Blossom Dairy Co. v. International Brotherhood of Teamsters

23 S.E.2d 645, 125 W. Va. 165, 1942 W. Va. LEXIS 25, 11 L.R.R.M. (BNA) 794

• Court: West Virginia Supreme Court
• Decided: December 8, 1942
• Docket: 9336
• Status: Published

Opinions

Rose, Judge:

By the decree appealed from, the Circuit Court of Kanawha County awarded the Blossom Dairy Company an injunction against International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local No. 175, Frank Rebhan and Eugene Carter, and upon petition of the enjoined defendants, we granted this appeal.

The Blossom Dairy Company is a corporation. Its president and general manager is Sam Sloman. William Slo-man, son of the president, is its secretary-treasurer and manager, and Henry Sloman, another son and attorney at law;, is its vice-president and manager of the office and plant. This company, with its principal place of business at 116 Virginia Street in the City of Charleston began business in 1927, and conducts a business of “preparation, distribution and sale of milk and other dairy products at retail and wholesale, through six retail stores in Charleston and its vicinity and operates thirty motor vehicles for the delivery of its products over and along twenty-one routes” radiating about fifty miles from its place of business.

Until 1937, the company operated on a non-union basis. In May of that year, the drivers of these delivery vehicles, who also were salesmen and collectors, after protracted negotiations by union representatives, became members of the defendant, Local No. 175, an affiliate of the American Federation of Labor; and the employer, Blossom Dairy Company, then entered into a six months wage contract agreement with this local. As the agreement was about to expire, negotiations for a new contract were begun by the representatives of the union. At this point the Blossom Dairy Company employees belonging to Local No. 175 withdrew en masse from that union, formed themselves into an independent organization, since incorporated, as the “Brotherhood of Dairy Salesmen, Inc.” The employer then promptly, and without notice of any kind to the former union, signed a contract with this newly organized group, which contract, with slight alterations, has been renewed from time to time, the last renewal of which being still in effect. Upon the withdrawal of these employees from Local No. 175, the Blossom Dairy Company was placed on the “unfair list” by the Kanawha Valley Central Labor Union, an organization consisting of representatives of all the American Federation of Labor Union affiliates in the Kanawha Valley.

In May, 1941, an American Federation of Labor representative opened negotiations with the Blossom Dairy Company, through its president, with the purpose of obtaining a new contract, but was unsuccessful. Immediately thereafter, the defendants caused a single picket to be placed before each of four of the company’s retail stores who carried placards with the inscription “Blossom Dairy Unfair to Organized Labor, Teamsters Local 175, Endorsed by Kanawha Valley Central Labor Union.” This picketing was perfectly peaceable in every respect, and lasted only four hours. No disorder arose, and no customers absented themselves, so far as can be ascertained, and no contract between customers and the dairy company existed. About the same time, there appeared in “The Labor Union”, a newspaper published under the legend “Official Publication of the American Federation of Labor Organizations In This Territory”, a certain article stating that certain American Federation of Labor leaders in Charleston charged that the Brotherhood of Dairy Salesmen, Inc., was a “company” union, a “phony” union, and a “bogus” organization, and certain handbills were circulated throughout a part of the business territory of the Blossom Dairy Company criticising its labor policy.

Immediately, the Blossom Dairy Company presented to the Circuit Court of Kanawha County its bill for an injunction, which was based upon the allegation that the charge that it was “unfair to organized labor” and was dealing with a “company”, “bogus”, or “phony” union was false and tended to bring about a breach of its contract with the Brotherhood of Dairy Salesmen, Inc., and thus to cause irreparable injury to the plaintiff. An injunction, as prayed for, was awarded without notice to, or appear- anee by, the defendants, whereupon the picketing immediately ceased.

