Amalgamated Meat Cut. v. Carl's Meat & Provision Co.

• Decision Date: 09 December 1971
• Docket Number: No. 7317,7317
• Citation: 475 S.W.2d 300,67 Lab.Cas.P 12
• Court: Texas Court of Appeals
• Parties: 80 L.R.R.M. (BNA) 2075, 67 Lab.Cas. P 12,341 AMALGAMATED MEAT CUTTERS et al., Appellants, v. CARL'S MEAT & PROVISION COMPANY, Appellee.

Page 300

475 S.W.2d 300

80 L.R.R.M. (BNA) 2075, 67 Lab.Cas. P 12,341

AMALGAMATED MEAT CUTTERS et al., Appellants, v. CARL'S MEAT & PROVISION COMPANY, Appellee.

No. 7317.

Court of Civil Appeals of Texas,

Beaumont.

Dec. 9, 1971.

Rehearing Denied Jan. 6, 1972.

Mullimax, Wells, Mauzy & Collins, Dallas, for appellants.

Passman, Jones, Stewart, Andrews & Company, Dallas, for appellee.

KEITH, Justice.

We review an order granting a temporary injunction issued after a lengthy hearing. Defendants were restrained and enjoined, pending a trial upon the merits of the cause from

'. . . distributing, publishing and disseminating to the public or to anyone statements pertaining to or making or uttering, in writing or otherwise, derogatory remarks concerning Plaintiff's meat products to the effect that such meat products or the Plaintiff's premises and/or the equipment contained therein is unsatisfactory or unsanitary, and further statements to the effect or as would tend to indicate that Plaintiff is producing meat products for sale to the public as might be injurious to the public or in any way unfit for human consumption or making or uttering statements that concern the capabilities of the employees of Plaintiff; . . .'

Plaintiff is engaged in the business of processing meat and poultry for distribution and sale to various restaurants, institutions, and commercial users in the Dallas area while, according to plaintiff's allegations, 'The defendant claims to represent various employees of Plaintiff which are engaged in striking and picketing Plaintiff's place of business in connection with a labor dispute.'

Plaintiff alleged that on August 2, 1971, defendant mailed to various customers of plaintiff a letter and 'Quality Warning' stating in part that the Texas State Department of Health had issued reports documenting unfavorable sanitary conditions within plaintiff's plants and had condemned as unfit for human consumption large quantities of meat processed therein. Four days later, so plaintiff alleged, defendant began distributing handbills near a cafeteria which bought meat from plaintiff, the handbill (which was specifically made a part of the temporary injunction order) being appended hereto as an exhibit.

Plaintiff alleged that the information so disseminated was false. This was followed by very general allegations that such conduct 'will cause irreparable damage and injury to Plaintiff's business and in fact, Plaintiff has reason to believe that such actions by Defendant to date have already damaged and generally interfered with Plaintiff's business all to the damage and detriment of the Plaintiff.' Plaintiff then alleged that it would 'suffer irreparable harm, damage, detriment and injury' for which it had no adequate remedy at law unless the temporary injunction should issue. The prayer was for a permanent injunction upon a final hearing but no other relief was sought--and particularly, plaintiff did not seek damages, either actual or punitive.

The trial court found that the statements so made 'were, according to the testimony, either incorrect or misleading or taken from context; and that the Defendant(s) . . . were utilizing such information as a plan and scheme under which to bring about an end result to which Plaintiff had no adequate remedy at law.'

A review of the record indicates that the statements contained in the handbill were at least partially true, but we do not take issue with the trial court's findings that some of such statements were 'misleading or taken from context.' But, we do note that the trial court did not find, as plaintiff now contends, that such statements were false. For the purpose of this opinion, we will assume that the statements were, in fact, false, at least in part. ¹

But it is also true, as stated by defendant in its brief:

'There was no evidence of coercion or threats; no primary or secondary picketing of anyone; no effort to induce secondary activity of any sort; and no actual damage shown to Appellee.'

It seems apparent, however, that the activities of defendants are not conducive to increased sales of meat to be consumed by customers who were 'handbilled.'

It appears without dispute in our record that the controversy between the parties arises out of a labor dispute. Defendants so contend in their brief, and plaintiff responds by stating that '(i)t is, however, fair to state that 'handbilling' the public commenced as a result of a labor dispute . . . in that APPELLANT has not been recognized as the bargaining representative of APPELLEE'S employees.' We find other references in the record showing the pendency of charges and countercharges with the National Labor Relations Board arising out of the dispute. Indeed, after submission of this cause, plaintiff filed with this court an instrument showing clearly that National Labor Relations Board had assumed jurisdiction of the dispute and had entered an order. Defendant has not replied to such 'evidence' nor has it objected to our consideration thereof.

