Truck Drivers, Chauffeurs, Warehousemen & Helpers, Local No. 941 v. Whitfield Transportation, Inc. , 154 Tex. 91 ( 1954 )

ON rehearing

Mr. Justice Garwood

delivered the opinion of the Court.

On motion for rehearing the first opinion handed down in this cause is withdrawn and the present opinion substituted therefor.

The respondent-plaintiff Whitfield Transportation, Inc., a motor carrier, doing no intrastate business in Texas but carrying freight between El Paso and points west of this state, sued certain other interstate carriers, with El Paso offices, which had theretofore been delivering to and receiving from respondent-plaintiff interstate freight at El Paso for further transportation, as interstate commerce, west or east, as the case might be. The object of the suit was in substance to enjoin these defendant carriers “and all other persons acting by or in concert with them” from suspending their above-mentioned practice, which, at least to some degree, they appear to have suspended following the picketing of the facilities of the respondent-plaintiff, Whitfield, in New Mexico by a union of Teamsters affiliated with the petitioner Union. The difficulty between the respondent-plaintiff and the New Mexico union is only remotely involved, since no picketing at El Paso by anyone is alleged, and the suit is not directed at enjoining the New Mexico picketing. Neither the petitioner nor any other union or representative or member thereof was made a defendant, despite allegations that the defendants were “participating---in a secondary boycott against plaintiff” with the A. F. of L. Teamsters’ Union “and/or other labor unions unknown to plaintiff.” However, the essence of the alleged cause of action against the defendant carriers, as evidenced by the combined pleadings, proof, fact findings of the trial judge and the judgment, was the alleged conduct of our petitioner, its officers, agents and members, in threatening and coercing the defendants to discontinue their erstwhile connections at El Paso with the respondent-plaintiff, Whitfield. The effect of such alleged coercive conduct would be what is termed in law a secondary boycott against the respondent-plaintiff.

The six defendant carriers were somewhat less than half of the carriers with whom respondent-plaintiff Whitfield did similar business at El Paso. The petitioner Union had collective bargaining contracts with all the defendant carriers and with about half of the others. Five individuals, who were executives or agents of one or more defendant carriers, were also made defendants.

The sworn answers of the defendants, all represented by the same firm of attorneys, denied the allegations of the respondent-plaintiff, especially as to any conspiracy or concerted action or boycott against the latter, and in substance alleged that their suspension of business with the respondent-plaintiff was due to the refusal of their employees to handle the corresponding freight.

The petitioner Union intervened with permission of the court and assumed the position of a defendant. It pleaded to the jurisdiction of the court in that the legality of the conduct of the defendant carriers was a matter for determination of the Interstate Commerce Commission or the Railroad Commission of Texas and later raised the point of exclusive jurisdiction of the federal tribunals upder the Labor Management Relations Act of 1947 (29 U.S.C.A., Sec. 151 et seq.). It further pleaded an adequate remedy at law on the part of the respondent-plaintiff, denied the existence of any conspiracy or combination between the defendants or between the petitioner Union and the defendants with the object of boycotting the respondent-plaintiff and denied that the petitioner Union had threatened any of the defendants. It affirmatively alleged that any suspension of business on the part of the defendant carriers with the respondent-plaintiff was in the exercise of their own good business judgment and that the petitioner Union

“has advised several of Defendants of the fact that Plaintiff (respondent Whitfield) has refused to deal with other affiliates of the Teamsters’ Union in the State of New Mexico and elsewhere and that it is advised that said other Teamsters’ Local Unions, engaged in a labor dispute with Plaintiff, are engaged in lawful picketing of Plaintiff at Albuquerque, New Mexico, and Intervenor (petitioner union) would show that it has a right to advise Defendants of such fact.”

Following a temporary restraining order, the case was tried to the court. Testimony was introduced by the respondent-plaintiff and the petitioner Union but not by the defendants, whose counsel also forebore to cross-examine the witnesses testifying. The trial court rendered judgment for the respondent-plaintiff, making in its decree sundry express findings of fact including the following:

“Members, agents, employees and representatives of the union combined to formulate and put into effect a plan to cause a secondary boycott to be instituted and carried on by defendants against plaintiff at El Paso, Texas, with respects to interline freight; that union by threats, express or implied, coerced the defendants into establishing and carrying on the said secondary boycott, defendant’s action in this respect being put into effect pursuant to signal given by the Intervenor and kept in effect from that time until the issuance of the temporary restraining order issued in this cause; and that Intervenor, its agents, employees, representatives and members, and defendants, did combine and engage in said secondary boycott, and pursuant thereto did divert from plaintiff interline freight at El Paso, Texas, which otherwise would have been delivered by defendants to Plaintiff; * * * and that in connection with all of said acts of defendants and intervenor, their agents, representatives, members, and employees, there was a concert of action among them, and all of them.”

