Harper v. Local Union No. 520, I. B. of E. W., 7791.

• Decision Date: 30 March 1932
• Docket Number: No. 7791.,7791.
• Citation: 48 S.W.2d 1033
• Parties: HARPER et al. v. LOCAL UNION NO. 520, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, et al.
• Court: Texas Court of Appeals

48 S.W.2d 1033

HARPER et al. v. LOCAL UNION NO. 520, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, et al.

No. 7791.

Court of Civil Appeals of Texas. Austin.

March 30, 1932.

Rehearing Denied April 20, 1932.

Appeal from District Court, Travis County; W. F. Robertson, Judge.

Suit by Local Union No. 520, International Brotherhood of Electrical Workers and others against W. O. Harper and another. Judgment granting a temporary injunction, and defendants appeal.

Affirmed.

George Mendell and Hart, Patterson & Hart, all of Austin, for appellants.

James A. King and S. L. Staples, both of Austin, for appellees.

McCLENDON, C. J.

Suit by Local Union No. 520, International Brotherhood of Electrical Workers, a voluntary unincorporated local labor union (herein called the union), its officers and members, against W. O. Harper and C. C. Linscomb, a copartnership, engaged in the business of electrical contractors (herein called the contractors), to enforce an agreement between the union and the contractors, whereby the latter agreed to employ only members of the union in good standing. The appeal is from an interlocutory order after notice and hearing granting a temporary injunction restraining the contractors from violating the provisions of the contract, pending decision of the case upon its merits.

The contentions of the contractors (appellants) may be summarized in the three following propositions:

(1) The agreement is unilateral and wanting in consideration, in that it does not impose any obligation upon the union to supply labor to the contractors.

(2) The agreement in effect is for personal service, which cannot be enforced by specific performance, and therefore, under the doctrine of mutuality of remedy, injunction, which in effect is specific performance, is not available to the union.

(3) "The effect of the agreement is to require employers of electrical construction workmen at Austin to employ only members of the labor union for electrical construction work in Austin and surrounding territory, and to render membership in the local union an indispensable condition to any workmen obtaining employment; it is therefore against public policy."

Since the petition was verified and furnishes the basis for the temporary injunction, we copy in full its recitative allegations:

"2. That the plaintiff, Local Union No. 520, International Brotherhood of Electrical Workers is an association organized for the purpose of securing work for its members, for maintaining fair wages for their members for labor and for the use and benefit of its employees to enter into all contracts which may be proper, necessary or essential to securing the benefits of its membership or all the purposes necessary and essential to the carrying to a successful conclusion all the purposes herein named. It is further the policy of said Local Union to secure for its members more remunerative compensation and improved conditions of employment, and to organize all electrical workers of Austin, Texas, and vicinity into a Local Union; to develop and to maintain a higher standard of skill, to encourage the formation of schools of instruction for teaching the practical application of electricity and for trade education generally, to promote reasonable methods of work, to cultivate feelings of friendship among those of that craft, to settle all disputes between employers and employees by arbitration (if possible), to assist each other in sickness or distress, to secure employment, to reduce the hours of daily labor, to secure adequate pay for other work, and by legal and proper means to elevate the moral, intellectual and social conditions of the members, their families and dependents, in the interest of a higher standard of citizenship; that all the plaintiffs above designated with the exception of Local Union No. 520, International Brotherhood of Electrical Workers specifically named, are members of the aforesaid Local Union, in good standing and join with the said Local Union as plaintiffs herein and for cause of action say:

"3. That there are and have been for some years past in the City of Austin, Travis County, Texas, several contractors who engage in construction work and accept contracts for the installation of all kinds of electrical work, electrical wiring and all manner of electrical construction and installation which is common to the building and construction industry, and for such purpose said building contractors were and are in need of skilled and technical electricians such as these plaintiffs, who are conversant and who have expert knowledge common to the craft of electrical workmen, and who are capable of doing and performing all kinds of electrical work, electrical wiring, and each and every kind of skilled technique and knowledge common to and required by those who understand the construction, manipulation, and maintenance of electrical appliances, and for the control and transmission of electrical current, etc., and all ancillary and correlated matters pertaining to such craft and vocation, and especially to estimate the cost of installing electrical appliances and equipment upon which to base contractors bids for work on new construction work, to make estimates and work out costs of materials, cost of labor on new construction work; to do and to perform all such work as applied to general inside electrical construction which covers and includes wiring for light and power inside of buildings.

