Opinion
No. 42256.
July 9, 1951. Motion for Rehearing or to Transfer to Banc Overruled, September 10, 1951.
After plaintiff's employees voted against defendants' union as their bargaining agent in an election conducted by the National Labor Relations Board, picketing to compel such bargaining agent was for an unlawful purpose and was properly enjoined by the trial court. The jurisdiction of the Board had ended, and the circuit court had jurisdiction to issue the injunction.
1. MASTER AND SERVANT: Injunctions: Illegal Picketing: Jurisdiction of Circuit Court. Where defendants are engaged in picketing for an unlawful purpose the National Labor Relations Board does not have exclusive jurisdiction, but the state court has jurisdiction to issue an injunction.
2. MASTER AND SERVANT: Injunctions: Constitutional Law: Illegal Picketing: Freedom of Speech not Infringed. The National Labor Relations Board had conducted an election in which the employees of plaintiff voted against defendants' union as their bargaining agent. Picketing to compel such bargaining agent was for an unlawful purpose, and an injunction against such picketing did not violate defendants' constitutional rights of free speech.
3. MASTER AND SERVANT: Jurisdiction of National Labor Relations Board Terminated. After the National Labor Relations Board held an election and announced the result, its jurisdiction was ended.
Appeal from Jackson Circuit Court; Hon. Joe W. McQueen, Judge.
AFFIRMED.
Clif. Langsdale and John J. Manning for appellants.
(1) The National Labor Relations Board has exclusive jurisdiction to correct and enjoin the alleged misconduct of the defendants. Section 10(a), Title I of the Act provides: "The Board is empowered as hereinafter provided to prevent any person from engaging in any unfair labor practice (listed in Section 8) affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law or otherwise." Amalgamated Assn. of Street Ry. Employees v. Dixie Motor Coach Corp., 170 F.2d 902; Algoma Plywood Veneer Co. v. Wisconsin Employment Relations Board, 69 S.Ct. 584, 336 U.S. 301; In re De Silva, 23 LRRM 2085, 199 P.2d 6; International Longshoremen's and Warehousemen's Union, Local 6 v. Sunset Line Twine Co., 21 LRRM 2635; 35 Virginia Law Review, No. 1 (1949); Gerry v. Superior Court, 194 P.2d 689, 22 LRRM 2279. (2) The conduct of the defendants as alleged in said petition constitutes an unfair labor practice as defined by the Labor-Management Relations Act of 1947 of which the National Labor Relations Board has exclusive jurisdiction for the prohibition and abatement thereof. Subsec. 8(b) (1) (A) and (2) of the Labor-Management Relations Act of 1947; Simons v. Retail Clerks' Union, 21 LRRM 2685, 14 Labor Cases, para. 64,465; In re De Silva, 23 LRRM 2085, 199 P.2d 6; United Mine Workers and Jones Laughlin Steel Corp., 83 NLRB No. 135, 24 LRRM 1153; Amalgamated Meat Cutters Union and Great Atlantic Pacific Tea Co., 81 NLRB No. 164, 23 LRRM 1464; National Maritime Union and the Texas Co., 78 NLRB No. 137, 22 LRRM 1289. (3) The injunction issued herein is an abridgement of the rights of the defendants to freedom of speech, freedom of press, and freedom of assembly as preserved to them by the First and Fourteenth Amendments to the Constitution of the United States, and by Article I of the Constitution of Missouri. Carlson v. California, 310 U.S. 106, 60 S.Ct. 746; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736; A.F. of L. v. Swing, 312 U.S. 321, 61 S.Ct. 568; Bakery Drivers Local v. Wohl, 315 U.S. 769, 62 S.Ct. 816; Ex parte Hunn, 207 S.W.2d 468; Caldwell v. Anderson, 212 S.W.2d 784.
Harry L. Browne, Byron Spencer and Joseph J. Kelly, Jr., for respondent.
