Millwrights Local Union No. 2484 v. Rust Engineering Co.

PARKER, Justice. This is an appeal from a temporary injunction obtained by The Rust Engineering Co., as petitioner, against the defendants, Carpenters District Council of the Sabine Area and Vicinity and Millwrights Local Union No. 2484. Such judgment and order provide: “It is also ORDERED, ADJUDGED AND DECREED that the Defendants, Carpenters District Council of the Sabine Area and Vicinity and Millwrights Local Union No. 2484, their officers, agents, members, representatives, servants, employees and those persons in active concert or participation with them be temporarily enjoined from, and that they shall desist from establishng and/or maintaining any picket or picket line at or adjacent to the entrances of The Rust Engineering Construction project located near Orange, Orange County, Texas, so long as an object and/or effect of such picket and/or picket line is to directly or indirectly to secure the disregard, breach or violation of valid subsisting collective bargaining ‘agreements between the Plaintiff and/or its subcontractors and the representatives of their emjijoyees in violation of Section 4 of Article 5154d of the Revised Civil Statures [sic] of the State of Texas.” The plaintiff will be referred to as “Rust” and the respective defendants will be referred to as “Carpenters Union” and “Millwrights Union.” First, we will consider the temporary injunction granted as against Carpenters Union. The trial court granted a temporary restraining order against both unions on November 3, 1967. This was a Friday. On Friday, November 3, 1967, the Honorable Ward Stephenson, attorney for Millwrights Union, requested the court to accelerate the hearing on the temporary injunction to Monday, November 6. This was done by the court. At the time of the hearing on temporary injunction, the trial court had no jurisdiction of Carpenters Union for the reasons hereinafter set forth. RULE 681: Temporary Injunctions: Notice No temporary injunction shall be issued without notice to the adverse party. RULE 124: No Judgment Without Service In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant, as prescribed in these rules, except where otherwise expressly provided by law or these rules. The Carpenters Union was not served with citation, did not accept or waive process or make an appearance by any pleadings as prescribed in the Texas Rules of Civil Procedure. D. H. Sartain, Jr. was served with citation together with a copy of plaintiff’s verified petition. He was a member of the Carpenters District Council, a delegate to the District Council and such Council, upon his request, authorized him to establish the pickets in question. He was not an officer in Carpenters Union. There is a bystander’s affidavit stating that Mr. A. B. Wheeler, David Sumrall and Mr. Sartain were present in the courtroom at the time the hearing was had. Wheeler was President of the Carpenters Union. Nevertheless, it cannot be said that the Carpenters Union is bound by the judgment of temporary injunction. The Carpenters Union was interested in the result of this litigation, but did not actively participate in the hearing or control the proceedings by anything in the record. There is no conclusive evidence to authorize this court to hold the trial court had acquired jurisdiction of the Carpenters Union under the principle set forth in American Indemnity Co. v. Fellbaum, 114 Tex. 127, 263 S.W. 908, 910, 37 A.L.R. 633, and Bragdon v. Wright, Tex.Civ.App., 142 S.W.2d 703. For this reason the judgment of temporary injunction against the Car — 286 — penters' Union is reversed and remanded. The Carpenters Union gave notice of appeal and filed its appeal bond in the trial court. Under Rule 123 T.R.C.P., the Carpenters Union shall be presumed to have entered its appearance to the term of the trial court in which the mandate of this court shall be filed. The foregoing disposes of Carpenters Union. The remainder of this opinion is limited to the temporary injunction against Millwrights Union. Rule 385(d) provides: Where the appeal is from an order granting or refusing a temporary injunction * * * the cause may be heard in the Court of Civil Appeals * * * on the bill and answer and such affidavits and evidence as may have been admitted by the judge of the court below. * * * In this suit, plaintiff filed its petition verified by affidavit and containing a plain and intelligible statement of the grounds for relief, complying with Rule 682 T.R.C.P. Such petition is not only a pleading but is an affidavit to be considered by the trial court on the application of Rust for temporary injunction. The word “affidavit” means the same thing in Rule 385(d) as it does in Rule 682. On this appeal, this court recognizes the principles clearly stated by the Supreme Court of Texas in Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, on page 519 (1961) as follows: The purpose of a temporary injunction is to preserve the status quo of the subject matter of a suit pending a final trial of the case on its merits. James v. E. Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959, 960. A trial judge therefore has broad discretion to grant or to deny a writ when the pleadings and the evidence show a probable right of recovery in the applicant and a probable injury to him if the writ is not granted. Transport Co. of Texas v. Robertson Transports, [Inc.,] 152 Tex. 551, 261 S.W.2d 549. A necessary corollary of that rule is that a trial judge abuses his discretion if he grants a writ when the evidence fails to furnish any reasonable basis for concluding that the applicant has a probable right of recovery. To furnish a reasonable basis for the conclusion the evidence need not establish that the applicant will finally prevail in the litigation, Transport Co. of Texas v. Robertson Transports, [Inc.,] supra, but it must, at the very least, tend to support a right of recovery. Southwestern Greyhound Lines, Inc. v. Railroad Commission, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235. Rust’s original petition is verified and in affidavit form containing allegations as follows : “II. “The United Brotherhood of Carpenters & Joiners of America, AFL-CIO, Millwrights Local Union No. 2484, and Carpenters District Council of the Sabine Area and Vicinity are affiliated labor organizations and unincorporated associations and have their duly authorized agents and representatives engaged in representing and acting for and on behalf of employee members in Orange County, Texas and vicinity, and are the exclusive bargaining representatives of all employees employed by the Plaintiff in Orange County, Texas and vicinity, engaged in any work over which the jurisdiction of the Defendants, United Brotherhood of Carpenters & Joiners of America, AFL-CIO and Millwrights Local Union No. 2484 is recognized by the Building and Construction Trades Department of the AFL-CIO. “III. “At all times material hereto, Rust Engineering Company has been engaged in the construction of a paper mill near Orange, Texas, pursuant to a contract with the Owens-Illinois Company. In — 287 — pursuance of the obligations of Rust Engineering Company, it has entered into various agreements of subcontract with other corporations and organizations to perform certain portions of the construction work for the Owens-Illinois Paper Mill. “IV. “In pursuance of the contract between Rust Engineering Company and the Owens-Illinois Company, the Plaintiff and its subcontractors have employed approximately thirteen hundred (1,300) craftsmen represented by various labor organizations including the Defendants herein. “V. “Rust Engineering Company, on or about June 24, 1960, entered into a collective bargaining agreement with the International Brotherhood of Carpenters & Joiners of America, AFL-CIO, such contract which according to its provisions has been renewed from year to year and is currently in effect and is binding upon all Defendants named herein. The aforesaid collective bargaining agreement has been and will continue to be and remain in full force and effect under its terms. “VI. “Among other things, the aforesaid collective bargaining agreement provides as follows: ‘The Employer agrees that there will be no lock-out and the Union agrees that there will be no stoppage of work or any strike of its members either collectively or individually until said dispute or misunderstanding has been referred to the International Office of the Union and the Home Office Representative of the Employer.’ “VII. “For approximately one year Plaintiff has been a dues paying Specialty Member of the Constructors Association of the Sabine Area, hereinafter referred to as ‘CASA’. At all times material hereto, Plaintiff has by virtue of its membership in said CASA, been subject to the provisions of that collective bargaining agreement between the Sabine Area Construction Committee of said CASA and the Carpenters District Council of the Sabine Area and Vicinity representing Millwrights Local Union No. 2484, Defendants herein, executed on or about May 5, 1967. Among other things, the aforesaid collective bargaining agreement provides as follows: ‘There shall be no stoppage of work because of any proposed changes to this Agreement or any disputes over matters relating to this Agreement.’ ” The foregoing allegations are undisputed. The collective bargaining agreement of May 5, 1967 was before the trial court. Also the collective bargaining agreement of June 24, 1967 was before the court. The allegations in Paragraph IV are undisputed. Rust further alleges in its verified petition: “VIII. “Since on or about 10:00 p. m. on Thursday, November 2, 1967, and continuing to date, Defendants United Brotherhood of Carpenters & Joiners of America, AFI^CIO; Carpenters District Council of the Sabine Area and Vicinity ; and Millwrights Local Union No. 2484, acting singularly and in concert, deliberately, willfully and intentionally breached, conspired and combined to breach, and encouarged [sic], induced, obtained, ordered and permitted breaches of the aforesaid collective bargaining agreements by establishing pickets at the entrances to the Plaintiff’s construction project for Owens-Illinois in violation of the aforesaid collective bargaining agreements. The aforesaid illegal actions by the Defendants, and each of them, continue hnd will continue unless restrained by this Court, thereby causing — 288 — immediate, substantial and irreparable injury, loss and damage to the Plaintiff. At all times material hereto, the Plaintiff has, and continues to, fully abide by and comply with all of the various obligations and responsibilities under the aforesaid collective bargaining agreements. “IX. “As a direct and proximate result of the aforesaid illegal actions by Defendants, United Brotherhood of Carpenters & Joiners of America, AFL-CIO; Carpenters District Council of the Sabine Area and Vicinity; and Millwrights Local Union No. 2484, on or about 10:00 p. m. on Thursday, November 2, 1967, and continuing to date, there has been a cessation of the construction on the said Owens-Illinois Paper Mill project by the employees of the Plaintiff and by the employees of other contractors working on the Owens-Illinois Paper Mill project. “X. “By such actions, the said Defendants