*1 Union, and General Labor Construction al Stephenson. H. I. Local No. et January 4, No. Decided A-2322. Rehearing February overruled (225 958.) Series, 2dW., *2 Mullinax, Ball, Dallas, Wells, Weils and and L. N. D. all petitioners. overruling Court of petitioners’ erred contention injunction improperly as it de- issued rights free unions of their constitutional
prived the labor assembly. Henry, free Ex Parte speech Texas Dickson, 588; (2d) East Motor v. North Lines S. W. (2d) Texas, (this vol.) 219 W. S. Morris-, Byron Smyth, Singleton, Lockhart Edwards and E. & Amarillo, Looney, Moorhead, Singleton, Clark & Everett all of Clark, Austin, respondent. Looney all L. and Edward properly purposes issued inasmuch as the of a valid statute of were violative behind may state, dispute picketing and in the of a absence Cox, Engineers Operating enjoined. Union v. International 787; Bakery volume) 42, (this 219 S. & 148 Texas Giboney Wohl, 816; Pastry 315 U. Drivers *3 Storage Co., Empire Ice & U. of the Court. delivered Justice Hart Mr. permanent before us is whether a against peaceful picketing can sustained under Texas stat- deprives utes attacked on the that it when rights under the Amendment to the United of their Fourteenth States Constitution. against respondent, H. I. picketing was directed house-moving
Stephenson, engaged He business. who is employs per- special equipment a crew men uses and who dismantling removing necessary and a all of form the tasks to setting building place transporting it and it one and to from belong up of this crew at another location. None members to union. County Stephenson dismantle contracted Potter to two with
hangars transport and to Amarillo to at Dalhart and to them building. began Before he work reconstruct them there one repre- contract, Stephenson approached by union on this joint crew wished to have members of his sentatives who objections their had to Stephenson stated that he no unions. unions, agreed representatives could joining union and meeting did, They an election was talk his and crew. to join to Stephenson’s voted not held in which by representatives have to An union union. effort was made Dalhart, Stephenson employ but union men in the work Stephenson’s work the union with was no interference there until hangars and the work to Amarillo had been removed representatives union started there. The reconstruction had persuade Stephenson union attempted to to substitute men then regular Upon refusal crew this work. his non-union single carry- so, Stephenson’s job, picket they picketed do to ing reading as follows: a banner Building protest and Construction Trades
“Amarillo. Council Company employment Ira non-union job, job failure on this on this Building join unions affiliated with the Amarillo to Con- struction Trades Council.” Stephenson thereupon brought suit, alleging that unions’
purpose pel only towas force him to men hire union and to com- join unions,
his crew local two that no labor statutes, existed as defined statutes, particularly referring violation of Texas 5154f, (Acts 1947, Leg., Vernon’s Ann. p. Civ. St. 50th ch. 387). prayed temporary permanent injunctive He relief
against picketing. agents The unions and their business who were named as defendants answered bona fide labor dis- pute existed, agreed employ only had union job members on the re-erection refused to in Amarillo but had failed and carry agreement out employed and had non-union wages labor at scale, below the union unions and their right members had a picket constitutional Stephenson’s job, and that to the extent prohibited that Texas statutes the exercise right they of this were invalid. *4 hearing defendants waived a temporary on a argeed might, the proceed court hearing to a on the merits. a After jury, trial without a the court judg- rendered ment in favor of permanently enjoining the unions and their picketing members from premises Stephen- the where performing son work, was his plaintiff controversy “unless at such time then exists between majority employes the of his concerning wages, hours or employment, conditions of or a con- troversy plaintiff exists between majority and the of his em- ployes belonging concerning one wages, labor union hours or by employment.” conditions of judgment This has been affirmed Appeals. the Court of Civil (2d) 221 S. W. request No was made of the trial court to make and file findings of fact and law, conclusions of 296-299, under Rules Texas Procedure, Rules Civil separate findings and no conclusions were filed. In findings the absence of of fact in a case tried jury, without a it is settled that we must test the validity judgment of the assumption the trial court 438 every disputed way
