Fred Wolferman, Inc. v. Root

• Citation: 204 S.W.2d 733,356 Mo. 976
• Decision Date: 08 September 1947
• Docket Number: 40366
• Parties: Fred Wolferman, Inc., a Corporation, Appellant, v. Howard P. Root, and Ray Thomas, Individually, and as Business Agent and President, respectively, and as Representative Members of Amalgamated Meat Cutters and Butcher Workmen of America, Local Union No. 576, and Other Unnamed Members of Said Union
• Court: Missouri Supreme Court

204 S.W.2d 733

356 Mo. 976

Fred Wolferman, Inc., a Corporation, Appellant, v. Howard P. Root, and Ray Thomas, Individually, and as Business Agent and President, respectively, and as Representative Members of Amalgamated Meat Cutters and Butcher Workmen of America, Local Union No. 576, and Other Unnamed Members of Said Union

No. 40366

Supreme Court of Missouri

September 8, 1947

Rehearing Denied October 13, 1947.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Reversed and remanded (with directions).

R B. Caldwell, Blatchford Downing, Stanley Garrity and John W. Oliver for appellants.

(1) The purpose and object of defendants' picketing was unlawful in that it sought to coerce and to force plaintiff to violate the National Labor Relations Act. Secs. 8(2), 8(3), 8(5) and 9(a) of the National Labor Relations Act, 28 U.S.C.A. secs. 158(2), 158(3), 158(5), 159(a); National Labor Relations Board v. Electric Vacuum Cleaner Co., 315 U.S. 685, 86 L.Ed. 1120. (2) Defendants did not in fact "renounce" their intention of picketing for this unlawful purpose and object, as held by the trial court, nor can it be said that any such assumed "renunciation" has any effect under the law. Hughes v. Motion Picture Machine Operators, 282 Mo. 304, 221 S.W. 95; Baush Machine Tool Co. v. Hill, 231 Mass. 30, 120 N.E. 188. (3) Defendants, under the evidence, intend to picket for a purpose which is clearly unlawful. The use of an otherwise lawful means to accomplish an unlawful purpose is enjoinable. Keith Theatre v. Vachan, 134 Me. 392, 187 A. 692. (4) The trial court erred in determining that any decree that would restrict defendants' picketing in any manner would infringe defendants' freedom of speech. Recent Supreme Court of the United States' cases do not so hold. Thornhill v. Alabama, 310 U.S. 88, 84 L.Ed. 1093; Carlson v. California, 310 U.S. 106, 84 L.Ed. 1104; American Federation of Labor v. Swing, 312 U.S. 321, 85 L.Ed. 855; Cafeteria Employees Union v. Angelos, 320 U.S. 293, 88 L.Ed. 59. (5) The exercise of free speech is not an absolute right, but is subject to many reasonable state restrictions. Chaplinsky v. New Hampshire, 315 U.S. 568, 86 L.Ed. 1031; Fox v. Washington, 236 U.S. 273, 59 L.Ed. 573; Schenck v. United States, 249 U.S. 47, 63 L.Ed. 470; Frohwerk v. United States, 249 U.S. 202, 63 L.Ed. 560; Zechariah Chafee, Jr., "Free Speech in the United States" (1941). (6) Picketing is more than free speech and therefore is subject to greater restrictions than even free speech standing alone. Bakery & Pastry Drivers & Helpers Local 802 v. Wohl, 315 U.S. 769, 86 L.Ed. 1178; Carpenters & Joiners Union v. Ritter's Cafe, 315 U.S. 722, 86 L.Ed. 1143; Senn v. Tile Layers Protective Union, 301 U.S. 468, 81 L.Ed. 1229; Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 85 L.Ed. 836; American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 66 L.Ed. 189; Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 439, 55 L.Ed. 797; Thomas v. Collins, 323 U.S. 516, 323 L.Ed. 430; Natl. Labor Relations Board v. Virginia Electric Power Co., 314 U.S. 469, 319 U.S. 533 (two separate cases). (7) The law of Missouri prohibits even peaceful picketing for an unlawful purpose. Its restrictions of picketing are constitutionally imposed. Secs. 775, 794 of the American Law Institute Restatement of the Law of Torts and the Missouri Annotations thereto; Frankfurter and Greene, "The Labor Injunction." (8) Missouri has long recognized the kinship between peaceful picketing and freedom of speech. Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133, 67 S.W. 391; City of St. Louis v. Glover, 210 Mo. 502, 109 S.W. 30; In re Heffron, 179 Mo.App. 638, 162 S.W. 250; Root v. Anderson, 207 S.W. 255; Church Shoe Co. v. Turner, 218 Mo.App. 516, 279 S.W. 232; Ex parte Diemer v. Weiss, 343 Mo. 626, 122 S.W.2d 922. (9) Concerted union action, both under the common law and under Section 8301, R.S. 1939, which affects a restraint of trade, is unlawful and picketing or other union action that has as its purpose such a restraint is an unlawful purpose and must be enjoined, even if the means used to accomplish that purpose is peaceful. Picketing for unlawful purposes is not justified and is subject to injunction in equity. Sec. 8301, R.S. 1939; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 114 S.W. 997; Rogers v. Poteet, 355 Mo. 986, 199 S.W.2d 378; Hughes v. Motion Picture Operators, 282 Mo. 304, 221 S.W. 95; Purcell v. Journeymen Barbers & Beauticians International Union of America, Local No. 192-A, 234 Mo.App. 843, 133 S.W.2d 662; Clarkson v. Laiblan, 178 Mo.App. 708, 161 S.W. 660; Steward Land Co. v. Perkins, 290 Mo. 194, 234 S.W. 653; Crescent Planing Mill Co. v. Mueller, 243 Mo.App. 1243, 123 S.W.2d 193; Schmidt Planing Mill v. Mueller, 154 S.W.2d 610. (10) Courts applying the same equitable principles that are applied in Missouri issue injunctions in factual situations comparable to that involved in this case. Silkworth v. Local No. 575 of American Federation of Labor, 309 Mich. 746, 16 N.W.2d 145; Retail Clerks' Union No. 1403, A.F. of L. v. Wisconsin Employment Relations Board, 242 Wis. 21, 6 N.W.2d 698; R.H. White Co. v. Murphy, 310 Mass. 510, 38 N.E.2d 685; Fashioncraft, Inc., v. Halpern, 313 Mass. 385, 48 N.E.2d 1; Wisconsin Employment Relations Board v. Milk & Ice Cream Drivers & Dairy Employees Union, Local No. 225, 238 Wis. 379, 299 N.W. 31, certiorari denied, 316 U.S. 668; Burlington Transportation Co. v. Hathaway, 234 Iowa 135, 12 N.W.2d 167; Swenson v. Seattle Central Labor Council, 12 CCH Labor Cases, par. 63,610; Pennekamp v. Florida, 90 L.Ed. Adv. Op. 1001; Markham & Callow, Inc., v. International Woodworkers of America, etc., 170 Ore. 517, 135 P.2d 727; Opera on Tour, Inc., v. Weber, 285 N.Y. 348, 286 N.Y. 565, 35 N.E.2d 920, certiorari denied, 314 U.S. 615, 314 U.S. 716; Lafayette Dramatic Productions v. Ferentz, 305 Mich. 193, 9 N.W.2d 57; Harper v. Brennan, 311 Mich. 489, 18 N.W.2d 905. (11) Picketing that would have the effect of stopping deliveries to plaintiff's stores should be enjoined. This does no more than separate the coercive effect of a picket line from defendants' right of free speech. A picket line is a force apart from words and is not protected as usual speech. Joe Dan Market v. Wentz 223 Mo.App. 772, 205 S.W.2d 772; Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 85 L.Ed. 836; Steiner v. Long Beach Local No. 128, 19 Cal.2d 676, 123 P.2d 20; Riggs v. Tucker Duck & Rubber Co., 119 S.W.2d 507. (12) Plaintiff did not and does not seek to enjoin defendants from the mere exercise of a right of free speech. It does ask and is entitled under the law to have enjoined the conspiracy in restraint of its lawful trade that is affected by the very presence of the recognized picket line. Society of New York Hospital v. Hanson, 185 Misc. 937, 59 N.Y.S. (2d) 91; Dorchy v. Kansas, 272 U.S. 306, 71 L.Ed. 248; Thomas v. Collins, 323 U.S. 516, 89 L.Ed. 430.

