Wallace v. International Ass'n , 155 Or. 652 ( 1936 )

The questions involved upon these appeals are whether a labor dispute within the meaning and intent of chapter 355, Laws 1933, was shown to exist at the time these suits were commenced, and, if so, is that act constitutional?

The act contains the same limitations upon the powers of the courts of this state that the federal act, commonly known as the Norris-La Guardia Act does in respect to the powers of the federal courts, but, under the express provisions of the act, these limitations apply only to the cases growing out of or involving a labor dispute and, in the absence of such a dispute, the act has no application. Hence, if the act does not apply, the question of whether it is constitutional is not involved.

The term "labor dispute" implies some controversy or dispute between an employer and his employees and must of necessity grow out of some dispute involving that relationship. In SafewayStores v. Retail Clerks' Union, 184 Wash. 322 (51 P.2d 372),United Electric Coal Companies v. Rice, 80 F.2d 1, and Laufv. E.G. Shinner Co., 82 F.2d 68, it was held that an act identical in terms with ours does not apply to a case where the relation of employer and employee does not exist. In the first case, the court said:

"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 of appellant'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 rights to do so, is an unwarranted attempt by individuals or persons to unreasonably interfere with the freedom 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 in the large sum of $2,200, in less than four months' time, with the avowed intention of continuing the same, to manifest irreparable injury and damage to the appellant.

"Under the facts and circumstances, the appellant is entitled to the remedy demanded in its complaint, including judgment for damages to the extent found by the trial court."

In the second case, the real controversy was between two unions and the employer to determine which union should represent the employees of the United Electric Coal Companies, which, the decision says, was an innocent bystander. In that case there was no dispute between the employer and its employees. The wage scales and working conditions were satisfactory to the employer and the employees alike, and the employer was prevented by the struggle between the two unions from operating its mine. In defining what constitutes a labor dispute within the meaning of the federal act, the court said:

"Do the facts present a case `growing out of a labor dispute' or which is `involved in a labor dispute', as those two phrases are used in the Act?

"Looking to the purpose, as well as to the words, of the Act, we are satisfied that the term `labor dispute' should be most broadly and liberally construed. The term `labor disputes' comprehends disputes growing out of labor relations. It infers employment — implies the existence of the relation of employer and employee. Disputes between these parties are the general subject matter of this legislation. All such disputes seem to be clearly included.

"Equally clear we think must be the conclusion that the dispute referred to in the statute must be one between the employer and the employee or growing directly out of their relationship. It does not apply to disputes between employees or to disputes between employee unions to which employer is not a real party. The employer is not precluded from invoking the jurisdiction of a Federal court of equity unless it appears that it was in some way a party to the dispute, between two unions.

"Confirmation of this conclusion may be found in the other sections of the Act which clearly indicate that the entire Act had reference to controversies over wages and conditions of employment which arise between employer and employee and result in strikes or threatened strikes which work hardships upon the innocent third party — the public.

"In seeking to avoid strikes, it was to be expected that arbitration would be encouraged and resort to court proceeding discouraged. It is quite apparent that the employer has nothing to arbitrate and no use for conciliators when it and its employees are in accord. It is hard to see what sort of arbitration or conciliation was intended if the legislation referred to anything other than to strained or striking relationships between employer and employee over wages and conditions of employment. Where the difference is between two unions, each striving to contract with the employer, and there is no controversy as to terms of employment with said employer, we are unable to see where any labor dispute exists to which the employer is a party.

"Of course, there may be a seeming controversy between two unions which is in reality merely a labor dispute between the employer and the employees. Such a situation falls within the meaning of the term `labor dispute'. The employer may not avoid inclusion in a labor dispute if he participates in union activity which directly or indirectly influences or affects employment relations."

In the Lauf case, the court said:

"Both the federal and state enactments are applicable only to cases involving or growing out of labor disputes, and the first question urged here is whether the facts presented constitute such a case. Appellants contend for an affirmative answer and appellee urges a negative answer.

