# McKay v. Retail Automobile Salesmen's Local Union No. 1067

> California Supreme Court · October 14, 1940 · 16 Cal. 2d 311

URL: https://www.frixlaw.com/law-library/cases/9595020

## Case

- **Full name:** JAMES F. McKAY Et Al., Appellants, v. RETAIL AUTOMOBILE SALESMEN’S LOCAL UNION No. 1067 Et Al., Respondents
- **Court:** California Supreme Court
- **Decided:** October 14, 1940
- **Citations:** 16 Cal. 2d 311; 106 P.2d 373; 7 L.R.R.M. (BNA) 702; 1940 Cal. LEXIS 313
- **Precedential status:** Published
- **Opinion:** Dissent by Curtis
- **Judges:** Edmonds, Moore, Curtis
- **Cited by:** 74 later opinions in the Frix Law Library

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## Opinion text

CURTIS, J., Dissenting.
I dissent.
This is an action by certain individuals, thirty-two in number, employed as salesmen by defendant Howard Automobile Company, to enjoin defendant Retail Automobile Salesmen’s Local Union, No. 1067, its members, and those acting on its behalf from picketing the place of business of the Howard Automobile Company and advertising the business as unfair to labor. A demurrer interposed by the defendants to the joint complaint filed by the plaintiffs was sustained with leave to amend by the trial court, and the temporary restraining order theretofore issued was dissolved and the application for a temporary injunction was denied. This appeal is taken from the order dissolving the temporary restraining order and denying the application for a temporary injunction.
As the case was decided upon the sustaining of a demurrer, by virtue of which fact the allegations of the complaint are necessarily accepted as true, a brief résumé of the complaint is necessary. The pertinent facts therein alleged are as follows :
(1) Plaintiffs are all salesmen of the Howard Automobile Company, a corporation engaged in the auto selling and repairing business in San Francisco and elsewhere and are all satisfied with the terms, pay, hours of work, conditions *336 of employment, and desire to continue therein, and the company is satisfied with the terms, pay, hours and conditions of employment and with plaintiffs ’■ services and desires to continue plaintiffs in its employ.
(2) In May of 1937, at San Francisco, plaintiffs then and there all of the salesmen of said company organized and designated three of their number a committee to negotiate rates of pay, wages, hours of labor and other conditions of employment with the company in accordance with the terms of the Wagner Act and said committee notified the company and the Regional Director of the Labor Relations Board of their choice of a bargaining representative and the company then and there recognized the committee as the bargaining agent for the entire sales force, to wit, all of the plaintiffs.
(3) No labor dispute of any kind, nor 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, existed between any of the plaintiffs and the company.
(4) None of the plaintiffs has been or now is engaged in any dispute with the company concerning wages, hours, conditions of labor or otherwise. None has been or now is on strike. There has been and now is no discussion or negotiations concerning terms of employment, hours of labor, wages or working conditions. None of the plaintiffs is a member of any of the defendant unions and none of them has any desire or has signified any desire or intention of becoming a member of any of the defendant unions. None of the plaintiffs has been or is now a party to any agreement with any of the defendant unions, or any other labor organziation, and none of the plaintiffs has ever requested any of the defendant unions to act or negotiate for any of the plaintiffs as a permanent agency or otherwise.
(5) All of the defendant unions have rules, regulations, by-laws and agreements enforceable by fines and penalties binding upon their respective members not to pass picket lines or to do business with plants and firms under picket, and said company employs members of all of said associations. The placing of a picket on the company’s plant will, pursuant to such by-laws, rules, regulations and agreements, *337 compel all of the members of each of the unions to abstain from visiting, delivering goods to, accepting goods from, or transacting business with or working for said company.
(6) The Retail Automobile Salesmen’s Local Union, No. 1067, has solicited plaintiffs to join the union, but plaintiffs have refused to do so and in consequence of plaintiffs’ refusal, the said union has placed a picket around the place of business of the company, the members thereof congregated there in numbers and announced their intention to maintain the picket until the company compels plaintiffs to join said union or discharge them.
(7) The continuance of the picket on the company’s plant .has closed it down, stopping all work and destroying its business and the company will, unless the defendant union is restrained, discharge all of plaintiffs or require them to join the union. None of the pickets is an employee of the defendant Howard Automobile Company. The Labor Council has approved the picket and has appointed a Board of Strategy to devise ways and means of exerting pressure and coercion on the company and plaintiffs to sign a contract with and join the union, and has placed the company on the “We don’t patronize” list.
At the outset, in order to prevent “irrelevant sparring with ghosts” as one of the attorneys herein aptly phrased it, it is essential that we state the issue exactly, definitely and clearly eliminate from consideration all extraneous matters, and avoid the pitfall of assuming to be facts certain assumptions which are wholly unwarranted. It should first be noted that plaintiffs salesmen employees are not unorganized, but are a group of organized employees who have selected three of their number to deal with their employer as their representatives to negotiate rates of pay, wages, hours of labor, and other conditions of employment with the company.
