Baton Rouge Bldg. Trades Council v. T. L. James & Co. , 201 La. 749 ( 1942 )

As stated in the opening paragraph of the majority opinion, "This is an action for specific performance of a contract". The so-called contract upon which plaintiffs rely is copied in the opinion written by the trial judge, which opinion is adopted in full by the majority as the opinion of this court, from which I dissent.

In March, 1941, T.L. James Company, Inc., a private corporation organized under the laws of this state with its domicile and principal place of business in Ruston, Lincoln Parish, Louisiana, and L.J.N. Keliher, a resident of Dallas, Texas, doing business as the Keliher Construction Company, entered into a contract with the Department of Highways, represented by its director, W. Prescott Foster, for the construction of a highway bridge referred to in the contract as the "Morganza Floodway Project", the bridge to be built in the Parish of Pointe Coupee. The contract price for the building of the structure was $3,412,292.95, the work to be completed within 500 "contract days".

Construction work was begun on the project soon after the contract was signed. The contractors brought with them to work on this project a crew of expert skilled men who were members of defendants' organization and who had been working for them some 10 or 12 years. A majority of these men were not then affiliated with any labor union. They were strictly nonunion men. Much less than half of them were members of certain labor organizations, and a few of them were affiliated with certain labor unions in the City of Baton Rouge, which city is about 35 miles from where the bridge is being built in the Parish of Pointe Coupee.

In the employment of laborers to build the project, the contractors employed nonunion and union men indiscriminately. The project was what is usually referred to as an "open shop job". Mr. Keliher, one of the contractors, who had general supervision of the work, testified that it had taken him a number of years to build up the organization which he had, which organization he considered a most excellent one.

There is nothing to show — in fact, it is not intimated — that the union men in the crew objected to the employment of nonunion men to work on the project, or that the non-union men objected to the employment of union men. Apparently the union men and the non-union men worked together harmoniously.

The right of laborers employed on a particular project to join or not to join a labor union is not involved in this case, nor is the right of labor unions to bargain collectively an issue. The main issue involved is whether the contractors entered into a closed shop contract with the labor unions of Baton Rouge, Louisiana, represented by Jay D. Weaver.

All the testimony, including that of Weaver himself, shows that this controversy was brought on, not by the employees of the defendants, but by the Baton Rouge Building Trades Council and some 14 Baton Rouge local unions, all represented by Weaver. The testimony conclusively shows that, within a very short time after the contract for building the bridge was let to the defendants, the Baton Rouge Building Trades Council and the Baton Rouge unions, all represented by Weaver, adopted a resolution authorizing him to approach the contractors for the purpose of negotiating a closed shop agreement on the project. Clearly the idea of converting this project into a "closed shop job" originated in the minds of the representatives of the Baton Rouge unions. I quote the following extract from Weaver's testimony, found on pages 23 and 24 of Volume II of the record:

"When this job was awarded and let, the first negotiation meeting was the result of a labor board meeting. It was in that labor board meeting that I, as spokesman for the Baton Rouge Building Trades Council asked Mr. Keliher and Mr. Bill James for a meeting to negotiate a closed shop agreement on that project in accordance with the balance of the work that was being done in our territory. * * *

"At that time and in the presence of Mr. Keliher and Mr. James, I asked Mr. Walker [construction foreman] for an appointment for the Baton Rouge Building Trades meeting with him for the sole purpose of negotiating a closed shop agreement on the project. He gave us an appointment the next afternoon at two o'clock, and that day we drove out there [to the bridge], a body of representative business agents of the different crafts, and we met with Mr. Walker. Mr. Walker told us as representative of Mr. Keliher and Mr. James that they were satisfied the way they were and they had nothing to talk to us about, that they were not in any mood to negotiate any kind of agreement, and they dismissed us."

As shown by Weaver's testimony, the negotiations for a closed shop were brought about as the result of a labor board meeting. All the testimony shows that what the labor unions wanted was a closed shop job on this project. Mr. Weaver, who represented the plaintiffs throughout, frankly admitted that a closed shop was what the unions wanted and what they started out to get. He frankly admitted that such was his purpose in seeking negotiations with the contractors and that such was the purpose of the labor unions which he represented.

