Weyerhaeuser Timber Co. v. Everett District Council of Lumber & Sawmill Workers , 11 Wash. 2d 503 ( 1941 )

I agree that it is the function of a court to declare what the law is, and not what its members as individuals think it ought to be; otherwise, we would have judicial anarchy. The difficult question is: What is the law today that is applicable to the facts in the case at bar?

In St. Germain v. Bakery Confectionery Workers' Union,97 Wn. 282, 166 P. 665, L.R.A. 1917F, 824 (decided July 17, 1917), we held, following Jensen v. Cooks' Waiters' Union,39 Wn. 531, 81 P. 1069, 4 L.R.A. (N.S.) 302 (decided August 8, 1905), that, where plaintiffs' restaurant was picketed by a labor union, the pickets wearing cards which declared the place unfair to union labor, and the only object was to compel plaintiffs to enter into a contract with the labor union to employ only members of the labor union, the same will be enjoined as an unlawful interference with plaintiffs' business, regardless of whether it was peaceful or otherwise. See, also, to the same effect,Pacific Coast Coal Co. v. Dist. No. 10, U.M.W.A., 122 Wn. 423,210 P. 953 (decided December 6, 1923).

In Sterling Chain Theaters v. Central Labor Council,155 Wn. 217, 283 P. 1081 (decided January 10, 1930), we held that picketing one hundred feet from the place of business picketed was lawful. We gave no reason, satisfactory to me, why ninety-nine feet or ninety-eight feet would be unlawful, while the extra foot or so would be the difference between lawful and unlawful picketing. This is in harmony with Adams v. Local No.400 of Cooks Waiters, 124 Wn. 564, 215 P. 19 (decided May 4, 1923).

In Zaat v. Building Trades Council, 172 Wn. 445,20 P.2d 589 (decided April 4, 1933), we took a long stride. In that case we held that 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 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 on working as a plumber in carrying out his own contracts, no relief may be afforded by the courts.

In Kimbel v. Lumber Saw Mill Workers Union, 189 Wn. 416,65 P.2d 1066 (decided March 11, 1937) — another "picketing" case — we held that there is no justification for restraining the activities of a labor union in engaging in a peaceful strike and representing that an employer is unfair to organized labor when he did not pay the union rate of wages, where no attempt was made to molest or intimidate any employee or to do any damage to property.

In Safeway Stores v. Retail Clerks' Union, 184 Wn. 322,51 P.2d 372 (decided November 8, 1935), Adams v. BuildingService Employees Union, 197 Wn. 242, 84 P.2d 1021 (decided December 6, 1938), Fornili v. Auto Mechanics, 200 Wn. 283,93 P.2d 422 (decided August 21, 1939), and Shively v. GarageEmployees Union, 6 Wn.2d 560, 108 P.2d 354 (decided December 12, 1940), we held (contrary to statute, Rem. Rev. Stat. (Sup.) § 7612-1 [P.C. § 3467-21], defining a "labor dispute") 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. To the contrary is Marvel Baking Co. v. Teamsters' Union, 5 Wn.2d 346, 105 P.2d 46 (decided September 6, 1940).

In Bloedel Donovan Lbr. Mills v. International Woodworkers,4 Wn.2d 62, 102 P.2d 270 (decided May 6, 1940), we held that, under the Wagner act (29 U.S.C.A. (Sup.) §§ 151 to 166), where interstate commerce is involved, the National Labor Relations Board has exclusive initial jurisdiction to determine the bargaining unit for employees; and where two rival unions submitted to the board the dispute as to which was the proper collective bargaining agency of the employees of a lumber company, and an election was held under the supervision of the board and the result duly certified, the minority union is bound thereby.

In O'Neil v. Building Service Employees Union, 9 Wn.2d 507, 115 P.2d 662 (decided July 24, 1941), we held that a labor union had right to picket peacefully apartment houses which proprietor operated alone and without employees, and to advertise by use of sandwich boards carried by pickets that proprietor was unfair to organized labor, for purpose of forcing proprietor, against her will, to join the union. This holding follows decision February 10, 1941, of United States supreme court inAmerican Federation of Labor v. Swing, 312 U.S. 321,85 L.Ed. 855, 61 S.Ct. 568, 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.

That case squarely presented the question whether the right to work and operate one's plant or business free from interference was as inviolate as the right to strike and peacefully picket a place of business regarded as unfair to the picketing union. 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, can not 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.

On the same day, the United States supreme court held in MilkWagon Drivers' Union v. Meadowmoor Dairies, 312 U.S. 287,85 L.Ed. 836, 61 S.Ct. 552, 132 A.L.R. 1200, that an injunction against picketing is justified only by the violence that induced it and only so long as it counteracts a continuing intimidation.

