Mitcham v. Ark-La Const. Co.

• Decision Date: 20 December 1965
• Docket Number: A,No. 5-3776,ARK-LA,No. 1684,1684,5-3776
• Parties: , 61 L.R.R.M. (BNA) 2148, 53 Lab.Cas. P 51,439 Walter MITCHAM, Individually and as a Representative of Carpenters Local Unionppellant, v.CONSTRUCTION COMPANY, Inc., Appellee.
• Court: Arkansas Supreme Court

Page 789

397 S.W.2d 789

239 Ark. 1162, 61 L.R.R.M. (BNA) 2148,

53 Lab.Cas. P 51,439

Walter MITCHAM, Individually and as a Representative of

Carpenters Local Union No. 1684, Appellant, v. ARK-LA CONSTRUCTION COMPANY, Inc., Appellee.

No. 5-3776.

Supreme Court of Arkansas.

Dec. 20, 1965.

Rehearing Denied Jan. 31, 1966.

McMath, Leatherman, Woods & Youngdahl, Little Rock, for appellant.

Brown, Compton & Prewett, by William I. Prewett, El Dorado, for appellee.

BERNARD WHETSTONE, Special Associate Justice.

This proceeding originated in this court as a Petition for Writ of Prohibition. During oral argument it was stipulated that the entire matter be treated as an appeal and considered and decided here on its merits (in view of the time element involved in the facts of the case and also in view of the question involved being one of public interest).

In this converted form, involved is the question of the jurisdiction of the Chancery Court below to entertain a petition on behalf of building construction contractor(s) to enjoin (peaceful) picketing by a labor organization at a building construction project and to issue an injunction forbidding such picketing.

On July 8th, 1965, Mid South Homes of Arkansas, Inc., contracted to construct an apartment project for the Malibu Corporation of El Dorado, Arkansas. This contract was assigned without consideration by Mid South to Ark-La Construction Company, Inc. The builder contemplates completion in January, 1966.

On August 25th, 1965, Carpenters Local Union No. 1684 began picketing the construction site with signs alleging low wages and improper working conditions. On August 26th, Mid South and Ark-La jointly filed a complaint in the Chancery Court of Union County alleging that the picketing was unlawful and asking that it be enjoined. On the same day a temporary restraining order issued banning all picketing by the Carpenters Local at the site.

On September 1st, 1965, the defendant Local filed motions asking the court to dismiss the complaint and restraining order because the dispute was subject to the exclusive jurisdiction of the National Labor Relations Board under the National Labor Relations Act, 29 U.S.C.A. Sections 141-158. Plaintiff Mid South admitted that it was subject to the jurisdiction of the National Labor Relations Board and moved for a nonsuit on September 3rd leaving plaintiff Ark-La Construction Company, Inc. as the sole plaintiff with the contention that Ark-La, due to insufficient volume of interstate inflow and/or outflow value output (to be discussed later in this opinion) was not. Defendant contended that even though plaintiff Mid South took a nonsuit, that the relationship (identity of officers, ownership etc.) of the plaintiffs was so close and interrelated, that the two should be treated as one (thus placing both within the jurisdiction of the National Labor Relations Board). Another contention by the defendant was that, in any event, the value output of the remaining plaintiff (Ark-La) was 'arguably' adequate to come within N.L.R.B. standards and thus still pre-empt State Court jurisdiction (since if 'arguably' adequate, it remained for the N.L.R.B. to first determine that it had no jurisdiction before any State Court could proceed).

In a final decree, the lower court found that the picketing violated Amendment 34 to the Constitution of Arkansas (so-called 'Freedom To Work' Amendment), that no 'labor dispute' existed, and that Ark-La is not subject to N.L.R.B. jurisdiction, and the injunction was made permanent.

On September 8th the defendant below (Carpenters Local) filed a petition for temporary Writ of Prohibition here.

Proceeding to the merits:

Petitioner (whom we will hereinafter refer to as appellant) contends that the comduct in dispute and the parties are subject to the exclusive and primary jurisdiction of the National Labor Relations Board and that the lower (State) Court was thus without jurisdiction relying on such authorities as Taylor v. Bean, 234 Ark. 932, 355 S.W.2d 602 (1962); International Bro. of Teamsters, etc. v. Blassingame, 226 Ark. 614, 293 S.W.2d 444 (1956) (dissenting opinion); Article VI, cl. 2, of the United States Constitution; Garner v. Teamsters, etc. Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228 (1953); Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546 (1955); San Diego Bldg. Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); Local 438 Const. and Gen. Laborers' Union, etc. v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d 514 (1963); Liner v. Jafco, Inc., 375 U.S. 301, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964); N.L.R.B. v. Reliance Fuel Oil Corp., 371 U.S. 224, 83 S.Ct. 312, 9 L.Ed.2d 279 (1963); 12 Arkansas Law Review 354.

