Jensen v. Reno Central Trades & Labor Council

• Decision Date: 13 April 1951
• Docket Number: No. 3638,3638
• Parties: JENSEN et al. v. RENO CENTRAL TRADES & LABOR COUNCIL et al.
• Court: Nevada Supreme Court

Page 908

229 P.2d 908

68 Nev. 269

JENSEN et al. v. RENO CENTRAL TRADES & LABOR COUNCIL et al.

No. 3638.

Supreme Court of Nevada.

April 13, 1951.

Ernest S. Brown, Reno, for appellants.

McCarran & Wedge, of Reno, Gilbert, Nissen & Irvin, of Los Angeles, Cal., and James F. Calliano, of Oakland, Cal., for respondents.

MERRILL, Justice.

This is an appeal from judgment of the trial court dismissing the action of plaintiff below (upon sustaining defendants' demurrer to plaintiffs' amended complaint) and from orders denying plaintiffs' motion for temporary injunction and dissolving a restraining order theretofore issued on behalf of plaintiffs. The question involved is defendants' right peacefully to picket an establishment for the purpose of securing a closed shop contract with the proprietor against the desire of his employees.

At the outset, we deem it wise to delineate the scope of this opinion. This court has heretofore held in State ex rel. Culinary Workers Union, Local No. 226 v. Eighth Judicial District Court, Nev., 207 P.2d 990, 996, and on petition for rehearing in Nev., 210 P.2d 454, that such picketing was lawful. (That case involved the White Cross Drug Company of Las Vegas and for convenience will be referred to in this opinion as the White Cross Drug case.) It is contended by appellants that the decision is not controlling in the matter before us and this is the question to which we must address ourselves in this opinion. Since submission of this matter to this court the legislature of the State of Nevada has amended the act which was the principal point of discussion in the White Cross Drug case; and that opinion has, thus, to the effective extent of that legislation, been superseded by legislative act. ¹ In this opinion, therefore, we are confined in our determinations to the state of the law prior to that enactment. In no wise can this opinion be regarded as establishing the law of this state under the new statute.

First, then, as to the facts: appellants were plaintiffs below. Appellant Jensen is proprietor to the Lake Street Pharmacy in Reno. The remaining appellants are his employees. Respondents are labor unions and union officials. On May 9, 1950, this suit was brought to secure an injunction against picketing and boycotting of the Lake Street Pharmacy and for $40,000 damages sustained by such activities.

This appeal comes to us on a demurrer to the amended complaint of plaintiffs and in our analysis of the factual situation before us, we are thus confined to the allegations there made. The allegations are not overly helpful, being extremely general in terms and dealing largely in ultimate facts or conclusions. Specific acts and occurrences, which were available to us through testimony in the White Cross Drug case, are largely absent in the case at bar.

It appears, however, that appellant employees are not members of any union or labor organization and have no desire to join any such organization; that there is no dispute between the employees and their employer, appellant Jensen; that defendants, desiring unionization of the employees, demanded of Jensen execution of a closed shop contract; that upon his refusal, defendants on Nov. 29, 1949, established a picket line and boycott of the establishment.

From the allegations of the complaint, we are unable to ascertain any fact which distinguishes the case at bar from the White Cross Drug case. ² If the cases are to be differentiated it is by the manner in which the facts are presented in the case at bar and the conclusions in which they are encompassed. ³ Factually, however, the cases do not appear to be distinguishable. If the picketing and boycotting are here, for any reason or upon any legal basis, to be regarded as unlawful, it must necessarily follow that the picketing and boycotting in the White Cross Drug case for the same reason and upon the same basis were likewise unlawful, and that this court was in error in holding otherwise. The question, therefore, is not whether an earlier authority may be distinguished, but whether that holding should now be reconsidered.

Appeallants first contend that the White Cross Drug case is not here controlling in that the opinion there concerned itself exclusively with Sec. 10473, N.C.L.1929. It is conceded by appellants on the authority of that case that peaceful picketing of the sort here involved is not rendered unlawful by that section. It is contended, however, that under Secs. 2825.31 and 2825.32 N.C.L.1929 Supp. 1931-1941 dealing with the right freely to select representatives for collective bargaining, and Sec. 10061, N.C.L.1929 dealing with criminal conspiracy, the picketing and boycotting in the case at bar are for an unlawful objective. The allegations of the complaint, as indicated earlier in this opinion, are couched in language clearly tying the activities of respondents and their purpose to these sections.

