Kerkemeyer v. Midkiff, 191

• Decision Date: 29 July 1955
• Docket Number: No. 7365,R,No. 191,191,7365
• Citation: 281 S.W.2d 516
• Parties: 36 L.R.R.M. (BNA) 2594, 28 Lab.Cas. P 69,399 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 McGurdy, and all other members of Journeymen Barbers International Union of America, Localespondents.
• Court: Missouri Court of Appeals

Page 516

281 S.W.2d 516

36 L.R.R.M. (BNA) 2594, 28 Lab.Cas. P 69,399

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 McGurdy, and all other members of Journeymen Barbers International Union of America, Local No. 191, Respondents.

No. 7365.

Springfield Court of Appeals, Missouri.

July 29, 1955.

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

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

McDOWELL, Presiding Judge.

This is an action for declaratory judgment instituted in the Circuit Court of Greene County, Missouri, by eight barbers who are owners and operators of separate barber shops in Springfield, against defendants, members and officers of Journeymen Barbers, Hairdressers, Cosmetologists and Proprietors International Union of America, Local No. 191, affiliated with the American Federation of Labor, to have judicially determined the rights of the parties under collective bargaining agreements between each of plaintiffs and defendants' union and to enjoin defendants from removing or threatening to remove union shop cards from plaintiffs' places of business and for damages.

The cause of action is based upon breach of the collective bargaining agreement and the conditions contained on the back of the union shop card furnished plaintiffs by the union as incident to such collective bargaining agreement, growing out of a demand made by defendants' union against each of plaintiffs; that they become members of such union or surrender the union shop card.

The regular Judge of the Greene County Circuit Court disqualified and Honorable James P. Hawkins, Judge of the 18th Judicial Circuit, was called in.

Motions for judgment on the pleadings were filed by both plaintiffs and defendants and on the 23rd day of March, 1954, the court sustained defendants' motion and dismissed plaintiffs' petition. Plaintiffs appealed.

It is the contention of plaintiffs that the right to require the return of the union shop card presupposes a lawful right and that the sole and only point of dispute in this case is whether plaintiffs must join defendants' union as a condition to their rights to obtain and display such card; that defendants' demand that plaintiffs join defendants' union on threat of coercive action is not a lawful labor objective and destroys plaintiffs' rights in collective bargaining and their freedom of contract; that such demand is against the public policy of Missouri.

It is defendants' contention that the shop card is the sole property of the union furnished plaintiffs by virtue of a written contract between plaintiffs and defendants, showing defendants approved plaintiffs' shops; that defendants no longer are obligated to extend this approval because plaintiffs each have violated the terms of the collective bargaining agreement, and, under the terms of the contract, defendants are entitled to remove the card from plaintiffs' shops.

The facts decisive of the issues presented are: Plaintiffs each are proprietors of a barber shop in Springfield and each employ one or more barbers, members of defendants' union, Local 191; that for many years each of plaintiffs have conducted a union shop under a collective bargaining agreement with defendants' union (a copy of such agreement is in evidence as plaintiffs' exhibit A); that by the terms of said collective bargaining agreement the defendants' union is the sole bargaining agent for all employees and by its terms only members of local union 191 in good standing are employed.

It is provided that the agreement shall remain in force for a period of one year from the date thereof and thereafter for a like period successively unless terminated by mutual consent of the parties.

The union furnished each of plaintiffs its shop card, the withdrawal of which forms the basis of this controversy. It is a small metal backed card bearing on its face in red letters the words, 'Union Shop'. As a part of the agreement between the union and plaintiffs, plaintiffs were required to exhibit this card in their respective places of business. The agreement governing the use of the shop card was printed on the back thereof. A part of said conditions so printed were:

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

'(a) To abide by the laws of the J.B.H.C.P.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, and working conditions.

'(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.'

For many years each of plaintiffs operated as a union shop under the collective bargaining agreement with defendants' union, local 191. No dispute had arisen between plaintiffs and defendants or plaintiffs and their employees with regard to wages, hours and conditions of labor; that plaintiffs and their employees, all of whom are members of said local No. 191, are operating harmoniously under said collective bargaining agreement. Up until 1948, plaintiffs were not required by the laws, regulations and constitution of defendants' union, to become members thereof.

In September, 1948, the constitution of the union was amended to take effect January 1, 1949, and, subsequently in September, 1953, it was again amended, effective January 1, 1954.

Under Article VII, Sec. 1, it is provided that the barber shop cards are and always shall remain the property of the International Union and shall be the only card recognized as legal by the union.

Sec. 3 reads: 'Any shop recognized as a union shop by the laws and principles of our union shall be entitled to display said Shop Card, provided that the proprietor or person duly authorized to conduct said shop shall have signed the agreements required by these laws.

'When the Union Shop Card is removed from any shop for violation of the laws, rules, regulations and agreements, all members employed therein shall immediately leave the employment of said shop. For failure to comply with the above the member or members will be subject to suspension and to penalties as provided for in Article XIII of this Constitution.'

Section 5 of Article VII reads: 'No Shop Card shall be displayed in a barber or beauty shop unless all persons working in the shop with the tools of the trade are members of the union in good standing. * * *'

In our opinion we will refer to appellants as plaintiffs and respondents as defendants.

Under plaintiffs' allegations of error it is first contended that the trial court erred in sustaining defendants' motion for judgment on the pleadings because defendants' demand that plaintiffs join the union is an unlawful labor objective and destroys plaintiffs' right in collective bargaining and freedom to contract.

The law is well settled that each case must be determined upon the facts of that particular case. Spears v. Schantz, Mo.App., 246 S.W.2d 399, 406.

In deciding the issue raised by plaintiffs under this allegation we must determine from the facts the objective of the union in removing the union card from plaintiffs' businesses and whether or not that objective is reasonably related to any legitimate interest of organized labor.

The law is undisputed that concerted union activity for an objective which is not reasonably related to any legitimate interest of organized labor will be enjoined. Safeway Stores, Inc., v. Retail Clerks International Ass'n, 41 Cal.2d 567, 261 P.2d 721, 725.

The evidence is undisputed that for many years each of plaintiffs' shops have been conducted as union shops, operating under a collective bargaining agreement with defendants' union, employing only members of said union and complying with the regulations relative to wages, hours and conditions of employment as provided in such contract; that defendants' union was and is the bargaining agent for all of its employees.

As an incident to the execution of the bargaining agreement between plaintiffs and defendants' union, the union loaned to each of plaintiffs its shop card, a metal backed card bearing on its face, in red letters, the word 'Union Shop', for such time and on such conditions as are provided on the back thereof. As a part of the agreement plaintiffs were required to exhibit this card in their respective places of business. Under the terms of the agreement plaintiffs agreed that they would abide by the rules governing shop cards. These rules required that the plaintiffs abide by the laws of the J.B.H.C.P.I.U. of A. governing shop cards and such laws as may be made in the future for the proper government of the same; that plaintiffs peaceably give up such shop cards on demand of the local union for the violation of any local or international laws.

The constitution of the union was amended so as to provide 'No Shop Card shall be displayed in a barber or beauty shop unless all persons working in the shop with the tools of the trade are members of the union in good standing. * * *'

It is admitted that each of plaintiffs refused to join the union and that each of them are barbers working in their shops with the tools of the trade. Demand has been made by the union against each of plaintiffs that they become members of the union or surrender the union card. The labor objective here is to compel each of plaintiffs, who work with the tools of the trade in their business as barbers, to become members of defendants' union or surrender the union shop card, which, in itself, has no value but is a symbol of union recognition of...