I dissent. In my opinion the picketing was properly enjoined because its admitted objective was to compel *Page 184 a violation of the statutes of this state.1 The picketing was accomplished by two pickets, sometimes three, patrolling the premises around the stores, with placards reading "Unfair to organized labor — Central Labor Council A.F. of L." The employees of both drug stores were and had been employed without regard to any affiliation with any labor union. There was no dispute between either employer and its employees as to wages, hours, conditions of employment, or otherwise.
Under these conditions both employers were approached by representatives and agents of the unions and the latter were permitted to interview the employees during working hours. The purpose of these interviews was to persuade or induce the employees to join the union. Up to the time of the picketing and the initiation of the contempt proceedings neither the unions nor their representatives had been authorized by the majority of the employees of either drug store to act as the spokesman, representative or bargaining agent of either group of employees. It is not contended that the picketing was not a violation of the injunction, but it is asserted that the district court was without jurisdiction to issue the injunction and is therefore without jurisdiction to punish the relators for contempt for such violation. *Page 185
The district court did not make findings of fact, but following the submission of evidence by both parties on the order to show cause rendered an oral opinion from the bench which may be said to incorporate certain findings. The district court held that the picketing was unlawful because its objective was to compel a violation of the statutes and declared policy of the State of Nevada, making it unlawful for an employer to require an employee, as a condition of employment, to agree to belong to a union. While the evidence is somewhat conflicting as to the demands made upon the employers by the union representatives, Mr. Thomas C. Hanley, secretary of the Clark County Central Labor Council, affiliated with the American Federation of Labor, when asked upon cross examination what the purpose of the picket line was, replied: "To let the public in general know, the other labor organizations and public, that the people employed were not members of a union, that the wages were not standard, that the employers were not members of a union, of our union, that acontract had been submitted and refused and the picket line wasthen put on. They were unfair to labor." And Mr. Royalty, the business manager of the Culinary Workers Union, in testifying about one of the meetings with the employer, said: "* * * I understood from *Page 186 the line of conversation it pertained mostly to the standardcontract of the union." It was further testified that the purpose of the picket line was to induce the employees to join the union.
All emphasis in this opinion is supplied unless otherwise noted.
Clauses contained in the standard form of union contract, that is to say, the contract between the employers and the union, include the following:
"Sec. 1 Jurisdiction and Recognization: The Employer agrees to recognize the Union as the sole collective bargaining agency for its employees working under the Union's jurisdiction for the purpose of collective bargaining. It is further agreed by both parties thereto that this agreement shall cover all working conditions, wages and hours of employment affecting the employees working in the employer's establishment.
"Sec. 2 Hiring: All employees, steady or extra, covered bythis agreement shall be hired only through the office of theUnion, such employees shall be and remain in good standing in theUnion as a condition of employment and must obtain a work slipfrom the Union before going to work.
"If the Union is unable to supply satisfactory help to the employer, then the employer may hire outside of the Union, providing such hired persons make application to join the Union within seventy-two hours of the date of their employment and complete the same and be initiated within a period of thirty (30) days from the date of employment."
The contentions of the relators and the conclusions reached by my learned brothers are tied definitely to the theory that the picketing in question was an exercise of the right of free speech and could not be lawfully enjoined. Neither the relators nor the majority of this court concede any limitation to such theory, except possibly in the case of a clear and present danger to the *Page 187 public peace. That peaceful picketing is constitutionally protected from restraint, that advertising a business as unfair to organized labor is privileged free speech and not subject to injunction, that no federal or state law does or can confer jurisdiction upon the district court to enjoin peaceful picketing are apparently deemed not subject to any exception growing out of the unlawfulness of the objective of the picketing.
This dissenting opinion as originally drafted had recited the history of the rise, development, extension and subsequent curtailment of the theory that picketing, as an adjunct of free speech, could not be restrained.2 Of whatever incidental value such history might have been, I concluded that its inclusion in this opinion was not justified.
