Grimaldi v. Local No. 9

Dissenting Opinion by

Mr. Justice McBride:

The Journeymen Barbers, Hairdressers, Cosmetologists and Proprietors’1 International Union op America consists of local unions and employers’ guilds whose membership comprises barbers, hairdressers, wavers, marcellers, cosmeticians, manicurists, masseurs and proprietors (Article I, Section 1). In respect of barbers there are three classes: proprietor barbers,2 *17journeymen barbers,3 and employer barbers.4 Proprietor barbel's and journeymen barbers (which are the two classes material here) are both eligible to join the union.5

Local No. 9 is a local of the International Union and Louis J. Grimaldi is a proprietor barber and therefore eligible to join the union. The conclusion of the majority to the contrary is not justified.

The court below found that approximately 400 proprietor barbers working in the Philadelphia area are members of the union and that they constitute half of the total force of union barbers in Philadelphia.

In February, 1955, Local 9 began an organizing drive and in the course of it Grimaldi was asked to join the union.6 Other meetings were held at each of which union representatives reiterated their request to Grimaldi to join the union. In the meantime, other similarly situated proprietor-barbers had been joining. At a meeting in April, Vincent Pace, an International Bep*18resentative, did speak vulgarly and slightingly of the League and threatened to picket Grimaldi. However, Grimaldi’s witnesses described some of these meetings as “amicable” although undoubtedly Pace was at times angry and contemptuous. Finally, having failed to persuade Grimaldi to join the union, two pickets commenced to walk up and down in front of his place of business carrying a sign containing a true statement.7 As a result thereof plaintiff’s business was harmed. The court below found “Picketing was at all times conducted peacefully in an attempt to persuade the plaintiff to join the union and to publicize the fact that he ran a non-union barber shop.” Nevertheless the court below enjoined the local and other named defendants from (a) setting up or maintaining a picket line at plaintiff’s place of business; (b) interfering in any way with the operation of plaintiff’s business; (c) intimidating or attempting to intimidate or coerce any of plaintiff’s customers or suppliers or otherwise interfering with plaintiff or his business. The question which immediately arises is whether this injuction is proscribed by the Labor Anti-Injunction Act of June 2, 1937, P.L. 1198, 43 P.S. §2Q8a et seq. That act withdraws jurisdiction from all courts of the Commonwealth to issue any restraining order or injunction which is “contrary to the public policy declared in this act” as well as any “case included within this act”, Act of June 2, 1937, P.L. 1198, §4 as amended. The public policy provision of the act while guaranteeing to every worker freedom “to decline to associate with his fellows” also guarantees that such workers have the right to engage in “self-organization or in other concerted activities for the purpose of collective bargaining or *19other mutual aid or protectionSince this act prevents the issuance of injunctions in labor disputes it is important to remember that the act specifically provides in Section three, “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. . The majority opinion bases its conclusion, at least in part, upon the assertion that Grimaldi is neither an employer or an employee; and the word “persons” as used in a separate section of the act8 is plural. But it is to be noticed at once that in order for a labor dispute to exist it is not necessary that Grimaldi be either an employer or an employee; he need be only a person engaged in the same industry, trade, craft or occupation as the other disputant. The majority says “It 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.” The majority seems to be of opinion that it requires more than one person on each side of the dispute. This quite clearly is not so. No one would seriously contend that a dispute between one employer and one employee would not constitute a labor dispute. (Bee 43 PS §206e{!>).) It seems to me that there is a labor dispute here within the meaning of the Labor Anti-Injunction Act. Certainly Grimaldi is engaged in *20the same trade, craft and occupation and has the same indirect interest therein as the journeymen barbers who are members of this union. What happens in this craft or occupation, at least indirectly, affects both Grimaldi and the journeymen barbers. But even if this were not so certainly Grimaldi’s position is identical with the approximately 400 proprietor-barbers who are members of the union. Whatever might be said as to the differences that may exist as between journeymen barbers and proprietor-barbers is not applicable between one proprietor-barber and another proprietor-barber. It must be conceded that Grimaldi performs exactly the same duties and is engaged in the same occupation as any barber in any barber shop anywhere. He must be licensed like all other barbers; he has the same economic interests and belongs to the same economic group as all other barbers. This dispute between Grimaldi and the union has economic repercussions upon the wages, hours of work and working conditions of all individuals in the industry and particularly upon the many journeymen barbers and proprietor barbers who are members of the union. Hence the union has a legitimate economic interest in peacefully persuading Grimaldi to join it and in advertising to the public that he is not a member.

