Kerkemeyer v. Midkiff

McDOWELL, Presiding Judge. This is an action for declaratory judgment instituted in the Circuit Court of Greene County, Missouri, by eight' barbers who are owners and operators of separate barber shops in Springfield, against defendants, members and officers of Journeymen Barbers, Hairdressers, Cosmetologists and — 517 — Proprietors International Union of America, Local No. 191, affiliated with the American Federation of Labor, to have judicially-determined the rights of the parties under collective bargaining agreements between each of plaintiffs and defendants’ union and to enjoin defendants from removing or threatening to remove union shop cards from plaintiffs’ places of business and for damages. The cause of action is based upon breach of the collective bargaining agreement and the conditions contained on the back of the union shop card furnished plaintiffs by the union as incident to such collective bargaining agreement, growing out of a demand made by defendants’ union against each of plaintiffs; that they become members of such union or surrender the union shop card. The regular Judge of the Greene County Circuit Court disqualified and Honorable James P. Hawkins, Judge of the 18th Judicial Circuit, was called in. Motions for judgment on the pleadings were filed by both plaintiffs and defendants and on the 23rd day of March, 1954, the court sustained defendants’ motion and dismissed plaintiffs’ petition. Plaintiffs appealed. It is the contention of plaintiffs that the right to require the return of the union shop card presupposes a lawful right and that the sole and only point of dispute in this case is whether plaintiffs must join defendants’ union as a condition to their rights to obtain and display such card; that defendants’ • demand that plaintiffs join defendants’ union on threat of coercive action is not a lawful labor objective and destroys plaintiffs’ rights in collective bargaining, and their freedom of contract; that such demand is against the public policy of Missouri. It is defendants’ contention that the shop card is the sole property of the union furnished plaintiffs by virtue of a written contract between plaintiffs and defendants, showing defendants approved plaintiffs’ shops; that defendants no longer are obligated to extend this approval because plaintiffs each have violated the terms of the collective bargaining agreement, and, under the terms of the contract, defendants are entitled to remove the card from plaintiffs’ shops. The facts decisive of the issues presented are: Plaintiffs each are proprietors of a barber shop in Springfield and each employ one or more barbers, members of defendants’ union, Local 191; that for many years each of plaintiffs have conducted a union shop under a collective bargaining agreement with defendants’ union (a copy of such agreement is in evidence as plaintiffs’ exhibit A); that by the terms of said collective bargaining agreement the defendants’ union is the sole bargaining agent for all employees and by its terms only members of local union 191 in good standing are employed. It is provided that the agreement shall remain in force for a period of one year from the date thereof and thereafter for a like period successively unless terminated by mutual consent of the parties. The union furnished each of plaintiffs its shop card, the withdrawal of which forms the basis of this controversy. It is a small metal backed card bearing on its face in red letters the words, “Union Shop”. As a part of the agreement between .the union and plaintiffs, plaintiffs were required to exhibit this card in their respective places of business. The agreement governing the use. of the shop card was printed,.on the. back thereof. A part of said conditions so printed were : “ * * * that the person or persons displaying the Shop Card shall specifically agree: “(á) To abide by the laws of the J.B.H.C.P.I.U. of A. governing Shop Cards and such laws as may be made in the future for the proper government of the same. “(b) To abide by the laws of the local union, now and in the future, with refer- , ence to prices, hours, wages, and working conditions. — 518 — “(c) To peaceably give up said Shop Card on demand of the local union or local executive board, through its duly appointed representative, for the violation of any local or International laws. “(d) To peaceably give up said Shop Card * * * for any cause, when called upon to do só.” For many years each of plaintiffs operated as a union shop under the collective bargaining agreement with defendants’ union, local 191. No dispute had arisen be-, tween plaintiffs and defendants or plaintiffs and their employees with regard to wages, hours and conditions of labor; that plaintiffs and their employees, all of whom are members of said local No. 191, are operating harmoniously under said collective bargaining • agreement. Up until 1948, plaintiffs were not required