Opinion
No. 41672.
February 13, 1961.
1. Workmen's compensation — fraternal associations — chapter of voluntary contractors' association excluded from provisions of Act.
Chapter of voluntary contractors' association, which had no employees as such, maintained no office, and engaged in no work under contract as association was a "fraternal association" within Workmen's Compensation Act and was excluded from provisions of that Act. Sec. 6998-03, Code 1942.
2. Workmen's compensation — painter not entitled to recover benefits as employee of subcontractor.
Painter who sought employment from painting subcontractor, was put to work under contract by subcontractor, fell from ladder and scaffold owned by subcontractor, received payment for his work from subcontractor and was supervised by subcontractor, was subcontractor's employee at time of accident and, since subcontractor had less than eight employees, painter was not entitled to recover workmen's compensation as employee of subcontractor. Sec. 6998-03, Code 1942.
3. Workmen's compensation — special employers — liability for tortious injury to employee engaged in his service.
Even though an employee may have a general employer, still a special employer, in whose service the employee is engaged at time of his injury, is liable for such tortious injury. Sec. 6998-03, Code 1942.
4. Workmen's compensation — collective bargaining agreement as not creating employer-employee relationship within the Act.
Agreement between decorating contractors and union permitting a contractor to solicit men from sources other than union and to be sole judge of job applicant's qualifications did not create any employer-employee relationship within Workmen's Compensation Act. Sec. 6998-03, Code 1942.
5. Workmen's compensation — claimant not entitled to benefits as alleged employee of special employers.
Members of fraternal association of decorating contractors, by signing contract with decorators' union that employers should carry workmen's compensation insurance, did not contract to cover employees in service of other members, and injured employee of member, who was engaged as subcontractor by general contractor, who was not member of association, was not entitled to recover workmen's compensation from decorating contractors' association or its members. Sec. 6998-03, Code 1942.
Headnotes as approved by Lee, P.J.
APPEAL from the Circuit Court of Hinds County, M.M. McGOWAN, Judge.
Pyles Tucker, Jackson, for appellant.
I. A voluntary unincorporated non-profit association is not, per se, exempt under the terms of the Mississippi Workmen's Compensation Law. 73 C.J.S. 1.
II. The appellees who are signatory parties to said contract are bound thereby and are thereby estopped to deny their liability for compensation to the appellant. Alkahest Lyceum System v. Featherstone, 113 Miss. 226, 74 So. 151; Chick v. Trevett, 20 Maine 462, 37 Am. Dec. 68; Evans v. C.M. Lilly Co., 95 Miss. 58, 48 So. 612, 21 Anno. Cas. 1087; Herndon v. Slayton (Ala.), 83 So.2d 726; Hodgson v. Baldwin, 65 Ill. 532; Lawler v. Murphy, 58 Conn. 294, 20 A. 457, 8 L.R.A. 113; Lewis v. Tilton, 64 Iowa 220, 19 N.W. 911, 52 Am. Rep. 436; Wells v. Gates, 18 Barb. (N.Y.) 554; 19 Am. Jur., Estoppel, Sec. 148; 7 C.J.S., Associations, Secs. 15, 20, 32.
III. The Painting and Decorating Contractors of America, Jackson Chapter, by the contract became the general employer of the appellant; the appellees who signed said contract are jointly liable, as the general employer of the appellant under their contractual election to secure compensation for the appellant; and the respective carriers of said appellees are required by law to discharge the obligations and duties of said appellees in respect of such liability. Comerford's Case, 224 Mass. 571, 113 N.E. 460; Diaz v. Ulster Vegetable Growers Cooperative, Inc., 282 App. Div. 426, 123 N.Y.S.2d 21; Gulf M. N.R. Co. v. Madden, 190 Miss. 374, 200 So. 119; Matter of Aloss v. Sardo, 223 App. Div. 201, 227 N.Y.S. 708; Matter of Dennison v. Pechham Road Corp., 295 N.Y. 457, 68 N.E.2d 440; Matter of DeNoyer v. Cavanaugh, 221 N.Y. 273, 116 N.E. 992; Matter of Didonato v. Rosenberg, 256 N.Y. 412, 176 N.E. 822; Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 78 P.2d 868; National Auto Ins. Co. v. Industrial Accident Comm., 23 Cal.2d 215, 143 P.2d 481; 99 C.J.S., Workmen's Compensation, Sec. 38.
Watkins Eager, Butler, Snow, O'Mara, Stevens Cannada, Bob Ray, Swep S. Taylor, Jr., Young, Daniel Coker, Jackson, for appellees.