In Alliance Auto Service, Inc. v. Cohen, 341 Pa. 283, 19 A. 2d 152, the union, which had a dispute with Petrol, picketed the plaintiff’s service stations presumably because they purchased Petrol’s products. This Court found that a “labor dispute” existed within the meaning of the Labor Anti-Injunction Act because of the “common interest” of the plaintiff and the defendants in the industry.

We also held that an outdoor movie theatre run entirely by members of a single family is subject to the Labor Anti-Injunction Act when involved in a labor *21dispute even though no “employee” in the strict sense of the word was involved. Warren v. Motion Picture and Machine Operators, 383 Pa. 312, 118 A. 2d 168. In that case a corporation’s attempt to discharge a union member and to have the work performed by a member of the family which owned the closed corporation was treated as giving rise to a labor dispute between the picketing union and the corporation.

The union has not forced Grimaldi through unlawful coercion or violence to join the union; they have simply insisted upon telling the public the true facts. If telling the truth about him caused Grimaldi to lose patronage, the loss is damnum absque injuria.

Time was when truth had an independent importance in our values regardless of who spoke it. Now it would seem that when truth is ineffectual because spoken by the humble, the oppressed, the minorities, it has constitutional significance but when spoken by the important, the powerful, or a labor union, it amounts to unlawful coercion. It seems quite clear, to me at least, that having told the truth about Grimaldi these defendants would not be subject even to damages for libel or slander. The truth is a defense in civil libel not because it does not hurt but because the injury inflicted by its telling will not be redressed by law. But the present case is the application of previous censorship even though under circumstances which would not warrant damages as a matter of postcensorship. There was a time when labor unions were weak and their organizing attempts were often futile. I agree that now Chut labor has become strouger it has a power to coerce. It must make us watchful to keep the balance even. But we go entirely too far when we condemn the telling of the truth by labor or anyone else no matter how powerful as being unlawful coercion. If there be an ultimate goal which the civilized enforcement of law *22seeks always to reach it is the ascertaining of and enforcement of truth. It is because I think that this labor union had a legitimate interest in the affairs of Grimaldi that I think we have reached a wrong result.

He is not an employer and hence the picketing is not for the purpose of having an employer coerce his employees to join the union. As I have noted above, it is immaterial that he is not an employee. It is quite clear that had he been an employee then there would have been no pretense that the union could have been enjoined from picketing for the purpose of persuading him to join the union. Sansom House Enterprises v. Waiters and Waitresses Union, 382 Pa. 476, 115 A. 2d 746. This is true because the union employees have an identical interest with that of non-union employees in the wages, hours and working conditions of the same craft. It does not seem to me that this principle becomes inapplicable because Grimaldi is a proprietor barber in view of the fact that there are 400 such proprietor barbers in the union.

Indeed, I believe that the injunction actually issued by the court below, in the light of the facts of this case, is a violation of the rights of defendants under Article I, Section 7 of the Pennsylvania Constitution, independently of the Labor Anti-Injunction Act. Kirmse v. Adler, 311 Pa. 78, 166 Atl. 566; Friedman v. Blumberg, 342 Pa. 387, 23 A. 2d 412; Penna. Labor Relations Board v. Bartenders Union, 361 Pa. 246, 64 A. 2d 834; Wilkes Sportswear, Inc. v. Int. Ladies Garment Workers Union, 380 Pa. 164, 110 A. 2d 418. In Schwartz et al. v. Laundry and Linen Supply Drivers’ Union, Local 187, 339 Pa. 353, 14 A. 2d 438, generally referred to as the “bob-tail” case, plaintiffs brought suit against the union and the laundries in the City of Philadelphia to have declared illegal the provisions of the collective bargaining agreement between them *23which prohibited the laundries from accepting work from any “bob-tail” who was not a member of the union or who did not have a contract with it, and which prescribed the prices which the “bob-tails” were to charge for their services and also imposed certain limitations upon the sale by “bob-tails” of their businesses. This Court, in an opinion by Mr. Justice Stern, found that the provisions of the contract relating to the prices which “bob-tails” were to charge and relating to the sale of a business by “bob-fails” were illegal as an unjustifiable restraint of trade. This Court ordered that an injunction be entered restraining the enforcement of these provisions of the contract except as to those provisions requiring plaintiffs, the “independent business men ” to become members of the union.

