McMahon v. Milam Mfg. Co.

• Citation: 127 So.2d 647,242 Miss. 71
• Decision Date: 27 February 1961
• Docket Number: No. 41687,41687
• Parties: Russell McMAHON et al. v. MILAM MANUFACTURING COMPANY.
• Court: United States State Supreme Court of Mississippi

Page 647

127 So.2d 647

242 Miss. 71

Russell McMAHON et al. v. MILAM MANUFACTURING COMPANY.

No. 41687.

Supreme Court of Mississippi.

Feb. 27, 1961.

Pyles & Tucker, Jackson, Robert Cohn, Atlanta, Ga., for appellant.

Mitchell & McNutt, Tupel, for appellee.

LEE, Presiding Justice.

The Chancery Court of Lee County, on the application of Milam Manufacturing Company, issued temporary and permanent injunctions against Russell McMahon and others, enjoining them from picketing the plant of the complainant; and the defendants appealed.

Milam Manufacturing Company, a Mississippi corporation, with its domicile at Tupelo in this State, is engaged in the manufacture of garments. Most of its production consists of garments which are made under its own label for sale to the general public. Since 195l, the company has manufactured certain garments for Texson Company, a corporation of San Antonio, Texas, and White Stag Manufacturing Company of Portland, Oregon, on a 'cut, make and trim' basis, that is, these companies furnished the cloth and the labels, with the design for the garments, and Milam cut the cloth in accordance with the patterns, sewed the same together with the trimming, and placed the labels thereon. In other words, Milam furnished the thread and its machines and the labor to make these garments. Milam shipped the finished garments in bulk directly to Texson at San Antonio, Texas, or to White Stag Manufacturing Company at Portland, Oregon, as the case might be. In advance, Texson placed its orders for spring and fall lines.

So far as ownership was concerned, there was no relationship whatever between Milam and Texson. No stockholder, officer, or director of Milam owned any stock in Texson; and no stockholder, officer or director of Texson owned any stock in Milam. Texson in no way exercised supervision or control over Milam. Only twice during the three-year period from 1956-1959 have representatives of Texson even visited the plant of Milam, and the purpose, on those occasions, was merely to become acquainted. The two plants were hundreds of miles apart. The only relationship between the two corporations was that a small percentage of Milam's total production of garments went to Texson on the 'cut, make and trim' basis, as above described.

Milam's total sales for the stated years, together with the corresponding sales to Texson and the relative percent thereof were shown to be as follows: 1956-1957: Total sales $1,102,847; sales to Texson, $25,392.62, or .0230 percent. 1957-1958: Total sales $999,178; sales to Texson, $101,596.92, or .1016 percent. 1958-1959: Total sales $1,013,819.69; sales to Texson, $127,478.12, or .1257 percent. The sales to Texson for the months of March and April 1959 were $10,619.53 and $9,241.56, respectively, whereas the sales to Texson for those months in 1958 were $13,114.39 and $8,873.26, respectively, thus showing that the sales for those two months in 1958 were greater than for 1959.

Milam's profit on its operation with Texson had approximated from 5 percent to 15 percent of the total cost thereof.

In February 1959, employees of Texson, under the leadership of International Ladies' Garment Workers Union, AFL-CIO, went on strike in San Antonio, Texas. The only notice which Milam had of that strike was a newspaper article which several of the officers of the company read after the strike had begun.

Subsequently, on March 6, 1959, at a time when there was no dispute whatever between Milam and its employees, none of whom were members of the union, and when there was no request that Milam take over or aid the strike-bound plant of Texson, pickets, under the direction of Russell McMahon, business agent of International Ladies' Garment Workers Union, who was acting under orders from the Atlanta office of the union, appeared along the receiving driveway at Milam's with signs which read: 'Texson-Milam Mfg. Co. on strike. International Ladies' Garment Workers, AFL-CIO'. McMahon admitted that he was sent to Tupelo by his superiors for the purpose of directing 'a strike, a picket line;' that he brought the 'plackets' with him and wrote the above mentioned words thereon; that he was informed that some people would meet him in Tupelo, and that five did so; that he knew that the employees of Milam were not on strike, 'but I didn't know the connection that might be hatched up between Milam and Texson'; and that he supervised and directed the picketing, but that he carried no picket sign himself.