The court concluded that the foregoing, and the consequent interference with commerce and injury to the respondent-plaintiff which were likewise found to exist, constituted

“a violation of the anti-trust laws of the State of Texas, and of the provisions of Article 5154f of the Vernon’s Revised Civil Statutes of Texas, 1925, as amended and said acts on the part of defendants and intervenor are illegal, and should be enjoined, * *

The injunction restrained the defendants, “their officers, agents, employees and servants, and Intervenor, * * * its officers, agents and members and all persons in active concert or participation with all parties herein restrained * * *” from (in effect) continuing to suspend any normal business with the respondent-plaintiff, except “if, after tendering it to plaintiff under preceding provisions of this injunction, plaintiff is unable to transport it, or deliver it in the ordinary course of business.”

None of the defendants appealed, but the petitioner Union did, the judgment of the trial court being affirmed by the El Paso Court of Civil Appeals. 259 S.W. 2d 947.

We granted writ of error upon the point that the Labor Management Relations Act, supra, as applied in Garner v. Teamsters, etc. Union, 346 U. S. 485, 74 Sup. Ct. 373; Building Trades Council v. Kinard Construction Co., 346 U. S. 933, 74 Sup. Ct. 373; and Capital Service, Inc., v. National Labor Relations Board, 347 U. S. 501, 74 Sup. Ct. 699, had preempted for the appropriate federal tribunals controversies of the type here involved and so held in our original opinion, but, on reconsideration of the matter upon the motion for rehearing and amicus curiae briefs of the Attorney General of Texas and numerous others, have concluded that we were in error.

Whether we were correct or not in the view that the nature of this particular controversy (as gathered from the pleadings, evidence and findings) fell so' clearly within the terms of the relevant portion of the Labor Management Relations Act of 1947, 29 U.S.C.A., Sec. 158(b) (4) as to render inapplicable the “express power” limitation of the Garner line of cases, this limitation is not the only one to be considered. The Garner opinion observes with evidently studied purpose that in that case it did not anpear “that the federal Board (N.L.R.B.) would decline to exercise its powers once its jurisdiction was invoked.” (346 U. S. 485, 74 Sup. Ct. 164) This limitation, repeated in the per curiam opinion in the Kinard Construction Co. case, 346 U. S. 933, 74 Sup. Ct. 373, was clearly recognized also in the recent decision of the Supreme Court of New Jersey in Busch & Sons, Inc., v. Retail Union of New Jersey, 15 N. J. 226, 104 A. 2nd 448. True, the court in the latter case applied the rule of the Garner case to the controversy before it (which, incidentally, was one of picketing and much closer to the Garner case on the facts than the instant case) and actually overruled the argument for retention of state jurisdiction based on the alleged doubt as to whether the N.L.R.B. would take jurisdiction. However, the decision refused to apply the limitation in question only because no positive reason appeared in the particular case why the Board might not take jurisdiction. 104 Atl. 2nd 448, 452, Syl. par. 5.

In the instant case the positive reason exists and appears in the formally declared view of the Board that it has no jurisdiction. Matter of Local Union No. 878, etc., and Arkansas Express, Inc., 92 N.L.R.B. 255. That decision involved facts strikingly similar to the facts of the instant case, including particularly the matter of participation in the events said to constitute the boycott by the union member employees of the allegedly boycotting employers. True, the Busch case, supra, speaks in terms of a discretionary refusal of the Board to exercise actual (“express”) powers (Art. 160 (b) ), but we perceive no practical difference between such a refusal and one based, as in the Arkansas Express, Inc., case, supra, upon the Board’s view that it was not authorized to act. The resultant difficulty for a complainant urgently seeking a remedy is the same in both instances and would seem to make it as “futile” to apply to the Board in the one case as in the other. See the Kinard Construction Co. decision, supra.

We thus proceed to the merits of the case. The petitioner Union contends that there is no support in the evidence for the findings and judgment of the courts below, and we conclude this position to be well taken.

Obviously there was no conspiracy as between the defendants themselves, and we do not understand the respondent-plaintiff to assert that there was. The case for the respondent-plaintiff, as stated both in the findings of fact and the briefs of the respondent-plaintiff and amici curiae is one of a boycott by the defendants under coercion exercised by the petitioner Union upon the defendant carriers through the executives of the latter. As stated in the motion for rehearing (in connection with the jurisdictional question first above mentioned)

“We say, for the reasons set out above, that this Honorable Court erred in concluding by its own argument rather than by a reference to the record, that this secondary boycott was one where the Union induced or encouraged employees of defendant carriers to act, instead of being one where the coercion was applied to the employer itself * *

Among the “reasons set out above” is the statement that

“Petitioner (the petitioner Union) notified supervisory employees of the defendant (s). The Trial Court found and recited its judgment ‘that Union by threats, express or implied, coerced the defendants, into establishing and carrying on the said secondary boycott * * *. This finding is sustained by the uncontradicted evidence, and is conclusive of the fact that this secondary boycott was operated by coercion applied to employers, namely, defendant trucking companies, their officers and managing agents.”

