1 CIR 4 (1949)



YELLOW CAB, INC., a Corporation, | CASE NO. 4
Plaintiff, |
NO. 228, An Unincorporated |
Labor Organization, |
Defendant. |


(Editor's Note: On October 17, 1949, plaintiff, Yellow Cab Inc., filed an Application for Temporary Order and a Petition alleging, inter alia, that an agreement and supplemental agreement, adopted after collective bargaining between plaintiff and defendant were in effect (renewal of the agreements being negotiated) when, on September 16, 1949, a strike was precipitated by defendant without approval of its membership; that defendant had organized a riot squad and a telephone squad, the purposes of which were to resort to violence, effect damage, and to jam telephone lines of other taxicab companies as well as besiege plaintiff with "gripe" calls; that by such actions certain employees had forfeited their right to reinstatement; and praying for an order to halt the strike, an order to require defendant to enter a renewal contract, and an order entitling plaintiff to refuse to reinstate certain employees. On October 18, 1949, defendant filed a Special Appearance, objecting to the jurisdiction of the Court on the ground that defendant had not received five days notice of hearing on plaintiff's application, as required by the Court's Rule 4, paragraph 4, and on the ground that the plaintiff was engaged in inter-state as well as intra-state commerce, and therefore was subject to the federal labor laws. At the hearing on the Application for Temporary Order held on October 18, 1949, the Court overruled defendant's Special Appearance and entered the Temporary Findings and Order published below.)

On this 18th day of October, 1949, this cause came on for hearing on the application of the plaintiff for a temporary order, and the court having convened to determine what orders might be necessary to insure a prompt hearing and speedy adjudication of the industrial dispute alleged in the plaintiff's petition, and upon the said application for a temporary order made by the plaintiff herein, and the plaintiff and the defendant appearing by their respective counsel, evidence was adduced and upon due consideration thereof the Court finds:

That a strike and walk-out is now in progress, and has been in progress since September 17, 1949; that said strike and walk-out are contrary to law; that the public service rendered by the plaintiff is being interfered with by said strike and walk-out;that the former status of the plaintiff's employees which existed immediately prior to said strike and walk-out should be restored in order that the property of the plaintiff and the public service may be saved and protected during the pendency of this action.

The Court further finds that the business carried on by the plaintiff is intra-state business in this state, consisting of the transportation of persons and baggage for hire, over which the Government of the United States has not assumed regulation and control, and that this Court has jurisdiction of the parties and the subject matter of this action.

IT IS THEREFORE ORDERED that pending the final determination of the issues in this case, the strike and work-stoppage in progress since September 17, 1949, shall cease forthwith, and the efficiency and continuity of the plaintiff's service be restored; that the parties plaintiff and defendant, and the plaintiff's employees, be and are hereby restored to the status occupied by each and all of them immediately prior to and at the time of the effective date of the existing strike and work-stoppage.

IT IS FURTHER ORDERED that pending a trial of this cause the defendant, its members, officers, agents, representatives, and all other persons, be and hereby are restrained and enjoined from in any manner interfering with or interrupting the efficient and continuous service of the plaintiff.


(On October 28, 1949, three employees, Marotta, Evers and Nichol, for themselves and others similarly situated, filed a Petition of Intervention as members of the defendant union alleging that certain officers and officials failed to inform the membership of defendant as to the course of bargaining between the parties and as to proposals made to defendant by plaintiff; that as a result intervenors suffered loss of employment and wages; that the Court's temporary order produced uncertain results with respect to the reinstatement of employees, threatening intervenors' security and threatening further work stoppages; and seeking to be represented for the purpose of supporting plaintiff's prayer for relief.

On October 28, 1949, plaintiff filed an Application for Determination of Reinstatement Issue stating: that subsequent to the Court's Temporary Order plaintiff attempted to reinstate its employees, but that certain employees did not report for duty, leaving plaintiff 100 employees short of a full driving crew; that plaintiff had sustained serious loss of customers and had therefore not been able to gainfully employ a full force as ordered; that plaintiff had filed a suit for damages (the $25,000 suit was filed on October 18, 1949) in District Court for Douglas County against seven employees; that one employee had physically assaulted another employee; that plaintiff had a right to dismiss any employee for cause or no cause (except for union affiliation); that defendant had filed a contempt citation against plaintiff in District Court of Douglas County for failure to re-employ the eight employees; and praying for an order confirming plaintiff's right not to reinstate said employees.

