Steiner v. Long Beach Local No. 128

123 P.2d 20, 19 Cal. 2d 676, 1942 Cal. LEXIS 402, 10 L.R.R.M. (BNA) 393

Opinions

EDMONDS, J. —

Upon a complaint charging that officers and members of a labor union had entered into a conspiracy to picket the refinery of the Elm Oil Company and that they were conducting both picketing and boycotting by means of false representations and with acts of violence, a preliminary injunction issued. By that order, the superior court enjoined the union and its agents from picketing or boycotting by means of force, violence or intimidation. Upon a trial the injunction was made permanent and its terms were broadened to prohibit all. picketing and boycotting. Damages in the sum of $2,500 were also awarded. The appeal is from that judgment.

The controversy between the parties arose over the demand made upon the owners of the refinery to sign a closed shop contract with a labor union, and the question for decision concerns the right of an employer to injunctive relief when picketing goes beyond the bounds of peaceful persuasion. More specifically, the court is called upon to determine whether or not all picketing and boycotting may be enjoined when an employer shows that those acting in behalf of the union have used violence, physical intimidation and other means of illegal coercion in the endeavor to attain their purpose.

The respondents, as partners, own and operate a business in the city of Long Beach. Under the firm name of Elm Oil Company they refine crude petroleum oil and sell the products obtained therefrom. The appellants are Long Beach Local No. 128 of the Oil Workers International Union, its officers and some of its members. The union is an affiliate of the Congress of Industrial Organizations.

By their complaint, the respondents alleged that the appellants entered into a conspiracy to injure and damage their business by picketing the premises; that no labor dispute existed between them and their employees, but on the contrary, the latter were entirely satisfied with respect to hours of labor, working conditions, wages, and all other matters connected with their employment; that their employees were not members of the C.I.O. union, were not desirous of becoming members thereof, and had expressed their desire to continue work under terms of their own choosing without the assistance of or interference from any labor organization; that the appellants, for the purpose of unionizing the respondents’ business and to force their employees to join the union, caused pickets to be stationed about the premises; and that such picketing was conducted by means of violence, threats, intimidation, coercion, menacing conduct, and false representations. These asserted acts of unlawful conduct were set forth with particularity.

Further allegations of the complaint were that the respondents had valuable contracts with others for the purchase of crude oil; that by means of violence and threats, the appellants intimidated such persons from continuing to do business with them; and that by reason of the appellants’ conspiracy and acts in pursuance thereof, they have suffered injury and damage to their business. The prayer was for a decree enjoining the appellants from in any manner picketing their place of business, or from in any manner interfering with their business, the business of persons dealing with them, or with their employees. In addition, damages in the sum of $25,000 were sought. Upon this complaint, a preliminary injunction issued limiting the number of pickets to be stationed about the plant during the pendency of the suit and enjoining the appellants from picketing or boycotting by means of force, violence, or intimidation.

By way of answer to the complaint, the appellants admitted the picketing of the respondents’ place of business but denied the allegations of violence, threats and intimidation, asserting that the picketing was at all times carried on in a peaceful manner. As an affirmative defense they alleged that the partners had refused to negotiate with them and by means of threats and promises of favor, had forced their employees into stating that they were satisfied with their working conditions; that the working conditions in the respondents’ plant with respect to wages and hours were less favorable to the employees than those which obtained in plants employing union labor, and had a tendency to break down and destroy advantages which had been established by the union; and that by reason of the respondents ’ acts, the appellants caused a picket line to be placed around their premises for the purpose of informing the public generally, and the persons connected with the industry, that Elm Oil Company was unfair to organized labor.

Upon the issues so framed, the case went to trial and the court made findings in substantial accordance with the allegations of the complaint. These findings, in the main, are based upon uncontradieted evidence which shows the following facts: Following the refusal of the respondents and their employees to negotiate with the union concerning a closed shop contract, a picket line was placed in front of the oil plant. At the outset, there were forty to fifty pickets. The number was then reduced, but until the date of the termination of the trial there were pickets on duty about the premises for twenty-four hours a day. At all times, the picketing was conducted under the supervision of the appellants Forrester and Coulter, both of whom were officers and representatives of the union.

Upon innumerable occasions, trucks of companies hauling oil for the respondents were followed by pickets in automobiles for long distances. Both Coulter and Forrester participated in this shadowing. Because of these actions, one truck company refused to haul any more oil for the respondents unless they protected the drivers against physical harm. To meet this demand, armed guards were provided.

