Moving Picture Mach. Operators Local No. 236 v. Cayson

• Decision Date: 05 October 1967
• Docket Number: 6 Div. 109
• Citation: 281 Ala. 468,205 So.2d 222
• Parties: MOVING PICTURE MACHINE OPERATORS LOCAL NO. 236 et al. v. E. Douglas CAYSON.
• Court: Alabama Supreme Court

Page 222

205 So.2d 222

281 Ala. 468

MOVING PICTURE MACHINE OPERATORS LOCAL NO. 236 et al. v. E. Douglas CAYSON.

6 Div. 109.

Supreme Court of Alabama.

Oct. 5, 1967.

Rehearing Denied Dec. 21, 1967.

Victor H. Smith, John W. Carlton and Bishop & Carlton, Birmingham, for appellants.

Robt. S. Vance and Jenkins, Cole, Callaway & Vance, Birmingham, for appellee.

COLEMAN, Justice.

Respondents appeal from decree ordering and enjoining respondents, an employer and a union, to reinstate complainant, a moving picture machine operator, in his job, and also awarding complainant a decree against respondents for $1,987.50. On application for rehearing, the court rendered decree reducing the money award by the amount of $750.00.

We will refer to respondents as being two parties, one being Moving Picture Machine Operators Local No. 236 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, an unincorporated association, sometimes referred to as the Union or the Local. The other party respondent we will refer to as Waters, it being composed of Waters Theatre Company, a partnership, and the partners, N. H. Waters, Sr., and W. D. Waters.

On December 20, 1963, complainant filed his bill of complaint, and later amended the bill. The Union filed its demurrer and answer to the bill, and later filed demurrer and answer to the amended bill. The court overruled the Union's demurrer to the amended bill.

The Union filed special pleas A thru F, inclusive. In final decree, the court said Pleas B through F were legally insufficient but the court had considered the same as part of the Union's answer. The court found Plea A 'to be without merit.'

Waters filed answer to the amended bill. The court heard testimony ore tenus and the cause was submitted on pleadings and testimony.

On February 20, 1964, the court rendered final decree. The decree on application for rehearing was rendered April 27, 1964. The Union appealed from the decree of February 20, 1964, and assigned 76 errors. Waters joined in the appeal and severally adopted all the errors assigned by the Union except two. Complainant has cross-assigned errors.

