Opinion
Nos. 37665 576657.
1947-05-12
RIDGE MFG. CO. v. UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, C.I.O., LOCAL NO. 735, et al.
Ralph Vince and Frank G. Mercer, both of Cleveland, for plaintiff. Davis & Davis and Samuel Handelman, all of Cleveland, for defendants.
Action by the Ridge Manfacturing Company, a corporation, against United Electrical, Radio and Machine Workers of America, affiliated with the C.I.O., Local Number 735, and others, for a restraining order commanding defendants to cease the showing of banners in the vicinity of plaintiff's factory.
Temporary restraining order granted.Ralph Vince and Frank G. Mercer, both of Cleveland, for plaintiff. Davis & Davis and Samuel Handelman, all of Cleveland, for defendants.
FRANK J. MERRICK, Judge.
This is an action for a restraining order and comes before this Court on an application by plaintiff asking the Court to invoke its equitable powers and issue a temporary restraining order commanding the defendants to cease the showing of banners in the vicinity of plaintiff's factory. The banners complained of bear the legend:
‘This Plant Is Doing Our Work!
‘We Are on Strike!
‘Local 735 U.E.’
The facts developed upon hearing disclose a set of facts peculiar to the usual category of labor disputes, and there seems to be no reported case in Ohio similar in facts and issues. For a better understanding of the questions involved, a short recitation of facts will be helpful.
Plaintiff is a manufacturing concern and had been doing work on orders for the V. D. Anderson Company for a long period of time prior to the acts complained of. Defendants are a labor union; its officers and representatives of its membership are on strike against the Anderson Company. Plaintiff and the Anderson Company are separate and distinct corporations, having no mutuality of ownership or management. Plaintiff does work on orders from the Anderson Company, and the volume of such work has remained somewhat constant since before the strike. Some time after the commencement of the strike at the Anderson Company, representatives of the defendant Union called upon officers of the plaintiff Company and requested or demanded that plaintiff cease doing any work for the Anderson Company. Upon plaintiff's refusal defendants placed two pickets in the vicinity of the approaches to plaintiff's plant bearing the legends aforementioned. Plaintiff's plant and the plant of the Anderson Company are widely separated-a considerable distance. The picketing was peaceful and orderly and carried on without any outward demonstration other than the showing of the banners. This conduct is sought to be enjoined. Plaintiff has no controversy with its own employees and is otherwise a complete stranger to the controversy.
The issues raise a very interesting question. Does the guarantee of free speech as contained in the fourteenth amendment of the United States Constitution extend to protect from injunction conduct in this manner?
It seems appropriate to briefly review the fundamental principles involved in the application of this constitutional protection. A simple analysis in the face of the facts in this case would seem to indicate that the Union had a right to proclaim to the world its grievance, so long as it did so peacefully and honestly. There is no question of violence contained in this case, so we must look to the surrounding circumstances to determine if the complaint has been honestly made.
It is the law that defendants may strike against their employer and picket its plant and proclaim their grievances in an effort to tell all concerned of their side of the controversy. When this is done honestly and peacefully, the injunctive powers of the court will not be extended to prevent it. It seems to this Court that the question at issue here revolves around the query of whether or not the conduct of the defendants is an honest effort to proclaim its grievance against their employer.
The rule is familiar in jurisprudence that any act, however innocent in itself, becomes wrongful when done in furtherance of an unlawful design. United States v. Debs, D.C., 64 F. 724. It might not be inopportune here to bring to mind some of the rights of employers of labor and persons and corporations engaged in honest, free enterprise. It seems to this Court, that in recent years, some of our reviewing courts have been too prone to accentuate the rights of workers and at the same time lose sight of some fundamentals of constitutional guarantees afforded to those who may be affected in person or property by the conduct and antics of overzealous persons advocating an immediate position of organized employees. It is axiomatic that, in a labor dispute, the rights of employee and employer must be measured with the same yardstick of constitutional guarantees. Paramount to these rights of those immediately taking part in the controversy are the rights of the general public, particularly those who may be engulfed in the force of the impact of a strike withour themselves being any party to the controversy and usually being powerless to remedy their own predicaments.
