Crouch v. Central Labor Council

In Banc. This case originally was assigned on the day it was argued and submitted to the late Mr. Justice McBRIDE. Owing to his sickness, which began early after the case was argued and continued intermittently until he passed on, it has not been decided. The case was submitted on stipulation and exhibits. The stipulation was as follows:

"On January 22, 1929, the parties filed a stipulation as to the facts controlling in this suit as follows:

"For the purpose of avoiding a trial to determine the facts herein, it is mutually stipulated by and between the attorneys appearing for the above parties, that if witnesses were called and examined the following facts would be established by the testimony, to wit:

"(a) Plaintiff, E.M. Crouch, at the time of bringing this suit, and for some months prior thereto, was engaged in conducting two cafes or restaurants described in the complaint and located in the city of Portland; the one on Fourth street, the other on Eleventh street.

"(b) In the conduct of the business, he required his help to work as follows: The chef and assistant cooks and his miscellaneous help, 9 hours per day, 7 day week; and his waitresses 6 hours and 45 minutes per day, 7 day week. The compensation to the chef was $175 a month and a commission and his meals; to the assistant cooks $75 a month and their meals; to the dishwashers $10 to $15 per week and their meals; to the waitresses $50 per month, their meals and a commission; meals are included in union houses.

"(c) It is stipulated that no dispute or controversy of any kind or nature existed between plaintiff and any of his employees at the time this suit was brought and that none of said employees were members of defendant's unions and plaintiff was not and is not involved in a strike.

"(d) It is stipulated that plaintiff is conducting what is generally known as non-union or open-shop restaurants; and that plaintiff never contracted with any of said defendant unions. Furthermore, after plaintiff had opened his restaurants and was conducting the same, the officers and agents of the defendant unions representing the culinary arts, approached plaintiff and requested him to contract with the unions but plaintiff at all times refused so to do. A copy of said contract is hereto attached marked Exhibit ``A'.

"(e) It is stipulated that upon plaintiff's refusal to contract with said unions, defendant unions thereupon employed two women pickets, each picket wearing upon her body a sash inscribed ``Unfair to organized labor' and bearing upon said sash the names of said local unions, and that said pickets paraded up and down on the sidewalk in front of plaintiff's said places of business for one-half day before this suit was brought.

"(f) After plaintiff had obtained a preliminary restraining order and served the same upon defendants, one woman paraded upon the sidewalk in front of plaintiff's said places of business and for a distance of approximately 25 feet to the north and south thereof, holding a copy of the ``Oregon Labor Press' in her hands and displaying the same to all passersby, and that said person is now engaged in so doing. It is being stipulated that copies of said Oregon Labor Press are attached hereto marked Exhibit ``B,' and it is further stipulated that the copy of the Oregon Labor Press as of November 30 was used by said woman and exhibited by her until the 21st day of December, and thereafter subsequent issues of the Oregon Labor Press were used.

"(g) It is stipulated that said woman carries in her pocket or under her arm other copies of the Oregon Labor Press and offers to sell the same to the public, and in some instances gives them away, and that said woman utters nothing other than ``Oregon Labor Press'.

"(h) It is stipulated that plaintiff has suffered damage from the foregoing acts in front of his restaurants through loss of patronage in his said restaurants and will continue to suffer damage through loss of patronage so long as said acts continue in front of his restaurants, and that plaintiff has no speedy or adequate remedy at law. And further, that defendants intend to and will resume and continue to keep said woman parading upon the sidewalk in front of plaintiff's said places of business, exhibiting copies of said Oregon Labor Press in the same manner as heretofore, unless perpetually enjoined by the court; and it is stipulated that if plaintiff would contract with said unions defendants would immediately cease in the acts herein complained of, and that at any time plaintiff agrees to pay or when it comes to the knowledge of the defendants that plaintiff is paying the minimum scale of wages for eight hours of labor as a day's work and six days of labor as a week's work by his employees, as paid and allowed by standard restaurants and cafeterias by contract with the unions in competition with the plaintiff, the defendants will immediately cease the publications of which the plaintiff complains in this suit."

Upon motion of attorney for plaintiff judgment was entered in his favor upon the pleadings and stipulation. The errors assigned are upon the findings based upon said stipulation and exhibits.

The first assignment is the alleged error in finding of fact (e) as follows:

"That plaintiff has suffered irreparable damage by the acts of the defendants as complained of in his complaint."

