Construction & General Labor Union v. Stephenson, 5955.
| Decision Date | 04 April 1949 |
| Docket Number | No. 5955.,5955. |
| Citation | 221 S.W.2d 375 |
| Parties | CONSTRUCTION & GENERAL LABOR UNION LOCAL No. 688, et al. v. STEPHENSON. |
| Court | Texas Court of Appeals |
Appeal from District Court, Potter County; W. E. Gee, Judge.
Suit by H. I. Stephenson against the Construction & General Labor Union Local No. 688, and others, to enjoin defendants from picketing premises on which plaintiff was erecting a building, and for other relief. From the judgment, defendants appeal.
Judgment affirmed.
Mullinax, Wells & Ball, Dallas, John H. Merchant and Jerome J. Pope, Amarillo, Leigh Fischer, Borger, for appellants.
E. Byron Singleton, Amarillo, for appellee.
Appellee, H. I. Stephenson, was engaged in the house-moving business at Amarillo and had been so engaged as an independent contractor for many years before he filed this suit against appellants. He maintained an organization consisting of a number of employees and paid them for their time when they were not engaged, as well as when they were engaged, in his work of moving houses in order to maintain the organization and be able at all times to perform such work when it was available. He testified that the work of moving houses was skilled labor and that men without experience in that particular work could not be relied upon to perform the many and varied duties which it entailed. On the 25th of February, 1948, he entered into a contract with the Commissioners' Court of Potter County under which he agreed to dismantle and move two large airplane hangers from Dalhart to Amarillo and re-erect them into an arena at the Tri-State Fair Grounds upon foundation and structural steel as furnished by the county. The work was to be completed within 150 working days for which appellee was to be paid the sum of $45,000. The contract provided that, if the work was not completed within the time specified, $25 per day would be deducted from any money due appellee for such additional days as were consumed in completing the contract. The work of dismantling the hangers, or cutting them into convenient sections, and transporting them to Amarillo was completed in September, 1948, at which time the re-erection, or putting them back together, began. The crew maintained by appellee and used in the work involved were not members of any labor union and there was no organized house-movers' union at Amarillo or otherwise available to them. In re-erecting the hangers at Amarillo it was necessary to lift to a height of about fifty feet and put in place fourteen steel trusses of approximately 18,500 pounds each, weld and bolt them together and attach them to other parts of the structure. Business agents of the local Iron Workers' Union requested appellee to hire skilled union men to perform this work. The request was declined by him and the agents and representatives of the unions and the council then suggested that the men employed by appellee as house-movers either organize themselves into a labor union or join the Iron Workers, Carpenters and other unions available. Appellee told them he had no objection to either of these plans and that he would assemble his employees so that the union agents could present the proposition to them. This was done, and the employees of appellee voted not to organize themselves into a union nor to join the other unions. Appellee testified that his employees usually performed all of the work necessary to move a building from one place to another, and to re-assemble those buildings which were of such size as to require dismantling or were cut into sections in order to facilitate the work or make it possible to remove them properly. He said he and his employees had had experience in "rigging iron" or placing iron work in buildings, though he had never before done so in a building as large as this one.
Appellee paid his employees various wages, some of them receiving $1.15 per hour, others more. The union wage scale for those who performed regular work similar to some of that which was necessary for the re-erection of the building, such as carpenter work, heavy iron work, etc., was $2.00 per hour. In order to complete the re-erection of the hangers and convert them into an arena, it was necessary that certain carpenter work and welding be performed and, to do this work, which was not included in appellee's contract, union members were employed at the union scale of wages and paid by appellee, but he was reimbursed therefor by the commissioners' court.
The picketing was peaceful and consisted of one man walking to and fro near the building with the banner exposed. In addition to the picket, the Iron Workers' Union and the Amarillo Building Trades Council, in a regular meeting, adopted resolutions declaring appellee to be unfair to organized labor. When the picket was established, the labor unions and their officers informed the union carpenters and welders that they were violating the rules of the union by working upon a non-union job with men who were not members of any labor union. Some of them thereafter declined to perform further work but one of them who continued to work was cited to appear and show cause why he should not be disciplined for working on a job being erected by appellee by the use of non-union men. A trial by the Union resulted in a fine being assessed against him for thus violating the rules of the Unions and the Council. The picketing resulted in appellee's filing this suit for an injunction against the Amarillo Building Trades Council and the labor unions composing it, and for damages which appellee alleged he had suffered by reason thereof. In the trial of the case he waived his prayer for damages and requested the court to consider the evidence as to damages only as a basis for the injunction.
The case was submitted to the court, without the intervention of a jury, and resulted in a judgment in favor of the appellee, enjoining the appellants from picketing the premises closely adjacent to the erection of the arena and from congregating or assembling in the vicinity thereof; from placing banners or signs thereabout; from publicizing at or near the premises a protest respecting the appellee; and enjoining them from thereafter establishing a picket or pickets at or near the premises "unless at such time controversy then exists between plaintiff and the majority of his employees concerning wages, hours or conditions of employment, or a controversy exists between plaintiff and the majority of his employees belonging to any one labor union concerning wages, hours or conditions of employment." Obviously the judgment was based upon Article 5154f, Vernon's Revised Civil Statutes.
The court found that appellants, acting in concert, caused the picketing of the premises at a time when there was no controversy existing between appellee and any of his employees on any matter and none concerning wages, hours or conditions of employment; that the Iron Workers' Union and the Trades Council went on record as finding appellee unfair to organized labor; that, at such time, neither of them nor any of their members were employees of appellee; and that S. B. Perry, who picketed the premises, was never an employee of appellee, but that he was a member of one of the labor unions. It further found that appellee had suffered damages at the time of the trial and that he would suffer further damages unless the injunction was issued.
Appellants duly excepted to the judgment and have brought the case here for review upon the contention that the injunction was improperly issued because it deprives them of their constitutional rights of free speech and free assembly. They contend that Article 5154f, V.R.C.S., Acts of 1947, 50th Legislature, p. 779, ch. 387, is unconstitutional in so far as it purports to authorize the issuance of an injunction in cases of this kind and that the purposes for which appellants picketed the premises were valid and lawful.
Section 1 of Article 5154f provides that it shall be unlawful for any person to establish, participate in, aid or abet a secondary picketing or a secondary boycott as defined in the article. Section 2, subd. d, defines the term "secondary picketing" as being the act of establishing a picket where no labor dispute exists between the employer and his employees. Section 2, subd. e, defines a secondary boycott as being any concerted action by two or more persons to cause injury or damage to any person for whom they are not employees by (2) picketing such person.
At the outset it will be observed that there is no interdependence of economic interests of those engaged in the same industry involved. As we have already said, there was no union of house-movers in Amarillo or vicinity and it is not a question here of non-union house-movers being employed by the appellee to whom he paid wages below the wage scale of any house-mover's union. The undisputed testimony showed that the work and labor of moving houses is an unusual occupation and that a man must be experienced in the matter of setting up and operating jacks, winches and other tools used in the operation. Appellee testified that a man capable of driving a truck, for instance, would not be qualified as a house-mover if he knew nothing...
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Construction and General Labor Union, Local No. 688 v. Stephenson
...any one labor union concerning wages, hours or conditions of employment.' This judgment has been affirmed by the Court of Civil Appeals. 221 S.W.2d 375. No request was made of the trial court to make and file findings of fact and conclusions of law, under Rules 296-299, Texas Rules of Civil......