Kerkemeyer v. Midkiff

• Decision Date: 11 March 1957
• Docket Number: R,No. 191,No. 45189,191,45189
• Citation: 299 S.W.2d 409
• Parties: 38 L.R.R.M. (BNA) 2654, 31 Lab.Cas. P 70,206 O. H. KERKEMEYER, Ben H. Gist, Earl C. Tolbert, L. Guy Scroggins, Henry Geers, W. H. Jones, A. B. Craig and Ray D. Hough, Appellants, v. S. R. MIDKIFF, George Lowe, and Otis McCurdy and all other members of Journeymen Barbers, International Union of America, Localespondents.
• Court: Missouri Supreme Court

Page 409

299 S.W.2d 409

38 L.R.R.M. (BNA) 2654, 31 Lab.Cas. P 70,206

O. H. KERKEMEYER, Ben H. Gist, Earl C. Tolbert, L. Guy

Scroggins, Henry Geers, W. H. Jones, A. B. Craig and Ray D. Hough, Appellants, v. S. R. MIDKIFF, George Lowe, and Otis McCurdy and all other

members of Journeymen Barbers, International Union

of America, Local No. 191, Respondents.

No. 45189.

Supreme Court of Missouri, En Banc.

March 11, 1957.

Turner White, Chinn & White, Springfield, for appellants.

Neale, Newman, Bradshaw, Freeman & Neale, F. B. Freeman, Donald J. Hoy, Springfield, for respondent.

STOCKARD, Commissioner.

Plaintiffs are the respective owners and operators of eight separate barbershops in Springfield, Missouri, and this action is brought against the three named defendants in their capacity as officers, members and representatives of a class of persons composed of the members of Journeymen Barbers, Hairdressers, Cosmetologists and Proprietors International Union of America, Local No. 191, A. F. of L. The defendants will hereafter be referred to as 'Local 191' or the 'union.' Plaintiffs seek a judicial determination of their right to display a 'union shop card' in their respective barbershops, and also seek to enjoin the union from removing the union shop card and from taking other action to compel the plaintiffs to join in union.

The trial court entered judgment on the pleadings for the union, and this was affirmed by the Springfield Court of Appeals with one judge dissenting. Kerkemeyer v. Midkiff, Mo.App., 281 S.W.2d 516. That court then transferred the cause here pursuant to the provisions of the Missouri Constitution (1945), Sec. 10, Article V, V.A.M.S., because of the general interest and importance of the questions involved; therefore, it is here as though upon original appeal. Both parties filed motions for judgment on the pleadings, and for the purpose of the motions each party thereby admitted the facts well pleaded in the pleadings of the other. Turner v. Browne, 351 Mo. 541, 173 S.W.2d 868.

Each plaintiff is the proprietor of a barbershop in which he works doing regular barbering service as well as administrative duties and in which he employs one or more union barbers who are members of Local 191. Each plaintiff has entered into a contract with Local 191 which governs working conditions and compensation, and which also provides for what is generally known as a 'union shop' in that all barbers employed must be or become members of the union, but there is no provision in this contract by which plaintiffs agree to or are required to become members of the union.

In addition to the contract above referred to, each plaintiff, at various times prior to 1954, entered into an additional 'written agreement' with Local 191 in which each agreed, in consideration of being allowed to display the 'union shop card,' that he would 'comply with all the conditions imposed in the 'Rules Governing Shop Cards' which are printed on the back of said Union Shop Card and any subsequent rules.' The terms of this second agreement are not set forth in the transcript, and only a part of the said 'Rules Governing Shop Cards' is contained therein, that part being as follows:

'* * * the person or persons displaying the Shop Card shall specifically agree:

'(a) To abide by the laws of the J. B. H. C. I. U. of A. governing Shop Cards and such laws as may be made in the future for the proper government of the same.

'(b) To abide by the laws of the local union, now and in the future, with reference to prices, hours, wages, etc.

'(c) To peaceably give up said Shop Card on demand of the local union or local executive board, through its duly appointed representative, for the violation of any local or International laws.

'(d) To peaceably give up said Shop Card * * * for any cause, when called upon to do so.'

