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LOCUST CLUB v. HOTEL AND CLUB EMPLOYEES' UNION. (10/21/59)

THE SUPREME COURT OF PENNSYLVANIA


October 21, 1959

LOCUST CLUB, APPELLANT,
v.
HOTEL AND CLUB EMPLOYEES' UNION.

Appeal, No. 190, Jan. T., 1959, from decree of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1957, No. 2822, in case of Locust Club v. Hotel and Club Employees' Union, Local No. 568, AFL-CIO et al. Decree affirmed. Equity. Before GRIFFITHS, J. Adjudication filed dismissing complaint; plaintiff's exceptions to adjudication dismissed and decree entered, dissenting opinion by HAGAN, P.J. Plaintiff appealed.

COUNSEL

Robert H. Kleeb, with him Kenneth Souser, and Morgan, Lewis & Bockius, for appellant.

Edward Davis, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Mcbride, JJ.

Author: Mcbride

[ 397 Pa. Page 358]

OPINION BY MR. JUSTICE MCBRIDE

The Locust Club is a Pennsylvania non-profit corporation organized and operated for the purpose of maintaining a clubhouse and for the promotion of friendship and good citizenship. It operates a bar and restaurant for the pleasure and accommodation of its approximately 300 members and the use thereof by

[ 397 Pa. Page 359]

    non-member guests is merely incidental. It is not engaged in any industry, commerce, or business separate and apart from the maintenance of the club. The Union is an unincorporated labor organization, its membership being composed in part of cooks, waiters, bartenders, waitresses, bus help, dishwashers, bell men and linen room attendants, i.e., the same job classifications as those of the persons employed by the club. It represents as bargaining agent such employees of 31 hotels and 2 clubs which are similar to the Locust Club. Lawrence Stoltz is the President and Business Manager of the Union.

In August, 1956, the Union made a demand upon the club for recognition as collective bargaining agent of the club's employees claiming to represent the majority thereof. The club refused. Thereupon the Union, on or about October 18, 1956, caused some employees of the club to strike and has since that time caused the clubhouse to be picketed by varying numbers of persons. It was stipulated that at the time the strike was called and the picketing commenced, the Union represented 12 of a total of 19 employees of the club such as would have constituted an appropriate bargaining unit; that 10 of the 19 employees never participated in the strike; that the 9 employees who did participate in the strike have all been replaced by the club. The various legends of the picket signs have indicated that a strike was in progress, that the club's employees are not members of the union, and also contained the statement "Union requests your cooperation".

The request of the club for a preliminary injunction restraining the picketing was refused by Judge GRIFFITHS, the chancellor, and although the club took an appeal it was later withdrawn. Stipulations of fact were entered into and the matter was decided by the

[ 397 Pa. Page 360]

    chancellor on final hearing. The chancellor filed an adjudication denying injunctive relief and dismissed the complaint. On exceptions his findings were sustained by the court en banc, consisting of GRIFFITHS and CHUDOFF, JJ. President Judge HAGAN dissented.

It is conceded by both parties that the questions before this Court are purely legal since the essential facts are not in dispute. Those questions are two-fold: (1) Does the Labor Anti-Injunction Act*fn1 apply so as to oust the jurisdiction of the court below to grant an injunction? and (2) Assuming it does not apply, was it error under the circumstances of this case to refuse an injunction?

The legislature has ordained in the Labor Anti-Injunction Act that the courts of Pennsylvania are without jurisdiction to grant a temporary or permanent injunction "contrary to the public policy declared in this act" or "in a case included within this act". 43 P.S. § 206d. The Act stated the public policy of the Commonwealth to be that "... 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 ..."

A "case included within this act" is one which grows out of a "labor dispute" as defined therein. A "labor dispute", as stated in 206c(a)(b) and (c), exists where "the case involves persons who are engaged

[ 397 Pa. Page 361]

    in a single industry, trade, craft or occupation, or have direct or indirect interests therein," or concerns "the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment or concerning employment relations or any other controversy arising out of the respective interests of employer and employee ..."*fn2

[ 397 Pa. Page 362]

The word "employer" includes a corporation not for profit.*fn3 The term "employe" includes all natural persons who perform service for other persons.*fn4

We have held in Pennsylvania Labor Relations Board v. Overbrook Golf Club, 385 Pa. 358, 123 A.2d 698, that a club is not an employer within the meaning of the Pennsylvania Labor Relations Act*fn5 and hence may not be compelled by the Labor Relations Board to recognize the union or to engage in a collective bargaining agreement with it. That, however, does not mean that the club is prohibited from doing so unless that would be unlawful or constitute an unfair labor practice. It does not follow that the club is not covered by the provisions of the Labor Anti-Injunction Act. That point was not involved in the Overbrook case.

