S & W Fine Foods, Inc. v. Retail Delivery Drivers & Salesmen's Union, Local No. 353

¹ Reported in 118 P.2d 962. Plaintiff, S and W Fine Foods, Inc., is a California corporation, doing business in the state of Washington as a wholesale dealer in dried fruits, coffee, and canned goods. Plaintiff maintains an office and warehouse in the city of Seattle, employing in connection with that office nine salesmen, four warehousemen, a window decorator, and an office staff. The salesmen cover their territory by automobile, taking orders which are later filled from the warehouse.

The warehousemen are members of Warehousemen's Local Union No. 117, that union having no dispute with the plaintiff. None of plaintiff's salesmen was a member of Retail Delivery Drivers and Salesmen's Union, Local No. 353 (hereinafter referred to as the union), which desired to unionize plaintiff's establishment. The union sought a contract with plaintiff, whereby plaintiff would agree to hire only union men. Plaintiff refused to sign such a contract, and its nine salesmen unanimously refused to join the union.

Thereafter, during the month of April, 1940, plaintiff's warehouse was picketed by the union, the pickets carrying signs stating that plaintiff was unfair to organized labor. The picketing was at all times peaceful, the record disclosing no evidence whatsoever of violence or threats of violence. Upon the establishment of the picket line, plaintiff's union warehousemen ceased work, and union truck drivers refused to haul plaintiff's merchandise, the result of the picketing being that plaintiff's business was, to a great extent, stopped.

May 1, 1940, representatives of the union met with plaintiff's salesmen, and under the direction of Federal officials, plaintiff's salesmen voted by secret ballot upon the matter of joining the union, the salesmen again unanimously voting in the negative. From the evidence it appears that the union, by phone calls and letters, informed certain of plaintiff's customers that the union had declared plaintiff unfair, and requested that plaintiff's customers cooperate in inducing plaintiff to unionize its establishment. May 23, 1940, plaintiff filed its complaint in this action, naming as defendants the union above referred to, together with several other labor unions, the Central Labor Council of Seattle, and many individuals, members of one or other of defendant unions.

Thereafter the nine salesmen in plaintiff's employ filed a complaint in intervention, plaintiff and the interveners both, after alleging facts above epitomized, asking that the defendants be enjoined and restrained from picketing plaintiff's business, or in any manner interfering with the selling and distribution of plaintiff's products, and that defendants be enjoined from interfering in any way with plaintiff's customers. Plaintiff demanded judgment against defendants for damages in the sum of twenty-five thousand dollars, and for such further sums as the evidence on the trial might show plaintiff was entitled to by way of damages.

The action came on regularly for trial before the court, which, June 20, 1940, granted a temporary injunction and restraining order against defendants, enjoining the picketing of plaintiff's establishment, and also enjoining any boycott against plaintiff's business. Thereafter, by stipulation of the parties, it was agreed that the cause be submitted to the court for final judgment on the merits, on the testimony theretofore taken, and the briefs and argument submitted, plaintiff agreeing to withdraw its demand for damages.

June 26, 1940, final decree in the action was entered in the form of a permanent injunction against defendants, the court finding that no labor dispute existed between the plaintiff and the defendant unions, and that the defendants should be permanently enjoined from picketing plaintiff's place of business or from interfering in any way with plaintiff's affairs. From this decree of permanent injunction, defendants have appealed.

Appellants assign error upon the holding of the trial court that the evidence did not show the existence of a labor dispute between respondent and appellant union. Error is also assigned upon the decree of the court permanently enjoining picketing of respondent's place of business, and that portion of the decree enjoining any boycott against respondent's business, and restraining appellants from publishing, either by picketing or otherwise, any declarations that respondent had been declared unfair to union labor. Appellants also assign error upon the refusal of the trial court to hold that appellants' right to picket respondent's place of business is protected by the constitution of the United States.

The interveners above referred to have not appeared before this court, the original plaintiff appearing as respondent herein.

[1] The trial court, in holding that no labor dispute existed between respondent and appellants, followed the opinions of this court in the cases of Safeway Stores v. Retail Clerks' Union,184 Wash. 322, 51 P.2d 372; Adams v. Building ServiceEmployees etc. Union, 197 Wash. 242, 84 P.2d 1021; andFornili v. Auto Mechanics Union, 200 Wash. 283, 93 P.2d 422. The opinion in the later case of Shively v. Garage EmployeesLocal Union, 6 Wash. 2d 560, 108 P.2d 354, is to the same effect.

