The instant case is fraught with such serious consequences that I am constrained to supplement that which has been written by my Brethren. Basically this appeal discloses reliance by the respective litigants upon asserted but conflicting constitutional rights, and such rights of the one must be construed with due regard to the *Page 502 constitutional rights of the other. This concept is not at all novel. For example, freedom of speech and of the press are guaranteed by the Constitution, but in the exercise of neither of these rights may one with impunity indulge in slander, libel, extortion or unlawful coercion.
Except as otherwise indicated we herein designate the Harper-Mulligan Funeral Home and the three individuals composing that partnership as plaintiffs. These plaintiffs, who have no employees, assert the constitutional right to conduct in a lawful manner their business as funeral directors and embalmers without molestation or restraint by defendants. In Lafayette DramaticProductions, Inc., v. Ferentz, 305 Mich. 193 (145 A.L.R. 1158), we held, as stated in the syllabus:
"The right to enter into and conduct a legitimate business for profit has been and still is, except in time of war, a fundamental concept under the American doctrine of free enterprise."
And in Baldwin v. Escanaba Liquor Dealers' Association,165 Mich. 98, 113, it is stated:
"`A person's occupation or calling, by means of which he earns a livelihood and endeavors to better his condition, and to provide for and support himself and those dependent upon him, is property within the meaning of the law, and entitled to protection as such.'"
For reasons disclosed in the opinions of my Brothers, defendants for a time picketed and now assert the right to picket plaintiffs' place of business. Defendants contend that, since such picketing is peaceable, it is a lawful exercise of their constitutional right of free speech, notwithstanding it will prevent plaintiffs from carrying on their business. Thus in the asserted lawful exercise of their claimed *Page 503 respective constitutional rights, these litigants have come into conflict. But their asserted rights are relative rights, and determination of defendants' right to picket must be made in the light of the facts of this particular case, as should be done in all controversies of this type. Baldwin v. Escanaba LiquorDealers' Association, supra, 111; Roy v. Chevrolet Motor CarCo., 262 Mich. 663.
Peaceable picketing incident to a legitimate labor objective is lawful. Book Tower Garage, Inc., v. Local No. 415,International Union, U.A.W.A. (C.I.O.), 295 Mich. 580. Otherwise it is not lawful. Silkworth v. Local No. 575 of the AmericanFederation of Labor, 309 Mich. 746. It was there said:
"While recognizing the right to picket peacefully for the purpose of publicizing the facts of a labor dispute, as established by the above authorities, we also recognize that such picketing may become unlawful if directed to the accomplishment of an unlawful purpose. In Lafayette Dramatic Productions,Inc., v. Ferentz, supra, we said (p. 208): `If the object sought to be obtained by defendants was not a lawful labor objective, the court would be justified in exercising control of their acts.'"
It therefore becomes essential to determination of the instant case whether under this record there appears a legitimate labor objective in justification of picketing by the defendants' union or its officers. Broadly, but fairly accurately, it may be stated that to justify picketing a place of business the proprietor thereof or his employees must be involved in a legitimate labor dispute concerning wages, hours, safety, health, right of collective bargaining or some condition of employment for the protection of labor from abuses. See Lafayette DramaticProductions, Inc., v. Ferentz, supra. In a decision of the New York court it was said: *Page 504
"This complaint (seeking injunctive relief), therefore, is sufficient as such, unless the purpose of the defendant-union must be presumed to be a lawful labor objective, — an activity having some reasonable connection with wages, hours, health, safety, the right of collective bargaining or some other condition of employment." American Guild of Musical Artists,Inc., v. Petrillo, 286 N.Y. 226 (36 N.E. [2d] 123).
