In a state whose public policy is that employers shall not
coerce their employees' choice of a bargaining representative, a
state court injunction against peaceful picketing by a labor union
for the particular purpose of compelling an employer to sign a
contract which would coerce his employees' choice of a bargaining
representative does not violate the right of free speech guaranteed
by the First and Fourteenth Amendments of the Federal Constitution.
Pp.
339 U. S.
533-541.
(a) Since picketing is more than speech, and establishes a
locus in quo that has far more potential for inducing
action than the message the pickets convey, this Court upholds a
state's restraint of acts and conduct which are an abuse of the
right to picket, rather than a means of peaceful and truthful
publicity. Pp.
339 U. S.
536-537.
(b) The picketing of the employer to compel him to coerce his
employees' choice of a bargaining representative was unlawful
because it was an attempt to induce a transgression of the State's
policy against such coercion of employees. Pp.
339 U. S.
538-539.
(c)
American Federation of Labor v. Swing, 312 U.
S. 321, distinguished;
Giboney v. Empire Storage
& Ice Co., 336 U. S. 490,
followed. Pp.
339 U. S.
539-540.
34 Wash. 2d 38, 207 P.2d 699, affirmed.
Petitioners were enjoined by a state court from picketing
respondent's place of business. The State Supreme Court affirmed.
34 Wash. 2d 38, 207 P.2d 699. This Court granted certiorari. 338
U.S. 903.
Affirmed, p.
339 U. S.
541.
Page 339 U. S. 533
MR. JUSTICE MINTON delivered the opinion of the Court.
It is the public policy of the Washington that employers shall
not coerce their employees' choice of representatives for purposes
of collective bargaining. Do the First and Fourteenth Amendments to
the Federal Constitution permit the State, in reliance on this
policy, to enjoin peaceful picketing carried on for the purpose of
compelling an employer to sign a contract with a labor union which
coerces his employees' choice of bargaining representative?
The State answered in the affirmative. An injunction was issued
in narrow terms enjoining petitioners
"from endeavoring to compel plaintiff to coerce his employees to
join the defendant union or to designate defendant union as their
representative for collective bargaining, by picketing the hotel
premises of plaintiff. . . ."
The Supreme Court of Washington affirmed, 34 Wash. 2d 38, 207
P.2d 699, and we granted certiorari. 338 U.S. 903.
At the time of the controversy, respondent employed about
fifteen persons at Enetai Inn, a small hotel which he operates in
Bremerton, Washington. Just prior to May 1, 1946, representatives
of the petitioner union called upon respondent about organizing his
employees and asked him to sign a contract with the union which
would require his employees to join the union. None of the
employees was a member of any union active in the area. Respondent
replied that that was a matter for the employees to decide. He gave
the union and its representatives permission freely to visit and
solicit his employees for membership while he was absent on a brief
trip to Los Angeles. Upon his return, the union representatives
again approached him about signing a contract. T he representatives
admitted that they had not
Page 339 U. S. 534
secured any members among the employees, and respondent again
replied that it was a matter for the employees. On May 2, 1946,
respondent was advised that the union proposed to have the Enetai
Inn placed on the "We Do Not Patronize" list, and a meeting for the
purpose of attempting to reach a settlement was suggested. At the
meeting held a few days later, respondent was represented by his
attorney. The union still insisted that respondent sign the
contract, and respondent, through his attorney, still declined to
sign on the ground that that would require him to coerce his
employees to join a union, contrary to state law.
The union asked for and was granted a meeting with respondent's
employees at which the union representatives might present their
case. Six representatives of organized labor attended this meeting,
held on May 10, 1946. Eleven of the employees attended. One was a
bellboy whose work the union apparently did not wish to have
covered. Respondent was again represented by his attorney. The
union representatives were given complete and unhampered
opportunity to present their arguments for unionization to the
employees. No statement was made by anyone on behalf of respondent
or the employees. After the union representatives had completed
their presentation, all withdrew except the employees who then took
a vote as to whether they wished to join the union. Of the eleven
voting, nine voted against joining, one was undecided, and the
bellboy, whose membership the union did not desire, voted to join.
