International Union of Operating Engineers v. Cox

• Decision Date: 23 March 1949
• Docket Number: No. A-1878.,A-1878.
• Citation: 219 S.W.2d 787
• Parties: INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 564 et al. v. COX.
• Court: Texas Supreme Court

Page 787

219 S.W.2d 787

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 564 et al. v. COX.

No. A-1878.

Supreme Court of Texas.

March 23, 1949.

Rehearing Denied May 11, 1949.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by R. G. Cox, doing business as Velasco Laundry & Cleaners against International Union of Operating Engineers, Local No. 564 and others for an injunction restraining the defendants from picketing plaintiff's place of business and for damages. A judgment for plaintiff was affirmed by the Court of Civil Appeals, 212 S.W.2d 1000, and the defendants bring error.

Judgment reversed and judgment rendered for appellants.

Mullinax, Wells & Ball and L. N. D. Wells, Jr. all of Dallas, and Robert M. Lyles, of Angleton, for petitioners.

Irving G. Mulitz and Frank F. Spata, both of Houston, for respondent.

FOLLEY, Justice.

This suit was filed by respondent, R. G. Cox, doing business as Velasco Laundry & Cleaners, against the petitioners, International Union of Operating Engineers, Local No. 564, and George Williams, Manager of the Union, Priscilla M. McCafferty, Ethel Sifford, Anna May Williams, Lucille Duggar and Nannie Mae Day, striking and discharged employees of the laundry. The suit was for the purpose of enjoining petitioners from picketing the laundry and for damages. After trial before the court without a jury, judgment was rendered permanently enjoining petitioners "from picketing or causing to be picketed the premises and business establishment of plaintiff, R. G. Cox, known as Velasco Laundry & Cleaners, and from congregating or assembling in the vicinity thereof", and for damages in the sum of $500, jointly and severally, against petitioners. That judgment was affirmed by the Court of Civil Appeals. 212 S.W.2d 1000.

There were no findings of fact or conclusions of law made by the trial court. We must therefore consider the facts in the light most favorable to support the judgment. We observe that rule in the statement of the facts which follow.

The Velasco Laundry & Cleaners is one of several laundries in southern Texas owned by respondent, R. G. Cox. At the time of this controversy it had about forty employees. Cox lives in Houston where his main office is located, but he makes fairly frequent visits to Velasco and other towns where his laundries are situated. The laundry at Velasco is managed by Barton Brown, who hires and discharges employees, keeps the books, and generally supervises the operation of the laundry. The wage scale for various positions in the laundry is set by Cox, but Brown has limited authority to change the wages of employees. Wages ranged from 30¢ or 35¢ per hour for new employees, to 60¢ or 65¢ per hour for experienced help. Brown prepares the payrolls and sends them to Cox who issues checks from the Houston office. Brown makes frequent reports to Cox by telephone or letter concerning the operation of the laundry. The laundry supplies linens to the Dow Chemical Company Hospital and does laundry work for numerous business establishments in and near Velasco.

In June, 1947, some of the employees of the laundry who were dissatisfied with their wages and working conditions sought the assistance of Local No. 564. That Union represents employees at the Dow Chemical Plant in Velasco. On the night of June 16, nine or more employees of the laundry attended a meeting of the Local Union at Velasco. At that meeting most of them registered complaints as to their working conditions and signed cards authorizing the Union to act in their behalf for the purpose of collective bargaining. The next day six of these employees were discharged by the laundry manager. Brown admitted that their names had been furnished him by another employee who attended the Union meeting, but denied that he discharged them for union activities. However, he assigned no other reason for their discharge. He rehired two of these employees at the insistence of the Union. The others were never rehired. It was stipulated, however, that from that date until August 19, 1947, the day the picketing began, fifteen or twenty new girls were hired at the laundry.

During June, July and August, 1947, the Union obtained the signatures of twenty-four or twenty-five laundry employees on these authorization cards. During that time many employees presented grievances to the Union, and the Executive Board of the Union interceded with Brown in behalf of these discharged and dissatisfied employees, attempting to settle their difficulties. Brown advised the Board that he had no authority to deal with them, and that they should see Cox.

