Inland Industries, Inc. v. Teamsters and Chauffeurs Local Union No. 541

• Decision Date: 06 May 1972
• Docket Number: No. 46337,46337
• Citation: Inland Industries, Inc. v. Teamsters and Chauffeurs Local Union No. 541, 496 P.2d 1327, 209 Kan. 349 (Kan. 1972)
• Parties: , 80 L.R.R.M. (BNA) 2763, 68 Lab.Cas. P 12,674 INLAND INDUSTRIES, INC., Appellant and Cross-Appellee, v. TEAMSTERS & CHAUFFEURS LOCAL UNION NO. 541 et al., Appellee and Cross-Appellant.
• Court: Kansas Supreme Court

Page 1327

496 P.2d 1327

209 Kan. 349, 80 L.R.R.M. (BNA) 2763,

68 Lab.Cas. P 12,674

INLAND INDUSTRIES, INC., Appellant and Cross-Appellee, v.TEAMSTERS & CHAUFFEURS LOCAL UNION NO. 541 et al., Appellee and Cross-Appellant.

No. 46337.

Supreme Court of Kansas.

May 6, 1972.

Syllabus by the Court

1.The United States Congress has in great part pre-empted the field of controversies arising between labor and management which affect interstate commerce, and has vested exclusive jurisdiction to determine such disputes in the National Labor Relations Board.

2.Where it is arguable that an activity is subject to the provisions of § 8 of the Labor Management Relations Act defining unfair labor practices, state courts must defer to the exclusive jurisdiction of the National Labor Relations Board.

3.A neutral employer is one wholly unconcerned with and not involved in a labor dispute existing between a labor organization and a primary employer.

4.An appellee is not entitled to present adverse rulings for review by this court unless he has cross-appealed therefrom.

5.Where a court is without jurisdiction of the subject matter of an action, its authority in respect thereto extends no further than to dismiss the cause.

6.The record is examined in an action seeking to enjoin a labor organization from picketing the premises of an employer, and for reasons set forth in the opinion it is held (1)the trial court did not err in refusing to grant the injunction and (2)the trial court erred in issuing a stay of execution pending appeal and setting bond therefor.

Edward H. Powers and Robert S. Lemon, Kansas City, argued the cause and were on the brief for appellant and cross-appellee.

Timothy J. Evans, Kansas City, and John J. Manning, Kansas City, Mo., argued the cause and were on the brief for appellee and cross-appellant.

FONTRON, Justice:

This is an action by the plaintiff, Inland Industries, Inc., to enjoin the defendants, Teamsters & Chaufferurs Local UnionNo. 541, a labor organization, and its agents, servants or employees, from picketing the plaintiff's two hot mix asphalt plants in Kansas City, Kansas.The trial court denied the injunction and the plaintiff has appealed.The defendants have filed a cross appeal from the trial court's order staying judgment pending appeal and setting bond in the amount of $1000.We shall refer to the parties either as plaintiff and defendants or as Inland Industries, and Teamsters.

The essential facts are not seriously disputed.Inland Industries is engaged in producing hot mix asphalt for sale to other contractors and for its own use in paving or surfacing streets, highways, parking lots and airports.Its stock is owned entirely by Daniel E. Scherrer, a Kansas City contractor and business man, who also owns 100% of the stock in Inland Hauling Company, Inc., sometimes herein referred to as Inland Hauling.The business of the latter company is hauling asphalt and rock for various paving contractors, and some 95% of its business is done with the plaintiff.Approximately 52% of plaintiff's hauling costs are paid to Inland Hauling.Both companies office at 6834 Kaw Drive, Kansas City, Kansas.

The plaintiff, Inland Industries, is a member of the Heavy Constructors Association of the greater Kansas City area, and as such it operates under a union contract with Teamsters, which is also a member of the association.Inland Hauling Company, on the other hand, has no contract with Teamsters although its drivers are members of the teamsters Union.On August 5, 1970, Teamsters placed pickets at the asphalt plants of Inland Industries with placards reading 'Inland Hauling Co. ON STRIKE, TeamstersL. U. 541.'This action had a chilling effect on plaintiff's business and the present action for injunction was initiated the following day.