In regard to the provision requiring the “bob-tails” to become members of the union, this Court recognized the importance to the union of restricting the hours and working conditions of the “bob-tails” in order to avoid the lowering of the working standards of those who were already represented by the union. The opinion states: “It is somewhat difficult to understand what such membership is intended to accomplish. Insofar as it is designed to restrict the ‘bob-tails’ in the operation of the trucks which they themselves drive, and in their collection of laundry, to hours and working conditions prescribed by the union and embodied in its agreement with the laundry companies, the union has a legitimate interest in thus seeking to protect the laundry employees against the lowering of working standards on the part of those who themselves, although in a different legal capacity, perform to some extent the same kind of labor. Bo far, therefore, as a ‘bob-tail’, by becoming a member of the union, would be bound by its reasonable rules as to such matters, there would seem to be no valid objection to this provision.” (Emphasis supplied.)

*24The holding of the Schwarts ease thus establishes that there is no public policy of this Commonwealth preventing a labor union from organizing the so-called “independent business men”. This right is based on the direct connection between the income, working conditions and hours of work of the owner-operator or the self-employer and the wage rates, working conditions and hours of work of the union members.

In Cafeteria Employees Union v. Angelos, 320 U.S. 293, a labor union picketed a cafeteria which was owned by several individuals who themselves conducted the business without the aid of any employees. The Supreme Court reversed the Court of Appeals of New York and found that picketing of an owner-operated business which had no employees was constitutionally protected as an exercise of the right of free speech.

In International Brotherhood of Teamsters, Local 309 v. Hanke, 339 U.S. 470, the union picketed the plaintiff’s business which was owned and operated by him and his three sons as co-partners. Plaintiffs had no employees, but ran their business by themselves. The union picketed their place of business in order to persuade them to respect the limitation on business hours in the collective bargaining agreement between the union and other employers in the same industry. The action of the Supreme Court of Washington in concluding that such picketing violated the public policy of the State of Washington was not condemned. The Supreme Court so concluded solely on the basis that it ought not to interfere within the domain of a state’s public policy; but there is no such policy in Pennsylvania. Schwartz v. Laundry & Linen Drivers’ Union, supra.

In the leading case of Coons v. Journeymen Barbers, Hairdressers and Cosmetologists Int. Union, 222 Minn. 100, 23 N.W. 2d 345, the plaintiff was the operator of *25a one man barber shop which was picketed by the defendant union for the purpose of inducing him to join the union. The signs used by the union were the same as the signs used in the present case. The Supreme Court of Minnesota stated: “Decisions holding that peaceful picketing for the purpose of inducing one operating a business without employes to join a union recognize both the right of a person to operate his business without employes and without joining a union, and the right of a union, in the exercise of the constitutional right of freedom of speech secured to its members by the Fourteenth Amendment, to proclaim those facts for the purpose of influencing the public in their dealings with him, Naprawa v. Chicago Flat Janitors’ Union, 315 Ill. App. 328, 43 N.E. 2d 198 (leave to appeal denied, 382 Ill. 124, 46 N.E. 2d 27); O’Neill v. Bldg. Service Employees Int’l Union, 9 Wash. 2d 507, 115 P. 2d 622, 137 A.L.R. 1102.”

In the recent case of Journeymen Barbers, Hairdressers and Cosmetologists Int’l Union, Local 687 v. Pollino, 22 N.J. 389, 126 A. 2d 194 (1956), the Supreme Court of New Jersey held that the plaintiff barbers’ union was entitled to replevy its union shop card displayed in defendants’ barber shop at the expiration of the collective bargaining agreement where no new contract was executed primarily because the proprietor %oorking barber (even though he employed others) rejected the union demand that he become a member of the union. The Court said: “. . . support may be found in the cases for the union’s view that (absent restrictive legislation) there is no general public policy against a requirement that employers, who actually work with the tools of their trade alongside their employees, must become members of the union and support it at least to the extent that their interests coincide.”

*26I further believe that the conduct of the union is protected by the Fourteenth Amendment to the Constitution of the United States. It is still the law that a blanket prohibition against all forms of peaceful picketing is a violation of the Fourteenth Amendment. This is recognized even in International Brotherhood of Teamsters, Local 695 v. Vogt, 354 U.S. 284, the most stringent of all the recent cases. Starting with Thornhill v. Alabama, 310 U.S. 88, the Supreme Court of the United States first enunciated the doctrine that picketing is constitutionally protected as an exercise of the right of free speech and this doctrine was further expanded even where a direct employer-employee relationship was not involved. American Federation of Labor v. Swing, 312 U.S. 321. In Bakery and Pastry Drivers v. Wohl, 315 U.S. 769, it was held that New York could not constitutionally prohibit a union from picketing bakeries in an effort to have independent peddlers, who bought from the bakeries, conform to union standards. The common impression, however, is that Thornhill and Swing were rendered virtually innocuous by Vogt. If anything need be said outside of Vogt itself to demonstrate that this is not so it would be found in the recent decision reversing the decision of the Supreme Court of Kansas in Newell v. Chauffeurs Teamsters Local 795, 181 Kan. 898, 317 P. 2d 817. There the Supreme Court of Kansas held that the picketing was coercion simply because it was aimed at the strangulation of the employer’s business for the purpose of hastening the employer’s recognition of the union’s demands. The Court said “Coercive picketing is unlawful and contrary to the public policy expressed by the legislature of Kansas”. In reversing, 356 U.S. 341, the Supreme Court of the United States said “per, curiam— The petition for writ of certiorari is granted and the judgment of the Supreme Court of Kansas is reversed. Thornhill v. Alabama, 310 U.S. 88, 98.”

