Boyd v. Dodge, 4-9445

• Decision Date: 27 November 1950
• Docket Number: No. 4-9445,4-9445
• Citation: Boyd v. Dodge, 217 Ark. 919, 234 S.W.2d 204 (Ark. 1950)
• Parties: , 27 L.R.R.M. (BNA) 2184, 19 Lab.Cas. P 66,083 BOYD et al. v. DODGE, Chancellor.
• Court: Arkansas Supreme Court

Page 204

234 S.W.2d 204

217 Ark. 919, 27 L.R.R.M. (BNA) 2184,

19 Lab.Cas. P 66,083

BOYD et al. v. DODGE, Chancellor.

No. 4-9445.

Supreme Court of Arkansas.

Nov. 27, 1950.

T. J. Gentry and Wm. P. Alexander, Little Rock, for appellants.

Blake Downie, Little Rock, for appellee.

DUNAWAY, Justice.

Petitioners as members of Communications Workers of America, CIO, Division No. 6, an unincorporated labor organization, have filed a petition in the Supreme Court of Arkansas for a Writ of Prohibition to the Pulaski Chancery Court, First Division. Petitioners pray that the court be prohibited and restrained from proceeding further in the case therein pending, Southwestern Bell Telephone Company v. Jack N. Brashears and others (Chancery case No. 90241), and that the temporary restraining order issued by said court on November 9, 1950, be dissolved.

The complete record of the proceedings in the Chancery Court has been filed with the Supreme Court. From the record it appears that no testimony was taken and that the temporary restraining order was issued without notice on the basis of the petition for injunction filed by the Southwestern Bell Telephone Company.

Since the Supreme Court is not in session, petitioners presented their petition to me asking for a temporary Writ of Prohibition under the provisions of Art. VII, Sec. 4, of the State Constitution, which authorizes the issuance of such writs by the several judges of the Supreme Court. In view of the fact that any decision on my part in this matter would be effective only until the next regular sitting of the Court, on Monday, November 20, 1950, I asked all the other Justices to hear the argument of both sides in regard to the petition.

Petitioners are members of the Communications Workers of America, CIO, Division No. 6 and at present are on strike against their employer, the Western Electric Company. It was conceded in the oral argument that petitioners and others are regularly employed by the Western Electric Company to install and maintain telephone equipment in the various offices of the Southwestern Bell Telephone Company. It was further conceded that both the Western Electric Company and the Southwestern Bell Telephone Company are controlled by a common parent corporation, the American Telephone and Telegraph Company.

In the petition for an injunction to restrain these striking employees of Western Electric Company from engaging in picketing around the Telephone Company offices in Little Rock and in the Rosedale community, it was alleged that as a result of said picketing employees of the Telephone Company, not involved in the strike, were refusing to cross the picket lines and that thereby telephone service would be disrupted. The basis for granting injunctive relief as set out in the petition filed in the Chancery Court, and as presented in the oral argument here, is contained in this allegation: 'The above described picketing of plaintiff's offices and garages is contrary to the public policy of the State of Arkansas and has endangered and, if allowed to continue, will further endanger the health, welfare and convenience of the public.'

Petitioners in seeking a Writ of Prohibition challenge the jurisdiction of the Chancery Court. This attack is made on two grounds: First, that the court had no jurisdiction of the petition for the reason that the Communications Workers of America, CIO, Division No. 6, is an unincorporated labor organization which cannot be sued in its association name as it is not a legal entity. Second, that the court has no jurisdiction of the subject matter covered by the complaint for the reason that the field of picketing for higher wages in business engaged in interstate commerce has been preempted by the Federal Labor-Management Relations Act of 1947, Public Law 101, 80th Congress, 29 U.S.C.A. § 141 et seq. It is petitioners' contention that, in the absence of an allegation of some acts in connection with picketing over which the State has police power (either because of acts in violation of state statutes or common law), the remedy for an alleged unfair labor practice under the Federal Labor-Management Relations Act is before the National Labor Relations Board or in the Federal courts as prescribed in that Act.

