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January 12, 1955

WILLIAM DUNBAR CO., Inc., et al., Plaintiffs,

The opinion of the court was delivered by: KIRKLAND

Historically, this case began by the filing of a complaint for an injunction and declaratory judgment in this Court on December 11, 1954. In the main it sets out that there had been an agreement between the parties signed on the 15th day of May, 1953, whereby a certain sum, to wit, 10 cents an hour, was to be paid into a painters' trust fund.

There was an allegation that two corporate plaintiffs had not paid, and as a result of the nonpayment the union had threatened to terminate the May 15, 1950 agreement.

 A motion for a preliminary injunction was filed on the 29th of December 1954, and on the 31st of December, 1954, there was an amended complaint which added another party defendant, to wit, the International Brotherhood of Painters, Decorators and Paperhangers of America.

 On January 4, 1955, the defendant union answered to the complaint and asserted a counterclaim.

 On the 5th of January, 1955, there was opposition filed on behalf of the union to the motion for preliminary injunction, and on the 7th day of January, 1955, a motion for a temporary restraining order was filed.

 This present Court, sitting as a motion court, on the date of January 8 overruled the motion for preliminary injunction and advanced the case for a hearing on its merits.

 The case came on for trial January 11, 1955, and at that time waiver of demand for jury trial was filed by praecipe, and there were added four additional parties plaintiff. As against the possibility of a class action suit, it is pointed out that the six plaintiff contractors who have not paid into this special welfare fund from about January 1954, until the latter part of September 1954, are now in the cause as a group of six plaintiffs.

 In the amended complaint there were four counts set forth. The first count, which in the main sets forth a grievance, alleges a failure of remedy at law and seeks a declaratory judgment, and prays also for an injunction. Counts II and III have been dismissed by praecipe before the case began. Count IV apparently is still in the case. It claims an infraction, and claims compensation, as well as triple damages.

 It is apparent, therefore, from the pleadings, that there are six plaintiffs suing a group of defendants who, in the main, represent two unincorporated labor groups, as well as individual defendants.

 The first question before the Court is that of its jurisdiction. In that connection the Court points out that under the Norris-LaGuardia Act the jurisdiction of the federal courts to employ the injunctive process has been, broadly speaking, denied.

 Section 113(c) 29 U.S.C.A. states that the term "labor dispute' includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.'

 One will observe that that is a very broad definition of a labor dispute.

 Section 107 of 29 U.S.C.A. denies jurisdiction to courts of the United States to issue a temporary or permanent injunction in any case, involving or growing out of a labor dispute, as defined in Section 101-115 of the said Title 29, with five exceptions:

 One, that unlawful acts have been threatened and will be committed unless restrained, or have been committed and will continue unless restrained.

 Two, that substantial and irreparable injury to plaintiff's property will follow.

 Three, that greater injury will be inflicted upon the plaintiff by denial of relief than would be inflicted upon the defendant by granting of relief.

 Four, that there is no adequate remedy at law.

 And, five, that public officers charged with the duty to protect plaintiff's property are unable or unwilling to furnish adequate protection.

 In the main, the application of such injunctive power seems to have been limited to conditions involving unlawful acts which entail violence. Colorado-Wyoming Express v. Denver Local Union No. 13, D.C., 35 F.Supp. 155, decided by the District Court of Colorado in 1940, held that Title 29, Section 107 of the United States Code Annotated, sets out the only conditions under which a federal court may issue injunctions in labor disputes. And in Wilson & Co. v. Birl, 3 Cir., 105 F.2d 948, decided in 1939, it was held that the unlawful acts mentioned were construed to be acts of violence.

 It is apparent, therefore, that under this definition of a labor dispute, in view of the positive prohibitions, federal courts generally do not have injunctive powers in labor disputes.

 A new and very important element entered into this picture in 1947 when Congress enacted the Taft-Hartley Act, which is reported at 29 U.S.C.A. § 141 et seq. It is necessary to understand what Section 186 -- also referred to in the statutory bill as Section 302 -- actually provides. Modifying the general denial to federal courts of injunctive powers in labor disputes, Congress has seen ...

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