This court, in common with nearly all the courts of this country, including particularly the United States supreme court, has in recent years held that "peaceful picketing" as such is lawful and may not be enjoined. But what is "peaceful picketing"? The meaning of that term or, more properly, the scope of permissible activity included therein, is the rock upon which the claims of individuals, and the pronouncements of judges as well, have split.
If all men were agreed, or accepted the principle, that "peaceful picketing" is simply a method of human communication through which an individual, or a group of individuals, by means of the spoken word, the inscribed letter, or the printed sign, endeavors to make known his, or their, ideas, contentions, or aspirations with regard to a matter of public interest, to another or others willing to be informed thereon, with the accompanying purpose of persuading the listener or observer that the cause or claim of the communicant is righteous or just, and of winning the sympathy or even the legitimate active support of the person or persons thus addressed, there would seldom if ever be occasion for judicial pronouncement or even for personal dispute concerning the right of the one purveying such information to do so. But if the dimensions of "peaceful picketing" are limited only by the ends *Page 513 sought to be gained, regardless of the means employed or of the by-products of its exercise, then there arises the question whether the asserted right of communication is absolute and predominant, sanctioned and protected by the supreme law of the land, or whether it is a relative right only, to be exercised in consonance with the equally protected rights of others and subject to limitations or restraint at the hands of a judicial tribunal.
It has never been successfully contended by anyone that the right is absolute, that the ends justify the means, or that an unwarranted exercise of the privilege may not be restrained. Indeed, the term "peaceful picketing," though in itself a mixed metaphor, has always been understood, by the courts at least, as the incarnate vehicle of persuasion, devoted to the art or power of influencing the mind of another by statement, argument, reason, entreaty, or appeal. The delicate, and usually difficult, question is just how far one may go in the propulsion of that vehicle. Does he occupy the status of one who is always on, andin, the right, before whom all other travelers must immediately come to a stop and ultimately follow his course, regardless of their own intended destination, or is he, too, but a traveler who must recognize the rights of others on the highway of human affairs and at times give way to the crosscurrents of social relations?
To ask the question seemingly is to answer it. At any rate, it has been definitely and comprehensively answered by the highest judicial tribunal in this country, the United States supreme court. The precise matter came to a pointed head in the case ofAmerican Steel Foundries v. Tri-City Central Trades Council (1921), 257 U.S. 184, 66 L.Ed. 189, 42 S.Ct. 72, 27 A.L.R. 360, a case upon which the majority opinion herein relies and from which it makes liberal quotation. In that *Page 514 case, Chief Justice Taft, speaking for the majority of the court, thus posed and answered the very question with which we are here primarily faced:
"How far may men go in persuasion and communication and still not violate the right of those whom they would influence? In going to and from work, men have a right to as free a passage without obstruction as the streets afford, consistent with the right of others to enjoy the same privilege. We are a social people and the accosting by one of another in an inoffensive way and an offer by one to communicate and discuss information with a view to influencing the other's action are not regarded as aggression or a violation of that other's rights. If, however, the offer is declined, as it may rightfully be, then persistence, importunity, following and dogging become unjustifiable annoyance and obstruction which is likely soon to savor of intimidation. From all of this the person sought to be influenced has a right to be free and his employer has a right to have him free."
If "persistence, importunity, following and dogging" do not come within the limits of "peaceful picketing," it goes without saying that actual obstruction, threats, intimidation, and violence are still further without the circle of its permissibility.
It is instructive to note that, in the Tri-City case,supra, the court demonstrated the effect of its answer to the question it had itself propounded, by sustaining an injunction against obstruction, intimidation, threats, or violence, but at the same time denying an injunction against peaceable communication and persuasion. It is also worthy of note that the court specifically stated that each case must turn on its own circumstances and that it becomes a question for the judgment of the chancellor, who has heard the witnesses, familiarized himself with the locus in quo, and observed the tendencies to disturbance and conflict, the purpose always being to prevent the inevitable intimidation *Page 515 occasioned by the presence of groups of pickets, but yet to allow "missionaries" for the furtherance of the legitimate objectives attainable by true peaceful picketing.
