CANDIDO D. CORPUZ, JOSEPHINE VAN BOVEN, NORRIS FOLI, FRANK KENNEDY, CHARLES WADE, BILL McGLOCKLIN, SCOTTY OBY, JAMES KORONIKOLOS, VIRGIL RICHEY, NICK BALAGAT, MARY DeVANEY, LILLIAN O'NEILL, A. B. GASTON, ALBERTA BIGENIS, JANET HINTON, GRACE BIRD, ROSE HELF and HANE KINZLE, Appellants,
HOTEL AND RESTAURANT EMPLOYEES, INTERNATIONAL ALLIANCE AND BARTENDERS' INTERNATIONAL LEAGUE OF AMERICA LOCAL No. 631, a Voluntary Association of Workmen, and D. A. BALDWIN, for Himself and on Behalf of the Members of Hotel and Restaurant Employees' International Alliance of Bartenders' International League of America, Local Union No. 631, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Messrs. Jennings & Salmon, and Mr. Ozell M. Trask, for Appellants.
Mr. Geo. T. Wilson, and Messrs. Minne & Sorenson, for Appellees.
[61 Ariz. 485] STANFORD, J.
Local Union No. 631, claiming it has an agreement with the Westward Ho Hotel Company in which the latter agreed and bound itself on January 2, 1942 to employ and retain only members of the union in good standing, brought this action to enjoin the hotel company from violating its agreement by employing nonunion members in carrying on its business.
The hotel company admits in its answer the contract, but states that the union's agent D. A. Baldwin, at the time of its execution, represented to the hotel company that ninety-five per cent of its employees were members or desirous of becoming members of the union, and that all employees of defendant would immediately become members upon the execution of the agreement; that the hotel company believed said representations and relied thereon, and accordingly executed the agreement; that the representations were false and untrue to Baldwin's knowledge, and were made to deceive the hotel company and to induce it to execute the agreement.
Another reason for executing the agreement, the hotel company alleges, was a threat of the said Baldwin to call a strike of all of the hotel employees if it failed to execute the agreement.
After hearing the evidence on the issues thus formed the trial court entered its order enjoining the hotel company pendente lite from continuing in its employ any persons not members of the union, provided that not more than ten should be discharged each week until all nonunion members had been discharged [61 Ariz. 486] and replaced by union members. It was further provided that all employees who should make application within one week to join the union whether accepted or rejected, should be exempt from the order.
Following the issuance of the order to show cause on March 28, 1942, and before the hearing thereon, the intervenors herein on April 2, 1942, moved the court for leave to intervene as parties defendant and they are the appellants on appeal.
The first assignment is that the court erred in enjoining defendant and intervenors (certain employees of the hotel company) from violating the contract of January 2, 1942, for the reason that this contract was secured by means of false representations, and for that reason the plaintiffs do not come before the court with clean hands. They also contend that the said contract has for its purpose the destruction of the individual right to work without joining a union and is therefore against public policy. It is also contended by defendant that the enforcement of the agreement by the hotel company to employ only members of the union is an actionable tort.
We will consider assignment number one. The evidence concerning the agreement to employ only union men is not in conflict. It appears therefrom that one of the agents for the hotel company and the managing director thereof and Baldwin, the agent of the union, in meetings discussed the union's demand that only members be employed by the hotel company several times prior to the execution of the agreement. The strongest statement testified to by the witnesses for the hotel company is "He stated that he and Mr. Holahan... in conversations with me stated on many occasions that they, meaning Mr. Baldwin as the representative, represented 95% or better of the employees who were members of the [61 Ariz. 487] union or who desired to become members." The witnesses testified that it was on such representation that they were induced to sign the agreement.
It should be remembered that these employees were the employees of the hotel company. It appears to us that the representatives of the hotel company could easily have ascertained whether that statement was true simply by making inquiry of its employees. The contention that the hotel company relied upon this representation and accepted it as true, in view of the surrounding circumstances, requires a higher degree of credulity than we possess. The means of determining the truth of such representation were easily accessible to the hotel company and its officers. They knew, or could have found out, by simple inquiry from the hotel employees as to whether they had joined the union or intended to do so or not. The claim that the execution of the agreement was obtained through false representations is not supported by the evidence.
Negotiations for signing this contract were started the middle of November, 1941, and the contract was ...