Dallas General Drivers, Warehousemen & Helpers v. Wamix, Inc.

Mr. Justice Smith

joined by Justice Griffin dissenting.

I respectfully dissent.

This is a suit for damages in the nature of a tort action where the trial court, in the exercise of its discretion, has granted temporary ancillary injunctive relief for the purpose of maintaining the status quo and preventing irreparable injury pending a trial on the merits.

That the action by Wamix is a suit for damages is admitted by petitioners. The Court of Civil Appeals has held, contrary to the contention of petitioners, that the trial court properly retained jurisdiction of this case, in that it had jurisdiction over a suit for damages, and that exclusive jurisdiction had not been vested in the National Labor Relations Board under the terms of the Labor Management Relations Act of 1947. In the trial court and the Court of Civil Appeals, the petitioners urged that a state court had no jurisdiction to grant injunctive relief to prevent acts and conduct within the exclusive jurisdiction of the National Labor Relations Board.

We should approve the action of the trial court and the Court of Civil Appeals both on the question of jurisdiction and the granting of the temporary injunction: (1) because a state court has jurisdiction to hear and determine a common-law tort action for damages even where the conduct complained of constitutes an unfair labor practice under federal law; (2) because the trial court found that the National Labor Relations Board would and did refuse to exercise its powers in regard to the controversy involved; (3) there is no evidence that the jurisdiction of the Board was ever invoked so far as the present controversy is concerned; (4) the trial court correctly found that the suit filed by Wamix was one “primarily for damages” and the injunction was sought as ancillary relief to preserve the status quo until the case could be finally heard and determined on the merits.

The conclusion of the trial court that the Wamix cause of action was a damage suit was predicated upon findings of fact indicating a loss, as of the date of hearing on the temporary *426 injunction, in excess of $16,000.00 and a probable loss of $100,-000.00 or more if the petitioners’ actions were allowed to continue.

It is well settled that the state court may entertain a damage suit predicated on a common-law tort action when the actions of the defendants may also be unfair labor practices under the Labor Management Relations Act. The Supreme Court of the United States in the case of United Construction Workers v. Laburnum Construction Corporation, 347 U.S. 656 , 74 Sup. Ct. 833, 834, 98 L. Ed. 1025 , very definitely settled this question when it said:

“The question before us is whether the Labor Management Relations Act, 1947, has given the National Labor Relations Board such exclusive jurisdiction over the subject matter of a common-law tort action for damages as to preclude an appropriate state court from hearings and determining its issues where such conduct constitutes an unfair labor practice under that Act. For the reasons hereafter stated, we hold that it has not.”

V. <' •!>

“We accept the view of the National Labor Relations Board that respondent’s activities affect interstate commerce within the meaning of the Labor Management Relations Act.”

if: if: ifi

“* * * we assume the conduct before us also constituted an unfair labor practice within the following provisions of that Act! * * *”

i*4 # #

“Here Congress has neither provided nor suggested any substitute for the traditional state court procedure for collecting damages for injuries caused by tortious conduct.”

$ * *

“The care we took in the Garner Case to demonstrate the existing conflict between state and federal administrative remedies in that case was, itself, a recognition that if no contract had existed, the state procedure would have survived. * * *

“The Labor Management Relations Act sets up no general compensatory procedure except in such minor supplementary ways as the reinstatement of wrongfully discharged employees with back pay.”

❖ :J4 if:

“The 1947 Act has increased, rather than decreased, the legal responsibilities of labor organizations. Certainly that Act did not expressly relieve labor organizations from liability for *427 unlawful conduct. It sought primarily to empower a federal regulatory body, through administrative procedure, to forestall unfair labor practices by anyone in circumstances affecting interstate commerce. The fact that it prescribed new preventive procedure against unfair labor practices on the part of labor organizations was an additional recognition of congressional disapproval of such practices. Such an express recognition is consistent with an increased insistence upon the liability of such organizations for tortious conduct and inconsistent with their immunization from liability for damages caused by their tortious practices.”

