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International Broth. of Carpenters and Joiners of America, Local No. 857 v. Todd L. Storms Const. Co.

Supreme Court of Arizona

April 30, 1958

TODD L. STORMS CONSTRUCTION CO., a corporation, Appellee.

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[84 Ariz. 121] Ira Schneier, Tucson, for appellants. Minne & Sorenson and A. D. Ward, Phoenix, of counsel.

Boyle, Bilby, Thompson & Shoenhair, and H. C. Warnock, Tucson, for appellee.

JOHNSON, Justice.

This is an appeal from an order for a temporary injunction. Appellants, the unions and their agents, will hereinafter be referred to as defendants or unions, and the appellee will be referred to as plaintiff or employer, whichever is appropriate.

On February 10, 1956, plaintiff filed its complaint and on the same day an ex parte order was entered restraining defendants from picketing plaintiff's construction project in Douglas, Arizona. The trial court entered an order to show cause why a temporary injunction should not be entered. Defendants filed motions to dismiss the complaint and to dissolve the temporary restraining order. A hearing was had and thereafter the order involved herein was entered.

The complaint alleged a conspiracy to force plaintiff, by picketing his building project, to make an agreement to employ only members of the union defendants; or to coerce or compel the employees of plaintiff and its subcontractors to become members[84 Ariz. 122] of the union defendants; or to coerce plaintiff's subcontractors to refuse to carry out their contracts with plaintiff; and such acts were illegal and entitled plaintiff to injunctive relief under Chapter 8 A.R.S. § 23-1301 et seq. The complaint further alleged there was no dispute as to wages and working conditions between plaintiff and its employees, between itself and the employees of its subcontractors, or between its subcontractors and their employees.

In defendants' motion to dissolve the temporary restraining order it was alleged that such order was in violation of their constitutional righs of freedom of speech and assemblage as guaranteed by the Constitution of the State of Arizona and of the United States; that the picketing was solely to publicize the facts relative to the wage scales and working conditions prevailing in plaintiff's business operations and its economic interdependence within the building industry in the State of Arizona; and, that the picketing was at all times peaceable.

Plaintiff presented its case, and the trial court relied thereon in entering the order for a temporary injunction, on the basis that the picketing violated § 23-1322 A.R.S. Plaintiff's counsel stated to the trial court:

'* * * The statute clearly says it shall be illegal to picket an establishment where less than a majority of the employees are engaged in a labor dispute, and that such picketing may be enjoined. That is the issue of this law suit. * * *'

Since the entry of the order we recently held this section unconstitutional as abridging the right of freedom of speech insured under the Fourteenth Amendment of the Constitution of the United States. Baldwin v. Arizona Flame Restaurant, 82 Ariz. 385, 313 P.2d 759.

Also, since the entry of the order for a temporary injunction, the Supreme Court of the United States again considered the limits imposed by the Fourteenth Amendment on the power of a state to enjoin picketing. International Brotherhood of Teamsters, etc., v. Vogt, 354 U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347. The court reviewed a series of cases which established a broad field in which a state, in enforcing some public policy, whetheer of its criminal or its civil law, and whether announced by its legislatute or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy.

In Hughes v. Superior Court of State of California, etc., 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985, the Supreme Court held that the Fourteenth Amendment did not bar use of the injunction ot prohibit picketing of a place of business solely to secure compliance with a demand that its employees be

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hired in precentage to the racial origin of its customers.

[84 Ariz. 123] In International Brotherhood v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995, 13 A.L.R.2d 631, the court held that a state was not restrained by the Fourteenth Amendment from enjoining picketing of a business conducted by the owner himself without employees, in order to secure compliance with a demand to become a union shop.

Building Service Employees International Union v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045, was decided the same day as the Hanke case. Following an unsuccessful attempt at unionization of a small hotel an dthe refusal by the owner to sign a contract with the union as bargaining agent, the union began to picket the hotel with signs stating that the owner was unfair to organized labor. The court found the object of the picketing was in violation of its statutory policy against employer coercion of employees' choice of bargaining representative and enjoined picketing for such purpose. The Supreme Court affirmed and rejected the argument that A. F. of L. v. Swing,312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. ...

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