Clif Langsdale for respondents.

Picketing which the appellants seek to enjoin is in furtherance of a lawful labor dispute and is an exercise of the right of free speech protected by the Fourteenth Amendment to the Constitution of the United States and by Section 8 of the Missouri Bill of Rights. 31 C.J. 45; Davis v. Hartwig, 94 S.W. 507; American Federation of Labor v. Swing, 61 S.Ct. 568; Thornhill v. Alabama, 60 S.Ct. 736; Park & Tilford Import Corp. v. International Brotherhood of Teamsters, etc., 65 P.2d 891; Senn v. Tile Layers' Protective Union, etc., 57 S.Ct. 857; American Foundries v. Tri-City Central Trades Council, 42 S.Ct. 72; Rogers v. Poteet, 199 S.W.2d 378; Yoerg Brewing Co. v. Brennan, 59 F.Supp. 625.

OPINION

Douglas, J.

Fred Wolferman, Inc., the plaintiff, operates four retail grocery and meat markets in Kansas City. It employs nineteen butchers, at least three of whom are union members. Plaintiff's other employees, including the truck drivers, belong to unions. Defendants Root and Thomas are the Business Agent and President, respectively, of the Amalgamated Meat Cutters and Butcher Workers of America, Local Union No. 576. They arranged a meeting to which plaintiff's butchers were invited for the purpose of inducing them to join the union. Fifteen of the nineteen butchers attended. They voted twelve to three against joining. Despite the result of the vote, defendants attempted to obtain from plaintiff a closed shop contract with their union. Defendants also demanded that plaintiff's executives use their influence to force their butchers into the union. Defendants threatened plaintiff that unless their demands were met they would cut off deliveries to and from plaintiff's stores, close their stores and put plaintiff out of business. There is testimony that defendants knew their demands were unlawful but told plaintiff "with a little support on our [plaintiff's] part, no doubt the boys could be persuaded to join." Plaintiff refused to sign the contract because defendants' union did not represent a majority of plaintiff's butchers and under the National Labor Relations Act plaintiff could not lawfully make the contract. Said act also prohibits plaintiff from encouraging its employees to join a particular union. Defendants concede plaintiff is subject to the act.

Upon plaintiff's refusal of defendants' demands defendants established a "recognized" picket line at all plaintiff's stores. The banner carried by the pickets incorrectly stated there was a strike, but there was no strike. A "recognized" picket line is one which has been sanctioned by the Central Trades Union, the Teamsters Joint Council, and the Building and Construction Trades Council. All labor unions of Kansas City respect a recognized picket line and its members will not cross it. As a result...