Missouri Cafeteria v. McVey

• Decision Date: 08 October 1951
• Docket Number: No. 41867,41867
• Citation: Missouri Cafeteria v. McVey, 242 S.W.2d 549, 362 Mo. 583 (Mo. 1951)
• Parties: , 28 L.R.R.M. (BNA) 2170, 20 Lab.Cas. P 66,380 MISSOURI CAFETERIA, Inc., et al. v. McVEY et al.
• Court: Missouri Supreme Court

Page 549

242 S.W.2d 549

362 Mo. 583, 28 L.R.R.M. (BNA) 2170,

20 Lab.Cas. P 66,380

MISSOURI CAFETERIA, Inc., et al. v. McVEY et al.

No. 41867.

Supreme Court of Missouri, En Banc.

Oct. 8, 1951.

John R. Stockham, Roscoe Anderson and William R. Gilbert, all of St. Louis, Anderson, Gilbert, Wolfort, Allen & Bierman, St. Louis, of counsel, for plaintiffs-appellants.

Bartley & Bartley, St. Louis, for respondents Jesse K. Keller and Joseph Brown.

Wiley, Craig & Armbruster, St. Louis, for respondents Howard McVey and Patrick J. Burke.

Claude W. McElwee, St. Louis, for respondents Kitty Amsler, Ethel Taylor and Joseph Celeslie.

ELLISON, Chief Justice.

The plaintiff-appellants are two Missouri corporations under the same management, one named Missouri Cafeteria, Inc., and the other Miss Hulling's Cafeteria, Inc. Each operates a restaurant and bakery shop on a non-union basis in St. Louis known as 'Miss Hulling's', their respective locations being 1103 Locust Street and 725 Olive Street. The defendant-respondents [except Burke] are officers and agents of the Hotel & Restaurant Employees and Bartenders International Union, A. F. of L., or the subordinate local unions thereof sometimes called the 'Waitresses Local' and the 'Cooks Local.' Defendant McVey was the president of the St. Louis Local' Joint Executive Board of said International Union. Other defendants were officers of said locals and two were also officers of said Joint Executive Board. Defendant Burke was an officer of another union sometimes called the Milkwagon Drivers, and was assisting the other defendants.

Plaintiffs brought this suit to enjoin an alleged conspiracy between the defendants charged to be in violation of the common law and the Missouri anti-trust laws, which included picketing claimed to be illegal. At the close of plaintiffs' case, the defendants' motion to dismiss was sustained and a judgment entered against plaintiffs, from which they appealed. Our appellate jurisdiction is invoked on the ground that constitutional questions are involved under the First, Fifth and Fourteenth Amendments, Const.U.S., and Sec's 2, 8, 9 and 10, Art. I, Const.Mo.1945. Respondents concede such issues are in the case. We have reached the conclusion that the plaintiffs' evidence did not establish the right to an injunction against picketing at the time of the trial but did show that defendants had been engaged in an illegal boycott before and when the suit was filed, and therefore the judgment dismissing plaintiffs' action should be set aside and the case remanded for further proceedings.

When plaintiffs refused to enter into a contract with the union, defendants set up pickets at the customers' entrance and also at the service entrance of both restaurants, the pickets at the latter entrance being aimed at union truck drivers of other employers making deliveries of supplies. On the first day the signs carried by the pickets had the false statement that the pickets were 'on strike', or the charge that the cafeteria was 'unfair', which is claimed to be false. Thereafter, both before and after the suit was filed, the signs carried only the true statement: 'This Cafeteria is Non-Union.'

On October 17, 1949, the date the picket line was set up, defendant Burke threatened an official of a dairy company that supplied milk to plaintiffs that the dairy plant would be closed if any deliveries were made to plaintiffs. For a period of about nine or ten days said dairy company made no deliveries to plaintiffs, including a refusal to deliver milk to a truck sent by plaintiffs to the dairy plant. Another dairy company made a similar refusal, and the cafeterias were without milk for that period. On October 27, 1949, two days after suit was filed, a stipulation was entered into governing the conduct of defendants pending the hearing on the merits. This stipulation provided that no demands or requests would be made against suppliers not to sell or deliver to plaintiffs and that no threats or reprisals would be made against such suppliers. Thereafter, plaintiffs were able to pick up milk at the dairies with their own truck, but the dairies' truck drivers would not run the picket line to make deliveries as had previously been done.

