Shively v. Garage Employees Local Union No. 44

1 Reported in 108 P.2d 354. This action was instituted by J.E. Shively and W.V. Frisby against Garage Employees Local Union No. 44 and Gordon Lindsay, its secretary and business agent, for the purpose of enjoining defendants from picketing plaintiffs' places of business, or using any coercive measures whatsoever, with the intent to force plaintiffs to discharge their present employees or compel them against their will to join defendant union. The complaint alleges that plaintiffs each own and operate a retail gasoline station in the city of Seattle; that plaintiff Frisby has two employees only, and plaintiff Shively one employee; that all the employees of plaintiffs are thoroughly satisfied with their wages, hours, and conditions of employment, and have not requested and do not wish the defendant union to act as their bargaining agency. The complaint further alleges that none of plaintiffs' employees is a member of defendant union, nor is either of the plaintiffs a member of such union; that defendant union has demanded that plaintiffs sign a contract agreeing to employ only members of defendant union; and that the signing of such a contract would force plaintiffs either to compel their employees to join defendant union against their will, on threat of loss of their jobs, or to discharge their employees solely because such employees, who are satisfactory to the plaintiffs, had exercised their freedom of choice, as defined by Rem. Rev. Stat. (Sup.), § 7612-2 [P.C. § 3467-22], Laws of 1933, Ex. Ses., chapter 7, p. 10, § 2. It is further alleged that, solely by reason of the refusal of plaintiffs to sign the contract, defendants are now carrying out the following coercive measures directed against the plaintiffs, to-wit: Defendants have caused the places of business of both plaintiffs to be picketed, and have in each case employed a picket *Page 562 to march upon the sidewalk prominently in front of plaintiff's place of business, bearing sandwich signs upon which appear the words, "Union people look for the union shop card," and a picture of the official union shop card issued by defendant union. Defendants have caused each picket to openly take the license numbers of cars belonging to plaintiffs' customers, which acts were intended to, and do, result in loss of business to plaintiffs. The complaint further alleges that, as a result of such picketing, plaintiffs are now suffering irreparable injury and damage to their business in loss of profits, which damages are difficult of proof, and that plaintiffs have no plain, speedy, or adequate remedy at law. To this complaint, defendants interposed a demurrer upon the grounds, first, that it does not state facts sufficient to constitute a cause of action against the defendants or either of them, and second, that it does not state facts sufficient to entitle the plaintiffs, or either of them, to the relief prayed for, or to any relief whatsoever. The matter came on for argument on the demurrer July 29, 1940, after which the trial court made and entered an order sustaining the demurrer to the complaint, upon the sole ground that, "by reason of the fourteenth amendment to the constitution of the United States, it does not state facts sufficient to constitute a cause of action." The reason for the trial court's ruling more fully appears in the body of the above order, in the following language: "And the court having heard the arguments of counsel and being of the opinion that the activities of the defendants which the plaintiffs seek to enjoin are among the fundamental personal rights and liberties secured to all persons by the fourteenth amendment to the constitution of the United States, and that to enjoin *Page 563 such activities would deprive the defendants of freedom of speech and of the press guaranteed them by said amendment, and the court being fully advised in the premises . . ." Plaintiffs having refused to plead further and having elected to stand on their complaint, the court, on July 30, 1940, entered a judgment of dismissal with prejudice, and this appeal by plaintiffs follows. Appellants make the following assignments of error: (1) That the court erred in sustaining the demurrer; (2) in refusing a temporary restraining order; and (3) in dismissing the cause of action. Appellants have stated the questions involved as follows: (1) Is picketing by a labor union, with the intent thereby to force employees to join a union contrary to their desires, unlawful? (2) Do the provisions of the Federal and state constitutions, guaranteeing the right of free speech, deprive the court of power to prevent picketing for an unlawful or criminal purpose? Respondents, on the other hand, state the questions involved in the following manner: (1) Do the provisions of the Federal constitution, guaranteeing freedom of speech and of the press, authorize members of a labor union to "peacefully picket" an employer's place of business for the purpose of informing the public, and particularly members of organized labor, that such employer does not hire union labor? (2) Do the inhibitions of the fourteenth amendment to the constitution of the United States apply to state courts as well as to all other departments and agencies of state government? We do not think the propositions as stated by either of the parties quite cover the questions which we believe *Page 564 are presented for our determination. We are of the opinion