State ex rel. Missey v. City of Cabool, 2

Citation441 S.W.2d 35
Decision Date14 April 1969
Docket NumberNo. 2,53927,Nos. 53911,No. 1,2,s. 53911,1
Parties70 L.R.R.M. (BNA) 3394, 60 Lab.Cas. P 52,056 STATE ex rel. Robert MISSEY, Harry Snelling, Lenon C. Amburgy, John Banach, F. Montie Haddox, John Reynolds, Don Wissman, and Waldo Reynolds, on Behalf of Themselves and All Other Members of International Brotherhood of Electrical Workers, Local, and William Taylor, Lester Gillette, Melvin Geisler, Norman Stogsdill, Omar Reed and William Rives, Relators-Appellants, v. The CITY OF CABOOL, a Municipal Corporation, C. J. Tindel, Mayor, Stanley Hanna, Verl Rimel, Gilbert Roberts and Ernest Wall, as Members of its Board of Aldermen, Defendants-Respondents. Robert MISSEY, Harry Snelling, Lenon C. Amburgy, John Banach, F. Montie Haddox, John Reynolds, Don Wissman and Waldo Reynolds, on Behalf of Themselves and All Other Members of International Brotherhood of Electrical Workers Local, and Omar Reed and Wayne Morehead, Plaintiffs-Appellants, v. The CITY OF CABOOL, a Municipal Corporation, C. J. Tindel, Mayor, Stanley, Hanna, Verl Rimel, Gilbert Roberts and Ernest Wall, as Members of its Board of Aldermen, and Ernest J. Barker, Defendants-Respondents
CourtUnited States State Supreme Court of Missouri

James K. Cook, Schuchat, Cook & Werner, St. Louis, for appellants, Hubert E. Lay, Houston, of counsel.

John Alpers, Jr., Cabool, Donald W. Jones, Church, Prewitt, Jones, Wilson & Karchmer, Springfield, for respondents.

HIGGINS, Commissioner.

Appeals from judgments dismissing action in mandamus, No. 53,911, and for injunction, No. 53,927, involving constitutional questions.

Appellants' petition for writ of mandamus and the court's alternative writ of mandamus (No. 53,911) and their petition for injunction (No. 53,927) were met by respondents' motions to dismiss which the court sustained by judgments of dismissal.

The facts for this review are those well pleaded in the petitions. Bedell v. Daugherty, 362 Mo. 598, 242 S.W.2d 572, 574(1, 2). International Brotherhood of Electrical Workers, AFL-CIO, Local 2, is a voluntary, unincorporated association of some 2,000 members. Among its purposes are mutual interests of its members; collective bargaining with public and private employers in Missouri for employees desirous of representation by the union, and maintenance and improvement in wages, hours, conditions of employment and social conditions of all workmen in public and private sectors of the economy.

The relators in No. 53,911 and the plaintiffs in No. 53,927, on behalf of IBEW Local 2, are representatives and agents of Local 2 holding offices of business manager and financial secretary, president, vice-president, treasurer, recording secretary, and executive board members of Local 2 whose membership is so large that it is impractical to bring all before the court, and these officers have been fairly chosen and adequately and fairly represent the whole class of Local 2 members.

Relators Taylor, Gillette, Geisler, Stogsdill, Reed, and Rives in No. 53,911 are regular employees of the City of Cabool, and plaintiffs Reed and Morehead in No. 53,927 are former regular employees of Cabool who have been discharged.

Respondent Cabool is a city of the fourth class in Texas County, Missouri. Repondents Tindel, Hanna, Rimel, Roberts, and Wall are the mayor and members of the board of aldermen of Cabool. Respondent Barker in No. 53,927 was an employee and agent of the other respondents.

On November 4, 1967, IBEW Local 2 held its first meeting with employees of Cabool, and the relator employees signed cards authorizing the union to represent them in collective bargaining negotiations with the major and board of aldermen of Cabool. By letter of that date, mailed November 5, 1967, Local 2 informed the city that it represented a majority of the city's approximately 11 employees in the electrical, park and pool, street and water and sewer departments. Relator employees in No. 53,911 are part of that majority. In the following week the city replied to Local 2 by letter stating it would not meet with it until issues of the appropriateness of the bargaining unit and majority representative status of Local 2 had been resolved. Respondent Barker attended the November 4, 1967, meeting; the respondents mayor and aldermen learned of the meeting on that date and, on November 5, 1967, they learned the identity of all city employees who attended the meeting and signed the authorizing cards. The aldermen held two special meetings Sunday, November 5, 1967, at one of which Barker was in attendance, to consider union activities of city employees.