Mr. A.P. Harvey, Commissioner and Director of Labor for the State of Louisiana, who was present at, and participated in, all the conferences between the contractors and the representatives of the labor unions, testified that his understanding was that the paramount purpose of the unions was to bring about a closed shop condition on this project. As shown at page 87, Volume II of the record, Mr. Harvey was asked:

"Q. But specifically what was the demand or demands of labor? A. Well, in my observations made during the conferences the demand of labor for a closed shop on that project was the paramount demand."

At page 106 of the record, Mr. Harvey was asked:

"Q. I believe you said earlier in your testimony that the paramount issue in the conference was as to whether or not there would be a closed job on this project? A. That is correct."

Mr. Harvey was then asked:

"Q. Just what does the term ``closed shop' mean, in a general way? A. Well, when an employer agrees to a closed shop condition, he then agrees to terms of employment for all employees on the job, which means that those employees shall affiliate with the respective crafts unions having jurisdiction of that particular type of labor."

Mr. Harvey further testified that, when a closed shop condition prevails on a job, nonunion men are not permitted to work on that job.

It clearly appears, I think, that one of the dominant ideas in the minds of the representatives of the labor unions was financial gain for the unions. Their petition sets out that, unless the contractors are compelled to live up to their alleged closed shop contract, the unions will be damaged from a financial standpoint. In the alternative, they pray for damages amounting to $750,000.

The testimony shows that, when nonunion men join a union, they are required to pay initiation fees ranging all the way from $10 to approximately $100, and it was estimated that the average for the crew on this project would be $40 or $50 per man. The testimony shows further that each union man is required to pay monthly dues.

This suit was not brought by, for, and on behalf of the laborers on the job. The petitioners are the Baton Rouge Building Trades Council, alleged to be composed of 14 named labor unions, all of Baton Rouge, Louisiana, and the business agents of those unions. It is not alleged that any of the men employed on the job were members of any of these unions.

The petitioners are the "Baton Rouge Building Trades Council, composed of the following crafts and members, all of whom are affiliated with the American Federation of Labor" (14 local unions of Baton Rouge are mentioned by name and number), and "the business agents and representatives, for and on behalf of each of said locals, and individually, and the members of each of said locals individually, all of whom are domiciled in the Parish of East Baton Rouge, State of Louisiana, and all of whom are represented herein through their duly appointed representatives and business agent, Jay D. Weaver".

Plaintiffs alleged that Jay D. Weaver, a resident of Baton Rouge, "is petitioners' duly authorized representative and business agent, respectively", and was duly authorized to "act herein" by a resolution of the Baton Rouge Building Trades Council.

They alleged in Paragraph 5 of their petition that on July 22, 1941, the contractors and the various "labor union locals composing the Baton Rouge Building Trades Council" entered into negotiations with reference to adjusting matters of wages, hours, and working conditions "between the petitioners and the contractors", and "specifically with reference to said contractors granting a ``closed shop' agreement to the said Baton Rouge Building Trades Council and its affiliated union locals and respective members", and (Paragraph 6) that these negotiations were in the form of conferences between the contractors and the various business agents and representatives of said locals and council, presided over by A.P. Harvey, Commissioner and Director of Labor for the State of Louisiana, with the consent and approval of W. Prescott Foster, Director of the Department of Highways, and that (Paragraph 7) after approximately four conferences "an agreement and contract was proposed by the Director of Labor, which agreement and contract was satisfactory to the contractors, the representatives of Labor, and the Department of Highways, and which agreement and contract was signed by the contractors and your petitioners on July 25, 1941".

Plaintiffs alleged in Paragraph 9 of their petition that on July 28, 1941, their duly authorized agent called on the contractors at the site of the project and requested them "to carry out and fulfill and make further arrangements to carry out and fulfill the agreement and contract which had been signed and executed between petitioners and contractors, and particularly to organize and qualify the employees then presently working on said project, as provided in paragraph 3 of the contract, into the respective crafts of the Baton Rouge Building Trades Council", in accordance with the provisions of said contract and agreement, and that (Paragraph 10) "said contractors then and there refused to comply with and fulfill the contract and agreement which it [they] had negotiated, signed and executed;* * * that said contractors then and there refused to recognize the ``closed shop' agreement and contract which it [they] had signed with your petitioners and repudiated and breached the said contract and agreement in its entirety".

