Don A. BALDWIN, individually and as Secretary-Treasurer and Business Agent of the Hotel & Restaurant Employees & Bartenders Union Local No. 631; Hotel & Restaurant Employees and Bartenders Union Local No. 631; Hotel & Restaurant Employees and Bartenders International Union, A.F.L.; George DeTalente, individually and as President of said Local 631; John Does 1 to 1000, agents, members and servants of aforesaid Bartenders Unions, Appellants,
ARIZONA FLAME RESTAURANT, Inc., a corporation; Western Village Management Corporation, a corporation; Clyde R. Garland and Gale Garland, a copartnership, d/b/a Central Dryv Inn; John P. Schroeder and Jean B. Schroeder, copartners, d/b/a NorthTown Drive Inn; Milton's Skylark Cafe, Inc., a corporation; Carl J. Lockett, d/b/a Carl's Restaurant; Charles Stow and Hazel Stow, copartners, d/b/a ArizonaHotel Coffee Shops; S.W. Hubbard and Merry E. Hubbard, copartners, d/b/a Hubbard's 307; Sam C. Colachis, Sr., Sam C. Colachis, Jr., James W. Colachis, Christ Fontinos, andNick Cuimanes, a copartnership, d/b/a Saratoga Cafe; Donofrio's Confectionery,Inc., a corporation; George Phacas, d/b/a Colonial Cafe; A. S. Miller, Sr., A.S. Miller,Jr. and Bruce M. Miller, copartners, d/b/a Miller's Cafeteria; Robert E.Gosnell, d/b/a Green Gables; Douglas Lee and Rose Lee, copartners, d/b/a Lee's Restaurant; L. J. Newton, d/b/a Newton's Prime Rib; Greenway Coffee Shop,Palomine Coffee Shop,Flamingo Coffee Shop and Cocktail Lounge, Jays and Brass Rail; Joe Hunt, ChetW. Johns, Joseph F. Martori and Horace E. Comer, copartners, d/b/a JoeHunt's Steak House; and Jack Malcoff and Sol Malcoff, copartners, d/b/a Malcoff's,Plaintiffs-Appellees, Gene Doyle, d/b/a Circle M Cafe and Killarney (Smorgasbord); Dale James, d/b/a The Silver Spur; Ann Abbott, d/b/a Shed 13, Added Plaintiffs-Appellees,Lillie Lann, Louise Packer, Samuel Southern, Frances Holland and MelbaFarthing, InterveningPlaintiffs-Appellees.
[82 Ariz. 387] Parker & Muecke, Phoenix, for appellants.
Jennings, Strouss, Salmon & Trask, Irving A Jennings, Clarence J. Duncan, John E. Madden, and Albert B. Spector, Phoenix, for appellees.
Ira Schneier, Tucson, Herbert B. Finn and Stephen S. Gorey, Phoenix, amici curiae.
[82 Ariz. 388] LA PRADE, Justice.
This is an appeal from a decree of interlocutory injunction enjoining defendant union from picketing of the establishments of the plaintiffs. The appellant, The Hotel and Restaurant Employees' and Bartenders' Union, Local No. 631, one of the defendants below, will hereinafter be referred to as the defendant union; the appellees-plaintiffs will be referred to as the restaurant plaintiffs or intervening plaintiffs, whichever is appropriate.
The essential facts follow: On February 1, 1954, a three-year collective bargaining contract between the defendant union and the Arizona Restaurant Association, of which all restaurant plaintiffs except the added restaurant plaintiffs were members, expired, and was extended by mutual agreement until February 28, 1954. Prior to the expiration date and pursuant to this agreement, negotiations were initiated in an attempt to work out a new contract. The parties, after various proposals and counter-proposals extending past the final expiration date, were unable to resolve their differences through such negotiations.
