Cain, Brogden & Cain, Inc. v. Local Union No. 47, Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers

• Decision Date: 04 January 1956
• Docket Number: No. A-5008,A-5008
• Citation: 155 Tex. 304,285 S.W.2d 942
• Parties: CAIN, BROGDEN & CAIN, Inc., Petitioner, v. LOCAL UNION NO. 47, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN and HELPERS, et al., Respondents.
• Court: Texas Supreme Court

Page 942

285 S.W.2d 942

155 Tex. 304

CAIN, BROGDEN & CAIN, Inc., Petitioner, v. LOCAL UNION NO. 47, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN and HELPERS, et al., Respondents.

No. A-5008.

Supreme Court of Texas.

Jan. 4, 1956.

Rehearing Denied Feb. 8, 1956.

Tilley, Hyder & Law, Fort Worth, for petitioner.

Mullinax & Wells, Dallas, for respondents.

SMITH, Justice.

This is a suit to enjoin respondent Union and certain of its members from picketing the construction project of petitioner Cain, Brogden & Cain. A temporary injunction was issued by a district court of Tarrant County. The injunction has been dissolved by the Court of Civil Appeals. 272 S.W.2d 543.

Respondent is Local 47 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers. Petitioner is Cain, Brogden & Cain Construction Company, a general contractor for two construction projects in Fort Worth, the Fair West Shopping Center and Matthews Memorial Methodist Church. Respondent, for some months before the events at issue here, had been trying to effect contracts with all of the general contractors in the Fort Worth area to insure that wages and working conditions commensurate with those required by union members would be maintained among all workers, union or nonunion, hired either directly or through subcontractors, for hauling jobs in connection with the construction industry in Tarrant County. The record shows that some seven weeks or two months before the picketing, which resulted in this injunction, a representative of respondent had a conversation with petitioner's foreman, Sager, for the purpose of securing work for union truck drivers on petitioner's Fair West job. Sager's reply to this inquiry is squarely disputed by the parties but in any event the uncontroverted testimony is that petitioner Cain was never contacted by respondent until the day before the picket was placed on the Fair West project. Petitioner employed some of the workmen on the project directly, including both union and nonunion members, but subcontracted certain portions of the work to subcontractors, including Childress, who had a subcontract for supplying sand and gravel to the construction site. The date of execution of this subcontract does not appear, nor is it clear whether it was before or after respondent's first conversation with Sager regarding the hauling jobs.

On August 2, 1954, Blankenship, a representative of respondent, telephoned petitioner Cain and, as related by cain, the following conversation transpired:

'The telephone rang and the man said he was Mr. Blankenship, business agent for the teamsters and truck drivers; he says, 'You have got a man working out on Matthews Memorial Church that's using-Joe Campbell,' he said, 'using nonunion truck drivers.' I said, 'Well, Mr. Campbell is a subcontractor.' He says, 'If it isn't stopped, we are going to put pickets on your job.' I says, 'You will have to talk to Mr. Campbell, because he has the subcontract and I have no control over him.''

'During this construction (sic) he said that Jim Childress was hauling gravel at Fair West and if I didn't stop that, he would put pickets on that job.'

'What did you say to that?'

'I told him Mr. Childress had a subcontract and I had no control over him.'

'He (Blankenship) wanted to come out and talk about Mr. Childress and I told him to go talk to Mr. Childress-that I had no control over him.'

Respondents' witnesses denied that Blankenship mentioned Childress in the telephone conversation or made any statement to Cain 'about taking anybody off of' the Fair West job, asserting that Blankenship only requested Cain to negotiate with respect to the payment of union wages and observance of union hours and working conditions on the Fair West project and on future construction projects.

On the following morning a picket was posted on the Fair West job. One picket was used. He carried a sign to the effect that respondent was on strike against petitioner 'for better wages and working conditions.' As a result of this picketing, most of the union members on the project stopped working and petitioner was substantially injured.

