Gazzam v. Building Service Employees Intern. Union, Local 262, 30198.

• Citation: 29 Wn.2d 488,188 P.2d 97
• Decision Date: 22 December 1947
• Docket Number: 30198.
• Parties: GAZZAM v. BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 262, et al.
• Court: United States State Supreme Court of Washington

188 P.2d 97

29 Wn.2d 488

GAZZAM v. BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 262, et al.

No. 30198.

Supreme Court of Washington, En Banc.

December 22, 1947

Rehearing Denied March 26, 1948.

action by W. L. Gazzam against the Building Service Employees International Union, Local 262, and others for damages suffered as the result of picketing by defendant union and an injunction against placing plaintiff on the union's unfair list. From a judgment of dismissal, plaintiff appeals.

Reversed with instructions.

MILLARD and BEALS, JJ., MALLERY C.J., and ROBINSON, J., dissenting.

Appeal from Superior Court, Kitsap County; H. G. Sutton, Judge.

Theodore S. Turner, of Seattle, for appellant.

L Presley Gill, of Seattle, for respondents.

SIMPSON Justice.

Plaintiff instituted this action for the purpose of securing a judgment for damages suffered by him as a result of picketing by defendant union. Also for the purpose of securing an injunction prohibiting the union from placing him on the unfair list.

The cause was tried to the court sitting without a jury. After plaintiff had introduced his evidence, the court granted a motion for nonsuit, and dismissed the action.

Plaintiff has appealed to this court, and in so doing urges that the trial court erred in sustaining the defendants' challenge to the sufficiency of the evidence, and in entering judgment for defendants.

We summarize the essential facts as follows: Appellant is the owner of the Enetai Inn, a hotel situated in the city of Bremerton. The hotel has one hundred rooms, and seven cottages devoted for the most part to the accommodation of transient guests. During the month of May, and for some time prior thereto, appellant employed about fifteen persons consisting of an engineer, janitor, bell boys, clerks, and a housekeeper. None of the employees belonged to respondent union. There was no dispute between appellant and his employees regarding wages, hours, or conditions of employment.

Just prior to May 1, 1946, respondents William Morganson, and Charles Meyer, as representatives of respondent union, asked appellant if he was agreeable to making a contract with the union. As testified to by Mr. Morganson, he and Mr. Meyer insisted that the contract with the union should be such as would require all of the employees to join the union. Appellant stated that his answer would depend upon the action of his employees. Appellant then went to Los Angeles for a short visit, and gave the union representatives permission to talk to the employees of the hotel. Upon his return to Bremerton, he met Meyer, who again requested that appellant sign a contract with the union. Appellant answered, 'it is entirely up to my employees and you would have to consult then about that and see what the decision was.'

May 2 1946, appellant received a letter from the Central Labor Council of Bremerton, which read:

'This Council has been requested by Building Service Employees Local No. 262 to place your hotel on the 'We do not patronize' list.

'Before acceding to a request of this kind, it is the policy of the Council to call a meeting of both parties and attempt to arrange a settlement; accordingly such a meeting has been called for Tuesday, May 7th at 7-30 P. M. in the office of the Council, upstairs in the old city dock.

'Please be present or have a representative attend, as failure to attend will be construed to mean that you do not wish to bargain collectively with Organized Labor.'

Appellant did not attend that meeting in person, but was represented by his attorney.

Appellant, at the request of respondent union, arranged a conference between the representatives of the union and his employees for May 10. He was not present at the meeting. However, the representatives of the union talked to the employees, explained to them the benefits to be derived from becoming union members, and asked them to join. The employees indicated that they did not desire to become members of the union. Following the meeting, appellant received a letter from the Central Labor Council, which was as follows:

'By action of the Central Labor Council, in regular meeting, Monday, May 27th your hotel, the Enetai Inn, was placed on the 'We do not patronize' list.'

May 31, 1946, which was after the receipt of the last mentioned letter, appellant's place of business was peacefully picketed by respondent union. The picketing continued until July 20, 1946. Shortly after the picketing started, a laundry which had cared for appellant's needs, and whose employees belonged to the union, refused to work for appellant. Appellant then attempted without success to do his own laundry. His position at that time is best expressed in the following letter, written by his attorney to Mr. John C. Merkel, attorney for the union: 'Mr. Gazzam has authorized me to say that we are willing to continue negotiations with the representatives of Building Service Employees Local No. 262 for the purpose of reaching some satisfactory solution to the present controversy other than entering into a contract of the type which Mr. Meyers and yourself have thus far proposed. Mr. Gazzam is unwilling to negotiate with the Union concerning such a contract for the reason that this type of contract, as you, Mr. Meyers, and Mr. Morganson have all explained it, would force all the employees of the Enetai Inn to choose between joining the Union and being discharged, and these employees have already expressed their wish not to join this Union.'

According to the evidence of Mr. Morganson, shortly after June 22, 1946, respondent union's agents submitted another proposed agreement to appellant that read: 'It is agreed by both parties hereto that the regular employees now working at the hotel shall not as a condition of continued employment be required to become members of the union. It is further agreed that any new employees who are hired to replace regular employees who have lift through normal turnover or discharge shall as a condition of employment become members of the union. New employees shall be required to become members of the union within fifteen days after employment. It is understood that the employer shall have the voluntary right to either call the union for new employees or hire anyone whom he desires the only factor being that a condition of employment of new employees shall be that they come into the union within fifteen days. It is also agreed that the union shall be the bargaining agent for both Union and non-union employees and that any wages hours and working conditions established for Union employees shall be paid also to the non-union employees.'

The evidence submitted established without doubt the fact that Mr. Gazzam had suffered damages because of the picketing by respondent union. Appellant takes the position that the sole purpose of the picketing, and listing as unfair, was to compel him to coerce his employees to join the union against their will. Further, that coercion is contrary to the public policy of the state of Washington, as declared in the Labor disputes act, chapter 7, Laws of 1933, Ex.Sess., Rem.Rev.Stat. (Sup.) § 7612-2. That declaration of the policy reads as follows: 'Whereas, Under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protections; * * *'.

Respondents maintain that picketing by a union which does not include within its membership any employees is legal. They base their contention upon the right of free speech as guaranteed by the constitution of the United States. Amendment 1.

Discrepancies creep into our decisions from time to time, and it is frequently necessary that a review be had of our opinions, at which time the cases may be analyzed, approved, or overruled, to the end that the law be made certain, so that individuals and organizations, and members of the bench and bar, may be advised of the holdings of this court. In cases like the one at bar, organized, non-organized labor, and employers, are entitled to definite decisions regarding their rights and liabilities, to the end that they may conduct their affairs as law-abiding citizens, without danger to themselves or their property. To that end we shall call attention to our most recent decisions.

The facts in Safeway Stores, Inc., v. Retail Clerks' Union, Local No. 148, 184 Wash. 322, 51 P.2d 372 decided in 1935, indicate that in order to get the employees of the Safeway stores to join the retail clerks' union, the latter marched pickets to and fro in front of the stores. Thereafter Safeway Stores instituted an action to permanently enjoin the union from such picketing, and also to collect damages for injury to its business as a result of the picketing. A permanent injunction was granted and damages allowed. It was also held that the 1933 labor disputes act was inapplicable to non-employee picketers, the term 'labor dispute' not having been intended to include the...