Complainant is E. Douglas Cayson. In substance, he alleges that from June 1, 1962, until December 5, 1963, he was employed by Waters as a moving picture machine operator (hereafter referred to simply as operator); that until February 17, 1963, he was a member of the Union; that on said date he was purportedly expelled from the Union for refusal to comply with certain seniority practices of the Union deemed by him to be illegal; that Waters owns or operates eight motion picture theaters in Jefferson County, employes one or more operators at each theater, and that, during his employment, complainant worked as one of such operators; that the Union is a local union which consists of members who now, or in the past, have worked as operators; that the Union acted as sole bargaining agent for the operators employed by Waters and was recognized as such agent by Waters; that, on August 1, 1963, Waters and the Union entered into a contract, copy of which is made exhibit to the bill; that on September 5, 1963, the Union, or one of its members, acting under the contract, demanded of Waters that complainant be replaced in his job at Fair Park Drive-In Theatre and that complainant's job be given to W. C. Mathews, a member of the Union was had not then been continuously employed by Waters for as long a time as had complainant; that, pursuant to said demand and acting under the contract and because complainant was below W. C. Mathews on the purported seniority list, which appears as Exhibit A--1 to the contract, ¹ Waters did on September 22, 1963, transfer and demote complainant, at a reduction in pay, from his job at Fair Park to Robinwood Theatre, another theater owned by Waters; that on November 20, 1963, the Union, or one of its members, acting under the contract, demanded of Waters that complainant be replaced in the job at Robinwood by another member of the union, H. W. Gaston, who had not then been continuously employed by Waters for as long a time as had complainant; that on December 5, 1963, Waters, acting under the contract and pursuant to the demand and because complainant was below H. W. Gaston on the list, ² terminated complainant's employment and replaced him with Gaston; that complainant has not since been employed by Waters and has not been employed; that the persons set out on the list comprise only the membership of the Union, as it existed immediately prior to complainant's aforesaid expulsion from the Union, in the order of their purported length of membership in the Union and without regard to the current employment of any of the persons set out on the list; that the persons whose names appear on the list were, on the date of the contract, employed at divers places of employment; that less than half of said persons were then employed by Waters; that some of said persons have not since been employed by Waters; that said persons were not employed by other employers who simultaneously executed said agreement; that the inclusion and order of such persons on the list were without regard to any status of employment by Waters; that, since the effective date of the contract and under the construction or application of the contract by respondents, membership in the Union or length or order of such membership has been made a condition of employment or continuation of employment of operators by Waters in violation of Code of Alabama of 1940, Title 26, Chapter 7, Article 4; ³ in the alternative, that, since the effective date of the contract and under the construction and application of the contract by respondents, employment and continuation of employment of operators by Waters is effectively controlled by the Union, and that the Union has thereby acquired an employment monopoly with respect to such employment in violation of the Right to Work Law cited above; in the alternative, that, since the contract's effective date, Waters has effectively surrendered control, over continuation of employment of operators by respondent, to the Union and its membership so that the Union has acquired an employment monopoly with respect to such employment in violation of the Right of Work Law; in the alternative, that under the contract, as construed and applied by respondents, continuation or termination of complainant's employment by Waters was controlled or made dependent upon the amount of time since complainant became a member of the Union, as compared with the length or duration of membership in the Union of H. W. Gaston and W. C. Mathews, and that complainant's right to work for Waters was thereby abridged in violation of the Right to Work Law; and '. . . that his loss or deprivation of employment is as a direct result of the operation of the hereinabove-described contract, that he is without any means of support, and that he will suffer irreparable injuries and damages if equitable relief is not afforded in the premises.'

A copy of the contract is attached to the bill as an exhibit. Pertinent provisions are set out in footnote. ⁴ The gist of respondents' contentions, as we understand them, is to effect that: the Right to Work Law is in derogation of the common law and, therefore, must be strictly construed; that the contract does not violate the Right to Work Law on the face of the contract or as the contract was construed and applied by respondents; that complainant's right to employment or continuation of employment was not denied or abridged by any requirement that he be a member of the Union; that the seniority list is not based on length of union membership but on length of employment in the 'unit,' or geographical area, which embraced 'the entire greater Birmingham area including all the theatres in the Birmingham area,' being sixteen theatres in all, of which Waters owned eight; that complainant has waived the right or was estopped to assert the invalidity of the contract; and that the bill was subject to demurrer on the ground that the allegations of the bill are insufficient to show that complainant will suffer irreparable damages.

1.

The principal issue of fact is whether the order of the names on the seniority list was based on longevity of union membership or on longevity of employment in the area. The court found:

'The list purports to contain the names of all moving picture machine operators who have been regularly employed at theaters in this area and listed according to the amount of each person's continuous experience as such within the area. The Court finds that such is not a fact. The Court finds, rather, that the list is nothing more than a roster of the membership of the respondent union as it existed immediately prior to the expulsion of the complainant in the order of the listed persons' initiation into the respondent union. . . .. There are only eight moving picture machine operators' jobs available in the theaters operated by respondent Waters Theatre Company and only twenty of such regular jobs available in the entire Birmingham area.

'In practical effect, the purported seniority list injuries that the only persons who will be regularly employed by the respondent Waters Theatre Company or, indeed, by any other employer within the Birmingham area, which recognizes this 'seniority' system, are those persons who appear at the top of the purported seniority list solely by reason of the date of their initiation into the respondent local union.'

The transcript of testimony and exhibits covers 225 pages. A dozen or more witnesses testified. Appellants' summary of the evidence covers 21 pages of brief and appellee's statement of facts covers 32 pages of brief. We will not undertake to restate testimony favorable to appellants but will refer to testimony which will sustain the court's finding.

W. H. Neal, Jr., secretary of the...