And for the purpose of presenting a precise picture of the situation, it should be pointed out that the unions of craft workers did not strike in order to compel the unionization of the entire Howard plant, but that their refusal to work was merely occasioned by the existence of the picket line which union rules forbade them, under severe penalties, to cross.
It is also to be borne in mind that none of the plaintiffs salesmen is a membei of the Retail Salesmen’s Local Union, *338 No. 1067, and that the defendant Retail Salesmen’s Local Union, No. 1067, is a total stranger seeking to compel the plaintiffs salesmen employees to join its organization and select it as its representative to negotiate with their employer.
It is also highly important to note that there is absolutely nothing in the pleadings to warrant any assumption that the present organization of the plaintiffs employees is what is called a “company union” or is dominated by the employer. Certainly the" allegation that the relations between employer and employees are harmonious and no dispute exists between them with reference to wages, salaries, or hours of employment does not afford any basis whatever for such an assumption. Much of the arguments seeking to justify the union’s action in this controversy is based upon the fundamental error of assuming that the present organization is a “company union”. As before stated, there is not one iota of reason for such an assumption, and any arguments based thereon are, of course, spurious.
It should also be stated that there are no allegations in the complaint charging the pickets with violence, physical coercion, or intimidation, and hence it must be taken for granted that such picketing has been peaceful.
The sole question involved in this case was phrased by the trial judge as follows: “Is it lawful for a labor union by peaceful picketing to attempt to induce an employer to employ only persons who are members of the picketing union when there is no strike and the employees of the picketed employer are satisfied with their employment and do not desire to join the union?” In one of respondents’ briefs, it is stated that the activities of the union are not directed toward the employer, and are not directed toward an effort to induce the employer to do anything, but are directed solely toward “inducing and persuading” the salesmen, who have refused to join the union, to join the union. However, facing facts squarely, the conclusion is inescapable that the activities in which the Retail Automobile Salesmen’s Local Union, No. 1067, are engaged are directed toward a coercion of the employer, Howard Automobile Company, to compel the members of its automobile sales force to join the Retail Automobile Salesmen’s Local Union, No. 1067. Any other statement of the purpose of such activities is merely an evasion of the *339 issue. The question may, therefore, be more correctly stated as follows: Is it lawful for a labor union to picket an employer’s place of business for the purpose of compelling the employer to coerce his employees to join the picketing union, when the employees are definitely opposed to joining said union, and there is no controversy between the employer and those employees ?
While sections 921 and 923 of the Labor Code remain on the statute books in California, the answer, in our opinion, must be in the negative. Section 921 of the Labor Code provides:
“Every promise made after August 21, 1933, between any employee or prospective employee and his employer, prospective employer or any other person is contrary to public policy if either party thereto promises any of the following:
“ (a) To join or to remain a member of a labor organization or to join or remain a member of an employer organization,
“(b) Not to join or not to remain a member of a labor organization or of an employer organization,
“(c) To withdraw from an employment relation in the event that he joins or remains a member of a labor organization or of an employer organization.
“Such promise shall not afford any basis for granting of legal or equitable relief by any court against a party to such promise, or against any other persons who advise, urge, or induce, without fraud or violence or threat thereof, either party thereto to act in disregard of such promise. ’ ’
Section 923 of the Labor Code furnished the rule of construction for the interpretation of section 921 and the other two sections which comprise this chapter of the Labor Code. Said section is as follows: “In the interpretation and application of this chapter, the public policy of this state is declared as follows:
“Negotiations of terms and conditions of labor should result from voluntary agreement between employer and employees. Governmental authority has permitted and encouraged employers to organize in the corporate and other forms of capital control. In dealing with such employers, the individual unorganized worker is helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment. Therefore it is necessary that the individual workman *340 have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Section 921 (a) of the Labor Code plainly declares a promise by an employee to an employer to join a labor organization or to remain a member of a labor organization to be contrary to public policy. This being so, a boycott or strike or picketing by a labor organization to coerce an employer into an agreement to procure such promise from present and prospective employees becomes an act for the furtherance of an illegal purpose, and therefore properly enjoinable.
