The opinion
CHIEF JUSTICE CALVERT,
dissenting.
Further consideration of this matter has convinced me that relator should be discharged. Being thus convinced', I must dissent.
One may not be punished for contempt for violating a void court order, and a temporary injunction granted by a court having no jurisdiction of the subject matter is void. Ex Parte Twedell, 158 Texas 214 , 309 S.W. 2d 834 ; Ex Parte Dilley, 160 Texas 522 , 334 S.W. 2d 425 .
There is in the record ample evidence, to support the trial court’s finding that a primary purpose of the picketing of the refinery at Texas City by NMU members was to induce OCAW members to breach their contract with their employer, and the finding is not questioned by Relator. The picketing was, therefore, in direct violation of Sec. 4 of Article 5154d, V.A.T.C.S., and of the public policy of this state as declared by that statute. It is my considered judgment, however, that the District Court was without jurisdiction to enjoin the picketing, however unlawful under state statute its primary purpose may have been.
It is now too well settled to admit of serious question, or to require citation of decided cases, that exclusive primary jurisdiction of labor-management controversies involving activities protected by Section 7 or prohibited by Section 8 of the Labor Management Relations Act, Title 29, Secs. 157, 158, U.S.C.A., is pre-empted to and vested in the National Labor Relations Board. The pre-emption extends not only to controversies involving those activities which are expressly or clearly protected or prohibited, but as well to controversies involving those which arguably may be protected or prohibited. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 , 79 S.Ct. 773 , 3 L. Ed. 2d 775 .
*120 The majority here, using language from Grunwald-Marx, Inc. v. Los Angeles Joint Board, Amalgamated Clothing Workers of America, 52 Cal. 2d 568 , 343 P. 2d 23 , which in turn quotes from San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 , 79 S.Ct. 773 , 3 L. Ed. 2d 775 , conclude that jurisdiction to control the concerted activity by NMU is not preempted because the matter at issue is a merely peripheral concern of the Labor Management Relations Act. I can find no sound basis for that conclusion.
The statement of the Supreme Court of the United States that jurisdiction is not pre-empted in matters of merely peripheral concern of the LMRA must be interpreted in the factual context in which it was made. It was not intended as an escape phrase for ceding to state courts jurisdiction to control peaceful picketing. The statement was made in referring to International Assoc. of Machinists v. Gonzales, 356 U.S. 617 , 78 S.Ct. 923 , 2 L. Ed. 2d 1018 , in which it was held that jurisdiction of state courts to award damages to a member against his union for wrongful expulsion had not been pre-empted. It was pointed out in the opinion in Gonzales that “the protection of union members in their rights as members from arbitrary conduct by unions and union officers has not been undertaken by federal law, and indeed the assertion of any such power has been expressly denied”; that “The National Labor Relations Board could not have given respondent the relief that California gave him according to its local law of contracts and damages,” and that the possibility of conflict with remedies afforded under the LMRA was “remote”. The predicate for denying pre-emption in Gonzales does not exist in this case. Far from being of merely peripheral concern, regulation of strikes and picketing is the very heart of the Labor Management Relations Act.
There is far more to the second Garmon decision than reference in the opinion of the majority to matters of “peripheral concern”. Not a single Justice of the Supreme Court dissented from the conclusion that the courts of California had no jurisdiction to adjudicate the issues raised in the case. The Court divided five to four on the proper basis for the conclusion. Mr. Justice Frankfurter wrote the opinion for the Court and Mr. Justice Harlan wrote the opinion for the concurrers. Because the division in the Court is so precarious, it may be well to consider the issue in this case in the light of both opinions. 1
*121 The controlling part of the Frankfurter opinion, as relevant to a decision of the issue of jurisdiction in this case, is found in the following language ( 359 U.S. 244 -246, 3 L. Ed. 2d 783 -784) :
“At times it has not been clear whether the particular activity regulated by the States was governed by Sec. 7 or Sec. 8 or was, perhaps, outside both these sections. But courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board. What is outside the scope of this Court’s authority cannot remain within a State’s power and state jurisdiction too must yield to the exclusive primary competence of the Board, [cases cited] * * *.
