Borden Co. v. Local No. 133 of International Brotherhood of Teamsters

152 S.W.2d 828, 1941 Tex. App. LEXIS 587

• Court: Court of Appeals of Texas
• Decided: April 10, 1941
• Docket: No. 11227
• Status: Published

Opinions

MONTEITH, Chief Justice.

This is an appeal from an order of the district court of Harris County granting the application of Sam Person, doing business as Brazos Ice Company, for a temporary injunction restraining Local 133 of International Brotherhood of Teamsters, Chauffeurs, Stablemen, and Helpers of America and its members, hereinafter called defendants, from picketing his place of business, and denying an application of the Borden Company for a temporary injunction restraining defendants from picketing its customers.

At the request of the Borden Company, the trial court filed findings of fact and conclusions of law. The Borden' Company excepted to certain of said findings.

The court found, on what we deem to be sufficient evidence, that Sam Person conducted a retail business in the City of Houston in which he sold various articles, including milk purchased from the Borden Company, and that he had developed a substantial patronage and good will; that he employed three men in the conduct of his business, all of whom were members of the Ice Handlers Union with which he had a contract covering his employees, and that his employees were not members of or eligible for membership in defendant union and that there was no dispute of any kind between him and the Ice Handlers Union or any of his employees, and that neither he nor any of his employees had a labor dispute of any kind with defendant union. It found that in January, 1941, defendant union, acting through its representatives, requested Person to discontinue the sale of milk processed by the Borden Company, and that upon his refusal to do so, defendant union caused his place of business to be picketed; that the pickets moved slowly back and forth on the sidewalk in front of his place of business carrying a large cardboard sign on which was printed: “This place is selling milk from dairies who locked out their employees. Milk Drivers Union 133. Affiliated with A. F. of L.” The court found that the picketing in question was not picketing of Person’s place of business as such, but was the picketing only of the dairy-products purchased by Person from the Borden Company; that said Pickets conducted themselves in an orderly, proper and peaceful manner, though at times customers were required to bring their cars to a stop, to permit the picket to pass, before driving in. It was found that during the time Person’s place of business was picketed his loss in gross receipts was from $10 to $15 per day. The court found that the picketing of Person’s place of business will continue to cause him irreparable damage and he has no adequate remedy at law, since defendant union has no property of any kind and is unable to respond in damages.

The court found that defendant union had a bona fide labor dispute with the Borden Company relative to the operation of its business and plant in Houston, but that no labor dispute of any kind existed between it and any of the Borden Company’s customers, the picketing of whom was sought to be enjoined; that in January, 1941, it caused the places of business of four customers of the Borden Company, including the Brazos Ice Company, to be picketed by means of pickets carrying the cardboard sign hereinabove referred to; that threats of picketing and picketing by defendant union had caused the Borden Company to suffer damages, the amount of which is unascertainable.

The court concluded as a matter of law that the injunction sought by the Borden Company should be denied for the reason that its customers whose place of business it sought- to enjoin defendant union from picketing, with the exception of the Brazos Ice Company, conducted by Sam Person, had not been made parties to the suit and were not specifically named either in the Borden Company’s pleadings or in the evidence on the trial of the suit, and that an injunction, if granted, would be too vague for lack of proper description of the customers which defendant union would be enjoined from picketing in the event the Borden Company’s application for an injunction was granted.

The question presented in this appeal has not heretofore been passed on by an appellate court of this state. It involves the right of a court of equity to enjoin a labor organization from picketing the place of business of a retailer with whom the union has no labor dispute nor any other connection or association, by means of placards carried by pickets expressing .the union’s views upon a situation affecting its members for the admitted purpose of preventing the sale of a product purchased by the retailer from a manufacturer with whom the union has a bona fide labor dispute, but with whom the retailer sustains no other relationship than having been such purchaser of its products.

Appellee Sam Person contends that, since, under the undisputed evidence, defendant union had no labor dispute with him nor any other connection, the picketing of his place of business was part of a plan on the part of defendant union to compel him by coercion to discontinue the sale of a brand of dairy products which his customers wished to buy, and to induce the public to refrain from purchasing such dairy products from him, such acts on the part of defendant union constituted an illegal trust and conspiracy in restraint of trade and a secondary boycott; that such actions are prohibited by both the civil and criminal statutes of this state, and are in direct contravention of both the state and federal constitutions protecting him in the ownership, use and enjoyment of his property and the right to engage in a lawful business in a lawful manner without interference, and that, since the exercise of free speech is no more sacred nor entitled to more protection at the hands of the court than the right of an individual to own, use and enjoy his property, the courts of this state are fully authorized to enjoin such unlawful acts even though they be. clothed in the guise of the exercise of the right of free speech.

