State Ex Rel. Culinary Workers Union, Local No. 226 v. Eighth Judicial District Court , 66 Nev. 166 ( 1949 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

BADT, J., dissenting.

ORIGINAL proceeding by the State of Nevada on the relation of Culinary Workers Union, Local No. 226, Allen Shorr, also known as John Doe I, and Vivian Shorr, also known as Jane Doe I, against the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark, and the Honorable A.S. Henderson, Judge of Department No. 2 thereof, for a writ of prohibition directing respondents to refrain from further proceeding regarding an alleged contempt of a purported temporary order restraining peaceful picketing. Writ granted.

OPINION The relators seek a writ of prohibition directing the respondent Eighth judicial district court in and for the county of Clark, to desist and refrain from taking further proceedings regarding an alleged contempt of a purported temporary restraining order previously issued by that court. On September 9, 1948, a complaint was filed by the White Cross Drug Co. and the Save-Rite Drug Stores of Las Vegas against the Culinary Workers Union Local No. 226 and the Retail Clerks Union Local No. 1536, alleging that the unions through their agents had demanded recognition as bargaining representatives and insisted that a contract containing, among other things, "closed shop" provisions be signed by the drug stores; that the unions did not represent a majority of the employees and that the employees did not wish to join a union; and that the unions then established a picket line around the stores. The complaint prayed for damages and for a restraining order and injunction against further picketing.

The defendant unions demurred to the complaint, chiefly upon the grounds that no cause of action was stated and that the district court had no jurisdiction to issue a restraining order against peaceful picketing. The district court overruled the demurrer, and upon the show-cause hearing issued a restraining order against the unions.¹

Approximately two weeks later the district court ordered the culinary workers union and two individuals, Allen Shorr and Vivian Shorr, to show cause why they should not be punished for contempt of the restraining order. This show-cause order was based upon an affidavit made by one T.H. Brandt as vice president of the White Cross Drug Store, alleging that the union acting by and through the Shorrs had picketed in front of the drug store by selling copies of a newspaper, called the Nevada State Labor News. In substance, the affidavit charged that the newspaper carried a front page story to the effect that the drug store had discharged five employees because they were union members and was "unfair to organized labor;" that in hawking their papers the two pickets had shouted headlines to this effect to passers-by on the street.

Relators instituted the present proceedings petitioning this court to prohibit the district court below from enforcing the restraining order, contending that the order is unconstitutional because it denies the right of relators to peacefully picket and to assemble to present their grievances, under the First and Fourteenth Amendments to the Constitution of the United States and under the Constitution of the State of Nevada, and that the district court acted without jurisdiction at the outset by granting the restraining order.

1. The writ of prohibition is unquestionably appropriate as a remedy to hold proceedings in an inferior court which are not within the jurisdiction of such court; Section 9255, N.C.L. 1929; McComb v. Fourth Judicial District Court, 36 Nev. 417, 428,136 P. 563; Walser v. Moran, 42 Nev. 111, 173 P. 1149, 180 P. 492; Public Service Commission v. Eighth Judicial Dist. Court, 61 Nev. 245,123 P.2d 237. And, when proceedings bear the threat of imprisonment of an individual for contempt of an invalid order of a lower court which order denied him constitutional and fundamental rights, the writ of prohibition is as proper as would be habeas corpus were he already in custody. Habeas corpus and certiorari have frequently been employed to attack an unconstitutional statute or decree limiting peaceful picketing, since "One cannot be punished for contempt for violating an order which a court has no authority to make," Ex parte Henry et al., Tex.Sup., 215 S.W.2d 588, 597, (habeas corpus). In re Blaney, 30 Cal. 2d 643, 184 P.2d 892, (habeas corpus). Fortenbury v. Superior Court, 16 Cal. 2d 405,106 P.2d 411, (certiorari). As a matter of simple justice, it has always been considered preferable to arrest proceedings before a man has been unlawfully imprisoned, then to release him after he has been subjected to the indignities of custody, and the writ of prohibition was designed to serve this purpose.