We start with the proposition that if the objective of the picketing was an unlawful one, it could properly be enjoined without infringement of the constitutional guaranties of free speech and free assembly. *Page 188
Our sole consideration then is the construction of sec. 10473, quoted in full in footnote No. 1 and also quoted in the prevailing opinion. The majority adopt relators' oft repeated characterization of this statute as one that simply outlaws "`yellow dog' contracts," and quote Mr. Justice Black, in delivering the opinion of the court in the Lincoln Federal Labor Union case and Whitaker v. North Carolina, 335 U.S. 525,69 S.Ct. 251, 256, 93 L.Ed. ___, as thus defining the situation.
"There was a period in which labor union members who wanted to get and hold jobs were the victims of widespread employer discrimination practices. Contracts between employers and their employees were used by employers to accomplish this anti-union employment discrimination. Before hiring workers, employers required them to sign agreements stating that the workers were not and would not become labor union *Page 189 members. Such anti-union practices were so obnoxious to workers that they gave these required agreements the name of `yellow dog' contracts. This hostility of workers also prompted passage of state and federal laws to ban employer discrimination against union members and to outlaw yellow dog contracts."
The Nevada statute, on the contrary, is clearly a nondiscrimination statute making it unlawful for an employer to enter into an agreement whereby the employee shall promiseeither to be a union man or a nonunion man. The North Carolina statute involved in the Whitaker case reads as follows: "Any agreement or combination between any employer and any labor union or labor organization whereby persons not members of such union or organization shall be denied the right to work for said employer, or whereby such membership is made a condition of employment or continuation of employment by such employer, or whereby any *Page 190 such union or organization acquires an employment monopoly in any enterprise, is hereby declared to be against the public policy and an illegal combination or conspiracy in restraint of trade or commerce in the State of North Carolina." Laws N.C. 1947, c. 328, sec. 2.
It will be observed that this statute outlawed the denial of work to nonunion men.
The Nebraska constitutional amendment reads as follows: "No person shall be denied employment because of membership in or affiliation with, or resignation or expulsion from a labor organization or because of refusal to join or affiliate with a labor organization; nor shall any individual or corporation or association of any kind enter into any contract, written or oral, to exclude persons from employment because of membership in or non-membership in a labor organization." Const.Neb. art. 15, sec. 13, as adopted in 1946.
This amendment struck down the right to deny employment either because of membership or nonmembership in a union. The Arizona constitutional amendment reads as follows: "No person shall be denied the opportunity to obtain or retain employment because of non-membership in a labor organization, nor shall the state or any subdivision thereof, or any corporation, individual or association of any kind enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of non-membership in a labor orbanization." Laws Ariz. 1947, p. 399.
This constitutional amendment, like the North Carolina statute outlawed the denial of employment because of the employee's nonmembership in a union. The effect of the North Carolina and Nebraska enactments is thus simply described in the opening paragraph of Mr. Justice Black's opinion: "Under employment practices in the United States, employers have sometimes limited work opportunities to members of unions, sometimes to non-union members, and at other times have employed *Page 191 and kept their workers without regard to whether they were or were not members of a union. Employers are commanded to follow this latter employment practice in the states of North Carolina and Nebraska. A North Carolina statute, and a Nebraska constitutional amendment provide that no person in those states shall be denied an opportunity to obtain or retain employment because he is or is not a member of a labor organization. To enforce this policy North Carolina and Nebraska employers are also forbidden to enter into contracts or agreements obligating themselves to exclude persons from employment because they are or are not labor union members."
The issues involved were further described by him as follows: "These state laws were given timely challenge in North Carolina and Nebraska courts on the ground that insofar as they attempt to protect non-union members from discrimination, the laws are in violation of rights guaranteed employers, unions, and their members by the United States Constitution. The state laws were challenged as violations of the right of freedom of speech, of assembly and of petition guaranteed unions and their members by `the First Amendment and protected against invasion by the state under the Fourteenth Amendment.'"
