The opinion
Beals, C. J.
(dissenting) — As stated in the majority opinion, we have before us for review by way of certiorari two temporary injunctions, one signed, October 22, 1945, by the superior court for Pierce county and the other, October 23, 1945, by the superior court for Grays Harbor county. The questions presented in the two cases being identical, they have been consolidated for hearing before this court.
The matters leading up to the issuance of the temporary injunctions are stated in the majority opinion.
Many cases have been cited by relators and respondents, and several decisions of the supreme court of the United States, and some of our decisions, are discussed in the opinion of the majority. That opinion holds that the cases discussed therein control the situation here presented and require that the orders before us for review be reversed. The supreme court of the United States, in the decisions cited, construed the first amendment to the Federal consti
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tution and held that, under the evidence in the cases before it, picketing was a lawful exercise of the right of freedom of speech. guaranteed to the people by that amendment, which also guarantees to the people the exercise of certain other fundamental rights.
The rights guaranteed by the first amendment to the constitution and by other provisions of the constitution itself and amendments thereto have very frequently been subjects of consideration by the supreme court of the United States and the supreme courts of all of the states of the Union, and have often been construed as not permitting on the part of citizens certain acts claimed to be unlawful, as free exercise of religion, freedom of the press, and the right to bear arms.
The controversies here presented concern disagreements between two labor organizations pursuing the common objective of attempting to secure an increase of wages from their respective employers, the two groups following different methods in endeavoring to attain the result desired. No employer is a party to either one of the proceedings before us. The members of the Congress of Industrial Organization have been for some time negotiating with their employers in an endeavor to obtain an increase of wages, acting through a regularly chosen bargaining agent and following the method prescribed by the national labor relations act, 29 U. S. C. A., § 151
et seq.
The American Federation of Labor, through some of its unions whose members are engaged in the same class of work as the members of the C. I. O. unions above referred to, has called strikes against those employers whose employees are members of the A. F. of L. unions.
In order to induce C. I. O. union members to also declare strikes against their employers, the A. F. of L. established picket lines in the vicinity of the plants operated by employers of C. I. O. members. Picket lines, of course, were established in the belief that the C. I. O. union workers would not pass through them. This was the picketing temporarily enjoined by the orders before us for review. '
Respondents contend that many of their C. I. O. union
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men would not pass through the picket lines and would be deprived of lawful employment. They also claim that their collective bargaining negotiations with their employers whereby their unions seek an increase of wages were interfered with by the picketing and cannot be carried on while the picket line exists, and that for this reason the attempt to adjust their controversy with their employers over wages by the method provided by Federal law is unlawfully interfered with and seriously prejudiced.
It seems to me that the questions here presented disclose a situation very different from that found in the cases cited by counsel for the respective parties to these proceedings, and that the authorities referred to are of little assistance in determining the application to these questions of the first and fourteenth amendments to the Federal constitution.
This controversy is between two labor organizations having the common objective of securing an increase of wages from the employers of their members, but, for the present at least, differing as to the method to be followed in attaining that objective. The A. F. of L., having no existing recognized wage agreement with the employers of its members, has called a strike. The C. I. O. has a wage agreement with the employers of its members which has never been repudiated by either party and is still in effect, and the members of this organization are now engaged in negotiating with their employers through their regularly chosen bargaining agency and are following the method prescribed by the national labor relations act above referred to.
The picket lines established by the A. F. of L. and maintained until enjoined pending the final result of the two proceedings, were established for the purpose of inducing C. I. O. union members to quit their work, which would necessarily retard or terminate the further progress of. the negotiations with their employers.
A series of recent decisions by the supreme court of the United States has laid down the general rule that peaceful picketing is a method employed for conveying information of the fact that the picketing organization and its members
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have some complaint against or dispute with others, and that, if the picketing be in fact peaceful, it falls within the classification of free discussion and dissemination of information and is an expression of its right of free speech and as such is protected by the first amendment to the Federal constitution against abridgment by the United States and made secure against interference by any state authority by the fourteenth amendment.
