Greenfield v. Central Labor Council

JOHNS, J. The vital question presented is the application, construction and constitutionality of Chapter 346, Laws of 1919, the material portions of which are copied in full in the companion case of Heitkemper et al. v. Central Labor Council et al. The plaintiff is the moving party, and it was for him to prove by a preponderance of the evidence that the picketing was not. done in a peaceful or lawful manner. His proof as to the manner and method of picketing appears from the affidavits of Frances Grant, I. M. Banks, E. H. Carpenter, H. W. Harper, E. L. Lynch, E. Weygandt, all of whom are employees of the plaintiff, and John L. Zingelmann, his — 246 — manager. It tends to show that the pickets spoke in a loud, blatant voice, “so as to be heard up and down the street by people entering into said store and by the customers in the store.” The defendants’ proof of what the pickets said and the manner in which they spoke appears from the affidavits of a member of the defendant union, of W. H. Richardson, who is not a member of any union, L. D. Mahone, the pickets Frances Weaver, Mamie Cooper, C. C. Belieu, Mrs. Bertha Hart, Leona M. Stringer, and Theresa Pomeroy, and F. C. Preston, L. C. Novak, and Steve Woodford. From these declarations it would seem that the pickets did not in any manner annoy or disturb anyone entering or departing- from plaintiff’s stores or passing along the streets by them, or in any way disturb the general public; that the words were uttered in a respectful manner, distinctly but only loud enough to be heard by people passing along in front of the stores; and that it was all done “in a respectful and ladylike manner.” There were seven affidavits on the part of the plaintiff by individuals who were all in his employ, eleven on the part of the defendants by affiants who were members of the union or in its employ, and three affidavits for the defendants by individuals not shown to be connected with the union in any way. It will be noted that there is no independent declaration by anyone on the part of the plaintiff, and in so far as we are advised, all of the affidavits are entitled to equal weight. If it is a fact, as the statements in behalf of the plaintiff tend to show that “the voices of the pickets were loud, sometimes shrill and blatant,” it would have been an easy matter to — 247 — procure some evidence of it from disinterested sources. Although we agree with the trial court in its findings as to what the pickets said, yet, as we construe the record, they spoke in an ordinary tone of voice and not in a loud or unusual manner. Policemen were present and there is no evidence of any complaint or arrests, or that there was any violence or disturbance of the peace. In fact, the pickets were placed in front of each store for the sole purpose of advising people entering or departing therefrom that “this place is unfair to organized labor. Please do not patronize it. Friends of union labor and all workingmen will not patronize this place. All others should not.” That was the sum and substance of their offending. The words were'uttered in the usual and ordinary tone of voice used by people speaking to others on a public street. The defendants claim that under Chapter 346, Laws of 1919, they had a legal right to do what was done. As stated, the contract between them and the plaintiff did not expire until March 1, 1920, and it was broken by the plaintiff on or about November 15, 1919. By the terms of that contract the union agreed to, and we must assume that it did, “advise all local organizations of the City of Portland and the State of Oregon” of the fact that the plaintiff had signed the agreement, wherein it was stipulated “by all parties that the interests of each shall be mutually taken care of and advanced.” After the plaintiff broke his contract the defendants claimed that he was unfair to organized labor, and that so long as they acted in a peaceful and lawful manner they had a right to make that fact known, and to re — 248 — quest the public in general, as well as the members of the union, not to patronize the plaintiff. It is also shown by the affidavits of three of his employees that the plaintiff had violated his contract with them in respect to the payment for overtime, although this was denied by his manager. In other words, there was a dispute between an employer and employees growing out of an employment, within the terms and provisions of Chapter 346, Laws of 1919. Because a strike was declared and the union employees walked out, plaintiff claims that the relation of employer and employee ceased to exist; that there was no longer any “dispute concerning terms or conditions of employment,” wherefore Chapter 346, Laws of 1919, 'would not apply. Counsel have not cited and we have not found any