R.S.Article 5152 provides that it shall be lawful for any and all persons engaged in any kind of work or labor to associate themselves together, and to form trade unions and other organizations for the purpose of protecting themselves in their respective pursuits.

R.S.Article 5153 provides that it shall be lawful for any member of such trade union or other organization to induce or attempt to induce, by peaceful and lawful means, any person to accept any particular employment, or to enter or refuse to enter, or relinquish any employment or pursuit in which such person may be engaged.

R.S.Article 5154 provides that the two preceding articles shall not apply to any combination or association formed for the purpose of limiting the production or consumption of labor’s products, or for any other purpose in restraint of trade, and that nothing therein shall be construed to repeal, affect, or diminish the force and effect of, any statute on the subject of trusts, conspiracies against trade, pools,, and monopolies.

R.S.Article 4642, Section 1, provides for injunctive relief, “where the applicant is entitled to the relief demanded and such relief or any part thereof requires the restraint of some act prejudicial him.”'

R.S.Article 7426 defines a “trust” as:

“A combination of capital, skill or acts by two or more persons, firms, corporations or associations of persons, or either two or more of them for either, any or all of the following purposes:

“1. To create, or which may tend to create, or carry out restrictions in trade or commerce or aids to commerce or in the preparation of any product for market or transportation, or to create or carry out restrictions in the free pursuit of any business authorized or permitted by laws of this State. * * * ”

R.S.Article 7428 provides that:

“Either or any of the following acts shall constitute a conspiracy in restraint of trade. * * *

“2. Where any two or more persons, firms, corporations or association of persons, shall agree to boycott or threaten to refuse to buy from or sell to any person, firm, corporation or association of persons for buying from or selling to any other person, firm, corporation or association of persons.”

Article 1632 of the Penal Code provides that any attempt to create or carry out restrictions in the free pursuit of any business authorized or permitted by the laws of this state shall constitute a trust.

Article 1634 of the Penal Code provides that where two or more persons, firms, corporations, or association of persons, shall agree to boycott or threaten to refuse to buy from or sell to any person, firm, corporation, or association of persons for buying from or selling to any other person, firm, corporation, or association of persons, shall constitute a conspiracy in restraint of trade.

Under Article 1635 of the Penal Code, the violation of the provisions of either of the two articles, last above referred to, is punishable by confinement in the penitentiary for a period of from two to ten years.

This court has heretofore held, and the rule seems to be established by an unbroken line of authorities, that picketing by labor organization or union or its members has been legalized by our statutes, with the limited objective of allowing striking employees, who have bona fide dispute with their employer over wages, hours, or working conditions, to persuade other employees to leave him, or to dissuade third persons from becoming his employees. It is, however, held:

“That our courts of equity will, in proper cases affecting labor organizations or unions, as well as any other litigants, grant protective injunctions where that relief is necessary to the continued preservation and enjoyment of an existing contract between parties having a legal right to make and live under it, as against third persons who sustain no relation either to such parties thereto or to the contract itself. * * . *

“They have further declared that no right of free speech under the fundamental law of either nation or state is transcended by an injunction restraining the picketing of a place of business by persons (whether members of a labor organization or union, or not) who seek either to prevent the public from trading with the picketed place, or to compel its owner to break a contract which he has with some such disassociated third person.” Carpenters & Joiners Union v. Ritter’s Cafe, Tex.Civ.App., 138 S.W.2d 223, 226; same case, Tex.Civ.App., 149 S.W.2d 694, writ of error refused.

The only question, therefore, to be determined in this appeal is whether the rule followed in the Ritter case has been altered, or overruled, by decisions recently rendered by the Supreme Court of the United States, particularly in the cases of American Federation of Labor et al. v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. —, and Milk Drivers Union of Chicago et al. v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. —.

A careful analysis of the facts and of the opinions of the court in these cases convinces us that the decision in neither case has altered the rule established by the courts of this state, as applicable to this appeal.