(1) Picketing by a labor organization to compel the commission by another of an unlawful act is picketing for an unlawful purpose, and such picketing may be enjoined by a state court. Fred Wolferman, Inc., v. Root, 204 S.W.2d 733, certiorari denied 333 U.S. 837, 68 S.Ct. 608; Empire Storage Ice Co. v. Giboney, 210 S.W.2d 55, affirmed 336 U.S. 490, 69 S.Ct. 684; International Brotherhood of Teamsters v. Hanke, 339 U.S. 470, 70 S.Ct. 773; Building Service Employees International Union, Local 262, v. Gazzam, 339 U.S. 532, 70 S.Ct. 784; Hughes v. Superior Court of Calif., etc., 339 U.S. 460, 70 S.Ct. 718; State ex rel. Allai v. Thatch, 234 S.W.2d 1. (2) Picketing for the purpose of coercing an employer to recognize a labor organization after the employees had rejected the labor organization as their bargaining representative and thereby to compel the employer to commit an unlawful act is for an unlawful purpose and is enjoinable. Labor Relations Management Act, 29 U.S.C.A., Sec. 141 (Sec. 7, and Sec. 8(a) (1); Building Service Employees International Union, Local 262, v. Gazzam, 339 U.S. 532, 70 S.Ct. 784; Fred Wolferman, Inc., v. Root, 204 S.W.2d 733, certiorari denied 333 U.S. 837, 68 S.Ct. 608; Empire Storage and Ice Co. v. Giboney, 210 S.W.2d 55, affirmed 336 U.S. 490, 69 S.Ct. 684; Dallas General Drivers v. Oak Cliff Baking Co., 203 S.W.2d 586; Meat Cutters v. Green, 200 P.2d 924; Simons v. Retail Clerks Union, 21 LRRM 2685; Pacific Navigation Co. v. Masters Union, 207 P.2d 221; Haber Fink, Inc., v. Jones, 26 LRRM 2339; Roth v. Local Union No. 1460, 24 N.E.2d 280; National Labor Relations Board v. Jones Foundry Machine Company, 123 F.2d 552; National Labor Relations Board v. Virginia Elec. Power Co., 314 U.S. 469, 477, 62 S.Ct. 344. (3) The state court has jurisdiction of the subject matter herein. The Labor Management Relations Act, 1947, did not purport to control or govern all activities of labor organizations nor did it preempt the jurisdiction of the state court in all instances. State ex rel. Allai v. Thatch, 234 S.W.2d 1; Allen-Bradley, etc., v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820; Algoma Plywood Co. v. Wisconsin Employment Relations Board, 336 U.S. 301, 69 S.Ct. 584; International Union, UAW-AFL, v. Wisconsin Employment Relations Board, 336 U.S. 245, 69 S.Ct. 516; Matter of National Maritime Union, 78 NLRB #137, 22 LRRM 1289, 1299; Matter of Boston Machine Works, 89 NLRB #17, 25 LRRM 1508, 1509. (4) Picketing for the purpose of coercing an employer to recognize a union after the employees have rejected the union as their bargaining representative and thereby to compel the employer to commit an unlawful act is for an unlawful purpose and is a violation of state law, but it is not an unfair labor practice as defined in section 8(b) of the Labor Management Relations Act, 1947. Matter of National Maritime Union, 78 NLRB #137, 22 LRRM 1289, Enforced 175 F.2d 686; Matter of Perry Norvell Co., 80 NLRB #47, 23 LRRM 1061; Matter of International Typographical Union, 86 NLRB #115, 25 LRRM 1002; Matter of Miami Copper Co., 92 NLRB #72, 27 LRRM 1081; Matter of Chicago Typographical Union, 86 NLRB #116, 25 LRRM 1010; Matter of Meat Cutters Union, 81 NLRB #164, 23 LRRM 1464; CCH, Para. 2260, p. 2262; Matter of Brotherhood of Teamsters and Howland Dry Goods Co., 85 NLRB #181, 24 LRRM 1513, 1515. (5) The National Labor Relations Board does not have exclusive jurisdiction over an offense committed by a union where the offense is also a violation of state law. Where the picketing by a labor organization is conducted for an unlawful purpose and is a violation of state law, it is enjoinable by state courts even though it may also be a violation of the Labor Management Relations Act, 1947, for that statute does not preempt the jurisdiction of the state courts in all instances. Fred Wolferman, Inc. v. Root, 204 S.W.2d 733, certiorari denied 333 U.S. 837, 68 S.Ct. 608; State ex rel. Allai v. Thatch, 234 S.W.2d 1; International Brotherhood of Teamsters v. Hanke, 339 U.S. 470, 70 S.Ct. 773; Building Service Employees International Union, Local 262, v. Gazzam, 339 U.S. 532, 70 S.Ct. 784; Hughes v. Superior Court of Calif., etc., 339 U.S. 460, 70 S.Ct. 718; Fashion Craft, Inc. v. Halpern, 48 N.E.2d 1; Isolantite, Inc., v. United Electrical, Radio