286 P.2d 160
No. 39,301Supreme Court of Kansas
Opinion filed July 14, 1955.
SYLLABUS BY THE COURT
WORK AND LABOR — Interstate Commerce — Failure to File Petition with NLRB — Jurisdiction of State 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.
Appeal from Phillips district court; ROBERT W. HEMPHILL, judge. Opinion filed July 14, 1955. Reversed with directions.
Robert L. Kimbrough, of Topeka, argued the cause, and George E. McCullough, of Topeka, and William H. Stowell, of Phillipsburg, were with him on the briefs for the appellants.
E.H. Hatcher, of Topeka, argued the cause, and D.A. Hindman, of Stockton, was with him on the briefs for the appellee.
The opinion of the court was delivered by
HARVEY, C.J.:
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 in 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.
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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 accomplishing 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
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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 caused 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.
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“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 for additional findings of fact and conclusions of law. Judgment was rendered accordingly.
On June 18, 1953, defendants filed three motions: One for a new trial upon formal statutory grounds; another for the court to modify its decree of injunction, and another to dissolve, which reads:
“1. Plaintiff construction company is sufficiently engaged in interstate commerce so as to come within the purview of the National Labor Relations Act of 1947, as found by the court in the Conclusion of Law No. 3 and Finding of Fact No. 6. Therefore, this court is without jurisdiction to hear the matter as the Federal Government has declared exclusive jurisdiction to itself in matters involving unfair labor practices under said National Labor Relations Act.”
On July 3, 1953, these motions were presented to the court. Each of them was considered by the court and denied except the court made supplemental findings of fact as follows:
“1. It has not been shown that the Union was unable to provide sufficient men to authorize a union shop had the plaintiff been willing to enter an agreement with the Union on that basis.
“2. Plaintiff’s representative, Mr. Holland, did not inform the Union representatives that plaintiff had in its employ men in the classification represented by the Union.
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“3. During the period of negotiations, to and including March 15, 1953, the plaintiff had not commenced actual dirt work on the project.
“4. On the 11th of March, 1953, plaintiff had in its employ one man of the engineer category represented by the Union. On the 15th day of March, 1953, the plaintiff had in its employ 5 men in the engineer classification eligible to be members of the Union. On March 14, 1953, plaintiff hired 15 additional men who were to go to work on Monday, March 16, 1953. None of employees mentioned in this paragraph were actually members of or represented by defendant Union.
“5. The Union sent some of its members to the plaintiff’s employment office at Kirwin. None of the men sent were hired by plaintiff. Plaintiff claims it did not have any place where it could use such men at the time and did not know whether they were Union men or not. The contrary has not been shown.”
On July 23, 1953, defendants filed their notice of appeal from the following judgments, orders and decisions:
“1. Over-ruling the defendants demurrer to plaintiff’s evidence. 2. Over-ruling defendants Motion to Dissolve for want of jurisdiction. 3. Over-ruling the defendants Motion to Modify. 4. Over-ruling a second motion of the defendant to dissolve for want of jurisdiction. 5. Over-ruling defendants Motion for New Trial. 6. The refusal of the court to make findings of fact requested by the defendant. 7. Refusal of the court to make conclusions of law as requested by defendant. 8. The decree of temporary injunction allowed the 19th day of May, 1953. 9. The permanent decree of injunction allowed the 16th day of June, 1953. 10. All findings, intermediate rulings, decisions, orders, judgments, and decrees adverse to this defendant made prior to or during the trial of said cause or subsequent thereto.”
The only specification of error reads:
“Overruling of defendant’s Motions to Dismiss and Dissolve for want of jurisdiction of the court below to hear the matter.”
Counsel for appellants (defendants below) in their briefs state: “. . . For the purpose of this appeal only, the defendants do not contest having engaged in activities described as unlawful by said Findings of Fact.” A similar statement was made elsewhere in the briefs. “The matter, therefore, comes to the Supreme Court of the State of Kansas only upon the overruling of the Motion to Dissolve and the Motion to Dismiss for want of jurisdiction of the trial court.” This means that appellants have abandoned all points contained in their notice of appeal except Nos. 2 and 4. There is, therefore, no appeal from the final judgment of the court, nor from the order overruling the motion for a new trial. The question here argued could have been presented had the appeal from the final judgment and the order overruling the motion for a new trial been presented here. No such an appeal is presented.
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When counsel for appellants speak in their motions of the want of jurisdiction of the trial court we understand them to mean jurisdiction of the subject matter. Defendants filed an answer in this case and participated in the trial so there cannot be any lack of jurisdiction of the person of defendants, and there is no such claim. Counsel for appellants present as the “question involved” here,
“Did the trial court err in holding that the Labor Management Relations Act did not preclude the exercise of jurisdiction by a state court to issue preliminary injunctive relief at the request of private individuals for alleged violations of that act or state acts which perform essentially the same service?”
