Crescent Planing Mill Co. v. Mueller

• Citation: 123 S.W.2d 193
• Decision Date: 03 January 1939
• Docket Number: No. 25010.,25010.
• Parties: CRESCENT PLANING MILL COMPANY, PLAINTIFF, RESPONDENT, v. JULIUS MUELLER ET AL., DEFENDANTS, APPELLANTS.
• Court: Court of Appeal of Missouri (US)

123 S.W.2d 193

CRESCENT PLANING MILL COMPANY, PLAINTIFF, RESPONDENT, v. JULIUS MUELLER ET AL., DEFENDANTS, APPELLANTS.

No. 25010.

St. Louis Court of Appeals. Missouri.

Opinion filed January 3, 1939.

Appeal from Circuit Court of County of St. Louis. — Hon. Julius R. Nolte, Judge.

REVERSED AND REMANDED.

Grimm, Mueller & Roberts and Paul Dillon for appellants.

(1) It is not an enjoinable offense for the members of a labor union to determine not to work with or on products manufactured by a nonunion manufacturer, nor for the officers or members of labor unions to advise or notify employers, or even customers of such manufacturer, of their decision. Natl. Protective Assn. etc. v. James M. Cumming, 170 N.Y. 315; 4 St. Louis Law Review, quoting from Arthur v. Oakes, 63 F. 10; Amer. Steel Fdys. etc. v. Tri-City Central Trades Council, 275 U.S. 184; George Grant Constr. Co. v. St. Paul Bldg. Trades Council, 136 Minn. 167; Gill Engr. Co. v. Doer (D.C.), 214 Fed. 112; Brott v. Burgess, 72 N.J. Equity 181; McGauley v. Tierney, 19 R.I. 255; Aeolian Co. v. Fischer, 27 F. 560; Wolfstein v. Fashion etc., 280 N.Y.S. 361; Meir v. Speer, 96 Ark. 618; Lisse v. Local Union, 31 Pac. (2d) 314 (Cal.); Seymour Ruft & Sons v. Union, 164 Atl. (Md.) 752; Bossert & Dhury, 221 N.Y. 342; Paine Lumber Co. v. Neal, 244 U.S. 459; Clark Lunch Co. v. Union, 22 Ohio App. 265. (2) The case of Lohse Patent Door Co. v. Fuelle, 215 Mo. 430, is not decisive of this action. Lohse Patent Door Co. v. Fuelle, 215 Mo. 421; Gray v. Bldg. Trades Council, 91 Minn. 179; Hopkins v. Oxley Stove Co., 83 F. 912; Ertz v. Produce Exchange, 79 Minn. 140; Beck v. Teamsters Protective Union, 118 Mich. 497; Barr v. Essex Trade Council, 53 N.J. Equity 101. (3) Even if the dictum in the Lohse case, supra, be determined as applicable in the case at bar, it represents an outworn theory no longer consistent with modern law. Norris-La Guardia Act (Mar. 23, 1932, c. 90, sec. 1, 47 Stat. 70, 29 U.S. Code, sec. 101); Apex Hosiery Co. v. Leader et al., 20 F. Supp. 138; Senn v. Tile Layers' Union, 268 Wis. 270; Senn v. Tile Layers' Union, 57 Sup. Ct. 857; William Filene's Sons Co. v. Fashion Originators etc., 90 F. 556; Levering v. Morrin, 71 F. (2d) 264. (4) General allegations of conspiracy do not constitute such adequate pleading of facts as to properly constitute elements of a cause of action. Seegers v. Marx-Haas (Mo.), 66 S.W. (2d) 526. (5) It is relevant and material to show the reasonableness, workability and use of similar trade rules in other industries. Zaat v. Bldg. Trades Council (Wash.), 20 Pac. (2d) 589.

Sullivan, Reeder & Finley for respondent.

