I would affirm the decree of the Circuit Court of Kanawha County, to the extent that it enjoins the defendants from picketing the stores and places of business of the plaintiff, on the ground that the banners used in said picketing contained a false statement of the attitude of the plaintiff with respect to organized labor, and on that ground alone. I dissent from the majority opinion which, in effect, holds that the charge that the plaintiff was unfair to organized labor, even though untrue, did not justify *Page 175 the awarding of the permanent injunction in this cause. I feel that the principle followed in the majority opinion, if carried to its logical conclusion, will result in every employer being subjected to the threat of "picketing", if not the practice, in utter disregard of his agreements and contracts with labor unions. Further, it opens the door to practices which are calculated to result in lasting hurt to organized labor, although, in fairness to the defendants, it should be said that in the case at bar there is nothing on which even a suspicion of such practices can be based.
In my opinion the real test of whether or not an employer is unfair to organized labor rests in his attitude toward collective bargaining, coupled, of course, with his practices with respect thereto. The principle of collective bargaining is so well established, both by federal statutes and by the decisions of the courts, state and federal, as to require no discussion. I would say that an employer who refuses to bargain collectively with his employees may truthfully be charged with being unfair to labor; but it does not follow that his failure to bargain with any particular labor union lays him open to the charge of being unfair to organized labor in general. At the present time, there are three, perhaps more,competitive unions of organized labor, national in their scope, and a great many more independent local organizations, in addition to the so-called company unions. These independent unions are treated by the Supreme Court of the United States, and by the federal statutes, as being labor organizations, with which an employer may contract, provided they are entirely free from his influence, exerted either in the organization thereof, or subsequent thereto. They are recognized by law, and entitled to the same recognition by employers as if they were associated with some national labor movement, and employers should be permitted to bargain and contract with them to the same extent as if they were so associated, and I think the employer who bargains with such independent union, contracts with it, and keeps his contract, cannot truthfully be charged as unfair to organized labor in general. The answer of the defendants, on the presentation of this matter to the circuit *Page 176 judge, included in the contention that the union with which the plaintiff company contracted was controlled by the employer. It is now practically conceded that even if the burden were placed upon the employer to show that the union with which he had bargained and contracted was not so controlled, he being the one to whom that proof is most available, that burden has been successfully carried by the complainant here.
The basic principle of collective bargaining does not relieve labor of all semblance of competition, but every organization representing an available membership sufficient to operate the unit involved, has the status to bargain collectively. The employer may bargain with more than one organization exercising the same jurisdiction, but all but one must be excluded when the contract is entered into, and all but the one with whom the contract is made may consider that the employer has treated them unfairly. No one questions their right, as an organization, or as individuals, to reach that conclusion, nor is their right questioned to voice that conclusion in any manner they wish so long as they adhere to the truth. The courts are agreed that a harmful "false" statement by placard, or otherwise, may be enjoined, and under the law of slander and libel, it may be punished by recovery of punitive damages.