In the same term of court (December, 1921) in which theTri-City case, supra, was decided, the supreme court of the United States also pronounced its decision in the case of Truaxv. Corrigan, 257 U.S. 312, 66 L.Ed. 254, 42 S.Ct. 124, 27 A.L.R. 375. In that case, the majority opinion held invalid, as being in contravention of the fourteenth amendment, a statute of the state of Arizona which withdrew from the courts the right to issue injunctions in cases arising out of disputes between employers and employees concerning terms or conditions of employment, unless interposition by injunction should be necessary to protect property from injury through violence. Although there was a serious division in the personnel of the court upon the main question there involved, it was recognized by all of the justices, by express statement, that peaceful picketing was lawful.
That case is of particular interest in the present connection, however, because of the dissenting opinion by Mr. Justice Brandeis, whose thesis was that
"A State is free since the adoption of the Fourteenth Amendment, as it was before, not only to determine what system of law shall prevail in it, but, also, by what processes legal rights may be asserted, and in what courts they may be enforced,"
and
"so it [the state] may determine for itself, from time to time, whether the protection which it affords to property rights through its courts shall be given by means of the preventive remedy or exclusively by an action at law for compensation."
While the dissenting opinion upheld the right of Arizona to enact a statute withdrawing the remedy by *Page 516 injunction in such cases, it as fully recognized the right of other states to preserve to their courts the authority to issue injunctions in the same character of cases. The point is mentioned here only for the reason that, in this state, it has been decided, in cases involving labor disputes, that the courts are vested with power, in the exercise of their equity jurisdiction, to issue writs of injunction, and that such power cannot be abolished or abridged by the legislature. Blanchard v.Golden Age Brewing Co., 188 Wn. 396, 63 P.2d 397; Chin Onv. Culinary Workers Soft Drink Dispensers Union, 195 Wn. 530,81 P.2d 803; Adams v. Building Service Employees Union,197 Wn. 242, 84 P.2d 1021; Bloedel Donovan Lbr. Mills v.International Woodworkers, 4 Wn.2d 62, 102 P.2d 270.
With this understanding of the meaning, scope, and limitations of "peaceful picketing", we may consider the facts in this case. Appellant operates two sawmill plants near Everett in Snohomish county. In 1937, a considerable number of its employees became members of one of respondent unions, the Lumber Sawmill Workers Union, Local No. 2653 (A.F. of L.). A working agreement was entered into by and between that union and appellant. Thereafter, on April 15, 1939, the union itself terminated the agreement, assigning as the reason, expressed in its letter of that date, "pressure from within our organization and the men in the plant refusing to join the organization." Apparently, at that time a number of appellant's employees were affiliated with Local 101, International Woodworkers of America (C.I.O.), which is a rival of respondent union.
In July, 1940, Local 101 had thirty-six members among appellant's employees. By September of that year, however, the number increased to more than six hundred. In October of the same year, appellant's employees, exclusive of office and supervisory assistants, *Page 517 numbered approximately twelve hundred seventy-seven. Of these, over eight hundred had then become members of Local 101 (C.I.O.), and not more than twelve were members of respondent Local 2653 (A.F. of L.). Thus, the latter union then had not more than a one per cent representation among appellant's employees.
On October 29, 1940, respondents stationed pickets at the entrance of appellant's two sawmill plants and began picketingen masse. During the mornings, the number of pickets thus maintained ranged from five hundred to six hundred men. At other times, a smaller group was stationed in front of the mills, but always in sufficient numbers to constitute mass picketing and to prevent employees and other persons from entering the plants.
