*1 885: Skylark Cafe, Inc., corporation; J. a Carl reversed, judgment with directions Lockett, Restaurant; Carl’s Charles d/b/a quash the writ of certiorari. Stow Stow, copartners, and Hazel d/b/a UDALL, Shops; Arizona WINDES, Hotel J., PHELPS Coffee C. and S. W. Hub Merry bard Hubbard, copartners, and E. STRUCKMEYER, and JJ., concur. Colachis, 307; Hubbard’s Sam C. d/b/a Sr., Note: This prepared Colachis, Jr., Sam C. James W. Co Jus- lachis, Fontinos, Christ Cui and Nick prior LA tice ARTHUR PRADE T. manes, Saratoga copartnership, a d/b/a untimely his 1957. death on June Cafe; Confectionery, Inc., Donofrio’s corporation; George Phacas, PER approve We it and release it as Colon d/b/a Cafe; ial Miller, Miller, Sr., A. S. A. S. opinion. CURIAM Jr. and Miller, copartners, Bruce M. d/b/a Cafeteria; Gosnell, Miller’s Robert E. Gables; Douglas Green and
d/b/a Lee Lee, Rose copartners, Lee’s Restau d/b/a rant; Newton, L. J. Prime Newton’s d/b/a Rib; Greenway Shop, Coffee Palomine Shop, Coffee Flamingo Shop Coffee and P.2d 759 Lounge, Jays Cocktаil Rail; and Brass Hunt, individually Joe BALDWIN, Johns, as Sec and Joseph Chet W. Don A. F. Mar Agent tori retary-Treasurer and Comer, Business Horace copartners, E. d/ Employees Bar Joe House; & Hunt’s Restaurant the Hotel & Steak b/a and Jack 631; Malcoff, & Malcoff and Hotel Sol copartners, Union Local No. tenders d/b/a Malcoff’s, Employees Plaintiffs-Appellees, Bartenders Restaurant 631; Restau Doyle, Local No. Hotel & Union Gene Circle M Cafe and Kil d/b/a Employees larney Bartenders Interna (Smorgasbord); rant James, Dale d/b/a DeTalente, Union, A.F.L.; George Spur; Abbott, tional Silver Ann Shed d/b/a individually Lo as President said Plaintiffs-Appellees, Added Lann, Lillie agents, 631; Packer, John Does Louise Southern, cal Samuel Frances servants Farthing, of aforesaid Bar Holland and members Melba Intervening Unions, Appellants, Plaintiffs-Appellees. tenders No. 6020. RESTAURANT, Inc., FLAME ARIZONA Supreme Court of Arizona. Village Management corporation; Western June corporation; Clyde Corporation, a R. Gar Garland, copartnership, and Gale land Dryv Inn; Central John P. Schroe d/b/a Schroeder, copartners, Jean B.
der Inn; North Town Drive Milton’s
d/b/a *3 Muecke, Phoenix,
Parker & appel- for lants. Strouss,
Jennings, Salmon Trask, & Irv- Jennings, A Duncan, Clarence J. John Madden, E. and Spector, Albert B. Phoenix, appellees. Schneier, Tucson, Ira Herbert B. Finn Stephen Gorey, and Phoenix, S. amici curiae. shop” “joint PRADE, clause, examining board”
LA Justice. clause, Picket “hiring hall” clause. of inter- appeal a decree This is an from immediately established there- lines were locutory injunction enjoining defendant 26, 1954, restau- after. On March picketing of the establishments from plaintiffs complaint seeking rant filed appellant, Hotel plaintiffs. The enjoin picketing against defendant union’s Employees’ Bartenders’ Restaurant establishments, ground their on the Union, one of the defend- No. Local being such execution conducted force below, be referred will hereinafter ants bargaining of an unlawful con- collective union; appellees- as the defendant (exhibit B). granted The trial court tract as the restau- be referred to plaintiffs will temporary prayed for. restraining order plaintiffs, intervening plaintiffs or rant quash the Defendant union then moved to appropriate. whichever restraining order and at that irrevo- time February On follow: facts The essential cably bargaining renounced as collective bargaining three-year collective objectives, without conceding ille- between the defendant contract gality, “agency-shop” “one owner” Association, of Restaurant Arizona proposed provisions contract, which except plaintiffs restaurant all court had indicated to be unlawful ob- members, plaintiffs were restaurant added jectives, proposed and amended the agree- agree- by mutual extended expired, and was accordingly. The ment amended contract February Prior until ment defendant’s referred exhibit 9. The agree- pursuant to this expiration date court, upon renunciation, trial modified at- initiated negotiations ment, temporary restraining permit order to contract. a new out tempt work specified picketing. point At this counter- proposals and various after parties, permitted the court certain other restaurant expiration past the final extending proposals owners, subsequent who had to commence- differ- resolve their unable date, were action of this ment become the targets of negotiations through such ences union’s picketing, defendant to be added as majority March On Subsequent plaintiffs. to the date the strike *4 voted the defendant membership each of the was called plaintiffs restaurant plain- restuarant all against replaced strike had some of to the strikers with non- proposed employees, execute a tо refused and who certain tiffs members of replacement (plaintiffs’ group permitted contract were bargaining to collective contained, among as representatives other class intervene action B) which exhibit plaintiffs). clause, (intervening “agency- “one owner” The provisions, restaurant petition employment plaintiffs then filed their threatened a verified inter- original of the terms reinstatement property.” ference with their restraining grounds order on the findings Based of fact the court caused had been strikers vacancies arrived at a conclusion of law to the effect filled; that business had returned to nor- that the picketing of the defendant union mal; longer and that in fact no ex- there was conducted for an purpose unlawful and dispute fide between the a bona isted illegal provisions under the of sections 56- plaintiff management of restaurant 56-1308, Supp. and sectiоns 56- majority employees. of its 56-1311, 1309 to Supp, A.C.A.1939 court, conducting after a hear- trial