I believe, therefore, that the basic question in this case, which, fortunately, involves peaceful picketing, and a prompt and full compliance with the injunction order, appealed from, is whether or not the placard's statement "Blossom Dairy Company Unfair to Organized Labor" is to be regarded as true, or otherwise. The majority opinion takes the position that because the word "unfair" in the usage of the' different labor units, is used as applying to any and all labor controversies, that it should be so accepted in the case at bar, and cite a number of cases, which, in varying degrees, sustain that viewpoint. In that event, the statement of the placard is true only because Teamsters Union No. 175 was refused a contract which it wanted. Is that unfair? Of course, if the expression were addressed and confined to a class of persons who would accept it as meaning only a controversy with one union, it might be *Page 177 taken as correct, meaning only that the employer was engaged in a controversy with some branch of organized labor, in spite of the fact that he was then operating under a fair and binding contract with a different branch of organized labor covering exactly the same employment. That view, however, would render every employer in the State of West Virginia subject to picketing, because he could not agree with both sides in a jurisdictional or inter-labor controversy. On the other hand, if the placards are looked at as addressed, not to organized labor exclusively, but to the public at large, it seems to me quite clear that the words "unfair to organized labor", in common acceptation, means the refusal to recognize the only basic principle for which all organized labor, including the largest units, and not excepting the smallest unit, is known by all to stand united, that is to say, the theory of collective bargaining. No employer can recognize every designation borne by labor organizations, for there is strife and competition within them, the harmful consequences of which, fair employers, willing to recognize collective bargaining as a basic principle, should not be obligated to suffer. There can be no question but that the plaintiff had fully recognized, in so far as the showing of this record is concerned, the principle of unhampered collective bargaining. It had a contract, shown to be satisfactory to an independent union, with which it had no direct or indirect interest or influence. That character of union is generally recognized as being a part of organized labor, and, therefore, in my judgment, the particular statement upon the placard before us here is not borne out by the facts. A plausible argument could be made in support of the proposition that if the placard had been limited to unfairness to Teamsters Union 175, or limited to the statement of unfairness to the general opinion of that union, so that people intended to be affected by it would not have accepted it as meaning the rejection of the principle of collective bargaining, the practice could be successfully defended. But even in that case, it occurs to me that if terms are to be considered as used in their common acceptation, and if, under the law, civil liability rested upon the false use of the term in *Page 178 that sense, a dissatisfied local labor union should not be accorded the special privilege of using language known and intended to mislead the public at large to the damage of another, because the term might be susceptible of a technical definition different from its general acceptation by the public.
The majority opinion attempts to minimize the effect of the use of the term "Unfair to Organized Labor". It is said, in effect, that it means little, or nothing. It seems to be forgotten that this term is almost universally used in picketing, and that its purpose is to injuriously publicize an employer's attitude toward labor, so as to cause regular and prospective customers to refuse to patronize the business picketed, and thereby operates to coerce an employer to yield to the demands of those who direct the picketing. Picketing means this if it means anything. I believe in treating things as they are — in dealing with realities. I see no reason why we should consume words and space in trying to attach technical meanings to terms employed, or to engage in a play upon words. We know the practical effect and purpose of picketing and of the use of the charge that an employer is unfair to labor, and we know its effect on the business towards which the charge is directed. All the explanations which learned lawyers and judges can make touching the use of the term do not erase the fact that the purpose of its use is to force compliance by an employer with some demand made upon him by those who engage in picketing. The numerous cases, pro and con, cited in the majority opinion on this point, emphasize the fact that courts, instead of dealing with realities, sought in this manner to justify a course of action which, for some reason, they were anxious to take. I am of the opinion that the day will come when disputes between employer and employee will be settled on the basis of absolute fairness to each, and that false statements and unfair practices on the part of either will, in a large measure, disappear, and certainly will have no legitimate place in the settling of controversies. I think a good time to begin is now. I think this Court should say that, so far as we are permitted to judge, employers and employees *Page 179 alike should be protected against false statements which are calculated to prejudice their interests.
In connection with what has been said, it should be here stated that there can be no legitimate and real collective bargaining where the parties thereto are not entirely free to act in their respective interests. Therefore, there can be no true collective bargaining between an employer and his employees where the union bargained with is one which has been established, encouraged, supported or in anywise subject to the influence of the employer. To state the matter concretely, if the plaintiff herein encouraged or influenced the formation of the Brotherhood of Dairy Salesmen, Inc., a contract with that organization would be unfair to labor in general, and peaceful picketing of its places of business would be justified under the law. However, such a situation does not here exist. The majority opinion, affirming the opinion of the trial court on that point, holds that the Brotherhood of Dairy Salesmen, Inc., was a legitimate independent union, free from the influence of the plaintiff, and one protected and recognized as such, and one with which the plaintiff had the right to deal. The Court is unanimous in this holding, and it is unnecessary for me to comment on the reasons therefor.