Petitioners further alleged (Paragraph 11) that thereafter, on August 1, 1941, they sought and obtained a conference with the contractors, "at which time all peaceful and amicable means were stressed to emplore upon the said contractors to fulfill and comply with the terms of the agreement and contract which the said contractors had signed, and breached as aforesaid". They alleged (Paragraph 13) that the work on said project is in progress in violation of the contract, and that (Paragraph 14) the Baton Rouge Building Trades Council is composed of 14 different crafts of locals with membership totaling 3710; that its members are skilled in their respective crafts and are the most "efficient employees that can be employed or found", and that they are ready and willing "to perform in accordance with the provisions of said contract; that they are organized for the purpose of bettering not only labor conditions but to elevate the standards of work and thereby increase the prestige of their employers;* * * that they are united and organized and have business agents and representatives to secure work for their respective members and that the contractors alone openly breached said contract and agreement, * * * which has caused and is causing large damages and irreparable injury and harm to the Baton Rouge Building Trades Council and its respective unions, members and personnel".

It is alleged in Paragraph 15 that the refusal of the contractors to "abide, fulfill and comply" with the provisions of the contract "is keeping innumerable numbers of men and workers idle who would ordinarily be now employed and amounts to a loss of revenue for the respective union, and thereby jeopardizes the probability of employment of its respective members and increases unemployment among the members; that it amounts to a loss of work and revenue to the various members of the respective unions belonging to the Baton Rouge Building Council, which injuries are irreparable and damaging to your petitioners, and which damages cannot be measured by pecuniary standards".

The allegation that plaintiffs are suffering irreparable injury due to the breach of contract is repeated in Paragraph 16; and Paragraph 17 reads as follows: "That the only peaceful means of settling this controversy immediately, and the only remedy at law, is by specific performance of the above mentioned contract."

It is further alleged in Paragraphs 19 and 20 that the court should compel defendants to comply with the contract and should issue a rule nisi "commanding defendants to show cause * * * why the said contract * * * should not be complied with and fulfilled, and that said contractors be ordered, directed and commanded to comply with the provisions of said contract; that defendants should be restrained, enjoined, and prohibited from employing any person, firm or corporation in violation of the provisions of said labor contract and agreement".

In Paragraph 21 it is alleged in the alternative that, should the court decide that petitioners are not entitled to injunctive relief, "Petitioners show: That it is estimated that it will take 2 1/2 years to complete said project; that the labor will amount to over One Million Dollars on said project; that as a result of said contractors, breaching said contract and agreement entered into with your petitioners, and for the reasons aforesaid, your petitioners will suffer and are entitled to recover damages in the sum of $750,000.00".

The petitioners pray for judgment against defendants, "recognizing the validity and binding character of the contract sued upon as to all of the parties thereto"; and pray further that a rule nisi issue, directed to the defendants, to show cause why they should not be ordered and directed to abide by the terms and conditions of said contract, and "specifically ordering and commanding the said contractors to negotiate a ``closed shop' agreement with your petitioners".

They further pray that defendants, their agents and representatives, "be restrained and prohibited from performing any work, expending any money or other items for the performance of any work, or employing any persons, firms or corporation in violation of the provisions of said labor contract and agreement", in connection with the construction of said project. In the alternative they pray for judgment in the sum of $750,000.

The defendants, through counsel, came into court and admitted that they had entered into a contract with the Department of Highways to build the bridge referred to as the "Morganza Floodway Project", as alleged by plaintiffs, and that work on the project was in progress at the time the suit was filed. They admitted that they had engaged in a conference with representatives of various labor union organizations of Baton Rouge, and that the conference was attended also by Mr. Foster, Director of the Department of Highways; Mr. Hammond, attorney for that department; Mr. A.P. Harvey, Commissioner of Labor; Mr. Gordon Walker, superintendent of the work, and Mr. Jay D. Weaver.

They alleged that Jay D. Weaver, representing the plaintiffs, stated that there was considerable dissatisfaction in defendants' organization with respect to labor, and that said Weaver "insisted that agreements be signed immediately by respondents and plaintiffs for the closed shop"; that the representatives of respondents "absolutely refused to sign any agreement for a closed shop, but stated that they would be glad to continue negotiations working toward a closed shop if the employees of the project desired a closed shop". They alleged that, in each of the conferences held, either some representative of defendants or Mr. Keliher himself, one of the defendants, "stated and in so stating voiced the attitude of all your respondents, that under no consideration would respondents enter into any agreement for a closed shop unless the employees on the job so desired;" that, after this attitude on the part of the contractors was thus definitely stated, it was declared that a vote of the employees should be taken as to what they desired, and that the conference was adjourned until the next day, and that in the meantime "a vote by secret ballot was taken of the employees on the job, and the employees by free expression of their independent will, voted overwhelmingly that they did not want to join the union".