Appellant's manager on seeking admission to one of the plants was stopped and was told that, before he could enter he would have to get a permit from the business agent of the District Council of Lumber Sawmill Workers at the Everett labor temple. The foreman of one of the mills was prevented from entering the plant at a time when there were six hundred pickets present; he saw two of the men take clubs out of a nearby automobile. Appellant's manager entered the plant while it was being picketed by about five hundred men, but was first stopped and was told: "We aren't letting anybody go through." Appellant's personnel officer made an attempt to enter one of the plants, when the business agent above referred to, standing in front of the line of pickets, said to him: "Well, Mr. Nicholson, we are running things now." Appellant's attorney sought admission to the plant on one occasion but was stopped by the pickets and was informed that he could not enter unless he had a union card; however, with the permission of the pickets he *Page 518 was permitted to drive his car a few feet forward, turn around, and go away. One of the appellant's salesmen desired to visit the plant. His testimony as to what occurred was as follows:
"I drove down along the public street to where it turns off to go down into the Mill; a half dozen men stepped out in front of my car and one man said, `where in hell do you think your going?' I said, `I am going down to the Mill' and he said, `That is what you think, you are not.' I said, `What is this, a picket line, a blockade?' and he said, `You can take it for what you like, you are not going in.' I said, `I worked for this Company for 35 years, I helped to build these Mills and I feel some injustice is being done in not leaving me in it.' and he said, `You can go to the Labor Temple.' He reached in my side window and grabbed my wheel and said, `If you attempt to go in you will go down that bank.' In the meantime they were spreading cord wood in front of my car and I saw it was no use and started to turn around and they said, `You back up.' I telephoned the office and that was the first time I knew that there was no one in the office. Saturday was the first day I had a notion to go in."
The result of these tactics, which continued over a period of a week, was that the mills closed down and remained closed until after the hearing on appellant's application for a temporary injunction.
Was this "peaceful picketing?" Was this an attempt topersuade by argument, reason, entreaty, or appeal, with the view of convincing the listener or observer of the righteousness or rightness of a cause, and of winning his sympathy and his legitimate active support? A partial answer at least is found in the opening paragraph of respondent's brief:
"During the trial of the case, we stated very clearly that the acts of misconduct on the part of the pickets, including any conduct which in fact or by threat prevented any officer, employee or customer or any other person from entering the premises, and the permit system *Page 519 of gaining ingress to the plant, were wrong and that immediate steps would be taken to prevent their recurrence. We also stated during the proceedings that we had no objection to an injunction inhibiting these acts, and the orders on these subjects are very largely our own drafts. The testimony showed that several Everett sawmills were shut-down for a portion of the time, and that these employees, including others from Snoqualmie and Tacoma were there picketing."
The trial court, in its oral ruling given at the conclusion of the preliminary hearing, correctly gauged the situation and accurately defined the scope of "peaceful picketing," as follows:
"The Court is clearly of the opinion that this picketing has been unlawful. The presence of any number of men on a picket line [meaning, I think, an aggregation in excess of the number reasonably necessary in order to disseminate permissible information], if they did nothing in the world, is of itself not peaceful. Its purpose and effect is to intimidate those who want to go to work. As I say, it can't have any other purpose and can't have any other effect. So, clearly, if the evidence shows that five or six hundred or even one hundred pickets did nothing at all by way of molesting anybody, I think very clearly such picketing would have to be enjoined. This is for the fundamental reason that picketing is lawful for the dissemination of information by placards and the handing out of bandbills and I presume by word of mouth if other persons desire to talk to the pickets. But in addition to the number of pickets that are congregated there they indulge in conduct that is clearly unlawful. Now from the evidence it is quite clear that a policy has been maintained out there that only those who had received cards with the sanction of the union are permitted to enter. Regardless of other facts it is the opinion of this Court that such conduct is unlawful; it is not peaceable and constitutes intimidation. The constitutional and legal right of a labor union to tell the public that the products of that employer are unfair to labor, that their wages are too small or even that they should join a certain union of course is *Page 520 circumscribed by the constitutional right of the fellow who wants to go in there."
