O'Neil v. Building Service Employees International Union, Local No. 6 , 9 Wash. 2d 507 ( 1941 )

¹ Reported in 115 P.2d 662. Plaintiff, who is the owner of two apartment houses in the city of Seattle, brought this action to enjoin Building Service Employees International Union, Local No. 6, and its president, secretary, and business agent, from picketing plaintiff's apartment houses, or using any coercive measures whatsoever, with the intent to compel plaintiff to recognize and join defendant union. The appeal is from the judgment of dismissal, rendered upon the plaintiff's refusal to plead further after a demurrer had been sustained to her complaint.

The complaint alleges that appellant, who is a widow and has several adult children who are capable of assisting her in the management of two apartment houses owned by her in the city of Seattle, was informed by a walking delegate or representative of respondents that, unless she joined respondent labor union, respondents would declare a boycott against the appellant and against the business of appellant. No person or persons is or are being hired in connection with the operation of the two apartment houses by appellant, who advised respondent union's representative that, as there was no controversy concerning employment of workmen or their wages, she would not comply with the demand. Appellant further alleged that

". . . in order to coerce plaintiff [appellant] to the subjection of her said business to the control of said union and the members thereof, the said defendants [respondents] did then and there enter into a combination, confederation and conspiracy for the purpose of coercing the plaintiff [appellant] to subject the control of her business and apartment houses to the said Building Service Employees International Union, Local No. 6, and said members thereof, and did . . . picket in front of said Aristo Apartment House and said . . . picket at all times threatened to intercept, interfere with, molest, contact and intimidate plaintiff's [appellant's] patrons and by the acts of picketing are unlawfully depriving the plaintiff [appellant] of a lucrative business."

The picket who patrols in front of the apartment houses bears a "sandwich" sign on the back and front of which is printed in large letters the following notice: "Aristo-Prospect Apartments Unfair to organized labor." The complaint further alleges that the union and its members conspired among themselves and with other persons to impede the appellant in the conduct and transaction of her business and to interfere with her patrons or tenants by persuasion and intimidation and by mailing written communications to her tenants advising them to sever their tenancy with her. Appellant admits that she is unable to say how many patrons or tenants had been or will be intimidated by reason of the presence of the picket and the communications, but, on information and belief, she alleges that many of her tenants will be frightened, intimidated, and induced to sever their tenancy, and patrons will further be deterred from entering her apartment houses.

[1] The allegations of fact, together with the reasonable inferences therefrom, in the complaint, are admitted by the demurrer to be true; that is, the demurrer admits the truth of all well pleaded facts, as well, also, as every legitimate inference deduced from such facts.

In Matthews v. Oklahoma Pub. Co., 103 Okla. 40, 219 P. 947, cited by us with approval in Puget Mill Co. v. Duecy, 1 Wn.2d 421, 96 P.2d 571, the rule as to admissions by demurrer is well stated to the effect that a demurrer only admits the truth of the facts pleaded, but does not admit the truth of the inference of the pleader based on the facts pleaded unless the facts themselves are sufficient to authorize such inference.

The allegations that respondents entered into a conspiracy for the purpose of coercing appellant to subject the control of her business to the respondents, and threatened to intercept, interfere with, molest, contact, and intimidate appellant's patrons, as well as the allegations that respondent union conspired with other persons and interfered with appellant's tenants by persuasion and intimidation, are mere conclusions of the pleader. There is no contention, neither is there any allegation, that the picketing was not peaceful. Peaceful picketing, under the authorities, is lawful, hence the fact that the effect of such picketing is to compel or coerce the one picketed to yield to the demands of the picketing union does not constitute intimidation or coercion in the sense of unlawful compulsion.

Summarized, the allegations of fact, admitted by the demurrer to be true, are that appellant is the proprietor of two apartment houses which she operates alone and without employees. Because of appellant's refusal to join respondent union, respondents are peacefully picketing appellant's apartment houses and advertising by use of sandwich boards that appellant is unfair to organized labor for the purpose of forcing appellant, against her will, to join respondent union.

[2] The question presented is whether the fourteenth amendment to the United States constitution prevents the courts of this state from granting injunctive relief against a labor union and its members, to prohibit peaceful picketing of the place of business of a person who has no employees where the purpose of such picketing is to force, against her will, the owner of such business to join the picketing union.

