Ohio Val. Advertising Corp. v. Union Local 207, Sign Painters, A. F. of L.

• Decision Date: 14 July 1953
• Docket Number: No. 10524,10524
• Citation: 138 W.Va. 355,76 S.E.2d 113
• Court: West Virginia Supreme Court
• Parties: , 32 L.R.R.M. (BNA) 2336, 23 Lab.Cas. P 67,652 OHIO VALLEY ADVERTISING CORP. et al. v. UNION LOCAL 207, SIGN PAINTERS, A. F. OF L., et al.

Page 113

76 S.E.2d 113

138 W.Va. 355, 32 L.R.R.M. (BNA) 2336,

23 Lab.Cas. P 67,652

OHIO VALLEY ADVERTISING CORP. et al. v. UNION LOCAL 207, SIGN PAINTERS, A. F. OF L., et al.

No. 10524.

Supreme Court of Appeals of West Virginia.

Submitted April 21, 1953.

Decided June 2, 1953.

Rehearing Denied July 14, 1953.

Syllabus by the Court.

1. The Labor Management Relations Act of 1947, 29 U.S.C.A. § 141 et seq., does not divest state courts of their jurisdiction over labor disputes involving violence; and allegations of coercion and threats of physical violence, contained in a verified bill of complaint, invoke the jurisdiction of the courts of this State even though the parties to the dispute are engaged in interstate commerce.

2. The acts of defendant, members of a labor union, in approaching customers of plaintiff and threatening to picket plaintiff's activities, which, because of the ambulatory character of plaintiff's business, must, of necessity, be conducted on or near the customers' premises, may not be enjoined.

3. The mere carrying of a banner by a picket in front of a filling station on which premises a sign is being painted, which banner clearly indicates that the grievance is with the painting contractor and not the gasoline company, does not amount to a secondary boycott.

4. Depending upon the facts and circumstances of the particular case, picketing of an ambulatory business is ordinarily primary under the following conditions: the picketing is limited to occasions when the employees of the primary employer are engaged in their normal activities upon the premises of the secondary employer; is limited to places reasonably close to the primary employer's activities on such premises; and it is clearly shown that the dispute is with the primary employer.

Carl G. Bachmann and Gilbert S. Bachmann, Wheeling, for appellants.

Russell G. Nesbitt, Wheeling, for appellees.

BROWNING, Judge.

This suit for injunctive relief was instituted in the Circuit Court of Ohio County on April 23, 1951, by the Ohio Valley Advertising Corporation and Daniel T. Gold, an individual suing on behalf of himself and others similarly situated, against Union Local 207, Sign Painters, A. F. of L., Delbert Horstemeyer, Business Manager of said Union, Wilson E. Connelly, President of Wheeling Building Trades Council, and all others abetting and conspiring with said defendants.

The bill of complaint, as amended, alleges in substance that the plaintiff corporation is in the advertising business in the City of Wheeling, and within a radius of fifty-five miles thereof, conducting its business under the 'open shop' plan. The defendant, Union Local 207, is allegedly composed of independent contractors, with but two exceptions, possessing a union charter and affiliated with the A. F. of L. and the Wheeling Building Trades Council. The bill then alleges that the defendants have conspired against the plaintiff corporation, reciting three specific instances which amount to secondary boycotting, thereby causing them great financial loss, and concludes with a prayer that the defendants be restrained from engaging in such practices.

To this bill of complaint the defendants filed their plea in abatement, a special plea and demurrer.

The plea in abatement is based upon the ground that the bill shows on its face that plaintiff is engaged in interstate commerce, and, therefore, in the absence of an allegation of violence, any relief lies within the exclusive jurisdiction of the National Labor Relations Board. The special plea prayed for dismissal of Daniel Gold as a party plaintiff, alleging that Gold, at the time of the alleged conspiracy, was a member in good standing of Local 207, and, therefore, without clean hands. Defendants demurred on the ground that granting the injunction would abridge the defendants' rights of freedom of speech, press and assembly as guaranteed by the Constitutions of the United States and West Virginia.

These pleadings were overruled by the court and the defendant answered denying the material allegations of the bill of complaint.