Two major arguments are advanced in opposition to this conclusion. The first argument is as follows: Section 921 (a) does not refer t.o a legitimate bona fide trade union but only to the so-called “company union”. Therefore, the activity of the union herein being directed toward the securing from an employer of a promise from the employer to compel his employees to join the legitimate bona fide labor organization of respondent union does not come within the ban of said section and its activity in that regard cannot be curtailed. This argument is predicated upon the theory that said section is ambiguous and that by an examination of the labor struggle it becomes apparent that the purpose and intent of the legislature was directed solely to increasing the bargaining power of employees with their employers, and hence said section cannot possibly mean that closed shop agreements are unlawful. It is pointed out that for years the so-called “yellow-dog” contract was a source of conflict carried on with great bitterness by organized labor against certain employers. By such an agreement an employee might agree under coercion from his employer not to join a labor union, and such an agreement was held to be binding on the employees. (Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229 [38 Sup. Ot. 65, 62 L. Ed. 260 , Ann. Cas. 1918B, 461, L. R. A. 1918C, 497].) Later employers, being unable to secure such contracts because of the growth of the power of organized labor, sought the same result, domination of their *341 employees, by setting up and organizing “company unions” which they required their employees to join and over which they kept supervision and control. It is therefore argued that section 921 of the Labor Code was passed solely for the benefit of organized labor and was intended to eliminate both contracts on the part of the employees not to join an organized labor union and contracts to join a “company union”. In other words, it is argued that subsections (b) and (c) of this section are directed toward rendering the so-called “yellow-dog” contracts illegal and void, and subsection (a) is directed toward rendering illegal and void, promises secured by employers from their employees to affiliate with “company unions ’ ’.
We find ourselves unable to subscribe to this argument for three reasons: First: In our opinion the section is not ambiguous, but is plain and explicit and means what on its face it purports to mean. Therefore, no good reason exists for delving into the history of labor disputes in order to give an interpretation to a section contrary to the plain language employed therein. Second: The construction sought by respondents requires that the term, “labor organization” used in subsection (a) of section 921, be limited to and closely defined as “company union” to the exclusion of legitimate bona fide trade organizations, whereas the same term, “labor organization” used in subsection (b) of the section, is to be defined as the all-inclusive bona fide trade union. Obviously the legislature in using the phrase “labor organization,” in several portions of the same section of the code intended that it should have a uniform meaning. To hold the same term within the same section to mean two contrary things seems wholly unreasonable. Such an interpretation does such violence to the ordinary rules of construction as to preclude our acceptance of said argument. Third: The history of the California legislature during the years, 1937, in which the Labor Code was adopted, and in 1939, clearly shows that the legislature, by its action in turning down certain bills proposed by partisans of organized labor, refused to go the lengths claimed here. In 1937, four labor bills were introduced and defeated. In one of these bills, the terms, “labor organization” and “company union”, were separately defined. Undoubtedly the legislature had the distinction of these two types of organization in mind, and had it desired or intended *342 to limit the definition of subsection (a) of section 921 to “company unions”, it would have been very simple for it to have so specified. In 1939, four assembly bills and two senate bills were proposed, but did not pass. One of these bills attempted to repeal sections 921 and 923 of the Labor Code, and the other five attempted to add a proviso to the effect that nothing contained in said section 921 should be construed as preventing a “bona fide” labor organization from entering into a contract with an employer whereby the employer agreed to employ only members of the said labor organization and to discharge employees, employed after such contract became effective, who did not belong to the said labor organization. In April, 1939, the District Court of Appeal, First District, Division Two, filed its opinion interpreting sections 921 and 923 of the Labor Code as rendering unlawful and therefore enjoinable peaceful picketing directed toward the securing of a closed shop contract with the employer, Howard Automobile Company, covering its salesmen employees, and although the legislature did not adjourn until June, none of these bills which would have given to these code sections the effect claimed for them by the labor union was passed. This clearly demonstrates, we think, that the legislature was in accord with the interpretation given to these sections by the District Court of Appeal, and did not intend that the sections have the construction contended for by the respondent labor union. The fact that the bills were defeated, in our opinion, shows that the legislature definitely repudiated the idea of carrying out labor’s demands in their totality, and instead insisted upon declaring the public policy of the state to be freedom of interference for the individual employee from both employer and labor organization domination.
In brief, we are satisfied that said section 921 is not ambiguous, that it means what on its face it plainly purports to mean. The attorney for the labor union states in his brief that, “The whole subject of labor legislation must ultimately be dealt with by the legislature. Its failure to enact appropriate legislation at its last session is no reason now to place an impossible burden on the judiciary.” This concession that the legislature failed to pass “appropriate legislation” clearly indicated that organized labor is seeking to obtain an advantage, by judicial construction, which it failed to win in the legislative halls. No doubt when, and if, “appropriate legislation” is passed, this court will be ready to *343 interpret it to carry out the expressed intention of the legislature. It is, however, outside the scope of our duty and our power to interpret present legislation to carry out the purposes of some possible future legislation.
