*1 15,776. No. et v. International Producers, Inc., Milk al.
Denver Teamsters, Chauffeurs, Ware Brotherhood Helpers’ et al. Union, housemen
(183 529) P. [2d] July 7, May 19, Rehearing 1947. 1947. denied Decided *2 Mr. Kenneth Mr. Robert Swanson, Mr. Robinson, W. plaintiffs for in error. R. Hickman Walker, Philip Philip
Mr. Mr. Jr., for Hornbein, Hornbein, defendants in error. Attorney Mr. General, Mr. Hinkley, H. Lawrence Deputy, W. Barbara Lee, Assistant, Mr.
Duke Dunbar, George K. Assistant, amici curiae. Thomas,
En Banc. Hays
Mr. Justice delivered the of the court. opinion During September, the month of 1945, five cases were City County' filed in the district court of the and Den- allegedly growing ver, out activities de- attempt plaintiffs fendants to unionize certain of employees engaged hauling, processing and their distributing milk Denver area. Said suits were plaintiffs entitled: Denver Milk Producers, Inc., v. Inter- national of Teamsters, Brotherhood Ware- Chauffeurs, Helpers housemen Union, defendants, et al., Case Hennigh, A-45099; No. E. Johnson, “Harold W. T. Hol- O. plaintiffs land and Buster, Eston v. The International Brotherhood, al., defendants, 1; et Case No. A-45091,Div. Borgmann Borgmann, Borg- A. Carl and Walter d.b.a. Bros., mann L. C. Austin and F. Austin Austin, S. d.b.a. plaintiffs Bros., Brotherhood, al., v. The International et Joseph defendants, 1; Green, Case No. A-45106, Div. plaintiff v. The de Brotherhood, al., International et Beach, fendants, A-45112, 2; Case No. and Flora A. Div. plaintiffs Dairy Employees’ al., et Milk v. Drivers’ and Local Union No. et Brotherhood, International al., defendants, A-45223, Case No. Div. 3. In the last case plaintiffs application mentioned granted, made and were for, temporary restraining enjoining de order, doing things fendants from the of certain hereinafter restraining Upon mentioned. order in issuance of the agreed by the Beach case, it was all the between parties that said order should to each and all of extend restraining said five cases. Since the entered order was parts in the Beach forth case, we set herein the essential complaint therein, as follows: *3 July “14. That on about 1945 all de- except fendants the Retail Union and Brick- Clerks the agreement layers conspiracy Union entered into a and prevent delivery Company milk to and to this prevent processing, other non-union dairies, and to delivery milk sale and said this and other their dairies to customers Denver and in the Denver Company, milk-shed, Carriers, unless and until this joined other Local Farmer-Producers and dairies No. pursuance they agreed among plan of said 537. That things, perform following to do and acts: other “(a) employ groups To and train of Union men as carry any pickets and out all orders of officers and Union; defendant Teamsters Drivers’ pickets “(b) To said follow non-union cause collecting on their routes of the Carriers while drivers milk;
“(c) prevent individual Farmer-Producers from To delivering any products hauling milk of their own and dairy in the milk-shed unless such farmer is a mem- 537; Local No. ber
“(d) prevent any employing To Carrier from non- union Denver, drivers to work in the and in milk-shed, prevent any handling any and to such driver from milk therein;
“(e) pickets stop intercept To cause said and all they grounds non-union drivers before enter the of or unloading at the non-union; docks of all dairies, whether union or “(f) stop To order, instruct and all union drivers delivering any milk to non-union dairies; “(g) To all intimidate Carriers non-union and their collecting non-union drivers from milk from Farmer- unloading Producers and their milk at all and to dairies, accomplish display same brawn, co- force, threats, picketing, ercion, force, blockades, interference, mass representations; fraud, and false “(h) To intimidate and coerce all Farmer-Producers shipping and dairies which own herds from their milk require change non-union Carriers and to them to operate union Carriers when such union Carriers in the territory of such herds.
“(i) To unionize all non-union dairies in the milk- including Company, shed and Denver, whether their employees desire not; this action or completely
“(j) To unionize and control domi- handling of all milk in nate the the Denver re- area, gardless rights, privileges and desires of this Com- pany, the Farmer-Producers, Carriers, drivers, employees, dairies the their food store general public.
“(k) compel employees To of all union stores, food including Piggly Wiggly Stores, to refuse to handle non- union milk if same is delivered to and sold at the they employed picket stores where are and to said stores if it is so delivered and sold.
“(1) secondary employ boycotts To use and in con- plan. nection said plaintiffs,
“(m) great to losses cause financial To and until unless and dairies Farmer-Producers, Carriers regulations. obey they join and its rules the Union and put conspiracy plan part was and “15. That said August July sus- and then 2, 1945, effect from 31 to into inaug- again plan pended September 2, when the to rapidly de- the same has been urated, and since then daily becoming veloped more effective. and more and is pursuance plan now have said defendants That necessary operations ac- put to and into effect acted complish para- plan portions as described those (j) (h) (a) sub-paragraphs to graph inclusive, put plan (m) will and the remainder inclusive, enjoined operation future unless in the near into court. order employed pickets and have been
“16. That said they non- put work; have followed trained and collecting milk; have routes while union drivers on their hauling prevented from Farmer-Producers non-union prevented delivering dairies; have milk to their own and handling milk-shed; milk in the drivers from non-union stop intercept pickets non-union and have caused prevented drivers all union and drivers; have ordered delivering dairies; have ordered non-union milk to from process to refuse to dairies of union intimidated non-union milk; have handle non-union unloading their from drivers and non-union Carriers milk at employed and used and have dairies, Denver display coercion, force, block- force, threats, brawn, boycotts, secondary picketing, interference, mass ades, representations therewith; connection false fraud and shipping coerced herd owners have intimidated required milk them to and have Carriers non-union great financial change caused Carriers; have union plaintiffs, Farmer-Producers, Carriers losses Dairies. representa- among and fraudulent the false That
“17. following: are the defendants made tions *5 “(a) by pickets Statements said to Carriers and drivers all the drivers of that other Carriers or other joined accosted), (except the the Carrier the driver have join. Union, and for that reason the said driver should “(b) by pickets Moore, said that C. Statements Walter manager the of Denver Milk desires that Producers, Inc. join all Carriers and drivers should the union. “18. That all false, of said statements were were made they they upon the with that intent be acted and were upon; many membership so acted in cases was se- by cured reason of said re- statements, and all without gard rights, privileges plain- the the and desires of dairy tiffs, Farmer-Producers, Carriers, drivers, dairies, employees, public general. and the
“19. That the defendants the three Teamsters and Sep- Drivers Unions, members, their officers and since following tember 10th, have directed activities against Company addition enumerated those paragraphs 14 to 18 inclusive:
“(a) They picketed Company have docks of this entering where milk is unloaded the dock area the Carriers from unloading; prevented have all trucks driven Union for drivers the Carriers from unloading there do, ordered them not so to large consigned by result that a milk amount of Company Farmer-Producers to this has been diverted Company. elsewhere and lost to this “(b) They Company sign have demanded that the part union contract with Local No. 537. That because ownership Company pro- is in the estate ceedings County in the Court, three Teamsters and prepared Company Drivers Unions a exhibited to the temporary agreement with Local No. This 537. re- quired Company reg- to abide all Union rules and 1945, until December ulations when the estate bewill regular printed closed, and then enter into the formal signing temporary contract the Union. That the said agreement agree would to all bind regular 12-page printed agree- terms of the contract and among pro- ment of Local No. other which contains following: visions the
“ Article 1. “ employees working All male under classifica- juris- up subject tions in Article 3 set and who are diction of cept Union, Union, be ex- shall members of employees
seasonal as described in Article Where 6. employees new they hired, Union, are not members of the application
shall make to become members within (15) days. agrees fifteen The Union em- new ployees Employer, coming jurisdiction under the of the Union, as enumerated in Article 3, who are here- upon after hired and are not making application Union, members of the shall offering qualify for member- ship promptly accepted membership in the Union, prejudice "applicant without or discrimination unless the specifically membership is denied in the Union provisions of the National Constitution of the Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- Helpers housemen and of America. “ agreed Employer notify ‘It is that the will the Union writing day regular employment on the first of all employees subject jurisdiction of the Union.
v v Hi “ Article 3.