The respondents’ employees and their wives were followed by pickets, including Forrester. There is testimony that both the men and the wives were greatly frightened and harassed by these actions. At one time, the wife of an employee who had brought her husband’s lunch to him was followed by two pickets in an automobile. The wife of another employee was also followed. This time two men employed by the oil company gave chase. Thereupon, the car containing the pickets stopped, and the appellant Booth, upon being questioned by one of these employees concerning the motive in following the woman, challenged him to a fight. Upon one occasion, Forrester followed an employee to his home after dark and drove back and forth in front of the house, causing the man and his wife great fright and annoyance. Forrester also followed the respondent Kindseth after dark.

During the picketing, those representing the union directed vile, abusive and insulting language at the respondents’ business callers and employees. Threats of physical violence w;ere embodied in some of this language, much of which is too vile to be here stated. At another time, the appellant Coulter approached an employee, who was engaged in gouging trucks at the oil plant, and told him that “in labor trouble people had been hurt, that there had been no violence in the Elm Oil Company case to date, but from that day on, he, J. C. Coulter, was not giving Brown any further protection.”

Several trespasses were committed by pickets upon the property of the respondents. When a customer of the oil plant drove his ear on to the premises, two of the pickets rushed at him and “grabbed at” him, and the appellant Benton threatened him with bodily harm. Upon another occasion, pickets blocked the driveways of the premises so as to prevent a truck belonging to one of the respondents’ business visitors from leaving the plant. Another picket paraded in front of the premises carrying a pole on the end of which was a piece of cheese. Pickets threw rocks at the premises, hitting cars, tanks and trucks. At times, the pickets falsely represented to business callers that a strike was in progress at the plant. Moreover, the following of employees and customers, and the use of threatening and intimidating language toward them, continued after the issuance of the preliminary injunction prohibiting such conduct.

It is now settled law that workmen may lawfully combine to exert various forms of economic pressure upon an employer, provided the object sought to be accomplished thereby has a reasonable relation to the betterment of labor conditions, and they act'peaceably and honestly. (Lisse v. Local Union, 2 Cal. (2d) 312 [41 Pac. (2d) 314]; McKay v. Retail Auto. S. L. Union No. 1067, 16 Cal. (2d) 311 [106 Pac. (2d) 373].) This right is guaranteed by the federal Constitution as an incident of freedom of speech, press and assemblage (Thornhill v. Alabama, 310 U. S. 88 [60 S. Ct. 736, 84 L. Ed. 1093]; Carlson v. California, 310 U. S. 106 [60 S. Ct. 746, 84 L. Ed. 1104]), audit is not dependent upon the existence of a labor controversy between the employer and his employee. (McKay v. Retail Auto. S. L. Union No. 1067, supra; C. S. Smith Met. Market Co. v. Lyons, 16 Cal. (2d) 389 [106 Pac. (2d) 414]; Americam Federation of Labor v. Swing, 312 U. S. 321 [61 S. Ct. 568, 85 L. Ed. 855].)

But the constitutional guarantee of freedom of speech extends no further than to confer upon workmen the right to publicize the facts of an industrial controversy by peaceful and truthful means. Labor has no sanctuary in any federal right when it departs from the bounds of peaceful persuasion and resorts to acts of violence, physical intimidation, or false statement. Under such circumstances, picketing loses its character as an appeal to reason and becomes a weapon of illegal coercion.

These principles both authorize and require courts to enjoin acts of violence or acts which amount to physical intimidation. (Lisse v. Local Union, supra; McKay v. Retail Auto. S. L. Union No. 1067, supra.) Furthermore, the inherent power of a court of equity to grant injunctive relief is not limited to the imposition of a restraint against the violent and unlawful conduct, but may, under given conditions, be exercised to enjoin future picketing in any form. Prior picketing interwoven with continuous acts of violence and physical intimidation may create such fear and hostile attitude in the public, and in those persons desirous of business relations with the employer, that future picketing, even though conducted peaceably, would probably, if not necessarily, be regarded as sinister in purpose. The ban of the injunction against the illegal conduct would not be a sufficient remedy, under such circumstances, because acts otherwise peaceful would have a coercive influence when done with a background of violence. Accordingly, where past picketing has become so irrevocably blended with acts of violence, physical intimidation or other unlawful conduct as to give rise to a justifiable belief that future picketing is likely to result in a continuance of the illegal acts, an injunction restraining a labor organization from any and all picketing lies within the equitable power of the court and does not constitute an infringement of the right of free speech.