On March 1, 1954, the majority of the membership of the defendant union voted to strike against all of the resturant plaintiffs
who refused to execute a proposed collective bargaining contract (plaintiffs' exhibit B) which contained, among other provisions, a 'one owner' clause, 'agencyshop' clause, 'joint examining board' clause, and 'hiring hall' clause. Picket lines were established immediately thereafter. On March 26, 1954, the restaurant plaintiffs filed a complaint seeking to enjoin defendant union's picketing against their establishments, on the ground that such was being conducted to force execution of an unlawful collective bargaining contract (exhibit B). The trial court granted the temporary restraining order prayed for. Defendant union then moved to quash the restraining order and at that time irrevocably renounced as collective bargaining objectives, without conceding their illegality, the 'one owner' and 'agnecy-shop' provisions of the proposed contract, which the court had indicated to be unlawful objectives, and amended the proposed agreement accordingly. The amended contract is referred to as defendant's exhibit 9. The trial court, upon such renunciation, modified its temporary restraining order to permit specified peaceful picketing. At this point the court permitted certain other restaurant owners, who had subsequent to commencement of this action become the targests of defendant union's picketing, to be added as plaintiffs. Subsequent to the date the strike was called each of the restaurant plaintiffs had replaced some of the strikers with nonunion employees, and certain members of this replacement group were permitted to intervene as class action representatives (intervening plaintiffs). The restaurant [82 Ariz. 389] plaintiffs then filed a verified petition for reinstatement of the terms of the original restraining order on the grounds that the vacancies caused by the strikers had been filled; that business had returned to normal; and that there in fact no longer existed a bona fide labor dispute between the management of any restaurant plaintiff and a majority of its employees.
The trial court, after conducting a hearing, ultimately made findings of fact and conclusions of law, and issued an interlocutory injunction reinstating the original restraining order prohibiting all picketing of the restaurant plaintiffs' establishments. The findings of fact were to the effect that the purpose of defendant union's picketing was as to the restaurant plaintiffs, except the added restaurant plaintiffs, conducted to force the execution of the proposed collective bargaining contract referred to as exhibit B; and as to the added plaintiffs to force the execution of the proposed contract referred to as exhibit 9. It furthermore specifically found
'That said picketing * * * was * * * to cause the discharge of persons employed by plaintiffs and cause persons to be denied employment because of non-membership in a labor organization by inducing other persons to refuse to work with such persons; and to compel or attempt to compel persons employed by said plaintiffs to strike against their will an to leave their employment by threatened interference with their property.'
Based upon its findings of fact the court arrived at a conclusion of law to the effect that the picketing of the defendant union was conducted for an unlawful purpose and illegal under the provisions of section 56-1301 to 56-1308, 1952 Supp. and sections 56-1309 to 56-1311, 1954 Supp. A.C.A.1939 (section 23-1301 et seq., A.R.S.), and that, therefore, the restaurant plaintiffs and intervening plaintiffs were entitled to an injunction against its continuance. The trial court in addition handed down a memorandum opinion which, upon motion of defendant union, was incorporated as an amendment to the findings of fact and conclusions of law. In effect this opinion declared that the 'one owner', 'agency-shop', 'joint examining board' and 'hiring hall' clauses constitute illegal collective bargaining objectives as being in conflict with the laws of this state; that the union had, therefore, struck to achieve unlawful ends; that regardless of the effect renunciation of the four contract clauses may have had, the restaurant plaintiffs, having replaced the strikers, there no longer existed a bona
fide dispute between any of the restaurant plaintiffs and a majority of their employees, respectively; and that, therefore, further picketing was violative of section 56-1310 (anti-picketing statute), 1954 Supp. A.C.A.1939 (section 23-1322, A.R.S.) and enjoinable. The trial court disregarded [82 Ariz. 390] defendant union's tender to irrevocably renounce the 'hiring hall' and 'joint examining board' provisions of the proposed collective bargaining contract (exhibit 9), which the court had since the initial renunciation indicated to be unlawful; denied the defendant union's objections to the findings of fact and conclusions of law; and refused to again modify its decree to permit peaceful picketing. From the findings of fact, conclusions of law, and decree of interlocutory injunction, the defendant union had taken this appeal. In this connection the defendant union has submitted fifty-one assignments of error for our consideration.
The primary issue presented is whether the trial court was justified under our law to issue on interlocutory injunction enjoining the defendant union from peaceful picketing of plaintiffs' establishments.
The memo opinion written by the trial court reflects that the interlocutory decree appealed from is primarily based upon a conclusion that the picketing of the defendant union was in violation of section 56-1310, supra. It is reasoned that after the union employees struck they were replaced with non-union employees (intervening plaintiffs) to the extent that there no longer existed a bona fide labor dispute between the restaurant plaintiffs' establishments and a majority of their present complement of employees, respectively; and that the picketing, therefore, comes within the prohibition of section 56-1310, supra, and is enjoinable. The defendant union contends in opposition that section 56-1310, supra, constitutes an unconstitutional abridgement of the right of free speech insured under Amendment XIV of the United States Constitution. With this contention of the defendant union we are in agreement.
