Mr. Chief Justice MAXEY filed a concurring opinion; Mr. Justice JONES filed a dissenting opinion.
Argued March 7, 1946. Westinghouse Electric Corporation is engaged in the manufacture of electrical machinery and devices. It has five plants in Allegheny County, the largest being the East Pittsburgh Works; it conducts also a research laboratory. In its manufacturing establishment it employs approximately 16,000 persons engaged in productive labor and plant maintenance; these are represented by the defendant union, the United Electrical, Radio and Machine Workers of America (CIO) Local 601. Another union, Association of Westinghouse Salaried Employees, represents some 200 technicians and clerks employed in the research laboratory and upwards of 6,000 employes in the manufacturing plants, — mostly industrial engineers, draftsmen, salesmen, patent attorneys, cost accountants, clerks and stenographers. There is a third group of about 1,000 employes made up of the Company's executive officers, supervisors and scientists; this latter group is not represented by any labor union.
A dispute arose between the defendant Union and the Company in regard to a demanded wage increase of $2.00 per day. Protracted negotiations to settle the *Page 449 controversy proved abortive, and a strike began on January 15, 1946. Neither the Association of Westinghouse Salaried Employees nor the third group of employes previously mentioned have any present dispute with the Company and are not on strike. The defendant Union immediately established and has since continuously maintained a picket line at each and every gate of the Company's plants and the research laboratory. The Company filed a bill in equity for a preliminary injunction to restrain the officers and members of the defendant Union from interfering, by mass picketing, violence or intimidation, with employes of the Company engaged in the operation and maintenance of its plants, and from preventing persons, whether employes or others, from entering or leaving its plants and properties. The court below denied the motion for a preliminary injunction and dismissed the bill.
All the testimony, which is extremely voluminous, was presented by plaintiff corporation; defendants offered no evidence and, as none of plaintiff's testimony was contradicted or impeached, there is no dispute on the present record as to the facts; the question for determination is purely one of the proper legal interpretation to be placed upon those facts. Under such circumstances, if the record discloses a fundamental misconception of the controlling law, the ordinary rule that the granting or refusal of a preliminary injunction is within the reasonable discretion of the court of first instance becomes inapplicable: Casinghead Gas Co. v. Osborn, 269 Pa. 395,112 A. 469; Philadelphia Record Co. v. Curtis-MartinNewspapers, Inc., 305 Pa. 372, 378, 157 A. 796, 798.
The cases in which, and the extent to which, courts may issue injunctions in labor disputes are now determined, in this as in many other states and in the nation, by statutory mandate. In Pennsylvania the Labor Anti-Injunction Act of June 2, 1937, P. L. 1198, prescribed that such injunctions should issue only when certain *Page 450 conditions existed and certain requirements were met; for example, the court must find that the public authorities were unable to furnish adequate protection to the complainant's property; also, the complainant must have made every reasonable effort to settle the labor dispute. Plaintiff admits that in this instance not all the conditions stipulated by that act exist nor have the necessary findings been made by the court, and therefore, if that statute controls, it is not entitled to an injunction; (cf. DeWilde v. Scranton Building Trades Construction Council, 343 Pa. 224, 22 A.2d 897). Plaintiff relies, however, upon the amendatory Act of June 9, 1939, P. L. 302, which provides that the 1937 act should not apply in any case "Where in the course of a labor dispute . . . an employe, or employes acting in concert, or a labor organization, or the members, officers, agents, or representatives of a labor organization or anyone acting for such organization, seize, hold, damage, or destroy the plant, equipment, machinery, or other property of the employer with the intention of compelling the employer to accede to any demands, conditions, or terms of employment, or for collective bargaining." Plaintiff contends that the acts of defendants, as established by the testimony, amount to a seizure and holding of its plants and properties, that therefore the restrictions imposed by the Act of 1937 do not apply, and that the picketing is illegal and should be enjoined.