respondents' first question is objectionable at least for the reason that it assumes the picketing in the instant case was done for a purpose different from that alleged in the complaint. This matter being here only on the pleadings, we must assume as true the facts well pleaded, which of course are admitted by the demurrer. Neither do we think the first question stated by appellants quite covers the situation here presented. We think the question presented may be stated as follows: Does the fourteenth amendment to the United States constitution prevent the courts of this state from granting injunctive relief against a labor union and the members thereof, to prohibit such union from peacefully picketing the place of business of a nonunion employer, none of whose employees is a member of such union, where the purpose of such picketing has been held to be unlawful? [1] In the following cases, we have held that peaceful picketing of the place of business of an employer, by a union which does not include in its membership any employee of such employer, for the purpose of persuading or coercing such employees to join a union against their will, is unlawful:Safeway Stores v. Retail Clerks' Union, 184 Wn. 322,51 P.2d 372; Blanchard v. Golden Age Brewing Co., 188 Wn. 396,63 P.2d 397; Adams v. Building Service Employees etc. Union,197 Wn. 242, 84 P.2d 1021; Fornili v. Auto Mechanics'Union, 200 Wn. 283, 93 P.2d 422; United Union Brewing Co.v. Beck, 200 Wn. 474, 93 P.2d 772; Bloedel Donovan Lbr.Mills v. International Wood-Workers, 4 Wn.2d 62,102 P.2d 270. Inasmuch as the Safeway case, supra, is cited and approved in the other cases above cited, and because *Page 565 we will hereinafter refer especially to a certain part of that opinion, we believe we should again set out certain portions of that opinion, and from it we therefore quote: "The vital, controlling question at issue here is plain and easy of solution. It in no way pertains to the relations between the appellant, a merchant, and its employees. For aught that appears, they are content and satisfied, among themselves. On the contrary, this is a lawsuit between appellant and a third party — a labor union that does not include in its membership any employee of the appellant. What right have the respondents to insist or demand, at the threat or cost of the destruction ofappellant's business, or at all, that appellant ask, urge or coerce, directly or indirectly, its employees, who are at liberty to do as they please, to join respondents' organization? Of course, there is nothing unlawful in hiring clerks or salesmen who are not members of a local organization such as the respondent; and any attempt, like that in this case, to deny or cripple one's right to do so is an unwarranted attempt by individuals or persons to unreasonably interfere with thefreedom of the liberty and property right of contract. "The conduct of respondents, in conjunction with that of appellant, cannot be termed a labor dispute. It is an unwarranted attempt on the part of respondents to compel appellant, against its right of choice, to become active in the cause of respondents, with the result that, upon the failure of that attempt, respondents purposely commenced and continued picketing, to appellant's damage . . ." (Italics ours.) We stated in Blanchard v. Golden Age Brewing Co., supra: "The right to earn a livelihood and to continue in employment unmolested by unwarranted activities of third persons is entitled to protection in equity. Truax v. Raich, 239 U.S. 33,36 S.Ct. 7, 60 L.Ed. 131, Ann. Cas. 1917B, 283. A correlative principle is that the employer has the right freely to maintain relations of employment with whomsoever he desires, and no one *Page 566 has the right purposely to disrupt or interfere with those relations by the intentional resort to such measures as will obviously, and in the ordinary course of events, inflict irreparable injury upon the employer. Hitchman Coal Coke Co.v. Mitchell, 245 U.S. 229, 38 S.Ct. 65, 62 L.Ed. 260, Ann. Cas. 1918B, 461." [2] Respondents contend, however, that peaceful picketing such as was alleged to exist in this case, is an incident of the right of free speech, and is therefore protected from infringement by the fourteenth amendment of the United States constitution. Respondents especially rely on the following cases to sustain this contention: Senn v. Tile Layers ProtectiveUnion, 301 U.S. 468, 81 L.Ed. 1229, 57 S.Ct. 857; Thornhill v.Alabama, 310 U.S. 88, 84 L.Ed. 1093, 60 S.Ct. 736; and Carlsonv. California, 310 U.S. 106, 84 L.Ed. 1104, 60 S.Ct. 746. The first amendment to the constitution of the United States provides: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." The fourteenth amendment provides: ". . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." We are therefore now confronted with the question of whether the constitutional guaranty of freedom of speech is an absolute right, which may be exercised without any qualification, or whether, like other rights, *Page 567 it must be exercised with reasonable regard for the conflicting rights of others. We are of the opinion the right of freedom of speech is not absolute. In Hitchman Coal Coke Co. v. Mitchell, 245 U.S. 229,62 L.Ed. 260, 38 S.Ct. 65, Ann. Cas. 1918B, 461, the question of the relative rights of the parties in case of a conflict between the right of a union to organize and the right of a property owner to be free from interference in his right to do business, was presented. The court in commenting said: "The cardinal error of defendants' position lies in the assumption that the right is so absolute that it may be exercised under any circumstances and without any qualification; whereas in truth, like other rights that exist in civilized society, it must always be exercised with reasonable regard for the conflicting rights of others." The above citation from the Hitchman Coal case is quoted with approval in Meadowmoor Dairies v. Milk Wagon Drivers' Union,371 Ill. 377, 21 N.E.2d 308, decided April 14, 1939. This case also, in referring to the case of Senn v. Tile Layers ProtectiveUnion, supra, stated: "The principle underlying these distinctions has not been overruled, and in the case of Senn v. Tile Layers' ProtectiveUnion, supra, in upholding a Wisconsin act similar to the Norris-LaGuardia act, the court says: `The statute provides that the picketing must be peaceful; and that term as used implies not only absence of violence, but the absence of any unlawfulact.'" (Italics ours.) In Swing v. American Federation of Labor, 372 Ill. 91,22 N.E.2d 857, decided June 19, 1939, the court stated: "The second contention of the appellants concerns the constitutional right to freedom of speech. It is *Page 568 contended by them that section 4 of article 2 of the constitution of Illinois and the fourteenth amendment to the constitution of the United States protect them in their exhibition of the placards and signs derogatory to the plaintiffs' business and intended to destroy it. It is said that for such a wrong, if it be a wrong, or if the statements be untrue, the remedy must be by civil action or by prosecution for criminal libel. The implication of this argument is that the constitutional guaranty of freedom of speech extends so far as to make it a guaranty of freedom to libel; that under this constitutional provision those other provisions guaranteeing due process and equal protection of law must be submerged. Our liberties and means of livelihood are not held by so slender a thread nor a title so tenuous. The right of one group to organize for the advancement of its own ends is exactly equal to but no greater than the right of other citizens peaceably to pursue their own lawful occupations. . . . Under the basic principles of due process a person may not be punished nor his property and business destroyed without a day in court on proper charge and notice with an opportunity to be heard. Yet it is here contended a self-organized group may determine that the plaintiffs may no longer be permitted to earn an honest living by lawful means and forthwith proceed by libelous banners to execute their death sentence." We appreciate, of course, that the decision of the supreme court of Illinois may not be final, in so far as a Federal constitutional question is concerned, but we cite the Illinois decisions because we are impressed with the logic and reasoning therein contained, in support of the opinion of that court that the constitutional guaranty of freedom of speech is not an absolute right, but one upon the exercise of which the court had the right to place a reasonable limitation. In further support of the contention that the constitutional guaranty of freedom of speech is not absolute, we call attention to the cases of Aikens v. Wisconsin, *Page 569 195 U.S. 194, 49 L.Ed. 154, 25 S.Ct. 3, and Gompers v. Buck'sStove Range Co., 221 U.S. 418, 55 L.Ed. 797, 31 S.Ct. 492, 34 L.R.A. (N.S.) 874. In the instant case, we are concerned with balancing appellants' right to carry on lawful businesses, free from unreasonable interference, and respondents' right to freedom of speech. Neither of these rights is absolute, in the sense that it may be exercised in utter disregard of the other; both cannot be unqualifiedly exercised at the same time. It is within the power of the court to decide whether appellants should be denied their right to conduct their businesses free from unjustifiable interference by respondents, or whether respondents' right of freedom of speech should be reasonably limited. We do not believe this question is one of first impression, although it now is presented to us in a different form, presenting the constitutional issue. However, although the question is changed in form, we are of the opinion it remains the same in substance as that presented to this court in the SafewayStores case, the Adams case, the Fornili case, and theUnited Union Brewery case, supra. Underlying the decisions in the cases last above referred to, is a consideration by this court of the conflicting constitutional rights of the outside union on the one hand, and the nonunion employer on the other. We again call attention to the opinion in the Safeway case: "Of course, there is nothing unlawful in hiring clerks or salesmen who are not members of a local organization such as the respondent; and any attempt, like that in this case, to deny or cripple one's right to do so is an unwarranted attempt by individuals or persons to unreasonably interfere with thefreedom of the liberty and property right of contract." (Italics ours.) Upon further consideration of these matters, as between the parties here involved, and mindful of the *Page 570 present contention of respondents, we are still of the view that respondents cannot justifiably, even by means of peaceful picketing, interfere with the nonunion employer's right to conduct his business without molestation. To thus