“ agreement apply only ‘This shall to male Employer working following in the classifications, subject jurisdiction to the of the Union: “ Regular Dairy ‘1. Supply route salesmen of trucks, “ Special delivery ‘2. drivers and extra drivers, “ Regular plant employees, ‘3. male who are em- ployees engaged production, handling in the or actual daily products.
“ Regular ‘4. farm hands, “ Regular ‘5. Milkers.
^ $ “ ‘Article 28. Agreement. agreement “‘Term This shall become April effective as of 1, 1945, and shall remain in full * * *’ April
force and effect until 1, 1948, “(c) They Company have demanded that this refuse accept except milk from Carriers drivers, with Union Utility regulations in violation of the Public and the statutes of this State.
“(d) They have threatened the that if it sign agreement they put refuses to will it out business.
“(e) They Company have threatened the with sec- ondary boycotts; managers have demanded that and Piggly Wiggly union fuse to union stores re-
purchase Company, and handle milk from this employees, and have their members of Local No. re- picket so; fuse to do if and have threatened to said stores purchases Company of milk from stopped this are not at once.
“(f) They bricklayers, have demanded that Union quit members of Local No. on work the boiler build- ing paragraph signs Company described in 12 until this agreement. said
“(g) They intercepted attempted prevent have and to delivery Company the of coal The Rio Grande Fuel Company. to this
“(h) They picketed plant Company have secondary boycott against a in aid of refuse to all Carriers who sign agreements with Local No. 537, and join against all drivers who refuse the Union, to so as prevent delivery Company of milk to the until join said Carriers and drivers the Union, and to force Company require said Carriers and drivers join delivery Company accept the Union before the will of milk from them. joined Bricklayers Union
“20. That the defendant conspiracy and of the three Teamsters unlawful act Septem- and on Drivers Unions and at the end of work boycott against secondary ber 15, 1945 established a Company, Bricklayers quit and said Union and aban- building. picket doned their work on line said That against Company Septem- had been established on bricklayers disregarded ber 10. That said Union had picket Company property said line and worked on said days regardless they joined all of said five thereof until conspiracy illegal secondary the said boycott, said instituted deprive Company
which, if continued, will this great injury of the use of said boiler house to its damage.
“21. That on information and belief Retail Clerks joined join Union has is about to the unlawful con- sipracy secondary boy- other defendants in a against delivering Company cott milk the Den- Piggly Wiggly ver Stores; and that said threatened ac- Friday, Sep- tion is imminent and is to become effective tember 21, 1945, and if it does, it irreparable effect will damage upon Company prevent the sale of its milk said stores. That as a result milk sour, its will its people Farmer-Producers lose their market, and the shortage of Denver will suffer a severe of milk. many
“22. That of the selected Farmer-Producers ship who their milk to the will be lost to it if shipped by the same has to be Union Carriers and the. Company alleges on *8 many information and belief that go of its ship Farmer-Producers will out business, of or signs their milk agreement. to other dairies if it said wages “23. That on information and belief the scale of paid by Company employees higher the to its is than wages paid by the Union dairies in Denver. if That signed by Company, the Union contract were its em- ployees wages, lose, stand to out of said the initiation any in- paid without to Union No.
fees creased dues pay to cover the same. by agreement proposed Unions said
“24. That the require Company act and would an unlawful to do compel join employees their Union or lose its to said positions, agreement of and such would be violation the Labor Peace Act and law of this State. common by agreement
“25. That the contract and demanded the defendant right Teamsters and Drivers Union violate Company employees. select own its agreement proposed
“26. if That of contract and signed by the defendant Local Com- No. 537 were pany, compel Company it would to coerce its em- ployees join perpetrate the Union an and to unfair practice, labor and an interference with, restraint and Company rights employees coercion in the of its join join organization. or refuse a labor any That none of “27. the defendant Unions nor of any represent majority them nor of their members any Company the male of this em- or said ployees practice Company, of this and it would be unfair labor part
and unlawful coercion on the Com- pany to accede to the demand of the defendants and sign agreement. said contract and Company sign
“28. That if the would the said tem- agreements porary or final with Local No. it would regulations required the rules and be said Union to any accept milk deliveries from refuse to non-union dairies, and from drivers for Carriers who have not .signed agreements, required Union and would thus participate illegal secondary boycott against in an said Carriers and drivers. controversy dispute is labor there no
“29. That any (employer) kind between organized employees, them and that none of are its bargaining dispute unit. That no labor as a collective Peace Act exists in the Colorado this action defined alleged herein. in the matters *9 against picketing Company by “30. the That non-union the defend- Carriers non-union drivers put attempting it a sec- ants are to coerce to into effect ondary boycott against Carriers and non-union said sign agreements join them drivers to to with and force illegal Local No. all of which is under the laws of Colorado. give statutes of the State of Colorado
“31. That the right joining any to refrain from labor the organization any participating in activities; fromor of its practice employee unfair for and makes it an individually labor an by prevent, hinder or or with others to mass any picketing, threats, intimidation, force or coercion of pursuit employment, kind, the of work or or lawful egress to obstruct or interfere with entrance to or from any place employment; engage secondary boy- in a prevent, cott, or or threats, intimidation, to hinder obtaining, disposition force, coercion, the use or equipment materials, services, or to combine or con- spire prevent, by any to hinder and whatsoever, means obtaining, disposition equipment the use or of materials, or services. plan conspiracy
“32. That said and the acts and things done under it, and intended to be done illegal defendants is and in violation of II, Article Sec- tion 3 of the Constitution of State Colorado, Regulations Statutes of State, and the Rules and Utility the Public Commission of Colorado. illegal
“33. That unless restrained court many actions of the defendants will cause of the Farmer- stop shipments Producers their milk the Com- pany; prevent practically will all of the Farmer-Pro- doing; prevent Company ducers from will so from completion badly pre- of its needed boiler house; will making vent all Carriers with Union Drivers from milk Company; prevent deliveries will deliveries of supplies Company; prevent coal and needed to the will selling Piggly Wiggly Stores and destroy companies; completely ruin and other will Company. business *10 great damages, Company suffered “34. That the has yet and ascertained, the of cannot as amount which damage irreparable the defendants will suffer unless of this court. and each of them are order restrained adequate plain, speedy rem- or there is no “35. That edy of defendants and the continued conduct law, at require multiplicity of suits.” a would temporary plaintiffs prayed
Thereupon re- the for injunction, damages. complaint straining and Said order, presented the trial and in the Beach case was upon straining court Judge parte application, an ex issued a re- Steele omitting parts formal thereof is order, which, as follows: attorney, day plaintiffs
“At the their come having plaintiffs complaint their and the said filed against our District Court the above named Defendants against praying restraining Defendants, for a order said requiring refrain acts, them to from certain in said com- plaint, particularly and hereinafter more mentioned. On reading complaint action, said in this and it satis- factorily appearing to the Court therefrom, that it is a proper restraining case for a order, and that sufficient grounds necessary proper exist and therefor, and undertakings having given: been
“It is therefore ordered the Court that until the you further every order Court, of said and each and of you, your your agents, attorneys, and each servants, employees, persons acting and all under the au- control, thority you, absolutely or direction of do refrain from and desist from: any establishing maintaining In manner
“1. and a sec- against products ondary boycott of Beach Milk Co., at Wiggly any Piggly stores in Denver, of the Arvada and any Colorado, or at other store in Colorado Aurora, which products Company purchases for resale to its customers. any maintaining establishing In manner and “2.
pickets against products Milk or about Beach of the against any Co., said Milk Beach Co. at or about any publishing said and in stores, manner it as unfair to any union stores, labor the customers of said preventing delivery products manner of said Company to said stores. any interfering delivery
“3. In manner with the products Piggly Wiggly to said other stores.
