Safeway Stores, Inc. v. Retail Clerks' Union, Local No. 148

• Citation: 51 P.2d 372,184 Wash. 322
• Decision Date: 08 November 1935
• Docket Number: 25637.
• Court: United States State Supreme Court of Washington
• Parties: SAFEWAY STORES, Inc., v. RETAIL CLERKS' UNION, LOCAL NO. 148, et al.

51 P.2d 372

184 Wash. 322

SAFEWAY STORES, Inc., v. RETAIL CLERKS' UNION, LOCAL NO. 148, et al.

No. 25637.

Supreme Court of Washington, En Banc.

November 8, 1935

Appeal from Superior Court, Cowlitz County; J. E. Stone, Judge.

Action by Safeway Stores, Inc., against Retail Clerks' Union Local No. 148, and others. From a judgment, plaintiff appeals.

Reversed and remanded, with directions.

Ryan Askren & Ryan, of Seattle, for appellant.

Vanderveer & Bassett, of Seattle, for respondents.

L Presley Gill and Harroun, Maloy & Shidler, all of Seattle amici curiae.

MITCHELL Justice.

The plaintiff, Safeway Stores, Inc., is engaged in the retail grocery and meat market business in Kelso and Longview. The defendant, Retail Clerks' Union, Local No. 148, at the commencement of this action was, and still is, engaged as a clerks' union in the two cities. The defendants Hunter and Wessel were, respectively, president and secretary of the Local No. 148 at the date of the commencement of the action. The action was brought for a temporary injunction and for a final or permanent injunction against defendants picketing plaintiff's places of business, and to recover judgment for damages.

In substance, it is alleged in the complaint, which was made and filed June 27, 1934, (1) that the plaintiff is a corporation of Nevada, licensed to do business in this state; (2) that it has two stores in Kelso and two stores in Longview; (3) that Retail Clerks' Union, Local No. 148, is engaged as the clerks' union in the two cities, and that Hunter and Wessel are, respectively, president and secretary of Local No. 148.

(4) That for some months prior to June 23, 1934, acting through its members and its organizer, one Leach attempted to organize all of the clerks in the two cities into one union, and, to accomplish that purpose, approached the managers of certain stores belonging to plaintiff in the two cities in an attempt to cause all of the employees in plaintiff's stores to join Local No. 148; (5) that none of the employees, so far as plaintiff is aware, are members of Local No. 148, but all are receiving wages as high or higher than salaries provided by the National Recovery Act (48 Stat. 195), and all are employed not longer hours than provided in that act; (6) that the plaintiff has at no time questioned or advised any of its employees concerning affiliation with Local No. 148, or any other union organization, and has taken no part in the question of whether any of its members should belong to Local No. 148, and, as far as plaintiff knows, all its employees are satisfied with their hours of labor and their compensation.

'(7) 'That notwithstanding the fact that there has been no controversy between this plaintiff corporation and the defendant Local No. 148 or any of its officers or members, the said union and its members and officers acting in concert and in conspiracy to injure and to damage the plaintiff's businesses in the cities of Longview and Kelso, Washington, did on the morning of Saturday, June 23rd, 1934, place and post pickets in front of each of said stores in Longview and Kelso; that said pickets wear banners of the kind known as 'sandwich picket banners' which bear upon the front, as well as upon the reverse, words stating that the store in front of which they are parading is unfair; that said pickets begin their labors between 9:30 and 10:30 A. M. and are changed every three or four hours; that said pickets spend practically all the time directly in front of the entrance of plaintiff's places of business, to the annoyance of patrons coming to said places of business to trade and to the injury of the business of plaintiff; that said picketing has continued ever since the 23rd day of June, 1934, and continues to this date. That said pickets talk to said prospective customers and to customers leaving plaintiff's places of business, and that said pickets have diverted and will continue to divert business away from plaintiff's places of business and will unless restrained by the Court continue their illegal operations, all to the irreparable damage and injury of the plaintiff.