By answer, the defendants deny that they were responsible for the article published in “The Labor Union”, or the distribution of the handbills mentioned, but admit their responsibility for the picketing alleged; and assert that the statements published and disseminated by the handbills and borne on the placards of the pickets were truthful and published and displayed for a just end. Also, both by demurrer and answer, they defend upon the proposition that the injunction sought would violate the right of free speech and free press guaranteed the defendants by the First and Fourteenth Amendments to the Federal Constitution, and by Section 7, Article III of the Constitution of West Virginia. The demurrer was overruled, and evidence was taken at the bar of the court, at the conclusion of which, the court, by an oral opinion preserved in the record, announced that in his judgment it had not been shown that the Brotherhood of Dairy Salesmen, Inc., was not a bona fide organization, that its inception was sponsored by the plaintiff or by its responsible officials, or that its existence was dominated by them. The preliminary injunction was then perpetuated for the term of the contract then in force between the Blossom Dairy Company and the Brotherhood of Dairy Salesmen, Inc., inhibiting the defendants:

“ (1) From picketing the stores and places of business of the plaintiff, Blossom Dairy Company, a corporation, wheresoever located, or from persuading or attempting to persuade any person, persons, firms or corporations from purchasing plaintiff’s products;

(2) From publishing, or causing to be published statements designed to cause persons or prospective customers of plaintiff, at any of its stores, not to enter same, or to deal therein, or otherwise to boycott the plaintiff or plaintiff’s stores wheresoever located;

(3) From doing or performing any act designed and. intended to induce plaintiff’s employees to violate or attempt to violate the collective bar gaining contract now existing between the plaintiff and the Brotherhood of Dairy Salesmen, Inc., a corporation, during the existence of such contract, or inducing or attempting to induce the said Brotherhood of Dairy Salesmen, Inc., a corporation, to violate the terms of said contract.”

The finding by the chancellor on the question of the bona fides of the Brotherhood of Dairy Salesmen, Inc., cannot be disturbed. A single former employee of the plaintiff, now discharged, testified that this independent union was organized, supported in part and dominated by Sam Sloman, the president of the plaintiff company. But Sam Sloman, one of his sons, the superintendent of the company, and five drivers and salesmen testify to the contrary. This finding, therefore, must be treated as a fact in the case. Wright v. Goins, 105 W. Va. 332, 142 S. E. 438; Walton v. Pritt, 93 W. Va. 375, 116 S. E. 759; Baughman v. Hoffman, 90 W. Va. 388, 110 S. E. 829; Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287, 61 S. Ct. 552, 85 L. Ed. 838, 132 A. L. R. 1200. But, upon this fact thus ascertained and decreed and the other facts not in dispute, was the final order justified?

As to the published article and the distributed handbills, it was clearly wrong. There is no proof whatever that the defendants, or any of them, had anything to do with, or were in any way responsible for, these matters. As to the picketing, it will also be seen that the injunction was at least too broad in that it inhibits all picketing of the stores or places of business of the plaintiff, and not merely improper picketing. Thus a substantial modification, at least, of the injunction order is clearly required.

But may the decree be sustained for any purpose? With these modifications, there would remain simply an injunction against the carrying of banners by pickets with the inscription “Blossom Dairy Unfair to Organized Labor”, whereas, the proof showed no ground or complaint whatever against this employer, except that it was under a labor contract with a local independent employees’ union, against which no charges are made, except merely the fact that it was independent. The trial chancellor based his decree largely, if not wholly, upon the fact, which he further found, that the picketing tended to bring about a breach of the contract between the company and this independent union. It is extremely doubtful if the plaintiff, on the evidence, has made a case for in junction,, even on this ground. The contract, the breach of which is sought to be avoided, is between the Blossom Dairy Company and the Brotherhood of Dairy Salesmen, Inc., only. There are no other parties thereto. If it is a breach of this contract by the dairy company that is feared, shall a court be moved by the absurdity of a bill of complaint seeking an injunction to prevent .third parties from induping the plaintiff itself to breach the contract? If it is a breach by the Brotherhood of Dairy Salesmen, Inc., that is to be guarded against, we cannot forget that Sam Sloman, the president and controlling power in the dairy company, repeatedly says in his testimony that he is perfectly indifferent as to what union the company’s employees belong to. If the plaintiff has no concern about this matter, why should a court issue an injunction at its request? The case pleaded by the plaintiff is thus largely neutralized by its president’s testimony. Finally, there is not a word of testimony that there is any disposition on the part of a single employee belonging to the Brotherhood of Dairy Salesmen, Inc., to breach the contract in question.