“4. Clerks manner, In members of Retail as refusing Labor, American Union No. Federation products Company, handle sell de- of said when Piggly Wiggly pur- livered at the stores which other products prior September 1945. said chased the complaint *11 “That from the verified and verified motion injury by the court defines the claimed Beach Co., Milk Piggly Wiggly to be the loss of the business of the Stores per day; permanent the amount of about the $535.10 spoilation, same; loss of the the waste and destruction products perishable quality of its milk because of the necessity inability and of an immediate market; the of Company days the in a few or weeks to find customers replace Piggly Wiggly; the said the of Farmer- loss its dairy Producers and milk the from their fine herds if products; the cannot market their that about production goes Piggly Wiggly of Stores; half its and the utter destruction of Milk the business of the Beach alleged illegal Co., if acts of the defendants and each of them continue. injuries irrepar- true,
“That if said facts are are irrepar- plaintiffs able, suffer immediate and and would damage injury, before notice can be served able and loss and hearing a had. injunction allegations this issued under
“That is of complaint that the defendants seek to coerce the sign alleged an contract, Plaintiff to unlawful and its enforce acts and conduct are to such unlawful act. temporary re- plaintiffs on this “That the bond of the sum straining fixed at notice is order without surety signed plaintiffs and a same, $1000.00,and approved company, and the court has been tendered by it. injunction hearing issues on the for case is set
“This force in full shall be 10 A.M. and 1945 at for October changed time is such date unless and effect that until by the court. September, day 21st issued this
“This order is 9:15 A.M.” at restraining as aforesaid order was entered
The above and successive orders the other four cases in each of supersedeas here, the same has the district court further force and effect. It was now is in full been stipulated hearing injunc- in so far as the on consoli- should be concerned, that cases tions was restraining made order was but in the event dated, damages injunction, question should permanent a separately each case. be tried Judge Walsh, before tried The consolidated cases were testimony plaintiff’s the de- conclusion and at the interposed which was de- a motion to dismiss fendants the mo- all the evidence the conclusion nied, at and sustained. tion renewed ruling upon motion to dis- said in its The trial court that this conclusion “has come to the miss, that it stated question: an answer to case can be decided pass defining dispute’ an “Can the State act ‘labor *12 enjoin union as to a from the commission certain so of practices, pur- be unfair labor acts defined to when the urge employer join pose union, is employer-employee there exists no relation- and where ship? many by of the cases cited counsel for the so,
“If injunction temporary plaintiffs apply heretofore and the permanent, question and the be made of issued should damages hand, on further trial. On the other determined
403 prohibited defining a if the State is so labor dis- from pute deprives the the commission of certain acts rights certain secured to defendants of fundamental by States, then the them the United Constitution of the apply cases and the cited counsel for the defendants granted.” motion to dismiss should be ques- proper understanding quoted For a the above necessary tion it is the act mentioned examine (16), chapter 94 Cumulative 97, court. Section (Sec- Supplement Statutes Annotated Colorado ’43) provides chapter page 16, tion S.L. as follows:
“Except provided as otherwise in this subdivision, no any judge judges juris- court, nor or thereof, have shall any involving growing diction to in issue case or out of dispute, any restraining a labor as herein defined, order temporary permanent injunction specific or or in which general prohibits any person persons or terms or from doing, singly any following whether or in concert, acts:
“(1) Ceasing refusing perform any or work or to any employment regardless any remain promise, undertaking, relation of agreement or
contract to do such employment; or work to remain such Becoming “(2) remaining any or a member of labor organization any organization, regardless employer or of any undertaking promise such or as is described in (17) subdivision; section 94 “(3) Paying giving withholding any or or to, any person unemployment or strike benefits or insur- moneys things value; ance or other or “(4) By aiding any person all who is lawful means being proceeded against prosecuting any is action in, or state; or suit court of this
“(5) Giving publicity obtaining to and or communi- cating regarding information of, existence or the any dispute, in, facts involved advertising, whether speaking, by any without intimidation coercion,
404 involving other of violence, method not breach fraud, peace, thereof; or threat “(6) Ceasing any per- organization patronize anas to dispute organization or son with which such has a labor employ any person persons; to or
“(7) organize Assembling peaceably to or do any promote specified do acts heretofore or interests; lawful
“(8) Advising any persons notifying person of or or specified; any an intention acts to do heretofore “(9) Agreeing persons not to do with other to do or any specified; of the acts heretofore inducing
“(10) Advising, urging, fraud, or without acts hereto- violence, thereof, or others do the threat undertaking any specified, regardless of or fore such (17) promise of this sub- as is in section 94 described division; any
“(11) Doing the acts here- or all of in concert ground engaged specified persons tofore on or con- therein constitute an unlawful combination spiracy.” dispute”
The definition of “labor to which court appears opinion term above refers and which its (2) (Sec- paragraph 94 section statute, 7, is set forth ’43) p. act, as follows: [7], tion c. S.L. controversy dispute’ “The term ‘labor means be- employer employees as are or- an and such of his tween bargaining concerning ganized unit, in a collective bargaining. rights process or details of collective or agreement’ entering an into a contract for ‘all-union employer an to enter into ‘all-union the refusal an or agreement’ dispute. It shall not constitute labor shall dispute disputants do not stand a labor where not in employee. employer proximate relation of No controversy dispute jurisdictional two or between juris- have as of them has or shall unions to which more work; as which of certain kinds two over diction bargaining units constitute the collective bar- or more gaining impartial employer unit as to which the stands *14 ready negotiate bargain or is or with whichever legally bargaining con- determined to be shall unit, such dispute. stitute a labor general right employer
“The of his own an to select employees recognized fully protected. It is and shall dispute employer shall not constitute a if an dis- labor charges, employ, employee or refuses an account on incompetence, neglect unsatisfactory of work, of service dishonesty, discharge employee, or but of or an the employ employee, refusal to an shall a labor constitute dispute only discharge employ when such or refusal to upon organ- membership is founded in a union or labor activity discharge ization or therein or when or such employ failure to is in of violation a contract.” properly In order to determine whether or not the making temporary trial court erred not restrain- ing injunction, permanent necessary order a we deem it restraining to examine the order to ascertain or whether (§94, Supra). not it violated statute The order doing restrained the defendants substance from following things:
(a) Establishing maintaining secondary boycott Piggly Wiggly Placing (b) pickets on stores; around said Publishing (c) prod- stores; that the sale Beach Milk of (d) pre- ucts said to labor; stores unfair From venting interfering delivery or with the of the Beach products (e) refusing stores; to said From to handle products and sell said as members of the Clerks’ Retail Union.