“To require the States to yield to the primary jurisdiction of the National Board does not insure Board adjudication of the status of a disputed activity. If the Board decides, subject to appropriate federal judicial review, that conduct is protected by Sec. 7, or prohibited by Sec. 8, then the matter is at an end, and the States are ousted of all jurisdiction. Or, the Board may decide that an activity is neither protected nor prohibited, and thereby raise the question whether such activity may be regulated by the States. * * * In the absence of the Board’s clear determination that an activity is neither protected nor prohibited or of compelling precedent applied to essentially undisputed facts, it is not for this Court to decide %ohether such activities are subject to state jurisdiction. * * *”
The injunction put upon us by that clear and unmistakable language is to yield to the N.L.R.B. primary jurisdiction to decide whether a particular labor-management activity is protected or prohibited by the LMRA unless it has already been decided by “compelling precedent” that it is neither. As I read the Court’s language, in the absence of “compelling precedent” that a particular activity is neither prohibited nor protected, primary jurisdiction to decide whether it is one or the other, or neither, rests with the N.L.R.B. We are not told what is regarded as “compelling precedent”. To me it means a decision by the Supreme Court of the United States or such a series of unreversed or unchallenged decisions by the N.L.R.B. of the identical question that the decisions are accepted as foreclosing the question. Assuming that is a close approximation of what the Court means by “compelling precedent”, it would perhaps suffice as a dissent to observe at this point that the N.L.R.B. was not afforded an opportunity to decide whether the activity enjoined by the trial court is prohibited or protected *122 by the LMRA, or neither, and there is no compelling precedent establishing that it is neither. That, or its equivalent, is, in my judgment, about all the Supreme Court of the United States would say if this case were before it for decision. However, since The American Oil Company strenuously challenges the correctness of that conclusion, I am inclined to do more than state it as an ipse dixit.
The only prohibitory provisions of the LMRA which seem in the least applicable are Section 8 (b) (1) (A) which makes it an unfair labor practice for a labor organization or its agents to coerce employees in the exercise of the right given them by Section 7 to refrain from engaging in “concerted activities for the purpose of collective bargaining or other mutual aid or protection”, and Section 8 (b) (4) (i) (B) which makes secondary picketing an unfair labor practice.
The trial court found, that “a natural and probable consequence” of the picketing, if continued, would have been a breach by substantial numbers of OCAW members of their contract. It might seem that an activity which would have such coercive effect on the minds of men as to cause them to breach a contract and thereby become subject to discharge, N.L.R.B. v. Rockaway News Supply Co., 345 U.S. 71 , 73 S.Ct. 519 , 97 L. Ed. 832 , would fall within the prohibition of Sec. 8(b) (1) (A), but the Supreme Court of the United States has held, in a slightly different factual context, that peaceful picketing is not coercive within the meaning of that Section. National Labor Relations Board v. Drivers, Chauffeurs, Helpers, Local Union No. 639, etc., 362 U.S. 274 , 80 S.Ct. 706 , 4 L. Ed. 2d 710 . There is a compelling precedent, therefore, for holding that the picketing is not prohibited by Section 8(b) (1) (A).
Whether it is prohibited by Section 8(b) (4) (i) (B) is not quite so free of doubt. While here, again, the picketing seems to be within the literal wording of the definition of the unfair labor practice 2 if we regard the companies as separate legal entities, *123 it is generally held that the prohibition is directed at secondary activity and is designed for the protection of neutrals. The finding of the trial court negatives the status of The American Oil Company as a neutral. The finding is: “The American Oil Company is a wholly owned subsidiary of American Oil Company, a Maryland Corporation, and said American Oil Company, a Maryland Corporation, directs and controls all of the activities of said The American Oil Company and its Texas City, Texas, Refinery.” The finding is unchallenged and undisputed.
