Grocer Co. v. Local No. 406 A.F.L. , 321 Mich. 276 ( 1948 )

I concur in affirmance but do not subscribe to many of the conclusions reached by the Chief Justice. Some additional facts should be stated in order to afford an understanding of the ground on which the injunction in this case was granted.

The events resulting in the picketing of plaintiff's places of business started when one Thomas E. Burke, an agent of the defendant teamsters union, called at the plaintiff's office in April, 1945. Mr. Muller, the president of the plaintiff company, testified that at that time the conversation between Mr. Burke, the manager of plaintiff's business, and himself, was to the effect that the union desired plaintiff's men to join, that they (the union) had changed their method of unionization, were working from the top down and wanted the plaintiff to see that plaintiff's men were included in the teamsters union.

President Muller testified:

"Q. Was anything further said about how that was to be accomplished?

"A. Well, we were to talk to the men. We told him our men were not sympathetic, as far as we knew, and we would not force our men. Some of them were objectors and we would not force the men.

"Q. Objectors on what ground?

"A. Well, some on American principles and some on religious scruples. * * *

"Q. What was it they wanted you to do on that behalf?

"A. He said they were working from the top down, rather than going to the employees they were coming to us, and wanted us to take care of that with the employees. * * *

"Q. And then what happened, was anything said — was anything said about what the consequences might be if you didn't have your men join the union?

"A. Well, our response was that we refuse to coerce our men to join a union, nor had we coerced them to remain out of the union. That was their choice and we would not enter into it. He suggested that merchandise — supplies of merchandise could be cut off. And he didn't make that threat directly to us. He told us what was happening to other firms and suggested that might happen to us, that flour, sugar, shortening, had been cut off from certain other firms, and in some cases bananas, and it wasn't very long before they came to them.

"Q. What did you say when he suggested that?

"A. We said we knew they could cause much trouble, but as far as we were concerned, we would not force our men to join the union. "Q. Was anything said about the — did this union representative say anything about the union contacting the men directly and talking with them?

"A. No. He said their method had changed, they were working from the top down."

Mr. Burke, the agent of the defendant union referred to in the above testimony, did not testify, and the above testimony stands undisputed. Subsequently the union started to picket the plaintiff's places of business. A meeting was held between organizing agents of the union and plaintiff's employees, in which plaintiff took no part. Plaintiff's employees unanimously refused to join the union. As a result of the picketing, plaintiff's wholesale grocery business was seriously curtailed, until the injunction in the present case was issued.

On this appeal, the defendant teamsters union claims that there was a lawful labor dispute between the plaintiff or its employees and the defendant union "which would authorize picketing and boycotting of plaintiff;" and that the injunction deprives the defendant union of freedom of speech, and of property without due process of law. The plaintiff-appellee claims that it was an unlawful labor objective for the defendant union to picket plaintiff's place of business "to compel the plaintiff to become the agent of the union to organize the plaintiff's employees and put them in the union in spite of the fact that the employees were all opposed to joining the union." Plaintiff also claims that the United States labor-management relations act of 1947 (the so-called "Taft-Hartley act") is now before the Court on this appeal.

The entire problem revolves around the question, "what is an unlawful labor objective, an `unfair labor practice;'" and as to whether an unfair labor practice may be indulged in by either employer or labor organization as an exercise of the freedom of speech guaranteed by the First Amendment to the Constitution of the United States. The defendants rely on Senn v. Tile LayersProtective Union, 301 U.S. 468 (57 Sup. Ct. 857, 81 L.Ed. 1229);American Federation of Labor v. Swing, 312 U.S. 321 (61 Sup. Ct. 568, 85 L.Ed. 855); Bakery Pastry Drivers Helpers Local802 of the International Brotherhood of Teamsters v. Wohl,315 U.S. 769 (62 Sup. Ct. 816, 86 L.Ed. 1178); Cafeteria EmployeesUnion Local 302 v. Angelos, 320 U.S. 293 (64 Sup. Ct. 126,88 L.Ed. 58). The Senn Case was decided in 1937 and the SwingCase in 1941. They have since been considered and distinguished by this Court in Silkworth v. Local No. 575 of the AmericanFederation of Labor, 309 Mich. 746 (1944), and Harper v.Brennan, 311 Mich. 489 (1945). Also directly affecting the question involved, the labor-management relations act has been enacted by Congress, effective in August, 1947.