What are the facts? None of the officers, agents or members of the defendant Union, except those who are continuing their employment in the plants in order to protect and maintain them, has actually entered any of the Company's properties or laid a hand upon any equipment, machinery or other property therein contained. There has been no "sit-down" strike in the sense that any members of the Union have barricaded themselves within any of the plaintiff's buildings or established themselves there in possession and occupation. But, when the strike was in contemplation and before *Page 451 it had actually started, a number of meetings were held between officers of the defendant Union and representatives of the plaintiff corporation in the course of which the former requested the latter to prepare a list of persons who might be deemed necessary to protect the Company's plants, defendants being willing, because of their interests as well as that of the Company, to safeguard the physical maintenance of the machinery and equipment. However, as an official of the Company who was present at these meetings testified, they "made it quite clear that anyone not agreed to on the list would not get admittance through the picket line . . . they would not be admitted to the plant unless their name was on a list in the Union office." And, as another such official testified: "In reference to the lists we were informed that they would have to be the very minimum number of employes to have consideration by the Union, that it was to include no person who would pursue any productive work, that it had to do only with plant protection." In response to a question as to how defendants intended to conduct the strike and whether they intended to let into the plant those people who were not on strike "their reply was to the effect that people would be permitted to enter, but only on passes issued by the Union. . . . They stated it was their intention to permit nobody to enter the plant except those who had passes issued by the Union, and that it was their intention to picket the plant 24 hours a day". A list was prepared by the Company which was carefully examined by the Union and a large number of the names rejected by it; it approved about 300 in number, two-thirds of whom belonged to its membership, and it issued passes on a weekly basis to those persons; later, when the case came on for hearing before the court, defendants agreed to add to the list 71 other names of employes who were not members of the Union and who, it was agreed, could be admitted on identification cards of the Company; still later, during the course of the hearings, an additional *Page 452 48 names were added to those of the persons whom the Union would permit to enter the plants.
The consent of the Union thus given to the admission of the persons listed naturally carried with it, as an implied corollary, that it would deny the right of entrance to all others; indeed, as appears from the testimony previously quoted, it was so expressly stated by the officers of the Union, and, in a letter written by its acting President to an official of the Company shortly before the strike began, it was again explicitly declared that "only the passes issued by our Strike Committee will secure any recognition from the pickets." This avowed policy of the Union was not merely academic or ideological, but was implemented by positive action in all the instances when it was put to the test. Thus, W. C. Rowland, manager of one of the divisions of the East Pittsburgh Works, testified that when he sought admittance to that plant a "captain" of the pickets told him that "if I wanted to get in I would have to get a pass from the Union". He then tried other entrances, but always the same statement was made to him and he was refused admittance.1 John Wood, a foreman or supervisor, testified that he was denied admittance to this same plant by those picketing the entrance gates; a "lieutenant" of the pickets "produced a list . . . and found that we weren't on it, and he said 'Well, your name isn't on the list', and we said 'What does that mean? Does that mean we don't get in?' and he said 'You'll have to go to the Union office for a pass' ". The same thing happened again later, this time both a "captain" and a "lieutenant" of the pickets telling him that he "would have to go to the Union office and receive a pass from the Union", and that otherwise the pickets would not allow him to enter. He also testified that a nurse from the Company's medical department was likewise refused admittance because she did not have a Union pass. Another witness, G. M. Crawford, a patent *Page 453 attorney employed by the company, testified that he was barred from entering the plant, the pickets saying that his name was not on the list and "they were under orders to admit no one except those on this list". August Mayer, a maintenance supervisor, testified that a "captain" and a "lieutenant" refused him admittance; the "captain", after looking at his list, said: "You aren't on my list, so you can't get in;" on another occasion this same experience was repeated, the "lieutenant" stating, after looking at his list: "I'm sorry, boys, your name isn't on the list, you can't get in . . . Go to union headquarters and get a pass if you insist on going in." M. Hetenyi, a research engineer, and Dr. Joseph Slepian, an associate director of research, both testified that they were denied admission to the research laboratory because a Union pass was demanded of them and they did not have any. J. A. Hutcheson, also an associate director in the research laboratory, and John F. Hooper, a staff supervisor, testified to a similar demand by the pickets, with the same unfavorable result.2