This is the rule which was very recently stated and applied in Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U. S. 287 [61 S. Ct. 552, 85 L. Ed. 836, 132 A. L. R. 1200], where the United States Supreme Court upheld the right of a state court to enjoin acts of picketing in themselves peaceful, when they were enmeshed with accompanying violent conduct which was unlawful. In that case the court declared: “It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guarantee of free speech was given a generous scope. 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. . . . And acts which in isolation are peaceful may be part of a coercive thrust when entangled with acts of violence. ... In such a setting it could justifiably be concluded that the momentum of fear generated by past violence would survive even though future picketing might be wholly peaceful. . . . Nor can we say that it was written into the Fourteenth Amendment that a state through its courts cannot base protection against future coercion on an inference of the continuing threat of past misconduct.”

The Meadowmoor case does not stand alone, nor are the principles upon which it was decided of recent origin. Many

other jurisdictions have authorized an injunction against all picketing where labor’s acts have been so entangled with violence and other illegal conduct that future excesses might reasonably be anticipated in the light of what was done before. (Vaughan v. Kansas City Moving Picture Operators’ Union, 36 Fed. (2d) 78; Levy & Devaney v. International Pocketbook Workers’ Union, 114 Conn. 319 [158 Atl. 795]; Joe Dan Market v. Wentz, 223 Mo. App. 772 [20 S. W. (2d) 567]; Keuffel & Esser v. International Assoc. of Machinists, 93 N. J. Eq. 429 [116 Atl. 9]; Exchange Bakery & Restaurant v. Rifkin, 245 N. Y. 260 [157 N. E. 130]; Nann v. Raimist, 255 N. Y. 307 [174 N. E. 690]; Steinkritz Amusement Corp. v. Kaplan, 257 N. Y. 294 [178 N. E. 11]; Busch Jewelry Co. v. United Retail Employees’ Union, 281 N. Y. 150 [22 N. E. (2d) 320 124 A. L. R. 744]; Am. Law Inst. Restatement, Torts, vol. 4, sec. 816; see cases collected in 132 A. L. R. 1218.) The rule is particularly applicable where violent picketing is continued in defiance of a preliminary injunction restraining the defendants from resorting to violence or physical intimidation. Under such circumstances, the probability of a recurrence of the unlawful conduct is great, and the violators should be allowed no further opportunity for wrongful conduct under the protection of a judgment given upon terms which have been preAdously ignored. (Nann v. Raimist, supra; R. A. Freed & Co. v. Doe, 283 N. Y. Supp. 186.)

It is true that an injunction prohibiting all picketing may not be based upon isolated and episodic acts of violence or other unlawful conduct. An injunction issues only to protect against future irremedial harm, and where the picketing has been in general lawful but has been accompanied by infrequent illegal acts not of a serious character, only the unlawful conduct Avill be enjoined. Disassociated acts of past misconduct do not evidence an illegal intention and purpose on the part of labor, nor do they so stigmatize its conduct as to warrant a sweeping restraint against future picketing upon the ground that a recurrence of the illegal acts is likely despite a prohibition against the unlawful conduct. As stated in Milk Wagon Drivers Union v. Meadowmoor Dairies, supra, “. . . the right of free speech cannot be denied by drawing from a trivial rough incident or a moment of animal exuberance the conclusion that other-wise peaceful picketing has the taint of force.”

Applying these principles to the facts of the present case, the injunction of the trial court must be upheld insofar as it prohibits picketing about the premises of the respondents and their customers. There is ample support for the findings concerning a series of acts which go far beyond what may reasonably be termed peaceful picketing. The use of vile and abusive language and threats of violence amounts to physical intimidation which may not be justified under any principles governing the rights of persons engaged in labor disputes. The following of the respondents’ business callers and employees and the wives of employees is in the same category. Implicit in such shadowing is a threat of physical violence. The futility of a ban against this unlawful conduct alone is demonstrated, not only by its continuity, but also by the fact that it was conducted in the face of a preliminary injunction.

