Missouri Pacific Railroad v. United Brick & Clay Workers Union Local No. 602

George Rose Smith, J. This suit arises from a strike which is taking place at the Acme Brick Company’s plant near Malvern. There are two means of' access to the Acme plant, one by a public road leading to the company’s gates and the other by a spur track from the appellant’s main line. The striking employees, members of the appellee labor union, established picket lines at the highway gates and also at a point about a quarter of a mile from the plant where the main line crosses a public highway. The railroad company brought this suit to enjoin the union from maintaining the latter picket line. At the conclusion of the plaintiff’s proof the chancellor sustained the union’s motion to dismiss the complaint for want of equity. The chancellor, in passing upon the motion to dismiss, was required to view the evidence in the light most favorable to the plaintiff, Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, and we follow the same rule upon appeal. So considered, the testimony shows that Acme’s employees went on strike in May, 1950. Acme employed other workmen and continued to operate its plant in spite of the strike. The picket line now complained of was established by the union at a point as close to the Acme plant as the strikers could occupy without trespassing on property of Acme or of the railroad. The proof makes it plain that the pickets’ purpose is to convey their message to trainmen who are on their way to the Acme plant. During most of the day the pickets sit idle, paying no attention to passing motorists or to the appellant’s through trains. But when a switch engine destined for the Acme plant comes in view the pickets stand on the highway and display their signs. The railroad’s regular crews invariably refuse to drive across the picket line. Hence the railroad company has been sending supervisory employees from Little Rock on each trip to the Acme plant. "When the picket line is reached the regular crews stop the train and alight, and the supervisory employees take charge and run the train into the plant to pick up loaded cars or to leave empty ones. The regular crews resume control when the train repasses the picket line. This system has been so inconvenient to the railroad company that it sends trains only twice a week instead of daily, as it used to do. In its argument the appellant concedes the union’s right to maintain a peaceful picket line for a lawful purpose. This case differs from the average only in that the pickets patrol an isolated railroad crossing instead of a sidewalk used by the general public. But the railroad track is a means of access to the Acme plant, and we think it immaterial that the railroad company alone habitually uses this entrance. It is easy to imagine a sawmill situated in a forest, accessible only by rail. Unless pickets could present their message to persons arriving by train such a mill would be immune from the usual means of advertising the existence of a strike. The appellant, to distinguish this case from ordinary sidewalk picketing, insists that this picket line is maintained for an unlawful purpose and therefore may be enjoined under the doctrine of Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 69 S. Ct. 684, 93 L. Ed. 834, and similar decisions. In an effort to show that the appellee’s purpose is illegal the appellant presents a threefold argument. First, it is said that the picketing prevents the railroad from complying with its duty to provide equal and nondiscriminatory service to all shippers. Ark. Const., Art. 17, §§ 3 and 6. This argument is unsound. It is at least questionable whether a railroad is required to provide service when impeded by a strike beyond its control. See Gage v. Ark. Central R. Co., 160 Ark. 402, 254 S. W. 665. But a more clear-cut answer to this contention is that the purpose of the picketing is not to prevent the carrier from performing its duties; that is merely an incidental result. And that result comes about only because the railroad’s own employees, over whom it presumably has control, are refusing to cross the picket line. Carried to its logical end the appellant’s argument would outlaw all picketing, since it could always be shown that some employee of a motor carrier or other public utility had refused to enter the strike-bound premises. Second, we have an 1868 statute making it a misdemeanor for any person to do any willful act whereby a railway engine is stopped or obstructed. Ark. Stats., 1947, § 73-1105.' Construing this penal statute strictly, we think it inapplicable to the present case. The statute is manifestly aimed at physical obstructions or other conduct endangering lives or property; indeed, it gives the railroad treble damages for ensuing injuries to its property. Under a like statute it has been held not an offense for a passenger wrongfully to pull an emergency signal-cord, causing the engineer to stop the train. Commonwealth. v. Killian, 109 Mass. 345, 12 Am. Rep. 714. There it was said: “This evidence fails to prove a criminal obstruction of the train, within the reasonable meaning of the statute. The law was not intended to apply to a case where the train is stopped by an engineer, or other person having control, in consequence of a false signal communicated in this manner by a passenger. . . . If the terms of the statute do not imply an actual physical obstruction, they at least require something more than the use of the agencies here employed.” We agree with the Massachusetts court and think it rather far-fetched to suppose that by this law the General Assembly intended in 1868 to establish a policjr making a picket line unlawful simply because sympathetic railway employees prefer not to cross it. Third, it is contended that since the appellant alone is hampered by the picket line it amounts to a secondary boycott and is therefore unlawful. See 29 U. S. C. A. § 158 (b), and Boyd v. Dodge, Chancellor, 217 Ark. 919, 234 S. W. 2d 204. If we assume, without deciding, that a secondary boycott is unlawful in Arkansas, we find no such boycott in the appellee’s conduct. The picket line is maintained as close to Acme’s plant as is possible without a trespass. As we have already seen, the fact that the appellant alone is affected is immaterial. Like most picket lines this one has among its purposes that of discouraging outsiders from doing business with the strikers’ former employer. In its present location the picketing is primary and not secondary. As to the federal law, the exact point was decided adversely to the appellant in Ryan Construction Corp., 85 N. L. R. B., No. 76. There the strikers picketed the entire premises, including a gate which had been cut in the fence for the exclusive use of a construction company which was working on a project for the strike-bound employer. The employees of the construction company refused to cross the picket line at their special gate. The Board held that the picketing, even though it affected only the construction company, was primary and therefore not an unfair labor practice under the cited section of the Taft-Hartley Law. So here, the appellee is picketing both entrances to the Acme plant, and the strike is not directed against the appellant merely because it is the only visitor using this particular entrance. Affirmed.