Minor v. Building and Const. Trades Council

• Decision Date: 06 February 1956
• Docket Number: No. 627,No. 714,No. 565,P,No. 708,No. 554,No. 49,No. 837,No. 7481,No. 519,No. 2,No. 1032,No. 74,1032,554,714,74,2,627,565,837,519,49,708,7481
• Citation: 75 N.W.2d 139
• Parties: 37 L.R.R.M. (BNA) 2644, 29 Lab.Cas. P 69,798 Louis E. MINOR, Jr. and Herbert S. Woods, co-partners, doing business as Oil Field Service Co., and Warren Diederich and Gene Bye, co-partners, doing business as Diederich and Bye, Plaintiffs and Respondents, v. BUILDING AND CONSTRUCTION TRADES COUNCIL in affiliation with Building and Construction Trades Department, American Federation of Labor, and Harold M. Olson, individually and as President of Minor Building and Construction Trades Council, affiliated with the Building and Construction Trades Department, American Federation of Labor; Carpenters Local; Laborers Local; Electricians Local; Drivers Local; Bricklayers Locallumbers and Steamfitters Local; Painters & Decorators Local; Plasterers & Cement Finishers Local; Lathers Local; Operating Engineers Local; Ironworkers Local; and the officers, representatives, and business agents of said Unions in their individual and representative capacities, and as representatives of the class to which they all belong, Defendants and Appellants. 81.
• Court: North Dakota Supreme Court

Page 139

75 N.W.2d 139

37 L.R.R.M. (BNA) 2644, 29 Lab.Cas. P 69,798

Louis E. MINOR, Jr. and Herbert S. Woods, co-partners, doing

business as Oil Field Service Co., and Warren Diederich and Gene Bye, co-partners, doing business as Diederich and Bye, Plaintiffs and Respondents, v. BUILDING AND CONSTRUCTION TRADES COUNCIL in affiliation with

Building and Construction Trades Department, American

Federation of Labor, and Harold M. Olson, individually and

as President of Minor Building and Construction Trades

Council, affiliated with the Building and Construction

Trades Department, American Federation of Labor; Carpenters

Local No. 1032; Laborers Local No. 554; Electricians Local

No. 714; Drivers Local No. 74; Bricklayers Local No. 2,

Plumbers and Steamfitters Local No. 627; Painters &

Decorators Local No. 565; Plasterers & Cement Finishers

Local No. 837; Lathers Local No. 519; Operating Engineers

Local No. 49; Ironworkers Local No. 708; and the officers,

representatives, and business agents of said Unions in their

individual and representative capacities, and as

representatives of the class to which they all belong,

Defendants and Appellants.

No. 7481.

Supreme Court of North Dakota.

Feb. 6, 1956.

Syllabus by the Court.

1. The court may drop a party at any stage of the cause as the ends of justice may require on such terms as are just.

2. On a trial de novo this court must determine the facts from the record giving appreciable weight to the findings of the trial court.

3. Any controversy over the terms or conditions of employment is included in the term 'labor dispute.' Sec. 34-0801(1), NDRC 1943; U.S.C.A. Title 29, § 152(9); 61 U.S.Statutes, Chapter 120, Sec. 2(9), p. 138.

4. The Labor Management Relations Act, 1947, Taft-Hartley Act, controls all matters of labor management relations in interstate commerce except in such areas as are not covered by said Act.

5. The exercise by the state of the police power in the protection of the lives and property of its residents is one such area.

6. While the Taft-Hartley Act, Section 8(a)(3), Chapter 120, 61 U.S.Statutes, p. 140, 29 U.S.C.A. § 158(a)(3), forbids the closed shop and strictly regulates the conditions under which union shop agreements may be consummated, Section 14(b) of that chapter was included to forestall the inference that the Federal policy in that regard was to be exclusive and leaves open to the state, where a union shop is outlawed, the determination of any matter bearing on the establishment and management of a union shop. In such cases the general law in regard to illegal picketing applies.

7. The public policy of this state established by the constitution and the statutes prohibits the union shop, preserves to all citizens the right to work and makes any violation thereof a misdemeanor.

8. The purpose of the picketing in the case at bar was to force the plaintiffs to establish a union shop which would result in making the employees join the union whether they wanted to or not or lose their employment. Picketing for such purpose was illegal and may be enjoined.

9. The right of free speech cannot be made a cover for any concerted action against an employer in order to achieve an unlawful or prohibited object such as to compel an employer to coerce his employees into joining a union.

10. Evidence examined and it is held that the grounds for injunction provided by Section 34-0807, NDRC 1943 existed and that the injunction was properly issued.

Joseph P. Stevens, Minot, Wm. D. Gunn, and Donald C. Savelkoul, St. Paul, Minn., for appellants.

Bjella & Jestrab, Williston & William A. Brown, Austin, Tex., for respondents.

GRIMSON, Judge.