Defining the contention of the unions further, Mr. Justice Black stated: "It is also argued that the state laws do not provide protection for union members equal to that provided for non-union members. But in identical language these state laws forbid employers to discriminate against union and non-union members. Nebraska and North Carolina thus command equal employment opportunities for both groups of workers. It is precisely because these state laws command equal opportunities for both groups that appellants argue that the constitutionally protected rights of assembly and due process have been violated. For the constitutional protections surrounding these rights are relied on by *Page 192 appellants to support a contention that the Federal Constitution guarantees greater employment rights to union members than to non-union members. This claim of appellants is itself a refutation of the contention that the Nebraska and North Carolina laws fail to afford protection to union members equal to the protection afforded non-workers."
If there is any distinction in principle between the foregoing situation and that created by the Nevada statute, it is one that grows out of arrangement of words or phrases and not out of meaning, principle or effect.
In the Arizona case Mr. Justice Black, again speaking for the court, thus refers to the Arizona amendment [335 U.S. 538,69 S.Ct. 259]:
"The language of the Arizona amendment prohibits employment discrimination against non-union workers but it does not prohibit discrimination against union workers. It is argued that a failure to provide the same protection for union workers as that provided for non-union workers places the union workers at a disadvantage, thus denying unions and their members the equal protection of Arizona's laws.
"Although the Arizona amendment does not itself expressly prohibit discrimination against union workers, that state has not left unions and union members without protection from discrimination on account of union membership. Prior to passage of this constitutional amendment, Arizona made it a misdemeanor for any person to coerce a worker to make a contract `not to join or become a member of any labor organization' as a condition of getting or holding a job in Arizona. A.C.A. 1939 § 43-1608. A section of the Arizona code made every such contract (generally known as a `yellow dog contract') void and unenforceable. Similarly, the Arizona constitutional amendment makes void and unenforceable contracts under which an employer agrees to discriminate against non-union workers."
He refers further to the situation in Arizona as follows: "Statutes implementing the amendment have *Page 193 provided as sanctions for its enforcement relief by injunction and suits for damages for discrimination practiced in violation of the amendment."
If further explanation is needed to analyze the issues in these cases the concurring opinion of Mr. Justice Frankfurter, in all three cases, may be noted. The learned justice says:
"Arizona, Nebraska, and North Carolina have passed laws forbidding agreements to employ only union members. The United States Constitution is invoked against these laws." Note further Mr. Justice Black's analysis in the Lincoln and Whitaker cases: "Under the state policy adopted by these laws, employers must, other considerations being equal, give equal opportunities for remunerative work to union and non-union members without discrimination against either. In order to achieve this objective of equal opportunity for the two groups, employers are forbidden to make contracts which would obligate them to hire or keep none but union members. Nothing in the language of the laws indicates a purpose to prohibit speech, assembly, or petition. Precisely what these state laws do is to forbid employers acting alone or in concert with labor organizations deliberately to restrict employment to none but union members."
When we consider the testimony of relators' witness Hanley that the purpose of the picketing was to acquaint the public with certain facts including the fact that a union contract had been submitted to the employers and rejected (which contract, if executed, would have required the employers to employ none but union men, in violation of the Nevada statute), in connection with the contention of relators that the injunctive restraint against this accomplishment destroyed their constitutional right of free speech, the following from the opinion of the court is particularly illuminating:
"It is difficult to see how enforcement of this state policy could infringe the freedom of speech of anyone, or deny to anyone the right to assemble or to petition *Page 194 for a redress of grievances. And appellants do not contend that the laws expressly forbid the full exercise of those rights by unions or union members. Their contention is that these state laws indirectly infringe their constitutional rights of speech, assembly, and petition. While the basis of this contention is not entirely clear, it seems to rest on this line of reasoning: The right of unions and union members to demand that no non-union members work along with union members is `indispensable to the right of self organization and the association of workers into unions'; without a right of union members to refuse to work with non-union members, there are `no means of eliminating the competition of the non-union worker'; since, the reasoning continues, a `closed shop is indispensable to achievement of sufficient union membership to put unions and employers on a full equality for collective bargaining, a closed shop is consequently an indispensable concomitant' of `the right of employees to assemble into and associate together through labor organizations. * * *' Justification for such an expansive construction of the right to speak, assemble and petition is then rested in part on appellant's assertion `that the right of a non-unionist to work is in no way equivalent to or the parallel of the right to work as a union member; that there exists no constitutional right to work as a non-unionist on the one hand while the right to maintain employment free from discrimination because of union membership is constitutionally protected.' Cf. Wallace Corporation v. National Labor Relations Board, 323 U.S. 248,65 S.Ct. 238, 89 L.Ed. 216.
