Ellis v. Journeyman Barbers' Int'l Union of Am.

• Decision Date: 15 December 1922
• Docket Number: No. 34234.,34234.
• Citation: 191 N.W. 111,194 Iowa 1179
• Parties: ELLIS v. JOURNEYMAN BARBERS' INTERNATIONAL UNION OF AMERICA, LOCAL UNION NO. 52, ET AL.
• Court: Iowa Supreme Court

194 Iowa 1179

191 N.W. 111

ELLIS

v.JOURNEYMAN BARBERS' INTERNATIONAL UNION OF AMERICA, LOCAL UNION NO. 52, ET AL.

No. 34234.

Supreme Court of Iowa.

Dec. 15, 1922.

Appeal from District Court, Woodbury County; W. G. Sears, Judge.

Suit in equity to enjoin the defendants from boycotting the plaintiff's place of business, and from maintaining pickets in front thereof for the purpose of such boycotts. There was a decree for plaintiff enjoining certain of the defendants. Other defendants were dismissed by the decree as being guilty of no wrongdoing. The enjoined defendants appeal. Plaintiff later appeals from that part of the decree dismissing certain of the defendants. Affirmed on both appeals.Free & Pickus, of Sioux City, for appellants.

Snyder, Gleysteen, Purdy & Harper, of Sioux City, for appellee.

EVANS, J.

The principal defendants are the Journeyman Barbers' International Union of America, Local Union No. 52, and the officers thereof. A group of other defendants are named who were not officers or members of the above-named “union,” but who were charged in the petition with conspiracy with the first-named defendants and with aiding and abetting such defendants in carrying on an unlawful boycott by means of picketing against the defendant's place of business. This group was dismissed by the decree of the trial court. The plaintiff is a barber by trade and by actual occupation. The first-named defendant is a trade union of journeymen barbers. The membership of this trade union comprises journeymen barbers only, and not employing or master barbers. The plaintiff is an employing barber; that is to say, he owns a shop in which he himself works at the chair, and in which also he employs two or three other journeymen barbers. The plaintiff was formerly a journeyman barber, and was a member of the defendant “union.” Upon becoming an employing barber he was required under the rules to retire from the defendant “union.” Pursuant to the rules the “union” issued to him a “retiring card” which recognized his former membership and his right to be reinstated at any future time when he should cease to be an employing barber and should again become a journeyman barber. Under such retiring card he entered into a contractual relation with the “union” whereby he agreed to maintain a union shop, and to observe all the rules and regulations of the “union.” This was the affiliation which the union sustained toward all the employing barbers who maintained union shops. So far as these shops were concerned, therefore, this defendant union dominated all the rules and regulations and scale of prices in force therein. Under this affiliation the plaintiff operated his shop for one year. During this period of time he employed as his assistants Carl Stone and one Newell who were members of the defendant “union.” Under the union regulations the journeyman barber took 65 per cent. of the earnings of his chair, and had a guaranty of $25 per week. The scale of prices fixed by the union was such as was in force during the period of war prices. The plaintiff became convinced that the scale of prices was too high for his particular trade, which was made up largely of laboring men, and that the hours permitted by union regulations were too short. He determined, therefore, to reduce the prices and to extend the hours. This course was approved and agreed to by his employees. On November 30, 1920, therefore, he purported to withdraw from the defendant “union” by sending in his card which had been theretofore posted in his shop as a declaration that it was a union shop, and put in effect his reduced prices and lengthened hours. The result was that his union employees were induced to leave him, and that pickets were established forthwith in front of his shop. These pickets were two in number, one relieving the other. One of these pickets was Carl Stone, plaintiff's employee, who was employed as picket by the defendant union at a wage of $30 per week. The picket wore upon his person a banner or poster which extended from his toes to his head and from his head to his heels, and which contained on front and back this inscription: “This place is unfair to organized labor. Journeymen Barbers No. 52.” In the center of this garment or banner there was a hole through which the picket's head protruded. The colors adopted were red and white. The picket walked back and forth throughout the business hours upon the sidewalk in front of plaintiff's place of business. His designated place upon the sidewalk was near the curb. He was instructed by the defendants not to talk. This instruction, however, was not observed. After the departure of his employees, the plaintiff obtained additional help. The conceded purpose of the picketing was to dissuade customers from going into plaintiff's shop. The picket not only displayed the banner, but did also by word of mouth attempt to dissuade customers from entering. That such attempt was to a substantial degree successful is sufficiently proved. It was the announced purpose of the defendant to maintain such picketing until the plaintiff should either maintain the regulations and prices specified by the union order or close his shop.