It is true that the trial court entered a temporary decree and also a final decree, each enjoining respondent from picketing appellant's premises in any other manner than by maintaining not more than five pickets at the main entrance of the plants, in a peaceable and orderly manner, to advise the public or persons entering the premises of the existence of a labor dispute at the mills and the facts concerning it, and further enjoining them from molesting, hindering, obstructing, or interfering with any persons, whether employees, customers, or others, seeking to enter or leave appellant's premises. But, despite the fact that the court did set some limitations upon allowable activities, nevertheless, under the circumstances shown by this record, as already set forth herein, I do not believe that the injunction went far enough. I am of the opinion that, under the conditions described above, the decrees should have enjoined all picketing whatsoever of the premises by respondents. My reason for this conclusion is not that "peaceful picketing" in its proper sense is enjoinable, but rather because the acts of respondents did not constitute, or include any semblance of, "peaceful picketing" at all. Their conduct was made up of threats, force, and intimidation pure and simple. The only reason that it did not mount to actual violence and serious injuries was merely because those who endeavored to enter the premises believed that the picketers were "men of their word" and would mete out punishment instantly if their orders were not at once obeyed. No average man, single-handed and alone, would tempt further "persuasion" of that character, nor entertain the slightest doubt as to the finality of the "argument." Any lingering desire to be further edified on a matter of possible "public interest" would be *Page 521 wholly submerged in an obsession to get elsewhere as quickly as possible.
Respondents' purpose was not to inform the public of the merits of their cause, nor to induce others, by persuasion, to join their ranks; on the contrary, their purpose was to stop all operation of the plants and to prevent all ingress to them. It was an unlawful undertaking from its beginning, and should have been enjoined in its entirety. There was no occasion to decide at that time what respondents might have been allowed to do had they proceeded lawfully or what they should be allowed to do under a different atmosphere. They themselves had created the emergency, and the only adequate remedy, in my opinion, was to enter an injunctive order which would have the effect of restoring as nearly as possible the situation existing before the trouble occurred. When that situation shall have been fully attained, when the impact of recent events upon appellant's business, its employees, and customers shall have disappeared, when normal conditions shall have been with some degree of certainty reestablished, then will be the time for respondents to proceed lawfully in the manner in which they are entitled to act, in an endeavor to publicize their grievances and to gain whatever advantage and support their claims may merit. But to permit them to inaugurate a campaign inspired by intimidation, threats, and violence, followed by a belated apology for excessive misconduct and a promise of better behavior in the future, which is, however, accompanied by a demand or request that they be thenceforward allowed to prosecute their initial purpose in a manner that would have been originally permissible to them, is simply to sanction a routine method through which similar situations will be created by others in the future. The best evidence of repentance for wrongs done is to make amends for the past, and *Page 522 the most effective way to forestall the recurrence of a disturbance on the part of one intent on fomenting it, is to remove him, temporarily at least, from the scene of the conflict.
I am well aware that within the last five years, and particularly within the last two years, the right of "peaceful picketing" has been declared to have its roots in the first and fourteenth amendments to the Federal constitution, guaranteeing and protecting the right of freedom of speech, or freedom of discussion. Senn v. Tile Layers Protective Union, 301 U.S. 468,81 L.Ed. 1229, 57 S.Ct. 857; 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; Milk Wagon Drivers Union v.Meadowmoor Dairies, 312 U.S. 287, 85 L.Ed. 836, 61 S.Ct. 552, 132 A.L.R. 1200; American Federation of Labor v. Swing,312 U.S. 321, 85 L.Ed. 855, 61 S.Ct. 568.
Those cases have caused considerable discussion, and I have no doubt will continue to do so for some time to come. I also believe that the supreme court of the United States will have further occasion to expound the doctrine of those cases as future situations clamor for decision. But, regardless of my own views with respect to the interpretation which the court of last resort has recently given to "peaceful picketing," I find nothing in those cases which compels a result different from my conclusions stated above. To the contrary, I discover in them much to support the disposition which I have suggested. Let us examine those decisions.
In the Senn case, supra, the United States supreme court was called upon to decide whether the due process clause and the equal protection clause of the fourteenth amendment were violated by a provision *Page 523 of the Wisconsin labor code which legalized acts or conduct
"Giving publicity to and obtaining or communicating information regarding the existence of, or the facts involved in, any dispute, whether by advertising, speaking, patrolling any public street or place where any person or persons may lawfully be,without intimidation or coercion, or by any other method notinvolving fraud, violence, breach of the peace, or threatthereof." (Italics mine.)
and which also legalized peaceful picketing or patrolling, whether engaged in singly or in numbers, and prohibited any court from issuing any restraining order or injunction against any of such acts.
