State ex rel. Culinary Workers Union, Local No. 226 v. Eighth Judicial District Court in and for Clark County, 3561

• Decision Date: 24 June 1949
• Docket Number: No. 3561,3561
• Parties: STATE ex rel. CULINARY WORKERS UNION, LOCAL NO. 226 et al. v. EIGHTH JUDICIAL DISTRICT COURT IN AND FOR CLARK COUNTY et al.
• Court: Nevada Supreme Court

Page 454

210 P.2d 454

66 Nev. 166

STATE ex rel. CULINARY WORKERS UNION, LOCAL NO. 226 et al. v. EIGHTH JUDICIAL DISTRICT COURT IN AND FOR CLARK COUNTY et al.

No. 3561.

Supreme Court of Nevada.

June 24, 1949.

Rehearing Denied Oct. 11, 1949.

Robert W. Gilbert, Los Angeles, Cal., and John W. Bonner, Las Vegas, attorneys for relators.

Morse & Graves, Las Vegas, and Brown & Wells, Reno, attorneys for respondents.

HORSEY, Chief Justice.

This Court has had occasion heretofore, in City of Reno v. Second Judicial District Court, 59 Nev. 416, 95 P.2d 994, 125 A.L.R. 948, to express the views of the majority of the Justices upon the question of the lawfulness of peaceful picketing. Until our recent opinion written by Eather J. and concurred in by Horsey, C. J., and the dissenting opinion by Mr. Justice Badt, in State ex rel. Culinary Workers Union, Local No. 226, et al. v. Eighth Judicial District Court in and for Clark County et al., 66 Nev. ----, 207 P.2d 990, and in which a rehearing has been petitioned and is now pending, the last expression of this court was in the year 1939, in the able and extensive opinion by Mr. Justice Ducker, concurred in by Mr. Chief Justice Taber, in City of Reno v. Second Judicial District Court, supra.

In the latter opinion, Mr. Justice Ducker repeatedly referred to Senn v. Tile Layers Protective Union, 301 U.S. 468, 57 S.Ct. 857, 862, 81 L.Ed. 1229, and, in that connection, in 59 Nev. 416, 95 P.2d 994, the learned Justice, on pages 441-442 of 59 Nev., and on page 1004 of 95 P.2d, stated:

'In Senn v. Tile Layers Protective Union, supra, the constitutionality of state anti-injunction legislation designed to prohibit judicial interference with peaceful picketing, was declared, and the intimation that such picketing is protected by the constitutional guaranty of free speech, is too plain to be misunderstood.

'In Ex parte Lyons, 27 Cal.App.2d 293, 81 P.2d 190, 193, it was declared: 'In this state the right to peacefully picket rests upon the constitutional guaranty of the right of free speech.''

Mr. Justice Ducker then stated:

'The ordinance on its face, in sections 2 and 4 is obviously adapted to protect the employer from annoyance and incidental loss of business rather than to protect the public in maintaining its peace and the unobstructed use of the streets. But such annoyance and loss in a labor dispute are not tortious nor do they constitute an invasion of any constitutional rights. Senn v. Tile Layers Protective Union, supra. These sections bear no reasonable and substantial relation to the promotion of the public safety, health, morals, general welfare, for which the exercise of the police power may be invoked.

'I am of the opinion that sections 2 and 4 of the Reno City Ordinance No. 480 are unconstitutional and void, in that they invade the constitutional guaranties of the due process of law clauses of the federal and state constitution, and of section 9 of Article 1 of the state Constitution guaranteeing free speech and forbidding the state to pass any law to restrain or abridge the liberty of speech. * * *'

We have, in our recent majority opinion in State ex rel. Culinary Workers Union, Local No. 226 et al. v. Eighth Judicial District Court, in and for Clark County et al., supra, cited, and quoted from, American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 570, 85 L.Ed. 855, American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 209, 42 S.Ct. 72, 78, 66 L.Ed. 189, 27 A.L.R. 360, and many other cases of importance involving the right and lawfulness of peaceful picketing. The members of this court have had occasion, since our recent opinion in State ex rel. Culinary Workers Union v. Eighth Judicial District Court et al., supra, again carefully to consider them in connection with respondents' petition for rehearing, together with the additional authorities in support thereof, and those of the relators in support of their assertion that same should be denied, and it is the view of the majority that the constitutional principles involved are so fundamental and conform so closely to the views of the majority of this court, and which, as we believe, represent the great weight of American authority, that we discern no useful purpose to be served in granting or ordering a rehearing. In the absence of any applicable constitutional provision or statute in Nevada enacted since the opinion in City of Reno v. Second Judicial District Court, supra, or and decisions of other states concerning which we entertain reasonable doubt as to the correctness of our views, we would not be justified in overruling City of Reno v. Second Judicial District Court, supra. Relative to the latter, the majority of this court entertain no such reasonable doubt, but, on the contrary, adhere fully to the view of the majority of this court in City of Reno v. Second Judicial District Court, supra, so clearly and ably expressed therein by the late Mr. Justice Ducker, and concurred in by the late Mr. Chief Justice Taber.

