ON PETITION FOR REHEARING October 11, 1949. 210 P.2d 454. *Page 203 Rehearing denied.
BADT, J., dissenting. OPINION This Court has had occasion heretofore, in City of Reno v. Second Judicial District Court, 59 Nev. 416, 95 P.2d 994, 125 A.L.R. 948, to express the views of the majority of the justices upon the question of the lawfulness of peaceful picketing. Until our recent opinion written by EATHER, J. and concurred in by HORSEY, C.J., and the dissenting opinion by Mr. Justice BADT, in State ex rel. Culinary Workers Union, Local No. 226, et al. v. Eighth Judicial District Court in and for Clark County et al.,66 Nev. 166, 207 P.2d 990, and in which a rehearing has been petitioned and is now pending, the last expression of this court was in the year 1939, in the able and extensive opinion by Mr. Justice DUCKER, concurred in by Mr. Chief Justice TABER, in City of Reno v. Second Judicial District Court, supra.
In the latter opinion, Mr. Justice DUCKER repeatedly referred to Senn v. Tile Layers Protective Union, 301 U.S. 468,57 S.Ct. 857, 862, 81 L.Ed. 1229, and, in that connection, in 59 Nev. 416,95 P.2d 994, the learned *Page 204 justice, on pages 441-442 of 59 Nev., and on page 1004 of 95 P.2d, stated:
"In Senn v. Tile Layers Protective Union, supra, the constitutionality of state anti-injunction legislation designed to prohibit judicial interference with peaceful picketing, was declared, and the intimation that such picketing is protected by the constitutional guaranty of free speech, is too plain to be misunderstood.
"In Ex parte Lyons, 27 Cal.App.2d 293, 81 P.2d 190, 193, it was declared: `In this state the right to peacefully picket rests upon the constitutional guaranty of the right of free speech.'"
Mr. Justice DUCKER then stated:
"The ordinance on its face, in sections 2 and 4 is obviously adapted to protect the employer from annoyance and incidental loss of business rather than to protect the public in maintaining its peace and the unobstructed use of the streets. But such annoyance and loss in a labor dispute are not tortious nor do they constitute an invasion of any constitutional rights. Senn v. Tile Layers Protective Union, supra. These sections bear no reasonable and substantial relation to the promotion of the public safety, health, morals, general welfare, for which the exercise of the police power may be invoked.
"I am of the opinion that sections 2 and 4 of the Reno City Ordinance No. 480 are unconstitutional and void, in that they invade the constitutional guaranties of the due process of law clauses of the federal and state constitution, and of section 9 of Article 1 of the state Constitution guaranteeing free speech and forbidding the state to pass any law to restrain or abridge the liberty of speech. * * *"
We have, in our recent majority opinion in State ex rel. Culinary Workers Union, Local No. 226 et al. v. Eighth Judicial District Court, in and for Clark County et al., supra, cited, and quoted from, American Federation of Labor v. Swing, 312 U.S. 321,61 S.Ct. 568, 570, 85 L.Ed. 855, American Steel Foundaries v. Tri-City *Page 205 Central Trades Council, 257 U.S. 184, 209, 42 S.Ct. 72, 78,66 L.Ed. 189, 27 A.L.R. 360, and many other cases of importance involving the right and lawfulness of peaceful picketing. The members of this court have had occasion, since our recent opinion in State ex rel. Culinary Workers Union v. Eighth Judicial District Court et al., supra, again carefully to consider them in connection with respondents' petition for rehearing, together with the additional authorities in support thereof, and those of the relators in support of their assertion that same should be denied, and it is the view of the majority that the constitutional principles involved are so fundamental and conform so closely to the views of the majority of this court, and which, as we believe, represent the great weight of American authority, that we discern no useful purpose to be served in granting or ordering a rehearing. In the absence of any applicable constitutional provision or statute in Nevada enacted since the opinion in City of Reno v. Second Judicial District Court, supra, or any decisions of other states concerning which we entertain reasonable doubt as to the correctness of our views, we would not be justified in overruling City of Reno v. Second Judicial District Court, supra. Relative to the latter, the majority of this court entertain no such reasonable doubt, but, on the contrary, adhere fully to the view of the majority of this court in City of Reno v. Second Judicial District Court, supra, so clearly and ably expressed therein by the late Mr. Justice DUCKER, and concurred in by the late Mr. Chief Justice TABER.