In Zaat v. Building Trades Council, 172 Wn. 445,20 P.2d 589; Kimbel v. Lumber Saw Mill Workers Union, etc., 189 Wn. 416,65 P.2d 1066, and Marvel Baking Co. v. Teamsters' Union,etc., 5 Wn.2d 346, 105 P.2d 46, we held that it is lawful for workmen to organize unions, and that it is lawful for labor unions to convey to the public at large, and to persons especially interested, information that a certain business has been by labor unions declared unfair; that is, to conduct peaceful picketing at or near such place of business and to advise the public of the fact that the owner or operator of that business is regarded as unfair to the labor union.

In Zaat v. Building Trades Council, supra, a demurrer to the complaint in an action to enjoin defendants from advising the public that plaintiff was unfair to organized labor was sustained, and, on appeal, we affirmed the judgment dismissing the complaint. In that case, the plaintiff, who was the proprietor of a plumbing business, was denied the right to work in carrying out his own contract. The rule of the labor unions that a proprietor of a plumbing business must not himself work in carrying out his own contract, although such proprietor is fully qualified to engage in such labor, was, we held, a question of policy which concerns only the unions and their members; and, however oppressive such interference with appellant's business — the union publicity that the proprietor was unfair to organized labor because he insisted in working as a plumber in carrying out his own contracts — no relief may be afforded by the courts. We said:

"The rule laid down in some jurisdictions, to the effect that, because an employer may lawfully perform his own work or a portion thereof, and that, because the employer is within his legal rights in so doing, a labor union or members thereof can not lawfully engage in a controversy with him concerning his conduct, does not prevail in this state."

In Shively v. Garage Employees Local Union No. 44, 6 Wn.2d 560, 108 P.2d 354, we held, and reviewed therein our prior opinions to the same effect, that peaceful picketing of the place of business of an employer, by a union which does not include in its membership any employee of such employer, for the purpose of persuading or coercing such employees to join a union against their will, is unlawful and may be enjoined.

The opinion in Shively v. Garage Employees Local Union No. 44,supra, was filed December 12, 1940. February 10, 1941, the United States supreme court, in American Federation of Labor v.Swing, 312 U.S. 321, 61 S.Ct. 568, held that the constitutional guaranty of freedom of discussion is infringed by judicial policy of a state to forbid resort to peaceful persuasion through picketing where there is no immediate employer-employee dispute as in the case of attempted unionization of the business employing nonmembers of the union. In other words, the United States supreme court held that the right of labor unions to peacefully convey to the public at large, and to persons especially interested, information that a certain business has been by labor unions declared unfair, cannot be enjoined in view of the fourteenth amendment to the United States constitution which guarantees freedom of speech; that the constitutional guaranty of freedom of discussion is infringed by the common law or statutory policy of a state forbidding resort to peaceful persuasion through picketing merely because there is no immediate labor dispute. That case presented the question, as does the case at bar, whether the right of freedom of speech is violated by an injunction restraining a labor union from peacefully picketing a place of business on the ground that such place of business is unfair to organized labor.

A proprietor of a business or an employer is within his legal rights in performing his own work or a portion thereof, but a labor union, by means of peaceful picketing and advising the public that such proprietor or employer is unfair to organized labor because he exercises such legal rights, may coerce that proprietor or employer to forego that legal right to work. Zaat v. BuildingTrades Council, supra.

It is now lawful for a labor union to peacefully picket the place of business of an employer, none of whose employees is a member of the picketing union, for the purpose of coercing such employees, against their will, to join that union. AmericanFederation of Labor v. Swing, supra. If a labor union has the legal right to picket, as unfair to organized labor, the place of business of an employer who refuses to compel his employees to join such union or to discharge them for refusal to become members of the picketing union, it logically follows that a labor union has the legal right to go a step farther and peacefully picket the place of business of a person who has no employees — one doing business as an individual proprietor — to compel, against his will, such lone person or individual proprietor to join the picketing union.

It may be argued that the right to work and operate one's factory, plant, or business free from interference, which should be as inviolate as the right to form labor unions, the right to peacefully strike, and the right to peacefully picket a place of business regarded as unfair to the labor union, is no longer protected.

The constitution of the United States is the supreme law of the land. However much we may disagree with the interpretation of that constitution by the United States supreme court, such interpretation is binding on us. The question involved in the case at bar is, it is true, of great public interest. That question is foreclosed by opinion of the supreme court of the United States in American Federation of Labor v. Swing, supra.

The respondents are charged with doing and threatening to do only what, under the authorities, they have a legal right to do; therefore, those acts and threats are not unlawful.

The judgment is affirmed.

BLAKE, J., concurs.

BEALS and DRIVER, JJ., concur in the result.