by the laws, regulations and constitution of defendants’ union, to become members thereof. In September, 1948, the constitution of the union was amended to take effect January 1, 1949, and, subsequently in September, 1953, it was again amended, effective January- 1, 1954. . Under Article VII, Sec. 1, it is provided that the barber shop cards are and always shall remain the property of the International Unión and shall be the only card recognized as legal by the union. Sec. 3 reads: “Any shop recognized as a union shop by the laws and principles of our union shall be entitled to display said Shop' Card, provided that the proprietor or person duly authorized to conduct said shop shall have signed the agreements required by these laws. “When the Union Shop Card is removed from any shop for violation of the laws, rules, regulations and agreements, all members employed therein shall immediately leave the employment of said shop. For failure to comply with the above the member or members will be subject to suspension and to penalties as provided for in Article XIII of this Constitution.” Section 5 of Article VII reads: “No Shop Card shall be displayed in a barber or beauty shop unless all persons working in the shop with the tools of the trade are members of the union in good standing. ⅝ * * ” In our opinion we will refer to appellants as plaintiffs and respondents as defendants. Under plaintiffs’ allegations of error it is first contended that the trial court erred in sustaining defendants’ motion for judgment on the pleadings because defendants’ demand that plaintiffs join the union is an unlawful labor objective and destroys plaintiffs’ right in collective bargaining and freedom to contract. The law is well settled that each case must be determined upon the facts of that particular case. Spears v. Schantz, Mo.App., 246 S.W.2d 399, 406. In deciding the -issue raised by plaintiffs under this allegation we must determine from the facts the objective of the- union in removing the union card from plaintiffs’ businesses and whether or not that objective is reasonably related to any legitimate interest of organized labor. The law is undisputed that concerted union activity for an objective which is not reasonably related.to any legitimate interest of organized labor will be enjoined. Safeway Stores, Inc., v. Retail Clerks International Ass’n, 41 Cal.2d 567, 261 P.2d 721, 725. The evidence is undisputed that for many years each of plaintiffs’ shops have been conducted as union shops, operating under a collective bargaining agreement with defendants’ union, employing only members of said union and complying with, the regulations relative to wages, hours and conditions of employment as provided in such contract; that defendants’ union was and is the bargaining agent for all of its employees. As an incident to the execution of the bargaining agreement between plaintiffs and defendants’ union, the union loaned to each of plaintiffs its shop card, a metal backed — 519 — card bearing on its face, in red letters, the word “Union Shop”, for such time and on such conditions as are provided on the back thereof. As a part of the agreement plaintiffs were required to exhibit this card in their respective places of business. Under the terms of the agreement plaintiffs agreed that they would abide by the rules governing shop cards. These rules required that the plaintiffs abide by the laws of the J.B. H.C.P.I.U. of A. governing shop cards and such laws as may be made in the future for the proper government of the same; that plaintiffs peaceably give up such shop cards on demand of the local union for the violation of any local or international laws. The constitution of the union was amended so as to provide “No Shop Card shall be displayed in a barber or beauty shop unless all persons working in the shop with the tools of the trade are members of the union in good standing. * * * ” It is admitted that each of plaintiffs refused to join the union and that each of them are barbers working in their shops with the tools of the trade. Demand has been made by the union against each of plaintiffs that they become members of the union or surrender the union card. The labor objective here is to compel each of plaintiffs, who work with the tools of the trade in their business as barbers, to become members of defendants’ union or surrender the union shop card, which, in itself, has no value but is a symbol of union recognition of such shop. Under the terms of the shop card agreement each of plaintiffs’ employees will be required to discontinue their work for plaintiffs. There is no threat of a strike but each of plaintiffs’ shops will be branded “non-union” and stand to suffer damage from loss of trade from union members and their friends. The written agreement, between each of plaintiffs and defendants’ union, which required that plaintiffs abide by the laws of the local union now and in