By prohibited mentioned, above act is court restraining separate commission eleven any involving growing distinct acts “in case or out of a * * dispute, as herein labor defined There is no prohibition against restraining those same acts dispute, proscription against other kind of a and no re- straining dispute commission of acts even in a labor expressly acts other than those set forth in the statute. involving growing dis- a labor out Is this a “case appli- pute”? found in the must be answer, course, legislative supra. definition, cation of the consisting may of two The definition be considered as (2) propositions: (1) dispute; and what What is a labor dispute. is not a labor may dispute in sub
What is a labor be defined stance to mean: “Any controversy employer
1. and such between bargaining organized his as are in a collective concerning rights process or details collec- unit, bargaining”; tive discharge employ 2. em- The refusal or the of an ployee upon membership in a when such is founded *15 organization activity union or labor or or where such discharge employ or failure of a con- is in violation tract. dispute can said in substance a labor be is not
What to be: Entering refusing “all-union to enter into an into or
1. agreement”; relationship disputants do not bear
2. Where employee employer; of disputes unions;
3. Jurisdictional between Disputes rival as to which of two or more 4. negotiate, bargaining employer where units must negotiate employer willing is is with whichever bargaining legally unit; determined to be the discharge employee employ or the of an 5. Refusal to incompetence, neglect unsatisfac- work, on account of of dishonesty; tory or service, employer controversy of and such Any an between 6. bargaining organized a collective are as
his rights process or “the not concern does unit., which bargaining.” of collective details question not light upon as to whether Further dispute purview grew labor within the of a out this suit
407 by be fol- act can obtained an examination of the lowing excerpts findings on the trial court of injunction, application permanent for to wit: Company, plaintiff The Beach Milk No. Case dairy. con- A-45223, 3, Division is a non-union It was join eight prior tacted to the union some six or months controversy present to the time the but not arose, was September interested at that time. On the Beach 1, 1945, Company production gallons Milk a had 2200 of of about employed persons, eligible milk, whom would membership. controversy for union At the time this they process erecting arose were in the a new boiler plant hoped operation which it was would be No- company vember 1, 1945. The milk restaurants, sells Piggly-Wiggly Army. hotels, the and the Stores Its two largest customers are the Government, United States gallons daily Buckley which takes 1000 milk Field, for Piggly-Wiggly supplying prac- and some 24 to 26 stores, tically supply the entire of milk retailed these stores. Manager Company, F. Leonard Beach is which originally co-partnership composed was a father his and mother. The father is now deceased and his estate inis the course of administration. Coffey
“The contacted Messrs. representatives, September Christol, Union on sign and F. Leonard Beach was if advised he did not plant picketed pressure union contract his would be brought Piggly-Wiggly would be to bear on the Stores *16 purchasing Up to have them discontinue Beach Milk. to Company getting this time the was both ‘union’ and negotiations sign ‘non-union’ milk. After unsuccessful up Company the and its union, the the plant picketed picket carrying sign was a with the —the legend ‘Unfair to Local 537.’ No.
“Negotiations representatives with union extended days and over a number of Creamer, also with Mr. Nathan attorney for the Beach estate. At one of these Mr. Beach asserted that Mr. sessions Christol had said, by question Beach as what would Mr. in answer to a put join will happen union, ‘the union if not the he did Company every destroy Beach Milk effort to the forth secondary boycott im- was a Mention of a as business.’ Piggly- by power plied the a of the union’s mention Picketing plant Wiggly on Beach did start on the Stores. temporary September until the 1945 and continued restraining Septem- Judge on order was issued Steele part ber the union 1945. This on interference Company producer-shippers, caused the such as lose those that became came over the truck line which Rein plant. unionized and The Com- would not to his deliver pany problem also it did maintains that if it had the become farmer-producers who unionized it would lose had animosity evinced dairies. towards unions and union September company’s From many 10th to 21st regular shippers company had to were off and the cut grade obtain milk of an from Johnstown inferior up deficiency. make inter- some of the There also was bricklayers working ference with plant, the boiler the union on Company employment who had ceased and the getting promptly trouble one time in coal delivered its Company, employs the Rio Fuel union Grande which drivers. Company Army is obli- Beach
“Under contract gated special grade farmer- to furnish a of milk. producer produced him a the milk receives bonus for buy Army permitted milk this turn Company increase in from the price per quart one-half cent Beach at a ceiling price. To obtain
above the OPA Company high grade quality in- the Beach milk, whereby system inspection herds of special stalled regularly inspected and sci- farmer-producers were imposed production entifically on improved methods farmer-producers on. Loss and insisted Army have been seri- Piggly-Wiggly would business large had a it would have because ous to *17 supply of milk for which there been no would have outlet. part
“There no that it was denial on the of the union negotiations looking had had unioniz- with Mr. Beach ing plant, picket that it that a line, had established a representatives congregated number of union had across day, delivering the street one the milk to the and that the truck drivers
dairy attempt were contacted in an get join them to all of this but stated union, that peaceable was done in a disturb- manner, without ance and no threat of violence. period Dairy
“During time Almhurst Dairy respect suffered interference. Stearns With dairy Dairy, like and, Almhurst it was a non-union engaged Company, the Beach in construction Milk was employing work under a union contractor union labor. Dairy, Lenus Aim located is the owner of the Almhurst employees. at 190 West and has seven It is Nevada member of Denver Milk and, Producers association dairy prior September as stated, was a non-union 20th since time become 21st, which it has unionized. Some- September, time in 1945, there were three union brick- layers working on the which cost some- addition was to neighborhood $40,000.00 where in the four and about complete building. more weeks were needed to His they join had never asked whether should join representatives Coffey not union. Union September him Christol contacted They sometime before 17th. sign, had a union contract and wished him to they him advised at time that had Beach about signed up. Tuesday, September again 18, 1945, he was ready sign up contacted and asked if he was and he Coffey asked and Christol to come to his home to discuss they quietly. the matter because could discuss it more In Logan he meantime had talked to James and Mr. Employers Hall of the Colorado them that he was Council and had advised going picketed joined to be he unless place pick- the union and their wanted advice. His *18 Coffey Coffey Logan’s office and eted, so lie called promised picket signed, off he so he did to take the if sign September a 21st, union on 20th or but contract frankly signed if union states that he would not have bricklayers not He maintained he had struck. that was paying employees. He more than the union scale to his Milk also contacted Mr. Moore the Denver Producers sign association, him he did have to who advised not thought get with the union Mr. he could milk and Moore plant signing. into his without his In his discussions joining with his they about the union some said they would and some said would not. Dairy, April respect 1945, 3, on
“With to the Stearns signed they certain union, a with the but had contract wages and commissions conditions of the contract as to agreed upon. had been sub- These issues had not been panel but Board, a War Labor mitted to National and the directive order the Board had failed to issue employer and em- had referred back to the matter been Dairy, Hillmeyer, ployees. Mr. President of Stearns morning 4:30 between was contacted one somewhere if A.M., and advised that he did not and 5:00 o’clock go sign milk a union contract his would not out. After bickering, union. some he acceded to the demands of the Dairy milk used to receive delivered The Stearns upon being em- carriers, non-union and advised that his ployees on milk he could and would not work was Mr. his milk. compelled a week haul own for over representative, Coffey, admitted there union Company controversy and with the Stearns with awas milk on of the drivers to deliver respect to the refusal Coffey claimed that Mr. Hill- September Mr. 1945. 7, appointment matter, meyer to settle an had broken namely, finally on the settled, matter was but that Hillmeyer agree- morning September Mr. 7, 1945, namely, pay paying back ing conditions, the union’s per month to the drivers. $210.00 $100.00 secondary boycott carrying of a threat out the “In representatives Milk Beach made Company, to the the union namely, Coffey, Chris- officials,
