Local 100 of United Ass'n of Journeymen and Apprentices v. Borden

• Decision Date: 09 February 1962
• Docket Number: No. 15930,15930
• Citation: 355 S.W.2d 729
• Parties: LOCAL 100 OF the UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES et al., Appellants, v. H. N. BORDEN, Appellee.
• Court: Texas Court of Appeals

Page 729

355 S.W.2d 729

LOCAL 100 OF the UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES et al., Appellants, v. H. N. BORDEN, Appellee.

No. 15930.

Court of Civil Appeals of Texas, Dallas.

Feb. 9, 1962.

Rehearing Denied March 23, 1962.

Mullinax Wells, Morris & Mauzy and George Schatzki, Dallas for appellants.

Lyne, Blanchette, Smith & Shelton, robert W. Smith, Dallas, for appellee.

YOUNG, Justice.

This is a damage suit brought by Borden, appellee, against two unincorporated labor unions--appellant Local 100 and the parent body of similar name. Borden sought money damages both actual and punitive, for loss of earnings and mental anguish, arising out of allegedly wilful, malicious and discriminatory course of conduct of the two unions; same consisting of the refusal of the unions to treat appellee as any other union member and to refer him to a job offered him in the construction of the Republic National Bank Building. His suit is based on allegations involving both tort and contract.

This suit had been previously dismissed by the trial court on plea in abatement, and on appeal to this Court was reversed and remanded to the trial court for trial to the merits. On writ of error granted by our Supreme Court, the opinion of reversal was affirmed; it holding that a cause of action would lie if plaintiff 'was willfully denied a job opportunity to which Lanham [the Local Union Business Manager], knew he was entitled under the rules and procedures established by petitioners for allocating work among their members, and that petitioners either conspired with Lanham to bring this about or otherwise authorized or ratified his wrongful conduct * * *.' United Association of Journeymen, et al. v. Borden, 160 Tex. 203, 328 S.W.2d 739; see also 316 S.W.2d 458 for further background of case and conclusions of this Court.

The facts material to appellee's claim of injury are generally outlined in the following summary of the numbered jury issues and answers: (1) that on or about Sept. 16, 1953 plaintiff Borden was promised a job on the Republic National Bank Building by the authorized foreman of the Farwell Construction Company; (2) that at a time when plaintiff was available for work, a call was placed by A. G. Thurman calling for plaintiff to go to work upon said Republic Bank Building; (3) that defendant Local Union 100 by and through its business manager Cleo Lanham, thereafter did not refuse to accept plaintiff's clearance card from his local union in Shreveport, Louisiana; (5) that said defendant Local Union 100 wrongfully refused to let plaintiff work on said Republic Bank Building; (6) that such refusal was made at a time when said Cleo Lanham knew that under the rules of said local union plaintiff was entitled to work on said bank building; (7) that such refusal to let the plaintiff work on said bank building was not without any cause or reason whatsoever; (8) that with full knowledge of the conduct of Cleo Lanham concerning plaintiff, the officers and members of defendant Local Union 100 approved such conduct; (9) that had plaintiff been allowed to work on the Republic Bank Building from Sept. 15, 1953 to Sept. 15, 1954 he would have earned $5,856; (10) plaintiff earned, or by use of reasonable diligence, could have earned during same period the amount of $3,940; (11) that plaintiff, by being denied the Republic Bank job opportunity, suffered mental anguish; (12) which was proximately caused by defendants Local Union 100; (13) reasonable compensation for the mental anguish suffered was $1500; (14) that plaintiff should be awarded $5,000 as punitive damages against defendant Local Union 100; (15) that plaintiff, after having been refused the job opportunity to work on the Republic Bank Ruilding, did fail to pursue his grievance within the rules and procedures of said Local Union 100 that were available to him; (16) that plaintiff voluntarily accepted other work in October 1953 upon referral from defendant Local 100 without complaint; (17) but that plaintiff did not acquiesce in defendant Local 100 actions; (19) plaintiff did not fail to apprise defendant Local 100 of his complaints; (22) that it would have been useless for plaintiff to have pursued his complaint within the rules and procedures of the defendant Local 100.