The second argument on which emphasis is placed by the respondents is that the Labor Code sections are directed solely against promises between an employee and his employer, whereas the union-shop contract is a promise by an employer to a union. Respondents assert that section 921 of the Labor Code prohibits contracts between an employer and an employee to join or to remain a member of the labor organization, but not a contract between an employer and a labor organization that all employees of the employer shall be or become a member of a labor organization. In other words, it is respondents’ position that it may be unlawful for an employer to coerce an individual employee to join or not to join a labor organization, but it is proper and permissible for the employer to coerce his employees collectively. We think such argument accepts the shadow for the substance. When an employer makes a contract with a union that he will keep no one in his employ except union members, it becomes an implied term and condition of the contract of employment of every individual employee working for him that said individual shall become and remain a member of the union. Such term and condition of employment become a promise of each employee within the prohibition of section 921 of the Labor Code, since section 920 of the Labor Code provides specifically that “promise” includes “promise, undertaking, contract, or agreement, whether written, oral, express or implied”.
We do not find any merit in the theory propounded that collective bargaining contracts are not between employees and the employer but are between a labor organization as a legal entity and the employer, and therefore the prohibitions of section 921 have no reference to such contracts. There can be no escape from the conclusion that the union, whether a legal entity or not, is an agent for the employees in the execution of the contract of employment and is, therefore, acting in behalf of and for the employees, and its contract is their contract.
Another argument is advanced by respondents that said contracts are not unlawful, but merely unenforceable in law and equity, and, therefore, any coercive attempts by a labor *344 union to compel such agreements are not illegal per se and cannot be enjoined. This argument fails to take into consideration the express words of the statute. The statute definitely and expressly provides that such a contract is " contrary to public policy”. This fact, in view of section 1667 of the Civil Code which declares contracts contrary to public policy to be' unlawful, can mean nothing else than that the contracts prescribed by section 921 of the Labor Code are unlawful, and no amount of ingenious argument can dispel the logic of this conclusion.
The conclusion that section 921 of the Labor Code prohibits the coercion of employees by union activity for the purpose of securing a closed shop is, we think, fortifie'd by the express provisions of section 923 of the Labor Code which declares the public policy of the state with reference to the interpretation and application of section 921. This section states that “it is necessary that the individual workman have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives, or in self-organization, or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” How is it possible in the same breath to reasonably say that an individual workman shall have full freedom of association, self-organization, and designation of representatives of his own choosing, and to say that it is legal and legitimate for any organization by destruction of an employer’s business to force the individual workman to join a particular group and assent to a particular representative despite the fact that such workman is bending every effort, even to the extent of appeal for aid to this court, to prevent such coercion? By what process of reasoning, can it be said that the individual workman “shall be free from the interference, restraint, or coercion of” his employer, in the designation of a representative, or in self-organization and at the same time that it is perfectly all right for an employer to compel his employees to join a particular union upon threat of discharge and loss of job? The fact that the employer in his turn has been coerced by the labor organization to take such action, does not make such action any the less onerous *345 to the individual workingman, nor widen his freedom of action in the matter. The idea of freedom for .the employee from interference in association and self-organization and the idea of coercion by the union through the employer to secure a closed shop are on their face opposite and antagonistic. One or the other must be dismissed. In view of the fact that the former idea, of freedom of the employee from interference, is embodied in an express statute of the state as an expression of the public policy of the state, and the other is merely a proposition argued by the respondents, there can be no doubt as to which should be given effect by this court.
We have no hesitancy in conceding that prior to the enactment of sections 921 and 923 of the Labor Code strikes, boycotts, both primary and secondary, and pickets were held to be legal in California, and courts refused to enjoin such union activities. (Parkinson Co. v. Building Trades Council, 354 Cal. 581 [ 98 Pac. 1027 , 16 Ann. Cas. 1165, 21 L. R. A. (N. S.) 550]; Pierce v. Stablemen’s Union, 156 Cal. 70 [ 103 Pac. 324 ] ; Southern California Iron & Steel v. Amalgamated Assn., 186 Cal. 604 [ 200 Pac. 1 ]; Lisse v. Local Union, 2 Cal. (2d) 312 [41 Pac. (2d) 314]; In re Lyons, 27 Cal. App. (2d) 182 [ 80 Pac. (2d) 745 ].) It will also be conceded that in the case of Parkinson Co. v. Building Trades Council, supra, it was held that union men were within their rights in refusing to work for an employer who refused to sign an agreement, one of the terms of which was that said employer would only employ union men. However, at the time of that decision both an agreement not to join or not to remain a member of a labor organization (so-called “yellow-dog contract”) and a promise to employ only union labor or remain a member of a labor organization (the closed union shop agreement) were legal. This situation has been reversed by the express terms of sections 921 and 923 of the Labor Code, and since the enactment of these sections, these decisions are no longer controlling.
