State ex rel. Utility Workers Union of America, AFL-CIO Local 349 v. Macelwane

• Decision Date: 03 March 1961
• Docket Number: AFL-CIO
• Citation: 116 Ohio App. 183,22 O.O.2d 38,187 N.E.2d 901
• Parties: , 22 O.O.2d 38 The STATE ex rel. UTILITY WORKERS UNION OF AMERICA,LOCAL 349 v. MACELWANE, Judge. *
• Court: Ohio Court of Appeals

Page 183

116 Ohio App. 183

187 N.E.2d 901, 22 O.O.2d 38

The STATE ex rel. UTILITY WORKERS UNION OF AMERICA, AFL-CIO LOCAL 349 v. MACELWANE, Judge. ^*

Court of Appeals of Ohio, Sixth District, Lucas County.

March 3, 1961.

Jack Gallon and John J. Hunter, Toledo, for relator.

Harry Friberg, Pros. Atty., for respondent.

FESS, Judge.

This is an action in prohibition filed originally in this court on behalf of Utility Workers Union of America AFL-CIO, Local No. 349, against the respondent, judge of the Common Pleas Court of Lucas County, seeking to prevent such judge from continuing in force a temporary restraining order entered on January 27, 1961, based on the relief requested in a supplemental petition for an injunction instituted by The Ohio Fuel Gas Company in that court against the union on January 25, 1961. The petition also seeks to prevent the judge from hearing and determining the prayer for a permanent injunction in said cause; 'from entertaining the supplemental petition for injunction; from in any way trenching upon the jurisdiction over labor disputes which has been withdrawn by Congress from state courts'; and, pending final determination of this cause, for an alternative writ of prohibition. Since the cause was advanced for early hearing on its merits, no alternative writ has been issued.

In the answer, defendant admits the issuance of the temporary restraining order, as set forth in the journal entry recorded on January 27, 1961, and alleges that such order was made as the court determined was proper under the evidence and the law applicable thereto and that she has no personal interest in the outcome of this case, other than to have this court determine whether or not the temporary restraining order was proper under the facts and the law.

The cause came on for hearing upon the petition in prohibition the answer of the respondent, the evidence consisting of the original and supplemental petitions, transcript of the testimony, and the journal entry restraining the union and its members from picketing homes of supervisory employees of the gas company in case No. 1898.33, entitled Ohio Fuel Gas Co. v. Utility Workers Union in the Common Pleas Court.

The original petition below, filed on January 21, 1961, alleged inter alia, that as a result of a labor dispute between the plaintiff therein and the union and its members, the latter are on strike and have been picketing plaintiff's service building and its office; that the preservation of its property and the maintenance of the safety, health and welfare of the public generally requires the continued operation of its business of the distribution of natural gas to its thousands of customers, and that certain of its employees, not members of the defendant union, have been assigned, and are required, in the interest of safety, health and welfare, to operate and maintain its gas distribution system at all times and must have free and unrestrained ingress and egress to and from its service and office buildings; that defendants have engaged in mass picketing, resulting in the blocking of such access; that, during the course of such picketing, vile and opprobrious epithets threatening bodily harm have been directed toward employees not members of the union; that locks on the gates have been tampered with; that defendants have maliciously destroyed plaintiff's property by throwing stones at windows of the service building, resulting in more than 150 broken panes of glass, endangering plaintiff's employees; and that certain of its regulators in the area controlling the supply of gas have been tampered with or destroyed, resulting in depriving a number of its customers of gas in freezing weather. After alleging irreparable damage and injury to its employees, plaintiff prays that, pending final hearing and determination of the issues, an order be issued forthwith, restraining the defendants from engaging in six specifications of conduct, and, upon final hearing, for a permanent injunction.

In its supplemental petition, filed January 25, 1961, plaintiff, after incorporation of the allegations of its original petition, alleged, inter alia, that certain of its supervisory employees, in the interest of maintaining its service and consequent health and safety of its customers, have been assigned to operate and maintain its gas distribution system; that in the course of such work such employees are notified by telephone at their homes of the work required to be done, and of necessity begin and end their transportation to and from such work at their homes; and that the widely scattered distribution system area makes this method the most efficient and safe method of operation during the strike and most conducive to the safety health and welfare of plaintiff's customers and of the public generally. Plaintiff alleged further that on January 23rd its supervisory employees received the following notice from the defendant:

'To the Supervisory Personnel of Ohio Fuel Gas Co.

