Local Union No. 324, Intern. Broth. of Elec. Workers, A. F. L. v. Upshur-Rural Elec. Co-op. Corp.

• Decision Date: 10 September 1953
• Docket Number: No. 6631,UPSHUR-RURAL,6631
• Citation: 261 S.W.2d 484
• Parties: LOCAL UNION NO. 324, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A.F.L. et al. v.ELECTRIC COOPERATIVE CORP. et al.
• Court: Texas Court of Appeals

Page 484

261 S.W.2d 484

LOCAL UNION NO. 324, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A.F.L. et al. v. UPSHUR-RURAL ELECTRIC COOPERATIVE CORP. et al.

No. 6631.

Court of Civil Appeals of Texas, Texarkana.

Sept. 10, 1953.

Mullinax & Wells, L. N. D. Wells, Dallas, for appellants.

Fulton, Hancock & McClain, Edwin M. Fulton and Hollie L. McClain, Gilmer, Powell, Wirtz & Rauhut, John B. Connally and William A. Brown, Austin, for appellees.

LINCOLN, Justice.

This appeal is by Riley Irvin and Hugh Campbell from an order refusing their petition for a temporary mandatory injunction against the appellees, Upshur- Rural Electric Cooperative, a corporation hereafter referred to as the Cooperative, and J. L. Johns, its manager. The petition, commendably clear and concise, alleged that appellants, employees of the Cooperative, were members of Local No. 324, International Brotherhood of Electrical Workers, A. F. L., a 'Labor Union', hereafter referred to as the Union, within the meaning of the Act of the 50th Legislature, 1947, Ch. 74, Sec. 4, p. 107, Vernon's Ann.Civ.St. art. 5207a; that appellants were discharged and denied employment by the appellees because of their membership in said Union, contrary to the provisions of said Act, and particularly of Sec. 2 thereof; that they have suffered, and will continue to suffer irreparable damages for which they have no adequate legal remedy. The prayer was for a mandatory injunction requiring appellees to reinstate them to their positions of employment during the pendency of the main suit. After a full hearing the district court denied the injunction prayed for.

The applicable portions of the Act referred to, Acts 50th Leg., Ch. 74, p. 107, Vernon's Ann.Civ.St. art. 5207a, read:

'Section 1. The inherent right of a person to work and bargain freely with his employer, individually or collectively, for terms and conditions of his employment shall not be denied or infringed by law, or by any organization of whatever nature.

'Sec. 2. No person shall be denied employment on account of membership or nonmembership in a labor union.

'Sec. 3. Any contract which requires or prescribes that employees or applicants for employment in order to work for an employer shall or shall not be or remain members of a labor union, shall be null and void and against public policy. * * *'

It is not necessary to set out Section 4 of the Act, which defines a 'labor union', as we hold, and the fact is not controverted, that the Union here involved is a 'labor union' within the meaning of the Act.

The Supreme Court has upheld the constitutionality of this Act. Construction and General Labor Union, Local No. 688 v. Stephenson, 148 Tex. 434, 225 S.W.2d 958. The effect of it is to make the 'closed shop' in Texas illegal and against public policy. Texas State Federation of Labor v. Brown & Root, Tex.Civ.App., 246 S.W.2d 938, writ refused, n. r. e.; Sheet Metal Workers Local No. 175 v. Walker, Tex.Civ.App., 236 S.W.2d 683, writ refused.

Since neither penalties nor remedial procedure is provided in the Act, the injunctive power of the courts may protect against invasion of such rights as are granted thereby. Brotherhood of Ry. and S. S. Clerks, etc., v. Texas & N. O. R. Co., D.C., 24 F.5d 426; Id., 5 Cir, 25 F.2d 873, 876, affirmed sub nom. Texas & N. O. R. Co. v. Brotherhood of Ry. and S. S. Clerks, 5 Cir., 33 F.2d 13, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034. The right, of course, is abstract, and the applicant must show himself entitled to equitable relief by bringing himself within the statutory requirements, art. 4642 et seq., R.S. of Texas, as they have been construed by the courts.

The burden of proof, as in all such cases, is upon the applicant to show himself entitled to the relief prayed for, 24 Tex.Jur., p. 180, Sec. 134; and the appellate court will indulge the usual presumptions in favor of the judgment appealed from. 24 Tex.Jur., p. 310, Sec. 251.

We will first dispose of the appeal of Riley Irvin. This appellant had been in the employ of the Cooperative for about eleven years, in construction and maintenance of electric transmission lines and in the general electric work of the Cooperative. He had been advanced from lineman to foreman of a crew, and about July 1, 1950, he was promoted to the position of construction superintendent or supervisor. As such he was in charge of and responsible for all construction and maintenance. All crews and their foremen were under his direction and control. Next to the manager, and later to the assistant manager, he was the highest ranking employee of the Cooperative.

About June 3, 1950, appellee J. L. Johns became manager of the Cooperative. Previous to his selection he had been construction superintendent, and after becoming manager he promoted Irvin to the position. Johns knew at that time that Irvin was a member of the Union, Irvin having had such membership for about ten years. Irvin was discharged on July 24, 1951. Appellants say he was discharged for 'union membership', contrary to the Act referred to. The case was tried to the court. No finding nor conclusions were filed, nor does the judgment as to Irvin and Campbell state the grounds of the decision. However the trial court filed, and there is brought up in the transcript, a 'Memorandum of Court's Decision.' filed on the date of the judgment entry. This instrument states: 'This memorandum is not to be taken as findings of fact or conclusions of law as contemplated by the Rules of Civil Procedure, and is intended only that interested persons may understand the reasoning of the court in reaching the judgment entered herein.'

In discussing the evidence the Court's Memorandum says: 'The evidence shows that Riley Irvin, as a superior of Wiley Cook on an occasion during working hours of both individuals and on their employer's premises, inquired whether or not Cook had joined a union at a time when he knew that Cook was being pressed to become a member. Such inquiry was more than a casual effort to acquire information because Irvin was present when another supervisory employee presented Cook with an instrument for Cook's signature designating the plaintiff union as Cook's bargaining representative. Such inquiry, in fact, threw the weight of Riley Irvin's superior position in the balance on the side of the union. Such evidence, joined with the uncontradicted testimony that at a time anterior to the conditions giving rise to the present suit Irvin worked with the union business manager in securing evidence for union use in its controversy with the Cooperative and attended union meetings at which union policy matters were discussed, leaves little doubt but what Irvin was soliciting members for his union on company time and on company premises and using the weight of his superior position to encourage employee applications for union membership. Such conduct is not protected by the quoted section (Sec. 2) from Article 5207a. The fact that the employer cooperative tried by various means to discourage union membership in its employees does not perponderate against this conclusion.'

Without regard to the Memorandum, the trial court's judgment involves findings above enumerated. We have carefully reviewed the facts and find they support such inferences. On the points mentioned by the trial court's Memorandum, the facts are not in material dispute. The trial court concluded that such facts constituted 'union activities' of such nature...