If we are to say to labor unions that the community is free and open to them to say and do as they please upon any subject, at any time, in any way, then the holocaust is set and surely we shall reap the whirlwind of constant abuses of the four freedoms made so sacred by our forefathers. The abuses sometimes indulged in, if not curbed, will surely destroy our freedoms of speech, press, assembly and religion.
That the plaintiff's right to carry on its business in any manner that seems best to it, just so long as it does not infringe upon the rights of others, is a constitutionally guaranteed property right, would seem to be so well established as to require the citation of no authority to support it. It seems strange that in this free country-adhering to full democratic principles-a country in which the law interferes so little with the liberty of the individual-it should be necessary to announce from a judge's bench that every man may carry on his business as he pleases, may do what he will with his own efforts so long as he does nothing unlawful and acts with due regard to the rights of others. No better commentary on this subject can be found to improve upon the words of Mr. Justice Hughes:
‘It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure.’ Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 10, 60 L.Ed. 131, L.R.A.1916D, 545, Ann.Cas.1917B, 283.
A business, aside from the money, chattels, plant and other tangible property employed therein, is in every sense of the word property, and as such is lawfully entitled to protection from all unwarranted interference. This is a right which the courts will protect against malicious interference by others.
It is contended by the defendants that since there was no assault and battery, nor disorder, nor breach of the peace, nor mass picketing, that therefore the injury to plaintiff's business, if any, is simply the result of doing what they have a lawful right to do, and, as such, partakes of the lawful character of the means employed. In other words, they would impress upon the situation the old fallacy-‘The end justifies the means.’ The defendants would have advanced a theory that any economic blockade of the Anderson Company is justified, even though it brings into destruction personal and property rights of innocent third parties. A state is not required to tolerate in all places and all circumstances even peaceful picketing by an individual. Bakery & Pastry Drivers & Helpers Local 802 v. Wohl, 315 U.S. 769, 775, 62 S.Ct. 816, 86 L.Ed. 1178.
It is common knowledge that picketing of a manufacturing plant creates economic repercussions of a devastating nature. That is the usual common design of unions when picket lines are set up. Theoretically, the picket line is the exercise of the right of the strikers to proclaim to the community that they have a labor controversy with the struck plant's management. That is the sole and only lawful purpose for which a picket line may be used at the place of employment of the strikers. In other rare instances picketing of a business place has been permitted when the controversy is between the members of a craft and the management where the employer refuses to accede to some demand of the pickets that he adhere to union demands as to wages, hours, nonunion workers and other conditions common to labor relationships. This situation is not usually titled a ‘labor dispute,’ but rather, comes within the category of boycotts. In all of the reported cases of this type in Ohio, it is singularly noticeable that some demand was being made upon the boycotted employer, concerning proposed or existing working conditions of his employees. Where the employer refused the Union's proposal to employ union labor, or abide by rules of the Union as to working conditions, picketing was permitted. Clark Lunch Co. v. Cleveland Waiters & Beverage Dispensers Local No. 106, 22 Ohio App. 265, 154 N.E. 362;A. F. L. v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855. It is to be noted in this type of case that the grievance is a primary one between the pickets and the place picketed.
The circumstances of the case at bar bring it into the envelopment of the law as it applies to secondary boycotts. A secondary boycott is a combination not merely to refrain from dealing with the person aimed at, or to advise or by peaceful means persuade his customers to refrain, but to exercise coercive pressure upon such customers, actual or prospective, in order to cause them to withhold or withdraw patronage through fear of loss or damage to themselves. Duplex Printing Press Co. v. Deering, 254 U.S. 443, 444, 41 S.Ct. 172, 65 L.Ed. 349, 16 A.L.R 196.
