Ostroff v. Laundry & Dye Works Drivers' Local No. 566

• Decision Date: 14 December 1950
• Docket Number: 31178.
• Citation: 225 P.2d 419,37 Wn.2d 595
• Parties: OSTROFF, v. LAUNDRY & DYE WORKS DRIVERS' LOCAL NO. 566 et al.
• Court: Washington Supreme Court

225 P.2d 419

37 Wn.2d 595

OSTROFF, v. LAUNDRY & DYE WORKS DRIVERS' LOCAL NO. 566 et al.

No. 31178.

Supreme Court of Washington, en Banc.

December 14, 1950

Rehearing Denied March 1, 1951.

Hamlet P Dodd, Seattle, for appellant.

Bassett &amp Geisness, Seattle, for respondents.

DONWORTH, Justice.

This action was brought to enjoin the picketing of plaintiff's cleaning and dyeing establishment by the defendant union. An order to show cause was issued and upon the return day the cause was, by stipulation of the parties, tried on its merits upon oral testimony and documentary evidence. At the conclusion of the trial, the court rendered an oral opinion holding that there was a labor dispute within the meaning of Rem.Rev.Stat. (Sup.) § 7612-1 et seq., and that the court had no power to issue the injunction sought by the plaintiff. No findings of fact were made by the court but a decree was subsequently entered dismissing the plaintiff's complaint. From this disposition of the case plaintiff has appealed.

The essential facts are that appellant has for some eight years been operating a 'cash and carry' cleaning and dyeing business in Seattle consisting of two plants and four stores. During this period he has done business at a profit. He has some twenty-five employees, none of whom belonged to any union. For some time he has been listed as 'unfair' by the Seattle Labor Council because of having constructed one of his buildings with nonunion labor.

In October, 1948 appellant employed one Kreiger as a truck driver to operate his trucks between the cleaning and finishing plants and his four stores. He was paid fifty dollars per week for an average of forty-five hours work. Kreiger never complained to appellant about his rate of pay, his hours or working conditions. In March, 1949, Kreiger, without appellant's knowledge, joined the respondent union.

This union is chartered by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and is affiliated with the local union chartered by the International Laundry Workers and Dry Cleaners Union. Over ninety per cent of the cleaning and dyeing stores in the Seattle area employ members of these unions and operate under union contracts.

In April and May, 1949, representatives of the respondent union called upon appellant for the purpose of obtaining his signature on a union contract. In the early part of May they submitted a contract (consisting of a typewritten document and two printed documents) which he examined and later advised the union representatives that he would not sign. The effect of signing this would have been that all of appellant's employees would either have had to join one of the unions involved or seek employment elsewhere.

About eight a. m. on May 23, 1949, the two union representatives, accompanied by Kreiger, went to appellant's office and asked him if he had changed his mind about signing the contract and he replied in the negative. They then informed him that Kreiger was a member of their union.

Immediately thereafter, Kreiger and other members of the respondent union began to picket appellant's six places of business bearing signs stating 'Spic N Span Dry Cleaners refuses to pay union wages--Laundry and Dye Works Drivers Local 566.' This peaceful picketing has continued since its inception.

At the trial, appellant testified that prior to the picketing his gross receipts were $2500 per week and subsequently they were reduced to $1700. In addition, he has been compelled to obtain his supplies by driving his own trucks since union drivers would not make deliveries through the picket lines.

After the picketing began, a meeting of appellant's employees was called, which was attended by all of them except Kreiger and one employee who was on vacation. Appellant and his counsel were present at the beginning of the meeting. The attorney addressed the employees telling them that they were free to join a union or not to do so as they saw fit. He left with them a form of statement reading as follows:

'We, the Undersigned, being employees of Louis Ostroff, doing business as Spic 'N Span Cleaners in four locations in the City of Seattle, after an open meeting without coercion, in the presence of persons who are employees only, hereby declare that it is not our wish and desire to join any union, Teamsters Local, or otherwise; that we are fully aware of our rights to join such union, and that we are opposed to the said Louis Ostroff, or any of his agents, entering into a contract with the Teamsters or any other related union, unionizing these plants.

