Weyerhaeuser Timber Co. v. Everett District Council of Lumber & Sawmill Workers

119 P.2d 643, 11 Wash. 2d 503

• Court: Washington Supreme Court
• Decided: December 4, 1941
• Docket: No. 28348.
• Status: Published

Opinions

¹ Reported in 119 P.2d 643. Plaintiff brought this action for an injunction to restrain defendants from picketing three of its plants at Everett. The defendants are Everett District Council of the Lumber Sawmill Workers, J.W. Whitley, its president, D.F. Pearson, its secretary and business agent, and various local unions and their officers. These unions are all chartered by the United Brotherhood of Carpenters and Joiners of America, an affiliate of the American Federation of Labor. The local union directly involved in the controversy is Lumber Sawmill Workers Union, Local No. 2653.

In 1937, the latter entered into a working agreement with the plaintiff, which covered the three plants around which this controversy revolves. The defendant Local 2653 gave notice of termination of that agreement on April 15, 1939. Subsequently, there was sporadic picketing of plaintiff's plants, which was discontinued about the middle of September, 1940.

Under date of October 25, 1940, defendant Everett District Council made demand upon the plaintiff for "a seventy cent (70c) per hour minimum wage and a week's vacation with pay, with a corresponding increase for all bracket men." On October 24th, a strike had been called for October 29th unless, in the meantime, their demands were met. At that time, not more than twelve members of Local 2653 were working in plaintiff's mills at Everett. Aside from officers and supervisory employees, the plaintiff was then employing 1,277 men, 858 of whom had joined the Industrial Woodworkers of America, which is chartered by the Committee for Industrial Organization. At about the same time, a majority of its employees in the Everett mills having designated Industrial Woodworkers of America as their bargaining agent, plaintiff entered into a working agreement with that organization. Learning that such an agreement was contemplated, Local 2653, on October 17th, informed plaintiff as follows:

"We, at this time, wish to notify you that we protest any claim by the I.W. of A. to represent a majority of your employees, and we also protest the making of any agreement between your company and that organization."

At or about the time the agreement between plaintiff and the Industrial Woodworkers of America was entered into, Local 2653 called a strike and, on October 29th, threw a picket line around two of the plants. On that day and until a temporary restraining order was issued in this action, several hundred pickets were in line. There were threats, but no acts of violence were perpetrated.

Upon the hearing for an injunction pendente lite, the court entered an order by which defendants were

". . . enjoined, restrained and prohibited from picketing any of the mills or premises of the plaintiff in or immediately north of the City of Everett, Snohomish County, Washington, in any manner other than by maintaining not more than five pickets or persons at or near the main entrance to plaintiff's mills `B' and `C' immediately north of said City of Everett to, in a peaceable and orderly manner, advise the public or persons entering said premises of the existence of, or facts concerning, a labor dispute or strike at said mills; and . . . enjoined, restrained and prohibited from in any manner whatever interfering with, molesting, hindering, delaying, obstructing or preventing any persons whomsoever, whether employees of the plaintiff, or customers thereof, or otherwise, from entering or leaving any part of plaintiff's aforesaid premises at any time, in any manner, or for any purpose; . . ."

The final decree was similar in terms and to the same effect, except in one particular:

"Provided that the said defendants be and they are hereby permitted to use a boat displaying a banner with the legend `Weyerhaeuser Timber Co. Mills B and C are unfair to organized labor — We are on strike for more money — Lumber Sawmill Workers, A.F. of L.' and to use said boat for the purpose of publicizing the true facts of any dispute between the parties by patrolling in the Snohomish River and in Puget Sound, but at least one-quarter of a mile distant from any dock, wharf or booming grounds of the plaintiff; . . ."

From this decree, plaintiff appeals.

Appellant contends that the injunction should have been broader in scope — restraining picketing of any kind. It bases this contention on two theories: First, that the provisions of the Laws of 1933, Ex. Ses., chapter 7, p. 10 (Rem. Rev. Stat. (Sup.) § 7612-1 [P.C. § 3467-21] et seq.), the anti-injunction act, are inapplicable because (a) no labor dispute existed between it and its employees, and (b) the picketing, in its inception, was accompanied by violence; second, that, having, in compliance with the national labor relations act, 29 U.S.C.A. (Sup.), §§ 157, 158 (5), recognized and entered into a working agreement with the Industrial Woodworkers of America, the bargaining agency chosen by a majority of the employees, appellant cannot be subjected to picketing by a minority of its employees.

