Radio Station KFH Co. v. Musicians Ass'n, Local No. 297, American Federation of Musicians

• Decision Date: 08 July 1950
• Docket Number: No. 37942,37942
• Citation: 220 P.2d 199,169 Kan. 596
• Parties: RADIO STATION KFH CO. v. MUSICIANS ASS'N, LOCAL NO. 297, AMERICAN FEDERATION OF MUSICIANS et al.
• Court: Kansas Supreme Court

Page 199

220 P.2d 199

169 Kan. 596

RADIO STATION KFH CO. v. MUSICIANS ASS'N, LOCAL NO. 297, AMERICAN FEDERATION OF MUSICIANS et al.

No. 37942.

Supreme Court of Kansas.

July 8, 1950.

Syllabus by the Court.

1. The constitution, by-laws, and rules of a voluntary association such as a trade union, knowingly assented to by a member, become in effect a civil contract between the parties whereby their rights are fixed and measured, and hence, in the absence of fraud, collusion, arbitrariness, or breach of contract, such as give rise to a civil action, decisions of associations must be accepted in litigation as conclusive.

2. The interest of labor in improving working conditions is of sufficient social importance to justify peaceful labor tactics otherwise lawful though they have the effect of inducing breaches of contract between employer and employee, or employer and customer.

3. To establish the fact of the existence of a custom, all the requisites must be proved by evidence which is clear and convincing, evidence of such cogency as to satisfy the mind and generate full belief, and a mere preponderance of the evidence is not sufficient.

Howard T. Fleeson, of Wichita, argued the cause, and Homer V. Gooing, Wayne Coulson, Paul R. Kitch, Dale M. Stucky and Donald R. Newkirk, all of Wichita, on the brief, for appellant.

Vincent F. Hiebsch, of Wichita, argued the cause, and Milton Zacharias, Kenneth H. Hiebsch, J. R. Sheedy, Lester C. Arvin, Yale W. Gifford, all of Wichita, and Henry Kaiser, of Washington, D. C., on the brief, for appellees.

WERTZ, Justice.

This is an appeal from a ruling sustaining defendants' demurrers to the pleadings and evidence in an action to enjoin defendant labor unions from interfering with the contractual relationship subsisting between appellant and certain of its employees, members of appellee union and fellow tradesmen of the members of appellee association, Local No. 297.

The record discloses that appellant, Radio Station KFH Company, hereafter referred to as KFH, on October 11, 1949, filed its petition to restrain appellees from interfering with the contractual relationship existing between KFH and certain named employees, and from doing any act prejudicing those employees in their relationship with the appellee labor organizations. On the same day KFH obtained an ex parte restraining order which enjoined the international and local groups from doing any act directly or indirectly interfering with the contractual and employment relationship between KFH and the named employees and further enjoined any act directly or indirectly to the prejudice of the employees as members in good standing of the appellee, the American Federation of Musicians. The appellee, Local No. 297, and persons acting upon its behalf were restrained pending the hearing for a temporary injunction from acting or purporting to act with respect to the issuance of membership cards, work permits, or any other evidence of rights granted by the labor organizations in Kansas. An order for a hearing for a temporary injunction was made in conjunction with the ex parte restraining order. KFH, in its petition for a perpetual injunction * * * disregarding the purely formal allegations * * * alleged it had sponsored various groups of musicians who have been known in Wichita and adjacent trade territory as the Ark Valley Boys, and that name is well known throughout the states of Kansas and Oklahoma; that the name 'Ark Valley Boys' has been promoted throughout Kansas at great expense incurred through newspaper advertising, radio announcements, window cards and personal appearances. On September 23, 1949, KFH was notified by the six members of the group then constituting the Ark Valley Boys that they were resigning, effective October 7, 1949; that upon receipt of the notice the manager of the radio station, desiring to obtain union musicians, called upon the local oranization for names of its members available for such placement who were similar in character, or as known to the trade, 'folk musicians, western and hillbilly', although no contractual relationship existed between KFH and the union. The local informed KFH that it was unable to make replacement of the type and character desired. Thereupon the radio station contacted one Tex Ferguson in St. Joseph, Missouri, a member in good standing with the American Federation of Musicians, and a member in good standing of its local No. 50. Arrangements were made for the appearance of Ferguson and his group of four other musicians in Wichita on the programs of the station under the name of the Ark Valley Boys. The Ferguson group arrived in Wichita October 9, and the following morning presented their transfer cards to an office of Local 297, in accord with the usual practice and custom of the association, and offered to pay 10% of the local scale to the local chapter or to join outright on a transfer basis. The officer refused to honor the transfer cards and refused to permit the Ferguson group to accept the engagement and threatened them with fines and suspension by the American Federation of Musicians, thus coercing and intimidating the Ferguson group in the enjoyment of their legal rights; that as a result of the threats and coercion the Ferguson group refused to fulfill their contractual obligations with KFH. It was further alleged that the labor organizations had not complied with the pertinent sections of Chapter 44, G.S.1947 Supp., which provide for the licensing of certain officials of labor organizations and the filing of the constitutions of and reports by those organizations; that by reason of the described acts the labor organizations are coercing and intimidating the employees of KFH in the enjoyment of their legal rights and are discriminating against them in violation of G.S.1947 Supp. 44-809(14); that the violations by the labor organizations of the laws of the state of Kansas are causing irreparable damage to KFH and it is without an adequate remedy at law. Allegations were also made to the effect that the labor organization by its acts was preventing KFH from fulfilling its contractual obligations with advertisers and sponsors. A prayer for relief followed as previously set out herein.

