*1 in the' judgment improper an rendition ably did cause case. reason in this record injury is shown probable No The juror in the case. as a served that Mr. Wommack
fact here. application respondent no have relied cases injury previous forgotten the juror had fact that The respondent, fact such whereas, cited in the cases proved, men the 12 reveals that in our case The record not exist. does new trial motion for jurors on the testified served as who during difficulty their argument had no arose and no arriving aat verdict. deliberations jury and the re- supports verdict of the The evidence allowing peti- judgment question spondent no raised incapacity work. permanent compensation for total tioner guaranty a trial be- deprived of respondent a fact which impartial jury. A failure to disclose fore a fair improper be- forgotten tribunal result in an been did not had ing established. Apeáis reversed judgment of the Court Civil the trial court affirmed. dissenting.
Associate Justices Garwood Wilson Opinion delivered December 1954.
Rehearing January 12, 1955. overruled Chauffeurs, Drivers,
Truck Warehousemen Helpers, v. Local No. 941 Whitfield Incorporated Transportation, 15, 1954. A-4247. Decided December
No. January Rehearing 1955. overruled 857) (273 2d Series S.W. *2 Wells, Jr., Dallas, Mullmax & Wells and L. for N. D. all of petitioners. assuming Appeals jurisdiction The Court of Civil erred injunction relating commerce, ap- to issue and in to interstate plying relating the Texas statutes Anti-trust and Sec- laws ondary Boycott laws, relating jurisdiction as the in this case
93 belongs exclusively to interstate to the Federal courts commerce Congress Federal under Federal Motor Carrier Management Louis, Act and the Federal Brownsville, etc., Act. Labor Relation St. Dist., 295, 304 v. Brownsville Nav. U. S. 1357, 868; Sup. Rep., Valley Ry.
82 L. Ed.
Ct.
Midland
Co.
Barkley,
Sup. Ct.,
Gulf,
Ry.
342;
v.
276 U.
C. & S. F.
S.
Moore,
v.
98 Texas
Burges, Scott, Hulse:, Rasberry & J. F. and William F. Hulse Smith, respondent. Paso, all of El predicated secondary boycott, upon
This suit was but violation Texas intervener law, Antitrust courts; state enforcement which is vested against Union, neither was it suit but *3 freight lines, being intervener, defendant an motor the Union change jurisdiction its entrance into the which suit did against had become fixed when defend- service obtained S.L.R.B., 767; ants. Bethlehem Steel Co. v. New York 330 U. S. Freight Dickson,
Northeast Texas 148 Texas Motor Lines v. 795; Middleton, 219 S.W. 2d v. Fed. 2d Johnson 535. rehearing
ON
Mr. Justice opinion Garwood delivered the Court. rehearing motion opinion
On the first handed down in present opinion this cause is and withdrawn substituted therefor. respondent-plaintiff Inc., Transportation, Whitfield carrier, doing carry-
motor no intrastate business in Texas but ing freight points state, between sued El Paso west of this carriers, offices, certain other interstate with El Paso delivering receiving respond- had theretofore been to and ent-plaintiff at El for further trans- interstate Paso commerce, east, portation, as as the case interstate west or might object enjoin be. of the suit was substance these acting by persons defendant carriers other or in con- “and all prac- suspending with cert them” from their above-mentioned tice, which, degree, they appear at least to to have sus- some pended following picketing respond- of the facilities ent-plaintiff, Whitfield, in New Mexico a union of Teamsters petitioner difficulty with the between the affiliated respondent-plaintiff Union. The remotely New is
and the Mexico union involved, anyone alleged, since no El Paso picket- enjoining Mexico the New suit directed at and the ing. is not the representative petitioner union or nor other Neither allegations defendant, despite made a or member thereof was secondary boy- “participating---in were defendants against L. Teamsters’ Union plaintiff” the A. F. of cott with However, plaintiff.” unions unknown to other labor “and/or against alleged the defendant action essence of carriers, cause of proof, fact pleadings, as evidenced the combined alleged
findings judgment, judge and the of the trial officers, agents members, petitioner, conduct of our threatening coercing discontinue their respondent-plaintiff, with erstwhile connections at El Paso alleged The еffect of such coercive conduct Whitfield. secondary boycott re- be what spondent-plaintiff. is termed law half The six defendant were less than carriers somewhat respondent-plaintiff did carriers with whom Whitfield similar had collective business at El Paso. The bargaining contracts with all the defendant carriers individuals, about half of the others. who were executives Five agents carriers, made of one or more defendant also were defendants. defendants, represented
The sworn answers of the all allegations attorneys, re- same firm of denied the spondent-plaintiff, especially any conspiracy or concerted as to alleged latter, boycott against action in substance *4 suspension respondent-plaintiff that their with the business was due to the handle the cor- refusal of their responding freight. petitioner permission of the Union intervened with pleaded position