Plaintiff produced in all 21 witnesses who testified that they were employed by the company and that, on various occasions from the time of the beginning of the strike to the time of the hearings, they were not allowed access, by the pickets on guard, to the East Pittsburgh plant, or to the research laboratory, or to the plaintiff's Nuttal works, or to a building leased by the Company at 601 South Avenue, Wilkinsburg. During the early days of the strike the number of pickets in the line at each entrance varied from as few as 8 or 10 to as many as 50, 75, 100 or even 150; later, by the time of the hearings the number had been substantially reduced, but was always apparently subject to augmentation if those forbidden to enter attempted to do so. The pickets walked closely behind one another at each gate in a compact circle or elliptical formation and so near to the entrance *Page 454 that it would have been impossible for anybody to edge in without running the gantlet thus established. In some instances employes seeking to enter were prevented from so doing by force and violence, in others, those who were more cautious resigned themselves to the inevitable and — reluctant to engage in a scuffle that might possibly lead to bloodshed — departed in peace. Without attempting to reproduce the great mass of testimony in detail it is sufficient to say that its cumulative effect is to establish beyond any doubt that the pickets of the defendant Union never intended to let any person enter any of the Company's properties without their consent and that they enforced that intention and that policy by means of persuasion when such methods were sufficient, but also, when necessary, by intimidation and threatened violence. That there were thousands of employes ready to work is demonstrated by a letter which was offered in evidence,3 written, when the strike first started, by the President of the Association of Westinghouse Salaried Employees to an official of the plaintiff corporation, in which it was stated that they (the members of the Association) were willing and wanted to work and would report for that purpose unless forcibly prevented from doing so.
The question then arises: Do the facts thus established indicate a seizure and holding of the Company's property by defendants within the meaning of those terms in the Act of 1939? We answer that question unhesitatingly in the affirmative. Defendants argue that at the time of the enactment of the 1939 amendment there had arisen an occasional practice on the part of strikers of taking possession of the employer's factory by physical entry and occupation — the so-called "sit-down" strikes, — and that it was that kind of seizure and holding that the framers of the amendment had in contemplation. But, while the technique employed *Page 455 in such strikes may have changed, it is obvious that the seizure of a plant may, from a realistic standpoint, be effected in ways other than by actual entry into the building itself. It certainly is not necessary in order to constitute a seizure and holding that each and every brick and stone, each and every room and floor, be physically grasped and possessed. If the owner be deprived of the use and enjoyment of the property so that it becomes utterly valueless to him it is effectively seized and held whether the force employed for that purpose be exerted within the building or immediately without. The control of the entrances is the control of the plant. Surely defendants would not deny that, if 5, 10, 50 or 100 of their members stood directly within the gates and prevented the owners and their employes from entering, this would constitute a seizure of the property within the ordinary meaning of that word, and how is it less a seizure and a holding if the same number of persons, for the same purpose and with the same effect, stand immediately in front of the gates instead of behind them? Would defendants deny that, if they locked and bolted all the entrance doors and thereby prevented ingress and egress, such action would constitute a seizure and holding of the plant within the normal connotation of those terms and therefore within the meaning of the statute? But what difference is there between such a method of seizure and that of holding the gateways closed, not by mechanical devices, but by a chain of human beings stretched across those gateways and thereby even the more effectively preventing access to the property and its use by the rightful owner? And even if it were technically to be held that the force which accomplishes the seizure must be applied on the very premises of the employer, that technicality is satisfied when the pickets operate from positions in front of the gates, because ordinarily the title to property abutting on a public highway extends to the center of the highway, the sidewalk being for all intents and purposes *Page 456 a part of the owner's premises subject only to the public's easement of passage: Duquesne Light Co. v. Duff, 251 Pa. 607,97 A. 82; Scranton v. Peoples Coal Co., 256 Pa. 332, 335,100 A. 818, 819; Breinig v. Allegheny County, 332 Pa. 474, 477,478, 2 A.2d 842, 845, 846; Hindin v. Samuel, Mayor, 158 Pa. Super. 539,542, 45 A.2d 370, 372.
