Ex parte Dilley, A-7575

• Decision Date: 13 April 1960
• Docket Number: No. A-7575,A-7575
• Citation: 334 S.W.2d 425,160 Tex. 522
• Parties: Ex parte DILLEY, Zea and Cooper.
• Court: Texas Supreme Court

Page 425

334 S.W.2d 425

160 Tex. 522

Ex parte DILLEY, Zea and Cooper.

No. A-7575.

Supreme Court of Texas.

April 13, 1960.

Mullinax, Wells, Morris & Mauzy, Dallas, for relator.

Clark, Reed & Clark, William L. Keller and Ramsey Clark, Dallas, for respondent.

SMITH, Justice.

This is an original habeas corpus proceeding brought by relators L. E. Dilley, William Zea, and Charles S. Cooper; Secretary, President, and Delegate, respectively, of the Dallas Building Trades Council, a labor organization (hereinafter referred to as the Council), the relators having been incarcerated under a commitment order issued pursuant to a judgment of contempt entered by the Judge of the 44th District Court of Dallas County, Texas, on November 9, 1959. The judgment decreed that the relators had violated a temporary injunction issued by that court on September 22, 1959 in a civil suit styled Dallas Plumbing Co. et al. v. Dallas Building and Construction Trades Council et al., No. 46,957B, which had enjoined the Council and certain of its constituent labor unions and persons acting for such organizations from 'picketing at or near the * * * Food Warehouse and Distribution center for Wyatt Food Stores, or any other plants, locations, * * * or places of business at which Plaintiffs and their employees * * * are working and from in any manner attempting to disrupt Plaintiff's businesses, provided that this injunction is confined to picketing for the unlawful purposes disclosed by the record * * *, and is not to be construed to prevent peaceful picketing at proper places for lawful purposes, or other methods of publicizing any legitimate dispute which Defendants may have with Plaintiffs * * *.'

The facts out of which this controversy arose are these: On August 26, 1959 the Council by its Secretary L. F. Dilley, wrote a letter to Dallas Plumbing Company (hereinafter referred to as the Company), calling attention to the fact that the Company was paying its construction employees 'sub-standard wages', substaintially below those prevailing in the area for union workmen doing the same type of work, and stating that such 'low' wages were a threat to the 'wages that this Council is dedicated to protect'. While it was stated that the Council did not seek employment or denial of employment to any person on account of memebership or nonmembership in any labor organization, and that they sought no contract or arrangement proscribed by Article 5207a or Articles 7426-7428 of Vernon's Texas Civil Statutes, they informed the Company that if it continued to 'undercut union wage conditions, * * *, this Council will be compelled to take all action lawfully available to make public your sub-standard wage conditions.' The Council, acting through the relators, soon thereafter caused picketing of the Company to commence at the construction site of the 'Wyatt Warehouse', the pickets walking in the public streets and carrying banners reading:

'Dallas Building and Construction Trades Council Protest Payment of Sub-Standard Wages by Dallas Plumbing Company. Help Us Maintain Union Wages.'

The Company et al. thereupon on September 8, 1959 filed suit in the 44th District Court of Dallas County, Texas for, inter alia, a temporary restraining order to prevent such picketing by the Council and certain named labor unions, alleging that the defendants were not employees of any of the plaintiffs; the Company had no labor dispute and knew of no attempt by anyone to organize or represent its employees; the picketing was the result of a conspiracy designed to prevent plaintiffs from freely pursuing their business, and to cause all construction on the warehouse center to stop; employees of plaintiffs other than the Company (subcontractors employing only union labor) have refused to report to work, and that work has virtually stopped; that each of the plaintiffs have been damaged monetarily and praying for temporary restraint of defendants.

