Moreland Theatres Corp. v. Portland Moving Picture Mach. Operators' Protective Union, Local No. 159

Decision Date21 June 1932
Citation140 Or. 35,12 P.2d 333
CourtOregon Supreme Court

In Banc.

Appeal from Circuit Court, Multnomah County; J. W. Knowles, Judge.

Separate suits by the Moreland Theatres Corporation, by Hugh McCredie doing business under the firm name and style of the Venetian Theatre, and by the Granada Theatre Corporation against the Portland Moving Picture Machine Operators' Protective Union, Local No. 159, and others. From adverse decrees plaintiffs appeal.

Reversed and rendered.

BELT J., dissenting.

Injunction against unlawful, though peaceful, picketing, did not violate defendant's constitutional rights of peaceable assembly free speech and free press.

John F. Logan and John W. Kaste, both of Portland, for appellants.

E. C. Bronaugh, Jr., and Wilber Henderson, both of Portland, or respondents.


Upon motion of the parties, these appeals by plaintiffs separately from decrees entered in three different suits have been consolidated in this court, and have been argued and submitted together. Although there is a different plaintiff in each suit, the relief prayed for and denied by the court below was an injunction to restrain the defendants from picketing theaters separately owned by plaintiffs. The defendants are the same in all suits. They are two voluntary, unincorporated labor organizations and their officers; the latter being sued both individually and as such officers. There is no substantial difference, however, in the issues made by the pleadings nor in the proofs adduced in support thereof, and hence our decisions must be the same in each case.

The evidence shows that up to the time of the final hearing in this court on March 23, 1932, from September 16, 1929, the defendants have caused three moving picture theaters separately owned and operated by plaintiffs in outlying districts in the city of Portland to be continuously picketed during all the time said theaters have been opened for business, the hours being from 7 p. m. to 11 p. m. on week days and from 2 p. m. to 11 p. m. on Sundays and holidays. This picketing consisted of one picket being posted at the entrance of each theater who patrolled back and forth in front of said entrance carrying a banner or sash bearing the inscription, "Unfair to organized labor." The evidence shows that such picketing has resulted in a loss of patronage to plaintiffs and in damage to their business.

The controversy between the plaintiffs and the defendants grew out of the following facts: Until some time in the spring or summer of 1929, each theater employed one union operator to operate its projection machines and paid him $45 per week, which was the union scale of wages for operators employed in theaters displaying, as plaintiffs were, silent pictures only. Desiring to change from silent to sound pictures, plaintiffs installed sound attachments or sound projection machines, the evidence does not show which, and thereafter displayed sound pictures. A rule of the defendant union provides that in the operation of sound picture machines two operators must be employed and be present in the projection booth at all times when the machines are being operated, and that each should receive $60 or slightly more per week. The rule, however, provides that the owner of the theater, but no other person, may take the place and do the work of one of such union operators, and when that is done he also must be in the booth at all times. For a while plaintiffs complied with this rule by employing one union operator at each theater, paying the union scale and working with him in the booth. This arrangement was not satisfactory to plaintiffs. They claimed that their business would not justify the employment of two operators, and offered to employ one union operator and pay the union scale if he would work alone. This proposed action, being contrary to the union rule, was, of course, refused, and this was followed by several conferences between plaintiffs and the officers of the union, and, no adjustment of the matter being reached, the picketing was immediately commenced and has been continued ever since.

Plaintiffs testified that the union operators voluntarily quit their employment, while defendants testified that the operators were discharged. However that may be, their places were all immediately filled by the employment of one nonunion operator in each theater. Since then the work of operating the machines has been done by one nonunion operator at each theater, and he has been paid $45 per week.

After these theaters had been picketed for about eight months, plaintiffs each filed a complaint praying for an injunction. The defendants appeared and filed answers in which they admitted that they had caused the picketing, and alleged in justification thereof the facts above stated. In addition thereto they alleged: "That on said 16th day of September, 1929, and continuing to the present time, there was and has been a dispute or controversy between plaintiff and the defendant, Moving Picture Operators' Protective Union, Local 159, involving the scale of wages to be paid by plaintiff to the operator employed at his said theater, and that said controversy was caused by and had its origin in plaintiff's arbitrary demand for a reduction in the wage scale from $60.00 per week to $45.00 per week, and by plaintiff's action in discharging said union operator as aforesaid."

Upon the trial, however, although not pleaded, some evidence was offered by defendants tending to show that some person claiming to have authority to represent plaintiffs entered into a contract with the defendant union No. 159, agreeing that these theaters should employ union operators only and abide by union rules. The authority of the supposed agent to bind plaintiffs and the validity of the agreement itself are disputed by plaintiffs. The contract, however, was offered in evidence, and is here for examination. Without considering the question of the validity of a contract to employ union labor to the exclusion of all other persons, we are of the opinion that the party contracting on behalf of plaintiffs had authority to contract for at least two of the plaintiffs, but the contract has long since expired, and, if it could be held to be a justification for the picketing when commenced, as to which we express no opinion, it can afford no justification at this time, nor could it at the time these cases were decided by the court below on March 6, 1931.

There is no evidence nor contention made that the picketing has not at all times been peaceable nor that it has at any time been accompanied with threat of physical injury or violence, and, because thereof, defendants contend that the immunity against the issuance of an injunction granted by section 49-901 to section 49-906, Oregon Code 1930, applies, and therefore the ruling of the court below denying injunctive relief to plaintiffs was proper. So far as applicable to this question, the statute provides:

"No restraining order or injunction shall be granted by any court of this state, or any judge or judges thereof in any case between an employer and employee or between employer and employee or between employees or between persons employed and persons seeking employment, involving or growing out of a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property, or to a property right of the party making the application, for which injury there is no adequate remedy at law, and such property or property rights must be described with particularity in the application, which must be in writing and sworn to by the applicant or his agent or attorney." Section 49-902.

"No restraining order or injunction shall prohibit any person or persons, whether singly or in concert, from terminating any relation of employment or from ceasing to perform any work or labor; or from recommending, advising or persuading others by peaceful means so to do; or from attending at any place where any person or persons may lawfully be, for the purpose of peacefully obtaining or communicating information, or from peacefully persuading any such person to abstain from working; or from ceasing to patronize any party to such dispute; or from recommending, advising or persuading others by peaceful or lawful means so to do; or from paying or giving to, or withholding from, any person engaged in such dispute, any strike benefits or other moneys or things of value; or from peaceably assembling in a lawful manner, and for lawful purposes; or from doing any act or thing which might lawfully be done in the absence of such dispute by a single individual; or shall any of the acts specified in this section be considered or held to be illegal or unlawful in any court of the state." Section 49-903.

Plaintiffs contend that, if the provisions of the two sections just quoted should be so construed and applied to the facts proven as to deprive plaintiffs of their right to an injunction against the continuance of the acts complained of, then the statute violates both the due process and the equal protection clauses of the Fourteenth Amendment to the federal Constitution.

The constitutionality of a statute not plain upon its face must be determined in the light of the construction placed upon it and the application made of it to a given state of facts. Hence the same statute, if given one construction and one application to a given state of facts, may be constitutional while the same statute, if given another construction and differently applied to the same facts, may be unconstitutional. ...

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