International Ass'n of Machinists, A.F.L. v. Goff-McNair Motor Co., GOFF-M

• Citation: 264 S.W.2d 48,223 Ark. 30
• Decision Date: 01 February 1954
• Docket Number: No. 5-280,GOFF-M,5-280
• Parties: , 33 L.R.R.M. (BNA) 2641, 25 Lab.Cas. P 68,135 INTERNATIONAL ASS'N OF MACHINISTS, A.F.L. et al. v.cNAIR MOTOR CO. et al.
• Court: Supreme Court of Arkansas

Page 48

264 S.W.2d 48

223 Ark. 30, 33 L.R.R.M. (BNA) 2641,

25 Lab.Cas. P 68,135

INTERNATIONAL ASS'N OF MACHINISTS, A.F.L. et al. v. GOFF-McNAIR MOTOR CO. et al.

No. 5-280.

Supreme Court of Arkansas.

Feb. 1, 1954.

Edwin E. Dunaway, Little Rock, for appellants.

Rex W. Perkins, Fayetteville, for appellees.

ROBINSON, Justice.

The appellees Goff-McNair Motor Co., Green Chevrolet Co., and Lyle Bryan Motor Co., hereinafter referred to as the employers, are automobile distributors and filed this suit to enjoin peaceful picketing by some of their employees who were out on strike. A temporary injunction was granted, and on final hearing it was made permanent. The Machinists Union, C. A. Buskel, and Willis Sisemore, bargaining agent and representatives of the employees, have appealed.

It is the contention of the employers that the union members by means of picketing were attempting to force an agreement providing for a closed shop. The employees claim they had withdrawn their demand that Article 16 of the proposed agreement, in effect providing for a closed shop, be incorporated in the contract, and that the employers were not acting in good faith in claiming that the suggested Article 16 had not been abandoned. During the negotiations the union submitted a proposed contract, Article 16 thereof being as follows:

'Union Members. The refusal of any or all employees who are members of the union to work with an employee who is not a member of the union will not be considered as a violation of this agreement.'

In turn the employers demanded a provision in the contract embracing substantially Amendment 34 to the constitution of Arkansas, known as the Freedom to Work Amendment; Act 101 of the General Assembly of 1947, the enabling act for Amendment 34; and Act 143 of 1943, known as the Anti-Violence Act. The parties did not break off negotiations by agreement, but Mr. Buskel, who was the chief negotiator among the representatives of the employees, at the end of the meeting on July 30 stated he would let the employers know when it would be agreeable to hold the next meeting. He contacted the employers no further, and on September 17 the union members went out on strike and started picketing the employers' place of business.

Even if the employers did demand that an amendment to the constitution and certain acts of the legislature be written into the contract, this would not be asking the union to agree to something unlawful because the constitution and laws of the state would be a part of the contract regardless of whether they were mentioned in the written agreement. On the other hand this court had held that the demand by a union that a collective bargaining agreement contain a provision in violation of Amendment 34 to the Constitution and Act 101 of 1947, coupled with picketing in an attempt to enforce such demand, is grounds for the issuance of an injunction prohibiting such picketing. Self v. Taylor, 217 Ark. 953, 235 S.W.2d 45; Local No. 802 v. Asimos, 216 Ark. 694, 227 S.W.2d 154; Lion Oil Co. v. Marsh, 220 Ark. 678, 249 S.W.2d 569. See also Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834.

The trial court prepared a written opinion which shows that the utmost care, attention, and study was given to the case; and it is the Chancellor's opinion that the weight of the evidence proves the employees had not abandoned their demand for a contract providing for a closed shop in violation of the laws of this state. In regard to the facts as shown by the record, we quote from the able opinion of the trial court:

'To resolve the matter a consideration of the proof is necessary. The crucial meeting seems to have been that of May 8, the 5th negotiating session. Both before and after that meeting, according to McNair, Pratt, Bryan, Dickson and Duty, the latter two being attorneys representing some of plaintiffs at the meetings but not at the trial, Article 16 was discussed at great length and always as related to, but say the plaintiffs, in conflict with Amendment 34 and Act 101. It was the insistence of the companies that Article 16 should be countered by provisions substantially incorporating the freedom to work amendment or that the article should be dropped. They say that on May 8 defendant Buskel proposed that the Union would drop Article 16 if they would drop the incorporation of provisions consonant with Amendment 34 and Act 101. In short, they say Buskel's offer was only conditional, was never unequivocally withdrawn and was in fact insisted upon up to and including the last meeting on July 30. Opposed to this is testimony in chief of Buskel. He says that he officially receded from Article 16 on May 8, has not insisted upon it since, and is not today (the day of trial) demanding a closed shop, nor that Union members quit if non-Union men are working. Defendant Willis Sisemore, and witnesses Bill Cox and Roy Hillion, who attended most of the meetings, confirm the withdrawal of Article 16 on May 8, and that they would not refuse to work with a non-Union man; but each of these three also testified that his statement on the witness stand is the first time he had ever said he would work in an open shop; and Sisemore testified he has never heard Buskel express agreement on a contract provision for an open shop. Cox, as did the others, took the oath of Union obligations and testified that a part of that obligation is not to work with a non-Union man. Hillion testified there was nothing in the obligation as to working or not working with non-Union men. Mr. Cox also answered, on cross examination, that he remembered the conditional withdrawal by Buskel and upon being asked if this withdrawal was thereafter unreservedly made, he first answered 'no', later changed his answer to the affirmative, and it is possible his apparent contradiction was due to confusion or misunderstanding.

'The testimony of Buskel is interesting. A substantial portion of his cross examination consisted of directing to him a number of questions embracing his statements made at various negotiations meetings and asking him if he made the statements. It would be well to note here the apparent confusion that arose at the trial over the stenographic transcripts of these meetings. The Court declined to require plaintiffs' counsel to make these transcripts available to defense counsel for the reason that they were private property procured and paid for by plaintiffs, and available to defe...