The District Court on September 28, 1959, after a hearing at which relators were present, issued the temporary injunction previously mentioned, in which the court found that no controversy existed between plaintiffs and any of its employees; that the Council or other defendants represented none of plaintiffs' employees, and did not seek or intend to organize or so represent them, or to encourage them to strike, and that:

'* * * said picketing was for the sole purpose of interrupting and interfering with the construction work at the Wyatt food warehouse and distribution center and for the purpose of forcing Dallas Plumbing Company to pay its employees and the employees of said company to accept wages determined by the Defendants and in their sole discretion, without the advice, participation or consent of the employees of Dallas Plumbing Company, and without seeking to organize or represent said employees, and constitutes part of a course of conduct by which the Defendants are seeking to impose arbitrary, fixed wage scales and working conditions throughout the building and construction industry of Dallas County without the advice, consent or participation of the employees affected, and said picketing constituted a wrongful and illegal interference with the rights of Plaintiffs and others, an actionable conspiracy in restraint of trade, and violation of the anti-trust laws of the State of Texas, Articles 7426, 7428, and 7429 of the Revised Civil Statutes of the State of Texas, and Articles 1632 and 1634 of the Penal Code of the State of Texas, and further, violates the public policy of the State of Texas. * * *'

The Council's response to the show cause order asserted that the temporary restraining order should be dissolved and no temporary injunction issued for the reason that the Congress of the United States had pre-empted jurisdiction over activities of this nature, the plaintiffs being admittedly engaged in businesses affecting interstate commerce, thereby placing potential jurisdiction in the National Labor Relations Board; that the activity sought to be enjoined was protected activity under § 7 of the Labor Management Relations Act, 29 U.S.C.A. § 157, and within the defendant's right of free speech as guaranteed by the Federal and State Constitutions; and that there was a labor dispute within the meaning of the National Labor Management Relations Act between plaintiffs and defendants entitling it to peacefully picket. The motion to dissolve the temporary restraining order for lack of jurisdiction was overruled by the injunction order.

After issuance of the temporary injunction, the defendants, including the relators, sought and obtained legal advice in reference to the temporary injunction, and acting thereon the Executive Board of the Council passed a motion that the Council would picket the Company at the Wyatt warehouse. It was also agreed to picket the headquarters of the Company in Dallas.

Prior to any post-injunctive picketing, however, the Council sent a letter to the Company, in which it was stated that if the Council was not assured prior to October 12, 1959 that the Company would raise its pay standards, that 'we intend to continue picketing and other lawful protest until such time as you cease undercutting our wage scales.' It was also stated that their activities would be for the sole purpose of advertising that the wage scales were below their standard; that 'they will not be with any purpose of interrupting and interfering with construction * * *. Nor will they be for any purpose of requiring any employee to accept any wage which is unsatisfactory to him', and that the Council sought no employment or discharge of any person by reason of membership or nonmenbership in a labor union, nor any contract. A reply was sent by the Company to the Council in which the Council was apprised of the fact that the Company would stand on the rights given it by the injunction and would hold the Council fully responsible for all the consequences of its acts. Omitting further communications resulting in a one-day delay, the relators on October 13, 1959 re-commenced picketing, relator Dilley picketing on a public road immediately adjacent to the Wyatt construction work, and relators Zea and Cooper picketing on a public sidewalk adjacent to the Company's office and headquarters at 2425 McKinney Street, each of the relators carrying a banner reading as follows:

'Dallas Building and Construction Trades Council Protests Payment of Sub-Standard Wages by Dallas Plumbing Company. Help Us Maintain Union Wages. We Are Picketing Only Dallas Plumbing Company.'

The same day the attorney representing the Company filed an 'Affidavit Showing Violation of Temporary Injunction' in reference to the relators, praying that relators be held in contempt of the temporary injunction mentioned above. The 44th District Court issued a show cause order, and relators filed its response, asserting that: (1) said District Court had no jurisdiction as the matters are to be regulated by the Labor Management Relations Act of 1947, 29 U.S.C.A. § 151 et seq., and the Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 519, passed September 14, 1959; (2) application of the injunction to relators would deny to them their rights of free speech as guaranteed by the First and Fourteenth Amendments of the Federal Constitution, and Article 1, § 8, of the Texas Constitution, Vernon's Ann.St.; (3) that the injunction was void in that it did not sufficiently or clearly apprise the relators of that which they were prohibited from doing; and (4) such picketing was 'peaceful picketing', and expressly permitted by the injunction.

Hearing was held on November 2, 1959, and on November 9, 1959 the judgment of contempt was issued, adjudging that the relators individually picketed the Company as alleged, and that the pickets were authorized by the Council; the Mason's and Plasterer's International Union, Local Union No. 5; the International Association of...