Minor v. Building and Construction Trades Council , 75 N.W.2d 139 ( 1956 )

GRIMSON, Judge.

The plaintiffs, Louis E. Minor, Jr. and Herbert S. Woods, co-partners, doing business as Oil Field Service Co., and Warren Diederich and Gene Bye, co-partners, doing business as Diederich & Bye, were contractors engaged in the construction business. They had jointly entered into a contract with the Signal Oil & Gas Company for doing the stone and concrete work on the $9,000,000 gas extraction plant which the Signal Oil & Gas Company was building near Tioga, North Dakota. The defendants are labor unions and their officers and representatives.

The plaintiffs, alleging that the defendants on plaintiff’s refusal to force their employees to unionize their plant, commenced to illegally picket and banner the plant, causing the plaintiff irreparable damage, brought this action and asked for an injunction “restraining the defendants from in any way interfering with, molesting, or damaging the business of the plaintiffs by picketing or otherwise.” A temporary restraining order was issued. The defendants then answered making a general denial, alleging that plaintiffs discriminated against the unions; that a labor dispute existed and that this controversy is covered by the provisions of the Labor Management Relations Act, 1947, 29 U.S.C.A. § 141 et seq., so that the state court was without jurisdiction in this matter. After the hearing on the merits the district court issued its order for judgment granting a limited injunction. Defendants appeal from such judgment demanding a trial de novo.

Originally, J. F. Pritchard & Co., a nationwide construction company of Kansas City, had the contract for the entire construction project but this was later modified so that they were responsible only for the design of the plant and the supervision necessary to protect their guaranty in regard to the design. That company had a closed shop contract with labor unions and under that contract was bound to operate on the terms of the local unions who had jurisdiction over the job. Their representative at Tioga notified the local unions of the Pritchard contract. Soon thereafter, on July 13, 1953, a representative of the National Carpenters’ Union requested a meeting with Mr. Diederich and the employees. Mr. Diederich was not present at the time but later that day called a meeting of the employees. He informed them that they could “go union or not as they wished.” He explained to them the changes that would come under a union contract and asked them for a vote. Of some 35 to 40 employees, 20 to 35 voted in favor of remaining non-unionized. Some union representatives talked with the men and claimed they found some of them willing to join a union. One meeting between the two representatives of the union and Mr. Diederich and Mr. Minor of the Oil Field Service Co., occurred on July 16, 1953. At that time there was some discussion about the furnishing of iron workers by the union. Plaintiffs then suggested that the union get in touch with Mr. Miller of the Signal Oil & Gas Company and Mr. Ohley of the Pritchard Company. Several of the representatives of the defendants talked at different times with the officers of the Signal Oil & Gas Company, and the J. F. Pritchard Company, urging them to force plaintiff to enter into a union contract.

Finally a meeting between the contractors of the Tioga Gas Plant and representatives of the Building & Construction Trades Council was arranged for August 19, 1953, by the Minot Building and Construction Trade’s Council. Mr. Miller of the Signal Oil & Gas Company, and a representative of J. F. Pritchard & Company, met with thirteen union representatives at that meeting. While the plaintiffs were invited to that meeting they did not receive their notice in time to attend. Mr. Miller, in charge of the construction of the Tioga Gasoline Plant for the Signal Oil & Gas Company, testified that Mr. Olson^ President of the Minot Building and Con-' struction Trade’s Council had stated that the “purpose of the meeting was to negotiate a contract with Oil Field Service Company, and Diederich & Bye to employ union help in the performance of their job.” He testified further:

“Q. Did they ask you to intercede? A. Yes. * * * They asked me to make a union job of it.”

On cross examination by defendants’ counsel he testified as follows:

“Q. On this occasion or at any other time, Mr. Miller, did these men, representing this union, ask you to cancel your contract with Diederich & Bye and Oil Field Service? A. Yes.

“Q. On what occasion was that? A. I believe it was the occasion when Mr. Taylor attended the meeting here. When forceful expression to the effect we should go all out on 100 per cent union labor job on that plant, when I refused to take action inside the organization of those contractors. * * *

“Q. Did any representative of any union at any time tell you that the only type of contract that they were willing to negotiate with the plaintiff and Die-derich & Bye was a contract containing a clause which required all of the employees on the job to be members of the union? A. Yes, sir, with one exception: I asked that question, the exception being that if they could not supply within a reasonable time, so many days, so many hours, the quantity of journeymen ordered, then men that did not belong to the union could be secured by others and would be permitted to work for a certain period of time. * * *

“Q. All right, sir, did the union at any time, any representative of the union, at any time tell you that they might be willing to give up a requirement that the contractors employ exclusively union members ? A. In some of our discussions the union members stated that if they were unable to deliver the required or requisitioned number of different artisans within a specified time, 48 hours was mentioned, that the contractors then could seek that type of artisans elsewhere and they would be given permission to be so employed for a specified period, I think possibly 30 days.”

