St. Germain v. Bakery & Confectionery Workers' Union No. 9

Holcomb, J.

(dissenting)—The good faith of the strike in this controversy is not in question.

An examination of the decree set forth in the majority opinion shows that all malevolent, intimidating, and coercive acts were enjoined. Under the terms of the decree there could be no congregating about and no intimidation, coercion, or annoyance of either employees or prospective employees or patrons of the places of business.

This case was tried on facts, and the facts and the law support the decree entered. Notwithstanding what was said in Jensen v. Cooks’ & Waiters’ Union, 39 Wash. 531, 81 Pac. 1069, 4 L. R. A. (N. S.) 302, where was sustained a complaint which, among other things, alleged congregating about the business entrance, and illegal, coercive and intimidative acts, and injuries and damages resulting therefrom, and although the court in passing upon the allegations of the complaint made the observations quoted in the majority opinion, those observations were not entirely pertinent to the question there involved, were not necessary, and part of them are manifestly mere obiter.

The law and the equities of this case seem to me to be settled by the very great weight of authority contrary to the decision of the majority.

One of the leading cases on this question and one which has been often cited by other courts is that of Karges Furniture Co. v. Amalgamated Woodworkers Local Union No. 131, 165 Ind. 421, 75 N. E. 877, 2 L. R. A. (N. S.) 788. In that case, as a threshold proposition, it was held that a trade union *300consisting of an unincorporated association of artisans cannot be sued in its company name in the absence of statute authorizing it, but must be sued in the name of all the individual members thereof. In this state we have no statute authorizing voluntary associations either to sue or to be sued, and hence these unions were not proper parties to this suit and could not be held liable either generally or for the costs.

The principal proposition determined in that case was, as stated in the syllabus:

“Members of a trade union consisting of employees under no contractual restraint may lawfully combine and by prearrangement quit their employment in a body, to' secure from their employers an advance in wages, shorter hours, or any other legitimate benefit, though they know at the time that such action will be attended with injury to their employers’ business, provided the strike is carried on in a lawful manner and free from force, intimidation, and false representation.
“A trade union during a strike may appoint pickets or a committee to visit the vicinity of factories to take note of the persons employed, and secure by lawful means their names and places of residence, for the purpose of peaceful visitation and solicitation by means other than threats, intimidation, etc.”

In the course of the decision in that case, these observations were made:

“A tradesman, singly or in combination with others, may lawfully advertisé his goods, undersell, solicit, and win the customers of his rival, knowing that he is thereby ruining the latter’s business. This is competition, and is what the law commends as ‘the life of trade.’ In such case one loses his property by the acts of his neighbor, but it is damnum absque injuria. But the contest must be a fair and honest one. If the same tradesman, singly or with others, advertises his goods, undersells, solicits, and wins away the customers of his rival by false representations, intimidation or artifice, not to better himself, but to injure his rival, he has committed an actionable wrong. [Authorities.] . . . Whatever one man may do, all men may do, and what all may do singly they may. do in concert, if the sole purpose of the combination is to advance the proper interests of the members, and it is con*301ducted in a lawful manner. [Authorities.] . . . It is argued that the maintenance of pickets at the plaintiff’s factory was an unlawful interference with its business, and that the appointment of, instruction to, and the receiving of daily reports from such pickets constituted all participating members of the union civil conspirators. Whether picketing is lawful or unlawful, depends in each particular case upon the conduct of the pickets themselves. . . . Under no circumstances have pickets the right to employ force, menaces, or intimidation of any kind in their efforts to induce nonstriking workmen to quit, or to prevent those about to take the strikers’ places to refrain from doing so; neither have they the right, as pickets or otherwise, to assemble about the working place in such numbers or in such manner as to impress workmen employed, or contemplating employment, with fear and intimidation. [Authorities.] . . . The law, having granted workmen the right to strike to secure better conditions from their employers, grants them also the use of those means and agencies, not inconsistent with the rights of others, that are necessary to make the strike effective. This embraces the right to support their contest by argument, persuasion, and such favors and accommodations as they have within their control. The law will not deprive endeavor and energy of their just reward, when exercised for a legitimate purpose and in a legitimate manner. [Authorities.] . . . The decided cases are not in harmony with respect to the right to persuade, but the clear weight of authority is to the effect that so long as a moving party does not exceed his absolute legal rights, and so does not invade the absolute rights of another, he may do as he pleases, and.may persuade others to do like him [Authorities.]”