It may also be conceded that certain decisions of the United States Supreme Court, both in interpreting federal legislation with reference to labor problems and state statutes based on such federal legislation, have given official sanction to picketing for the unionization of a nonunion shop. (Senn v. Tile Layers Protective Union, 301 U. S. 468 [57 Sup. Ct. 857, 81 L. Ed. 1229 ]; Lauf v. E. G. Shinner & Co., 303 U. S. *346 323 [58 Sup. Ct. 578, 82 L. Ed. 872 ].) These eases have been cited as persuasive in their reasoning of the interpretation to be given to sections 921 and 923 of the California Labor Code. In order to understand the inapplicability of such authorities, certain underlying facts with reference to the similarity and dissimilarity of the California Labor Code with federal legislation, such as the National Labor Relations Act, 29 U. S. C. A., see. 151 et seq.; 49 Stats. 449, and the Norris-La Guardia Act, 29 U. S. C. A., sec. 101 et seq.; 47 Stats. 70, and other state statutes, such as the Wisconsin Labor Code and the Oregon Act, should be outlined. A mere statement of the dissimilarity will suffice to show why the federal cases, cited by respondents in support of their contention that peaceful picketing for the purpose of the unionization of a plant and the securing of a closed shop is legitimate union activity, are not only not controlling in this jurisdiction but can have no persuasive effect by virtue of their reasoning. The major fundamental difference is that the California legislature definitely and deliberately rejected labor bills patterned on the Norris-La Guardia Act. The main feature of the Norris-La Guardia Act is the fact that it defines “labor dispute” to involve practically any dispute in the labor field regardless of whether or not the disputants stand in the relation of employer and employee, and forbids (except under certain limited conditions) the issuance of an injunction by a federal court in any case involving or growing out of a labor dispute. Clearly a dispute by an employer with an outside union over the unionization of his shop comes within such definition of “labor dispute”. Hence in interpreting said act, or state acts which were practically identical, the United States Supreme Court was justified in holding that an injunction could not be issued in a controversy involving an employer and a labor union over the question of a closed shop. (Senn v. Tile Layers Union, supra; Lauf v. E. G. Shinner & Co., supra.) Both of these cases involved the interpretation by the State Supreme Court of Wisconsin of a statute similar to the Norris-La Guardia Act, which defined a “labor dispute” as “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 *347 the respective interests of employer and employee, regardless of whether or not the disputants stand in the proximate relation of employer and employee”. In both these cases the United States Supreme Court held that it was bound by the decision of the Supreme Court of the State of Wisconsin in its decision that the facts presented a controversy within the definition of “labor dispute” contained in the Wisconsin Act. Both the Norris-La Guardia Act and the Wisconsin Act contain a statement of public policy very similar to the declaration of public policy contained in section 923 of the Labor Code of California, to the effect that it is necessary that the individual worker “have full freedom of association, self-organization, and designation of representatives of his own choosing to negotiate the terms and conditions of his employment, and that he shall be free from interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives, or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”. In the ease of Lauf v. E. G. Shinner & Co., 82 Fed. (2d) 68, the Circuit Court of Appeals, Seventh Circuit, having in mind the expressed public policy of the Wisconsin Act, gave precedence to such policy, and held that inasmuch as the union activity therein involved interfered with the individual workingman’s freedom of association, self-organization and designation of representatives of his own choosing, such activity was unlawful and was properly enjoinable. Upon appeal to the Supreme Court of the United States, that court held that the general declaration of public policy could not narrow the definition of “labor dispute” as defined in the Norris-La Guardia Act or enlarge the federal jurisdiction to issue an injunction in cases prohibited by such act. In other words, the United States Supreme Court, merely by saying so, gave precedence to the express provisions of the Norris-La Guardia Act defining “labor dispute” over the provision setting forth generally the public policy of said act, and held that a ‘' labor dispute” being involved in the controversy an injunction by a federal court was not proper. Thus it is seen that the broad definition of “labor dispute” has colored and controlled the decisions of the United States Supreme Court which hold that an injunction may not be sought and secured in a federal court to enjoin union activities directed against *348 an employer having as its purpose the securing of a closed shop.
California, by refusing to enact in its own legislation the definition of “labor dispute” which defines such dispute to include any and every possible controversy in which a labor question can be conceived, must be held to have rejected such definition and refused to sanction the taking away from our courts of power to issue injunctions in any and all disputes in which a labor question so broadly defined is involved, thus affirming the existing law in which “labor dispute” was defined as a controversy in which the disputants stood in the relation of employer and employee.