The result was immediately reported to the union representatives
and to respondent's attorney. Several days later, respondent was
notified that his hotel had been placed on the "We Do Not
Patronize" list, and pickets began walking in front of his hotel
bearing a sign reading: "Enetai Inn -- Unfair to Organized Labor."
The picketing
Page 339 U. S. 535
was carried on by a single picket at a time, and was
intermittent and peaceful.
With the exception of refusing to sign to contract requiring his
employees to join the union, respondent had complied with all of
the requests and demands of the union. That single refusal was what
caused the union to brand respondent's place of business as unfair.
After the picketing started, respondent's attorney agreed to talk
to respondent again to see if he would consider signing the
contract. After consulting with respondent, the attorney wrote the
union's attorney that respondent was willing to negotiate further
with the union, but would not sign the type of contract that had
been tendered him. The union then offered a contract which provided
that present employees should not be required to join the union as
a condition of continued employment, but that any employees hired
in the future would be required to join within fifteen days or be
discharged. The new contract also provided that the union should be
the bargaining representative for both union and nonunion
employees. The second contract was just the first contract in slow
motion. Respondent refused to sign it for the same reason he had
refused to sign the previously tendered contract.
The peaceful picketing continued, and, on June 29, 1946,
respondent filed this suit for an injunction and damages. On the
first hearing, the trial court granted petitioners' motion for a
nonsuit and dismissed the complaint. The Supreme Court of
Washington reversed on appeal. 29 Wash. 2d 488, 188 P.2d 97. Upon
remand, the trial court, on September 20, 1948, entered judgment
for respondent for damages for the "wrongful picketing" in the sum
of $500, and permanently enjoined petitioners in the previously
quoted language. This judgment the Supreme Court of Washington
affirmed on July 1, 1949, by a divided court. 34 Wash. 2d 38, 207
P.2d 699.
Page 339 U. S. 536
The Washington has what is sometimes referred to as a "Little
Norris-LaGuardia Act," [
Footnote
1] which provides that no injunction shall issue in a "labor
dispute," as defined in the Act, except in conformity with the
provisions of the Act; nor shall any injunction issue contrary to
the public policy declared in the Act. No "labor dispute," as
determined by the law of Washington, was held to exist in this
case. There was no injunction against picketing generally. It was
held that the objective of the picketing was violative of the
public policy against employer coercion of employees' choice of
bargaining representative, and that the picketing should be
enjoined on that narrow ground. [
Footnote 2]
Does the injunction, limited as it is to restraining petitioners
from picketing respondent's hotel for the purpose of compelling him
to coerce his employees' choice of bargaining representative,
constitute an abridgment of the right of free speech under the
First and Fourteenth Amendments?
This Court has said that picketing is in part an exercise of the
right of free speech guaranteed by the Federal Constitution.
Page 339 U. S. 537
Cafeteria Employees Union v. Angelos, 320 U.
S. 293;
Bakery & Pastry Drivers & Helpers
Local v. Wohl, 315 U. S. 769;
American Federation of Labor v. Swing, 312 U.
S. 321;
Carlson v. California, 310 U.
S. 106;
Thornhill v. Alabama, 310 U. S.
88;
Senn v. Tile Layers Union, 301 U.
S. 468. But, since picketing is more than speech, and
establishes a
locus in quo that has far more potential for
inducing action or nonaction than the message the pickets convey,
this Court has not hesitated to uphold a state's restraint of acts
and conduct which are an abuse of the right to picket, rather than
a means of peaceful and truthful publicity. Thus, in
Milk Wagon
Drivers Union v. Meadowmoor Dairies, 312 U.
S. 287, the picketing in issue, considered in isolation,
was peaceful, but had been found to be enmeshed with and set in
such a background of violence that it was a part of a pattern of
violence. This Court held that peaceful picketing under such
circumstances might properly be enjoined by the State.
