Lindsay v. Teamsters Union, Local No. 74, AFL-CIO

• Court: North Dakota Supreme Court
• Writing for the Court: TEIGEN; SATHRE
• Citation: 97 N.W.2d 686
• Parties: 44 L.R.R.M. (BNA) 2660, 37 Lab.Cas. P 65,659 John H. LINDSAY, John P. Schultz and Allan Herbst, co-partners, doing business as Schultz and Lindsay Gravel Co., Plaintiff and Appellant, v. TEAMSTERS UNION, LOCAL NO. 74, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated with the, et al., Defendants and Respondents.
• Docket Number: AFL-CIO,No. 7802
• Decision Date: 08 July 1959

Page 686

97 N.W.2d 686 44 L.R.R.M. (BNA) 2660, 37 Lab.Cas. P 65,659 John H. LINDSAY, John P. Schultz and Allan Herbst,
co-partners, doing business as Schultz and Lindsay
Gravel Co., Plaintiff and Appellant,
v.
TEAMSTERS UNION, LOCAL NO. 74, and International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers, affiliated with the AFL-CIO, et
al., Defendants and Respondents. No. 7802. Supreme Court of North Dakota. July 8, 1959.

Page 687

Syllabus by the Court.

1. Where there is a labor dispute upon a project for the construction, reconstruction and repair of a state highway that is connected at one end at the state line with a continuing highway in the other state, and connected at the other end with a Federal Interstate highway, and there is Federal participation in the project involved

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whereby the Federal Government pays 66 2/3 percent of the cost thereof, and where there will be involved in the project use of materials shipped to the site from other states and where the employer, being a construction firm, is engaged in other projects involving and affecting interstate commerce, the project and the contractor are subject to the Labor Relations Act.

2. Any controversy over the terms or conditions of employment is included in the term 'Labor Dispute,' Section 34-0801(1), NDRC 1943; U.S.C.A. Title 29, Section 152(9); 61 U.S. Statutes, Chapter 120, Section 2(9).

3. The right to enjoin acts of violence, intimidation and threats of violence by strikers and unions as provided by Chapter 34-08, NDRC 1943, and amendments thereto is not pre-empted by the National Labor Relations Act.

4. The granting of a temporary restraining order and a temporary or final injunction, when authorized, is a matter resting largely within the sound discretion of the trial court, and will not be disturbed except in case of a clear abuse of such discretion.

5. The District Judge may modify, continue or dissolve an injunction or refuse to do so as well as grant or refuse to grant the injunction in the first instance. His action will not be disturbed unless it appears there was an abuse of discretion.

6. The plaintiff as appellant has the burden of showing error and establishing affirmatively that the trial court has abused its discretion.

7. Where defendants called plaintiff as an adverse party for examination and the court on its own motion denied plaintiff's counsel the right to cross-examine the plaintiff at that time on matters of his examination in chief it constituted error.

8. Where a defendant in presenting his case called plaintiff as an adverse party for examination pursuant to Rule 43(b) North Dakota Rules of Civil Procedure, error by court in denying plaintiff's counsel the right to cross-examine the witness at that time on matters of his examination in chief was not prejudicial, where plaintiff's counsel called the plaintiff as a rebuttal witness and was not precluded from examining him fully, in the absence of a showing the plaintiff was harmed by the failure of the court to permit the cross-examination provided by the rule.

Bjella, Jestrab & Neff, Williston, Rausch & Chapman, Bismarck, on briefs, for appellant.

Walter O. Burk, Williston, and W. A. Jacobsen, Watford City, for respondents.

TEIGEN, Judge.