court and assumed of a defendant. It jurisdiction legality of of the court in that the conduct the defendant a carriers was matter for determination or Railroad Commission Interstate Commerce Commission jurisdiction of point of Texas and later raised the of exclusive upder Management Relations the federal tribunals the Labor pleaded (29 U.S.C.A., seq.). et It further Act of 1947 Sec. 151 respondent-plain- adequate remedy part an tiff, law on the any conspiracy combination be- denied the existence of petitioner and the Union tween the defendants or between the boycotting respondent-plaintiff object of defendants with the any of the petitioner threatened had and denied that Union alleged any suspension of busi- affirmatively that defendants. It part respondent- ness on the with defendant carriers plaintiff good judg- inwas the exercise of their own business petitioner ment and that the
“has advised several of Plaintiff Defendants of fact that (respondent Whitfield) refused has to deal with other affiliates of the Teamsters’ Union in the State of Mexico else- New and and that it is where Unions, engaged аdvised said other Teamsters’ Local dispute Plaintiff, engaged
in a labor with Albuquerque, Mexico, lawful of Plaintiff at New and (petitioner union) Intervenor show it has right to advise Defendants of such fact.” Following temporary restraining order, case was tried Testimony to the court. respondent- was introduced plaintiff and the defendants, Union but not whose counsel also forebore to cross-examine the witnesses tes- tifying. judgment The trial court respondent- rendered for the plaintiff, making in sundry findings its express decree of fact including following:
“Members, agents, employees representatives and of the union combined to put formulate and plan into effect to cause a secondary boycott to be instituted and carried on against plaintiff Paso, Texas, at El respects to interline freight; by threats, express that union implied, coerced the establishing defendants into carrying secondary and on the said boycott, respect defendant’s being put action in this into effect pursuant signal given by kept the Intervenоr and in effect from that time restraining until the temporary issuance of the cause; order issued in Intervenor, agents, this and that em- ployees, representatives members, defendants, and did com- engage secondary boycott, bine pursuant said thereto did plaintiff Texas, divert Paso, interline at El otherwise would have been delivered defendants to * * * Plaintiff; connection with all of said acts intervenor, agents, representatives, defendants and their mem- bers, employees, among them, awas there concert of action and all of them.” foregoing,
The court consequent concluded that and interference tiff injury respondent-plain- with commerce and to the *5 exist,
which were likewise found to constituted “a Texas, violation of the anti-trust laws of the State of provisions of Article 5154f of the Vernon’s Revised Civil Texas, 1925, Statutes of part as amended and said acts on the 96 illegal, defendants and intervenor are should be en- * *
joined, injunction defendants, officers, restrained the “their * * * agents, employees servants, Intervenor, of- its ficers, agents persons and members and all in active concert or * * *” participation parties with all herein restrained (in effect) continuing suspend any normal with the business respondent-plaintiff, “if, tendering except plaintiff after it to preceding provisions injunction, under plaintiff of this is unable transport it, ordinary or deliver it in the course of business.” appealed, None of the defendants but Union did, judgment being of the trial court affirmed the El Appeals. Paso Court of Civil 259 2d 947. S.W. granted We point writ of error the Labor
Management Act, supra, applied Relations as in Garner v. Teamsters, Union, Building 485, 373; etc. Sup. 346 U. S. 74 Ct. Trades Co., 933, Council v. Kinard 74 Construction 346 U. S. 373; Sup. Capital Service, Inc., Ct. v. National Labor Re Board, 501, Sup. 699, lations preempted 347 U. S. 74 had Ct. appropriate type federal tribunals controversies of the here original involved opinion, but, and so in upon held our on reconsi rehearing deration of the matter the motion for and amicus Attorney curiae briefs of the numerous Generаl of Texas and others, have concluded that we were in error. Whether we were correct or not in view that nature particular controversy (as gathered this pleadings, from the findings) clearly evidence and fell so' within terms of the portion Management relevant of the Labor Relations Act of 1947, U.S.C.A., 158(b) (4) 29 inapplicable Sec. to render as “express power” cases, limitation of this Garner line of limitation is not the one to be considered. The Garner opinion evidently purpose observes in that studied anpear (N.L.R.B.) case did not “that the federal Board powers jurisdiction decline to exercise once its was invoked.” (346 485, Sup. 164) limitation, repeated U. S. 74 Ct. This per case, opinion curiam in the Kinard Construction Co. 373, recognized Sup. clearly U. S. Ct. also Supreme Jersey the recent decision New Court of Sons, Inc., Jersey, Busch & v. Retail of New 15 N. J. True, applied 104 A. 2nd 448. court in the latter case controversy (which, rule in- of the Garner case to the before it cidentally, was one of аnd much closer the Garner
97 case) actually than the case on facts instant overruled the argument jurisdiction for the the retention of based on state alleged jurisdic- doubt as to the N.L.R.B. would take whether However, apply the refused in tion. decision to the limitation par- question only positive appeared in no reason the because might why jurisdiction. ticular the Board not take 104 case par. Syl. Atl. 2nd 5. positive appears
In the instant case the
reason exists
formally
in
juris-
the
declared view of the Board that
it has no
878, etc.,
of
diction. Matter
Ex-
Local Union No.