various union represent- (the tol, latter Dinsmore and Maxwell Pixler, ing Union) Lam- E. H. the Retail Clerks’ Mr. contacted Company, Piggly-Wiggly botte, President of the Stores operates office which a the main under franchise from Georgia. headquarters with nine Atlanta, Some own- managers Piggly-Wiggly ers or con- stores were also tacted. milk situation Mr. Lambotte discussed the (the Coffey Mr. representative O’Neal, Mr. Mr. latter Voorhies Union). Bakery Lam- Drivers Mr. September botte was advised on that the union having trouble Beach Milk with the *19 requested trying good per- he was to use his offices in to sign suade Beach contract, to a union and he ad- was might necessary vised that if Beach refused it be secondary boycott Piggly-Wiggly establish a of the September stores. Coffey 1945, call 19, Lambotte did Beach. On going advised Lambotte that union was picket Piggly-Wiggly Coffey stores. was considerate position of their and advised him to have the stores arrangements supply. make their milk for a special “The policy has no as to whether its stores are leaving union or non-union, it individ- ual store whether to unionize or not. Lambotte was ad- vised picket Mr. O’Neal that no line would be estab- they got lished until supply. another However, on Thursday, September 20th, he was advised that picketed stores would day, be the next so he advised Beach not to deliver every Piggly- and also contacted Wiggly store as to the situation. The issuance of the temporary restraining order obviated further action, as Beach was allowed to continue deliveries. He states that Piggly-Wiggly friendly relations with union had been negotiations and all of the he had were conducted in a businesslike manner without threats. He was confident accept picketed. no store Beach milk would if it was Piggly-Wiggly stated, “As some nine owners and man- agers prior were September contacted four 20th, .being them They union and five non-union stores. were accept advised not to Beach milk and in- there were representatives stances angry where the union were be- cause being accepted certain owners had milk after advised not to do so. In White, one instance William manager Piggly-Wiggly store Alameda, at East September advised Mr. Dinsmore on there was trouble with Beach Mr. and stated to telling you you accept White, T am milk now if tomor- slap picket row from Beach we will a on the store.’ Piggly-Wiggly got practically supply stores all of their Company.” milk from the Beach Milk excerpts findings
We have taken the above from the they pertain the trial court as to the Beach case be- temporary restraining cause, as above stated, order set forth in this record case, was issued in the Beach by stipulation and, extended to the other cases. It would unnecessarily lengthen opinion quote all the facts findings pertaining contained in the of the trial court .to stipulation the other cases, in view of the of counsel that sufficiently justify the facts are similar to the issuance temporary restraining order in each cases, especially following in view of the statements of the findings: trial court in its argued together
“These were cases submitted single may disposed opinion of in because the law *20 governs general existing factual involved situation in of the cases. all
[*] % $ existing may gathered in each “The situation case be foregoing general course, from the statement of facts. Of overlap in the cases, some of the facts various while pertinent only particular are to a other facts case. How- general the situation must be viewed as ever, in consti- controversy.” tuting one foregoing apparent, above and it is From the and we injhis Judge findings hearing Walsh, that on the find,
so inescap- logical injunction, proper, on reached dispute” “labor able if the definition conclusion that “many for counsel cited is valid of the cases injunction temporary heretofore plaintiffs apply and the question of permanent, and the issued, should be made damages trial.” determined further on or not principal question is whether herein
The dispute” forth in sec- set legislative of “labor definition 1943, is chapter Laws paragraph 131, Session tion “The court said: court the trial In connection valid. dispute’ in defined as of a ‘labor feels that the definition too strained 1943, is Act of Peace the Colorado Labor can be defendants conduct of That if the and narrow. prac- guilty unfair trade them so as to make classified definition if this definition, and narrow tices under that an invasion permitted has been there stand, that rights.” constitutional of their question, proper on the above conclusion
To reach a para- said considered with act must be section 16 graph and taken to- so considered 2. When 7 of section are gether, of Colorado mean that courts sections those restraining grant jurisdiction orders or divested of all doing any person prohibit injunctions cer- from which any things “in case in- specific mentioned therein tain dispute,’ growing herein volving ‘labor as out of a defined.” subject any there is on statute absence
In the restraining granting the courts on restriction no only injunctions in cases case. It is orders or disputes” court does not have involving jurisdiction that the “labor grant The statute does not orders. such upon rights away any defendants, but bestows take disputes” rights not thereto- in “labor additional them disputes a defense labor possessed. It creates fore injunctions restraining not orders against for actions gist disputes. defendants’ permitted in other void unconstitutional is argument the statute is argument generous. The same more not is because it *21 414 against Compensation
could be advanced the Workmen’s Act of a fourteen dollars Colorado because it allows awarding temporary disability week for total instead of larger right a an sum. There have is no constitutional passed by legislature divesting jurisdic- act courts specific tion in right cases no a constitutional one has repeal legislature to a of said act. The created by away. defense and same token can take If it statutory act is held invalid, as de- ask, defendants permitted disputes fenses in labor would be eliminated general and such controversies controlled rules of this court as in other Cases. is de- That not what the really They fendants want. seek to have the definition of dispute,” larger “labor so liberalized as to include field injunction may Naturally wherein no issue. we have no power authority legislate upon subject arguments general such should be addressed to the as- sembly and not this court. express
Unless the Constitution in
terms or
necessary implication
legislature may
it, the
limits
exer
sovereign power
any way
judg
cise its
which
its
general
People
ment will best subserve the
v.
welfare.
Kindergarten
929;
16
Richmond,
274,
Colo.
26 Pac.
In re
18
Schools,
234,
Colo.
state or nation. v. 562, 52 Colo. 123 Pac. Mauff 101. many
It times been held has this court legislature legislate, plenary power subject only has limitations of state and federal Constitutions. Colacino People, People, 417, 350; v. 80 252 Colo. Pac. ex rel. v. Metzger (2d) McNichols, 266; 91 13 P. Colo. Peo- v. ple, (2d) 98 P. Colo. 1189.
An “act
is not unconstitutional
it
because
changes
public policy.”
the rule of
Potato Growers
Rifle
Smith,
Ass’n
Courts should destroy legislation conservative careful and when any legislative may upheld, decision and enactments be general assembly unnecessary of an act of the overthrow legislative judicial usurpation of decision as much a is power legislation. attempt In re as an at affirmative 832; Lewis v. House, 23 33 L.R.A. 87, 117, Colo. 46 Pac. Report 4 Parker, Colo. 300. Law justice, policy, questions or wisdom,
The legislature expediency alone and of a statute are for the People, 47 239, for v. 46 Colo. not the courts. Schwartz People, 168 60, Martin 69 Colo. 483, 92; Colo. 104 Pac. v. Chicago 65 Patterson, Title & Trust Co. v. 1171; Pac. Colo. 178 13. 534, Pac. Reilly, In American Federation Labor v. 113 Colo. (2d) chapter ’43,
90, 145, act, 131, 155 P. S.L. whole challenged legality, court, on re- as to and its held 20 and 21 of act were in- view, that sections said entirety, in valid their and that certain other minor provisions closely dependent are and which related upon sections, invalid, said were likewise and we refused pass upon constitutionality of other sections act. many respects controversy, instant
A in to the similar Supreme Court considered one, was v. in the recent case of United States United States Sup. Lewis, and John L. 67 Ct. United Mine Workers 6, March 1947. That case 677, 91 L. Ed. decided congress, which is involved the Norris-LaGuardia act of very many particulars to the identical similar and the Norris- Peace Act. Colorado Labor Section provided: court of the United States LaGuardia act “No any restraining jurisdiction shall have to issue order or injunction any temporary permanent case involv- or any ing any dispute prohibit growing or labor out persons participating person or in such dis- or interested defined) doing, (as pute are herein from these terms following singly concert, or in acts:” whether following specific Immediately the above is set forth acts prohibited restraining which the courts are from enjoining. application petitioner in the above case made Appeals for the District of Court of United States restraining an the commission of
Columbia for order among things: acts, certain and the court ordered other agents, “That the and each of them and their defendants attorneys, persons employees, servants, and all they participation them, active concert hereby pending order of this court are restrained further permitting to continue in effect the notice hereto- given by John defendant, Lewis, fore retary L. to the Sec- * * * 1946; of Interior dated November *23 coercing, instigating, inducing, encouraging from or the mine the workers at bituminous coal mines in the Gov- possession, any any person, ernment’s or or them, by interfere strike, down, out, slow walk cessation of operation work, or the otherwise, with of said mines continuing by issuing in effect the aforesaid notice or any agreement through any notice of termination of or * * *” other means or device.
Thereupon the mine workers and Lewis filed a motion discharge —as did the defendants here—to vacate and restraining upon grounds: the order “(1) temporary restraining The order is void in that grows dispute. this case involves and out a labor Un- provisions (47 der the of the Norris-LaGuardia act Stat. 70) provisions Clayton and of section 20 of the act, p. 38 U. S. Stat. C. 730, U.S.C.A., §52,this Honor- jurisdiction Court is subject- able without over the matter of this cause. “(5) temporary restraining beyond order is
jurisdiction of this Honorable Court and therefore void because it contravenes the First, Fifth and Thirteenth Amendments to the Constitution of the United States.”
