Hotel, Etc., Local Union, v. Miller
| Decision Date | 22 March 1938 |
| Citation | 272 Ky. 466 |
| Parties | Hotel, Restaurant and Soda Fountain Employees Local Union No. 181 et al. v. Miller. |
| Court | United States State Supreme Court — District of Kentucky |
Appeal from Jefferson Circuit Court.
GEORGE C. BURTON, GROVER G. SALES and GEORGE C. BURTON, II, for appellants.
TRABUE, DOOLAN, HELM & HELM for appellee.
Affirming.
The appellee, R.W. Miller, is engaged in the restaurant business in Louisville. He has twenty-five men and women employed, only one of whom belonged to a labor union. The appellant the Hotel, Restaurant and Soda Fountain Employees Local Union No. 181 is an affiliate of the American Federation of Labor. Its coappellant, George Reay, is its organizing representative. During his negotiations with Miller to unionize his restaurant, he and another were permitted to come there and solicit the employees to join the union. It appears that excepting the provision for a "closed shop," the proposed terms were agreeable to the appellee. There is a conflict in the testimony as to whether Miller opposed the movement. However, we think the weight of the evidence is that he left to the employees what action should be taken after having stated what he deemed to be the advantages and disadvantages of joining the union — perhaps emphasizing the disadvantages. During this period, in which several conferences were held, the employees suggested that they should organize an independent group, or what is commonly called a company union. Miller agreed and they effected such an organization. A written contract respecting their relations were made by the group and Miller. It may be said here that before this was done the only employee who had belonged to the appellant union was discharged by Miller. He contends that it was because of poor service and without knowledge of her membership, while the other side contends that it was because of her membership and activity in securing her fellow employees to join it. Miller definitely terminated negotiations with the appellants by saying that he had no right to bind his employees by the proposed contract. Thereupon the appellants began picketing the restaurant by carrying a placard or large white umbrella bearing the words, "This Restaurant is unfair to organized labor — Hotel, Restaurant and Soda Fountain Employees Local Union No. 181, affiliated with the American Federation of Labor." There is conflict in the evidence whether the pickets merely paraded in front of the business with this sign or did more, such as intercepting patrons and prospective patrons and making false and other statements calculated to divert business.
Miller filed this suit against the appellants to enjoin the picketing. He obtained a restraining order from Judge Mix, one of the judges of the Jefferson circuit court. The appellants, by their attorney, appeared before him and obtained a modification of the order. At the hearing on the motion to discharge the restraining order and to issue a temporary injunction, the chancellor indicated that he would grant an injunction on condition that the discharged union employee be reinstated. A tender of re-employment was made, but the cook refused to return. Deeming her action as voluntarily quitting work, the incident of her discharge may not be regarded as affecting subsequent developments.
Doubting that the wishes of the employees had been truly expressed and their organization freely formed, the court directed the master commissioner to take their vote, uninfluenced by either party. The commissioner held such an election off the employer's premises, using ballots prepared by himself and having them secretly cast. All but two of the employees voted. Those two were not at work that day. Those voting were unanimous for the independent organization or company union. The court then issued an injunction enjoining the defendants and their representatives from picketing or interfering with the plaintiff's business. The temporary injunction was later made permanent, and this appeal is prosecuted to obtain a reversal of the judgment.
The appellant union is an unincorporated association. Summons was served upon Reay as its business manager and chief officer in the county. On the day the case was heard by the chancellor, that defendant filed a motion to quash the sheriff's return on the restraining order, upon the ground that its president, secretary, and treasurer were in the county at the time and process should have been served upon one of them instead of Reay. It also filed a special demurrer to the petition for defect of party, in that as an unincorporated association it cannot be sued as such under its union name. See United Mine Workers v. Cromer, 159 Ky. 605, 167 S.W. 891; Diamond Block Coal Company v. United Mine Workers, 188 Ky. 477, 222 S.W. 1079. The defendant, however, waived the right to raise these questions and entered its appearance to the suit by having previously appeared and obtained a modification of the restraining order. Dean v. Brown, 261 Ky. 593, 88 S.W. (2d) 298.
The appellants place much confidence in Music Hall Theatre v. Moving Picture Machine Operators Local No. 165, 249 Ky. 639, 61 S.W. (2d) 283. In that case the operator of a theater had previously employed union labor and had refused to renew a bargaining contract with them. He employed a man who was not a member of any labor union but held a certificate of membership in a mere adjunct of a trade school, which was deceptively called a union. Thereupon the regular union began picketing the theater by having a man carry a sign with this inscription: "This theater does not employ Union Operator member of Local No. 165, M.P. M.O. & I.A.T.S.E. of U.S.A. & Can." We held that the circuit court had improperly issued an injunction against the peaceful picketing by carrying the banner, but had properly enjoined the making of false statements, the indulgence of violence, and interference with the business. We think the case is distinguishable. In reality there was a strike of the union employees for the purpose of securing a renewal of a contract and their reinstatement. They would not return to work otherwise; there was a bona fide dispute. Here there was no dispute between employer and employees; the purpose of the picketing was to establish this as a closed shop for the first time. The sign in the theater case was true. The statement on the banner in this case was not true, according to our views.
The case seems to be narrowed to this one question: Where the employees of a business or industry have organized and concluded a collective contract with the employer in relation to their wages, hours of labor, and working conditions, may a general labor union, to which none of the employees have belonged, picket the place of business?
With unanimity, the courts have held that employees have the right to organize and select their representatives for lawful purposes. This includes the fundamental right to contract collectively with the employer in order to obtain the maintenance or the advancement of wages, the procurement of reasonable hours of labor, and the betterment of working conditions. Saulsberry v. Coopers' International Union, 147 Ky. 170, 143 S. W. 1018, 39 L.R.A., N.S., 1203; Diamond Block Coal Company v. United Mine Workers, 188 Ky. 477, 222 S.W. 1079; Music Hall Theatre v. Moving Picture Machine Operators Local No. 165, supra. This right of unified action includes the privilege of...
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