Opinion
No. 60050.
1946-12-23
LUBBERS v. HURST et al.
Baden & Fiehrer and Arthur Fiehrer, all of Hamilton, for plaintiff. J. Joseph Marr, of Hamilton, for defendants.
Action by Robert G. Lubbers, doing business as Bob's Cafe, etc., against Stanley Hurst, president, Bartenders Union Local No. 169, and others for a permanent injunction restraining defendants from picketing and boycotting plaintiff's places of business and enjoining certain other acts.
Relief granted in part and denied in part.Baden & Fiehrer and Arthur Fiehrer, all of Hamilton, for plaintiff. J. Joseph Marr, of Hamilton, for defendants.
CRAMER, Judge.
This cause was submitted to the court upon the evidence, arguments of counsel, and memorandum submitted by them.
The relief sought by the plaintiff is a permanent injunction restraining the defendants from picketing and boycotting his places of business. Ohter acts of the defendant are sought to be restrained. The court, by temporary injunction, did restrain the defendants from performing such other acts.
It is the understanding of the court that now that the cause is submitted to it upon the merits, the only question at issue is whether the facts in evidence in this cause entitled plaintiff to a permanent injunction against the defendant from picketing and boycotting his places of business.
The temporary injunction heretofore issued permitted the defendants to maintain at each of plaintiff's places of business only one representative who is to remain moving, for the purpose of informing the public orally or by a sign that plaintiff does not employ all union help. The temporary injunction further provided that the picketing was to be conducted in a quiet, orderly and lawful fashion and so as not to interfere in any manner with persons desiring to enter or leave plaintiff's places of business for any purpose whatever. And that the defendants were further restrained from either directly or indirectly preventing or interfering with the delivery to plaintiff's places of business of any merchandise used by him in the operation of the same.
The facts developed by the evidence for the most part are undisputed. Solicitation of plaintiff's employees by the defendant union was engaged in with the consent and permission of the plaintiff and certainly without any objection or interference on the part of plaintiff. Most of his employees, for reasons of their own, refused to become affiliated with the union. The defendant union sought to have plaintiff enter into an agreement with it to employ only union help. This the plaintiff refused to do.
The evidence clearly establishes the fact that plaintiff's wage scale was somewhat higher than that of the bartenders union local. This fact probably accounts for the lack of willingness on the part of most of his employees to become affiliated with the defendant.
Shortly after the failure of the efforts of the union to secure plaintiff's employees as members, pickets were established at both places of business of plaintiff. These pickets carried signs informing the public that plaintiff did not employ all union bartenders, waitresses and cooks and advertising the fact that plaintiff's employees were not affiliated with the local bartenders union, which union is affiliated with the A. F. of L.
The activities of the pickets, both before and since the issuance of the temporary injunction were in the main peacefully and lawfully performed. While one instance of an altercation between a patron of plaintiff and a picket which apparently resulted in a breach of the peace was disclosed by the evidence, it was fully established that none of the parties to this cause were either directly or indirectly responsible for that incident.
The presence of the pickets has curtailed the delivery to plaintiff at his places of business certain merchandise sold by him therein. Prior to the presence of the pickets plaintiff was supplied with merchandise with no difficulty. Thereafter, the presence of the pickets caused those who supply plaintiff with their products to fail to deliver the same in the usual and customary manner. On some occasions there were no deliveries to plaintiff's establishments whatever. This was due to the fact that many of plaintiff's suppliers employed union help. It is further evident that the presence of the pickets has reduced the number of patrons coming to plaintiff's cafes with the result that there has been a considerable decrease in his business and revenue therefrom.
Two other local unions, namely, the International Moulders and Foundry Works Union, Local #283, and Truck Drivers, Chauffeurs and Helpers Union, Local # 100, by printed matter called attention of their members to the fact that they are to respect picket lines and directed their attention to the picket line at the plaintiff's cafe. They also informed their members of the fact that they are not permitted to patronize any firm which has been declared ‘unfair’ and further that plaintiff had been placed on the ‘we do not patronize’ list. Their members were notified that their failure to respect the action taken by their unions might result in charges being preferred against them and the penalties which might be imposed for violation of the orders of their respective unions. The delegates to the Trades and Labor Council of Hamilton, Ohio, by vote approved the action of the defendant union in placing plaintiff on the ‘we do not patronize’ list.
