Baldwin v. Arizona Flame Restaurant, Inc. , 82 Ariz. 385 ( 1957 )

LA PRADE, Justice.

This is an appeal from a decree of interlocutory injunction enjoining defendant union from picketing of the establishments of the plaintiffs. The appellant, The Hotel and Restaurant Employees’ and Bartenders’ Union, Local No. 631, one of the defendants below, will hereinafter be referred to as the defendant union; the appelleesplaintiffs will be referred to as the restaurant plaintiffs or intervening plaintiffs, whichever is appropriate.

The essential facts follow: On February 1, 1954, a three-year collective bargaining contract between the defendant union and the Arizona Restaurant Association, of which all restaurant plaintiffs except the added restaurant plaintiffs were members, expired, and was extended by mutual agreement until February 28, 1954. Prior to the expiration date and pursuant to this agreement, negotiations were initiated in an attempt to work out a new contract. The parties, after various proposals and counter-proposals extending past the final expiration date, were unable to resolve their differences through such negotiations

On March 1, 1954, the majority of the membership of the defendant union voted to strike against all of the restuarant plaintiffs who refused to execute a proposed collective bargaining contract (plaintiffs’ exhibit B) which contained, among other provisions, a “one owner” clause, “agency-shop” clause, “joint examining board” clause, and “hiring hall” clause. Picket lines were established immediately thereafter. On March 26, 1954, the restaurant plaintiffs filed a complaint seeking to enjoin defendant union’s picketing against their establishments, on the ground that such was being conducted to force execution of an unlawful collective bargaining contract (exhibit B). The trial court granted the temporary restraining order prayed for. Defendant union then moved to quash the restraining order and at that time irrevocably renounced as collective bargaining objectives, without conceding their illegality, the “one owner” and “agency-shop” provisions of the proposed contract, which the court had indicated to be unlawful objectives, and amended the proposed agreement accordingly. The amended contract is referred to as defendant’s exhibit 9. The trial court, upon such renunciation, modified its temporary restraining order to permit specified peaceful picketing. At this point the court permitted certain other restaurant owners, who had subsequent to commencement of this action become the targets of defendant union’s picketing, to be added as plaintiffs. Subsequent to the date the strike was called each of the restaurant plaintiffs had replaced some of the strikers with nonunion employees, and certain members of this replacement group were permitted to intervene as class action representatives (intervening plaintiffs). The restaurant plaintiffs then filed a verified petition for reinstatement of the terms of the original restraining order on the grounds that the vacancies caused by the strikers had been filled; that business had returned to normal; and that there in fact no longer existed a bona fide labor dispute between the management of any restaurant plaintiff and a majority of its employees.

The trial court, after conducting a hearing, ultimately made findings of fact and conclusions of law, and issued an interlocutory injunction reinstating the original restraining order prohibiting all picketing of the restaurant plaintiffs’ establishments. The findings of fact were to the effect that the purpose of defendant union’s picketing was as to the restaurant plaintiffs, except the added restaurant plaintiffs, conducted to force the execution of the proposed collective bargaining contract referred to as exhibit B; and as to the added plaintiffs to force the execution of the proposed contract referred to as exhibit 9. It furthermore specifically found

“That said picketing * * * was * * * to cause the discharge of persons employed by plaintiffs and cause persons to be denied employment because of non-membership in a labor organization by inducing other persons to refuse to work with such persons; and to compel or attempt to compel persons employed by said plaintiffs to strike against their will and to leave their employment by threatened interference with their property.”