The (section seq., 23-1301 A.R.S.), that,, et ultimately findings of made fact and ing, and', therefore, plaintiffs the restaurant and issued interlocu- conclusions intervening plaintiffs were entitled injunction original re- reinstating tory injunction against its continuance. The picketing all order straining prohibiting trial court addition handed down a mem- plaintiffs’ establishments. restaurant opinion which, orandum upon motion of findings of fact to the effect union, incorporated defendant was as an picket- union’s purpose of defendant the findings amendment to of fact and con- plaintiffs, ex- to the ing was as restaurant clusions of law. effect In de- plaintiffs, con- cept the added restaurant owner”, clared that the “one “agency-shop”, pro- force ducted to the execution “joint examining board” and “hiring hall”' posed bargaining re- collective contrаct illegal clauses constitute collective bargain- B; to as exhibit and as ferred objectives as being in conflict with the plaintiffs to force the execution of added state; laws of this had, that the union there- proposed contract referred to exhibit fore, ends; struck to achieve unlawful specifically It furthermore found regardless of the effect renunciation of the * * * may contract had, four clauses said “That *** plaintiffs, having replaced restaurant discharge per- to cause strikers, longer there no existed a by plaintiffs bona employed and cause sons any of fide the restaurant employment to be denied be- persons majority plaintiffs and a employees, their non-membership in a labor cause that, respectively; therefore, persons other fur- by inducing organization persons; with such ther was violative of to work section refuse attempt compel statute), compel per- (anti-picketing 56-1310 1954 Supp. 23-1322, plaintiffs (section employed by A.R.S.) A.C.A.1939 said sons disregarded court enjoinable. will trial against leave strike *5 390 supra, en- 56-1310, and irrevocably of section is tender
defendant union’s “joint joinable. union contends The defendant “hiring hall” and renounce the 56-1310, supra, pro- opposition section provisions board” examining abridgement (ex- an unconstitutional constitutes posed bargaining contract collective speech of free insured had since of 9), hibit the court which XIV the Amendment of United States Con- unlaw- initial renunciation indicated objec- of With this contention the de- ful; stitution. union’s denied the defendant agreement. findings fact and con- fendant union we tions to the of law; again and clusions of refused to provides 56-1310, supra, Section that: pick- permit peaceful modify its decree to any labor “It shall be unlawful for fact, conclu- eting. findings From organization establish- interlocutory sions of decree ment between unless there exists injunction, taken the defendant union has majority of em- appeal. In the defend- this connection ployees bona of such establishment a fifty-one assign- ant union has submitted dispute work- regarding wages fide ments of error for our consideration. ing conditions.” presented is whether primary issue The well where It settled that law under our justified was the trial court peaceful is conducted for law picketing enjoin- interlocutory injunction to issue an prohibited en purpose it cannot be ful pick- peaceful from ing the defendant joined. prohibition general A on plaintiffs’ establishments. eting of Amendment XIV of violates Constitution, prohibits trial United States written memo interlocutory guarantees decree in action violative of state that the reflects court protect upon a sured Amendment based under the primarily First from appealеd speech, press assembly. the defend- freedom of conclusion Alabama, 56- v. State 310 U.S. of section Thornhill in violation ant union 88, L.Ed. American that after 60 S.Ct. 84 reasoned It is supra. 