It is not necessary, however, to base our decision solely upon an appraisal of this feature of the evidence. We think the law is against the plaintiff. True, it was once announced as law in this state that “Persons who conspire to induce others to break a valid contract between other persons are liable to action therefor, and if the loss occasioned thereby is continuing and irreparable, injunction will lie to prevent it.” Parker Paint and Wall Paper Company v. Local Union No. 813, 87 W. Va. 631, 105 S. E. 911 (1921), 16 A. L. R. 222. But it is to be noted that the court was there dealing with a situation vastly different from what we have in the case at bar. That case involved secondary picketing, was accompanied by great violence, and did cause the breach of a number of business and commercial contracts between the employer and its cus tomers. The same doctrine had been applied directly to a contract between an employer and its employees by the Supreme Court of the United States in Hitchman Coal & Coke Company v. Mitchell, 245 U. S. 229, 38 S. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461 (1917). But this case dealt only with individual contracts between an employer and its employees, and treated these contracts principally, if not wholly, from the standpoint of the ancient law relating to the enticing away of servants. The constitutional questions raised by 'the defendants here were not alluded to. When the full scope of that court’s construction of the free-speech guaranty of the federal constitution was considered in a case involving a contract between an employer and an individual employee, a conclusion directly opposite to that in the Hitchman Coal Company case, supra, was reached. American Federation of Labor v. Swing, 312 U. S. 321, 61 S. Ct. 568, 85 L. Ed. 855 (1941). In this case, the Supreme Court of Illinois had affirmed the action of the Illinois Appellate Court in reversing an order of the Circuit Court of Cook County, dismissing a suit for an injunction against picketing in an attempt to unionize a non-union shop. The Supreme Court of the United States held that the injunction against such picketing violated the free speech guaranteed by the Federal Constitution. And in a case which involved a contract with an organized labor group, the court has directly refused to follow the Hitchman case. Journeymen Tailors Union, etc. v. Miller’s, Inc., 312 U. S. 658, 61 S. Ct. 732, 85 L. Ed. 1106. In this case, the Court of Errors and Appeals of New Jersey had allowed an injunction against the picketing by one union of a place of business which employed a tailor belonging to a competing union. The Supreme Court of the United States, upon petition for certiorari, disposed of the case as follows: “Per Curiam, The petition for writ of certiorari is granted and the judgment is reversed.” We thus find that the Supreme Court of the United States, in its latest pronouncements, has refused to permit injunctions against picketing which may tend, or is intended, to bring about the breach of labor contracts, whether with individual employees, or with a labor union, basing its decisions upon the proposition that such injunctions violate the picketers’ right to free speech and free press guaranteed by the Federal Constitution. It is not for us to discourse on the soundness or propriety of these holdings. It is ours only to recognize their binding effect on us; and, accordingly, following these decisions, we must hold that the plaintiff was not entitled to an injunction on the ground that the picketing would tend to bring about a breach of its contract with the Brotherhood of Dairy Salesmen, Inc.

There remains to support the injunction only the theory that in parading the placards bearing the legend “Blossom Dairy Unfair to Organized Labor” the picketers were disseminating false and libelous statements to the plaintiff’s injury. And it is true that the defendants have failed to establish by proof the specifications of unfairness set out in their answer, namely, that the Brotherhood of Dairy Salesmen, Inc., was company organized, supported or controlled, or that the Brotherhood of Dairy Salesmen, Inc., was a “bogus” or “phony” union.

The proclaiming of falsehoods, while peaceably picketing an employer’s place of business is not protected by the constitutional guaranty of free speech. In the case of Senn v. Tile Layers Protective Union, 301 U. S. 468, 57 S. Ct. 857, 81 L. Ed. 1229, Justice Brandéis in justifying peaceful picketing, observed that “the publicity did not involve misrepresentation of fact, nor was any claim made below that relevant facts were suppressed.” In Thornhill v. State of Alabama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093, the opinion ventures no further than that “The freedom of speech and of the press, guaranteed by the constitution, embraces at least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint of fear of subsequent punishment.” The opinion in Carlson v. State of California, 310 U. S. 106, 60 S. Ct. 746, 84 L. Ed. 1093, includes this observation regarding a county ordinance regulating picketing which was held repugnant to the right of free speech: “It contains no exceptions with respect to the truthfulness and restraint of the information conveyed * * And one basis of the court’s finding in Bakery & Pastry Drivers, etc. v. Wohl, 315 U. S. 769, 62 S. Ct. 816, 86 L. Ed. 1178, that the picketing was lawful was, that “The trial court found that the placards were truthful and accurate in all respects.” No case has been found in which any court, state or federal, has held that the communication or dissemination of falsehoods or of malicious statements by speech, press or otherwise is protected by any constitutional guaranty. But so long as the pickets are peaceful and disseminate the “truth” or the “facts” in which they have a legitimate interest they may not be disturbed. Is, then, the use of the words “unfair to organized labor”, as displayed by the pickets in this case the spreading of a falsehood, so as to become the basis of an injunction?

