CULINARY WORKERS AND BARTENDERS LOCAL UNION No. 631 A.F. of L., and HOMER L. WISE, President, and FRANK PIERCE, Secretary of Culinary Workers and Bartenders Local Union No. 631, A.F. of L., Appellants,
BUSY BEE CAFE, INC., a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment reversed.
Mr. Geo. T. Wilson, and Messrs.
Minne & Sorenson, for Appellants.
Messrs. Lewkowitz & Wein, for Appellee.
Mr. Ira Schneier and Mr. Stanley B. Rider, Amici Curiae.
[57 Ariz. 515] LOCKWOOD, C.J.
This is an appeal by Culinary Workers and Bartenders Local Union No. 631, A.F. of L., and Homer L. Wise, President, and Frank Pierce, Secretary, of such union, defendants, from a permanent injunction granted to Busy Bee Cafe, Inc., plaintiff, in the following language:
"It is further ordered, adjudged and decreed by the Court that a permanent injunction issue, restraining and enjoining Culinary Workers and Bartenders Local Union No. 631, A.F. of L. and Homer L. Wise, President, and Frank Pierce, Secretary of Culinary Workers and Bartenders Local Union No. 631, A.F. of L., their agents, members and employees, and each of them, from picketing the business place of the plaintiff, No. 47 West Washington Street, Phoenix, Arizona."
The facts out of which the proceeding arose are not in serious dispute, and may be stated as follows: Plaintiff was and is engaged in the restaurant and bar business in Phoenix, and employs some seventeen or eighteen men and women in various capacities. [57 Ariz. 516] Defendant union is a local union of a national association of men and women skilled in the trades and occupations incident to the operation of businesses like that of plaintiff. Prior to May, 1939, plaintiff's business was conducted on what was commonly termed an open shop basis, that is, part of its employees were and part were not affiliated with any organized labor union, and plaintiff was under no contractual relation of any nature with defendants or any other labor organization to employ union members or to recognize any particular schedule of wages or conditions of operation. Nor were any of its employees dissatisfied with existing conditions to the extent of being on strike. Defendants requested plaintiff to enter into a contract with the union governing the terms and conditions of employment, and upon the latter's refusal to execute such a contract caused pickets to patrol to and fro on the public highway in front of plaintiff's place of business, with banners indicating that plaintiff was unfair to organized labor. Occasionally such
pickets would orally inform prospective customers of the situation and request them not to patronize plaintiff's business, but there is no substantial evidence of any physical force, threats or intimidation of any nature whatever being used against prospective patrons. Plaintiff thereupon filed a complaint, asking for an interlocutory and permanent injunction restraining defendants and their members from picketing the Busy Bee Cafe. After various preliminary proceedings a permanent injunction, as above set forth, was issued, and this appeal was taken.
Section 26-109, Arizona Code 1939, has been on our statute since 1913. It reads as follows:
"No injunction in controversies between employers and employees -- Exceptions -- Picketing -- No restraining order or injunction shall be granted in any case between employer and employee, or between employees, [57 Ariz. 517] or between persons employed and persons seeking employment, involving or growing out of a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property or to a property right of the party making the application, for which injury there is no adequate remedy at law, and such property or property right must be described with particularity in the application, and no such restraining order or injunction shall prohibit any person or persons from terminating any relation of employment, or from ceasing to perform any work or labor, or from recommending, advising, or persuading others by peaceful means so to do; or from attending at or near a house or place where any person resides or works, or carries on business, or happens to be for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or to abstain from working; or from ceasing to patronize or to employ any party to such dispute; or from recommending, advising, or persuading others by peaceful means so to do; or from paying ...