195 So. 791 | La. Ct. App. | 1940
Lead Opinion
The lower court has set out and determined the issues in this case in a well-written opinion, which is as follows:
"There is presently existing a labor dispute between Riverside Jersey Farms and drivers who are members of the defendant *792 union. Leon Johnson operates a grocery store and is a large retail dealer of the milk produced by this dairy, handling two or three hundred quarts per day. Following the strike by the drivers of this dairy, members of the local, together with the drivers, called on Mr. Johnson to assist them in the strike by discontinuing the handling of the milk of this concern. Mr. Johnson declined this request. Beginning on Friday, December 15, 1939, these drivers began to patrol in front of and in the vicinity of the Leon Johnson grocery store. Circulars advising of the strike at Riverside Jersey Farms were distributed. Signs were exhibited which called attention to the strike. Prior to a hearing on this suit, the signs were changed to read as follows:
"`Riverside Jersey Farms
Is
Unfair
To
Milk Drivers
Local No. 854
Affiliated with A. F. of La.'
"Two such signs are now being displayed and the testimony is to the effect that the distributing of circulars has been discontinued. No attack has been made on the grocery store as being unfair to organized labor and no effort is being made to prevail on customers to discontinue their business with this plaintiff, breach of the peace or threat thereof.
"The evidence discloses that Mr. Johnson's store is back from the sidewalk some distance so that a drive-in parking space could be provided in front of his store. This resulted in the usual sidewalk space being used for the parking of cars. In lieu thereof, a sidewalk of some eight feet in width was provided, which adjoins the building of the plaintiff. On complaint that this was his private property, defendants moved out on the edge of the street without complaint. While it may be true that this is a private sidewalk, we are of the opinion that the sidewalk furnished by plaintiff for the public in lieu of the regular space utilized by his customers for parking is certainly `a place where any person may lawfully be', as contemplated by Act
"In plaintiff's petition for the injunction, he makes as the basis for this order the following allegations:
"`4. That petitioner is informed, believes and therefore alleges upon information and belief that there exists at the present time a dispute between the owner and operator of the said Riverside Jersey Farms and the members of the Milk Drivers and Employees, Local No. 854, but that petitioner is not a party to said dispute nor has he any interest therein nor is he concerned therewith in any manner or degree whatsoever, and petitioner specifically alleges that he is not involved in any labor dispute of any kind or character with any person, association of persons or any organization.
"`5. Petitioner shows that on Wednesday, December 13, 1939, he was approached by certain members of the Milk Drivers and Employees Local No. 854 who made verbal demand upon petitioner to cease handling milk or any other dairy products of the Riverside Jersey Farms and was warned that upon his failure to cease handling said products his business establishment would be picketed with a view of forcing petitioner to cease handling said products.
"`6. That at about 9:30 A. M., on Friday, December 15, 1939, members of the Milk Drivers and Employees Local No. 854 began an organized picketing of petitioner's business establishment and since said time have been and are now engaged in the following practices:
"`(a) Several members of the Milk Drivers and Employees Local No. 854 carrying large painted signs affixed to sticks of wood several feet in length, patrol the space immediately in front of petitioner's business establishment at the premises above described.
"`(b) That in the process of patrolling the space in front of petitioner's establishment, the members of the above named local, not only occupy and patrol the space on the street and the street side of the property line, but actually encroach and trespass upon petitioner's private property immediately in front of the premises above described.
"`(c) That the parties patrolling the premises and the vicinity of the premises described both stand and march in front of vacant parking spaces impeding and interfering with the driving in and parking of cars belonging to petitioner's customers, thereby causing annoyance, inconvenience and creating a traffic danger and hazard, with a probability of causing or contributing to the causing of accident and injury to both themselves and others. *793
"`(d) That the persons patrolling said premises stand and march both in front and behind cars parked in the drive-in parking space immediately in front of petitioner's establishment, making both the entry of cars into parking spaces and their departure therefrom extremely hazardous and dangerous and causing delay, inconvenience and difficulty and danger of operation of cars to the drivers and passengers thereof who are customers of petitioner.
"`(e) That the signs carried by the persons patrolling as above described are large and bulky and interfere with the view of automobile drivers and impede the free and convenient passage of pedestrians as well as obstructing the operation of automobiles both on petitioner's property and in the street immediately in front thereof.
"`(f) That several persons, members of the said named Local No. 854, stand on the sidewalk in front of petitioner's place of business, which sidewalk is on the private property of petitioner, distributing circulars and handbills bearing upon a purported strike by union laborers, in the course of which actions the passage of petitioner's customers, as well as other pedestrians and their entrance into and exit from petitioner's place of business are delayed, impeded and hindered to the annoyance of petitioner's customers and consequent loss and damage to petitioner.'
