El Paso Electric Co. v. Elliott

• Decision Date: 10 June 1936
• Docket Number: No. 310.,310.
• Citation: 15 F. Supp. 81
• Parties: EL PASO ELECTRIC CO. v. ELLIOTT, Regional Director, et al.
• Court: U.S. District Court — Western District of Texas

15 F. Supp. 81

EL PASO ELECTRIC CO. v. ELLIOTT, Regional Director, et al.

No. 310.

District Court, W. D. Texas, El Paso Division.

June 10, 1936.

Baker, Botts, Andrews & Wharton, of Houston, Tex., and Brown & Brooke, of El Paso, Tex., for complainant.

A. Norman Somers, of Washington, D. C., and Walter S. Howe, Asst. U. S. Atty., of El Paso, Tex., for Board, its members, and defendants Elliott, Mueller, and Phillips.

Karl Mueller, of Fort Worth, Tex., for defendants Elliott, Mueller, and Phillips.

Joseph M. Nealon, of El Paso, Tex., for defendant Ingram.

U. S. Goen, of El Paso, Tex., for interveners N. Kaufman and others.

BOYNTON, District Judge.

In equity. Suit brought by the El Paso Electric Company, complainant herein, against Edwin A. Elliott, individually and as Regional Director of the National Labor Relations Board for the Sixteenth Region, Philip G. Phillips, individually and as trial examiner, under appointment of the National Labor Relations Board, Karl H. Mueller, individually and as attorney of the National Labor Relations Board, J. W. Madden, John M. Carmody, and Edwin S. Smith, as members of the National Labor Relations Board, against said Board, agents and representatives thereof, and against W. L. Ingram, individually, vice president of the International Brotherhood of Electrical Workers, and others, praying for issuance of injunction restraining said Regional Director, attorney, trial examiner of said National Labor Relations Board, and members of said Board, and said Board, and agents and representatives of said Board, from conducting hearings on charges and complaints filed by said Board, its agents or representatives, acting under the National Labor Relations Act, approved July 5, 1935 (29 U.S.C.A. ?? 151-166), and said Ingram, alleging in complainant's second amended bill, as amended, the occasioning of irreparable injury and damages, as result of such actions, hearings, and attempted hearings, and the invalidity, unconstitutionality, of said National Labor Relations Act, and for damages as to defendant Ingram; all of said defendants having appeared and answered herein.

The right of labor to organize, and of employees individually or acting through organization or a union to exercise any and all peaceable means and influences, practically any and all means free from the exercise of intimidation or violence, to accomplish increase of wages, affecting hours of work, bargaining collectively or individually, and all conditions affecting their work and working conditions, has long been recognized and upheld in law, as declared and set forth in opinion of the Supreme Court of the United States in the case of Adair v. United States, 208 U.S. 161, 166-180, 28 S.Ct. 277, 52 L.Ed. 436, 13 Ann.Cas. 764, and other decisions of Supreme Court of the United States to the same effect; the court in the Adair Case, supra, 208 U.S. 161, at pages 172 and 173, 28 S.Ct. 277, 279, 52 L.Ed. 436, 13 Ann.Cas. 764, stating, in part, as follows: "It was the right of the defendant to prescribe the terms upon which the services of Coppage would be accepted, and it was the right of Coppage to become or not, as he chose, an employee of the railroad company upon the terms offered to him. Mr. Cooley, in his treatise on Torts, p. 278, well says: `It is a part of every man's civil rights that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice, or malice. With his reasons neither the public nor third persons have any legal concern. It is also his right to have business relations with anyone with whom he can make contracts, and, if he is wrongfully deprived of this right by others, he is entitled to redress'" ?€” such being the existence of the common law, as declared and announced in said decisions, unaffected by statutory law, long prior to the enactment of the National Labor Relations Act, approved July 5, 1935.

