Netherton v. Davis

Citations: 234 Ark. 936; 355 S.W.2d 609; 1962 Ark. LEXIS 791; 50 L.R.R.M. (BNA) 2006Docket: 5-2626

Court: Supreme Court of Arkansas; April 2, 1962; Arkansas; State Supreme Court

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A legal dispute has arisen between the International Brotherhood of Electrical Workers, Local No. 700 (Union) and Lee Davis and Jeff Davis, Partners, d/b/a J. S. Davis Sons, Contractors (Davis), along with Albert T. Hough, d/b/a Acme Electric Company (Hough). The Union is the appellant, while Davis and Hough are the appellees. Davis holds a contract with Frez-N-Stor, Inc. to construct a cold storage building in Springdale, Arkansas, utilizing union labor, while Hough, as a subcontractor, employs some non-union labor.

On September 25, 1961, Union members picketed the site, claiming the electrical contractors were not paying prevailing wages. In response, on September 29, 1961, Davis and Hough filed a petition in chancery court alleging that Hough is an "open shop" operator and that Davis’s union laborers refused to cross the picket line despite receiving union wages. They contended that the picketing amounted to unlawful coercion to hire only union labor and claimed irreparable harm with no adequate legal remedy. They sought a temporary injunction to stop the Union from picketing.

After a hearing, the trial court found that the Union's claim regarding Hough not paying prevailing wages was true when the picketing began but was no longer valid as of September 28. The court determined that the continuation of the picketing was unjustified and constituted a deprivation of Davis’s property without due process. Consequently, the court ordered the Union to cease picketing at the construction site pending further orders.

Union's appeal is questioned on the grounds of mootness, as Hough's work at the site is reportedly completed, negating the need for continued picketing.

Appellees acknowledge that the case is moot but argue that it raises significant issues impacting all citizens in the state, particularly regarding union encroachment on individual rights. The court agrees that the matter is of public importance and should be resolved despite its mootness. Citing previous cases, notably Moorman v. Taylor and Cain v. CarlLee, the court emphasizes the need to address substantial questions concerning election laws and public interests, even when cases are moot. The court notes the prevalence of litigation in labor disputes, which often render subjects moot before definitive legal principles can be established. 

The key issue at hand involves the union's grievance against Hough, initially perceived to be limited to his failure to pay union wages at the Frez-N-Stor job. However, evidence emerged suggesting the union's concerns extended to his non-compliance on other jobs throughout the county. The appellants assert that Hough employed multiple electricians on various projects, and during the trial, the union sought to demonstrate Hough's wage violations on these additional jobs but was denied the opportunity. Ultimately, the court concludes that the union had the right to picket Hough at the Frez-N-Stor job based on his failure to pay union wages to employees working on other projects in the same area.

The conclusion is supported by consistent rulings from various jurisdictions, including federal courts, regarding the legality of union picketing. In *Newark Ladder v. Furniture Workers Union*, the court affirmed the right of a union to picket to prevent other union members from working and to discourage public patronage of the employer. Similarly, in *Texas State Optical v. Optical Workers Union*, the court recognized the right to picket due to the close ownership ties between two businesses, allowing union pressure on one to affect the other. The *Alamo Express* case upheld picketing rights based on a majority strike vote among drivers, emphasizing the right to inform the public of the strike. In *American Brake Shoe Co.*, the court ruled picketing legal despite the absence of a contract at one location, indicating location separation was not a barrier. In *Lora Lee Dress Co.*, picketing in New Jersey was deemed lawful under free speech rights, despite a labor dispute occurring only in New York. Lastly, *NLRB v. General Drivers* reinforced the legality of peaceful picketing against a primary employer, even if it incidentally affected secondary, neutral employers.

The principles established in prior cases, although not directly analogous, support the previously stated conclusions in this matter. The decisions in International Brotherhood of Teamsters, Local 878 v. Blassingame and International Brotherhood of Electrical Workers, Local Union No. 295 v. Broadmoor Builders, Inc. align with the court's conclusions and do not present any conflicts. Davis's argument that the Union could not lawfully picket the Frez-N-Stor job due to his payment of union wages and lack of grievance from the Union is deemed unnecessary to address for the case at hand; however, it is stated that his argument lacks merit. Allowing his contention would unfairly deny the Union a remedy in the presence of a legitimate labor dispute with Hough. Davis can mitigate his risks by engaging subcontractors who adhere to the prevailing wage standards. Consequently, the previous decree is reversed, and the appellants are awarded their costs.