The second is based on finding of fact (g):

"That the acts of the defendants as complained of in the complaint, are unlawful."

Third:

"There is no agreed fact, exhibit or admission that defendants when or after this suit was begun contemplated or threatened to proclaim the plaintiff ``Unfair to Organized Labor.'"

Fourth:

"The court erred in paragraph 3 of the injunction by enjoining the defendants from addressing plaintiff's customers or other persons about to enter its (his) restaurants for the purpose of dissuading them from patronizing plaintiff's restaurants."

Fifth:

"The court erred in paragraph 4 of the injunction by prohibiting the defendants from exhibition of the Oregon Labor Press in or near plaintiff's restaurants containing any reference whatever to plaintiff or to his said restaurants."

Sixth:

"The court erred in paragraph 5 of the injunction by prohibiting the defendants from adopting any means whatever to divert patronage from plaintiff's business near his premises." Attorneys in this case are to be commended for stipulating the facts. The law is well settled that when the facts are stipulated the court is bound by them, and the case must be decided upon said facts and such other evidence as may be adduced. The exhibits consist of a copy of a form for an agreement which plaintiff refused to sign and a copy of the Oregon Labor Press showing the objectionable matter complained of by plaintiff. In the instant case no other evidence was adduced except said exhibits.

We need not look further than the Oregon Reports for authority that laborers may organize to improve their conditions both as to the machinery with which they work and other physical conditions as well as to increase the amount of their wages:Longshore Printing Co. v. Howell, 26 Or. 527 (38 P. 547, 28 L.R.A. 464, 46 Am. St. Rep. 640). That case is well considered. The opinion is exhaustive and cites numerous authorities for the conclusion expressed in the opinion. Among other things it is said in page 540:

"It must be understood, however, that these associations, like other voluntary societies, must depend for their membership upon the free and untrammeled choice of each individual member. No resort can be had to compulsory methods of any kind either to increase, keep up, or retain such membership. Nor is it permissible for associations of this kind to enforce the observance of their laws, rules, and regulations through violence, threats, or intimidation, or to employ any methods that would induce intimidation or deprive persons of perfect freedom of action."

The acts of defendants consist of a young lady walking to and fro in front of plaintiff's restaurant exhibiting an issue of the Oregon Labor Press on which was printed in large letters almost two inches high, very black and broad: "CROUCH EMPLOYEES WORK 7 DAY WEEK". Then in smaller letters almost an inch high: "Culinary unions are appealing to public to rebuke practices. Low wages and no day of rest marks employment policy of Crouch's places." All said letters could be easily read 50 to 75 feet distant.

If this conduct on the part of defendants was not intended to intimidate plaintiff and his employees, then there was no purpose at all in that conduct. The employees of plaintiff have the same right to contract their services for such compensation as they please as other laborers have to organize to advance their interests and welfare. The right to contract is a property right protected both by the Constitution of the United States and by the Constitution of the State of Oregon: U.S. Constitution, Preamble, Amendment XIV; Oregon Constitution, Preamble, art. I, § 20.

"Yet the term ``liberty,' as used in the constitution, is not dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. It includes the right to be free to use his faculties in all lawful ways; to live and workwhere he will; to earn his livelihood by any lawful calling; topursue any livelihood or vocation, and for that purpose to enterinto all contracts which may be proper, necessary, and essential to his carrying out these purposes to a successful conclusion." 6 R.C.L. 259-260, § 244. [Italics are the writers.]

There was no trouble existing between Crouch and his employees. Defendants, therefore, had no right to interfere with their relation. They could not possibly injure Crouch without injuring his employees because it is agreed in the stipulation that in addition to paying the wages agreed upon between plaintiff and his employees the latter received a commission on all meals served over and above a certain number. It is agreed in the stipulation that the conduct of defendants, calling attention of the public to plaintiff's relation to his employees through the lady employed for that purpose, was damaging to plaintiff.

If the acts of defendants complained of were not picketing in the technical sense, it was designed to accomplish the same purpose for which picketing is used. In substance it was the same as picketing. One of the definitions of the word "picket" is:

"To post watchers at the approaches to (a place of employment affected by a strike) in order to ascertain those who work there and persuade them, or otherwise influence them, to give up the work." Webster's Dictionary.

Bouvier's Law Dictionary, Baldwin's Century Edition, defines the word "picketing" as follows:

"Picketing by members of a trade union or strikers, consists in posting members at all the approaches to the works struck against for the purpose of reporting the workman going to or coming from the works; and to use such influence as may be in their power to prevent the workman from accepting work there."