* * *

“Section 10 (c) directs the Board to issue a cease-and-desist order after an appropriate finding of fact. There is no declaration that this procedure is to be exclusive.” See Garner v. Teamsters’ Union, 346 U.S. 485 , 74 Sup. Ct. 161, 98 L. Ed. 228 , Id. 373 Pa. 19 , 94 Atl. 2d 893.

The petitioners do not take the position that this is not a suit for damages. They admit that it is such a suit, but their primary position is that the state court is without jurisdiction to enjoin in a field pre-empted by the federal law. My contention is that exclusive jurisdiction of the labor practices sought to be enjoined in this case was never placed with the National Labor Relations Board under the terms of the Labor-Management Relations Act, 1947. The case of Weber v. Anheuser-Busch, (1955) 348 U.S. 593 , 75 Sup. Ct. 480, 99 L. Ed. 546 , 35 L.R.R.M. 2638 , cited by petitioners has no application here. It was not a suit for damages. In that case, the complaint itself alleged unfair labor practices within the meaning of the Labor Management Relations Act, whereas the petition in the present case does not contain any such allegations. In the instant case there was uncontradicted evidence showing that the Board would decline to exercise its jurisdiction once its jurisdiction was invoked. In that case no such allegations were made. It is settled that in all cases where it has been shown that the Board would decline to exercise its jurisdiction, once its jurisdiction was invoked, the state court has jurisdiction.

In our case the petitioners are maintaining they have the right to a hearing only before an agency, the National Labor Relations Board, which will not act in the matter.

I think the case of Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local No. 941 v. Whitfield Transportation, Inc. 154 Texas 91, 96 , 273 S.W. 2d 857, 860 , is sufficient authority for the proposition that a situation where it affirma *428 tively appears that the National Labor Relations Board would refuse to exercise its powers if its jurisdiction were invoked.

In the Whitfield case, supra, this court said:

“* * * The Garner opinion observes with evidently studied purpose that in that case it did not appear ‘that the Federal Board (N.L.R.B.) would decline to exercise its power 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 Atl. 2d 448 * * * True, the Busch case, supra, speaks in terms of 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 vie%o 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 Kinard Construction Company decision, supra.” See Optical Workers’ Union, Local 24859 et al v. National Labor Relations Board, No. 15460, 5th Circuit, 227 Fed. 2d 687.

In our case, the trial court found that the N.L.R.B. would decline to exercise its jurisdiction once its jurisdiction was invoked. There was no evidence introduced by petitioners showing or tending to show that the operations of Wamix, Inc. met the new jurisdictional criteria established by the National Labor Relations Board. In the Optical Workers’ Union case, supra, the Union sought a review of a National Labor Relations Board order dismissing the Union’s petition for certification as bargaining agent for the employers of Rogers Brothers wholesalers, a Texas partnership, and a complaint issued against the partnership for unfair labor practices. The dismissal was pursuant to the Board’s policy announced June 30, 1954, whereby it will not hear cases falling within its statutory jurisdiction over labor disputes “affecting commerce,” if the nature or volume of the business of the employer involved do not meet certain admittedly more stringent requirements.

The court in the Optical Workers’ Union case, supra, points out that —

“* * * the volume of the employer’s business satisfied the *429 Board’s prior jurisdictional limitations, laid down in October, 1950, [62 Yale L. J. 116], and the proceedings under these criteria had gone forward to the point where the certification petition and the unfair labor practice complaint had been consolidated for a single hearing, which had been held before a Trial Examiner. From the evidence there adduced, the Trial Examiner had made findings of fact concerning the employer’s volume of business and the unfair labor practices for which the union seeks relief, and had recommended that the employer be ordered to cease and desist from these unfair labor practices and that it also be ordered to recognize and bargain with the union as the exclusive representative of its employees.

“While the Trial Examiner’s report was awaiting action by the Board, the Board promulgated its present jurisdictional limitations. Accordingly, when the case came before it, it adopted the Trial Examiner’s findings and conclusions — ‘to the limited extent that they are consistent with this Decision and Order’ — but dismissed the complaint and the representation petition because the employer’s volume of business did not satisfy the new standards. 110 N.L.R.B. 604 , 35 L.R.R.M. 1081 .”

