Texas State Optical v. Optical Workers Union 24859

• Decision Date: 02 April 1953
• Docket Number: No. 4892,4892
• Parties: TEXAS STATE OPTICAL v. OPTICAL WORKERS UNION 24859 et al.
• Court: Texas Court of Appeals

Page 493

257 S.W.2d 493

TEXAS STATE OPTICAL v. OPTICAL WORKERS UNION 24859 et al.

No. 4892.

Court of Civil Appeals of Texas, Beaumont.

April 2, 1953.

Rehearing Denied April 22, 1953.

Cecil, Keith & Mehaffy, Beaumont, for appellants.

Mullinax & Wells, Dallas, for appellees.

WALKER, Justice.

This appeal is by the plaintiffs, from an order of the trial court denying them a temporary injunction against the defendants' picketing of their office and place of business in Beaumont, Texas.

Plaintiffs are Drs. S. J. Rogers and N. J. Rogers. They are optometrists who practice their profession in partnership with each other under the name of Texas State Optical. Only plaintiffs are members of this partnership. As an incident of their practice of optometry, plaintiffs sell eyeglasses to their patients.

The plaintiffs are brothers. They have two brothers whose names are Ben Rogers and Vick Rogers, and the said Ben Rogers and Vick Rogers are employees of the plaintiffs' partnership Texas State Optical.

The defendants will be referred to as the Union.

The Texas State Optical maintains 21 offices in 15 Texas cities, and one of these is located at 649 Orleans Street in Beaumont, Texas.

Two blocks away, at 861 Orleans Street, is the place of business of a concern named Rogers Bros., Wholesalers. This concern is also a partnership, and the four brothers, that is, the plaintiffs and Ben Rogers and Vick Rogers, are the members of this partnership. Rogers Bros. manufactures eyeglasses and the lenses for such glasses and sells them at wholesale only, and among their customers is the Texas State Optical. Texas State Optical had once owned and conducted the business now conducted by Rogers Bros., but had been divested of this business and Rogers Bros. had been created and vested with the business more than two years before the present suit was filed.

At all times material to the issues made on this appeal Rogers Bros. was engaged in a labor dispute with Union.

As an incident of this labor dispute with Rogers Bros., Union had established pickets, and apparently had since maintained them, at Rogers Bros.' place of business at 861 Orleans Street. This was done on September 10, 1952, and Union's right to establish these pickets is not questioned on this appeal.

Ten days later, on September 20th, after a letter to the plaintiffs which the plaintiffs did not answer and which is referred to hereinafter, the Union established pickets at the office of the Texas State Optical at 649 Orleans Street. None of the other offices of Texas State Optical has been picketed nor has any other customer of Rogers Bros.

Plaintiffs brought this suit to enjoin this picketing. The essence of their bill of complaint is that Union's picketing of them is a secondary boycott.

The union, however, answered that the picketing was an incident of another labor dispute which had arisen between Texas State Optical and Union. The subject matter of this dispute, as Union alleged it, was plaintiffs' discharge of certain employees, whose reinstatement by plaintiffs had been demanded by Union, and plaintiffs' refusal to recognize Union as a bargaining agent and to bargain with Union concerning wages and working conditions of employees in plaintiffs' Beaumont office.

The trial court has filed findings of fact, and according to Finding 19, the dispute alleged by Union was a sham and Union's object in picketing plaintiffs' Beaumont office was to coerce the plaintiffs into action affecting the conduct of Rogers Bros. in the latter's labor dispute with Union.

However, the trial court denied a temporary injunction because of certain testimony given by Dr. N. J. Rogers during the hearing. The trial court held that this testimony initiated a labor dispute between plaintiffs and Union.

Opinion

1. The determination of this appeal is to be governed by the rule of decision stated in Southland Life Insurance Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722.

2. Plaintiffs argue that whether the picketing was rightful should be determined by the object for which the picketing was begun and that if this object was wrongful, the picketing could not be validated by subsequent events. This argument seems to involve two contentions: first, that the right to temporary relief should be determined as of the date when the petition was filed and second, that if Dr. Rogers' testimony did initiate a labor dispute, the Union nevertheless adhered to their original object and their picketing was for this, or else was for two purposes, one rightful and the other not.

