Kaw Paving Co. v. International Union of Operating Engineers, Hoisting and Portable, Local No. 101, A. F. of L.

• Decision Date: 12 November 1955
• Docket Number: No. 39763,39763
• Citation: 290 P.2d 110,178 Kan. 467
• Parties: KAW PAVING COMPANY, Inc., a Corporation, Appellee, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, HOISTING AND PORTABLE, LOCAL NO. 101, A. F. OF L., et al., Appellants.
• Court: Kansas Supreme Court

Page 110

290 P.2d 110

178 Kan. 467

KAW PAVING COMPANY, Inc., a Corporation, Appellee, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, HOISTING AND PORTABLE, LOCAL NO. 101, A. F. OF L., et al., Appellants.

No. 39763.

Supreme Court of Kansas.

Nov. 12, 1955.

Syllabus by the Court

A corporation, without filing any petition with the National Labor Relations Board and conceded for purposes involved on appellate review to be engaged in a business affecting interstate commerce, instituted an action in the district court of Douglas County to enjoin a labor union from picketing its supply base and operating headquarters, two state highway road projects, and all other like and similar work projects in which it might subsequently engage within the State of Kansas. The petition contained allegations charging that the picketing in question had been induced and ordered by the defendant labor union for the purpose of coercing and compelling plaintiff's employees to become members of such Union in violation of their legal rights. After a hearing on plaintiff's application for a temporary injunction the trial court, among other things, found in substance that the purpose and intent of the Union in picketing the involved work projects was to compel plaintiff to ratify an agreement previously submitted or to agree to a contract which would compel its employees to either join the Union or cease work, that such picketing had been peacefully conducted, but should be enjoined because it was being conducted in violation of the laws and declared policy of the State of Kansas. The trial court then overruled a motion by defendants to dismiss the action, based on the ground it was without jurisdiction of the subject matter because the acts complained of and the evidence disclosed the National Labor Relations Board had exclusive jurisdiction to determine the issues between the parties under the Labor Management Relations Act, 1947. Thereafter it issued a temporary injunction granting plaintiff the relief sought in the petition. Following Garner v. Teamsters Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228; Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546; other decisions of the supreme court of the United States cited in the opinion, and this court's decision in Texas Const. Co. v. Hoisting & P. E. Local Union No. 101, 178 Kan. 422, 286 P.2d 160, it is held, that under facts above stated and others more fully set forth in the opinion the district court was without jurisdiction of the subject matter and should have sustained the motion to dismiss the action.

Robert S. Fousek, Kansas City, Mo., argued the cause, and Bernard Borst, Lawrence, and John J. Manning, Kansas City, Mo., were with him on the briefs for appellants.

Donald Hults, Lawrence, and Philip E. Buzick, Topeka, argued the cause, and Robert L. Webb, Ralph W. Oman, Robert A. McClure, and James D. Waugh, Topeka, were with them on the briefs for appellee.

PARKER, Justice.

This was an action to permanently enjoin the defendants from picketing plaintiff's supply base and operating headquarters, two state highway road projects located in Douglas County, and all other like and similar work projects in which plaintiff might engage within the State of Kansas. The appeal is from a decision and order of the district court of Douglas County granting a temporary injunction. However, the sole appellate issue involved is whether the trial court had jurisdiction of the subject matter and power to grant such injunction.

The first twelve paragraph of the petition filed by the plaintiff at the time of the commencement of the action identify the parties and outline the factual situation on which it bases its right to injunctive relief. They read:

'1. That plaintiff is a corporation duly organized and existing under and by virtue of the laws of the State of Kansas, having its office and principal place of business at 1st and Topeka Avenue in the City of Topeka, Shawnee County, Kansas.

