Fornili v. Auto Mechanics' Union Local No. 297 of the International Ass'n of MacHinists , 200 Wash. 283 ( 1939 )

BLAKE, C.J., dissents. This action was brought seeking injunctive relief. At the time the complaint was filed, a temporary restraining order was issued, and also a show cause order. Upon the return day of the show cause order, a hearing was had, the result of which was the denial of a temporary injunction. Subsequently, the case came on for trial upon the merits, and the court refused a permanent injunction. From the judgment dismissing the action, the plaintiffs appealed.

The respondent Auto Mechanics' Union Local 297 will be referred to as the union, and C.E. Rowley, who is the business representative of the union, will be referred to as the business agent. The appellants, O.B. Fornili and Emma Fornili, his wife, for a number of years, owned and operated a business in the city of Tacoma for the sale of used cars, gas, oil, and gasoline, and, in connection therewith, they conducted an automobile repair shop. They owned the building in which the business was conducted. The repair shop, while located under the same roof, was in a different room from that devoted to the remainder of the business. For a number of years, they had employed several men in the shop.

In 1936, the place was picketed by the union, and, as a result thereof, the parties entered into a written agreement for one year to employ none but union mechanics. This agreement was succeeded by a similar one, entered into early in the year 1937, which, by its terms, expired June 16, 1938.

In February of that year, the appellants say that they leased the repair shop to one Manuel A. Becker. The respondents dispute this, and claim that Becker was, in truth and in fact, an employee of the appellants, and the pretended lease was simply a subterfuge to avoid the terms of the contract. In considering the case, we will accept the view of the respondents as to the nature of the relation between Becker and the appellants.

During the time that the contract was in force, there was more or less difficulty between the appellants and the union, due, as it appears, largely over hours. Before June 16th, and from time to time during the life of the contract, there was picketing. After the contract expired, there was no picketing until the 30th of September following.

From the time that Becker went into the shop, the appellants, in addition to him, had only one employee, who worked generally in the salesroom, and was what might be referred to as a "handy man." Neither Becker nor the other employee belonged to the union. So far as the record shows, they were satisfied with their wages, hours, and working conditions. No dispute had arisen between either one of them and the appellants.

The business agent testified that, when they resumed September 30th, the same conditions existed as existed when they were picketing the place prior to the expiration of the contract. But we cannot accept this as a correct view of the situation. The contract was not in existence when the picketing was resumed, and the situation stood at that time as if there had been no previous contract. We will make no further reference to the picketing during the life of the contract, because that matter is wholly immaterial at this time. At no time did either of the parties ask to have the contract renewed, and there were no negotiations between them with reference to a renewal.

[1] In the case of Safeway Stores v. Retail Clerks' Union,184 Wash. 322, 51 P.2d 372, it was held that, where there was no controversy between an employer and the employees, a third party could not picket the business for the purpose of coercing the managers of the stores into inducing or persuading their employees to become members of the union, for the reason, as there stated, there did not exist a labor dispute. In that case, it was said:

"The vital, controlling question at issue here is plain and easy of solution. It in no way pertains to the relations between the appellant, a merchant, and its employees. For aught that appears, they are content and satisfied, among themselves. On the contrary, this is a lawsuit between appellant and a third party — a labor union that does not include in its membership any employee of the appellant. What right have the respondents to insist or demand, at the threat or cost of the destruction of appellant's business, or at all, that appellant ask, urge or coerce, directly or indirectly, its employees, who are at liberty to do as they please, to join respondents' organization? Of course, there is nothing unlawful in hiring clerks or salesmen who are not members of a local organization such as the respondent; and any attempt, like that in this case, to deny or cripple one's right to do so is an unwarranted attempt by individuals or persons to unreasonably interfere with the freedom of the liberty and property right of contract.

"The conduct of respondents, in conjunction with that of appellant, cannot be termed a labor dispute. It is an unwarranted attempt on the part of respondents to compel appellant, against its right of choice, to become active in the cause of respondents, with the result that, upon the failure of that attempt, respondents purposely commenced and continued picketing, to appellant's damage in the large sum of $2,200 in less than four months' time, with the avowed intention of continuing the same to manifest, irreparable injury and damage to the appellant."

That case, in the case of Adams v. Building Service EmployeesInternational Union, Local No. 6, 197 Wash. 242,84 P.2d 1021, was cited with approval.

The holding in the case of Kimbel v. Lumber Saw MillWorkers Union, 189 Wash. 416, 65 P.2d 1066, is not applicable to the facts in the case now before us. That case involved the picketing of a logging camp, and is not an authority which supports the judgment in this case.

In Blanchard v. Golden Age Brewing Co., 188 Wash. 396,63 P.2d 397, it was said:

"The right to earn a livelihood and to continue in employment unmolested by unwarranted activities of third persons is entitled to protection in equity. Truax v. Raich, 239 U.S. 33,36 S. Ct. 7, 60 L. Ed. 131, Ann. Cas. 1917B, 283. A correlative principle is that the employer has the right freely to maintain relations of employment with whomsoever he desires, and no one has the right purposely to disrupt or interfere with those relations by the intentional resort to such measures as will obviously, and in the ordinary course of events, inflict irreparable injury upon the employer. Hitchman Coal Coke Co. v. Mitchell, 245 U.S. 229,38 S. Ct. 65, 62 L. Ed. 260, Ann. Cas. 1918B, 461. Both of the cases just cited are authority for the further rule that it is immaterial whether the employment be for a term or at will."

The rule of the Safeway Stores case, as already indicated, is controlling here. In this case, there was no controversy or dispute between the appellants, the employers, and the employees. The picketing was resumed by a third party. It is not clear from the record whether the purpose of the picketing was to coerce the appellants into having their employees become union men, or whether its purpose was to punish them for failing to live up to the terms of their contract while it was in effect. In either event, the picketing was not lawful. The business agent testified, referring to the appellant O.B. Fornili, that "we had a fight on with him." The witness further testified that he heard the secretary of the union state to a third party that they were going to do to Fornili "what had been done to Stoner," referring to the Stoner Motor Company, which had been previously picketed and had been compelled to quit business on account of labor difficulties.

[2] At the conclusion of the hearing on the merits in this case, the appellants were entitled to a permanent injunction. It is said, however, that there was no probability of picketing being resumed, and, for this reason, a permanent injunction was properly refused. In this connection, the business agent testified:

"In this case the pickets have not been placed back since they were taken off under the original order of the Court. I do not know what the organization [union] may do with reference to it, nor is anyone able to tell until the organization takes a vote on it."

The facts in this case are entirely different from what they were in Commercial Bindery Printing Co. v. TacomaTypographical Union No. 170, 85 Wash. 234, 147 P. 1143. The record here is not sufficient to establish that there was no probability that picketing would be resumed if injunctive relief was denied.

The judgment will be reversed, and the cause remanded with direction to the superior court to enter a judgment permanently enjoining the respondents from picketing the place of business of the appellants.

JEFFERS, ROBINSON, and STEINERT, JJ., concur.