It may be contended that the Act of 1911, Sec. 10473, N.C.L., Vol. 5, was not directly invoked or necessarily involved in City of Reno v. Second Judicial District Court, supra, even though such statute was enacted long prior thereto. That may be true, but we dare say it would have been directly involved were it not for the fact that said statute, Sec. 10473, was generally considered to be based upon what has been usually designated as a 'yellow dog' or 'company union' contract, and not within the meaning or purview of a 'Right to Work' statute. The majority of this court, in State ex rel. Culinary Workers Union v. Eighth Judicial District Court, supra, 66 Nev. ----, 207 P.2d 990, at pages 997-998, has stated:

'The Supreme Court of the State of California was faced with this same problem of statutory construction in Shafer v. Registered Pharmacists Union, 16 Cal.2d 379, 106 P.2d 403, 407, and in that case reached the conclusion that this type of statute was not intended to outlaw union security agreements reached by collective bargaining. That court pointed out: '* * * the clause 'to join or to remain a member of a labor organization' may not reasonably be construed as prohibiting a promise to join an independent labor union. Although the term 'labor organization', taken by itself, is broad enough to refer to either a company or an independent union, the purpose of the legislation must be considered in arriving at a conclusion concerning its meaning. If the words are meant to designate an independent union, then it is against public policy for an employee or prospective employee to join such an organization, which is a result exactly contrary to the declaration of policy in section 923. * * * These and other considerations render untenable the contention that union shop contracts in California are void under section 921. As has already been noted, the usual company union contract is an individual agreement between the employer and an employee, whereas the union shop contract is an agreement running between the employer and the union as an entity.'

'The Nevada act here in question makes certain agreements unlawful when entered into with an employee or 'person about to enter the employ' of another and is therefore aimed expressly at individual agreements. It does not mention or prohibit collective agreements or agreements with labor organizations as such, and we concludes as did the California court in the Shafer case, that this law was not enacted for the purpose of making collective union security agreements unlawful.

'Respondents have cited the so-called 'Right to Work' cases to support their contention that the 1911 act is a valid enactment prohibiting closed shop agreements. In these cases, however, the supreme court clearly distinguishes the long-standing anti-yellow-dog contract laws and the very recent legislations involved in the cases. After discussing the history of the anti-yellow-dog contract legislation, Mr. Justice Black, in upholding the recent laws concluded that: 'Just as we have held that the due process clause erects no obstacle to block legislative protection of union members, we now hold that legislative protection can be afforded non-union workers.'

'From our study of the legislative history and the background of the 1911 act it is plain to us that this act was enacted to prohibit the 'yellow-dog' type of contract and to protect workers from compulsion to join company dominated unions, but that the law does not by its terms outlaw union security agreements obtained through the process of collective bargaining.

'If the opponents of union security agreements wish to have them declared unlawful they should address their demands to the legislature for a clear and unmistakable mandate and not appeal to this court for such declaration under color of a law that was never intended to fulfill that purpose.'

The provisions of Section 10473, N.C.L. 1929, Vol. 5, are as follows: 'It shall be unlawful for any person, firm or corporation to make or enter into any agreement * * * by the terms of which any employee of such person * * * shall promise or agree not to become or continue a member of a labor organization, or shall promise or agree to become or continue a member of a labor organization.'

Bearing in mind the historical background of the statute, the first clause of the provision, to the effect that 'it shall be unlawful' to 'promise or agree not to become or continue a member of a labor organization * * *', is considered entirely clear. Certain employers in many states, by coercion, intimidation and oppressive methods, had prevented contracts between the employers and their employees, by which the employees were free to join labor organizations in order the better to promote and protect such employees in their rights to enter into collective bargaining and to enjoy the legitimate benefits which naturally result from...