Nash v. Chandler
| Decision Date | 30 June 1988 |
| Docket Number | 87-2485,Nos. 86-2327,s. 86-2327 |
| Citation | 848 F.2d 567 |
| Parties | 128 L.R.R.M. (BNA) 2908, 109 Lab.Cas. P 55,909 John NASH, et al., Plaintiffs-Appellees, v. Delbert CHANDLER, et al., Defendants, The City of Tyler, Texas, and Willie Hardy, Chief of Police, Etc., and The State of Texas, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Andy Tindel, Charles H. Clark, Tyler, Tex., for defendants-appellants.
Thomas H. Wilson, W. Carl Jordan, Houston, Tex., for amicus curiae Ass'n. Gen. Contractors of Am. Texas Chapter.
Larry R. Daves, Daves, McCabe & Crews, Tyler, Tex., Edward B. Cloutman, III, Dallas, Tex., for Nash.
George E. Barrett, Nashville, Tenn., for United Rubber Cork.
Charles H. Clark, Tyler, Tex., for City of Tyler and Hardy.
Mary F. Keller, Exec. Asst. Atty. Gen., Javier P. Guajardo, Asst. Atty. Gen., Austin, Tex., for State.
Appeals from the United States District Court for the Eastern District of Texas.
Before BROWN, RUBIN, and HIGGINBOTHAM, Circuit Judges.
The constitutional challenge raised by the union in this case is essentially the same as the challenge raised by the Texas Farm Workers Union in Gault v. Texas Citrus and Vegetable Assn., 848 F.2d 544 (5th Cir. 1988). For reasons more fully discussed in that opinion, article 5154d Sec. 1, so far as it extends to mass picketing as defined in article 5154d Sec. 1(1) is unconstitutionally overbroad and cannot stand. Article 5154d Sec. 2 is readily subject to a narrowing construction by the Texas state courts and thus is not substantially overbroad.
This constitutional litigation arose out of a labor dispute in Tyler, Texas, and concerns the constitutionality of the Texas Mass Picketing Statute. 1 The plaintiff, John Nash, was President of United Rubber Workers Local 746 (Local 746). He filed suit against defendants Delbert Chandler and Buddy Schoellkopf Products, Inc. (the company) as a result of his arrest in connection with a labor strike against the company. Nash subsequently amended his complaint to add as party plaintiffs United Rubber, Cork, Linoleum and Plastic Workers of America (the union), Local 746 and three attorneys.
The amended complaint alleged that a conspiracy existed between the company, the City of Tyler, Texas, and Willie Hardy, Chief of Police of the City of Tyler, Texas, to deprive the plaintiffs of their constitutionally protected rights to engage in peaceful picketing, pursuant to the First and Fourteenth Amendments to the Constitution of the United States. The plaintiffs additionally complained that the defendants violated their federally protected rights under Secs. 7 and 13 of the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq. The plaintiffs further alleged that the conspiracy violated 42 U.S.C. Secs. 1983 and 1985, the Civil Rights Statutes.
Approximately two weeks after Nash filed suit in federal court, Schoellkopf filed an action in Texas state court, seeking an injunction against certain practices of the union and sympathizers with respect to the picketing of Schoellkopf's plant. A temporary restraining order was immediately issued by the state court. The union then removed the state action to the United States District Court, and the case was assigned to the judge hearing Nash's complaint. The two cases were consolidated on March 27, 1979. 2
In September 1978, the NLRB certified the union as the collective bargaining representative for employees at Buddy Schoellkopf Products, Inc. in Tyler, Texas. After the union was certified, company representatives and agents contacted Willie Hardy, then Assistant Chief of Police, in Tyler, Texas, expressing concern that the union's presence would cause some disruption at the plant. From September 1978, until February 8, 1979, the union bargained with the company without any disruption of work. On February 8, 1979, the union engaged in a protected concerted activity, i.e., a strike, against the company, and picket lines were established at the entrance to the Tyler plant. Most of the members of the union at the Tyler plant are female and picketing was primarily conducted by striking women employees.