The plaintiff claims that failure of the suppliers to make deliveries to him resulted from planned action on the part of the defendant union. We do not believe the evidence in this case supports such claim. There is no doubt but that the establishment of the so-called picket line did deter union truck drivers and helpers from making such deliveries to plaintiff but the defendants were not directly responsible therefor. Such conduct on the part of other union members is a natural and customary thing which takes place when picket lines are established at places where their duties take them.
It is admitted that no dispute existed, either before the presence of the pickets or since, between plaintiff and any of his employees. There were no dismissals of any of his employees, nor did any of them cease working for him. In other words, no labor dispute existed between plaintiff and his employees. As a matter of fact the only disagreement between plaintiff and the union was his refusal to sign a ‘closed shop agreement’. There was no strike or ‘lock-out’ at either of plaintiff's establishments.
It is the contention of the plaintiff that he is entitled to the relief prayed for, namely, a permanent injunction against the defendants, restraining them from picketing and boycotting his places of business for the reason that there exists no legitimate trade dispute between him and his employees. That ‘peaceful picketing’ is only authorized when a bona fide trade or labor dispute exists directly between an employer and his employees concerning wages, hours, working conditions, etc.
The defendants counter with the claim that an injunction denying a labor union the right to inform and apprise the public of the true facts in relation to an employer of labor by means of ‘peaceful picketing’ reasonably exercised in a lawful manner would constitute an infringement of the constitutional guaranty of free speech.
The case of Crosby v. Rath, 136 Ohio St. 352, 25 N.E.2d 934, decided March 6, 1940, is authority for the proposition that peaceful picketing will be enjoined in the absence of a trade dispute between employers and employees. The plaintiff insists that the Crosby case is authority for the position he takes and is binding upon this court and requires the issuance of a permanent injunction against the defendants restraining them from picketing his places of business and boycotting him. The Crosby case, however, in the opinion of this court, is weakened by the facts which clearly revealed that the picketing there was violent and attended with unlawful conduct and breach of the peace. Judge Zimmerman vigorously dissented in the Crosby case and quotes with approval the following language set forth in Exchange Bakery & Restaurant v. Rifkin, 245 N.Y. 260, 157 N.E. 130: ‘Picketing without a strike is no more unlawful then a strike without picketing. Both are based upon a lawful purpose. Resulting injury is incidental and must be endured.’ [136 Ohio St. 352, 25 N.E.2d 937.]
The Crosby case, supra, is the latest expression of the Surpeme Court of Ohio on this subject. It was decided prior to the decision in the case of American Federation of Labor v. Swing, decided by the Supreme Court of the United States on February 10, 1941, found in 312 U.S. 321, 61 S.Ct. 568, 570, 85 L.Ed. 855. Therein Justice Frankfurter in speaking for the court said:
‘We are asked to sustain a decree which for purposes of this case asserts as the common law of a state that there can be no peaceful picketing or peaceful persuasion’ in relation to any dispute between an employer and a trade union unless the employer's own employees are in controversy with him.
‘Such a ban of free communication is inconsistent with the guarantee of freedom of speech. That a state has ample power to regulate the local problems thrown up by modern industry and to preserve the peace is axiomatic. But not even those essential powers are unfettered by the requirements of the Bill of Rights. The scope of the Fourteenth Amendment is not confined by the notion of a particular state regarding the wise limits of an injunction in an industrial dispute, whether those limits be defined by statute or by the judicial organ of the state.
‘A state cannot exclude workingmen from peacefully exercising the right of free communication by drawing the circle of economic competition between employers and workers so small as to contain only an employer and those directly employed by him. The interdependence of economic interest of all engaged in the same industry has become a commonplace.’