In the case of American Federation of Labor v. Swing, supra, the plaintiffs were Ross W. Swing, the owner of a beauty parlor, and his employees. The Union attempted to secure a contract with the owner, and, while he was willing for his employees to join the union, he declined to compel them to do so. Thereupon the union picketed his place of business. The Supreme Court of Illinois granted an injunction restraining said picketing for the stated reason that there was no immediate dispute between Swing, the employer, and his employees. In its opinion reversing the action of the Illinois court, the Supreme Court, 372 Ill. 91, 22 N.E.2d 857, held that it would be improper to dispose of the case otherwise than on the face of the decree under review, which rested on the explicit avowal that peaceful persuasion was forbidden in that state, because those who were enjoined were not in Swing’s employ. The Supreme Court of the United States, speaking through Justice Frankfurter, said [312 U.S. 321, 61 S.Ct. 570, 85 L.Ed. -] : “We are asked to sustain a decree which for purposes of this case asserts as the common law of a state that there can be no ‘peaceful picketing or peaceful persuasion’ in relation to any dispute between an employer and a trade union unless the employer’s own employees are in controversy with him. Such a ban of free communication is inconsistent with the guarantee of freedom of speech. * * * The right of free comnmnication cannot therefore be mutilated by denying it to workers, in a dispute with an employer, even though they are not in his employ.” (Emphasis ours.)

As we interpret the opinion, the court in this case holds that, in the absence of criminal acts or other conduct prohibited by the statutes of a state, a union cannot be enjoined from picketing the place of business of an employer, with whom it is seeking to contract for its members, upon the sole ground that there is no labor dispute between the employer and his employees.

In the case of Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., supra, the Supreme Court of the United States affirmed a judgment by the Illinois Supreme Court, 371 Ill. 377, 21 N.E.2d 308, directing that a permanent injunction be issued restraining the picketing of the retail outlets of the Meadowmoor Dairies. The company sold its products to vendors, who in turn sold them to retail outlets. A labor dispute arose between it and the union, which resulted in the retail stores being picketed. Certain acts of violence took place during the controversy, although the pickets were not guilty of acts of violence. The company sought an injunction restraining the picketing of said retail stores. In sustaining the decision of the Illinois Supreme Court, the Supreme Court of the United States said [312 U.S. 287, 61 S.Ct. 554, 85 L.Ed. -]:

“The question which thus emerges is whether a state can choose to authorize its courts to enjoin acts of picketing in themselves peaceful when they are enmeshed with contemporaneously violent conduct which is concededly outlawed. * * * Such a decree, arising out of a particular controversy and adjusted to it, raises totally different constitutional problems from those that would be presented by an abstract statute with an overhanging and undefined threat to free utterance. To assimilate the two is to deny to the states their historic freedom to deal with controversies through the concreteness of individual litigation rather than through the abstractions of a general law. * * *

“But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution. * * * A state may withdraw the injunction from labor controversies but no less certainly the Fourteenth Amendment does not make unconstitutional the use of the injunction as a means of restricting violence. We find nothing in the Fourteenth Amendment that prevents a state if it so chooses from placing confidence in a chancellor’s decree and compels it to rely exclusively on a policeman’s club. * * * We merely hold that in the circumstances of the record before us the injunction authorized by the Supreme Court of Illinois does not transgress its constitutional power. * * * But just as a state through its legislature may deal with specific circumstances menacing the peace by an appropriately drawn act, Thornhill v. Alabama, supra [310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093], so the law of a state may be fitted to a concrete situation through the authority given by the state to its courts. This is precisely the kind of a situation which the Thornhill opinion excluded from its scope.”

In effect, the court in this case held that, under the Federal Constitution, the right of free speech is not unlimited but that, under a proper state of facts, state courts are vested with authority to enjoin picketing by a labor organization in protecting the rights of its citizens where such picketing is “enmeshed” with violence, or where it involves such conduct as the state is authorized to declare unlawful, or the breach of such laws as are necessary for the protection and welfare of its residents.

This interpretation of the holding of the court in the Meadowmoor case is borne out by the holding of the Supreme Court of the United States in the case of Senn v. Tile Layers Protective Union, 301 U.S. 468, 57 S.Ct. 857, 862, 81 L.Ed. 1229, wherein it is said that the term “peaceful picketing” “implies not only absence of violence, but absence of any unlawful act.”

Further, Justice Frankfurter, in the opinion of the Supreme Court in the Meadowmoor case, quoted with approval from its opinion in the case of Carlson v. State of California, 310 U.S. 106, 60 S.Ct. 746, 749, 84 L.Ed. 1104, wherein it said: “The power and the duty of the State to take adequate steps to'preserve the peace and protect the privacy, the lives, and the property of its residents cannot be doubted.”