(8) That defendants are insolvent and unable to respond in damages for the amount of loss they have caused, and will continue to cause, plaintiff, and that plaintiff has no adequate remedy at law, nor otherwise, than in a court of equity; (9) that plaintiff has been damaged by the defendants in the sum of $5,000, and will continue to be damaged by them if permitted to continue their picketing.

(10) 'That the defendants' sole purpose in picketing plaintiff's places of business is to compel the employees of the plaintiff to join said Local No. 148 and become members of said union. That this plaintiff has no control over its employees as to whether they shall or shall not join said union and it is unfair and inequitable to permit the defendants to divert business from the plaintiff and to damage and injure its businesses in their attempt to force employees of plaintiff to join said Local No. 148.'

(11) That plaintiff cannot compute with the accuracy required by law the damage defendants have caused, and will cause, in the future.

The defendants answered jointly on July 11, 1934, alleging in effect: (1) They deny on information and belief the allegations in paragraph I of the complaint. (2) They admit the allegations in paragraph II of the complaint. (3) They admit the allegations in paragraph III of the complaint, including the allegation that Hunter and Wessel were president and secretary of Local No. 148 at the commencement of the action, but allege that they were not such officers at the date of the answer. (4) They admit the allegations in paragraph IV of the complaint. (5) They deny the allegations in paragraphs V and VI of the complaint.

(6) 'They deny that no controversy existed between the plaintiff corporation and the defendants, but to the contrary allege that the defendants have been not only hampered in seeking to organize the clerks in the several establishments in controversy in this action, but have been denied the privilege and a continual dispute between plaintiff and defendants has existed ever since the organization of Retail Clerks' Union, Local No. 148; defendants further admit that they have advertised the unfairness of the plaintiff corporation's stores by banners stating such unfairness, said banners being carried by persons known as sandwich banners, but further deny that such advertising annoyed any of plaintiff corporation's patrons and further deny that said persons carrying the banners heretofore specified, talked to the customers or patrons of plaintiff's and that such advertising has diverted any business from plaintiff's places of business to the damage of plaintiff.'

(7) They deny the allegations in paragraphs VIII and IX of the complaint. (8) They deny the allegations in paragraphs X and XI of the complaint.

An application for a temporary injunction resulted in a denial of relief, and thereafter, as Before , picketing continued until the date of the final hearing on the merits October 11, 1934.

The finding, conclusion, and judgment signed and entered in the cause are as follows:

'This matter having come regularly on for hearing Before the court upon this 11th day of October, 1934, both sides having announced themselves ready for trial, and the plaintiff being represented by its attorneys, Ryan, Askren & Ryan, and the defendants being represented by their attorney, E. H. Kohlhase, and both sides having offered evidence and rested and having thereupon argued the matter to the court and the court having taken the matter under advisement and being fully satisfied in the premises, the court finds that the plaintiffs have suffered damages in the sum of $2200.00 during the period that said picketing has been going on in front of the stores in Kelso and Longview, but is of the opinion that under the laws of the State of Washington and more especially Chapter VII. of the Session Laws of 1933, relating to picketing, that the plaintiff is not entitled to any relief,

'Now, therefore,

'It is ordered and adjudged, that the above entitled action be and the same hereby is dismissed to which ruling the plaintiff excepts and its exception is allowed.

'Done in open court this 27 day of October, 1934.'

The plaintiff has appealed.

According to a memorandum opinion of the trial court, the theory of the respondents in their defense, approved by the finding and judgment of the trial court, was that the case is controlled by certain portions of chapter 7, Laws Extraordinary Session 1933 (page 10). Upon referring to certain facts and evidence, the memorandum opinion says:

'This resulted in the defendant Union placing pickets in front of the plaintiff's places of business in the said cities and the question presented to the court at this time is whether or not there is a labor dispute within the meaning of Chapter Seven of the Session Laws of 1933 relating to such matters. Section 4 of this Act reads

"Sec 4. No court of the State of Washington shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute or prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts: * * * (e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence;'

'A 'labor dispute' as defined by Section 13 of this Act so far as the same applies to this case, reads

"Sec 13. * * * (c) the term 'labor dispute'...