Samples of contracts which would be asked if the shops were unionized were presented to Mr. Miller, the representative of the Signal Oil & Gas Company. With few exceptions the contracts provided for some kind of union security clause. Two of the contracts included the provision that “only members of the union or men eligible for membership may be employed.” Another contract provided that “any person newly employed shall be so employed only on a thirty (30) day trial basis at which time he shall either be dismissed without recourse or placed on a regular seniority list in which event employee shall apply for union membership.” Another contract provided: “All employees covered by this agreement shall be given a 30-day trial period in which to qualify for any classification of work covered by this agreement, after which trial period they shall, as a condition of employment become members of the union in good standing.” The contract of Pritchard & Company, with International Union of Operating Engineers provided:

“Each person (hereinafter referred to as employee) who is now or hereafter employed by the employer in unit for which the union or any local thereof is the agent, shall, as a condition of employment, become or remain a member of the union on or before the 30th. day following the commencement of such employment or following the effective date of this agreement whichever is the later. Such employees shall retain membership in the union for the duration of this agreement, as a condition of employment. Failure of any employee to comply with the provisions of this article shall upon request of the union, result in the termination of such employee. * * *

Pritchard & Company were the original contractors on this project and still had supervision thereof. Their representative, Mr. Ohley, was prominent in the discussions preceding the picketing.

The Signal Oil & Gas Company refused to interfere. It also appears that at the meeting the Minot Labor Council had already authorized their representative to banner the job if they did not arrive at a satisfactory contract with Oil Field Service Company and with Diederich & Bye that day. The Williston Labor Council was to be asked that night to do likewise which it did. Upon that warning Mr. Miller said he would consider the contracts and if he^ reconsidered he would telephone their secretary. He did not do that. The second day following that meeting, on August 21st. picketing commenced at the two entrances to the plant and the place where the railroad entered the grounds. The pickets carried a banner reading: “This project unfair to organized labor. Bannered by Minot and Williston B. & C. T. C.” The picketing continued until the service of the temporary restraining order on August 28, 1953.

During this period the plaintiffs employed a minimum of 35 employees and a maximum of 90 employees. Only a few of the employees were members of any craft union. Some had indicated a willingness to join. None of them had asked for intervention on their behalf. Very little contact had been made by the representatives of any of the defendants with any of the plaintiff’s employees to get them to join by peaceful persuasion.

None of those engaged in picketing were employees of the plaintiffs at the time and only one had been before. None of the employees of the plaintiffs ceased work on account of the picketing.

It was stipulated by the parties that the work performed by the plaintiffs in the construction of the natural gas plant affected interstate commerce within the meaning of the constitution of the United States and the Labor Management Relations Act of 1947.

At the opening of the trial the plaintiffs moved to drop Diederich & Bye as a party plaintiff on the grounds that they were no longer employed at the Tioga Gasoline Plant. The contract under which they were originally employed had been terminated. Objection was made that to drop Diederich & Bye would change the issue; that defendants would be handicapped in presenting their evidence; that the temporary injunction had been in force two months upon the petition and evidence of Diederich & Bye as well as the Oil Field Service Company; that if this injunction was found erroneous a demand for damages was pending. The court ruled that Diederich & Bye would be dropped as a party subject to terms to be determined later and that they were not released from the results of any determination made as to damages and cost in connection with the temporary injunction.

Section 28-0211, NDRC 1943, provides that “parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.” Diederich & Bye had ceased their work on the project. They were not then asking for an injunction and as to them any future injunction would have been in vain. The court protected the rights of the defendants against them as to the temporary injunction. Clearly the court acted as the ends of justice seemed to require. 39 Am.Jur., Parties, Section 97, p. 965.

The reference to plaintiffs hereafter will include the Oil Field Service only.

The first question that arises is whether or not a labor dispute as defined by the state and federal law is involved in the case at bar. Sec. 34-0801(1), NDRC 1943 reads as follows:

“ ‘Labor dispute’ shall include any controversy concerning terms or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment whether or not the disputants stand in the proximate relationship of employer and employee”.

This is practically the same language as used in the Taft-Hartley Act, 61 U.S. Statutes, Sec. 2(9), p. 138, U.S.C.A. Title 29, § 152(9).

The evidence shows that the plaintiffs were not paying union scale wages nor maintaining union conditions of employment. Only a few of the plaintiff’s employees at the time involved were members of unions and only a minority of the plaintiff’s employees expressed a desire to join a union. The vote of the employees taken by Diederich indicated that, considering the difference in wages and conditions of employment that would be required under the union regulations and those which the plaintiffs were giving, the majority preferred to continue under the wages and conditions given by the plaintiffs. Terms and conditions of employment entered into that discussion and probably determined the result.

This may have had some bearing, not only on the action of the plaintiffs in refusing to enter into any contract with' the unions, but also on the unions in ordering the picketing, for the purpose of unionizing the project. Naturally the union wanted to organize all labor wherever possible. The unionization of a plant has been held a legal labor objective according to the overwhelming weight of authority. Peters v. Central Labor Council, 179 Or. 1, 169 P.2d 870, 872; Lauf v. E. G. Shinner & Co., 303 U.S. 323, 58 S.Ct. 578, 82 L.Ed. 872. Under the Sec. 34-0801, supra, a labor dispute may exist even if the disputants do not stand in the relationship of employer and employee as is the situation here.

We are constrained, therefore, to hold that a labor dispute existed in the case at bar.

The appellants claim that the findings of the trial court are not supported by the evidence. When a trial- de novo is demanded this court considers all the evidence and makes its conclusions therefrom. In Cretors v. Troyer, 63 N.D. 231, 237, 247 N.W. 558, 560, this court says':

“The case is here for trial de novo under section 7846, as amended. * * * We must view the record presented and find the facts from that record. The findings of the trial court are not clothed with the same presumption in their favor as in other cases, but nevertheless we must give them appreciable weight. See Christianson v. Farmers’ Warehouse Ass’n, 5 N.D. 438, 67 N.W. 300, 32 L.R.A. 730; Doyle v. Doyle, 52 N.D. 380, 202 N.W. 860; Lakota Mercantile Co. v. Balsley, 60 N.D. 768, 236 N.W. 631.” See also Andersen v. Resler, 57 N.D. 655, 223 N.W. 707; Gunsch v. Gunsch, N.D., 67 N.W.2d 311.

