State Ex Rel. Culinary Workers Union, Local No. 226 v. Eighth Judicial District Court

Badt, J.,

I dissent.

The foregoing opinion denying the petition for rehearing implies that a dissenting view would require the overruling of City of Reno v. Second Judicial District Court, 59 Nev. 416 , 95 P.2d 994 . Such is emphatically not the case. City of Reno, v. Second Judicial District Court simply struck down those sections of a city ordinance that made unlawful

all

picketing, violent or peaceful, en masse or by a single picket, and whether its objective was to accomplish an unlawful purpose or to accomplish a perfectly lawful purpose — “a sweeping prohibition of any form of picketing, irrespective of its nature, purpose

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or number of pickets, and constitute an interdiction of all activities and free speech sought to be exercised in the form of peaceful picketing.” Id., 59 Nev. 416, 433 , 95 P.2d 994, 1000 . It did not touch either of the two questions before us — first, whether picketing may be enjoined if its objective is unlawful, and secondly, whether the purpose of the picketing of the Las Vegas drug stores (to compel the execution of a contract under which the employers could employ only union men) was in violation of our statute. An affirmative answer to the first query must be conceded. It was recently re-affirmed by the supreme court of the United States in Giboney v. Empire Storage & Ice Co., 1949,

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336 U.S. 490 , 69 S.Ct. 684 . The majority is at great pains to point out that sec. 10473, Nevada Compiled Laws, making it unlawful for an employer to cause his employee to “agree to become * * * a member of a labor organization” has reference only to a so-called “company union.” The legislature could have said “company union” if that was what it meant. But it said “labor organization.” The majority opinion holds that our statute is simply an “anti-yellow-dog contract” statute. But the “anti-yellow-dog” part of the statute makes it unlawful to cause the employee to “agree not to become * * * a member of

a, labor organization.”

If an employer cannot lawfully forbid membership in

a labor organization,

the whole “yellow dog” feature vanishes into thin air if that labor organization is simply

a company union.

Union labor would be afforded no protection by the outlawing of contracts whereunder an employee could not be a member of a company union. Precisely the same term, namely, “labor organization,” is used in both clauses — the clause outlawing an insistence on membership and the clause outlawing an insistence on nonmembership. Certainly “labor organization” cannot have been intended by the legislature to refer to a labor union in part of the sentence and to refer to a company union in another part of the same sentence. The title to sec. 10473, N.C.L. is aptly and properly worded by the codifier: “Agreement to Join or Not to Join Labor Organization Unlawful, When.” Instead of treating this statute simply as a nondiscrimination statute, which it appears to me most clearly to be, we now have a statute which is not even an “anti-yellow-dog contract” statute. It is nothing at all. It now simply means that an employee cannot be compelled to be a member of a company union and that he cannot be compelled not to be a member of a company union.

The majority opinion denying rehearing relies

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strongly on Baker Community Hotel Co. v. Hotel & Restaurant Employees, etc., Or., 207 P.2d 1129 . That case, however, simply held that an attempt to unionize the plant constituted a labor dispute within the conception of the Oregon statute and that peaceful picketing to accomplish such objective could accordingly not be enjoined. It does not touch upon our present problem.

The majority opinion states that City of Reno v. Second Judicial District Court and other cases “upheld the lawfulness of peaceful picketing as a proper and legitimate labor

objective.”

(Emphasis added.) With due respect to that opinion, such conclusion is inaccurate. Peaceful picketing as a

means

or as an

activity

has of course been held to be free from restraint subject to various conditions, one of which is the lawfulness, under state laws, of

its

objective. It has never, so far as I know, and certainly not in City of Reno v. Second Judicial District Court, been upheld as an objective in itself.

Feeling, as I do, that the majority opinion supporting the order denying the petition for rehearing leaves the matter in greater confusion than ever, I think a rehearing should be granted.

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Here we have the unmistakable implication that the court would not have invalidated the statute if it had declared unlawful only such picketing that was violent or had for its objective the accomplishment of an unlawful purpose.