found support judg fact in such as to ment Puckett, 366, he rendered. Rolison v. 145 Texas 198 S. (2d) 74; Operating Engineers W. International Union of v. Cox, (this 42, 148 volume) 787; Texas (2d) 219 S. W. North Dickson, East 35, (this volume) Texas Motor Lines v. 148 Texas (2d) point 219 judg S. W. 795. Petitioners out that findings and, ment in this case certain recites of fact after granting injunction against picketing provides that all specifically granted other However, relief not denied. this finding denial of other relief does not constitute a non judgment; existence of facts not recited in the and in situ findings necessary support judgment ation omitted will supplied by presumption support judgment, in if findings. there is evidence in the record to sustain such omitted State, Moreover, 138, (2d) Bednarz v. 142 Texas 176 S. W. it is judgment established that this court will not reverse a trial Appeals judg court affirmed the Court of if the record, though ment is correct in view in of the entire even given our one or of the lower erroneous both courts have rendering upholding judgment. reasons for v. Walker Garland, App., 1078; Tex. Com. Bordelon v. Phil S. W. Bracken, 460, 710; (2d) Payne brick. 125 Texas S. W. contrary (2d) Texas rule 115 S. W. 903. This is not holdings Safety Casualty Wright, Texas Co. v. Light Co., (2d) 238, 160 S. W. and Kousal v. Texas Power & parties 179 S. to the effect theory appellate are restricted in on which the court to case, present case was tried in In the case the lower court. judgment part theory was tried in on we hold the on which sustained, pleadings evidence can be and the is shown record, lower courts in the and therefore the fact judgments rested their legal what we hold to be erroneous on judgment. require reversal of reasons does not apparently the district court based on which judgment no unlawful was that because em- existed between “secondary ployees, and therefore the 5154f, picketing” Vernon’s prohibited as defined this reason Ann. sustained Civ. St. The Court of Civil *5 judgment on the judgment, placed for the and also its Stephen- picketed purposes the unions basis that for which the purposes objectives. 221 S. W. son were not lawful 380, consti- spite policy not to decide at 381. In of our settled avoided, they determine questions we must tutional where can be applied the validly to sustain whether 5154f can be
439 case, injunction corporates injunction by in this because its terms in- 2, provisions par. statute, of h of Sec. that petitioners specifically portion and the attack of trial judgment. court’s injunction upheld do not think that can We on the
ground
dispute”
that no “labor
existed
there
in fact
because
no
employees.
between
To
meaning
the extent that Article 5154f restricts the
of a “labor
dispute”
a controversy
employer
between an
and his em
ployees
prohibits picketing except
where such a contro
versy exists, we think that
is in
statute
conflict with the
Supreme
Fourteenth Amendment as construed
Court
of
Swing,
the United
States
American Federation of Labor v.
321,
Sup.
568,
312
855,
U. S.
61
Ct.
85 L. Ed.
and Cafeteria
Employees Union,
Angelos,
293,
Sup.
Local 302 v.
320 U. S.
126,
58,
Ct.
88 L. Ed.
yield.
and that
the statute must
Swing
In the
in the
Supreme
held,
case
repeated
Court
Angelos case,
“a
workingmen
that
state cannot exclude
peacefully exercising
from
right
of free communication
drawing
competition
the circle of
employers
economic
between
and workers so small
only
employer
as to contain
and those
directly employed by
326,
him.”
855,
“Sec. shall be membership nonmembership or in a union. labor Any requires prescribes that or em-
“Sec. contract which employment ployees applicants work for an or in order to employer aof shall or shall not be or remain members union, against pro- public policy. The shall null and void apply any or con- of this not contract visions Section shall any apply renewal or heretofore shall tracts executed but agreement any existing new extension of contract Act.” executed effective of this contract after date regarding constitutionality There cannot be Supreme Article 5207a view of the recent decisions of the *7 upholding provisions almost identical Court the United States contained in the and other Lin statutes constitutions of states. coln Federal Metal Labor Union v. Northwestern Iron & Co. 251, Carolina, 525, v. North 335 69 Whitaker U. S. S. Ct. 201, Op. L. 93 Ed. Adv. and American Federation of Labor v. Co., 538, 258, American 93 Sash & Door 335 U. S. 69 Ct. L. Ed. 209. purpose picketing being compel immediate statutory denying prohibition by to violate the em
ployment regular nonmembership to his crew their because of in a require labor union and to in him violation of the statute alleged agreement requiring abide to be unions, picketing
