Donnelly Garment Co. v. INTERNATIONAL LGW UNION

• Decision Date: 08 July 1938
• Docket Number: No. 2924.,2924.
• Citation: 23 F. Supp. 998
• Parties: DONNELLY GARMENT CO. et al. v. INTERNATIONAL LADIES' GARMENT WORKERS' UNION et al. (DONNELLY GARMENT WORKERS' UNION et al., Interveners).
• Court: U.S. District Court — Western District of Missouri

23 F. Supp. 998

DONNELLY GARMENT CO. et al. v. INTERNATIONAL LADIES' GARMENT WORKERS' UNION et al. (DONNELLY GARMENT WORKERS' UNION et al., Interveners).

No. 2924.

District Court, W. D. Missouri, W. D.

July 8, 1938.

James A. Reed, William S. Hogsett, and Robert J. Ingraham, all of Kansas City, Mo., for plaintiffs.

Frank P. Walsh, Jerome Walsh, Clif Langsdale, and Roy Rucker, all of Kansas City, Mo., for defendants.

Roy K. Dietrich and Frank E. Tyler, both of Kansas City, Mo., for interveners.

COLLET, District Judge.

This cause is pending on motions to dismiss plaintiffs' bill and the intervening petition. These motions assert that this court has no jurisdiction over the subject matter of the action and that plaintiffs and interveners are not entitled upon the facts alleged to the relief sought. These contentions are based upon the theory that the controversy involves a "labor dispute" as defined by the Norris-LaGuardia Act (Sections 101-115, Title 29 U.S.C.A.) and that the conditions precedent to the granting of injunctive relief by this court as set forth in that Act have not been complied with.

It is unnecessary to again review in detail the allegations of the bill and intervening petitions as an analysis of both pleadings and an outline of the cause appear in the reports. Donnelly Garment Co. v. International Ladies' Garment Workers' Union et al., D.C., 20 F.Supp. 767; Id., D. C., 21 F.Supp. 807, 808, 814, 817; International Ladies' Garment Workers' Union, etc., et al. v. Donnelly Garment Company, Donnelly Garment Sales Co., and Donnelly Garment Workers' Union, etc., et al., 58 S.Ct. 875, 82 L.Ed. ___, decided May 16, 1938, by the Supreme Court.

An amended bill has been filed with leave since these opinions were written. The amended bill alleges facts, which, it is asserted, show the existence of all facts necessary to justify injunctive relief by this court in the event it may be determined that the controversy is a "labor dispute" as defined by the Norris-LaGuardia Act, 29 U.S.C.A. § 113(c). Plaintiffs do not abandon their contention that the Norris-LaGuardia Act is inapplicable and that this action does not involve such a "labor dispute".

Defendants questioned the propriety of allowing the filing of the amended bill. Their contention being that the amended bill was a departure, raised new issues and hence should be stricken. I find no merit in this contention. Other questions presented by the amendment will be considered later.

A reference to the statement of the case contained in the opinions above cited readily discloses that the present controversy constitutes a "labor dispute" as defined by the Congress in the Norris-LaGuardia Act unless either or both of the following propositions advanced by plaintiffs are correct:

First. It is argued that since the Wagner Act, 29 U.S.C.A. §§ 151-166, requires plaintiffs to negotiate collective bargaining agreements with the representatives of a majority of their employees and with such representatives alone, and since representatives of plaintiffs' employees have been selected by the employees and plaintiffs have made a contract with their employees collectively through those representatives — there can be no labor dispute between plaintiffs and these defendants. Certain expressions of this court are cited in support of this theory. Grace Co. v. Williams, 20 F.Supp. 263, and Cupples Co. v. American Federation of Labor, 20 F.Supp. 894. This specific question was not presented or intended to be decided in either of those cases although in the Cupples Case it was referred to in connection with plaintiffs' contention that the pendency of a complaint before the National Labor Relations Board should be considered in determining the existence of a "labor dispute". In the Grace Case the inapplicability of the Norris-LaGuardia Act was urged upon the grounds upheld in Lauf v. Shinner & Co., 7 Cir., 82 F.2d 68, and later rejected by the Supreme Court in Lauf v. Shinner & Co., 58 S.Ct. 578, 82 L. Ed. ___, decided February 28, 1938, and upon the further ground that the Wagner Act superseded and nullified the Norris-LaGuardia Act. Neither was the question definitely decided in National Labor Relations Board v. Delaware-New Jersey Ferry Co., 3 Cir., 90 F.2d 520, or other cases cited.