The motion of the mine workers and Lewis to dis- charge temporary restraining and vacate the order was denied the trial court. The court held substance grow that a dis- the case did or out of labor not involve purview pute act within the of the Norris-LaGuardia restraining that order did not contravene First, Fifth Thirteenth the United Amendments to affirming judgment States constitution. In Supreme “If trial court, the United Court said: States rely, we examine 4 and which defendants sections on they completely strip purport we note that not do powers pre-existing the federal courts all their injunctions, only they power issue withdraw this specified type type is a case case, and that this ‘involving growing dispute’.” out of labor upon questions not
While above case was decided presented parties pertinent it observe that all here, is that the act in all re- assumed spects Norris-LaGuardia was apparently validity conceded. valid, and its principal points upon deci- One of the which the above predicated “person” is was not sion is that the word enough government broad and therefore to include the apply. There are that the Norris-LaGuardia act did not many throughout opinion the court statements clearly question as to whom which indicate that the scope apply, thereof act should and as whether the prov- the exclusive broad, should be narrow is within Congress. ince of *24 opinion
In the course of the in the United Mine Work- speaking case, ers in of the effect the Norris-LaGuardia Clayton pointed Act, act had on the it out that it had held in former case the “that Norris-LaGuardia * * * [narrowed] act further ‘still the circumstances grant injunctions the federal under which courts could disputes’ ”. Under the labor circumstances, in no one seriously Clayton contend that the could act was uncon- stitutional or invalid because it was more liberal than act or that the Norris-LaGuardia the latter was invalid because it was unconstitutional than narrower the former.
418 present in in case, however,
Defendants
the
contend
restraining
perma-
substance that if the
nent,
order is made
they
rights
deprived
be
their
under the
will
First,
and Fourteenth
to the
Thirteenth,
Amendments
Constitution of the United
As noted
de-
above,
States.
fendants in the United Mine Workers and
cases
Lewis
made the same contention
the United
but
States Su-
preme Court held otherwise, and concluded: “We have
examined the other contentions advanced
the defend-
ants but have found them to be without merit. The tem-
porary restraining
preliminary injunction
order and the
properly issued,
were
and the acts of the district court
* * *”
respects
in these
are affirmed.
The “other con-
tentions” mentioned
the court includes the
made
one
restraining
the defendants
the
order “contra-
First,
venes the
Fifth and Thirteenth Amendments to
Constitution of the
United States.
Upon
general subject
validity
of statutes
similar to the Colorado Labor Peace Act and the Norris-
act,
LaGuardia
is an
there
extensive
in
A.L.R.,
note
supplementing
subject,
earlier
annotations on
in
says:
which the author
publication
“The cases decided since the
present subject,
of the last annotation on the
princi-
in
419 picketing; and because the law as to raised; it clarifies similarity case in the instant of the facts to those proceedings. helpful court on further trial will be to the opinion quote, approval, as written from the We with Justice Schwellenbach: regardless
“Finally, statute, that, it is contended picket right peacefully anas to- men had an absolute speech guaranteed right them of free exercise of the read Amend. I. We have constitution. under the Federal Supreme Court on United States all the decisions of the commencing subject Ala- Thornhill with v. State through 84 L. Ed. 736, 1093, 310 U.S. 60 S. Ct. bama, Carpenters 88, Union of America v. Ritter’s and Joiners In 1143. 808, 86 L. Ed. Cafe, 722, 807, U.S. S. Ct. agreement respondent the latter had made an case, construction of with a contractor named Plaster for the employed building a non- Houston, Texas. Plaster respond- carpenters painters union work. The cafe, ent also the of a a mile and a half dis- was owner building tant under construction. The new building wholly cafe. All was unconnected with the restaurant were members of Hotel and Employees Alliance, Restaurant International Local 808. controversy respondent There was no between and the employees. painters’ carpenters’ restaurant respondent quarrel opera- had no over his unions carpénters painters tion of the cafe. No were em- ployed there. employed in the
“But because Plaster nonunion labor building away, mem- construction of a a mile and a half picketed respondent’s the unions cafe. Walk- bers of ing picket restaurant, back and forth front a placard place read: ‘This is Unfair to carried which Carpenters America, and Joiners Union of Local No. and Painters Local No. Affiliated with American wording changed Labor.’ Later, Federation of ‘The Owner of This Cafe Has Awarded a follows: as Building to Erect a to W. A. Plaster Who is Contract *26 420 Carpenters
Unfair to the and Union 213 Painter Union 130, Affiliated With the American Federation Labor.’ of pick-
“The court Cafe Texas found Ritter’s was forcing compelling purpose eted ‘for the and avowed plaintiff require [Ritter] contractor, Plaster, to the said only employ to use and members the unions defendant building on the in the on under construction 2800 block picketing, Broadway.’ Contemporaneously this Union, Restaurant Workers employees Local No. called Ritter’s on strike card out withdrew union his establishment. Union truck drivers refused to picket supplies cross line to deliver food other prevent to restaurant. The effect of all this was ‘to patronizing plaintiff’s members of all trade-unions from plaintiff’s cafe, and to erect a barrier around cafe, across which no member of defendant-unions or affiliate an go.’ will enjoined procedure,
“The Texas court the de- but picketing (including cree forbade neither elsewhere building by Plaster) under construction nor communica- dispute by any tion the facts of the means other than picketing of Ritter’s restaurant. page page of 315 U.S., “On on 808 of 52 S. Ct., 86 Ed. the court stated: L. “ employer ‘The economic contest between em- ployee merely has never concerned the immediate disputants. conflicting The clash of such interests inevitably implicates well-being community. Society compelled weight has therefore been to throw its into the has contest. law undertaken to balance the employer carry effort of the to on his business free from against interference others the effort of labor to every further its economic self-interest. And interven- government struggle respect tion of in this has in some abridged the freedom of action of one or the other both. “ mediating ‘The task competing between these in- recently largely judicial terests until has, been left to legislation. re lawmaking were “Courts and not legislation, quired, what to determine in the absence of public not be it demanded, whether would welfare by leaving to resort free best the contestants subserved involving peace means not a breach injury tangible property, it consistent whether public should be that the contestants with the permitted interest directly inter not the aid of others
to invoke controversy, extent and what ested in the matter injury persons parties contro to the not incidental versy justifiable'.” Brandeis Mr. Justice should be held *27 Corrigan, 363, 124, 42 Ct. 312, 257 S. in v. U.S. Truax right of the A.L.R. state 141, 254, 66 L. Ed. 27 375. served common is best to determine whether the interest weapons upon by imposing of the use some restrictions inflicting injury struggle of conflict for ing economic in the previously not been doubted.
industrial forces has
[State of]
Wiscon
Justice Holmes Aikens v.
See Mr.
sin,
and Mr.
154,
25
49 L. Ed.
194, 205,
3,
195
S. Ct.
U.S.
Corrigan, supra, 257
at
Justice
Truax v.
U.S.
Brandeis in
page
372,
42
S. Ct.
[124]
at
page
144,
66
L.
Ed.
254,
27
Dorchy
375;
[State of]
306,
272 U.S.
Kansas,
A.L.R.
v.
Lay
Tile
311, 47
L. Ed.
and Senn v.
86, 87,
248,
Ct.
71
S.
481,
857,
Ct.
Union,
468,
ers Protective
301 U.S.
57 S.
petitioners
863,
employed by him. Swing, 312 v. American Federation of Labor S. Ct. 85 L. 1145. But 735,
U.S.
61
Ed.
321,
dispute
circumstance
a labor
is the
that
occasion
exercising
expression
give
freedom
free
does not
that
any greater
dom
or render it
constitutional sanction
completely
as
on
here,
inviolable.
claims
behalf
Where,
speech
of free
are
with claims on
of the au
met
behalf
thority
impose
regulations
for
state to
reasonable
protection
community
duty
whole,
as a
plain.
challenged
this Court is
state
is
Whenever
action
“liberty,”
question always
as a
denial
is whether
the state has
“the
violated
essential attributes of that
liberty.”
Hughes
Mr.
[State of]
Chief Justice
in Near v.
Minnesota,
697,
283 U.S.
708,
625, 628,
S. Ct.
75 Ed.
L.
right
speech
1357. While the
of free
is embodied in the
liberty safeguarded by
Due
Clause,
Process
postulates
authority
Clause
of the states to translate
policies
promote
safety,
into law local
“to
the health,
**
general
people
morals, and
welfare of its
*. The
sovereign power
always
limits of this
must
be deter
appropriate regard
particular subject
mined with
to the
page
of its exercise.”