2. Therefore the remedy selected by relators is proper under these circumstances, if, in fact, the restraining order here in question is not valid.

Relators contend that the right of all persons to assemble and to make known their ideas and grievances is a fundamental element in the structure of our form of government and that peaceful picketing is an exercise of this right. Respondents concede this to be true, but argue that the picketing in the instant case was not truthful and not for a legitimate purpose because the picketed employers had no dispute with their employees or the union, and the union did not represent the employees working in the store. Respondents further contend that the picketing was unlawful because, allegedly, the purpose of the picket line was to force them to sign a so-called "closed shop" agreement, which they claim to be prohibited by section 10473 of the Nevada Compiled Laws 1929. In essence, this argument is based upon the theory that under the circumstances, even peaceful picketing is not a legitimate exercise of the fundamental right of free speech, and may be restrained.

The record shows and it is conceded by all parties that the picket line was peaceful, quiet and orderly at all times, and without violence, so the only major issue before this court is whether there was in this case any other abuse of the rights of speech and assembly as to warrant the finding below that this picket line was wrongful.

3. This court early announced that peaceful picketing was a lawful and reasonable method which could be used by a labor organization to disseminate its ideas and beliefs to the general public, and that such picketing was entitled to the same careful protection as that guaranteed to all forms of free speech by the constitution of the United States and of the State of Nevada. That decision invalidated an anti-picketing ordinance, declaring that its sections constituted "a sweeping prohibition of any form of picketing, irrespective of its nature, purpose or number of pickets, and constitute an interdiction of all activities and free speech sought to be exercised in the form of peaceful picketing," and were "unconstitutional and void, in that they invade the constitutional guaranties of the due process of law clauses of the federal and state constitution, and of section 9 of article 1 of the state constitution guaranteeing free speech and forbidding the state to pass any law to restrain or abridge the liberty of speech." City of Reno, v. Second Judicial District Court, 59 Nev. 416, 95 P.2d 994, 1000, 125 A.L.R. 948.

The supreme court of the United States in Thornhill v. Alabama, 310 U.S. 88, at page 102, 60 S. Ct. 736, at page 744,84 L. Ed. 1093, involving a similar statute set forth the basic rule that, "In the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded within that area of free discussion that is guaranteed by the Constitution," and that "the safeguarding of these means (picketing) is essential to the securing of an informed and educated public opinion with respect to a matter which is of public concern." 4. The constitutional right to free speech is not limited only to public addresses or pamphlets, or the words of some individual. It embraces every form and manner of dissemination of the ideas held by our people that appear best fitted to bring such ideas and views to the attention of the general populace, and to the attention of those most concerned with them. Peaceful picketing of an enterprise or business is the primary means by which laboring men make known their grievances. It is an appropriate mode of expression of views and opinions that is vital to their legitimate interests. Under the first and fourteenth amendments to the constitution labor speech, like the expressions of businessmen, farmers, educators, political figures, religionists and all other citizens, must be given unfailing and unwavering protection by this court. These great constitutional guaranties of free speech are but a mantle of protection thrown around our basic concept of individual liberty to shelter the people from the chilling blasts of those who oppose their freedom and would take away their rights. It would be unthinkable that we should tear it away. Even greater care must be taken that tiny rents are not allowed to accumulate in the fabric unnoticed and unrepaired lest one day we should find the entire mantle rotted away.

