Jackson v. International Union of Operating Engineers

• Decision Date: 24 February 1948
• Citation: 307 Ky. 485,211 S.W.2d 138
• Parties: JACKSON v. INTERNATIONAL UNION OF OPERATING ENGINEERS et al.
• Court: Kentucky Court of Appeals

211 S.W.2d 138

307 Ky. 485

JACKSON v. INTERNATIONAL UNION OF OPERATING ENGINEERS et al.

Court of Appeals of Kentucky

February 24, 1948

Rehearing Denied June 4, 1948.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division; Henry L. Brooks, Judge.

Action for damages for loss of employment by W. P. Jackson against International Union of Operating Engineers and others. From the judgment, the plaintiff appeals.

Partly affirmed and partly reversed.

S. J. Stallings and Charles B. Zirkle, both of Louisville, for appellant.

Cohen &amp Fisher and Lawrence S. Grauman, all of Louisville, for appellees.

MORRIS Commissioner.

Appeal from a judgment sustaining special demurrers of Union defendants and general demurrer of defendant Cross & Son Inc., employer, to Jackson's petition. The first were the International Union of Operating Engineers affiliated with A F. of L., and members thereof, and its Local Union No. 181, and members, by and through J. E. Pirtle as business agent of the parent and local Unions. The petition named C. W. Christensen and ten other persons (including Pirtle), 'individually and as members having and holding interests in common with all other members of the Unions.'

Appellant alleged the Unions were 'each composed of hundreds of thousands of members, including the individual persons named; a membership so large it would be impracticable to bring them before the court within a reasonable time; that the question involved was of common and general interest to the members of both Unions, and plaintiff asked the right to prosecute his action against them.' It was alleged that Pirtle was business agent of both the local governing authority of the organizations.

Jackson at all times complained of was employed by Cross & Son as an oiler. Prior to his employment the Unions had entered into agreement with his employer 'whereby said Unions became the sole bargaining agent in the employment of operating engineers,' and Cross & Son had bound itself by the following part of the contract:

'The contractor agrees to employ, through local Union 181, only members who are in good standing with the Union in payment of their dues, to operate all machinery and equipment. Good standing members of the Union shall be interpreted to mean those who are not under discipline or penalty invoked by the Union. Upon written notice by the Union to the contractor, through registered mail that a certain individual, or individuals are not in good standing, it shall be sufficient notice for the removal of the individual from the job, under the terms of this contract.'

Jackson alleges that while he was employed 'Pirtle and other members of' the International, its affiliate, and the Local Union, willfully, knowingly and fraudulently conspired and agreed among themselves, without just reason or grounds to cause him to be discharged from working for Cross & Son, and thus to be placed in the position where he could not obtain like, or any employment. That in furtherance of the plan and purpose of the unlawful conspiracy, the Unions, through their business agent, ' while acting in the scope of his authority, demanded of his employer immediate suspension,' and that the employer acting upon the request suspended him on July 19, 1946, and refused to reemploy him; 'that the Unions and Pirtle have willfully, etc. united to deprive him of his rights derived from the contract, and although a member of the Unions in good standing, the Company dismissed him without regard to removal procedure, as set out in the contract.'

He said that prior to the action on the part of defendants his salary was $75 per week; that due to their actions he is refused employment by Cross & Son and was unable to secure similar work at like wages, because the 'defendant Union organizations and Pirtle maliciously, arbitrarily and spitefully refused and still refuse to certify him as a member in good standing' in the Union organizations. He asked judgment for $1200 for actual loss of time, and for future loss of time, humilitation, embarrassment and willful actions of defendants the further sum of $25,000.

Both Unions filed special demurrers based on the ground that each was a voluntary association and not suable. Like demurrers were filed by the individual members of the Unions on the same ground. The judgment as to the Unions and individuals recites that 'the plaintiff having filed no amended petition, and saying nothing further with reference to defendants 'Unions' this action is dismissed.' Appellant is here insisting: (1) Voluntary Associations, such as appellee labor Unions, can be sued in their own names under the laws of Kentucky; (2) the court should have permitted plaintiff to prosecute this suit as a class action; (3) the demurrer of Cross & Son should have been overruled.