"``Picketing', it has been said, is a term borrowed from the nomenclature of warfare; and its commonly accepted meaning as used in relation to industrial disputes is the stationing of men at or near the plant or shop of the party with whom workmen have a dispute, to induce other workmen to withdraw from or not to enter his employ or to induce his customers or the general public to abstain from business relations with him." 32 C.J., § 261.

From these definitions it seems that picketing has reference particularly to disputes between an employer and his striking employees. Such picketing is permissible under the law because the employees have a right to inform the public regarding their side of the dispute: Duplex Printing Press Co. v. Deering,254 U.S. 443 (41 S. Ct. 172, 65 L. Ed. 349, 16 A.L.R. 196); Greenfieldv. Central Labor Council, 104 Or. 236 (192 P. 783); AmericanSteel Foundries v. Tri-City C.T. Council, 257 U.S. 184 (66 L. Ed. 189, 42 S. Ct. 72, 27 A.L.R. 360); Truax v. Corrigan,257 U.S. 312 (66 L. Ed. 255, 42 S. Ct. 124, 27 A.L.R. 375).

There is no authority cited in the instant case which authorizes or supports the right of laborers or other persons to directly interfere between an employer and his employees when there is no controversy between them. Those interfering with the relations of an employer and his employees are intermeddlers: Heitkemper v. Central LaborCouncil, 99 Or. 1, 29 (192 P. 765), and authorities therein cited. The two dissenting opinions in the last case cited are based on the ground that there was a controversy between the plaintiffs and defendants. The reasonings in both of the dissenting opinions are in harmony with this opinion. We could not sustain defendants' contention in the instant case without overruling both the Heitkemper case and the Greenfield case.

It is argued by defendants that the court erred in finding that the damages to plaintiff are irreparable. The stipulations agree that the plaintiff has been damaged by the conduct of defendants. There is no standard by which the amount of that damage can be measured with reasonable accuracy. Irreparable damage does not have reference to the amount of damage caused but rather to the difficulty, not to say impossibility, of measuring the amount of damages inflicted: Winslow v. Fleischner et al.,110 Or. 554, 563 (223 P. 922), and authorities there cited.

The decree is too broad in this particular: Paragraph four reads as follows:

"(4) From exhibiting to the public in general and to the intending patrons of plaintiff in general in front of plaintiff's said places of business, a copy of the Oregon Labor Press containing any reference whatever to plaintiff or his saidplaces of business."

It would violate the constitutional provisions granting to said Oregon Labor Press, as well as to all other publications, the right of the free expression of its opinions. If the Oregon Labor Press should publish libelous or slanderous matter concerning plaintiff, he has an action at law against said Labor Press, but the court should not go so far in its prohibitory injunction as to prevent the said Labor Press from publishing freely its own views. It is responsible to plaintiff for the abuse of its high privilege.

The display of articles in the Labor Press in large print in the immediate vicinity of plaintiff's place of business, such as was exhibited in the acts complained of in the instant case, should be prohibited. It is not the publication of the article but the display of that article in front of plaintiff's place of business in the manner complained of that is unlawful. Such a display is equivalent to carrying a banner or wearing a sash with objectionable reference to plaintiff. The decree should be limited to the acts complained of in the complaint and agreed to in the stipulation.

"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right": Constitution of Oregon, art. I, § 8.

As long as the Oregon Labor Press confines or limits its publication referring to plaintiff to the ordinary printing of its paper and makes no special display of any article concerning plaintiff and his place of business at or near his place of business it has a right to publish and sell its papers containing references to plaintiff and his business. The paper has the right to publish articles about plaintiff, and as long as it publishes such articles as other articles are published in said paper it will be within its rights. It has the right also to sell its papers on the streets without regard to plaintiff's place of business. It will be responsible to plaintiff for any abuse of that right.

The courts are as much subject to the Constitution of the state as is the legislature of the state. The courts should not make an order in violation of said article I, section 8, of the Constitution, though that section itself refers only to a law.

We have carefully examined the other authorities cited and relied upon by both parties but think that it would be of no benefit to either the parties or the public to analyze and discuss them in the opinion. The decree appealed from will be modified as hereinabove indicated and affirmed as to all other provisions thereof.

BEAN, J., dissenting.

KELLY, J., did not participate in this opinion.