*1 v. DAIRY al. PET MURTHA, Trustee, FRANCIS J. et (2d) 185. W. S. PRODUCTS COMPANY. 11, 1959. December Eastern Section. February 27,
Rehearing 1958. denied by Supreme Court denied June Certiorari *3 Milligan, Ferdenand Greeneville, Powell, Jr., S. J. City, appellants. for Johnson Kingsport, appellees. McLellan, John S. complainants The HOWARD, herein, J. Francis J. Secretary- Trustee, Kenneth as Murtha, Sackmann, as C. Manager, Thompson, Business and W. and H. Treasurer Representative, individually Business and President membership reрresentatives of Local Union and as Dairy No. sued the Pet Products Com- 23, defendant, pany, Corporation organized laws of the under principal in of with its office Johnson Delaware, State City, provisions Tennessee, enforce the of collec- bargaining into between tive contract which was entered Corporation, said Local Local and the defendant the said bargaining repre- having been certified as the collective sentative the National Labor Relations Board. engaged in manufacture,
The defendant been has production dairy products for several distribution years, purpose plants has in the maintained Kentucky, Virginia, Virginia, North Caro- States West Georgia lina, Carolina, South and Tennessee. Interna-
The officeof Local No. an affiliate of the Chauffeurs, tional of Teamsters, Brotherhood Ware- Helpers America, located Johnson housemen City, membership solely consists and its Tennessee, at 1015. defendant, estimated years previous August ap- it
For several pears relations between labor Company had harmonious, that the the Local been join encouraged Union, and from bargaining con- to time had into collective time entered provided, among сontracts with the Local. These tracts employee filing upon signing things, an other *4 proper Company “check-off authorization and with assignment,” em- would deduct from said pay ployee’s month his Union dues, etc., first check each specified date to or before a remit same on and would the Local. September parties
On 3, 1954, the entered into a writ- period year ten contract for the onе June May July 31, 1955, after which.,about 15th, orally agreed provisions to continue in “all effect the old nego- contract” until a new contract could be pro- tiated, Article 3, Section of said written contract viding :
‘‘ Employer agrees The pay to deduct from the employees by agreement all this covered initia- dues, tion fees uniform assessments of the Union and/or jurisdiction having agree over such to remit to said Union all such deductions. Where require by employees, laws written authorization is to same be furnished the Union in the form required. pro- No deduction shall made which is by applicable hibited law. Dues to be deducted shall ($4.00) be four dollars and shall remain at majority amount until the shall otherwise.” vote agreed approximately Company’s It was all prior May were members the Local employee prior signed 1955, еach had, thereto, following and filed with the form of check- off authorization furnished the Local: “International Brotherhood of Teamsters, Helpers
Chauffeurs, Warehousemen and Local No. 23 Assignment Check-Off Authorization and undersigned “I, member of Local of23 the In- ternational Brotherhood Teamsters, Chauffeurs, Helpers of America, Warehousemen herewith my employer my wages authorize deduct from
465 month, еvery my consisting of and union dues each monthly fees, initiation fees uniform assess- and owing to mem- ments such Local Union as a result of bership so therein, and direct that such amounts Secretary-Treasurer be sent to of such deducted my Union for on behalf. and JLocal assignment ir- “This shall authorization and applicable of revocable the term contract between Company, year, for one and the or the Union automatically it- is shall renew lesser, ever and yearly pe- applicable contract for successive self lesser, unless I whichever thereafter, riods give notice to the and the Union written days days not than least 60 more 75 before at any periodic of renewal date this authorization my assignment same. of desire revoke the
(cid:127)' ‘Signed-:- “Witness:
“- Date-” May agreed following 31, 1955, further It was comply with Section cоntinued July part latter when until the 1954-55contract receiving from em- notices certain written it started revoking ployees authorizations, their check-off Subsequently resignations these from the Union. their during August, Sep- months of increased revocations until totaled November tember, October largest being number approximately Greenville, The Com- at South Carolina. located Plant protest, honored revocatiоns pany, the Union’s over employees, thereafter discontinued deduct- these ing etc. dues, Union their
On October 27, 1955, a new contract was executed parties period Sep- 1, 1955, from October tember 30, 1957, and Article T, Section con- provided: tract it was *6 Company agrees