For the reasons thus stated we reiterate what was said by Mr Chief Justice MAXEY in Carnegie-Illinois Steel Corporation v.United Steel Workers of America, 353 Pa. 420, 429, 45 A.2d 857,861, that "Forcibly to deny an owner of property or his agents and employes access to that property . . . is in practical and legal effect a seizure or holding of that property." We do not mean to be understood as ruling that any particular number of isolated instances of the application of force, violence or intimidation to prevent persons from entering an employer's plant or factory necessarily amounts in legal effect to a seizure and holding of the property. But when, as here, such occurrences are for the purpose of implementing an expressly declared intent or policy to prevent such ingress and egress there is a seizure and holding within the meaning of the Act of 1939.
Freed from the restrictions imposed by the Labor Anti-Injunction Act there is no doubt that plaintiff is entitled to an injunction in this case. The Court is not unmindful of, and certainly not unsympathetic with, the trend which has developed in connection with the issuance of injunctions in labor disputes from the days when even peaceful picketing was enjoined4 to the present time when the Norris-LaGuardia Act and the Pennsylvania statute have declared current public policy *Page 457 with respect to that subject. We said in theCarnegie-Illinois Steel Corporation case, supra, (pp. 430, 431,45 A.2d 857, 861): "Injunctions are not issued against picketing when the latter's only purposes are to advertise the fact that there is a strike in a certain plant and to persuade workers to join in that strike and to urge the public not to patronize the employer". We have so held since the decision inKirmse v. Adler, 311 Pa. 78, 166 A. 566. The right of picketing, when free from coercion, intimidation and violence,5 is a right constitutionally guaranteed as one of free speech:Senn v. Tile Layers Protective Union, 301 U.S. 468, 478;Thornhill v. Alabama, 310 U.S. 88; American Federation of Laborv. Swing, 312 U.S. 321; Cafeteria Employees Union, Local302 v. Angelos, 320 U.S. 293. But picketing to the extent to which it is designed to seize and in effect does seize and hold the employer's plant by the methods here employed does not fall within either constitutional, statutory, common law or equitable protection.
Plaintiff produced convincing evidence of irreparable damage, not because of any destruction of, or injury to, its plants, but because of the interruption of vital activities necessary by way of preparation for future business and production.
The order of the court below is reversed, and the record remanded with direction to issue an injunction enjoining and restraining defendant Union, its officers, representatives, agents and members and all other persons acting in concert with them (1) from preventing or attempting to prevent, by mass picketing, violence, intimidation or coercion, any person or persons from entering or leaving plaintiff's plants and properties and (2) from in any other manner seizing or holding *Page 458 said plants and properties. Said injunction to be effective upon the filing of plaintiff's bond in the sum of $10,000, with surety approved by the court, in manner and form required by law, and to continue until final hearing. Each party to bear its own costs.
1 The Union subsequently agreed to place the name of this witness on the list of those entitled to admission.
2 These two witnesses were later added to the list of those permitted by the Union to enter.
3 The offer was overruled and the letter rejected, but in our opinion improperly.
4 Murdock, Kerr Co. v. Walker, 152 Pa. 595, 25 A. 492; WickChina Co. v. Brown, 164 Pa. 449, 30 A. 261; O'Neil v. Behanna,182 Pa. 236, 37 A. 843; Jefferson and Indiana Coal Co. v.Marks, 287 Pa. 171, 134 A. 430; American Steel Foundries v.Tri-City Central Trades Council, 257 U.S. 184.
5 Kirmse v. Adler, 311 Pa. 78, 83, 88, 166 A. 566, 568, 570;Milk Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies,Inc., 312 U.S. 287; cf. Cafeteria Employees Union, Local 302 v.Angelos, 320 U.S. 293, 296.