In our determination of this case we have considered the court’s findings and all the evidence and base our conclusions thereon.

We now come to the real issue in the case at bar. Does the state court have jurisdiction over this controversy?

As industry developed difficulties arose between labor and industry. In an endeav- or to amicably adjust such difficulties the United States Congress early enacted legislation. There was the Clayton Act, 1914, 15 U.S.C.A. § 12 et seq., the Norris-La-Guardia Act in 1932, .29 U.S.C.A. § 101 et seq., the Wagner Act of 1935, 29 U.S.C.A. § 151 et seq., and finally, the Labor Management Relations Act, 1947, 29 U.S.C.A. § 141 et seq., commonly and hereinafter referred to as the Taft-Hartley Act. The reason and purpose of this legislation is well stated by Justice Frankfurter in Carpenters and Joiners Union of America, Local No. 213 v. Ritter’s Cafe, 315 U.S. 722, 62 S.Ct. 807, 808, 86 L.Ed. 1143 as follows:

“The economic contest between employer and employee has never concerned merely the immediate disputants. The clash of such conflicting interests inevitably implicates the well-being of the community. Society has therefore been compelled to throw its weight into the contest. The law has undertaken to balance the effort of the employer to carry on his business free from the interference of others against the effort of labor to further its economic self-interest. And every intervention of government in this struggle has in some respect abridged the freedom of action of one or the other or both.”

It having been stipulated that the work performed by the,plaintiffs in the construction of the natural gas plant affected interstate commerce within the meaning of the constitution of the United States and the Labor Management Relations Act of 1947, defendants argue that jurisdiction over the labor dispute here involved is preempted by that act and that the state court has no jurisdiction.

The Labor -Management Relations Act applies to all “industrial strife which interferes with the' normal flow of commerce.” It prescribes the legitimate rights of both employees and employers in their relations "affecting commerce, and provides orderly and peaceful procedures for preventing interference by either with the legitimate rights of the other.

North Dakota was one of the states that passed a labor management relations act along the lines of the Federal Act. It is conceded that the North Dakota act as far as interstate commerce is concerned covers only such areas as are not covered by the Federal Act. Northern Imp. Co. v. St. Peter, N.D., 74 N.W.2d 100. However, in the case of Garner v. Teamsters, Chauffeurs & Helpers Union, 346 U.S. 485, 74 S.Ct. 161, 164, 98 L.Ed. 228, the United States Supreme Court said:

“The national Labor Management Relations Act, as we have before pointed out, leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible.”

One area left open to the states by the Taft-Hartley Act is the enforcement of such measures as deemed necessary for the protection of the citizens of the state.

The state is not excluded from exercising its police-power if the unfair labor practice is attended by illegal conduct coercive in nature. See Milk Wagon Drivers Union, etc. v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836; Retail Clerks’ Union, etc. v. Wisconsin Employment Relations Board, 242 Wis. 21, 6 N.W.2d 698, 149 A.L.R. 452; Ellis v. Journeymen Barbers’ International Union, 194 Iowa 1179, 191 N.W. 111, 32 A.L.R. 756; Building Service Employees International Union, Local 262 v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045; Garner v. Teamsters, Chauffeurs and Helpers, etc., 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228; Allen-Bradley Local, etc. v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154.

“The power and duty of the State to take adequate steps to preserve the peace and protect the privacy, the lives, and the property of its residents cannot be doubted.” Carlson v. People of State of California, 310 U.S. 106, 113, 60 S.Ct. 746, 749, 84 L.Ed. 1104.

The district court in the case at bar, after listening to the testimony and considering the evidence, made findings of fact regarding the behavior of the defendants in the course of their picketing and came to the following conclusion:

“That the picketing, bannering and boycotting carried on by the defendants and their representatives, in the use of cameras and the taking of notes with pencil and paper ostensibly to record the identity of persons and vehicles engaging in business intercourse with Plaintiff, Oil Field Service Company, in effecting ingress and egress to and from the plant site of Signal Oil & Gas Company and the maintenance of a rotating picket line back and forth, across and directly in front of the plant entrances so as to create a psychological, if not an actual, obstruction to the free flow of traffic to and from the plant site, and other coercive and intimidating conduct which, if prolonged, is likely to induce violence, is against the public policy and against the peace and dignity of the State of North Dakota and is subject to restraint by the District Court of the State of North Dakota as an exercise of the police power reserved to the State of North Dakota, which conduct the defendants and each of them are hereby permanently enjoined, restrained and prohibit from carrying on.”

It is contended that the evidence does not show any need for the use of the police power, that no acts of violence are shown. However, Justice Douglas in Local Union No. 10, United Ass’n of Journeymen, Plumbers, etc. v. Graham, 345 U.S. 192, 73 S.Ct. 585, 590, 97 L.Ed. 946, while disagreeing with the court on the facts found, concluded :

“If this union used the coercive power of picketing to force contractor to discharge the nonunion men who were employed on the job, Virginia could issue the injunction. For it is within the police power of the state to keep opportunities for work open to both nonunion and union men.” See Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed 834; Building Service Emp. Intern. Union, Local 262 v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045.