It may be contended that the act of 1911, sec. 10473, N.C.L., vol. 5, was not directly invoked or necessarily involved in City of Reno v. Second Judicial District Court, supra, even though such statute was enacted long prior thereto. That may be true, but we dare say it would have been directly involved were it not for the fact that said statute, sec. 10473, was generally considered to be based upon what has been usually designated as a "yellow dog" or "company union" contract, and *Page 206 not within the meaning or purview of a "Right to Work" statute. The majority of this court, in State ex rel. Culinary Workers Union v. Eighth Judicial District Court, supra, 66 Nev. 166,207 P.2d 990, at pages 997-998, has stated:
"The Supreme Court of the State of California was faced with this same problem of statutory construction in Shafer v. Registered Pharmacists Union, 16 Cal.2d 379, 106 P.2d 403, 407, and in that case reached the conclusion that this type of statute was not intended to outlaw union security agreements reached by collective bargaining. That court pointed out: `* * * the clause "to join or to remain a member of a labor organization," may not reasonably be construed as prohibiting a promise to join an independent labor union. Although the term "labor organization," taken by itself, is broad enough to refer to either a company or an independent union, the purpose of the legislation must be considered in arriving at a conclusion concerning its meaning. If the words are meant to designate an independent union, then it is against public policy for an employee or prospective employee to join such an organization, which is a result exactly contrary to the declaration of policy in section 923. * * * These and other considerations render untenable the contention that union shop contracts in California are void under section 921. As has already been noted, the usual company union contract is an individual agreement between the employer and an employee, whereas the union shop contract is an agreement running between the employer and the union as an entity.'
"The Nevada act here in question makes certain agreements unlawful when entered into with an employee or `person about to enter the employ' of another and is therefore aimed expressly at individual agreements. It does not mention or prohibit collective agreements or agreements with labor organizations as such, and we conclude as did the California court in the Shafer case, *Page 207 that this law was not enacted for the purpose of making collective union security agreements unlawful.
"Respondents have cited the so-called `Right to Work' cases to support their contention that the 1911 act is a valid enactment prohibiting closed shop agreements. In these cases, however, the supreme court clearly distinguishes the long-standing anti-yellow-dog contract laws and the very recent legislations involved in the cases. After discussing the history of the anti-yellow-dog contract legislation, Mr. Justice Black, in upholding the recent laws concluded that: `Just as we have held that the due process clause erects no obstacle to block legislative protection of union members, we now hold that legislative protection can be afforded non-union workers.'
"From our study of the legislative history and the background of the 1911 act it is plain to us that this act was enacted to prohibit the `yellow-dog' type of contract and to protect workers from compulsion to join company dominated unions, but that the law does not by its terms outlaw union security agreements obtained through the process of collective bargaining.
"If the opponents of union security agreements wish to have them declared unlawful they should address their demands to the legislature for a clear and unmistakable mandate and not appeal to this court for such declaration under color of a law that was never intended to fulfill that purpose."
The provisions of section 10473, N.C.L. 1929, vol. 5, are as follows: "It shall be unlawful for any person, firm or corporation to make or enter into any agreement * * * by the terms of which any employee of such person * * * shall promise or agree not to become or continue a member of a labor organization, or shall promise or agree to become or continue a member of a labor organization."