Careful review of this record brings the conclusion that there was no controversy whatever between these litigants amounting to or involving a lawful labor objective. Plaintiffs had no regular employees and there was no controversy between plaintiffs and any persons in their employ. Nor is there any showing of injurious business competition between plaintiffs and other funeral directors or embalmers or others who are members of defendants' union. It necessarily follows that no lawful labor objective is sought to be accomplished by picketing plaintiffs' place of business. Instead, the sole purpose sought to be accomplished by such picketing is to coerce plaintiffs into signing or continuing a contract in consequence of which plaintiffs would become or continue as members of the defendants' union and be obligated to pay dues of $2 per month. That alone is not, under the circumstances of this case, a lawful labor objective. Plaintiffs' nonmembership does not, in so far as disclosed by this record, adversely affect the rights of any group represented by defendants; or at least any such adverse result is inconsequential as compared with plaintiffs' right to pursue unmolestedly their lawful occupation. It is important to note that the controversy between these parties did not arise from plaintiffs' refusal to enter into a contract with defendants to maintain a "closed shop;" but instead *Page 505 defendants insist that plaintiffs should become or continue to be dues-paying members of defendant union. In defendants' brief it is stated that when in January, 1944, Mr. Hoffa, a representative of the union, interviewed Mr. Mulligan: "Mr. Mulligan told him (Hoffa) that he had been advised not to pay these dues. Hoffa then told him that he either had to pay his dues or they would use legal means to compel such payment."
Since plaintiffs had no regular employees we cannot agree with defendants' contention: "that a `unity of interest' exists in all of these companies and individuals (affiliated with defendant union) in the funeral service field;" at least not such a "unity of interest" as brings plaintiffs within the legitimate field of labor organization. Such lack of unity clearly appears from the undisputed fact that plaintiffs are not operators or drivers of funeral conveyances nor are they in the business of merchandising caskets, vaults, or flowers. In fact, these plaintiffs seek in this case, as above stated, to have defendants enjoined from preventing plaintiffs from securing from defendants' affiliated members such service and merchandise. But defendants propose to prevent this unless plaintiffs become or continue as members of the union and obligate themselves to payment of union dues. We do not overlook that when occasion requires plaintiffs employ embalmers. But defendants do not charge plaintiffs with employing on such occasions nonunion embalmers. Instead defendants state in their brief: "They (plaintiffs) employ independent service embalmers from this area, who are affiliated with this union, when they need assistance, and this happens quite frequently." No complaint is made that the employment of such employees by plaintiffs is not in full accord with union standards. As *Page 506 stated above the primary purpose of the picketing in this case is not to establish a closed shop or to protect or improve the interests of labor, but only to compel plaintiffs to pay monthly union dues. If defendants' purpose in this respect is sound and were to be carried to its logical conclusion, the defendant union could lawfully picket the home of any bereaved family in an effort to prevent procurement by such family of needed funeral service except the head of the household joined the union. Even the right of free speech, upon which defendants base their contention, must have some limitation where it impinges upon conflicting rights of equal or greater gravity.
It is indeed an unique aspect of this case that instead of plaintiffs refusing to use the services or merchandise of the various members of defendants' union, plaintiffs herein are seeking to have defendants restrained "from interfering with the free flow of supplies, materials or services to plaintiffs by preventing" the members of its union from furnishing their services or merchandise to plaintiffs. The sole controversy asserted by defendants in justification of picketing is plaintiffs' refusal to pay union dues as a condition of dealing with members of defendant union. It is not shown that the economic interests of the union or any of its affiliates are being invaded or injuriously affected by the conduct of its business by the Harper-Mulligan Funeral Home.
In its legal aspect the present case cannot be distinguished from our recent cases of Lafayette Dramatic Productions, Inc., v. Ferentz, supra, and Silkworth v. Local No. 575 of theAmerican Federation of Labor, supra. In this case defendants seek to compel plaintiffs to sign or continue a contract which, so far as disclosed by this record, does not *Page 507 in any way alter plaintiffs' manner of conducting their business but, as stated above, would merely constitute plaintiffs members of defendants' union and necessitate payment of union dues of $2 per month. No legal labor objective appears. And such was our holding in the Lafayette Case wherein the defendant union sought to compel plaintiff to employ union musicians whose services plaintiff did not need. And similarly in the SilkworthCase, by picketing plaintiffs' place of business the defendant union sought to compel plaintiffs to pay the union the initiation fee for each of plaintiffs' driver employees. In these cases defendants were enjoined because no legal labor objective was involved. In the above-cited Lafayette Case we said:
"Furthermore, defendants may not claim that a bona fide labor dispute is involved when the object they sought to accomplish was an unlawful labor objective. In Dorchy v. Kansas,272 U.S. 306 (47 Sup. Ct. 86, 71 L.Ed. 248), Mr. Justice Brandeis said, p. 311: `A strike may be illegal because of its purpose, however orderly the manner in which it is conducted.'"