In this connection the court overruled the motion for summary judgmen of Local Union 100 seasonably filed and carried along to close of evidence; also its motion for judgment on the verdict; and in the alternative, its motion for judgment non obstante veredicto. Plaintiff's motion to disregard jury answer to issue No. 7 and for judgment on remainder of the jury verdict was sustained; holding however that in a suit of this type the issue of mental anguish was not raised and should not have been submitted; also that the amount of the punitive damages so found was excessive; and that plaintiff should be required to reduce the punitive damages to an amount not exceeding the actual damages sustained, or a total judgment of $3,832 to which plaintiff duly excepted, defendant Local Union 100 likewise excepting to all of above adverse rulings. A peremptory instruction had been given in favor of the parent union to which plaintiff duly excepted.

Appellant again asserts exclusive application of 29 U.S.C.A. Sec. 151 et seq., (Taft-Hartley Act) to this lawsuit. ¹

In this plea to the jurisdiction it is argued that answer to issue No. 5--wilful refusal of defendant Local Union 100 through Lanham that the plaintiff work on said Republic Bank Building--constituted an unlawful labor practice within provisions of Section 158(b) which reads: 'It shall be an unfair labor practice for a labor organization or its agents * * * (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section * * *'. The material part of subsection (a)(3) of Sec. 158 reads as follows: 'It shall be an unfair labor practice for an employer--* * * (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: * * *.'

The suit of Borden as already stated was based on both contract and tort. Even if Borden be considered an employee, which appellee denies, Farwell Construction Company, the contractor and employer, was not a party to the suit and there is no evidence that it practiced any discrimination against Borden or treated him anywise different from other employees. He was simply offered a job and requested to obtain a referral from Local Union 100 as were all other employees of Farwell. By plain wording of the Act, the discrimination must be limited to purpose of encouragement or discouragement of membership in the union and plaintiff was already a member. This is a suit for wrongs allegedly committed against plaintiff by arbitrary conduct of Local Union 100; and as held in International Association of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018, the Labor Management Relations Act does not displace state court jurisdiction over suits to determine and enforce rights of union members in their union. In the cited cases it is stated: 'But the protection of union members in their rights as members from arbitrary conduct by unions and union officers has not been undertaken by federal law, and indeed the assertion of any such power has been expressly denied. The proviso to Sec. 8(b)(1) of the Act states that 'this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein * * *." The point is again overruled.

Appellant's further points should now be stated: Of court error; (2) because Lanham had no duty to refer Borden to the job site as requested; (3) because the denial by Lanham of a referral was not the cause for Borden's failure to obtain employment at the Bank site; (4) because te union was not responsible for Lanham's acts; (5) in admitting into evidence inflammatory, irrelevant and incompetent evidence; (6) because the finding of Thurman's authority to hire was contrary to the great weight and preponderance of the evidence; (7) in not barring the plaintiff's recovery because of his failure to exhaust remedies within the union; (8) in not finding that the plaintiff was barred from recovery by laches and/or estoppel; (9) in awarding punitive damages; (10) in not setting aside the verdict and declaring a mistrial because the jury's answer to Special Issue No. 5 contradicted and conflicted with the jury's answer to Special Issue No. 7. All of above points were appropriately countered by appellee.

Local Union 100 is an unincorporated association of some 800 membership in 1954, plaintiff being a member of that union. Members of one Local of the parent association can transfer to any other Local if in good standing. A clearance card is a devise by which a home local certifies that a member is in good standing. When this card is presented to a local under whose auspices the member seeks to work, the member is in all respects transferred to that Local. A member may also commence work in a certain locality by placing a deposit with the Local Union and later securing his clearance card.

A resume of material evidence bearing on all points and counterpoints (though generally disputed) is presented in the brief of appellee: that in mid-September 1953 Borden arrived in Dallas and called Jack Heath, superintendent for Farwell Construction Company. He had previously worked for this company in Galveston, being there told that he could work for said company on the Republic job site. On coming to Dallas Borden then presented his dues book to Lanham, business manager of Local Union 100; Lanham then telling him that he had come to Dallas 'with a job in his pocket' and refused to accept Borden's dues book, further telling him that he would never go to work on the...