International Broth. of Elec. Workers, Local Union No. 59, AFL v. Whitley

• Decision Date: 14 April 1955
• Citation: 278 S.W.2d 560
• Parties: INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 59, AFL, Appellant, v. E. D. WHITLEY, d/b/a Whitley Electric Service Co., Appellee. N0. 3256.
• Court: Texas Court of Appeals

Page 560

278 S.W.2d 560

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 59, AFL, Appellant, v. E. D. WHITLEY, d/b/a Whitley Electric Service Co., Appellee.

N0. 3256.

Court of Civil Appeals of Texas, Waco.

April 14, 1955.

Rehearing Denied May 5, 1955.

Mullinax & Wells, Dallas, for appellant.

Clifford S. Dillard, Dallas, for appellee.

HALE, Justice.

This action was brought by appellee for the recovery of refunds alleged to be due him under a contract between appellant and the National Electrical Contractors' Association, hereafter referred to as NECA. The case was tried before a jury, was submitted on special issues, and resulted in judgment for appellee in the sum of $5,154.57.

Appellee is an electrical contractor. On October 13, 1947, he entered into a written contract with E. V. McCreight, general contractor, to install the electrical work in a twenty-two story building, known as the M. & W. Tower Building in the City of Dallas, for the agreed sum of $109,480. At that time, appellee was a member of NECA, a voluntary association, which had entered into a collective bargaining contract on behalf of its members with appellant union on behalf of its members, concerning wages, hours and working conditions. The prevailing wage rate for union member employees was $2 per hour. On April 1, 1948, shortly after the electrical installation on the building had begun, an oral agreement was entered into between appellant union and NECA, whereby appellee agreed, in effect, to increase the wages of its union employees 12 1/2cents per hour upon the condition that such increase would be refunded by appellant to appellee in the event such increase could not be passed on to the general contractor or owner of the building. Similar oral agreements were made to apply from July 9, 1948 and from November 1, 1948, respectively, for additional raises of wages of 12 1/2cents per hour.

Appellee paid the wage increases agreed upon but such wage increases could not be passed on to the general contractor or owner of the building. Being unable to collect the promised refunds, or to secure any adjustment of the matter after an abortive effort to do so, appellee instituted this suit against appellant on or about July 15, 1949.

In its Fifth Amended Answer which was filed in the cause on July 2, 1952, appellant interposed a plea in abatement, urging that appellee's suit was prematurely brought because he had not exhausted his contract remedies relating to arbitration. Subject to its plea in abatement, appellant also raised the same contention by a plea in bar. The plea in abatement was overruled on September 25, 1953, and appellant excepted. The case was tried on its merits in June of 1954. In submitting the case to the jury, the trial court refused appellant's timely request to submit to the jury for determination the issue as to whether appellee failed to refer the dispute to the Council on Industrial Relations for the Construction Industry of the United States and Canada.

Under the first, second and eighth points in its brief, appellant says the trial court erred in overruling its plea in abatement, in refusing its requested issue as to whether or not appellee failed to refer his dispute with appellant to the Council on Industrial Relations as provided for in the collective bargaining agreement between appellant and NECA, and in overruling its motion for a peremptory instruction because the undisputed evidence showed appellee had not exhausted his contract remedies relating to arbitration.

Sections 7, 8 and 9 of Article 1 in the collective bargaining contract between NECA and appellant union are as follows:

'Sec. 7. All grievances or questions in dispute shall be taken up for adjustment by the duly selected representatives of both parties to this agreement. In the event that these two are unable to adjust any matter within forty-eight (48) hours they shall refer same to the Joint Conference Committee.

'Sec. 8. All matters coming before the Committee shall be decided by a majority vote. Four (4) members of the Committee, two (2) from each of the parties hereto, shall be a quorum for the transaction of business, but each party shall have the right to cast the full vote of its membership and it shall be counted as though all were present and voting.

'Sec. 9. Should this Committee fail to agree or to adjust any matter, such shall then be referred to the Council on Industrial Relations for the Construction Industry of the United States and Canada. The decision of the Council shall be final and binding on both parties hereto.'

The undisputed evidence adduced on the hearing of appellant's plea in abatement and on the trial of the merits shows that after appellee had completed his contract with E. V. McCreight to install the electrical work in the M & W. Tower Building, he billed ap...