The only difficulty with plaintiffs' position is that the representatives of plaintiffs' employees were not selected in the manner provided by the Wagner Act. That Act does not confer authority upon this court to determine who the representatives of employees are. It does give that power to the National Labor Relations Board, Sections 159(a), 160(a, b), 29 U.S.C.A., Wagner Act, supra. By Section 158(5) it is declared to be an unfair labor practice to refuse so bargain collectively with the representatives of the employees, subject to the provisions of Section 159(a). Section 159(a) provides that the representatives of the majority shall be the sole collective bargaining agents. Section 160(a) empowers the Board to prevent unfair labor practices and further provides: "This power shall be exclusive, and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise."

The present controversy involves the question of whether plaintiffs are engaging in an unfair labor practice by contracting with interveners and refusing to contract with defendants. To determine that question it is necessary to determine the authority of the agents contracting for the employees. If this court could determine the latter question, it could say that certain individuals were the proper representatives of a majority of plaintiffs' employees and thereby determine to that extent the existence or non-existence of an unfair labor practice when that power has been placed exclusively in the Board. If this court had the authority to determine who the proper agents of the employees were and did so and the Board did likewise, reaching a different conclusion, a situation would arise which was evidently not intended to be possible under this Act.

Second. Plaintiffs insist this cause does not involve a "labor dispute" because: "There was no controversy here `concerning terms or conditions of employment' for the additional reason that the International's only claim of alleged grievances concerning terms or conditions of employment in the Donnelly Garment Company plant was based upon knowingly false statements, fraudulently made and intended for the specific purpose of fabricating a fictitious `labor dispute' in the attempt to bring the Norris-LaGuardia Act into operation as a protective shield for the International's illegal acts."

Plaintiffs' bill discloses that terms and conditions of employment are not alone involved but representation as well is in dispute. A labor dispute exists as to representation if it does not exist as to terms or conditions of employment.

A "labor dispute" existing, does the amended bill allege a compliance with the Norris-LaGuardia Act? The most serious questions presented in this regard are (1) whether plaintiff must allege facts showing a reasonable effort to settle the dispute and if so (2) whether such facts appear.

In referring to the provisions of Sec. 107, 29 U.S.C.A. supra, the Circuit Court of Appeals for this Circuit (8th) said (Grace Co. v. Williams, 96 F.2d 478, loc. cit. 481):

"But if the finding of these specific facts is essential, then they must be responsive to some allegation in the complaint, and, without such allegation, proof in support of them would clearly be inadmissible.

"The lower court dismissed the complaint for the reason that it did not `undertake to allege a compliance with the requirements of the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq.' D.C., 20 F.Supp. 263, 270, and not on the ground that the court was impotent to grant injunctional relief against unlawful acts of violence and intimidation by the defendants which federal legislation has not attempted to remove from the power of a court to prevent.

"We are of the view that the plaintiff's complaint was properly dismissed because it did not state facts sufficient to entitle the plaintiff to the relief demanded. The order appealed from is therefore affirmed."

Section 108, 29 U.S.C.A. supra, prohibits injunctive relief unless every reasonable effort has been made to settle the dispute. Hence, an allegation to that effect is necessary.

Plaintiffs' bill alleges the receipt of a letter from defendant, International Ladies' Garment Workers' Union, signed by officers of that union, which requested a conference for the purpose of an adjustment of certain alleged grievances referred to in the letter. The bill alleges that the letter was not written in good faith, the grievances referred did not in fact exist but were purely imaginary and not supported by facts, all of which was known to defendants. Plaintiffs did not reply to the letter but ignored it because it is alleged that for many reasons^1. any settlement between plaintiffs and defendants of any alleged dispute or demand by defendants was utterly impossible. It is contended that the law will not require the doing of a useless thing and, therefore, any effort to comply with the requirement of Section 108 that every reasonable effort be made to settle the controversy, was unnecessary.

The facts in this case do not justify a departure from the general rule stated in Virginian Ry. Co. v. Federation, 300 U.S. 515, loc. cit. 545, 57 S.Ct. 592, 598, 81 L.Ed. 789.

For the reasons stated the plaintiffs' bill and interveners' petition should be dismissed and the temporary restraining order heretofore issued should be dissolved.

A decree in conformity herewith will be entered and exception then allowed plaintiffs and interveners.

1. "Plaintiffs further state that defendant International Ladies' Garment Workers' Union, hereinafter referred to as `Defendant Union', is a...