Texas State Federation of Labor v. Brown & Root

• Decision Date: 06 February 1952
• Docket Number: No. 9984,9984
• Citation: 246 S.W.2d 938
• Parties: TEXAS STATE FEDERATION OF LABOR et al. v. BROWN & ROOT, Inc.
• Court: Texas Court of Appeals

Page 938

246 S.W.2d 938

TEXAS STATE FEDERATION OF LABOR et al. v. BROWN & ROOT, Inc.

No. 9984.

Court of Civil Appeals of Texas, Austin.

Feb. 6, 1952.

Rehearing Denied Feb. 27, 1952.

Mullinax, Wells & Ball, Marion C. Ladwig by L. N. D. Wells, Jr., all of Dallas, Creekmore Fath, of Austin, Dixie & Ryan by Robert Eckhardt, Combs, Brown & Brock by W. A. Combs, all of Houston, for appellants.

Powell, Wirtz & Rauhut, John B. Connally Ben H. Powell, Jr., A. J. Wirtz, Looney, Clark & Moorhead, Donald S. Thomas, Everett L. Looney by R. Dean Moorhead, all of Austin, for appellee.

PER CURIAM.

This appeal is from an order granting a temporary injunction, issued at the instance of Brown & Root, Inc., a construction firm, against fifty-six local unions which function in Beaumont, Houston and Austin, respectively, against Building Trades Councils of the same cities, of which some of the local unions are constituents, against the Texas State Federation of Labor, which consists of local American Federation of Labor unions throughout the State Texas, and against two carpenters' councils and the Houston Labor and Trades Council.

Appellee, by its petition, sought monetary damages as well as injunctive relief upon allegations that appellants conspired, in violation of Texas statutes, for the purpose and with the object of destroying appellee and its business through the use of unfair lists, pickets and secondary boycotts because appellee would not discriminate against nonunion workmen in the employment of labor, and because it would not deny to its employees the right to bargain with respect to wages, hours and working conditions, in violation of the Texas 'Right To Work Act.' ¹

The temporary injunction enjoined appellants from:

(a) Picketing Appellee.

(b) Placing the name of Appellee upon an unfair list.

(c) Entering into or continuing any agreement or combination to force appellee to deny employment on account of nonmembership in a labor union.

(d) Boycotting appellee, provided, however, 'that this does not preclude defendants from agreeing to refuse to work directly for and as employees of' appellee.

(e) Boycotting persons or firms because they transact business with appellee.

(f) Agreeing or combining to boycott for the purpose of preventing third parties from transacting business with appellee by refusing or threatening to refuse to handle products of such third parties, or by refusing or threatening to refuse to work for third parties.

(g) Refusing or threatening to refuse to work for third parties because appellee 'is performing or may perform work in the same area or on the same construction project.'

Such restraint is subject to the following provision in the judgment: 'If a bona fide labor dispute should hereafter arise between plaintiff and defendants, or one or more of them, or, because of changed conditions otherwise, defendants might be legally entitled to engage in picketing or other activities herein enjoined, this court, upon application and proper showing to it, will modify this order or take such further action herein as may then appear necessary and proper to protect the rights of the parties.'

Appellants' first point is that the trial court had no jurisdiction of this suit for the reason the Congress has vested exclusive jurisdiction of controversies of this nature in the National Labor Relations Board and the United States Courts.

We have thought this question to be before our Supreme Court in the case of Dallas General Drivers, Warehousemen & Helpers v. Houston & North Texas Motor Freight Lines, 245 S.W.2d 481 because of the notation made by the Court in granting writ of error on June 6, 1951. However, the Court made no express ruling on this point.

In International Molders & F. W. U. v. Texas Foundries, Tex.Civ.App., Beaumont, 241 S.W.2d 213, writ ref. N. R. E., the same contention was made and overruled. ²

Upon this authority and because the Supreme Court has taken jurisdiction of labor disputes several times since enactment of federal labor laws creating the National Labor Relations Board, 29 U.S.C.A. § 151 et seq., we hold that the Court below had jurisdiction of this controversy.

Appellants' second point is that appellee should have pursued its administrative remedy through the N. L. R. B. to exhaustion before resorting to the courts.

This point is overruled because neither the N. L. R. B. nor the Federal Court at the instance of N. L. R. B. could determine appellee's claim for damages. Exhaustion of administrative remedies is required only when such agency can give adequate relief. 24 Tex.Jur., p. 130.