Subsequent to our opinion in O'Neil v. Business ServiceEmployees Union, supra, the United States supreme court, on authority of American Federation of Labor v. Swing, supra, inBakery Pastry Drivers v. Wohl, 313 U.S. 548, 85 L.Ed. 1513,61 S.Ct. 1108, reversed the New York court of appeals' affirmance of lower court's granting of injunction on facts which I quote, as follows, from the opinion of the New York supreme court (14 N YS. 2d 198) in the cause:

"Each of the two plaintiffs are peddlers engaged in the business of buying baked food products from different manufacturing bakers and reselling them to grocery stores. Each is the owner of a truck used by him in the distribution of his wares. One of the plaintiffs, Wohl, has been a peddler for five years and the other, Platzman, for two years. Wohl buys his merchandise from four different bakeries and Platzman from two. Neither one has any contractual relation with any of these bakeries. The earnings of the plaintiffs are based upon the difference between the purchase and the resale price of the products. The approximate income of Wohl is about $32 weekly from which he supports his mother and two motherless daughters. He works about thirty-three hours a week and has no employee.

"Platzman also has no assistant, is married and an expectant father and his income is about $35 weekly, derived from a working schedule of sixty-five hours.

"These plaintiffs seek a permanent injunction restraining the defendant union from picketing the places of business of the manufacturing bakers who sell to them and of the customers who buy from them. The proof is that the defendant threatens to picket these manufacturers and the various customers of the plaintiffs unless each of the plaintiffs employ a member of the defendant union one day a week to assist them. The place of business of the Diamond Baking Company, one of the manufacturers selling to the plaintiffs, has already been picketed. Another manufacturer was also picketed for a short period.

"The plaintiffs contend that they are engaged in an independent calling and that their meagre earnings are insufficient to permit them in justice to their families to employ a union member for one day a week."

This is another jurisdictional fight between labor unions. The picketing union is the minority union. Dissatisfied with the selection of another union by a majority of the employees as the collective bargaining agency — there has been no certification by the National Labor Relations Board of the selection — the minority union commenced picketing en masse of appellant's mills and by threats of violence prevented employees, who were willing to work, from entering the mills. Since commencement of this action, the violence and threats were discontinued.

Society is in such a state of transition that conduct that would have been a crime three decades ago is tolerated, in fact, approved at the present time. Less than a quarter of a century ago, the courts uniformly held that "picketing" was unlawful — that there could not be such a thing as "peaceful picketing." Later, some courts held that picketing was lawful if done within a specified radius from the place picketed. Subsequently we held (contrary to a statute) that "peaceful" picketing of the place of business of an employer by a union, which did not include in its membership any employees of such employer, for the purpose of coercing such employees to join a union against their will, is unlawful. Thereafter, we held that a minority union, afterelection by employees and certification by National Labor Relations Board of another union as the bargaining agency, couldnot lawfully picket the employer's place of business.

The decisions which denied or endeavored to regulate the right to picket were invalidated by the United States supreme court in its "freedom of speech" opinion (American Federation of Labor v.Swing, supra). The United States supreme court's holding that, unless the picketing was peaceful, the courts could enjoin the picketing, was vitiated by its opinion that, if in the beginning the picketing was not peaceful but when influenced by threat of injunction the picketing became peaceful, such picketing is lawful.

What will the attitude of the United States supreme court and other courts be in cases of peaceful picketing of manufactories and plants devoted to national defense projects? Can such picketing be peaceful? Or, can peaceful picketing which halts or retards the national defense program be lawful?

If, as held by the United States supreme court, the right to peacefully picket privately owned plants and places of business, whether devoted to national defense projects or otherwise, is inviolate under the fourteenth amendment to the United States constitution, can the right be denied to picket plants operated by the United States government? An answering argument on both phases of this question, by analogy at least, is that, while the constitutional (Art. 1, § 22, state constitution) right of the defendant in criminal prosecutions to appeal from conviction is inviolate, yet that constitutional right is subject to regulation, and failure to observe the rules of practice and procedure may result in dismissal of his appeal and a denial of a hearing on the merits.

The American Federation of Labor pledged, at its sixty-first annual convention in Seattle in October, 1941, its willingness to do every thing within the power of its members to support our government in this time of real, not fancied, crisis. The leaders of that federation declared that they were not aware of any controversy in any of the defense industries that could not be settled through negotiation and mediation while the men remained at work producing those things which are essential to the welfare of our country; that they could not conceive of any jurisdictional dispute that could not be settled amicably while the men are at work. The editor of the Washington State Labor News, issue of October 31, 1941, commented as follows:

"We were and are opposed to any attempts of governmental regulation of the affairs of trade unions. The trade unions, however are charged with a grave responsibility to keep the wheels of industry going, and it is becoming more and more necessary for these unions to invoke discipline in the organizations so as to prevent any attempt of governmental regulation. When a house is on fire it becomes ridiculous to let the house burn while the jurisdictional or wage dispute is taking place — and the world is certainly on fire today."

The Congress and the president of the United States, reacting to public opinion, are now preparing anti-strike legislation which would empower the government to take over a defense plant when strikes impede production. Doubtless, the enactment would provide for the following procedure: Successive steps of collective bargaining under present laws, conciliation, mediation, and a fourth step of compulsory arbitration. It may be that the Congress and the president, if the emergency warrants and public opinion becomes more insistent in its demand, will attempt by statute that governmental regulation of its affairs to which labor unions are opposed. If the nation's life is then in grave peril — as it may be — the United States supreme court will hardly strike down that legislation as unconstitutional. However, until that time, though the conduct of respondents is violative of the spirit of the Wagner act, I am just as sure that the supreme court of the United States will follow its "freedom of speech" opinion (American Federation of Labor v. Swing, supra); hence, I am compelled to concur in the result.