5. The right to peaceful picketing must not be circumscribed by vague and ephemeral notion of "legitimate" and "illegitimate" purposes for which it may or may not be exercised. Free speech, which includes the right to peaceful picketing, must be given the greatest possible scope and have the least possible restrictions imposed upon it, for it is basic to representative democracy. Thomas v. Collins, 323 U.S. 516, 65 S. Ct. 315, 89 L. Ed. 430. It is not enough that the exercise of free speech may injure a business, or that the issues presented are conflicting or exaggerated, for no restraint can be imposed short of "clear and present danger" of serious injury to society as a whole. Thornhill v. Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093; Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 S. Ct. 470. In Bridges v. California, 314 U.S. 252, 62 S. Ct. 190, 194, 159 A.L.R. 1346, upholding the right of both a controversial labor leader and an influential daily newspaper to comment upon undecided and pending cases, the United States Supreme Court said: "What finally emerges from the ``clear and present danger' cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law ``abridging the freedom of speech, or of the press.' It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow."

And, in Thomas v. Collins, supra [323 U.S. 516, 65 S. Ct. 322], the supreme court explained: "* * * any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation. It is therefore in our tradition to allow the widest room for discussion, the narrowest range for its restriction, particularly when this right is exercised in conjunction with peaceable assembly. It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable. They are cognate rights, cf. De Jonge v. Oregon, 299 U.S. 353,364, 57 S. Ct. 255, 259, 81 L. Ed. 278, and therefore are united in the First Article's assurance."

6. When the right to picket is abused as where this activity is performed in a violent manner exceeding the bounds of peaceful persuasion, it may be restrained. Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 61 S. Ct. 552, 85 L. Ed. 836, 132 A.L.R. 1200; Allen-Bradley Local No. 1111 v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S. Ct. 820, 86 L. Ed. 1154.

7. The record in the instant case, as we have said, shows clearly that there was no violence. The contention of respondents that the restraining order was proper because the union did not represent the employees of the store and because there was no real dispute between the employer and his employees, cannot be maintained. In Senn v. Tile Layers Protective Union,301 U.S. 468, 57 S. Ct. 857, 81 L. Ed. 1229, which we followed in the City of Reno case, supra, the supreme court of the United States explicitly approved the action of the courts of Wisconsin in permitting the Tile Layers Union to picket a tile layer who insisted on performing his own work and refused to hire a union employee. This doctrine that "stranger" picketing is a valid form of free speech was reaffirmed by the United States Supreme Court in American Federation of Labor v. Swing, 312 U.S. 321,61 S. Ct. 568, 570, 85 L. Ed. 855, where the court said: "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."

Respondents cite Carpenters and Joiners Union v. Ritter's Cafe, 315 U.S. 722, 62 S. Ct. 807, 86 L. Ed. 1143, for the proposition that peaceful picketing can be enjoined when it is unlawful. That case is not in point here, however, as it involves picketing which was outside the industrial "nexus" of the dispute, while here the picketing was against the very establishment that the union considered to be unfair. Bakery and Pastry Drivers Local v. Wohl, 315 U.S. 769, 62 S. Ct. 816,86 L. Ed. 1178. "The interdependence of economic interest of all engaged in the same industry has become a commonplace. American Steel Foundaries v. Tri-City Council, 257 U.S. 184, 209,42 S. Ct. 72, 78, 66 L. Ed. 189, 27 A.L.R. 360. The right of free communication cannot therefore be mutilated by denying it to workers, in a dispute with an employer, even though they are not in his employ. Communication by such employees of the facts of a dispute, deemed by them to be relevant to their interests, can no more be barred because of concern for the economic interest against which they are seeking to enlist public opinion than could the utterance protected in Thornhill's case." American Federation of Labor v. Swing, supra.