There is no explanation of what constitutes the 'laws of the J. B. H. C. I. U. of A. governing Shop Cards' but we shall assume that this refers to the constitution of the parent organization of Local 191 which is a part of the transcript. When the plaintiffs, except Henry Geers, acquired the union shop cards for their respective establishments the union 'laws' contained no requirement that a working proprietor must be a member of the union, but an amendment to the constitution as of January 1, 1948, provided that such an employer must be a nonactive member who should not be entitled to vote or a seat in union meetings or to hold any office. The constitution was again amended effective January 1, 1954, subsequent to the time that all plaintiffs acquired their respective union shop cards, to require that a proprietor who works with the 'tools of the trade' must be a member of the union in good standing, and that no union shop card should be displayed in a barbershop unless all persons working therein with the tools of the trade are members of the union. The 'laws' do not purport to require that a proprietor who does no work with the tools of the trade join the union. This second amendment provides that all members are entitled to 'equal rights of membership, including the right to vote and hold office.' The constitution also provides that upon the removal of a union shop card for violation of the 'laws' of the union all union members employed in the shop must immediately leave their employment. Failure to comply subjects the employee to suspension of his union membership and to other severe penalties.

Plaintiffs all belong to an association of master barbers, an employers' association, and the 'laws' of Local 191 forbid any of its members from belonging to such an organization. If plaintiffs join Local 191 they will lose their accrued rights in the association of master barbers which include sickness and death benefits.

For many years each of the plaintiffs has operated his barbershop as a 'union shop' and has displayed the union shop card. There is no dispute between plaintiffs and Local 191, or between plaintiffs and their employees concerning wages, hours or conditions of employment. However, because plaintiffs work in their own barbershops with the 'tools of the trade,' Local 191 has demanded that each plaintiff join the union or surrender the union shop card. Plaintiffs have complied with every term of the contract covering working conditions and with all the 'laws' of the union except that they refuse to join Local 191. They have brought this suit seeking a judicial declaration of their right to display the union shop card, and they pray for an injunction enjoining Local 191 and its agents from removing the cards for the reason that they refuse to join Local 191 and from causing a strike of plaintiffs' employees for the same reason. Unless plaintiffs are entitled to the relief they hereby seek, they are each faced with the choice of joining Local 191 and losing the benefits accrued to them by membership in the employers' association, or doing no work in their own barbershop with the tools of the trade. The alternative is to have a strike by their employees.

The position of Local 191, in substance, is that the shop cards are its property and that it can demand and remove the cards at any time for any reason satisfactory to it regardless of the purposes for which the demand is made or of the consequences to the plaintiffs, and that the plaintiffs, by accepting the cards with the conditions printed on the back thereof and signing the shop card agreements consented to this and agreed to be bound by all the 'laws' of the union, whatever they might be, whether then existing or thereafter adopted, including the rule that proprietors who work with barbering tools must join the union and be subject to all its 'laws.' However, we believe that the determination of this case turns on questions other than the property right in the shop cards. The union has demanded the cards from the plaintiffs, not because it wishes to make some other use or disposition of them, but because of what they symbolize, and because by the threat of withdrawal of the cards, with the knowledge of the plaintiffs that a strike will follow a withdrawal, it is anticipated that plaintiffs will be coerced either into doing no work in their own barbershops or into joining Local 191 and contributing financially to its support. Local 191 admits that the financial aspect is present because in its brief it is asserted that the purpose of the union in amending its constitution to require that those proprietors who work with tools of the trade join the union was that 'employerbarbers should also pay.' The basic issue in this case then is not the property interest of the union in the shop cards, or the purported right of the union in general to withdraw its shop cards, whether based on agreement or otherwise, but whether the union may use this or any other type of coercion or economic pressure against the plaintiffs as employers to compel them against their wishes to stop working with the tools of the trade in their own barbershops or to join Local 191 and be subject to its 'laws' and contribute financially to its support.

Forms of economic pressure by a union against an employer, including the threat of a strike, are permissible where the object sought to be attained is reasonably related to a legitimate interest of organized labor, and where such concerted action is carried out peaceably and honestly. Fred Wolferman, Inc. v. Root, 356 Mo. 976, 204 S.W.2d 733, 174 A.L.R. 585, certiorari denied 333 U.S. 837, 68 S.Ct. 608, 92 L.Ed. 1122; Hobbs v. Poteet, 357 Mo. 152, 207 S.W.2d 501. But if the objective is unlawful or contrary to the public policy of this state, and would result in damage for which there is not an adequate remedy at law, a court of equity may enjoin such activity, Fred Wolferman, Inc. v. Root, supra , and it will decline its aid in accomplishing that objective, regardless of the purported agreement the defendants may claim to have with the plaintiffs....