dissenting. Almost five years ago a labor dispute arose between these parties. In the course of that dispute the union insisted, at first openly and later by subterfuge, upon the execution of a closed shop contract. When that illegal demand was bolstered by the establishment of a picket line the chancellor issued the injunction now in controversy. That order, affirmed by this court, ended the labor dispute with a victory for the employer.
Now, several years later, the union wishes to negotiate for a contract admittedly lawful. Since peaceful picketing is labor’s principal, if not only, sanction for the enforcement of its valid demands, these appellants ask permission to be free to picket if they deem it necessary in the course of negotiating for a collective bargaining agreement. They are unwilling to open negotiations while the parties occupy unequal positions, the employer knowing that the union cannot resort to the main weapon usually at its disposal. The question is whether the injunction should now be dissolved. I can find no sound reason for refusing that relief.
There are only two matters in the record that give any semblance of support to a continuance of the injunction. The first is that provision in the international union’s constitution and by-laws which advocates the closed shop. This matter is completely irrelevant to the case at bar. A closed shop is illegal in Arkansas, but that fact certainly does not prevent a labor organization from openly favoring the closed shop idea or even from doing all it can to have the law changed. Here the local union, even though its members may endorse the closed shop theory, is not now seeking to obtain that type of contract. Our inquiry is limited to what the appellants are doing, not what they are thinking.
Second, certain testimony given by the union’s business agent, T. F. Self, was stressed by the chancellor. Self testified that the union intended to abide by the law and that if Taylor should employ non-union men the union would not, for that reason, either order its members to cease work or picket the employer. Upon further questioning, however, Self in substance conceded that he could give no assurance as to the individual attitude of the union men in the situation supposed. He said that the men had a right to their personal opinions, and that whether they would work with a non-union organization was left up to them. It is this latter testimony that was emphasized by the chancellor.
The position taken by the union members is perfectly proper and, indeed, was so recognized by us upon the prior appeal. We then said: ‘ ‘They [appellants] further argue that no man can be forced to work with non-union men, and if for any reason they want to cease their employment they have a right to do so. This latter contention is patently true. . . Self v. Taylor, 217 Ark. 953, 235 S. W. 2d 45. Thus Self’s testimony amounts simply to a concession that the union members still adhere to a belief that in no way offends the laws of Arkansas.
It is, of course, well settled that the right to picket peaceably is protected by the constitutional guaranty of free speech, now relied upon by the appellants. There is in the case at bar no element of illegality that would call for the issuance of an injunction in the first instance. The refusal to lift the restraint amounts to. a declaration that the right of these appellants to free speech will be withheld until they abandon perfectly lawful beliefs and adopt an attitude of mind more acceptable to management. I am unable to believe that a constitutional provision which was meant to encourage and to protect diversity of belief can properly be used as a means of compelling uniformity of thought. In; my opinion the appellants are being denied their rights under the Fourteenth Amendment.