Based upon its findings of fact the court arrived at a conclusion of law to the effect that the picketing of the defendant union was conducted for an unlawful purpose and illegal under the provisions of sections 56-1301 to 56-1308, 1952 Supp. and sections 56-1309 to 56-1311, 1954 Supp, A.C.A.1939 (section 23-1301 et seq., A.R.S.), and that,, therefore, the restaurant plaintiffs and', intervening plaintiffs were entitled to an injunction against its continuance. The trial court in addition handed down a memorandum opinion which, upon motion of defendant union, was incorporated as an amendment to the findings of fact and conclusions of law. In effect this opinion declared that the “one owner”, “agency-shop”, “joint examining board” and “hiring hall”' clauses constitute illegal collective bargaining objectives as being in conflict with the laws of this state; that the union had, therefore, struck to achieve unlawful ends; that regardless of the effect renunciation of the four contract clauses may have had, the restaurant plaintiffs, having replaced the strikers, there no longer existed a bona fide dispute between any of the restaurant plaintiffs and a majority of their employees, respectively; and that, therefore, further picketing was violative of section 56-1310 (anti-picketing statute), 1954 Supp. A.C.A.1939 (section 23-1322, A.R.S.) and enjoinable. The trial court disregarded defendant union’s tender to irrevocably renounce the “hiring hall” and “joint examining board” provisions of the proposed collective bargaining contract (exhibit 9), which the court had since the initial renunciation indicated to be unlawful; denied the defendant union’s objections to the findings of fact and conclusions of law; and refused to again modify its decree to permit peaceful picketing. From the findings of fact, conclusions of law, and decree of interlocutory injunction, the defendant union has taken this appeal. In this connection the defendant union has submitted fifty-one assignments of error for our consideration.

The primary issue presented is whether the trial court was justified under our law to issue an interlocutory injunction enjoining the defendant union from peaceful picketing of plaintiffs’ establishments.

The memo opinion written by the trial court reflects that the interlocutory decree appealed from is primarily based upon a conclusion that the picketing of the defendant union was in violation of section 56-1310, supra. It is reasoned that after the union employees struck they were replaced with non-union employees (intervening plaintiffs) to the extent that there no longer existed a bona fide labor dispute between the restaurant plaintiffs’ establishments and a majority of their present complement of employees, respectively; and that the picketing, therefore, comes within the prohibition of section 56-1310, supra, and is enjoinable. The defendant union contends in opposition that section 56-1310, supra, constitutes an unconstitutional abridgement of the right of free speech insured under Amendment XIV of the United States Constitution. With this contention of the defendant union we are in agreement.

Section 56-1310, supra, provides that:

“It shall be unlawful for any labor organization to picket any establishment unless there exists between the the employer and majority of employees of such establishment a bona fide dispute regarding wages or working conditions.”

It is well settled that where peaceful picketing is conducted for a lawful purpose it cannot be prohibited or enjoined. A general prohibition on peaceful picketing violates Amendment XIV of the United States Constitution, which prohibits state action violative of the guarantees insured under the First Amendment protecting freedom of speech, press and assembly. Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855; Culinary Workers and Bartenders, etc. v. Busy Bee Cafe, 57 Ariz. 514, 115 P.2d 246; American Federation of Labor v. American Sash & Door Co., 67 Ariz. 20, 189 P.2d 912. It is an equally well-established proposition of law that picketing, even when peaceful can be enjoined when such is conducted for an unlawful purpose. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Building Service Employees International Union v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045; Local Union No. 10, etc. v. Graham, 345 U.S. 192, 73 S.Ct. 585, 97 L.Ed. 946. Thus, a court can properly enjoin peaceful picketing the purposes of which include the accomplishment of objectives which constitute violations of state laws. But a state policy which has the effect of restraining peaceful picketing must aim specifically at the evils within the allowable area of state control and not sweep within its ambit other activities which in ordinary circumstances constitute an exercise of freedom of speech or press. Thornhill v. State of Alabama, supra.

The plain wording of section 56-1310, supra, requires as a condition precedent to a labor organization picketing the establishment of any employer that there exists a bona fide dispute between such employer and a majority of his employees. It, therefore, effectively provides that under all circumstances, and regardless of purpose, a union having less than a majority is prohibited from all peaceful picketing. Such clearly on its face constitutes a general prohibition against peaceful picketing in violation of the United States Constitution, as such has been interpreted by the highest court in the land. The decisions of that court interpretive of the Constitution are binding upon us regardless of personal views as to their soundness which we may entertain. In American Federation of Labor v. Bain, 165 Or. 183, 106 P.2d 544, 555, 130 A.L.R. 1278, where statutes similar in effect to section 56-1310, supra, were under attack, the Oregon court, after a learned discussion of the law, struck down the provisions as unconstitutional, stating that they saw

“ * * * no escape from the conclusion that the denial of such a right to the members of a minority is no less an unconstitutional abridgement of the right [of free speech] simply because it is saved to the majority.”

