Shively v. Garage Employees Local Union No. 44

• Decision Date: 12 December 1940
• Docket Number: 28155.
• Citation: 6 Wn.2d 560,108 P.2d 354
• Parties: SHIVELY v. GARAGE EMPLOYEES LOCAL UNION NO. 44 et al.
• Court: Washington Supreme Court

108 P.2d 354

6 Wn.2d 560

SHIVELY v. GARAGE EMPLOYEES LOCAL UNION NO. 44 et al.

No. 28155.

Supreme Court of Washington, En Banc.

December 12, 1940

As Corrected on Denial of Rehearing February 5, 1941.

Action by J. E. Shively and another against the Garage Employees Local Union No. 44 and another to enjoin defendants from picketing plaintiffs' places of business or using any coercive measures whatsoever with intent to force plaintiffs to discharge their present employees, or compel them against their will to join defendant union. From a judgment of dismissal with prejudice, plaintiffs appeal.

Judgment reversed, with instruction.

BLAKE C.J., MILLARD, BEALS, and DRIVER, JJ., dissenting.

Nonunion employers employing nonunion employees allegedly satisfied with their wages, hours, and conditions of employment were entitled to injunctive relief as against union engaged in picketing employers' places of business with the alleged intent of forcing employers to discharge their employees or compel them against their will to join union, and that relief could be granted without violating the constitutional guaranty of freedom of speech. U.S.C.A.Const. Amends. 1, 14.

Appeal from Superior Court, King County; Robert M. Jones, judge.

Henry Clay Agnew, of Seattle, for appellants.

Bogle Bogle & Gates, Ray Dumett, and Stevenson & Gershon, all of Seattle, amici curiae.

Vanderveer Bassett & Geisness, of Seattle, for respondents.

JEFFERS, Justice.

This action was instituted by J. E. Shively and W. V. Frisby against Garage Employees Local Union No. 44 and Gordon Lindsay, its secretary and business agent, for the purpose of enjoining defendants from picketing plaintiffs' places of business, or using any coercive measures whatsoever, with the intent to force plaintiffs to discharge their present employees, or compel them against their will to join defendant union.

The complaint alleges that plaintiffs each own and operate a retail gasoline station in the city of Seattle; that plaintiff Frisby has two employees only, and plaintiff Shively one employee; that all the employees of plaintiffs are thoroughly satisfied with their wages, hours and conditions of employment, and have not requested and do not wish the defendant union to act as their bargaining agency.

The complaint further alleges that none of plaintiffs' employees is a member of defendant union, nor is either of the plaintiffs a member of such union; that defendant union has demanded that plaintiffs sign a contract agreeing to employ only members of defendant union; and that the signing of such a contract would force plaintiffs either to compel their employees to join defendant union against their will on threat of loss of their jobs, or to discharge their employees solely because such employees, who are satisfactory to the plaintiffs, had exercised their freedom of choice, as defined by Rem.Rev.Stat.Supp. § 7612-2.

It is further alleged that solely by reason of the refusal of plaintiffs to sign the contract, defendants are now carrying out the following coercive measures directed against the plaintiffs, to-wit: Defendants have caused the places of business of both plaintiffs to be picketed, and have in each case employed a picket to march upon the sidewalk prominently in front of plaintiff's place of business, bearing sandwich signs upon which appear the words, 'Union people look for the union shop card,' and a picture of the official union shop card issued by defendant union. Defendants have caused each picket to openly take the license numbers of cars belonging to plaintiffs' customers, which acts were intended to, and do, result in loss of business to plaintiffs.

The complaint further alleges that as a result of such picketing, plaintiffs are now suffering irreparable injury and damage to their business in loss of profits, which damages are difficult of proof, and that plaintiffs have no plain, speedy or adequate remedy at law.

To this complaint defendants interposed a demurrer upon the grounds, first, that it does not state facts sufficient to constitute a cause of action against the defendants or either of them, and second, that it does not state facts sufficient to entitle the plaintiffs, or either of them, to the relief prayed for, or to any relief whatsoever.