The defendant American Federation of Musicians appeared specially and moved to quash the service and was overruled; the defendant Local 297 filed a motion to dissolve the ex parte restraining order, which was modified by the district court in respect to the order's effect upon the local's power to act on behalf of its members and in connection with the issuance of membership cards, work permits and other evidence of rights granted by labor organizations.

Answers in the form of general denials were filed by all defendants. Plaintiff's petition was filed on October 11, 1949, alleging that the defendants had failed to comply with the pertinent statutes, G.S.1947 Supp. 44-804 et seq. Subsequent thereto and on October 17, the defendants complied with the mentioned statutes and on the 19th day of October, motions to dissolve the temporary restraining order and motions to quash the summons were heard and the order was modified as heretofore related. The case was heard on plaintiff's petition for a temporary injunction on November 21, 1949, and after the matter was fully presented, the defendants interposed demurrers to the evidence which were sustained by the court.

A brief review of plaintiff's evidence discloses that appellant's manager of promotion and publicity had been connected with appellant radio station for nineteen years and had been a member in good standing of the American Federation of Musicians since 1913; that at considerable expense it had since 1939 sponsored and promoted a group of musicians and entertainers under the copyrighted name of 'Ark Valley Boys' whose membership fluctuated from time to time and whose performance was in the nature of a hillbilly band. On September 23 the personnel then comprising the group tendered its resignation to the appellant. The station was under no contract to hire members of the union, but its practice was to hire only musicians who were union members in deference to the station's musical director who was a member of the union. Upon the resignation of its current 'Ark Valley Boys', appellant contacted the local labor organization with respect to similar groups of performers who might be available; one group was suggested but was not available for full time employment, and appellant was advised there were no others in the jurisdiction. He then contacted a group of performers in St. Joseph, Missouri, who were members of defendant union, and asked them to come to Wichita; they arrived on Sunday, October 9, and were hired on a six months contract to start with a performance the following morning as the 'Ark Valley Boys'. After the initial broadcast on October 10, the performers went to the office of the local union to deposit their transfer cards, and were there advised the cards would not be accepted, that each member would be subject to a fine of $1,000 if they remained in Wichita; that they would have to be in Wichita for six months before they could work and now that they had played a program they could be suspended from working for twelve months, all being under provisions of the union by-laws and constitution, introduced in evidence and pertinent provisions of which are as follows:

'Art. 14, Sec. 8: A member cannot, before depositing his transfer card with a Local and before obtaining the quarterly due card from the Secretary of same, solicit, accept or fill an engagement in the jurisdiction of a Local unless it is otherwise provided for by the laws of the Federation.

'Art. 14, Sec. 9: A member who has his transfer card on deposit in a Local is not entitled, without the consent of the Local, to solicit, accept or play any steady negagement, nor can he substitute on such engagement, during a period of three months...