Sherman v. State

626 S.W.2d 520, 1981 Tex. Crim. App. LEXIS 1229
CourtCourt of Criminal Appeals of Texas
DecidedNovember 4, 1981
Docket63286
StatusPublished
Cited by20 cases

This text of 626 S.W.2d 520 (Sherman v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sherman v. State, 626 S.W.2d 520, 1981 Tex. Crim. App. LEXIS 1229 (Tex. 1981).

Opinions

OPINION

ROBERTS, Judge.

The appellant entered a plea of not guilty before a jury to the offense of mass picketing under V.A.C.S., Art. 5154d, Sec. 1(2). He was convicted and the jury assessed his punishment at a fine of $25.00, probated.1

The complaint and information charged that the appellant:

“... did, then and there unlawfully knowingly and intentionally engage in mass picketing, to-wit: the said Herman Wayne Sherman, did then and there knowingly and intentionally by his person constitute an obstacle to the free ingress to and egress from the entrance to premises then being picketed, to-wit: Buddy Schoellkopt Products, by obstructing said free ingress and egress by his person; against the. peace and dignity of the State.”

Article 5154d, V.A.C.S., makes it unlaw- ■ ful for any person to engage in mass picket[522]*522ing when, in the language of Section 1, subdiv. 2, of said statute:

“2. Pickets constitute or form any character of obstacle to the free ingress to and egress from any entrance to any premises being picketed or to any other premises, either by obstructing said free ingress or egress by their persons or by the placing of vehicles or other physical obstructions.”

One convicted of a violation of the statute is subject to a fine of not less than $25 nor more than $500 or to imprisonment not to exceed 90 days, or both. V.A.C.S., Art. 5154d, Sec. 5.

Buddy Schoellkopt Products, Inc., is a corporation engaged in manufacturing “marine safety equipment and down-filled type hunting clothes,” operating a plant in Tyler which employs about one hundred ten persons. The company also has plants in Dallas and Mineóla, Texas, and one in the State of Alabama. The manager of the Tyler plant, Jeff Keasler, testified that United Rubber Workers Union, Local 746, had become interested in the employees at the Tyler plant, and his company became “engaged in differences” with the Union.

The Union went on strike February 8, 1979, and set up pickets at the entrances to the plant. The appellant testified that he was employed by Kelly Springfield Tire Company in Tyler and was vice-president of Local Union 746, United Rubber Workers, which had about twelve hundred members.

He began walking the picket line at Schoellkopt the day after the strike began and participated in the picketing upon several occasions thereafter. He was walking on the picket line on the street in front of the factory at the time he was arrested.

Lt. Adams of the Tyler Police Department was in charge of a detail of four officers who came to the picket line in two cars accompanied by a “paddy wagon” for use in transporting any persons arrested to the city jail. He said that he told appellant not to obstruct cars leaving the plant but appellant walked slowly in front of at least one car causing it to stop momentarily to avoid striking appellant. Adams immediately ordered appellant’s arrest, and he was taken to the jail in the waiting paddy wagon.

Three other police officers gave similar testimony and we quote verbatim the account of Officer Grage who testified that while appellant was “carrying a picket sign at the entrance to the plant and was walking back and forth picketing the entrance”:

“[He] was walking, what we termed a half step, not taking a full step as he walked through the driveway. And as he walked in front of a vehicle that was exiting the plant, shortened his steps even more coming to a very slow, you know, snail’s pace.”

When Lt. Adams ordered appellant’s arrest, Officer Grage “took the Defendant’s picket sign and marked down [on it] a license number of the vehicle he had obstructed.”

There is no evidence of any act of violence by the appellant or any of the other persons in the vicinity of the picket line and the plant entrance. Indeed, State’s counsel does not contend that there was any violence or threat of violence at the time of the arrest. Nor is there evidence that traffic out of the plant or on the adjacent street was stopped. The driver of the automobile which was required to pause briefly, under the State’s version of the facts, did not testify.

I.

In his sixth ground of error, the appellant contends that the trial court erred in overruling his motion to dismiss for want of jurisdiction. The gist of this contention is that state court jurisdiction over this type of case has been pre-empted by the National Labor Relations Board. We do not agree.

The appellant correctly recognizes the general rule regarding pre-emption of state court jurisdiction in the field of labor relations. As announced in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), that rule is:

[523]*523“When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by Sec. 7 of the National Labor Relations Act [29 U.S.C. Sec. 157], or constitute an unfair labor practice under Sec. 8 [29 U.S.C. Sec. 158], due regard for the federal enactment requires that state jurisdiction must yield. To leave the states free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law.” 359 U.S. at 244, 79 S.Ct. at 779.

A number of civil cases in Texas have given effect to this general rule. See, e.g., Ex parte Twedell, 158 Tex. 214, 309 S.W.2d 834 (1958); Dallas General Drivers, Warehousemen and Helpers, Local 745 v. Central Beverage, Inc., 507 S.W.2d 596 (Tex.Civ.App.—Dallas, 1974, writ ref’d n. r. e.); San Antonio Bldg, and Construction Trades Council v. Warrior Constructors, Inc., 466 S.W.2d 815 (Tex.Civ.App.—San Antonio 1971, no writ); International Ass’n of Machinists and Aerospace Workers v. Stephens, 437 S.W.2d 917 (Tex.Civ.App.—Beaumont 1969, no writ).

However, the recognition of the general rule is only the beginning of our analysis. The United States Supreme Court has recognized a number of exceptions to the Gar-mon rule.

In Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971), the Court recounted the considerations which led Congress to enact the National Labor Relations Act.2 Concerned with the inability of the individual states to stabilize industrial relations, Congress created a general national labor law. In addition, it created the National Labor Relations Board with primary responsibility for the administration and enforcement of a uniform national labor policy.

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Sherman v. State
626 S.W.2d 520 (Court of Criminal Appeals of Texas, 1981)

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Bluebook (online)
626 S.W.2d 520, 1981 Tex. Crim. App. LEXIS 1229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherman-v-state-texcrimapp-1981.