Tarr v. Amalgamated Ass'n of St. Elec. Ry. & Motor Coach Emp. of America, Division 1055

• Decision Date: 31 October 1952
• Docket Number: No. 7852,7852
• Citation: 73 Idaho 223,250 P.2d 904
• Court: Idaho Supreme Court
• Parties: TARR v. AMALGAMATED ASS'N OF STREET ELECTRIC RY. & MOTOR COACH EMPLOYEES OF AMERICA, DIVISION 1055 et al.

Page 904

250 P.2d 904

73 Idaho 223

TARR v. AMALGAMATED ASS'N OF STREET ELECTRIC RY. & MOTOR COACH EMPLOYEES OF AMERICA, DIVISION 1055 et al.

No. 7852.

Supreme Court of Idaho.

Oct. 31, 1952.

Rehearing Denied Dec. 19, 1952.

K. C. Tanner and Richard R. Carney, Portland, Or., George R. Phillips, Pocatello, for appellants.

Bistline & Bistline, Pocatello, for respondent.

KEETON, Justice.

Respondent, J. E. Tarr, Jr., plaintiff in the trial court, will be hereinafter referred to as plaintiff. Appellants will be hereinafter referred to as defendants.

After a trial on issues joined, by a decree dated November 19, 1951, the Amalgamated Association of Street Electric Railway and Motor Coach Employees of America, Division 1055, a labor organization, Ray Schell, Louella A. Schell, T. S. Beguin and Glenn Yaegle were restrained and enjoined:

'From interfering with the business of the plaintiff in the operation of buses within the city of Pocatello, Idaho, and territory contiguous thereto by picketing the same, or by threatening prospective passengers who are members of other Unions with fines if they ride said buses, by interfering with drivers of plaintiff's buses and by permitting the name of the plaintiff * * * to remain upon the 'Unfair List' of the Central Labor Council of Pocatello, which will affect plaintiff's business and from doing or committing any or all other acts which are unlawful in connection therewith in the absence of a labor dispute as defined by the laws of the State of Idaho, which will interfere with or damage plaintiff's said bus business.'

Other parts of the decree appealed from will be hereinafter referred to where pertinent to a decision.

Succinctly, the facts are: plaintiff, on May 7, 1951, secured from the city commissioners of Pocatello, a franchise or permit to operate buses upon the streets of Pocatello for the purpose of carrying passengers for hire for a period of six months, beginning May 10th.

Pursuant to this arrangement with Pocatello, plaintiff began business on May 10, 1951, and employed the following persons to drive the buses: Grace Bloom, Georgia Gutzman, W. W. Stevens, Richard Stevens and Charlie Radford. These employees were members of the defendant union. There was and is no union contract between the defendant union and the plaintiff herein.

On May 10th plaintiff was visited by defendant Yaegle, a union representative, who asked for a meeting. A meeting was held that evening and the bus drivers, plaintiff and Yaegle were present. There were two propositions discussed, to-wit: the drivers to be employed for charter trips; and a demand or request of the union representative Yaegle that Ray Schell and Louella A. Schell be employed as bus drivers. Further that the Schells be paid back pay for sums Yaegle claimed were owed them by a company (Motor Transit Company, a corporation), which had formerly operated buses on the streets of Pocatello. Plaintiff refused to employ the Schells or to pay them any sums they claimed were owed by the Motor Transit Company. A vote was taken and the employees voted to strike. None of the bus drivers appeared for work the next morning, May 11th. Plaintiff hired other bus drivers and continued to do business. Certain pickets, including the Schells, but not including any of plaintiff's bus drivers, picketed the loading stations of the plaintiff, carrying signs and placards reading 'Pocatello Transit Company Unfair to Organized Labor'. None of the pickets was an employee of the plaintiff. Pickets followed a practice of taking the names of union members of other unions and telling them that they, or members of their families, would be fined by the union if they rode plaintiff's buses. Pickets further talked to the drivers of the buses in an endeavor to get them to quit work and caused the name of the plaintiff to be placed on the unfair list of the Central Labor Council of Pocatello. The drivers of the buses were called 'scabs' and members of other unions were threatened if they did not desist from patronizing the plaintiff's buses. Other acts of coercion to prevent plaintiff from operating buses were indulged in by Yaegle and other pickets.

Prior to May 10th (the date plaintiff began operating buses on the streets of Pocatello) the Motor Transit Company, a corporation, had been engaged in the business of operating buses in Pocatello and vicinity, pursuant to a franchise that had been in effect subsequent to 1936. By agreement with the City of Pocatello, this franchise was terminated on May 9, 1951.