3. The right to temporary relief ordinarily is determined as of the time the trial court hears the prayer for that relief. See: Evans v. Santana Live Stock & Land Company, 81 Tex. 622 at page 625, 17 S.W. 232; Allen v. Abernethy, Tex.Civ.App., 151 S.W. 348; Ross v. Veltmann, Tex.Civ.App., 161 S.W. 1073; Easter Oil Corp. v. Wilbarger County, Tex.Civ.App., 30 S.W.2d 438; Polk v. Holland Texas Hypotheek Bank, Tex.Civ.App., 66 S.W.2d 1112, at page 1116 (Hn. 6); Doughty v. De Fee, Tex.Civ.App., 152 S.W.2d 404, at page 409 (Hn. 14); Davis v. Upshur County, Tex.Civ.App., 191 S.W.2d 524; 28 Am.Jur. 201 (Sec. 8); 43 C.J.S., Injunctions, §§ 29, 198, 217, pp. 460, 912, 955. And if the picketing were solely for a lawful object when the trial court acted, we think this rule of decision should have been applied. The first branch of plaintiffs' argument is accordingly overruled.

4. However, the picketing of plaintiffs' Beaumont office, if originally wrongful, was not validated by the events after plaintiffs filed their suit.

In their answer, after alleging the dispute with Texas State Optical, Union alleged further that 'they will cease their picketing immediately upon plaintiffs' agreement to reinstate the employees named-and to recognize defendant Union and bargain collective with said Union with respect to the wages, hours and working conditions of its employees at its Beaumont office.'

On the hearing in the trial court, Dr. N. J. Rogers testified as follows under examination by Union's counsel: 'Q. Are you willing to recognize this defendant Union and bargain with it for the employees of Texas State Optical at its Beaumont office? A. I don't believe I quite got it. I don't quite understand the meaning of the question. Am I willing to recognize the Union? Will you read the question? (The question is read--) A. No.' The finding that a labor dispute between Union and plaintiffs had been initiated is based on this testimony.

We leave open the question, raised by this procedure, whether the requirements stated in North East Texas Motor Lines v. Dickson, 148 Tex. 35, 219 S.W.2d 795, 11 A.L.R.2d 1065, were met.

Picketing in labor controversies must be referable to and supported by a lawful dispute. See, for example, Construction & General Labor Union, Local No. 688, v. Stephenson, 148 Tex. 434, 225 S.W.2d 958. If it be assumed that Dr. Rogers' testimony did initiate a labor dispute, and if it be assumed further that the original object of the picketing was wrongful, there is nothing before us to show that this original object either had been or would be renounced or that the resolution of this new labor dispute would become an object of the picketing. Under the circumstances, this new dispute was no more than a ground for future action which Union might or might not take.

We hold, therefore, that the order of the trial court is not supported by the ground on which that court acted, and we are brought to consideration of the second branch of plaintiffs' argument.

5. Union assigns error under Counter Point 4 to the sufficiency of the evidence to support finding 19 that Union did not begin the picketing of plaintiffs' Beaumont office in good faith and that this picketing was 'a part of a concerted plan to coerce customers of Rogers Bros.'

As we construe the evidence, it shows that Union did have a labor dispute with the plaintiffs before the picketing began. The organizing of employees of plaintiffs and Rogers Bros. seems to have begun about April 1, 1952. By letter dated June 2, 1952, Union asserted authority to represent a majority of the employees in plaintiffs' Beaumont office and requested recognition as bargaining agent for these employees. Plaintiffs did not reply to this letter. In June after this letter was sent, four of plaintiffs' employees working in their Beaumont office were discharged, and by letter dated September 15, 1952 (five days after the picketing of Rogers Bros. began) Union reminded plaintiffs of the letter of June 2nd, demanded reinstatement of the discharged employees, and requested a meeting at which this reinstatement could be arranged. Plaintiffs did not reply to this letter. It was not until five days later that plaintiffs' Beaumont office was picketed. In the meantime, the discharge of the employees and other matters pertaining both to Rogers Bros. and to Texas State Optical were discussed at meetings of the Union members, and action against these concerns was requested of the Union's leaders, but the latter advised delay. The trial court has found that plaintiffs discharged the particular employees for cause, but at Union meetings these employees themselves seem to have been of another mind.

The only evidence that Union's object in picketing plaintiffs' Beaumont office was to coerce action by plaintiffs against Rogers Bros. consists first, of the circumstance that Union's dispute with Rogers Bros. was in progress throughout the period in which occurred the various events involving Texas State Optical, their employees, and Union, and, second, testimony that an agent of the Union made statements of intention to picket Texas State Optical if Rogers Bros. was picketed. The first circumstance is at least ambiguous. Since the two concerns were family partnerships and the same persons were involved in each a layman, or even a lawyer, might well have treated the disputes with each as interdependent; and there is...