There is no allegations in the petition filed by the Telephone Company in the Chancery Court of any violence, mass picketing, threats, or intimidation. It is conceded that the picketing complained of was peaceful and, as already stated, the only basis for the injunction was that the picketing was resulting, or would result, in disruption of telephone service, and that this is contrary to the public policy of the State of Arkansas. It was conceded in the oral argument that the striking employees, when on the job, work in certain buildings of the Telephone Company, and that their supervisors operate from these buildings. There are no disputed questions of fact involved.

As already stated the complete record of the proceedings in the Chancery Court has been filed with the Clerk of the Supreme Court. After consultation of all the Justices of the Court, a majority of the Justices are of the opinion that the petition filed herein should be treated as an appeal from the interlocutory order of the Chancellor granting a temporary restraining order against all picketing. Ark.Stats. 27-2102 provides that an appeal may be taken to the Supreme Court from an interlocutory order granting or refusing an injunction. That section further provides: 'The proceedings in other respects in the circuit or chancery court shall not be stayed during the pendency of such appeal unless otherwise ordered by the court, or by the Supreme Court, or a judge thereof.' In view of the opinion of a majority of the Justices that this proceeding should be treated as brought under that section of the statutes, the question is whether a stay should be granted as therein provided pending final determination of the appeal by the court.

The only ground stated in the petition below for the relief prayed and for the restraining order prayed thereon is that the picketing violates the public policy of this state. No statute nor decision of this court is cited as declaring this public policy. There is no allegation nor finding of violence, law violation or breaches of the peace. Another allegation in the petition in the court below was 'The defendant union does not represent any of the employees of the plaintiff and no labor dispute exists or could exist between the plaintiff and the said defendant union or the members thereof * * *. Accordingly, there is no offer, concession or other act which the plaintiff could make or do which would solve or in any other way affect any labor dispute to which the defendant union is a party.'

That members of labor unions may engage in peaceful picketing is elementary. In the recent case of Local No. 802 v. Asimos, 216 Ark. 694, 227 S.W.2d 154, the authorities both of the Supreme Court of Arkansas and of the Supreme Court of the United States in regard to the right to picket were fully collected and reviewed. The public policy of this State, as found in the Constitution and decisions of the Supreme Court, may be summarized in the words of a headnote to that case. 'In the absence of proof showing that mass picketing is conducted and that acts of violence in connection with the picketing have occurred, labor unions may, on the grounds of free speech guaranteed by the 14th Amendment to the U. S. Constitution, engage in picketing.'

That case, it seems to me, is also determinative of the Telephone Company's argument with regard to the nonexistence of a labor dispute with its own employees. There, in seeking to uphold an unjunction it was argued 'Because no labor dispute existed between appellees and their employees, * * * there was in progress no strike which might have justified peaceful picketing.' In answer to that contention Justice McFaddin, speaking for the court, said: 216 Ark. at page 702 et seq., 227 S.W.2d at page 158 'Appellees are correct in stating the fact that no labor dispute existed between the Jefferson Coffee Shop and its employees. * * *

'Thus, the learned Chancellor was evidently of the opinion that until the employees went on strike, there could be no picketing; and that in the absence of a labor dispute, the Union had no right to establish a picket line.

'* * * we are under oath to obey the United States Constitution; and the interpretation of that document, as made by the United States Supreme Court, is binding on us. That tribunal has decided that there may be picketing in the entire absence of a labor dispute. (Citing and discussing Bakery and Pastry Drivers v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178, and Cafeteria Employees Union, Local 302 v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58.

'The Bakery case and the Cafeteria case, just discussed, are cases that rule here. In the case at bar there was an absence of violence, law violations, or breaches of the peace (growing directly out of the picketing); there was no mass picketing; the signs carried by the pickets were not libelous or false; there is no proof that there was a demand for a closed-shop. In short, there is no fact present in the case at bar to distinguish it from the Bakery case and the Cafeteria case, just discussed, so we must hold that there can be peaceful picketing even in the absence of a labor dispute relating to persons presently employed; and we must dissolve in part the injunction granted by the Chancery Court.'

Lest this memorandum be misunderstood, I should add that this...