Intl. Brotherhood of Teamsters, Local No. 878 v. Blassingame

Ed. F. McFaddin, Associate Justice

(Dissenting)'.

Tbe appellants were engaged in picketing an establishment where Terry Dairy products were being sold: there was no mass picketing and there was no violence. The .majority opinion in this case holds that the Chancery Court was correct in enjoining such picketing on the theory of a secondary boycott. I find myself unable to agree with that conclusion; hence this dissent.

There is a distinction between (a) a secondary boycott and (b) product picketing. A secondary boycott exists when the workmen on strike against one establishment attempt by picketing to induce the workmen of another establishment to cease working for their employer.¹ Product picketing is an effort by striking workmen of one establishment to persuade the public to cease buying the product of the establishment against which the workmen are on strike, but with no effort on the part of the strikers to influence the workmen of the place where the picketing is being conducted to cease from working at that establishment. I think that in the case at bar the picketing was product picketing rather than a secondary boycott,² But I propose to show that the majority opinion is wrong in this case whether the picketing was a secondary boycott or product picketing.

I. Secondary Boycott. If the picketing in the case at bar be regarded as a secondary boycott, then it is my understanding of the Taft-Hartley Act (U. S. C. A. Title 29, Section 158) that all jurisdiction in regard to a secondary boycott — absent mass picketing and violence — is in the National Labor Relations Board. Capital Service v. N. L. R. B., 347 U. S. 501, 98 L. Ed. 887, 74 S. Ct. 699. The recent case of Auto Workers v. Wisconsin Employment Relations Board, 351 U. S. 266, 76 S. Ct. 794, 100 L. Ed. 1162, decided by the U. S. Supreme Court on June 4, 1956, inferentially so holds.

The majority opinion in the case at bar says the picketing here was a secondary boycott, but that no interstate commerce was shown to have existed so the State Court had jurisdiction. I understand that the old distinction, that actual movement of goods is necessary to make interstate commerce, has been changed both by the Wagner Act and the Taft-Hartley Act. It is not a question of whether the goods actually moved in interstate commerce, but whether the picketing ‘ ‘. . . would burden or obstruct commerce ... or tend to burden or obstruct . . . the free flow of commerce. ’ ’ Such is the language of the Taft-Hartley Act as contained in U. S. C. A., Title 29, Section 142. So, if picketing here be a secondary boycott, it is not necessary to allege the actual movement of goods in interstate commerce, because the jurisdiction to enjoin a secondary boycott is exclusively in the National Labor Relations Board, absent mass picketing or violence. The effect here would be to reverse the decree and dismiss the injunction.

II. Product Picketing. If we regard the picketing here involved as product picketing — and I do so regard it — then there is nothing illegal in such picketing; it comes under the right of free speech guaranteed by the Constitution. Here are some cases from State courts that recognize the legality of product picketing: Goldfinger v. Feintuch (N. Y. 1937), 276 N. Y. 281, 11 N. E. 2d 910, 116 A. L. R. 477; Fortenbury v. Superior Court 16 Cal. 2d 405, 106 Pac. 2d 411; Ohio Valley Adv. Corp. v. Union Local 207, 138 W. Va. 355, 76 S. E. 2d 113; and Galler v. Slurzberg, 27 N. J. Super. 139, 99 Atl. 2d 164.

In the last cited case (Galler v. Slurzberg) the New Jersey Court said:

“We have here a form of secondary picketing known as product picketing — picketing directed against the product itself and not against the person selling it. Peaceful picketing of the place of business of a merchant selling the product of a manufacturer who is a party to a labor dispute, for the purpose of asking the public to refrain from purchasing such product, is permissible.”

To sustain the quoted statement, thirteen cases are cited from various jurisdictions and also some textbooks and some annotations.

The majority opinion in the case at bar says that the public policy of Arkansas — as announced in International Brotherhood v. Broadmoor, 225 Ark. 260, 280 S. W. 2d 898 — applies here, and justifies the injunction against product picketing. I cannot agree with such, conclusion of the majority. International Brotherhood v. Broadmoor involved picketing against the employer at a place removed from the scene of employment; and we held that the effect of such picketing was to interfere with the normal use of the highways by other persons. Remote picketing against the employer — as in the Broadmoor case — is entirely different from product picketing, as in the ease at bar. Under the guise of public policy, I seriously doubt if a State court still has jurisdiction to enjoin against product picketing, absent, as here, any mass picketing or violence.

I am bound to try to follow the holdings of the United States Supreme Court; and under such holdings — as I understand them — I think the decree here should be reversed and the injunction dissolved.

1 See U. S. C. A. Title 29, Section 158, sub (b) (4); and see International Brotherhood v. N. L. R. B., 341 U. S. 694, 95 L. Ed. 1299.

2 The majority opinion says of Royse’s complaint: “. . . that the appellant union, acting through its members, picketed his place of business and.thereby deprived him of many of his customers and trade solely because he offered for sale products distributed by Terry Dairy; and that he had no labor dispute with the appellant union.”