Weyerhaeuser Timber Co. v. Everett Dist. Council of Lumber & Sawmill Workers, 28348.

• Decision Date: 04 December 1941
• Docket Number: 28348.
• Citation: 11 Wn.2d 503,119 P.2d 643
• Court: Washington Supreme Court
• Parties: WEYERHAEUSER TIMBER CO. v. EVERETT DIST. COUNCIL OF LUMBER & SAWMILL WORKERS et al.

119 P.2d 643

11 Wn.2d 503

WEYERHAEUSER TIMBER CO. v. EVERETT DIST. COUNCIL OF LUMBER & SAWMILL WORKERS et al.

No. 28348.

Supreme Court of Washington, En Banc.

December 4, 1941

Suit by Weyerhaeuser Timber Company, a corporation, against Everett District Council of the Lumber & Sawmill Workers, an unincorporated association, and others, for an injunction to restrain defendants from picketing plaintiff's plants. From an adverse decree, plaintiff appeals.

Affirmed by a divided court.

STEINERT BEALS and SIMPSON, JJ., dissenting.

Appeal from Superior Court, Snohomish County; Charles R. Denny judge.

W. E Heidinger and T. J. Hanify, both of Tacoma, for appellant.

L Presley Gill, of Seattle, for respondents.

BLAKE Justice.

Plaintiff brought this action for an injunction to restrain defendants from picketing three of its plants at Everett. The defendants are Everett District Council of the Lumber & Sawmill Workers, J. W. Whitley, its president, D. F. Pearson, its secretary and business agent, and various local unions and their officers. These unions are all chartered by the United Brotherhood of Carpenters and Joiners of America, an affiliate of the American Federation of Labor. The local union directly involved in the controversy is Lumber & Sawmill Workers Union, Local No. 2653.

In 1937, the latter entered into a working agreement with the plaintiff, which covered the three plants around which this controversy revolves. The defendant Local 2653 gave notice of termination of that agreement on April 15, 1939. Subsequently, there was sporadic picketing of plaintiff's plants, which was discontinued about the middle of September, 1940.

Under date of October 25, 1940, defendant Everett District Council made demand upon the plaintiff for 'a seventy cent (70¢) per hour minimum wage and a week's vacation with pay, with a corresponding increase for all bracket men.' On October 24th, a strike had been called for October 29th unless, in the meantime, their demands were met. At that time, not more than twelve members of Local 2653 were working in plaintiff's mills at Everett. Aside from officers and supervisory employees, the plaintiff was then employing 1,277 men, 858 of whom had joined the Industrial Woodworkers of America, which is chartered by the Committee for Industrial Organization. At about the same time, a majority of its employees in the Everett mills having designated Industrial Woodworkers of America as their bargaining agent, plaintiff entered into a working agreement with that organization. Learing that such an agreement was contemplated, Local 2653, on October 17th, informed plaintiff as follows:

'We, at this time, wish to notify you that we protest any claim by the I. W. of A. to represent a majority of your employees, and we also protest the making of any agreement between your company and that organization.'

At or about the time the agreement between plaintiff and the Industrial Woodworkers of America was entered into, Local 2653 'called a strike and, on October 29th, threw a picket line around two of the plants. On that day and until a temporary restraining order was issued in this action, several hundred pickets were in line. There were threats, but no acts of violence were perpetrated.

Upon the hearing for an injunction pendente lite, the court entered an order by which defendants were '* * * enjoined, restrained and prohibited from picketing any of the mills or premises of the plaintiff in or immediately north of the City of Everett, Snohomish County, Washington, in any manner other than by maintaining not more than five pickets or persons at or near the main entrance to plaintiff's Mills 'B' and 'C' immediately north of said City of Everett to, in a peaceable and orderly manner, advise the public or persons entering said premises of the existence of, or facts concerning, a labor dispute or strike at said mills; and * * * enjoined, restrained and prohibited from in any manner whatever interfering with, molesting, hindering, delaying, obstructing or preventing any persons whomsoever, whether employees of the plaintiff, or customers thereof, or otherwise, from entering or leaving any part of plaintiff's aforesaid premises at any time, in any manner, or for any purpose; * * *.'