The Union Urged that the Board, while having authority to decline jurisdiction over particular labor disputes on a case-by-case basis, “cannot adopt a rule ‘legislating’ a substantial number of employees and employers out of the administration of the Act. In the alternative, they contend that the rule adopted is an arbitrary one. Finally, they argue that it cannot be applied retroactively, because, they say, the Trial Examiner’s finding that the employer was engaged in commerce within the meaning of the Act established N.L.R.B. jurisdiction as the law of the case.” The court, in declining to uphold the contention of the Union, said:

“What the petitioners here complain of, therefore, is that the Board now acts under an announced policy, rather than a presumed policy, and that it has applied this policy retroactively to them, overturning ‘the law of the case.’ We hold in accordance with the Chenery case, supra, that the Board has authority to adopt and reverse policy, either in the form of an individual decision or as rule-making for the future, in any manner reasonably calculated to carry out his statutory duties, without regard to whether such action strictly conforms to the rules applicable to courts or legislative bodies. Therefore, finding, as we do, that the standards adopted by the Board are reasonable, we can discern no valid distinction between a decision made under these criteria and one made under the *430 former unannounced policy. Furthermore, there is no sound reason why standards cannot be applied retroactively, as here, or prospectively, as in N.L.R.B. v. Red Rock Co. (5 Cir.), 187 Fed. 2d 76, 27 L.R.R.M. 2355 .

“We thus hold that the Trial Examiner’s finding that the employer was engaged in commerce within the meaning of the Act did not bind the Board as the law of the case, for that concept, also, has no place in circumscribing the Board’s action. Finally, we see no merit in the petitioners’ contention that the Board erred in not remanding the case for new findings regarding coverage under the current standards, when the petitioners did not set forth in their letter to the Board what new facts they expected would be shown in another hearing.”

Petitioners in the present case rely on the case of Dyer v. International Brotherhood of Teamsters (1941), 124 Calif. App. 2d 788, 269 Pac. 2d 199, 205 , to support their contention that this court should hold that a state court is without jurisdiction to grant ancillary injunctive relief to preserve the status quo in a damage suit. I agree with the respondent in its contention that this case is not in point. In the Dyer case the court was asked to issue a temporary writ to maintain the status quo “until the National Labor Relations Board has had time to act.” The court commented “No California statute affording temporary state injunctive relief under the circumstances here presented has been called to our attention, * * *” Some of the questions involved in the present case were also present in the case of Dallas General Drivers, Warehousemen and Helpers, et al. v. Jax Beer Co. of Waco, Texas, Texas Civ. App., 276 S.W. 2d 384 (no writ history). These questions were decided adversely to the contention of petitioners here, and I think properly so.

It is true the majority opinion by this court holds that the trial court did not err in taking jurisdiction of this suit, but it seems to me that the conclusion has been reached on an erroneous interpretation of the points attacking jurisdiction presented by petitioners in their petition for writ of error. Petitioners’ points 1 and 2 present the questions (1) The state deos not have jurisdiction to enjoin in a field pre-empted by the federal law, (2) “The Court of Civil Appeals erred in overruling appellants’ first point and holding, in effect, that' a state court may grant injunctive relief to prevent acts and conduct within the exclusive jurisdiction of the Labor Management Relations Act of 1947 where the application therefor is ancillary to a suit for damages.”

*431 Turning now to the question of whether or not the temporary injunction should be dissolved. Once it is determined, as it has been in this case, both by the majority and the minority, that the state court has jurisdiction of the subject matter of this suit, it naturally follows that we are concerned with a temporary injunction and not a permanent injunction. In determining whether or not a temporary injunction should be granted or refused by the trial court, this Court laid down the true test in the case of Texas Foundries, Inc. v. International Moulders and Foundry Workers’ Union et al., 151 Texas 239 , 248 S.W. 2d 460, 462 . The Court said:

“The granting or refusing of a temporary injunction is subject to a very different character of appellate review from the granting or refusing of a permanent injunction. The trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion * * *

“The test announced by this court is: Tf the petition does allege a cause of action and evidence tending to sustain such cause of action is introduced, then there is no abuse of discretion by the trial court in issuing the temporary injunction.’ ”

The case of Transport Co. of Texas v. Robertson Transports, 152 Texas 551 , 261 S.W. 2d 549, 552 , the test in determining whether or not a temporary injunction should be sustained was so adequately stated by Mr. Justice Calvert speaking for this Court when he said:

“In a hearing of an application for a temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. James v. Weinstein & Sons, Texas Com. App., 12 S.W. 2d 959, 960 . To warrant the issuance of the writ, the applicant need only show a probable right and a probable injury; he is not required to establish that he will finally prevail in the litigation. Rosenfield v. Seifert, Texas Civ. App., 270 S.W. 220, 223 ; Nagy v. Bennett, Texas Civ. App., 24 S.W. 2d 778, 781 ; High on Injunctions, 4th Edition, Vol. 1, Sec. 5, p. 8. If the party enjoined prevails on a final trial of the case he finds protection against the improvident granting of the writ and consequent loss in the interim in the applicant’s bond. Where the pleadings and the evidence present a case of probable right and probable in *432 jury, the trial court is clothed with broad discretion in determining whether to issue the writ and its order will be reversed only on a showing of a clear abuse of discretion. Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Texas 239 , 248 S.W. 2d 460, 462 . There is no abuse of discretion in the issuance of a writ if the petition alleges a cause of action and the evidence adduced tends to sustain it. Southwestern Greyhound Lines, Inc. v. Railroad Commission, 128 Texas 560 , 99 S.W. 2d 263 , 109 A.L.R. 1235 .”

The majority opinion in the present case written by the same eminent jurist, and my esteemed associate, recognizes and applies, in part, the rules announced in the Robertson Transport case, supra, and the Texas Foundries case, supra, but dissolves the injunction, in part, on the theory that the trial court erroneously applied the law to the facts in so far as the temporary injunction restrained the petitioners “from using insulting, threatening and indecent language toward any Wamix employees, who desire to work, for the purpose of interfering with, hindering and intimidating such employees,” and “From publishing orally or in writing any statement to the effect or implying that Wamix trucks were being driven by strike breakers or that all regular Wamix drivers were on strike.”

As authority for the holding that the granting of the temporary injunction in the particulars just above mentioned was based upon an erroneous application of the law to the facts, the majority cites the case of Southland Life Ins. Co. v. Egan, 126 Texas 160 , 86 S.W. 2d 722, 723 .

I respectfully submit that the Egan case is no authority for dissolving the injunction in this case and holding, in effect, that the trial court abused its discretion in the respects above stated. This Court in the Egan case, supra, was concerned with a situation where it was successfully claimed that the trial court failed and refused to apply the law to conceded or disputed facts. It was not for that court nor is it the province of this Court to. determine the facts. In the Egan case, the Court said:

“If the facts are such that solely questions of law are presented, the trial court’s action is reviewable, and should be reviewed on appeal. Differently stated, the trial court abuses its discretion when it fails or refuses to apply the law to conceded or undisputed facts.”

The trial court after hearing the evidence concluded that, (1) respondents had plead a cause of action and that it had' *433 jurisdiction of the subject matter; (2) that probable injury had been shown; (3) that it was necessary to preserve the status quo of the litigants pending a trial on the merits.

The abusive language used — “We got her tied up, haven’t we, you damned scab,” and the use of banners reading: “These Wamix trucks are being driven by strike breakers” were words and acts spoken and committed as an integral part of a course of activities employed by the Union. The trial court has made a specific finding in this case that these matters occurred and that such acts warranted the issuance of a temporary injunction. I contend that the acts were unlawful, but, if you admit for the sake of argument that Items 2 and 3 were not unlawful, still it must be held that such words and acts were and are an integral part of an act which the majority admits warranted the granting of the injunction.

I would affirm the judgment of the trial court and the Court of Civil Appeals.

Opinion delivered October 10, 1956.

Rehearing overruled December 19, 1956.