In the case at bar, none of respondent's salesmen was a member of appellant union. It appears from the evidence that some of the salesmen were at the time of the trial of the action, or had previously been, members of other unions, and appellants argue that for this reason a labor dispute was presented. The fact that some of the salesmen had been or were members of other unions, no one of such unions being engaged in any controversy with respondent, did not cause the facts before the court to present a labor dispute, within our decisions above cited.

Appellants also argue that, because prior to April 1, 1940, respondent's coffee was sold by union men in the employ of the McGregor Company, a labor dispute was presented. On or about April 1, 1940, respondent ceased to dispose of its coffee through the McGregor Company, and undertook to sell its own coffee. The fact that this product had been sold at some prior time through an agent employing union men, had no bearing upon the situation presented to the court on the trial of the case at bar.

In the case of Thornhill v. Alabama, 310 U.S. 88,84 L. Ed. 1093, 60 S. Ct. 736, the supreme court of the United States held that a state statute prohibiting picketing was contrary to the constitutional right of freedom of speech guaranteed by the first and fourteenth amendments to the Federal constitution. In the case of Carlson v. California,310 U.S. 106, 84 L. Ed. 1104, 60 S. Ct. 746, the supreme court held void a municipal ordinance prohibiting picketing as also violative of the fourteenth amendment. In the case of Milk WagonDrivers Union v. Meadowmoor Dairies, 312 U.S. 287, 85 L. Ed. 836,61 S. Ct. 552, it was held that a state court could enjoin picketing when it appeared that the picketing was enmeshed with, and set in a background of, violence against the employer.

The decisions of the supreme court of the United States above referred to embody the principle that the right to peacefully picket is protected under the fourteenth amendment to the Federal constitution, in cases where the picketing is no part of any concerted plan or campaign involving violence.

[2] In the case at bar, the principal question presented is whether the right to peacefully picket the plant of an employer is protected by the first and fourteenth amendments to the Federal constitution, where there is no employer-employee relationship existing between the employer picketed and the members of the union involved in the controversy.

[3] The supreme court of the United States, in the case ofAmerican Federation of Labor v. Swing, 312 U.S. 321,85 L. Ed. 855, 61 S. Ct. 568, held that the union was within its rights in picketing Swing's beauty shop, although none of the employees of the establishment was a member of the picketing union. The court directly held that the constitutional guaranty of freedom of discussion protected the right of the union to peacefully picket, even though no union member stood in an employer-employee relationship with the employer.

The case last cited is controlling here. It is true that in the case at bar the picketing of respondent's establishment resulted in the refusal of respondent's warehousemen to cross the picket line, and in the refusal of union teamsters to haul respondent's merchandise. These factors were not present in the Swing case, but the fact that they exist here does not render the decision of the supreme court of the United States any less applicable to the situation here presented.

The record does not indicate that any of the acts of appellants suggested the employment of violence against respondent, its employees, or any of its customers. Respondent argues that appellants' right to picket is not protected under the constitution of the United States, because the picketing tended to introduce into the dispute the suggestion that respondent's employees and customers had reason to fear that they would become the objects of violence on the part of members or agents of appellant union. It is also argued that the picketing was accompanied by and associated with an illegal secondary boycott indicated by letters and telephone calls to respondent's customers.

Disposing of the latter argument first, the trial court was of the opinion that the evidence was insufficient to establish the existence of a secondary boycott, and while some operations of doubtful legality were conducted by appellants, which suggested the possible inauguration of a secondary boycott, we agree with the trial court in its ruling that the evidence failed to show any such secondary boycott.

The record indicates that the picketing of respondent's establishment was peaceable, and was accompanied by no actual or threatened violence.

In this connection, the case of Wohl v. Bakery PastryDrivers etc., 259 A.D. 868, 19 N.Y.S.2d 811, should be considered. The supreme court, appellate division, awarded an injunction at the suit of several peddlers of bakery products, enjoining the defendant union from picketing. The court of appeals, without opinion, affirmed the judgment. Wohl v.Bakery Pastry Drivers etc., 284 N.Y. 788, 31 N.E.2d 765. On certiorari to the supreme court of the United States, the judgment of the state court was reversed upon authority of the case of American Federation of Labor v. Swing, supra. Bakery Pastry Drivers etc. v. Wohl, 313 U.S. 548, 85 L. Ed. 1513,61 S. Ct. 1108.

The supreme court of the United States has clearly laid down the rule governing such picketing as was maintained by appellants, and under the cases cited, with particular reference to the Swing case, we are constrained to hold that the trial court erred in permanently enjoining appellants from continuing the picketing in a peaceable and orderly manner.

The decree appealed from is reversed.

MAIN, BLAKE, SIMPSON, and DRIVER, JJ., concur.

STEINERT, J., dissents.