We think a less involved statement might be worded thus: Did the trial court lack jurisdiction to enjoin the continuance of acts which violate our state law because an act of Congress described similar acts as being unlawful?
This question has been decided in favor of appellants’ contention by recent state cases which have reached the U.S. supreme court. In Garner v. Teamsters’ C. H. Loc. Union 776, 373 Pa. 19, 94 A.2d 893, the paragraphs of the syllabus of the state court read:
“1. In enacting the Labor Management Relations Act of 1947, 61 Stat. 136, Congress intended to exclude state action enjoining picketing which constitutes an unfair labor practice on the part of a labor organization under the provisions of the Labor Management Relations Act, where such picketing is unlawful also under the state law.
“2. The passage of the Labor Management Relations Act constituted an absolute and complete preemption of the field by Congress in such a case and a state court has no jurisdiction to issue an injunction on behalf of employers engaged in interstate commerce.
“3. Where there is actual conflict between the provisions of a state statute and the National Labor Relations Act in regard to regulation of labor union activities in an industry affecting interstate commerce, the state act must give way to the federal act.”
On certiorari to the U.S. supreme court the opinion is reported in 346 U.S. 485, 74 S.Ct. 161, and 98 L.Ed. 228, where the paragraphs of the headnote of the U.S. supreme court read:
“Petitioners were engaged in Pennsylvania in an interstate trucking business. Only a small minority of its employees were members of respondent union. No labor dispute or strike was in progress, and petitioners had not objected to their employees joining the union. Respondents kept two pickets at petitioners’ loading platform, to coerce petitioners into compelling or influencing their employees to join the union. The picketing was peaceful, but petitioners’ business fell off 95% because employees of other carriers refused to cross the picket line. Held: Petitioners’ grievance was within the jurisdiction of the National Labor Relations Board to prevent unfair labor practices under the Labor
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Management Relations Act, and was not subject to relief by injunction in the state courts.
“(a) The National Labor Relations Board was vested with power to entertain petitioners’ grievance, to issue its own complaint against respondents, and, pending final hearing, to seek from a federal district court an injunction to prevent irreparable injury to petitioners.
“(b) The same considerations which prohibit federal courts from intervening in such cases, except by way of review or on application of the National Labor Relations Board, and which exclude state administrative bodies from assuming control of such matters, preclude state courts from doing so.
“(c) When federal power constitutionally is exerted for the protection of public or private interests, or both, it becomes the supreme law of the land and cannot be curtailed, circumvented or extended by a state procedure merely because such procedure will apply some doctrine of private right.
“(d) Congress, in enacting such legislation as the Labor Management Relations Act, can save alternative or supplemental state remedies by express terms, or by some clear implication, if it sees fit.”
Later in Building Trades Council et al. v. Kinard Construction Co., 74 S.Ct. 373, 346 U.S. 933, 98 L.Ed. 423, the U.S. supreme court reversed the decision of the supreme court of Alabama, 258 Ala. 500, 64 So.2d 400, without opinion, upon the authority o Garner v. Teamsters Union, supra, and said:
“Since there has been no clear showing that respondent has applied to the National Labor Relations Board for appropriate relief, or that it would be futile to do so, the Court does not pass upon the question suggested by the opinion below of whether the State court could grant its own relief should the Board decline to exercise its jurisdiction.”
We refer to the decision of the Alabama court for the facts of the case.
Still later (March 28, 1955) in Weber v. Anheuser-Busch, Inc., 75 S.Ct. 480, 348 U.S. 468, the U.S. supreme court reversed the decision of the supreme court of Missouri, 265 S.W.2d 325, which had affirmed a judgment of the circuit court of the city of St. Louis in a labor controversy which should have been presented to the National Labor Relations Board, citing the case of Garner v. Teamsters Union, and others. We refer to the decision of the supreme court of Missouri and the decision of the U.S. supreme court for a fuller statement of facts.
