Smith v. Arthur C. Baue Funeral Home

• Decision Date: 09 September 1963
• Docket Number: No. 1,No. 49788,49788,1
• Citation: 370 S.W.2d 249
• Parties: 54 L.R.R.M. (BNA) 2158, 48 Lab.Cas. P 50,912 John Clay SMITH, (Plaintiff) Respondent, v. ARTHUR C. BAUE FUNERAL HOME, a Corporation, and Arthur C. Baue and David Baue, an unincorporated copartnership, (Defendants) Appellants
• Court: Missouri Supreme Court

Page 249

370 S.W.2d 249

54 L.R.R.M. (BNA) 2158, 48 Lab.Cas. P 50,912

John Clay SMITH, (Plaintiff) Respondent, v. ARTHUR C. BAUE FUNERAL HOME, a Corporation, and Arthur C.

Baue and David Baue, an unincorporated

copartnership, (Defendants) Appellants.

No. 49788.

Supreme Court of Missouri, Division No. 1.

Sept. 9, 1963.

Robert V. Niedner, Niedner, Niedner & Moerschel, St. Charles, John R. Stockham, Stockham & Breckenridge, St. Louis, for appellants.

J. F. Souders, Gruenberg, Schobel & Souders, St. Louis, for respondent.

Henry Andrae, Jefferson City, Hendren & Andrae, Jefferson City, of counsel, for amicus curiae National Selected Morticians.

Edward D. Summers, Jefferson City, for amicus curiae Missouri Funeral Directors' and Embalmers' Ass'n., Inc. HOLMAN, Judge.

Plaintiff, a discharged employee of the Arthur C. Baue Funeral Home, in this action sought to enjoin his former employers from refusing to reinstate him, and to require the payment of lost wages as well as actual and punitive damages. At a hearing held on May 4, 1962, before Judge James D. Clemens, plaintiff was denied a temporary injunction. Thereafter, Judge Clemens disqualified himself and Judge James F. Nangle was assigned to hear further proceedings in the case. The trial before Judge Nangle resulted in a final judgment permanently enjoining defendants Arthur C. Baue and David Baue from interfering with plaintiff's right to bargain collectively, from denying plaintiff continued employment by defendants, and requiring that defendants reinstate plaintiff as an employee and pay him all compensation which he would have received had he not been discharged. Defendants have duly appealed from said judgment. We have jurisdiction because the issues here presented involve a construction of certain constitutional provisions.

The appeal in a companion case in which the Baues sought to enjoin the union from picketing their funeral home in St. Charles was submitted at the same time as the case at bar. See Arthur C. Baue et al. v. Embalmers Federal Labor Union No. 21301 et al., No. 49,789.

Plaintiff, 24 years of age at trial time, was employed for an indefinite term as an embalmer by Arthur C. Baue Funeral Home, a Corporation, of St. Charles, Missouri, on January 3, 1961, at a salary of $75 per week and a rental allowance of $25 per month. In August 1961 his salary was increased to $90 per week. Also, plaintiff was reimbursed for telephone service and was given group life and hospital insurance by his employer. Plaintiff testified that he was advised by the Baues that if he desired to join a union they 'couldn't use him,' and that if anyone from the union approached him he should not talk with them; that they told him that the union contract would not permit either of them to embalm, and that he had told them he didn't think that was fair; that his relationship with the Baues was friendly and that they had urged him to study and learn to be a funeral director; that they had given him a suit of clothes on one occasion, and on several occasions had loaned him an automobile to go to his former home in Walnut Ridge, Arkansas.

