Swart v. Huston

• Decision Date: 11 October 1941
• Docket Number: 35203.
• Citation: 154 Kan. 182,117 P.2d 576
• Parties: SWART v. HUSTON.
• Court: Kansas Supreme Court

117 P.2d 576

154 Kan. 182

SWART v. HUSTON.

No. 35203.

Supreme Court of Kansas

October 11, 1941

Syllabus by the Court.

The practice of collective bargaining is sanctioned by Kansas law. Gen.St.1935, 44-614, 60-1107.

A collective bargaining agreement between an employer and a labor union does not generally constitute an "employment contract" between the employer and any individual member of the union, and he and the employer make their own contract impliedly at least if not expressly. Gen.St. 1935, 44-614 60-1107.

An employee of a theater could not maintain action against the theater owner for loss of wages resulting from the employee's discharge on ground that the employer thereby violated terms of a collective bargaining agreement entered into between the employer and labor union to which the employee belonged. Gen.St.1935, 44-614, 60-1107.

Where mutual and reciprocal obligations do not exist, the essentials of an enforceable "contract" are wanting, and no action for breach of contract can be maintained.

In absence of a contract express or implied between employee and his employer covering duration of employment, no action for discharging the employee from service can be maintained against the employer.

1. Collective bargaining between authorized representatives of a labor union and an employer is lawful and proper, but ordinarily it does not constitute a specific contract of employment between an individual member of such union and his employer, for the breach of which an action will lie at the instance of the employee.

2. An action by an employee of the proprietor of a theatre for damages for loss of wages consequent upon his discharge from employment cannot be based on the general terms of a collective bargain entered into between his employer and a labor union of which the employee was a member.

3. Rule followed that where mutual or reciprocal obligations do not exist, the essentials of an enforceable contract are wanting and no action for its breach can be maintained.

4. In the absence of a contract express or implied between an employee and his employer covering the duration of such employment, no action for discharging the employee from service can be maintained against the employer.

Appeal from District Court, Sedgwick County; Ross McCormick, Judge Division No. 1; Robert L. NeSmith, Judge Division No. 2; and Isaac N. Williams, Judge Division No. 4.

Action by Benton E. Swart against W. P. Huston, doing business as Kansas Theatre, for loss of wages caused by the plaintiff's discharge from the employment of the defendant. From an adverse judgment, plaintiff appeals.

In absence of a contract express or implied between employee and his employer covering duration of employment, no action for discharging the employee from service can be maintained against the employer.

Charles F. McClintock, Harold H. Malone, and L. C. Gabbert, all of Wichita, for appellant.

Glenn Porter, Getto McDonald, Dwight S. Wallace, William Tinker, Z Wetmore, George M. Ashford, and Waldo B. Wetmore, all of Wichita, for appellee.

DAWSON Chief Justice.

This was an action by a member of a labor union against his employer for damages for alleged breach of a labor contract between the employer and a labor union of which the plaintiff was a member.

The action originated in the city court of Wichita. The pleadings were plaintiff's bill of particulars, to which was attached a copy of the contract between the defendant employer and the labor union. Defendant joined issues by demurrer. The city court gave judgment in plaintiff's favor. Defendant appealed to the district court, where three of the district judges heard the cause and held that defendant's demurrer should be sustained and gave judgment accordingly.

Plaintiff brings the matter here for further review.

It appears that on March 9, 1939, defendant Huston operated a playhouse in Wichita under the trade name of "Kansas Theatre." On that date he entered into a contract with a labor union styled "Local No. 414 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada." This contract was to run until August 31, 1940. By its terms the union agreed to furnish whatever motion picture operators (named projectionists) defendant might require. Defendant agreed to employ no operators except those supplied by the union; and it was agreed that if the services of any operator were unsatisfactory to defendant, the union was to have an opportunity to adjust or correct that situation. Defendant agreed to pay the operator supplied by the union accordingto a specified wage scale of $39.60 for a six-day week of six-hour days, with additional pay for overtime and other details of no present concern. One paragraph of the contract provided that if the theatre should be closed and defendant in consequence should desire to dispose of the services of the operator supplied by the union he would give the union two weeks' notice or "pay two weeks' salary in lieu thereof."

Plaintiff's bill of particulars alleged that he was a member of the union with which defendant had contracted in March 1939 as summarized above, and that at the instance of the union he took up his abode in Wichita and became the operator and gument with excerpts from decided cases employee of defendant and so continued until December 20, 1939, "at which said time the defendant refused to further employ plaintiff and to comply with the terms of said contract."

Plaintiff further alleged that he had fully complied with all the terms of the contract made by the union of which he was a member and that there was due him as wages from December 20, 1939 until March 16, 1940 (when this action was begun), the sum of $518.40 for which amount plaintiff prayed judgment.

It was stated in oral argument before this court that the severance of the relationship of employee and employer came about by defendant selling out and retiring from the theatre business.

When the case reached the district court, it was held that defendant's demurrer to plaintiff's bill of particulars should be sustained; and that ruling is the basis of this appeal.

Counsel for plaintiff opens his arwhich give judicial countenance to the policy of collective bargaining between employers and authorized representatives of labor organizations. By statute this state gave express sanction to the practice of collective bargaining many years ago. Laws 1920, ch. 29, § 14; G.S.1935, § 44-614; State ex rel. v. Howat, 109 Kan. 376, 395, 415, 416, 198 P. 686, 25 A.L.R. 1210. Earlier legislative recognition of the right of labor to organize, act and bargain collectively is clearly implied in our statute of 1913, G.S.1935, § 60-1107, which prohibits the granting of injunctions in disputes between employers of labor and their employees. Giltner v. Becker, 133 Kan. 170, 298 P. 780.

But a collective bargain between an employer of labor and a labor union does not ordinarily constitute a contract of employment between the employer and any individual member of that union. He and his employer make their own contract impliedly at least if not expressly. The collective bargain between employer and union outlines the general conditions under which the business shall be conducted in respect to wages hours of labor, working conditions, and matters incidental thereto. Ordinarily the collective bargain does not of itself make a contract of employment between A as employer and B as workman which either can enforce, or which will furnish the basis for an action for damages if it is breached. This is settled text book doctrine. Thus in the article on Labor, 16 R.C.L. 425, it is said: "It has been pointed out that the ordinary function of a labor union is to induce employers to establish usages in respect to wages and...