Courts have come very generally to recognize that the word “unfair”, as commonly used by labor unions, does not bear its primary and usual meaning, but has a well-known and well-understood peculiar and specific significance. This unique meaning of the word when so used is not capable of precise judicial determination, except negatively. It appears to be merely a word of disapprobation, or invective, loosely applied to any person or practice, which fails to meet the approval, for the time being, of the protesting labor organization. At most, they are ordinarily a mere expression of opinion, or of a conclusion. Some courts take a different view and enjoin the use of the word “unfair” unless the user can justify its application in the ordinary sense. Traub Amusement Co. v. Macker, 127 Misc. 335, 215 N. Y. S. 397; Driggs Dairy Farms, Inc. v. Milk Drivers, etc., Union, 49 Ohio App. 303, 197 N. E. 250; Hotel, etc., Local Union v. Miller, 272 Ky. 466, 114 S. W. 2d 501. But the great weight of authority is to the effect that the word “unfair” as used in the parlance of organized labor is not actionable either at law or in equity. “By far the preponderance of judicial decisions, however, supports the. rule that labor unions have the right to banner an employer as unfair in connection with a labor controversy.” Ludwig Teller on Labor Disputes and Collective Bargaining, Yol. I, page 391. This statement is abundantly supported in case law. Illustrative cases are: Senn v. Tile Layers Protective Union, supra (1937); Denver Local Union v. Perry Truck Lines, Inc., 106 Colo. 25, 101 P. 2d 436 (1940); Schuster v. International Ass’n., etc., 293 Ill. App. 177, 12 N. E. 2d 50 (1938); Vonderschmitt v. McGuire, 100 Ind. App. 632, 195 N. E. 585 (1935); Johnson v. Milk Drivers, etc., Union, La. App., 195 So. 791 (1940); Iverson v. Dilno, 44 Mont. 270, 119 P. 719 (1911); Steffes v. Motion Picture, etc. Union, 136 Minn. 200, 161 N. W. 524 (1917); Thompson Co. v. Delicatessen Union, 126 N. J. Eq. 119, 8 A. 2d 130 (1939); Manker v. Bakers’ Union, 129 Misc. 516, 221 N. Y. S. 106 (1927); S. A. Clark Lunch Co. v. Cleveland Waiters Local, 22 Ohio App. 265, 154 N. E. 362; Kimbel v. Lumber Union, 189 Wash. 416, 65 P. 2d 1066 (1937); My Maryland Lodge v. Adt, 100 Md. 238, 59 A. 721 (1905); State v. Van Pelt, 136 N. C. 633, 49 S. E. 177, 68 L. R. A. 760, 1 Ann. Cas. 495; J. F. Parkinson Co. v. Building Trades Council, etc., 154 Cal. 581, 98 P. 1027, 21 L. R. A. (N. S.) 550, 16 Ann. Cas. 1165 (1908); J. B. Watters & Son v. Retail Clerks’ Union, 120 Ga. 424, 47 S. E. 911 (1904); Labor Review Publishing Co. v. Galliher, 153 Ala. 364, 45 So. 188, 15 Ann. Cas. 674 (1907).

We are thus led to the conclusion that all things charged and proven against the defendants in the case at bar were permissible under the free-speech guaranty of the Federal Constitution, and hence cannot be the basis of the injunction awarded by the lower court. Accordingly, the order appealed from is reversed, and the bill dismissed.

Reversed and dismissed.