"We deem it unnecessary to elaborate the numerous reasons for our rejection of this contention of appellants. Nor need we appraise or analyze with particularity the rather startling ideas suggested to support some of the premises on which appellants' conclusions rest. There cannot be wrung from a constitutional right of workers to assemble to discuss improvement of their *Page 195 own working standards, a further constitutional right to drive from remunerative employment all other persons who will not or can not, participate in union assemblies. The constitutional right of workers to assemble, to discuss and formulate plans for furthering their own self interest in jobs cannot be construed as a constitutional guarantee that none shall get and hold jobs except those who will join in the assembly or will agree to abide by the assembly's plans. For where conduct affects the interests of other individuals and the general public, the legality of that conduct must be measured by whether the conduct conforms to valid law, even though the conduct is engaged in pursuant to plans of an assembly."
Further the court states (and this is a positive repudiation of Shafer v. Registered Pharmacists Union, 16 Cal.2d 379,106 P.2d 403, on which the majority place strong reliance);
"If the states have constitutional power to ban such discrimination by law, they also have power to ban contracts which if performed would bring about the prohibited discrimination. Chicago, B. Q.R. Co. v. McGuire, 219 U.S. 549,570, 571, 31 S.Ct. 259, 263, 55 L.Ed. 328.
"Many cases are cited by appellants in which this Court has said that in some instances the due process clause protects the liberty of persons to make contracts. But none of these cases, even those according the broadest constitutional protection to the making of contracts, ever went so far as to indicate that the due process clause bars a state from prohibiting contracts to engage in conduct banned by a valid state law. So here, if the provisions in the state laws against employer discrimination are valid, it follows that the contract prohibition also is valid. Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 427,56 S.Ct. 513, 515, 80 L.Ed. 772. And see Sage v. Hampe, 235 U.S. 99,104-105, 34 S.Ct. 94, 95, 59 L.Ed. 147." *Page 196
Referring to the fact that several other states "now have such laws" including footnote reference to sec. 10473, N.C.L., Mr. Justice Frankfurter in concurring says: "If the proponents of union-security agreements have confidence in the arguments addressed to the Court in their `economic brief,' they should address those arguments to the electorate."
Such is the situation with which sec. 10473, Nevada Compiled Laws, is confronted. The statute prohibits employment contracts discriminating against either union or nonunion workers. As preventing discrimination against union workers, relators concede, nay assert, that it is valid. They even declare in their supplemental brief that they do not attack the constitutionality of sec. 10473 and say that respondents mistakenly conceive relators' attack upon the injunction as a challenge to the validity of the statute. The original petition of the relators did definitely challenge the validity of the statute. Be that as it may, if the statute is valid (and under the latest decisions of the United States Supreme Court we cannot hold otherwise) then the execution of a contract by the drug stores to employ only union men would be unlawful. Picketing to compel the performance of an unlawful act was likewise unlawful and subject to restraint by injunction.