However, defendant has no point attacking the trial court's jurisdiction to hear the cause under the preemption doctrine so forcefully applied to the Texas courts in Ex parte George, 371 U.S. 72, 83 S.Ct. 178, 9 L.Ed.2d 133 (1962), vacating and reversing the decision of the Supreme Court of Texas reported in 163 Tex. 103, 358 S.W.2d 590 (1962). As was said in George: 'The District Court was without jurisdiction if petitioner's picketing was arguably prohibited or arguable protected by the National Labor Relations Act .' (371 U.S. at p. 73, 83 S.Ct. at p. 179.) See also Brotherhood of R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969); Amalgamated Association of Street, Electric Railway and Motor Coach Employees v. Lockridge, 403 U.S. 274, 29 L.Ed.2d 473, 91 S.Ct. 1909 (1971). For an excellent discussion of the development of the doctrine, see Jeffers, 'The Labor Injunction in Texas Courts Today,' 36 Texas Law Rev. 938 (1958).

While we have doubt as to the jurisdiction of the district court under the preemption doctrine, it not having been raised by the defendant, we do not do so, sua sponte. ²

Plaintiff places primary reliance upon Cain, Brogden & Cain, Inc. v. Local Union No. 47, Etc., 155 Tex. 304, 285 S.W.2d 942, 946 (1956), wherein the court said: 'It is now well settled that peaceful picketing loses its protection under the constitutional guaranty of free speech if One of its purposes is contrary to public policy.' (emphasis in original) It then calls to our attention this language from Ex parte Tucker, 110 Tex. 335, 220 S.W. 75, 76 (1920):

'Equity will protect the exercise of natural and contractual rights from interference by attempts at intimidation or coercion. Verbal or written threats may assume that character. When they do, they amount to conduct, or threatened conduct, and for that reason may properly be restrained. Cases of that sort, or of analogous nature, are not to be confounded with this one.'

We disagree with the contention so advanced. Any prior restraint on expression comes to this court with a 'heavy presumption' against its constitutional validity. Keefe, supra (402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d at p. 5). The constitutional principle governing our action is that set out by the court in Ex parte Tucker, supra:

'The existence of Any power in a court of equity to supervise one person's opinion of another, or to dictate what one person may say of another, is plainly and emphatically refuted by the 8th section of the Bill of Rights (of the Texas Constitution).

'That section, in part, reads:

'Every person shall be at liberty to speak, write, or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or the press.'

In Dallas General Drivers, Etc. v. Wamix, Inc., of Dallas, 156 Tex . 408, 295 S.W.2d 873, 879 (1956), the present Chief Justice, speaking for the majority said:

'In Ex parte Tucker, 110 Tex. 335, 220 S.W. 75, this Court committed itself emphatically to the proposition that the right of one to speak ill of another is protected by the Bill of Rights, Sec. 8, of Article I of the State Constitution, and that a court has no power to control by injunction what one person says of another, even in a labor dispute, unless there be evidence that language will be used which is intimidating and coercive in character.'

See also, Lawrence v. Atwood, 295 S.W.2d 298, 300 (Tex.Civ.App., Beaumont, 1956 no writ); McMorries v. Hudson Sales Corp., 233 S.W.2d 938, 941 (Tex.Civ.App., El Paso, 1950, no writ); Anotation 47 A.L.R.2d 715; 43 C.J.S. Injunctions § 135, p. 680.

Should we concede that plaintiffs are correct in stating 'that the intended purpose (of handbilling) was to coerce and/or restrain the direct customers of Appellee from buying Appellee's product by placing fear (of eating contaminated meat) in the minds of the buying public,' we do not reach the result sought. Again, the answer is to be found in Keefe, supra, from which this quotation is taken:

'The claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. Petitioners plainly intended to influence respondent's conduct by their activities; this is not fundamentally different from the function of a newspaper. See Schneider v. State, supra (308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939)); Thornhill v . Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). Petitioners were engaged openly and vigorously in making the public aware of respondent's real estate practices. Those practices were offensive to them, as the views and practices of petitioners are no doubt offensive to others. But so long as the means are peaceful, the communication need not meet standards of acceptability.' (402 U .S. at p. 419, 29 L.Ed.2d at p. 5, 91 S.Ct. at p. 1578.)

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