Best Motor Lines v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local No. 745

Mr. Justice Garwood,

dissenting.

Doubtless this is as much a concurring opinion as a dissent, though, as below indicated, I do disagree in part with the disposition made of the case.

As I understand the view expressed in the opinion of the court, we would not sustain the injunction on the basis of the anti-trust laws, except for the evidence that, following estab *113 lishment of the picket line, there was an agreement between the Union on the one hand and, on the other, the defendant carriers, to the effect that the latter would not handle the plaintiff’s freight, even though such handling did not involve crossing the picket line at the plaintiff’s place of business. Or perhaps it is that the agreement, which is the basis of the antitrust law violation, is merely one between the individual members of the Union themselves — not one merely to respect the picket line— but to restrain commerce by refusing to drive or do other work concerning trucks wherein the defendant carriers meant to handle the plaintiff’s freight and thereby inducing the defendant carriers to cease all attempts to handle such freight. There is. of course, stronger evidence of this latter agreement than there is of an agreement made by the defendant lines with the Union, though there seems to be support for both.

I further understand that we do not here mean to hold it a violation of our antitrust laws or other laws for a Union and an employer to agree that the employer will not request its employees to cross a picket line or that the existence of such an agreement between the Union and the defendant carriers, plus the fact that those carriers and their employees respected it, plus the further facts that a picket line was established and the plaintiff’s business thus curtailed, is enough to establish a violation of the antitrust laws. It is contended for the plaintiff that this much evidence does establish the violation, and in fact the trial court held this same contractual provision to be illegal, but I understand we do not rule upon the point.

Upon these assumptions, I agree with the majority view that there has yet been a violation of law by the Union and that injunctive relief is in order. However, I do not agree that the injunction in the terms granted should be approved.

The RESTATEMENT, TORTS, sec. 815 reads:

“In framing an order enjoining concerted action by workers under the rule stated in sec. 813, the following are important guides:

(a) the order should enjoin only tortious conduct, except as stated in sec. 816;

(b) the order should be as specific as practicable in describing the conduct enjoined and should avoid as far as possible question-begging or omnibus words or provisions;

(c) the order should be written in simple language intelligible to workers without the aid of lawyers;

*114 (d) the order may describe generally or specifically the kind of conduct which it does not restrain;

(e) the order may impose restraints on the plaintiff as conditions of its restraints on the defendants.”

The Comment immediately following sec. 815 states that the text applies to temporary as well as permanent injunctions. Clearly the same principles will apply whether the ultimate basis of the injunction is statutory or common law.

In Construction & Gen. Labor Union, Local No. 688 v. Stephenson, 148 Texas 434 , 225 S.W. 2d 958, 963 , while sustaining "the granting of the injunction” on the ground that the picketing was for the object of compelling a closed shop, we yet took pains to modify “the terms of the injunction”, so as to eliminate “the requirement that before picketing will be permitted there must be a dispute between Stephenson and a majority of his employees * * We also took pains to observe that “the application of the injunction is of course to be confined to picketing for unlawful purposes, as disclosed by the facts of this record, and is not to be construed to prevent peaceful picketing at proper places for lawful purposes or other methods of publicizing any legitimate protests which petitioners may have against respondent.”

In the instant case, I think the injunction operates to deter the Union henceforward from maintaining a picket line, even though hereafter there should be no repetition of the acts which we find to make an otherwise valid course of conduct unlawful. This seems overly severe. Possibly the inference from the opinion is that such picketing may be done notwithstanding the injunction, but, if so, it is less than clear. If it be true that after the matter of a permanent injunction is determined, should it be determined adversely to the Union, proper picketing may yet be safely indulged in, why should it not be permitted now? It should be practicable to draw an order that will forbid picketing if accompanied by certain types of conduct but will permit it if not so accompanied. A reading of the pleadings and briefs discloses that the picketing is a most important point with which the parties are concerned — it and the contractual provision, whereby the defendant lines agree not to require their employees to cross picket lines. If I correctly understand us to hold that there was nothing wrong about the picketing itself and to refrain from holding the contractual provision invalid, the essence of the Union’s offense was its conduct over and beyond the picketing. And since the picketing alone may be a useful right, *115 I think it only fair to permit it to continue under proper restrictions.

In the Giboney case ( 336 U.S. 490 ) the picketing itself could properly be enjoined in general terms because, but for the unlawful object of forcing the plaintiff to discriminate between its customers, there would have been no picketing. Here, on the contrary, the picketing was actually begun before the unlawful acts of the Union took place, and might well continue in a peaceful manner and serve a lawful purpose of the Union in its controversy over recognition, without a repetition of the unlawful acts. Its object of procuring recognition, which we do not say to be illegal, and which is not so, in my opinion, may quite logically be sought without, as well as with, the other conduct, which we have declared to be unlawful. In the Giboney case, this was not the situation. There the picketing could serve no purpose, remote or proximate, if it did not first serve the unlawful purpose of making the plaintiff discriminate between its customers. The situation here would be more comparable to the Giboney situation, if the Union here had picketed the defendant carriers as well as the plaintiff. In such event we might well have enjoined the picketing of the defendant carriers in general terms, just as we might now in general terms enjoin the Union from preventing its members entering the trailers leased from the plaintiff by the defendant carriers or doing other duties which did not involve depriving the Union members of their contractual right not to have to cross a picket line.

I think the order of injunction should be modified and approved only as modified.

Opinion delivered February 21, 1951.

Rehearing overruled April 11, 1951.