20 Cal.2d 506, 17903, Magill Bros. v. Building Service Employees' International Union

Docket Nº:17903
Citation:20 Cal.2d 506, 127 P.2d 542
Opinion Judge:[9] Gibson
Party Name:Magill Bros. v. Building Service Employees' International Union
Attorney:[7] Pierson & Block, R. K. Pierson and Samuel P. Block for Appellant. [8] Ben Koening, Aaron B. Rosenthal, George Olshausen, Jonathan Rowell and Mathew O. Tobriner for Respondents.
Case Date:July 02, 1942
Court:Supreme Court of California

Page 506

20 Cal.2d 506

127 P.2d 542

MAGILL BROS., INC. (a Corporation), Appellant,


BUILDING SERVICE EMPLOYEES' INTERNATIONAL UNION (an Unincorporated Association) et al., Respondents.

L. A. No. 17903.

Supreme Court of California

July 2, 1942

In Bank.


Pierson & Block, R. K. Pierson and Samuel P. Block for Appellant. Ben Koenig, Aaron B. Rosenthal, George Olshausen, Jonathan Rowell and Mathew O. Tobriner for Respondents.

Page 507



The plaintiff corporation, which is engaged in operating two bowling alleys in the city of Los Angeles, brought this action against the defendant unions and the officers and members thereof. Plaintiff sought to enjoin defendants from maintaining pickets in front of plaintiff's places of business and to recover damages for the allegedly unlawful picketing previously carried on by defendants. The action was tried without a jury and, by stipulation, was tried solely with reference to the alley located at 1953 S. Vermont Avenue in Los Angeles. The trial court found that prior to the filing of the complaint in this action none of plaintiff's employees was engaged in a labor dispute with his employer and that there was no strike of any nature against plaintiff. It found that Local 214 sought to unionize all of plaintiff's employees who were not members of any union and that Local 214 urged plaintiff to sign a contract providing that it would employ only union members. After repeated refusals on the part of plaintiff to sign such a contract (on the theory that it would not force its employees to become union members), defendants stationed pickets outside the bowling alley who carried signs stating: "This house on strike. A. F. L." At that time, according to the findings of the trial court, none of plaintiff's employees was on strike and no labor dispute existed between employer and employees. [127 P.2d 543] Immediately after the establishment of the picket line, however, certain of plaintiff's employees left and remained away from their work. The court found that prior to the establishment of the picket line a ballot was conducted by defendants among those of plaintiff's employees who belonged to the union. The question voted upon was whether a strike should be called against plaintiff but not a single employee (with one possible exception) voted for such a strike. It was found that the sole purpose of the picketing was to compel plaintiff to sign the closed shop agreement and that "the banners and signs carried by said pickets conveyed false and untrue information to the general public insofar as the employees of plaintiff are concerned." The trial court found that the allegations of the complaint charging that the pickets had engaged in acts of force, violence or physical intimidation were untrue. It also found that the allegations of damage in the sum of $25,000 were untrue.

Upon the basis of these findings the trial court rendered a

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so-called "memorandum for judgment" in which it ordered that the injunction be granted on the ground that picketing was unlawful in the absence of a labor dispute between the employer and its employees. Following the decision of this court in McKay v. Retail Auto S. L. Union No. 1067, 16 Cal.2d 311 ), and companion cases, defendants moved to vacate the order previously made by the trial court. This motion was granted and thereafter judgment was entered for defendants denying the permanent injunction and dissolving the preliminary injunction theretofore granted. Plaintiff brings this appeal from the judgment for defendants.

The question for decision is whether, under the facts found by the trial court, it was error to deny plaintiff's request for injunctive relief. Plaintiff concedes that under controlling decisions no injunction could have been granted based upon the absence of a dispute between the employer and his employees (McKay v. Retail Auto. S. L. Union No. 1067, supra, P. 324; C. S. Smith Metropolitan Mkt. Co. v. Lyons, 16 Cal.2d 389, 394 ; American Federation of Labor v. Swing, 312 U.S. 321 [61 S.Ct. 568, 85 L.Ed. 855]; Bakery and Pastry Drivers and Helpers, etc. v. Wohl ___ U.S. ___ [62 S.Ct. 816, 86 L.Ed. ___]), or upon the ground that the picketing was being conducted to secure a closed shop contract. (McKay v. Retail S. L. Union No. 1067, supra, p. 322-323; Shafer v. Registered Pharmacists Union, 16 Cal.2d 379 .) The sole issue, therefore, is whether the trial court erred in denying injunctive relief in a case where it found that the banners and signs carried by the pickets conveyed false and untrue information to the general public.