Among the employees of the Motor Transit Company when it was operating buses were two of the defendants in this action, namely, Ray Schell and Louella A. Schell. The Motor Transit Company discharged Ray Schell on February 26, 1951, and Louella A. Schell on March 31, 1951, for what the Motor Transit Company considered sufficient cause.

While the Motor Transit Company was engaged in the transportation business, there was in effect a collective bargaining contract between the corporation and the defendant union, and on March 9, 1951, the defendant union sent a notice of termination of the union agreement, and it was stipulated by the parties that the contract between the Motor Transit Company (not a party here) and the defendant union was by this notice terminated at midnight on May 10, 1951.

The Motor Transit Company surrendered its franchise and discontinued business on May 9, 1951.

Some of the drivers of the plaintiff's buses, formerly employees of the Motor Transit Company, namely, Grace Bloom, Georgia Gutzman, W. W. Stevens, Richard Stevens and Charlie Radford were employed by plaintiff starting on the morning of May 10, 1951.

Whether or not the Schells had been discharged by the transit company for sufficient cause under the contract between the union and the Motor Transit Company was never determined by the method provided in the bargaining contract between the union and the company, and the right, if any, of the Schells for seniority or other benefits by methods and procedure provided by the union contract with the Motor Transit Company was never determined.

In assignments of error defendants challenge the sufficiency of the evidence to support certain findings. We will not comment on the challenged findings separately. Suffice to say findings made by the trial court are fully supported by the evidence and will not be disturbed.

Defendants contend that the collective bargaining agreement which existed between the union and the Motor Transit Company was binding on the plaintiff, claiming in the assignment that the plaintiff was a 'successor' and that plaintiff was bound by the union contract terms.

There was no assignment of the union contract to the plaintiff, nor did the plaintiff accept as assignee any of the obligations of said contract, and on this contention, the learned trial judge found:

'* * * plaintiff did not take over the business of the Motor Transit Company; that he started a new business under his own franchise and with his own equipment; that the said Motor Transit Company had ceased operation on May 9, 1951, and that at the end of work on that day the members of the Union ceased to be employees of the said Transit Company; * * *.'

To sustain the contention that the contract between the union and the Motor Transit Company was binding on plaintiff, defendants cite: Blackwell v. Kercheval, 27 Idaho 537, 149 P. 1060; Building Service Employees v. Pinkerton, 19 C.C.H. Labor Cases 66-145; Illinois Surety Co. v. John Davis Co., 244 U.S. 376, 37 S.Ct. 614, 61 L.Ed. 1206. None of the cases is in point and none supports the contention made.

Defendants next contend that a labor dispute within the meaning of Sec. 44-712, I.C. existed between the management of the Motor Transit Company and the defendants at the time plaintiff acquired the property.

A labor dispute is defined by Sec. 44-712, I.C. as follows:

'The term 'labor dispute' means any controversy between an employer and the majority of his employees in a collective bargaining unit concerning the right or process or details of collective bargaining or the designation of representatives.'

Whether a labor dispute existed between the Motor Transit Company and the defendants within the meaning of this section, is unnecessary to determine. Plaintiff was not a party to the contract. Further the strike was not effective until after the contract between the union and the Motor Transit Company had been canceled by the union.

If a labor dispute existed (which we do not decide) between the union and the Motor Transit Company, the method provided in the contract to determine the rights, if any, of the Schells, was not followed, and whether or not the Schells were entitled to reinstatement, or back pay, or other benefits as employees of the Motor Transit Company is foreign to the issue.

The contract between the union and the Motor Transit Company provided:

'No employee who has been in service over 90 days will be disciplined or dismissed without the right of a fair and impartial investigation, provided that the employee desires such an investigation.'

There was no showing here that the matter discussed with the plaintiff at the meeting held on the night of May 10th was determined or settled by request of the discharged employees, or otherwise, or the procedure provided for in the contract followed.

If the Schells were entitled to reinstatement or employment, it would be reinstatement by the Motor Transit Company and not by plaintiff, in whose employ the Schells had never been.

Defendants next contend that the plaintiff had full knowledge of the existence of a labor dispute between the union and the Motor Transit Company; that he was a new owner and having acquired by purchase the property on which the disputants had been employees, took over and inherited the labor dispute, if one existed.

The defendants do not contend that the labor dispute concerning the employment...