The most obnoxious attribute of a secondary boycott is that by its very nature it reeks of false premises. In this case it is the choking off of the flow of business to a struck plant, by coercion of a contracting party who has a business patronage or dealing with the struck plant but who has no control over or part in the current labor controversy. It is not an effort to tell the public that the Union has a grievance against the struck plant. It is a contrivance, designed to stem the pressure of the life-blood of commerce to the struck plant by bluffing off delivery of goods on order, so that if effective, the boycott will weaken the struck plant in its economic strength and compel it to make concessions to the boycotters in defense of its very life rather than in the exercise of its adopted business judgment. It is an attempt to impose upon the plaintiff the demands of the Union that plaintiff cease its right of free trade with the Anderson Company, or suffer the consequences of industrial blockade.
The most objectionable reaction set up by the picketing in the instant case is that it acts out in its own dramatic way a false front and an arrogant misrepresentation. The modern concept of a picket line is visible demonstration by striking workers in the environs of the struck plant. What person, passing by this picket line, would come to any conclusion but that plaintiff was having labor trouble with its employees? Only a few, who might take the trouble to obtain a finely screened explanation of the controversy, would come to any other conclusion. It is the opinion of this Court that the legends on the banners carried by the pickets are misleading to the point that any person who was a stranger to the controversy would immediately justifiably assume that plaintiff's employees were on strike. Certainly a picket line which is a libel in word and in deed is not tolerable under any circumstances. It seems to this Court that one of the basic reasons for preventing secondary boycotting by pickets is this inescapable impression that must always be present to identify all picketing with the usual controversy between worker and employer. We must bear in mind that one of the best and most effective methods of telling a story is in pantomime. The spoken or printed word often amounts to so much surplusage. The picket line has come to be known as the trade mark of the labor controversy between employer and employee. The usage of a few words on a banner, even if they tell the truth, find themselves in insincere raimant unless they are carried on the primary picket line. When exhibited in a secondary boycott they are as insincere as the friendly mane of the Trojan horse.
It is true that by peaceful picketing working men communicate their grievances. As a means of communicating the facts of a labor dispute, peaceful picketing may be a phase of the constitutional right of free utterance, but recognition of peaceful picketing as an exercise of free speech does not imply that the states must be without power to confine the sphere of communication to that directly related to the dispute. Restriction of picketing to the area of the industry within which a labor dispute arises leaves open to the disputants other traditional modes of communication. To deny to the states the power to draw this line is to write into the Constitution the notion that every instance of peaceful picketing-anywhere and under any circumstances-is necessarily a phase of the controversy which provoked the picketing. Carpenters and Joiners Union of America v. Ritter's Cafe, 315 U.S. 722, 728, 62 S.Ct. 807, 86 L.Ed. 1143.
One of the most important aspects of the conduct of the Union in this case is that by its attempt to induce the plaintiff to break off business intercourse with the Anderson Company it is soliciting an arrangement which, if effected, would constitute a violation of Section 6391, General Code of Ohio. So much of this section as is pertinent here reads as follows:
‘Definition of trusts. A trust is a combination of capital, skill or acts by two or more persons, firms, partnerships, corporations or associations of persons, for any or all of the following purposes:
‘To create or carry out restrictions in trade or commerce;
‘To limit or reduce the production * * * of merchandise or a commodity.’
This section of the law has been held to be applicable to a union which attempted to induce a dealer to refrain from trading with a contractor who was in a labor controversy with such union. McAllister v. Trumbull County Building Trades Council, 2 Ohio Supp. 168.
A violation of this law may be enjoined by the State. General Code, § 6400. All persons having any part in carrying out the plan or scheme to violate this law is subject to indictment and prosecution and upon conviction may be fined and imprisoned for misdemeanor, and if the scheme is to control the supply of foodstuffs it is declared a felony. Each day's violation of the law is declared to be a separate offense. General Code, § 6396.
Let us assume for the purpose of this discussion that the plaintiff and defendant Union entered into the agreement to boycott the Anderson Company which was suggested by the union officials. Let us assume further that such agreement was negotiated by resolution at a meeting of the Union. In the Opinion of this Court, each and every member of the Union who took part in such meeting, and all persons who were active in any way in furthering the terms of the agreement, could be successfully prosecuted criminally for such conduct and each day of such boycott would be a separate and distinct offense.