Plaintiff's petition alleged the placing of pickets at its asphalt plants carrying banners proclaiming that Inland Hauling had no contract with the union; that Teamsters had no controversy with Inland Industries; and that the picketing of plaintiff by Teamsters because of its dispute with Inland Hauling was unlawful, improper and contrary to the provisions of 29 U.S.C.A. § 158(b)(7)(c).Plaintiff's prayer was for an injunction under the provisions of K.S.A. 60-904.A few days later an amended petition was filed similar in content to the original but alleging that 'the situation concerned was not involved with the National Labor Relations Act for the reason that the acts complained of are neither protected or prohibited by Federal law.'A restraining order was issued when the case was first filed.

On August 14, 1970, the defendants filed a motion to dismiss and dissolve the restraining order on the grounds generally that the conduct complained of was either an unfair labor practice prohibited by § 8(b) of the National Labor Relations Act(properly titled as the Labor Management Relations Act and hereinafter called the Act) or was protected activity under § 7 of said Act; that the subject matter of Inland Industries' complaint had been pre-empted by Congress through enactment of the aforesaid Act; and that exclusive jurisdiction was vested in the National Labor Relations Board(hereafter referred to as the Board).

The case was heard September 8, 1970, and on September 18the trial court made the following findings:

'(1) That plaintiff herein is a 'neutral employer' within the meaning of the NMR Act of 1947, as amended.

'(2) That the unlawful picketing involved herein by defendants is a violation of Section 8(b)(4) of said Act.

'(3) That violations of said Act have been pre-empted by the Congress and exclusive jurisdiction over said violations have been vested in the NLRB.

'(4) That the subject case is distinguished from Cooperative Refinery Assn. vs. Williams, 185 Kan. 410(345 P.2d 709), for the reason that in the Coop Caseat Page 420, the Court points out that there was nothing in the evidence to indicate that the neutral employer was doing business with the primary employer.

'(5) That defendant's Motion to Dissolve and Dismiss is sustained, and that the Restraining Order heretofore entered is ordered dissolved and the cause dismissed.Costs are taxed vs. plaintiff.'

As we understand it, the basic issue in dispute is whether the federal government had pre-empted the area in which the controversy lies, so that action by the state is precluded.On the one hand, Inland Industries contends that the activity engaged in by Teamsters in picketing the property of a neutral employer, is neither protected nor prohibited by the Act and hence is subject to action on the state level as being in violation of K.S.A. 44-809, which reads as follows:

'It shall be unlawful for any person

* * *

* * *

'(13) To picket beyond the area of the industry within which a labor dispute arises.'

In support of this contention the plaintiff relies chiefly on Cooperative Refinery Ass'n v. Williams, 185 Kan. 410, 345 P.2d 709, the decision in which will be discussed in more detail later in this opinion.

On the other hand, Teamsters maintains that Inland Industries is an employer subject to the Act and that the activity of which Inland Industries complains has been removed by Congressional action from the field of state regulation.

Thus the issues are joined so far as the plaintiff's appeal is concerned.

This court has duly recognized that Congress has in great part pre-empted the field of controversies arising between labor and management which affect interstate commerce, and that it has vested exclusive jurisdiction to determine such disputes in the National Labor Relations Board.(Kaw Paving Co. v. International Union of Operating Engineers, 178 Kan. 467, 290 P.2d 110;Texas Const. Co. v. H. & P. E. Local Union No. 101, 178 Kan. 422, 286 P.2d 160;Friesen v. General Team & Truck Drivers Local Union No. 54, 181 Kan. 769, 317 P.2d 366;Asphalt Paving, Inc. v. International Brotherhood of Teamsters, Chauffeurs, Stablemen, and Helpers of America, Local Union, 181 Kan. 775, 317 P.2d 349.)

We should say at this point it is conceded that plaintiff's business operations are interstate in scope and affect interstate commerce and, further, that they meet the Board's jurisdictional limits.Thus, Inland Industries' contention is narrowed down to this: Does the picketing engaged in by Teamsters constitute either a protected or an unfair labor practice within the purport of the Labor Management Relations Act, thereby foreclosing action by state agencies?

We are inclined to agree wtih the trial court in its finding that the picketing as alleged would be in violation of § 8(b)(4) of the Act. (29 U.S.C.A. § 158(b).)This section of the Act provides in pertinent part:

'(b)(I)t shall be an unfair labor practice for a labor organization or its agents--

* * *

* * *

'(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is--

'(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: . . .'(p. 327.)

In San Diego Building Trades Council, Millmen's Union Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3...