Like Judge Fox, I believe that injunction proceedings of this nature should not be permitted to rest for decision upon finely spun distinctions in the use of words, but that since picketing is a practice the result of which is dependent upon public opinion and the effect it has upon the public at large, the question involved should be approached upon that same plane and not from a different level; that is to say, the legal effect of a public declaration should be gauged by the meaning attached to it by the public at large: not by a different meaning given it by the publisher and, perhaps, by a small part of his hearers. That is especially the case when its ordinary meaning is far more damaging than its restricted meaning, as here. The publisher's good faith might be relied upon in mitigation. We are not concerned with that now.
I do not concede that the cases cited in the majority opinion all support its treatment of the meaning of the word "unfair", and will illustrate my doubt a little later, but supposing, for the time, that the clear weight of authority would justify the use of the single word "unfair" under the circumstances shown by this record, that is by no means the situation we have to deal with here. Placards carried by the pickets at the places of business of Blossom Dairy Company went much further and stated that it was "unfair to organized labor". At that moment Blossom Dairy was operating under a contract eminently satisfactory to its employees entered into as the result *Page 183 of collective bargaining with a labor union, here unsuccessfully attacked by respondents as "phony", the fairness of which is not so much as questioned. Assuming for the moment, that the meaning of the word "unfair" is restricted in the manner adopted in the majority opinion, certainly the term "unfair to organized labor" is much more definite and applies to all legitimate labor organizations formed to procure and maintain satisfactory working conditions. Emphasizing the fact that I am speaking of what appears from this record, Blossom Dairy, in so far as its treatment of organized labor and its principles is concerned, must be viewed as having accorded to it every proper recognition and consideration. From a legal viewpoint, it must be recognized that Blossom Dairy had entered into an effective and existing contract with a unit of organized labor which was satisfied to operate its plants when they were picketed by Teamsters Union No. 175. Therefore, although it might truthfully be said that it was "unfair" to Teamsters Union 175, according to its use of the term, or, perhaps, to some other unit of organized labor, or indeed to the American Federation of Labor at large, it could not be said truthfully that it was unfair to organized labor without exception or as a whole. I believe that statement, even under the reasoning in the majority opinion, should be regarded as untrue. When the statement of unfairness comprehends all organized labor, to my mind, its untruthfulness is plainly established by proof of a fair operating contract with organized labor. See annotation 116 A.L.R. 484, at 498. See also, prior annotations cited at page 497. Since it is generally conceded that the constitutional guarantee of free speech does not permit the use of placards displaying damaging false statements in picketing a place of business, I believe that upon the theory followed in the majority opinion the order of injunction entered by the Circuit Court of Kanawha County should have been modified and continued until the expiration of the contract in November, 1942, which was the order of the circuit court.
In addition I feel quite strongly that the use of the word "unfair" should not be permitted in addressing the *Page 184 public at large when its use is justified only by a "unique meaning" founded on "a well-known and well-understood, peculiar and special significance", to quote the majority opinion. I believe that an examination of the cases used by the majority will throw considerable doubt upon their sustaining the text quotation from Ludwig Teller on "Labor Disputes and Collective Bargaining." For example, the second syllabus point ofSteffes v. Motion Picture, etc., Union, 136 Minn. 200,161 N.W. 524, speaking of organized labor generically or as a whole, reads as follows: "The term 'unfair' as used by organized labor means that the person so designated is unfriendly to organized labor, or refuses to recognize its rules and regulations." Certainly, this does not sustain the text statement that labor unions, presumably locals, have the right to banner employees as unfair in connection with (all?) labor controversies. Cases have been known in which the position of a local was not supported by its own national union. In a later Minnesota case the Supreme Court of that state declined to dissolve an injunction that forbade the untrue use of the word "unfair" as a part of the phrase "Unfair to organized labor", the decision, however, turning upon the construction of a Minnesota statute.Campbell v. Motion Picture M. O., 151 Minn. 220, 186 N.W. 781, 27 A.L.R. 631. The case of Labor Review Publishing Co. v. Galliher, 153 Ala. 364, 45 So. 188, 15 Ann. Cas. 674, is a libel case which goes far afield from sustaining the use of the word "unfair" in any unique sense, but, to the exact contrary, the second point of syllabus reads as follows: "In construing libelous publications the whole must be considered, and that construction must be given which will accord to the words used their plain and popular sense — that meaning which is most natural and obvious, and in which the public understands them."
In the light of the foregoing, it is my opinion that the term "unfair to organized labor" upon a picketing placard should be given its ordinary and usual meaning, that is, opposed to collective bargaining, and that in that sense applying it to an employer who has a subsisting collective contract with organized labor, the fairness of which is *Page 185 not attacked, constitutes an untrue statement, the damaging use of which may be properly enjoined, and that the same result follows if the word "unfair" is given its restricted meaning in the lexicon of organized labor, because an employer living up to the terms of such a contract cannot be unfair to all organized labor as the placard states.
Peaceful picketing accompanied by the use of truthful comment is not here involved.
I would affirm the decree as modified to conform to this memorandum.