O'Neil v. Building Service Employees Intern. Union No. 6

• Citation: 9 Wn.2d 507,115 P.2d 662
• Decision Date: 24 July 1941
• Docket Number: 28421.
• Court: United States State Supreme Court of Washington
• Parties: O'NEIL v. BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION NO. 6 et al.

115 P.2d 662

9 Wn.2d 507

O'NEIL v. BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION NO. 6 et al.

No. 28421.

Supreme Court of Washington, En Banc.

July 24, 1941

Action by Maggie O'Neil against the Building Service Employees International Union No. 6, and others, to enjoin the defendants from picketing the plaintiff's apartment houses or using any coercive measures, with the intent to compel plaintiff to recognize and join the defendant's union. From a judgment of dismissal, the plaintiff appeals.

Affirmed.

STEINERT MAIN, SIMPSON, and JEFFERS, JJ., dissenting.

Appeal from Superior Court, King County; Donald A. McDonald, judge.

John W Whitham, of Seattle, for appellant.

Stevenson and Gershon, of Seattle, for respondents.

MILLARD Justice.

Plaintiff who is the owner of two apartment houses in the city of Seattle, brought this action to enjoin Building Service Employees International Union, Local No. 6, and its president, secretary, and business agent from picketing plaintiff's apartment houses, or using any coercive measures whatsoever, with the intent to compel plaintiff to recognize and join defendant union. The appeal is from the judgment of dismissal, rendered upon the plaintiff's refusal to plead further after a demurrer had been sustained to her complaint.

The complaint alleges that appellant, who is a widow and has several adult children who are capable of assisting her in the management of two apartment houses owned by her in the city of Seattle, was informed by a walking delegate or representative of respondents that unless she joined respondent labor union respondents would declare a boycott against the appellant and against the business of appellant. No person or persons is or are being hired in connection with the operation of the two apartment houses by appellant who advised respondent union's representative that as there was no controversy concerning employment of workmen or their wages she would not comply with the demand. Appellant further alleged that

'* * * In order to coerce plaintiff [appellant] to the subjection of her said business to the control of said union and the members thereof, the said defendants [respondents] did then and there enter into a combination, confederation and conspiracy for the purpose of coercing the plaintiff [appellant] to subject the control of her business and apartment houses to the said Building Service Employees International Union, Local #6, and said members thereof, and did * * * picket in front of said Aristo Apartment House and said * * * picket at all times threatened to intercept interfere with, molest, contact and intimidate plaintiff's [appellant's] patrons and by the acts of picketing are unlawfully depriving the plaintiff [appellant] of a lucrative business.'

The picket who patrols in front of the apartment houses bears a 'sandwich' sign on the back and front of which is printed in large letters the following notice: 'Aristo-Prospect Apartments Unfair to organized labor.' The complaint further alleges that the union and its members conspired among themselves and with other persons to impede the appellant in the conduct and transaction of her business and to interfere with her patrons or tenants by persuasion and intimidation and by mailing written communications to her tenants advising them to sever their tenancy with her. Appellant admits that she is unable to say how many patrons or tenants had been or will be intimidated by reason of the presence of the picket and the communications, but on information and belief, she alleges that many of her tenants will be frightened, intimidated and induced to sever their tenancy, and patrons will further be deterred from entering her apartment houses.

The allegations of fact, together with the reasonable inferences therefrom, in the complaint are admitted by the demurrer to be true; that is, the demurrer admits the truth of all well-pleaded facts, as well, also, as every legitimate inference deduced from such facts.

In Matthews v. Oklahoma Pub. Co. 103 Okl. 40, 219 P. 947, cited by us with approval in Puget Mill Co. v. Duecy, 1 Wash.2d 421, 96 P.2d 571, the rule as to admissions by demurrer is well stated to the effect that a demurrer only admits the truth of the facts pleaded, but does not admit the truth of the inference of the pleader based on the facts pleaded unless the facts themselves are sufficient to authorize such inference.

