Pappas v. Local Joint Executive Board ( 1953 )

Opinion by

Mr. Chief Justice Horace Stern,

Defendant union is appealing from the refusal of the court below to dissolve an injunction entered against it some nine years ago.

Plaintiffs conduct a so-called “Midway Restaurant” at 3163-3165 Kensington Avenue, Philadelphia, and a “DeLuxe Lunch” at 3153 Kensington Avenue; at the former place they hold a retail liquor license. Defendant is an unincorporated labor union and is the parent body for local unions in the hotel, restaurant and bartender crafts in Philadelphia; it comprises a membership of seven independent autonomous craft unions affiliated with the Hotel and Restaurant Employees International Alliance and Bartenders League of America; three of these craft unions are The Bartenders Union, Local No. 115, the Waiters and Waitresses Union, Local No. 301, and the Cooks, Chefs and Pastry Cooks Union, Local No. 111.

In November, 1943, the Joint Board, the Waiters and Waitresses Union, Local No. 301, and the Cooks, Chefs and Pastry Cooks Union, Local No. Ill — but not the Bartenders Union Local No. 115 — began picketing the Midway Restaurant and the DeLuxe Lunch. Plaintiffs filed a bill in equity for an injunction which the court granted by final decree in November, 1944, restraining the Joint Board and Locals 301 and 111 from picketing plaintiffs’ two establishments. In September, 1950, defendant filed a petition praying that the injunction be vacated and the bill of complaint dismissed. The court denied such relief but, instead, entered an amendatory decree which modified the original in some respects. Defendant appeals.

The 1943 picketing had been expressly enjoined on two grounds: (1) that it was attended by violence, and (2) that its object was to coerce plaintiffs into forcing their employes to join the union. Unquestionably, either or both of those grounds justified the court in forbidding the continuance of such unlawful practices: Wortex Mills Inc. v. Textile Workers Union of America, C. I. O., 369 Pa. 359, 85 A. 2d 851; Garner v. Teamsters, Chauffeurs and Helpers, Local Union No. 776, 373 Pa. 19, 22, 94 A. 2d 893, 895, 896. However, picketing carried on solely for organizational purposes, that is, to persuade non-union employes of an establishment to join the union, is constitutionally protected and therefore cannot properly be enjoined: Carnegie-Illinois Steel Corp. v. United Steelworkers of America, 353 Pa. 420, 430, 431, 45 A. 2d 857, 861; Garner v. Teamsters, Chauffeurs and Helpers, Local Union No. 176, supra, pp. 21, 22, A. 2d p. 895. Accordingly, defendant urges that if, at any time in the future, it should desire to institute a picketing of the restaurants for that purpose, it would be in contempt of the injunction now in force against it because even the amended decree, while permitting defendant to “solicit” plaintiffs’ employes to become members of defendant’s affiliated unions, grants that permission only “subject to the limitations herein-before prescribed,” one of which is that defendant and its affiliated unions are enjoined from all picketing and patrolling of plaintiffs’ premises.

Defendant is entitled to a dissolution of the injunction. In Tamagno v. Waiters and Waitresses Union, 373 Pa. 457, 96 A. 2d 145, recently decided, we held, under the circumstances there present, that the court erred in not dissolving an injunction which had been entered two years before. We pointed out, citing Ladner v. Siegel (No.4), 298 Pa. 487, 500, 148 A. 699, 703, and Milk Wagon Drivers Union of Chicago, Local 753, v. Meadowmoor Dairies, Inc., 312 U. S. 287, 298, that an injunctive decree does not give to the complaining party a perpetual or vested right therein, that sueh a decree is an ambulatory one which is affected by the march of time and the nature of the proceeding, and that an injunction against picketing because of its being attended by violence is justified solely by reason of that fact and only so long as it counteracts a continuing intimidation. The controlling question is whether there is any reasonable ground to believe that the illegal practices which led to the original entry of the injunction will be repeated if the injunction be dissolved. In the present instance there would not seem to be any basis whatever for such apprehension. The parties have agreed, and the court below found, that from the time the final decree was entered in 1944 until the present neither the defendant nor any of its affiliated unions have engaged in any disorder, acts of violence, or threats thereof, have attempted to coerce plaintiffs into requiring their employes to become members of a union, have made any demands upon plaintiffs as to conditions of employment or to represent their employes, or have presented any contract for a collective bargaining agreement with respect to such conditions or representation. It is true that in June, 1950, a dispute occurred between plaintiffs and Bartenders Union Local No. 115 (which was not a defendant in the original proceedings nor enjoined in the original decree) as to whether a bartender whom the plaintiffs had discharged was entitled to one or to two weeks vacation and severance pay. In connection with that controversy pickets from the Bartenders Union appeared for a day or two at the Midway Restaurant where plaintiffs conduct a bar. Because of this, plaintiffs filed a petition to have not only the Bartenders Union but the defendant Board and local unions, Nos. Ill and 301, held in contempt; the petition, however, was withdrawn by agreement of the parties and the picketing was discontinued without prejudice to defendant’s right to request the vacation of the final decree. It is clear, therefore, that this episode has no relevance, legal or otherwise, to the present situation.

We are of opinion that, as we held in the Tamagno case, defendant is justified in its contention that the injunction should not be held over it forever as a continuing threat against any future assertion of its constitutional right peacefully to picket should a new occasion arise to justify such action.

The amended decree is reversed and the record is remanded to the court below with direction to make absolute defendant’s rule to show cause why the final decree entered on November 27, 1944, should not be dissolved and the complaint dismissed. The parties to bear their respective costs.