'Done at Seattle, Washington, this 6th day of June, 1949.'

After appellant and his counsel had left the meeting, the employees present discussed the matter and all of them signed the statement.

There is a conflict in the evidence as to whether appellant's scale of wages is higher or lower than the union scale but we do not deem it necessary to pass upon that issue in deciding this case.

Appellant testified that the union contract, which he declined to sign, would have compelled him to pay Kreiger $387 per week (based on 15% of the gross receipts of $2500) instead of $50 per week. Respondent union contends that if, after negotiating, the parties had determined Kreiger to be a wholesale driver, his commission would have been three per cent plus $55 per week. It is likewise unnecessary to pass upon this issue.

The questions to be decided are: (1) Was there a labor dispute between the parties within the meaning of the statute? (2) If so, did the trial court err in refusing to enjoin the picketing?

In our consideration of these questions we have again examined all of the decisions of this court involving the application of the Labor Disputes Act of 1933, Rem.Rev.Stat. (Sup.) § 7612-1 et seq.--some twenty in number. Most of them were reviewed in Gazzam v. Building Service Employees International Union, Local 262, 29 Wash.2d 488, 188 P.2d 97, 11 A.L.R.2d 1330, where it was pointed out that discrepancies had crept into our decisions on the subject. Reference is also made to Hanke v. Teamsters' C. W. & H. Union, 33 Wash.2d 646, 207 P.2d 206, where these decisions are again commented upon by the court, see 33 Wash.2d page 654, 207 P.2d page 210.

In answering the first question noted, we must have in mind the definition of a labor dispute adopted by the legislature in § 7612-13(a) of Rem.Rev.Stat. (Sup.) which is as follows: 'A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, or occupation; or have direct or indirect interests therein; or who are employees of the same employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is (1) between one or more employers or associations of employers and one or more employees or associations of employees; (2) between one or more employers or associations of employers and one or more employers or association of employers; or (3) between one or more employees or association of employees and one or more employees or association of employees; or when the case involves any conflicting or competing interests in a 'labor dispute' (as hereinafter defined) of 'persons participating or interested' therein (as hereinafter defined).' (Italics ours.)

Appellant vigorously contends that there was no labor dispute because only one employee (out of an average of 25 employees) belonged to the union. He argues that the doctrine of the Gazzam case, supra, applies here.

In the cited case no employee belonged to the picketing union and this court held that the purpose of the picketing was to compel the employer to enter into a contract which would result in his employees having to join the union. The decision of this court enjoining the picketing was affirmed by the supreme court of the United States May 8, 1950, Building Service Employees Int. Union v. Gazzam, 339 U.S. 532, 70 S.Ct. 784.

Since the legislature in defining a labor dispute specifically included a controversy between one or more employers and one or more employees, the courts are bound to recognize the difference between a situation where there is one employee who is a member of the picketing union and where there is no employee who belongs to such union.

We accordingly hold that this case involves a labor dispute within the meaning of the statute. Appellant contends that there was no employer-employee relationship existing at the time Kreiger began picketing. We have examined the evidence bearing on this contention and find it to be without merit.

The remaining question (Should the trial court have enjoined the picketing?) presents a difficult problem. A concise statement of the applicable rule is found in Swenson v. Seattle Central Labor Council, 27 Wash.2d 193, 206, 177 P.2d 873, 880, 170 A.L.R. 1082, where we said: 'The United States Supreme Court has, by these cases, established this rule: Peaceful picketing is an exercise of the right of free speech. Organized labor has the right to communicate its views either by word of mouth or by the use of placards. This is nothing more nor less than a method of persuasion. But when picketing ceases to be used for the purpose of persuasion--just the minute it steps over the line from persuasion to coercion--it loses the protection of the constitutional guaranty of free speech, and a person or persons injured by its acts may apply to a court of equity for relief.'

The difficulty in applying this rule to the facts of the present case lies in attempting to draw the line between persuasion and coercion.

Here, respondent union was picketing appellant's establishment for the purpose of advising the...