In the only factually similar case my research has disclosed, the United States Court of Appeals for the 7th Circuit held that picketing of a wholly-owned subsidiary was not prohibited by Section 8(b) (4) (A), the applicable provision before amendment of the Act in 1959. See Milwaukee Plywood Company v. N.L.R.B., 285 F. 2d 325 . The same conclusion was reached by the United States District Court for the Eastern District of Wisconsin in the same controversy. See Madden v. Warehouse and Mail Order Employees Union, International Brotherhood of Teamsters, etc., 36 Labor Cases 65,708. The opinions disclose that the NLRB thought the activity was not prohibited. In that case there was evidence of control by Aetna of practically all operational details of Milwaukee’s business, including control of its policy in dealing with the picketing. In somewhat analogous fact situations where evidence of control was not so conclusive, Courts of Appeals have reached a different conclusion from that reached in Aetna-Milwaukee. In Bachman Machine Company v. N.L.R.B., 8th Circuit, 266 F. 2d 599 , the Court, with one judge dissenting, held that a union representing the employees of a family-owned corporation committed an unfair labor practice in violation of Section 8 (b) (4) (A) when it picketed the separate place of business of another corporation whose stock was wholly owned by the same family and whose employees were represented by a different union. There was considerable evidence of common control, but the Court concluded that the “evidence fell short of establishing that both companies were under such actual common management or control as to make them allies and a single employer for the purposes of Section 8 (b) (4) (A) of the Act.” To the same effect, see J. G. Roy & Sons Company v. N.L.R.B., 1st Circuit, 251 F. 2d 771 . As holding that picketing of a separate employer who is an “ally” of the primary employer does not violate Section 8 (b) (4) (i) (B), see N.L.R.B. v. Business Machine, etc., 2nd Circuit, 228 F. 2d 553 . The cases on the subject would seem to lead to a fairly firm conclusion that picketing by a union representing employees of one corporation of the premises of a second corporation is not a violation of Section 8 (b) (4) (i) (B) *124 if the businesses of the two corporations represent a “straight-line” operation or if the activities of the two corporations are under common ownership and actual common control. Irwin-Lyons Lumber Co., 87 N.L.R.B. 54 .
In this case the trial court found, and it is uncontroverted, that The American Oil Company is a wholly-owned subsidiary of American Oil Company and that all of its activities, presumably including labor activities, were directed and controlled by the parent corporation. Based on the cases noted, I am inclined to the opinion that picketing of The American Oil Company refinery by NMU was not prohibited by Section 8 (b) (4) (i) (B), but I have found no compelling precedent to that effect. The question remains as to whether there is any compelling precedent for holding that the picketing is not protected by Section 7 which guarantees to employees and their union the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
It is to be remembered that the picketing was entirely peaceful. There was no violence or mass picketing, no name-calling, threats or incitement to violence, no physical blocking of entrances and exits or of public passageways. The only possible basis for concluding that the activity is not protected is the finding that “a primary purpose” of the picketing was to induce OCAW member-employees to breach their contract.
In just what sense the trial court used the words, “a primary purpose”, is not entirely clear from the findings of fact and conclusions of law, but analysis will make it clear. The word “primary” may mean first in order of time, immediate, or it may mean first in order of rank or importance, principal. In the use of the phrase the trial court obviously referred to the “immediate” purpose, for it goes without saying that the “principal” purpose of the picketing was to exert pressure on American Oil Company and thus to force settlement of the labor dispute between the employer and NMU.
I have found no case by either the federal courts or the N.L.R.B. in which it has been held that the protection afforded by Section 7 does not shield the activity of a labor union representing one group of employees, who have a labor dispute with their employer, in peacefully picketing the employer’s place or places of business where other employees, represented by a different bargaining agent and having a no-strike, no-work-stoppage contract, are working. The majority cite no such case and neither *125 does respondent, The American Oil Company. The cases relied on as persuasive by The American Oil Company fall into two categories. Cases in the first category need not be cited here. They are cases decided by the N.L.R.B. and United States Courts of Appeals which stand for the principle that Section 7 does not protect strikes or picketing by employees in breach of their own no-strike contract. We may accept those decisions as establishing the principle of law for which they stand. If in this case OCAW members had honored NMU’s picket line, I would be inclined to say, on the strength of the cited cases, that such activity was not protected. But that is not the issue here. The cases in the second category were decided by state courts and while that fact alone disqualifies them as compelling precedents in my view, they are entitled to closer attention because they are closer to the issue in this case, and the Supreme Court of the United States may regard some state court decisions as compelling precedents. They are: Office Employees International Union, etc. v. Houston Lighting & Power Company, Texas Civ. App., 314 S.W. 2d 315 , writ refused, n.r.e.; Cooperative Refinery Association v. Williams, 185 Kan. 410 , 345 P. 2d 709 ; Standard Oil Company v. Oil, Chemical & Atomic Workers Union, Ohio Ct. Common Pleas, 144 N.E. 2d 517 ; Gulf Refining Company v. Oil Workers International Union, Ohio Ct. Common Pleas, 114 N.E. 2d 534 ; M & M Wood Working Company v. United Brotherhood of Carpenters and Joiners, Oregon Circuit Ct., 26 Labor Cases 87,545; American Brake Shoe Company v. Machinists Association, 373 Pa. 164 , 94 A. 2d 884 .