"Under the authority of United Electric Coal Companies v. Rice, et al., 80 F.2d 1, decided by this court at its present term, the question must be answered in the negative. We there held that the labor dispute designated in the Norris-La Guardia Act referred to a labor dispute between the employer and the employee and did not apply to disputes between employees or to disputes between the employee unions to which the employer was not a real party. There the dispute was between the regular union which was the United Mine Workers of America, and a recently organized union which styled itself the Progressive Miners of America. Members of both unions were employees of the employer, and all, or practically all, of the employees were members of the United when the Progressive was organized. The dispute was of such magnitude that it was beyond control of the unions or the local officers. The employer was in no manner involved, except that it was suffering enormous damage without fault on its part. Both unions were satisfied with wages, hours, and conditions, and the strike was called merely because the employer would not cancel its contract with the United, and enter into a like contract with the Progressives. Under those circumstances the court enjoined the Progressives, and protected the sanctity of the contract and held that there was no labor dispute in which the employer was engaged or for which it was in any manner responsible.

"In the case at bar, the facts are quite analogous to those in the United Electric Case. In each case the real controversy was between the two unions, and the innocent employer suffered the damage. The instant case, however, is stronger for the employer in that not one of appellee's employees is a member of the appellant union. Indeed, neither the employer nor any of his employees are engaged or involved in a labor dispute with anyone. The controversy, rather, seems to be a unilateral one with the sole object of coercing appellee to compel its employees to join the appellant union, in order that it may represent the employees in their dealings with the employer. Appellants seek to accomplish that result by picketing and damaging the employer's business. But, under the Norris-La Guardia Act and the Wisconsin Labor Code, it would amount to a violation of both the federal and state law if appellee complied with appellants' demands, for under those laws the employer is specifically enjoined from influencing his employees in their choice of a union or their representative. The employees have refused to join the appellant union, they have organized their own union and have selected their own representative without interference or participation of their employer, and their rights in these respects are as fully protected by the laws as are those of appellants.

"The declared public policy of both the nation and State of Wisconsin establishes the substantive rights of appellee's employees which the courts will protect by injunction, though no specific provision therefor be contained in either Act. Texas N.O.R. Co. v. Brotherhood of Ry. S.S. Clerks, 281 U.S. 548, 50 S. Ct. 427, 74 L. Ed. 1034; Trustees of Wisconsin State Fed. of Labor v. Simplex Shoe Mfg. Co.,215 Wis. 623, 256 N.W. 56. It being unlawful for appellee to dictate to its employees what organization they should join, or what representative they should select, and likewise unlawful to refuse to recognize the agency which they had selected, and recognize another representative which they had rejected, it follows that appellants' demand upon appellee was unlawful.

"In Truax v. Corrigan, 257 U.S. 312, 42 S. Ct. 124,66 L. Ed. 254, 27 A.L.R. 375, the Court said:

"`Plaintiffs' business is a property right * * * and free access for employees, owner, and customers to his place of business is incident to such right. Intentional injury caused to either right or both by a conspiracy is a tort. Concert of action is a conspiracy, if its object is unlawful or if the means used are unlawful.'

"Hence it was held that picketing to accomplish a purpose which was unlawful was a tort which would be enjoined. True, that opinion was by a divided court, but there was no disagreement over the following statement which appears in one of the dissenting opinions:

"`The employer has, of course, a legal right to carry on his business for profit, and incidentally the subsidiary right to secure and retain customers. * * * This right to carry on business — be it called liberty or property — has value, and he who interferes with the right without cause renders himself liable.'

"The sum of appellants' contentions is that under the broad terms of the acts in question, appellants have a right to attain their ends by picketing at any time or place. The statutes are not fairly subject to any such construction. As stated in Truax v. Corrigan, supra, there must be a cause for such interference with business. Here there was no semblance of such cause, for there was no labor dispute between appellants and appellee because the relationship of employer and employees and their associates did not exist. United Electric Coal Companies v. Rice et al., supra.

