Texas Const. Co. v. Hoisting and Portable Engineers' Local Union No. 101, 39301

• Decision Date: 14 July 1955
• Docket Number: No. 39301,39301
• Citation: 178 Kan. 422,286 P.2d 160
• Parties: TEXAS CONSTRUCTION COMPANY, Appellee, v. HOISTING AND PORTABLE ENGINEERS' LOCAL UNION NO. 101, Affiliated with The International Union of Operating Engineers A. F. of L., an unincorporated labor organization or association; Jess Hardy, individually and as Business Agent of said labor organization; and all other members, agents and representatives of said labor organization whose real names are unknown to plaintiff and therefore cannot be given, as individuals and representatives of said labor organization, Appellants.
• Court: Kansas Supreme Court

Page 160

286 P.2d 160

178 Kan. 422

TEXAS CONSTRUCTION COMPANY, Appellee, v. HOISTING AND PORTABLE ENGINEERS' LOCAL UNION NO. 101,

Affiliated with The International Union of Operating

Engineers A. F. of L., an unincorporated labor organization

or association; Jess Hardy, individually and as Business

Agent of said labor organization; and all other members,

agents and representatives of said labor organization whose

real names are unknown to plaintiff and therefore cannot be

given, as individuals and representatives of said labor

organization, Appellants.

No. 39301.

Supreme Court of Kansas.

July 14, 1955.

Syllabus by the Court.

An employer of labor transacting business which involves interstate commerce, without filing any petition with the National Labor Relations Board brought a suit in the district court of Phillips County to enjoin a labor union from picketing his place of business to induce his employees to join the union, held: The district court of Phillips County had no jurisdiction of the subject matter.

Robert L. Kimbrough, Topeka, argued the cause, and George E. McCullough, Topeka, and William H. Stowell, Phillipsburg, were with him on the briefs for appellants.

E. H. Hatcher, Topeka, argued the cause, and D. A. Hindman, Stockton, was with him on the briefs for appellee.

HARVEY, Chief Justice.

The sole question presented in this appeal is whether the trial court had jurisdiction of the subject matter. Appellants contend it did not.

We summarize or quote portions of the record bearing upon the question presented as follows:

Plaintiff is a Delaware corporation with its home office at Dallas, Texas, and is duly authorized to do business in this state. Its business consists of the construction of dams and various other types of construction work throughout the United States. At the time the action was filed plaintiff was the general contractor for the construction of the Kirwin Dam on the north fork of the Solomon River in Phillips County for the United States Department of Interior, Bureau of Reclamation.

Defendant is a voluntary, unincorporated labor association, with headquarters at Kansas City, Missouri, affiliated with the International Union of Operating Engineers, A. F. of L. Jess Hardy was its duly authorized business agent.

In plaintiff's petition it was alleged:

'V. Plaintiff does not now have a dispute of any kind or character with any of its employees in regard to wages, hours or other conditions of employment. Plaintiff does not now have, or has ever had at any time, any contractual or bargaining relationship with the above named union, or any of the individual defendants, and none of these defendants nor anyone else has ever been designated as the bargaining agent or representative of the employees of plaintiff. Plaintiff's employees do not now have nor have they ever had a dispute of any kind or character with the defendants. None of plaintiff's employees belong to defendant union and they have all expressed their desire to not become affiliated with said union to plaintiff. On or about March 23, 1953, notwithstanding the fact that there was no labor dispute existing between plaintiff and said defendant union, and notwithstanding the fact that all of plaintiff's employees had made known to plaintiff and defendant union their desire not to join defendant union, defendants caused pickets to be placed at the entrance to the Kirwin Dam Project, one-half mile south of Kirwin, Phillips County, Kansas. The pickets carried banners bearing the following phraseology: 'Texas Construction Company Refuses to Pay Union Wage Scale to Operating Engineers (Hoisting and Portable Engineers--Local 101) A. F. of L.' 'Texas Construction Company Unfair to Organized Labor and Refuses to Employ Union Operating Engineers.' Plaintiff, in the construction of said Kirwin Dam, necessarily uses materials and equipment which must be transported from distant points. The aforementioned pickets have consistently and repeatedly stopped the drivers of trucks transporting materials and equipment into the Kirwin Dam Project and threatened to 'skin their heads' and do them other bodily harm if they should cross the picket line. Said pickets have also threatened plaintiff's employees with bodily harm if they continue to work on the construction of the Kirwin Dam. As a result of said violent acts and threats by the pickets, many of the truck drivers transporting materials and equipment to the Kirwin Project have been afraid and refused to cross the picket line, and the construction of the Kirwin Dam has been impeded and 'slowed down' because of the loss of use of said equipment and the deprivation of the use of said materials. The intent and purpose of said picketing is to unlawfully compel plaintiff to recognize the defendant union as exclusive representative of plaintiff's employees for the purpose of collective bargaining and to unlawfully compel plaintiff to sign a collective bargaining agreement with the Union. Defendants well know that the placing of pickets about the premises of the Kirwin Dam Project, as aforesaid, for the purpose of accomplishign the unlawful objects as aforesaid will result in and have the necessary effect of stopping delivery of goods and materials to said premises and will interfere with, impede and slow down the construction of said Kirwin Dam. Defendants well know that plaintiff is obligated under the law to recognize as exclusive bargaining agent only a labor organization which is selected by majority of plaintiff's employees and defendants well know that for plaintiff to recognize the union as the labor organization selected by a majority of their employees, when in fact and in truth all of plaintiff's employees desire not to belong to said union and do not wish to enter the union to represent them as exclusive bargaining agent, will be contrary to law and compel plaintiff to commit unlawful acts and that plaintiff would unlawfully be interfering with the rights of the employees to freely choose, designate and select a labor organization of their own choice as guaranteed by law. Plaintiff can not lawfully so recognize the union and force upon its employees a collective bargaining agent which is not of their own choosing.

