Pfitzinger Mortuary, Inc. v. Dill

• Decision Date: 08 December 1958
• Docket Number: No. 2,No. 46712,46712,2
• Citation: 319 S.W.2d 575
• Parties: 43 L.R.R.M. (BNA) 2254, 36 Lab.Cas. P 65,070 PFITZINGER MORTUARY, INC., a Corporation, and William H. Pfitzinger, Appellants, v. Homer C. DILL et al., Respondents
• Court: Missouri Supreme Court

Page 575

319 S.W.2d 575

43 L.R.R.M. (BNA) 2254, 36 Lab.Cas. P 65,070

PFITZINGER MORTUARY, INC., a Corporation, and William H.

Pfitzinger, Appellants, v. Homer C. DILL et al., Respondents.

No. 46712.

Supreme Court of Missouri, Division No. 2.

Dec. 8, 1958.

Motion for Rehearing or to Transfer to Court en Banc Denied

Jan. 12, 1959.

John R. Stockham, Ralph C. Kleinschmidt, St. Louis, for plaintiffs-appellants, Stockham, Roth, Buder & Martin, St. Louis, of counsel.

Harold Gruenberg, J. F. Souders, St. Louis, for defendants-respondents, Gruenberg & Schobel, St. Louis, of counsel.

BARRETT, Commissioner.

In this action for a declaratory judgment the defendants are officers and members of Embalmers' Federal Labor Union, Local 21301. The plaintiffs are Pfitzinger Mortuary Inc., and William H. Pfitzinger. As presented in this court the question for determination is the validity of one section of a proposed contract between the labor union and the plaintiff corporation, Pfitzinger Mortuary. The trial court found that the particular section of the contract concerned a lawful objective and demand on the part of the union, that the contract clause was not unlawful, that its enforcement would not infringe the plaintiffs' constitutional rights and, in general, that the contract was valid. The plaintiffs have appealed and urge that the proposed contract is contrary to Missouri public policy and, therefore, constitutes an unlawful demand, and, if permitted to become effective would deny the plaintiffs equal protection of the laws and deprive them, without due process, of their right to acquire, possess and enjoy property.

Pfitzinger Mortuary is a corporation engaged in the business of operating a funeral home in Kirkwood. William H. Pfitzinger is a funeral director and an embalmer, registered and licensed under the laws of Missouri, and he owns about seventy-five per cent of the stock of Pfitzinger Mortuary, Inc. He does not belong to the union and is not eligible for membership. During the year 1956 there was a labor union contract between Pfitzinger Mortuary, Inc., and the defendant union. As far as material here that contract provided that only licensed embalmers who were members of the union could embalm the dead. In section five, however, the 1956 contract provided that 'A funeral director may perform his own embalming provided he is a licensed embalmer of the State of Missouri and owner of his establishment, proven owner of the majority of the stock of a corporation, or proven regularly designated business manager of a partnership frim * * *.' Under this contract Pfitzinger Mortuary employed one licensed union embalmer, Ben E. Hoffman, one of the defendants. Also under this contract, William H. Pfitzinger, in addition to his duties as a funeral director, embalmed bodies. When the 1956 contract expired the union negotiated another contract with the funeral directors' associations of St. Louis but that contract did not contain a provision permitting funeral directors who owned their establishments or majority stockholders who were licensed embalmers to embalm the dead. Pfitzinger Mortuary was not a member of either of the funeral directors' associations but the union notified the company that it could appear at a hotel and sign the contract, at the same time stating that failure to sign would place the company in violation of the agreement. Mr. Pfitzinger did not appear at the hotel but wrote a letter and informed the union that he had no objection to the contract excepts its omission of licensed embalmers who were majority owners of stock in corporations operating funeral homes. He aslo requested a conference with union representatives for the purpose of negotiating as to the omission of that clause but the union officials refused to negotiate that subject and demanded that the Pfitzinger company sign the contract. Upon the company's refusal to sign the contract their union embalmer, Ben E. Hoffman, refused to report for work and the following day the union established a picket line, the picket signs reading, 'On Strike.'

