Roth v. Local Union 1460 of Retail Clerks Union

• Decision Date: 22 December 1939
• Docket Number: 27254.
• Citation: 24 N.E.2d 280,216 Ind. 363
• Parties: ROTH v. LOCAL UNION NO. 1460 OF RETAIL CLERKS UNION et al.
• Court: Indiana Supreme Court

24 N.E.2d 280

216 Ind. 363

ROTH v. LOCAL UNION NO. 1460 OF RETAIL CLERKS UNION et al.

No. 27254.

Supreme Court of Indiana

December 22, 1939

Appeal from Lake Circuit Court; T. Joseph Sullivan Judge.

Crumpacker & Friedrich and Jay E. Darlington, all of Hammond, for appellant.

Whitaker & Powell, of Hammond, and Faust, Faust & Faust, of Indianapolis, for appellee.

SHAKE Chief Justice.

This is an appeal from an interlocutory order granting a temporary injunction on the application of appellant, who was plaintiff below. The court found the facts specially and stated conclusions of law. There was no motion for a new trial.

In the facts found it appears that at all the times under inquiry the plaintiff owned and operated a small retail grocery fruit, and vegetable store in the city of Hammond and that he had three employees; that the defendant Local Union No. 1460 of Retail Clerks Union coerced said employees into joining its organization, by threatening them that if they did not do so the store would be picketed and that they would lose their jobs; that thereafter the union requested said employees to go on strike and threatened them with fines if they refused that the employees refused to strike and resigned from the union; that thereupon the union began to picket the plaintiff's store, by causing one of its agents to continuously walk to and fro on the sidewalk in front of said store, wearing a sign which read:

'This store is unfair to Retail Clerks Union Local No. 1460, affiliated with American Federation of Labor;'

that there was no strike in the store; that plaintiff was at peace with his employees; that none of them belonged or wanted to belong to said union; and that 'the object of the picketing (was) to compel the store owner, against his desire, to sign a closed shop contract with the union whereby the employees would be compelled to join the union, against their will, or be discharged.'

The finding recited that the sign carried by said pickets was of the type commonly used by striking employees and was designed to convey to the public and to the plaintiff's customers the idea that the plaintiff refused employment to, and discriminated against members of said union, which implication was false and operated as a fraud upon the plaintiff, his employees, and the public; that the plaintiff had been harassed and annoyed by said picketing and that a disturbing and notorious situation had been created in front of his store, which interfered with and diminished his business; and that irreparable injury had been inflicted upon the plaintiff which was incapable of accurate computation, and for which there was no adequate remedy at law, all of which would continue indefinitely unless restrained by the court. The court further found that the plaintiff had performed all obligations imposed upon him by law; that the public officers charged with the duty of protecting plaintiff's property were unable or unwilling to furnish adequate protection; and that the picketing of plaintiff's store had been peaceful and free from violence of any kind.

Upon the above facts, the court stated the following conclusions of law: (1) that the case involved a labor dispute within the terms of Ch. 12, Acts of 1933, commonly known as the Anti-Injunction Act; (2) that the court had jurisdiction to issue and should issue a temporary injunction enjoining the acts complained of, subject to the provisions contained in the third conclusion; and (3) that the court should on its own motion authorize defendants to do a modified type of picketing, and that failing so to do they should be enjoined.

The temporary injunction followed the conclusions of law and enjoined the defendants from coercing or attempting to coerce plaintiff to sign a closed shop contract; from coercing or attempting to coerce plaintiff to compel his employees to become members in the defendant union; and from coercing or attempting to coerce plaintiff's employees to become members of said union. They were also enjoined from in any manner intimidating or warning customers or persons doing business with plaintiff to stay away from his store. The defendants were authorized, however, to picket the plaintiff's store by causing one agent at a time to walk in front of said store and carry a sign with letters 1 1/2 inches high, clearly legible, bearing the following text:

'The object of this picketing is to compel the store owner to sign a closed shop contract with Retail Clerk's Union Local No. 1460, A. F. of L.

'His clerks are not on strike, do not wish to join the union and are satisfied with wages, hours and working conditions.'

Except as above authorized, all picketing was enjoined, and, upon failure of the union to exercise the privilege granted within 15 days from the date of the order, the temporary injunction was made unconditional.

By proper assignments of error and cross-errors, the correctness of each of the trial court's conclusions of law and that part of the temporary injunction undertaking to prescribe a form of permissible picketing is challenged.

Prior to the enactment of any statute upon the subject in this state, this court recognized, under the principles of the common law, the right to picket in controversies between an employer and his employees, where there was no resort to force, threats, intimidation, or other unlawful means. Karges Furniture Co. v. Amalgamated, etc., Union, 1905, 165 Ind. 421, 75 N.E. 877, 2 L.R.A.,N.S., 788, 6 Ann.Cas. 829. This right, when lawfully used. has been declared to be a proper exercise of free speech and peaceable assemblage and the right to use the public streets and highways. It has also been held that when such picketing is accompanied by force, intimidation, or coercion it becomes unlawful and will be enjoined by the court in the exercise of its equitable powers. Thomas v. City of Indianapolis, 1924, 195 Ind. 440, 145 N.E. 550, 35 A.L.R. 1194. Picketing becomes unlawful when either the object thereof or the means used is unlawful. Thus picketing for an unlawful purpose will taint and render unlawful acts done in furtherance thereof which would have been lawful if done for a legitimate purpose; and, conversely, a lawful objective will not justify the employment of means which are themselves unlawful. Local Union No. 26, National Brotherhood of Operative Potters v. City of Kokomo, 1937, 211 Ind. 72, 83, 5 N.E.2d 624, 108 A.L.R. 1111; McKay v. Retail Automobile Salesmen's Local Union No. 1067, Cal.App. 1939, 89 P.2d 426; Id., Cal.App., 90 P.2d 113.

In 1933 the General Assembly passed what is commonly known as our ...