In the North Carolina and Nebraska cases the state statutory enactments were approved by a unanimous court. In the Arizona case the state constitutional amendment was approved, with a dissent noted by Mr. Justice Murphy but without any dissenting opinion. Mr. Justice Frankfurter's concurring opinion applied to all three cases. Despite the bitter controversies that have raged in the United States Supreme Court starting with the Adair and Coppage cases and running through the entire gamut of the Senn, Thornhill, Carlson, Meadowmoor, Wohl, Ritter, and other cases, we find here almost unanimous approval (only one dissent, without opinion, *Page 197 being noted) of state enactments outlawing discrimination in employment of union or nonunion workers. The broad characterizations by Mr. Justice Black and Mr. Justice Frankfurter of the nature of the North Carolina, Nebraska and Arizona enactments just as aptly fit the Nevada statute. Indeed, as noted, sec. 10473, N.C.L. is noted in the footnote as an anti-discrimination statute similar to those enacted by many other states. The prevailing opinion of the court in this case emphasizes the difference between the Nevada statute and the three statutes construed in the opinions above discussed. It insists that the only contracts outlawed in Nevada are contracts between the employer and the employee and not contracts between the employer and the union, and that this distinction was especially recognized by the Supreme Court of California in Shafer v. Registered Pharmacists Union, 16 Cal.2d 379,106 P.2d 403. It is quite true that the prevailing opinion in that case, written by Mr. Justice Edmonds construing the California statute, in many respects quite similar to the Nevada statute, rejects the theory that the declaration that it is contrary to public policy for the employer and employee to contract that the latter shall join or shall not join a "labor organization" applies to a contract between an employer and an independent union that would require such union membership. In this respect the opinion says,106 P.2d 408: "The argument is also made that it is absurd to suppose that these provisions were written with the intention of restraining the employer from influencing his employee, while at the same time conferring upon other individuals the right to `coerce' the same employee through the employer. But the right of workman to organize for the purpose of bargaining collectively would be effectually thwarted if each individual had the absolute right to remain `unorganized' * * *." But this is precisely the contention that was rejected by the United States Supreme Court in the *Page 198 most forcible language. Mr. Justice Edmonds in actual words rejects the proposition that "each individual [has] the absolute right to remain `unorganized'." In Lincoln Federal Union v. Northwestern Iron and Metal Company, supra, and Whitaker v. North Carolina, supra, the contention was made "that the right of a non-unionist to work is in no way equivalent to or the parallel of the right to work as a union member; that there exists no constitutional right to work as a non-unionist on the one hand while the right to maintain employment free from discrimination because of union membership is constitutionally protected." The ideas supporting this proposition were characterized by the United States Supreme Court as "startling." In short, the theory of the prevailing opinion in the Shafer case, decided in 1940, is condemned, discountenanced, rejected and repudiated by a virtually unanimous United States Supreme Court in 1949. Against California's rejection of the right of each individual employee to remain "unorganized" the United States Supreme Court says: "Just as we have held that the due process clause erects no obstacle to block legislative protection of union members, we now hold that legislative protection can be afforded non-union workers."
Shafer v. Registered Pharmacists Union 16, Cal.2d 79,106 P.2d 403, and Mackay v. Retail Automobile Salesmen's Union, 16 Cal.2d 311, 106 P.2d 373, were decided on the same day, October 14, 1940. In both cases Mr. Justice Edmonds wrote the opinion for the court. In both cases Justices Curtis, Shenk and Marks dissented. The opinions are too long to quote at length. Suffice it to say that in both cases the opinion of Mr. Justice Edmonds and the concurring opinion of Mr. Justice Moore consistently establish a doctrine repudiated by the United States Supreme Court in the cases last above discussed, while on the other hand the dissenting opinion of Mr. Justice Curtis and at least the first phase of the dissent of Mr. Justice Marks are *Page 199 in accord therewith. The second phase of the dissenting opinion of Mr. Justice Marks, in which he attacks peaceful picketing as a means of economic coercion and not as an exercise of the right of free speech, need not be considered here. Despite my notation in footnote 2 of the gradual departure of the United States Supreme Court from the complete identification of picketing with free speech, it is unnecessary for me to do otherwise than to indulge the correctness of the premise of such identification.