In the Silkworth Case, supra, the defendant union attempted to have the Silkworths induce their employees to join the union by paying the initiation fees. The employers refused to do so, and the union by picketing plaintiffs' wholesale petroleum storage plant attempted to prevent any deliveries being made into or out of the plant. Admittedly the picketing was peaceful. There was no labor dispute between the plaintiffs and their employees, who had declined to joint the union. The Court held that it was an unlawful labor objective for the union to picket the employers in order to induce the employers to have their employees join the union by paying their initiation fees, and affirmed a decree of the circuit court enjoining a union "from picketing plaintiffs' places of business and from in any manner interfering with their business or with the delivery to them of petroleum products." The Court (syllabi) held:

"If the object sought to be obtained by a labor union through peaceful picketing is not a lawful labor objective, a court would be justified in exercising control of its acts.

"Where the real objective of defendant labor union in picketing plaintiff employers' bulk oil storage plants was to compel them to put their drivers in defendant union by paying their initiation fees regardless of whether or not the drivers wished to join, the use of the lawful means of peaceful picketing was not permissible since the labor objective was not a lawful one."

The only distinction between the Silkworth Case and the instant case lies in the fact that here the union is attempting to coerce the plaintiff employer to have its employees join the union by whatever means the employer may see fit to adopt, in order to save its business from harm; while in the SilkworthCase the specific demand was that the employers pay the fees to accomplish the same result. Both attempts are equally unfair labor practices. Subsequent to the decisions in the Senn andSwing Cases such attempts have been declared unfair labor practices by Congress, in the 1947 labor-management relations act. While I believe that the decision of this Court inSilkworth v. Local No. 575 of the American Federation ofLabor, supra, should be said to control decision in the instant case, I have reached the conclusion that the question of what is an unlawful labor objective, an "unfair labor practice," is now settled by the labor-management relations act of 1947^* and that we need not resort to previous decisions of the United States supreme court, or of this Court.

Section 8 (a) of the 1947 labor-management relations act provides among other things:

"It shall be an unfair labor practice for an employer —

"(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7;"

Section 7 of the act provides:

"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8 (a) (3)."

Section 8 (a) (3), the section above referred to, has no application to the situation before us. Thus it is apparent from the record here that the defendant union, by picketing plaintiff's establishment, seeks to compel the plaintiff "to interfere with * * * or coerce (its) employees in the exercise of the rights guaranteed in section 7;" while section 7 plainly declares that employees shall have the right to refrain from joining a labor organization. Obviously the defendant union thus attempts to compel the plaintiff to do what section 8 (a) (1) of the labor-management relations act expressly declares to be an unfair labor practice.

Section 8 (c) of the labor-management relations act in substance and effect provides that the dissemination of any views, argument or opinion shall not constitute an unfair labor practice. This puts into the act the guarantee of free speech provided for in the First Amendment to the United States Constitution. However, it must be read in connection with the provisions of section 7 and section 8 (a) (1) hereinbefore quoted. All parts of the act must be read together and if possible given reasonable effect. Section 8 (c) does not nullify the express declarations in section 7 and section 8 (a) (1).

The most recent case called to our attention is FredWolferman, Inc., v. Root, 356 Mo. 976 (204 S.W. [2d] 733), decided by the supreme court of Missouri September 8, 1947. In that case, the plaintiff operated four retail grocery and meat markets in Kansas City and employed 19 butchers. The two defendants, the business agent and the president of a meat cutters and butchers union, attempted to induce plaintiff's butchers to join the union, but they voted against joining. The defendants demanded that plaintiff's executives use their influence to force the butchers to join, threatened to cut off deliveries. Plaintiff refused to sign a contract, and the union picketed plaintiff's places of business. As a result, practically all of plaintiff's supplies and deliveries were cut off. The picketing was peaceful. The plaintiff obtained an injunction restraining the picketing "on the ground it was being carried on for an unlawful purpose, namely to coerce plaintiff into signing a contract with defendants' union and to force plaintiff to coerce its butchers into joining defendants' union." The trial court enjoined the defendants from demanding that the plaintiff enter into a contract or require its employees to join the union, but refused to enjoin the peaceful picketing, and from that refusal the plaintiff appealed. The supreme court of Missouri said that the issue narrowed down to the single question whether the picketing was for an unlawful purpose and held that under the national labor relations act the picketing, being at least in part for an unlawful purpose, should be enjoined. We quote at length and with approval from the opinion. The court said:

"Under the national labor relations act some of the original purposes of the picketing were clearly unlawful because an employer subject to the act may not encourage or discourage membership in any labor organization, and may contract only with the representative of the majority. 29 USCA, §§ 158, 159. And seeNational Labor Relations Board v. Electric Vacuum Cleaner Co.,Inc., 315 U.S. 685 (62 Sup. Ct. 846, 86 L.Ed. 1120).

