acts, with the construction by the plaintiffs of certain rural electrification projects in Southern Illinois.

Plaintiffs are the Cater Construction Company, Inc., a corporation (hereinafter referred to as the "Cater Company") and the Donovan Contracting Company (hereinafter referred to as the "Donovan Company"). The defendants are named in their individual capacities, as well as members and representatives of various local unions of the International Hod Carriers Building and Common Laborers Union of America (hereinafter referred to as the "Common Laborers Union"), and of the International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America (hereinafter referred to as the "Teamsters Union").

Primarily, defendants' appeal raises two questions, (1) are the findings of fact made by the District Court sustained by substantial evidence? and (2) do the pleadings, findings and decree conform to the provisions of the Norris-LaGuardia Act, 29 U. S.C.A., §§ 101-115)? Defendants also argue that the court erred in the admission and exclusion of testimony.

A motion was made to dismiss plaintiffs' bill of complaint on the grounds that the allegations thereof were insufficient to show compliance with the Norris-LaGuardia Act, which Act, plaintiffs concede, is applicable. Section 107 of the Act precludes the issuance of an injunction in a labor dispute except upon the conditions specified therein. In substance, it must be alleged and proved (a) that unlawful acts have been threatened or committed unless restrained, (b) that substantial and irreparable injury to complainant's property will follow, (c) that as to each item of relief granted, greater injury will be inflicted upon the complainant by the denial of relief than will be inflicted upon the defendant by the granting of relief, (d) that complainant has no adequate remedy at law, and (e) that the public officers charged with the duty to protect complainant's property are unable or unwilling to furnish adequate protection. Section 108 prohibits injunctive relief to a complainant who has failed to make every reasonable effort to settle such dispute either by negotiation, mediation or voluntary arbitration. Admittedly, the allegations of the bill may be said generally to allege compliance in the language of the statute. It is argued by the defendants that these allegations merely amount to the conclusions of the pleader and, that there was, therefore, a failure to state a cause of action. We are unable to discuss in an opinion of reasonable length the allegations of the bill intended to show compliance with the Act. The argument made regarding the insufficiency of the bill to show conformity with Section 107(e) is typical of that concerning other requirements. The bill discloses where the work was being done and where protection was sought as to both the Cater Company and the Donovan Company projects. Thus, it was shown in each instance the public officers charged with the duty of protecting plaintiffs' property. As to the Cater Company, the bill alleged: "That the Cater Co. `through its representatives, requested the Chief of Police of the City of Edwardsville, Illinois, to give it and its employees protection against mobs assembled by said persons, and was notified by said Chief of Police on said occasion that the best thing Plaintiff could do to prevent violence would be to accede to the demands of the Defendants' union; that thereafter this Plaintiff, through its representatives, applied to the Sheriff of Madison County for protection for its employees and property, and on said occasion was notified by said Sheriff that he could not incur the expense of deputizing enough persons to give the protection needed, and, by reason of the premises the Plaintiff avers that the public officers charged with the duty to protect Plaintiff's property and employees on said project are unable or unwilling to furnish adequate protection.'"

A similar allegation was made with reference to the Donovan Company and the sheriff of the appropriate county. We think such allegation was sufficient. It may be true, as argued, that the allegation represents the conclusion of the pleader, yet we think it amounts to an ultimate fact. It is a familiar rule of pleading, particularly applicable here, that evidence by which an allegation is sought to be established need not be pleaded. Apparently defendants' contention would require a narrative of all communications, oral or written, between the one seeking protection and the officers, from whom the protection was sought. Such matters, however, are for proof and we doubt the propriety, much less the necessity, of their allegation. Rules of Civil Procedure for the District Courts, 28 U.S.C.A. following section 723c, require that "each averment of a pleading shall be simple, concise, and direct." Section 8(e) (1). Substantially the same defects are claimed as to the allegations concerning other requirements of the Act. We conclude that the court properly overruled the motion to dismiss the bill. Donnelly Garment Co. v. International L. G. W. Union, 8 Cir., 99 F.2d 309, 312.

Concerning the facts, it appears sufficient to give a summary which largely we take from the findings as made by the District Court. Plaintiffs had contracts for the construction of certain rural electrification projects; the Cater Company in Madison County and the Donovan Company in Jackson County, Illinois. The contract of the former called for the construction of a power line for the Southwestern Electric Co-operative, Inc., in Madison County, and the latter for the construction of a similar project for the Egyptian Electric Cooperative, Inc., in Jackson County. These contracts were made pursuant to the provisions and conditions of the Rural Electrification Act of 1936, 7 U.S.C.A. § 901 et seq., under which the Federal Government loaned money to the co-operatives for the purpose of financing such projects. The Federal agency required, among other things, a scale of minimum wages, determined by it, to be paid persons employed on such projects and, that maximum hours of labor be designated, reports of which were required to be submitted to the United States Department of Labor.

In connection with its contract, the Cater Company, in April, 1939, made a verbal agreement with the International Representative of the International Brotherhood of Electrical Workers of America (hereinafter referred to as the "I.B.E.W."), by which the latter was obligated to furnish both the skilled and unskilled labor on such project. The contract provided the rate of pay per hour for each class of labor. At about the same time the Donovan Company made a similar contract in writing with I.B.E.W. for all of its work in Southern Illinois, including the project here involved. At the time of the various occurrences complained of, the plaintiffs were operating under such construction and labor contracts. It is conceded that none of the defendants was or ever had been in the employment of the plaintiffs. Soon after the making of the Cater Company contract, the president of the company was notified by a representative of the Common Laborers Union that it would be required to employ members of such union for common labor on the project, or the work would not be done. The officials of the Cater Company were told on several occasions that members of the Teamsters Union would operate their trucks and, that members of the Common Laborers Union would do their ground work, or they would not be permitted to operate, and if the company proceeded contrary to such instructions, there would be a fight. On October 17, 1939, twelve or fifteen carloads of men, including at least five of the defendants,¹ came on the Cater Company job, threatened the men who were at work, used vile and profane language, and committed a brutal assault upon one of such employees. They were requested and warned to quit work. By reason of intimidation and fear, they quit their work, which was not resumed until after the hearing in the District Court.

Under the Cater Company contract with the Southwestern Electric Cooperative, Inc., the project was to be completed within 100 calendar days, and in default thereof, a penalty of $25 per day was imposed for each day of delay beyond the completion date. At the time the work was stopped, the Cater Company had an aggregate of $60,000 worth of material on the job and $30,000 worth of equipment, with an expense of $125 for each day it remained idle.

The superintendent and general chairman of the Cater Company, following the threats made by the defendants, and before the violence of October 17th, made application to the sheriff of Madison County for protection. The sheriff stated that he knew there was trouble between the parties but that it was the policy of his office not to do anything until something happened; that unless some crime or assault was reported, he would not act. He further stated that he did not have the facilities or financial means to patrol these different jobs throughout the county. The warehouse of the Cater Company, where the supplies were kept and where their employees assembled in the mornings before leaving for their work, mostly...