Id.,
U.S. at
51 S. Ct.
boundary
75 L.
conflicting
Ed. 1357. “The
at which the
by any general
balance
interests
cannot be determined
points
helping
advance,
formula
but
line,
*28
it,
establish
are fixed
decisions that this or that con
on
crete case falls
the nearer or farther side.” Hudson
County
Co. McCarter,
Water
v.
209 U.S.
355, 52 L.
529,531,
828, 14
S. Ct.
Ed.
Ann. Cas. 560.
“ Tn the circumstances of the case before us Texas has
general
declared that its
welfare would
if,
not be served
controversy
building
a
between a contractor and
permitted
workers’
bring
unions, the unions were
to
to
weight
weapons
bear the full
of familiar
of industrial
against
combat
a restaurant business,
as a
which,
busi-
building dispute
ness, has no nexus with the
but which
happens
by person
to be
a
owned
who contracts with the
precise question
is,
builder.
therefore, whether the
drawing
prohibits Texas from
Amendment
confining
Fourteenth
industrial
of unrestricted
the area
this line
* * *
welfare.
“
workingmen
by peaceful picketing
‘It is true that
grievances.
means of communi-
As a
their
communicate
cating
may
dispute
picketing
peaceful
facts
a labor
of
right
phase
of free utterance.
of the
be a
constitutional
peaceful
recognition
picketing as an exercise of
of
But
speech
imply
be
that the
must with-
free
does not
states
power
sphere
to
out
of communication
to confine
picket-
directly
dispute.
related to the
Restriction
ing
industry
dis-
to the area of the
which a labor
within
pute
open
disputants
'tradi-
arises
other
leaves
to the
deny
tional modes of
the states
communication.
To
power
the Constitu-
draw this line is to write into
tion
every
picketing
peaceful
the notion that
instance of
—anywhere
and
necessar-
under
circumstances—-is
ily phase
controversy
pick-
provoked
which
eting. Such a view of the
Clause would
Due Process
compel
particular
disputants
the states to allow the
in a
episode
having
conscript
industrial
rela-
no
neutrals
industry
dispute
tion to either
it
or the
in which
arose.
“
forbidding
conscription
‘In
in the
the
such
of neutrals
represents
circumstances of the
us,
case before
Texas
prevailing,
probably
policy unanimous,
states. We hold that
the Constitution does not forbid
here. To
Texas to draw the line which has been drawn
hold otherwise would
to transmute vital constitu-
be
dogma.
tional
liberties into doctrinaire
We must
rights
employers
mindful that the
compete
their economic
conduct
affairs
products
industry
for a share in the
are sub-
others
ject
qualification
in the
to modification
interests
they
society in which
exist. This is but an instance
permissible
power
set
of the State to
the limits of
open to industrial combatants.’ Thornhill v.
contest
*29
[State of]
103,
736,
60 S. Ct.
Alabama,
310 U.S.
745,
“The United has, States Court these picketing is an exercise established this rule: Peaceful right Organized right speech. of free has labor by to communicate either of mouth its views word or placards. nothing more use This is nor less persuasion. picketing than a method of to be used for the But ceases when persuasion just purpose the min- — steps persuasion ute it from over the line to coercion— protection guaranty it loses the constitutional speech, person injured persons free may apply and a its acts equity to a for relief. court picketing “The facts in this case convince us that complained of did an exercise not constitute of free speech contemplated by founding as our fathers. Neither communicating was it a means of the facts of a labor dispute interpreted by Supreme as the United States Court. The Labor Board had, National Relations designated order, the International Association of Ma- bargaining agency chinists as the exclusive of all the employees plant. purpose picketing at employer picketing was to force the to deal order, unions in defiance of this under that, the threat plant refuse his so, should he to do would be closed and prevented equipment being any place his installed Appellant in the United States. was This coercion. plant. irreparable close This forced to his resulted him, loss his were out thrown of em- ployment. adequate remedy He had no at law. The restraining order theretofore entered should have been continued.” inescapable,
The conclusion is and we so hold, appli Peace Act, that the Colorado Labor far so as respects here, cable is in constitutional, all valid and en “involving grow and that this is not a case forceable, ing dispute” a labor as out of defined in the act. We also hold' that there is no merit to the contentions of the *30 rights under defendants in error that their constitutional Amendments First, Thirteenth, and Fourteenth injunc- violated, the Federal Constitution tion is made be if will permanent. judgment remanded
The is reversed and the cause restraining and order with instructions to reinstate the permanent, proceedings the same and for further make may respect damages as be neces- and otherwise sary, harmony proceedings such in with the views expressed. herein concur Stone and Mr. Justice Hilliard
Mr. Justice part part. in and in dissent
Mr. Justice Jackson in the concurs conclusion. Mr. Justice Stone and concurring part dissenting part.
Temporary injunction in this case issued was on the allegations complaint. basis Permanent injunction justified by must be the evidence. plaintiffs urge
Counsel for in their reversal on brief ground assertedly concerning tortious acts which upon evidence was adduced at trial. The acts which plaintiffs rely may are set out in their brief be sum- and marized as follows: injure destroy
First. Threats business of plaintiffs they sign should union The unless contracts. only vague general, threats testified to were such as alleged truck line statement to the owner of a that get you by crook,” Beach, “we will hook or and to put join union, if he “the union forth would not will every destroy Milk effort to the Beach aas vague threats, business.” Such and indefinite even sufficiently specific denial, were not the absence background of violence in con- to constitute definite nection with other or to serve as of claim for acts basis damages injunction. Display against
Second. of force the truck drivers dogging nonunion carriers and them on their routes. only charge evidence in the record is that on as this days one occasion, some twelve before action begun, representatives congregated several union in cars trucking headquarters across from the of a concern and that one or more of them in a car each of the followed picking up truckers as he went over his route cream and *31 carrying city it to its destination in the of Denver. As the trial court found, this “instilled fear into the heart of the driver.” Defendants
say this action taken for was purpose investigating the of the sources from which the nonunion truckers their obtained milk and the destina- tion to which it was delivered. There was actual no prevention any no interference, word of threat, no of carrying attempt trucker from out his duties, no repetition ground damages threat of of the act. No for injunction can be based thereon. Third. Prevention of non-union carriers from deliver- ing by given milk to union dairies means of directions employees, by picketing union dairies and threaten- ing charge strike. The evidence as to this discloses that purpose accomplishing for objective the of organize trucking industry union to the entire milk representatives Denver, of the union were stationed processing plants about certain union milk and that approached plant when a driver such he was he asked if quietly join had card; a union if not, he was asked to Upon union. his refusal he was told he could not unload plant approached and, at that when he dock, union there refused handle the milk. On picket posted plant, one occasion a at a union but upon protest by manager, he was told it was a mis- picket may take was withdrawn. This act together charged by plain- considered with a fourth act picket tiffs: that the defendants threw line around the plant customary of the Beach Milk with the legend preventing “unfair” and with the usual result of delivery interfering of milk union drivers and with delivery supplies helping and materials and in- bricklayers engaged urgent duce union construction plant work at the cease work. The evidence discloses soliciting sign that after Beach to an all-union contract without picket success, the defendants threw a line plant consisting picket carrying about the Beach an “unfair” one sign. day The first there were four or five standing other union members across the street. There- present after there was seldom union member ex- cept picket. There was violence, no nor threat of soliciting employee violence. There was occasional of an join persistence the union, but no interference or doing. so Did such acts, third and fourth, constitute un- practice fair labor under the terms of the Colorado Labor they Peace Act, and if so, were sufficient for basis dam- ages injunction? answering question dealing
In we are not theory, novel translation economic but with rules of right apparently which, constitutional even if not fol lowing interpretation, earlier trends have been re peatedly Supreme declared this court and the Court *32 passage of the United States. At the time of the People Labor Peace Act this court in v. 104 Harris, Colo. (2d) 386, 91 P. 989, Denver Union Truck Lines, v. 106 (2d) Bucking 25, 486, Colo. 101 P. and Denver Union v. (2d) ham Co., 419, 108 Colo. 118 P. 1088, and the United Supreme States Court in Thornhill v. Alabama, 310 U.S. Sup. 88, 60 736, Ct. 84 L. Ed. and 1093, American Federation Swing, Sup. o Labor v. 312U. S. 61 321, 568, Ct. 85L. f peaceful picketing 855, Ed. had declared that is a form speech, protected by of free and, such, as constitutional guaranty.
