Harper v. Brennan

This is an action by plaintiffs Harper, Mulligan and Kettler, doing business as the Harper-Mulligan Funeral Home, and Michigan Funeral Directors Embalmers Association, to enjoin defendants from boycotting, picketing and interfering with plaintiffs' interests, and also to have a certain contract declared void.

The salient facts are not in dispute. Plaintiffs Harper, Mulligan and Kettler are licensed funeral directors and embalmers in Highland Park, Michigan. They have no employees. They do their own work as funeral directors and embalmers. The Michigan Funeral Directors Embalmers Association is a Michigan nonprofit corporation composed of funeral directors and embalmers. The defendant "Teamsters Union" is a labor union affiliated with the American Federation of Labor. Defendants Brennan and Hoffa are officers of the union, and defendants Cassily and Coleman are field representatives thereof.

In 1940 this union entered what may be termed the "funeral field," when certain manufacturers of caskets entered into contracts with the union, and their employees became affiliated therewith. In 1941 certain wholesale and retail florists became affiliated with the union, and later certain service companies, service embalmers and funeral directors also became affiliated with the union. Towards the close of the year 1942 all of the casket companies and their employees, except one, within the jurisdiction of this union; all wholesale florists except one; practically all of the service companies providing hearses and other equipment for funerals; 19 independent service embalmers; and certain retail florists and funeral directors had signed contracts and thereby became affiliated with the union. Approximately 150 funeral homes, their directors or owners, were members of the union in January, 1944.

The contract between plaintiffs and the union provided:

"Article 14

"The employer shall not request or instruct any employee to go through a picket line of a striking union. The employer further agrees not to handle any merchandise of a union or nonunion company involved in a labor dispute. * * *

"Article 16

"It is further agreed and understood between both parties hereto, that this agreement shall be binding upon both parties until the ____ day of ____ A.D., 194_, and in the event either party shall wish to terminate this contract or any clause therein, notice shall be given in writing to the other party not less than 30 days prior to the expiration date of the contract. Termination of any specified clause shall not cancel the remainder of the agreement unless so stated. If no such notice is given, contract shall automatically continue for one year."

At the end of one year plaintiffs ceased paying union dues, and after demand for the same was ignored their funeral home was picketed and the companies with whom plaintiffs did business, including the casket companies, undertaker service companies and the florist companies, were instructed that there was a labor dispute between plaintiff funeral home and the union and were requested to recognize the picket line according to their contracts. These instructions were obeyed and plaintiffs then filed the present bill of complaint for an injunction and other relief. The trial court granted a temporary injunction, and, after hearing the evidence, filed an opinion in which it found that plaintiffs signed a contract with the union November 4, 1942; that plaintiffs fulfilled the terms of the contract during the first year of its existence; that plaintiffs made no complaint concerning any of the provisions contained in the contract prior to January, 1944; that there was no evidence of any violence, coercion, fraud or duress exercised by the union during the continuation of the contract until the middle of January, 1944; that plaintiffs paid their dues during the entire year and until November 1, 1943, and that the union did not attempt to prevent anyone from doing business with plaintiffs except concerns which were under contract with the union and whose employees were members thereof; and that the union had authority to negotiate and close contracts with persons engaged in the "funeral field" under its charter from the American Federation of Labor.

The trial court held that the contract was not null and void; that a labor union may use peaceful means to accomplish a lawful purpose, i.e., in procuring the cooperation of its members and of the concerns with which it had contracts to refuse to supply their services or products to plaintiffs during their labor trouble; that the facts in this case bring the actions of the union within the term of "primary boycott," which is a lawful undertaking; and that the acts of the union do not constitute a violation of the Michigan statutes relating to restraint of trade and monopoly.

Plaintiffs appeal and urge that a labor dispute, to be lawful, must involve a bona fide controversy over wages, hours, health, safety, collective bargaining or other conditions of employment for the protection of labor from abuses; that in order to justify picketing or boycotting there must be a labor dispute and that in the case at bar there is no labor dispute; that a labor union is subject to State antitrust law and that the provisions in the contracts between the union and the various funeral supply companies are an unlawful combination of union and nonlabor groups in violation of the monopoly statutes of Michigan.