I. The appellant failed to prove that he was about the business of an employer subject to the Mississippi Workmen's Compensation Law at the time of the injury complained of, and the attorney-referee was manifestly correct in sustaining the appellees' motion to dismiss. Alkahest Lyceum System v. Featherstone, 113 Miss. 226, 74 So. 151; Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 59 So.2d 294; California Eastern Airways v. Neal, 228 Miss. 370, 87 So.2d 895; Carr v. Crabtree, 212 Miss. 656, 55 So.2d 508; Christopher v. City Grill and Home Indemnity Co., 218 Miss. 638, 67 So.2d 694; Diaz v. Ulster Vegetable Growers Cooperative, Inc., 22 App. Div. 426, 123 N Y Supp.2d 21; Evans v. C.M. Lilly Co., 95 Miss. 58, 48 So. 612, 21 Anno. Cas. 1087; Employers Liability Assur. Corp. v. Industrial Accident Comm., 179 Cal. 432, 177 P. 273; Famous Players Lasky Corp. v. Industrial Accident Comm. (Cal.), 228 P. 5, 34 A.L.R. 765; Ingall's Shipbuilding Corp. v. Howell, 221 Miss. 824, 74 So.2d 863; Kughn v. Rex Drilling Co., 217 Miss. 434, 64 So.2d 582; Majure v. Wm. L. Alsup Associates, 216 Miss. 607, 63 So.2d 113; Malley v. Over The Top, Inc., 229 Miss. 347, 90 So.2d 678; Murray v. Wasatch Grady Co., 73 Utah 430, 274 P. 940; Mutual Implement Hardware Ins. Co. v. Pittman, 214 Miss. 823, 59 So.2d 547; Runnels v. Burdine, 234 Miss. 272, 106 So.2d 49; Seaman Body Corp. v. Industrial Comm., 204 Wis. 157, 235 N.W. 433; Sgattone, Michelina v. Mulholland Gotwals, 290 Pa. 341, 138 A. 855, 58 A.L.R. 1463; Smith v. St. Catherine Gravel Co., 220 Miss. 462, 71 So.2d 221; Stanley v. McClendon, 220 Miss. 192, 70 So.2d 323; Stovall's Estate v. A. DeWeese Lumber Co., 222 Miss. 833, 77 So.2d 291; Annos. 58 A.L.R. 865, 1468, 152 A.L.R. 810, 816; Secs. 6998-02, 6998-03, Code 1942; Sec. 3, par. 1, Mississippi Workmen's Compensation Act; 58 Am. Jur., Sec. 343 p. 812; 99 C.J.S., Workmen's Compensation, Sec. 38.
II. The Painting and Decorating Contractors of America, Jackson Chapter, and its individual members, form a voluntary, unincorporated non-profit association, and are, therefore, exempt under the terms of the Mississippi Workmen's Compensation Law. Sec. 6998-03, Code 1942.
III. The agreement appearing is a collective bargaining agreement and is not an employment contract. Hines Motor Co. v. Hederman, 201 Miss. 859, 30 So.2d 70; Anno. 95 A.L.R. 6; 31 Am. Jur., Labor, p. 469.
This is a claim by Ralph Davis against the Painting and Decorating Contractors of America, Jackson Chapter, an unincorporated association, and others for the recovery of workmen's compensation benefits. The claim was denied by the attorney referee, the Commission, and the circuit court; and the claimant has appealed to this Court.
J.E. Sherrod was a general contractor in the City of Jackson. He was not a member of the Painting and Decorating Contractors of America, Jackson Chapter, was not a party to any contract with the Brotherhood of Painters, Decorators and Paper Hangers of America, Local Union No. 1192, Jackson, Mississippi, or any other union contract, and was not apprised of the existence of any contract between the Chapter and the Union. He was the prime contractor for certain work to be done at 457 Ridgeway Street in the City of Jackson, and he made a contract with J.C. Benson to do the painting at a fixed price.
Ralph Davis was a painter by trade. In search for employment, he called J.C. Benson over the telephone, prior to July 28, 1958, and Benson agreed to give him a job. On the morning of July 28, 1958, as he, Benson, and Leo King were preparing to paint the gable of the house, the ladder and scaffold, on which Davis was working, fell. He was thrown to the ground, a distance of twelve to fifteen feet, and sustained a serious and painful injury to his back.
While Davis had not been paid for the time that he worked on the day of his injury, he admitted that he had worked for Benson on other occasions, and for the work done at those times, he was paid by Benson; and that he expected Benson to pay him for the work on this occasion. At no time had he ever received payment of any kind from the Painting and Decorating Contractors of America, Jackson Chapter.
