Kinloch Telephone Co. v. Local Union No. 2 of International Brotherhood of Electrical Workers

CARLAND, Circuit Judge (after stating the facts as above). We agree with the trial court that the contract between the appellants and their employees required arbitration of any dispute which the evidence may show existed between the appellants and their employees, and that the committee referred to in the contract was intended to be a committee on the part of the employees composed of employees of appellants, and not a committee of the local union to which said union employees of appellants might belong, or a committee composed of the members of the Conference Board of Local Unions, and that neither a proper construction of the contract nor in common fairness or reason is there any obligation on the part of appellants to pay the union dues of their employees, or to see that such dues are paid, or to discharge men who do not pay such dues, although it is clear that this is one of the chief ostensible reasons for calling the strike. We also agree with the trial court in finding that the strike was called in a studied and concerted effort on the part of appellees to unionize the business of appellants, or, in other words, to compel them to convert their business from an open shop into a closed shop. We further agree with the trial court that appellees, as members, officers and agents of the International Brotherhood of Electrical Workers and as individuals, are causing, [248] maintaining, and supporting the strike in question upon wholly feigned' and insufficient grievances, with the aim and intent to compel appellants to unionize their business; that the result of such action upon tire part of appellees has been to cause the contract existing between- appellants and its employees to be breached by such employees without sufficient reason or excuse in law or in fact, and, further, that appellees threaten to cause other of appellants’ employees to bréale their contract with them; and that appellees are seeking to attain the results above stated by advice, persuasion, and inducements, bottomed upon labor unionization and union obligations. The trial court was of the opinion upon the facts as stated that, laying aside section 20 of the Clayton Act (38 Stat. 738 [Comp. St. § 1243d]), the case of Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 38 Sup. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461, clearly entitled the appellants to a temporary injunction, but it was of the opinion that the Clayton Act did not pass under judgment in the Hitchman Case, as that case, although decided three years after the Clayton Act took effect, was commenced seven years before that time. The form of relief asked for in the Hitchman Case, however, operates only in futuro, and the right to it must be determined as of the time of the hearing. Duplex Printing Press Co. v. Deering et al., 254 U. S. 443, 41 Sup. Ct. 172, 65 L. Ed. -, decided by the Supreme Court January 3, 1921, and since the decision of .the court below in the present case. Therefore the Supreme Court in the Hitchman Case must have considered the efféct of the Clayton Act on that case. Eight is thrown upon the Hitchman Case by the language used by Justice Brandéis in his dissenting opinion in the Duplex Case. He said: “Unlike Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, there is here no charge that defendants are inducing employees to break their contracts, nor is it now urged that defendants threaten acts of violence.” The only inference to be drawn from this language is that the Hitch-man Case established the law on the facts appearing therein, notwithstanding section 20 of the Clayton Act. We are therefore of the opinion, in view of the decision of the Supreme Court in the Duplex Case, that the trial court erred in holding that section 20 of the Clayton Act forbids the issuance of an injunction in the present case. In the Duplex Case it was decided that section 20 is limited to the employees affected regarding their own employment;, and does not confer privileges upon all members of a labor organization to which they might belong. It was also decided in the same case, if we interpret the decision correctly, that while any one may quit their employment even though a contract exists, yet they may not peacefully persuade others to break their contracts in order to gain their ends, and the Clayton Act does not legalize such interference. The appellees, who were not employees of appellants, persuaded some of the employees under contract to break the same, were attempting to persuade others to do likewise, and threatened to have the telephone operators break their contract. The employees testified in this case that they had no dispute with their employers, and especially is this true in regard to the249 women, who had a separate contract which appellees threatened that they would cause to be broken. The object and purpose of a temporary injunction is to maintain the status quo. The issuance of such an injunction generally rests in the sound discretion of the trial court, and that discretion will not be interfered with by an appellate court as to the facts, unless there has been a serious error committed in-the consideration of the same. The law, however, as at present established when applied to the facts herein stated, fully warrants the issuance of a temporary injunction. It is therefore ordered that the order appealed from be reversed, and the case remanded to the court below, with instructions to issue a temporary injunction in accordance with the views herein expressed.