'VI. Such pickets so unlawfully placed at, about and around the premises at the Kirwin Dam Project were placed there at the direction of the defendants for the purpose of coercing employees of the plaintiff against their will to join said union and permit said union to be their exclusive bargaining agent, contrary to fact and without any such designation having been authorized by secret ballot and other proceedings rendered and provided by law.

'VII. The defendants and each of them have committed and cause the commission of unlawful acts complained of herein and have sought to injure and damage plaintiff by preventing the construction of said Kirwin Dam and unless restrained and enjoined from so doing will continue to prevent the construction of said dam and will continue to threaten plaintiff's employees with bodily harm.'

It was further alleged that plaintiff had no adequate remedy at law. The prayer was that defendants be restrained and enjoined from picketing plaintiff's place of business.

Plaintiff's verified petition and verified motion for a restraining order were filed May 4, 1953, in the district court of Phillips County, Kansas. The temporary restraining order was issued on that day and the hearing upon the issuance of a temporary injunction was set for May 8, 1953, and notice was given to defendants. On May 8, 1953, the parties appeared and plaintiff introduced its evidence, and counsel for the respective parties made oral argument. The court took the matter under advisement. Briefs were furnished by counsel, and on May 19, 1953, the court made findings of fact and conclusions of law and granted the temporary injunction, requiring plaintiff to give a bond in a stated amount, which was done. The case was set for hearing on June 16, 1953, on its merits.

On May 19, 1953, defendants filed their answer, which reads:

'Come now the defendants and deny each and every allegation and statement of fact contained in the petition of plaintiff.

'For further answer defendants state that the relief sought, under the facts and allegations set forth is a denial to defendants of their rights under the constitution of the United States of America and specifically a denial of their rights under Amendments No. 1 and No. 14 to the constitution.

'For further answer defendants state that the facts in this matter are such that to grant an injunction would be a denial of the rights of the defendants under the constitution of the United States of America, and specifically under amendments No. 1 and No. 14 thereof.'

On the same date they filed a motion to dismiss, which reads:

'Come now defendants and move that the court dismiss this action and the temporary injunction issued herein, for the reason that the findings of fact and conclusions of law made and entered in this matter by the court in the matter of the temporary injunction show that the court is without jurisdiction to entertain this matter and without jurisdiction to issue the temporary injunction.'

When the court met on June 16, 1953, defendants presented their motion to dismiss. The same was considered by the court and denied. Plaintiff submitted the case to the court on the evidence presented on May 8. Defendants made their opening statement and produced evidence, and plaintiff offered evidence in rebuttal. Counsel for the respective parties argued to the court. Having considered the evidence and arguments, the court made findings of fact and conclusions of law fully set out in Appendix A attached hereto, and found generally in favor of the plaintiff and against the defendants in that the temporary injunction heretofore issued should be made permanent. The court also gave the parties 10 days to submit requests...