"While peaceful picketing for lawful purposes has long been upheld in this State, still the rule is well established here that where the purpose of concerted action by labor is unlawful such action may be enjoined (citing cases). * * *

"However, we observe in passing that this court has also long recognized the connection between peaceful picketing and the constitutional guaranty of free speech (citing cases).

"Thus, the only question for decision is whether defendants have, in fact, renounced their unlawful purposes in picketing plaintiff's stores as the trial court found.

"The determination of the purpose or object sought to be accomplished by picketing is one of fact.

"The answer, as quoted from above, contains allegations which specifically assert a wrongful purpose under the facts of the case, namely that defendants picketed plaintiff's stores to force plaintiff to enter into a contract with the union. The answer also states the picketing is for the purpose of informing the public of plaintiff's conduct. What conduct? Clearly it must be plaintiff's refusal to bow to defendants' unlawful demands. True, the answer also states the picketing is for the additional purpose of informing the public of the refusal of plaintiff's butchers to join the union but the other allegations of the answer remain unchanged and uncontradicted and in effect admit the unlawful purpose.

"In defendants' evidence there is some testimony that defendants desired to continue picketing for the purpose of informing the public that plaintiff's butchers are largely nonunion. However there is also testimony that deliveries to and from plaintiff's stores were stopped for the purpose of putting economic pressure upon the plaintiff so that it in turn would force its butchers to join the union. But there is no evidence of any renunciation on the part of defendants.

"Both the answer and the evidence do disclose that one of the purposes for the picketing is for giving information to the public. While we assume that purpose is lawful still when it is coupled, as it is here, with unlawful purposes, the fact one of several purposes is lawful does not make the picketing lawful. Picketing for both lawful and unlawful purposes is unlawful. See 4 Restatement, Torts, § 796. Cf. Baush Machine Tool Co. v.Hill, 231 Mass. 30 (120 N.E. 188); Folsom Engraving Co. v.McNeil, 235 Mass. 269 (126 N.E. 479)."

The court then discussed the Senn Case, the Swing Case and others relied upon by appellants in the instant case, and concluded as follows:

"We are of opinion that none of the cases relied upon by the defendants, which we have already discussed, is authority for any principle that picketing by workmen in concert to persuade or induce an employer to do an unlawful act, one condemned by statute as an unfair labor practice and contrary to the defined public policy of the Commonwealth and of the nation, is permissible under the constitutional guaranty of freedom of speech, or otherwise."

February 16, 1948, the United States supreme court denied certiorari in the above case. 333 U.S. 837 (68 Sup. Ct. 608,92 L.Ed. 1121).

I am in doubt as to the meaning of the decree entered herein by the lower court, as to its future effect. Nor do I understand what is meant by the Chief Justice in his opinion herein wherein he concludes with the statement that:

"The decree below is modified by deletion of that portion which abrogates defendants' right of free speech."

It is conceivable that conditions may change or circumstances arise hereafter under which picketing of the plaintiff's places of business might be considered to be for a lawful labor objective, and that a case might arise under different circumstances under which the present decree might not apply. But under the circumstances presented on the record in this case, a decree should be entered in this Court in accordance with the declarations in section 8 of the 1947 labor-management relations act, substantially as follows:

It is ordered, adjudged and decreed: That the defendants, and their officers, agents, and representatives, and each of them, do absolutely and entirely desist and refrain from:

(1) Picketing the plants and places of business of the plaintiff;

(2) Engaging in, or inducing or encouraging the employees of any employer to engage in a concerted refusal in the course of their employment to use, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, for the purpose of preventing the delivery of such goods, articles, materials, or commodities to or from the plaintiff;

(3) Inducing or encouraging employers other than plaintiff to engage in a concerted refusal to deliver, or to cause their employees not to deliver, supplies and goods to or from the plaintiff;

(4) Threatening or ordering boycotts against persons supplying goods to plaintiff or making deliveries of goods to or from the plaintiff or purchasing goods from plaintiff or selling goods to plaintiff;

(5) The case is remanded to the circuit court for enforcement hereof, and with authority to modify this decree as changes in conditions or circumstances may require.

Plaintiff may have costs.

SHARPE, REID, NORTH, BUTZEL, and CARR, JJ., concurred with BOYLES, J.

DETHMERS, J., did not sit.

^* 61 Stat. at L. 136 (29 USCA 1947 Supp. § 141 et seq.). — REPORTER.