They alleged that, despite the vote which had been taken, "Jay D. Weaver claimed that the vote was not representative and still insisted that agreements be signed for a closed shop regardless of the vote", and that both Mr. Keliher and Mr. James "flatly refused to enter into agreement for a closed shop particularly in view of the fact that their employees had indicated that they did not want a closed shop".

They further alleged that Commissioner of Labor Harvey requested that negotiations be continued and asked that he be permitted to "draw up some kind of schedule of procedure under which some formal agreement might later be worked out", and that Mr. Harvey prepared his "recommendations", and that on the following day Mr. Keliher, representing defendants, again stated to Jay D. Weaver and to Mr. Harvey, in the presence of others, "that no contract or contracts for a closed shop would be executed by any of your respondents unless the employees signified their willingness to recognize a closed shop". Defendants alleged that their representatives, particularly Mr. Keliher, repeatedly stated to all parties concerned that the contractors "had no objection whatever to all employees on the job joining unions and that if all the employees desired that a closed shop condition should exist, your respondents would be glad to recognize that closed shop condition when and if it came into existence".

Defendants do not deny that they, by and through Mr. Keliher, approved and signed the instrument prepared and presented by Mr. Harvey, which they refer to as "recommendations" and which plaintiffs refer to as a contract for a closed shop. But they deny over and over again in their answer that the instrument prepared by Mr. Harvey was intended to be, or was in fact, a contract or a closed shop agreement. They alleged that they did not understand it to be such at the time they signed it, and that, before it was signed, they repeatedly told Weaver, representing the unions, and Mr. Harvey, Commissioner of Labor, that under no circumstances would they enter into a closed shop agreement without first getting the consent of the employees on the job to a closed shop condition, which consent had not been obtained at the time the instrument was signed; that, according to their interpretation and understanding of the instrument, its purpose was to leave the door open for further negotiations in case it should be found that defendants' employees approved a closed shop condition, and that the purpose of the instrument was to afford the employers and the representatives of the unions equal opportunity for the polling of the employees as to whether they desired that there should or should not be a closed shop.

Defendants alleged in the alternative that, if the court should decide that the parties intended by signing the instrument to enter into a contract for a closed shop, the contract was invalid and unenforceable in law for the following reasons:

"(a) The contract is unilateral in character and without consideration in that only the contractors (your respondents) agree to perform or agree to refrain from performing any act or acts.

"(b) Employees of respondents would be required, if said contract is enforced, without their consent and by compulsion to become members of the plaintiff union.

"(c) To enforce said purported contract would be against public policy and good morals and particularly against the provisions of the Wagner Act, which expressly recognizes the right of employees to join, or not to join, any union or unions, or to form any union or unions as they see fit."

Defendants alleged further that specific performance of the purported contract cannot be equitably enforced when it requires involuntary and compulsory action on the part of the employees, who did not sign the contract or consent to the contract and who were not parties to it; that the effect of a ruling ordering the specific performance of such a contract would be to force employees, who were not parties to it, to join a particular union or unions, or else lose their jobs.

The trial judge overruled each of the exceptions filed by defendants. On the merits, the court held that the plaintiffs and the defendants had entered into a valid and binding contract for a closed shop, and rendered judgment in favor of plaintiffs and against defendants. The rule nisi previously issued was made absolute, and accordingly a preliminary injunction was issued, restraining and prohibiting defendants "from recognizing and maintaining an open shop condition in relation to the employment and use of labor on said project in contravention to the terms of the said written instrument involved in this controversy", and prohibiting and restraining defendants from "employing any workers on said project after the date of the consummation of said contract except through the Baton Rouge Building Trades Council and its affiliated crafts".

Counsel for the respective sides devote considerable space in their briefs to a discussion of the various exceptions filed by defendants, which exceptions were overruled by the trial court. But, under the view I take of the case on its merits, I shall not discuss those exceptions. I think the judgment on the merits is wrong and should be reversed.