“The to deduct from the first pay employee check each of each is month who member of the Union, dues, initiation fees, and/or agrees uniform assessments of the Union and to remit the to all such Union of deductions be- on day provided fore the 20th of each month, the em- ployees proper have filed written authorization for such a check-off. No deduction shall made be which prohibited by applicable law. Dues to be deducted ($4.00) shall be four dollars and shall remain at this majority amount until the Union members duty meeting.” shall vote otherwise at a cаlled After the contract was executed on October 27, 1955, appears Company complied it that the with the above employees except to all the 252 Section who had re- employees, their voked authorizations. to these As Company further refused to deduct Union etc., dues, wages, provisions their and to enforce of the above January the bill filed on Section, 16, herein was allegеs prior July The bill in substance that 1, 1955, pursuant Company, signed to check-off authorizations by employees and Article Section 4 of 1954-55 col- ’ agreement, employees bargaining lective deducted Union pro- dues, and remitted etc., same the Local as therein beginning part July, vided; that latter filing continuing to the of the date the bill herein, certain who were members of the Local at- tempted to withdraw and revoke their check-off authori- contrary thereof, that the de- to the terms zations by honoring Article violated revocations, fendant, these bargaining agreements; 4 of Section the collective attempted terminated that said were not revocations conformity in that the authorization with the terms of given not purported “to notice cancellations were of the days at and not the Union leаst periodic days any renewal date” more than 75 before assignment. such authorization and prayed (1) purported bill that the
For relief adjudicated by the as null be revocations (2) amount $3,440, for for the total void, a decree unpaid refused Union dues temporary (3) contract; in withhold under performance junction specific contract, upon hearing, injunction, temporary (4) *7 permanent. made
By it 16,1956, was averred allowеd on June amendment agents, representatives through defendant, “that procure the the breach of Check-off servants, did in fact ‘ subject Assignments,’ are the Authorizations subjecting Complaint, thus it to treble Bill of this provided damages,” and the 47-1706, T. C. A. sec. $8,544, $3,440 increased from to amount sued for was plus damages, alleged due, then the amount treble $25,632. total of expressly
Answering, it had the defendant denied Local, the averred either its contracts with breached by employees valid, and were 252 revocations that the specifically plead other defenses. in thereto addition testimony, hearing, Upon which was on oral respects, in from a the bill all sustained Chancellor 468 awarding damages,
decree $20,140 the Local actual damages, $40,280 as treble or a total of and all $60,420 perfected appeal costs, the defеndant broad procedure, consisting Court where, record, under our pages, than more is reviewable de novo. T. C. A. sec. 27-303.
On behalf of the defendant it is contended that complainants, three named Murtha, Sackmann and Thompson, being “proper neither members nor officers” authority of the Local, had no to maintain suit herein individually or as a action, class the Chancellor holding contrary. erred in to thе proof Thompson The showed that both Sackmann and good standing were members in Local, and that co-complainant and the other who Murtha, Trustee, was an official of the Brotherhood, International were recognized by acknowledged as the Local’s bargaining representatives years than before more They negotiated suit herein was filed. the two contracts question, signed by both of which were Sackmann and Thompson as officers the Local. Under these circum- having’ acknowledged stances, the defendant com- plainants’ authority negotiate and execute con- estopped deny- tracts, the defendant would now authority ing their to enforce them.
Nor were who revoked their check- necessary parties off authorizations as in- suit, *8 simply damages sisted. The bill seeks to recover from Company for contracts, breach and seeks no against employees. whatsoever said relief See Gibson’s Chancery, pp. in Suits 4th Ed., Sec. 116. More- making employees parties by over, to the suit, either complicate only an al- or would further cross-bill, bill complicated ready suit. law no author- bad it is contended that tbe
Next ity the 252 to further deduct Union dues resigned their revoked therefrom and aftеr 4 of two authorizations; Section Article authorization, of the as terms contracts, well expressly conditional dues made deduction of Union upon “membership member- that Union therein,” and upon being purely voluntary, ship at will, was terminable payment charges. of all accrued history apparent of their contractual is from
It for Local had and the both relations (U.S.C.A. 302(c) years complying been with Seс. several Management 186) Relations 29, sec. of the Labor Title specifically pro- employer By an Act. Section things delivering paying money other from or hibited excepts expressly organization, but labor value voluntary are collective where there check-offs therefrom agreements following bargaining on the conditions: employer has received That the “Provided, employee, аre deductions on whose account such each assignment not irre- be a written shall made, beyond year, period than or for a one more vocable applicable collective date of the termination agreement, sooner.” whichever occurs assignments the Act authorizes observed, As will periods year, one or irrevocable check-offs applicable collective until the termination date bargaining agreement, and a sooner, occurs whichever provision renewal automatic the authorization
470 periods approved
for generally. successive like lias been prohibition against No exists at check-offs revocable will, and Act is silent as to contracts of indefinite duration.
