Grimaldi v. Local No. 9

Opinion by

Mr. Justice Musmanno,

Louis J. Grimaldi is the owner of, and the only barber in, a barber shop located at 1138 South 58th Street, Philadelphia. Thus, he has no employees, and at the same time he has no employer. He is a one-man operation, solely and exclusively. He opens his shop when he pleases, he closes it when it suits his will to do so. He has no labor trouble because he employs no labor. He has no dispute with an employer because, obviously, he has no employer. He is as much a one-man operation as a man on a unicycle. He has as much undisputed control over his barber shop as Robinson Crusoe had over his island on the Thursday before Friday arrived.

Although, as mentioned, Grimaldi has no labor problem within the confines of his domain, on July 31, 1956 a major trouble was deposited on his doorstep and a haunting threat began to walk his sidewalk, none of which dire visitations he provoked, and certainly did not desire. On that morning, there appeared outside his shop several men wearing sandwich signs calling upon Grimaldi to join Local No. 9, Journeymen Barbers, *3Hairdressers and Cosmetologists International Union (hereinafter to be referred to as Local No. 9). This union is made up of barbers, hairdressers and cosmetologists who are employees in barber and beauty shops owned by others. Grimaldi is not qualified for membership in this union because he is not an employee. As already stated, and as will be repeated, he is a one-man institution. He works for no one else. He toils only for himself. He cuts hair, shaves faces, administers shampoos, applies lotions and does all that is traditionally expected of a barber. As absolute owner of his place of business, and as master of himself and his work, he would be entirely out of place in a union composed of men who are employees in shops in which they do not have the slightest proprietary interest.

At meetings of Local No. 9, the discussions naturally revolve around such subjects as wages to be asked of employers, working conditions to be requested of employers, vacations to be sought of employers. Grimaldi could not participate in such discussions because it would be grotesque for him to ask himself how much salary he should pay himself, how much vacation he should allow himself, and what working conditions he should demand of himself.

Nevertheless, on July 31, 1956, pickets appeared in front of Grimaldi’s place of business with signs urging prospective customers to stay away. The picketing was effective. Many patrons turned on their heels when they read the signs; men with supplies refused to cross the picket line; deliveries of towels ceased. Stagnation was immediate and decisive. With customers frightened away, supplies cut off, and laundry service severed, it could only be a matter of days until Grimaldi’s business Avould expire like an undersea diver whose oxygen line has knotted. He appealed to the courts. He petitioned the Court of Common Pleas of Philadelphia *4County to restrain and enjoin Local No. 9, with its officers and members, from picketing Ms shop, from interfering with Ms business, and from intimidating or attempting to intimidate Mm to join Local No. 9.

After a hearing before Judge Waters, a preliminary injunction issued, and then, on March 20, 1958, a full hearing on the merits of the cause was heard before Judge Weinrott of Court of Common Pleas No. 5 who, on January 8, 1958, entered a final decree wMch granted the plaintiff the full relief prayed for. The defendants filed exceptions which were dismissed by Judge Beimel, speaking for the court en banc. Local No. 9 and its named officers and members appealed to this Court.

The decree must be affirmed. The picketing attempted by Local No. 9 is a flagrant violation of the law and cannot be supported. The picketing of a one-man establishment is an invasion of an American’s freedom to determine his own economic destiny when he stands alone in an enterprise of his own. Labor unions have the right to picket for organizational purposes, that is, to persuade non-union employees of an establishment to join a union. Such peaceful picketing is constitutionally protected and cannot be enjoined (Pappas v. Local Joint Exec. Bd., 374 Pa. 34). But the picketing in this case was not for organizational purposes and could not be for that purpose. There are no non-union employees in Grimaldi’s shop. On what basis then, can there be lawful picketing for organizing employees? What is to be organized? Who are to be united?