The issues involved, which clearly appear from the pleadings which I have reviewed at length, are, first, whether the instrument prepared and submitted to the parties by Mr. Harvey, Commissioner of Labor, and signed by them, was intended to be, and is, a valid agreement and contract for a closed shop affecting the labor employed in the erection of the bridge, and, second, whether, if it was so intended, it is binding upon the parties and enforceable under the law.

Plaintiffs sue to enforce a contract. They alleged, and their counsel now argue, that the labor organizations and the defendants entered into a contract for a closed shop condition pertaining to this project, and that the instrument prepared by Mr. Harvey as his "recommendations", which instrument was approved by the parties, evidences that contract. If, as contended by defendants, there was no such contract entered into, the plaintiffs have no case. The burden of proving that there was a contract was upon the plaintiffs. I think they failed to discharge that burden.

The testimony shows beyond question that defendants did not intend to enter into a contract for a closed shop without the consent and acquiescence of their employees, and shows beyond question also that, at the time they signed and approved the "recommendations" prepared by Mr. Harvey, they had not obtained their employees' approval of a closed shop condition.

I refer to the instrument prepared by Mr. Harvey as his "recommendations" advisedly, because in the preamble to that instrument he says, "Therefore, I make the following recommendations to both participants."

Mr. Keliher testified emphatically that, when he signed and approved the instrument prepared by Mr. Harvey, he did not construe it to mean what plaintiffs say it means; that he did not intend to enter into a closed shop agreement, and that he did not understand that the instrument was intended to evidence a closed shop contract. His testimony to this effect, corroborated as it is by the evidence and circumstances which we shall presently refer to, is convincing and must, I think, be accepted as true.

During the conferences relating to the establishment of a closed shop, Mr. Keliher stated over and over again to the labor representatives, in the presence of Mr. Harvey and others, that he would not object to a closed shop if his employees consented to such condition, but that he would under no circumstances agree to a closed shop without the consent of his men. He stated further that it had taken a number of years to build up the organization he then had, which he considered a good one; that some of his men who had been with him for 10 or 12 years were not members of any labor union — in fact, objected to labor unions —, and that he would under no circumstances agree to a closed shop without their consent because, if he did, these men would have to join the unions or be discharged, and that he could not afford to disrupt his organization by such procedure. Both Mr. Harvey and Mr. Weaver, who are familiar with labor union rules, testified that, if defendants had consented to a closed shop on the job, all their present employees who were eligible to membership in the labor unions would have to be discharged if they refused to join the unions. They testified that what a "closed shop" means is that all non-union men are barred from employment. The testimony shows conclusively that the contractors were endeavoring to avoid being put in a position where it would be necessary for them to discharge some of their most valuable employees in case such employees refused to join the unions.

The testimony of Mr. Keliher that he made it clear to all parties concerned that he had no objection to a closed shop if his employees concurred, and that he would not agree to such a condition without their consent, is corroborated by that of Mr. Harvey, Mr. Weaver, Mr. Hammond, Mr. James, Mr. McCloskey, and others.

Mr. Harvey, speaking of a conference during which the Governor was present, said: "Well, the Governor had asked me to sit in and see if this thing could not be straightened out. Mr. Keliher said he wasn't going to make his men join any union unless they wanted to join of their own free will, and he said that he didn't think anybody else could make them do it."

The testimony shows that, after Mr. Keliher, who attended the conferences as a representative of the contractors, had made it clear that he had no objection to a closed shop provided his employees gave their consent, it was suggested that the conference adjourn until the next day in order to give Mr. Keliher an opportunity to go to the site of the project and there ascertain the wishes of his employees.

Mr. Keliher testified that he undertook to find out by a poll what their wishes were in the matter. He said that he got them together in a group and told them that he had had some discussion with representatives of union labor at Baton Rouge regarding a closed shop condition for the job, and that he told them that, "in so far as the management was concerned, we only had one thing in mind, and that was simply this: to maintain the organization — all of the employees who were then on the job for the duration of the job; that we had absolutely no objection to any employee belonging to any organization that he wished to join; and that we had absolutely no intention of requiring them to join any organization in order to hold their jobs or to continue in our employ. I told them that we were prepared to do whatever they wanted to do, and, generally speaking, I put the whole thing right in their lap". He said he told them that he wanted them to decide for themselves without regard to what he or Mr. James might prefer. He said he prepared, and the clerks delivered to the employees, ballots for the voting. He said he told the men, "if you want to join the union, write yes; and if you don't want to join the union, then write no. If the majority of you want to join the union and the management thinks it advisable to make a closed shop on this job and you want to join the union under these circumstances, put a check on your ballot". He said that, after the men had voted, the clerks collected the ballots, which showed that "Of the skilled labor, 18 voted yes; 73 voted no; 71 checked. Of the combined vote, 39 voted yes; 106 voted no; and 93 checked".

