Nash v. State of Tex., Civ. A. No. TY-79-73-CA

• Decision Date: 21 February 1986
• Docket Number: Civ. A. No. TY-79-73-CA,TY-79-98-CA.
• Citation: 632 F. Supp. 951
• Parties: John NASH, et al., Plaintiffs, v. The STATE OF TEXAS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Texas

632 F. Supp. 951

John NASH, et al., Plaintiffs, v. The STATE OF TEXAS, et al., Defendants.

Civ. A. Nos. TY-79-73-CA, TY-79-98-CA.

United States District Court, E.D. Texas, Tyler Division.

February 21, 1986.

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Larry R. Daves, Daves, McCabe & Crews, Tyler, Tex., and George E. Barrett, Nashville, Tenn., for plaintiffs.

David R. Richards, Austin, Tex., and Edward B. Cloutman, III (also for Mullinax, Wells, et al, Intervenors), Dallas, Tex., for Local 746, United Rubber Workers.

Erich F. Klein, Jr., Dallas, Tex., for Delbert Chandler and Buddy Schoellkopf Products, Inc.

Charles H. Clark, Tyler, Tex., for Delbert Chandler and Buddy Schoellkopf Products, Inc., City of Tyler.

Cameron McKinney, Tyler, Tex., for City of Tyler, Tex., and Willie Hardy, Chief of Police.

Mary Keller, Asst. Atty. Gen., Austin, Tex., for State of Texas.

MEMORANDUM OPINION

JUSTICE, Chief Judge.

This civil action presents the issue of whether two sections of the Texas mass picketing statute¹ abridge plaintiffs' right to freedom of expression under the First Amendment.²

I. FACTS

In September 1978, Buddy Schoellkopf, Inc. ("Schoellkopf Products" or "the company"), maintained a plant in Tyler, Texas, where it manufactured marine safety equipment and down-filled hunting clothes. Many of the events giving rise to this action occurred near the plant. It is located on Gentry Parkway, a main thoroughfare, which consists of six lanes of traffic and measures 150 feet in width. Two access roads lead to the plant from Gentry Parkway, each of which is about twenty-seven feet wide.

On September 18, 1978, the National Labor Relations Board certified Local 746 of the United Rubber Workers ("the union") as the collective bargaining representative of an appropriate unit of employees at the Schoellkopf Products plant in Tyler. Management personnel at Schoellkopf Products were disquieted by the union's presence at the plant, and seemingly felt that the presence of the police might be needed, because of union activities. Accordingly, company representatives and agents called on Willie Hardy, then the Assistant Chief of Police of Tyler, in order to "get to know" officials of the Tyler Police Department. The plant manager, Jeff Keasler, again met with Hardy (by then Chief of Police) and Charles Clark, Esquire, his attorney, in late January 1979, for lunch at a country club in Tyler, ostensibly to discuss security at the company's plant.

During the period from September 1978, to February 8, 1979, the union bargained with Schoellkopf Products, without any disruption of work at the company's Tyler plant. On February 8, 1979, the union began engaging in protected concerted activity, in the form of a strike, against the company. Picket lines were thereafter established at the entrance to the company's plant in Tyler. Members of the union at Schoellkopf Products' Tyler plant were mostly women. Thus, picketing at the plant site was primarily conducted by striking women employees of the company, from the inception of the strike on February 8, 1979, to March 12, 1979.

The company employed the services of Century Security Company, as a security force, prior to the beginning of the labor dispute. This service provided three armed guards, led by one Herbert Thompson. Each guard was issued one or more firearms, including pistols, shotguns, and rifles. At the picketing site, Thompson possessed a .357 caliber magnum revolver, worn as a sidearm. In his automobile, stationed nearby, he kept a 12 gauge shotgun, a .30 caliber carbine with a 20-shot clip, and an AR-15 automatic rifle, all of which were loaded. At times, security personnel pointed the weapons in the direction of pickets. Security guard Thompson frequently taunted picketers by threats of violence. Additionally, he made crude, explicit, and unwelcome sexual overtures to some female pickets.