As will be shown hereafter, it was to keep these opportunities open that the injunction was granted.

Picketing, as used in connection with labor disputes, has been said ‘to mean the establishment and maintenance of an organized espionage by a union upon the works of an employer and of persons going to and from them and thereby to force him to come to the terms of the union. The term, “picketing,” may be used in the sense of stationing persons for the purpose of accomplishing such things by coercion or intimidation. 31 Am.Jur.Labor, Section 223, p. 943. See Annotation 83 A.L.R. 200. The evidence shows that the picketing involved was being carried on against the public policy of the State of North Dakota.

In addition to the police power there is another area left open to the state in which it can act to prevent any violation of the declared public policy.

The union shop and enforcement of union security and membership is left open to the state by the provisions of the National Labor Relations Act. A closed shop is one where only union members may be hired. A union shop is one where the employer is allowed to hire non-union men hut they must join the union within a limited number of days, usually 30 days. A closed shop is prohibited but a union shop under certain conditions is permitted by that act. Title 29 U.S.C. § 158(a) (3), p. 4459, 29 U.S.C.A. § 158(a) (3), 61 U.S. Statutes, Chapter 120, Sec. 8(a) (3), p. 140 provides:

“It shall be an unfair labor practice for an employer—

* * *

“(2) * * *

“(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this Act, or in any other statute oi the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in section 8(a) of this Act as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 9(a), in the appropriate collective-bargaining unit covered by such agreement when made; and (ii) if, following the most recent election held as provided in section 9(e) the Board shall have certified that at least a-majority of the employees eligible to vote in such election have voted to authorize such labor organization to make such an agreement.”

This section prohibits the closed shop and places conditions on the establishment of the union shop. There are, however, limitations provided in this connection. 61 U.S. Statutes, Chapter 120, Sec. 14(b), p. 151, 29 U.S.C.A. § 164(b) provides:

“Nothing in this act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as, a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.”

This section was analyzed in Algoma Plywood & Veneer Co. v. Wisconsin Emp. Relations Board, 336 U.S. 301, 69 S.Ct. 584, 93 L.Ed. 691. That was an action brought up on certiorari from the Supreme Court of Wisconsin. Wisconsin Employment Relations Board v. Algoma Plywood & Veneer Co., 252 Wis. 549, 32 N.W.2d 417. That case also involved interstate commerce and a union security agreement. The company had entered into a labor contract with its employees containing a provision that all the employees were members of the union in good standing and as a condition of employment- should remain members of the union in good standing, which is the so-called maintenance-of-membership clause. One employee had become delinquent in his payments and was notified -that if he was not paid up within a week that would be “your last day of work and you will also be fined $1.” He did not pay. He stated he would quit before he would pay. He indicated dissatisfaction with the union. He was then discharged. He then made application to the Wisconsin Employment Relations Board charging the company with unfair labor practice under Wisconsin Statutes, Sec. 111.06(1) (c) 1 which provides:

“It shall be unfair labor practice for an employer * * * to encourage * * * membership in any, labor organization * * * by discrimination in regard to hiring, tenure or other terms or conditions of employment; provided, that an employer shall not be prohibited from entering into an all-union agreement with the representatives of his employees in a collective bargaining unit, where at least two-thirds of such employees voting * * * shall have voted affirmatively by secret ballot in favor of such all-union agreement in a referendum conducted by the board. *• * * ”

Such referendum had not been taken.

The board ordered the employer to cease and desist from giving effect to maintenance-of-membership clause in the contract. A state circuit court affirmed that order. On appeal the state supreme court held:

“Section of National Labor Relations Act defining unfair labor practices was not intended to interfere with policy of -the. states in respect of closed shop- and all-union agreements, and does not delegate to either the War Labor Board or the National Labor Relations Board any jurisdiction to declare a policy in respect of maintenance of membership, closed shop or all union shop. National Labor Relations Act, Sec. 8(3), 29 U.S.C.A. § 158(3).” (Emphasis supplied.)

On certiorari the Supreme Court of the United States in that case traced the history of the National Labor Relations Act, The Wagner Act, and made reference to the senate report and the statements there shown to have been made by the proponents of the Act indicating that there was no intent by congress to legalize the closed shop wherever prohibited by the laws of any state. The court then said [336 U.S. 301, 69 S.Ct. 590]:

“Since we would be wholly unjustified, therefore, in rejecting the legislative interpretation of § 8(3) placed upon it at the time of its enactment, it is not even necessary to invoke the principle that in cases of concurrent power over commerce state law remains effective so long as Congress has not manifested an unambiguous purpose that it should be supplanted. See, e. g., Sinnot v. Davenport, 22 How. 227, 16 L.Ed. 243; Missouri, K. & T. R. Co., Haber, 169 U.S. 613, 18 S.Ct. 488, 42 L.Ed. 878.”

After reviewing the restrictive clauses of the Wagner and Taft-Hartley Acts the United States Supreme Court comes to the conclusion that:

“Other provisions of the Taft-Hartley Act make it even clearer than the National Labor Relations Act that the States are left free to pursue their own more restrictive policies in the matter of union-security agreements. Because § 8(3) of the new Act forbids the closed shop and strictly regulates the conditions under which a union-shop agreement may be entered, § 14(b) was included to forestall the inference that federal policy was to be exclusive." (Emphasis supplied.)