According to Mr. Keliher's poll, 18 of the skilled employees wanted to join the unions, and 73 of them did not want to join. However, out of the 91 skilled laborers who voted either for or against joining the unions, 71 signified that, if a majority desired to join and if the management thought it advisable to close the shop, they were willing to go along with the majority and the management. The combined vote of the skilled and the unskilled laborers showed 39 wanted to join the unions and 106 did not want to join. Of these 145, 93 signified a willingness to go along with the majority if the management thought it advisable to close the shop.

When the conference was resumed on the following day, Mr. Keliher stated that his poll showed that a vast majority of his employees did not want to join a union, and for that reason he would not agree to a closed shop condition.

It is argued by plaintiffs' counsel that the poll taken by Mr. Keliher shows that a majority of the laborers were willing to join the unions, because a majority of them "checked". The employees voted by secret ballot, no one knowing what the result of the voting would be. No employee knew whether or not there would be a majority in favor of joining the unions, and their checks merely signify a willingness to join the unions if a majority so desired and if the management thought a closed shop condition was desirable. But, according to the poll, a majority did not want to join the unions. Evidently, if the men who checked had known that a majority did not want to join the unions, they would not have checked. Naturally, those who checked did not want to go against the majority and against the wishes of their employers, because to do so would necessarily mean that, if a closed shop were ordered, they would lose their jobs.

Mr. Keliher testified, and his testimony is not disputed, that a labor representative present at the conference suggested that apparently the only way to force a closed shop was to "strike the job", and that he had replied that it was all right with him, and that the conference was about to "blow up". Thereupon, Mr. Harvey, who was present, intervened and suggested that there might be a chance left to get the matter straightened out. The testimony shows that the representatives of labor objected to the methods which Mr. Keliher had used to take the sentiment of his employees, and that they wanted to find out in their own way whether or not the employees were in favor of joining the unions and of a closed shop. Mr. Keliher objected to any interference with his men by the labor representatives. Since Mr. Keliher had all along signified his willingness to consent to a closed shop in case his men so desired, the only controversy was whether the poll taken by him revealed the true sentiment of his employees. Since Mr. Keliher was satisfied in his own mind that a majority of his men did not want to join a union and since he was unwilling for the representatives of the unions to go out on the job and interview the men personally, as they insisted upon doing, a deadlock resulted. It was then that Mr. Hammond, attorney for the Department of Highways, who was present at the conference, made the following suggestion:

"My suggestion was — they were getting nowhere fast, and it would break up in a free for all — that the labor people were not agreeable to adopting the method Mr. Keliher had adopted, and Mr. Keliher was not agreeable to their going out there and trying to get them to sign up a petition. I suggested that they let Mr. Harvey discuss individually with each side what their idea was as to how they should proceed and let Mr. Harvey go to his own quarters and make recommendations, and when he did make those recommendations they were not to be binding on anybody until either one or both of them agreed on it." (p. 17) * * *.

"My suggestion was that Mr. Harvey be requested to submit recommendations of the procedure that should be adopted to get the sentiment of the workers from the laborers' viewpoint." (p. 20.)

It was then that Mr. Harvey prepared the instrument which was subsequently approved and signed by the parties. Mr. Keliher was present and heard the suggestion made by Mr. Hammond. He therefore understood that Mr. Harvey was to prepare recommendations "of the procedure that should be adopted to get the sentiment of the workers from the laborers' viewpoint".

Mr. Harvey himself seems to have understood that the disagreement was as to the method of getting the sentiment of the employees. He was asked:

"Q. Now, at the conference on the afternoon of July 24, which I understand was the date on which you prepared these recommendations, but before the recommendations were prepared, the only matter in dispute was how the employees would be interviewed or canvassed, was it not? A. That was the reason for the dissolution of the conference. Mr. Keliher had already done that by his method and when the union wanted to go out on the job and use their methods, guaranteeing him that they would bring in petitions with his workers' names signed to it, why, he objected to that; and that was the principal thing that broke it up."