authority which sustains that contention, and where that question has been decided the authorities are against, it. On this point, Section 20 of the Clayton Act (38 Stats, at L. 738, U. S. Comp. Stats., § 1243d), is identical with Section 2 of Chapter 346, Laws of 1919. In Tri-City Central Trades Council et al. v. American Steel Foundries, 238 Fed. 728 (151 C. C. A. 578), construing the Clayton Act, the Circuit Court of Appeals, Seventh Circuit, holds: “A labor union, of which former employees engaged in a strike were members, is not a mere inter-meddler, whose intei'ference with other employees may be restrained, when only lawful means are used, since a strike does not fully terminate the relationship between the parties, but creates a relationship, neither that of general employer and employee, nor that of employers and employees seeking work from them as strangers.” The opinion there says: — 249 — “Neither strike nor lockout fully terminates during the strike the relationship between the parties.” In Duplex Printing Press Co. v. Deering et al., 252 Fed. 722 (164 C. C. A. 562), the syllabus lays down the rule that: “Where union employees of open shop go out on strike for closed shop, employer’s action for injunction against officers and members of union organization to which strikers belong held within Clayton Act * # relating to granting of injunctions in cases growing out of dispute concerning conditions of employment. ’ ’ In Iron Molders’ Union v. Allis-Chalmers Co., 166 Fed. 45 (91 C. C. A. 631, 20 L. R. A. (N. S.) 315), in his concurring opinion Mr. Justice G-rosscup of the Circuit Court of Appeals, Seventh Circuit, says: “A lockout is a cessation of the furnishing of work to employees in an effort to get for the employer more desirable terms. Neither strike nor lockout completely terminates, when this is its purpose, the relationship between the parties. * * Manifestly, then, pending a strike or a lockout, and as to those who have not finally and in good faith abandoned it, a relationship exists between employer and employee that is neither that of the general relation of employer and employee, nor, again that of employer looking among strangers for employees, or employees seeking from stranger» employment.” The contract between plaintiff and defendant union, as stated, did not expire until March 1, 1920. The strike was called on January 19, 1920. At that time, according to the finding of the trial court, all of the employees of the plaintiff at both of his stores, except four, were members of the defendant union. The complaint in this suit was filed on January 23, 1920. Based upon such facts, we hold that the rela — 250 — tion' of employer and employee and the terms and conditions of employment continued to exist after the strike was called, bringing the case under Sections 2 and 3 of Chapter 346. Assuming that to be true, plaintiff contends that such sections are unconstitutional. Section 2 of Chapter 346 is identical with paragraph 1464, Ariz. Civ. Code of 1913, and with Section 20 of the Clayton Act. If it is unconstitutional, so are the two latter laws. The Clayton Act was passed in 1914. In so far as we are advised its constitutionality has never been attacked and no federal court has ever declared it unconstitutional. When we consider its history, why it was enacted, that it applies with equal force to every state in the Union, and that it has now been in existence for six years, the fact that its validity has never been impeached in the federal courts against which it was aimed becomes important and is worthy of serious consideration. For this court now to hold that Sections 2 and 3 of Chapter 346, Laws of 1919, are null and void would be, in legal effect, to declare Section 20 of the Clayton Act unconstitutional. Again, Section 2 of Chapter 346 is identical with paragraph 1464 of the Ariz. Civ. Code of 1913, the constitutionality of which was sustained in the opinion of the supreme court of that state on December 14, 1918. Chapter 346 was enacted by the Oregon legislative assembly of 1919, and in the absence of the referendum, became the law of this state ninety days after its passage. In other words, at the time of its adoption, Section 2 of Chapter 346, which is a copy of paragraph 1464 of the Ariz. Civ. Code of 1913, had been construed and its constitutionality was sustained by a decision of the Supreme Court of Arizona. — 251 — The question was raised in the case of Truax v. Corrigan, 20 Ariz. 7 (176 Pac. 570), and the court held: “Civil Code of 1913, paragraph 1464, authorizing injunction in case between employer and employee only when necessary to prevent injury to property right for which there is no adequate remedy at law, does not deny to employers, seeking injunction to restrain picketing, equal protection of law, or deprive