The allegations that respondents entered into a conspiracy for the purpose of coercing appellant to subject the control of her business to the respondents and threatened to intercept, interfere with, molest, contact and intimidate appellant's patrons, as well as the allegations that respondent union conspired with other persons and interfered with appellant's tenants by persuasion and intimidation are mere conclusions of the pleader. There is no contention, neither is there any allegation that the picketing was not peaceful. Peaceful picketing, under the authorities, is lawful, hence the fact that the effect of such picketing is to compel or coerce the one picketed to yield to the demands of the picketing union does not constitute intimidation or coercion in the sense of unlawful compulsion.

Summarized, the allegations of fact, admitted by the demurrer to be true, are that appellant is the proprietor of two apartment houses which she operates alone and without employes. Because of appellant's refusal to join respondent union, respondents are peacefully picketing appellant's apartment houses and advertising by use of sandwich boards that appellant is unfair to organized labor for the purpose of forcing appellant, against her will, to join respondent union.

The question presented is whether the Fourteenth Amendment to the United States Constitution prevents the courts of this state from granting injunctive relief against a labor union and its members to prohibit peaceful picketing of the place of business of a person who has no employees where the purpose of such picketing is to force, against her will, the owner of such business to join the picketing union.

In Zaat v. Building Trades Council, 172 Wash. 445, 20 P.2d 589, Kimbel v. Lumber & Saw Mill Workers Union, 189 Wash. 416, 65 P.2d 1066, and Marvel Baking Co. v. Teamsters' Union, 5 Wash.2d 346, 105 P.2d 46, we held that it is lawful for workmen to organize unions, and that it is lawful for labor unions to convey to the public at large, and to persons especially interested, information that a certain business has been by labor unions declared unfair; that is, to conduct peaceful picketing at or near such place of business and to advise the public of the fact that the owner or operator of that business is regarded as unfair to the labor union.

In Zaat v. Building Trades Council, supra, a demurrer to the complaint in an action to enjoin defendants from advising the public that plaintiff was unfair to organized labor was sustained and on appeal we affirmed the judgment dismissing the complaint. In that case the plaintiff, who was the proprietor of a plumbing business, was denied the right to work in carrying out his own contract. The rule of the labor unions that a proprietor of a plumbing business must not himself work in carrying out his own contract, although such proprietor is fully qualified to engage in such labor, was, we held, a question of policy which concerns only the unions and their members, and however oppressive such interference with appellant's business the union publicity that the proprietor was unfair to organized labor because he insisted in working as a plumber in carrying out his own contracts no relief may be afforded by the courts. We said [172 Wash. 445, 20 P.2d 591]:

'The rule laid down in some jurisdictions, to the effect that, because an employer may lawfully perform his own work or a portion thereof, and that, because the employer is within his legal rights in so doing, a labor union or members thereof can not lawfully engage in a controversy with him concerning his conduct, does not prevail in this state.'

In Shively v. Garage Employees Local Union No. 44, 108 P.2d 354, we held, and reviewed therein our prior opinions to the same effect, that peaceful picketing of the place of business of an employer, by a union which does not include in its membership any employee of such employer, for the purpose of persuading or coercing such employees to join a union against their will, is unlawful and may be enjoined. The opinion in Shively v. Garage Employees Local Union, supra, was filed December 12, 1940. February 10, 1941 the United States Supreme Court, in American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855, held that the constitutional guaranty of freedom of discussion is infringed by judicial policy of a state to forbid resort to peaceful persuasion through picketing where there is no immediate employer-employee dispute as in the case of attempted unionization of the business employing nonmembers of the union. In other words, the United States Supreme Court held that the right of labor unions to peacefully convey to the public at large, and to persons especially interested, information that a certain business has been by labor unions declared unfair can not be enjoined in view of the Fourteenth Amendment to the United States Constitution which guarantees freedom of speech; that the constitutional guaranty of freedom of discussion is infringed by the common law or statutory policy of a state forbidding resort to peaceful persuasion through picketing merely because there is no immediate labor dispute. That case presented the question, as does the case at bar, whether the right of freedom of speech is violated by an injunction restraining a labor union from...