and Arkansas
press, Inc.,
thusWe to the merits of case. The support Union that contends there is no the evidence for the findings below, judgment of the courts and we conclude this position to be well taken. Obviously conspiracy there no as between the defend- themselves, ants respondent- and we do not understand
plaintiff to respondent- assert that there was. The case for plaintiff, findings as stated both and the briefs fact respondent-plaintiff boycott and amici curiae is one of by the petitioner defendants under coercion exercised through the defendant carriers executives of rehearing (in latter. As statеd in the motion for connection jurisdictional question mentioned) with the first above say, above, for the “We reasons set out this Honorable concluding by argument Court erred in own its rather than record, secondary boycott reference one this encouraged employees where Union induced or defendant act, being carriers to instead of one where the coercion was * * applied employer to the itself Among set out the statement the “reasons above” is supervisory (the Union) em- notified
“Petitioner ployees (s). found and recited defendant The Trial Court threats, implied, express coerced judgment ‘that Union *7 establishing defendants, carrying said on the sec- the into and * * finding by uncon- ondary boycott the *. This is sustained evidence, of the that this sec- and is conclusive fact tradicted ondary employers, applied operated by boycott coercion trucking namely, companies, officers and man- their defendant agents.” aging record, including of facts which has beеn the statement reread, a find- carefully that not is us read convinces by management the
ing defendants of the of the of coercion that, evidence, by but union not sustained the uncontradicted contrary, support evidence. the in the on is without peti- emphasized an of the much fact executive respondent- that the notified the defendant carriers tioner Union plaintiff by picketed points in an affiliated at New Mexico picketing existed at That union is no evidence of coercion. the evidence, is, indeed, by sustained the uncontradicted the time obviously fact, merely of a which so that the statement was one by might, would, about probability all have been learned and in through their own union- within a time the defendants brief employees, if member not otherwise. Lines, said, so, properly in North Texas Motor
We East Dickson, 35, 795, 798, Inc. v. 148 Texas 2d that “while S.W. picketing speech, speech; peaceful than is free it is more free quite different from it is coercion as well.” But this is economic merеly telephone saying an that for a union officer officer contract, corporation A, bargaining the union has a being picketed, corporation B is tell the fact is and coercion, him illegal otherwise, And still less coercion. economic protected picketing may of the even coercion exercise right speech Supreme the Court free under decisions of voiding States, recognized point of we to the United as Henry, 2d injunction in 147 Texas 215 S.W. an Ex Parte although picketing this, additional effect had the serving picketed causing employees of a railroad of premises operate thereto. refuse to trains testimony of the laid on the is also
Considerable stress (Bone) the defend- who directed that officer of picketing, to the New Mexico ant carriers be advised keep that, object of the was to effect while the communication affecting transporta- developments companies these advised conditions, hoped еxpected tion freight he same time
be diverted those as a result of in- imparted. response questions In he formation thus to further though explained employees that he that when the union picketing, they would, as defendant knew carriers about men, respondent- union plaintiff to handle in which refuse obviously assump-
was interested. This was no violent part. hopes on tion expectations his He had same could well have given being without information carriers, surely employees promptly because their union way hear about the the position one or another. The respondent-plaintiff, as heretofore demonstrated (when arguing words of tion) jurisdictional ques- its own counsel boycott pressure peti- that this is not a case of through tioner union of the defendant carriers. *8 (b) (4) Management
Otherwise Sec. 158 of the Labor Relations “philosophy” Act and the line of cases would more Garner likely applicable. hoped expected What Mr. Bone or the union might of the defendant carrier do thus is be- рoint. thoughts the side These of Mr. not Bone were evidence of executives, may coercion exercised the whatever have probative been employees. influencing their value as to the matter of the that, The fact prior about a week picket- to New Mexico ing, petitioner participated, through union officers or com- mittee, meeting in a of the Teamsters’ Union “Joint Council 71,” participated No. representatives which there also conducting local New picketing, Mexico union later controversy the further fact that between latter union respondent-plaintiff and the meeting, was discussed in the petitioner that anyone no evidence union or else later coerced management boycotting the respondent-plaintiff. of defendant carriers into merely already
At most this confirms the petitioner admitted fact that Union knew about the New picketing by Mexico its affiliate when it occurred. additionally emphasized testimony respоndent- for the