The plaintiffs, Louis E. Minor, Jr. and Herbert S. Woods, co-partners, doing business as Oil Field Service Co., and Warren Diederich and Gene Bye, co-partners, doing business as Diederich & Bye, were contractors engaged in the construction business. They had jointly entered into a contract with the Signal Oil & Gas Company for doing the stone and concrete work on the $9,000,000 gas extraction plant which the Signal Oil & Gas Company was building near Tioga, North Dakota. The defendants are labor unions and their officers and representatives.

The plaintiffs, alleging that the defendants on plaintiff's refusal to force their employees to unionize their plant, commenced to illegally picket and banner the plant, causing the plaintiff irreparable damage, brought this action and asked for an injunction 'restraining the defendants from in any way interfering with, molesting, or damaging the business of the plaintiffs by picketing or otherwise.' A temporary restraining order was issued. The defendants then answered making a general denial, alleging that plaintiffs discriminated against the unions; that a labor dispute existed and that this controversy is covered by the provisions of the Labor Management Relations Act, 1947, 29 U.S.C.A. § 141 et seq., so that the state court was without jurisdiction in this matter. After the hearing on the merits the district court issued its order for judgment granting a limited injunction. Defendants appeal from such judgment demanding a trial de novo.

Originally, J. F. Pritchard & Co., a nationwide construction company of Kansas City, had the contract for the entire construction project but this was later modified so that they were responsible only for the design of the plant and the supervision necessary to protect their guaranty in regard to the design. That company had a closed shop contract with labor unions and under that contract was bound to operate on the terms of the local unions who had jurisdiction over the job. Their representative at Tioga notified the local unions of the Pritchard contract. Soon thereafter, on July 13, 1953, a representative of the National Carpenters' Union requested a meeting with Mr. Diederich and the employees. Mr. Diederich was not present at the time but later that day called a meeting of the employees. He informed them that they could 'go union or not as they wished.' He explained to them the changes that would come under a union contract and asked them for a vote. Of some 35 to 40 employees, 20 to 35 voted in favor of remaining non-unionized. Some union representatives talked with the men and claimed they found some of them willing to join a union. One meeting between the two representatives of the union and Mr. Diederich and Mr. Minor of the Oil Field Service Co., occurred on July 16, 1953. At that time there was some discussion about the furnishing of iron workers by the union. Plaintiffs then suggested that the union get in touch with Mr. Miller of the Signal Oil & Gas Company and Mr. Ohley of the Pritchard Company. Several of the representatives of the defendants talked at different times with the officers of the Signal Oil & Gas Company, and the J. F. Pritchard Company, urging them to force plaintiff to enter into a union contract.

Finally a meeting between the contractors of the Tioga Gas Plant and representatives of the Building & Construction Trades Council was arranged for August 19, 1953, by the Minot Building and Construction Trade's Council. Mr. Miller of the Signal Oil & Gas Company, and a representative of J. F. Pritchard & Company, met with thirteen union representatives at that meeting. While the plaintiffs were invited to that meeting they did not receive their notice in time to attend. Mr. Miller, in charge of the construction of the Tioga Gasoline Plant for the Signal Oil & Gas Company, testified that Mr. Olson, President of the Minot Building and Construction Trade's Council had stated that the 'purpose of the meeting was to negotiate a contract with Oil Field Service Company, and Diederich & Bye to employ union help in the performance of their job.' He testified further:

'Q. Did they ask you to intercede? A. Yes. * * * They asked me to make a union job of it.'

On cross examination by defendants' counsel he testified as follows:

'Q. On this occasion or at any other time, Mr. Miller, did these men, representing this union, ask you to cancel your contract with Diederich & Bye and Oil Field Service? A. Yes.

'Q. On what occasion was that? A. I believe it was the occasion when Mr. Taylor attended the meeting here. When forceful expression to the effect we should go all out on 100 per cent union labor job on that plant, when I refused to take action inside the organization of those contractors. * * *

'Q. Did any representative of any union at any time tell you that the only type of contract that they were willing to negotiate with the plaintiff and Diederich & Bye was a contract containing a clause which required all of the employees on the job to be members of the union? A. Yes, sir, with one exception: I asked that question, the exception being that if they could not supply within a reasonable time, so many days, so many hours, the quantity of journeymen ordered, then men that did not belong to the union could be secured by others and would be permitted to work for a certain period of time. * * *

'Q. All right, sir, did the union at any time, any representative of the union, at any time tell you that they might be willing to give up a requirement that the contractors employ exclusively union members? A. In some of our discussions the union members stated that if they were unable to deliver the required or requisitioned number of different artisans within a specified time, 48 hours was mentioned, that the contractors then could seek that type of artisans elsewhere and they would be given permission to be so employed for a specified period, I think possibly 30 days.'

Samples of contracts which would be asked if the shops were unionized presented to Mr. Miller, the representative of the Signal Oil & Gas Company. With few exceptions the contracts provided for some kind of union security clause. Two of the contracts included the provision that 'only members of the union or men eligible for membership may be employed.'...