Upon the trial of the cause, the plaintiff corporation adduced the evidence of several witnesses who had declined to deal with the plaintiff because of representations made to them by defendants that workers in other crafts would refuse to work beside plaintiff's employees. In three specific instances, witnesses testified that they were visited by the defendants and informed that if they dealt with plaintiff corporation, usually in regard to signs being painted around the witnesses' places of business, it would be necessary to picket the situs of the sign. In one instance, the painting of a sign at an American Oil Company station in Wheeling, plaintiff's employees began work at 8:00 a. m., a picket appeared shortly thereafter bearing a sign 'Men? Working on sign are not members of Sign Painters Local 207 A. F. of L.', who picketed the entire length of the service station property. The plaintiff, Gold, one of the men working on the sign testifies that he and the others left the job around 10:00 a. m. The service station manager testifies that the picket did not leave until 2:00 p. m. or shortly before, and that while he was there no business was doen at the station.

The defendants, in their evidence, deny having threatened or coerced any individuals into cancelling their business with plaintiff corporation, though admitting that they had informed the various witnesses for plaintiff and others that plaintiff was employing nonunion labor. They do admit that in one or two instances they informed certain parties that if plaintiff was allowed to continue work it would be necessary to picket the sign being painted, and, in regard to the service station contend that the picket was picketing the sign and not the station.

Upon the conclusion of the evidence, the court granted a permanent injunction restraining defendants from:

(1) Doing any act to prevent plaintiff from lawfully operating its business or in any manner preventing plaintiff from lawfully engaging in its business.

(2) From in any way unlawfully disturbing or interfering with the normal conduct of plaintiff's business or the rights of the individual plaintiffs.

(3) From in any way interfering with the customers and lawful contracts, contractors or contractees of the plaintiff by bringing pressure or influence upon such customers.

(4) From picketing plaintiff's customers and their places of business.

We must determine initially whether the trial court was correct in overruling the defendants' plea in abatement to the second amended bill of complaint. The allegations of plaintiffs' bill are to the effect that the Ohio Valley Advertising Corporation has its principal place of business in Wheeling, West Virginia, but that it operates in portions of the States of Ohio and Pennsylvania, thereby clearly showing that this plaintiff was engaged in interstate commerce. The defendants contend that this being true and no acts of violence having been alleged in the bill, the courts of this State do not have jurisdiction of the controversy.

This Court has not passed upon the question of the extent to which the Labor Management Relations Act of 1947, 29 U.S.C.A. § 141 et seq., known as the Taft-Hartley Act, has preempted the field of labor relations where one of the participants in a labor dispute is engaged in interstate commerce, and violence is not alleged or proved. It is interesting to observe that the words 'This power shall be exclusive', contained in Section 10(a) of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., known as the Wagner Act, are not to be found in the Taft-Hartley Act. The absence of this language from the latter Act seems not to have changed the attitude of the courts of other jurisdictions upon the question. In McNish v. American Brass Co., 1952, 139 Conn. 44, 89 A.2d 566, the court said, quoting from Schatte v. International Alliance, etc., 9 Cir., 182 F.2d 158, 166, that: 'It is well settled that the exclusive remedy for the commission of an unfair labor practice was in proceedings before the National Labor Relations Board under the Wagner Act. 29 U.S.C.A. § 160(a); Amalgamated Utility Workers v. Consolidated Edison Co. of New York, 1940, 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738. The same is true under the National Labor Relations Act as amended by the Taft-Hartley Act, * * *.' 139 Conn. 44, 89 A.2d 569. The Supreme Court of California held that the state court was without jurisdiction to entertain a petition for an injunction against peaceful picketing and secondary boycotting by a union in the absence of violence where the employer was engaged in interstate commerce. Gerry of California v. Superior Court, 1949, 32 Cal.2d 119, 194 P.2d 689.

The Supreme Court of the United States in Amalgamated Ass'n etc., v. Wisconsin Employment Relations Board, 340 U.S. 383, 71 S.Ct. 359, 365, 95 L.Ed. 364, decided in 1951, stated: '* * * Congress has closed to state regulation the field of peaceful strikes in industries affecting commerce.' It will be observed that in the latter case, a Wisconsin State statute prohibiting strikes against public utilities and providing for compulsory arbitration was being attacked.

The Legislature of the State of West Virginia has not seen fit to enact labor management legislation as have the legislatures of most other states. However, it would appear that the result would be the same whether the conflict was created by state legislature or by judicial decision. Building Service Employees v. Gazzam, 1950, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045. We are of the opinion, however, that the trial court was correct in overruling defendants' plea in abatement inasmuch as plaintiffs' bill inter alia alleges that if certain named customers of the Ohio Valley Advertising Corporation did not cease to do business with the latter they would be 'picketed and also black-listed or...