In the Swing case, supra, it appeared that a union of those engaged in beauty work unsuccessfully tried to unionize Swing's beauty parlor. Picketing of the shop followed. To enjoin this interference with his business and with the freedom of his workers not to join the union, Swing and his employees brought that action.
The Swing case is authority, therefore, for the proposition that the constitutional guarantee of freedom of discussion is infringed when a state court enjoins picketing merely because there is no immediate employer-employee dispute.
It is significant to note that in the Swing case not only was there no dispute between Swing and his employees but that his employees joined with their employer in bringing the action. Thus making it a much stronger case than if the suit were between the employer and the union. Yet the Supreme Court of the United States denied the plaintiffs an injunction against the union.
We are of the opinion that the constitutions of the state of Ohio and of the United States, Const.Ohio, art. 1, § 11; U.S.C.A.Const Amends. 1, 14, guarantee to these defendants the right to state their case to the public, to engage in peaceful picketing, to publicze their cause and take all lawful steps which may result in bettering the conditions of their members. This they are lawfully permitted to do even though there exists no dispute between the plaintiff and his employees.
The purpose of the defendants in maintaining these pickets is of course to induce plaintiff to employ only union help to establish a closed shop. Such a purpose, the Supreme Court of the United States has held to be lawful.
While of course no employer can be compelled to hire union workmen and no workmen can be forced to join a labor union, organized labor does have the privilege, if exercised in a reasonable and orderly way, of advising the public, if it so desires and for what it may be worth, of the truth concerning an employer of labor. The constitutional guarantee of free speech permits a labor union to make use of pickets for the purpose of apprising the public of the merits of its cause. Any effort of a labor union to increase its numbers and to unionize an entire trade or business is not only lawful but laudatory.
Here it is conceded that the palintiff had a legal right to reject the proposals of the union that he employ all union help and had the right to employ whom he desired to employ at wages and conditions of his own choice. But here his legal rights ended in respect to the matters in dispute. It is true that the evidence shows that the plaintiff is now paying a higher rate of wage to his employees than the standard set by the union and no doubt conforms to the standards set by the union in respect to hours and conditions of employment. However, this situation does not make unlawful an attempt by the union, through lawful means, to unionize plaintiff's establishments. For unionizationof plaintiff's businesses is to the interests of the union in order to collectively bargain. In other words, if in the future the plaintiff might desire to reduce the wages he pays to a standard lower than that which the union believes is for the best interests of its members, it being the bargaining agent, would be in a position to more effectively secure for its members the wages, hours and conditions of employment it would be seeking to establish. To render their combination at all effective, employees must make their combination extend beyond one shop and may therefore use all lawful propaganda to enlarge their membership. See American Steel Foundries v. Central Trades Council, 257 U.S. 184, 42 S.Ct. 72, 66 L.Ed. 189, 27 A.L.R. 360.
In the Swing case, supra, Justice Frankfurter in the course of his opinion said:
‘The interdependence of economic interest of all engaged in the same industry has become a commonplace.’
In the case of Exchange Bakery & Restaurant Inc. v. Rifkin, 245 N.Y. 260, 157 N.E. 130, 132, the court said: ‘All engaged in a trade are affected by the prevailing rate of wages. All, by the principle of collective bargaining. Economic organization to-day is not based on the single shop. Unions believe that wages may be increased, collective bargaining maintained, only if union conditions prevail, not in some single factory, but generally. That they may prevail, it may call a strike and picket the premises of an employer with the intent of inducing him to employ only union labor. And it may adopt either method separately.’
The great weight of authority, including the Supreme Court of the United States, is to the effect that labor has the legal right to give notoriety to its cause, and to use persuasive inducements to bring its own policies to triumph, and hold peaceful picketing lawful when its avowed design and purpose is to benefit organized labor either directly or indirectly.
Of course if the dominant motive of the defendants in this case was to ruin plaintiff's business from an evil incentive rather than to promote their interests, a different attitude would be in order. See Wallace Co. v. International Association of Mechanics, 155 Or. 652, 63 P.2d 1090, at page 1095.