1310, 736, 1093; replaced of Labor Swing, Federation v. 312 U.S. they employees struck 855; (intervening Culinary employees 85 L.Ed. S.Ct. non-union Bartenders, etc. longer Busy there no Workers v. Bee extent plaintiffs) Cafe, 246; 57 Ariz. 115 P.2d American fide a bona existed Federation Labor v. American & plaintiffs’ establishments Sash restaurant Co., 67 complement Door present Ariz. P.2d 912. of their majority equally proposition pick- is an well-established respectively; that the employees, picketing, peace- even when prohibi- law therefore, comes within eting, enjoined interpretive ful can be conduct- when such is decisions of that court purpose. Giboney v. ed for unlawful re- Constitution are us binding Empire Co., gardless Storage & Ice U.S. personal as to their views 834; Building Serv- 93 L.Ed. In soundness may which we entertain. Employees Union v. Bain, International Gaz- ice American Labor Federation of *6 zam, 532, 784, L.Ed. 339 U.S. 70 S.Ct. 94 183, 165 544, 555, Or. A.L.R. 106 P.2d Graham, 10, 1045; Local No. etc. v. Union where statutes similar in effect 946. L.Ed. attack, 345 U.S. 73 S.Ct. 56-1310, section supra, were under peaceful Thus, enjoin properly court can a the Oregon court, discus- after a learned purposes of which the picketing the include law, sion of provisions struck down objectives accomplishment of which con- as unconstitutional, they saw that stating laws. a of state But stitute violations “ * * * escape no from the con- has the effect of restrain- policy state which clusion right that the denial of such specifical- aim peaceful picketing must to the members less minority of a is no within the allowable area of ly at the evils an unconstitutional abridgement of sweep within its ambit state control simply because speech] free [of ordinary in which circum- other activities it is majority.” saved to the exercise of freedom constitute stances The constitutionality provision of a similar press. Thornhill of speech or v. State of successfully challenged Interna- Alabama, supra. tional Engineers, Union etc. Operating plain wording of section Cox, 148 Tex. 219 S.W.2d 56-1310, supra, requires pre as a condition we are aware of no decision effec- now organization cedent to a labor upholds tive which constitutionality employer establishment of We, such a therefore, statute. hesi- have no there exists a bona fide between tancy declaring 56-1310, supra, section such majority and a of his em be violative Amendment XIV of the Con- ployees. It, therefore, effectively provides stitution of the United States. This stat- circumstances, regard that under all ute, being void, unconstitutional and can- purpose, having less less than upon not form basis which the inter- majority prohibited peаceful from all injunction here locutory assailed can be clearly con picketing. on its face Such grounded. legally peace prohibition against a general stitutes juncture at the United picketing in violation of Without ruling ful on Constitution, legality in as collective as such has been bargaining States ob law, jectives existing highest court in the land. we terpreted by the next turn sought controversial intent to be our consideration four to continue the acts clause, clauses; enjoined “agency-shop” contract to show nothing and there is clause, clause, “hiring falsity owner” hall” "“‘one of his denial.” We “joint examining board” clause. Specifically, we be that find rule n direct con- our these consideration to purposes where peaceful ob- point with provisions tract at this objectives unlawful, include an in deemed when they, ject only whether resolving junction enjoining picketing cannot abandoned, form could subsequently properly be continued after the unlawful could trial court basis purposes, either aas matter of fact or inter- decree properly predicate the objectives cease to be the thereof. Gruet the basis forms locutory injunction which Briner, Mo.1950, Motor Car Co. v. appeal. We 259; Pappas S.W.2d v. Local Ex Joint they could not. Board, ecutive 374 Pa. A.2d is, therefore, that, assuming evident the evidence are satisfied We four contract clauses are unlawful collec finding court’s the trial .'justifies bargaining objectives, tive injunction declaring objective initial enjoining object picketing, the *7 aof the execution force a strike was them, is to which achieve could be based B) (Exhibit contract bargaining collective upon such clauses only long so as its ob clauses four all which contained jectives any included Obviously, them. therefore, must, We sеt forth. above if were irrevocably these clauses renounc included clauses that such assume ed, any there would danger remain no that to be sought objectives initial among of them form would the basis for further picket. At strike achieved demands of the defendant in this however, that reiterate, point it is well particular case. Such revocation would claus four indicated the trial court after effectively amount to change an irrevocable ob bargaining collective be unlawful es to position from which the defendant irrevo had either the defendants jectives, depart could not authoriza without court renounce offered to or renounced cably We, therefore, tion. conclude that once objects of their these clauses each officially, defendant union irrevoca picketing. In 43 peaceful continued C.J. bly unconditionally renounced these 906, it is р. (3), b Injunctions § S. clauses, they, as a matter of could no that stated longer properly regarded have been as ob jects injunction an will of its general picketing. rule Consistent “As a analysis the defendant denies with this we find where denied trial