The constitutionality of a similar provision was successfully challenged in International Union of Operating Engineers, etc. v. Cox, 148 Tex. 42, 219 S.W.2d 787, and we are aware of no decision now effective which upholds the constitutionality of such a statute. We, therefore, have no hesitancy in declaring section 56-1310, supra, to be violative of Amendment XIV of the Constitution of the United States. This statute, being unconstitutional and void, cannot form a basis upon which the interlocutory injunction here assailed can be legally grounded.

Without at this juncture ruling on their legality as collective bargaining objectives under existing law, we next turn our consideration to the four controversial contract clauses; “agency-shop” clause, "“‘one owner” clause, “hiring hall” clause, and “joint examining board” clause. We ■direct our consideration to these contract provisions at this point with the object of resolving only whether they, when subsequently abandoned, could form the basis upon which the trial court could properly predicate the decree of interlocutory injunction which forms the basis for this appeal. We are of the opinion that they could not.

We are satisfied that the evidence .'justifies the trial court’s finding that the initial objective of the union in declaring a strike was to force the execution of a collective bargaining contract (Exhibit B) which contained all four of the clauses above set forth. We must, therefore, assume that such clauses were included among initial objectives sought to be achieved by strike and picket. At this point it is well to reiterate, however, that after the trial court indicated the four clauses to be unlawful collective bargaining objectives, the defendants had either irrevocably renounced or offered to renounce each of these clauses as objects of their continued peaceful picketing. In 43 C.J. S. Injunctions § 196 b (3), p. 906, it is stated that

“As a general rule an injunction will be denied where the defendant denies intent to continue the acts sought to be enjoined and there is nothing to show the falsity of his denial.”

Specifically, we find the rule to be that where the purposes of peaceful picketing include objectives deemed unlawful, an injunction enjoining such picketing cannot properly be continued after the unlawful purposes, either as a matter of fact or law, cease to be the objectives thereof. Gruet Motor Car Co. v. Briner, Mo.1950, 229 S.W.2d 259; Pappas v. Local Joint Executive Board, 374 Pa. 34, 96 A.2d 915. It is, therefore, evident that, assuming the four contract clauses are unlawful collective bargaining objectives, an injunction enjoining peaceful picketing, the object of which is to achieve them, could be based upon such clauses only so long as its objectives included any of them. Obviously, if these clauses were irrevocably renounced, there would remain no danger that any of them would form the basis for further demands of the defendant union in this particular case. Such revocation would effectively amount to an irrevocable change of position from which the defendant union could not depart without court authorization. We, therefore, conclude that once the defendant union officially, irrevocably and unconditionally renounced these clauses, they, as a matter of law, could no longer have been properly regarded as objects of its peaceful picketing. Consistent with this analysis we find that the trial court in the instant case was obligated to accept the tendered irrevocable renunciation of each of these clauses, and should have modified its order accordingly. It accepted as to the “agency-shop” and “one owner” clauses but declined with respect to the “hiring hall” and “joint examining board” provisions. It erred in so declining. It is, therefore, our conclusion that none of the four clauses is properly available upon which to predicate the interlocutory decree.

Plaintiffs argue that notwithstanding the allegedly illegal contract demands of the union, and quite apart from its purported subsequent “renouncement” of the allegedly illegal clauses contained therein, it was a goal of the defendant’s picketing to the very end to force plaintiffs to agree to discharge the replacements (intervening plaintiffs) at their respective establishments and to reinstate the union strikers in their positions; that such object was unlawful as being in conflict with the right-to-work amendment of the Constitution of this state; and that being an illegal object it in and of itself constitutes a sufficient basis for the enjoinment of defendant’s continued picketing. Indeed, the learned trial court found as a fact that one of the objectives of defendant’s picketing was “ * * * to cause the discharge of persons employed by plaintiffs. * * * ” Our right-to-work amendment, A.R.S. Arizona Constitution, Article XXV (section 56-1302, A.C.A. 1952 Supp.; section 23-1302, A.R.S.), reads as follows:

“No person shall be denied the opportunity to obtain or retain employment because of nonmembership in a labor organization, nor shall the state or any subdivision thereof, or any corporation, individual or association of any kind enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of non-membership in a labor organization.”"