"There has been no contention that anything false was contained in the circulars. In oral argument plaintiff's counsel complains of the fact that the word `unfair' is displayed prominently on the sign. We cannot agree that there is anything misleading in the sign as produced in court. Counsel also complained of the other signs which were being displayed in this respect. If there was any merit in the contention, no relief could be granted for no such complaint is made in the pleading, and Act
"It is necessary to determine in this case whether a dispute exists as defined by Act
"Legislation on the issuance of injunctions in labor disputes began with the Clayton Act,
"Subsequent to the passage of the Norris-LaGuardia Act by Congress, our Legislature enacted the same legislation when it passed Act
"The important provisions of this act, insofar as they affect this case, are found in Sections 3, 6 and 12 thereof. Section 3 provides as follows:
"`No court, nor any judge or judges thereof shall, or, have jurisdiction to, issue any restraining order or temporary or permanent injunction which in specific or general terms prohibits any person or persons from doing, whether singly or in concert, any of the following acts: * * *
"`(e) Giving publicity to and obtaining or communicating information regarding the existence of, or the facts involved in, any dispute, whether by advertising, speaking, patrolling any public street or any place where any person or persons may lawfully be, without intimidation or coercion, or by any other method not involving fraud, violence, breach of the peace, or threat thereof;
"`(f) Ceasing to patronize or to employ any person or persons; * * *
"`(h) Advising or notifying any person or persons of an intention to do any of the acts heretofore specified; * * *
"`(j) Advising, urging, or inducing without fraud, violence, or threat thereof, others to do the acts heretofore specified, regardless of any such undertaking or promise as is described in Section 2 of this Act; * * *.'
"In other words, if a labor dispute exists, then the court is powerless to issue an injunction, *794 except in those cases involving fraud and violence of some form.
"Where an injunction is issued, the court in doing so, among other things, must find as a fact, under Section 6, subsection (d), `that no item of relief granted is relief that a court or judge thereof has no authority to restrain or enjoin under Section 3 of this Act.'
"Section 12 defines the important terms of the act with reference to dispute, etc. We shall quote this section in part:
"`When used in this Act, and for the purpose of this Act —
"`(a) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in a single industry, trade craft, or occupation; or who are employees of one employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is (1) between one or more employers or associations of employers * * * or employees engaged in such industry, trade, craft, or occupation.
"`(c) The term "labor dispute" includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, or concerning employment relations, or any other controversy arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the proximate relation of employer and employee.'
"We have concluded that this case does not present a true `secondary boycott' and also that it involves a dispute as provided by Act
"In every case which we have read holding a `secondary boycott' existed, the facts showed that trade or commerce in general was attempted to be stopped. If these defendants were by circulars, signs and conduct charging the petitioner as being unfair to organized labor and soliciting their friends to refrain from patronizing this business, then we would have the situation usually termed a `secondary boycott'. As we have heretofore stated, this is not being done by these defendants. They are merely pursuing the product of their employer and advertising in a manner and method authorized by the provisions of Act
"In the recent case of Senn v. Tile Layers Protective Union,
"Certainly there could be no complaint if the members of this defendant union were able to daily carry such notices in the local press that they are now carrying in front of petitioner's store. This construction by Justice Brandeis, we think, correctly reflects the intent behind such legislation.
"We can hardly conceive of a more broad and inclusive act of the Legislature than the one now presented to the court, and so long as the picketing or publicity does not involve violence or fraud of some character, the courts are absolutely without jurisdiction to issue injunctive relief.
"The leading case on this subject and one involving practically the same situation as is now presented to the court arose in the State of New York in the case of Goldfinger v. Feintuch, 1937,
"That same unity of interest or relationship exists in this case between the producer or dairyman and the retailer of the milk, who operates a grocery store.
"In the Goldfinger case, the same contention was made that the act was not *795 applicable to the parties to the suit and in answer to that contention the court said: `The only ground that could be advanced for contending that the statute is not applicable is that the plaintiff is not the employer of the men whom the defendant seeks to represent; but the statute expressly provides that it is applicable to parties in the same industry, "regardless of whether or not the disputants stand in the relation of employer and employee.'"
"So in the statute in this state, which we have quoted herein in Section 12, Sub-section (c), it is provided: `* * * or any other controversy arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the proximate relation of employer and employee.'