The appellants refer to these acts as the - isolated acts of pickets unauthorized by the union and therefore not binding upon it. To call such acts isolated is to close one’s eyes to the proved facts of the ease. True, acts of actual physical assault and damage were rare. But threatened violence was common, for the conduct of the union representatives in following business callers and employees, and in resorting to vile language and threats, was continuing, uninterrupted and thoroughly enmeshed with the picketing carried on by them.

The appellants challenge, as prejudicial error, the refusal of the trial court to receive evidence that the union’s officers instructed its pickets to refrain from violence or intimidation of any character. However, the uncontroverted evidence shows that the picketing was conducted under the direction of Forrester and Coulter, who, it is asserted gave these instructions. Much of the violence and disorderly conduct was committed during their presence at the oil company’s plant and with their tacit approval. Also, according to their own testimony, they participated in the shadowing of employees and customers. ■

Under the well-settled rule that it is not reversible error to exclude evidence which could not affect the decision upon a material fact (2 Cal. Jur. 1022), the appellants may not successfully challenge the refusal of the trial court to hear evidence of instructions which would not exonerate them from responsibility. Certainly instructions violated by the officers who issued them are no shelter to the union. The entire picketing plan was planned and carried out by the union, and it is responsible for the acts of its pickets committed within the scope of their agency and with the sanction of its officers. As the court declared in Milk Wagon Drivers Union v. Meadowmoor Dairies, supra, . . It is true of a union as of an employer that it may be responsible for acts which it has not expressly authorized or which might not be attributable to it on strict application of the rules of respondeat superior.”

The appellants seek to avoid the application of the rule announced in the Meadowmoor case upon the ground that the decision was made upon evidence showing the use of extreme physical violence of a most brutal nature, resulting in serious personal injuries and property damage to the picketed employers, their employees and the public. However, insofar as the propriety of an injunction prohibiting all picketing is concerned, no logical distinction may be drawn between picketing enmeshed with actual violence and picketing carried on with threatened violence and physical intimidation. If past picketing is entangled with violent threats and physical intimidation, future misconduct on the part of the pickets and justifiable apprehension of physical harm on the part of the employers, employees, and the public, may be as reasonably anticipated as in cases of actual physical violence. If the unlawful threats and intimidation are sufficiently continuous and extensive, the prohibition of the unlawful conduct only will not serve to remove the coercive effect of the picketing. Since the acts committed by the appellants were not isolated but formed a chain of physical intimidation characterizing the whole picketing as illegal, the trial court was entirely justified in issuing the broad and comprehensive restraint.

Many of the cited cases in which an injunction against all picketing was upheld were decided upon facts which did not include any evidence of extreme physical violence. In Busch Jewelry Co. v. United Retail Employees’ Union, etc., supra, cited with approval in the Meadowmoor case, pickets blocked the entrances to retail stores and by such action prevented customers from entering; they intimidated employees by threats of personal violence and coercion; they used loud and obscene language and made false and fraudulent statements; by violence and threats they prevented customers from paying their bills; they picketed the homes of employees and customers ; and they conducted snake dances in front of the picketed stores. As in the present case, however, there were only isolated instances of actual physical violence. In affirming a decree of the trial court enjoining the defendants from picketing the stores, the Court of Appeals declared: . . If a trial court can ever grant an injunction against continuing picketing where the picketing has been carried on with violence and will be in the future, this is such a case.”

In Levy & Devaney v. International Pocketbook Workers’ Union, supra, a labor organization sought to induce the unionization of a factory by picketing. Employees were followed to and from their work on various occasions, but there were no acts of physical violence. A judgment restraining all picketing was affirmed with the declaration: “When picketing is so unlawful as to indicate "that the defendant does not intend to use his rights in a lawful manner, a court may reasonably expect that such unlawful conduct will continue, in the absence of an injunction, and in such ease it is within the discretion of the trial court to enjoin further picketing altogether.”

Another case of the same character is Joe Dan Market v. Wentz, supra. The plaintiffs, owners of a retail grocery store and butcher shop, sought to enjoin the picketing of their place of business. Pickets walked to and fro in front of the premises so close to the entrance as to interfere with the ingress and egress of patrons; they used abusive language towards customers; their conduct was so boisterous that large crowds gathered; on several occasions the pickets were intoxicated and followed patrons who had left the store; and several persons desiring to trade in the store were accosted. In addition, a few assaults were committed. Rejecting the defendants’ contention that the decree of the trial court was too broad in restraining lawful as well as unlawful picketing, the court held: “The picketing conducted by defendants consisted of one continuous transaction, involving unlawful acts on the part of defendants, and showing, by a systematic course of conduct and concerted action, their intention to accomplish their purpose by unlawful means. In such case equity will do complete justice by enjoining the whole of the unlawful proceeding. Picketing conducted as this was, accompanied by intimidation, threats, violence, and coercion, soon becomes current in the neighborhood, so that a continuation of the picketing, even though conducted peaceably, would probably, if not necessarily, result in intimidation.”