Prior to the labor dispute, Schoellkopf employed the services of Sentry Security Company to guard the plant. The service provided three armed guards, each of whom was issued one or more firearms, including pistols, shotguns and rifles. After the picket line was set up, the security personnel occasionally displayed the weapons they carried in the direction of the pickets. One of the guards frequently taunted picketers with threats of violence and made crude, explicit, and unwelcome sexual overtures to some female pickets. In apparent response to the tactics employed by the security guards, a large number of union members from the Kelly-Springfield Tire Company Plant in Tyler, mostly male, joined in the picketing at the Schoellkopf plant on March 12, 1979.
Members of the union engaged in picketing activities from February 8, 1979, until March 14, 1979. In several instances, non-striking employees were delayed for short periods in entering and leaving the company's plant when pickets temporarily blocked the access roads to the plant. On these occasions, the strikers and non-strikers exchanged taunts, jeers, obscenities and threats. In addition, picketers broke off several radio antennas on automobiles occupied by non-strikers, and a small number of the automobiles were beaten with picket signs and the hands of strikers. Aside from these incidents, no actual violence or threats of violence occurred.
Between February 8 and March 14, five arrests were made by the police force of the City of Tyler. None of these arrests was for violations of the Texas Mass Picketing Statute. On one occasion, the President of Local 746, John Nash, apparently provoked by his perception that plant guards were making unnecessary and threatening displays of their weapons, appeared on the picket line with a shot gun. He was promptly arrested.
On March 14, 1979, the company filed suit in state court seeking a temporary restraining order, temporary injunction and permanent injunction against the union's picketing activities. The temporary restraining order was granted ex parte, restraining picketing and other alleged activities of the union and Local 746, in accordance with the provisions of the Mass Picketing Statute.
Following the TRO, John Nash and a representative of the Tyler Police Department together marked off a distance of fifty feet from each entrance to the company's plant. Thereafter, all picketers, strikers and their sympathizers were required by the police to stay behind the fifty-foot markers. Up until this time, the Tyler Police Department had sent officers to the site of the picketing only in response to specific complaints by the company. However, on March 15, 1979, a meeting was held between various representatives of the company, the Tyler City Manager, Assistant City Manager, Chief of Police and Director of the Chamber of Commerce. According to the company, the purpose of this meeting was to ensure that the City of Tyler and its Chief of Police would enforce the Mass Picketing Statute.
After the meeting, the Tyler Police Department stationed four to six vehicles at the entrance to the plant and from six to twelve members of the Police Department posted themselves in the vicinity of the picket line. Pickets, other striking employees, and their sympathizers were thereafter arrested for perceived violations of the Mass Picketing Statute. From March 15th on, only two pickets were permitted to be within fifty feet of the entrance to the plant, and any person who ventured closer was promptly arrested. 3 This included even persons relieving one of the two pickets allowed to be on duty. Any picket who crossed the access roads to the company's plant was arrested if he caused a vehicle to stop, even momentarily, by passing in front of it. The police alleged that this conduct by the pickets obstructed free ingress to and egress from the plant premises. 4 Any striker or sympathizer who yelled "scab" at a non-striking employee of the company was arrested. Police officers also arrested others accused of uttering profanities for their interference with non-striking employees in the exercise of their lawful right to work. 5
From March 15, 1979 to March 28, 1979, approximately ninety arrests were made for unlawful picketing. The arrests concerned: (i) having more than two persons within fifty feet of the picketing sites; (ii) picketers crossing the driveway to the plant between automobiles entering or leaving the plant premises; (iii) picketers or union sympathizers in the immediate vicinity of the picket area (but over fifty feet away) calling non-striking employees "scabs." No arrests were made for any alleged acts or threats of violence, destruction of property or resisting arrest. The picketers sought a temporary restraining order preventing these arrests. In denying such relief, the state court admonished the defendants to be certain their arrest activities conformed with constitutional procedures.
On two occasions, union attorneys identified themselves to police at the plant entrance as attorneys and counsel for the picketing union members. Upon approaching the picket line, the attorneys were arrested, handcuffed, taken to jail, booked and released hours later on bail. When picketers were arrested, the police confiscated the picketers' placards or signs as evidence. On several occasions, this confiscation totally depleted the union's supply of signs.
On April 4, 1979, after an evidentiary hearing, the Federal District Court issued a preliminary injunction. The court found that the City of Tyler, Texas and Willie Hardy, Chief of Police of Tyler, Texas, violated plaintiffs' constitutional rights as guaranteed by the First, Sixth and Fourteenth Amendments and their rights under Sec. 7 of the...
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