Davis admitted that Benson told him what to do and supervised him in his work; and that the ladder on which he was working belonged to Benson. He said he knew that all of the defendants, except Sherrod, were members of the Painting and Decorating Contractors of America, Jackson Chapter, but admitted that he did not expect any one of them, except Benson, to pay him for his work; and that he was working for Benson and that none of the other defendants maintained any supervision over him.
There was the following stipulation and agreement of fact between the claimant and the defendants in substance to-wit: There is a national association called the Painting and Decorating Contractors of America, and that there is a Jackson Chapter of this organization. The individuals named in claimant's pleading, except Mr. Sherrod, are members of that association. In the spring of 1958, the association appointed a committee to negotiate a form contract with the Brotherhood of Painters, Decorators, and Paper Hangers of America, Local Union No. 1192. A copy of the contract form was introduced in evidence. The named committee was acting as bargaining agent for the painting and other decorating contractors. The contract was not signed by the Painting and Decorating Contractors of America, but was executed as individual contracts by the members named in the claimant's pleading, but was not signed by certain other contractors belonging to the association. The same contract was subsequently signed by other painting and decorating contractors in the Jackson area who were not members of the Painting and Decorating Contractors of America. Each member of that association carries his own payrolls and own social security numbers with the Federal Government for the purpose of withholding social security and income tax. The members compete against each other for painting and decorating contracts. The association met informally once each month at Primos Restaurant on North State Street but kept no minutes. It did not engage in any business for profit. It simply received dues from its members. At the meetings each member paid for his own meal. Dues were used to cover letterhead and other incidental expenses with a part thereof being sent to the national chapter. Each member of the association, who felt that he was required to do so, carried his own workmen's compensation insurance.
The Painting and Decorating Contractors of America is a voluntary, unincorporated association, had no employees as such, maintained no office, and engaged in no painting and decorating work under contract as an association. The individual members do engage in obtaining contracts for painting and decorating in competition with each other and other contractors not members of the association, but who have individually signed the contract. There is no contract having more than one individual signature upon it. There is no contract purported to have been signed by the Painting and Decorating Contractors of America. Each contract was signed individually by such contractors as saw fit to do so. All contracts signed individually, whether by members of the association or outside contractors, contained the identical wording and were identical with the contract which was introduced in evidence.
The appellant poses a number of questions; but, in their final analysis, they amount to this: By reason of the agreement entered into by and between the Painting and Decorating Contractors of America, Jackson Chapter, designated "the contractor or employer", and the Brotherhood of Painters, Decorators and Paper Hangers of America, Local Union No. 1192, Jackson, Mississippi, designated "the union or employees", both the Jackson Chapter, and the defendants, other than Sherrod, were his special employers, and that he is entitled, on that account, to receive workmen's compensation benefits from the individual defendants and their insurers.
Section 1, Article 11 of that contract provides as follows: "For all employees covered by this agreement the Employer shall carry Workmen's Compensation Insurance with a company authorized to do business in the State of Mississippi, Social Security, Unemployment Compensation Insurance coverage, and such other protective insurance that may be required by the laws of this State and shall furnish copies of these certificates and account numbers to the Union." (Emphasis supplied.)
(Hn 1) Obviously the Jackson Chapter of the Painting and Decorating Contractors of America has no liability for workmen's compensation benefits in this matter even though it is designated, in the agreement, as the "contractor or employer." In the first place, it is agreed that the organization did not execute the agreement. In the second place, by the very terms of Sec. 6998-03, Code of 1942, Rec., "all non-profit charitable, fraternal, cultural or religious corporations or associations" are expressly excluded from the provisions of the act. Webster's New International Dictionary, Second Edition, defines a fraternal society, association or order as follows: "A society organized for the pursuit of some common object by working together in brotherly union; specif., a benefit society organized with a representative form of government, and not carried on for profit, and, often, consisting of members of the same trade or occupation or allied ones."
Undoubtedly the Jackson Chapter of this association, under the stipulation or agreement as to facts, is a fraternal association within the purview of the Workmen's Compensation Act, and is therefore excluded from the provisions of that Act. Besides it does not appear that the Chapter ever came within the Act, as it was privileged so to do, in the manner and form as set out in the above section.
(Hn 2) Davis sought employment from J.C. Benson. He was put to work on a job under contract by Benson. The ladder and scaffold from which he fell were Benson's property. He had worked for Benson on other occasions for which he had been paid wages. He expected Benson and no one else to pay him for his work on this job. Benson told him what to do and supervised him. In other words he was controlled by Benson. Beyond doubt he was Benson's employee at the time of his accident. Mitchell v. Eagle Motor Lines, Inc., 228 Miss. 214, 87 So.2d 466; Express Co., Inc. v. Diggs, 174 Miss. 650, 165 So. 292; Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Isaacs v. Prince Wilds, 133 Miss. 195, 97 So. 558.