Bearing in mind the historical background of the statute, the first clause of the provision, to the effect that "it shall be unlawful" to "promise or agree not to become *Page 208 or continue a member of a labor organization * * *," is considered entirely clear. Certain employers in many states, by coercion, intimidation and oppressive methods, had prevented contracts between the employers and their employees, by which the employees were free to join labor organizations in order the better to promote and protect such employees in their rights to enter into collective bargaining and to enjoy the legitimate benefits which naturally result from organization, and in order the more equitably to equalize, in their labor relations, the power of capital and of labor. Such oppressive methods were not entirely absent in Nevada, and doubtless occasioned the creation of such statute. But the second or alternative clause of the said provision, namely, "it shall be unlawful * * * shall promise or agree to become or continue a member of a labor organization," is not so clear, at least to the average person. At first blush, it would seem that the benefit and advancement to be realized by the first clause of the provision, abolishing the nefarious "yellow-dog" contract and making it unlawful for an employee to promise or agree not to become a member of a labor organization of its own choosing, might, by the terms of the second clause thereof, namely, "it shall be unlawful" to "promise or agree to become or continue a member of a labor organization," be thwarted, thus defeating the very provisions of the statute, sec. 10473, which ostensibly were to assure the furtherance of more humane and equitable labor relations. Indeed, to some persons, perhaps, without full knowledge of the legislative intention as to such second clause, the provision may have appeared mystifying. It appears, however, a few years later, in the State of California, that the courts of that state, in dealing with a provision in California almost identical in language to that in the said second clause of our provision in section 10473, held that the California legislature had not intended at all, or in any respect, to provide that an employee should not agree to become or *Page 209 continue a member of a labor organization as to the right of collective bargaining, or to enter into union security agreements or other legitimate functions of labor union activities, but only to prevent so-called "company union" agreements. Such so-called "company union" agreements were arrangements or devices by which certain employers, instead of further resorting to the former `yellow dog' agreements by which their employees were required not to become a member of a labor organization, which had been banned, were then resorting to inducing their employees to enter into such "company unions." So, by the California decisions, such as Shafer v. Registered Pharmacists Union, 16 Cal.2d 379,106 P.2d 403, 407, and others, such "company union" agreements were determined to be against sound public policy, and, by the force and effect of the statute in that state, it became unlawful to become a member of such a "company union," so called.
In dealing with our own statute it has become increasingly clear that, as to the provisions relating to such second clause of section 10473, N.C.L. 1929, vol. 5, any uncertainty of interpretation thereof which may have heretofore been existent has been removed by the reasoning of the California decisions above mentioned, and it clearly appears that the statute, and particularly said second clause therein, did not intend to prevent an employee from entering into an agreement to become a member of an independent, legitimate labor organization, with the right freely to bargain and to indulge in labor union activities as guaranteed by the right of freedom of speech and of assembly, but only to curtail and prevent such "company union" contracts as were, in their nature and effect, calculated unduly to influence, coerce and oppress employees. Such "company unions," so-called, were found, by impartial judges, to be no real improvement over the former "yellow-dog" contracts, by which there was no membership in any labor organization, but merely an individual relationship by which the *Page 210 individual employee was placed at the mercy, so to speak, of the employer. So, for the reason that Mr. Justice DUCKER stated, in effect, that the peaceful picketing by a labor union, in City of Reno v. Second Judicial District Court, supra, was for a lawful objective, sections 2 and 4 of the Reno City Ordinance No. 480 being unconstitutional, the majority of this court in State ex rel. Culinary Workers Union, etc. v. Eighth Judicial Dist. Ct. in and for Clark County, supra, 207 P.2d 990, has found and decided that in section 10473, in the provision in the second clause of said section the purpose or intent was to prohibit so-called "company union" contracts as being against sound public policy. If, by the first clause of said provisions in section 10473, "yellow-dog" contracts were rendered unlawful, likewise the contracts mentioned in the second clause thereof were, by analogy, deemed against public policy, but only as they related to so-called "company union" contracts, and said clause did not, in any respect, make collective security agreements unlawful. The peaceful picketing, therefore, by certain labor unions, to accomplish labor unionization as to the drug stores referred to, in the City of Las Vegas, was for a lawful objective.
In the view of the majority of this court, the said two cases above mentioned, City of Reno v. Second Judicial District Court, and State ex rel. Culinary Workers Union v. Eighth Judicial District Court, supra, are entirely consistent, and each has treated and cited, exhaustively, and we believe, correctly, many phases of freedom of speech and of assembly. In both these cases the principles involved, respectively, are fundamental. The opinion by Mr. Justice DUCKER was based upon the Reno City ordinance No. 480, while State ex rel. Culinary Workers Union v. Eighth Judicial District Court, supra, was based upon the Nevada statute, section 10473, N.C.L., vol. 5, but in each of the cases this court clearly upheld the lawfulness of peaceful picketing as a proper and legitimate labor objective. In each of the said cases, *Page 211 therefore, the injunctive process was denied, any loss of business, or annoyance, caused by the peaceful picketing by certain labor unions involved being merely incidental and unavoidable, and damnum absque injuria.