The plaintiff, co-partners, doing business as Schultz & Lindsay Gravel Company, commenced this action to invoke the injunctive powers of the state courts, alleging that the defendants were engaging in certain unfair labor practices in that the defendants were committing unlawful acts in an effort to prevent the plaintiff, by physicial force and violence, from conducting its lawful business and further alleging that such force and violence will continue, resulting in the plaintiff's inability to perform its contractual obligation to its loss and detriment. The moving papers were supported by various affidavits and upon presentation the district court issued an order to show cause, in the nature of a restraining order, ex parte, which instrument directed the defendants to show cause why the restraining order should not continue in effect during the pendency of the action. Thereafter a hearing was had, evidence taken and the district court dissolved the restraining order and refused to grant a temporary injunction. (The court in its order makes reference to the instrument as a permanent injunction. However, the effect was to refuse to issue its temporary injunction.)

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An appeal was taken from the order dissolving the temporary restraining order and the refusal to grant a temporary injunction during the pendency of the action.

Two actions were commenced, one five days subsequent to the first. However, both actions involved the same parties, the identical facts and with identical procedure followed, and the only reason for the second action was because of a delay of the hearing of the order to show cause occasioned by the necessity for the Supreme Court to appoint a district judge as a result of the filing of an affidavit of prejudice against the judge sitting, thus increasing the time before hearing could be had beyond the expiration of the five days provided for by Section 34-0808, NDRC 1943, making the temporary order void. Both actions by stipulation were consolidated for the purpose of the trial.

The plaintiff, a co-partnership, is engaged in highway construction and repair and at the time in question was in the act of performing a contract with the State of North Dakota for the construction, reconstruction and repair of a public highway, designated as North Dakota No. 23, lying east of Watford City, North Dakota. The defendant Union had no contract with the plaintiff. However, some of the plaintiff's employees were members of the defendant Union. The business agent of the defendant Union made demand upon the plaintiff for an increase in pay and for a contract with the Union. Both were denied by the plaintiff whereupon the employees who were members of the Union went on strike and a picket line was formed on Highway No. 23, and on an approach road thereto that led from the plaintiff's gravel pit from which pit the plaintiff was engaged in hauling gravel onto said highway using the approach road mentioned to enter the said highway with its trucks. The plaintiff operated approximately 40 large trucks for the purpose of hauling gravel onto said highway.

The employees who were non-members of the Union continued to work after the picket line was formed and it is the claim of the plaintiff that the defendants did not carry on peaceful picketing but were guilty of violence and unlawful conduct and alleged facts fully in its complaint and accompanying affidavits, constituting the moving papers.

The district court, after a full hearing, dissolved the temporary restraining order and refused to issue a temporary injunction to be effective during the pendency of the action, and in his opinion stated the controversy was a matter exclusively within the jurisdiction of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., and further, that the plaintiff failed to prove that the peace officers charged with the duty of protecting the plaintiff's property are unable or unwilling to furnish adequate protection.

The first question to be decided is whether the plaintiff, as the employer, was subject to the National Labor Relations Act.

Highway No. 23 is a state highway, connecting, however, at the North Dakota-Montana state line with a Montana Highway and connecting on the east with U. S. Highway No. 83 which runs from Canada, where it joins the Canadian highway, to the South Dakota line, where it continues in the State of South Dakota. It is a Federal Interstate Highway. It appears that there is Federal participation in the construction job involved in this action. The Federal Government pays 66 2/3 of the cost thereof and one-third thereof is paid by the state of which 22 2/9 percent may be borrowed from the Federal Government. The plaintiff's contract also provides that it oil surface that part of Highway 23 upon which it was working at the time in question. The oil to be used for this purpose will be shipped into the State of North Dakota from the State of Montana. The plaintiff, being a contracting and construction

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firm, on another project is engaged in building of a bridge crossing the Red River between the states of North Dakota and Minnesota, and that on another project it obtains gravel from within the State of Minnesota which is hauled onto the project site in the State of North Dakota.

The appellant is the owner of 25 of the trucks, 2 crushers and other equipment used on the project. The project was in charge of a foreman who took orders from the partners. The project was a single unit of various units operated by the partnership. The partnership is engaged in interstate commerce.

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