The Garner case and sometimes the Kinard case and the Anheuser-Busch case, or one of them, is cited and followed or distinguished because of the facts, in the following federal and state cases: National Labor Relations Board v. Thayer Co., 213 F.2d 748, 754; International Union, Etc. v. Hinz, 218 F.2d 664, 665; International
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Union v. Underwood Corporation, 219 F.2d 100, 101; Lanni v. Wyer, 219 F.2d 701; Irving Subway Grating Co. v. Silverman, 117 F. Supp. 671, 679, 680; United Mineral Chemical Corp. v. Katz, 118 F. Supp. 433, 434; Isbrandtsen Co. v. Schelero, 118 F. Supp. 579, 582; Your Food Stores of Santa Fe v. Retail Clerks, Etc., 121 F. Supp. 339, 342; Time, Inc. v. T.I.M.E. Inc., 123 F. Supp. 446, 451; Your Food Stores v. Retail Clerks’ Local No. 1564, 124 F. Supp. 697, 701; Lock Joint Pipe Company v. Anderson, 127 F. Supp. 692, 694; Johnston v. Colonial Provision Company, 128 F. Supp. 954, 955; Dyer v. International Brotherhood, Etc., 269 P.2d 199, 202, California; Garmon v. San Diego Building Trades Council, 273 P.2d 686, 689, California Mahoney v. Sailors’ Union of The Pacific, 275 P.2d 440, 444, Washington; Building Trades Council of Reno v. Bonito, 280 P.2d 295, 296, Nevada; Gulf Shipside Storage Corp. v. Moore, 71 So.2d 236, 240, Louisiana; Douglas Public Service Corp. v. Gaspard, 74 So.2d 182, 185, Louisiana; International Ass’n of Mach. v. Goff-McNair Motor Co., 264 S.W.2d 48, 50, Arkansas Sheet Metal Wkrs. Int. Ass’n v. E.W. Daniels P. H. Co., 264 S.W.2d 597, 601, 605, Arkansas; Wichita Falls Southern R. Co. v. Lodge No. 1476, 266 S.W.2d 265, 268, Texas; Coutlakis v. State, 268 S.W.2d 192, 197, 198, Texas; Leiter Mfg. Co. v. International Ladies’ Garment W.U., 269 S.W.2d 409, 410, Texas McAmis v. Panhandle Eastern Pipe Line Company, 273 S.W.2d 789, 792, Missouri; Grimes Hauer, Inc. v. Pollock, 119 N.E.2d 889, Ohio; New York, New Haven Hartford R. Co. v. Jenkins, 122 N.E.2d 759, Massachusetts; Benjamin v. Foidl, 109 A.2d 300, Pennsylvania; Wortex Mills v. Textile Workers Union of America, 109 A.2d 815, 817, Pennsylvania; Wilkes Sportswear v. International Ladies’ G.W.U., 110 A.2d 418, 421, Pennsylvania Hammer v. Local No. 211, Etc., 111 A.2d 308, 317, New Jersey Morgan Millwork Co. v. Highway Truck Drivers, Etc., 112 A.2d 855, 856, Delaware; Sterling v. Local 436, Etc., 113 A.2d 389, 395, Maryland; Cortlandt Co. Dept. Store v. Cohen, 127 N.Y.S.2d 261, 263; S.S. Pennock Co. v. Ferretti, 128 N.Y.S.2d 749, 755 Willoughby Camera Stores v. District No. 15, Etc., 129 N.Y.S.2d 734, 736; General Teleradio v. Manuti, 129 N.Y.S.2d 757, 759 New York State Labor Rel. Bd. v. Wags Transp. Sys., 130 N.Y.S.2d 731, 750; Davis v. Freedman, 133 N.Y.S.2d 793, 795 In re United Steelworkers of America, CIO, 134 N.Y.S.2d 634, 639; Bert Manufacturing Company v. Local 810, Etc., 136 N.Y.S.2d 805, 807; A.E. Nettleton Co. v. United Shoeworkers, Etc.,
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138 N.Y.S.2d 256, 258; and, People v. Framer, 139 N.Y.S.2d 331, 340. This list may not be complete; the next mail may bring more. A few earlier cases are cited in 32 A.L.R.2d 1026, 1032. Practically every law journal which comes to our law library has an article on the Garner case.
We are not impressed with the incongruous contention of counsel for appellants to the effect that a finding of the court disclosed the court had no jurisdiction for if the court had no jurisdiction of the subject matter any finding it made was of no force. However, the record clearly discloses that there was no controversy about this being a case which could properly be handled by the National Labor Relations Board. The leading counsel for plaintiff in the trial court (who does not appear in this court) after stating the fact the matters complained of were in violation of the laws of this state further pointed out they also violated the Act of Congress, and explained his view of how defendants could have had the case transferred to that Board but did not do so. Plaintiff’s contract was substantial. It called for the building of a dam 2.4 miles long across the river, which would be 117 feet in height above the bed of the stream and when completed the dam would hold a lake of about 5,000 acres with an average depth of water of 66 feet. The purpose of the dam was twofold; first, to hold the water at times of flood to prevent destruction of the cities and lowlands below the dam; and second, to impound water for irrigation which would be picked up about 3 miles below the dam and extend about 18 miles, and furnish irrigation for several thousand acres in time of drought; irrigation and flood control for thousands of acres of land in northwestern Kansas. While it was not gone into extensively there was testimony that the machinery and much of the equipment for the construction of the dam would have to be brought from a distance. Two of the three trucks stopped by the picket line were from out of the state. Plaintiff was doing interstate work for the government in many states. That was its business.
We think it clear under the ruling of the supreme court in the Garner case and subsequent cases of the federal and state courts that we are compelled to hold that the trial court in this case had no jurisdiction of the subject matter of the action.
The judgment of the trial court is reversed with directions to set aside the injunction and to dismiss the action.
ROBB, J., not participating.
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