Intern. Broth. of Elec v. Becdon Const.

• Decision Date: 10 April 2003
• Docket Number: No. 09-02-217 CV.,09-02-217 CV.
• Citation: 104 S.W.3d 239
• Parties: INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION 479, Chris Kibbe, Sabine Area Building & Construction Trades Council, and Joseph Arabie, Appellants, v. BECON CONSTRUCTION COMPANY, INC., Appellee.
• Court: Texas Court of Appeals

104 S.W.3d 239

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION 479, Chris Kibbe, Sabine Area Building & Construction Trades Council, and Joseph Arabie, Appellants, v. BECON CONSTRUCTION COMPANY, INC., Appellee.

No. 09-02-217 CV.

Court of Appeals of Texas, Beaumont.

Submitted February 6, 2003.

Decided April 10, 2003.

COPYRIGHT MATERIAL OMITTED

John Werner, Reaud, Morgan & Quinn, Inc., Beaumont, for appellants.

J. Alfred Southerland, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Houston, for appellee.

Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.

OPINION

STEVE McKEITHEN, Chief Justice.

Appellants, the International Brotherhood of Electrical Workers Local Union 479, Chris Kibbe, Sabine Area Building & Construction Trades Council, and Joseph Arable, ask this court to dissolve a temporary injunction entered against them at the request of Becon Construction Company, Inc. The order restrains appellants from mass picketing in violation of section 101.152 of the Texas Labor Code.¹

Appellants' first issue asks:

Did the trial court err in exercising jurisdiction over a labor-management dispute in the absence of "violence and imminent threats to the public order", in violation of the rule of San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959)?

Under Garmon, the State may enjoin "conduct marked by violence and imminent threats to the public order." San Diego Bldg. Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). Relying on Dallas Gen. Drivers, Warehousemen and Helpers Local 745 v. Central Beverage, Inc., 507 S.W.2d 596, 598 (Tex.Civ.App.-Dallas 1974, writ ref'd n.r.e.), appellants contend that absent a showing of violence or imminent threat to public order, the state court lacks jurisdiction to grant injunctive relief against picketing in a labor dispute.

As recognized by the Court in Belknap, Inc. v. Hale, 463 U.S. 491, 498, 103 S.Ct. 3172, 77 L.Ed.2d 798 (1983), under Garmon, state regulations and causes of action are presumptively preempted if they concern conduct that is actually or arguably either prohibited or protected by the NLRA. However, the state regulation or cause of action may be sustained if the activity to be regulated is only of peripheral concern to the federal law or touches interests so deeply rooted in local feeling and responsibility that in the absence of compelling congressional direction, it cannot be inferred Congress has deprived the States of the power to act. See Garmon, 359 U.S. at 243-44, 79 S.Ct. 773. Accord Ruiz v. Miller Curtain Co., 702 S.W.2d 183, 184-85 (Tex.1985).

As an example of the latter situation, the Garmon court cites Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151 (1957). Garmon, 359 U.S. at 244, 79 S.Ct. 773. In that case, Rainfair filed a complaint against strikers, and the state court eventually issued a permanent injunction. Youngdahl, 355 U.S. at 136, 78 S.Ct. 206. The order enjoined the threatening and intimidation of Rainfair's employees and all picketing or patrolling of Rainfair's premises. Id. The Court found the state court entered the preempted domain of the NLRB insofar as it enjoined peaceful picketing, and to that extent the injunction was set aside. Id., 355 U.S. at 139-40, 78 S.Ct. 206. It was within the state court's discretionary power to enjoin future acts of violence, intimidation, and threats of violence and "insofar as the injunction ... prohibits petitioners . from threatening violence against, or provoking violence, ... and prohibits them from obstructing or attempting to obstruct the free use of the streets adjacent to respondent's place of business, and the free ingress and egress to and from that property," the injunction was affirmed. Id., 355 U.S. at 139, 78 S.Ct. 206.

The Court observed in Sears, "[t]he Court has held that state jurisdiction to enforce its laws prohibiting ... obstruction of access to property is not preempted by the NLRA." Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 204, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978) (footnotes omitted). Accord Cotton Belt R.R. v. Hendricks, 768 S.W.2d 865, 868 (Tex.App.-Texarkana 1989, no writ). See also International Union, United Auto., Aircraft & Agric. Implement Workers of Am. v. Russell, 356 U.S. 634, 636, 640, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958) (Court noted strike, which involved a picket line along and in the public street which was the only means of ingress to and egress from the plant, was conducted in such a manner that the state court could have enjoined it); United Auto., Aircraft & Agric. Implement Workers of America v. Wisconsin Employment Relations Bd., 351 U.S. 266, 268, 275, 76 S.Ct. 794, 100 L.Ed. 1162 (1956) (Court upheld order directing union and certain of its members to cease activities which included mass picketing that obstructed ingress to and egress from plant and interfered with the free and uninterrupted use of public ways.); and Allen-Bradley Local 1111 v. Wisconsin Employment Relations Bd., 315 U.S. 740, 749, 62 S.Ct. 820, 86 L.Ed. 1154 (1942) (Court agreed that NLRA not designed to preclude a State from enacting legislation limited to the prohibition or regulation of such employee or union activity as mass picketing, obstructing ingress to and egress from the company's factory, and obstructing the streets and public roads surrounding the factory). Cf. Garner v. Teamsters, Chauffeurs & Helpers Local Union No. 776, 346 U.S. 485, 488, 74 S.Ct. 161, 98 L.Ed. 228 (1953) (Court found state remedies were excluded, noting "[n]or is this a case of mass picketing, threatening of employees, obstructing streets and highways, or picketing homes").