It is true that the two White Cross Drug opinions (on appeal and on petition for rehearing) dealt with Sec. 10473 to an extent greatly overshadowing discussion of other statutory provisions. Such extensive discussion was justified in view of the fact that that section was the one most apparently in point. Full discussion was essential to an interpretation of that section if it was to be held that picketing for a closed shop was not thereby rendered unlawful.

This is not to say, however, that in rendering its opinions this court did not have in mind the sections now urged upon us. Those sections were also cited to this court in the White Cross Drug case. They were the subject of argument by counsel. They were mentioned in the first opinion of this court upon that case, both majority and dissenting. The pertinent portion of Sec. 2825.31 was quoted at length in a footnote to the dissenting opinion. The majority opinion, in referring to these sections, stated that neither of them could be relied upon to restrain peaceful picketing of the type there in question. The majority of the court had in mind these sections as well as Sec. 10473 when it stated in its opinion 'The picket line established by the Union in this case was both peaceful and lawful.'

It was held in Seibert v. United States ex rel. Harshman, 129 U.S. 192, 9 S.Ct. 271, 32 L.Ed. 645, where counsel sought to have the court reconsider its rulings and overrule a decision in a controlling case, that argument, however elaborate and forceful, which only presents over again reasons originally urged against that decision, does not justify the court in reconsidering its position and changing its conclusion.

Appellants contend, however, that the language used by this court in the White Cross Drug opinion relative to the sections here involved, is such that this court is not precluded from reconsidering the matter in the light of those statutes. That language was as follows: 'Section 2825.32 assuring the right to representation in collective bargaining negotiations, and Section 10061 of the N.C.L. dealing with criminal conspiracy, were cited to this court by respondents as making the acts of relators unlawful, but neither of these laws were strenuously urged in brief or oral argument. Neither of these laws can be relied upon to restrain peaceful picketing of the type here in question, and if they were to be so construed, such application would be an unconstitutional deprivation of the rights of speech and assembly.'

The lack of strenuous argument to which reference is made is not, in our view, sufficient to warrant reconsideration. That the lawfulness of the union activities and objectives under the sections in question was fully considered by the court is conclusively demonstrated by the dissenting opinion in its opening statement and footnote. See: Matthews v. Clark as quoted infra. There Mr. Justice Badt stated: 'I dissent. In my opinion the picketing was properly enjoined because its admitted objective was to compel a violation of the statutes of this state.' quoting at length the pertinent portion of Sec. 2825.31, as well as Sec. 10473. Mr. Justice Badt clearly intended to and did dissent not only upon the majority's construction of Sec. 10473, but upon its construction of Sec. 2825.31 as well.

In Michael v. Morey, 26 Md. 239, 90 Am.Dec. 106, the court states: 'Although this point may not have been as fully argued in the former case as in the present, yet it cannot be said that the decision just cited was obiter dictum, as the question was directly involved in the issues of law raised by the demurrer to the bill, and the mind of the court was directly drawn to and distinctly expressed upon the subject.'

Appellants next contend that reconsideration of our position in the White Cross Drug case is compelled by three decisions of the Supreme Court of the United States handed down since our opinion on petition for rehearing was rendered. These opinions are Hughes v. Superior Court of California, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985; International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local 309 v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 985; Building Service Employees International Union, Local 262 v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045.

The Hughes case sustained the California Supreme Court in upholding an injunction against picketing, the purpose of which was to secure proportional employment of Negroes and whites. The Hanke case sustained the Washington Supreme Court in upholding an injunction against picketing, the purpose of which was to compel the owner of an establishment operated without employees to adopt a union shop. The Gazzam case sustained the Washington Supreme Court in upholding an injunction against picketing, the purpose of which was to compel an employer to sign a contract requiring his employees to join a union, thus coercing their choice of collective bargaining representatives.

In no one of these cases, however, did the United States...