the future, should be given a liberal construction to mean that plaintiffs were bound to abide by all reasonable and legal laws adopted by the union but plaintiffs would not be bound in the future to abide by illegal enactments of the union or laws so unreasonable as not to have been within the contemplation of plaintiffs and the union at the time the agreement was made. See dissenting opinion in Foutts v. Journeymen Barbers, Hairdressers & Cosmetologists’ International Union of America, Local No. 105, 155 Ohio St. 573, 99 N.E.2d 782, 787. The law seems to be well established that a union may lawfully picket to compel employers who work at the trade to become members of the union. Riviello v. Journeymen Barbers, Hairdressers and Cosmetologists’ International Union of America, Local No. 148, 88 Cal.App.2d 499, 199 P.2d 400, 403. In this case, 199 P.2d on page 403 of the opinion, the law is stated: “ * * * Here the agreement does not attempt to compel the employer to join an employer organization, but it attempts to compel such employer, who works at the trade in competition with union members, to join an employee organization. That is clearly a proper labor objective, and is for the ‘mutual aid or protection’ of employees as provided in § 923 of the Labor Code, the section declaring the state policy on such questions. The effort to organize all barbers who work in the trade is clearly a legitimate interest of the barbers’ union. It is evident that an employer-worker is in competition with all other barbers who are not employers. Without being subject to union sanctions for violating the wages,, hours and conditions of employment imposed on union members, the employer-worker could gain a great advantage to the detriment of the union members.” Cafeteria Employees Union, Local No. 302 v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58; Coons v. Journeymen Barbers, etc., 222 Minn. 100, 23 N.W.2d 345. In the latter case the Supreme Court of Minnesota, discussing the Angelos case, concluded that such case stands for the — 520 — principle that it was a lawful labor objective to attempt to compel an employer-worker to become a member of the union. Plaintiffs cite Purcell v. Journeymen Barbers . and Beauticians International Union of America, Local 192-A, 234 Mo.App. 843, 133 S.W.2d 662, 668, to sustain their contention that the demand for the return of the union card was not a proper labor objective. ' This was an equity action decided by the Kansas City Court of Appeals, where the owner of a beauty shop sought to enjoin the picketing of her business by Journeymen Barbers and Beauticians International Union and the Hairdressers Guild, an organization of beauty shop owners. The court passed upon t.wo questions. The first question related to lawful picketing which is not an issue in the instant case. The second question was as to unlawful conspiracy to fix minimum prices for beauty work and to force plaintiffs to join the Hairdressers Guild and to agree on minimum prices fixed by them. In passing upon the latter question the court determined the purpose of the picketing and made this statement: “Was the purpose of the picketing, as plaintiff contends, to force plaintiff to join the Hairdressers Guild and to agree to minimum prices fixed by the Guild, or was it to further a genuine labor dispute between the Beauticians Union and the plaintiff with respect to wages, hours, or other conditions of employment?” The court stated if it were the latter then the union was employing legitimate means so long as the picketing was lawful and that was true even though, as an incident thereto, plaintiff's business should sustain injury. (Citing authority.) We think that this is not an issue in the instant case. The -question before us is whether or not it is a legitimate labor objective to enforce the written contract between plaintiffs and defendants’ union to join the union or peaceably surrender the union shop card. It has nothing to do with picketing or unlawful combinations between unions to force plaintiffs to join defendants’ union. The question of the removal of the union card was not before the court and we think this' case is no authority for plaintiffs’ contention. Safeway Stores, Inc., v. Retail Clerks International Ass’n, 41 Cal.2d 567, 261 P.2d 721, is relied upon by plaintiffs. This case, likewise, did not involve the removal of the union shop card as in the instant case. It was an action to enjoin striking activities of the defendants’ union from engaging in concerted activities to compel plaintiff to require union membership of its store managers in the local union or to bargain to that end with the store managers or with the union on their behalf. It will be noted in this case that by-laws of the local unions provided that only members not having the right to hire or fire shall be eligible to, or shall hold office. In other words, if the managers of plaintiff