"4. That in carrying out the purposes of its being and organization, and for the purposes of maintaining and securing to its members a fair and continuous wage scale and employment, said plaintiff, Union Local No. 520, International Brotherhood Electrical Workers, on the 5th day of April, 1930, made and entered into the following contract and agreement with the certain contractors of Austin, Texas, which said contract is in words and figures as follows:

"`The State of Texas, County of Travis.

"`1. This agreement entered into by and between the Electrical Contractors of Austin, Texas, party of the first part, and Local Union # 520 International Brotherhood of Electrical Workers, party of the second part.

"`2. Local Union # 520 is a part of the I. B. E. W.

"`3. Party of the first part agrees to employ only members of Local Union # 520 1. B. E. W. in good standing.

"`4. The regular hours of labor shall be from 8 a. m. to 12 noon, from 1 p. m. to 5 p. m., except Saturday, which will be from 8 a. m. to 12 noon.

"`5. Time from 5 p. m. to 12 midnight shall be paid for at the rate of time and one-half for the regular eight hours rate.

"`6. Time from 12 midnight to 8 a. m., Sundays and holidays, shall be paid for at the rate of double the regular eight hour rate.

"`7. Holidays will be: Fourth of July, Labor Day, Armistice Day, Thanksgiving Day and Christmas.

"`8. When any electrician is required to leave Austin he shall be paid time for travelling from and back to Austin at the regular eight hour rate of pay. He shall be furnished his transportation, meals and lodging while out of Austin, Texas.

"`9. The party of the second part agrees to furnish one competent journeyman in emergence to each shop in signing this agreement on Saturday afternoon from 1 p. m. to 5 p. m., at the regular eight hour rate of pay.

"`10. A journeyman electrician shall be paid for services rendered the minimum sum of Nine ($9.00) Dollars for the regular eight hours herein mentioned from 1st day of April, 1930, to last day of March, 1931, per day of regular eight hour rate, and Nine Dollars and fifty cents ($9.50) from 1st day of April, 1931, to last day of March, 1932, per day of regular eight hour rate. Ten ($10.00) Dollars from the 1st day of April, 1932, to the last day of March, 1933, per day of regular eight hour rate.

"`11. Party of the second part agrees to make good or see that journeyman members make good on their own time any work that is not properly installed by them unless work was done according to instructions of party of the first part.

"`12. If the journeyman in fault refuses to make good said work or has left the contractors employment or for any reason cannot be back on the job, then party of the first part may have the work rectified by another journeyman and the cost shall be paid by the party of the second part.

"`13. An employer shall be allowed one apprentice for the first journeyman working, and then shall be allowed an apprentice for each additional three journeymen employed.

"`Signed this 5th day of April, 1930.

"`[Seal]

                           "`J. O. Andrewartha
                           "`Jno. L. Martin
                           "`Fox-Schmidt
                             "`Electrical Contractors Committee
                           "`Local Union # 520 I. B. E. W
                           "`W. L. Baker, President
                           "`Henry P. Cain, Secretary
                           "`J. H. Brown, Chairman of
                               Committee
                           "`A. W. Schmidt
                           "`University Plumbing, Heating
                               and Electric
                             "`By John Wattinger
                           "`Chas. Spreen
                           "`Bert Williams Electric Co
                           "`B. E. Howell & Son
                           "`Harper & Linscomb
                             "`By C. C. Linscomb
                           "`Bacons 2 in 1 Service
                             "`By G. H. Bacon
                           "`Moody Elect. Co
                           "`Ben T. Moody
                  "`[Seal] Eugene Ashe Electric Co.
                             "`By Fred B. Otto.'
                

"5. Plaintiffs further allege that said contract is a several and individual contract between plaintiffs and the several contractors whose names are affixed thereto; and that all of said contractors have kept and performed said contract according to the face and tenor, effect and reading thereof save and except the defendants herein named; and that the contract aforesaid made by and between the plaintiffs and the defendants was made by said Local Union No. 520 International Brotherhood of Electrical Workers for the use and benefit of all its members in good standing; and that same was ratified and approved by the members...