Standard Oil Company v. Oil, Chemical & Atomic Workers, Gulf Refining Company v. Oil Workers International Union, and M & M Wood Working Company v. United Brotherhood of Carpenters and Joiners, were, indeed, suits to restrain and enjoin labor organizations representing the employees of one business of an employer from picketing another place of business of the same employer where the employees of the second business were represented by a different union and had a no-strike contract. In each case the state court granted the relief sought. But these decisions cannot be the type of compelling precedents of which Garmon speaks. With all due deference, they are decisions of trial courts, apparently the equivalent of our district courts, and all were made before Garmon .
American Brake Shoe Company v. Machinists Association was decided by the Supreme Court of Pennsylvania. The employer sought to enjoin representatives of employees of an employer’s place of business in St. Louis, Missouri, from picketing the em *126 ployer’s place of business in Meadville, Pennsylvania, where the employees were represented by a different union and had a no-strike contract. The injunction was denied on the ground that it was prohibited by state statute. The court’s statement that jurisdiction to grant relief had not been pre-empted to the N.L.R.B. was strictly a dictum. The court stated that there was no evidence before it that the employer was doing business in interstate commerce and that the question of jurisdiction had not been raised. The decision was also before Garmon .
Office Employees International Union v. Houston Lighting & Power Company was decided by the Austin Court of Civil Appeals. Representatives of the Office Employees Union established a picket line at a separate place of business of its employer, where employees were represented by other unions, because of discharge of an employee at the second place of business. State court jurisdiction to enjoin the picketing was upheld by the Court of Civil Appeals on more than one ground, one of which was that the purpose of the picketing was to induce employees at the second place of business to breach their no-strike contract in violation of Article 5154d. Our refusal of writ of error, no reversible error, did not constitute approval of that holding. Moreover, this is also a pre-Garmon decision.
Cooperative Refinery Association v. Williams is a postGarmon decision by the Supreme Court of Kansas. The court-upheld jurisdiction of the state courts to enjoin peaceful picketing over protest that the picketing was either protected by Section 7 or prohibited by Section 8. The Teamsters Union, representatives of employees of Consumers Cooperative Association, a Kansas corporation with its office and place of business in Kansas City, Missouri, established a picket line at the place of business in Lawrence, Kansas, of The Cooperative Farm Chemicals Association, also a Kansas corporation, whose employees were represented by Oil, Chemical and Atomic Workers Union. Consumers Cooperative Association owned 75% of the stock of The Cooperative Farm Chemicals Association and the same individual was president of both corporations. The court held that the picketing was not protected because there was no evidence that the first corporation controlled the second or even that they were doing business with each other. That finding is the exact opposite of the finding in the case before us. The Kansas court held that the picketing was not prohibited because the picketing union “had no intention of inducing, encouraging or persuading such employees [of the second corporation] to engage in any concerted or other activity * * Here, again, the finding is the exact *127 opposite of the finding in the case at bar. While this case can hardly be persuasive in deciding the merits of the issue before us, it does support jurisdiction of the state courts to decide it.
One other state decision deserves mention although it cannot be regarded as of controlling significance. In Dooley v. Anton, 8 N.Y. 2d 91 , 168 N.E. 2d 356 , decided after second Garmon , the New York Court of Appeals held that the effect of the Garmon decision was to oust jurisdiction of state courts to enjoin picketing for the purpose of coercing the employer into breaching his contract with another union which represented a majority of his employees. The Court concluded that Garmon required that primary jurisdiction to decide whether the activity was protected or prohibited be left to the N.L.R.B. The court overruled an earlier decision that the identical activity was neither protected nor prohibited and that the state courts therefore had jurisdiction to enjoin it. The opinion is weakened by the fact that at the time the court decided the case the LMRA had been amended to make recognition picketing an unfair labor practice, thus expressly bringing regulation of the activity within the exclusive jurisdiction of the N.L.R.B.