On or about November 16, 1967, the city laid off relators Gillette and Rives, and reduced the pay of relator Taylor, all effective December 1, 1967. On or about December 1, 1967, the city laid off relators Geisler and Stogsdill and reduced the pay of relator Reed, all effective December 18, 1967. These actions were taken by the city because of the employees' union activities and because these and other employees signed the cards of authority to the union to represent them. These actions affected more than half the employees in the bargaining unit requested by IBEW Local 2, and constituted discrimination against affected employees on account of their exercise of their rights to join labor organizations and to present through their representative, Local 2, proposals to the city relative salaries and other conditions of employment. Such actions were taken to intimidate and coerce relator employees and other employees to refrain from joining Local 2.

With respect to the city's refusal to meet with Local 2 until the questions of appropriateness of bargaining unit and majority representative status had been determined, the state board of mediation held a hearing January 25, 1968, at which the city was represented by counsel. The board of mediation determined that the bargaining unit requested was appropriate and that IBEW Local 2 represented a majority of the employees in the unit. The city appealed the ruling to this circuit court which has not yet resolved the appeal.

Plaintiff Morehead was the sole witness for the union at the state board of mediation hearing, and he was discharged by the city on or about February 29, 1968. Plaintiff Reed made arrangements for the November 4, 1967, meeting between IBEW Local 2 and city employees and, on or about March 4, 1968, he was discharged by respondent Barker acting within the scope of his employment and agency with the city. Plaintiffs Morehead and Reed were discharged on account of their activities in behalf of the union and their discharges and the other layoffs and demotions were part of a continuing program and plan of the city to intimidate and coerce these and other employees from joining and supporting the union.

Since November 4, 1967, the city aldermen, on their own and through respondent Barker and others, offered selected employees wage increases and other benefits as inducement to withdraw support of, and membership in, Local 2, all of which coercion and intimidation has been undertaken with intent to reduce or destroy the majority representative status of Local 2.

Relator and plaintiff employees are injured and damaged by loss of employment and earnings and by illegal discrimination, coercion, and intimidation intended to compel them to refrain from membership in a labor organization and from presenting proposals to the city through their chosen representative. Local 2 is injured similarly because respondents' actions interfere with the rights of Local 2 to represent these employees having them as members and in presenting proposals to the city in their behalf.

Prior to suit, Local 2, by telegram, on behalf of the injured employees, requested respondents to rescind their actions and make whole and restore all affected employees. The city made no reply and took none of the requested action.

Respondents' actions were charged to be in violation of relators' and plaintiffs' rights under Section 105.510, et seq., V.A.M.S., the First and Fourteenth Amendments to the Constitution of the United States, and Article I, Sections 8 and 9, Constitution of Missouri, V.A.M.S., for which violations they have no adequate remedy at law.

The prayer in No. 53,911(filed December 16, 1967) was for an alternative writ of mandamus and, after full hearing, an absolute writ directing respondents to rescind their actions in laying off and reducing rates of pay of relator employees, to reinstate them to jobs and pay, and to make them whole for their losses. The alternative writ was issued December 19, 1967, and was quashed on respondents' motion to dismiss by the court's judgment sustaining respondents' motion May 13, 1968.

The prayer in No. 53,927 (filed March 30, 1968) was for a permanent injunction that respondents reinstate plaintiff employees to jobs and rates of pay prior to discharge and to make them whole for losses; that respondents be enjoined from further coercion, intimidation or discrimination against plaintiff employees or other city employees on account of union activity and from interfering with their rights to form and join labor organizations and to present proposals to respondents through chosen representatives; directing respondents to recognize and deal with Local 2 as provided by Sections 105.510, et seq., V.A.M.S. Respondents' motion to dismiss, filed May 18, 1968, was sustained by the court's judgment of May

The prayer in No. 53,911 (filed December

Appellants contend they are entitled to the relief sought because they have statutory and constitutional rights to join IBEW Local 2 and to have Local 2 represent them in dealing with respondents without reprisal, coercion, or intimidation from respondents. They concede that respondents have the discretion to discharge or lay off employees, or reduce their pay, but contend that such discretion cannot be exercised for...

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    ...proposals as to terms of employment, but not to agree. [Public Sector Labor Law § 105.520, RSMo 1978]; State ex rel. Missey v. City of Cabool, 441 S.W.2d 35, 41[2-5] (Mo.1969). by positive legislative act. The plaintiff State of Missouri asserts that strike by public sector employees is unl......
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