Northampton Area Joint School Authority v. Building & Construction Trades Council of Allentown, Bethlehem & Easton

*573Dissenting Opinion by

Mr. Justice McBride:

The majority opinion upholds a preliminary injunction which enjoins defendants and their agents (a) from picketing or doing any other act calculated or intended to compel an employer to require its employees to become members of a union; and (b) from conspiring with other persons to effectuate that purpose or that of interfering with the erection of the school building.

This injunction must not be permitted to stand if (1) under the evidence the court’s jurisdiction is withdrawn by the Labor Anti-Injunction Act, or, (2) exclusive jurisdiction of the controversy has been given by Congress to the National Labor Relations Board. It is because I believe that at least one of these conditions is necessarily present in this case that I am constrained to dissent.

It is conceded that the picketing was peaceful1 and that the legend carried by the pickets was true.2 This fact, while not controlling, certainly increases the burden on plaintiffs to prove conduct that is enjoinable. Nevertheless, the court below held that such picketing was enjoinable because (1) after the bids had been received and opened but before the contracts were awarded, one Toman, business agent for Bricklayers Local 15 of Allentown, Pennsylvania, (a union in no way involved in this dispute) who is also Vice-President of District 2 of Pennsylvania State Building Trades, (not a defendant in this suit) informed a meeting of the Southampton Area Joint School Authority that he represented the trade unions; that he hoped the contracts would be awarded to union contractors; and, as the *574court below found, “either stated or intimated that ‘there might be trouble if the union wasn’t satisfied’ ”; (2) Parks, who is a defendant and is a business agent of the defendant union, together with Toman, advised the general contractor, Luria Engineering Company (not a party hereto) that if the Donmoyer Company, a non-union contractor, was awarded the electrical contract there would probably be trouble and there would probably be a picket line when that contracting company commenced working. From these facts the court below has concluded that the purpose of the union was to compel the Donmoyer Company to coerce its employees to join the union.

I do not believe that inference can be drawn from those facts. A mere prediction that there would be trouble, or that there would be a picket line when the non-union men would commence working, is not sufficient to warrant the conclusion that the purpose was to coerce Donmoyer to do anything. No direct or indirect demand was made upon Donmoyer to put his men into the union nor was any direct or indirect demand made upon the employees of Donmoyer to join the union. The only legitimate inference that can be drawn from the evidence is that the union men objected to working along with non-union men; that they believed that they had an interest in the wages and working conditions of both union and non-union men since they were both engaged in the same trade or occupation; and hence were entitled to picket and to attempt to persuade all other union men to refuse to work with the non-union men and thus protect their own economic status. It is immaterial and damnum absque injuria that such self-protection would exert economic pressure upon the employers, the Authority, or both. Such conduct does not become unlawful simply because no strike was ever called or because the work on which the em*575ployees were engaged was a public school building being constructed by a School Authority. Nor is it material that the court below found that there was no “labor dispute of any kind” between the Authority, the School District, the general contractor or any of the sub-contractors on the one hand and their respective employees on the other hand.

The fact is, as found by the court below, that the work on the high school building stopped because the employees of the other union contractors refused to cross the picket line. It is immaterial that the picketing was done with the knowledge or approval of Parks or of Toman or of anyone else.

In my view, the court below was in error in holding that under the facts of this case the controversy does not constitute a labor dispute within the meaning of that term as used in the Labor Anti-Injunction Act.3

A “labor dispute”, as stated in §206c(a) (b) (c), exists where “the case involves persons who are engaged in a single industry, trade, craft or occupation, or have direct or indirect interests therein”, or concerns “the association or representation of persons in negotiating, fixing, maintaining} changing, or seeking to arrange terms or conditions of employment or concerning employment relations or any other controversy arising ou,t of the respective interests of employer or employee4 . . .” (Emphasis supplied.)