Defendant McVey, a few days before suit was filed, threatened plaintiffs' regular egg supplier with heavy loss if he made any more deliveries to plaintiffs, and he agreed not to do so. After the stipulation was signed six days later, he made deliveries to plaintiffs' truck.

Cumulative, but less direct, evidence of similar action against other suppliers was rejected, plaintiffs claiming error in such rejection. Copies of minutes of the Joint Executive Board afford further evidence that defendants acted together for a common purpose. After October 27, 1949, the date of the stipulation, union truck drivers refused to cross the picket lines and most suppliers did not make deliveries into the cafeterias, although a few made curb deliveries. But plaintiffs, with minor exceptions, and at considerable expense and inconvenience, were able to pick up in their own truck the supplies required for the operation of their cafeterias.

The picketing must be regarded as substantially peaceful. The general pattern was a single picket at each entrance. Plaintiffs claim that the following isolated incidents rendered the picketing non-peaceful; intervention by the police on one occasion to prevent possible violence when tempers had flared up and a crowd had gathered; a picket being joined by several allies, who may or may not have been reserve pickets, in a peaceful, though pungent, argument with a truck driver who ran the picket line; the use of the word 'scab' on one occasion; a disrespectful remark concerning the circuit court; a warning to a truck driver that he might get into trouble with his union if he ran the picket line (presumably this 'trouble' did not mean physical violence, but merely that he would be charged with union disloyalty or possibly fined for crossing the picket line). Under the Federal decisions which will be discussed later, these incidents fall short of what is required to forfeit constitutional rights of free speech so as to justify an injunction against picketing.

The stipulation provided the pickets would not suggest to any delivery man crossing a picket line that he was or might be violating a rule or by-law of his own union by so doing. This clause was not complied with by defendants. Union truck drivers who has been notified of the stipulation and thought they could properly cross the picket line were told a strike was on; that they might get in trouble with their union; that they were 'a hell of a union man' to run the picket line; or to call up their business agent to see if they had the right to cross the line. However, this did not transgress peaceful persuasion under the decisions hereinafter cited.

On the day the stipulation was filed defendants also filed a written 'renunciation' in which they renounced any intention of being guilty of any conduct in the future which would not conform in substance to the standards set in the stipulation. Both included elimination of the words 'on strike' or 'unfair' from their signs and from verbal statements of pickets. This renunciation was filed in the case.

If we ignore the first ten days, including eight days before the suit was filed, then the trial court was clearly right in dismissing the petition. As to the period subsequent to October 27, 1949, the date of the stipulation, the case should be ruled by Caldwell v. Anderson, 357 Mo. 1199, 1205, 212 S.W.2d 784, 787(3). In that case defendants were seeking to force a non-union building firm to sign a closed shop contract. They set up a picket line stating that plaintiffs were 'unfair'. Union truck drivers would not cross it. So plaintiffs were required to do their own hauling of building supplies and were thereby subjected to much inconvenience and some delay. Gas and electricity could not be installed in the houses until after they were sold, the pickets being then withdrawn. This was held to be legal picketing for a lawful purpose. The only added factors in the present case [aside from the conduct during the first ten days] were the arguments with truck drivers mentioned in the third preceding paragraph.

Merely verbally reminding a union truck driver of what he already knows is an exercise of the right of free speech through peaceful persuasion. Once it is conceded that under the circumstances of this case and the Caldwell case a picket line aimed at preventing deliveries of supplies by union truck drivers is legal, the added factor of the use of free speech by the pickets does not make the picket line illegal.

A single isolated false statement to a truck driver that the pickets were on strike would not justify an injunction against peaceful picketing. Nor would the claimed isolated acts of intimidation previously referred to. In Cafeteria Employees Union v. Angelos, 320 U.S. 293, 296, 64 S.Ct. 126, 88 L.Ed. 58, the plaintiffs were restaurant proprietors and the defendant union officials sought to compel to employ union labor through picketing, including charges that they were 'unfair'. The United States Supreme Court held that the right to free speech in the future cannot be forfeited because of disassociated acts of past violence, and still less because of isolated incidents of abuse falling far short of violence. The injunctions of the state court were held to violate the 14th Amendment. On the other hand in Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 291-295, 61 S.Ct. 552, 85 L.Ed. 836, where the strikers were guilty of repeated acts of violence injunctive relief was granted to the employer against the Union.

The case of Fred Wolferman, Inc. v. Root, 356 Mo. 976, 204 S.W.2d 733, 174 A.L.R. 585, where a picket line aimed at truck drivers of suppliers was enjoined, is not in point. The...