Local No. 9, through its secretary Vincent Pace, of whom more will be said later, inflicted upon Grimaldi an harassment and intimidation wMch violated his rights and prerogatives as a United States citizen. Because he refused to join something he did not need and which could not help him he was threatened with eco*5nomic extinction — and then the means to so extinguish him were put into motion. The action of Local 9 also obviously offended against the recognized policy of organized labor, as announced by responsible labor leaders at legislative bearings and as tbey have been reviewed by the courts in recorded legislation.

In the early part of January, 1956, Vincent Pace, accompanied by three other men of Local 9, called on Louis Grimaldi in his barber shop and endeavored unsuccessfully to persuade him to join the union. Two or three other conferences followed with similar negative results. Then, on April 16, 1956 Vincent Pace, accompanied by five members of Local 9, met with Louis Grimaldi and five other self-employed barbers who were members of a social and educational organization known as the Pennsylvania League of Master Barbers. At this meeting Pace endeavored to induce the self-employed barbers to dissolve the Pennsylvania League of Master Barbers and to join up with Local No. 9. When Grimaldi and his companions stated they were not receptive to this idea, Pace became very abusive. He called the officers of the Pennsylvania League of Master Barbers opprobrious names and used language which wag profane, vicious and obscene. Tie then out-rightly threatened the organization and its members, declaring that if the self-employed barbers did not join his local, he would bestow upon them the “kiss of death.” His threats were all garbed in a vileness of speech that offends the very paper on which it is printed.

Grimaldi and his companions refused to be intimidated and returned to their respective barber shops. On the morning of July 31, 1956, when Grimaldi arrived at his establishment to open it for business, he found two of Pace’s men sitting at the curb in a “cream colored Cadillac.” They informed him that it was his *6“turn to join.” Grimaldi replied, “Look, fellows, how many times must you be told that I can’t join your union? You know my position. I can’t join your union.”, and went into his shop to prepare for the day’s work.

Several minutes later one of the Cadillac-borne men knocked at Grimaldi’s door and informed him: “Well, we called up the office and we were told to picket your shop.” Grimaldi replied, “Gentlemen, there’s a big, wide sidewalk. Go ahead.”

A few minutes later police arrived in response to a call made by the operator of a beauty shop in the vicinity. Still later the police captain of the district appeared, and when Grimaldi asked him “What can you do about this?” the police captain answered: “I can’t do anything about it. The only thing I can do here is to see that nothing happens.”

The pickets then, as Grimaldi was to testify later, “walked around the shop, you know, back and forth, back and forth, back and forth.” And as they walked back and forth, Grimaldi’s customers walked away.

The lower court found that this picketing was coercive and illegal and therefore enjoinable. Local 9, through its attorneys, argue that the court’s injunction was illegal under the Labor Anti-Injunction Act of June 2, 1987, P.L. 1198, 43 P.S. §206(a) et seq., as amended, which provides that no court shall have jurisdiction to issue an injunction “in any case involving or growing out of a labor dispute.” But the Act has no application here. The Act specifically states that: “(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 . . .” (Emphasis supplied)

*7It will be noted that the statute uses the plural throughout. It speaks of “persons,” of “employes,” and of “members.” But there are no persons, employes or members in Grimaldi’s shop. There is only one person there — and no employes or members at all.

In defining a labor dispute the Act says: “(c) The term Tabor 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.” (Emphasis supplied)

The Pennsylvania Labor Relations Act of June 1, 1937, P. L. 1168 (43 P.S. §211.1), which Local 9 also attempts to invoke in its behalf, offers no more legal support to its contention than the Labor Anti-Injunction Act. The Labor Relations Act specifically declares in its title that it is: “An act to protect the right of employes to organize and bargain collectively.” (Emphasis supplied.) Here again we find the plural “employes.” The Act then defines “labor dispute” as any controversy concerning: “(1) Terms, tenure or conditions of employment; or concerning’ (2) The association or representation of persons negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employe.”