It is no answer to say that damages could have been sought in one forum and injunctive relief in another, for this 'would involve the bringing of separate and independent suits, productive of multiplicity and vexation.' Berwald's, Inc., v. Brown, Tex.Civ.App., Dallas, 69 S.W.2d 221, 223.

Then, too, there is no certainty that the N. L. R. B. would entertain a complaint by appellee. Its duty to do so is discretionary. National Labor Relations Board v. Denver Building and Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284, loc. cit. 1292, 1293.

Appellants' third point is that appellee does not come into court with clean hands since it is engaged in a campaign to depress wages and working conditions, to flout the Federal Labor Laws, and to destroy labor organizations.

There is little, if any, evidence that appellee does not maintain excellent working conditions. Affirmatively, the record shows that it has received a credit on its workmen's compensation insurance rate of 31.3%, indicating that its safety record is 31.3% better than the average.

There is some evidence that in all instances appellee does not pay union wages to employees of the same classification. Appellee explains that this is due to the kind of construction work performed by it, which is heavy construction, such as dams, bridges, highways, etc.; and that in this type of construction carpenters, electricians, plumbers and other craftsmen need not have or exercise as great skill as is required in the construction of buildings, and that less skill being required less wages are paid.

We find no evidence that appellee is engaged in a campaign to flout the labor laws or to destory labor organizations.

The evidence which we have summarized under this point is, in our opinion, insufficient to convict appellee of conduct so unconscionable or inequitable as to preclude its resort to a court of equity for relief from the wrongs alleged in its petition herein.

By the fourth point appellants assert that the court in enjoining picketing and other publication of appellee's unfair conduct deprived them of their constitutional right of free speech.

Peaceful picketing of and publicizing facts about an employer of labor are protected by the constitutional guaranty of free speech only so long as they are in furtherance of a lawful objective. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Best Motor Lines v. International Brotherhood of Teamsters, Tex.Sup., 237 S.W.2d 589; Construction and General Labor Union v. Stephenson, 148 Tex. 434, 225 S.W.2d 958. Nor is it necessary that the sole object of the picketing and distribution of unfair lists be unlawful in order to justify injunctive relief; it is sufficient that an objective of such be unlawful. National Labor Relations Board v. Denver Building and Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284; International Brotherhood of Electrical Workers v. National Labor Relations Board, 341 U.S. 694, 71 S.Ct. 954, 95 L.Ed. 1299.

Therefore, we need not consider evidence which might tend to show that appellants' activities were in furtherance of lawful objectives. We need only look for evidence which establishes, prima facie, that such activities were in furtherance of an unlawful objective, one or more.

It is unlawful in Texas:

1. For all persons, including labor unions and their members, acting singly or in concert with others, to establish, call, participate in, aid or abet a secondary strike, or secondary picketing, or a secondary boycott as provided and defined in Art. 5154f, V.A.C.S.

2. For any person to be denied employment on account of membership or nonmembership in a labor union. Art. 5207a, V.A.C.S.

3. For any contract to require or prescribe that employees or applicants for employment, in order to work for an employer, shall or shall not be or remain members of a labor union. Id.

If, therefore, appellants' activities were for the (an) immediate purpose of causing a violation of either of these statutes, such activities were unlawful and could be enjoined wihtout encroaching upon the consitutional rights of appellants. Stephenson case, supra.

Appellants admit that they are guilty of violating Art. 5154f. We quote from their brief: 'We admit that coercive secondary boycott, as recited in those instances reported in Subsection (7) of this brief at p.p. 36-37, supra, is unlawful.'

From pages 36-37 of appellants' brief we quote:

'Appellee commenced construction of the Rice Stadium in December, 1949, or January, 1950. The construction site was picketed from early January, 1950, until its completion in October, 1950. * * *

'In the course of the construction, a great many suppliers of materials crossed the stadium picket line: Bell Bottom Foundation Drilling Company; W. D. Haden Concrete Co.; Peden Iron & Steel Co.; Safeway Scaffold Co., among others.

'There is evidence that when the above-named suppliers of the stadium job sought to serve other job sites where union men were working, union men refused to handle or install the products of these named companies because they had crossed the stadium picket line. We will not burden the court with a specification of each of these instances. * * * We recognize that there is sufficient evidence which, if believed, supports a presumed finding that for a...