Mr. Keliher testified that, when he signed the instrument, he had no idea that it was intended as a contract for a closed shop. He said that, in reading the instrument prepared by Mr. Harvey, he construed Section 1 thereof with Section 3. He pointed out in his testimony that Section 1 provides "That the Management recognize a closed shop condition on this project", and that Section 3 provides "That the Unions will take into their respective crafts unconditionally and for the duration of this project all of the present employees". He said that he understood Section 1 to mean that the management had no objection to a closed shop, which was in keeping with his repeated statements to that effect, and understood that his approval of this section was conditional upon his employees' approval of the provisions of Section 3. In other words, if his employees approved the provisions of Section 3, they would join the unions, and the management would then agree to sign a contract for a closed shop. He testified that he did not consider his approval of the instrument to mean that he was abrogating the position which he had always taken and which he had clearly and definitely explained to the representatives of labor and Mr. Harvey, which position was that he would not consent to a closed shop unless his employees were willing to join the unions and consent to a closed shop condition.

He explained further that Section 3 of the instrument went no further than to signify the willingness of the unions to take into their respective crafts his present employees, and that this section had no force or effect unless his employees were willing to join the unions and, in fact, did join. In other words, he said that he understood that the door was left open for further negotiations.

His testimony to this effect is corroborated by his subsequent conduct. It is admitted that, immediately following the agreement of all parties to sign the instrument prepared by Mr. Harvey, Jay D. Weaver, representing the labor organizations, withdrew from his pocket two documents, which he requested Mr. Keliher to sign. Admittedly these documents were formal contracts for a closed shop. One of them provided for an agreement between the defendants and the Baton Rouge Building Trades Council, and the other for an agreement between the defendants and the United Brotherhood of Carpenters and Joiners of America. The first contained the following provision: "We, the firm of T.L. James, Keliher Construction Co., agree to recognize the jurisdictional claims of the Baton Rouge Building Trades Council Baton Rouge, Louisiana, to work the hours, pay the wages and abide by the rules set up by the Affiliated Crafts in which any work of our Company is being done, and employ members of the Baton Rouge Building Trades Council only."

The second document contained a similar provision pertaining to the United Brotherhood of Carpenters and Joiners.

Mr. Keliher refused to sign these instruments and stated to Mr. Weaver that he would not sign a contract for a closed shop but would abide by the agreement which he had already consented to sign.

The fact that Mr. Weaver prepared these documents and submitted them to Mr. Keliher for his signature clearly shows, I think, that Weaver himself did not understand that the instrument prepared and submitted by Mr. Harvey was intended to be a final and binding contract for a closed shop. This conclusion is strongly indicated by a clause found in the prayer of plaintiffs' petition. Among other things, plaintiffs prayed for judgment "specifically ordering and commanding the said contractors to negotiate a ``closed shop' agreement with your petitioners".

After Mr. Keliher refused to sign the two documents presented by Mr. Weaver, it was agreed that Keliher and Weaver should go to Pointe Coupee Parish, where the men were at work on the bridge, and that the two should interview the men together. As to what was the purpose of the interview, Mr. Keliher and Mr. Weaver do not agree. Mr. Keliher says that his purpose was to find out whether his men wanted to join the unions. Weaver says that his purpose was to take them into the unions and sign them up. The fact that Keliher went with Weaver indicates that his purpose was to cooperate with the latter in finding out what the men desired to do. Mr. Weaver testified that he went to the side of the project, and, accompanied by Mr. Keliher and Mr. James, went out to interview a pile driving crew. He said: "When we approached the pile driving crew Mr. Keliher hollered at Blackie Wright [the foreman of the crew] to shut down and bring his crew over to us. When they approached us, Mr. Keliher made the statement that this happened to be Mr. Weaver, from the Baton Rouge Building Trades Council, that we had been in negotiation, and that it was the attitude of organized labor that this should be a closed shop job, and asked them what they thought about it. Again I blew up."