There can be no doubt that untruthful picketing is unlawful picketing. Cases involving the right of labor to picket peacefully have consistently held that the picketing must also be honest and truthful. (McKay v. Retail Auto. S. L. Union No. 1067, supra, p. 319-320; Steiner v. Long Beach Local No. 128, 19 Cal.2d 676, 682-683 ; Euclid Candy Co. v. International Longshoremen, 49 Cal. App (2d) 137, 143 ; cf. Davitt v. American Bakers' Union, 124 Cal. 99 ; Weist v. Dirks, 215 Ind. 568 [20 N.E.2d 969, 971); Wilner v. Bless, 243 N.Y. 544 [154 N.E. 598]; Olympia Operating Co. v. Costello, 278 Mass. 125 (179 N.E. 804]; 1 Teller, Labor Disputes and Collective

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Bargaining (1940), sections 126-128, pp. 388, et seq.) In certain cases it has been difficult to determine whether the particular signs used in picketing were actually false (cf. Teller, op. cit. supra; (1941) 29 Cal. L. Rev. 366, 370, n. 12), but since there is no challenge to the trial court's finding upon this point it is unnecessary in the present case to consider the question. Conceding, in effect, that the picketing in the present case conveyed false information to the public, defendants contend that the action of the trial court should be sustained upon the ground that equity will not enjoin picketing under such circumstances because it is so closely identified with the constitutional right of free speech. In support of this proposition defendants rely upon cases which set forth the principle that equity will not grant injunctive relief against the publication of what might be, after publication, a libel or slander. (Dailey v. Superior Court, 112 Cal. 94 [53 Am.St.Rep. 160, 32 L.R.A. 273]; In re Wood, 194 Cal. 49, 60 [); cf. People v. Armentrout, 118 Cal.App. Supp. 761, 769 ; Goldberg, Bowen & Co. v. Stablemen's Union, 149 Cal. 429, 434 [117 Am.St.Rep. 145, 9 Ann. Cas. 1219, 8 L.R.A. (N. S.) 460].) Defendants' position in this regard cannot be sustained. If defendants had remained at home and had uttered false statements concerning [127 P.2d 544] plaintiff, the rule cited might have been relied upon. Not so in the present case, however, for, assuming that the rule is correct, here is not the utterance of false statements which is sought to be enjoined, but the conduct of picketing in an unlawful manner. The rule in this regard is analogous to the principle that while equity will not ordinarily enjoin activity which is criminal in nature, neither will it refuse to act where an independent ground for relief is presented merely because the acts sought to be enjoined are also criminal. (See 5 Pomeroy, Equity Jurisprudence (Equitable Remedies, (2d ed.) section 2050, p. 4630.) Despite theoretical criticism (see 1 Teller, op. cit. supra, p. 404; (1941) 29 Cal. L. Rev. 366, 377-378) and despite the fact that the publication of false statements alone will not justify equitable relief, it is the nearly unanimous rule throughout the country that equity will intervene where false or fraudulent statements are combined with picketing and where, under local policy, this renders the picketing illegal. (Cf. McKay

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v. Retail Auto. S. L. Union No. 1067, supra; J. H. & S. Theatres v. Fay, 260 N.Y. 315 [183 N.E. 509, 512.]; Wilner v. Bless, supra; Wiest v. Dirks, supra; Olympia Operating Co. v. Costello, supra; 1 Teller, op. cit. supra, p. 388, et seq.; (1941) 90 U. of Pa. L. Rev. 201, 211-212; (1941) 41 Columb. L. Rev. 89, 101, n. 79-80; 116 A.L.R. 484, 497; 27 A.L.R. 651, 653.)

The basis for equity's intervention in cases such as this rests upon the fact that picketing is one of the forms of collective labor activity which seeks to exert economic pressure upon an employer. (See Restatement, Torts, section 796, et seq.) As was said in a recent opinion of the United States Supreme Court, "Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated. Hence those aspects of picketing make it the subject of restrictive regulation." (Bakery and Pastry Drivers and Helpers, etc. v. Wohl, supra, p. 819, Douglas, J. concurring.) Such collective labor activity is permissible only when conducted according to the requirements imposed by law, and if in violation of such requirements, picketing is subject under ordinary circumstances to the restraint of a court of equity. (1 Teller, op. cit. supra, chap. 8, pp. 319, et seq.) The standards imposed for determining whether picketing is lawful and permissible, or unlawful and enjoinable, are matters of state law which have varied from time to time and from jurisdiction to jurisdiction. (See (1940) 39 Mich. L. Rev. 110, 111; (1941) 26 Corn. L. Q. 470, 471-472.) Thus, at...

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