39a (section 56-1302, obligated court in Supp.; the instant case was sec- A.C.A. accept 23-1302, renuncia- tion A.R.S.), tendered irrevocable reads as follows: clauses, each should of these person op- “No shall be denied accordingly. It ac- modified its order portunity employ- to obtain or retain cepted as and “one “agency-shop” to the ment nonmembership because of respect to owner” clauses but declined labor organization, nor shall the state examining the “hiring “joint hall” and any or thereof, any subdivision or cor- provisions. declining. board” It erred in so poration, individual or association is, therefore, It that none our conclusion any any kind agreement, enter into the four properly clauses is available oral, written or which excludes predicate interlocutory which de- person employment from or continua- cree. employment tion of because of non- membership in a labor organization.”" argue
Plaintiffs that notwithstand parties It is clear prohibited ing allegedly illegal contract demands union, amendment from quite apart entering from its into an agreement, oral, purported subsequent written “renouncement” of would have the effect of allegedly illegal any person excluding clauses contained there in, employment from picket goal it was a of the defendant’s continuation of em- ployment non-membership for very plaintiffs to the end to force in a labor organization. agree replacements (inter discharge peace- follows that where ful respective vening plaintiffs) spеcific at estab conducted purpose of forcing lishments and to reinstate the union agree replace positions; object help strikers in their that such his non-union with union being in members was unlawful as conflict with the who stand as mere strangers at gate, right-to-work his amendment of the Consti runs afoul with the clear state; right-to-work and that il mandate of the being tution of this amendment set legal object it in and of itself constitutes above forth. Hanson v. International enjoinment Union of Operating Eng., for the of de La.App.1955, sufficient basis Indeed, picketing. continued the So.2d fendant’s We entertain no doubt such picketing court as a fact learned trial found would be for an unlawful *8 picket purpose enjoinable. objectives defendant’s the Local one of Union No. “ * * * Graham, supra. to the cause dis- etc. v. ing was Sections 56-1303 plaintiffs. 56-1307, employed by persons Supp. (sections charge of A.C.A. ”* * * amendment, 23-1307, right-to-work A.R.S.). 23-1303 and matter Our The Constitution, purpose whether the Article XXV of of defendant union's Arizona A.R.S. compel position res- picketing was to the favored of the because circum- plaintiffs jobs. to reinstate the strikers they taurant stances under which left laws right-to-work our It is mere they in violation of our that stood as points up key questions: (1) strangers. already pointed Does out two We have support finding compel a continu- striking a that that in to the execution evidence (exhibit proposed was purpose agreement the de- B) of defendant’s Had compel (2) attempting fendant to force the to such reinstatement? union was employer-employee relationship plaintiffs restaurant to submit each plain- clauses, and the strikers four controversial contract ceased between supra, extent that the to the defined below. establishments tiffs’ strangers mere at stood as strikers The “one owner” еffec clause
gate?
provides
tively
one
that not more than
record
from the
It
is clear
perform
working
bona fide
owner can
support the trial
ample
evidence
there
coming
jurisdiction
under the
of the
work
continuing ob
it was
finding
court’s
union;
partic
other
that all
owners in a
union’s
defendant
jective of
ular
in
engaged
establishment who
agree
plaintiffs
restaurant
force
jurisdiction
encompassed within such
tasks
(in
replacements
non-union
discharge
in
employed
be
full accordance with
must
in favor
plaintiffs)
tervening
all of
terms
conditions of the
secretary-
union’s
Defendant
strikers.
agreement.
effect
testify in
toas
far
so'
went
treasurer
requires
“agency-shop” clause
The
line
continue
intended
he
employees
signatory
all of
em-
rein
settlement
satisfactory
until
ployer,
union,
not members of the
either
testi
This
achieved.
matter
statement
periodic
to the union
assessment
tеnder
support
sufficient
be
would
alone
mony
prevailing
dues,
to the
“the
equal
But
score.
finding on
court’s
trial
employers will on demand
the union
light
is considered
when
any employee
discharge
who has failed to
trial court
think the
we
evidence
other
pre-
to the union the assessments
tender
indeed to have
been credulous
would
agreement.”
scribed
on this issue.
otherwise
found
“joint examining
pro-
board” clause
only to determine wheth
remains
for the
vides
establishment of a board to
mere
pickets
this case stood as
er the
members;
ap-
consist
six
three
former em
gates of their
at the
strangers
pointed by the union
and three
em-
enjoyed
ployers.
purpose
some
perhaps
law
ostensible
ployers
*9
law,
objective
prospective
of the strike under our
classify
qualify
board is to
ability
weigh
rights of
working
we must
employees
with their
in accordance
improve
positions through
of men tо
meaning
character. Within
employ-
picketing
media of
and work stoppage,
for
eligible
no one is
clause
right
passed this and the fundamental
of an
acceptably
owner to
ment until he has
conduct his business without
im
undue
board.
pediment
oppression.
