(dissenting). Mr. Grant did not represent the union members at the hearing when the temporary injunction was issued, but when the order was served they sought his interpretation of the injunction which provides:
‘ ‘ Picketing in any manner, either singly or in large numbers, plaintiff’s railroad tracks and spur tracks or right-of-way or property in any manner whatsoever in the City of Fort Smith, Sebastian County, Arkansas;
“Stopping, obstructing, injuring, impairing and weakening the plaintiff’s trains, railroad tracks, machinery and employees in any manner and by any means whatsoever in the City of Fort Smith, Sebastian County, Arkansas. ’ ’
Construction of the second paragraph is not necessary, since its meaning is so clear. And there is no claim that this portion of the order was violated in any respect. But it is a different matter as to the first paragraph, which prohibits picketing railroad tracks, or spur tracks, in any manner whatsoever.
The railroad employees were informed that the railroad was not being picketed, and the trains thereafter crossed the picket line and serviced all the users of the warehouse, with the exception of the Dixie Cup Company. No complaint whatever was made by anyone that the temporary order was violated until the trial on the issue of whether the order should be made permanent. It was then that the trial court came to the conclusion there may have been a violation of the temporary injunction and ordered the institution of the contempt proceedings.
The strikers were not enjoined from picketing the Dixie Cup Company, the concern with whom they had a dispute. They had no quarrel with the railroad company. The decision Mr. Grant had to make was whether the presence of pickets at the point where the railroad tracks enter the property, on which the warehouse used by the Dixie Cup Company was located, could be considered as picketing the railroad tracks. In reaching his conclusion he was guided by Missouri Pacific Railroad Company, Thompson, Trustee v. United Brick and Clay Workers’ Union, Local No. 602, 218 Ark. 707, 238 S. W. 2d 945, which was handed down April 9th, 1951. In view of what was said in that case, I do not see how it can be held that the placing of pickets near the railroad right-of-way, at a point where the tracks entered warehouse property, could be construed as picketing the railroad tracks. In fact, it was specifically held in the above case that the location of pickets in an identical situation did not constitute picketing the railroad company. In that case the court said:
“The striking employees, members of the appellee labor union, established picket lines at the highway gates and also at a point about a quarter of a mile from the plant where the main line crosses a public highway. . . . The proof makes it plain that the pickets’ purpose is to convey their message to trainmen who are on their way to the Acme plant. . . . This case differs from the average only in that the pickets patrol an isolated railroad crossing instead of a sidewalk used by the general public. But the railroad track is a means of access to the Acme plant, and we think it immaterial that the railroad company alone habitually uses this entrance. It is easy to imagine a sawmill situated in a forest, accessible only by rail. Unless pickets could present their message to persons arriving by train such a mill would be immune from the usual means of advertising the existence of a strike. . . . In an effort to show that the appellee’s purpose is illegal the appellant presents a threefold argument. First, it is said that the picketing prevents the railroad from complying with its duty to provide equal and nondiscriminatory service to all shippers. . . . This argument is unsound. It is at least questionable whether a railroad is required to provide service when impeded by a strike beyond its control. . . . But a more clear-cut answer to this contention is that the purpose of the picketing is not to prevent the carrier from performing its duties; that is merely an incidental result. And that result comes about only because the railroad’s own employees, over whom it presumably has control, are refusing to cross the picket line. Carried to its logical end the appellant’s argument would outlaw all picketing, since it could always be shown that some employee of a motor carrier or other public utility had refused to enter the strike-bound premises. . . . The picket line is maintained as close to Acme’s plant as is possible without a trespass. As we have already seen, the fact that the appellant alone is affected is immaterial. Like most picket lines this one has among its purposes that of discouraging outsiders from doing business with the strikers’ former employer. In its present location the picketing is primary and not secondary. ... As to the federal law, the exact point was decided adversely to the appellant in Ryan Construction Corp., 85 N.L.R.B., No. 76. There the strikers picketed the entire premises, including a gate which had been cut in the fence for the exclusive use of a construction company which was working on a project for the strike-bound employer. The employees of the construction company refused to cross the picket line at their special gate. The Board held that the picketing, even though it affected only the construction company, was primary and therefore not an unfair labor practice under the cited section of the Taft-Hartley Law. So here, the appellee is picketing both entrances to the Acme plant, and the strike is not directed against the appellant merely because it is the only visitor using this particular entrance. ’ ’
According to the evidence, Mr. Grant read the above case over with the strikers and came to the conclusion that placing the pickets at the point where they were finally placed could not be considered as picketing of the railroad company and, consequently, would not be in violation of the restraining order. It seems to me that anyone, while acting with the utmost good faith, and with the intent of abiding by both the letter and the spirit of the temporary injunction, could arrive at the same conclusion as Mr. Grant and the striking employees, in this instance. Therefore, I do not believe the facts justify a contempt conviction; and I respectfully dissent from the majority opinion.