Dallas General Drivers, Warehousemen & Helpers Local Union No. 745 v. Vilbig Bros.

• Decision Date: 02 December 1949
• Docket Number: No. 14140,No. 745,745,14140
• Citation: 225 S.W.2d 617
• Parties: DALLAS GENERAL DRIVERS, WAREHOUSEMEN & HELPERS LOCAL UNIONv. VILBIG BROS., Inc.
• Court: Texas Court of Appeals

Page 617

225 S.W.2d 617

DALLAS GENERAL DRIVERS, WAREHOUSEMEN & HELPERS LOCAL UNION No. 745 v. VILBIG BROS., Inc.

No. 14140.

Court of Civil Appeals of Texas, Dallas.

Dec. 2, 1949.

Rehearing Denied Jan. 6, 1950.

Mullinax, Wells & Ball, of Dallas, for appellant.

Clark, Coon, Holt & Fisher, of Dallas, for appellee.

CRAMER, Justice.

This is an appeal from the granting, after hearing, of a temporary injunction. Appellee, Vilbig Bros., Inc., as construction contractor, alleged that it was constructing a building known as the Mercantile Commerce Building located on the block bounded by St. Paul, Jackson, Prather, and Commerce Streets in the downtown section of the City of Dallas; also other buildings in and near the City of Dallas.

Appellee claimed that at the time of filing this suit and at the time of filing its trial pleading on May 25, 1949, it owned no trucks and operated no trucks of any kind as a constructiion contractor; that it employed no truck drivers, or any person eligible to membership in appellant union, and that appellant union had been so notified; that notwithstanding such knowledge appellant union set up picket lines and was maintaining a picket line carrying banners, etc.; and further alleged damages, material injury, etc.; also alleged on information and belief inability on part of the union to answer in damages; sought an injunction and, pending final hearing, a temporary injunction against such picketing.

Appellant union answered the application for temporary injunction by general and special denials and, affirmatively, that on or about March 1, 1949 appellee had in its employ approximately 20 truck drivers who were paid substandard wages; that such truck drivers, by their written authority, were represented by the union as their collective bargaining agent; alleged that appellee declined appellant's request to bargain collectively and refused to increase the pay of such employees; that thereafter during the month of March defendant discharged and locked out many of its truck drivers because of their membership in appellant union. The union admitted that it thereafter engaged in peaceful picketing on public streets adjacent to appellee's construction jobs and that its pickets carried banners reading substantially as follows: 'Teamsters Local Union 745, AFL, protests refusal of Vilbig Bros. Construction Co. to recognize and bargain collectively. We represent truck drivers who Vilbig took off this job when we requested that he pay truck drivers the published contractors and union scale.' Appellee, Vilbig Bros., Inc., thereafter filed cause No. 31,497-B in the 44th District Court where a temporary injunction was denied. Appellee then appealed such denial of injunction to this Court, but, before submission, Vilbig Bros., Inc., voluntarily dismissed such appeal and, thereafter, the entire proceeding in the district court.

This second suit was filed after such dismissal of the first suit. The temporary injunction here appealed from temporarily enjoined picketing,-which, after a lapse of time in which appellant sought to negotiate a settlement, had been resumed.

The record of the hearing in this second suit shows that appellee, after dismissal of the first suit and before filing of this second suit, transferred its trucks and truck-driver employees to Vilbig & Vilbig, a partnership composed of Charles A. Vilbig and his brother, J. W. Vilbig, Jr. These partners in Vilbig & Vilbig are the president and secretary, respectively, of the appellee, Vilbig Bros., Inc. The only other officer or stockholder of Vilbig Bros., Inc., is J. W. Vilbig, Sr. (father of the two brothers), who is inactive in the business. The partnership, during all the time here involved, was the owner of the gravel pit from which the appellee contractor, Vilbig Bros., Inc., secured all its gravel used on the Mercantile-Commerce job; and such corporation, under contract with the partnership, mined and trucked such gravel to the Mercantile-Commerce job, paying the partnership a royalty on the gravel mined. After the transfer of the trucks and truck drivers to the partnership, Vilbig Bros., Inc., then used independent contractors to haul its gravel to the Mercantile-Commerce job, and all its former employees who had been used as truck drivers were transferred to the partnership to work at the gravel pit; there they worked under one John Burke who was also transferred to the partnership with the truck drivers.

In all the transactions the two Vilbig brothers acted as officers of the corporation as seller, and themselves, individually, as partners in the partnership.

The trial court, after hearing all the evidence, found the facts as recited in his judgment, as follows: '* * * that the plaintiff corporation, in good faith and for a valuable consideration, on or about the 2nd day of May, 1949, divested itself of all trucks and transportation equipment theretofore owned or operated by it; that at the time this suit was filed, and this hearing held, the plaintiff corporation neither owned nor operated any trucks or trucking equipment and employed no truck drivers or any person eligible for membership in the defendant union; that plaintiff had advised defendants of such facts both orally and in writing before this suit was filed; that plaintiff corporation, at the time this suit was filed, had no interest in any gravel or concrete mix operations; that plaintiff was not engaged in hauling any material to or from its building construction operations; that the plaintiff corporation, at the time this suit was filed, and...