The paramount question in this case relates to the manner or method, if any, of enjoining peaceful picketing. We have in mind that where Federal questions are involved we are bound to follow the prevailing opinions of the United States supreme court. (SeePeople v. Lechner, 307 Mich. 358.)

We recognize that under the constitutional guaranty of freedom of speech^* a labor union may publicize the facts of a labor dispute by the process of peaceful picketing (see Book Tower Garage, Inc., v. Local No.415, International Union, U.A.W.A. (C.I.O.), 295 Mich. 580; andPeople v. Bashaw, 295 Mich. 503), nor is it necessary that there be a dispute between an employer and his employees in order to entitle a union to picket peacefully as an exercise of such right of free speech.

In American Federation of Labor v. Swing, 312 U.S. 321 (61 Sup. Ct. 568, 85 L.Ed. 855), there was no labor dispute between Swing and his employees. Defendant union had peacefully picketed plaintiff's beauty parlor in order to induce him to require his employees to become union members. The court there said:

"Such a ban of free communication is inconsistent with the guarantee of freedom of speech. * * * The scope of the Fourteenth Amendment is not confined by the notion of a particular State regarding the wise limits of an injunction in an industrial dispute, whether those limits be defined by statute or by the judicial organ of the State. A State cannot exclude workingmen from peacefully exercising the right of free communication by drawing the circle of economic competition between employers and workers so small as to contain only an employer and those directly employed by him. The inter-dependence of economic interest of all engaged in the same industry has become a commonplace. * * * The right of free communication cannot therefore be mutilated by denying it to workers in a dispute with an employer, even though they are not in his employ. Communication by such employees of the facts of a dispute, deemed by them to be relevant to their interests, can no more be barred because of concern for the economic interests against which they are seeking to enlist public opinion than could the utterance protected in Thornhill's Case (Thornhill v. Alabama,310 U.S. 88 [60 Sup. Ct. 736, 84 L.Ed. 1093])."

In Milk Wagon Drivers' Union of Chicago Local 753 v.Meadowmoor Dairies, Inc., 312 U.S. 287 (61 Sup. Ct. 552,85 L.Ed. 836, 132 A.L.R. 1200), the court held that peaceful secondary picketing — that is, picketing of an employer's industrial customers, — is an exercise of the right of free speech. (See, also, Bakery Pastry Drivers Helpers Local 802of the International Brotherhood of Teamsters v. Wohl,315 U.S. 769 [62 Sup. Ct. 816, 86 L.Ed. 1178]). However, the above doctrine enunciated by the supreme court of the United States is not without its exceptions. In the Meadowmoor Case, supra, it was also held that a State can authorize its courts to enjoin acts of picketing when they are enmeshed with contemporaneously violent conduct.

In the Wohl Case, supra, p. 775, it is said: "A State is not required to tolerate in all places and all circumstances even peaceful picketing by an individual."

In Carpenters' Joiners' Union of America, Local No. 213, v.Ritter's Cafe, 315 U.S. 722 (62 Sup. Ct. 807, 86 L.Ed. 1143), it was held that the constitutional guaranty of free speech did not forbid injunction against peaceful secondary picketing when carried on against persons or establishments having no industrial connection with the original labor dispute. The court there said:

"In the circumstances of the case before us, Texas has declared that its general welfare would not be served if, in a controversy between a contractor and building workers' unions, the unions were permitted to bring to bear the full weight of familiar weapons of industrial combat against a restaurant business, which, as a business, has no nexus with the building dispute but which happens to be owned by a person who contracts with the builder. The precise question is, therefore, whether the Fourteenth Amendment prohibits Texas from drawing this line in confining the area of unrestricted industrial warfare. * * *

"It is true that by peaceful picketing workingmen communicate their grievances. As a means of communicating the facts of a labor dispute peaceful picketing may be a phase of the constitutional right of free utterance. But the recognition of peaceful picketing as an exercise of the right of free speech does not imply that the States must be without power to confine the sphere of communication to that directly related to the dispute. Restriction of picketing to the area of the industry within which a labor dispute arises leaves open to the disputants other traditional modes of communication. To deny to the States the power to draw this line is to write into the Constitution the notion that every instance of peaceful picketing — anywhere and under any circumstances — is necessarily a phase of the controversy which provoked the picketing. Such a view of the due process clause would compel the States to allow the disputants in a particular industrial episode to conscript neutrals having no relation to either the dispute or the industry in which it arose."