The matter came on for argument on the demurrer July 29, 1940, after which the trial court made and entered an order sustaining the demurrer to the complaint, upon the sole ground that 'by reason of the Fourteenth Amendment to the Constitution of the United States, it does not state facts sufficient to constitute a cause of action.' The reason for the trial court's ruling more fully appears in the body of the above order, in the following language: 'And the court having heard the arguments of counsel and being of the opinion that the activities of the defendants which the plaintiffs seek to enjoin are among the fundamental personal rights and liberties secured to all persons by the Fourteenth Amendment to the Constitution of the United States, and that to enjoin such activities would deprive the defendants of freedom of speech and of the press guaranteed them by said amendment, and the court being fully advised in the premises * * *.'

Plaintiffs having refused to plead further, and having elected to stand on their complaint, the court, on July 30, 1940, entered a judgment of dismissal with prejudice, and this appeal by plaintiffs follows.

Appellants make the following assignments of error: (1) That the court erred in sustaining the demurrer; (2) in refusing a temporary restraining order; and (3) in dismissing the cause of action.

Appellants have stated the questions involved as follows:

(1) Is picketing by a labor union, with the intent thereby to force employees to join a union contrary to their desires, unlawful?

(2) Do the provisions of the Federal and State Constitutions, guaranteeing the right of free speech, deprive the court of power to prevent picketing for an unlawful or criminal purpose?

Respondents, on the other hand, state the questions involved in the following manner:

(1) Do the provisions of the Federal Constitution, guaranteeing freedom of speech and of the press, authorize members of a labor union to 'peacefully picket' an employer's place of business for the purpose of informing the public, and particularly members of organized labor, that such employer does not hire union labor?

(2) Do the inhibitions of the Fourteenth Amendment to the Constitution of the United States apply to state courts as well as to all other departments and agencies of state government?

We do not think the propositions as stated by either of the parties quite cover the questions which we believe are presented for our determination. We are of the opinion respondents' first question is objectionable at least for the reason that it assumes the picketing in the instant case was done for a purpose different from that alleged in the complaint. This matter being here only on the pleadings, we must assume as true the facts well pleaded, which of course are admitted by the demurrer. Neither do we think the first question stated by appellants quite covers the situation here presented.

We think the question presented may be stated as follows: Does the Fourteenth Amendment to the United States Constitution prevent the courts of this state from granting injunctive relief against a labor union and the members thereof, to prohibit such union from peacefully picketing the place of business of a non-union employer, none of whose employees is a member of such union, where the purpose of such picketing has been held to be unlawful?

In the following cases we have held 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: Safeway Stores, Inc. v. Retail Clerks' Union, 184 Wash. 322, 51 P.2d 372; Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 63 P.2d 397; Adams v. Building Service Employees etc., Union, 197 Wash. 242, 84 P.2d 1021; Fornili v. Auto Mechanics' Union, 200 Wash. 283, 93 P.2d 422; United Union Brewing Co. v. Beck, 200 Wash. 474 93 P.2d 772; Bloedel Donovan Lbr. Mills v. International Wood-Workers, Wash., 102 P.2d 270.

Inasmuch as the Safeway case, supra [184 Wash. 322, 51 P.2d 379], is cited and approved in the other cases above cited, and because we will hereinafter refer especially to a certain part of that opinion, we believe we should again set out certain portions of that opinion, and from it we therefore quote:

'The vital, controlling question at issue here is plain and easy of solution. It in no way pertains to the relations between the appellant, a merchant, and its employees. For aught that appears, they are content and satisfied, among themselves. On the contrary, this a lawsuit between appellant and a third party--a labor union that does not include in its membership any employee of the appellant. What right have the respondents to insist or demand, at the threat or cost of the destruction of appellant's business, or at all, that appellant ask, urge, or coerce, directly or indirectly, its employees, who are at liberty to do as they please, to join respondents' organization? Of course, there is nothing unlawful in hiring clerks or salesmen who are not members of a local organization such as the respondent, and any attempt, like that in this case, to deny or cripple one's right to do so, is an unwarranted attempt by individuals or persons to unreasonably interfere with the freedom of the liberty and property right of contract.

'The conduct of respondents, in conjunction

...