them of the property without due process of law, under Const. U. S. Amendment 14; such statute not forbidding injunction to restrain unlawful acts, but merely throwing burden upon employer to prove that the picketing* sought to be restrained is unlawful.” The opinion reads thus: “It is quite clear that the statute recognizes the right of striking employees to carry on a campaign of picketing in furtherance of a strike for a lawful purpose, provided the means used, and the manner in which such means are used, are peaceable and otherwise violate no legal rights of the party whose premises are subjected to the picketing, and are not in violation of any duty owing by the striking employees to such party or to the public. In no sense can the statute be considered as one either depriving the plaintiffs of property without due process of law, or denying plaintiffs the equal protection of the law. “The plaintiffs’ property rights are not invaded by picketing, unless the picketing interferes with the free conduct of the business by the plaintiffs; and plaintffs do not claim that defendants have, by using violent means with picketing, invaded their rights in this respect, by causing a loss in business. If such nature of picketing should be charged and esr tablished by proof, plaintiffs would be entitled to relief to the extent of prohibiting the use of violence in any form. By the statute the plaintiffs are deprived of an order restraining peaceful, not violent, unlawful acts, and, to entitle a plaintiff to an order restraining violent unlawful acts, he is required to — 252 — set forth facts sufficient to constitute such acts as amount to unlawful acts, and sustain such complaint by substantial evidence. The statute conflicts with neither constitutional provision invoked.” • In State v. Finch, 54 Or. 482 (103 Pac. 505), the opinion of Mr. Justice McBride holds: “Another canon of construction is that, when a constitutional provision has been taken or copied from the Constitution of another state, after it has been construed by the courts of that state, it will be presumed to have been adopted with the construction placed upon it by the courts of the state where it originated.” The opinion of this court in State v. Cochrcm, 55 Or. 157 (104 Pac. 419, 105 Pac. 884), lays down the rule that the Constitution of a state, unlike that of the United States, is a limitation upon, and not a grant of power; that any law adopted by the legislature which is not prohibited by the Constitution must be sustained, and that the inhibition must appear expressly or impliedly, beyond a reasonable doubt. Although there are portions of the opinion of the Supreme Court of Arizona that we do not approve, and the terms and provisions of Sections 2 and 3 of Chapter 346, Laws of 1919, may be close to the border line, yet under such rules of construction it is our duty to hold those sections of the act' constitutional. The remaining question is whether or not the picketing was done “by peaceful and lawful means.” ■ In an exhaustive note to the case of Re Langell, 178 Mich. 305 (144 N. W. 841, 50 L. R. A. (N. S.) 412), we find: “The decisions are not harmonious upon the question as to the legality of picketing per se, and — 253 — whether picketing as such should be enjoined irrespective of the question of actual violence or conduct attending the picketing calculated to intimidate. It may be said, however, that the majority of the cases cited in the present, as well as in the earlier, note, recognize, or at least do not deny, that picketing may bé lawful in some circumstances; in other words, hold or concede that picketing is not unlawful per se and should not as such be enjoined; although there is discernible a growing tendency to accept the contrary view adopted in Be Long ell, upon the ground that, as a practical matter, there can be no such thing as peaceable picketing, especially where there are a considerable number of pickets.” Numerous authorities pro and con are collated, but the opinion was rendered on January 5, 1914, and all the cases it cites were decided prior to the passage of the Clayton Act. Neither of them is founded upon that or any similar statute, but, in the absence of such a law, the wéight of authority seems to be in favor of limiting and restricting peaceful picketing. In Duplex Printing Press Co. v. Deering et al. (D. C.), 247 Fed. 192, decided by the United States District Court for the Southern District of New York on April 23, 1917, it is held: “That the object of such action [picketing' and boycott] by defendants was lawful, and that, in the absence of evidence that unlawful means were resorted to for its accomplishment, the fact that defendants’ acts resulted in injury to complainant’s •business did not authorize the granting of an injunction by a federal court under