In that area our pioneers early recognized the necessity of giving labor some protection in its economic contest for a living. Sec. 23 of the North Dakota Constitution provides:

“Every citizen of this state shall be free to obtain employment wherever possible, and any person, corporation, or agent thereof, maliciously interfering or hindering in any way, any citizen from obtaining or enjoying employment already obtained, from any other corporation oí person, shall be deemed guilty of a misdemeanor.”

Later when industrial troubles arose in the east, the North Dakota legislature passed Chapter 247, 1935 S.L. granting preventive relief in labor disputes. This act has been amended and re-enacted, appearing now as Chapter 34-08, NDRC 1943, with some amendments in the 1949 and 1953 Supplements. The policy of this state in regard to those laws is set out in Sec. 34-0802, NDRC 1943:

“For the purpose of the interpretation of the provisions of this chapter, the public policy of this state is declared to be that a worker of this state shall be free to decline to associate with his fellows, but that he also shall have full freedom of association, self organization, and designation of representatives of his own choosing to negotiate the terms and conditions of his employment, and that he shall be free in such matters, as well as in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, from interference, restraint, or coercion by employers of labor or their agents.”

The statutes enacted to carry out this policy must be interpreted in harmony with the policy declared by the legislature.

In furtherance of the policy so adopted the legislature has enacted the following statutes:

Sec. 34-0901, NDRC 1943, 1949 Suppl. provides that:

“The public policy of this state is declared to be that a worker shall be free to decline to associate with his fellows and shall be free to obtain employment wherever possible without interference or being hindered in any way, but that he shall also have the right to association and organization with his fellow employees and designation of representatives .of his own choosing.”

Sec. 34-0114, NDRC 1953 Suppl., Approved on Referendum June'29, 1948, provides that:

“No person shall be deprived of life, liberty or property without due process of law. The right of persons to work shall not be denied of abridged on account of membership or nonmember-ship in any labor union or labor organization, and all contracts in negation or abrogation of such rights are hereby declared to be invalid, void and unenforceable.”

It is clear that the legislature of North Dakota adopted for the state a public policy of protecting the worker in his right to work free of any interference and control by either employers or labor organizations. He has a right to join his fellows in organization for the betterment of his condition- and to choose his own representatives for that purpose. He also has the right to decline to join any organization and to obtain and retain employment where-ever he chooses.

Both closed and union shops are prohibited under these North Dakota laws. Any attempt to impose an all union shop or to procure a contract of employment requiring or resulting .therein is in defiance of the clear, public; policy of this state.

The next question is whether the establishment of a union shop was involved in the dispute here under consideration. On that matter the district court made the following findings of fact:

“12. Immediately prior to August 21, 1953, the Defendant unions de- ■ manded that Signal employ only union labor on the project.

“13. Immediately prior to August 21, 1953, the Defendant unions demanded that Signal contract for work on the project only with contractors who employed exclusively union labor.

“14. Immediately prior to August 21, 1953, the Defendant unions demanded that Signal either (1) cancel the contract of Plaintiff Oil Field Service Co., or (2) compel Plaintiff, Oil Field Service Co., to employ exclusively union labor.

“15. Immediately prior to August 21, 1953, the Defendant unions informed Signal that unless all non-union contractors were moved from the job or compelled .to employ only non-union labor, the Defendant unions would picket and banner the project, as unfair to organized labor.

“18. At all times material hereto Signal refused Defendant unions’ demands that it cancel its contract with Plaintiff Oil Field Service Co., and refused the unions’ demands that it compel Plaintiff, Oil Field Service Co., to employ exclusively union labor.

“19. Immediately prior to August 21, 1953, the Defendant unions demanded that Plaintiff, Oil Field Service Co., employ exclusively union labor on the project.”

Some of the evidence on which these findings are based has been heretofore quoted and a careful review of all the evidence shows that these findings are amply supported by 'the evidence of the conversations had at the meetings and the sample contracts submitted as heretofore stated. The picketing of the defendants was for the purpose of forcing a union shop requiring membership in the labor organization as a condition of employment. Not only did they make a demand for union shop but they also threatened that no union member would be permitted to work on the project as long as there were non-union members working there and further no union members would be permitted to work on any project that had been built by nonunion labor or by non-union contractors. Finally they gave Signal Oil & Gas Co., a time limit of one day to meet their demands. When that time limit expired the picketing started. A union shop had to' be established before the defendants could be elected representatives to do any bargaining for plaintiff’s employees.

Clearly the purpose of that picketing was the establishment of a union shop which is illegal under our statutes hereinbefore cited.

In addition to those statutes, Section 34-0105, NDRC 1943, makes it a misdemeanor for any person to prevent another by intimidation from employing a person, and Section 34-0106, NDRC 1943, makes it a misdemeanor for any person to maliciously interfere with or hinder any citizens in any way from obtaining employment or enjoying employment already obtained.

Under all these statutes picketing to induce the plaintiff to force a labor union on his employees, which would interfere with their right to work, or force them to join a union without their free will, was illegal. The action of the defendants amounted to the use of picketing for coercion to further an illegal purpose as expressed by our Constitution and law here set forth.

In the case at bar the purpose of the picketing was to exert pressure on the Signal Oil & Gas Co., the employers of the plaintiffs, by interfering with their business and thereby forcing them to discharge plaintiffs or to unionize the project. It was successful in causing the truck driver to refuse to cross the picket line with a load of steel materials for fear he would be fined or fired from the union. Similarly the employees of the railroad refused to bring in a car of cement.