The court finds: That the defendant Edwin A. Elliott was duly appointed and acting Regional Director for the Sixteenth Region, defendant Karl H. Mueller, attorney for said Regional District, and Philip G. Phillips as trial examiner, under appointment of the National Labor Relations Board as such on or about September 17, 1935, under and in accordance with the terms and provisions of said act approved July 5, 1935. That the complaint prepared and filed by Edwin A. Elliott as such Regional Director, based upon affidavits and data furnished him by defendant W. L. Ingram, was filed by said Elliott in his capacity acting as such Regional Director, as agent of and under directions of the National Labor Relations Board. That, at the hearing on such complaint and charges so filed by Edwin A. Elliott, as Regional Director, acting as the representative of the National Labor Relations Board, and under appointment aforesaid, wherein it is charged that complainant was guilty of unfair labor practices, and in denying right of collective bargaining with its employees and other charges as set forth in complaint so filed by Edwin A. Elliott on the 8th day of November, 1935, and at the hearing held thereon at El Paso, Tex., commencing November 18, 1935, and continuing until November 26, 1935, in connection with which the defendant Karl H. Mueller appeared and conducted examination of witnesses and defendant Philip G. Phillips presided as trial examiner, all under appointment of the National Labor Relations Board, the court finds that the defendant Edwin A. Elliott, as such Regional Director, and also the defendant Karl H. Mueller, and the defendant Philip G. Phillips, each and all, acted in good faith in the performance of their official duties, in their respective capacities, under appointment of the National Labor Relations Board, under and in accordance with terms and provisions of said act, aforesaid, and that neither the said defendant Edwin A. Elliott, defendant Karl H. Mueller, or defendant Philip G. Phillips, entered into any agreement or conspiracy with defendant W. L. Ingram to perform any wrongful act, or any agreement, conspiracy, or confederation with defendant W. L. Ingram, or each other, or any one else, to perform the acts of conspiracy, understanding, and agreement with one another, as in complainant's second amended bill, as amended, alleged, or perform any wrongful act, in bad faith, against complainant, but in all things done and performed by said defendants Elliott, Mueller, and Phillips they were acting in good faith in performance of their respective duties, as same appeared to them should be performed, as officials of and representatives of said National Labor Relations Board. Hence no injunction will be granted or issued herein against either of said defendants Edwin A. Elliott, Karl H. Mueller, and Philip G. Phillips, individually.

While there is much evidence tending to show, to warrant the court in making a finding to such effect, that the defendant W. L. Ingram, vice president of the International Brotherhood of Electrical Workers, by his conduct and acts, contributed much to foment discontent and discord amongst employees of complainant El Paso Electric Company in his acts and efforts to organize certain employees of complainant into becoming members of a local union, craft unionism of electrical workers, to join Local Union No. 585 of the International Brotherhood of Electrical Workers, and into five units or departments, making demand upon complainant for recognition of such union, demand for a closed shop and collective bargaining with said Local 585, as the representative of such five departments, embracing some 60 or more employees only of the total number of some 460 employees of complainant, and in disregard of the rights of nonunion employees, members of what is known and designated as "Employees Representation Plan" opposed to such union, Local 585, and membership in any union or organization of the International Brotherhood of Electrical Workers, nevertheless the court does not find that said defendant W. L. Ingram in all of his said activities, some of which are perhaps susceptible of criticism, entered into any agreement, confederation, or conspiracy with defendant Edwin A. Elliott, or the other defendants, of the character as in complainant's second amended bill, as amended, alleged. It takes two or more to form a conspiracy, and, while the facts developed on trial of the cause might be held as showing defendant W. L. Ingram ready and willing to enter into an agreement, confederation, and conspiracy with the defendant Edwin A. Elliott, or other defendants, as in said amended bill, as amended, alleged, the court holds that the facts are insufficient to show that any of these other defendants entered into any such agreement or conspiracy with defendant W. L. Ingram to accomplish the purposes sought by him as in said pleadings alleged. Therefore no injunction will be issued herein as against said defendant W. L. Ingram as prayed for by complainant.

This brings the court to the real and important issues and questions now regarded and held by the court as directly involved in this controversy, viz.: That of complainant's application for issuance of injunction enjoining members of the National Labor Relations Board, said Board, its agents and representatives, from resuming holding and conducting of a hearing, or hearings, on complaint filed against complainant company, now pending or to be hereafter filed, charging complainant with unfair labor practices, refusal to bargain collectively with a selected unit, organized craft of certain of its employees, failure to call or consent to election of a representative for bargaining purposes by a certain unit or units of its employees, on the ground that the National Labor Relations Act is unconstitutional, unwarranted exercise of power by Congress, in the enactment of such act, beyond the powers vested in the Congress of the...