In the syllabus of the Lafayette Case it is said: "Peaceful picketing is unlawful when the object is in furtherance of a conspiracy to ruin a legitimate business." It quite conclusively appears in the instant case that except plaintiffs are granted relief their established business will be ruined by the course of action defendants propose to pursue. The over-all organization which defendants have perfected in their union, as outlined in the opinions of my Brothers, is such that plaintiffs, unless granted relief, must either comply with defendants' demands or surrender plaintiffs' right to lawfully pursue the business in which they are engaged and submit to its destruction. The record is replete *Page 508 with convincing testimony of coercive threats. In defendants' brief it is stated: "There was evidence of what might be termed coercive threats by some of the defendants made to the plaintiff Mulligan in January, 1944." And we accept as true the testimony of Mr. Mulligan, the substance of which is quoted in defendants' brief, in the following words:
"He (Mulligan) testified that he was advised that he must either pay his dues by 5 p.m. on January 21, 1944, or the union would put him out of business; that they threatened to form a picket line at his place of business and continue this picket line until he had paid his dues."
William Cavanagh, president of the Michigan Funeral Directors Embalmers Association, a plaintiff herein, testified that a representative of the union stated to him "that funeral directors and embalmers must join the teamsters union or else be put out of business."
Cyrus Warren, a funeral director and embalmer, testified: "The union said to us at this meeting that we were to `sign it or else.' * * * We particularly protested the forcing of a funeral director who had no employees to join the union."
A Detroit funeral director, Mr. Fred Wood, testified:
"Cassily (a defendant union representative) called me up and stated that unless we signed the instrument submitted for renewal, we would be put out of business and our supplies would be cut off and we would be unable to continue the operation of a funeral parlor."
The extreme methods to which defendant union had resorted in its unionization campaign were well known to members of the Michigan Funeral Directors Embalmers Association; and such methods *Page 509 are indicated by the testimony of Peter Ellis who, as a witness, said:
"They (defendant union) wanted me to sign a contract around Christmas time and I told them that I would not do it. I had a large shipment of Christmas trees on display and one of the union men said in my hearing that a half gallon of gasoline and a match would take care of it."
Notwithstanding the above threatening statement was not made to or in the presence of any of these plaintiffs, nonetheless plaintiffs' knowledge of defendants' conduct in this respect had a very material bearing upon the effectiveness of defendants' coercive attitude in dealing with plaintiffs. Since no lawful labor objective is involved, defendants' course of conduct above noted amounts to coercion, and for the purpose sought to be accomplished such coercion is in violation of the statutory law of this State wherein it is provided:
"It shall be unlawful for any employee or other person by force, coercion, intimidation or threats to force, or attempt to force any person to become or remain a member of a labor organization, or for any employee or person by force, coercion, intimidation or threats, to force or attempt to force any person to refrain from engaging in employment. Violation of this section shall be a misdemeanor and punishable as such." Act No. 176, § 17, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 8628-17, Stat. Ann. 1944 Cum. Supp. § 17.454 [18]).
For the reasons noted we conclude defendants' picketing of plaintiffs' place of business was unlawful and plaintiffs are entitled to have such picketing enjoined.