Plaintiff testified further that he contacted a union representative about the first of April 1962, and on April 9 signed cards authorizing the union to represent him; that he met with Arthur and David Baue in their office on April 14 and they advised him that they had received a letter from an attorney representing the union, and asked him if the union had contacted him and he said 'No'; that at that time they (the Baues) advised him that they wanted to form a partnership so he would become a part of management; that on April 16, they delivered partnership papers to him, but he advised them that he wanted to consult an attorney in Walnut Ridge, Arkansas, before signing the agreement; that they told him at that time that if he joined a union they would have to discharge him, and he told them he would not talk to a representative of the union if one came to see him; that on April 18 he was told by Arthur that he could go to Arkansas for the Easter week end and have the attorney examine the partnership papers; that they wanted him to submit a letter of resignation, dated April 7, which they could show to the union representatives when they met with them on April 20; that the letter of resignation would not affect the partnership or his pay; that 'they asked me if the union had contacted me, and I said 'No"; that he went to Arkansas but did not have the attorney examine the partnership papers because he knew before leaving that he wasn't interested in a partnership; that after returning from Arkansas he saw the Baues on Monday afternoon when he reported for work; that David asked him to come in the office and he was then asked if he had contacted the union and he said 'Yes'; that David stated that he was disappointed in him, and handed him a letter of discharge which stated that his employment was terminated because of plaintiff's failure to send them the letter of resignation. Plaintiff stated that since his discharge he has attempted to obtain employment elsewhere as an embalmer but has been unable to do so; that he did receive $25 per day from the union for walking the picket line during the first three weeks following his discharge, and $20 per day for the second three weeks.

David Van Fossan testified that he was a practicing embalmer and was president of the Embalmers Federal Labor Union, Local No. 21301; that it was the policy of the union to try to organize funeral establishments which bury more than 85 people per year; that plaintiff called him on April 7, 1962, and expressed the desire that the union become his sole agent for collective bargaining; that he later sent plaintiff papers to sign, which he signed and returned to him; that he then had an attorney for the union write the Baues and advise that they would call on them on April 20 and discuss a union contract; that plaintiff called him on April 16 and advised him of the proposed partnership agreement and he advised plaintiff that if he became a partner he could not belong to the union; that he and other union representatives called on the Baues on April 20 and discussed the contract and, at the request of Arthur Baue, another meeting was arranged for April 25; that on April 23 he was notified that plaintiff had been discharged; that after sending a letter of protest to the Baues the union set up a picket line at the funeral home. He testified further that the proposed contract contained a provision under which neither Arthur nor David Baue could embalm bodies unless they joined the union, and so long as they had any ownership in the business they could not join the union; that the provision prohibiting management representatives from embalming had to be in all contracts and was not subject to negotiation.

David C. Baue testified that he was a mortician and a partner with his father in the operation of the Baue Funeral Home in St. Charles; that the partnership had been formed on March 28, effective April 1, 1962, and it leased the funeral home from the corporation; that plaintiff had told him that he knew nothing about the letter they (the Baues) received from the union, no representative of the union had contacted him, and that he had signed nothing and would not talk to a union representative if one called on him; that he had explained to plaintiff what a union contract would do to their business; that plaintiff was discharged for failure to send the requested letter of resignation as stated in the letter of discharge, and also for being dishonest in failing to be candid and frank with them concerning the fact that he had authorized the union to bargain for him. He further stated that if they entered into a union contract they would have to employ another employee; that plaintiff's salary would be increased from $90 a week to $170 a week; that they would have to discontinue their ambulance service which is a good public relations service for funeral homes; that they would have to discontinue some charitable services which are furnished at less than cost; that because of these additional expenses they would have to increase the price of their funerals which would cause them to be more than those of their two competitors in St. Charles, neither of whom have more than 85 funerals a year.

The testimony of Arthur C. Baue, upon the essential facts here involved, was very similar to that of David Baue and for that reason will not be detailed herein. He did state additionally that he began the operation of the business in 1935, and since that time had been either the owner or part owner thereof; that he is a licensed embalmer, as is his son David.

The allegations of plaintiff's petition with which we are here concerned are in paragraphs 7 and 8, wherein it is alleged that on April 23, 1962, defendants '7. * * * discharged plaintiff effective April 20, 1962, because of his membership in said labor organization and because plaintiff had designated the said labor organization as the sole and exclusive representative for the purposes of collective bargaining with respect to wages, hours, and other conditions and terms of plaintiff's employment. 8. The action of the defendants in dismissing plaintiff from its [their] employ is violative of the rights and guarantees contained in Article I, Section 29 of the Constitution of the State of Missouri that employees shall have the right to organize and to bargain...