plaintiff witness, Young, of its defendant who was had Ike agent carriers, been an of one or two of the defendant to the being subjected effect he that he “understood” was to “an im- plied threat” of some sort from the is no of Union evidence by and, only against indeed, coercion the latter was admitted “as agent” agent (he only the defendants of whom he was testified). According testimony he to his he not one when was indirectly that, Union, “I even but was advised called through my rather, picket employees, one of there was I place Albuquerque. called at of business at line Whitfield’s Paso, to here at El I think I talked the Teamsters’ Union Evidently original Thomas, his Mr. and confirmed that fact.” foreman,” Cavender, “my con- dock informant was one whose nection, appear any, petitioner if from with the Union does Young, Young’s testimony, according to Mr. own or Mr. his merely by the was “confirmed” union the Cavender information upon Young’s enquiry. only interpretation of Mr. own fair Young’s anything testimony instance he told is that no рlace except picket line of “that there was a at Whitfield’s busi- private Albuquerque.” at that he was ness being His own inference not evidence somehow threatened Union is Union, de- petitioner even as coercion the one represented tes- the time testified. His fendant carrier he he “understanding” timony, incidentally, de- disclosed that his “good play politics” motive with the one Union sire diverting freight respondent-plaintiff, the other for being — get he delivered “wanted get up in picket line Albu- didn’t want stuck behind the place.” querque some testimony reasonably logical
The one item close that has relationship the matter coercion respondent- Harris, is the statement of Richard dock foreman plaintiff and, course, Ike He that Mr. its witness. testified Young Young, was a rate abovementioned a Mr. James who Express, him over clerk of the defendant told Southern *9 he him that “that had called him and told the union telenhone ought they to tied divert were because Whitfield * * something up in would be Doubtless such statement distinguished of way persuasion as from statement the of although evi- fact, apparently was the “uncontradicted not says supports trial respondent-plaintiff the dence” which the by findings, flatly Ike since it was contradicted court’s being a called Young respectively, witness former James W. the Union, regards petitioner the by respondent-plaintiff. As the the objected testimony obviously hearsay to and whether was tendered, probative v. Texas Co. without force. not when 628; Land Lee, v. Federal 2d Winn 157 S.W. Texas 864, writ of App., 2d Houston, 164 S.W. Bank of Texas Civ. error refused. against incompetent as say
And that the declarations to case, say petitioner is, to that the under the facts of this findings they competent are not sustain which the to the findings findings injunction peti- is based. Those were that the it be said that tioner Union coerced the defendants. How can against allegedly doing incompetent party the evidence is as the coercing competent yet party the the same is to show that Moreover, рosition did coerce? think it We cannot. relatively position defendants is so adverse to little
respondent-plaintiff testimony properly that cannot call the we question competent proof against as of an admission interest party of an party. position adverse as defendants is in effect that while their re- business with the spondent-plaintiff curtailed, employees was in fact their rather management or, curtailing words, than the did the in other operations the by of the defendants were this extent controlled management certain of their below status. Assum- ing true, employee obviously something this be action was hostile, that could congenial, rather than man- agement, plea so that essentially of the defendants is thus being an affirmative by employees. claim of coerced their own great significance It would thus be of no the defendants the coercion by assert should be found the court to come headquarters, direct from union and thus the state- allegedly by Youngs ments made agаinst to the Harris were witness not admissions interest the true That sense. this is so litigation is confirmed the conduct of the the defend- ants, who, stated, evidence, as introduced no cross-examined no Plainly appeal injunction. witnesses and did not from the lay real respondent-Plaintiff issue the case between the petitioner alleged course, Union. Of statements would competent given Youngs have been nesses, but, if wit- as themselves stated, they only by employee as were testified to an of the respondent-plaintiff, testimony repudiated whose Youngs. Under oath summary, In the evidence discloses no more than that doing advising Union did what it never denied — picketing. the New Mexico a violation This statute this If state. the case were one defendants, which, stated, recognized as we have as itself coercion, though an act of partaking also of the character of speech, might result, there be a different the act of because *10 coercion question would be established and the legitimate But, whether the coercion was coercion. as we view record, the instant there is no evidence of coercion the Union upon management. respondent-petitioner The whole case for the hangs defendants about on the union executives told the what nothing, the picketing. they and the If had said New Mexico did, proceeded have been there would had as management, a at most upon but no claim of union coercion encouragement the defendants claim union bring Mexico boycott. New the about The statement it existed, did, it Union considered as and that the lawful, threat, if just because is not to be taken as a threat made, might conceivably cause. have aided the union that, far as
From above it follows so conclusions concerned, officers, agents petitioner Union, are members although, stated, dissolved; injunction as must be appeal, follow should as defendants did not same result party not appeal does them. a reversal The rule that non-appealing parties not in justify a reversal in favor 411, Co., Snyder A. 139 Texas variable. Lockhart v. W. & 385; Saigh Monteith, 2d 2d 610. S.W. v. 147 Texas 215 S.W. granted theory peti injunction on the Here is no Union coerced the To hold that there tioner defendants. thereby injunction as dissolve the evidence of coercion against yet leaving injunction petitioner while Union ignore allegedly coerced defendants is to in effect form, respect to absolve substance order to charge and at the time leave of coercion same not offense, did because the defendants convicted of the same appeal. choose reversed, judgment of both courts below
injunction is dissolved. / sitting.