In Lafayette Dramatic Productions, Inc., v. Ferentz,305 Mich. 193 (145 A.L.R. 1158), defendant union threatened to prevent the opening and operation of a theater unless plaintiff theater would sign a contract for the employment of musicians which it did not need or desire to employ and could not afford. We there said (pp. 207, 213):

"It is plain that defendants' demand that plaintiff employ musicians had no reasonable connection with any dispute or controversy relating to wages, working conditions, hours of work, health, safety, the right of collective bargaining or the protection of labor from abuses. * * *

"In the present case defendant musicians' union induced defendant stagehands' union to join in a combination to force plaintiff either to employ musicians or to discontinue its theater. We are satisfied that defendants' purpose was to accomplish an unlawful labor objective."

In the above case we quoted with approval from Opera on Tour,Inc., v. Weber, 285 N.Y. 348 (34 N.E. [2d] 349, 136 A.L.R. 267); certiorari denied, 314 U.S. 716 (62 Sup. Ct. 477,86 L.Ed. 570).

In Silkworth v. Local No. 575 of the American Federation ofLabor, 309 Mich. 746, defendant union insisted that plaintiff place all their drivers in the union by paying their initiation fees. Upon refusal of plaintiff company to accede to this demand defendant established a picket line. Drivers of other companies refused to cross the picket line in order to deliver merchandise to plaintiff company. We there said (p. 758):

"Therefore, in the present case we must determine whether or not defendants' picketing of plaintiffs' storage plant was for the purpose of obtaining a lawful labor objective. The motive for the picketing, that is, the result sought to be accomplished, was a question of fact. The testimony is convincing that defendants' real objective was to compel plaintiffs to put their drivers in defendant union by paying their initiation fees, regardless of whether or not the drivers wished to join. This was not a lawful labor objective. Defendants could not use the lawful means of peaceful picketing to accomplish such unlawful purpose."

From the above authorities it is evident that the constitutional guaranty of free speech does not forbid injunction against peaceful secondary picketing carried on against persons or establishments under all circumstances. Peaceful picketing is not immune from regulations that will protect the interests of the public.

It is urged by plaintiffs that the provisions in the contract between the union and the various funeral supply companies are an unlawful combination of union and nonlabor groups in violation of the monopoly statutes of Michigan.

3 Comp. Laws 1929, § 16668 (Stat. Ann. § 28.62), provides:

"All combinations of persons, copartnerships, or corporations made and entered into for the purpose and with the intent of establishing and maintaining or of attempting to establish and maintain a monopoly of any trade, pursuit, avocation, profession or business, are hereby declared to be against public policy and illegal and void."

Defendants urge that the above statute does not apply to the facts in the case at bar as its purpose is not to control prices or establish and maintain a monopoly of any trade.

In declaring a public policy the legislature made no distinction between combination of workers and combination of employers. As the statute was designed for the protection of the public, we hold that the statute may apply to labor unions as well as to other organizations.

There can be no question that the creation of a monopoly is not a lawful labor objective. Of importance is the question of whether the activities of the union in organizing the various units of the funeral industry created such a monopoly as is forbidden by the statutes of Michigan. In People, ex rel.Attorney General, v. Detroit Asphalt Paving Co., 244 Mich. 119, we said:

"A monopoly exists where all or so nearly all of an article of trade or commerce within a community or district is brought within the hands of one man or set of men, as to practically bring the handling or production of the commodity or thing within such single control, to the exclusion of competition or free traffic therein. Cooke on Combinations, Monopolies Labor Unions (2d Ed.), § 116, and cases there cited."