*576It seems to me that this plain, unequivocal language, when applied to the facts of this case, requires us to hold that there was here involved a labor dispute within the coverage of the Labor Anti-Injunction Act. The Constitution and By-Laws of the union, which forbade its members to work with non-union men, is valid. Coppage v. Kansas, 236 U. S. 1. See also, Barclay White Co. v. Unemployment Compensation Board of Review, 159 Pa. Superior Ct. 94, 46 A. 2d 598, reversed on other grounds, 356 Pa. 43, 50 A. 2d 336. The Labor Anti-Injunction Act does not declare the acts as to Which it prohibits the issuing of an injunction to be legal or illegal but merely denies that particular remedy in certain cases and restricts it in others. Alliance Auto Service v. Cohen, 341 Pa. 283, 19 A. 2d 152. Peaceful picketing for the purpose of persuading non-union *577employees to join, the union is constitutionally protected and cannot be enjoined in the absence of force or coercion. Sansom House Enterprises v. Waiters and Waitresses Union, 382 Pa. 476, 115 A. 2d 746. It is only where the union attempts to reach the employees by coercing the employer that it becomes unlawful and therefore enjoinable. The majority points out there was no direct attempt to persuade either Donmoyer or its employees. How then can it be concluded that the purpose was to coerce Donmoyer and not the employees?

The majority treats the finding of the court below that there was no labor dispute as if it were a finding of fact, whereas it really is a question of law. But in any event, it is settled beyond controversy that peaceful picketing with no element of illegality is not enjoinable even if it is not a labor dispute. We so held in Kirmse v. Adler, 311 Pa. 78, 166 Atl. 566, even before the Labor Anti-Injunction Act was passed.

The majority says “The Union and the Trades Council, even without directly contacting the employer, made it abundantly .clear, as found by the court below, that a picket line with the direct result of preventing the employees of the other contractors from crossing the picket line and continuing their work, would be utilized if a single non-union contractor was hired.” There is nothing invalid or wrongful about such conduct. The Court has no power to enjoin conduct protected by the public policy of the Labor Anti-Injunction Act.5 It is only necessary, under the public policy declaration of that Act, that the union or its membership has a direct or indirect interest in a “labor dispute” as defined therein and, as I have noted above, a “labor dispute” *578exists wherever union men have a direct or indirect interest in the employment of non-union men where they are competitively engaged in the same trade or occupation. In my view, therefore, the court below was without power under the evidence in this case to grant a preliminary injunction even though the injunction on its face enjoins conduct not protected by the Labor Anti-Injunction Act. This Court should not be niggardly .in its interpretation of this act for the purpose of finding the case within the exceptions rather than within the coverage. In speaking of the rights of the individual workman the Act provides: . wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint or coercion of employers of labor or their agents in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

It is important to note that although the public policy of the Commonwealth may be indifferent to wages and rates of pay in private contracts, it has a very definite policy as to contracts of the kind involved here. The Act of March 10, 1949, P. L. 80, art. VII, §752, 24 PS 7-752 provides as follows: “All contracts, hereafter awarded and entered into by any school district, shall contain a clause or stipulation requiring that no person shall be employed to do work under such contract except competent and first-class workmen and mechanics. No workmen shall be regarded as competent and first-class, within the meaning of this act, except those who are duly skilled in their respective branches of labor, and who shall be paid not less than *579such rates of wages and for such hours’ work as shall be the established and current rates of wages paid for such hours by employers of organized labor in doing of similar work in the district where work is being done.” (Emphasis supplied.) This policy specifically binds a school district; it equally binds authorities, such as herein involved, which are created by one or more such school districts. These union men, therefore, have a direct interest in seeing to it that their own union employers are not put at a competitive disadvantage, thus threatening their own livelihood. The record is silent as to whether Donmoyer paid union scale. Presumably, therefore, the Union was acting lawfully since the plaintiffs, who had the burden of proof, did not produce evidence which would make this Act ineffective in the present case even apart from the Labor Anti-Injunction Act.

If I am wrong in all this, then it seems to me that the very holding of the court below, affirmed by the majority opinion, shows that no Pennsylvania court has jurisdiction in this case.

On April 20, 1959, the Supreme Court of the United States decided San Diego Building Trade Councils v. Garmon et al., and on May 4, 1959, the same Court decided Local 298 v. County of Door. It is perfectly clear, under the Garmon case, that activities regulated by §§7 and 8 of the Labor Management Relations Act, 29 U.S.C.A. §§157-8, are not subject to regulation by any state administrative agency or equitable injunction in any state or federal court. Under the Door decision it does not matter whether the majority is right and I am wrong or vice versa. It was held to be equally immaterial that the state court might properly find there was an attempt to force the employer to sign a union shop agreement or that the case merely involved union workers who refuse to work with non-union workers. *580When the County of Door case, supra, is considered in the light of the Garmon decision, both cases together stand unequivocally for the proposition that if it is “arguable” that the conduct of the union was either protected6 by federal law or condemned7 by it, state courts are without jurisdiction to decide the controversy but the matter must be settled by the National Labor Relations Board. Hence, in this case, assuming interstate commerce, the court below was without power to decide if plaintiff or defendant was right. Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 481. It seems to me that the Door case is on all fours with the present one, even accepting the findings of the court below. There, as here, a municipal corporation hired a general contractor who let out eight individual sub-contracts. Among the successful bidders for one of the sub-contracts was a non-union employer. This disturbed the union which attempted to induce him to sign a union agreement. When he refused the union peacefully *581picketed and thereby effectively stopped all the work since union members employed by other contractors refused to cross the picket line.