The record, including the statement of facts which has been carefully read and reread, convinces us that not only is a finding of coercion of the management of the defendants by the union not sustained by the uncontradicted evidence, but that, on the contrary, it is without support in the evidence.

The much emphasized fact that an executive of the petitioner Union notified the defendant carriers that the respondent-plaintiff was picketed at points in New Mexico by an affiliated union is no evidence of coercion. That the picketing existed at the time is, indeed, sustained by the uncontradicted evidence, so that the statement was merely one of a fact, which obviously might, and in all probability would, have been learned about by the defendants within a brief time through their own union-member employees, if not otherwise.

We said, and properly so, in North East Texas Motor Lines, Inc. v. Dickson, 148 Texas 35, 219 S.W. 2d 795, 798, that “while peaceful picketing is free speech, it is more than free speech; it is economic coercion as well.” But this is quite different from saying that for a union officer merely to telephone an officer of corporation A, with which the union has a bargaining contract, and tell him the fact that corporation B is being picketed, is coercion, economic or otherwise, still less illegal coercion. And even coercion by picketing may be a protected exercise of the right of free speech under the decisions of the Supreme Court of the United States, as we recognized to the point of voiding an injunction in Ex Parte Henry, 147 Texas 315, 215 S.W. 2d 588, and this, although the picketing had the additional effect of causing the employees of a railroad serving the picketed premises to refuse to operate trains thereto.

Considerable stress is also laid on the testimony of the officer of petitioner Union (Bone) who directed that the defendant carriers be advised of the New Mexico picketing, to the effect that, while the object of the communication was to keep these companies advised of developments affecting transportation conditions, he at the same time hoped and expected that freight be diverted by those defendants as a result of the information thus imparted. In response to further questions he explained that he though that when the union employees of the defendant carriers knew about the picketing, they would, as union men, refuse to handle freight in which the respondent-plaintiff was interested. This was obviously no violent assumption on his part. He could well have had the same hopes and expectations without any information being given to the carriers, because surely their union employees would promptly hear about the picketing one way or another. The position of the respondent-plaintiff, as heretofore demonstrated by the words of its own counsel (when arguing the jurisdictional question) is that this is not a case of boycott pressure by the petitioner union through the employees of the defendant carriers. Otherwise Sec. 158 (b) (4) of the Labor Management Relations Act and the “philosophy” of the Garner line of cases would more likely be applicable. What Mr. Bone hoped or expected the union employees of the defendant carrier might do is thus beside the point. These thoughts of Mr. Bone were not evidence of any coercion exercised upon the executives, whatever may have been their probative value as to the matter of influencing the employees.

The fact that, about a week prior to the New Mexico picketing, the petitioner union participated, through officers or a committee, in a meeting of the Teamsters’ Union “Joint Council No. 71,” in which there also participated representatives of the local New Mexico union later conducting the picketing, and the further fact that the controversy between the latter union and the respondent-plaintiff was discussed in the meeting, are no evidence that the petitioner union or anyone else later coerced the management of the defendant carriers into boycotting the respondent-plaintiff. At most this merely confirms the already admitted fact that the petitioner Union knew about the New Mexico picketing by its affiliate when it occurred.

The additionally emphasized testimony for the respondent-plaintiff of its witness, defendant Ike Young, who was or had been an agent of one or two of the defendant carriers, to the effect that he “understood” he was being subjected to “an implied threat” of some sort from the Union is no evidence of coercion by the latter and, indeed, was admitted only “as against the defendants of whom he is agent” (he was agent for only one when he testified). According to his testimony he was not even called by the Union, but “I was advised indirectly that, through one of my employees, rather, that there was a picket line at Whitfield’s place of business at Albuquerque. I called the Teamsters’ Union here at El Paso, and I think I talked to Mr. Thomas, and confirmed that fact.” Evidently his original informant was one Cavender, “my dock foreman,” whose connection, if any, with the petitioner Union does not appear from his own or Mr. Young’s testimony, and according to Mr. Young, the Cavender information was merely “confirmed” by the union upon Young’s own enquiry. The only fair interpretation of Mr. Young’s testimony is that in no instance was he told anything except “that there was a picket line at Whitfield’s place of business at Albuquerque.” His own private inference that he was being somehow threatened by the Union is not evidence of coercion by the petitioner Union, even as against the one defendant carrier he represented at the time he testified. His testimony, incidentally, disclosed that his “understanding” or desire to play “good politics” with the Union was only one motive for diverting freight from the respondent-plaintiff, the other being that he “wanted that freight to get delivered — and didn’t want it to get stuck behind the picket line up in Albuquerque some place.”