8, 9. We are also urged by respondents to refuse prohibition because the "unfair" sign used on the picket line was supposedly untruthful. Where the issue before this court is solely one of the application of a proposed restraint upon peaceful picketing, the relative merits of the claims of the parties or the probable truthfulness of the slogans and signs used is immaterial short of a showing of substantial danger. The principle that there shall be no previous restraint upon the exercise of the right to speak freely is basic to that right. Near v. Minnesota, 283 U.S. 697,51 S. Ct. 625, 75 L. Ed. 1357, and there can be no restraint unless a "clear and present danger" exists. Thomas v. Collins, Thornhill v. Alabama, and Schenck v. United States, supra. "To use loose language or undefined slogans that are part of the conventional give-and-take of our economic and political controversies — like ``unfair' or ``fascist' — is not to falsify facts." Cafeteria Employees Union v. Angelos,320 U.S. 393, 64 S. Ct. 126, 127, 88 L. Ed. 58. Such normal statements or claims which in general convey the idea that a business is "``unfair' to organized labor" are no more than statements of opinion and are not subject to judicial restraint. Cafeteria Employees Union v. Angelos, supra.; Montgomery Ward Co. v. McGraw-Hill Publishing Co., 7 Cir., 146 F.2d 171, 176; Park Tilford Import Corp. v. International Brotherhood of Teamsters,27 Cal. 2d 599, 613, 165 P.2d 891, 162 A.L.R. 1426. The constitutional right to free speech and to peaceful picketing is not to be taken away from one party to an industrial squable simply because the other party objects to his beliefs or to the way that he expresses them, nor because that other party is sustaining economic loss by what he deems to be an annoying use of a picket line or an inaccurate statement of facts. Just as the judiciary cannot validly restrict expression of grievances by union members to the small area of employers for whom they work, a court may also not require workers to couch their views and opinions in legal, correct and accurate words, for their speech is aimed at persuasion, and persuasion demands at times artful, at times flamboyant, and at times even exaggerated language.

The chief contention of respondents and more particularly the employers who are the real parties in interest here, is that the picketing by the union was for the purpose of compelling the drug store to sign a "closed shop" contract and thereby force all employees of the store to become unwilling members of the union. This, they say, is conduct that is unlawful under the 1911 act, sec. 10473, N.C.L.² and since it is therefore not a proper exercise of free speech, may be restrained.

10. It is evident from the transcript of the oral opinion below that the district court was convinced that no demand had actually been made for a "closed shop" and that such a demand was not an issue in the case. The unions insist that the sole object of the picketing was to "persuade or induce" the nonunion workers to join these labor organizations. But even if respondents were correct in their contention that the sole purpose of the picketing by the union was to compel acceptance of a "closed shop" we are not persuaded that this demand was made unlawful under the 1911 act. Respondents argue strongly that the terms of this law which prohibit any agreement by which an employee or prospective employee promises to become or continue to be a member, or not to become a member of a labor organization, preclude and make unlawful any "closed shop" or other union security agreement in this state. They compare the law with recent statutory enactments of North Carolina, Nebraska, and Arizona, which have been upheld by the supreme court of the United States in the so-called "Right to Work" cases. Lincoln Federal Labor Union et al., v. Northwestern Iron and Metal Company et al., 335 U.S. 525, 69 S. Ct. 251, 93 L.Ed. ___, and American Federation of Labor v. American Sash Door Co. et al.,335 U.S. 538, 69 S. Ct. 258, 93 L.Ed. ___, and conclude that because of a purported similarity of language our law must also exclude the "closed shop." This does not necessarily follow, since our statute must be construed by this court with proper regard for the legislative intent. This court is not bound to and cannot blindly apply the language of this long-standing state law without regard for the conditions which originally gave rise to its enactment. To do so would read into the law aims and purposes never considered or intended by the legislature that enacted the statute. In the process of statutory interpretation, both the express terms and the legislative history underlying the statute must be considered to arrive at the proper construction of its meaning and purpose.