From some of the recent decisions by the supreme court of the United States, for example,
Thornhill v. Alabama,
310 U. S. 88 , 84 L. Ed. 1093 , 60 S. Ct. 736 ;
American Federation of Labor v. Swing,
312 U. S. 321 , 85 L. Ed. 855 , 61 S. Ct. 568 ; and
Bakery & Pastry Drivers & Helpers Local 802 v. Wohl,
315 U. S. 769 , 86 L. Ed. 1178 , 62 S. Ct. 816 , one might conclude from the broad language used that the supreme court has indicated that peaceful picketing as a method of the exercise of the right of free speech has scarcely any limitation, regardless of its effects on others, economically or otherwise.
However, in the recent case of
Carpenters Union v. Ritter’s Cafe,
315 U. S. 722 , 86 L. Ed. 1143 , 62 S. Ct. 807 , the supreme court of the United States affirmed a decree of the Texas court of civil appeals, which the supreme court of that state refused to review by a writ of error, enjoining the picketing of a cafe owned by one Ritter, who was also constructing a building a mile and a half from the cafe, his building contractor having chosen to employ nonunion labor. The supreme court had brought before it for review the decree of the Texas court for the purpose of considering the claim that the Texas decree “infringed the freedom of speech guaranteed by the Due Process Clause of the Fourteenth Amendment,” and held that the decree enjoining the picketing did not constitute a violation of the constitutional guaranty.
It appears, then, that the constitutional right of free speech does not, of itself, in all cases preclude a state court from enjoining the maintenance of a picket line.
It would seem that no absolute rule can be laid down
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whereby the permitted extent of, or limitations upon, peaceful picketing can in all cases be measured.
Several of the decisions of the supreme court of the United States contain expressions which, if taken from their setting and applied literally, may seem to answer a particular question one way or the other; but when these expressions are considered in connection with the entire language of the opinion and in the light of the facts of the case and the precise question before the court for determination, such expressions become less dogmatic, and the language of the different decisions may be reconciled one with the others.
It would seem that the supreme court, after holding that peaceful picketing is a method of “speech” as that word is used in the first and fourteenth amendments to the constitution, has recognized that the act of picketing has a double aspect, in that it disseminates information as to certain alleged facts relevant to a grievance or a dispute, and also that a “peaceful” picket line forms an artificial barrier which by custom is recognized by persons in sympathy with the view of those maintaining the picket line and often by others, with the result that persons to whom the information is so conveyed are likely to conduct themselves generally in accordance with the view of the pickets and those maintaining them.
It is well known that a picket line established by a labor union will generally restrain members of other unions from crossing the picket line, and that, if they do cross that line, they are likely to suffer certain economic and other disadvantages.
As speech by word of mouth or by the printed word has not been regarded as effective as a picket line, the latter activity has presented to legislative bodies and to the courts many complex problems in connection with the constitutional guaranty of free speech, and, on the other hand, guaranteed constitutional rights possessed by persons adversely affected by a picket line.
This necessarily leads to the conclusion that the right to exercise “free speech” by the establishment of a picket
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line cannot be absolute, and that, in each situation presented, a court must ascertain the facts of the case, the real purpose of the picketing, and the objective sought thereby, as well as its effects; and if one injuriously affected by the picketing can show that a picket line has been unlawfully established, such a party may obtain from the court an order enjoining the continued maintenance of the pickets.
Naturally, many questions presented to the courts for determination are difficult of solution, and in determining whether the maintenance of a picket line may be enjoined as based upon an unlawful purpose or objective, no rule of universal or even general application can be laid down. Each case must be governed by its particular facts.
The preamble to the national labor relations act, 29 U. S. C. A., § 151, reads in part as follows:
“It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining ...”
