On application for rehearing the view is expressed that the opinion in this case is in conflict with the opinion in the case of Klibanoff v. Tri-Cities Retail Clerks' Union, Local No. 1678,1 64 So.2d 393. A reading of the opinion in the present case will show that it deals with one exception to which we shall later refer, with the manner in which the picketing was conducted. It does not deal with the purpose for which the strike was called or the picketing done. The opinion was written in answer to the propositions advanced by the appellant in brief, which are numbered I through XI, inclusive. All of these propositions, except VIII and IX, as we understand them, deal with the manner in which the picketing was conducted. Propositions VIII and IX do deal with the object of the strike as implemented by the picketing, but base the unlawfulness of the strike as so implemented on the failure of the union to comply with the requirements of § 382, Title 26, Code of 1940. What we have said is sufficient answer to the charge that we *Page 283 overlooked an important feature of the case in preparing the opinion.
While we have explained the basis on which our original opinion was prepared, we certainly do not wish to fail to pass upon any meritorious question which may be reasonably presented by counsel in brief. In this kind of a situation we shall indulge a presumption against ourselves. So we shall proceed to point out differences between the Klibanoff case and this case, so as to show that in this case the Klibanoff case need not be considered, pretermitting consideration of the Klibanoff case as an authority in view of the vote of the Justices in that case.
In the Klibanoff case the bill of complaint alleged that the demand was made upon the complainants for a contract with the union for a closed shop in which all employees would be required to be union members. In the case at bar there is no allegation charging that the union was demanding a closed shop contract. In the Klibanoff case we understand the evidence to be undisputed in proof of the foregoing allegation in the bill of complaint. In the case at bar there is no proof that a closed shop was ever demanded. In the Klibanoff case it seems to be admitted that less than a majority of the employees joined the union. In the case at bar the evidence is in conflict and at best presented a factual issue, which was foreclosed by the court when the decree was rendered. In the case at bar there is evidence tending to show that a majority of the employees joined the union and signed cards authorizing the union to represent them in seeking union recognition for them. There is testimony that there were about thirty regular full-time employees of the store, excluding department heads and managers. There were about fifteen or sixteen regular part-time employees who worked only one or two days a week, usually on the weekend. There is testimony tending to show thirty-five of the employees of the store had joined the union by signing membership cards. What we mean to say is that even if a majority of the employees were required to vote for a strike before the union was authorized to strike, a question of fact is presented in this case and the finding of the court should not be disturbed unless palpably wrong. Kelley v. Kelley, 254 Ala. 8, 47 So.2d 212.
Other differences in the two cases could be pointed out but we think that enough has been said to show that the opinion in the present case should not be controlled by anything said in the Klibanoff case.
The application for rehearing is overruled.