It seems to me that when either party litigant, whether it be employer or employe, invokes the benefits of the labor act, L. 1933, c. 416, he becomes bound by its conditions; in other words, those who accept its benefits must assume its burdens and in asserting their rights should follow the procedure outlined therein. As pointed out in the majority opinion, that act provides for a speedy review by appeal to this court whenever any court of the state of Minnesota shall issue or deny any temporary injunction in a case involving or growing out of a labor dispute. The act further provides that the trial court shall, upon the request of any party to the proceedings and upon his filing the usual bond for costs, forthwith certify the case to this court for review. The record shows that Judge Peterson at the time of the issuance of the temporary injunction offered immediately to certify the case in accordance with the provisions of the labor act. The defendant did not see fit to preserve his rights by appeal in the manner provided in the act; in other words, he is now attempting to assert his rights by relying upon certain provisions of the labor act and at the same time attempting to escape his own failure to take advantage of other provisions adopted for his benefit and protection. This he cannot do.
The majority opinion is based upon the assumption that even though the trial court erroneously decided that the case did not present a labor dispute, the decision upon that issue is not now subject to a collateral attack. It seems to me that from the record presented the trial court could well have found that the case did not involve a labor dispute. In its final analysis the only issue between the plaintiff, Stella Reid, and the defendant Union and its officers pertained to the rates plaintiff must charge her customers for *Page 610 services rendered. That was clearly a price-fixing requirement and illegal. At the hearing on the application for the temporary injunction and before, in her conversations with the defendant Voorhees, plaintiff offered to comply with all other demands made by the Union. This was not denied by the defendants at the trial and constituted the record when the matter was presented to the trial court. From that record the court arrived at the conclusion that the case did not involve a labor dispute.
That the defendant recognized the correctness of the court's ruling is evidenced by what followed. The application for a temporary injunction was heard on September 28, 1936. The injunction issued the following day. On October 1, 1936, the defendant Union, of which the defendant in this case was an officer, wrote a letter to the plaintiff reading as follows:
"Re — Stella Reid vs. Independent Union of All Workers, et al.: "Dear Madam:
"The district court has made its order in the above entitled action finding that the schedule of wages and prices previously submitted to you and the negotiations following do not involve a labor dispute. The court also finds that the union cannot legally set prices charged customers in its agreements with beauty shops.
"In conformity with the terms of this order we submit herewith a schedule of wages to be paid beauty shop operators omitting prices to be charged customers by the beauty shops. You and your counsel, Mr. French, stated in court on the hearing in this matter that you have no objection to the wage schedule previously submitted. Please note that the enclosed schedule is on a piece work basis. The wages paid under it will amount to the same as under the former proposal, but without anything in it requiring you to charge customers any specified amounts. For instance the old schedule requires the shops to charge $3.00 for a permanent wave and allows the operator 40% of this charge as wages, amounting to $1.20 to be paid to the worker for giving a permanent wave. You can charge customers anything you like under this new agreement. *Page 611
"What we are interested in is the wage feature and the only reason for including customers' prices in the old schedule was merely a method of determining wages. On considering the matter we see no objection to conforming to your wishes and certainly we must conform to the court's order. We submit the enclosed schedule in compliance therewith.
"We wish to thank you for the consideration given this matter and we are very glad that you will cooperate with us.
"Very truly yours,
"BEAUTICIANS UNIT NO. 9, LOCAL. NO. 1, INDEPENDENT UNION OF ALL WORKERS.
"Sanford McCourt, Business Agent."
Attached to the letter was a new proposed agreement embodying minimum commissions to be paid employes, apparently drafted for the purpose of eliminating that part of the original proposed agreement to which the plaintiff objected. Following this and on October 6, 1936, defendants in the injunction action served upon plaintiff's counsel a notice of motion to vacate the temporary injunction and assigned as grounds therefor "that defendants have in all things complied with the terms of said temporary injunction and that the reasons for granting such injunction no longer exist and that said injunction can no longer serve a useful purpose." Attached to the notice of motion were copies of the letter and second proposed agreement hereinbefore referred to. The original notice of motion with proof of service was offered by the defendant as an exhibit in this proceeding (exhibit DD) and comes here as one of the exhibits.
The motion to vacate the temporary injunction was returnable October 15. Instead of awaiting action on the motion, the defendant in this action deliberately violated its conditions on October 7, one day after the notice of motion was served and several days before the date fixed for hearing thereon. What transpired subsequent to the issuance of the temporary injunction is not important as bearing on the issues immediately before this court; namely, as *Page 612 to whether the trial court had jurisdiction and as to whether a labor dispute was involved. As stated, the evidence referred to clearly indicates to me that the defendants recognized that the case at the time of the issuance of the temporary injunction did not present such a dispute and endeavored to correct their position after its issuance so as to create one. This could not strengthen their position.
In my judgment, there was an issue before Judge Peterson at the time of the hearing on the application for a temporary injunction as to whether the case involved a labor dispute. Upon the record before him I do not see how he could decide that question other than the way he did. To sum up the matter, if a labor dispute was not involved, the action of the trial judge was correct. Even though a labor dispute was involved, the defendant failed to take advantage of the provisions of the act plainly fixing his remedy. In either event, he cannot now be heard to complain and for the reasons stated cannot prevail in this proceeding.
I concur in the result.