Therefore, while it may readily be conceded that certain decisions of the United States Supreme Court have given official sanction to picketing for the unionization of a closed shop under the broad definition of “labor dispute” as defined in the Norris-La Guardia Act, and kindred state statutes, it is readily apparent that such decisions, in the absence of such a definition in the California Labor Code (which was expressly rejected by the California legislature), can have no weight in determining what effect this court should give to sections 921 and 923 of the California Labor Code. Moreover it is worthy of note that in 1939 both Wisconsin and Oregon reversed their position and redefined “labor dispute” in much narrower terms. (Wisconsin, Laws of 1939, chap. 25; Oregon, Laws of 1939, chap. 2.)
Likewise we have no hesitancy in admitting that the principle that a closed union shop is a proper object of concerted action by unions has been recognized in some other jurisdictions. It should also be pointed out, however, that other states have rejected this principle and in well expressed opinions have given their reasons for this rejection. (See Safeway Stores v. Clerks’ Retail Union, 184 Wash. 322 [ 51 Pac. (2d) 372 ]; Swing v. American Federation of Labor, 372 Ill. 91 [22 N. E. (2d) 857]; Fornili v. Auto Mechanics Union, 200 Wash. 283 [ 93 Pac. (2d) 422 ]; Roth v. Local Union , (Ind.) 24 N. E. (2d) 280; Meadowmoore Dairies, Inc., v. Milk Wagon Drivers Union, 371 Ill. 377 [21 N. E. (2d) 308] ; Stalban v. Friedman, 171 Misc. 106 [11 N. Y. Supp. (2d) 343] ; Hotel, Restaurant and Soda Fountain Employees Local Union No. 181 v. Miller, 272 Ky. 466 [ 114 S. W. (2d) 501 ].) In the case of Hotel, Restaurant and Soda Fountain Employees Local Union No. 181 v. Miller, supra, the employer Miller sought and secured an *349 injunction against the picketing activities of a union, affiliated with the American Federation of Labor, which was attempting by such activities to secure a closed shop agreement from him, after his employees had refused to join the union. The language employed therein is, we think, pertinent to the instant case: “Labor has become highly organized with central federated unions and active locals of great influence and power. Such is the appellant. But to say that in the matter of bargaining with employers for the advancement of the causes of labor these organizations are to be given exclusive recognition by the courts, it seems to us, would destroy the independence of any group of workers who may desire to choose for themselves whom they will have as their agents to treat with their employer, and violate their liberty of action in contracting with their employer. This right of self-organization for the purposes of securing redress of grievance's and the protection from economic abuse and other impositions is recognized by contemporary legislation and judicial decree. It is current history that the Railway Labor Act of 1926, c. 347, 44 Stat. 577 , with the amendment of 1934, e. 691, 48 Stat. 1185 , 45 U. S. C. A., sections’ 151-163, and the National Labor Relations Act of 1935, commonly called the Wagner Act, 49 Stat. 449 , e. 372, 29 U. S. G. A. sec. 151 et seq., were enacted by Congress at the instance and for the benefit of organized labor. Those laws, obviously, have no relation or application to the ease at bar. But they and the opinions of the Supreme Court affirming their constitutionality and interpreting their provisions may be regarded as an authoritative expression of modern economic philosophy. The Wagner Act itself declared it to be the policy of the United States to encourage the practice and procedure of collective bargaining and to protect ‘the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection’. Section 1, 29 U. S. C. A. section 151.
“As stated in National Labor Relations Board v. Jones & Laughlin Steel Corporation ( 301 U. S. 1 [57 Sup. Ct. 615, 81 L. Ed. 893 , 108 A. L. R. 1352]), supra, the Wagner Act, 29 U. S. C. A., sec. 151 et seq., imposes the duty upon an employer coming within its reach to confer and negotiate with *350 such authorized representatives of his employees for the purpose of settling a labor dispute. Though there is no law making negotiations by the appellee Miller with any group obligatory, or imposing a duty upon him to deal with either the appellants or the independent organization, he has chosen to deal and to agree with the latter, and all parties are satisfied. By what right can it be said that a rival organization— even though extensive in its reach and strong in its operation —should be given sole recognition by the employer or by the courts to speak for and to bind those who do not belong to it and do not wish to belong to it?”
Finally it is urged that if sections 921 and 923, as interpreted, prohibit closed shop contracts, they are unconstitutional. The first ground suggested is that they are unconstitutional as a deprivation of freedom of contract. There is little, if any, merit in this contention. It is well recognized that the freedom of contract does not guarantee to a citizen the right to contract without abridgement or interference by any legislative authority. Such right is subject to control and regulation under the police power by means of legislation reasonably adapted to the protection of the public health, safety, morals and general welfare. (West Coast Hotel Co. v. Parrish, 300 U. S. 379 [57 Sup. Ct. 578, 81 L. Ed. 703 , 108 A. L. R. 1330], wherein the United States Supreme Court upheld the statute of Washington establishing a minimum wage law for women.) That case quoted with approval the following statement of this rule: “It was recognized in the cases cited . . . that freedom of contract is a qualified and not an absolute right. There is no absolute freedom to do as one wills or to contract as one chooses. The guaranty of liberty does not withdraw from legislative supervision that wide department of activity which consists of the making of contracts, or deny to government the power to provide restrictive safeguards. Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community. (Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549, 567 [31 Sup. Ct. 259, 55 L. Ed. 328 ].)” Much of the legislation proposed and promoted by organized labor such as the Norris-La Guardia Act and the National Labor Relations Act could be equally well challenged on this ground.