Under the specific wording of both statutes, there was no labor dispute at 1438 South 58th Street. There was no controversy over conditions of employment and there was no discord arising out of “respective inter*8.ests of employer and employee.” Nor could there be, since there was no employer or employee at Grimaldi’s shop. Moreover, the Local did not claim, and does not now claim, that Grimaldi was charging unfair prices or that he was working improper hours, or that he was undermining in any way the working conditions of journeymen barbers — those employed in other shops.

The picketing of Grimaldi’s shop had no bearing on conditions of labor or employment in other shops. In an Illinois case it was held that where the picketing is not designed to improve the conditions of labor of other employees it will be enjoined. In that case, the Appellate Court of Illinois (Second District) said: “There is no contention made by defendant that plaintiffs [self-employer owners of gasoline stations] were failing to meet the standards of wages and employment fixed by unions and thereby jeopardizing the rights of workingmen in the same industry, for the plaintiffs had no employees to whom they could pay wages . . . It is, therefore, the considered judgment of this court that defendant’s conduct was motivated by the illegal purpose of coercing self employed owners and operators of gasoline stations who hired no employees to join the union and sign an agreement, the net effect of which would only stifle competition, and in no way improve the conditions of labor of its members, and that defendant exercised unlawful means to effectuate this purpose.” (Dinoffria v. International Teamsters Union, 331 Ill. App. 129)

Grimaldi’s industrial status is entirely different from that of the journeymen barbers who belong to Local 9. Grimaldi, as a one-man, self-employed barber, lives in an economic world entirely different from the one inhabited by the journeyman barber. The journeyman barber receives wages from his employer, he is saddled with no financial burden so far as the shop is *9concerned, he pays no rent, buys no equipment, he suffers no personal loss in the event of fire or other disaster. The self-employed barber, on the other hand, carries the whole responsibility of the shop on Ms back, he owns or rents the place in which he conducts his business, he purchases the equipment, he pays all expenses in maintaining the shop and keeping it clean. If there is a fire, he personally suffers what is lost. Of course, all profits of the business are his, as all losses are borne by him.

Grimaldi’s position in Philadelphia is not unique. There are some 2,600 barber shops in Philadelphia. Of this number, 1700 are one-man shops, leaving only 900 which are manned by multiple barbers. Why should 1700 legitimately-owned and legitimately-operated institutions be required to conform to the standards of practically only one-half that number? While, of course, no one can or would object to the multiple-operated barber shop, there are many people who prefer being barbered in a one-man shop, and there is no reason in the law, no custom in society, and no argument in the armory of common sense which militates against the enjoyment of that one-man service.

The profession of harboring is an old and honored one. There was a time when the barber was, in a measure, also a surgeon. Ilis functions included the dressing of wounds, blood-letting, and other surgical operations. While the barber of today, of course, no longer practices surgery in any form (intentionally!), he is still an indispensable and highly desirable factor in the pattern of today’s civilization. And if the barber prefers to practice alone, no one may compel him to abandon his independence, while there is a public willing to avail itself of Ms specialized attention.

The one-man business in America contributes greatly to the well-being of the nation and its people. It is *10not necessary to point ont that much of the magnificent industrial and commercial structure which is America’s greatest wealth today originated in one-man operations which pioneered, invented and dared to go forward alone in the development of ideas for the improvement of man’s comforts and conveniences, as well as in protecting his physical and economic health.

Labor organizations are not concerned with one-man enterprises, except to encourage the proprietors in their endeavors, hoping that they will eventually achieve that success and expansion which will make it possible for them to employ workers, thereby increasing the prosperity and general well-being of the whole country. But until that happens, labor organizations allow these one-man affairs to proceed unhampered, unannoyed, and unpicketed. To picket a one-man job is like sticking pins into a hen that is sitting on eggs, concentrating on the important job of hatching vital forces which will contribute to the preservation of the human race. Labor organizations thus do not enter into the industrial barnyard until the new chickens are hatched and new workers are in being.