Even if the purpose of the picketing is illegal and comes within an area left open to the state, it is argued that since the defendants had no authority to represent the plaintiffs or to do any bargaining for plaintiff’s employees, defendants’ conduct in trying to force a union shop should he measured by the unfair practices prohibited by the Taft-Hartley Act and that, therefore, jurisdiction in this matter was with the National Labor Board. That would be true if the conduct designated “unfair labor practice” under the Taft-Hartley Act was used to prevent the accomplishment of some objective protected by that Act. It should be noted that the unfair practices prohibited by the Taft-Hartley Act involved conduct carried on for the purpose of preventing some objective protected by that act. For instance, bargaining by agencies not certified as representatives of a union as required by Section 9(a), Chapter 120, 61 U.S.Statutes p. 143, was made an unfair labor practice to protect the union in the matter of bargaining. An attempt to cause an employer to discriminate against an employee because of membership or non-membership in a labor organization, Section 8 (a) (3), was made an unfair labor practice to protect the laborer in his right to work irrespective of union membership. The conduct of the defendants in the instant case was not against an objective protected by the Taft-Hartley Act. It was for an obj ective definitely excluded by that act. The picketing here was for the establishment of a union shop in contravention of the North Dakota law which is in a field excepted from the Taft-Hartley Act. 61 U.S.Statutes, p. 151, Chapter 120, Section 14(b), 29 U.S.C.A. § 164(b). The requirements for elective representatives of the employees, the designation of unfair labor practices in the matter of discrimination because of membership in a union and in other ways do not, therefore, apply. As said by Professor Forkosch in A Treatise on Labor Law, p. 336: “Section 14(b), however, must not be overlooked. Although Sec. 8(a) (3), permits union shop contracts, Section 14(b) -permits states to forbid and outlaw their execution or enforcement within their border. Thus in states which have outlawed ■union shop agreements, Sec. 8(b) (2), does not operate to deter unions from setting whatever membership qualifications they desire; in short, the section becomes irrelevant in those states.” (Emphasis supplied.)

An examination of the cases cited in support of the contention that the conduct of the defendants by picketing plaintiffs’ plant was an unfair labor practice under the Taft-Hartley Act shows that the conduct in those cases was for the purpose of preventing an end that was protected by the Taft-Hartley Act. Local 74, United Brotherhood of Carpenters & Joiners of America v. National Labor Relations Board, 341 U.S. 707, 71 S.Ct. 966, 95 L.Ed. 1309; National Labor Relations Board v. Local Union No. 55, 10 Cir., 218 F.2d 226. In neither of those cases was the purpose of the picketing specially excluded from the Taft-Hartley Act as in the case at bar.

It clearly appears to us that these unfair labor practices in the Taft-Hartley Act do not in any way. apply when the obj ective is the accomplishment of an illegal purpose as in the case at bar, a purpose left free for control by the state. Sec. 14(b), and not against an objective protected by the Taft-Hartley Act.

The case of Garner v. Teamsters, Chauffeurs & Helpers, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228, has been cited as authority for the preemption of this matter under the Labor Management Relations Act. The facts differentiate that case from the case at bar. In the Garner case the proceedings were brought in the Pennsylvania Equity Court under the Pennsylvania Labor Relations Act, 43 P.S.Pa. § 211.1 et seq. The issue involved the picketing of a. trucking concern involving unfair labor practices for which remedies were prescribed both ■by the Labor Management Relations Act and the Pennsylvania Labor Relations Act. The objective sought was protected by both acts. In such cases the procedure, is preempted by the Taft-Hartley Act. No area left free to the states was involved. Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 67 S.Ct. 1026, 91 L.Ed. 1234.

In the case of Local Union No. 10, United Ass’n of Journeymen, Plumbers, etc., v. Graham, 345 U.S. 192, 73 S.Ct. 585, 97 L.Ed. 946, the situation 'was exactly the same as in the case at bar. The state court proceeded without any consideration of the T'aft-Hartley Act, and its decision was affirmed. The question was whether the Commonwealth of Virginia “may enjoin peaceful picketing when it is carried on for purposes in conflict with the Virginia Right to Work Statute [Code 1950, § 40-68 et.seq.].” The Graham firm of contractors were building a school in the City of- Richmond and had made contracts with some subcontractors employing non-union as well as union labor. The union had demanded that the nonunion labor be laid off and that unless that were done “ ‘every effort would be made to prevent any union labor employed * * * on that project from continuing work thereon.’ ” When that was not done picketing and bannering the project was started. The Virginia Right to Work Statute provides, Sec. 1, “ ‘It is hereby declared to be the public policy of' Virginia that the right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization’ ” and the act further provides that any violation thereof is illegal and makes the offender subject to criminal and civil liabilities. An action was brought by the contractors in the Law- and Equity Court of the City of Richmond for an injunction restraining the picketing. The Equity court found: “That the picketing complained of was conducted and carried on for aims, purposes and objectives in conflict with the provisions of the Right to Work laws of the State of Virginia - and therefore illegal, that a permanent injunction is necessary to prevent irreparable harm and damage to the complainants.” The injunction was granted.

The Supreme Court of Appeals of Virginia on appeal affirmed the decree of the lower court.