*351 To the argument that this legislation is discriminatory in that legislation in other fields of industrial enterprise, such as contracts for the exclusive handling and sale of certain products are not frowned upon, it may be said that there is clearly a difference between exclusive sale contracts for the sale of Buick automobiles, for instance, and a contract for the exclusive employment of union men, even though both contracts be secured by economic competition. In the former case, the subject-matter of the contract is inanimate and possesses no rights which need be given consideration. There are in reality only two parties to the contract. In the latter case, in a contract between an employer and a labor union with reference to employment conditions, there is the third party, the employee, who has definite rights which must not be ignored. It is the rights of these employees which furnish the justification for the legislation.
Equally without merit is the contention that this legislation deprives the unions of their constitutional right to strike. The proposition that an individual, in the absence of a contract, can work or refuse to work as he sees fit must be distinguished from the right of the union to call a strike or the right of individuals, collectively or by agreement to refuse to work. The right to strike is not absolute for if the strike is for an unlawful purpose that strike itself is unlawful (Dorchy v. Kansas, 272 U. S. 306 [47 Sup. Ct. 86, 71 L. Ed. 248 ]). Moreover in the instant case the appellants are not seeking an injunction against a strike as it is one of their contentions that a strike is not in existence at the plant and that the other workers at the Howard plant have not gone on a strike but have simply refused to pass the picket line which was established by the respondent labor union. In one of their briefs, appellants expressly disclaim any desire to secure an injunction against a strike.
Neither can we subscribe to the argument that the construction which we have put upon sections 921 and 923 of the Labor Code deprives the union of the' right of free speech. This contention rests upon the proposition that picketing in and of itself is but the right of free speech and that the right to picket is no more than an exercise of free speech. However, as pointed out in an article by Charles 0. Gregory, professor of law, University of Chicago Law School, which was published in the American Bar Association Journal, volume 26, *352 page 709 (September, 1940), a fundamental fallacy exists in the denomination of peaceful picketing as an expression of free speech and identification of peaceful picketing with business advertising. In said article it is stated that freedom of speech historically deals with the unrestricted dissemination and communication of ideas, chiefly concerning political and economic issues and that “our system of government is committed to the faith that the good sense of our populace is the best defense against the effusions of crackpots or against the more rigorous claims and propaganda of disciples representing undesirable political or social folkways”. It is pointed out that in the United States labor organizations have always been allowed to talk, no effort ever having been made to prevent them from discussing their programs as freely as they choose. The article then points out that peaceful picketing resting as it does, not on the dissemination of ideas but on its coercive effect, is not entitled to the constitutional protection and for the sake of the welfare of our country private group pressure should not be removed from the sphere of legislative regulation. The thought that peaceful picketing may not correctly be deemed to be merely an expression of free speech is well stated in the following quotation from said well-reasoned article:
“The claim that such coercive union practices are justifiable as constitutional freedom of speech and are merely the exercise of ordinary civil rights available to all is a perversion of an American ideal which betrays an odd understanding of one of this country’s most precious heritages. . . . Now if freedom of speech is to prove a valuable social asset, it will be because unrestricted expression educates and convinces others intellectually. It is submitted that peaceful picketing is not an argument intended to achieve an intellectual conquest. It is a type of coercion. The only intellectual conviction to which it leads is the understanding that if the picketed enterprise does not give in, or if patrons or applicants for jobs do not cease dealing with him, they will all eventually wish they had.
“True liberals in this country no longer look askance at economic compulsion. But to call such coercion constitutionally guaranteed freedom of speech, thereby placing it beyond the reach of regulatory legislation deemed practicable by the majority seems ridiculous policy and sheer misunderstanding of the concept under discussion. Let the unions *353 employ all manner of persuasions (as contrasted to coercion) and call that freedom of speech. But when they insist upon ‘expressing' themselves where everyone knows that their ‘arguments’ win, not because of any intellectual worth but chiefly because of annoyance and fear, they strain the concept beyond all sensible meaning. . . .
“Unless we wish to live in a society where all enterprise and all social activity, however private, is subjected to the coercive influence of annoyance and fear created by some conflicting group interest or prejudice, we had best save for our legislature the means of effective regulation of private group pressures which the founding fathers no doubt intended to include in the Constitution.”