Saveall v.
man-
it
makes
hall” clause
“hiring
Demers,
322 Mass.
76 N.E.2d
2 A.
in need
employer
datory
an
who is
1190; Dinoffria
L.R.2d
v. International
exist-
employees notify
union of
Brotherhood,
etc.,
Ill.App.
129, 72
vacancies,
union
job
and allow
ence of
635;
N.E.2d
error dismissed
399 Ill.
supply
twenty-four hours
a minimum
661; Safeway
77 N.E.2d
Stores v. Retail
fill
personnel
examining-board-qualified
Ass’n,
Clerks International
volved pur unnecessary to de- .purpose, constitutes for an unlawful also becomes pose employees right-to- who legal meaning within the of our termine the status of however- legitimate picketing, work and such 'strike to ends. achieve peaceful, enjoined. can be But we convinced, as the trial We are that, observed while *10 called for court, had that if the strike been tоtally enjoined, an purpose unlawful can be plain purpose the restaurant forcing of general prohibition pick against peaceful patrons legal after to sell drinks to tiffs eting a an constitutes unconstitutional an hours, have un been closing such would bridgement speech. of the of free plaintiffs strike, restaurant and the lawful proposition Consistent with con this we are law justified under have been would must strained to also find that a court relationship employer- regarded injunction peace tailor against directed respect to the with employee terminated specific purposes ful picketing to meet Labor Relations National See: strikers. which are facts viola established as Cir., Co., 149 7 Indiana Desk v. Board tive of existing Wagon law. Milk Drivers Relations National Labor 987; Sax v. F.2d Union, Dairies, etc. v. U. Meadowmoor 312 logically Cir., Board, 171 F.2d 836; S. 61 S.Ct. 85 L.Ed. Thorn instant follows that in the reasonably Alabama, hill supra; Building v. State of was purpose of the strike case, where Employees Service International Union ob part to achieve unlawful least at Gazzam, supra. apparent It is that rule plaintiffs restaurant could in jectives, otherwise give would unconstitutional sanc employment regard the manner like general to our courts to direct a re employers end. Such at strikers pur straint on for picketing all unconditionally employ person free then poses- Accordingly for all time. we affirm open labor market to fill from nel prohibiting the decree all by de picketing with created. Consistent this vacancies fendant union but that direct the trial that the status of hold we finding injunction court specify tailor so as to case, they picketed as in this strikers particularity purposes unlawful plaintiffs, of the restaurant establishments picketing defendant union’s form which strangers. We are there mere thе bases therefor. with a situation where confronted fore upon strangers We are called up who stood as mere to rule members plain every theory upon under findings the restaurant on persisted appealed purpose pos of which the decree from could establishments tiffs’ upon sibly grounded, propriety em- or discharge non-union (cid:127)fairing them union, by groups of law. in the of fact and conclusion various states finding each find, have, as we it is that we Enough process pure sophistry, a member findings supported presented there are Court, protest I shall such invasion upon testimony which the de- competent whenever the occasion arises. predi- properly be cree, our can In the case of Thornhill v. State Ala- established we having been Such cated. bama, L.Ed. U.S. upon the unnecessary to rule nu- deem 1093, the court held a statute of state assignments the de- other merous tо be ground unconstitutional for our con- union has submitted fendant it violated the 14th Amendment to the Con- sideration. States, providing stitution of the United modifi- subject to is affirmed decree “deprive any person that no state shall Appel- opinion. cation consistent with life, liberty, property, proc- without due appeal. on their costs to have lees are ess law.” statute reads as follows: WINDES, PHELPS UDALL, J., and C. forbidden— n “Loitering concurring. STRUCKMEYER, JJ., persons, who, Any person or without just legal therefor, cause or excuse concurring PHELPS, (specially Justice go premises near to or loiter about the *11 result). in place any of business of per- or other son, firm, corporation, by the or reached association of result in end the
I concur engaged a people, business, lawful 56- agree that section not majority but do purpose, or with sec- for the intent Supp. (A.R.S. of in- 1310, A.C.A. unconstitutional, fluencing, inducing persons that or othеr nor 23-1322) is tion with, buy from, to, the to trade under not sell picket guaranteed is right the with, dealings the business or be em- Amendment 14th provisions persons, firm, ployed by corpora- is such agree that I Constitution. Federal association, tion, picket or who or state courts the that universally conceded Supreme place of or business the works of of by decisions bound firms, persons, interpreta- corporations, other its or States the United of Court persons, purpose associations of for the and the Constitution Federal of tions hindering, However, delaying, or that of interfering when thereto. amendments any injuring interpreta- lawful business language gives Court another, enterprise of unconstitutional, designed shall be guilty itself misdemeanor; but of a nothing the Federal herein powers of expand special prevent person over shall solicit- control from include Government competitive grapevine trade or for a used as a swing business to reach the Ala.1923, that, business.” conclusion to peacefully Code § purpose for guaranteed a lawful is so, stated, properly court speech” the “freedom under of clause of the of “liberty” encompasses “freedom word and 14th 1st Amendments to the Federal speech” Amend- guaranteed 1st under the Constitution. ment to the Constitution. The conclusion reached the court has reaching