The truck lines, and other common carriers, which had previously handled Milam's incoming and outgoing shipments, refused to cross the picket lines which were established in front of the receiving entrance of the factory, with the result that all of such shipments were stopped. Consequently, on March 8, 1959, Milam rented a truck in order to get fabric into the plant and garments out of the plant to the carriers. The pickets observed everything that was done. They watched the loading and unloading; and had a little black book in which they were constantly writing. According to A. B. McConnell, Vice-President of Milam, every time the rented truck left the plant, two of the pickets followed it in a bluish, green Ford, with an Alabama license. He was certain of this because he said that, each time, he followed the Ford.

On one occasion, a Malone truck, with a shipment for Milam, was stopped at the front. Pickets talked to the driver and he left. McConnell and Paul Eason went out in search of the driver and found him at a service station, calling his home office in Birmingham. They finally persuaded the driver to return to the plant with Eason getting in the truck and accompanying the driver inside. After the truck was unloaded, the driver was afraid to cross back over the picket line and leave. So Eason rode out in the truck with him as far as the weighing station east of Fulton. McMahon and another picket followed them in the same Ford car all of that distance.

On another occasion, after North Mississippi Shippers Association had been employed by Milam to handle its freight, and one of its trucks was being loaded at the west entrance loading dock, a car, from which McMahon disembarked, was parked on the wrong side of the street in front of the truck, so blocking the way that it was extremely difficult for the truck to get out of the yard. In fact it took ten to fifteen minutes for the driver to get his truck out of the plant, and this was not accomplished until after the truck collided with the car and then the driver of the car moved it. Notwithstanding an injunction was issued on March 20, 1959, picketing, by parties not named as defendants therein, continued; and, on April 6, 1959, another injunction was ordered to be issued. In both cases the injunctions prohibited picketing.

Robert Cohn, staff attorney for Local 180 of International Ladies' Garment Workers Union, of Atlanta, Georgia, admitted that, on April 17, 1959, he filed with National Labor Relations Board a charge of unfair labor practice against Milam. The union did not prosecute the proceedings on this complaint, and subsequently withdrew it.

The appellants assigned a number of alleged errors, but these have been compressed into the following contentions: (1) The controversy here was exclusively within the jurisdiction of the National Labor Relations Board, and the State court was without power to afford any relief whatever. (2) The final decree was in violation of the rights of the appellants, under the constitutions of both the State and Federal Governments. (3) The International Ladies' Garment Workers Union is unincorporated and was not properly before the court. And (4) certain procedural actions.

It is true that, where there is a labor dispute affecting interstate commerce within the purview of the Labor Management Relations Act of 1947, the jurisdiction of the controversy is vested in the National Labor Relations Board. 29 U.S.C.A. Sec. 151 et seq.; Garner v. Teamsters, Chauffeurs and Helpers Local Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228; Guss, d/b/a Photo Sound, etc. v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 609, 1 L.Ed.2d 601; Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151; and other authorities too numerous to mention. That principle has been recognized by this Court in Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, Electric Ry. & Motor Coach Employees of America et al., 205 Miss. 354, 38 So.2d 765; United Brotherhood of Carpenters & Joiners of America v. Pascagoula Veneer Co., 228 Miss. 799, 89 So.2d 711; International Woodwokers of America, C. I. O. v. Fair Lumber Co., 232 Miss. 401, 99 So.2d 452, 100 So.2d 606; Fishermen and Allied Workers, etc. v. Quaker Oats Co., 235 Miss. 401, 106 So.2d 144, 109 So.2d 321.

29 U.S.C.A. Sec. 152, subsection (9) provides as follows: 'The term 'labor dispute' includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.'

The above subsection (9) is an exact rescript of 29 U.S.C.A. Sec. 113(c), which was under consideration in Columbia River Packers Ass'n v. Hinton et al., 315 U.S. 143, 62 S.Ct. 520, 522, 86 L.Ed. 750. Although the fish sellers were called a union and were affiliated with a national labor organization, actually they were independent operators; and it was held that a suit by the buyers of their fish, under the Sherman Act, 15 U.S.C.A. Secs. 1-7, 15 note, was not a 'labor dispute' within the meaning of the Norris-LaGuardia Act. The opinion said that this did not place in controversy the wages or hours or other terms and conditions of employment of the employees. It was therein said: 'We recognize that by the terms of the statute ...