Kaiser v. Price-Fewell, Inc.

• Decision Date: 04 June 1962
• Docket Number: PRICE-FEWEL,No. 5-2671,INC,5-2671
• Citation: 359 S.W.2d 449,235 Ark. 295
• Parties: , 50 L.R.R.M. (BNA) 2531, 45 Lab.Cas. P 50,573 Paul KAISER, Individually and as Representative of International Brotherhood of Electrical Workers Local 295, and R. L. Webb, Individually and as Representative of International Brotherhood of Electrical Workers, Appellants, v., Appellee.
• Court: Arkansas Supreme Court

Page 449

359 S.W.2d 449

235 Ark. 295, 50 L.R.R.M. (BNA) 2531,

45 Lab.Cas. P 50,573

Paul KAISER, Individually and as Representative of

International Brotherhood of Electrical Workers Local 295,

and R. L. Webb, Individually and as Representative of

International Brotherhood of Electrical Workers, Appellants, v. PRICE-FEWELL, INC., Appellee.

No. 5-2671.

Supreme Court of Arkansas.

June 4, 1962.

Rehearing Denied Sept. 10, 1962.

Warren & Bullion, Little Rock, for appellants.

Mehaffy, Smith & Williams, William H. Sutton and B. S. Clark, Little Rock, for appellee.

JOHNSON, Justice.

This appeal questions the validity of an injunction against picketing in a labor dispute in North Little Rock. Appellants urge that members of the International Brotherhood of Electrical Workers, Local 295, have been denied their right of peaceful picketing pursuant to a strike directed against appellee. The Chancellor granted the injunction on the ground that the union was picketing for unlawful objectives, first, to obtain a contract with appellee which contains a hiring hall arrangement, and second, for a closed shop. Both of these objectives were found to violate Amendment 34 to the Arkansas Constitution and Act 101 of the Acts of 1947, which is the enabling act for enforcement of Amendment 34.

Suit for injunction was brought by appellee, Price-Fewell, Inc., against Paul Kaiser, individually and as Representative of International Brotherhood of Electrical Workers, Local 295, and R. L. Webb who is the International Representative of the Electrical Workers.

In September 1961, representatives of the union served notice on appellee that they represented a majority of its employees and requested that appellee negotiate a collective bargaining agreement with the union. Appellee refused and thereafter 14 of its employees went out on strike. The parties then commenced negotiations and several conferences were held. At one of the conferences the union presented appellee with a proposed basic contract, part of which was a contract termed 'Inside Agreement'. This agreement was executed by this union and members of the Ark. Chapter, National Electrical Contractors Association. Article V thereof sets forth a job referral procedure as follows:

'In the interest of maintaining an efficient system of production in the industry providing for an orderly procedure of referral of applicants for employment, preserving the legitimate interests of the employees in their employment status within the area and eliminating discrimination in employment because of membership or nonmembership in the Union, the parties hereto agree to the following system of referral of applicants for employment.

'1. The Union shall be the sole and exclusive source of referrals of applicants for employment.

'2. The Employer shall have the right to reject any applicant for employment.

'3. The Union shall select and refer applicants for employment without discrimination against such applicants by reason of membership or non-membership in the Union and such selection and referral shall not be affected in any way by rules, regulations, by-laws, constitutional provisions or any other aspect of obligation of union membership policies or requirements. All such selections and referral shall be in accordance with the following procedure.

'4. The Union shall maintain a register of applicants for employment established on the basis of the groups listed below. Each applicant for employment shall be registered in the highest priority group for which he qualifies.

'GROUP I: All applicants for employment who have four (4) or more years experience in the trade, are residents of the geographical area constituting the normal construction labor market, have passed a journeyman's examination given by a duly constituted Local Union of the I. B. E. W. and who have been employed for a period of at least one (1) year in the last four (4) years under a collective bargaining agreement between the parties to this Agreement.

'GROUP II: All applicants for employment who have four (4) or more years' experience in the trade and who have passed a journeyman's examination given by a duly constituted Local Union of the I. B. E. W.

'GROUP III: All applicants for employment who have two (2) or more years' experience in the trade, are residents of the geographical area constituting the normal construction labor market and who have been employed for at least six (6) months in the last three (3) years in the trade under a collective bargaining agreement between the parties to this Agreement.

'GROUP IV: All applicants for employment who have worked at the trade for more than one (1) year.

'If the registration list is exhausted and the Union is unable to refer applicants for employment to the Employer within forty-eight (48) hours from the time of receiving the Employer's request, Saturdays, Sundays and Holidays excepted, the Employer shall be free to secure applicants without using the referral procedure, but such applicants if hired, shall have the status of 'temporary employees'. The Employer shall notify the Business Manager promptly of the names and Social Security numbers of such 'temporary employees', and shall replace such 'temporary employees' as soon as registered applicants for employment are available under the referral procedure.'

Appellants contend there was no insistence on the part of union negotiators that the referral procedure be incorporated in the basic contract offered appellee. Also, that in any event appellee did not refuse to sign the proposed contract because of the referral procedure, but rather because appellee performed work for non-union general contractors and union organization would prevent appellee from doing business with such contractors. Although the evidence is conflicting on these issues, Mr. R. L. Webb, International Representative of the union, did testify that the referral procedure was a part of the basic contract presented to appellee. As previously pointed out, this same contract has been executed by the Arkansas Chapter of National Electrical Contractors Association and Article III, Section 7-b thereof prevents this union from granting other contractors more favorable terms than those granted to Association members. Section 7-b reads as follows:

'The union agrees that if, during the life of this Agreement, it grants to any Employer in the Electrical Contracting Industry and better terms or conditions than those set forth in this Agreement, such better terms or conditions shall be made available to the Employers under this Agreement and the Union shall notify in writing, the Employer of any such concessions * * *.'

Section 81-203 Ark.Stats. of 1947, Annotated (Section 3 of Act 101 of 1947) the enabling act for enforcement of Amendment 34 provides as follows:

'81-203. Certain Contracts prohibited.--No person, group of persons, firm, corporation, association, or labor organization shall enter into any contract to exclude from employment, (1) persons who are members of, or affiliated with, a labor union; (2) persons who are not members of, or who fail or refuse to join or affiliate with, a labor union; and (3) persons who, having joined a labor union, have resigned their membership therein or have been discharged, expelled, or excluded therefrom.'

If an objective of the picketing was to force appellee to execute a contract which has the effect of excluding employees from employment or excluding applicants for such employment because of their refusal to join or affiliate with a labor union, then such picketing violates Amendment 34. On the other hand, if the picket line was established in furtherance of a lawful strike, certainly no objections could be raised because employees in the exercise of free speech had the right to advise the public of their dispute with appellee. Traditionally, one of the objectives of union organization is to obtain higher wages and better working conditions. However, it is the duty of the Court to construe the contract in the light of the evidence adduced and since the voters of Arkansas have seen fit to adopt Amendment 34 and the Legislature enacted Act 101 of 1947 allegedly to prevent discrimination because of failure to join or affiliate with a labor organization, the Court has no alternative but to apply these measures in accordance with the intention thereof.

The Chancellor interpreted the statute as applying not only to persons who are not members of a labor union but also persons who fail or refuse to affiliate with a labor union. We cannot disagree with this interpretation. The statute reads in part: '* * * or who fail or refuse to join, or affiliate with, a labor union, * * *.' The word 'affiliate'...