'2. The International Union of Operating Engineers, Hoisting and Portable, Local No. 101, A. F. of L., is an unincorporated association of individuals operating as a labor union. The defendant Leonard L. Cowee is the president of said labor union and resides in Kansas City, Missouri. The defendants Ralph Barney and C. G. Hamilton are business agents and representatives of said union. The said C. G. Hamilton resides at Kansas City, Missouri, and the said Ralph Barney resides in the State of Kansas. That said defendant labor union maintains an office and place of business at 903 Western Avenue in the City of Topeka, where certain records of said organization are kept and maintained and where the business of said defendant labor union is conducted in charge of some member or representative of said defendant union whose name is not at this time known to the plaintiff. That the plaintiff could not ascertain the true names of the defendants, John Doe and Richard Roe, nor their places of residence, but that said defendants are either members, employees, agents or representatives of the defendant, International Union of Operating Engineers, Hoisting and Portable, Local No. 101, A. F. of L., and are acting on its behalf, and are those several persons now engaged in picketing and other acts herein complained of and sought to be enjoined at the places of plaintiff's present operations in Douglas County, Kansas, as herein described.

'3. The defendants and each of them, except the defendant International Union of Oeprating Engineers, Hoisting and Portable, Local No. 101, A. F. of L., are members or claim to be members, or are employees, agents or representatives, or claim to be employees, agents or representatives of said defendant labor union, and are acting on behalf of and as representatives of said defendant labor union. That the membership of said defendant labor union is unknown to the plaintiff, and its agents and representatives are too numerous to set out herein, and many of them are unknown by name to this plaintiff. Plaintiff alleges, however, that all of said defendants are all either members, employees, agents or representatives of said defendant labor union and are actively in unison and in concert in the commission of the acts herein complained of and sought to be enjoined, and the plaintiff therefore joins as a class all of the members, employees, agents and representatives of said defendant labor union in this action which is collective insofar as all of the defendants are united as a class, and also joins said defendants and each and all of them as individuals, it being impractical to attempt to bring before the Court all of said defendants whose names and whereabouts are to this plaintiff unknown.

'4. The plaintiff is presently engaged under a State Highway project in widening and repairing a part of Highway No. 59 south of Lawrence, Kansas under a contract with the Kansas State Highway Commission, all of which work is of a nature in which the plaintiff normally conducts its business within and under its charter of powers. In connection with said work the plaintiff maintains a supply base and operation headquarters at a point about one mile east and one-half mile south of Stull, Kansas, and said place of operating together with the highway construction work south of Lawrence, Kansas, on Highway 59, are both located in Douglas County, Kansas.

'5. That plaintiff is likewise engaged and will be engaged in like or similar projects at other places within the State of Kansas, and particularly will soon be engaged in a project of widening and improving Highway No. 10 from its junction with Highway No. 59 west of Lawrence, Kansas, to the viaduct at the eastern limits of said City of Lawrence, Douglas County, Kansas.

'6. No labor dispute exists between the plaintiff and its employees nor does any labor dispute exist between the plaintiff and the defendant labor union or any of the other of said defendants.

'7. Plaintiff further alleges that the defendant labor union and its business representatives, officers and agents have not by a majority vote of the plaintiff's employees been authorized to represent the plaintiff's employees, and that a majority of plaintiff's employees engaged and to be engaged in said projects are not memebers of said defendant labor union, and that said defendant labor union is not the collective bargaining agent or representative of the plaintiff's employees.

'8. Said defendant labor union has caused pickets to be placed at the two present operating locations of the plaintiff in Douglas County, Kansas, hereinabove mentioned, the names of which pickets are not known to this plaintiff, and they are hereby designated as John Doe and Richard Roe and are made defendants herein. Plaintiff further alleges that the defendant labor union has threatened to and intends to place such pickets upon other like work projects of plaintiff within the State of Kansas, and particularly upon the work project of plaintiff soon to be commenced and concerning the widening and improvement of a part of Highway No. 10 in Douglas County, Kansas, hereinbefore more particularly described.

'9. Said defendants and particularly the defendants who are picketing said present operating locations of plaintiff in Douglas County, Kansas, are annoying, frightening and intimidating the employees of said plaintiff and those who are working upon said project under contract with said plaintiff, and threaten and intend to picket, annoy, frighten and intimidate the employees of plaintiff and those working under contracts with the plaintiff upon other like and similar projects of plaintiff within the State of Kansas, and particularly plaintiff's future project upon a part of Highway No. 10 in Douglas County, Kansas, as hereinbefore described, and this plaintiff alleges that unless siad unlawful and unauthorized picketing be restrained and enjoined said defendants will continue to picket said projects...