These Union officials made two trips to Houston to confer with Cox. He likewise told them Brown had no authority regarding labor disputes. These officials presented the signed authorization cards to Cox and claimed they represented a majority of the laundry employees. Cox agreed to permit them to represent the individuals from whom they had authorization cards, but he refused to recognize the Union as the collective bargaining agent of all the employees. Then the parties agreed that the Union should petition the National Labor Relations Board to conduct an election and determine whether the Union should be certified as the collective bargaining agent for the laundry employees.

The Union thereupon sent its petition to the National Labor Relations Board. In August, the exact date not being shown, that Board replied that it was doubtful whether it had jurisdiction of the case. The reason for that attitude was not disclosed, but presumably it was because the laundry was not engaged in interstate commerce. Cox was not informed of this reply. Meanwhile, representatives of the Union and Cox had a conference in which it was decided to permit the employees to conduct an election to determine how many favored unionization. On August 18, 1947, Cox visited the laundry, and, in the presence of the Union representatives, addressed his employees, disavowing any intention to discriminate against those who desired to join a union. At that time one of his employees protested to him about her wages being reduced. Later that same day, the employees conducted the election, which resulted in a fifteen to fifteen tie vote.

On Friday before the election on Monday, Brown reduced the wages of Miss Ethel B. Sifford from 40¢ to 35¢ per hour, and told her if she did not like his action, he would reduce them again. At about the same time he also reduced the wages of Mrs. Priscilla McCafferty from 47¢ to 40¢ per hour. These women had been engaged in some union activities, but no reason was shown for the reduction in their wages.

Within an hour after the election, Brown discharged Miss Dorothy Krieger, who had voted for unionization and signed her ballot. The next day, Mrs. Lucille Duggar protested to Brown over the discharge of Miss Krieger, and she was also discharged. The Union business agent, who was present at the laundry at that time, protested to Brown, but Brown refused to rehire either of the women. Thereupon, some of the employees went out on a strike. They were told by Brown that if they struck they were "automatically fired". In this group was Miss Nannie Mae Day and Miss Anna May Williams. Immediately thereafter the petitioners began picketing on the sidewalks in front of the laundry, carrying placards furnished by the Union. The wording on the placards was not revealed by the evidence, but respondent alleged that they carried announcements that the laundry was unfair to organized labor. No claim was made that they were libelous in character, and in the absence of any proof we cannot presume that the language used was worse than alleged by respondent. Such slogans have been determined to be a "part of the conventional give-and-take in our economic and political controversies", and are not to be construed as falsifying facts. Cafeteria Employees Union v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 127, 88 L.Ed. 58.

The picketing was conducted by the employees of the laundry, and included Miss Krieger and Mrs. Duggar, who had been discharged immediately theretofore; Mrs. McCafferty and Miss Sifford, whose wages had been reduced; and Miss Day and Miss Williams, who walked off the job about the time the picketing began. All of these, except Miss Krieger, were parties to the suit and are petitioners here.

The picketing lasted for four or five days. It was at all times peaceful, and was conducted by no more than two persons at one time. On the fourth or fifth day after the picketing began, the trial court issued a restraining order, which, in later hearings, ripened into a permanent injunction prohibiting the picketing.

After the picketing began, at some time not definitely shown, the Union had several hundred circulars distributed in Velasco and the adjacent town of Freeport. The contents of the circular are fully set out in the opinion of the Court of Civil Appeals. It contained statements as to alleged deplorable and intolerable working conditions and relations between the laundry and its employees, and, among other things charged that the employees "had been subjected to the indignity of profane and abusive language". The Court of Civil Appeals found that all of the defamatory statements in the circular were untrue, and the trial court is presumed to have so found, except for such statements as are supported by uncontroverted testimony. Though some of the statements are strongly supported by the evidence, most of them were controverted by Brown, particularly those with reference to profane and abusive language. We must therefore presume that the circular was defamatory. The Court of Civil Appeals also found that the circular was distributed to the public in the vicinity of the laundry, and concluded that the injunction against the picketing was justified by reason of the circular alone; and that holding was made notwithstanding the fact that no relief was asked for, and none...