In
Hotel & Restaurant Employees' International Alliance
v. Wisconsin E.R.B., 315 U. S. 437,
this Court upheld the right of Wisconsin, through its Employment
Relations Board, to issue a cease and desist order against violence
in picketing and boycotting by the union involved.
Carpenters
& Joiners Union v. Ritter's Cafe, 315 U.
S. 722, upheld a decree enjoining the union from
picketing a cafe having no business connection with the place where
the industrial dispute centered. And, in
Giboney v. Empire
Storage & Ice Co., 336 U. S. 490, the
Court sustained a decree enjoining picketing which was peaceful and
informative, but was carried on for the purpose of coercing the
employer to violate the antitrust law of Missouri.
The public policy of any state is to be found in its
constitution, acts of the legislature, and decisions of its courts.
"Primarily, it is for the lawmakers to determine
Page 339 U. S. 538
the public policy of the state."
Twin City Pipe Line Company
v. Harding Glass Company, 283 U. S. 353,
283 U. S.
357.
The Washington has, by legislative enactment, declared its
public policy on the subject of organization of workers for
bargaining purposes. The pertinent part of this statute is set
forth in the margin. [
Footnote
3] The meaning and effect of this declaration of policy is
found in its application by the highest court of the State to the
concrete facts of the instant case. Under the so-enunciated public
policy of Washington, it is clear that workers shall be free to
join or not to join a union, and that they shall be free from the
coercion, interference, or restraint of employers of labor in the
designation of their representatives for collective bargaining.
Picketing of an employer to compel him to coerce his employees'
choice
Page 339 U. S. 539
of a bargaining representative is an attempt to induce a
transgression of this policy, and the State here restrained the
advocates of such transgression from further action with like aim.
To judge the wisdom of such policy is not for us; ours is but to
determine whether a restraint of picketing in reliance on the
policy is an unwarranted encroachment upon rights protected from
state abridgment by the Fourteenth Amendment.
Petitioners insist that the
Swing case,
supra,
is controlling. We think not. In that case, this Court struck down
the State's restraint of picketing based solely on the absence of
an employer-employee relationship. An adequate basis for the
instant decree is the unlawful objective of the picketing --
namely, coercion by the employer of the employees' selection of a
bargaining representative. Peaceful picketing for any lawful
purpose is not prohibited by the decree under review. The State has
not here, as in
Swing, relied on the absence of an
employer-employee relationship. Thus, the State has not, as was the
case there, excluded
"working men from peacefully exercising the right of free
communication by drawing the circle of economic competition between
employers and workers so small as to contain only an employer and
those directly employed by him."
312 U.S. at
312 U. S.
326.
The Washington statute has not been construed by the Washington
courts in this case to prohibit picketing of workers by other
workers. The construction of the statute which we are reviewing
only prohibits coercion of workers by employers. We cannot agree
with petitioners' reading of this injunction that "whatever types
of picketing were to be carried out by the union would be in
violation of the decree." Respondent does not contend that
picketing
per se has been enjoined, but only that
picketing which has as its purpose violation of the policy of the
State. There is no contention that picketing
Page 339 U. S. 540
directed at employees for organization purposes would be
violative of that policy. The decree does not have that effect.
We are of the opinion that
Giboney v. Empire Storage &
Ice Co., 336 U. S. 490,
controls the disposition of this case, and that it therefore must
be affirmed. In the
Giboney case, it is true that the
state law which made the objective of the picketing unlawful had
criminal sanctions. The Washington statute here has no criminal
sanctions. Petitioners seek to distinguish
Giboney on that
ground. This Court there said:
"But placards used as an essential and inseparable part of a
grave offense against an important public law cannot immunize that
unlawful conduct from state control. . . . And it is clear that
appellants were doing more than exercising a right of free speech
or press. . . . They were exercising their economic power, together
with that of their allies, to compel Empire to abide by union,
rather than by state regulation of trade."