In Hinton v. Columbia River Packers Ass'n (C.C.A.),131 F.2d 88, 90 per cent. of the fishermen operating along the coast of Oregon were members of defendant union. They controlled the production of fish to such an extent that appellee, engaged in purchasing, processing and distributing fish, could not operate its business unless it entered into a contract with the union, promising and agreeing to purchase no fish from anyone except a member of the union. The district court declared the contract which the union was demanding of plaintiff, as a condition of selling it any fish, to be illegal. Defendants were enjoined from interfering with plaintiffs' property or business. While the finding of illegality in the contract was based on the Sherman anti-trust act, 15 USCA, § 1 et seq., which act is not under consideration in the case at bar, yet the underlying principles in each case are similar.

The district court said in the same case (see 34 F. Supp. 970) :

"The exclusive buying clause in the union's contract, which forbids plaintiff from buying fish from others than members of the defendant union, and the clauses in the union's constitution and by-laws which forbid union members from selling to plaintiff and to others not contracting with the union on the exclusive terms demanded, are, in my view, in restraint of trade and void. * * *

"Surely reasonable men will agree that the public's interest in an important item of food supply should not be put in such jeopardy. If an exclusive and monopolistic arrangement, as here insisted upon, can be legally made as to fish, it can be made as to milk, as to meat, and as to other necessities of life."

In Hunt v. Riverside Co-operative Club, 140 Mich. 538 (112 Am. St. Rep. 420), we said:

"In determining the legality of defendants' undertaking it would be confusing, rather than helpful, to examine and determine the legality of each specific agreement. If it may be said that many of these agreements, considered by themselves, are legal, it may also be said (and this will be made to appear hereafter) that these agreements are merely steps to effect the accomplishment of an illegal object, and for that reason they are also illegal. SeePacific Factor Co. v. Adler, 90 Cal. 110 (27 P. 36, 25 Am. St. Rep. 102). The legality of defendants' undertaking is to be determined by ascertaining their central and controlling object."

In the case at bar the union seeks to enforce a contract and the payment of dues, as defined in that contract. There is no dispute about wages, hours, health, safety, the right of collective bargaining or any other condition of employment. By its contract the union has organized all units of the "funeral field." Any claimed infraction of the contract on the part of the funeral directors, or other units under contract, could result in a paralysis of the funeral industry. We note that the district organized is composed of practically one-third of the population of Michigan, which adds importance to the seriousness of the question involved. Such a contingency, made possible by the clauses in the contracts, is not in harmony with the public policy of this State. The clauses in the contract contain the power to create a monopoly and are void because of that purpose. The union may not establish a picket line to enforce void provisions in a contract. The constitutional right of free speech does not preclude the enforcement of the State's monopoly laws in cases where there is no labor dispute nor any interdependence of economic interest between disputants engaged in the same industry.

There is no attempt in this opinion to interfere with the right of the union to enforce other elements of the contract involved in this case, or with the right of labor to make known its side of an industrial controversy, as defined in American Federationof Labor v. Swing, supra, and Cafeteria Employees Union,Local 302, v. Angelos, 320 U.S. 293 (64 Sup. Ct. 126,88 L.Ed. 58), but in our opinion the trial court was in error in holding that the clauses in the contract above referred to did not have the power to create a monopoly. We conclude that the contract did create a monopoly in all the essentials of the funeral field.

The decree of the trial court is reversed, and a decree will be entered cancelling and annulling the mentioned clauses in the contract. The injunction heretofore granted will be continued for the purpose of enjoining the union from picketing plaintiffs' establishment for the purpose of enforcing that part of the contract held void by this opinion.

Plaintiffs Harper, Mulligan and Kettler may recover costs.

WIEST and BOYLES, JJ., concurred with SHARPE, J.

^* See U.S. Const. Ams. 1, 14; Mich. Const. 1908, art. 2, § 4. — REPORTER.