Sears v. Internat'l Bro. of Teamsters Etc. , 8 Wash. 2d 447 ( 1941 )

Was it lawful for appellants to publicize the existence of a labor dispute between appellant unions and respondent, Sears? If that question is answered in the affirmative — such publicizing is the only act, under the evidence, of which appellants are guilty — the verdict should be set aside.

That labor unions have the right to inform the public at large, and persons especially interested, that a certain business or plant has been by labor unions declared unfair, has been a number of times upheld by this court and other courts, including the United States supreme court.

Mike Burgwin, business agent of the International Brotherhood of Teamsters, met, encountered, or intercepted one White, a union teamster, who was employed by a Spokane contracting firm in transporting one of respondent's power shovels to Ferry county, where the shovel and the operator and other equipment mentioned in respondent's complaint were to be employed by the Washington Asphalt Company on a road construction job. Shortly prior to this meeting of Burgwin with White, respondent Sears had been employed with his equipment on a construction job near Cle Elum where he became involved in a labor dispute with appellant labor unions and as a result the members of the two unions went on strike.

For many years the Washington Asphalt Company had been operating under a contract with both appellant unions, and the work in Ferry county was to be performed under that contract. Deeming it his duty, under the facts stated, Burgwin informed White that respondent was unfair to the appellant unions and that there was a strike in existence against the respondent. White replied that, in that event, he would have nothing more to do with hauling of the shovel. Very shortly thereafter, appellant Eugene Duffy, business agent of the International Union of Operating Engineers, Local No. 302, appeared and joined in the discussion, at which time the operator of the shovel had appeared, and all of the parties went to the Labor Temple in Yakima to ascertain by long-distance telephone whether the shovel was to be used on the Washington Asphalt Company contract in Ferry county.

White called his employer at Spokane, which employer instructed White to unload the shovel at Yakima, which was done. Duffy telephoned to Seattle and informed one Jack McDonald (he is not a party to this action), an official of appellant engineers' union, that the shovel was routed for the Washington Asphalt Company job. McDonald telephoned the asphalt company and advised one of the officials of that company that respondent was unfair to union labor. About a month prior to this time, the asphalt company official to whom McDonald telephoned had a discussion with respondent respecting the job in Ferry county. He then advised respondent that the asphalt company could use his equipment on that job, provided respondent kept in good standing with the union. As a result of the conversation of McDonald with the asphalt company's official, the asphalt company refused to employ the respondent or his equipment.

It may be that appellants' disclosure of the fact of the labor dispute vexed respondent, but however annoying such disclosure may have been, such annoyance or vexation and the fact that the disclosure of the existence of a labor dispute prevented respondent from securing or retaining the job with the Washington Asphalt Company, are not a sufficient basis for maintenance by respondent of an action for damages against either of the appellant labor organizations or the individual members of those organizations, as none of the acts of which respondent complains is unlawful.

There was no conspiracy to accomplish a criminal or unlawful purpose, nor was there a conspiracy to accomplish a purpose, not in itself criminal, by unlawful means. In Kemp v. Division No.241 etc., 255 Ill. 213, 99 N.E. 389, Ann. Cas. 1913D, 347, the court refused to enjoin a threatened strike by members of a labor organization unless the employer discharged his employees who were not members of the union. The injunction was denied on the ground that the threat on the part of the union members was not unlawful, and, if the attempt to carry it into effect resulted in the discharge of the nonunion employees, those employees would not be entitled to maintain an action for damages.

There are numerous authorities to the effect that a complaint in an action for damages based on discharge of plaintiff from his employment because of a demand made by a defendant labor organization, and a threat that if plaintiff were not discharged from his employment the union employes would strike, does not state a cause of action for damages against either the labor organization or the individual members. Roddy v. United Mine Workers,41 Okla. 621, 139 P. 126, L.R.A. 1915 D, 789.

In National Protective Ass'n etc. v. Cumming, 170 N.Y. 315,63 N.E. 369, 88 Am. St. 648, 58 L.R.A. 135, it was held that a labor organization may refuse to permit its members to work with members of a rival organization and may notify employers of members of a rival organization that a strike will be ordered unless such servants are discharged; and, if the object is to secure work for the members of the union, the rival organization may not, nor may any member discharged as a consequence of such threat have a right of action against the union or any of its members.

The position of appellants is sustained by Zatt v. BuildingTrades Council, 172 Wash. 445, 20 P.2d 589; Kimbel v. Lumber Saw Mill Workers Union, 189 Wash. 416, 65 P.2d 1066;Marvel Baking Co. v. Teamsters' Union Local No. 524, 5 Wash. 2d 346, 105 P.2d 46, all of which are to the effect that it is lawful for workmen to organize and form unions and that it is lawful for labor unions to convey to the public at large, and to persons especially interested, information that a certain business has been by labor unions declared unfair.

Particularly apposite is the recent case of AmericanFederation of Labor v. Swing, 312 U.S. 321, 61 S. Ct. 569 (Swingv. American Federation of Labor, 298 Ill. App. 63,18 N.E.2d 258; 372 Ill. 91, 22 N.E.2d 857), in which the United States supreme court held that the right of labor unions to convey to the public at large, and to persons especially interested, information that a certain business has been by labor unions declared unfair cannot be destroyed by a state regulation or statute; that members of a labor union may, without special statutory authorization by a state, make known the facts of a labor dispute under the fourteenth amendment to the United States constitution which guarantees freedom of speech.

Our opinion in each of the following cases is contrary to the opinion of the United States supreme court in AmericanFederation of Labor v. Swing, supra, therefore we should recede from the position we have heretofore taken and expressly overrule the three cases:

Safeway Stores v. Retail Clerks' Union, 184 Wash. 322,51 P.2d 372; Adams v. Building Service Employees etc. Union,197 Wash. 242, 84 P.2d 1021; and Shively v. Garage EmployeesLocal Union No. 44, 6 Wash. 2d 560, 108 P.2d 354.

The constitution of the United States is the supreme law of the land. Interpretation of that constitution by the United States supreme court is binding on us; therefore, we can not hold otherwise than that appellants' acts, of which respondent complains, were lawful.

If appellants acted lawfully in conveying the information in question — it must be conceded, under the authorities, that they acted lawfully — it follows that no recovery may be had against any of the appellants.

The judgment should be reversed and the cause remanded, with instructions to dismiss the action.

BLAKE and DRIVER, JJ., concur with MILLARD, J.