The case was taken to the United States Supreme Court on certiorari. The opinion of the Supreme Court of the United States, concludes:

“Based upon the findings of the trial court, we have a case in which picketing was undertaken and carried on with at least one of its substantial purposes’ in conflict with the declared policy of Virginia. The immediate results óf the ■picketing demonstrated its potential effectiveness, unless enjoined, as a practical means of putting pressure on the general contractor to eliminate from further participation all nonunion men or all subcontractors employing nonunion men on the project.”

The opinion does not state that interstate commerce was involved but Section 14(b) -and the Virginia Right to Work law are set forth in the margin of the opinion. If the case involved interstate commerce it is clear that the court thought that 14(b) left state courts free to enjoin picketing carried on contrary to the right to work law of Virginia. If it did not involve interstate commerce the opinioii supports the right of the state court, when left free to act, to enjoin such illegal picketing.

While picketing under certain conditions may be lawful we' find that it is generally held that picketing carried on for an unlawful purpose may be enjoined. 1 Teller, Labor Disputes and Collective Bargaining, Sec. 114, p. 346, 31 Am.Jur. Labor, Sec. 230, p. 948.

In Dorchy v. State of Kansas, 272 U.S. 306, 47 S.Ct. 86, 87, 71 L.Ed. 248, Justice Brandéis says:

“The right to carry on business — be it called liberty or property — has value. To interfere with this right without just cause is unlawful. The fact that the injury was inflicted by a strike is sometimes a justification. But a-strike may be illegal because of its purpose, however orderly the manner in which it is conducted.”

This applies to picketing as well as striking. In Peters v. Central Labor Council, 179 Or. 1, 169 P.2d 870, 873, the court says:

“We agree with appellants that picketing, even though peacefully conducted, ought to be enjoined if it is for an unlawful purpose. Ever since the enactment of the 'Anti-Injunction Act,, this, court has consistently held that picketing must be for a lawful purpose,„ (Citing cases.) There is no decision of the United States Supreme Court to the contrary.”

In Retail Clerks’ Union, etc. v. Wisconsin Employment Relations Board, 6 N.W.2d 706, it is held:

“It is generally held that coercion or intimidation is not necessarily limited to threats of violence to persons or property. A man may be coerced into doing or refraining from doing by fear of the loss of his business, or wages as well as by the dread of physical violence or force. 6 A.L.R. 920; 116 A.L.R. 489. It is there said: * that coercion is as easily accomplished without threats of violence as with them, and fear of loss or injury to business unless one submits to demands is as effective as fear of violence to his person.’ Anderson & Lind Mfg. Co. v. Carpenters[’ Dist. Council,] 308 Ill. 488, 139 N.E. 887; Webb v. Cooks’ Waiters’ and Waitresses’ Union, Tex.Civ.App., 205 S.W. 465, 467; Barr v. Essex Trades Council, 53 N.J.Eq. 101, 111, 30 A. 881; Truax v. Corrigan, 257 U.S. 312, 321, 328, 42 S.Ct. 124, 66 L.Ed. 254, 258, 260, 27 A.L.R. 375.” See also Lisse v. Local Union No. 31, Cooks, Waiters & Waitresses, 2 Cal.2d 312, 41 P.2d 314.

In Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 690, 93 L.Ed. 834, a state court enjoined officers and members of a union of ice peddlers from peaceful picketing the defendants’ and appellees’ place of business. The court found that the sole purpose of the picketing was to induce appellees to agree not to sell to nonunion peddlers. The state supreme court affirmed the injunction holding that picketing for this purpose violated the state statute forbidding agreements in restraint of trade. The Supreme Court of the United States said:

“We think the circumstances here and the reasons advanced by the Missouri courts justify restraint of the picketing which was done in violation of Missouri’s valid law for the sole immediate purpose of continuing a violation of law.”

In Building Service Emp. Intern. Union, Local 262 v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 789, 94 L.Ed. 1045, a state court granted an injunction against peaceful picketing by a labor union for the particular purpose of compelling an employer to sign a contract which would coerce his employees’ choice of a bargaining representative. The court said:

“Here, as in Giboney, the union was using its economic power with that of its allies to compel respondent to abide by union policy rather than by the declared policy of the state. That State policy guarantees workers free choice of representatives for bargaining purposes. If respondent had complied with petitioners’ demands and had signed one of the tendered contracts and lived up to its terms, he would have thereby coerced his employees. The employees would have had no free choice as to whether they wished to organize or what union would be their representative.”

The injunction was upheld. See also Grandview Dairy v. O’Leary, 158 Misc. 791, 285 N.Y.S. 841; Louis Daitch & Co. v. Cohen, 218 App.Div. 80, 217 N.Y.S. 817; Heitkemper v. Central Labor Council, 99 Or. 1, 192 P. 765.

It is claimed by the appellants that the injunction interferes with constitutional right of free speech. The free speech involved in the case at bar is that means of communication adopted by labor in the carrying of placards or banners in connection with picketing. It is done to proclaim to the public what -the unions claim to be wrongful action by the party that is being picketed. In the case at bar the banners read: “This project unfair to organized labor.” The- only effect of the injunction on this procedure was the restraint of maintaining a rotating picket line back'and forth, across and directly in front of the plant entrances, carrying such a banner. Such rotation of pickets, holding such a bannesr would interfere with the free ingress and egress to the plaintiffs’ plant and' aid in intimidation of those who would enter the plant. There is no provision restraining the defendants from carrying such 'banner as they did, as long as they were not rotating in front of the entrances where the carrying of such a banner would aid in intimidation and coercion upon the plaintiff.