In the instant case by reason of the fact that no member of a union affiliated with the American Federation of Labor will go through a picket line thrown about his place of employment by another union also affiliated with the American Federation of Labor, the picketing has resulted in a complete shutdown of the employer’s place of business. When picketing has this coercive effect, it is clearly not merely an expression of free speech and cannot correctly base its claim to a right to so picket upon the constitutional guarantee of free speech.
Throughout the discussion of respondents is the underlying thesis that its actions in this particular have been motivated by the desire to further the best interests of workingmen in general and to promote a higher social order, and in this regard it insists that its actions are justified in the instant ease upon the ground that a closed shop is an important means of maintaining the combined bargaining power of the workers. Assuming that closed shops are for the best interests of workingmen in their negotiations with their employers, as their bargaining power is greater, nevertheless, it would appear that there are certain fundamental rights, important to workingmen as individuals, which are so important as to outweigh any advantage of a closed shop procured by coercive activities. One of these rights is the right of an individual to ally himself with a group of his own seeking, and to select a representative for negotiations with his employer in whom he has faith and confidence. To have forced upon him membership in an association to which he is antagonistic, and to have imposed upon him as a representative, an agency which he does not desire, is so violative of his *354 freedom of action and his liberty as an individual as to need no apology for the defense of these rights, and to justify the enactment by the legislature of a statute intended to preserve these rights to him. We cannot but believe that the rights of an individual as a citizen, are as highly important to him as his rights as a member of a social class, and should be as carefully preserved.
Nothing herein said can or should be construed as antagonistic to the principle of collective bargaining which has come to play an important part in our industrial life. However, we are convinced that the growth of the labor union has been based upon the principle of voluntary association of workers and not upon the domination of one group of workers over another group by coercion, and that insistence upon such voluntary association will in the long run work to the benefit rather than the detriment of organized labor.
Moreover, we can see no escape from the industrial war with its resulting injury to business and to individual workingmen between two or more warring factions of organized labor, as for instance, unions affiiliated with the American Federation of Labor and the Congress of Industrial Organization unless the individual worker be permitted to choose the particular group with which he wishes to affiliate, and that his right to do so be protected and upheld. (Crosby v. Rath, 136 Ohio St. 352 [25 N. B. (2d) 934].)
In addition to the foregoing discussion with reference to the effect of the law of this state as laid down in the Labor Code, it may also be said that this same regulation provided by the federal government in the National Labor Relations Act (49 Stats. 449) should apply in behalf of the union of which the plaintiffs are members. It appears from the allegations of the complaint, and cannot be disputed, that the plaintiff employees are under the jurisdiction of the National Labor Relations Board. The Howard Automobile Company as their employer is engaged in interstate commerce and is likewise subject to the operation of the federal act. Under that act such an employer is forbidden to interfere in any way with the union affiliations of his employees. The employer, in this case, the Howard Automobile Company, is proscribed by the federal act from even suggesting to its employees, the plaintiffs herein, that they join or do not join a union. Yet if the judgment in this case is to stand, that company must submit to activities on the part of the de *355 fendant unions, the result of which is to compel it to require its employees to join the picketing union or be discharged from their employment. If the company refuses to accede to the demand of the picketing union to violate the federal law it must suffer the loss of its business. If the company violates that law, as demanded by the picketing union, it is punishable thereunder. Such a result is not only contrary to the letter and spirit of the statutory law, but is also contrary to the ‘' cherished judicial tradition embodying the basic concepts of fair play”. (Morgan v. United States, 304 U. S. 1, 22 [58 Sup. Ct. 773, 778, 999, 82 L. Ed. 1129 ].) Such an interpretation placed on the law makes of it a weapon of coercion and intimidation to be wielded at the whim and caprice of a group not possessed of legislative authority and not subject to any legal control or restraint.
Furthermore, the plaintiff employees have the right of self-organization guaranteed to them by the federal act. (National Labor Relations Bd. v. Swank Products, 108 Fed. (2d) 872, 874; National Labor Relations Bd. v. Sterling Electric Motors, 109 Fed. (2d) 194.) Section 1 of that act was designed to protect “the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection”. As before stated, there is nothing in the record herein to indicate that the plaintiffs’ union was not organized in good faith. There is nothing whatsoever in the record upon which to base such a conclusion. The right of the plaintiff employees to organize their own union and to select their own bargaining representatives is recognized, by both state and federal law.
The picketing which the plaintiff employees are here seeking to enjoin is contrary to their rights under both laws, is therefore picketing for an unlawful purpose, and as such should be subject to the injunctive processes of the courts of this state.
It is apparent that the trial court erred in sustaining the demurrer to the complaint and in dissolving the temporary restraining order.
The judgment should be reversed.
Shenk, J., concurred.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9595020. Public record. Not legal advice.