It is clear that parties are prohibited under this amendment from entering into an agreement, written or oral, which would have the effect of excluding any person from employment or continuation of employment for non-membership in a labor organization. It follows that where peaceful picketing is conducted for the specific purpose of forcing an employer to agree to replace his non-union help with union members who stand as mere strangers at his gate, such runs afoul with the clear mandate of the right-to-work amendment above set forth. Hanson v. International Union of Operating Eng., La.App.1955, 79 So.2d 199. We entertain no doubt that such picketing would be for an unlawful purpose and enjoinable. Local Union No. 10, etc. v. Graham, supra. Sections 56-1303 and 56-1307, A.C.A. 1952 Supp. (sections 23-1303 and 23-1307, A.R.S.). The matter of whether the purpose of defendant union's peaceful picketing was to compel the restaurant plaintiffs to reinstate the strikers in violation of our right-to-work laws points up two key questions: (1) Does the evidence support a finding that a continuing purpose of defendant’s picketing was to compel such reinstatement? (2) Had the relationship of employer-employee ceased between the strikers and the plaintiffs’ establishments to the extent that the strikers stood as mere strangers at the gate?

It is clear from the record that there is ample evidence to support the trial court’s finding that it was a continuing objective of defendant union’s picketing to force the restaurant plaintiffs to agree to discharge the non-union replacements (intervening plaintiffs) in favor of the union strikers. Defendant union’s secretary-treasurer went so' far as to testify in effect that he intended to continue the picket line until a satisfactory settlement of the reinstatement matter was achieved. This testimony alone would be sufficient to support the trial court’s finding on this score. But when such is considered in the light of the other evidence we think the trial court would have been credulous indeed to have found otherwise on this issue.

It remains only to determine whether the pickets in this case stood as mere strangers at the gates of their former employers or perhaps in law enjoyed some favored position because of the circumstances under which they left their jobs. It is our opinion that they stood as mere strangers. We have already pointed out that in striking to compel the execution of its proposed agreement (exhibit B) the defendant union was attempting to force the restaurant plaintiffs to submit to each of the four controversial contract clauses, supra, defined below.

The “one owner” clause effectively provides that not more than one bona fide working owner can perform any work coming under the jurisdiction of the union; that all other owners in a particular establishment who are engaged in tasks encompassed within such jurisdiction must be employed in full accordance with all of the terms and conditions of the agreement.

The “agency-shop” clause requires that all of the employees of a signatory employer, not members of the union, either tender to the union a periodic assessment equal to the prevailing union dues, or “the employers will on demand of the union discharge any employee who has failed to tender to the union the assessments prescribed by this agreement.”

The “joint examining board” clause provides for the establishment of a board to consist of six members; three to be appointed by the union and three by the employers. The ostensible purpose of the board is to qualify and classify prospective employees in accordance with their ability and character. Within the meaning of this clause no one is eligible for employment until he has acceptably passed this board.

The “hiring hall” clause makes it mandatory that an employer who is in need of employees notify the union of the existence of job vacancies, and allow the union a minimum of twenty-four hours to supply examining-board-qualified personnel to fill the vacancies before such employer is authorized to make selections at large to fill the vacancies.

Since the “one owner” clause provides that owners in excess of one must be employed in accordance with all the terms of the collective bargaining agreement, it is apparent that if the proposed collective bargaining contract (exhibit B) were executed each owner would have to submit to the “agency-shop” clause, “joint examining board” clause, and presumably also the “hiring hall” provision. Effectively, this would force owners in excess of one to pay the equivalent of union dues and fees, be qualified by an examining board on which the defendant union maintained a veto power, and be cleared through the union hiring hall, as conditions to working in their own establishments.

