Summary
In Fair Share Organization v. Kroger Company, supra, the Circuit Court granted a temporary injunction against picketing which the court found was designed to force the appellee to change its employment practices and to engage in selective hiring of Negro employees based on the proportion of Negro customers who patronize its store.
Summary of this case from Fair Share Organization, Inc. v. MitnickOpinion
No. 29,792.
Filed March 23, 1960. Rehearing denied April 27, 1960.
APPEAL — Labor Dispute — Temporary Injunction — Jurisdiction — Finding of Facts. — The trial court's finding of facts that ". . . the defendants picketed and caused to be picketed one or more of said three stores for purpose of forcing plaintiff to engage in selective hiring of Negro employees based on the proportion of Negro customers who patronize its stores, which would result in requiring the plaintiff to discharge or transfer competent white employees and replace them with Negroes; . . ." shows that this case involved or grew out of a labor dispute as defined by Indiana statutes. Therefore the Appellate Court was in error in transferring this cause to the Supreme Court on the theory that the case did not involve or grow out of a labor dispute and that an appeal from the granting of a temporary injunction under Section 4-214, Burns' 1946 Replacement, should be taken to the Supreme Court; and this cause is now ordered transferred back to the Appellate Court.
From the Newton Circuit Court, Newell A. Lamb, Judge.
Fair Share Organization and others, appellants, take this appeal from the granting of a temporary injunction by the trial court. Appellees, The Kroger Company, Local 1460 Retail Clerk's International Association, AFL-CIO, filed motion to transfer this cause to the Supreme Court and the Appellate Court so transferred the cause. Cause ordered transferred back to the Appellate Court.
F.L. Anderson, Jr., Anderson, Hicks Anderson, and Hiebert L. Bradley, all of Gary, for appellants.
Barrett, Barrett McNagny and J.A. Bruggeman, both of Fort Wayne, for appellee.
Robert Karmel, of Chicago, Illinois, and George Sammons, Sr., of Kentland, for Intervenors.
John Preston Ward, of Indianapolis, and Max Cohen, of Gary, Amicus Curiae.
This appeal from the granting of a temporary injunction by the court below was taken by appellant to the Appellate Court pursuant to Burns' § 40-510 (1952 Replacement). The Appellate Court, upon appellee's motion, transferred the cause to this court on the theory that the case did not involve or grow out of a labor dispute and that an appeal from the granting of a temporary injunction under Burns' § 4-214 (1946 Replacement) should be taken from the trial court to the Supreme Court.
Acts 1933, ch. 12, § 10, p. 28.
Acts 1901, ch. 247, § 9, p. 565; 1907, ch. 148, § 1, p. 237; 1915, ch. 76, § 1, p. 149; 1925, ch. 201, § 1, p. 487.
We believe the finding of facts entered by the trial court shows that this cause involved or grew out of a labor dispute as defined in Burns' § 40-513 (1952 Replacement). The finding was in part as follows:
Acts 1933, ch. 12, § 13, p. 28.
"On and after September 19, 1958, the defendants picketed and caused to be picketed one or more of said three stores for purpose of forcing plaintiff to change its employment practices; and for the purpose of forcing plaintiff to engage in selective hiring of Negro employees based on the proportion of Negro customers who patronize its stores, which would result in requiring the plaintiff to discharge or transfer competent white employees and replace them with Negroes; . . ."
We believe the lower court's further statement that:
"There is no labor dispute existing between the plaintiff and its employees or the unions which lawfully, properly and exclusively represent them in collective bargaining."
is ambiguous but that under the facts found by the court heretofore set out, it could only be concluded that the case involved or grew out of a labor dispute as defined in the Indiana Statutes. See: New Negro Alliance v. Grocery Co. (1938), 303 U.S. 552, 58 S.Ct. 703, 82 L.Ed. 1012, involving a similar statute.
This cause is now ordered transferred back to the Appellate Court.
NOTE. — Reported in 165 N.E.2d 606.