[1] Some harsh altercations of speech occurred between the picket and the employees of the plaintiff. These altercations bordered at least upon a breach of the peace. The foregoing is perhaps a sufficient indication of the general nature of the case for the purpose of determining the rules of law applicable thereto. It will be noted that this is not a case of conflict between capital and labor or between employer and employee. It is not a strike for higher wages. Plaintiff paid the union scale of wages. The employees had no grievance. They had agreed in advance to the course adopted by plaintiff. It is simply a case where a powerful organization and its officers bring to bear its power upon an ordinary individual who is seeking to engage in and to carry on legitimately a humble business in his own way. There is a fair field of competition and of persuasion and of publicity wherein the defendant may lawfully bring to bear such power. There is also a limitation upon the defendant in that regard beyond which it may not lawfully go. The method adopted in this case presents a clear case of attempted boycotting, both primary and secondary. The purpose of a secondary boycott is to bring to bear a duress upon the customers of the person under attack by threatening them directly or indirectly with a boycott if they persist in trading with such person. One evident purpose of maintaining a picket rather than to display mere banners upon standards is to make observation and discovery of the identity of the persons who persist in trading with the plaintiff in defiance of defendant's warning. This is the impression naturally created upon the minds of customers. That some of the plaintiffs were thus intimidated in this case is shown.

[2] The law puts no limit upon the right of defendant to exercise fair persuasion through publicity, but it cannot countenance any display that is the equivalent of force and intimidation, or of a disturbance of the peace, or of aggressive interference with the right of peaceful ingress and egress to and from the plaintiff's shop. Force threatened is the equivalent of force exercised, because it amounts to intimidation and duress in either event. Aggressive picketing has been quite uniformly denounced by the courts, including the United States Supreme Court. Such court has held that “peaceful picketing” is a contradiction in terms. Truax v. Corrigan, 257 U. S. 312, 42 Sup. Ct. 124, 66 L. Ed. 254. Picketing is usually an invitation to violence. Where it is persisted in with a declared purpose to continue until its victim is destroyed, it is a challenge to violence of the most effective kind. It is not in normal human nature to submit to it except under the duress of superior force. The following excerpts from some of the authorities may be deemed as a sufficient discussion of the state of the law on this subject:

“Yet they [the courts] have very generally condemned these combinations usually called boycotts, which are formed for the purpose of interfering, otherwise than by lawful competition, with the business affairs of others, and depriving them, by means of threats and intimidation, of the right to conduct the business in which they happen to be engaged according to the dictates of their own judgments. * * * The members of the combination undertook to prescribe the manner in which the plaintiff company should manufacture barrels and casks, and to enforce obedience to its orders by a species of intimidation, which is no less harmful than actual violence, and which usually ends in violence. The combination amounted, therefore, to a conspiracy to wrongfully deprive the plaintiff of its right to manage its business according to the dictates of its own judgment.” Hopkins v. Oxley Stave Co., 83 Fed. 912, 28 C. C. A. 99.

“They were endeavoring to compel the complainants to submit to their dictation by depriving the complainants of their legal right to employ such laborers as they might choose. If there is a combination to injure a person because he refuses to comply with some demand where he has a legal right to refuse, there is no way of classifying acts in furtherance of such purpose as competition. The acts alleged in the bill were directed primarily against the complainants for the purpose of doing them harm, and that sort of action is not lawful competition. * * * This is not the case of one laborer seeking to obtain the place of another by offering better services or better terms, which would be competition, nor the case of an employer hiring one laborer away from another because he desires the services of such laborer; but there were offers to pay money and transportation and to maintain laborers in idleness, for which defendants would receive nothing, and injury...