Clayton Act.” Quoting again from the opinion in Tri-City Central Trades Council v. American Steel Foundries, 238 Fed. 733 (151 C. C. A. 583), it is said': ■ “Indeed the very act of striking often seriously interferes with that free and unrestrained control and operation of the employer’s business, which the — 254 — plaintiff here alleges as an object- of the conspiracy charged; but the lawfulness or unlawfulness of the strike is not to be tested by such incidental effect of it. And so it is with persuasion and picketing, properly carried on in the interests of a lawful strike. The laborer may be strictly within his rights, although he obstructs ‘the free and unrestrained control and operation of the employer’s business.’ The right to strike must carry with it, by implication, the right to interfere with the employer’s business to a certain extent. The right to persuade prospective employees by legitimate argument must of necessity interfere with the employer’s business. Where labor is essential to the successful conduct of a business, any interference with that labor is an interference with the employer’s business. But, whether the interference with the business is lawful or unlawful depends upon the facts in each case.” On this point we find the following statement in Iron Holders’ Union v. Allis-Chalmers Co., 166 Fed. 45, 49, 51 (91 C. C. A. 631, 635, 637, 20 L. R. A. (N. S.) 315): “The parts of the decree which prohibit the use of persuasion and picketing can be justified only on the basis that such means are not lawfully to be applied in a genuine struggle of labor to obtain better terms and conditions; for surely men are not to be denied the right to pursue a legitimate end' in a legitimate way, simply because they may have overstepped the mark and trespassed upon the rights of their adversary. A barrier at the line, with pun-' ishment and damages for having crossed, is all that the adversary is entitled to ask. * * “With respect to picketing as well as persuasion, we think the decree went beyond the line. The right to persuade new men to quit or decline employment is of little worth unless the strikers may ascertain who are the men that their late employer has persuaded, or is attempting- to persuade, to accept employment. Under the name of persuasion, — 255 — duress may be used; but it is duress, not persuasion, that should be restrained and punished. In the guise of picketing, strikers may obstruct and annoy the new men, and by insult and menacing attitude intimidate them' as effectively as by physical assault. But from evidence it can always be determined whether the efforts of the pickets are limited to getting into communication with the new men for the purpose of presenting arguments and appeals to their free judgments. Prohibition of persuasion and picketing, as such, should not be included in the decree.” It is true that, notwithstanding the provision of the Clayton Act, injunctions were granted in the cases of Stephens v. Ohio State Telephone Co. (D. C.), 240 Fed. 759, and Alaska S. S. Co. v. International Longshoremen’s Assn. of Puget Sound et al. (D. C.), 236 Fed. 964. Both of these decisions are founded upon important and vital facts from which it clearly appears that there was an unlawful conspiracy by the defendants to do" unlawful acts.; that their methods and conduct were neither lawful nor peaceful; and that there were breaches of the peace and continued acts of violence. In the first case, the telephone company was a public service corporation; and in the second, the steamship company was engaged in carrying United States mail. For such reason neither of them is in point here. The word “unfair” is used by the pickets in defendants’ employ is thus defined by the opinion in Parkinson Co. v. Building Trades Council, 154 Cal. 581 (98 Pac. 1027, 16 Ann. Cas. 1165, 21 L. R. A. (N. S.) 550). “In reference to the word 'unfair,’ it clearly appears that, as employed by the defendants and labor organizations generally, it has a technical meaning — 256 — well understood by the plaintiff and by all the persons to whom the council sent notices that plaintiff had been declared unfair. Such declaration means, and in this instance was understood by all the parties concerned to mean, not that the- plaintiff had been guilty of any fraud, breach of faith, or dishonorable conduct, but only that it had refused to comply with the conditions upon which union men would consent to remain in its employ or handle material supplied by it.” Roraback v. Motion Picture Machine Operators Union, 140 Minn. 481 (168 N. W. 766, 169 N. W. 529, 3 A. L. R 1290), lays down the rule that: “Men, either singly or in combination, may use any lawful means to accomplish a lawful purpose, although the means adopted may cause injury to another; but they may not intentionally injure