interfere, is an unjustifiable wrong done to the employer. The fourteenth amendment cannot be invoked as a mantle of protection under which the wrongdoer can plead immunity from the judicial processes of our courts. Decisions of the supreme court of the United States to the effect that picketing of the character here involved is lawful, in construing the Norris-LaGuardia act, are not controlling upon this court. It is apparent, from the decision in Adams v.Building Service Employees etc. Union, supra, that, in construing our own anti-injunction statutes, this court has not seen fit to follow the supreme court of the United States in its construction of the Norris-LaGuardia act, as to what constitutes a labor dispute. It was stated in the Adams case, that, since the legislature of 1937 had met subsequent to the decision of theSafeway case in 1935, and had made no amendment to the labor dispute act evincing an intent to override our construction of that act, such acquiescence on the part of the legislature in our construction was evidence that such construction was in accordance with the legislative intent. It is for this state to determine, under the exercise of its police powers, what conduct of its citizens shall be lawful and what shall not be. Of course, the state may not declare unlawful that which the constitution of the United States, as interpreted by the supreme court of the United States, has expressly made lawful. However, so far as we have been able to determine, on no occasion has the supreme court of the United States held that the state courts may not enjoin a labor union from engaging in unlawful picketing (unlawful *Page 571 under the laws and decisions of that state) because of any inhibition to be found in the fourteenth amendment. Respondents, in support of the contention made in the instant case, rely principally on three cases under which they contend the former decisions of this court, to which reference has been made, are not controlling, and further contend that, because of the decisions in those three cases, peaceful picketing is protected by the fourteenth amendment and cannot be enjoined by the courts of this state, under the circumstances of this case. We fully appreciate the importance of the question raised, both to employers who are situated as appellants are in this case, and to labor unions, and we have carefully considered the cases cited by respondents, to which we shall now refer. In Senn v. Tile Layers Protective Union, 301 U.S. 468,81 L.Ed. 1229, 57 S.Ct. 857, Mr. Justice Brandeis, who wrote the opinion, very carefully pointed out that the conduct complained of was favored by the public policy of Wisconsin, as expressed by its legislature and its court, saying: "The Legislature of Wisconsin has declared that `peaceful picketing and patrolling' on the public streets and places shall be permissible. . . . "The laws of Wisconsin, as declared by its highest court, permits unions to endeavor to induce an employer, when unionizing his shop, to agree to refrain from working in his business with his own hands — so to endeavor although none of his employees is a member of a union. Whether it was wise for the State to permitthe unions to do so is a question of its public policy — not ourconcern. The Fourteenth Amendment does not prohibit it. . . . "Exercising its police power, Wisconsin has declared that in a labor dispute peaceful picketing and truthful publicity are means legal for unions. . . . "We hold that the provisions of the Wisconsin statute *Page 572 which authorized the conduct of the unions are constitutional. One has no constitutional right to a `remedy' against the lawfulconduct of another." (Italics ours.) We are satisfied that the holding in the Senn case cannot be taken as expressing the view of the supreme court on a situation not then before it and such as here presented, where the conduct complained of has been expressly held by the courts to be unlawful. In Thornhill v. Alabama, 310 U.S. 88, 84 L.Ed. 1093,60 S.Ct. 736, and Carlson v. California, 310 U.S. 106, 84 L.Ed. 1104,60 S.Ct. 746, the supreme court had before it, in the first case, a state statute, and in the second case, a municipal ordinance. In both the state statute and the ordinance, all forms of picketing were, in effect, forbidden. In considering the above cases, no distinction in treatment was made between the state statute and the municipal ordinance. We think it essential in the beginning to appreciate the precise question which was being considered in the above cases. The court, speaking through Mr. Justice Murphy, has clearly set forth the scope of the rule which was being laid down. We are of the opinion the decisions do not purport to decide the merits of petitioners' claims to constitutional protection for their conduct on those occasions; they go no further than to consider the constitutionality of the statute and ordinance under which the convictions were had. These were considered "on their face" to be unconstitutional, and therefore any conviction under them, for any conduct whatsoever, was a nullity, and could not be upheld. We quote from the Thornhill case: "The section in question must be judged upon its face. "The finding against petitioner was a general one. It did notspecify the testimony upon which it rested. The charges were framed in the words of the statute *Page 573 and so must be given a like construction. The courts below expressed no intention of narrowing