Apparently in response to the tactics employed by the company's security force, a large number of the union's members, mostly male, from the Kelly-Springfield Tire Company plant in Tyler, joined in the picketing at the Schoellkopf Products' plant on March 12, 1979. In several instances during that day and the following two days, non-striking employees were delayed for short periods in entering and leaving the company's plant, when pickets temporarily blocked the access roads leading from Gentry Parkway to the plant. On these occasions, picketers taunted and jeered at non-striking employees, often using obscene and abusive language and gestures, as well as making a few intermittent threats of violence. The strikers, in turn, were reviled and scoffed at by the non-strikers, who also uttered obscenities and threats. In addition, pickets broke off several radio antennas on automobiles occupied by non-strikers, and they flailed a small number of the non-strikers' vehicles with picket signs and with their hands. On one occasion during the three day interval, 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 shotgun. At the instance of the company, he was promptly arrested by the police. Aside from these incidents, no actual force or significant threats of force occurred during the entire course of the strike.

In the period from February 8, 1979, to March 14, 1979, the Tyler Police Department had sent police officers to the location of the picketing at Schoellkopf Products' plant only in response to specific complaints from company representatives. During that interval, five arrests were made by the police force at the scene of the picketing, none of them concerning alleged violation of the mass picketing statute. On at least one occasion, on February 12, 1979, police officers "advised that as long as strikers were moving, no action could be taken by officers."

On March 14, 1979, the company filed a suit in a state court against the union, John Nash, and another union member, seeking a temporary restraining order, a temporary injunction, and a permanent injunction against the union's picketing activities.³ A temporary restraining order was granted, ex parte, by the Honorable Galloway Calhoun, Judge of the 114th Judicial District of Texas, on March 14, 1979, restraining picketing and other alleged activities of the union and Local 746.⁴

On March 15, 1979, the company's president, Hugo, Schoellkopf, arranged for a meeting to be held in the office of the City Manager of Tyler, Texas, at 11:00 o'clock a.m. Schoellkopf, executive vice-president Delbert Chandler, plant manager Jeff Keasler, and company attorney Erich Klein represented the company. Also present were City Manager Ed Wagoner, Assistant City Manager Terry Childress, Chief of Police Willie Hardy, and the executive director of the Tyler Chamber of Commerce, Freeman Carney. Neither the City Attorney, State District Attorney, nor any union representative was invited to attend this meeting. According to Schoellkopf, the purpose of the meeting was to insure that the City of Tyler and its Police Chief would enforce the mass picketing statute at the company's Tyler plant. At the gathering, copies of the statute were made available to the city officials by the company representatives.

Later on March 15, 1979, at 2:15 o'clock p.m., Hardy met with Chandler and Nash. In the ensuing discussion, Hardy stated that the police would be present at the picketing situs and would enforce the mass picketing statute. He further explained that the pickets would be allowed to cross the company driveway, if traffic at the entrance to the plant was not blocked for more than one minute. Nash was not advised by Hardy of the 11:00 o'clock a.m. meeting earlier that day with officials of the company, the City of Tyler, and the Chamber of Commerce.

After the temporary restraining order was granted by the state court on March 14, 1979, Nash and a representative of the Tyler Police Department, together, marked off a distance of fifty feet from each entrance to the defendant company's plant. Thereafter, all pickets, strikers, and their sympathizers were required by the police to stay behind the fifty-foot markers.

After March 15, 1979, the Tyler Police Department followed a standard procedure. At approximately 4:15 p.m., fifteen minutes before production workers at the company's plant stopped work for the day, four to six vehicles of the Tyler Police Department, including a "paddy wagon," were stationed along the curb on both sides of the entrance driveway to the plant. 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 by the police, for perceived violations of the mass picketing statute.

From March 15, 1979, to March 28, 1979, approximately ninety arrests were made for "unlawful picketing." In arresting the picketers, the police cited three alleged violations of the mass picketing statute, Article 5154d, as follows:

1. Under the "numbers-distance" provision, ? 1, paragraph 1, anyone who approached the two picketers within fifty-foot markers laid out by police and union members was arrested, even a person intending to relieve a picketer on duty;

2. A picketer who caused a vehicle driven on the access and exit roads to the plant to stop, even momentarily, was arrested, allegedly pursuant to ? 1, paragraph 2;⁵ and

3. Any striker or sympathizer who shouted "scab"⁶ or who was accused of uttering a profanity was arrested, supposedly in accordance with ? 2 of the statute.

No arrests were made for alleged acts or threats of violence, destruction of property, or resisting arrest.

The arrests of the union's attorneys were particularly notable. Ken Miller, Esquire, and Joe Beam, Esquire, counsel for Local 746,...