It seems quite clear to me that the District Court was without jurisdiction to grant the temporary injunction if its jurisdiction is tested by the opinion of the majority in second Garmon . I am also satisfied that the court was without jurisdiction if its jurisdiction is tested by the opinion of the concurring Justices. The sense of the concurring opinion, as I understand it, is that when it is clear to a state court that an activity is neither protected nor prohibited by the LMRA the court should be permitted to take jurisdiction to control the activity, subject to review of the correctness of its determination by the Supreme Court of the United States, even though the question has not been submitted to or decided by the N.L.R.B. The concurring Justices joined in approving the Court’s judgment in second Garmon solely because it was “fairly debatable” whether the conduct involved was protected. On the basis of the decisions reviewed above, I would be forced to conclude that it is fairly debatable whether the picketing by NMU is prohibited and also fairly debatable whether it is protected. Thus I would be forced to conclude here, as did the concurring Justices in Garmon , that the District Court was without jurisdiction to grant the injunction. Particularly would I be compelled to do so considering that The American Oil Company had a remedy to protect itself against harm by obtaining a state court injunction against breach by OCAW member-employees of their no-strike, no-work-stoppage contract. *128 Teamsters Union v. Lucas Flour Company, 82 S.Ct. 571 , 7 L. Ed. 2d 593 ; Dowd Box Co. v. Courtney, 7 L. Ed. 2d 483 ; McCarroll v. Los Angeles Dist. Council of Carpenters, etc., 49 Cal. 2d 45 , 315 P. 2d 322 ; McLean Distributing Co. v. Brewery and Beverage Drivers, etc., 254 Minn. 204 , 94 N.W. 2d 514 ; Philadelphia Marine Trade Ass’n. v. International Longshoremen’s Ass’n., etc., 382 Pa. 326 , 115 A. 2d 733 .
It seems clear to me that late decisions of the Supreme Court of the United States in labor cases indicate two definite trends. These trends are noticed also by Jeffers in his article in 36 T.L.R. 938. The first trend is represented by such cases as International Brotherhood of Teamsters v. Vogt, 354 U.S. 284 , 77 S. Ct. 1166 , 1 L. Ed. 2d 1347 , and is toward a broadening of the power of the states to curb peaceful labor activity against employers in intrastate business when the activity violates basic public policy of the states, whether the policy be enunciated by the state legislature or by the judiciary. The process is one of limiting the broad sweep of such cases as Thornhill v. Alabama, 310 U.S. 88 , 60 S.Ct. 736 , 84 L. Ed. 1093 , in the protection of the constitutional guaranty of free speech. It is in this field that the purpose of the activity is of all-controlling importance. The second trend is represented by such cases as the two Garmon decisions and is toward a narrowing of the jurisdiction of state courts to curb or control peaceful labor activity against employers in interstate business. The process is one of excluding state jurisdiction in this field until the N.L.R.B. has first made a definitive determination that the activity is neither protected nor prohibited by the Labor Management Relations Act or until the Supreme Court has decided the same issue in a case properly before it. In this area the purpose of the activity is not of such major consequence, at least until the question of jurisdiction of the activity has been determined to be in the courts. Cases decided by the Supreme Court since second Garmon confirm this latter trend. See Hotel Employees v. Sax Enterprises, 358 U.S. 270 , 79 S.Ct. 273 , 3 L. Ed. 2d 289 ; Plumbers, etc. v. County of Door, 359 U.S. 354 , 79 S.Ct. 844 , 3 L. Ed. 2d 872 . It was recognized by this Court in Ex Parte Twedell, 158 Texas 214 , 309 S.W. 2d 834 , in which we held the state courts were without jurisdiction to enjoin peaceful picketing even though the purpose was to bring about a violation of state right to work laws.
Relator should be discharged.
ASSOCIATE JUSTICE NORVELL joins in this dissent.
Opinion delivered May 30, 1962.
. There is an excellent analysis of the two opinions by Charles O. Gregory, Professor of Law at the University of Virginia, in 46 Va. Law Review 539. See also case note in 58 Mich. Law Review 288.
. “(b) It shall be an unfair labor practice for a labor organization or its agents — (4) (i) * * * to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services * * * where * * * an object thereof is— * * * (B) forcing or requiring any' person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, * * * Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;”