Perhaps familiarity because of actual with those deci- legislature specifically sions, the declared in the Labor (S.L. 131), right Peace Act c. ’43, “The that, of both 428
employer ¿reely express, employee and and declare concerning publish proposals respective their and v.ws abrogated relationship labor or limited not be shall right consti- act, nor shall the exercise of such practice,” (2), tute an and further unfair labor section 7 anything this act be declared in section “nor shall in right unlawfully so freedom construed as to invade speech.” (e) provision dom of declar- picket- in section 6 ing inducing cooperate engaging that to in in or ing practice is an unfair must, labor be construed then, harmony right (2) with sections 7 and as to the speech, possible, of free if construed, and so the word “picketing” employed as in- in the act must be held as persuasive, tended its sense. coercive, not its picketing Otherwise the limitation on a limi- constitutes right express concerning tation on the views labor relationships right speech, and invades the freedom contrary provisions explicit to the of the statute. proper interpretation
That such is the is borne out patterned the fact that our on, Labor Peace Act was closely, followed the Wisconsin Labor Peace Act. Our provision picketing copied as to is verbatim from the Supreme Wisconsin act. The Court of Wisconsin in Employees Hotel Local Board, v. 236 Wis. N.W. judgment restraining picketing 632, affirmed as an practice. unfair labor The case was taken to the United Supreme ground enjoined States on Court that it peaceful picketing consequently speech. freedom of speaking through That court, Frankfurter, J., said: “Precisely imposed upon what restraints Wisconsin has petitioners Supreme is for the Wisconsin Court * * * unambiguously determine. And that court has re- jected upon peti- the construction which the claim of the tioners rests. only per- violence,
“That the order forbids and that it peaceful picketing by petitioners, these mits is made expressions abundantly clear of the court: ‘The right employee speak act limit an *33 does not * * * freely. (the act), “picketing” The term in as used supra, does not case, include acts held in the Thornhill guar protection to be within the of the constitutional anty right speech. express language of the of free clearly of the act forbids such a It refers construction. picketing says to that kind of Thornhill which the Case power part the state has the deal “as a of its power preserve peace, protect privacy, ’ * * * property the lives and the of its residents.” undisputed In this that case it is numerous assaults were by pickets, pickets committed that the acted in con paid by pickets cert; that the fines of these were ingress egress premises union; that to and from the employer prevented were force and arms. It was at conduct of kind that the statute was aimed. It is conduct of that kind that is dealt with this case. It is conduct of that kind that it declared to be an un practice by fair labor the statute which the defendants are ordered to cease and desist.” Hotel & Employee’s Restaurant Local Board, v. 315 U.S.
Sup. Ct. 706,
at 469. construing So our Labor Peace Act, there is no ac- ground injunction tional resulting claim, nor for either picketing from the so-called at the union creameries or picketing from the plant. at the Beach Neither was a violation of the Act. injunction peaceful picketing
Whether
would lie if
specifically
were
forbidden
the act we are not now
upon
determine, but,
called
note the statement opinion
Bakery,
Jackson,
J.,
court
etc.,
(62 Sup.
Wohl,
Drivers Local v.
tion course that not involved. Of such a was dis- that in a ‘labor does not follow: one need not be pute’ by right as under the defined state law to have a grievance express in a Fourteenth a Amendment by publication by violence, labor matter co- unattended oppressive.” ercion, or conduct otherwise unlawful or peaceful picketing As considered, the court there perceive said: “We ourselves can substantive evil no magnitude right such free as to mark a limit to the speech petitioners sought which the exercise. The slightest sugges- record in this case does not contain the tion of embarrassment governance; in the task of there findings are no and no circumstances can from which we publication draw the inference that was attended or likely by violence, attended force or or coercion, oppressive; conduct otherwise it not unlawful is indicated that there was an actual or threatened abuse of right speech through the picketing. to free the use of excessive required places
A state is not
to tolerate in all
peaceful picketing by
and all circumstances even
an in-
respondents’ mobility
so far
tell,
dividual. But
as we can
public
and their insulation from the
as middlemen made
practically impossible
petitioners
it
for
to make known
grievances
legitimate
public
patronage
their
to the
whose
sustaining
peddler system except by
the means
employed
contemplated;
here
and those means are
slight,
any, repercussions upon
as
such
to have
if
strangers
interests of
issue.”
charge
plaintiffs
act,
As a fifth
that
the defendant
bricklayers
engaged
union
caused
who were
in neces-
Dairy
sary
work at the Beach
construction
to cease work
damage
plaintiff
suggestion,
Beach.
is
to the
There
no
stop-
evidence,
the brief
that
either in
the work
by any
page
picketing
act other
was caused
than the
plant hereinabove discussed,
the Beach
and the conse-
bricklayers
picket
quent
of the union
refusal
to cross the
charge
separate
only
act,
is not
but
line. Such
one of
picketing
of the act of
the results
hereinabove discussed.
plaintiff charges
As a sixth and last tortious act
upon
managers
Piggly-
the defendants called
Wiggly
twenty-five
some
stores,
near
number, in and
city
picket
Denver and threatened to
stores
those
they immediately
unless
milk
Beach
ceased to sell
dairy.
charge
This
is sustained
the evidence. As said
findings:
the trial
carrying
court in its
“In
out the
secondary
threat
boycott
of a
rep-
made
the union
resentatives
Company,
to the Beach Milk
various union
* * *
officials
contacted Mr. E. H. Lambotte, President
*35
* *
Piggly-Wiggly
of the
Stores
*.
nine
Some
managers
Piggly-Wiggly
owners or
of
stores were also
* * *
* * *
contacted.
Mr. Lambotte was advised
if
might
necessary
Beach refused
establish a sec-
it.
* * *
ondary boycott
Piggly-Wiggly
Coffey
stores.
going
picket
advised Lambotte that the union was
the
Piggly-Wiggly stores.” Thus the trial court found that a
secondary boycott
purpose
was threatened. The
the
of
dispute
organize
union in its
with Beach was to
milk
processing industry
Piggly-Wiggly
of Denver. The
together constituting
stores, while
one of Beach’s best
any way engaged
customers, were not in
in the business
processing
They
engaged
milk.
were
in the retail
grocery
very
business. Their sale of milk was a
minor
part
Picketing
of such
grocery
business.
these
stores, as
exerting
an
pressure
indirect means economic
in a
dispute involving only
processing industry,
the milk
plain
a
violation of the Labor Peace Act; it would have
“repercussions
caused violent
strangers
upon' the interests of
issue,” and it so far
to the
extends the orbit of
dispute
“conscripts
industrial
and so
be,
neutrals” as to
authority
regulation by
I
believe, within
the state
legislature
as indicated
the decisions of the federal
Carpenters
As
in
&
courts.
said
Joiners Union v. Ritter’s
(62 Sup.
1143),
directly dispute. Restriction of related to the industry dispute to the area which a labor within open disputants traditional arises to the other leaves deny the states the modes of communication. To power is to into the Constitution to draw this line write every peaceful picketing— the notion that instance of anywhere necessarily and under circumstances—is phase controversy provoked picket- which (in ing. Such a view of the Due Process Clause Amendment) compel to al- Fourteenth would the states disputants particular episode low the conscript in a industrial having relation either dis-
neutrals no pute industry it which arose.”
Accordingly, my opinion injunction against boycott by picketing Piggly-Wiggly threatened permanent, as unfair should be made stores and the remanded for cases should be the determination of the damages, any, question of if suffered as a result of picketing, such and that as to threat of the other issues be dismissed. the action should opinion. concurs Hilliard Mr. Justice