[1] First. (a) Contending that no labor dispute existed, appellant relies upon our decisions in Safeway Stores v. RetailClerks' Union, 184 Wn. 322, 51 P.2d 372; Fornili v. AutoMechanics' Union, etc., 200 Wn. 283, 93 P.2d 422; andShively v. Garage Employees Local Union No. 44, 6 Wn.2d 560,108 P.2d 354. In those decisions, the court held that a labor dispute does not exist unless there is a master and servant relationship between the strikers and the proprietor of the struck shop. Obviously, the decisions have no application here, for such employer-employee relationship did exist between appellant and its employees who were members of Local 2653. The fact that they constituted a small minority made their controversy with appellant none the less a labor dispute.American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 66 L.Ed. 189, 42 S.Ct. 72; Fur WorkersUnion, Local No. 72 v. Fur Workers Union, 105 F.2d 1.

[2] (b) Contending that the restriction on the power to grant injunctions imposed by Rem. Rev. Stat. (Sup.), § 7612-13 [P.C. § 3467-33], is not applicable when picketing is accompanied by violence, appellant cites the recent case of Milk Wagon DriversUnion v. Meadowmoor Dairies, 312 U.S. 287, 85 L.Ed. 836,61 S.Ct. 552.

That case is clearly distinguishable from this. The injunction granted by the district court in that case was sustained because of continuing acts of violence resulting in injury to persons and damage to property. Even so, the court there said:

"The injunction which we sustain is `permanent' only for the temporary period for which it may last. It is justified only by the violence that induced it and only so long as it counteracts a continuing intimidation. Familiar equity procedure assures opportunity for modifying or vacating an injunction when its continuance is no longer warranted. Here again, the state courtshave not the last say. They must act in subordination to the dutyof this Court to enforce constitutional liberties even whendenied through spurious findings of fact in a state court." (Italics ours.)

In this case, there was no damage or destruction of property nor assault upon persons. There was, of course, not only the threat of violence inherent in mass picketing, but also actual threats of violence, which would, no doubt, have been carried into action but for the submission of the persons to whom they were addressed. But we do not think that respondents, for that reason, forfeited their now well-established right of peaceful picketing. O'Neil v. Building Service Employees Union, 9 Wn.2d 507, 115 P.2d 662; Edwards v. Teamsters Local Union No.313, 8 Wn.2d 492, 113 P.2d 28; Thornhill v. Alabama, 310 U.S. 88,84 L.Ed. 1093, 60 S.Ct. 736; Carlson v. California, 310 U.S. 106,84 L.Ed. 1104, 60 S.Ct. 746; American Federation of Labor v.Swing, 312 U.S. 321, 85 L.Ed. 855, 61 S.Ct. 568. Indeed, the supreme court of the United States upheld the right of peaceful picketing in American Steel Foundries v. Tri-City Council,supra, notwithstanding the dispute had its inception in mass picketing accompanied by force and violence. The late Chief Justice Taft, speaking for the court, said:

"A restraining order against picketing will advise earnest advocates of labor's cause that the law does not look with favor on an enforced discussion of the merits of the issue between individuals who wish to work, and groups of those who do not, under conditions which subject the individuals who wish to work to a severe test of their nerve and physical strength and courage. But while this is so, we must have every regard to thecongressional intention manifested in the act and to theprinciple of existing law which it declared, that ex-employeesand others properly acting with them shall have an opportunity,so far as is consistent with peace and law to observe who arestill working for the employer, to communicate with them and topersuade them to join the ranks of his opponents in a lawfuleconomic struggle. Regarding as primary the rights of the employees to work for whom they will, and, undisturbed by annoying importunity or intimidation of numbers, to go freely to and from their place of labor, and keeping in mind the right of the employer incident to his property and business to free access of such employees, what can be done to reconcile the conflicting interests?

"Each case must turn on its own circumstances. It is a case for the flexible remedial power of a court of equity which may try one mode of restraint, and if it fails or proves to be too drastic, may change it. We think that the strikers and their sympathizers engaged in the economic struggle should be limited to one representative for each point of ingress and egress in the plant or place of business. . . ." (Italics ours.) [3] Second. Appellant takes the position that, since, in conformity with the national labor relations act (29 U.S.C.A. (Sup.), § 151 et seq.), it has entered into an agreement with the bargaining agent (Industrial Woodworkers of America) chosen by a majority of its employees, it is immune to picketing by a minority group.