The development of collective bargaining in industrial relations in this country came with the growth of the labor movement and the independent unions. Certain employers opposed this development with many different tactics. One of the earliest methods of opposition was to require employees to sign an agreement that he would not become a member of a labor union in the course of his employment. These contracts incurred the widespread enmity of organized labor and were called "yellow-dog" contracts. Another device used by the employers to defeat legitimate collective bargaining was the establishment of so-called "company unions" which were dominated and controlled by the employer. Both of these methods achieved the desired result of minimizing collective demands by the workers and preventing them from belonging to independent unions. In the Lincoln Federal Labor Union case, supra, Mr. Justice Black summarized this period of labor-management relations, when he said [335 U.S. 525,69 S. Ct. 256]: "There was a period in which labor union members who wanted to get and hold jobs were victims of widespread employer discrimination practices. Contracts between employers and their employees were used by employers to accomplish this anti-union employment discrimination. Before hiring workers, employers required them to sign agreements stating that the workers were not and would not become labor union members. Such anti-union practices were so obnoxious to workers that they gave these required agreements the name of ``yellow dog' contracts. This hostility of workers also prompted passage of state and federal laws to ban employer discrimination against union members and to outlaw yellow dog contracts."

The statutes referred to by Mr. Justice Black were similar in form to the 1911 act here in question. None of these state laws purported to invalidate the closed shop or union security agreement. They were passed at the behest of organized labor for the express purpose of promoting legitimate collective bargaining on equal terms, and of prohibiting the "yellow-dog contracts," entered into by an employer possessed of predominant economic strength and an individual worker who was helpless to resist such an arrangement preventing him from joining a union of his choice. These statutes also provided, as does ours, that an employee could not be compelled to join a labor organization. The circumstances behind the enactment of these laws show conclusively that the purpose of these latter provisions was to protect employees from being forced to join a company dominated and controlled union as a condition of employment. These provisions were never intended to forbid union security arrangements but were designed to promote true collective bargaining with representative bona fide labor organizations and to prevent the false, misleading and ineffective representation that was a distinguished feature of the employer dominated "company union."

The supreme court of the State of California was faced with this same problem of statutory construction in Shafer v. Registered Pharmacists Union, 16 Cal. 2d 379, 106 P.2d 403, 407, and in that case reached the conclusion that this type of statute was not intended to outlaw union security agreements reached by collective bargaining. That court pointed out: "* * * the clause ``to join or to remain a member of a labor organization' may not reasonably be construed as prohibiting a promise to join an independent labor union. Although the term ``labor organization,' taken by itself, is broad enough to refer to either a company or an independent union, the purpose of the legislation must be considered in arriving at a conclusion concerning its meaning. If the words are meant to designate an independent union, then it is against public policy for an employee or prospective employee to join such an organization, which is a result exactly contrary to the declaration of policy in section 923. * * * These and other considerations render untenable the contention that union shop contracts in California are void under section 921. As has already been noted, the usual company union contract is an individual agreement between the employer and an employee, whereas the union shop contract is an agreement running between the employer and the union as an entity."

11. The Nevada act here in question makes certain agreements unlawful when entered into with an employee or "person about to enter the employ" of another and is therefore aimed expressly at individual agreements. It does not mention or prohibit collective agreements or agreements with labor organizations as such, and we conclude as did the California court in the Shafer case, that this law was not enacted for the purpose of making collective union security agreements unlawful.

Respondents have cited the so-called "Right to Work" cases to support their contention that the 1911 act is a valid enactment prohibiting closed shop agreements. In these cases, however, the supreme court clearly distinguishes the long-standing anti-yellow-dog contract laws and the very recent legislations involved in the cases. After discussing the history of the anti-yellow-dog contract legislation, Mr. Justice Black, in upholding the recent laws concluded that: "Just as we have held that the due process clause erects no obstacle to block legislative protection of union members, we now hold that legislative protection can be afforded non-union workers."

From our study of the legislative history and the background of the 1911 act it is plain to us that this act was enacted to prohibit the "yellow-dog" type of contract and to protect workers from compulsion to join company dominated unions, but that the law does not by its terms outlaw union security agreements obtained through the process of collective bargaining.

If the opponents of union security agreements wish to have them declared unlawful they should address their demands to the legislature for a clear and unmistakable mandate and not appeal to this court for such declaration under color of a law that was never intended to fulfill that purpose.