or destroy the business of another to accomplish an unlawful purpose.” We find the following in 16 E. C. L., page 432, section 15: “In the former ease the test as to the lawfulness of concerted action is whether there is any lawful object or purpose common to such persons which that course of conduct is reasonably and fairly calculated to promote, and whether they act in good faith, for the primary purpose of promoting that object, or % willfully, for the primary purpose of injuring another. * * “In view of what has already been stated, there can be no doubt that the facts of a labor combination directed solely for the betterment of the condition of the workingmen is a worthy, and therefore not an unlawful, purpose. This applies even to acts which a labor organization has only a qualified right to do. # * [Page 432, Section 16.] “The decision of the question whether ‘picketing’ is lawful or unlawful depends upon the circumstances surrounding each case. * * [Page 454, Section 33.] — 257 — “The persuasion used by employees need not be confined to members of their organization or to other workmen; they may take proper measures to induce third persons to withhold their patronage from their employer, in order to compel him to recognize their demands. But, as has already been intimated, they must not coerce and intimidate the employer’s customers into severing their relations with him. There is, however, difference of opinion as to what constitutes such coercion. The mere fact that the employer’s customers are induced not to purchase goods from him for fear of incurring the ill will of the members of the union has been held not to render unlawful the act of the members of the union. * * [Page 455, Section 34.] _ “However, as members of a labor union have the right to strike, they also have the right, either by speech or writing, to give notice of their intention so to do, and, having lawfully gone on a strike, they have the right to give notice of the strike, as a matter of news, or to anyone interested therein. In other words, the mere fact that a person dependent on the public for patronage is having a controversy with labor which will injure him in that patronage if generally known, does not entitle him to be protected from that injury by restraining the dissemination of the fact among his patrons that he is engaged in such a controversy.” . [Page 457, Section 35.] By the terms of the contract, the defendant union had notified all members of labor unions that the plaintiff had signed an agreement with it, and in effect that he was “fair to organized labor.” After plaintiff broke the contract, the strike became and was legally justified, and the defendants then had, at least, the legal right to notify members of the union that he was “unfair to organized labor.” It was a justifiable strike for a lawful purpose, and, — 258 — as we construe the record, it was done in a peaceful and lawful manner. It was called because the plaintiff breached his contract, and to further and protect the interests of the union and its members. Any damage to plaintiff therefrom was incidental to the strike and was damnum absque injuria. The decree of the Circuit Court will be modified, and one will be entered here permitting the defendants during business hours to place and maintain one picket only, on the outer edge of the sidewalk, at each public entrance to plaintiff’s stores, with authority to each picket to wear a banner or scarf inscribed with the words, “Unfair to Organized Labor, Local Union No. 1257,” and in the usual, ordinary tone of voice used by one individual in addressing another on the public street to say to any prospective customer: “This place is unfair to organized labor. Please do not patronize it. Friends of union labor and all workingmen will not patronize this place,” but not in any manner to impede or interfere with the right of anyone to enter or depart from the said stores, or any passer-by. Any picket so placed is hereby enjoined from the doing of any other act or thing which is intended to or would. divert or turn away any patron or prospective customer from plaintiff’s places of business. Otherwise the defendants and each of them, their agents, servants and employees, are hereby enjoined and prohibited from interfering with, intimidating or harassing the plaintiff or any of his employees at his said places of business, or from the use of any violence, threat or intimidation to induce any customer or patron to withhold or withdraw patronage from the plaintiff. Former opinion modified on rehearing May 31, 1922. (207 Pac. 168.) For the reason stated in the Heitkemper case, neither party shall recover costs in this or the Circuit Court. Modified. Decree Entered. McBride, C. J., and Bean, Benson and Harris, JJ., concur in the result. Burnett, J., dissents.