The supreme court, after reciting the facts in the particular case, specifically stated:
"The sole purpose of the picketing was to acquaint the public with the facts and, by gaining its support, to induce Senn to unionize his shop. There was no effort to induce Senn to do an unlawful thing. There was no violence, no force was applied, nomolestation or interference, no coercion. There was only thepersuasion incident to publicity." (Italics mine.)
As if to emphasize the peaceful character of the acts permitted, the court distinguished the case from the decision in Truax v.Corrigan, supra, saying that the conduct enjoined in the Truax case was
". . . not simply peaceful picketing, not `lawful persuasion or inducing,' not `a mere appeal to the sympathetic aid of would-be customers by a simple statement of the fact of the strike and a request to withhold patronage,'"
but "consisted," among other things, of "threats and intimidation directed against customers and employees." If the Wisconsin statute had legalized acts of the kind shown in this record, the supreme court of the United States would have had a different question *Page 524 to answer, and I think its answer would likewise have been different.
Thornhill v. Alabama, supra, was the first of the more recent cases. In that case, petitioner Thornhill had been convicted of a violation of a statute which made it unlawful for any person, without just cause or legal excuse, to go near to or loiter about any place of lawful business, for the purpose, or with the intention of influencing or inducing other persons not to buy from, deal with, or be employed at, such place of business, or to picket a place of lawful business for the purpose of impeding, interfering with, or injuring such business. The judgment of conviction was reversed by the United States supreme court on the ground that the statute was unconstitutional in that it abridged freedoom of speech as secured by the first and fourteenth amendments.
Stressing the thought that freedom of speech and of the press were fundamental rights and liberties essential to free government, and emphasizing the necessity of assiduously guarding against their abridgement, the supreme court said:
"It is imperative that, when the effective exercise of these rights is claimed to be abridged, the courts should weigh the circumstances' and `appraise the substantiality of the reasons advanced' in support of the challenged regulations."
The vice of the Alabama statute was, as the United States supreme court pointed out, that it had been construed and applied by the state court
". . . so as to prohibit a single individual from walking slowly and peacefully back and forth on the public sidewalk in front of the premises of an employer, without speaking to anyone, carrying a sign or placard on a staff above his head stating only the fact that the employer did not employ union men affiliated with the American Federation of Labor; the purpose of the described activity was concededly to advise customers *Page 525 and prospective customers of the relationship existing between the employer and its employees and thereby to induce such customers not to patronize the employer. O'Rourke v.Birmingham, 27 Ala. App. 133, 168 So. 206, cert. denied,232 Ala. 355, 168 So. 209. The statute as thus authoritatively construed and applied leaves room for no exceptions based upon either the number of persons engaged in the proscribed activity,the peaceful character of their demeanor, the nature of theirdispute with an employer, or the restrained character and theaccurateness of the terminology used in notifying the public ofthe facts of the dispute." (Italics mine.)
It is not at all surprising that a statute so phrased and so construed, should be held unconstitutional. But the language just quoted does not describe the situation presented in this case.
Near the end of the Thornhill opinion, we find this illuminating statement, which may be considered in connection with the facts presented in the case at bar:
"The power and the duty of the State to take adequate steps to preserve the peace and to protect the privacy, the lives and the property of its residents cannot be doubted. But no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter. We are not now concerned with picketing en masse or otherwise conducted which might occasion such imminent and aggravated danger to these interests as to justify a statute narrowly drawn to cover the precise situation giving rise to the danger."
In the case at bar we have "a precise situation" giving rise to "imminent and aggravated danger," and, further, no statute restricting the right of peaceful persuasion is here involved.
The companion case of Carlson v. California, supra, was the counterpart of the Thornhill case, and involved *Page 526 a conviction for violation of an ordinance similar in its prohibitions to the Alabama statute. There had been no molestation, interference, threat, intimidation, or coercion. The decision was based squarely upon the Thornhill case, and therefore needs no further explication here.