We do not feel we should fail to mention a very recent decision of the supreme court of Oregon, filed July 6, 1949. The case appears in the advance sheets of Pacific Reporter, 2d series, August 26, 1949, and is cited as Baker Community Hotel Co. v. Hotel Restaurant Employees Bartenders International League, Local 161 et al., Or., 207 P.2d 1129. The opinion was written by Rossman, Justice, and concurred in unanimously. In able, clear and plain language, the learned justice has stated, as reported on pages 1134-1135 and on page 1136, of 207 P.2d, the following:
"We come now to the question as to whether or not the dispute between the respondent and the appellants was a labor dispute within the contemplation of § 102-925, O.C.L.A., for, if it was not, our Anti-Injunction Act is not applicable to this suit. Peters v. Central Labor Council, 179 Or. 1, 169 P.2d 870, 872, which was concerned with the section of our Anti-Injunction Act just mentioned, says:
"`The vital question is whether the facts disclose a "labor dispute" within the meaning of the Anti-Injunction Act of this state, §§ 102-913 to 102-925, O.C.L.A. If such dispute exists, no injunctive relief can be granted under the Act against peaceful picketing. * * *
"`It does not follow, however, that the union could not picket for the unionization of the plant even though none of its members were employees therein, as that is, according to the overwhelming weight of authority, a legal labor objective. Lauf v. E.G. Shinner Co., supra (303 U.S. 323, 58 S.Ct. 578, 82 L.Ed. 872); New Negro Alliance v. Sanitary Grocery Co., supra (303 U.S. 552,304 U.S. 542, 58 S.Ct. 703, 82 L.Ed. 1012); Fur Workers Union v. Fur Workers Union, 308 U.S. 522, 60 S.Ct. 292, 84 L.Ed. 443; United States v. Hutcheson, *Page 212 312, U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788; American Federation of Labor v. Swing, supra (312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855); Levering Garrigues Co. v. Morrin, 2 Cir., 71 F.2d 284; Blankenship v. Kurfman, 7 Cir., 96 F.2d 450; Donnelly Garment Co. v. International L.G.W.U., 8 Cir., 99 F.2d 309; Taxicab Drivers Local Union v. Yellow Cab Operating Co., 10 Cir., 123 F.2d 262; American Furniture Co. v. I.B. of T.C. and H. of A.,222 Wis. 338, 268 N.W. 250, 106 A.L.R. 335; Teller on Labor Disputes, Vol. 1, § 211; 31 Am.Jur. 940, § 215.'
* * * * * * * "We are satisfied that the passages just quoted from the Peters decision and the text-book correctly portray the applicable principles of labor law. A demand by a union upon an employer that he unionize his shop, followed by his refusal to do so, constitutes a labor dispute within the conception of § 102-925, O.C.L.A. This court, like all other state courts, has yielded to the superior authority of the Federal Supreme Court, and in so doing has held that peaceful picketing by a union for the purpose of achieving the unionization of a place of employment is lawful and cannot be enjoined by a court of equity. The complaint indicates that at least one of the objectives which the appellants' picketing sought to achieve was the unionization of the hotel and the restaurant which the respondent conducted. From all that we have so far considered, it appears that the picketing was lawful and that it was pursued in furtherance of a labor dispute within the embrace of § 102-925, O.C.L.A."
In view of said section 10473, N.C.L. 1929, vol. 5, and the doctrine and authorities elucidating the said "yellow-dog" or "company union" contracts and statutes, notably in the State of California and the authorities there cited, and in the absence of a statute or statutes of a different nature in Nevada, and in view of the wealth of able authorities in the United States Supreme Court and *Page 213 other federal courts, and in numerous state courts, upholding the lawfulness of peaceful picketing for the accomplishment of a legitimate labor objective, and bearing in mind City of Reno v. Second Judicial District Court, supra, we can do no other than to deny the respondents' petition for a rehearing in the proceedings.
Rehearing denied.
EATHER J., concurs.