The final decree was similar in terms and to the same effect, except in one particular: 'Provided that the said defendants be and they are hereby permitted to use a boat displaying a banner with the legend 'Weyerhaeuser Timber Co. Mills B and C are unfair to organized labor--We are on strike for more money--Lumber & Sawmill Workers, A. F. of L.' and to use said boat for the purpose of publicizing the true facts of any dispute between the parties by patrolling in the Snohomish River and in Puget Sound, but at least one-quarter of a mile distant from any dock, wharf or booming grounds of the plaintiff; * * *.'

From this decree, plaintiff appeals.

Appellant contends that the injunction should have been broader in scope, restraining picketing of any kind. It bases this contention on two theories: First, that the provisions of the Laws of 1933, Ex.Sess., chapter 7, p. 10, Rem.Rev.Stat. (Sup.) § 7612-1 et seq, the anti-injunction act, are inapplicable because (a) no labot dispute existed between it and its employees, and (b) the picketing, in its inception, was accompanied by violence; second, that having, in compliance with the National Labor Relations Act, 29 U.S.C.A. §§ 157, 158(5), recognized and entered into a working agreement with the Industrial Woodworkers of America, the bargaining agency chosen by a majority of the employees, appellant cannot be subjected to picketing by a minority of its employees.

First. (a) Contending that no labor dispute existed, appellant relies upon our decisions in Safeway Stores v. Retail Clerks' Union, 184 Wash. 322, 51 P.2d 372; Fornili v. Auto Mechanics' Union, etc., 200 Wash. 283, 93 P.2d 422; and Shively v. Garage Employees Local Union No. 44, 6 Wash.2d 560, 108 P.2d 354. In those decisions, the court held that a labor dispute does not exist unless there is a master and servant relationship between the strikers and the proprietor of the struck shop. Obviously, the decisions have no application here, for such employer-employee relationship did exist between appellant and its employees who were members of Local 2653. The fact that they constituted a small minority made their controversy with appellant none the less a labor dispute. American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 42 S.Ct. 72, 66 L.Ed. 189, 27 A.L.R. 360; Fur Workers Union, Local No. 72 v. Fur Workers Union, 70 App.D.C. 122, 105 F.2d 1.

(b) Contending that the restriction on the power to grant injunctions imposed by Rem.Rev.Stat. (Sup.) § 7612-13, is not applicable when picketing is accompanied by violence, appellant cites the recent case of Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552, 557, 85 L.Ed. 836, 132 A.L.R. 1200.

That case is clearly distinguishable from this. The injunction granted by the district court in that case was sustained because of continuing acts of violence resulting in injury to persons and damage to property. Even so, the court there said:

'The injunction which we sustain is 'permanent' only for the temporary period for which it may last. It is justified only by the violence that induced it and only so long as it counteracts a continuing intimidation. Familiar equity procedure assures opportunity for modifying or vacating an injunction when its continuance is no longer warranted. Here again, the state courts have not the last say. They must act in subordination to the duty of this court to enforce constitutional liberties even when denied through spurious findings of fact in a state court.' (Italics ours.)

In this case, there was no damage or destruction of property nor assault upon persons. There was, of course, not only the threat of violence inherent in mass picketing, but also actual threats of violence, which would, no doubt, have been carried into action but for the submission of the persons to whom they were addressed. But we do not think that respondents, for that reason, forfeited their now well-established right of peaceful picketing. O'Neil v. Building Service Employees International Union No. 6, Wash. 115 P.2d 662; Edwards v. Teamsters Local Union No. 313, Wash., 113 P.2d 28; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Carlson v. California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104; American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855. Indeed, the supreme court of the United States upheld the right of peaceful picketing in American Steel Foundries v. Tri-City Council, supra, notwithstanding the dispute had its inception in mass picketing accompanied by force and violence. The late Chief Justice Taft, speaking for the court said [257 U.S. 184, 42 S.Ct. 77, 66 L.Ed. 189, 27 A.L.R. 360]:

'A restraining order against picketing will advise earnest advocates of labor's cause that the law does not look with favor on an enforced discussion of the merits of the issue between individuals who wish to work, and groups of those who do not, under conditions which subject the individuals who wish to work to a severe test of their nerve and physical strength and courage. But while this is so we must have every regard to the congressional intention manifested in the act and to the principle of existing law which it declared, that ex-employees and others properly acting with them shall have an opportunity, so far as is consistent with peace and law, to observe who are still working for the employer, to communicate with them and to persuade them to join the ranks of his opponents in a lawful...