the construction put upon the statute by prior State decisions. In these circumstances, thereis no occasion to go behind the face of the statute or of thecomplaint for the purpose of determining whether the evidence,together with the permissible inferences to be drawn from it,could ever support a conviction founded upon different and moreprecise charges. . . . "There is a further reason for testing the section on its face. Proof of an abuse of power in the particular case has never been deemed a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas. . . . An accused, after arrest and conviction under such a statute, does not have to sustain the burden of demonstrating that the State could not constitutionally have written a different and specific statute covering his activities as disclosed by the charge and the evidence introduced against him. . . . Where regulations of the liberty of free discussion are concerned, there are special reasons for observing the rule that it is the statute, and not the accusation or the evidence under it, which prescribes the limits of permissible conduct and warns against transgression. . . . "Fourth. We think that Section 3448 is invalid on its face." (Italics ours.) See last sentence of footnote 23: "And § 3448, in any event, must be tested upon its face." Quoting from the opinion in the Carlson case: "This case presents the question whether regulations embodied in a municipal ordinance abridge the freedom of speech or of the press secured against state invasion by the Fourteenth Amendment.. . . "Our decision in Thornhill v. Alabama, No. 514, decided this day [310 U.S. 88, 60 S.Ct. 746], goes far toward settling the issues presented here. Under that decision, Section 2 of the ordinance in question is to be judged upon its face." Tested on its face, each statute was found unconstitutional because of its scope and inherent danger — *Page 574 danger caused by the fact that such a statute readily lends itself to harsh and discriminatory enforcement by local prosecuting officials. This thought is shown in the Thornhill case, as follows: The rule that proof of an abuse of power in a particular case has never been deemed a requisite for attack on the constitutionality of such a statute ". . . derives from an appreciation of the character of the evil inherent in a licensing system. The power of the licensor against which John Milton directed his assault by his `Appeal for the Liberty of Unlicensed Printing' is pernicious not merely by reason of the censure of particular comments but by reason of the threat to censure comments on matters of public concern. It is not the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion. See Near v. Minnesota, 283 U.S. 697,713. One who might have had a license merely for the asking may therefore call into question the whole scheme of licensing when he is prosecuted for failure to procure it. . . . A like threat is inherent in a penal statute, like that in question here, which does not aim specifically at evils within the allowable area of State control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press. The existence of such a statute, which readily lends itself to harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure, results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview." It is evident that the statute and ordinance in the cases last cited ban all picketing, without regard to whether it is in aid of a lawful or an unlawful purpose. We fully appreciate that, if we were to countenance such a broad use of the injunctive power of the *Page 575 courts of this state as to forbid all picketing, whether such picketing be in aid of a lawful or an unlawful purpose, there would be a like abridgment of constitutional rights. But the facts of this case do not involve that issue. We are asked by appellants to go no further than to enjoin a wrongful conduct — wrongful because it inflicts unjustifiable and material damage to their property rights. We are further of the opinion that the Thornhill case recognized the right of the state to place a reasonable limitation upon the freedom of speech. We quote again from that opinion: "We are not now concerned with picketing en masse orotherwise conducted which might occasion such imminent and aggravated danger to these interests as to justify a statute narrowly drawn to cover the precise situation giving rise to the danger. . . . Section 3448 in question here does not aim specifically at serious encroachments on these interests and does not evidence any such care in balancing these interests against the interest of the community and that of the individual in freedom of discussion on matters of public concern." (Italics ours.) We are therefore of the opinion there is nothing in the Senn case, the Thornhill case, or the Carlson case, which compels this court to recede from the position taken and the rule announced in the Safeway case and the other cases herein referred to which follow and approve the rule announced in theSafeway case. We therefore conclude that appellants, under the facts of this case and the law as laid down by this court, are entitled to injunctive relief, and that such relief may be granted without violating the constitutional guaranty of freedom of speech. The judgment of the trial court is reversed, with instruction *Page 576 to enter an order overruling respondents' demurrer to appellants' complaint. STEINERT, SIMPSON, MAIN, and ROBINSON, JJ., concur.