Swing v. American Federation of Labor , 372 Ill. 91 ( 1939 )

Contrary to the intimation in the majority opinion, this case does not involve the question of restraining violence. Appellants admit that an injunction against violence is proper. The sole issue is whether the circuit court erred in enjoining peaceful picketing. The fact that violence has occurred along with picketing is no reason for enjoining further peaceful picketing. In Fenske Bros. v. Upholsterers Union, 358 Ill. 239, at pages 259, 260, we said: "We come, now, to a consideration of the action of the chancellor in restraining the acts sanctioned by the statute, and in particular the suggestions of appellants in their answer to the bill. Inasmuch as the act is not unconstitutional, it necessarily follows that the chancellor erred in restraining the doing of any of the things sanctioned therein. In addition to the things enumerated in the statute, the answer suggested that the decree ought to provide that nothing therein contained shall be construed to restrain defendant unions from assigning two of their members or representatives to be, peaceably and without threats or intimidation, upon the public thoroughfares adjacent to the respective places of business of complainants for the purpose of carrying signs or placards announcing the strike and that the complainants are not employing union labor. Evidently it is impracticable for the legislature to prescribe in detail what constitutes peaceable persuasion. The power to determine whether or not acts complained of are within the terms of the statute was properly left in the courts. * * * It may well be said that the carrying of placards containing threats, malicious, abusive or designedly false statements is anything but peaceable persuasion. It may also be said that signs containing no such statements may be carried so offensively or with such annoyance as to amount to intimidation and thus be unlawful. On the other hand, carrying signs merely announcing the strike and that an employer is not employing union labor, with the single purpose of securing accessions to the ranks of a union, may be wholly peaceable persuasion. If not unlawful it may not be restrained. * * * The mere fact that acts of violence had been previously committed would of itself furnish no justification for enjoining legal acts of peaceable persuasion."

The decision in this case should depend on the answer to two questions: (1) Does the Illinois Anti-Injunction act (Ill. Rev. Stat. 1937, chap. 48, par. 2a) prevent the issuance of an injunction against peaceful picketing where there is no employer-employee relationship? (2) If it does, is it constitutional? There is no doubt about the answer to the second question. The Norris-LaGuardia act, (29 U.S.C.A. secs. 101-115, Supp. 1938,) which specifically provides that no employer-employee relationship need exist, has been upheld. (Lauf v. Shinner Co. 303 U.S. 323; New Negro Alliance v. SanitaryGrocery, id. 552.) The Wisconsin statute, which is similar to the Norris-LaGuardia act, has also been held constitutional. (Senn v. Tile Layers' Union,301 U.S. 468.) In the Senn case the United States Supreme Court said: "The unions acted, and had the right to act as they did, to protect the interests of their members against the harmful effect upon them of Senn's action. Compare American Steel Foundries v.Tri-City Central Trades Council, supra, 257 U.S. 184, 208, 209,42 Sup. Ct. 72, 78, 66 L. ed. 189, 27 A.L.R. 360. Because his action was harmful, the fact that none of Senn's employees was a union member, or sought the union's aid, is immaterial. * * * There is nothing in the Federal constitution which forbids unions from competing with non-union concerns for customers by means of picketing as freely as one merchant competes with another by means of advertisements in the press, by circulars, or by his window display. Each member of the unions, as well as Senn, has the right to strive to earn his living. Senn seeks to do so through the exercise of his individual skill and planning. The union members seek to do so through combination. Earning a living is dependent upon securing work; and securing work is dependent upon public favor. To win the patronage of the public each may strive by legal means. Exercising its police power, Wisconsin has declared that in a labor dispute peaceful picketing and truthful publicity are means legal for unions. It is true that disclosure of the facts of the labor dispute may be annoying to Senn even if the method and means employed in giving the publicity are inherently unobjectionable. But such annoyance, like that often suffered from publicity in other connections, is not an invasion of the liberty guaranteed by the constitution. * * * It is true, also, that disclosure of the facts may prevent Senn from securing jobs which he hoped to get. But a hoped-for job is not property guaranteed by the constitution. And the diversion of it to a competitor is not an invasion of a constitutional right."

The chief dispute centers around the question whether the Illinois Anti-Injunction act applies only to cases where an employer-employee relationship exists. As determinative of this issue the majority opinion relies alone on MeadowmoorDairies Inc. v. Milk Wagon Drivers' Union, 371 Ill. 377. That case held that the Illinois statute was patterned after section 20 of the Clayton act (29 U.S.C.A. sec. 52) which had been construed to be inapplicable where there was no dispute between employer and employee. However, even a casual examination of the two statutes shows a material difference. Section 20 of the Clayton act reads: "That no restraining order or injunction shall be granted by any court of the United States, or a judge or judges thereof, in any case between an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment, involving or growing out of a dispute concerning terms or conditions of employment," etc. The Illinois act provides: "No restraining order or injunction shall be granted by any court of this State, or by a judge or judges thereof in any case involving or growing out of a dispute concerning terms or conditions of employment, enjoining or restraining any person or persons, either singly or in concert * * * from peaceably and without threats or intimidation being upon any public street, or thoroughfare or highway for the purpose of obtaining or communicating information," etc. The United States Supreme Court, in DuplexPrinting Press Co. v. Deering, 254 U.S. 443, held that the words "in any case between an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment" required the existence of an employment relationship. It is significant that the Illinois legislature when it enacted the Anti-Injunction act, eleven years after the passage of the Clayton act and four years after the Supreme Court's construction of the quoted words, left them out. There was much dissatisfaction among the labor unions with the restrictive interpretation given section 20 of the Clayton act by the courts. This resulted in the passage of the Norris-LaGuardia act which remedied the defect of the Clayton act. (See New NegroAlliance v. Sanitary Grocery, supra.) I assume, as the majority opinion does, that the legislature knew the interpretation given by the United States Supreme Court to the quoted words of section 20 of the Clayton act. The only explanation that can logically be given to the omission of those words from the Illinois act is that the legislature did not intend that it be limited to disputes between the employer and his employees. All of this was ignored in the Meadowmoor Dairies case, supra.

As a practical matter there can be no doubt but that a labor dispute exists in the principal case. The refusal of an employer to operate a closed shop tends to lessen the advantages a union offers to its members. If the union is unable to enforce a uniform standard of wages in an industry, the employers who pay higher wages will sooner or later be compelled to lower wages or go out of business. The tendency of a non-union low-wage shop is to depress the wages of an entire industry. Thus the defendants in the principal case are only seeking to maintain the higher standard of wages and working conditions which it is the purpose of the union to give them. Such a purpose should be commended rather than condemned. It is unnecessary to consider the question of free speech which is virtually all the majority opinion covers. Here we have a statute obviously intended by the legislature to prevent the issuance of an injunction in a case such as the one before us. This statute as so construed is doubtless constitutional and should be enforced. While there is no violence, the taking of one customer by the arm, remonstrating with her and another customer for patronizing the place, and the legend on the placards to the effect that the shop was unfair to union labor, are combined and designated as unlawful acts and a libel. Disregarding this sophistry the entirely peaceable picketing should not have been enjoined in this case. Therefore I dissent.