We come next to the case of Milk Wagon Drivers Union v.Meadowmoor Dairies, supra. Of all the cases hereinbefore cited, this one approaches the nearest to the case at bar, and I am constrained to believe that it is direct authority for enjoining all picketing in the instant situation. The Meadowmoor case is in line with all of the others in that it, too, upholds the doctrine that "peaceful picketing" is a species of speech and is protected by the first and fourteenth amendments, but the majority opinion squarely holds that the right loses its protection when its exercise becomes enmeshed with violence. The entire opinion might well be quoted, but space forbids. I will, however, quote at some length those portions which I think bear directly upon the problem before us and justify the issuance of an absolute and unqualified injunction herein.
The supreme court of the United States said:
"The question which thus emerges is whether a state can choose to authorize its courts to enjoin acts of picketing in themselves peaceful when they are enmeshed with contemporaneously violent conduct which is concededly outlawed. . . . Such a decree [of injunction by a state court], arising out of a particular controversy and adjusted to it, raises totally different constitutional problems from those that would be presented by an abstract statute with an overhanging and undefined threat to free utterance [as in the Thornhill and Carlson cases, supra]. To assimilate the two is to deny to the states their historic freedom to deal with controversies through the concreteness *Page 527 of individual litigation rather than through the abstractions of a general law. [p. 292] . . .
"Peaceful picketing is the workingman's means of communication.
"It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the guarantee of free speech lay faith in the power of an appeal to reason by all thepeaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rationalmodes of communication that the guarantee of free speech was given a generous scope. But utterance in a context of violencecan lose its significance as an appeal to reason and become partof an instrument of force. Such utterance was not meant to besheltered by the Constitution. [p. 293]
"The place to resolve conflicts in the testimony and in its interpretation was in the Illinois courts [where the case arose] and not here. To substitute our judgment for that of the state court is to transcend the limits of our authority. And to do so in the name of the Fourteenth Amendment in a matter peculiarly touching the local policy of a state regarding violence tends to discredit the great immunities of the Bill of Rights. No one will doubt that Illinois can protect its storekeepers from being coerced by fear of window-smashings or burnings or bombings. And acts which in isolation are peaceful may be part of a coercive thrust when entangled with acts of violence. The picketing inthis case was set in a background of violence. In such a settingit could justifiably be concluded that the momentum of feargenerated by past violence would survive even though futurepicketing might be wholly peaceful. [p. 294]
"The Fourteenth Amendment still leaves the state ample discretion in dealing with manifestations of force in the settlement of industrial conflicts. . . . A state may withdraw the injunction from labor controversies but no less certainly the Fourteenth Amendment does not make unconstitutional the use of the injunction as a means of restricting violence. We findnothing in the Fourteenth Amendment that prevents a state if itso chooses from placing confidence in a *Page 528 chancellor's decree and compels it to rely exclusively on apoliceman's club. [p. 295]
"It is therefore relevant to remind that the power to denywhat otherwise would be lawful picketing derives from the powerof the states to prevent future coercion. . . . [p. 296]
"We do not qualify the Thornhill and Carlson decisions. We reaffirm them. They involved statutes baldly forbidding allpicketing near an employer's place of business. Entanglement with violence was expressly out of those cases. The statutes had to be dealt with on their face, and therefore we struck them down. . . . We would not strike down a statute which authorized the courts of Illinois to prohibit picketing when they should find that violence had given to the picketing a coercive effect whereby it would operate destructively as force and intimidation. [p. 297]
"Nor ought state action be held unconstitutional by interpreting the law of the state as though, to use a phrase of Mr. Justice Holmes, one were fired with a zeal to pervert. If an appropriate injunction were put to abnormal uses in its enforcement, so that encroachments were made on free discussion outside the limits of violence, as for instance discussion through newspapers or on the radio, the doors of this Court are always open. [p. 298]
"A final word. Freedom of speech and freedom of the press cannot be too often invoked as basic to our scheme of society. But these liberties will not be advanced or even maintained by denying to the states with all their resources, including the instrumentality of their courts, the power to deal with coercion due to extensive violence. [p. 299]" (Italics mine.)
I can readily subscribe to every statement made in the foregoing quotations if they be realistically applied. And I am morally certain that, if the sentiments therein expressed were accepted and followed by those engaged in labor disputes, there would be no occasion for the issuance of an injunction, or even for the application for one. Once it is known and fully understood *Page 529 that picketing entails no violence, threats, or intimidation, at that very moment will picketing cease to induce the fear that is now so prevalent, and the public and those concerned in a labor dispute will accept picketing for what it should be, "a means of communication" for "gaining access to the mind."
