In my opinion the record discloses beyond question that a bona fide dispute existed between the labor unions and the theaters involved, "concerning terms or conditions of employment." Hence under section 49-903, Oregon Code 1930, — the constitutionality of which has been upheld by this court (Greenfield v. CentralLabor Council, 104 Or. 236 (192 P. 783, 207 P. 168) — no restraining order "shall prohibit any person or persons, whether singly or in concert * * * from recommending, advising or persuading others by peaceful or lawful means" not to patronize any party to such dispute. The method of picketing in these cases was peaceful and took the form of merely persuading patrons of the theaters that the cause of the labor unions was just. It is not for this court to say who was right in the controversy. This court has previously recognized that there may be lawful picketing. Does the exercise of this lawful right become unlawful merely through lapse of time? In other words, are we to say to the labor unions, "You may picket and engage in peaceful methods of persuasion for a month, but you may not do so for a year"? The dispute still exists. If not, when was it terminated? It is immaterial that the theaters may have sustained damages incidental to the exercise of such rights. Neither is it material that the theaters *Page 50 no longer have in their employment union workers. This contention was made in Greenfield v. Central Labor Council, supra, and this court said:
"Because a strike was declared and the union employees walked out, plaintiff claims that the relation of employer and employee ceased to exist; that there was no longer any `dispute concerning terms or conditions of employment,' wherefore chapter 346, Laws of 1919, would not apply. Counsel have not cited and we have not found any authority which sustains that contention, and where that question has been decided the authorities are against it."
The right of picketing does not, in my opinion, depend upon the existence of a strike. The Greenfield case does not so hold.
For the reasons thus briefly stated I am obliged to dissent from the majority opinion. *Page 51