have violated Article 5154d of the Revised Civil Statutues [sic] of the State of Texas in that they have formed an obstacle to the free ingress to and egress from the place of business of the Plaintiff and its subcontractors; and picketed for the purpose of and have induced persons and all other employees working at said construction site, including Plaintiff’s subcontractors’ employees not to enter the said premises in violation of the respective collective bargaining agreements pertaining to said persons, employees and subcontractors’ employees.” Mr. Sartain testified the pickets were placed under authority of the District Council by him. The pickets are not placed without authority of the District Council. Pickets don’t go up unless the District Council authorizes them. Signs were placed up. They were Millwrights signs with Mr. Sartain’s name on them. After a temporary restraining order was issued and served upon Mr. Sartain at 4:00 p. m. on Friday afternoon, he consulted his attorney, Mr. Stephenson. Upon the advice of Mr. Stephenson, he removed three or four Millwrights at the plant, one of them on the picket line walking the picket, telling them to refrain from picketing and to stay back completely away from the picket line. Referring to Paragraphs IX and X of plaintiff’s petition, it is plain that the purpose of the picketing was to cause their own union and other unions to violate their collective bargaining contracts and not pass the picket lines. The legislature of the State of Texas in Section 4, Article 5154d, V.A. C.S. declares this to be unlawful. This is a public policy of the State of Texas which is supplemented by other statutes and decisions of the Supreme Court of Texas. There is no evidence of any argument between unions or any argument between Rust and any union, or between subcontractors under Rust and any union. In the Statement of Facts, Mr. Stephenson, as attorney for the Millwrights, stated to the court: “Now, at the outset I should like to tell the Court on behalf of the Millwrights there is no dispute over the Agreement and there is no request that the Agreement be changed. We have no dispute which would come within this latter Contract and Agreement which I referred to, which incidentally was signed on the 4th day of May, 1967. (Emphasis ours) “In this particular Agreement, which is the Local agreement, there is set out a schedule of wages to be paid, and it sets out that as of this time millwright journeyman receive $5.08 an hour, millwright foremen, $5.58, and millwright general foremen, $5.83; then it provides for certain percentages of increase. “There has only been two pickets, properly picketing.” Rust, in its verified petition, further alleged : — 289 — “XI. “The agreement between Rust Engineering Company and the Owens-Illinois Company requires the completion of all said construction by the Plaintiff not later than a certain date and the Owens-Illinois Company will incur substantial damage if the construction is not completed by that date. As a result of the cessation of work and construction of the said paper mill project directly and proximately caused by the aforesaid illegal actions by the Defendants, the Plaintiff anticipates and therefor alleges that unless the Defendants are immediately restrained by this Court it may reasonably anticipate that said construction will not be completed within the time as required by the contract between the Rust Engineering Company and the Owens-Illinois Company and that such illegal actions by the Defendants will therefore result in immediate, substantial and irreparable injury, loss and damage to the Plaintiff. D. H. Sartain, Jr. is an agent and representative of one of the Defendants and may be found for service at 213 S. Market Street, Orange, Texas. “XII. “The total value of the existing contract between The Rust Engineering Company and the Owens-Illinois Company is in excess of Fifty-Eight Million Dollars. If employees represented by the Defendants herein are not required to report and/or return to the construction project and Defendants, Carpenters District Council of Sabine Area and Vicinity and Millwrights Local Union No. 2484, are not required to remove this illegal picket, the entire construction will continue to be halted. Unless immediately enjoined by this Court, the aforesaid illegal actions by the Defendants will result in irreparable injury to the Plaintiff, the exact amount of which the Plaintiff is unable to ascertain, but damages in excess of Twelve Thousand Dollars ($12,-000.00) per day have resulted and will continue to result from a complete cessation of work on the Owens-Illinois Paper Mill project. Damages have resulted and will continue to occur before notice can be served upon the Defendants and a hearing held by this Court upon the Plaintiff’s application for a temporary injunction. “The Defendants are wholly unable to respond in damages of the magnitude involved in this case and accordingly, immediate, substantial and irreparable injury, loss and damage will result to the Plaintiff unless said illegal actions by the Defendants are immediately restrained and enjoined by this Court. “XIII. “For all of the foregoing reasons, the Plaintiff has no adequate remedy at law and requests restraint by this Court of the Defendants’ illegal actions which are prejudicial to them. Under the principles of equity and the provisions of Article 5154d of the Revised Civil Statutues [sic] of the State of Texas, the Plaintiff is entitled to relief herein prayed for.” The allegations in Paragraphs XI, XII and XIII are not disputed. Millwrights Union has urged that the trial court had no