“A checkoff of union dues has been held to be an appropriate by matter to be covеred a collective bar- gaining agreement, provision a a checkoff has been to held be valid and enforceable. Where employee’s agreement authorizing employer an his to wages deduct union dues from is his as to indefinite is time, it at will, revocable a deduction made ” after revocation 56 C. .T. unauthorized. S. Mas- p. ter and Servant sec. 103, b, In the instant case, the check-off authorizatiоn form special furnished the Local makes reference applicable term of the contract between the Local and Company, as follows: * * * “This authorization shall be irrevocable for ** * applicable contract, term the or one year, automatically is the lesser, whichever and shall yearly applicable itself renew for successive con- periods thereafter, tract Avhicheveris the lesser, un- give til written I notice to the days days at 60 Union least and not more than 75 * * * any periodic my renewal date desire before (Emphasis supplied.) to revoke same.” 252 Of the who revoked their authori during period 5 zations, occurred months be May expiration 31, 1955, tween date 1954-55 October contract, date the new contract During period parties oper was executed. were ating terms the 1954-55 contract, under agreement until contract could extended new negotiated, These time. date undeterminable at tbe previous tbe new date revocations were tbe any provisions appli attempt contract, and to make during said cable them be ineffective. Nor would period give tbe notice *10 these advanced could required by authoriza the terms tbe of revocаtion they either the unable to determine tion, because were agreement, or the date” of the verbal '‘termination “periodic law contract, the new the renewal date” of Labor-Management require impossible. the The does not authorizing a also fixes check-offs, Relations Act date purposes of the the Act would Otherwise, termination. case, instant neither of the above In the nullified. bе being we ascertainable, dates for revocation are of fixed during period, opinion were, authorizations that said the subsequently and that will, revocable at authority dues, etc., to further deduct Union no wages employees. Master 234 56 C. J. S. p. 535; Fisher v. Stevens b, Co., 103 Coal sec.
Servant
(2d)
employees
Super.
Had
A.
these
115,17
143 Pa.
two-year
signed
new
after the
contract
until
waited
remaining
employees,
18
as did
their
27th,
on October
attempt
authorizations
to revoke their
the irrevocable
year”
period
would
been ineffective.
have
“one
presumably
“Employees
know,
entitled to
are
by Congress
parties
it was intended
with
agreement
know,
should
a reasonable
agreement
certainty,
degree
when
was to
wage assignment
right to
a
revoke
The
terminate.
depend upon a known
must
or reason-
authorization
employee
ably
date. An
termination
ascertainable
right
freely
to revoke unless the
exercise
cannot
‘termination date’ is set at a
time or is a defi-
definite
* * *
employees.
nite date known to the
if
Tims
agreement
meaning
is to
have
and he effective to
employee,
interpreted
way
it must be
such
as to
present
reasonably
to the
fixed date
Metropolitan
In
termination.”
re
Life Insuranсe
Company and Insurance Workers of America, June
27, 1957,
Accordingly, judgment it our revoca- tions were valid, the decree of the learned Chancel- respects, as it lor insofar relates them inwill, all reversed. legal remaining
We consider now status of notices of whose were revocation received and honored after October 27, 1955, the date of the new contract. *11 date,
Prior and on said these mem- were They previously signed bers of the Union. had and filed Company providing with the authorizations for auto- matic renewals. These authorizations were irrevocable applicable year, for the term of the contract, or one by specific occurred sooner, whichever and were reference integral part agreement. By an made the 1, Article Company agreed 4 of the Section contract, to deduct paycheck employee first from the month of each each a member Union, dues, etc., who is and remit same “provided proper Union, to the have filed of such written authorization a check-off.” Thus, Company 4 Section been met, conditions of duty comply provi- a was under contractual with its period of sions for the effective the authorizations.
