Local Union No. 10, United Association of Journeymen, Plumbers and Steamfitters v. Graham/Dissent Douglas

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Dissenting Opinion

United States Supreme Court

345 U.S. 192

Local Union No. 10, United Association of Journeymen, Plumbers and Steamfitters  v.  Graham

 Argued: and Submitted Dec. 8, 1952. --- Decided: March 16, 1953

Mr. Justice DOUGLAS, dissenting.

If this union used the coercive power of picketing to force the contractor to discharge the nonunion men who were employed on the job, Virginia could issue the injunction. For it is within the police power of the state to keep opportunities for work open to both nonunion and union men. See Giboney v. Empire Storage Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Building Service Union v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045. But if the union did no more than advertise to union men and union sympathizers that nonunion men were employed on the job, the picketing would be privileged.

Picketing is a form of free speech-the workingman's method of giving publicity to the facts of industrial life. As such it is entitled to constitutional protection. Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093. No court would be entitled to prevent the dissemination of the news 'This is not a Union Job,' whether it be by radio, by newspaper, by pamphlets, or by picketing. A picket carrying that sign would be proclaiming to all union men to stay away. Yet as Mr. Justice Minton, dissenting in International Teamsters Union v. Hanke, 339 U.S. 470, 481, 482, 70 S.Ct. 773, 779, 94 L.Ed. 995, stated, peaceful picketing when used 'as an instrument of publicity' is a form of speech protected by the First and Fourteenth Amendments. It is entitled to that protection though it incites to action. For it is the aim of most ideas to shape conduct. [1]

The line between permissible and unlawful picketing will therefore often be narrow or even tenuous. A purpose to deprive nonunion men of employment would make the picketing unlawful; a purpose to keep union men away from the job would give the picketing constitutional protection. The difficulty here is that we have no findings of fact. We have only the recitation in the decree that the picketing conflicted with the Virginia statute.

There is a dispute in the testimony as to the purpose of the picketing. The contractor testified that the aim was to coerce him to replace nonunion men with union men. The union official testified unequivocally that that was not the purpose, that the aim was to inform union men that nonunion men were on the job. [2] Perhaps the trial judge believed the contractor. Perhaps he deemed it irrelevant to resolve the conflict. Certainly I cannot resolve it from this cold record. I believe the case should be remanded for specific findings. We spoke in Thornhill v. State of Alabama, supra, 310 U.S. at page 105, 60 S.Ct. at page 745, 84 L.Ed. 1093, of the importance of a 'narrowly drawn' picketing statute, of the danger of one that condemned picketing indiscriminately. The same dangers are inherent in cases where there are no findings and yet where the unlawful purpose must be found before the picketing can be enjoined. If Virginia is to enjoin this form of free speech, I would require her to show precisely the reasons for it. Unless we are meticulous in that regard, great rights will be lost by the absence of findings, by the generality of findings, or by the vagueness of decrees. There is more than suspicion that that has happened here. For the decree permanently enjoins defendants 'from carrying on their picketing or other activities in front of or around' the construction site. This decree was not 'tailored to prevent a specific violation' of state law. Building Service Union v. Gazzam, supra, 339 U.S. at page 541, 70 S.Ct. at page 789, 94 L.Ed. 1045. [3] It is a broadside against all picketing, the kind of general assault condemned by Thornhill v. State of Alabama, supra. It illustrates the evil consequences that flow from a failure to be utterly painstaking in isolating the precise evils in picketing which the state may regulate.


^1  I have expressed elsewhere my views concerning the line between sanctity of speech and the unlawful use of the coercive power of unions. See Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769, 775-777, 62 S.Ct. 816, 819-820, 86 L.Ed. 1178; Thomas v. Collins, 323 U.S. 516, 543-544, 65 S.Ct. 315, 328-329, 89 L.Ed. 430.

^2  Mr. Joinville testified:

'Q. Now Mr. Graham has alleged that you came to talk with him as business representative for Local No. 10 and that you renewed your request of July 27, 1950, that all non-union labor on the job project be laid off or discharged. Did you make that request? A. No.

'Q. Were you interested in all the non-union labor on the project being laid off? A. I was only interested in furthering the interests of union labor. As to the standing and who was on the job and what crafts, I didn't know and didn't know until I talked to Mr. Graham and got it from him direct.

'Q. Did you in your conversation with him request him to lay off or fire or discharge anybody? A. No. Mr. Graham definitely told me he intended to go through with it and I asked him to give his contracts to some of the boys-some of the contractors whom he had let his contracts to in the past. He said definitely he had made commitment to Mr. Talley and he intended to hold Mr. Talley to his commitment and see that Mr. Talley completed that job, and knowing the contracting business, I know that.

'Q. You have testified that you went to see him (Mr. Graham) for the purpose of getting him to use some of your union subcontractors, is that correct? A. That is my job, to promote subcontractors and my membership wherever possible.

'Q. He refused to do just that, didn't be? A. He said he had already let the contract to a non-union,-as I assume, I had no relationship with him-to a contractor by the name of Talley and he had no intention of violating that contract with Talley, and I agreed with him.

'Q. Then he denied your men the right to work for him, didn't he? A. He definitely did.

'Q. Mr. Joinville, did Mr. Graham refuse to employ any of your local union men? A. He definitely took the stand he wouldn't have anyone but Talley on that job.

'Q. Did you ask Mr. Graham to cancel his contract with Talley? A. No. I have been in this construction business long enough and business agent for twenty some years and I know when a contract is signed and delivered nobody cancels them.

'Q. That would have nothing to do with the State Law, would it? A. That is right.'

^3  See also Hughes v. Superior Court, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985, where we upheld the validity of an injunction which restrained the defendants from 'picketing * * * for the purpose of compelling plaintiff to do any of the following acts:

'(1) the selective hiring of negro clerks, such hiring to be based on the proportion of white and negro customers who patronize plaintiff's stores; * * *.' This purpose was declared unlawful by the California courts and we sustained the injunction directed against that unlawful purpose. Cf. Hotel & Restaurant Employees' Local v. Wisconsin Board, 315 U.S. 437, 62 S.Ct. 706, 86 L.Ed. 946, involving an administrative order prohibiting picketing. It was undisputed that the picketing had erupted into violence. We accepted the Wisconsin court's determination that the order was directed only against such unlawful conduct and did not reach out to strike down peaceful picketing for a lawful purpose.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).