had been forced to join the union, their membership would have been a sterile membership. We think the courts of the different states, which have passed upon this question, almost unanimously have held that the demand of this kind of membership by a union constitutes an improper labor objective. The court held that the unions’ activities in seeking recognition for local retail store managers, who were supervisory employees, were not reasonably related to any legitimate interest of organized labor, were not in furtherance of any proper labor objective, and, as a matter of sound public policy, were enjoinable within equity jurisdiction of the court. It stated that the court had within recent years declared the public policy of the state within the particular field herein involved and that it was against public policy to force the managers to join the union. We have cited Riviello v. Journeyman Barbers, Hairdressers and Cosmetologists’ International Union of America, Local No. 148, 88 Cal.App.2d 499, 199 P.2d 400, 403, which passed upon the specific question in the instant case and held that it was a proper labor objective for a union to compel the employer who works at the trade in competition with union• members to join the organization. Under the facts in the Safe — 521 — way Stores, Inc., case, supra, where the membership in the union was a sterile membership there could be no question but what there was not a proper labor objective. Likewise, we think that public policy as to the question in the instant case has not been determined in Missouri, either by our Constitution or by legislative enactment, neither has such policy been determined by our courts as was stated in the California case. Plaintiffs cite Hughes v. Kansas City Motion Picture Machine Operators, Local No. 170, 282 Mo. 304, 221 S.W. 95. We think this case is clearly not in point. It was an action to enjoin picketing by a labor union against the owner and operator of a picture show. The court found that the picketing was of such a nature as to amount to a private nuisance; that it amounted to a boycott. The court made this statement on. page 99 of 221 S.W.-of the opinion: “* * * The courts of review of this state have declared peaceable picketing is lawful and cannot be enjoined; but the instances were where the legality of the act was determined with reference to the effect of the absence of intimidation by violence and threats, and not with reference to the harassment of the complainants and the damage to their business by the manner in which the picketing was done. Intimidation happened in the present case, as we have stated; and in consequence of it and of the propaganda conducted by the pickets in defaming the behavior of plaintiffs to organized labor, much damage was inflicted on them, * * ⅜» In a concurring opinion, Judge Graves made this statement: “* * * Tfrg reai question in this case is whether or not a man, under the law, can run his own business, or shall it be run for him by a local union ? * * * “* * * The meat of this case lies - in the one fact that this local union could not legally enforce its rule to the effect that no owner of a picture show business could operate his own machine, and enforce such rule by the picketing, and destruction of the business of any owner who would not assent to the rule.” We think this case is distinguishable from the instant case. Plaintiffs cite Dorchy v. Kansas, 272 U.S. 306, 47 S.Ct. 86, 87, 71 L.Ed. 248, in which the court stated: “The right to carry on business — be it called liberty or property— has value. To interfere with this right without just cause is unlawful.” This authority can be of little assistance to plaintiffs. The question this court must decide is, whether or not the written contract between the parties is enforceable. It does not deny plaintiffs the right to carry on their business but defendants’ unio.n merely contends that they have the right to withdraw their recognition of plaintiffs’ shops by withdrawing the shop card. They are not picketing. They are not- attempting to deprive plaintiffs from operating their shops. If the act of withdrawing the card is lawful the question of result and injury, which might follow the removal of the card, cannot prevent the enforcement of a legal contract. Plaintiffs cite Article I, Sec. 9 of the Constitution of Missouri, V.A.M.S. We think this does not aid plaintiffs. . In Foutts v. Journeymen Barbers, Hairdressers & Cosmetologists’ International Union of America, Local No. 105, 155 Ohio St. 573, 99 N.E.2d 782, the Supreme Court of Ohio passed upon the identical question now before this court. It was an equity action brought by the owner of a barber shop who works at the trade therein, against the same union, as in the instant case, to prevent the removal of a union shop card, under the same contract as involved in the instant case, because plaintiff would not accept a sterile membership in the union. The — 522 — court stated the law thus on page 785, of 99 N.E.2d : “In the instant case, we do not deem it necessary to determine whether it is a proper and lawful labor objective to compel an employer, working in competition with his employees, to join the employees’ union as an employer member with rights inferior to those of the employee members. “Where, as here, there is no contractual obligation to continue to recommend or approve the services of another, we know of no common-law or statutory principle of public policy .