Appellant argues that, considered alone and separate from Mid South, that Ark-La is 'arguably' within N.L.R.B. standards for jurisdiction ($50,000.00) stating 'when an employer's business is newly established and no annual figures are available, the Board customarily projects over a full year whatever figures on business volume are available * * * It is still established that in less than two months there have been interstate purchases of $2,700.00, interstate wages amounting to at least $1,200.00, and interestate subcontracts totaling over $20,000.00. Two months experience at this rate will project to a $143,400.00 total for 12 months. Or, giving the respondent the benefit of every ambiguity, if the $20,000.00 figure applies to all seven months of the projects schedule, the projected interestate inflow figure would total $57,684.00.'

The respondent (whom we will refer to hereinafter as appellee), on the other hand, contends that the Garmon Case and many authorities relied on by appellant, were decided prior to the effective date of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C.A. Sec. 164) and that 'in passing the 1959 Act Congress afforded relief for parties whose disputes fell within the so-called 'no man's land' created by the pre-emption doctrine under which the parties could not be heard either by the N.L.R.B. or State Tribunals. The 1959 Act gave the State Courts authority to exercise jurisdiction over employers whose activities did not substantially affect commerce within the jurisdictional standards adopted by the N.L.R.B. In other words, where the N.L.R.B. has adopted a jurisdictional standard establishing certain requirements before it will assert jurisdiction, the State may act in this area'; and appellee relies on such authorities as Marine Engineers Ben. Asso. v. Interlake S S. Co., 370 U.S. 173, 176, 82 S.Ct. 1237, 8 L.Ed.2d 418; cites Austin v. Painters' Dist. Council No. 22, etc., 339 Mich. 462, 64 N.W.2d 550, (Appeal dismissed 348 U.S. 979, 75 S.Ct. 571, 99 L.Ed. 762); International Ass'n of Machinists, A. F. L. Local 924 v. Goff-McNair Motor Company, 223 Ark. 30, 264 S.W.2d 48 (1954); and in a supplemental brief cites such cases as Fair Share Organization, Inc. v. Mitnick, 134 Ind.App. 675, 188 N.E.2d 840 (1963); Cox v. Superior Ct. of San Bernardino County, 52 Cal.2d 855, 346 P.2d 15 (1959).

It was stipulated in the lower court that Mid South had a sufficient inflow and/or outflow of goods or services to put it under the jurisdiction of the National Labor Relations Act. (It is unquestioned that according to the N.L.R.B. standards and the classification involved in the present litigation that this amount is 'in excess of $50,000.00'.); that prior to the filing of the complaint in the lower court that neither plaintiff made any effort to obtain any relief from the National Labor Relations Board nor attempted to obtain a determination from it as to whether the subject of the action was within the jurisdiction of the N.L.R.B.; that the incorporations and stockholders of Mid South were Norman Pearah, G. O. Westbrook, V. J. Casamento, Jr. and Larry Cooper and that the incorporators and stockholders of Ark-La are Carolyn Pearah and the same Norman Pearah and V. J. Casamento, Jr. (the common stockholders and the incorporators being Norman Pearah and V. J. Casamento, Jr.); that the same parties are President and Vice-President of both corporations; that the defendant below, Carpenters Local Union No. 1684 is a labor organization in which employees participate, which govern grievances, conditions of work, etc.

V. J. Casamento, Jr. was called by the defendant and testified that he was Vice-President of Ark-La as well as Mid South and that he was employed by Ark-La; that Mid South is engaged in the business of building and selling residences in Louisiana and Arkansas; that currently the stockholders in Ark-La are the same stockholders as Mid South i. e. Norman Pearah, Carolyn Pearah and V. J. Casamento, Jr.; there is a different secretary and treasurer of each company; Mid South entered into a contract with Malibu for construction work in El Dorado and there has been a sign at the site of the construction stating 'Builders, Mid South Homes of Arkansas, Inc.'; Mid South was asked to sign the contract and also Casamento and Pearah signed the contract persoanlly and then the contract was assigned to Ark-La without consideration for performance; Ark-La is qualified to do business in the State of Arkansas with a general contractor's license with the State of Arkansas and Mid South does not have such a license; Malibu wanted substantial assets to protect them in the course of construction and since Ark-La was a new company, Mid South had to sign the contract and also Pearah and Casamento had to personally sign it; Malibu agreed to pay Ark-La $246,000.00; Ark-La is going to get the money to build the job with Malibu; all Mid South owns in the way of construction equipment right now is a pick-up truck; Ark-La owns no construction equipment; Ark-La is handling the job mostly through subcontract; some subcontractors operate out of Louisiana and others out of Arkansas; this is the first venture for Ark-La...