In Retail Clerks’ Union, etc. v. Wisconsin Employment Relations Board, 242 Wis. 21, 6 N.W.2d 698, 706, 149 A.L.R. 452, 462 it was held that unlawful picketing was not protected by the guarantee of free speech. The court said:

“Peaceful picketing is now recognized as an exercise of the right of free speech' and therefore lawful. Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Carlson v. [People of] State of California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104; A. F. of L. v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855; Milk Wagon Drivers Union[, etc.] v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552; 85 L.Ed. 836, 132 A.L.R. 1200; Bakery and Pastry Drivers and Helpers Local [802, etc.] v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178; Carpenters and Joiners Union [of America, Local No. 213] v. Ritter’s Cafe, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed. 1143. However it cannot be made the cover for concerted action against an employer in order to achieve an unlawful or prohibited object, such as to compel an employer to coerce his employees to join a union. Hotel and Restaurant Employees’ International Alliance [, etc.] v. Wisconsin Employment Relations Board, 315 U.S. 437, 62 S.Ct. 706, 86 L.Ed. 946, which affirmed the same case in 236 Wis. 329, 294 N.W. 632, 295 N.W. 634; Wisconsin Employment Relations Board v. Milk, etc., Union, 1941, supra [238 Wis. 379, 299 N.W. 31].”

In Bomes v. Providence Local No. 223 of Motion Picture Machine Operators of United States and Canada, 51 R.I. 499, 155 A. 581, 583, it is said:

“Granting that peaceful picketing is lawful and the display of placards of the kind in question on the public street is lawful, all the authorities agree that such actions are unlawful when accompanied by coercion or intimidation. Goldberg, [Bowen &] Co. v. Stablemen’s Union, 149 Cal. 429, 86 P. 806, 8 L.R.A.,N.S., 460, 117 Am.St.Rep. 145, 9 Ann.Cas. 1219; St. Germain v. Bakery & Confectionery Workers’ Union, 97 Wash. 282, 166 P. 665, L.R.A.1917F, 824; Bull v. International Alliance, 119 Kan. 713, 241 P. 459; Steffes v. Motion Picture Machine Operators Union, 136 Minn. 200, 161 N.W. 524.”

In Hanke v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local 309, 33 Wash.2d 646, 207 P.2d 206, the court said that:

“Peaceful picketing of employer’s place of business for purposes of forcing employees to join labor union or compelling employer to enter into contract which would in effect compel employees to become members of such union is not protected by constitutional guarantee of free speech. U.S.C.A. Const. Amends. 1, 14.”

This holding was affirmed on certiorari by the United States Supreme Court, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995. See also International Brotherhood of Electrical Workers, etc. v. National Labor Relations Board, 341 U.S. 694, 71 S.Ct. 954, 95 L.Ed. 1299, and cases cited. Pappas v. Stacey, 151 Me. 36, 116 A.2d 497; Milwaukee Boston Store Co. v. American Federation of Hosiery Workers, 269 Wis. 338, 69 N.W.2d 762.

The appellants claim that the injunction should have been denied on equitable grounds; that the plaintiffs did not come into court with clean hands. Appellants name eight specific charges against Die-derich & Bye to show hostilities to union labor and that they in effect refused to employ union men. Diederich & Bye, however, are no longer parties to this action. They are not asking for an injunction now. Their acts have now no bearing on the question of an injunction for the future.

The appellants cite four instances in which Mr. Minor of the Oil Field Service Co., is claimed to have been unfair to organized labor and that he had refused to hire union employees, thus unlawfully discriminating against union labor. These statements are disputed by Mr. Minor. At the most they indicate that Oil Field Service Co., was not hiring any men, union or non-union, at that particular time. Even if the statements of Mr. Minor were given the interpretation claimed by the defendants that would not constitute any equitable excuse for the performance of the illegal acts claimed by the plaintiffs to have been done by the defendants. In Gill Engraving Co. v. Doerr, D.C., 214 F. 111, 112, the court held:

“That the proprietor of a photo engraving business, seeking relief against the acts of a labor union claimed to have injured it, had discharged and refused to employ union engravers did not deprive it of the aid of equity.”

Much stronger acts by plaintiffs against the union have been held insufficient to deny the plaintiffs an injunction against illegal acts. See Cooks’, Waiters’ & Waitresses’ Local Union v. Papageorge, Tex.Civ.App., 230 S.W. 1086; New York Central Iron Works Co. v. Brennan, Sup., 116 N.Y.S. 457; Lauf v. E. G. Shinner & Co., 7 Cir., 82 F.2d 68.

The evidence shows the provisions of the North Dakota laws relating to labor injunctions have been carried out. Secs. 34— 0803, 34-0805, and 34-0807, NDRC 1943.

The bases for an injunction therein set forth existed. Unlawful picketing against the plaintiffs had been committed and will be continued unless restrained. Such picketing threatens fufther trouble and injuries. This picketing caused delay in getting the building covered before winter from which delay substantial, irreparable injuries to the plaintiffs would fóllow for which they have no adequate remedy at law, as such dam-. ages are hard to determine. Greater injury will result to the plaintiffs than to the defendants by denial of the relief. Peace officers were unable or unwilling to stop the picketing. While the pickets, on notification to the sheriff, were removed from one entrance they remained at the others. The injunction'was properly granted.

The judgment of the district court is affirmed.

SATPIRE, J., concurs.