The sole reason for the issuance of the injunction by the district court against the picketing engaged in by the relators was that its objective was unlawful, namely, to compel the respondent employer drug stores to violate sec. 10473, N.C.L. by insisting that their employees join the union. In this, with due respect to the opinions of my two learned associates, I am convinced that the respondent court was correct so long as sec. 10473 N.C.L. remains on the statute books. It is not our province to pass upon the propriety or advisability of that statute. It is said on the one hand that the statute was passed at the instance of union labor, and it is said on the other hand that union labor has, without success, attempted to accomplish its repeal by past legislatures. It is a matter of common knowledge that union labor unsuccessfully submitted to the 1949 legislature an act to repeal sec. 10473. It would be presumptuous on the part of this court to suggest the propriety or advisability of such legislation. All such considerations lie with the legislature, and the legislature alone, unless the initiative or referendum be invoked by the people themselves.
The majority's conclusion that the term "labor organization," as twice used in sec. 10473, has reference to a "company union" and not to an "independent union" is in my opinion without justification. Further, to shut our eyes as sensible men to the objective of the picketing (and to its effect if the purpose were accomplished), namely, that the employers could hire no employees *Page 200 except those who "shall be and remain in good standing in the union as a condition of employment" and who "must obtain a work slip from the union before going to work," is simply to shut our eyes to the facts of the case and decide the same upon mere dogma.
No more convincing is the holding of the majority opinion that sec. 10473, N.C.L. was adopted at the instance of union labor and therefore cannot possibly be interpreted as denouncing a union security agreement or closed shop agreement when entered into between the employer and the union, although the statute did on its face outlaw such a discriminatory agreement when entered into between an employer and employee. This argument implies that the legislature of this state purposely and deliberately put "a joker" into sec. 10473; that it adopted that section with its tongue in its cheek, saying "we are outlawing discrimination against either union or nonunion men, when effected by contractbetween employer and employee, but such discrimination against either union or nonunion men is perfectly lawful and valid if effected by a contract between the employer and some other person, firm, association or corporation." It is entirely lacking in logic. The broad characterization given to the North Carolina, Nebraska and Arizona enactments by the United States Supreme Court can leave no doubt but that if the Nevada statute had been under its consideration at the same time it would have received precisely the same treatment. The fine distinction attempted to be drawn by the majority opinion between the Nevada statute and the other enactments thus characterized and described and interpreted and construed by the United States Supreme Court is, with due respect to the opinion of my learned brethern, not warranted. An interpretation of sec. 10473 that permits and encourages by indirection the violation of our anti-discrimination statute is, in my opinion, an example of that kind of legalistic reasoning that invites criticism of the court. If there is anything to the contrary in Lauf v. E.G. Shinner Co., 303 U.S. 323, 58 S.Ct. 578, *Page 201 82 L.Ed. 872, its force has been dispelled by the Lincoln, Whitaker and American Sash Door Company cases. The same may be said of other cases relied upon by relators and cited by the majority opinion on this point. No more convincing is the argument that our statute cannot be applied to agreements between employers and unions because of the history of the legislation and the claim that the act was passed at the instance of union labor. This argument is made along the lines of Mr. Justice Edmond's opinion in the Shafer and McKay cases, supra. The majority of this court indicate their opinion that sec. 10473 was first proposed by labor in a form that simply outlawed discrimination against union men and that the proposed act was amended and finally adopted as adding the proscription against discrimination against nonunion men. This may indeed be so — and probably is. It only serves to indicate that the history of the legislation so strongly relied upon by Mr. Justice Edmonds has no application here, as it develops from the very contention of the majority that our statute as finally adopted was upon the insistence, not only of labor but likewise upon the insistence of those desiring to avoid discrimination against either group of employees. And if reliance is still made upon the history of the legislation there need only be pointed out the consistent efforts of labor to repeal the statute in its entirety.