However, it is our conclusion that the evidence in this case does not show that the motives of the defendants are other than to promote the interests of union labor.
While it is probably true that picketing of his places of business has resulted in loss of patronage to plaintiff, such loss to him is ‘damnum absque injuria’. In the case of S. A. Clark Lunch Co. v. Waiters Local, 22 Ohio App. 265, 154 N.E. 362, 365, the court, in discussing the question of loss of business to the plaintiff and that plaintiff had no vested property right in the business lost to it, said: ‘This is so for the reason that, while it had a legal right to determine its course of action, it must be held to have considered in the connection the influence of union labor on the public, and the benefit of its support and patronage. These are factors in the situation it was bound to consider. It was bound to know that it could not legally prevent publicity in respect to its action. Whatever financial loss it now suffers is therefore due to causes of its own making, and within its control, which it must be held to have anticipated.’
In respect to the complaint of the plaintiff that union truck drivers refused and failed to make deliveries of merchandise to him, as the court has previously indicated, the defendants are not to be charged with producing the same. However, even if the defendants can be said to be indirectly responsible therefor, the plaintiff, in the opinion of the court, is amply protected under the temporary restraining order heretofore issued, and which this court is making permanent, which temporary injunction orders as follows: ‘That said defendants shall in no manner, either directly or indirectly, prevent or attempt to prevent or interfere with the deliveries to plaintiff's places of business of any merchandise used by the plaintiff in the operation of said places of business.’
We find ourselves in the same position which the Court of Appeals found itself in considering the case of Evans v. Retail Clerks Union, 66 Ohio App. 158, 32 N.E.2d 51, 52. The court in the course of its opinion said: ‘Our task is made most difficult because of the fact that the two highest tribunals to which we owe deference have reached diverse conclusions.’
It is interesting to note that when the Court of Appeals made that observation the Swing case, supra, had not as yet been decided by the Supreme Court of the United States. The Court of Appeals was referring to the case of Senn v. Tile Layers Union, 301 U.S. 468, 57 S.Ct. 857, 863, 81 L.Ed. 1229. In that case Justice Brandeis said: ‘There is nothing in the Federal Constitution which forbids unions from competing with nonunion 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.’
The Court of Appeals in the Evans case, supra, in concluding its opinion, wherein they found that the picketing was justified in that case, said: ‘Inasmuch as the questions presented involve rights guaranteed under the federal Constitution, we deem it altogether fitting and proper that this court follow the mandate of the federal Supreme Court whose pronouncements on federal questions are the last and final word in such matters.’
This court likewise feels that it must follow the mandate of the Supreme Court of the United States, especially as disclosed in the Swing case, supra.
We therefore hold that the plaintiff is not entitled to an injunction against these defendants restraining them from picketing or boycotting his places of business or engaging in the conduct and activities which the plaintiff complains of.
The temporary injunction heretofore issued will be made permanent, since we find that the plaintiff is entitled to have the defendants enjoined from performing the acts and engaging in the conduct which such temporary injunction enjoined them from engaging in and performing.
An entry may be drawn in accordance with this opinion.
Note: Authorities considered by the court in this case are: American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855;Crosby v. Rath, 136 Ohio St. 352, 25 N.E.2d 934;Senn v. Tile Layers Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229;Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836, 132 A.L.R. 1200;Carlson v. California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104;Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736,84 L.Ed. 1090;Evans v. Retail Clerks Union, 66 Ohio App. 158, 32 N.E.2d 51;Clark Lunch Co. v. Waiters Union, 22 Ohio App. 265, 154 N.E. 362; Scott Burr Stores v. Specter, Ohio Com.Pl., 1 Ohio Supp. 148; 24 Ohio Jurisprudence 668, etc.; Cincinnati Law Review, Vol. 15, page 339; and cases cited by Judge Zimmerman in his dissenting opinion found in 136 Ohio St. on pages 362, 363, 25 N.E.2d on pages 938, 939.