'It has come to our attention that you are performing our work from your homes. The federal law guarantees our right to picket on public property wherever struck work is being performed. If you continue to perform our work from your homes, we shall protect our jobs by placing a picket in front of such homes to inform the public of this work.

'Local 349

'Utility Workers of America,

'Negotiation Committee.'

Plaintiff alleged further that defendants have begun picketing the residences of supervisory personnel, and prays that, pending final hearing, a restraining order be issued forthwith against the defendants, restraining them (1) from picketing before, or in the vicinity of the residences of any of plaintiff's employees; (2) from loitering, grouping or congregating at or near any approaches to, or on a public street or highway leading to any of said residences; and (3) from authorizing, directing, aiding, abetting, etc., any of the aforesaid. Plaintiff prays further that, upon final hearing, a permanent injunction be issued.

The cause came on for hearing in the Common Pleas Court on January 25th upon an oral application of the plaintiff for a temporary restraining order upon the prayer of the supplemental petition, and testimony was taken on said date and also on January 26th. That interstate commerce is involved is conceded. The hearing first proceeded upon the application of the plaintiff to advance for hearing its application for a temporary restraining order under the supplemental petition. After receiving some 20 pages of testimony, the court announced that she was satisfied that the application should be advanced for hearing and proceeded to the hearing for temporary restraining order of picketing homes of supervisory personnel. Counsel for defendants moved that the supplemental petition be dismissed and stricken from the files because it sought a remedy beyond the jurisdiction of the court. After argument and adjournment overnight, the court announced that she would reserve a ruling on the question of jurisdiction until after the evidence.

Since this is a proceeding in prohibition, we neither weigh the evidence nor consider whether the injunctive order below was erroneous or unsupported by the evidence. We are limited in our review of the testimony received below, as well as by the pleadings and the journal entry, to a determination whether or not the Common Pleas Court judge has usurped or intends to usurp the exclusive jurisdiction confided by the National Labor Relations Act, as amended, to the National Labor Relations Board.

Testimony adduced on behalf of the plaintiff in the injunction proceeding tended to show that on the night of the commencement of the strike there was mass picketing, with profanity, violence and vandalism in front of the service building, which was only quelled by the arrival of a squad of police officers. Testimony on behalf of the defendants tended to show that this conduct was largely 'wildcatting' and that the major portion of the vandalism occurred prior to the official commencement of the strike at midnight. Testimony on behalf of the defendants, which is undisputed, except for one or more minor incidents, is to the effect that after the first night of the strike picketing has been peaceful, with a limited number of pickets stationed at the three gates entering the service building. A policeman has been assigned to each of the three gates. The plaintiff has also employed 27 Pinkerton men to guard nine locations, at which there has been no report of violence.

Further testimony on behalf of the plaintiff tended to show that one or two pickets had been stationed during the daytime (not at night) at the residences of supervisory employees. The wife of one of these employees testified that she had been subjected to threatening and abusive telephone calls relating to her husband and had been put in fear as a result thereof, which prevented sleep that particular night. She testified also that she had been frightened as a result of the picketing in front of her home, which testimony was refuted by the testimony of the picket himself. She also said she called an acquaintance, whom she designated a 'constable,' who patrolled her home one evening.

There was also evidence that some 20 regulators of the flow of gas--an abnormal number--had either been destroyed or turned off resulting in cutting off the flow of gas entirely or materially lessening the flow of gas to about 300 customers; that, as a result, it was absolutely necessary to dispatch the supervisory employees from their respective homes to correct the condition as soon as possible after discovery of the shutoff. There was also testimony that, when the gas was shut off, it was necessary to contact each customer of the area when the gas was shut off, and again when service was resumed. Prior to the strike, complaints of lack of gas were received by telephone at the service office, and thereafter...