The trial court found that no labor dispute existed between petitioner and its employees and that there was no complaint from such employees as to wages, hours or working conditions; that none of petitioner's employees was a member of respondent Union and none was eligible for membership therein; that no labor dispute existed between petitioner and respondents; that the picketing had prevented and, unless enjoined, would continue to prevent the delivery of supplies, material and equipment to petitioner's premises to its irreparable damage; and, finally, that the action by respondent in picketing petitioner's premises constituted secondary picketing and a secondary boycott.

The trial court accordingly enjoined respondent from '(a) picketing at or near any of the premises where plaintiff (petitioner) is engaged in construction work in Tarrant County, Texas; (b) interfering with or attempting to prevent the free flow of commerce to and from any of plaintiff's (petitioner's) premises in Tarrant County, Texas.'

The Court of Civil Appeals dissolved the injunction on the ground that it infringed upon the freedom of speech guaranteed respondents by the First and Fourteenth Amendments to the United States Constitution. In the light of that holding it is not inappropriate to examine some of the decisions which shed light on the question.

In Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, the United States Supreme Court declared that the advertisement of a labor dispute by picketing was protected from statutory restriction by either Congress or any legislature because of the free speech guarantees of the First and Fourteenth Amendments. See also Carlson v. People of State of California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104. Since that decision, in a long series of cases, the court has announced a great many qualifications upon this original doctrine. Indeed, even in the Thornhill case (310 U.S. 88, 60 S.Ct. 743), it was broadly intimated that a state would be justified in regulation of picketing, based upon 'either the number of persons engaged in the proscribed activity, the peaceful character of their demeanor, the nature of their dispute with an employer, or the restrained character and accurateness of the terminology used in notifying the public of the facts of the dispute.'

In the cases which followed Thornhill, certain areas of permissible regulation were indicated. Picketing could be enjoined if it formed a part of a labor controversy characterized by threats and violence. Milk Wagon Drivers' Union of Chicago, etc., v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed 836. It could be enjoined if the objective of the picketing was to force a violation of a 'Right to Work' law, similar to Art. 5207a, Vernon's Annotated Texas Civil Statutes; Building Service Employees Intern. Union, etc., v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045. Restriction was proper where the picketing union sought to force the employment of negro workers in proportion to the negro customers of the employer. Hughes v. Superior Court of California, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985. In the case of Carpenters and Joiners Union of America, etc., v. Ritter's Cafe, 315 U.S. 722, 62 S.Ct. 807, 809, 86 L.Ed. 1143, an injunction was held proper where the union, in protest against labor practices on a construction project, picketed a cafe owned by the owner of the project, which cafe was a mile and a half from the construction site. The basis for the Ritter decision was that the cafe was outside 'the economic context' of the labor dispute and therefore the picketing of the cafe was not privileged.

In the case of Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 688, 93 L.Ed. 834, the United States Supreme Court upheld an injunction against picketing which had as its objective the elimination of nonunion ice peddlers in Kansas City, Missouri, in violation of the anti-trust laws of that state, and especially Mo.Rev.Stats.Ann. § 8301. In that case, the union was picketing the ice company to force it to stop selling to nonunion ice peddlers. The court concluded that the picketing was merely a part of an illegal scheme by the union to monopolize the retail distribution of ice in Kansas City and that, as such, it was subject to regulation by statutes based on a state policy against monopoly or 'restraint of trade.'

In International Brotherhood of Teamsters, Chauffeurs, etc. v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995, decided in 1950, an injunction against picketing was sustained where the union was seeking to force self-employed used-car dealers to observe the same business hours as did dealers employing union members. The Supreme Court of Washington, in which state the Hanke case originated, had declared that the policy of the State of Washington favoring the protection of independent self-employed businessmen was sufficiently important to override the interest of the union in maintaining a high standard of wages and working conditions among car dealers. In upholding the injunction, the United States Supreme Court emphasized this language of the state court and held that the court could not deny to a state the power to implement such an important and socially desirable policy.

It thus appears from the above decisions that the protection accorded picketing as 'free speech' in the Thornhill decision has been substantially qualified by successive rulings of the United States Supreme Court. What we must decide is whether the picketing here involved is entitled to that protection or whether it must yield to the public policy of this state. In deciding the question all conflicts in the evidence must be resolved in support of the trial court's judgment.

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