473 A review of аuthorities shows that check-off elsewhere bargaining authorizations for Union dues in collective periods approved gener contracts future have been ally. Mfg. N. L. R. B. v. Woolen 6Co., Cir., Clnton (2d) 141 753; F. Southern Pac. Co. v. Switchmen’s Union Supp. of N. America, C.,D. F. 919; Pacific Mills v. (2d) Textile Workers’ Union, 197 C. S. 330, S. 15 E.
135 L. 497; A. R. Sanford v. Boston Edison Co., Mass. (2d) Employees, N. 55, 64 631; E. Hotel & Restaurant International Alliance v. Greenwood, 249 Ala. 30 So. (2d) App. 696; Greenwald v. Chiarella, 271 Div. 213, 63 (2d) Y. (2d) 49; N. S. 14 A. R. Annotations, L. 177; 35 A. L. R. 507. any do
Nor find we merit in the contention that authorizations invalid, were because were for un- wages writing by earned and not assented to the Com- pany, required T. C. A. see. 50-315. applicable
It seems to us when collective bargaining agreement signed with the Local on Oc implication accepted 27, 1955, tober signed by employees which had been authorizations who members of the Local were at that time. This was, at compliance requirements least, substantial with party Also, will not be Statute. heard take a position previous with his inconsistent admitted course Chancery, Suits in conduct. Gibson’s 4th Ed., Sec. Estoppel p. pp. 67, 84; 31 C. J. S. secs. 108, 113, 341, 362; Jur. Here the Am. Sec. had not p. *12 only posted previously plants notices at its several en couraging to the execute authorizations, but honoring during the admitted trial authorizations of wеre then who members of the Local. Finally, support recovery to dam treble ages 47-1706, T. A. two contracts are neces under C. sec. namely, sary, Company the and tbe a contract between and a contract between Union and members Local, the its they agree pay the first in to Local. In the only obligated Company was to deduct Union stance the no conditions, and statute has dues under certain the party per application to where a contract fails to one part, being Ms and in the second instance there no form the members, Local and statute contract between the inapplicable. Furthermore, likewise there would be persuaded proof Company whatsoever that no any procured contract revocations, after the new on October was executed except
Accordingly, below will affirmed the decree employees. damages the 234 As to treble dues If for be reversed. decree will items, to these two agree upon any parties total cannot reason the have deducted for should amount of dues the employees, will for the be remanded then case the 18 thereupon. taking proof will be costs of the decree affirmеd modified,
As equally between Local will be taxed the cause Company. concur. Hale, J., P. McAmis, J., Petitions Rehear. On Howard, Justice. sides, herein both have been filed
Petitions rehearing, seeking Pet respectfully Union calling respectfully attention Dairy Products relating assignment error consider failure our *13 permanent injunction ordering- specific perform- to the bargaining- ance of the collective сontract the Com- pany. petition questions
In Union’s no are which raised have not heretofore been considered determined, petition and the is denied.
Though question did not we consider the called to our Company’s petition, attention it we deemed un- necessary following for the reasons:
According upon to its terms, the contract predicated expired September suit on 30, 1957. The argued Seрtem- case was before the Bar this Court on opinion ber 1957, and on filed 5th December following. expired rendering Meantime the contract question specific performance moot.
Assuming, question however, that the is not moot, and anticipating parties might rely thereupon that the wish to appeal, respond Company’s on we have decided to the assignment petition. error pointed original оpinion
As in out is for suit predicated damages upon breach contract and obvi- ously, Company being monetary solvent, decree only adequate, complete. would not be but damag-es The rule is well settled where are practicable, adequate, as here, and would here, specific performance. will not Court as rule decree Yol. Chancery, p. II, Ed., Gibson’s Suits 5th 237; See. Specific p. S. C. J. Performance sec. 414. Accord ingly, portion awarding specific per decree is vacated. formance
McAmis, J., Hale, J., P. concur.