In arriving at the above conclusion we are mindful of the decisions of the United States supreme *Page 510 court cited and relied upon by Chief Justice STARR; but we think each of them can be and should be distinguished from the instant case in one or more particulars which render such decisions inapplicable. It is of first importance to note that in none of the cited cases was picketing permitted when it was shown, as is in this case, that such picketing was in direct violation of a valid State statute, such as that above quoted. Act No. 176, § 17, Pub. Acts 1939. Further, for the most part such cases are distinguished from the instant case in the manner indicated in the appellants' brief where it is said:
"In all of the cases where the union was allowed to picket and assert other coercive labor techniques against the employer or businessman, he, himself, was directly related with the union. * * * There was an actual competition, — Senn was laying tile at a lower rate than union employees; Wohl drove a bakery truck in competition with members of the bakery and pastry driver's union, and did so for lower wages and longer hours than the union members; Angelos owned and operated his own cafeteria and worked in competition with members of the union. This is the economic relationship required. The reason for the rule is quite sound. When there is competition among employees so that the conduct of the dissident has a material effect upon the standard of the union employees because he is working in the self-same tasks by which they earn their livelihood, then and then alone is there a right for the union to require membership. But the situation here is entirely different."
In a general way the foregoing quotation refers to the line of cases cited and relied upon by Chief Justice STARR, but more particularly to Senn v. Tile Layers Protective Union,301 U.S. 468 (57 Sup. Ct. 857, 81 L.Ed. 1229); Bakery PastryDrivers *Page 511 Helpers Local 802 of the International Brotherhood ofTeamsters v. Wohl, 315 U.S. 769 (62 Sup. Ct. 816,86 L.Ed. 1178); and Cafeteria Employees Union, Local 302, v. Angelos,320 U.S. 293 (64 Sup. Ct. 126, 88 L.Ed. 58). In addition to the comment from appellants' brief the following, as distinguishing the cited cases, may be noted.
Concerning decision in the Senn Case, in which four Justices dissented, it should be pointed out that the holding was based upon the conclusion of the State supreme court that the picketing was lawful under the State (Wisconsin) statute which expressly authorized peaceful picketing in any dispute in which a labor union was engaged, and forbade issuance of any injunction against such picketing. Michigan has no such statute. The opinion recites:
"The hearings below were concerned mainly with questions of State law. * * * The question for our decision is whether the statute, as applied to the facts found, took Senn's liberty or property or denied him equal protection of the laws in violation of the Fourteenth Amendment. * * * The judgment of the highest court of the State establishes that both the means employed and the end sought by the unions are legal under its law. The question for our determination is whether either the means or the end sought is forbidden by the Federal Constitution. * * * There was no violence, no force was applied, no molestation or interference, no coercion."
We think, as hereinbefore indicated, defendants' contemplated course of conduct in the instant case was coercive and, in that respect also, this case differs materially from the Senn Case, wherein the State court's denial of injunctive relief was affirmed. Further, unlike the instant case, the union *Page 512 was not attempting to coerce Senn to join the union. Instead, under union rules Senn was not even eligible to membership.
In the Wohl Case the right of the union to picket was sustained. But the factual background in the Wohl Case was so materially different from the factual background in the instant case that there appears to be no conflict between the holding in the Wohl Case and our conclusion above noted in the instant case. As pointed out in the above-quoted portion of appellants' brief: "Wohl drove a bakery truck in competition with the members of the bakery and pastry driver's union, and did so for lower wages and longer hours than the union members" who were engaged in a like activity. Clearly that situation presented a lawful labor objective, which we do not find in the instant case. In the conduct of their business these plaintiffs have conformed to union standards. Defendants do not claim otherwise.
The Angelos Case in the main bases decision upon the court's holding that the union, in its exercise of the constitutional right of free speech, was justified in truthfully advertising by picketing that Angelos was "unfair to organized labor." But in the instant case, under the circumstances disclosed by the record, we think the statement on the signs displayed by the pickets that these plaintiffs were "unfair to labor" was untruthful and used for an ulterior purpose, and therefore should be enjoined. Dissemination of untruths is not a lawful exercise of free speech. In this respect the obviously intended limitation upon the court's opinion in the Angelos Case was pointedly expressed as follows:
"Continuing representations unquestionably false and acts of coercion going beyond the mere influence *Page 513 exerted by the fact of picketing, are of course not constitutional prerogatives."