\vhich requires one, who is accustomed to recommend and approve the services of others, to continue to recommend and approve the services of someone whose services he no longer wishes to recommend or approve, regardless of the lack of merit in the reasons he may have for discontinuing his recommendation arid approval of those services. There may be limitations on the right Of such one 'td' criticize the services which he' no longer wishes. to recommend and approve but there is certainly no limitation on his right merely to discontinue' his recommendation or approval of those services. “Where one relies upon the recommendation and approval of another to build up his business without any agreement limiting the causes for which such recommendation and approval may be discontinued, such one necessarily runs the risk that such other may, without just cause, determine to discontinue such recommendation and approval.” The Supreme Court in this case held that as a matter of property rights and contract the union had the right to remove the card. It cites Rainwater v. Trimble, 1950, 207 Ga. 306, 61 S.E.2d 420, which passed upon the same questions as in the instant case and held that as a matter of contract the union had the right to remove its card. The Supreme Court of Colorado in Journeymen Barbers, Hairdressers, Cosmetologists & Proprietors International Union of America, Local Union No. 205, v. Industrial Commission, 128 Colo. 121, 260 P.2d 941, passed upon the same question as involved in the instant case but the statutory laws of Colorado declared the policy of the state as to employment relations and collective bargaining, and, for that reason, is not in point in the present case. The same is true in Wisconsin Employment Relations Board v. Journeymen Barbers, Hairdressers & Cosmetologists’ International Union of America, Local 379B, 256 Wis. 77, 39 N.W.2d 725, 726. In this case the state statute made it an unfair labor practise for an employer in concert with others “to contribute ‘financial support’ ” to any labor organization. Thus, the public policy of Wisconsin was determined by statute and is no authority in this case. It will be seen that the authorities of the different states on the questions involved are not in harmony. Of course, in many of the states public policy has been established by statute.. In Missouri, however, there has been no fixed public policy declared either in the Constitution, legislative enactment or by Judicial declaration. The cases cited from Missouri are not in point. The question as to the removal of a union shop card under a contract between the union and a barber who works at the trade wherein it is admitted that the barber has not complied with the written contract, under which the shop card was furnished, has never been before our courts for decision. In 31 Am.Jur. p. 878, Sec. 113, the law is stated': “The terms of the collective agreement, as included in an individual labor contract, ought not to be construed narrowly and technically, but broadly, so as to accomplish its evident aims and protect both the employer and the employee. It has been held that such contracts are to be construed precisely as contracts between individuals.” Under the written contract in the instant case plaintiffs have agreed to be governed — 523 — by the conditions contained on the back of the shop card and these conditions provide that plaintiffs will not only comply with the rules, regulations and constitution of the union, as it now exists, but such laws as may be made in the future for the government of the union. We think that a fair and liberal interpretation of the contract would require plaintiffs to conform to such laws made in the future which were legal and reasonable but would not bind the plaintiffs for all time in the future, to abide by illegal enactments of the union or. laws so unreasonable as not to have been within the contemplation of plaintiffs and the union at the time the agreement was made. ■ An examination of the decision of the courts in other states reveals that it is a proper labor objective to compel employers, who work at the trade in competition with union members to join an employee organization. Riviello v. Journeymen Barbers, etc., supra; Cafeteria Employees Union, Local No. 302 v. Angelos, supra; Coons v. Journeymen Barbers, etc., supra. The only possible exception would be the