Machine Workers, 29 A.2d 183; In re Blaney, 184 P.2d 892; Safeway Stores v. Clerks Association, 26 LRRM 2015; Matter of Denver Building Trades Council, 90 NLRB #224, 26 LRRM 1382; Abrams v. Hart Cotton Mills, 85 F. Supp. 644; John Hancock Mutual Life Ins. Co. v. Office Workers, 26 LRRM 2616; Phillips and Ostroff v. United Brotherhood of Carpenters, 66 A.2d 227; Wilbank v. Chester Hotel, 60 A.2d 21; Southern Bus Lines v. Amalgamated Association, etc., 38 So.2d 765. (6) Restraint is not abridgment of free speech. Where the purpose of the picketing is unlawful, the restraint thereof is not an abridgment of the right of free speech, free press, or free assembly as guaranteed by the state and federal constitutions. Empire Storage Ice Co. v. Giboney, 210 S.W.2d 55, affirmed 336 U.S. 490, 69 S.Ct. 684; Fred Wolferman, Inc., v. Root, 204 S.W.2d 733, certiorari denied 333 U.S. 837, 68 S.Ct. 608; International Brotherhood of Teamsters v. Hanke, 339 U.S. 470, 70 S.Ct. 773; Building Service Employees International Union, Local 262, v. Gazzam, 339 U.S. 532, 70 S.Ct. 784.
Plaintiff instituted this action to enjoin defendants from picketing plaintiff's place of business. Plaintiff's theory is that the picketing was for an unlawful purpose, that is, coercing plaintiff to recognize a labor organization as the bargaining representative when, in fact, recognition would have been unlawful because plaintiff's employees had by a vote rejected the offer of such representation.
Defendants' theory is that the picketing was not for an unlawful purpose and that a state court has no jurisdiction of the subject matter: that jurisdiction is vested exclusively in the National Labor Relations Board. It is also contended an injunction would be an abridgement of freedom of speech in violation of defendants' constitutional rights.
We learn from the record that one of the defendants, William Ashworth, was dead at the time the hearing was had in the trial court.
The trial court heard the evidence offered by plaintiffs and the defendants and found that the picketing "was for the purpose of compelling Plaintiff to recognize the International Association of Machinists, Local Lodge No. 778, and Local Lodge No. 498, International Brotherhood of Teamsters, Chauffeurs, and Warehousemen, as the exclusive bargaining agent of Plaintiff's employees, when in fact the said employees voted against said Unions as their collective bargaining agent and said union [887] organizations did not represent a majority of the said employees and were therefore not entitled to act as exclusive bargaining agent for said employees. It is the opinion of the Court that the said purpose was unlawful and that the Defendants should therefore be enjoined from establishing or maintaining the said picket." The defendants appealed from the decree.
A brief statement of the facts will suffice. In the first part of 1949 the defendants, principally James R. Stufflebeam, instigated organizational activities to unionize the employees of motor car dealers in Jackson County, Missouri. Plaintiff Kincaid-Webber was such a car dealer. In June the defendants requested plaintiff to recognize their union as the exclusive bargaining agent for plaintiff's employees. The plaintiff suggested the question be determined through an election conducted by the National Labor Relations Board. The defendants filed a petition with this Board to conduct such an election at Kincaid-Webber and at a number of other car dealers' places of business. The Board ordered and supervised the elections with the result that at Kincaid-Webber the employees, 17 in number, voted 11 to 6 against the defendants' union as their bargaining representative. This election was held on November 10, 1949. The next morning, November 11, a picket was placed at Kincaid-Webber.
Plaintiff introduced evidence to the effect that when Stufflebeam learned the result of the election, he made the following statements:
"You can bet your G____ d____ life we are going to be in there, but there won't be another election." "This election business is too easy. We have other means of getting recognition." "It won't be so easy on the boys next time * * * We will use a different method."
Plaintiff introduced evidence that its business suffered materially during the time the place was picketed.
