Culinary Workers' Union No. 331 v. Fuller

• Decision Date: 29 April 1937
• Docket Number: No. 3114.,3114.
• Citation: 105 S.W.2d 295
• Parties: CULINARY WORKERS' UNION NO. 331 et al. v. FULLER et al.
• Court: Texas Court of Appeals

Page 295

105 S.W.2d 295

CULINARY WORKERS' UNION NO. 331 et al. v. FULLER et al.

No. 3114.

Court of Civil Appeals of Texas. Beaumont.

April 29, 1937.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Action for injunction by W. R. Fuller and others against the Culinary Workers' Union No. 331 and others. From a judgment for plaintiffs, defendants appeal.

Affirmed.

V. J. Wistner, of Port Arthur, for appellants.

Lipscomb & Lipscomb, of Beaumont, for appellees.

WALKER, Chief Justice.

On the 1st day of September, 1936, on petition and prayer of appellees, W. R., J. P., and L. W. Fuller, the Fifty-Eighth district court of Jefferson county entered a final judgment against appellants, Culinary Workers' Union Local No. 331, J. William Le Blanc, John Etie, E. Rabey, and Pearl Louis, their agents, servants, and representatives, perpetually enjoining them from picketing appellees' restaurant and place of business in the city of Port Arthur. All evidence received on the trial had support in the pleadings.

Appellants' only proposition against this judgment is that it "clearly amounts to a prohibition against peaceful picketing and is contrary to the statutes of the state of Texas and to the declared public policy of the State"; in support of their proposition they cite the following articles: Revised Statutes of the state of Texas;

Art. 5152: "It shall be lawful for any and all persons engaged in any kind of work or labor, manual or mental, or both, to associate themselves together and form trades unions and other organizations for the purpose of protecting themselves in their personal work, personal labor, and personal service in their respective pursuits and employments."

Art. 5153: "It shall be lawful for any member or members of such trades union or other organization or association, or any other person, to induce or attempt to induce by peaceable and lawful means, any person to accept any particular employment or to enter or refuse to enter any pursuit or quit or relinquish any particular employment or pursuit in which such person may then be engaged. Such member or members shall not have the right to invade or trespass upon the premises of another without the consent of the owner thereof." and Thomas v. International Seamen's Union (Tex.Civ.App.) 101 S.W.(2d) 328, 332.

On the facts of this case we overrule appellants' proposition. Appellees have in their employment about 25 men and women. They have discharged no employee nor retained one objectionable to the other employees. The employees are satisfied with appellees' government, with their wages, which for waiters and waitresses exceeded the union scale, their working conditions, and the conditions of their employment. There was no contractual relation of any nature whatever between appellees and appellants, nor, on the record, between appellants and appellees' employees; appellees conceded to their employees the right to join the union. On the 19th of August, 1936, appellants, through their agents, asked appellees to sign a contract with them to "unionize" their restaurant, and to employ only union labor. Appellees refused to sign the contract, and the next morning appellants established a picket line in front of appellees' place of business. The pickets carried placards on their backs reading: "We appeal to employees of Non-Union Cafes to strike for union wages"; "Help us to get our wages; don't patronize this cafe. Help us to increase our wages; don't patronize this cafe"; "We appeal to all employees of Non-Union cafes to strike for union wages." Appellee R. W. Fuller testified that the pickets came "right up in front of the door trying to keep people out; almost blocked the door continually; * * * Well, they talked to people, `Don't go in there; it is unfair,' and write down names on pieces of paper." When picketing first began cooks and waiters were used as pickets; later a different type of picket.

"* * * Q. What type of men is now picketing your place? A. Sea men, they seem to be.

"Q. Well, are they men known to have any property at all? A. I think not, no sir; wouldn't think so.

"Q. Are they men who work? A. I haven't seen them work.

"Q. Do you know any particular persons who are picketing your place of business? A. Yes, sir.

"Q. What are their names? A. Well, they have one there now named Koch."

As to the effect of the picketing on their business this witness testified further as follows:

"Q. Have you lost any patronage by reason of the picketing Mr. Fuller? A. Yes, sir.

"Q. What is the reason for that? A. Picketing being going on; people afraid to come in on account of the pickets being there.

"Q. There are a great many labor unions in Port Arthur, are there? A. Yes, sir.

"Q. And a good many people who belong to those unions? A. I guess so.

"Q. With respect to the Barbers' Union, would they fine members of that union who go into or patronize your place? A. I think so.

"Q. You have been told that? A. I really don't know but I have been told that. * * *

"Q. Did it interfere with your business in your cafe? A. Certainly.

"Q. To what extent? A. About one fourth or one third.

"Q. Have your receipts dropped off any? A. About one third or one fourth."

Mr. M. F. Hill, president of the Port Arthur Trades & Labor Council, gave the following testimony:

"Q. What was the purpose of starting these pickets on this Fuller's Cafe? A. Ten cafes had signed a union contract, thereby increasing wages. In certain instances wages were getting as low as $5.00 and some instances they were getting as low as $4.50 at one particular restaurant. Three years ago the union was formed —

"Q. I asked you the question what was the purpose of picketing Mr. Fuller's restaurant? A. You want a direct answer?

"Q. Yes. * * * A. The idea in picketing was to obtain a signed contract, thereby getting the word of the workers themselves as to the wages they were getting.

"Q. In other words to force them to sign a contract? A. I would say yes.

"Q. The purpose of the picketing was to either force them to sign it or injure their business for failure to sign it. A. I wouldn't say it had any intention of injuring Mr. Fuller."

The facts of this case fall squarely within the holding of the Fort Worth Court of Civil Appeals in Webb v. Cooks', Waiters' and Waitresses' Union, No. 748, 205 S.W. 465, 469 (writ of error refused by the Supreme Court), where, on identical facts, the court said:

"It is apparent that article 5245 [new number 5153, copied above] is without application here. The right and privileges there granted apparently relate to cases of the ordinary strike so familiar to the public, where the controversy is between an employer and his employees. But there is no controversy of the kind here. So far as the record shows, appellant and his employees are in entire harmony. Appellant has discharged no employee nor retained one objectionable to the other employees. Nor does it appear that any one or more of appellan...