It is true, as we stated in Haefele v. Davis, 373 Pa. 34, 95 A. 2d 195, that the question of federal jurisdiction in labor disputes arises only when the employer is engaged in interstate commerce or when his business substantially affects interstate commerce. I believe that the majority has reached a wrong result in concluding that the silence of the record in this case on the issue of interstate commerce justifies an affirmance of this preliminary injunction. These decisions of the Supreme Court of the United States were not filed until after the Chancellor had issued his preliminary injunction. Therefore, understandably, he didn’t inquire into the issue of interstate commerce involving this tremendous building operation. It must be decided sooner or later in this case because it involves jurisdiction of the subject matter which may not be conferred by acquiescence of the parties who did not raise it. It is not enough to say that he may make that determination upon final hearing and continue the injunction until that determination. I believe the holdings in these cases require us to remand the matter to him to take testimony forthwith in' the light of those cases and relevant principles governing what constitutes an effect upon interstate commerce. See Penna. Labor Relations Board v. Friedberg, 395 Pa. 294, 148 A. 2d 909, and cases cited therein. See also Labor Board v. Denver Bldg. & Constr. Trades Council, 341 U. S. 675, 683-4.

I would therefore reverse on the ground injunctive power was withdrawn from the court below by virtue of the Labor Anti-Injunction Act, or, at the very least, the case should be remanded for further consideration by the court below in the light of Door and Garmon.

*582Accordingly, I dissent.

Mr. Justice Cohen joins in this dissenting opinion.

Finding No. 31 is that “The picketing was conducted in a peaceful manner without any violence or threats.”

This legend read “Electricians on this job are not members of Local 375, International Brotherhood of Electrical Workers.”

Act of June 2, 1937, P.L. 1198, as amended, 43 P.S. §206e.

The exact language is as follows:

“(a) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in a single industry, trade, craft or occupation, or have direct or indirect interests therein, or who are employes of the same employer, or who are members of the same or an affiliated organization of employers or employes, whether such dispute is (1) between one or more employers or associations of employers, and one or more employes or associations of employes; (2) between one or *576more employers or associations of employers, and one or more employers or associations of employers; or (3) between one or more employes or association of employes, and one or more employes or association of employes; or when the case involves any conflicting or competing interests in a ‘labor dispute’ (as hereinafter defined) of ‘persons participating or interested’ therein (as hereinafter defined.)

“(b) A person or association shall be held to be a person participating or interested in a labor dispute if relief is sought against him or it, and if. he or it is engaged in the same industry, craft or occupation in which such dispute occurs or has a direct or indirect interest therein, or is a member, officer or agent of any association composed in whole, or in part, of employers or employes engaged in such industry, trade, craft or occupation.

“(c) The term ‘labor dispute’ includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment or concerning employment relations or any other controversy arising out of the respective interests of employer and employe, regardless of whether or not the disputants stand in the proximate relation of employer and employe, and regardless of whether or not the employes are on strike with the employer.”

“No court of this Commonwealth shall have jurisdiction to issue any restraining order or temporary or permanent injunction . . . contrary to the public policy declared in this act. . . .” Act of June 2, 1937, P.L. 1198, §4, as amended, 43 P.S. §206d.

Section 7 of the Labor-Management Relations Act reads: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .” 61 Stat. 140, 29 U.S.C. §157.

Section 8(b)(4) of the Labor-Management Relations Act provides in part: “It shall be an unfair labor practice for a labor organization or its agents — to engage in, or to induce or encourage the employees of any employer to engage in ... a strike . . where an object thereof is: (A) forcing or requiring . . . any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; (B) forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees . . .” 61 Stat. 141, 29 U.S.O. §158(b) (4).