336 U.S. at
336 U. S.
502-503. It is not the presence of criminal sanctions
which makes a state policy "important public law." Much public
policy does not readily lend itself to accompanying criminal
sanctions. Whether to impose criminal sanctions in connection with
a given policy is itself a question of policy.
Here, as in
Giboney, the union was using its economic
power, with that of its allies, to compel respondent to abide by
union policy, rather than by the declared policy of the State. That
State policy guarantees workers free choice of representatives for
bargaining purposes. If respondent had complied with petitioners'
demands and had signed one of the tendered contracts and lived up
to its terms, he would have thereby coerced his employees. The
employees would have had no free choice as to whether they wished
to organize or what union would be their representative.
Page 339 U. S. 541
The public policy of Washington relied upon by the courts below
to sustain this injunction is an important and widely accepted one.
The broad purpose of the Act from which this policy flows was to
prevent unreasonable judicial interference with legitimate
objectives of workers. But abuse by workers or organizations of
workers of the declared public policy of such an Act is no more to
be condoned than violation of prohibitions against judicial
interference with certain activities of workers. We therefore find
no unwarranted restraint of picketing here. The injunction granted
was tailored to prevent a specific violation of an important state
law. The decree was limited to the wrong being perpetrated, namely,
"an abusive exercise of the right to picket."
Cafeteria
Employees Union v. Angelos, 320 U.S. at
320 U. S. 295.
The judgment is
Affirmed.
MR. JUSTICE BLACK is of the opinion that this case is controlled
by the principles announced in
Giboney v. Empire Storage &
Ice Co., 336 U. S. 490, and
therefore concurs in the Court's judgment.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this case.
[
Footnote 1]
Washington Labor Disputes Act, Rem.Rev.Stat. (Supp. 1940) §
7612. Certain sections of this Act were held unconstitutional by
the Washington Court in
Blanchard v. Golden Age Brewing
Company, 188 Wash. 396, 63 P.2d 397.
[
Footnote 2]
The Washington Supreme Court reviewed its decisions in this
field in its first opinion in the instant case.
O'Neil v.
Building Service Employees Union, 9 Wash. 2d 507, 115 P.2d
662, and
S. & W. Fine Foods v. Retail Delivery Drivers and
Salesmen's Union, 11 Wash. 2d 262, 118 P.2d 962, had treated
any peaceful picketing as lawful.
American Federation of Labor
v. Swing, 312 U. S. 321, was
held to be controlling in both cases. But, in the instant case,
both the
O'Neil and
S. & W. cases were
characterized as wrong in principle, and were expressly overruled.
The court quoted from
Swenson v. Seattle Central Labor
Council, 27 Wash. 2d 193, 206, 177 P.2d 873, 880, where it was
said that peaceful picketing is an exercise of the right of free
speech which loses the protection of constitutional guaranty where
"it steps over the line from persuasion to coercion."
[
Footnote 3]
"In the interpretation of this act and in determining the
jurisdiction and authority of the courts of the State of
Washington, as such jurisdiction and authority are herein defined
and limited, the public policy of the State of Washington is hereby
declared as follows: "
"Whereas, under prevailing economic conditions, developed with
the aid of governmental authority for owners of property to
organize in the corporate and other forms of ownership association,
the individual unorganized worker is commonly helpless to exercise
actual liberty of contract and to protect his freedom of labor, and
thereby to obtain acceptable terms and conditions of employment,
wherefore, though he should be free to decline to associate with
his fellows, it is necessary that he have full freedom of
association, self-organization, and designation of representatives
of his own choosing, to negotiate the terms and conditions of his
employment, and that he shall be free from interference, restraint,
or coercion of employers of labor, or their agents, in the
designation of such representatives or in self-organization or in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protections; therefore, the following
definitions of, and limitations upon, the jurisdiction and
authority of the courts of the State of Washington are hereby
enacted."
Rem.Rev.Stat., Supp. 1940, § 7612-2.