Section 56-1310, supra, provides that:
'It shall be unlawful for any labor organization to picket any establishment unless there exists between the the employer and majority of employees of such establishment a bona fide dispute regarding wages or working conditions.'
It is well settled that where peaceful picketing is conducted for a lawful purpose it cannot be prohibited or enjoined. A general prohibition on peaceful picketing violates Amendment XIV of the United States Constitution, which prohibits state action violative of the guarantees insured under the First Amendment protecting freedom of speech, press and assembly. Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855; Culinary Workers and Bartenders, etc. v. Busy Bee Cafe, 57 Ariz. 514, 115 P.2d 246; American Federation of Labor v. American Sash & Door Co., 67 Ariz. 20, 189 P.2d 912. It is an equally well-established proposition of law that picketing, even when peaceful[82 Ariz. 391] can be enjoined when such is conducted for an unlawful purpose. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Building Service Employees International Union v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045; Local Union No. 10, etc. v. Graham, 345 U.S. 192, 73 S.Ct. 585, 97 L.Ed. 946. Thus, a court can properly enjoin peaceful picketing the purposes of which include the accomplishment of objectives which constitute violations of state laws. But a state policy which has the effect of restraining peaceful picketing must aim specifically at the evils within the allowable area of state control and not sweep within its ambit other activities which in ordinary circumstances constitute an exercise of freedom of speech or press. Thornhill v. State of Alabama, supra.
The plain wording of section 56-1310, supra, requires as a conditions precedent
to a labor organization picketing the establishment of any employer that there exists a bona fide dispute between such employer and a majority of his employees. It, therefore, effectively provides that under all circumstances, and regardless of purpose, a union having less than a majority is prohibited from all peaceful picketing. Such clearly on its face constitutes a general prohibition against peaceful picketing in violation of the United States Constitution, as such has been interpreted by the highest court in the land. The decisions of that court interpretive of the Constitution are binding upon us regardless of personal views as to their soundness which we may entertain. In American Federation of Labor v. Bain, 165 Or. 183, 106 P.2d 544, 555, 130 A.L.R. 1278, where statutes similar in effect to section 56-1310, supra, were under attack, the Oregon court, after a learned discussion of the law, struck down the provisions as unconstitutional, stating that they saw
'* * * no escape from the conclusion that the denial of such a right to the members of a minority is no less an unconstitutional abridgement of the right (of free speech) simply because it is saved to the majority.'
The constitutionality of a similar provision was successfully challenged in International Union of Operating Engineers, etc. v. Cox, 148 Tex. 42, 219 S.W.2d 787, and we are aware of no decision now effective which upholds the constitutionality of such a statute. We, therefore, have no hesitancy in declaring section 56-1310, supra, to be violative of Amendment XIV of the Constitution of the United States. This statute, being unconstitutional and void, cannot form a basis upon which the interlocutory injunction here assailed can be legally grounded.
Without at this juncture ruling on their legality as collective bargaining objectives under existing law, we next turn [82 Ariz. 392] our consideration to the four controversial contract clauses; 'agency-shop' clause, 'one owner's clause, 'hiring hall' clause, and 'joint examining board' clause. We direct our consideration to these contract provisions at this point with the object of resolving only whether they, when subsequently abandoned, could form the basis upon which the trial court could properly predicate the decree of interlocutory injunction which forms the basis for this appeal. We are of the opinion that they could not.
We are satisfied that the evidence justifies the trial court's finding that the initial objective of the union in declaring a strike was not force the execution of a collective bargaining contract (Exhibit B) which contained all four of the clauses above set forth. We must, therefore, assume that such clauses were included among initial objectives sought to be achieved by strike and picket. At this point it is well to reiterate, however, that after the trial court indicated the four clauses to be unlawful collective bargaining objectives, the defendants had either irrevocably renounced or offered to renounce each of these clauses as objects of their continued peaceful picketing. In 43 C.J.S. Injunctions § 196 b (3), p. 906, it is stated that
'As a general rule an injunction will be denied where the defendant denies intent to continue the acts sought to be enjoined and there is ...