As being somewhat in the same field, Chief Justice STARR cites and to some extent relies upon American Federation of Labor v.Swing, 312 U.S. 321 (61 Sup. Ct. 568, 85 L.Ed. 855). But, in that case, Swing, engaged in operating a beauty parlor, was employing nonunion help, and the union in this same field "tried to unionize Swing's beauty parlor." The issue as defined by the court in its opinion was as follows:
"We are asked to sustain a decree which for the 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."
It does not appear nor can it be inferred in the Swing Case that the union was attempting to compel Swing to join its ranks and pay dues; and that no other issue was involved, as in the instant case. Instead, in the union's field, organization of beauty parlor employees, a legitimate labor objective, was sought to be accomplished by peacefully publicizing the fact that Swing's employees were not members of the union; and therefore the union's right of picketing was sustained.
Chief Justice STARR, referring in his opinion to our decisions in Lafayette Dramatic Productions, Inc., v. Ferentz, supra, and Silkworth v. Local No. 575 of the American Federation ofLabor, supra, says: "In those cases the question of the union's right to picket as an exercise of the constitutional right of freedom of speech was not involved." It *Page 514 seems to me the above statement is not fully accurate. To be sure "freedom of speech" was not involved in the Lafayette Case because that case did not involve picketing, but only a threatened strike incident to which the right of freedom of speech was not involved. Instead that case did involve, without there being a lawful labor objective, coercion by a threatened strike, rather than by an unlawful picketing as in the instant case. But in the Silkworth Case the right of freedom of speech was given consideration, as indicated by the following from the syllabi:
"Peaceful picketing is a proper means of exercising the right of free speech."
"Peaceful picketing by a labor union is a proper means by which the facts of a labor dispute may be made known."
Decision in each of these two cases was based upon our holding that a lawful labor objective was not involved, and it is worthy of note that in so holding we had in mind and cited most of the cases cited and relied upon in the instant case by Chief Justice STARR, including the Senn Case, the Wohl Case, the AngelosCase, the Swing Case, et cetera. But notwithstanding our consideration given to these decisions of the United States supreme court, they were in effect held inapplicable in a case, such as the instant case, wherein the controversy did not involve a lawful labor objective.
We are not to be understood as holding herein that under all circumstances picketing exceeds the lawful bounds of the constitutional right of freedom of speech and persuasion. Instead we hold that under the circumstances of the instant case defendants' picketing was for a purpose foreign to any *Page 515 lawful labor objective and under the circumstances of this case was an attempt to accomplish by coercion such purpose.
Because it does not appear that plaintiff, the Michigan Funeral Directors Embalmers Association, has any material interest in whether or not defendants maintain their picket line at the Harper-Mulligan Funeral Home and because it does not appear that any rights of this particular plaintiff have been invaded, it follows that it is not entitled to any relief in this case.
A secondary or unlawful boycott, as asserted by plaintiffs, is not proven. And since decision of the instant case may be reached without determination of the soundness of appellants' contention that the contract signed by them was void, as being one in restraint of trade or constituting a monopoly, we pass consideration of that issue. In any event it would seem that at the time of our decision herein the contract by its own terms has expired. As entered into by plaintiffs the contract in the first instance was from November, 1942, to November, 1943, with only the following provision for its extension: "If no such notice (in writing of cancellation) is given, contract shall automatically continue for one year." Thus by its own terms the contract expired in November, 1944. In view of this circumstance it is unnecessary to pass upon the somewhat controverted issue as to whether the contract in whole or in part was cancelled by either of the parties thereto.
The decree of the trial court is reversed and plaintiffs may take a decree in this Court enjoining the picketing of the Harper-Mulligan Funeral Home by defendants. Plaintiffs other than the Michigan *Page 516 Funeral Directors Embalmers Association will have costs of both courts.
BUTZEL and REID, JJ., concurred with NORTH, J.