The defendant Stufflebeam testified that the purpose of the picket was to inform the public that plaintiff's business was non-union. The signs carried by the pickets so read. The trial court was justified in finding that the purpose of the picket was to coerce plaintiff to recognize the defendants' union as the bargaining representative. The evidence justified no other conclusion. The defendants in their brief concede that the one issue of fact presented was whether the picket was for the purpose of compelling plaintiff to recognize the union as the sole bargaining agent.
Appellants say that "The National Labor Relations Board has exclusive jurisdiction to correct and enjoin the alleged misconduct of the defendants." The first case cited in support of that statement is Amalgamated Association of Street, Electric Railway Motor Coach Employees v. Dixie Motor Coach Corporation, 170 F.2d 902. In that case the Motor Coach Company sought an injunction against a labor union from maintaining a picket. It was conceded that there was a labor dispute involved. Plaintiff contended that the Norris-LaGuardia Act had been amended by the Taft-Hartley Act so as to permit a private person or corporation to seek an injunction in such cases. The court held (170 F.2d l.c. 906), that the Taft-Hartley Act did not so change the law but that under the Taft-Hartley Act the National Labor Relations Board had authority to ask for an injunction in such cases. The court relied upon the case of Bakery Sales Drivers Local Union v. Wagshal, 333 U.S. 437, 68 S.Ct. 630. The court pointed out that the rule applies only in cases where there is a labor dispute; that in cases where the dispute is only a sham the rule does not apply. Injunctions against pickets have been sustained in many cases under both the Norris-LaGuardia and Taft-Hartley Acts. The cases usually involved the question of whether or not the purpose of the picket was to coerce the performance of an unlawful act. See Fred Wolferman, Inc. v. Root, 356 Mo. 976, 204 S.W.2d 733, l.c. 735, 736 (5) (6, 7). In that case this court en banc said: "Both the answer and the evidence do disclose that one of the purposes for the picketing is for giving information to the public. While we assume that purpose is lawful still when it is coupled, as it is here, with unlawful purposes, [888] the fact one of several purposes is lawful does not make the picketing lawful. Picketing for both lawful and unlawful purposes is unlawful. See Restatement Torts Sec. 796. Cf. Baush Machine Tool Co. v. Hill, 231 Mass. 30, 120 N.E. 188; Folsom Engraving Co. v. McNeil, 235 Mass. 269, 126 N.E. 479." To the same effect see State ex rel. Allai v. Thatch, 361 Mo. 190, 234 S.W.2d 1, l.c. 9 (8, 9), where it was contended that under the Taft-Hartley Act a state court had no jurisdiction to issue an injunction in such cases; this court en banc there said: "But the foregoing Federal statutes do not preempt the jurisdiction of the State courts in all instances. It has been held by this and other State courts and the United States Supreme Court that while peaceful picketing is generally permissible under the Fourteenth Amendment, Const. U.S. for a lawful and proper purpose, yet such picketing may be enjoined when the purpose is unlawful; * * *." See also Empire Storage Ice Company v. Giboney, 357 Mo. 671, 210 S.W.2d 55, affd. 336 U.S. 490, 69 S.Ct. 684.
Appellants in their reply brief cite Amalgamated Ass'n of Street, Electric Railway Motor Coach Employees v. Wisconsin Employment Relations Board, 71 S.Ct. 359, as holding that a state court does not have jurisdiction of this case. As we read the case it is not in point and does not so hold. That case held the Wisconsin Public Utility Anti-Strike Law to be in conflict with the Taft-Hartley Act and therefore not enforceable. In the case before us no state regulation is involved.
The contention of defendants that the injunction herein violates their constitutional rights must be denied. In the Wolferman case, supra, 204 S.W.2d l.c. 736, 737 (8, 9), it was ruled that freedom of speech does not include the right to picket to persuade an employer to violate a statute. The question was considered at length and no useful purpose would be served by again discussing the point.
Appellants in their reply brief state that the National Labor Relations Board has asserted its jurisdiction of the labor relations of the parties here involved and therefore the state court had no jurisdiction. We cannot agree. Appellants asked the Labor Board to hold an election. The Board did so and announced the result. That completed the matter and no further action was necessary.
The judgment of the trial court is affirmed. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.