One brief paragraph of the prevailing opinion also holds that the court was without jurisdiction because no bond for the temporary injunction was filed. Without further discussion of this issue or of the fact that it was filed nunc pro tunc as of the date of the order and prior to the violation of the order, I may simply note that both parties have indicated in their briefs and oral arguments the necessity for the disposition of this case on the main grounds discussed in both opinions. The question of the bond was in my opinion not strongly urged by relators.
In conclusion I may summarize my views as follows: *Page 202 (1) The legislature of this state violated no constitutional limitation in passing sec. 10473, N.C.L.; (2) that section outlawed labor employment contracts discriminating against either union or nonunion men; (3) although the statute does not in terms bar contracts between employers and unions, such contracts, indirectly but inevitably accomplishing the same thing that the statute proscribes, are likewise outlawed; (4) the objective of the picketing being to compel the employers to enter into a contract with the union whereunder the employer could employ none but union men, such objective was unlawful; (5) as the objective of the picketing was unlawful, it was subject to restraint by injunction; (6) the district court having assumed jurisdiction and being supported in its conclusions that the picketing was for an unlawful purpose, the issuance of the restraining order should be sustained.
It should be emphasized that the situation is purely a legislative one. If the legislature sees fit to repeal the statute, a future action premised upon the same grounds as the present one will not thereafter lie. If the legislature sees fit to maintain this statute on the books, we should not do otherwise than respect its complete power so to do, without nullifying its action under the guise of judicial interpretation. As the situation stands now, the objective of the picketing was one declared unlawful by our statute and could properly be enjoined. I am of the opinion that the injunction was properly issued and that the writ should be denied and the alternative writ dismissed.
1 Section 10473, Nevada Compiled Laws, appearing therein as sec. 527 of "An Act concerning crimes and punishments, and repealing certain acts relating thereto," approved March 17, 1911, and which appeared as sec. 6792 in the Revised Laws of Nevada of 1912, read as follows: "It shall be unlawful for any person, firm or corporation to make or enter into any agreement, either oral or in writing, by the terms of which any employee of such person, firm or corporation, or any person about to enter the employ of such person, firm or corporation, as a condition for continuing or obtaining such employment, shall promise or agree not to become or continue a member of a labor organization, or shall promise or agree to become or continue a member of a labor organization."
Section 2825.31, N.C.L., approved March 29, 1937, read in part as follows:
"In the interpretation and application of this act, the public policy of this state is declared as follows:
"Negotiations of terms and conditions of labor should result from voluntary agreement between employer and employees. Governmental authority has permitted and encouraged employers to organize in the corporate and other forms of capital control. In dealing with such employers the individual organized worker is helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment. Therefore, it is necessary that theindividual workman hare full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference,restraint or coercion of employers of labor, or their agents. in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."
In the case of both of the legislative acts referred to, a violation is declared to be a misdemeanor punishable by fine and imprisonment.
