American Federation of Labor v. Bain

RAND, C. J.

(dissenting). In passing upon the constitutionality of this Act, consideration should first be given to the objects and purposes of the Act and the reasons which impelled the people of this state to enact its provisions into law. Prior to its enactment and growing out of the rivalry which existed between the two great divisions of labor — the American Federation of Labor on the one hand and the Congress of

*223

Industrial Organizations on the other — over jurisdictional questions as to the members of which of said organizations should be permitted to work, and like controversies between certain unions affiliated with the American Federation of Labor, picketing, accompanied by violence and breaches of the peace, became prevalent in many parts of the state and resulted in so much lawlessness and violence as to threaten the very peace and safety of the state. As a result thereof, the plants and premises of many employers, who had no interest in such controversies and had taken no part in them, were subjected to mass picketing and, because of violence and breaches of the peace resulting therefrom,-many workers were thrown out of employment, and business and industry throughout the state became disorganized and disrupted to the great detriment not only of the employers and workers but also of the people of the state as a whole. To mention but a few of such instances, farmers were openly prevented from transporting, upon the public highways of the state, their own farm products to market, and certain streets in the city of Portland were closed to traffic by large bodies of men engaged in mass picketing. Property owners were prevented from obtaining access to their own property. Shipping was brought to a complete standstill in the Portland harbor. Thugs were employed to break windows, destroy trucks and automobiles, dynamite and destroy buildings, and men anxious to work were beaten and severely injured, and their homes and families were threatened and sometimes subjected to violence.

That such conditions did exist and that the unions themselves were unable to prevent such occurrences

*224

are admitted in one of the plaintiffs’ replies filed in the court below, wherein it is stated:

“Plaintiffs further admit that in the past, on occasions, certain individual members of labor unions in Oregon, in disregard of their obligations to their organizations, their fellow members and the people of the state of Oregon, have committed wrongful, unlawful and criminal acts.”

Clearly, it was within the power of the state to prevent such disorders, and this law was enacted for that purpose by the people of this state at the regular general election of November 8, 1938, by a vote of 197,771 for to 148,460 against. That it had the effect of curing such evils, is proved by the fact that, since its enactment, the acts of lawlessness above referred to have almost if not entirely ceased to exist in this state. Hence, in approving this law, the people did not consider that they were enacting an unnecessary and non-useful act. They believed, and had reason to believe, that its enactment was necessary for the public welfare and, that being its purpose, courts are not at liberty to substitute their views of what is just and expedient.

The Tenth amendment to the Constitution of the United States provides that the powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively or to the people. The power to preserve the public peace within the states, in the exercise of the police power, has not been delegated to the United States by the Constitution nor is it prohibited by the Constitution to the states. Hence, this law is constitutional and valid so far as these plaintiffs are concerned unless it unnecessarily and unreasonably deprives them of

*225

some right or privilege guaranteed to them by the federal or state constitution.

It is undisputed that peaceful picketing is a lawful means for the dissemination of information and, as such, is protected by the Federal Constitution which guarantees to all persons the freedom of speech and of the press and the right of peaceable assembly. These fundamental personal rights cannot, however, be exercised in utter disregard of the rights and safety of the public. While they cannot be prohibited absolutely or be unduly or arbitrarily restricted, they are subject to such reasonable restrictions by the states as are necessary to secure the public peace and welfare. The right of free speech would not justify a stranger to enter another person’s home without his consent in order to give expression to his views nor authorize an intruder, for the same purpose, to interrupt a church service. There are limitations, therefore, which the state may rightfully impose upon the exercise of such rights, both as to the place in which they may be exercised and as to the manner and method of their exercise, the only limitation being that the restriction shall be reasonable and not arbitrary and be necessary for the public welfare and safety.

As I read the cases of

Thornhill v. State of Alabama,

310 U. S. 88 , 84 L. ed. 1093, 60 S. Ct. 736 , and

Carlson v. California,

310 U. S. 106 , 84 L. ed. 1104, 60 S. Ct. 746 , and also the four leaflet cases, referred to in the majority opinion, all of which absolutely prohibit either picketing or what was held to be the exercise of the right of free speech, nothing is there said which is contrary to the views above expressed. If the Act in question here absolutely prohibits all picketing, whether peaceful or otherwise, this Act is, of course,,

*226

unconstitutional, but as I read tbe Act it does not have that effect. It was intended to limit the exercise of the right to places where picketing could be carried on without detriment to the public welfare, and, in defining such places, the Act makes no reference whatever to any public street, park or other public place.

Plaintiffs’ principal objection to this Act is based on sections 1 and 3 thereof, which read as follows:

“Section 1. Whenever in any statute or other law of this state the term ‘labor dispute’ is used, such term is hereby defined for all purposes to mean and include only an actual bona fide controversy in which the disputants stand in proximate relation of employer and the majority of his or its employees and which directly concerns matters directly pertaining to wages, hours or working conditions of the employees of the particular employer directly involved in such controversy. Disputes between organizations or groups of employees as to which shall act for the employees in dealing with the employer shall not be classed as labor disputes, and the refusal of an employer to deal with either party to any such jurisdictional controversy shall not operate to make the dispute a labor dispute within the meaning of this act.”