The purpose of labor organizations is to offer protection to multiple employees through collective bargaining, which is the backbone of the labor movement. It is the e pluribus unum, of the industrial state. Where two or more workers are employed by the same employer, the way is open for them to form an organization for the purpose of discussing and negotiating with the employer on the subjects of wages and working conditions. Without collective bargaining, employees could be at the mercy of an employer who refuses to be guided by fundamental concepts in humanity and fair dealing.

But collective bargaining cannot possibly be used against an individual who has neither employees nor *11employer. The very word collective excludes the solitary individual. A man cannot collect with himself. And if an attempt is made to use collective bargaining against an individual who does not come within the purport of collectiveness, damage is done to the very cause of collective bargaining. The blade which is used to strike down the innocent, becomes stained and blunted with injustice, thereby diminishing its capabilities for protecting those who are dependent on it for the protection of their inalienable rights.

The extraordinary tactics of Local 9 in this case cannot possibly help the cause of organized labor and could well draw the censure of labor leaders who are concerned about advancing the wholesome collective cause of labor and not in supporting ruffianism as displayed by Vincent Pace and his associates. Labor has come a long way since the era when the workman was practically looked upon as the serf of his master. The treatment of workmen in those years wrote a blank page in the industrial history of mankind. Fortunately, that melancholy era is behind us. Legislation throughout the world and particularly in America has elevated the wage earner to a dignity which commands respect and consideration.

Wage earners who are welded together into a labor organization form an entity of responsibility and accountability which the law recognizes as a force for good in the economic and social society of the State. But Vincent Pace attempted to use Local 9 as a personal slingshot for the attainment of an objective which no labor organization ever heretofore attempted in Pennsylvania, so far as recorded litigation is concerned. The action of Local 9 detracts from labor’s record, and, if unrestrained, could in itself write a page of oppressiveness of which no labor organization would be proud.

*12If Local 9 were to be allowed to picket as it attempted to picket here, it would mean that no individual could perform any work of his own without the possibility of molestation. Even a member of Local 9 itself could be harassed by the shadows of marching sandwich men if he mowed the lawn in his own back yard, or built a little wall around his garden, or dug a pond for his children to play in, or helped his wife to paper the walls in the kitchen. Moreover, if what Local 9 contended for would become law, it would mean that even a member of Local 9 when he retires would not be permitted to add to a pension or to social security payments. He could not knock together, with hammer and saw, a few little wood novelties to sell to passersby; he could not fashion with his hands some odd toys, souvenirs and knicknacks to vend to tourists in the little retreat to which he had withdrawn to spend the twilight days of his life; he would not be permitted to open a little store or to plant a garden in which to grow roses to bestow, for a consideration, on those who are distant from flower shops; he would be prohibited from roasting peanuts and selling them in little bags to those on the way to a sandlot baseball game. To picket a peanut vendor would be the ultimate in abuse of the weapon of picketing, but in principle it would be no different from what Local 9 endeavored to do against Grimaldi.

The picketing of a one-man business has dire and sinister possibilities. If Local 9 may drive a one-man barber shop out of business, why may not a hypothetical Local 999 do the same to a one-man lawyer’s office? It could happen that the lawyers in large law offices would form a union and then demand that the country lawyer in his little office, or the city lawyer practicing by himself, join Local 999 or be humiliated and stripped of the emoluments of his profession by the placarding of *13his office with signs that he is unfair to other lawyers. Doctors in large hospitals could form a union and picket the country doctor, demanding that he make calls only at certain hours and charge only certain minimum fees, or run the risk of having no patients at all because of the omnipresent threat of picketing. If the one-man barber may be picketed, so may the one-man engineer, the one-man architect, the one-man artist, and the one-man author. And if that should happen, then liberty in America would be known only as the name of a statue.

Local 9 cites Friedman v. Blumberg, 342 Pa. 387, in support of its alleged right to picket a one-man business, but in that case the business man involved (a glazier), did employ a man to assist him, and the question in controversy was whether the employee should or should not be a union man. We repeat that in the instant case, there is no employee. The case of Schwartz v. L. & L. S. Driv. Union, 339 Pa. 353, also cited by Local 9, is equally inapplicable to the facts in this case.

