Local Union No. B843 of Int'l Bhd. of Elec. Workers v. W. Pub. Serv. Co.

• Decision Date: 25 July 1941
• Docket Number: No. 31149.,31149.
• Citation: 140 Neb. 186,299 N.W. 531
• Parties: LOCAL UNION NO. B843 OF INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS v. WESTERN PUBLIC SERVICE CO.
• Court: Nebraska Supreme Court

140 Neb. 186

299 N.W. 531

LOCAL UNION NO. B843 OF INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

v.WESTERN PUBLIC SERVICE CO.

No. 31149.

Supreme Court of Nebraska.

July 25, 1941.

Syllabus by the Court.

1. “Indispensable parties to a suit are those who not only have an interest in the subject-matter of the controversy, but also have an interest of such a nature that a final decree cannot be made without affecting their interests, or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience.” Jordan v. Evans, 99 Neb. 666, 157 N.W. 620.

2. In a suit in equity by a labor union for an injunction to prevent a public service corporation from retaining in its employ union members in arrears in the payment of union dues, employees in arrears are indispensable parties defendant.

Appeal from District Court, Scotts Bluff County; Perry, Judge.

Suit in equity by Local Union No. B843 of the International Brotherhood of Electrical Workers affiliated with the American Federation of Labor, against the Western Public Service Company, Western Division, to enjoin the defendant from retaining in its employ any member or members of the plaintiff in arrears in payment of union dues. From a judgment dismissing the suit, the plaintiff appeals.

Judgment modified so that petition was dismissed without prejudice, and as modified affirmed.

George I. Craven, of Lincoln, for appellant.

Mothersead & York, of Scottsbluff, Davis & Stubbs and James N. Ackerman, both of Lincoln, for appellee.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and YEAGER, JJ.

ROSE, Justice.

This is a suit in equity by a labor union to enjoin an employer of labor from retaining in its employ any member or members of the union in arrears in payment of union dues.

The plaintiff is Local Union No. B843 of the International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, an unincorporated voluntary association. The only defendant is Western Public Service Company, Western Division, a corporation.

In the petition plaintiff names 12 members of the union, employees of defendant, who are alleged to be in arrears in the payment of dues. The working contract between plaintiff and defendant, relating to employment and discharge of employees, to time of service and to other mutual obligations, is made a part of the petition for an injunction. One paragraph of the contract is as follows: “The company agrees upon written notice and satisfactory proof from the union that any member who is not in good standing (arrears in respect to dues) with the union shall not be retained in the employment of the company beyond a period of ten (10) days after receipt of said notice and proof.”

It is also alleged in the petition that plaintiff has performed the contract ever since it was executed October 1, 1938; that defendant gave notice October 1, 1939, that it would no longer be bound by the contract and in the future would retain in its employ members of the union who are in arrears in payment of union dues; that plaintiff gave notice to defendant and made satisfactory proof that the following named members of the union and employees of defendant had lost their standing in the union because of arrears in the payment of dues, and that defendant cannot retain them as employees without violating the contract, to the irreparable injury of plaintiff: Clyde Vorse, J. H. Rehr, L. F. VanNoy, E. F. Kimbrell, H. L. Miller, J. D. Pearre, George Trumbo, S. B. Dozier, C. E. Horn, Roy LaFollette, Don Taylor and Charles Wilson. These employees are not parties to the contract nor to this suit in equity. A prayer of the petition for an injunction reads thus: “That defendant, and all persons acting by, through or under it, its agents and attorneys, be temporarily restrained and temporarily and permanently enjoined from retaining in its employ any members of the plaintiff union for a period of time longer than ten days from and after receipt of written notice and satisfactory proof that said member or members are in arrears in the payment of their dues to plaintiff union.”

The petition was attacked by demurrer on the ground “That there is a defect of parties defendant.” As already indicated, no employee alleged to be in arrears for union...