In Ala the conclusion that the upon nothing more solid as a foundation unconstitutional, bama court statute was than to rest the mere assertion misinterpreted quoted excerpt a from (without the court precedent), Brandeis in the case Justice wholly support logic to It is Union, without it. Layers Senn v. Tile Protective the result philosophy alien to page Local No. at U.S. atmosphere encompassing the deliberations page at 81 L.Ed. of the constitutional cоnvention and which reads as follows: “ * * * n concepts legal upon government which this Members a union is founded. It is philosophy designed might; special statutory au- without invest the central government Washing- at by state, thorization known make control, authority ton with dispute, in minute de- freedom of facts of a labor tail, speech the acts and guaranteed by Federal conduct the citizens as, sovereign union, states of the both Constitution.” groups, individuals and as concerning mat- be observed Brandéis will Justice ters which had heretofore been considered say in the Senn didn’t case as of local concern. It seeks to delete the speech” the “freedom justified was 10th Amendment from the Constitution 1st Amendment to the clause of the Fed- providing powers that: “The not delegated He merely eral Constitution. stated to the United Constitution, States union could make members known prohibited by nor States, it to the are re- of a labоr as a facts matter of served to the respectively, States or to the speech guaranteed under the Con- free people.” pretend say He did how stitution. philosophy information to be It is a communicated assump- based *12 speech the within free (The to come clause. It tion that it United Supreme States generally conceded pretty now is Court) is that the vested with both legislative the Brandéis quoted, policy power statement above making of the states of Justice dictum, yet, it forms pure the basis in the union nation, is and of the which has Murphy Thornhill case which the heretofore been to be the considered func- Justice
399 sovereign any by approval of shall sanction the the never legislatures of tion of the portion Congress of the of it. states, United of the upon no limitations recognizes It States. clause Although interstate commerce power. It between distinguishes its own by been Fеderal Constitution has in deter- twiddlededee twiddlededum process trans- strange some alchemic “advocating mining what constitutes mutation, by into transformed that court by its overthrow Government” content, ninety appears per cent rubber it self, under the to it enemies. It asumes en- to not had elasticity sufficient to Amend- 14th Due Process Clause compass is picket line. And resort pass upon the character
ment, to power to now had 14th Amendments 1st and seeking lawyers qualifications of and moral government to in order invest central sovereign practice in a law to admission complete control, only all over union, they to order state of the legitimate em- disputes examination, permitted to take the bar firmly but, ployer employee it has now mandate of the setting thereby aside very on the established the line declaring state highest employer’s court of threshold It business. mem- has vested it with the constitutional applicant morally unfit to become to the guise maintain line under This profession. that honorable ber speech” neither “freedom where a labor parte holding in Ex contrary nor the relation of 9, 9, L.Ed. Secombe, 15 60 U.S. 19 How. exists, employee though its is even result quoted in excerpt of which was destroy damage the owners’ business. 333, 379, Garland, 71 U.S. parte Wall. Ex Swing, v. See A. F. L. U.S. by 333, 366, cited 18 L.Ed. Justice 568, 85 L.Ed. court. Black, who wrote Qua As was said Chief Justice deny an American It has assumed Demers, Mass. Saveall 76 N.E.2d dispose of his power legal citizen the A.L.R.2d 1190: he manner will in property own speech is is certainly as valid “If it recognized desired, though even more. much However It has assumed also peacefully years. hundred for over a on, possesses carried it may be policy street of a ele- business dictate the compulsion wholly city person ments southern railway in a system commerce, bear picketed which little and to relation interstate unrelated public communication schools one of in- the administration control or of ideas. And philosophy I formation resort states. in southern *13 400