The anti-trust laws of this state, R.S. Article 7426 and 7428 and Articles 1632, 1634, and 1635 of the Penal Code, which prohibit any attempt to create restrictions in the full pursuit of any lawful business, or any agreement or threat to boycott a person or association by a refusal to buy from or sell to him or it, or to induce others to do so, are in full force and effect. Their constitutionality has recently been sustained by the Supreme Court of the United States in the case of Tigner v. State of Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124, 130 A.L.R. 1321, and they have not been repealed or modified by the statutes which provide for the creation of labor organizations and for peaceful picketing (R.S.Articles 5152, 5153, 5154), in so far as they apply to the state of facts in the instant case.

The record shows that defendant union directed a picketing campaign against Sam Person, with whom it had no labor dispute, and with whom it neither wished to contract nor was eligible to contract for the benefit of its members. While there was no evidence of acts of violence on the part of the members of defendant union, the picketing of Person’s place of business was admittedly instituted by defendant union in an attempt to force him, through injury to his business, to discontinue the sale of milk processed by the Borden Company, an act in direct violation of the anti-trust laws of the state.

The unchallenged findings of the court show that, unless enjoined, the picketing of Person’s place of business would continue to cause him irreparable injury, and that he had no remedy at law, since defendant union had no property of any kind and was unable to respond in damages.

While, under the cited authorities, it is unquestionably the law that the right of free speech cannot be limited when exercised by a labor organization in a peaceful effort to secure employment for its members, the law is, we think, equally well settled that the courts of this state are vested with the authority, in protecting the rights of its citizens, to enjoin picketing by a labor organization where no labor dispute does or can exist between the labor organization and the person whose place of business is picketed, and where such picketing involves such illegal conduct on the part of defendant union as the state is authorized to and has declared unlawful, or where such picketing involves the violation of a law, the constitutionality of which has been sustained by the Supreme Court of the United States.

Under the above facts, the trial court properly granted a temporary injunction restraining defendant union from picketing Person’s place of business.

Appellant the Borden Company’s contention that the trial court abused its discretion in failing to grant a temporary injunction restraining the picketing and threats of picketing of its customers in Harris County, cannot be sustained.

The trial court, in his conclusions of law, held that the relief sought by the Borden Company should be denied because its customers, whose places of business it sought to enjoin defendant union from picketing, were not made parties to the suit, nor were they, with the exception of Sam Person, in whose favor an injunction was granted, specifically named in either the pleadings or the evidence, and that an injunction, if granted, in the terms sought, would be so vague and indefinite as to result in confusion for lack of proper description of the customers defendant union was enjoined from picketing.

The sole question presented in this phase of the appeal is whether the court abused its discretion in refusing the writ sought. The law is well settled that the granting or refusing of a temporary injunction is within the sound discretion of the trial court,' and is not reviewable upon appeal unless it clearly appears from the record that there has been an abuse of such sound discretion. Harris County et al. v. Sam Bassett, Tex.Civ.App., 139 S.W.2d 180; Frels v. Consolidated Theaters, Tex.Civ.App., 134 S.W.2d 369; Renfro v. Sperry, Tex.Civ.App., 134 S.W.2d 438, 439.

It is also well settled law in this state that a judgment granting an injunction should be so specific in describing the acts restrained as to leave nothing for further hearing and decision. Fort Worth Acid Works v. City of Fort Worth, Tex.Civ.App., 248 S.W. 822, affirmed Tex.Com.App., 259 S.W. 919.

The trial court in his conclusions of law held, in effect, that neither the pleadings nor the evidence were sufficient to support the issuance of the injunction sought by the Borden Company, in that an injunction in such broad terms, without naming the persons or firms in whose favor it was granted, would be confusing and misleading for lack of description of the parties defendants were enjoined from picketing, to such an extent that the parties enjoined could not understand the extent of the injunction granted or the effect thereof, and would in all probability be deprived of the enjoyment of lawful rights in addition to those which were restrained.

Consideration of the record convinces us that the trial court did not abuse his judicial discretion in denying the temporary injunction sought in the instant case.

It follows from above conclusions that the judgment of the trial court must be in all things affirmed. It is so ordered.

Affirmed.

CODY, J., dissenting.