The majority opinion admits that the defendants have failed to establish by proof the charge of unfairness set out in their answer, namely, that the independent union with which the plaintiff contracted was a "bogus" or "phony" union. It also admits that giving publicity to a falsehood, while peacefully picketing an employer's place of business is not protected by the constitutional guarantee of free speech, and then cites many cases sustaining this proposition. In spite of these admissions, which, in my judgment, should be determinative of this case, the opinion then goes on to ignore the logical application of these admissions, and because of some doubt as to the real technical meaning of the term "unfair to labor", sustains the right of the defendants to give publicity to a charge found by the court to be untrue. I am unable to follow this line of reasoning. How can it truthfully be said that the plaintiff, in contracting with this independent union was unfair to *Page 180 labor? How can we justify the parading of banners in front of its places of business which publish the charge that it is unfair to labor, and thereby endanger its business future? Is not an employer who has bargained and contracted with a legitimate labor union entitled to some protection? Must he be sacrificed to existing strife between different labor organizations? Has he no rights which the law will protect?
I realize the force of the position of the defendants that independent unions serve to weaken the prestige and influence of nationally organized labor. I can well understand the reasons for the policy of the nationally organized unions in seeking to bring within their folds all of the workers of the country. I am fully aware of the fact that if all of the workers were organized into one great national union, the power and influence of that organization would be greater than it now is where labor is organized in different groups. But I do not think anyone possesses the right or power to force membership in any given union upon any individual. To do so would take away individual liberties, and I think individual liberty is still of some consequence. Conceding that the power and prestige of labor would be served by greater unity among the workers, I am still unable to bring myself to the view that men cannot join the union of their choice, or that employers cannot contract with any union which their workers may select as their bargaining agent, without being charged with being unfair to organized labor.
The case before us is simple. The plaintiff dealt with a legitimate labor union. For so doing, the defendants charged it with being unfair to labor. That charge, under the law, and as the trial court and this Court have found, was untrue. In finding that it was untrue, I do not mean to say that it was wilfully publicized with knowledge of its untruth, because the defendants, no doubt, believed the charge to be true. That, however, does not excuse the circulation of a charge that was in fact untrue, and, therefore, the plaintiff is entitled to the protection which, in theory at least, the law throws around those who engage in lawful pursuits. *Page 181
There are two other matters of lesser importance which it seems to me require some comment. First, it is said that the picketing enjoined only lasted one hour, that it was peaceful, and that no damage is shown to have been done plaintiff's business. Granting that this is true, it must not be forgotten that if the picketing had not been enjoined, it may be assumed that it would have continued, and that plaintiff's business would have been injuriously affected thereby. That was the manifest purpose, else why the picketing? It was pressure exerted by picketing, in the belief that plaintiff's business would be injuriously affected thereby, to the extent that it would be forced to comply with defendants' demands. It seems unnecessary to say that injunction is a preventative remedy, and ordinarily, it is sought to prevent the commission of wrongful or damaging acts, rather than to await the consummation of such acts. Second, it is also said that one of plaintiff's managers stated, in effect, that it was immaterial to him and his company what labor union his employees joined, and it is argued that this being true, why this suit? The answer is, the plaintiff had an existing contract with the labor union which a part of its employees had formed. It was bound by the terms thereof, could not lawfully repudiate it, and it was, therefore, wholly within its rights in seeking to avoid injury to its business, while living up to its contract which it lawfully made. No doubt, the plaintiff was unconcerned as to the union to which its employees belonged, and frankly said so. It could say nothing else without being charged with trying to dictate to its employees a thing which it is not permitted to do. The outcry which would have arisen had the plaintiff, through one of its managers, expressed a preference as to the union which it desired its employees to join, can easily be imagined.
There seems to be no evidence in the cause as to the publication of statements through newspapers and otherwise, and I do not wish to argue the question of whether or not the decree of the trial court should be affirmed on the theory that the defendants should be enjoined from attempting to enforce a violation of a lawful contract *Page 182 then in existence. I do not approve, in principle, the theory that any person, under the guise of the exercise of free speech, should be permitted by coercion through picketing to compel the repudiation of such a contract; but the majority may be correct in its position, that we are bound by the rulings of the Supreme Court of the United States on that question.
I would, therefore, affirm the decree of the Circuit Court of Kanawha County on the one point mentioned at the beginning of this dissent.