Local No. 234 of United Ass'n of Journeymen and Apprentices of Plumbing and Pipefitting Industry of U.S. and Canada v. Henley & Beckwith, Inc.

• Decision Date: 31 July 1953
• Citation: 66 So.2d 818
• Parties: 32 L.R.R.M. (BNA) 2577, 24 Lab.Cas. P 67,765 LOCAL NO. 234 OF UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF PLUMBING AND PIPEFITTING INDUSTRY OF UNITED STATES AND CANADA v. HENLEY & BECKWITH, Inc.
• Court: Florida Supreme Court

Page 818

66 So.2d 818

32 L.R.R.M. (BNA) 2577, 24 Lab.Cas. P 67,765

LOCAL NO. 234 OF UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF PLUMBING AND PIPEFITTING INDUSTRY OF UNITED STATES AND CANADA v. HENLEY & BECKWITH, Inc.

Supreme Court of Florida, Division A.

July 31, 1953.

Coffee & Coffee, Jacksonville, for petitioner.

Knight, Walrath, Kincaid & Young, Jacksonville, for respondent.

SEBRING, Justice.

The respondent, who is a plumbing contractor, filed a complaint in the Circuit Court of Duval County, Florida, to obtain a declaration as to its rights, obligations, duties and status under a certain employment contract entered into with a local plumbers' union. The union moved to dismiss the action on the ground, among others, that the written agreement on which the action was based was invalid and unenforceable as to both parties because it was a closed shop agreement entered into in violation of the law and the settled public policy of the state. The trial court refused to grant the motion to dismiss the action and ordered the union to answer. Thereupon, the union instituted this present certiorari proceeding to review the order of denial.

The contract in issue is styled an 'Agreement Between the Employing Plumbing and Pipefitting Contractors and Local Union No. 234.' As appears on its face, it was executed on November 1, 1944, and thereafter renewed as amended on August 20, 1947, and May 11, 1951, respectively.

Article 7 of the Agreement provides: 'No member of Local No. 234 shall work for an employer who is not a party to this Agreement, except for firms recognized by the United Association [of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada] as fair, and engaged in the fabrication or erection of equipment or devices that come under the jurisdiction of [said] United Association, and no employer shall work or employ any Journeyman who is not a member in good standing of Local No. 234.'

Two questions are presented in this proceeding: (1) Whether Article 7 of the contract is violative of the public policy of this state because it attempts to create a closed shop status between the union and the employer; and (2) assuming that Article 7 is a provision for a closed shop, whether it renders the whole contract void.

We think there can be no doubt that Article 7 of the contract is a stipulation providing for a closed shop agreement. Indeed, the parties to this proceeding present no strenuous argument in opposition to the fact that such is its intent and purpose. Under this stipulation the union, with certain recognized exceptions, undertakes to agree that its members will work for no employer who is not a party to the agreement--and identical agreements to be negotiated by and between the union and employers performing work similar to that which is made the subject matter of the contract. The employer undertakes to agree that it will employ no journeyman who is not a member in good standing of the union. A closed shop agreement is defined as a contract 'by which employers obligated themselves to exclude persons from employment because they were or were not labor union members'. See Local Union No. 519 of United Ass'n of Journeymen and Apprentices of Plumbing and Pipefitting Industry of U. S. and Canada v. Robertson, Fla., 44 So.2d 899, 902. The agreement in the case at bar comes squarely within this definition.

Section 12, Declaration of Rights of the Florida Constitution, F.S.A., declares, among other things, that 'The right of persons to work shall not be denied or abridged on account of membership or nonmembership in any labor union, or labor organization * * *.' A similar provision appears either in the constitution or statutes of twelve other states of the Union, ¹ and when the issue has been raised in those jurisdictions it has been held that an agreement which attempts to contravene such a provision is repugnant to public policy. Lincoln Federal Labor Union No. 19129 v. Northwestern Iron and Metal Co., 149 Neb. 507, 31 N.W.2d 477, affirmed on constitutional grounds 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212, 6 A.L.R.2d 473. 'The 'closed shop' agreement * * * became eo instante null and void * * * being in violation of the above statutes, and contrary to public policy * * *.' In re Port Publishing Co., 231 N.C. 395, 57 S.E.2d 366, 368, 14 A.L.R.2d 842. See also American Federation of Labor v. American Sash & Door Co., 67 Ariz. 20, 189 P.2d 912, affirmed 335 U.S. 538, 69 S.Ct. 258, 260, 93 L.Ed. 222, 6 A.L.R.2d 481. 31 Am.Jur. Labor, sec. 108, 1952 pocket supplement.

To the same effect is Local Union No. 519 of United Ass'n of Journeymen and Apprentices of Plumbing and Pipefitting Industry of U. S. and Canada v. Robertson, supra, wherein it is stated: 'By these provisions of the Constitution and the statutes [section 12, Declaration of Rights, Florida Constitution; Ch. 21968, Laws of Florida 1943, F.S.A. § 481.01 et seq.] the public policy of the State of Florida with respect to labor activities and labor opportunities has been set forth and defined. Under these provisions it is the declared public policy of the State that all working men, whether union or non-union, shall be considered on an equal footing with respect to labor opportunites. They are guaranteed complete freedom of decision in whether to join or refrain from joining any labor organization. No person or organization may deny them the right of obtaining or retaining employment, nor may the right be abridged, by reason of membership or nonmembership in any labor organization. They are not to be coerced or intimidated in the enjoyment of their legal rights, including the right of free decision as to whether or not they will join a union, and any person or labor organization who so coerces or intimidates them is to be deemed guilty of a crime punishable by fine or imprisonment or both.'

We must agree, therefore, with the position taken by the defendant union, that Article 7 is a provision for a closed shop agreement and hence violates the fixed public policy of this state. Consequently the contract to which Article 7 applies must fall unless it can be said from a fair construction of the contract that Article 7 can be severed therefrom without doing violence to the intentions of the parties as to the remainder.

We reach this conclusion for the very evident reason that an agreement that is violative of a provision of a constitution or a valid statute, or an agreement which cannot be performed without violating such a constitutional or statutory provision, is illegal and void. Lassiter & Co. v. Taylor, 99 Fla. 819, 128 So. 14, 69 A.L.R. 689. And when a contract or agreement, express or implied, is tainted with the vice of such illegality, no alleged right founded upon the contract or agreement can be enforced in a court of justice. 12 Am.Jur., Contracts, secs. 160, 209. Where the parties to such an agreement are in pari delicto the law will leave them where it finds them; relief will be refused in the courts because of the public interest. Stewart v. Stearns and Culver Lumber Co., 56 Fla. 570, 48 So. 19, 24 L.R.A.,N.S., 649; Escambia Land & Mfg. Co. v. Ferry Pass Inspectors & Shippers Ass'n, 59 Fla. 239, 52 So. 715, 138 Am.St.Rep. 121. For courts have no right to ignore or set aside a public policy established by the legislature or the people. Indeed, there rests upon the courts the affirmative duty of refusing to sustain that which by the valid statutes of the jurisdiction, or by the constitution, has been declared repugnant to public policy.

As to when an illegal portion of a bilateral contract may or may not be eliminated leaving the remainder of the contract in force and effect, the authorities hold generally that a contract should be treated as entire when, by a consideration of its terms, nature, and purpose, each and all of its parts appear to be interdependent and common to one another and to the consideration. Stokes v. Baars, 18 Fla. 656; 12 Am.Jur., Co...