*27By way of summary, then, it would appear that a state court can, so far as the Federal Constitution is concerned, enjoin picketing in a particular case if the picketing has an objective which violates the legitimate public policy of a state. However, a state may not issue a blanket injunction against all picketing. Nor may a state constitutionally equate picketing itself with coercion or with a violation of state policy. Organizational purposes are always a proper objective of picketing and hence picketing for such purposes is constitutionally protected and cannot be enjoined by a state.

The record more than adequately supports the finding that the picketing here had as its purpose the peaceful inducement of the plaintiff to join the union. The plaintiff testified that the union representative “wanted me to join the Union”. There is absolutely no dispute in this case as to the sole object of the union’s conduct, that of persuading the plaintiff to join the union. The picketing consisted only of two men walking up and down in front of plaintiff’s barber shop. There was admittedly no violence, no threats contemporaneous with the picketing. Yet the chancellor and the court below labeled this picketing “coercive”. The chancellor found that the picketing constituted “coercion” because it was aimed at securing plaintiff’s membership in the defendant union.

The court below in its opinion on the defendant’s exceptions conceded that the purpose of the picketing was organizational and in the same breath declared that its purpose was unlawful: “The immediate purpose of this picketing is to organize a self-employed barber who has no employes. The actual purpose, however, appears to be union control of prices and hours of all the City’s barber shops by completely organizing the trade. Such is not a legitimate union objective and constitutes an unlawful purpose.”

*28It is impossible not to conclude that tbe court below equated peaceful picketing for organizational and advertising purposes with coercion. That is precisely what we have said times without number it may not do. It amounts to a blanket proscription of all peaceful picketing. There was no evidence of intent to control prices.

It seems to me that the broad sweeping injunction in this case would prevent the union even from passing-out pamphlets describing the status of its relation to Grimaldi or even standing on street corners away from Grimaldi’s premises to tell the truth about him. I do not believe that Mr. Grimaldi is sui generis. He is not anarchic like Robinson Crusoe before the coming of Friday. For the same reason that the rights of the union and its membership are not absolute neither are Grimaldi’s. A proper accommodation of both, in my view, would require us to reverse this decree.

Hence, I dissent.

Mr. Justice Cohen joins in this dissenting opinion.

Tbe word “proprietors’ ” does not appear in the caption but it does appear in tbe constitution of this union, wbicb is a part of tbe record.

Article VIII, Section 5 (2) defines irroprietor barber as follows : “A proprietor barber or beautician is defined as an owner or part owner of a shop, who habitually works with the tools of the crade.” As to such proprietor barbers Article VIII, Section 3, provides: “Proprietor barbers or beauticians who are working with the tools of the trade and who do not employ one or more journeymen barbers or beauticians must become proprietor members of the local union to display the Union Shop Card.”

Article VIII, Section 5 (1) defines journeymen barber, as follows: “A journeyman barber or beautician is defined as a qualified employee barber or beautician wbo works with the tools of the trade, and is not an owner or part owner of a shop where one or more journeymen barbers or beauticians are employed full time.”

Article VIII, Section 5 (3) defines employer barber as follows: “An employer barber or beautician is defined as an owner, or part owners of a shop wherein one or more journeymen barbers or beauticians are employed full time.”

Article VIII, Section 5 (9) provides: “Any barber or beautician, journeyman, proprietor -or employer, who works at the trade, and wbo is otherwise qualified, is eligible to membership in any local union, and all members are entitled to equal rights of membership, including the right to vote and bold ofiice.”

He is one of the secretaries of the Pennsylvania League of Master Barbers but the Constitution of that League does not prohibit its members from also joining the union. Consequently, a large number of its members are members of Local 9.

The legend on the picket signs said: “Patronize Barber Shops That Display This Card — AF of 1/ — C.I.O.” “This Shop Does Not Display Union Shop Card of AF of L — C.I.O.”

‘‘(a) A case shall be held to involve or to grow out of a labor dispute when the ease 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 by the majority opinion.)