The one item of testimony that has reasonably close logical relationship to the matter of coercion by the petitioner Union is the statement of Richard Harris, dock foreman of respondent-plaintiff and, of course, its witness. He testified that Mr. Ike Young abovementioned and a Mr. James Young, who was a rate clerk of the defendant Southern Express, told him over the telenhone “that the union had called him and told him that he ought to divert freight from Whitfield because they were tied up * * Doubtless such a statement would be something in the way of persuasion as distinguished from a statement of fact, although it was apparently not the “uncontradicted evidence” which the respondent-plaintiff says supports the trial court’s findings, since it was flatly contradicted by Ike and James W. Young respectively, the former being a witness called by the respondent-plaintiff. As regards the petitioner Union, the testimony was obviously hearsay and whether objected to or not when tendered, was without probative force. Texas Co. v. Lee, 138 Texas 167, 157 S.W. 2d 628; Winn v. Federal Land Bank of Houston, Texas Civ. App., 164 S.W. 2d 864, writ of error refused.

And to say that the declarations are incompetent as against the petitioner Union is, under the facts of this case, to say that they are not competent to sustain the findings upon which the injunction is based. Those findings were findings that the petitioner Union coerced the defendants. How can it be said that the evidence is incompetent as against the party allegedly doing the coercing and yet is competent to show that the same party did coerce? We think it cannot. Moreover, the position of the defendants is relatively so little adverse to the position of the respondent-plaintiff that we cannot properly call the testimony in question competent as proof of an admission against interest of an adverse party as against that party. The position of the defendants is in effect that while their business with the respondent-plaintiff was in fact curtailed, their employees rather than the management did the curtailing or, in other words, that the operations of the defendants were to this extent controlled by certain of their employees below management status. Assuming this to be true, the employee action was obviously something that could only be hostile, rather than congenial, to the management, so that the plea of the defendants is thus essentially an affirmative claim of being coerced by their own employees. It would thus be of no great significance to the defendants that the coercion which they assert should be found by the court to come direct from union headquarters, and thus the statements allegedly made by the Youngs to the witness Harris were not admissions against interest in the true sense. That this is so is confirmed by the conduct of the litigation by the defendants, who, as stated, introduced no evidence, cross-examined no witnesses and did not appeal from the injunction. Plainly the real issue in the case lay between the respondent-Plaintiff and the petitioner Union. Of course, the alleged statements would have been competent if given by the Youngs themselves as witnesses, but, as stated, they were testified to only by an employee of the respondent-plaintiff, whose testimony was repudiated Under oath by the Youngs.

In summary, the evidence discloses no more than that the petitioner Union did what it never denied doing — advising the defendants of the New Mexico picketing. This is not a violation of any statute of this state. If the case were one of picketing the defendants, which, as stated, we have recognized as itself an act of coercion, though also partaking of the character of speech, there might be a different result, because the act of coercion would be established and the only question would be whether the coercion was legitimate coercion. But, as we view the instant record, there is no evidence of coercion by the Union upon management. The whole case for the respondent-petitioner hangs on what the union executives told the defendants about the New Mexico picketing. If they had said nothing, and the defendants had proceeded as they did, there would have been no claim of union coercion upon management, but at most a claim of union encouragement of employees of the defendants to bring about a boycott. The statement that the New Mexico picketing existed, as it did, and that the Union considered it lawful, is not to be taken as a threat just because a threat, if made, might conceivably have aided the union cause.

From the above conclusions it follows that, so far as the petitioner Union, its officers, agents and members are concerned, the injunction must be dissolved; and although, as stated, the defendants did not appeal, the same result should follow as to them. The rule that a reversal upon appeal by a party does not justify a reversal in favor of non-appealing parties is not invariable. Lockhart v. A. W. Snyder & Co., 139 Texas 411, 163 S.W. 2d 385; Saigh v. Monteith, 147 Texas 341, 215 S.W. 2d 610. Here the injunction was granted on the theory that the petitioner Union coerced the defendants. To hold that there is no evidence of coercion and thereby dissolve the injunction as against the petitioner Union while yet leaving the injunction in effect against the allegedly coerced defendants is to ignore substance in order to respect form, to absolve the petitioner Union of the charge of coercion and at the same time leave it convicted of the same offense, because the defendants did not choose to appeal.

The judgment of both courts below are reversed, and the injunction is dissolved.

/

Associate Justice Walker not sitting.

Opinion delivered December 15, 1954.