Subsequently there were meetings between union representatives and representatives of Pfitzinger Mortuary but the union refused to reconsider or negotiate as to the particular clause and the picket line continued. Because of the picket line the funeral car chauffeur, who belonged to another union, and two ambulance drivers, who did not belong to any union, refused to cross the picket line. Mr. Pfitzinger said that because of the picket line there was one instance in which a family directed that a deceased be removed to another funeral home When the picket line had continued for twenty days the plaintiffs, Pfitzinger Mortuary, Inc. and William H. Pfitzinger, instituted this action for a declaratory judgment in which they asked, among other things, for an injunction restraining the union from maintaining the picket line. Before the action was tried, however, the parties entered into a stipulation in which the union agreed to and did withdraw its picket line, the plaintiffs agreed to waive any claim for monetary damages, and the plaintiff company agreed to execute the contract if and when it should be determined to be valid in the courts. Thus have the parties sought to present for determination the single question of whether the contract is legal or illegal in providing that only licensed embalmers who are members of the union may embalm the dead. But as of course the problem may not be resolved in a vacuum or abstractly, whether the contract as proposed is valid or invalid of necessity involves the consideration of several important factors and, most important of all, the facts of this particular case. Harper v. Brennan, 311 Mich. 489, 503, 18 N.W.2d 905, 910.

At the outset, therefore, it is necessary to note certain vital factors and carefully discriminate and observe the precisely distinguishing factors and considerations applicable upon this record and appeal. In brief, the appellants seek to bring themselves within the rules by which union activities, otherwise lawful, have been enjoined or curbed when they were considered to have improperly coerced or affected the owner of a small business who conducted his business without outside help and did all or part of the work himself. Annotations 2 A.L.R.2d 1196; 13 A.L.R.2d 642; Kerkemeyer v. Midkiff, Mo., 299 S.W.2d 409; Health v. Motion Picture Machine Operators Union, 365 Mo. 934, 290 S.W.2d 152; Hughes v. Kansas City Motion Picture Machine Operators, 282 Mo. 304, 221 S.W. 95. William H. Pfitzinger is a licensed embalmer, he owns about 75% of the stock of Pfitzinger Mortuary, Inc., and he regularly does some of the embalming work for the mortuary. As has been said, he is not a member of the union and because he is a manager and corporate official he is neither desired nor eligible to become a member. In these circumstances it is urged that the proposed contract is contrary to Missouri public policy as declared in the Kerkemeyer, Heath and Hughes cases and, therefore, invalid.

The appellants contend, and it is basic in their argument, that the State of Missouri may (here by its courts), apparently without restriction, determine and declare the public policy applicable to the problems involved here. For the purposes of this opinion the entire matter involved here is an intrastate transaction but that only means that the case does not involve interstate commerce and is not governed by the National Labor Relations Act, 29 U.S.C.A. Sec. 151 et seq. Unlike many states Missouri does not have a state labor relations act and we are not concerned with an 'unfair labor practice' on the part of either the respondents or the appellants. It is in this respect that the cases decided by the National Labor Relations Board and the National War Labor Board are not particularly helpful. Missouri does not have a so-called right-to-work law and neither does it have anti-injunction law (a 'little Norris-LaGuardia law'), nor does it have a 'little Taft-Hartley law.' However, the cases from states with anti-injunction laws are of some alalogous force, at least in so far as they consider the problem of whether there is a 'labor dispute.' The constitution does contain this self-enforcing provision: 'That employees shall have the right to organize and to bargain collectively through representatives of their own choosing.' Const.Mo.1945, Art. 1, Sec. 29; Quinn v. Buchanan, Mo., 298 S.W.2d 413. Since there are no specifically applicable state or federal statutes and guides, other than the noted constitutional provision, the courts of necessity determine the state's public policy with respect to these matters. But the power of the state courts to declare the state's policy in these respects is nevertheless subject to certain definite restrictions and limitations, those imposed by the Fourteenth Amendment as delineated by the Supreme Court of the United States.

The Heath and Kerkemeyer cases were decided within those limitations. In this and the cases in general, when there is a conflict between a labor union and the operator of a business, 'the proprietor of the business will ordinarily invoke those provisions of the Federal and state Constitutions which grant to every citizen the right to acquire, possess, and enjoy property and guarantee to him the equal protection of the law, while the union will base its right peacefully to picket on those constitutional provisions which guarantee the unrestricted right of free speech.' Annotation 2 A.L.R.2d loc. cit. 1198. Thus there is not only a personal conflict between the union and the operator of the business, there is also a conflict in their respectively asserted constitutional rights and in declaring the state's public policy the court is confronted with the problem of adjusting or balancing one of these established constitutional rights against the other. In balancing the rights the state court may not proscribe the...