Millwrights Local Union No. 2484 v. Rust Engineering Co. , 1967 Tex. App. LEXIS 2351 ( 1967 )

STEPHENSON, Justice

(dissenting).

I respectfully dissent:

I have concluded that the law in this state is that peaceful picketing cannot be restrained unless such picketing is unlawful or against public policy. As it was said by the Supreme Court of Texas in Cain, Brogden & Cain, Inc. v. Local Union 47 etc., 155 Tex. 304, 285 S.W.2d 942: “No injunction which prohibits lawful picketing may stand; only unlawful picketing may be enjoined.”

There is no evidence in this record to show any evidence or mass picketing. There is no evidence in this record to show the picketing is against public policy such as the cases involving secondary boycotting or an attempt to force an employer to hire union labor. The only argument made that the picketing is unlawful is that it is in violation of Article 5154d, Sec. 4, V.A.C.S., which reads as follows:

It shall be unlawful for any person, singly or in concert with others, to engage in picketing, the purpose of which, directly or indirectly, is to secure the disregard, breach or violation of a valid subsisting labor agreement arrived at between an employer and the representatives designated or selected by the employees for the purpose of collective bargaining, or certified as the bargaining unit under the provisions of the National Labor Relations Act.

The only evidence of a dispute between the Millwrights and Rust Engineering Co. is that Rust had employed people other than Millwrights to do Millwright work. Even though it is suggested by counsel that this is a matter of sub-standard wages, I do not so construe it. In any event, there is no evidence that the “purpose” of this strike is to “secure the disregard, breach or violation of a valid subsisting labor agreement,” even though the “effect” of the strike may result in such end. I do not think it was the intention of the legislature that Article 5154d, Sec. 4 have such meaning, as the word “purpose” must be given some significance. If this statute was intended to have the meaning suggested, then it would have been a simple matter to merely state that one union cannot picket as long as another union has a labor agreement with the same employer.

There are two contracts contained in the supplemental transcript which the trial judge says were tendered in evidence. The first contract is between The Rust Engineering Company and the United Brotherhood of Carpenters and Joiners of America. The second contract is between the Carpenters District Council of the Sabine Area and Vicinity and Sabine Area Construction Committee. I find no evidence of a contract between Rust Engineering Company and the Millwrights, nor do I find evidence of a contract between Rust Engineering Company and any other labor union which picketing could affect.

I also have concluded that if there was a contract between the parties compelling arbitration of disputes, and a no-strike clause, that alone does not mean that the picketing was “unlawful” or “against public policy.” The terms “breach of contract” and “unlawful” do not have the same meaning. It is not necessary for this court to pass upon the question of breach of contract as that question is not before us. Assuming there is a clear breach of the contract, it does not follow that injunction to restrain such breach would automatically follow. There is no evidence that petitioner does not have an adequate remedy at law for damages based upon a breach of contract. There being no evidence to support the action of the trial court, such judgment should be reversed and rendered and the injunction dissolved.