(Hn 3) In regard to general and special employers, this Court has held that, even though an employee may have a general employer, still a special employer, in whose service the employee is engaged at the time of his injury, is liable for such tortious injury. Sawmill Construction Co. v. Bright, 116 Miss. 491, 77 So. 316; Texas Co. v. Mills, supra; Mitchell v. Eagle Motor Lines, Inc., supra; Runnels v. Burdine, 234 Miss. 272, 106 So.2d 49.
(Hn 4) The agreement, which was signed by the defendants, declared the Union was to be recognized as the bargaining agent for the painters, etc., and the Jackson Chapter for the decorating contractors. This single-spaced, type-written agreement consisted of seven pages. It went into great detail concerning working conditions, hours, wages, standards, non-discrimination, arbitration, and other incidental conditions too numerous to mention. Section 1 of Article 4 thereof provided: "In order to economically and efficiently serve the building public it is important to have experienced skilled workmen. The Contractor recognizes that the Union is a source of such skilled manpower, and will, therefore, use it as a source when in need of employees. The Union agrees that when the Contractor requests employees, it will exert every effort to supply skilled qualified, experienced workers insofar as they are available on a non-discriminatory basis to be considered by the Contractor in filling of such positions. The Contractor agrees to notify the Union of his need for workmen. If, after the Contractor has placed an order for men with Union in writing and the Union has failed to supply competent men within 24 hours of such written request, the Contractor is free to solicit men from other sources such as he may choose, providing men he hires shall be the same skill as other skilled employees employed." (Emphasis supplied.) See also Section 2 of Article 4 thereof as follows: "It is agreed that the Contractor shall be under no obligation to hire any job applicant unless such applicant is the most qualified person applying for the job. The Union agrees that the Contractor shall be the sole judge of the applicants qualifications." (Emphasis supplied.)
When the two sections, just quoted above, are considered, it is manifest that the contractor was to determine whether an applicant for a job would be accepted. No employee was hired at the time of the execution of the agreement, nor was there any agreement to hire any particular employee in the future. Thus no employer-employee relationship came into existence at the time of the execution of the agreement. See 31 Am. Jur., Labor, Sec. 102, pp. 469 and 470 as follows: "Collective bargaining agreements do not ordinarily establish the relationship of employer and employee, but merely govern the terms of the relationship with whomever it may be established. A collective agreement establishes no concrete contract between the employer and any employee, but is only an agreement as to terms on which contracts of employment may be satisfactorily made and carried out. A contract fixing wages and conditions of service for a specified period of time does not operate to fix the term of service of the employees." (Emphasis supplied.) See also Rentschler v. Missouri Pacific R. Co., 95 A.L.R. 1, a Nebraska case, where it was said: "In itself, the collective contract is rarely subject to a court action because it is incomplete. It establishes no concrete contract between the employer and any employee. No one is bound thereby to serve, and the employer is not bound to hire any particular person. It is only an agreement as to terms on which contracts of employment may be satisfactorily made and carried out. It is a mutual general offer, to be closed by specific acceptance. When negotiated by representatives of an organization, it is called collective bargaining, but ordinarily the laws of the order do not require the members to serve under it, but only that if they serve they will do so according to its terms."
(Hn 5) Since the Jackson Chapter was not in fact the "contractor or employer", the words of the agreement to the contrary notwithstanding, but was executed by the several defendants, other than Sherrod, the only sensible interpretation of Sec. 1, Article 11, set out above, is that the several individual defendants, so executing the contract, were agreeing in principle to cover their own employees with workmen's compensation insurance, but were not contracting to cover employees in the service of other contractors.
Such a conclusion in no way conflicts with Evans v. Lilly and Co., 95 Miss. 58, 48 So. 612 or Alkahest Lyceum System v. Featherstone, 113 Miss. 226, 74 So. 151, cited by the appellant. In those cases certain officers of mere unincorporated associations signed and executed promissory notes by which they bound themselves to pay money for good and valuable considerations. The abbreviations of the title of their offices followed their names. Those cases held that the signers in those instances were individually liable on those obligations but, as stated above, the bargaining agreement, at the time of its execution, constituted no enforceable contract to hire any particular person.
It appeared that J.C. Benson had less than eight employees in his service. Hence he was not subject to the Workmen's Compensation Act. Sec. 6998-03, supra.
It therefore follows that the order of the Commission, which declined to award benefits against the defendants and their insurers, must therefore be affirmed.
Affirmed.
Arrington, Ethridge, McElroy and Rodgers, JJ., concur.