The boycotting of one who refuses to accede to the demands of the Union is unlawful, where the means used to prevent persons from dealing with the person boycotted are threatening in their nature, and tend naturally to overcome, by fear of loss of property, the will of others, and compel them to do what they would not otherwise do, though unaccompanied by actual violence or threats of violence. Moores & Co. v. Bricklayers' Union, 10 Ohio Dec.Rep. 665;Beck v. Railway Teamsters' Protective Union, 118 Mich. 497, 77 N.W. 13,42 L.R.A. 407, 74 Am.St.Rep. 421.
A combination by two or more persons for the purpose of boycotting a third person is a combination to create and carry out a restriction in trade and commerce and is a violation of law. The law, while originally and primarily intended to suppress and control what are known as trusts and monopolies, is still so comprehensive and far reaching in its express terms as to extend to every combination by two or more individuals by their capital, skill or acts to create or carry on any restriction in trade or commerce. The boycott is such a combination by individuals for the purpose of creating and carrying out a restriction in trade. Its avowed purpose is to prevent dealing between certain individuals. It is restriction or hindrancecreated by application of external force, to-wit. By fear of injury to the business or property of the person threatened, and is distinctly a violation of the provisions of the law. State v. Jacobs, 7 Ohio N.P. 261.
It follows in logic that if the plaintiff had entered into the conspiracy proposed by the Union and such act would have been a violation of law, then certainly any effort on the part of the Union or its members to coerce the plaintiff into entering into such an arrangement would be unlawful and subject to injunction.
This Court does not question the benefits which have accrued to workers because of the joint efforts of labor in the form of Unions. Hours of labor have been decreased, wages increased, working conditions immeasurably bettered, social conditions improved, but still leaving room for improvement. There was a time within the memory of many still alive when labor was compelled to work ten, twelve and more hours per day, with small pay and horrible conditions as to sanitation, safety devices and general surroundings. The greed and selfishness of many employers was often the controlling factor when any forward looking step was suggested. The eight hour day, favorable working conditions, safety appliances, compensation for injuries or death resulting during the course of employment, medical services in the shop, better social advantages, social security, and many other benefits to the workers which were unheard of a generation ago, are now the accepted practice in the environment of industrial labor. These accomplishments are largely due to the efforts of union organizations and were not attained without hard struggles, sometimes against seemingly insurmountable odds.
But sometimes the zeal to accomplish the results desired causes those interested to become blinded to the rights of others and so to disregard them. Care should always be taken to avoid improper actions to reach a laudable objective. The ends, however desirable and right, cannot justify improper means to attain the same, but the rights and property of others must ever be respected. The fact that some employers have in the past evidence a spirit of selfishness in opposition to the demands of labor cannot justify labor in being guilty of like offenses.
Labor relations, like all other conduct of business, contemplates the human element. All the rules of fairness which might be laid down for the conduct of man in his dealing with his fellow man are of no avail when presented to some persons for example and guidance. As there are unreasonable and unethical individuals in all walks of life, labor must expect to bear some proportionate share of the condemnations of its fellow citizens because of the sins of some of its leaders. If organized labor is to march on to bigger and better things for the worker, then it must conduct itself in a manner befitting leadership. It must appreciate that it cannot overstep the legitimate confines of its hard earned field of operations. It must conduct its business in a lawful manner. It should conduct itself in such a way as to cause a constant reflection of good in its domain. It should police its own ranks.
In many instances of late in this community, labor leaders have overstepped the bounds of decency in their conduct of strikes, especially on the picket lines. Unless these unlawful activities are curbed by the courts, the whole cycle of labor relationships will get out of hand. This would react to the irreparable damage of the community and set labor back many milestones on its rocky road to a hoped for happy and permanent understanding between capital, labor and the general public.
To permit the picketing complained of in this case would be lending sanction to an unlawful and illegal act, and giving approval to a trespass on the constitutional rights of the plaintiff to be secure in its person and property.
The conduct of the defendants will be restrained until further order of the Court upon plaintiff giving bond in the amount of One Hundered Dollars ($100).
Counsel may prepare a journal according to the direction of this opinion.