Associate Justice Walker Opinion delivered 1954. December concurring Smith, part part dis- Mr. Justice senting. opinion holds that majority insofar as it
I concur with the grant injunctive jurisdiction relief trial court had agree injunction sought by respondent, I but do not *11 present granted respectfully I should be dissolved. heretofore following opinion. agаinst respondent six common car- This suit was filed managers companies individuals, rier truck and five who were against companies. of the defendant-truck The suit was not petitioner organization. any or other labor respondent plead of the truck- cause action ing damages and, injunction, companies for if the and for an jurisdic- pleadings, evidence sustained the court had state injunction granted tion and the interven- was warranted. The respondent’s objection tion of or over otherwise does give the National Labor Board and the Federal Relations jurisdiction. courts exclusive and other cases The Garner case holding Respond- of do not in this like control decision case. alleged part:
ent day April, 1952, corporate “On or about the 14th de- plaintiff, fendants and the individual notified either defendants through through employees said individual or defendant other agents corporate defendants, they, of said and each them, plaintiff would not thereafter deliver to merchandise might transportation in the course of over their lines plaintiff. corporate the lines of Each of such defendants, through defendants, and individual such individual agents defendants, or other corporate of such stated the sole and reason for such action was that aforenamed plain- labor union or other unions unknown to this tiff had told they the said defendants their should divert plaintiff Thereafter, to some other carrier. on day April, 1952, shipment 15th of merchandise which had by plaintiff been transportation by plaintiff received for over plaintiff’s line, delivery by plaintiff connecting to a mo- tor transportation Paso, carrier at El beyond Paso for con- El sisting weight 3,000 pounds, total plain- tendered tiff to Freight, Inc., defendant Texas-Arizona Motor for trans- portation point shipment over its lines of destination. Said regular business, tendered to said defendant in the course of and in practice accordance with the usual custom and as exist- ing plaintiff between the and said defendant. Said defendant accept refused shipment wrongfully just such and without cause, and respect its action in that was due to the Union’s demands it.” pleadings alleging respondent specific brought wrong made complained of was about statements were em- the defendant-carriers. These carriers the Union to employees.
ployers and not *12 in filed answers The defendant-carriers sworn acting they jointly in concert with each denied that were and trade; other, conspiracy in restraint of furtherance1 of a and they participating secondary a or that Union in were with boycott. alleged part, answer,
Intervenor-petitioner’s in that sworn plain- it has fact that advised several of the defendants tiff affiliates of the Teamsters’ has refused to deal with other elsewhere, it in the New and that Union State of Mexico engaged unions, is advised that said other Teamsters’ local engaged picketing dispute plaintiff, labor with in lawful a of are Mexico, plaintiff Albuquerque, at New intervenor right fact. that it a defendants of such show has advise wrongful of the shows acts coercion Some evidence which participation applied by a the Union defendant-carriers boycott by secondary in a respondent the defendant-carriers is as follows: Secretary-Treasurer Union, Bone,
Mr. Fred A. testified: “Q. somebody Now did on the morn- on behalf of Union ing April 14th, 1952, Monday, lines who these truck advise suit, there was—that Whitfield this that being picketed Albuquerque, not? did say,
“A. I couldn’t I didn’t. “Q. Bone, you say, you answer of Mr. in this Well did didn’t Intervenor, your that said Union which is referred here as of Defendants ‘Intervenor would show it advised several has affiliates with other fact that Plaintiff has refused deal and else- of New Mexico Teamsters Union in the State Teamsters’ Local where and it other is advised that said engaged Unions, engaged dispute plaintiff, are in a labor Mexico, Albuquerque, New in lawful of Plaintiff at right Defend- has to advise Intervenor would show that? say you of such fact.’ didn’t know about ants You notify My may I “A. the carriers. didn’t assistant have notified notify the carriers. I that I . the carriers. stated didn’t somebody “Q. you repre- notify You know didn’t them. Well senting did do so? right. presume I
“A. that’s
“Q. you presume it, do fact? Well is it
“A. Well—
“Q. right by you, a fact? It’s and it is sworn to isn’t that there “A. Yes.
“Q. presume that, you Well do or is that a fact? presume my “A. I I assistant what tell him. does “Q. fact, mealy-mouthed it? it. isn’t don’t about It’s a Well “MR. WELLS: What is fact?
“Q. somebody representing question, That I the Union him, morning originally asked notified these defendants on the *13 April 14th, that were Whitfield Albuquerque. ? Yes, they
“A. were notified.”
v [*] v “Q. you expected And as a result that notification that — freight freight would be diverted interlined would diverted be Paso, you from El Whitfield at not? did say
“A. I couldn’t that would be the reaction.
“Q. No, you expected that, you? but didn’t — might expected “A. I it have some members do some don’t, expected part be, yes. I members so the best of it would “Q. freight part You knew that the best interline El Paso would diverted from as a Whitfield result that notification? No,
“A. I didn’t know it. “Q. firmly expected it, though, you? You didn’t expected I “A. it.” notify
Mr. Bone’s assistant testified that he did so defendant- carriers. testimony situation defendant’s is shown of J. I. freight agent
Young, defendant-carriers, for Truck Western Lines, Transport, Inc., Motor Ltd. Gillette who testified diplomatic that interest of оn relations with freight part employers, of his he felt to tender unwise Thomas, respondent, permission asked of Mr. an that he freight petitioner-Union, accept respond- officer of from to even obtaining permission good poli- that was ent since he felt such Union; petitioner-Union tics with the gaining had collective bar- tes- contracts with the defendant-carriers. He further tified that had no such consent obtained from the Union been employees of the he truck line-defendants for which two freight agent respondent’s handle would have refused to received such lines. He also testified that he considered presence picket of a line in Albu- notice from the Union of the querque implied respondent, with an threat not do business favorably his petitioner-Union upon look and refusing since freight give Whitfield, interline his so refusal thought do. him to what he the Union wanted based Harris, respondent dock in El Richard foreman for Young, (the person Paso, Texas, testified that Ike same as J. Young mentioned), telephоne previously in a conversation I. April 14, 1952, Mr. Harris on told him that he had been freight respondent; by the Union to divert from instructed Young, Express, clerk the rate on that James Southern W. day telephone in another conversation also told him that same Express petitioner-Union had instructed to divert Southern Johnson, respondent, and that Vernon the ware- Freight, and a of Texas-Arizona Motor member house-foreman telephone petitioner-Union, in a conversation with the said April 1952, told him that Motor on Texas-Arizona Harris *14 freight Freight respondent. tender would neither receive nor to Harris, respondent; testimony dock foreman for Richard of Young, Whitfield; Romero, Ike Man- a truck driver for Fred lines; Hall Fred ager A. D. and of two defendant-truck findings agents, supports the the trial Bone, of business secondary boycott, Anti- and a violation of the Texas of a court defendant-trucking companies. by laws Trust granted against perpetual injunction a court The trial findings following judg- defendants, of fact in its and made the ment: dispute with, plаintiff had no com- finds that or Court “The not, employees, and that Intervenor its did