"As supporting a contrary doctrine, appellants rely upon American Steel Foundries v. Tri-City Central Trades Council,257 U.S. 184, 42 S. Ct. 72, 78, 66 L. Ed. 189, 27 A.L.R. 360. In speaking of the union's rights and interests, the Court said:

"`Employees must make their combination extend beyond one shop * * * because in the competition between employers they are bound to be affected by the standard of wages of their trade in the neighborhood. Therefore, they may use all lawful propaganda to enlarge their membership.'

"In the case before us, the union's right to increase its membership is not questioned, even to the point of including appellee's employees if it can do so. The Court in the Tri-City Case referred to the case of Lucke v. Clothing Cutters' Trimmers' Assembly, 77 Md. 396, 26 A. 505, 19 L.R.A. 408, 39 Am. St. Rep. 421, which held `* * * that the state law authorizing formation of Trade Unions * * * was not a warrant for making war upon the nonunion man or for illegal interference with his rights and privileges.' We can not think that either Congress or the Wisconsin Legislature intended to increase the union's rights in this respect.

"Appellants also rely upon Levering Garrigues Co. v. Morrin (C.C.A.) 71 F.2d 284; Cinderella Theater Co. v. Sign Writers' Local Union (D.C.) 6 F. Supp. 164, and Miller Parlor Furniture Co. v. Furniture Workers' Industrial Union (D.C.) 8 F. Supp. 209. In the first two of these cases the facts are not closely analogous to the facts before us, and in the third case there seems to have been no expressed consideration of the public policy as defined in the Norris-La Guardia Act. For these reasons we do not feel justified in following the conclusions there reached in the respects mentioned. Other similar cases have been called to our attention but we think they do not give proper heed to the declared public policy by which we must be controlled."

The two cases last referred to were decided by the Circuit Court of Appeals, Seventh Circuit. The Rice case was decided on October 26, 1935, and the Lauf case February 29, 1936.

From these decisions, it will be seen that the real question and the only question necessary for decision is whether, at the time these defendants were engaged in picketing plaintiffs' premises, a labor dispute, as defined by chapter 355, L. 1933, existed between the plaintiffs and the defendants or between the plaintiffs and any persons whom the defendants were authorized to represent. Chapter 355 is merely a reenactment by the legislative assembly of this state of what is commonly referred to as the Norris-La Guardia Act. In and by its express terms it applies only to cases in which there is a labor dispute as defined in the act.

Upon the evidence introduced at the trial, the trial court held that there was no labor dispute between the plaintiffs and the defendants or between the plaintiffs and any persons whom the defendants were authorized to represent and, therefore, that the picketing was unlawful and should be restrained.

On page 162 of their brief, the defendants, without stating where the decision may be found, cite the case of Commonwealthv. Harris, [23 Pa. D. C. 254], which, they say, was decided on March 15, 1935, and quote therefrom as follows:

"The stationing of men at or near the plant or shop of the party with whom its workmen have a dispute, to induce other workmen to withdraw from or not to enter its employ, or to induce its customers or the general public to abstain from public relations with it, is a prerogative of the workingman and which will be protected by this court.

"Picketing is a concomitant of the right to organize. And the right of workingmen to organize into associations, and as individuals or as an organization to cease work for any employer, and to use all lawful and peaceful means to induce others to refuse to work for such employer, is a right that can not be questioned. To say that workingmen have the right to organize and to form labor unions, and then deny them the right to picket when they are offended, is equivalent to authorizing a watchman to carry a whistle but to prohibit him from blowing it. Picketing is the articulation of the workingman's protest.

"Picketing is a specific appeal to the public for their approbation and support. It intends to inform the public of the workingman's grievances. No one would dare suggest that labor has not the right by speech to tell the world of its complaints. Picketing differs only in form from free speech, a right guaranteed by the constitution."

This, they say, expresses the union view and is a reasonable view to be taken of the law on this question.