Moreover, the Supreme Court of the United States has already spoken on this subject in a manner which opposes Local 9’s contention. In the case of Teamsters Union v. Hanke, 339 U. S. 471, a business conducted by the owner himself without employees was picketed by a labor union endeavoring to compel compliance with a demand for a union shop. The trial court which heard the application for an injunction against the picketing union issued an injunction which the Supreme Court of the State of Washington affirmed. An appeal was taken to the Supreme Court of the United States on the averment that the injunction offended against the Fourteenth Amendment. The Supreme Court of the United States rejected the contention and said: “But when one considers that issues not unlike those that are here have been similarly viewed by other States and by the Con*14gress of the United States, we cannot conclude that [the State of] Washington, in holding the picketing in these cases to be for an unlawful object, has struck a balance so inconsistent with rooted traditions of a free people that it must be found an unconstitutional choice. Mindful as we are that a phase of picketing is communication, we cannot find that [the State of] Washington has offended the Constitution.”

Local 9 argues that it may not be enjoined from picketing Grimaldi as a one-man barber shop because picketing is a form of free speech, which is constitutionally guaranteed. While it is true that picketing is in the realm of free speech, it is by no means synonymous with talking. Any person may, so long as he keeps the peace, does not disturb traffic, and offends no specific law, stand on a street corner and express his views on any subject he wishes, but when he substitutes a stick and a placard for his tongue, he leaves speech and takes up a species of communication which is by no means the equivalent of talking. Of course, it is a form of communication which is allowed where collective bargaining is involved, and we have repeatedly so held, but here there is no controversy between management and labor for the simple reason that Grimaldi is not management and he is not labor. Picketing cannot operate in a vacuum.

Local 9 is a journeymen barber’s union, that is, it is made up of barbers who are employed by others. We have stated that Grimaldi does not qualify for admission to Local 9. The pickets thus were demanding that Grimaldi do what he could not do in reason and common sense. They were demanding that he become subservient to the threatening Mr. Pace who does not live in Pennsylvania, is apparently not interested in Pennsylvania’s welfare, and, so far as the record shows, had nothing to offer but menaces, abuse, and profanity.

*15The Supreme Judicial Court of Massachusetts had occasion to pass on the subject of picketing in a case where the facts were analogous to those involved here. In that case, Saveall v. Demers, 322 Mass. 70, the Court said: “Even if picketing is constitutionally protected in its aspect as speech, it must, because of its other aspects, be subject to some degree of regulation as to circumstance, manner, and even object, lest orderly existence be submerged in a flood of picketing by groups of people, having no peculiar right of their own, to make other people do what they do not wish to do and as free men are under no obligation to do . . . [We] have before ns a case where, on the one hand, the contribution of the defendants’ acts to the free interchange of thought in Fitchburg reaches the vanishing point, while on the other hand there is danger that the fundamental right of the plaintiff to work with his own hands to what he regards as his best advantage may be destroyed.”

God gave man hands to use for self-protection and for the obtaining of food, shelter, raiment, and happiness for himself and for those dependent upon him. No one may deprive Mm of the benefits those hands may bring him when they are occupied in his own behalf. Thome hands may be used to acquire property, the ownership of which will be protected by the Constitution of Pennsylvania which declares: “All men . . . have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and repiitation, and of pursuing their own happiness.” (Art. 1, Sec. 1)

In the exercise of that constitutional right, one may acquire for himself a barber’s chair, a carpenter’s bench, or a bricklayer’s trowel, and so long as he uses these implements himself and in a manner which does *16not adversely affect the economic rights of others, no one may dictate the method or the hours in which he may utilize them.

Local 9 was given every opportunity to present its case fully in the lower court and we are satisfied that the findings of fact and conclusions of law are justified by the record. We therefore affirm the decree entered in the Court of Common Pleas, and place the cost on the appellants.

Mr. Justice Bok concurs in the result.