The order in the case before us does not enjoin "all picketing," but only that picketing which creates an obstacle to the free ingress to and egress from the premises. The United States Supreme Court has repeatedly recognized such conduct is not pre-empted by federal regulation under the NLRA. No showing of violence or imminent threat to public order is required. Issue one is overruled

In their second issue, appellants challenge the constitutionality of the mass picketing statute. Because of our disposition of issue three, we do not reach the constitutional question. See San Antonio Gen. Drivers, Helpers Local No. 657 v. Thornton, 156 Tex. 641, 299 S.W.2d 911, 915 (1957).

Appellant's third issue queries:

Did the trial court err in entering an injunction which is improperly vague, which grants relief divergent from that prayed for, and which does not set forth the reasons for its issuance, in violation of TEX.R. CIV. P. 683?

We first address Becon's contention that appellants waived any issue concerning failure to comply with Rule 683. Becon relies upon this court's opinion in Fleming Cos., v. Due, 715 S.W.2d 855 (Tex.App.-Beaumont 1986, no writ). Fleming was decided prior to InterFirst Bank San Felipe, NA v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.1986), wherein the Supreme Court of Texas held the requirements of Rule 683² are mandatory and must be strictly followed. The court further held when an order of temporary injunction fails to adhere to these requirements it is subject to being declared void and dissolved. Id. "[T]he great weight of authority following InterFirst militates against validating the defective order by means of waiver." Evans v. C. Woods, Inc., 34 S.W.3d 581, 583 (Tex.App.-Tyler 1999, no pet.). See also 360 Degree Communications Co. v. Grundman, 937 S.W.2d 574, 575 (Tex.App.-Texarkana 1996, no writ); Fasken v. Darby, 901 S.W.2d 591, 593 (Tex.App.-El Paso 1995, no writ); Crenshaw v. Chapman, 814 S.W.2d 400, 402 (Tex.App.-Waco 1991, no writ); Bayoud v. Bayoud, 797 S.W.2d 304, 313 (Tex.App.-Dallas 1990, writ denied); Hopper v. Safeguard Bus. Sys., Inc., 787 S.W.2d 624, 626 (Tex.App.-San Antonio 1990, no writ); Courtlandt Place Historical Found. v. Doerner, 768 S.W.2d 924, 926 (Tex.App.-Houston [1st Dist.] 1989, no writ); Permian Chem. Co. v. State, 746 S.W.2d 873, 874 (Tex.App.-El Paso 1988, writ dism'd w.o.j.); Keck v. First City Nat'l Bank of Houston, 731 S.W.2d 699, 700 (Tex.App.-Houston [14th Dist.] 1987, no writ); Higginbotham v. Clues, 730 S.W.2d 129 (Tex.App.-Houston [14th Dist.] 1987, no writ). But see Emerson v. Fires Out, Inc., 735 S.W.2d 492, 494 (Tex.App.-Austin 1987, no writ). In light of InterFirst, we find any reliance on our preceding opinion in Fleming to be misplaced.

We first address appellants' claim the injunction fails to set forth the reasons for its issuance, in violation of Rule 683. A temporary injunction order is invalid if it does not state the reason why injury will be suffered if the interlocutory relief is not ordered. See Moreno v. Baker Tools, Inc., 808 S.W.2d 208, 210 (Tex.App.-Houston [1st Dist.] 1991, no writ). The injunction must be declared void and dissolved if it fails to identify probable interim injury that will be suffered if it does not issue. See Fasken, 901 S.W.2d at 593.

The reasons given by the trial court for granting a temporary injunction must be specific and legally sufficient, and not mere conclusory statements. See University Interscholastic League v. Torres, 616 S.W.2d 355, 358 (Tex.Civ.App.-San Antonio 1981, no writ). "[B]ecause probable injury subsumes the elements of irreparable injury and no adequate remedy at law, a valid injunction must articulate the reasons why the identified probable injury is an irreparable one for which [applicants] have no adequate legal remedy." Fasken, 901 S.W.2d at 593. Consequently, the specificity required by Rule 683 is not satisfied by "the mere recital of `no adequate remedy at law' and `irreparable harm.'" Torres, 616 S.W.2d at 358. In Stoner v. Thompson, 553 S.W.2d 150, 151 (Tex.Civ.App.-Houston [1st Dist.] 1977, writ ref'd n.r.e.), the trial court concluded "the situation which presently exists is harmful ...." The court of...