One of the "unfair labor practices" defined by the act is refusal of the employer to "bargain collectively with the representatives of his employees, . . ." 29 U.S.C.A. (Sup.), § 158(5). There are a number of cases in which this section of the act has been applied in accordance with its literal terms.National Labor Relations Board v. Piqua Munising Wood ProductsCo., 109 F.2d 552; National Labor Relations Board v.Louisville Refining Co., 102 F.2d 678; National LaborRelations Board v. Dahlstrom Metallic Door Co., 112 F.2d 756;Standard Lime Stone Co. v. National Labor Relations Board,97 F.2d 531.

Appellant argues that, a working agreement having been entered into between it and the chosen representatives of a majority of its employees, any conduct of a minority group which tends to interfere with such agreement must be held to be unlawful. The argument, in other words, is that, since appellant was bound under § 158 (5) of the act to bargain with the Industrial Woodworkers of America or take the risk of being charged with "unfair labor practices," it must necessarily follow that all of its employees are bound by the agreement.

There is much force in the argument. But the act does not expressly so provide. The right to strike, however, is expressly saved in § 163 of the act. And the Federal courts generally hold that, pending certification of a bargaining agency by the National Labor Relations Board, the attendant right of peaceful picketing is in nowise restricted by the act. Lund v. Woodenware WorkersUnion, 19 F. Supp. 607; Blankenship v. Kurfman,96 F.2d 450; Cupples Co. v. American Federation of Labor, 20 F. Supp. 894;Sharp Dohme v. Storage Warehouse Employees Union, etc.,24 F. Supp. 701; Fur Workers Union, Local No. 72 v. Fur WorkersUnion, 105 F.2d 1, supra.

The facts in the above-cited cases are in no essential respect distinguishable from those in the case at bar. The holdings in those cases may be epitomized in a quotation from Black DiamondS.S. Corp. v. National Labor Relations Board, 94 F.2d 875:

"So long as the bargaining agency was doubtful and the election was being held by order of the Board, the parties were left to their relative economic advantages and were without remedies under the act. . . . They struck at a time when the Board was conducting an election. Since the act expressly leaves the right to strike unaffected, any remedies they had were unaffected by continuing on strike."

In Lund v. Woodenware Workers Union, supra, which has been cited with approval in most of the decisions dealing with the question under consideration here, it is said:

"Plaintiff presumably is correct in his position when he avers that, under the terms of the Wagner Act, he cannot bargain collectively with the representatives of the minority, and if he assumes to do so, he may be guilty of unfair labor practice, but the determination of his course in dealing with his employees is nevertheless not for the courts. Whether the particular group that it is alleged constitutes a majority should bargain for all the workers in the various departments of plaintiff's factory, is not under the court's supervision. This court cannot assume the authority granted to the Board, nor is there any showing that the Labor Board will ignore the questions which have arisen concerning the representatives of the employees for collective bargaining in this factory. If the employer is powerless under the act to initiate any proceedings, as plaintiff contends, then of course it would seem that Congress might well remedy that situation. . . .

"The difficulty with the assumption of jurisdiction herein on the theory that plaintiff's case arises under the Wagner Act is due to the very apparent fact that the right that the plaintiff seeks to enforce is not created, either expressly or impliedly, by the federal statute in question, but by this proceeding he seeks to read into the act certain rights on behalf of the employer to proceed in a court of equity which Congress studiously refrained from giving to the employer. The courts cannot create a right that Congress did not see fit to grant. If any relief were granted under the complaint, the court would be legislating in a field where Congress failed to take action.Further, it should be noticed that there is no provision in theWagner Act which makes it illegal for a minority to strike and toseek thereby to obtain sufficient strength so as to become thesole bargaining agency. . . .

". . . The court having determined that under no circumstances can a contract between an employer and his employees be considered a subject matter for a federal court under the Wagner Act, at least in absence of an approval or sanction of thatcontract by the National Labor Relations Board, it mustnecessarily follow that plaintiff's bill of complaint does notpresent a substantial question arising under a federal statute." (Italics ours.)

Appellant cites our own case of Bloedel Donovan Lbr. Mills v.International Woodworkers, 4 Wn.2d 62, 102 P.2d 270, where the court granted an injunction under a state of facts indistinguishable from those in the case at bar except in one particular: another union, Lumber Sawmill Workers Union, Local No. 2667, had been certified by the National Labor Relations Board as the bargaining agent of plaintiff's employees. The holding in that case is not only in harmony with the above-cited Federal cases, but also with the case of Oberman Co. v. UnitedGarment Workers, 21 F. Supp. 20, where, in a like situation, the same conclusion was reached.

We think the injunction issued in this case is as broad as the court was warranted in granting in the light of the cited decisions of this court, of the supreme court of the United States, and of the Federal courts. The decree will, therefore, be affirmed.

MAIN and DRIVER, JJ., concur.