2 In this state the absolute right of an employer for reasons "good or bad, well or ill founded, or entirely trivial and whimsical," to refuse to have business relations with any person or labor organization was first established by Farrington, District Judge of the United States District Court for the District of Nevada, relying upon Allgeyer v. Louisiana,165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832; Lochner v. New York,198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, 3 Ann.Cas. 1133; Gillespie v. People, 188 Ill. 176, 58 N.E. 1007, 52 L.R.A. 283, 80 Am. St.Rep. 176; Adair v. United States, 208 U.S. 161, 28 S.Ct. 277,52 L.Ed. 436. The Adair case theory was carried out in Coppage v. Kansas, 1914, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441, L.R.A. 1915C, 960. As to the discharging of an employee because of the latter's union affiliations, the theory was repudiated in Pennsylvania R. Co. v. United States Railroad Labor Board, 261 U.S. 72,43 S.Ct. 278, 67 L.Ed. 536; Texas N.O.R. Co. v. Brotherhood of R. S.S. Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034; Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592,81 L.Ed. 789; National Labor Rel. Board v. Jones Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. The repudiation of the theory was later applied also to hiring. Phelps Dodge Corp. v. National Labor Relations Board, 1941,313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271, 133 A.L.R. 1217. The impact of the Clayton Act in 1914, c. 323, 38 Stat. 738, 29 U.S.C.A. ch. 5, sec. 52, long prior to the National Labor Relations Act of 1935, and the opinion of Mr. Chief Justice Taft in American Steel Foundaries v. Tri-City Council, 1921,257 U.S. 184, 42 S.Ct. 72, 66 L.Ed. 189, 27 A.L.R. 360, require consideration. Even in N.L.R.B. v. Jones Laughlin Steel Corp., supra, and kindred cases in the 1930's, picketing had not yet been identified with the right of free speech. Then came Senn v. Tile Layers Union, 1937, 301 U.S. 468, 57 S.Ct. 857,81 L.Ed. 1229, relied upon in the majority opinion. This was followed by Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, and Carlson v. California, 310 U.S. 106, 60 S.Ct. 746,84 L.Ed. 1104, both decided February 29, 1940. These cases left open the right of relief against picketing only in cases of "clear and present danger of destruction of life or property, or invasion of the right of privacy or breach of the peace." Just prior to the Thornhill and Carlson cases this court, in 1939, decided City of Reno v. Second Judicial District Court, 59 Nev. 416, 95 P.2d 994, 125 A.L.R. 948, striking down a city ordinance that unqualifiedly prohibited all picketing. Bridges v. California, 314 U.S. 252,62 S.Ct. 190, 159 A.L.R. 1346: Thomas v. Collins, 323 U.S. 516,65 S.Ct. 315, 89 L.Ed. 430, and Cafeteria Employees Union v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58, further exemplified the free speech theory, which probably had reached its height in American Federation of Labor v. Swing, 1940,312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855. As this case involved only peaceful persuasion disentangled from violence, it was distinguished from Milkwagon Drivers Union v. Meadowmoor Dairies,312 U.S. 287, 61 S.Ct. 552, 555, 85 L.Ed. 836, 132 A.L.R. 1200, decided the same day.
Starting with the Meadowmoor case, where the picketing, though peaceful in isolation, was "part of a coercive thrust when entangled with acts of violence," and the implications of Bakery and Pastry Drivers v. Wohl, 315 U.S. 769, 62 S.Ct. 816,86 L.Ed. 1178, where the object of the picketing was unlawful, we have Hotel and Restaurant Employees International Alliance v. Wisconsin Employment Relations Board, 1942, 315 U.S. 437,62 S.Ct. 706, 86 L.Ed. 946, and Allen-Bradley Local v. Wisconsin Employment Relations Board, 1942, 315 U.S. 740, 62 S.Ct. 820,86 L.Ed. 1154, in both of which the restraint of picketing was upheld because of its unlawful objective. On the same day was decided Carpenters and Joiners Union of America v. Ritter's Cafe,315 U.S. 722, 62 S.Ct. 807, 809, 86 L.Ed. 1143, restraining picketing "outside the economic context of the real dispute," and recognizing picketing as exertion of concerted pressure, as a familiar weapon of industrial combat and similar characterizations. The court refused "to transmute vital constitutional liberties into doctrinaire dogma." This had been likewise recognized in the Wohl case in the concurring opinion. The culmination of the limitations on the former virtually unlimited free speech theory is found in A.F. of L. v. American Sash Door Co., Lincoln Federal Labor Union v. Northwestern Iron Metal Co. and Whitaker v. North Carolina, 69 S.Ct. 251, 264, and Kovacs v. Cooper, 1949, 336 U.S. 771, 69 S.Ct. 448. James v. Marinship Corporation 1944, 25 Cal.2d 721, 155 P.2d 329, 334, and Hughes v. Superior Court, 1948, 32 Cal.2d 850, 198 P.2d 885, definitely established the right to enjoin picketing if its objective is unlawful in the State of California.