(1) The injunction allowed below was proper, and should be affirmed. (a) The case is controlled by the decision of this court in, Lohse Patent Door Co. v. Fuelle, 215 Mo. 430. (b) The rule there declared has been reaffirmed. State ex rel. v. Assurance Companies, 251 Mo. 291; Hughes v. Motion Picture Operators, 282 Mo. 316; Stewart Land Co. v. Perkins, 290 Mo. 202. (c) It has been followed and applied by the courts of appeal. Foundry Co. v. Moulders Union, 177 Mo. App. 88; Clarkson v. Laiblan, 178 Mo. App. 709, S.C. 202 Mo. App. 693. (d) It has been cited with approval elsewhere. Gompers v. Bucks Stove & Range Co., 221 U.S. 437; L.R.A. 1916C 991. (2) If a boycott be illegal, as all the authorities declare, it cannot be legalized by a by-law, nor enforced by the concerted withdrawal of those concerned therein from the service of those who patronize the plaintiff, in order to destroy such patronage. Lohse Patent Door Co. v. Fuelle, supra; Foundry Co. v. Moulders Union, supra; Clarkson v. Laiblan, supra; Burke v. Fay, 128 Mo. App. 693; Parker Paint Co. v. Union (W. Va.), 16 A.L.R. 228; Shine v. Fox Bros. Mfg. Co., 156 Fed. 337 (C.C.A. 8); Cases cited in brief of counsel in the Lohse case, 215 Mo. 424. (3) The cases cited by appellants do not tend to support their contention. (a) Senn v. Tile Layers Union, 268 Wis. 270, s.c., 301 U.S. 472, rests upon a Wisconsin statute without existence or influence in this jurisdiction. (b) American Steel Foundries v. Tri-Cities Union, 257 U.S. 184, was concerned only with the scope of an act of Congress respecting interstate commerce, but it cites decisions arguendo, which are contrary to the claim of appellants. (c) The Maryland court adheres to the rule that a concerted strike is not permissible except as against one with whom the union has a direct dispute, and that it may not be resorted to in order to compel a cessation of business relations by the employer with another. Luecke v. Clothing Cutters, 77 Md. 396; My Maryland Lodge v. Adt, 100 Md. 238; Bricklayers Union v. Ruff, 160 Md. 495; Seymour Ruff & Sons v. Bricklayers Union, 164 Atl. 757. (d) The New York court has apparently gotten itself in a situation of hopeless confusion on this question. Curran v. Galen, 152 N.Y. 33; National Protective Assn. v. Cummings, 170 N.Y. 321; Bussert v. Dhuy, 221 N.Y. 342; Auburn Draying Co. v. Wardell, 227 N.Y. 1.

BENNICK, C.

This is a suit for an injunction to restrain defendants, who are the officers, agents, and members of the local District Council of the United Brotherhood of Carpenters and Joiners of America, from making effectual an alleged boycott of the products of plaintiff, Crescent Planing Mill Company, which has its mill or plant at 3237 North Ninth Street in the City of St. Louis, and is engaged in the manufacture and sale, in the metropolitan area of said city, of millwork and cabinet-work made use of primarily in the erection of buildings.

The District Council, which is composed of delegates selected by and from the membership it serves and represents, is the governing body for the local branches of the union, which is made up of skilled workers employed both in the milling and manufacture, and in the erection and installation of the types of wood products over which the union claims and asserts jurisdiction.

It appears that plaintiff, Crescent Planing Mill Company, is one of about twenty mills in the St. Louis territory which have always operated on the basis of open shop, by which is meant that their employees are hired without regard to their union affiliations and without discrimination being made as between those who do and those who do not belong to the union. Indeed in plaintiff's own case all but two of its twenty-five employees were either members of the union or else had become so by the time of the trial below, though for want of an agreement with the union obligating it to do so, plaintiff did not pay the union wage scale (a minimum of sixty-five cents an hour), nor did it operate its mill according to union regulations and trade rules.

It was shown that general contractors and builders constituted the principal customers of the mill companies such as plaintiff, and that the products of the mills were customarily sold by means of competitive bidding on the part of all the companies in response to specifications submitted by the contractor who was about to undertake a particular job. It was also shown that labor cost was usually figured at about forty per cent of the total cost of the finished product, with the necessary result that nonunion mills, which paid their employees (as plaintiff did) an average wage of forty or forty-five cents an hour, enjoyed a distinct advantage in such competitive bidding over the union mills operating in the same territory, which, by reason of their contracts with the union, were obliged to pay their employees the minimum union wage of sixty-five cents an hour.

Shortly after the NRA went into effect the union set about to remedy this situation which obviously reacted to the great disadvantage of its members who were employed in union mills, and along in 1935 entered upon a somewhat active, but entirely peaceable, campaign to unionize those mills which were operating on the basis of open shop. An initial step in the campaign was that of inducing the non-union employees of such mills to become members of the union, and to that end the District Council had agents stationed at the entrances to plaintiff's plant (and presumably at the entrances to the plants of the other open shop mills), who handed out dodgers or handbills to the employees inviting them to attend meetings of the union which were advertised as being open to persons not members of the organization.

Contemporaneously with the efforts being made towards inducing all the employees of the open shop mills to come into the organization, and as a further step towards bringing about the unionization of all the mills, the District Council, in June, 1935, promulgated a trade rule, theretofore regularly adopted by a majority of the votes of all the members in the district, that effective January 1, 1936, the members of the union engaged in the building and construction part of the industry would not thereafter handle or erect millwork that did not bear the union label of their brotherhood indicative of the fact that such millwork had been manufactured by members of the brotherhood. Incidentally such trade rule merely supplemented a similar rule of many years' standing which forbade members of the union employed in the building and construction part of the industry to handle and erect cabinet work that did not bear the union label; due notice of the extension of the rule to millwork was promptly given both to contractors employing union labor and to mill owners engaged in the manufacture of products to be affected by the rule.

Subsequent to January 1, 1936, the District Council began the enforcement of the rule, at least with respect to millwork purchased after its effective date; and a few instances were shown where contractors who employed union carpenters and had bought their millwork from plaintiff had their operations temporarily interfered with by representatives of the union refusing to permit such union carpenters to handle or erect the materials, not because the...