We believe as do counsel that it contains a correct statement of the law on that subject, but the very basis of the decision and reason for the rule announced is the picketing of a plant or shop of a party with whom its workmen have a dispute and, if that condition had existed here, an order restraining the picketing for the purposes there stated would be unlawful and should be reversed. But no such condition confronts us here. The whole evidence in these cases shows that there was no dispute between any one of the plaintiffs and any one of its employees. On the contrary, the whole evidence shows that every employee of the plaintiffs was satisfied with the scale of wages and terms and conditions of his employment; that none of them had ever made a complaint and that, with the exception of possibly three or four of the George B. Wallace Company employees, none of them belonged or ever had belonged to any labor union and only one of such union men was a member of the Mt. Hood Lodge, Local No. 1005. As to said union members, the evidence shows, they desired to continue to work and would have continued but for said picketing, and that they voluntarily quit when the picketing commenced. Whether since employed, the evidence does not disclose.

Therefore, this is not a case where union members were employed and were dissatisfied with their working conditions and the union, as the representative of its own members, were seeking to change the terms and conditions of employment. In such case, the union, under certain circumstances, would be authorized to represent its own members but in the instant case it had no such authority because none of its members were dissatisfied with the terms and conditions of their employment. No person has authority to represent another unless expressly or impliedly authorized to do so by the person to be represented and, since no member of the union was dissatisfied or desired a change in the terms and conditions of his employment, there was no need for any arbitration or collective bargaining in their behalf and no implied authority for the union to act for them, there being no labor dispute.

The evidence further shows that none of the plaintiffs ever had any contractual relations with any union and that all of them were attempting to run an open shop without, in any way, discriminating between union and nonunion labor. There was, therefore, no labor dispute with any fair meaning of that term, since no controversy or disagreement existed between plaintiffs and their employees.

In these cases, therefore, there was no labor dispute. There was no need of collective bargaining and no desire upon the part of any of said employees to have the defendants act for or represent them in any way, but it is contended that there was a dispute between the defendant union and the plaintiffs because of the fact that plaintiffs' employees were being paid by piece work and not by the hour. The right of an employer to pay his men for the work done by the piece rather than by the hour is purely a matter of contract between the employer and his employees, and, if that method of payment is satisfactory to the employer and to all the employees, no one else has the right to complain much less to attempt to destroy the business of the employer by picketing his premises. There is no evidence which in any way tends to show that the defendants or any of the employees of the plaintiffs ever demanded of the plaintiffs that the men should be paid by the hour rather than by the piece. Nor is there any evidence that the defendants ever requested that the plaintiffs should conform to any union standards or ever disclosed to the plaintiffs what those standards were. Nor is there any evidence that, if the union standards had been adopted by the plaintiffs, the men would have received more pay than that actually received by them for their work or that the terms and conditions of their employment would have been improved or rendered more satisfactory to the employees.

Under these conditions as established by the evidence, I think it is error for the court to now hold, as it must do in order to reverse the decrees of the lower court, that there was a labor dispute within the meaning of chapter 355, L. 1933, and that that act is applicable to the facts of this case. Such a holding, in my opinion, disregards the very purpose and object of the act and, if the majority opinion is adhered to, it will open the door to all forms of racketeering in cases where both the employer and all his employees are in perfect accord as to their wage scale and terms and conditions of employment and will bring about a condition of affairs destructive of the public welfare. If given that construction, it will render the statute unconstitutional.

Chapter 355, when properly construed and if applied in accordance with its declared policy, guarantees to every man the right to join a union or not as he pleases, and, whether union or nonunion, the right to labor and to every employer the right to operate his business as an open or closed shop without interference by any third party so long as no controversy exists between the employer and any of his employees as to wages, working conditions or hours of employment. Given a different construction, it will result in intimidation, coercion and oppression, and to a denial of the constitutional rights of both the employer and the employee.

For these reasons, I am compelled to dissent from the majority opinion.