plaint from cause, filed, trial of or at the time of this the time this suit employees, of said but that never- represent majority a to claim representatives agents, employees members, and theless plan cause put effect a to into to formulate and union combined by defend- on secondary boycott and carried to be instituted respect Texas, to in- Paso, against plaintiff with at El ants implied, threats, express coerced freight; union that terline sec- establishing carrying the said on and the defendants into being put respect in- ondary boycott, action in this defendant’s kept signal given Intervenor and pursuant to effect temporary re- that time until the issuance effect from straining Intervenor, cause; and that in this order issued members, and defend- agents, employees, representatives and secondary boycott, engage and ants, did and in said combine freight at pursuant plaintiff interline did from thereto divert Paso, Texas, would have been delivered El which otherwise Plaintiff; and Defendant Texas-Arizona combination, Freight, Inc., plan pursuant and refused to said plaintiff; accept and that in connection interline from intervenor, agents, their with all of defendants and of said acts members, employees, representatives, and there was concert among them, of action all That said concert of and of them.
action, combination, plan, on for was instituted caried causing damage purpose injury plaintiff with- holding patronage plaintiff, interfered commerce, tended to free flow and that it created or create That said facts show retsrictions in trade or commerce. Texas, and of violation of the anti-trust laws of the State provisions Revised 5154f of the Vernon’s Civil of Article amended, part Texas, 1925, acts on
Statutes of as said enjoined, illegal, of defendants and intervenor and should defendants, part and that said of Intervenor and acts on them, irreparable injury, plaintiff and that each оf will cause plaintiff remedy adequate at law.” has no my supported by It National Labor decisions view— Board, Supreme and the Court
Relations the United States Texas, Supreme respondent’s cause action Court of damages defendant-employers injunction and resulting wrongful could of the defendants from the acts Board, and, presented Relations National Labor have been to the hold otherwise presented, dismissed. To if would have been respondent without power and the would leave no to the State Act, Management or the so-called Relations a forum. Labor case, did the Taft-Hartley Act, as it Garner cover this does not case. *15 engages in, only applies a union where
The involved statute encourages employees employer of an to en- or induces or gage transport ain strike or concerted refusal to handle or goods specified certain or commodities when the Union had clearly objects in view. shows that the Union The evidence representatives approach employees defend- did not but, contrary, companies, ant-truck on the all the evidence proves conclusively representatives coerced the the Union employers companies a con- six defendant-truck —the —into action, in- certed which defendants’ failure to resulted respondent, they been terline as had theretofore doing. began 14, 1952, April action Such of the defendants on temporary April 21, 1952, and continued until restraining the date the about granted order was in this case. coercing aplied secondary boycott by
The other Union respondent, employers. carriers who were Whitfield, pend- were not involved in the and had no ing grievance complaint against respondent. demands had or No respondent respect terms made “with to Union been time of action or matters.” The evidence shows that at the by “representations taken the Union there were no made * * * by company’s employees either Teamsters’ Union, majority representеd a to the effect that years company’s employees.”A bout two before the acts of the gave controversy, present rise National Union representation ordered a At Labor Relations Board election. time, represent com- the Teamsters’ claimed to pany’s employees. The election and the Union lost was held request a vote of 87 6. thereafter the Team- to No was made Union, any locals, At that an be held. sters’ of its election establishing prior picket line Whit- the time of place Albuquerque, intervenor-Union field’s had not of business Relations Board certified the National Labor been agent company’s employees. bargaining as the for the kind, picketing, prior to the notice of letter, 1952. The letter bore no the form of a dated March return address. The letter reads: Representatives of the Teamsters
“It the desire of the Representatives your 71 to meet with Joint Council No. parties. Company mutual interest to both to discuss issues of notify yоu appreciate very if would us at much “We possible will your possible when it convenience earliest meeting. arrange this
109 Representatives can meet necessary, of the Council “If you in Las with Cruces.” Manager Whitfield, Hull, “The testified: Mr. General Company did address
letter showed no return whatsoever.” any reply letter. asked whether made not to the Whitfield When stated, “No, they letter, reply Mr. Hull because to to the effort they represented in didn’t indicate employees, letter that anything of nature.” or in a fair elec-
The evidence the Union had lost shows ; defeat, upon a it entered course of conduct tion that after the ignore employees which indicated to the vote of the desire rights Whitfield, Board, and the the National Relations Labor years conducted Whitfield. election two before extremely disappointing National Labor Relations Board was to the and conduct Union. The record reveals course of action damage part on the in material tо Union which resulted lines, Union, by coercing Whitfield. The defendant-truck employers, employees, who were to and not caused Whitfield $4,000.00 lose more than interline business both Paso, Albuquerque, New Mexico and El Texas. In the Garner case, 485, 164, 161, Sup. 161, 346 L. Ed. 74 U. S. 98 Ct. Act, part:
Court said “The Relations as we National Labor pointed (citing Algoma Plywood out & Veneer Co. v. have Wis- Board, 301, 313, Employment L. consin 336 93 Ed. Relations U.S.