The last of the cited cases is that of American Federation ofLabor v. Swing, supra. That case presented to the United States supreme court, as stated in its opinion, simply
". . . an instance of `peaceful persuasion' disentangled from violence and free from `picketing en masse or otherwise conducted' so as to occasion `imminent and aggravated danger' . .. "
It was therefore held, in accordance with the prior decisions, that a decree enjoining all picketing, whether peaceful or otherwise, constituted a ban on free communication and was inconsistent with the guarantee of freedom of speech. That case has no application here.
In the light of the position taken by the United States supreme court on such matters generally, I am of the opinion that the injunction herein should have been made complete and absolute.
There remains to be considered the second branch of the majority opinion, wherein it is held that, even though appellant has entered into a working agreement with the bargaining agency (International Woodworkers of America — C.I.O.) chosen by a majority of its employees, nevertheless, until the bargaining agency so selected has been certified by the National Labor Relations Board, respondents may still continue to picket appellant's premises. It is apparently conceded by the majority that, after a bargaining agency has been certified by the National Labor Relations Board, the minority union is bound thereby and may *Page 530 be enjoined from picketing the employer. The result in the case at bar is thus made to rest upon the fact that the bargaining agency in this instance had not yet been officially determined by the National Labor Relations Board. A number of Federal court cases are cited in support of the majority's conclusion, and I concede that they do so hold. None of those decisions, however, are by the United States supreme court, and we are therefore not bound by them. Until the supreme court affirms the principle of those decisions, I am not inclined to follow them, under a state of facts such as we have here.
Appellant's employees by an overwhelming majority selected their bargaining agency. The number of its employees who are members of respondent Local No. 2653 is negligible. Appellant entered into a working agreement with the bargaining agency, and except for the less than one per cent who belong to Local No. 2653, all its employees are satisfied with that agreement and desire to work under it. They were prevented from so doing by the acts of respondents. If appellant should bargain with the respondent minority union in order to put an end to picketing, it would find itself immediately embroiled in an even more serious dispute with the majority union. Furthermore, if appellant should enter upon negotiations with the respondent minority union, the majority union could charge it with unfair labor practice under § 8 (5) of the national labor relations act, despite the fact that the majority union, so far as the record shows, has not yet been formally certified as the bargaining agent for appellant's employees. National Labor Relations Board v. Louisville RefiningCo., (C.C.A. 6th), 102 F.2d 678; National Labor RelationsBoard v. Piqua Munising Wood Products Co., (C.C.A. 6th),109 F.2d 552; National Labor Relations Board v. *Page 531 Dahlstrom Metallic Door Co., (C.C.A. 2nd), 112 F.2d 756.
The net result would be that, in any event, appellant would find itself in a perpetual state of siege, first by pickets of one union and then by pickets of the other, all exercising their right of "freedom of speech" until appellant was ruined and all its employees, of both unions, were thrown out of work.
That is not all. The principle upon which the majority relies would not settle the matter, for under §§ 13 and 9(a) of the national labor relations act (29 U.S.C.A. (Sup.), §§ 163, 159a) a minority union and its members may still strike and bargain for themselves even after the majority union has been certified as the bargaining agency. Therefore, if "peaceful picketing" is a form of speech, the freedom of which is secured by the constitution, the members of the respondent minority union must likewise be permitted to continue picketing appellant's premises, even though the majority union may have by then been certified as the bargaining agency.
It is all very well for a court to dismiss the matter with a wave of the hand by saying that it is a subject for Congress to consider. But what about the employer? What about the vast majority of employees who desire to work under a valid agreement with their employer? What about the interests of the public? We are here faced with grim realities. "Judges need not be so innocent of the actualities of such an industrial conflict as this record [in this, i.e., the Meadowmoor case] discloses" as to be unable to find a remedy for a situation that demands immediate and effective action. The injunction should, in my opinion, have been made complete and absolute upon the second branch of the case as well as upon the first.
I dissent. *Page 532