“Section 3. It shall be unlawful for any person, persons, association, or organization, to picket or patrol, or post pickets or patrols, in or near the premises or property owned, occupied, controlled or used by an employer or employers unless there is an actual bona fide existing labor dispute between said employer or employers and his or their employees. It shall also be unlawful to boycott directly or indirectly any employer, or the business of such employer, not directly involved as a party in a labor dispute.”

In construing these two sections, the trial judges said:

“We first consider the definition of ‘labor dispute’ and the purpose of defining it. It is sheer fallacy to argue that there can be no lawful labor dispute except

*227

as defined in the statute, or that ‘all other labor disputes for all purposes are outlawed’, or that Section 1 intended to make ‘malevolent’ every labor dispute not permitted by the definition contained in that section. Obviously the definition of a labor dispute is merely a draftsman’s device for shortening the phraseology of the Act. There is nothing in these sections which makes any type of controversy between employer and employee illegal, but certain affirmative conduct remains permissible in one type of controversy which is forbidden in all others. That type of controversy is defined as a labor dispute. If the type of controversy described as a labor dispute exists then, so far as this statute is concerned, the employees may picket near the premises of the employer. If it does not exist, they may not. The statute would have an identical meaning if the phrase ‘labor dispute’ were never employed. Combined, the two sections would read, and should be read,

“‘It shall be unlawful for any person * * * to picket * * * in or near the premises * * * owned by an employer * * * unless there is an actual bona fide controversy in which the disputants stand in proximate relation of employer and the majority of his or its employees and which directly concerns matters directly pertaining to wages, hours or working conditions of the employees of the particular employer directly involved in such controversy

The term “labor dispute”, as used in this statute, is a term adopted by the statute for the purpose of defining the conditions, on the one hand, under which picketing and boycotting will be permitted and, on the other hand, the conditions under which they will be prohibited. The Act thus limits the right to picket in or near the premises or property of the employer to a majority of his or its employees and denies that right to a less number or to any other person or persons whomsoever. It does not, however, deny to the minor

*228

ity or to labor generally tbe right to organize, to engage in collective bargaining, to call strikes or to engage in any activity of labor which might otherwise be permitted to take place in the absence of this statute!

Nor does the act in any manner or to any extent limit or restrict the right of a minority to picket at any place or places except “in or near the premises” of the employer. While the expression “in or near the premises” is somewhat vague and indefinite, it evidently means on the premises themselves or so close to the premises that persons going to and returning from work would be compelled to pass through picket lines. In all other places, the minority is not prohibited by this act from forming picket lines.

It is contended that this statute is unconstitutional because it limits the right of picketing “in or near the premises” of an employer to a majority of the employees of a particular employer and denies that right to a minority of such employees. It is a matter of common knowledge that union men refuse to pass through picket lines. If, in a case where a majority of the workmen are satisfied with their wages, hours and working conditions and two or three or any less number than a majority of the employees are permitted to picket the premises or the property of their employer, it would result in depriving the majority of the right to work. Moreover, in such case, the picketing and patrolling by a minority would almost inevitably lead to violence and breach of the peace. Hence, this provision is reasonable and not arbitrary. But, for a much stronger reason, this limitation upon the right of the minority is a valid exercise of the police power.

As stated, union men refuse to pass through picket lines and, where workers are compelled, in going to

*229

and returning from work, to pass through picket lines, it results in violence and breach of the peace. For that reason, it was within the legislative power of the state to prohibit the forming of picket lines so close to the premises of the employer that the workmen would be compelled to pass through such lines in going to and returning from their work and, since the state, in order to insure the public safety and welfare, may prohibit the forming of picket lines at a place or places where the forming of such lines would lead to violence and breach of the peace, it may, under its police power, prohibit the forming of picket lines at any such place or places, although it cannot absolutely prohibit picketing on a public street or in a park or other public place. This power of the state is recognized in

Thornhill v. Alabama,

supra, where the court said:

‘ ‘ * * * The power and the duty of the State to take adequate steps to preserve, the peace, and to protect the privacy, the lives, and the property of its residents cannot be doubted.”

From this it follows that since the state may prohibit the formation of picket lines at a place or places where violence and breach of the peace would result therefrom it may permit picketing at such a place by a majority and deny it to a minority without making the statute unconstitutional and without denying to the minority any constitutional right, upon the theory that there would be less liability to violence and breach of the peace where the picketing was done by the majority rather than by the minority. Whether, like other legislative Acts, the making of this distinction was wise was a legislative question, with the wisdom of which the courts are not concerned.

For the reasons stated, I am compelled to dissent.