members of labor was not entitled to con protection stitutional validly enjoined. and could be This follows Supreme from the decision of the in Court of the United States Giboney Empire Storage Co., 490, v. and Ice 336 U. S. 69 684, 93 L. Ed. picketing 649. There it was held that enjoined designed could compel be where it was a violation of a prohibiting valid Missouri statute combinations in restraint involved, trade. Here a different statute but the Texas statute, law, like represents the Missouri a solemn and valid important public declaration of an policy by legislative government. branch of recently recognized, the state We have in Supreme line with decisions of States, Court the United picketing is one form of the exercise of the constitutional right of speech. parte Henry, freedom 315, Ex 147 (2d) 588; S. W. Operating Engineers International Union of v. Cox, 42, 148 Texas (2d) 219 S. W. 787. But we have care been point ful to controversy, out that there must abe valid Inter national 42, Operating Engineers Cox, Union of (this vol.) v. (2d) 219 S. at and that must be purposes. for lawful North East Texas Motor Lines v. Dick son, (this vol.) 35, (2d) pur S. W. at 798. Since pose bring case was to about a violation statute, of a purpose unlawful, valid under Giboney case, supra, validly See, enjoined. also, it could Fred Wolferman, Root, Inc. 733; 356 Mo. 204 S. W. R. H. Murphy, White Co. v. (2d) 685, 310 Mass. 38 N. E. 585; A. L. Torts, R. 794; Dodd, “Picketing Restatement of sec. Speech: Dissent,” Free A 56 Harv. L. Rev. 513 at 523-524. urge, however, objective Petitioners picket that the of their ing improve wage working was to conditions, because the paid Stephenson’s employees that some of were
evidence shows
evidence that
and there was some
less than the union scale
inexperienced
Stephenson’s non-union
were so
working
endanger
same
heavy
work
union men
steel
support
us,
evidence to
the record before
there is
location. On
making
only concerned with
a conclusion that
unions were
agreed
they
if
Stephenson’s job
job
union
and that
con-
Stephenson’s employees joined
could
the unions
wages
then
job
men on the
at the same
he
tinue the same
paying
presume
procedure,
must
we
them. Under our settled
however,
this,
we note
found.
from
that the trial court so
Aside
objective
Giboney
“one
showed that
case the facts
vzorking
wage
con-
organizational
drive was to better
L.
helpers.”
peddlers and their
69 S. Ct.
ditions of
since
Nevertheless,
held in that case
Ed. at 651.
the court
*8
wages
working
improving
con-
objective
the immediate
of
here,
Similarly
the im-
justify
picketing.
would not
ditions
among
being
em-
purpose
cause a discrimination
mediate
ployees
to
nonmembership in
membership
of their
basis
wages
union,
improving
and work-
underlying purpose
of
picketing.
ing
would
conditions
not validate the
ground
granting
injunction
purpose
of the
on
sustain the
We
a viola
to cause
picketing had
unlawful
that
as its
However,
petitioners
we think that
of
5207a:
tion
injunction
saying
of
in
that
the terms
correct
are
picketing will
requirement
before
that
should be modified.
permitted
between
there must be
be
majority of
and a
majority
him
or between
concerning
union,
belonging
any
one labor
such
invalid,
have
employment,
we
wages,
is
as
conditions of
hours or
application
held,
of the
eliminated. The
should be
purposes,
unlawful
confined to
is of course
record,
be construed
by
and is not to
facts of this
as disclosed
pur
lawful
proper places for
peaceful picketing at
prevent
legitimate protests
publicizing
poses, or other methods of
against respondent.
may
petitioners
have
which
alleged
assign
of the Court
failure
Petitioners
error to
findings
under
supplemental
of fact
Appeals
make
of Civil
482 we
Rule
Under
Procedure.
Texas Rules of Civil
Rule
Appeals for fur
of Civil
to the Court
could refer the case back
findings
findings,
opinion
additional
if we
of the
ther
were
properly to
necessary
us
to enable
were
fact
that court
of
however,
believe,
rights
parties.
We
determine the
sufficiently
con
states its
Appeals’
the Court of Civil
many
the find-
fact,
controlling
issues of
clusions on the
argu-
ings
evidentiary
requested
were
mentative,
Appeals properly
and that the Court of
refused
Civil
Hall,
findings.
requested
to make the
Nowlin v.
fied, judgment judgment Ap- and the Court peals are affirmed.
Opinion January delivered 1950. Griffin, joined
Mr. Sharp, concurring. Justice Justice agreement are judgment all We that the court trial and the Court of Civil must be affirmed on the second opinion. ruling stated Therefore on the con- stitutionality of unnecessary Art. 5154f in cause to a Regardless decision of this holding case. of our on this 5154f, judgment as to Art. must be affirmed. I under- As law, stand the Legislature should not Courts declare acts necessary unconstitutional unless to do so for a decision in the case at hand. For that reason I do not concur in the decision that Art. 5154f is unconstitutional but reserve determina- point tion when squarely arises.
Opinion January delivered
Rehearing February 1, overruled
Kenneth Thomas et al Alma Nunn W. New et vir. January 4, No. A-2384. Decided Rehearing February 8, overruled (226 W., Series, 116.) 2d