In support of their position that under the evidence which has been stated, only unlawful conduct may be enjoined, the appellants cite Pierce v. Stablemen’s Union, 156 Cal. 70 [103 Pac. 324]; Southern California Iron & Steel Co. v. Amalgamated Association, 186 Cal. 604 [200 Pac. 1], and Lisse v. Local Union, supra. But in those cases, the court was not called upon to determine whether acts, which are otherwise peaceful, may be enjoined when picketing has been carried on with a background of violence, and they are not controlling in a determination of the rights of the parties to the present suit.

However, the injunction from which the present appeal was taken must be modified insofar as it prohibits acts which may be done peacefully without picketing. The conduct of the appellants in the vicinity of the Elm Oil Company’s plant and in connection with the boycotting of firms with whom the respondents have business relations justified the trial court in concluding that future activities of that character would continue to be carried on with the coercion of physical intimidation or violence. But peaceable discussion away from the situs of former violence may not be enjoined.

The remaining question for decision concerns the award of $2,500 damages. It is the position of the appellants that as the respondents failed to prove any actual damage, they were entitled to nominal damages only. On the other hand, the respondents urge that general damages may be awarded upon a showing of unlawful interference with their business, and that the elements constituting such damage need not be proved. Admittedly, no physical injury was done to the respondents, nor did they show any loss of profits, but they demanded damages upon the theory that the appellants had wrongfully interfered with their right to carry on a lawful business. The trial court gave judgment accordingly.

Generally speaking, the principle underlying the right to damages for injury is that the person injured is entitled to compensation commensurate with his loss. It is not sufficient to prove the infringement of a legal right; to recover more than merely nominal damages, the injured person must prove the amount or items of the damage suffered by him. As stated in 25 C. J. S. 788, “. . . A presumption of at least nominal damage follows from proof of a legal wrong. However, the amount and items of pecuniary damage are not presumed, but must be proved; and if there is no evidence as to the extent of the pecuniary loss there can be no recovery of substantial damages, at least where the elements of damage are such as to be susceptible of pecuniary admeasurement. ’ ’ The rule is applicable to a tortious interference with a business. (Hammer v. Baum, 136 Misc. 490 [240 N. Y. Supp. 145]; St. Germain v. Bakery & Confec. Workers Union, 97 Wash. 282 [166 Pac. 665, L. R. A. 1917 F, 824].) Where an established business is wrongfully interrupted and injured, the proper measure of damages is the diminution in value of the business traceable to the wrongful act, as reflected by loss of profits, expenses incurred or similar concrete evidences of injury. (Lambert v. Haskell, 80 Cal. 611 [22 Pac. 327]; Barnes v. Berendes, 139 Cal. 32 [69 Pac. 491, 72 Pac. 406]; Berry Foundry Company v. International Moulders Union, 177 Mo. App. 84 [164 S. W. 245].)

The appellants seek to invoke the rule as to measure of damage in nuisance cases in which damages are allowable without any showing of exact pecuniary loss. In those eases, however, the principal damage suffered consists of injuries to the senses, physical discomfort, and personal annoyance, all of which is incapable of mathematical ascertainment. But the gravamen of the present action, insofar as the right to damages is concerned, is not an invasion of personal security but an interference with business, the damage to which is susceptible of precise computation. The damage resulting from such unlawful interference cannot be divorced from tangible injury to property and loss of profits. Personal discomfort and annoyance are not compensable elements of damage in such a ease.

That part of the judgment which enjoins the appellants from doing certain acts is modified by striking therefrom the provisions “(d) Inducing any one to refrain from selling crude petroleum oil to plaintiffs” and “(e) Interfering in the contractual relations between plaintiffs and their employees”; as so modified it is affirmed. The judgment, insofar as it awards damages, is reversed for a new trial upon that issue. Costs on appeal shall be borne by the respective parties.

Shenk, J., Curtis, J., and Houser, J., concurred.