We take up point (3) first. In appellant's brief it is stated that the contract was made for his benefit; that he was bound by its terms, and that the Union by proper proceedings could invoke a fine against him, thus removing him from membership, but this was not done and, therefore, he contends he was in good standing. Appellant suggests that it is important to note that part of the contract which required written notice to the employer, under which in order to remove him on the ground that he was not a member, the employer must have had written notice that the employee was no longer a member. The crux of Jackson's complaint (as to employer) is that Cross & Son 'failed to follow the removal procedure provided in the contract.'

We are unable to grasp the argument that Cross & Son breached the contract because the Union failed to give written notice. The fact is the contract only provided that written notice should be 'sufficient notice' to authorize removal. The petition charges that Cross & Son had carried out the contract which the parties had entered into, and this was in full force and effect at all times. It is emphasized that the Unions, through its bargaining agents, had the right to contract for Jackson and Cross & Son, and if they did so contract Cross & Son had no right to question reason or authority. Day v. Louisville & N. R. Co., 295 Ky. 679, 175 S.W.2d 347.

Applying the rule that a pleading must be most strongly construed against the pleader, it is doubtful if the petition states an actionable cause as against Cross & Son, who, as we read the petition, did only what they had agreed to do, acting upon demand of Pirtle while he was acting within the scope of his authority, as is specifically alleged. The contract provides for no notice to Jackson. Notice could be waived without prejudice to appellant. Notice is but a medium of information, which if conveyed is sufficient notice. Notice 'is not a question of diligence but of knowledge of essential facts. If there is such knowledge, acquired in whatever manner and for whatever purpose, of facts which would operate on any rational man of business and make him act with reference to knowledge he has acquired, it is enough.' Williston on Contracts, Vol. 2, Sec. 437; Sentry Safety Control Corporation v. Broadway & 4th Avenue Realty Co., 276 Ky. 648, 124 S.W.2d 1051.

Cross & Son were in a position where they could reasonably act on the demand of the business agent. The contract defined a member in good standing as one who is not under penalty or discipline invoked by the Unions, or who had not paid dues. Cross & Son, when the demand was made, could not assume that Jackson was in good standing, or had paid dues, or that penalty or discipline had not been invoked. They were in a position where they must accede or suffer the possibility of a strike.

We come now to consider appellant's contention that under Kentucky laws 'voluntary associations, such as labor unions, can be sued in their own names or as such.' On this point reliance is had chiefly on the much discussed Coronado case, United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975, 27 A.L.R. 762; Adams Express Co. v. Schofield, 111 Ky. 832, 64 S.W. 903, and American Ry. Express Co. v. Asher, 218 Ky. 172, 291 S.W. 21. Appellees say the rule laid down in the Coronado case had been followed in the Federal courts, but has not been followed in our Court. If the reader be inclined, he may find an elaborate discussion of the Coronado case, and the very interesting English case of Taff-Vale R. Co. v. Amalgamated Society &c. A. C. 426, 1 B.R.C. 832, in Warren's 'Corporate Advantages Without Incorporation,' p. 639. In his work the author says it had been contended that in the Coronado case the court had declined to follow the common law as it had been applied to bodies of men as legal units, and had belittled the importance of inquiring whether the legislature had or had not directed that a particular body of men should be treated as a legal unit. The author did not agree, but a reading of the Taff-Vale and Coronado cases creates doubt as to whether the English Court, or the Supreme Court, adhered to the common law rule, though in United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542, 152 A.L.R. 1202, the Supreme Court took the position that the right to sue was based (by implication) on a statute.

The contention that the court should have permitted the suit to be maintained by a class defending for all on the grounds of common interest to all the membership of the Unions, and the entire membership of the Unions be brought in because of common or general interest, and the impracticability of bringing several thousand persons before the court within a reasonable time, is of merit. Section 25 of the Civil Code of Practice is relied on by appellants as authorizing such a procedure.

It is interesting to...