On November 2, 1949, Taxicab Drivers and Chauffeurs Local Union No. 762, filed a Petition alleging that it was authorized by a majority of Yellow Cab's employees to represent them in collective bargaining and praying that the Court either designate it as the collective bargaining agent for Yellow Cab's employees or order an election for that purpose. (This petition was docketed in a separate file as Case No. 5) On November 4, 1949, Taxicab Drivers also filed a Petition of Intervention in Case No. 4, seeking designation as the collective bargaining agent for plaintiff's employees, or an election.

On November 7, 1949, defendant Transport Workers filed an answer to plaintiff's Application for Determination of Reinstatement issue, alleging; that on the date of the Court's Temporary Order the officers of the union ordered its members to report for work; that plaintiff had formulated a policy to refuse and had in fact refused to re-employ certain employees against whom it had filed suit for damages; that the agreement in effect between the parties prior to the strike contained the sole grounds for dismissal of employees and that since none of the employees who were refused re-employment were charged with violations of those rules their dismissals were not for cause; that the charge of assault against one employee had in fact been dismissed; that plaintiff's refusal to reinstate these employees was in violation of the Court's Temporary Order.

Hearing on plaintiff's Application for Determination of Reinstatement Issue was held on November 7, and 8, 1949, at the conclusion of which the Court entered its Order, published below.)

YELLOW CAB, INC. a | Case No. 4
Corporation, |
Plaintiff, |
v. | ORDER
. 228, an Unincorporated |
Organization, |
Defendant. |
and EARL NICHOL, for |
, etc., |
Interveners. |
, affiliated with the A. |
. of L. |
Intervener. |

On the 7th day of November, 1949, this cause came on for hearing on the issues presented and made by the plaintiff's application for determination of reinstatement issue, the answer of defendant, Transport Workers Union of America, C.I.O., Local No. 228, an unincorporated labor organization, and the petition of intervention of interveners Sam Marotto, Alfred E. Evers and Earl Nichol; and the said plaintiff, defendant and interveners appearing by their respective counsel, evidence was adduced, and the Court adjourned to reconvene on November 8, 1949, at 9:30 a.m. On November 8, 1949, at 9:30 a.m., Court reconvened, and the taking of testimony was resumed and concluded. Evidence was first adduced by the plaintiff, and plaintiff rested. Evidence was then adduced by the defendant, and the defendant rested. All parties rested, and arguments of counsel were heard, after which said issues in said cause were submitted to the Court for decision. Upon the said pleadings, the record and the evidence, and upon due consideration thereof, the Court finds:

1. That the temporary order heretofore made and entered herein on October 18, 1949, has no application to Judson I. Miller,* (*Miller was president and Marode was vice-president of Transport Workers Union, Local 228.) for the reason that on September 17, 1949, said Judson I. Miller was not an employee of the plaintiff;

2. That Arthur J. Marode* has voluntarily severed his employment with the plaintiff, and at no time since the rendition of said order of October 18, 1949, has sought employment in any capacity with the plaintiff, and said order is no longer applicable to said Arthur J. Marode;

3. That in all other respects the order of October 18, 1949, requires no further clarification;

4. That the issues of reinstatement should be expressly reserved for determination by the Court upon the trial of this cause on the merits;

5. That said application of plaintiff in all respects except as hereinbefore found should be overruled.

It is, therefore, ordered, considered and adjudged that the temporary order heretofore made and entered herein on October 18, 1949, has no application to Judson I. Miller and Arthur J. Marode, or either of them.

It is further ordered that in all other respects the application of the plaintiff for determination of reinstatement issue be and the same is hereby overruled, in accordance with the findings hereinbefore set out.

It is further ordered that the issues of reinstatement in this cause be and are hereby reserved for determination upon the trial of this cause on the merits.


(On December 5, 1949, Yellow Cab filed a Special Demurrer in Case No. 5, and Transport Workers filed in Case No. 4 a Motion to Make More Specific, Definite and Certain, particularly the names of persons alleged by plaintiff to have engaged in unlawful activities.

On February 23, 1950, all parties and interveners in Case No. 4 and Case No. 5 filed a Stipulation and Mutual Agreement For Election And Further Pro Tanto Disposition of Cases, published below (counsel for intervenor, Taxicab Drivers, had argued at the November 7 hearing that the defendant in Case No. 4, Transport Workers, had no standing in the Court since it did not represent a majority of plaintiff's employees, and had argued further that the Court had implied power, under the statute, to order an election to determine who was the bargaining representative).)