In determining the lawfulness of the “one owner” clause as a collective bargaining objective of the strike under our law, we must weigh the rights of the working men to improve their positions through the media of picketing and work stoppage, and the fundamental right of an owner to conduct his business without undue impediment and oppression. Saveall v. Demers, 322 Mass. 70, 76 N.E.2d 12, 2 A.L.R.2d 1190; Dinoffria v. International Brotherhood, etc., 331 Ill.App. 129, 72 N.E.2d 635; error dismissed 399 Ill. 304, 77 N.E.2d 661; Safeway Stores v. Retail Clerks International Ass’n, 41 Cal.2d 567, 261 P.2d 721.

After objective application of this test we are in complete agreement with the trial court that to permit a union to force an owner of a business to agree to a “one owner” provision such as that above defined “ * * * would be a violation of the most fundamental and basic American right of a man to engage freely in private enterprise without undue hindrance * *.” Accordingly we hold that to strike for the purpose of compelling an employer to submit to inclusion of a “one owner” clause such as that above defined, renders its purpose unlawful as destructive of the basic and fundamental right of free men to be self-employed without undue hindrance and interference. Saveall v. Demers, supra. This conclusion makes it unnecessary to rule on the legality of any of the four clauses when tested under the right-to-work amendment, supra. The strike here involved having been called for an unlawful .purpose, it also becomes unnecessary to determine the legal status of employees who 'strike to achieve legitimate ends.

We are convinced, as was the trial court, that if the strike had been called for the purpose of forcing the restaurant plaintiffs to sell drinks to patrons after legal closing hours, such would have been an unlawful strike, and the restaurant plaintiffs would have been justified under the law to have regarded the relationship of employer-employee terminated with respect to the strikers. See: National Labor Relations Board v. Indiana Desk Co., 7 Cir., 149 F.2d 987; Sax v. National Labor Relations Board, 7 Cir., 171 F.2d 769. It logically and reasonably follows that in the instant case, where the purpose of the strike was at least in part to achieve unlawful objectives, the restaurant plaintiffs could in like manner regard the employment of the strikers at an end. Such employers were then free to unconditionally employ personnel from the open labor market to fill the vacancies created. Consistent with this finding we hold that the status of the strikers in this case, as they picketed the establishments of the restaurant plaintiffs, was that of mere strangers. We are therefore confronted with a situation where union members who stood as mere strangers persisted in picketing the restaurant plaintiffs’ establishments for the purpose of •fairing them to discharge non-union employees. Such we have already concluded constitutes picketing for an unlawful purpose within the meaning of our right-to-work law, and such picketing, however-peaceful, can be enjoined. But we have observed that, while peaceful picketing for an unlawful purpose can be totally enjoined, a general prohibition against peaceful picketing constitutes an unconstitutional abridgement of the right of free speech. Consistent with this proposition we are constrained to also find that a court must tailor an injunction directed against peaceful picketing to meet specific purposes which are established by the facts as violative of existing law. Milk Wagon Drivers Union, etc. v. Meadowmoor Dairies, 312 U. S. 287, 61 S.Ct. 552, 85 L.Ed. 836; Thornhill v. State of Alabama, supra; Building Service Employees International Union v. Gazzam, supra. It is apparent that to rule otherwise would give unconstitutional sanction to our courts to direct a general restraint on peaceful picketing for all purposes- for all time. Accordingly we affirm the decree prohibiting all picketing by defendant union but direct that the trial court tailor its injunction so as to specify with particularity the unlawful purposes of defendant union’s picketing which form the bases therefor.

We are not called upon to rule upon every theory under the findings upon which the decree appealed from could possibly be grounded, or upon the propriety of each finding of fact and conclusion of law. Enough it is that we find, as we have, that there are presented findings supported by competent testimony upon which the decree, under our law, can properly be predicated. Such having been established we deem it unnecessary to rule upon the numerous other assignments which the defendant union has submitted for our consideration.

The decree is affirmed subject to modification consistent with this opinion. Appellees are to have their costs on appeal.

UDALL, C. J., and WINDES, PHELPS and STRUCKMEYER, JJ., concurring.