In the case at bar, the members of the C. I. O. unions are, and for some time have been, endeavoring to adjust their labor disputéis with their employers strictly in accord with the provisions of the national labor relations act. This act includes a provision requiring that an employer bargain collectively with his employees through the medium of a bargaining agency chosen by them. In the cases at bar, the C. I. O. employees had selected their bargaining agency, which had been certified by the national labor relations board as such, and the employers and the bargaining agency were negotiating in an attempt to effect a mutually satisfactory settlement of the question of wages to be paid to the employees.
This was the situation when relators demanded that the members of the C. I. O. unions declare a strike, and upon refusal of this demand, relators established the picket lines which were enjoined.
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It soon became evident that the effect of the picket lines would be to frustrate the efforts which had been and were being made by and on behalf of the C. I. O. unions to attain by collective bargaining the objective they sought, namely, an agreement between the parties concerning fixing wages. Examination of the record leads inevitably to the conclusion that the result of the picketing would be to defeat the possible accomplishment of the very end the attainment of which the act sought to foster and encourage, and indeed required should be attempted to be attained by “bargaining.”
I am of the opinion that the picketing was therefore unlawful and not justified as within the protection of the constitutional provisions guaranteeing the right of free speech.
In the case of
Bloedel Donovan Lbr. Mills v. International Woodworkers
of
America,
4 Wn. (2d) 62, 102 P. (2d) 270 , it appeared that a controversy had arisen between two labor organizations, each claiming to be the collective bargaining agent of the employees of the mill. A poll of the employees regularly taken had resulted in a choice of one of the two groups as the bargaining agent for the employees, and the result of the election had been certified by the national labor relations board and one group named as the duly chosen bargaining agency. After a working agreement had been entered into between this bargaining agency and the employer, the other labor organization, composed of the minority of the employees, established a picket line at the entrance to the plant, the picketing having been peaceful.
The employer then instituted the proceeding seeking an injunction against the picketing. After a hearing, the superior court granted a temporary injunction as demanded by the plaintiff, and on appeal from that order this court, sitting
En Banc,
affirmed the order.
It appeared that the purpose of the picketing was to interfere with or abrogate the agreement which had been made between the employer and the certified bargaining agency representing the majority group of the employees.
If the intent and purposes of the national labor relations
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act are to be accomplished, certainly, when an employer and his employees have collectively bargained in accordance with the act, it would be unlawful for another group of employees to picket the plant of the employer for the evident purpose of interfering with or nullifying that which had been accomplished by the collective bargaining, even though the picketing be peaceful.
It would seem that the only distinction between the case cited and the cases at bar is that, in the former case, the employer whose plant was picketed brought the action against persons who were members of a union representing a minority group of its employees. The real controversy out of which the action arose was one between two labor unions. The proceeding might just as well have been brought by the members of the union representing the majority of the employees, in which event it would seem that the situation would be almost identical with that here presented. The fact that the defendant was a union to which a minority group of the employees belonged would present a question no different in principle from a case in which some union representing employees of other plants had attempted to interfere by forming a picket line.
While the question of free speech as protected by the constitutional provisions above referred to was not referred to in our opinion, I am convinced that any claim that the picketing was protected by those constitutional guaranties would not have been considered as controlling, in view of the unlawful purpose and object of the picket line. It was just as unlawful for the relators here to establish their picket lines in order to cause a situation which would interfere with the pending collective bargaining proceeding oetween respondent unions and the employers, and possibly render those efforts abortive, as was the picket line the maintenance of which was enjoined in the
Bloedel Donovan
case. ■
In my opinion, the case cited is nowise in conflict with the decisions of the supreme court of the United States relied upon by relators, and should be followed and the orders appealed from affirmed.
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While it might well be argued that the orders should be affirmed as being merely temporary injunctions,
pen-dente lite,
I agree with the majority that the cases should be decided on the merits.
Jeffers, J., concurs with Beals, C. J.