jurisdiction to hear this matter according to the decision of the U. S. Supreme Court in Ex parte George, 371 U.S. 72, 83 S.Ct. 178, 9 L.Ed.2d 133 (1962). Reading this opinion, the opinion of the Supreme Court of Texas reported in 163 Tex. 103, 358 S.W.2d 590, it is clear that George was a member of the National Maritime Union of America, which union was engaged in a labor dispute with the American Oil Company. In the instant case, all parties agree that the collective bargaining agreement between Rust and Millwrights is valid and subsisting. Ex parte George is not applicable to the instant case. The jurisdiction of the trial court to grant the temporary injunction has not been pre-empted by Federal law. In Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. — 290 — 267, 9 L.Ed.2d 246 (1962) it was held that since the suit was brought upon a collective bargaining agreement, the State Court had jurisdiction and action was not preempted by Federal law even though the act complained of constituted an unfair labor practice. The existence of this exception to the pre-emption doctrine was reiterated by the Supreme Court in Local 100, of United Ass’n of Journeymen and Apprentices v. Borden, 373 U.S. 690, 693, 83 S.Ct. 1423, 10 L.Ed.2d 638 (1963). There was no violence in the picketing. There was no mass picketing. It was peaceful picketing but it loses its protection under the constitutional guaranty of free speech because one of its purposes was contrary to public policy. Public policy of Texas is expressed in Section 4 of Article 5154d V.A.T.S., other general laws of the State of Texas and authoritative decisions of courts of this State. In Hughes v. Superior Court of the State of California, etc., 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985 (1950), the Supreme Court unanimously upheld a state court order enjoining peaceful picketing against the contention that the injunction was invalid because it infringed the constitutional right of free speech. See also International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local 309 v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995 (1950). Cain, Brogden & Cain, Inc. v. Local Union No. 47, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, 155 Tex. 304, 285 S.W.2d 942 (1956), involved a suit by a contractor for injunctive relief against picketing. The district court granted the injunction and the appellate court vacated the order. In reversing the ruling by the Court of Civil Appeals and reinstating the temporary injunction, the Texas Supreme Court indicated as follows: “It is now well settled that peaceful picketing loses its protection under the constitutional guaranty of free speech if one of its purposes is contrary to public policy. N.L.R.B. v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284. Moreover, it matters not whether the public policy violated be declared by the legislature * * * or by the courts, as it was in the Ritter’s Cafe, the Hughes and the Hanke cases.” In the Cain case, Carpenters and Joiners Union etc. v. Ritter’s Cafe, 149 S.W.2d 694 (Tex.Ct.Civ.App.1941) is approved. Also see Office Employees International Union Local No. 129 v. Houston Lighting & Power Co., 314 S.W.2d 315 (Tex.Ct.Civ.App.1958, writ ref., n. r. e.). There is nothing in the record contrary to the allegations of Rust except hearsay evidence, or ambiguous uncertain testimony, indefinite as to who or what was actually involved. In its finding of fact, the trial court found as a fact the statements of fact alleged in the verified petition of Rust. The conclusions of law of the trial court were: 1. This court has jurisdiction of the cause in question in the light of decisions of the Supreme Court of the United States and in particularly Smith v. Evening News Assn., 371 U.S. 238 [195], which rejected the holding of San Diego Building Trades Council v. Garmon, where the conduct of the Defendants is in breach of a valid collective bargaining contract, even though such conduct might be an unfair labor practice. 2. Defendants, Carpenters District Council of the sabine area and vicinity, and Millwrights Local Union No. 2484 were engaging in picketing which directly breached their collective bargaining agreement with the Plaintiff and were inducing the breach of collective bargaining agreements between other employers and the designated bargaining representatives of their employees in violation of Section 4 of Article 5154d of the Revised Civil Statutes of the State of Texas, and — 291 — the state court decisions interpreting such statute. 3. Plaintiff has fully abided by and complied with all of the various obligations and responsibilities under the collective bargaining agreements with the Defendants. 4. Since the Defendants did not deny by pleading or otherwise this specific and controlling allegations of the verified petition, especially those pertaining to the irreparable harm being incurred by the Plaintiff, I find that Plaintiff does not have an adequate remedy at law and would continue to incur such loss and damage unless the Plaintiff were granted the relief prayed for in its petition. We agree with the trial court’s conclusions of law. This court holds the pleadings and the evidence show a probable right of recovery in the applicant, Rust, and a possible injury to it if the temporary injunction had not been granted. No abuse of discretion on the part of the trial judge is shown by his granting the temporary injunction. The judgment of the trial court granting a temporary injunction as against the Millwrights is affirmed. The temporary injunction against Carpenters Union is disposed of as hereinbefore set forth.