In Iron Moulders’ Union v. Allis-Chalmers Co., 166 Fed. 415, 20 L. R. A. (N. S.) 315, decided by the circuit court of appeals of the seventh circuit, Grosscup, Baker, and Seaman, Judges, portions of a decree entered by the district judge below enjoining the members of the union from in any manner directly interfering with, hindering, obstructing, or stopping the business of complainant or its agents, servants, or employees in the maintenance, conduct, management or operation of its business, and enjoining them from using per*302suasion and from enforcing, maintaining, or aiding in illegal boycott against the company, its agents, or employees, and from endeavoring to illegally induce people not to deal with the company, its agents and employees, were among other things in the decree vacated; and a provision of the decree enjoining the strikers from congregating upon or about the company’s premises or the sidewalk, streets, alleys, or approaches adj oining or adj acent to or leading to the premises, and from picketing the complainant’s place of business, etc., was modified by the circuit court of appeals so as to provide only for injunction against such congregating in such places and picketing in a threatening or intimidating manner. The court quoted with approval the Karges Furniture Co. case above cited, and a great number of other cases by both state and Federal courts, and in the course of the decision observed:

“But attempts to injure each other by coercing members of society who are not directly concerned in the pending controversy to make raids in the rear cannot be tolerated by organized society, for the direct, the primary, attack is upon society itself. And for the enforcement of these mutual rights and restraints organized society offers to both parties, equally, all the instrumentalities of law and of equity. With respect to picketing as well as persuasion, we think the decree went beyond the line.”

The above case was followed but very recently in Tri-City Cent. Trades Council v. American Steel Foundaries, in the circuit court of appeals, seventh circuit, decided December 6, 1916, 238 Fed. 728. In the course of this decision these arguments were made:

“The right to strike to secure higher wages and improved conditions of labor is too firmly established to necessitate further elucidation. From the record here we can reach no other conclusion than that the object of this strike was to secure for plaintiff’s employees the November wage scale of the union. Nothing appears in the record to indicate that this was not in good faith, or to raise the suspicion that the strike was a mere cloak to cover a deliberate purpose to interfere *303with the plaintiff’s conduct of its business, or to injure and destroy its business and property. The purpose being lawful . . . picketing may be employed, as this court has held, .5? • • ♦ 9

citing and quoting the Allis-Chalmers case. It was concluded that:

“In so far as the decree restrains all picketing and all persuasion and all interference with the plaintiff’s free and unrestrained control of its plant and the operation of its business, it transcends the limit of proper restraint, and should be modified, so as to eliminate therefrom any restraint of defendants from doing unlawful acts as indicated herein.”

It was ordered that the decree be modified to conform to the decree in the Allis-Chalmers case.

The opinion in the above case cited the following cases and authorities in support of these views: Allis-Chalmers case, supra; Karges Furniture Company case, supra; 7 Labatt, Master & Servant, p. 8364; Everett-Waddey Co. v. Richmond Typographical Union No. 90, 105 Va. 188, 53 S. E. 273, 5 L. R. A. (N. S.) 792; In re Heffron, 179 Mo. App. 639, 162 S. W. 652; Jones v. Maher, 62 Misc. Rep. 388, 116 N. Y. Supp. 180; Jones v. Van Winkle Gin & Machine Works, 131 Ga. 336, 62 S. E. 236; 127 Am. St. 235, 17 L. R. A. (N. S.) 848; Pope Motor Car Co. v. Keegan, 150 Fed. 148. See, also, Foster v. Retail Clerks’ International Protective Ass’n, 39 Misc. Rep. 48, 78 N. Y. Supp. 860; Butterick Pub. Co. v. Typographical Union, 50 Misc. Rep. 1, 100 N. Y. Supp. 292; Searle Mfg. Co. v. Terry, 56 Misc. Rep. 265, 106 N. Y. Supp. 438; Gray v. Building Trades Council, 91 Minn. 171, 97 N. W. 663, 103 Am. St. 477, 63 L. R. A. 753; Minnesota Stove Co. v. Cavanaugh, 131 Minn. 458, 155 N. W. 638; Beaton v. Tarrant, 102 Ill. App. 124; Parkinson Co. v. Building Trades Council of Santa Clara County, 154 Cal. 581, 98 Pac. 1027, 21 L. R. A. (N. S.) 550; Lindsay & Co. v. Montana Federation of Labor, 37 Mont. 264, 96 Pac. 127, 127 Am. St. 722, 18 L. R. A. (N. S.) 707. All *304these decisions are by courts of very high repute and authority.

Upon the reasoning of the foregoing authorities, I am impelled to dissent from the majority opinion, and to hold that the decree of the lower court should in all respects be affirmed.