691, Sup. 584; 69 Ct. Bethlehem Steel Co. v. New York State 767, 773; 1234, Sup. Board, Labor Relations 91 L. Ed. 67 330 U.S. 1026; Watson, 538,
Ct. Hill v. of Florida ex rel 325 U. State S. 1782, states, Sup. 1373) L. much 89 Ed. 65 leaves to the Ct. telling
though Congress how much.” has refrained from us The Court also said that where National Labor Relations express power injurious prevent Board con- is without to complaint made, of which duct implied it has “declined to find an powers.” exclusion of state See International Union v. Board, 651, Sup. 336 L. Ed. 69
Wisconsin U. S.
Ct. 516. Rabouin, Conway’s Express
In Re- dba v. National Labor Board, 906, Rabouin, operator, lations 195 F. 2d a truck line engaged arguments Union, in the Teamsters’ bring they pressure course requesting on him of which undertook to ship- operators accept not to his other truck line (b) (4) of the ments. This was held Section 8 violate Management Act, saying: Labor Relations the Court pressure
“Petitioner also sees in the union’s on neutral em- ployers stop accepting shipments his a violation of the sec- ondary boycott provisions. (b) (A). if the demands Sec. 8 Even strike, agree implicit carried with them an threat we cannot encourage engage tended to induce forcing employer in a strike concerted refusal to cease doing embargo goods business with another. The on Rabouin’s *17 product solely management requests was the of addressed or to supervisory personnel. clearly employers, The former are lately by (2, the latter have 2 been so defined the new Section 11), (2, 11). 29 A. U. S. C. Sec. 152 union did not thus ” ‘encourage employees.’ the Douds, Board.,
In on behalf of National Labor Relations v. Workers, 273, (on Supl. 970, Sheet Metal 101 re- 972 Fed] hearing) boycott products there was involved a of the of Ferro- Co., employ who did not members the of Sheet Metal Union. injunction sought An Court, was in the United States District York, by Regional Eastern District of New Douds as Director of alleged the National Labor Relations Board. It the practice establishing Union had committed by an unfair labor boycott prohibited by 8, (b) a (4) (A) Section of the National Labor injunction Relations Court, Act. The was denied and the among things, other said: “Viewing realistically, situation what the seeks enjoin is, course, to goods boycott by here of respondent manufactured Ferro-Co. But the shows that evidence boycott accomplished by respondent, inducing not encouraging employees engage or of Dierks in a strike or concerted products, refusal to handle Ferro-Co’s but because agreement of an Heating representing with the Assaciation group employers. agreement provided That that the work of fabricating installing jobs radiator enclosures on contracted by the performed by Association members would be members of the Sheet Metal objections Workers International. Whatever agreement can being be taken to such contrary law, as it can- regarded be not (b) (4) as violation (A), of Section 8 be- cause the evidence respondent, fails to show that the in achiev- ing objective, encouraged induced employees any employer engage practice an unfair labor as defined therein.” engaged
A union is not
practices
in unfair labor
within the
meaning
(b)
(4)
(A)
Section 8
of the Act where the evi-
dence
upon
shows coercion
secondary
the union
employers
encouragement
show
inducement
and does not
employees
Workers,
secondary employers.
Sheet Metal
of such
Corp.,
1660;
etc.,
No.
102 N.L.R.B.
Local Union
and Ferro-Co.
Furr,
128;
Ex-
Clyde
Arkansas
M.