opinion in Safeway Stores, Inc., v. Retail Clerks International Ass’n, supra, which we think ’ is distinguishable upon the facts. This case was decided by the Supreme Court of California October 16, 1953. However, in the case of Los Angeles Pie Bakers Ass’n v. Bakery Drivers Local No. 276, 122 Cal.App.2d 237, 264 P.2d 615, 617, decided December 22, 1953, the court stated this law: “A union may take into membership ‘businessmen-workers’ who operate in an industry, field or trade in competition with organized workmen. Bautista v. Jones, 25 Cal.2d 746, 749, 155 P.2d 343; Cafeteria Employees Union [Local No. 302] v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58; Riviello v. Journeymen Barbers, etc., Union, 88 Cal.App.2d 499, 504-506, 199 P.2d 400. From these cases it is clear that the conventional employer-employee relationship need not exist in order that the worker have union membership and representation.” Following these decisions we hold there is no merit to plaintiffs’ first contention that the written contract was for an unlawful labor objective. And we hold that if the labor objective is valid, it is not made unenforceable because it might affect the collective bargaining rights of the parties or their right to contract. - Under plaintiffs’ first allegation of error, sub-head (b), it is contended that the trial court erred in dismissing plaintiffs’ petition for the reason that the union demands that plaintiffs join it is against public policy of Missouri and threats of coercion in furtherance of such demand are unlawful. To sustain this contention plaintiffs cite Dille v. St. Luke’s Hospital, 355 Mo. 436, 196 S.W.2d 615. This was a personal injury suit for damages suffered by plaintiff while a patient, resulting from negligence of the agents and servants of the hospital. The question was whether or not a charity such as the- defendant, should be answerable for the negligence of its agent on ;the ground of public policy. On page 619 of 196 S.W.2d, the court stated the law: “ ‘The term “public policy”, being of such vague and uncertain meaning,, and of such variable quantify, has frequently been said not to be susceptible of exact or precise definition; and some courts have said that no exact or precise definition has ever been given or can be found. Nevertheless, with respect to the administration of the law, the courts have frequently quoted and often approved of the statement that public policy is that principle of the law which holds that “no one” can lawfully do .that which has a tendency to be injurious to the public .or against the public good; * ⅜ * “Public policy”. has been said to. be synonymous with “policy of the law,’’1 and also has been defined as “the public good.” ’ 50 C.J. 857, 858. ‘The term “public policy” is one of broad significance and cannot be comprehensively defined in specific terms. One of the best definitions perhaps is that of Justice Story, which applied the term — 524 — to that which “conflicts with the morals of the time, and contravenes any established interest of society.” 1 Story on Const., 675. * * * An excellent definition is also found in Black’s Law Dictionary, where it is said: “The term ‘policy,’ as applied to a * * * rule of law * * * refers to its probable effect, tendency, or object, considered with reference to the social or political well-being of the state. * * * ” * ⅜ * > »' Gideon-Anderson Lumber Co. v. Hayes, 348 Mo. 1085, 156 S.W.2d 898. This was an action involving landlord and, tenant and the court held that contracts which contravene public policy cannot be made at all; that liberty to contract is’one of the rights protected by due process clause of the constitution. We have, heretofore, stated in our opinion that public policy is usually a legislative or- constitutional function but it is held that where neither the constitution nor 'the legislature has acted, the judiciary may determine public policy. In the instant case the .rights of the parties are contractual! It is the duty of this court to enforce such contract if it pertains to a lawful labor objective and we have held 'that it did. Therefore, we hold that it is not against public policy, either as declared by the constitution, legislature or by the courts, and we find there is no merit to this contention. We have commented upon most of the cases cited by plaintiffs and those we have not commented upon are cases where public policy has been declared by the legislature as in the cases cited from Massachusetts, Wisconsin and Colorado. The only opinions from states not controlled by statute which have passed upon the same facts as ■ in the instant case, are Ohio ’ and Georgia and they have -gone far beyond what we' are holding in the instant case. They hold that as a matter of contract, plaintiffs cannot recover. We find there is no merit in plaintiffs’ last contentions. Judgment affirmed. STONE, J., concurs in result. RUARK, J., dissents.