commonly precisely dispute employer it because had to exists a labor between the elements, which, employee employ- of these much more as to conditions any argument required than ment employees force of contained under which it, power posses- work, give adequacy wages in or it it as to the of the ” * * * paid, practically ses. etc. The belief is univer- sal that enjoy labor does these and should Gregory Professor Charles O. rights circumstances, under such and to reputed to University Virginia, who is picket maintain a line to enforce such authority be a most eminent on rights. right picket guaranteed denies that the is and, speech” “freedom clause but, I heartily subscribe to this I view used states that it is a method of coercion do not subscribe to the doctrine enunciated by unions to obtain advan- some economic by Supreme the United States Court that tage, and Mr. Teller in an article Ludwig right guaranteed is under the “free- 56, Review, p. et Harvard Vol. Law speech” dom of clause in the 1st and 14th picket- seq., instead takes the view that Amendments to the Federal Constitution. a speech” it is ing being a form of “free Very frequently but little information is pressure. form of economic asserts He placards displayed. disseminated In but, rather it is does not invoke discussion many instances there is nothing commu- nature physical activity more in judgment nicated which a sound as to Supreme States parade the United controversy based, the merits of the can be New had held in Cox v. State of Court even the nature of the controversy Hampshire, 312 U.S. 61 S.Ct. relation, any, what if exists statute, prohibited by be could L.Ed. picketers picketed. and the Placards dis- Hampshire a statute New and declared played only very state conclusions. The prohibited unlicensed valid which to be picket imprac- nature line makes it in that state. parades processions impossible tical apprise public of the facts. picket line, of a the establishment That peaceful, is far more coercive although Where the relation of and em- can persuasive there be no It ployee doubt. than does not exist and no labor present, of intimidation and carries with means it my is a view right that the implication picket it the reserved force avail- circumstances, under such should be necessary by if deemed for use able the wisdom left to states various one likes to cross No line union. provide, through legislative bargain enactment, in the of labor to believes who standards which its lawful- (cid:127) collectively, and to strike where there ness can be determined. In event, Carpenters And in a viola- the case of & logically cannot be held Joiners 14th Amendments to of the 1st and America, Cafe, Union of Ritter’s etc. gives so hold Federal Constitution. To U.S. where- 86 L.Ed. leg- Government, by judicial unionized, the Federal operated fully Ritter a cafe control power islation, exclusive engaged nonunion a contractor employing purely should be matters that are and about labor to him build a residence for *14 an- simply constitutes It local concern. The one mile distant restaurant. from his by the many other encroachments his carpenters around picket threw line a rights sovereign Supreme upon the Court Supreme Texas restaurant. The Court of the states. enjoined ground that upon the picketing The it violated a Texas antitrust statute. pick- implied force of the The coercion or Supreme United affirmed States Court citizenry of imрact upon its et in line Court, hold- Supreme decision of Texas pick- any thought that area overshadows right to that the state of Texas had the degree, any in considerable eting manifests re- directly confine the area picketing to speech” as used the element of “freedom dispute. appears me that lated to the It This is Amendments. in the and 14th 1st picket if guaranteed is by the to be true even now considered so no speech” is the “freedom of clause there Supreme itself. Court area confining sound reason for it cases, Swing the Thornhill and Since employed being where the labor is nonunion Douglas, him- supra, speaking for Ritter, Justice denying it at the restaurant of Murphy, said Black and self and Justices speech where the far more articu- would be Helpers Pastry Bakery & & in Drivers building in area late than where Ritter Wohl, Local, 315 62 U.S. etc. with labor. court’s a house nonunion 769, “ * * * 1178, pick- 819, 816, L.Ed. 86 appears in the Ritter decision to me to case ”* * * a effect. have coercive might contradictory eting to the doctrine laid down case held Swing in the which unconstitu- injunction against pick- tional an by organized “Picketing group upon pol- a state’s common eting, based law speech, in- than since is more free prohibiting when icy there was particular locality patrol of volves immediate no presence of line very since employees. an- of one kind or action induce may case of International In the Brotherhood irrespective of the nature other, quite Teamsters, Vogt, A. F. Local L. v. being dissemi- which are ideas ”* * * authored Inc., 77 S.Ct. 1167 Justice nated. con It Frankfurter, upon concept pro- now passed clear that the court nounced in the half- Thornhill case was stitutionality statute of Wisconsin baked it' when introduced into the em practice made it an unfair labor body nation, of the law in its others ployee individually with concert in present cannot even be said condition “coerce, any em induce intimidate or limits or definitive contents. em any of his ployer to interfere is certainly plain sufficiently enable legal ployees enjoyment in the those skilled the law to understand it ** ours.) The (Emphasis rights to define it so can it. others understand rehearing, on Supreme of Wisconsin Court Douglas, with whom Chief Justice Jus- reversed 270 Wis. N.W.2d concurred, tice Warren and Black Justice opinion, N.W.2d former Wis. dissented and stated: enjoined picketing em placards read carrying ployees who “The Court has now come full circle. job are not on men “The ing: 100% Alabama, In Thornhill v. State L.” A. F. decision with the affiliated 88, 102, 736, 744, U.S. 60 S.Ct. 84 L.Ed. based Supreme Court was Wisconsin 1093, we struck on down state ban picketers were ground that ground on the that ‘the dis- practice an unfair engaged concerning semination of information *15 that, they were employer, in facts of a the re- must be employer inter to doing to coerce the so area, garded as that within of free dis- to employees in their fere with its guaranteed cussion that is by the Con- union. join the join * refuse * *” Justice stitution.’ [77 1172] consti statute to be held the Frankfurter proceeded point He then out the various Supreme Court the affirmed tutional cases since decided that had the effect of injunction upholding in of Wisconsin departure from the Thornhill decision. The cir under such prohibiting the court, breath, in one declares picketing to dis desperately sought He cumstances. Speech”, be form of “Free and in the of grown out has that confusion pel the it next breath declares it to be more than na in saying by the case Thornhill the Speech”. “Free in inherent “It is that: apology of an ture my Process It is view that if picketing in Due be concept the cannot embodied the by synonymоus scope said to be with Speech” be determined “Free Clause and or it is at inclusion least free from judicial the process elements of ‘gradual ”*** compulsion implied of threat, such con- exclusion’. injected legitimate reason, cept unsound and should not be tract or other it must ob- majority conse- tain a in its of its law. It is vicious into the members to call such clearly- being quences. capable majority strike. It is If it is not of the of the members limits, defined, develops or its of body either content courts that in its the legal aof law of dignity states and of given it the the the should nation. nation, in the by highest concept tribunal But, majority ignored rule is under land law of by embodied in the it being pronounced the law by now this Court and em- employers a rule of conduct for conformity with the decision of the Su- ployees. preme Court the United simply of States be- Court, agree cause that outset, approached it As stated when I in the I cannot sanctuary picket line, required of 56-1310, A.C.A1939 Supp. section ma- no jority to establish In (A.R.S. 23-1322), verba it. section haec set out area of human minority may picket action a opinion, majority is unconstitutional. in the the business of employer it opinion, although majority the majority As I understand the of unconstitutional, employees grievance have no whatever, section is holds that but, 1st under the established principles reason for the it violates of Ethics, Union of presume Constitu- Federal Code I Amendments 14th to the majority cannot, speech” good conscience, guaranteeing “freedom cross picket and that States, example, line. For of the United if citizens 49% the employees a un- minority groups may business both to applies their employer against occupying the relation of wishes ion 51% thereof, picketed, and the guise the business with freedom employees speeсh business or even strangers employees also, total 20% 5% may do so. philosophy appears This me employer. to be in a unrealistic country committed public form government our Under majority rule. It is unsound. is un- selected, laws, officials and all both state American. federal, citi- governing the conduct maj ority I country, are was a in this enacted member of a zens union. I went out on a by corporations get strike in higher Business conducted an effort to wage. rule. I, majority others, picketed groups is controlled other business employer but, em- there existed bargaining collective In relation of rule. *16 employer employee employees and it is the concensus between us. There ployer and was a employees majority that determines us which could contract, when be resolved otherwise. But terms I primary cannot persons such con- subscribe to the view that for a violation of whоm strike called employer has never and with whom known has employee relation of existed, right
never have the to
perhaps destroy damage business to his adopt policy
in order him con- force be-
cerning property rights which he his disadvantageous, both to himself lieves be Lewis, Roca, by & Beauchamp, Scoville per- many employees, and in and to his Cheifetz, Walter Phoenix, for intervenor. haps employees are in instances his most Scruggs Rucker, & Tucson, garnishee. for logically full accord. Such action cannot speech” “freedom of justified under Darnell, Holesapple, Spaid, McFall & any more Federal Constitution clause of the Tucson, for Paulos, et al. John J. slander give than it would them Mesch, Kemper & Jasper, Tucson, damage O. for mouth, and him word Farness. destroy reputation. his J. my sovereign state view D’Antonio, Darrow & Tucson, for Peter powers right, under the Arizona had the Teti. 10th Amendment reserved it Barry, Cole & Tucson, Marjorie for B. Constitution, section enact Federal Ross. 23-1322), and 56-1310, supra (now sеction Federal provision of the violates that it no Houston & Nihan and & Fickett Duni- hold. should This so Court Constitution. pace, Tucson, for Pioneer Constructors.
UDALL, Chief Justice.
rehearing
Motions for
in the above-en-
timely
titled consolidated causes were
filed