98 N.L.R.B.
etc. and
Inc.,
Express,
press, Inc.,
In Arkansas
“The record brought primary dispute Arkansas, pressure aid of its carrier-secondary employers-to boycott Arkansas the other manager Highway Express completely. testi- The terminal February February thаt, fied Respondent sometime between agent, Harrison, assistant James Union’s business Highway Express told pickup Arkansas for him that could call freight’; ‘nobody because there would check ‘might Highway Express and that if made the the men call * * * principal walk out’ with ‘the sanction of Union’. motion, therefore, issue raised is whether the General proved Respondent Counsel induced the has carriers to to handle Arkansas other refuse * * * defense, employment. the course of As its their main *18 motion, support Respondent in of the notwith- the insists that standing secondary objective induce- the clear evidence of secondary employers, ment has not the General Counsel any Respondent employees (other shown inducement the Arkansas, primary employer).” than those of the Board, case, in the held that The above the evidence showed secondary employers the coercion Union the did encouragement not show inducement or secondary employers of such and that the uniоn for that rea- engaged practices in son ing not unfair labor within mean- (4) (b) (A) 8 of the Act. Section case, In the evidence showed the Garner National express power Board had to act. The Labor Relations brought facts “This not an the court to conclusion: is instance of injurious National Labor Board is conduct Relations and, which, therefore, power prevent express either without entitrely ungoverned’.” ‘governable by the or it is is state position the state union courts are without The Labor jurisdiction and that National Relations Board and preempted the field in have all cases involv- courts the Federal wholly unsupported by ing is the author- commerce interstate bring squarely principle in within the ities. fact this case 112 Giboney Storage Co., Empire
announced the cases of v. Ice& 684 ; Best 490, 834, Sup. Lines, 336 93 L. Ed. 69 U. S. Ct. Motor Bro., etc., 95, Inc. v. Int. heuser-Busch, 150 Texas 237 2d and An S.W. 589 Weber, al,
Inc. v. et 364 Mo. 265 2d S.W. present conspiracy 325. The trial court case found on part of the defendant-truck lines and the in restraint of trade and that such act was in violation оf the Texas Anti grounds Trust laws. one This was for the issuance of injunction. I see no valid reason to waiver in the least from holding case, supra, this Court made the Best Motor Lines wherein we said: “The Texas Anti-Trust Statutes are valid persons subject thereto, and all laws are and the courts have power enjoin acts conduct in violation thereof. Labor though excepted, unions even there exists a labor dis pute peaceful.” and the Workers,
The recent case of United Construction Affiliated America, Mine United Workers et al v. Laburnum Corporation Sup. 833, 834, Construction U. S. Ct. question Management involved the as to “whether the Labor Re- Act, 1947, given lations had the National Labor Relations jurisdiction Board such subject exclusive over the matter of damages preclude ap- common-law tort action for as to an propriate hearing determining state court from its issues practice where such conduct constitutes an unfair labor under Act.” held Court the contention of the Union. discussing jurisdictional In quеstion, said: Court “We accept the view of the National Labor Relations Board that respondent’s activities affect interstate commerce within the meaning Management of the Labor Relations Act.” The conten- petitioner-union tion of the stated and the Court held as follows: occupied
“Petitioners contend that the Act of 1947 has *19 completely regulatory agency labor field relations so that no than may other the National Labor Relations Board and no court jurisdiction practices by it, assert over unfair labor as defined expressly by Congress They unless authorized to do so. claim accordingly that state courts joining are excluded not en- from practices colliding unfair future labor with thus Board, Union, as occurred in Garner v. Teamsters 346 U. S. Sup. Ct. but that state courts are excluded also entertaining recovery from common-law tort for the actions damages caused such latter conduct. The exclusion is the case, Congress provided issue here. In the Garner had a federal remedy, supplementеd by judicial procedure administrative for enforcement, injunctive procedure its with which the state con- Congress suggested any provided Here has neither nor flicted. procedure for the traditional state court substitute for collect- ing damages injuries for caused For tortious conduct. us right injured respondent recovery to cut off the from this will deprive property compensation. it recourse of its without To will, effect, grant immunity petitioners liability do so from for their see no tortious conduct. We substantial reason for reaching contrary such result. The view is consistent with the language positive support of the Act there is for it in our legislative history decisions and in the of the Act.” Management The National Labor Relations Act of 1947 did expressly organizations legal not liability relieve labor from for Supreme unlawful conduct. The United States Court concluded opinion by saying: its Virginia jurisdiction “If case, is denied it this will mean preventive procedures where the federal administrative impotent inadеquate, offenders, by type coercion of the here, may destroy property found liability without for damage petitioners unorganized done. If private persons, were conducting petitioners here, Virginia themselves as did had jurisdiction
have undoubted of this action them. petitioners The fact that organizations, are labor with no con- relationship respondent tractual employees, provides or its no reasonable basis for a different conclusion.” holding Virginia In that the jurisdiction State of had of the in- controversy volved between respondent, the union and the clearly opinion Court construed its in the Garner case.
The evidence is conclusive that the acts and conduct of the intervenor-union induced the defendant-carriers to cease deliver- ing petitioner merchandise to transportation over its lines thereby damages. caused to suffer The acts caused defendant-carriers to do that which would not other- wise have required prove done. physiсal Petitioner was not part on the adopted force of intervenor. The intervener a subtle approach accomplished method purpose. The Union coercing employers. was restrained from The intervenor- legal position complain union not in injunction of an applying secondary boycott restrains coercing employers. appeal did defendant-carriers and the order granting injunction as to final. them has become injunction expressly provided “nothing order con- enjoin tained by any herein shall be construed to the exercise *20 right speech, nor free to inhibit dessemina-
person concerning any means of facts and information lawful tion injunction prevent dispute.” The does not the intervenor- labor performing any lawful defendant-carriers Union or the act. Appeals judgments of the Court of Civil the trial affirmed. should be
court 15, 1954. Opinion delivered December Rehearing January 1955. overruled Moody Moody L. v. W. III M. M. G. Mrs. January 1955. No. A-4625. Decided 535) (274 2d S.W. Series McLeod, McLeod, Shirley all of V. W. Wigley, & Mills Galveston, petitioner. holding respond- Appeals erred Court of Civil