This clearly indicates that Mr. Keliher was trying to find out what his employees thought about the closed shop. If he had thought that he had already committed himself to the closed shop proposition, naturally he would have done no more than inform his men that he had done so. Mr. Weaver testified that Mr. Keliher told the men in his presence that he had no objection whatever to their joining the unions, and that all he wanted to know was what they thought about it. Weaver testified that Keliher told the men that, if a closed shop was ordered, they would have to abide by the union rules, which prohibited work on Saturdays at the regular rate of pay, and that the management could not afford to pay double time for Saturday work, and that, if they joined the unions, the job would have to be shut down all day on Saturdays. Weaver strenuously objected to these statements by Keliher. Keliher said that he thought his men should be informed of all the facts.

As clearly indicating Mr. Keliher's attitude in the matter, Mr. Weaver, speaking of what happened when he went with Mr. Keliher to interview the men on the job, testified as follows:

"Q. What did he tell you about the contract at that time? A. He did not have a contract.

"Q. He told you that? A. Yes. He told me his interpretation of this agreement, the recommendation from the Commissioner of Labor, was that he and I would talk to the fellows and if they wanted to go into the union, all right, and if they did not, it was all right. He told them that right in front of me."

Weaver displayed a different spirit altogether. His idea was that the men had no right to be consulted as to whether there should or should not be a closed shop on the job or whether they should join the unions or not join. He testified that at the close of the day the carpenters and the pile driving crew, who were the only ones consulted that day, came in and said that they did not want to join the unions. Speaking of Mr. Keliher's attitude toward the men, Mr. Weaver testified at page 51: "He never mentioned the fact to any crew that he had signed the closed shop agreement. He did tell them if they wanted to join the union that we would take them in unconditionally."

He was asked:

"Q. You were not prevented from asking them to join? A. I was not there to ask them. I was there for the purpose of signing them up. The thought of asking them never entered my mind.

"Q. I believe you testified on direct examination that the carpenter crew while you were out there reported that they wanted no part of the union at all? A. That is correct."

Weaver's testimony clearly demonstrates Keliher's attitude toward the men and clearly demonstrates also his own attitude toward them. Weaver's idea was that Keliher had the right to sign a closed shop agreement without regard to the wishes of his men and thereby force them to join the union or else be discharged. In other words, Weaver's attitude apparently was that an employer has a right, if he sees fit, to force his employees to join a union by signing a closed shop agreement and then telling them that he has done so.

For an employer to sign a closed shop agreement for a job on which non-union men are then employed would be wholly unfair to them, because they would either have to join the unions or lose their jobs. Such conduct would amount to coercion and would violate the provisions of the Wagner Act, which protects the freedom of employees to join or not to join a union as they see fit.

The testimony makes it perfectly clear that Mr. Keliher never intended to abandon, and did not in fact abandon, the position which he took at the beginning and which he repeatedly expressed during and after these conferences, which was that he had no objection to a closed shop provided that his employees approved such condition; that he wanted to play fair with his men, and that under no condition would he agree to a closed shop without their consent. Mr. Harvey testified that such was Mr. Keliher's attitude from the beginning to the end of the conferences.

Weaver testified that he understood that the unions had been granted a closed shop contract. Conceding that he did think so, it definitely appears that the parties misunderstood each other and disagreed in their interpretation of the instrument which they signed. This being so, there was no meeting of the minds and therefore no contract.

Paragraph 4, Article 1945 of the Revised Civil Code, which is found under the heading "Of the Interpretation of Agreements", provides: "That it is the common intent of the parties — that is, the intention of all, — that is to be sought for; if there was a difference in this intent, there was no common consent, and consequently, no contract."

Article 1798 of the Revised Civil Code reads as follows: "Offerand acceptance. — As there must be two parties at least to every contract, so there must be something proposed by one and accepted and agreed to by another to form the matter of such contract; the will of both parties must unite on the same point."

My opinion is that in this case there was no common consent, and consequently no contract for a closed shop.

Defendants' alternative defenses are that, even if it be true that the parties intended the instrument which they signed to be a contract for a closed shop, such contract is not binding and cannot be enforced by law for the reason that it shows on its face that it is unilateral in character and without consideration, and that, if defendants had attempted to create a closed shop condition without the consent of their employees, they would have acted contrary to the provisions of the Wagner Act. 29 U.S.C.A. § 151 et seq. While I think these defenses are good, I shall not discuss them for the reason that, in my opinion, there was no contract entered into for a closed shop.

I respectfully dissent from the majority opinion.