"Certainly, it is to the interest of the employees to inform the public and secure their assistance in their dispute with the Riverside Jersey Farms. The most effective way that is offered them is at the point of distribution of the product. In an article on this subject in the Louisiana Law Review by J. Denson Smith, Associate Professor of Law at Louisiana State University, the following observation of this practice is made: `Obviously enough, if the picketing is successful, the retailer may be compelled in self-protection to cease stocking the manufacturer's product. However, exactly the same thing would happen if picketing at the manufacturer alone should be sufficient. Yet no one would suppose in the latter case that the manufacturer would be entitled to relief merely because the picketing of the factory was successful in stopping retail sales elsewhere. Therefore, those courts that recognize the legality of picketing of this kind at the place where the goods are retailed are taking the proper view of the matter.'
"In his concurring opinion in the Goldfinger case, Judge Lehman made the following observation on the question of a secondary boycott: `I agree that peaceful picketing of the plaintiff's place of business by the defendant union for the purpose of inducing the plaintiff's customers to refrain from buying nonunion products of a manufacturer, which are on sale by the plaintiff, is lawful. That is not a "secondary boycott.'"
"This is exactly the situation that has been shown to exist in the case now before the court.
"Similarly, in Manhattan Steam Bakery v. Schindler, 1937,
"So in this case, there is a definite relation and interest between the sale of the products of the Riverside Jersey Farms by the plaintiff, Leon Johnson, and the aims and objects of the defendant. To the same effect are two other decisions from New York, viz; Public Baking Company v. Stern,
"The petitioner herein has cited a number of cases in support of his application for an injunction. We have carefully read each one of these cases. They are not applicable for either the reason that the statutory law was not modeled after the Norris-LaGuardia Act, or either involved fraud, misrepresentations, violence, intimidation or some other illegal act on the part of the defendants. We shall now discuss those cases relied upon by plaintiff.
"In Meadowmoor Dairies v. Milk Wagon Drivers Union, etc., 371 Ill. 377,
"In the New York case of Grandview Dairy v. O'Leary,
"The case of George F. Stuhmer Company v. Korman et al.,
"In the case of Chapman v. Doe et al.,
"In Driggs Dairy Farms, Inc., v. Milk Drivers' Dairy Employees' Local Union No. 361 et al.,
"In Wiest v. Dirks, Ind.Sup.,
"Judge Dawkins, of the Federal District Court, issued an injunction in Fehr Bakery Company v. Bakers' Union et al., D.C.,
"The Indiana case of Muncie Building Trades Council et al. v. Umbarger et al., Ind.Sup.,
"In the case of Swing et al. v. American Federation of Labor et al.,
"For the reasons assigned, we find that no true secondary boycott exists in this case and further that there is a dispute as defined by Act 203 of the Louisiana Legislature for 1934. Therefore, this court is without jurisdiction to issue an injunction in view of the failure of the plaintiff to allege or prove violence, fraud, intimidation, etc.
"We make no findings of fact, as provided for in Section 6 of Act
"By agreement, the evidence taken on the rule for preliminary injunction is to be made applicable to the prayer for a permanent injunction.
"For the reasons assigned, the rule nisi heretofore issued is recalled and the demands *797 of plaintiff for a temporary and permanent injunction are rejected, at his cost."
Judgment was signed in accordance with said opinion and, at the request of plaintiff, the lower court certified the entire record to this court for us to review.
In this court appellant argues that if the court should hold that Act
We do not think this position well taken. The word "unfair" by itself could not convey any meaning as to who was unfair, without reading it in connection with the rest of the sign, and in large letters just above the word "unfair" is "Riverside Jersey Farms", and on a line between the two is the word "is". The whole placard is in large, plain letters and all of it can be easily read at a glance. It would be most unusual for anyone to misinterpret the meaning conveyed by the sign.
The sign displayed at the beginning of the strike and discontinued before trial below is equally as clear in its meaning, that is, that the Riverside Jersey Farms was on the "We do not Patronize" list and therefore requesting the public not to buy the products of the Riverside Jersey Farms which were handled by the plaintiff. Plaintiff's name appeared on neither placard nor sign and neither sign was in any way misleading.
The contention of plaintiff that the pickets trespassed upon the private property of plaintiff is correctly disposed of by the lower court in its opinion.
Appellant further contends that the acts of the pickets were unlawful in that they interfered with customers and created unnecessary hazards in the passage of pedestrians. We do not think the record establishes the correctness of the charges and it is our opinion that the picketing was lawful and as quiet and peaceful as it is possible for picketing to be; and it was clearly the intention of the pickets to stay within the law in every respect.
We find no error in the opinion of the lower court and it is affirmed, with costs.
TALIAFERRO, J., concurs in final decree, but dissents in other respects.
Dissenting Opinion
I concur in the final decree in this case, but dissent from that part of the opinion which inferentially recognizes the right of pickets in labor dispute to patrol on private property. To permit such to be done, it is easy to conceive, could, and in many cases would, lead to far-reaching mischief and disorder. It would be violative of rights and privileges vouchsafed to owners of real property by the state and federal constitution.
