# Mitcham v. Ark-La. Construction Co. > Supreme Court of Arkansas · December 20, 1965 · 239 Ark. 1162 URL: https://www.frixlaw.com/law-library/cases/9643532 ## Case - **Full name:** Mitcham v. Ark-La Construction Company - **Court:** Supreme Court of Arkansas - **Decided:** December 20, 1965 - **Citations:** 239 Ark. 1162; 397 S.W.2d 789; 61 L.R.R.M. (BNA) 2148; 1965 Ark. LEXIS 1166 - **Precedential status:** Published - **Opinion:** Dissent by Eobinson - **Judges:** Bernard Whetstone - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9643532 ## Opinion text Sam Eobinson, Associate Justice, (dissenting). The majority turns this case on the question of whether it is arguable that Ark-La is buying supplied shipped in interstate commerce exceeding $50,000 in value, or whether Ark-La and Mid-South, for purposes of the National Labor Eelations Act, are one and the same thing. I do not think this is the controlling point. It is my view that even if it were conceded that both of the foregoing propositions should be answered in the affirmative, still, according to the undisputed facts in this case, the state courts have jurisdiction to prohibit appellants from doing the thing the undisputed evidence shows they were doing, and that is they were picketing only for the purpose of preventing the appellees from employing nonunion labor. We have held that picketing for such purposes is unlawful and subject to injunction. Burgess v. Daniel Plumbing & Gas Co., 225 Ark. 792 , 285 S. W. 2d 517 . We said in Self v. Taylor, 217 Ark. 953 , 235 S. W. 2d 45 : “It is equally well settled that even peaceful picketing for an unlawful objective is not protected by the constitutional guarantee of the right of free speech. We recognized this in the Asimos case, supra, where we said at p. 702: ‘On the authority of these Federal cases the injunction in the case at bar could be sustained in some form, if the appellees had shown that the Union was picketing the Jefferson Coffee Shop in an effort to compel the execution of a “closed-shop” contract.’ See, also, Giboney v. Empire Storage & Ice Company, 336 U. S. 490 , 69 S. Ct. 684 , 93 L. Ed. 834 ; Union Local 262 v. Gazzam, 339 U. S. 532 , 70 S. Ct. 784 ; Union Local 309 v. Hanke, 339 U. S. 470 , 70 S. Ct. 773 ; Amalgamated Meat Cutters v. Green, 119 Colo. 92 , 200 Pac. 2d 924 ; Construction and General Labor Union v. Stephenson, (Tex.) 225 S. W. 2d 958 ; Local Union No. 519 v. Robertson, (Fla.) 44 So. 2d 899 .” The majority relies on San Diego Buildings Trades Council, etc. v. Garmon, 79 S. Ct. 773 , 359 U. S. 236 , 1 L. Ed. 2d 860 , but the facts in that case are entirely different from the facts in the case at bar, and the law-announced in Garmon is favorable to appellee here. The majority points out that here it is stipuated that Carpenters Local No. 1684, the defendant, did not represent any employee of Mid-South or Ark-La and that the evidence shows there was no protest made about low wages on the job by representatives of the defendant, and the only protest was the failure to use union labor exclusively; Ark-La was paying union scale to the people that worked on the job. Actually, the Garmon case relied on by the majority supports the appellee. In that case the court said: “When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield.” It is clear from the Garmon case that the state must yield jurisdiction in the first instance only where it is clear that the activities which the state purports to regulate are protected by Section 7 or constitute an unfair labor practice under Section 8 of the National Labor Relations Act. The majority has not pointed out where anything said in Sections 7 or 8 is applicable to the facts in the case at bar. The appellant was, at all times, acting within Amendment 34 to the Constitution of Arkansas, which provides: “No person shall be denied employment because of membership in or affiliation with or resignation from a labor union, or because of refusal to join or affiliate with a labor union; nor shall any corporation or individual or association of any kind enter into any contract, written or oral, to exclude from employment members of a labor union or persons who refuse to join a labor union, or because of resignation from a labor union; nor shall any person against his will be compelled to pay dues to any labor organization as a prerequisite to or condition of employment. ’ ’ This provision of our Constitution is valid under Section 14(b) of the Taft-Hartley Law, which provides: “Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.” The majority, in effect, says that before the courts of this State can enforce a valid provision'of its Constitution — a provision which has been recognized as valid by laws adopted by the Congress of the United States, we must first have the permission of the National Labor Relations Board. I do not subscribe to that view. Before the National Labor Relations Board makes a final determination of this matter, in all probability, months instead of 10 days will have elapsed. In the meantime a construction project will be closed down; many people will be thrown out of employment. This is a tragic result, especially when it is considered that there can be only one final result, and that is that the appellant has a right to enjoin the unlawful picketing.. For the reasons stated, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9643532. Public record. Not legal advice.