12, 13. Section 2825.32 assuring the right to representation in collective bargaining negotiations, and section 10061 of the N.C.L. dealing with criminal conspiracy, were cited to this court by respondents as making the acts of relators unlawful, but neither of these laws were strenuously urged in brief or oral argument. Neither of these laws can be relied upon to restrain peaceful picketing of the type here in question, and if they were to be so construed, such application would be an unconstitutional deprivation of the rights of speech and assembly.

14. Many pages of briefs of relators and respondents were devoted to a discussion of the jurisdiction of the district court to restrain relators under the provisions of section 14(b) of the Labor Management Relations Act 1947, also known as the Taft-Hartley Act, 29 U.S.C.A. sec. 141 et seq. It is not necessary for us to decide the issue in this proceeding, holding as we do that the 1911 act was enacted solely as an anti-yellow-dog contract law, and does not invalidate union security agreements. In any event, the law is well settled that a private party cannot procure an injunction either in a federal or state court under the provisions of the Labor Management Relations Act. Amazon Cotton Mill Co. v. Textile Workers Union of America, 4 Cir., 1948, 167 F.2d 183.

15. Furthermore, with regard to the claim of lack of jurisdiction the record below shows that no bond or undertaking was filed with the court and entered by it as required by section 8696 N.C.L. 1929. Because of this omission, the district court was absolutely without legal power to punish relators under the purported restraining order. We have previously held, that, "Where a bond is required by statute before the issuance of an injunction, it must be exacted or the order will be absolutely void." Shelton v. Second Judicial District Court, 1947, 64 Nev. 487,185 P.2d 320, 323. The law requires that the bond be filed before the order is made, and the fact that the bond was procured about the time the order was issued and was later filed under a nunc pro tunc order does not cure the defect.

The picket line established by the union in this case was both peaceful and lawful. It was a rightful exercise of the cognate rights of free speech and peaceable assembly and it could not constitutionally be restrained or enjoined without abridging the guaranties of the first and fourteenth amendments to the constitution of the United States, and article I, section 9 of the constitution of the State of Nevada. The restraining order issued by the court below cannot be upheld or enforced, and relators here cannot be punished under its purported authority.

The writ of prohibition is herewith granted. Let the writ issue as prayed for.

HORSEY, C.J., concurs.

¹ "It Is Hereby Ordered Adjudged and Decreed that during the pendency of this action, or until the final determination thereof, or until the Court shall otherwise order, the defendants, and each of them, the agents, servants, employees and attorneys of defendants, and each of them, be, and they are hereby enjoined and restrained from picketing and maintaining pickets and signs at the business establishment of the plaintiff White Cross Drug Co., a corporation, situate at 201 Fremont Street, Las Vegas, Clark County, Nevada, and extending south from Fremont Street on Second Street, Las Vegas. Nevada, and into the alley running east and west between Fremont Street and Carson Street, Las Vegas, Nevada; and the business establishment of the plaintiff Save-Rite Drug Stores, Inc., a corporation, situate at 215 Fremont Street, Las Vegas, Clark County, Nevada, and extending into the alley running east and west between Fremont Street and Carson Street, Las Vegas, Nevada; and from in any manner whatever impeding, harassing, annoying, threatening, intimidating or interfering with any person or persons transacting business with the plaintiffs, or either of them; and from in any manner whatever impeding harassing, annoying, threatening, intimidating, or interfering with any of the employees of the plaintiffs entering or leaving the premises of the plaintiffs or either of them, * * *."

² Sec. 10473, N.C.L. 1929,

"An Agreement To Join Or Not To Join Labor Organization Unlawful, When § 527. It shall be unlawful for any person, firm or corporation to make or enter into any agreement, either oral or in writing, by the terms of which any employee of such person, firm or corporation, or any person about to enter the employ of such person, firm or corporation, as a condition for continuing or obtaining such employment, shall promise or agree not to become or continue a member of a labor organization, or shall promise or agree to become or continue a member of a labor organization."