Both acts were passed at the same session of the legislature. Nevertheless, we may not overlook obvious differences in language, particularly in the coverage section; all provisions of each statute must be read so as to effectuate the intention of the legislature.

[ 397 Pa. Page 363]

We are obliged to hold that since the word "employer" in Section 206c of the Pennsylvania Anti-Injunction Act specifically includes corporations not for profit the Locust Club is an employer within the meaning of that act. It remains to inquire, therefore, whether the present case is a labor dispute as that term is used in the Labor Anti-Injunction Act.

The court below, on sufficient evidence, found as follows: "The employees of the Club are in direct competition with the employees doing similar work at hotels and restaurants affecting the labor market and the plaintiff is engaged in the respective trades and occupations of its employees so engaged."

In respect of the club the chancellor stated, in the adjudication: "... It operates a barber shop in competition with outside shops for the trade of its members. It also operates a restaurant in competition with other restaurants and hotels for the trade of its members for lunches and dinners. No doubt many of its members partake of their downtown, weekday lunches almost exclusively at the club to the loss of such business by other downtown city hostelries. The fact that the restaurant is operated at a loss does not gainsay the simple truth that the club is in the business of selling meals to its members. Many business houses have at times operated at a loss, but such a fact does not, as a chameleon, change the nature of its business by the color of the ink used in its final entry on the balance sheet. Furthermore dues of members are intended to implement such facilities afforded the membership.

"We believe the plaintiff is in as much a trade or occupation as any other restaurant or barber shop. ..."

The court held, therefore, that it lacked the power to grant an injunction because of the provisions of the Labor Anti-Injunction Act.

[ 397 Pa. Page 364]

The club relies upon Western Pennsylvania Hospital et al. v. Lichliter et al., 340 Pa. 382, 17 A.2d 206, in which we held that neither the Labor Relations Act nor the Labor Anti-Injunction Act applied to such a hospital. Here, however, it is obvious that the operation of a club, such as the present one, is different from the operation of a hospital so far as concerns the effect of the Labor Anti-Injunction Act. The court below has pointed out the ways in which the activities of this club, with its bar, barbershop and restaurant, partakes of the nature of any other restaurant or hotel except that overnight accommodations are not provided. The fact that its clientele is limited to its membership constitutes a difference in degree and not in kind. The controlling feature is that the employees of the non-profit club perform the identical wage-earning duties performed by other employees in profit-making establishments such as hotels and restaurants and thus are engaged in an occupation which gives both an interest in their mutual wages or working conditions. To analogize the operation of this social club to the operation of a charitable hospital, which deals with the health and indeed the life of the general community, would be to prefer shadow to substance.

The relief sought in the present case is against the Union and through it against its membership. Thus this is a controversy arising out of the respective interests of employer and employee and is by definition a "labor dispute" within the meaning of that term in the Labor Anti-Injunction Act. The Act was a procedural statute designed to protect workmen. The Labor Relations Act was primarily intended to deal with labor disputes by an administrative agency; the Labor Anti-Injunction Act was a specific limitation upon the power of courts. That the two are related do not make them necessarily coextensive.

[ 397 Pa. Page 365]

It remains to consider the point raised by the club, that although the union at the time of the strike represented a majority of the employees, it did not do so at the time this suit was instituted.*fn6 The chancellor, while recognizing that the Locust Club could not be prevented from replacing the striking employees by administrative or legal procedures, held that this condition should not be permitted to frustrate the legitimate purpose of the union, which at the time of the strike had a majority and did not lose it by the non-redressable unilateral act of the club in replacing those employees. To hold otherwise would obviously defeat the public policy of the act. In Anchorage, Inc. v. Waiters & Waitresses Union, 383 Pa. 547, 119 A.2d 199, we found that the evidence which justified the court in making a distinction between conduct which may have been lawful in its inception but became unlawful through persistence long after it became clear that the lawful object could not be obtained, has no application here where the changed status has been brought about not by virtue of any act on the part of the union but by the ex parte act of the club, whether lawful or not. In other words, here the club is seeking to take advantage of a change in the status quo created by itself. The court below was fully justified in holding that it would not give controlling influence to such a position. It is not even contended by appellant that this was an organizational strike. Clearly its purpose

[ 397 Pa. Page 366]

    was not to gain new members either by lawfully persuading the employees to join or unlawfully coercing the employer to require the employees to do so.

It is clear that the present case is "included within" the Labor Anti-Injunction Act and that to grant the injunction would also "violate the public policy declared by the Act".*fn7 The court below was correct in holding itself to be without jurisdiction in this case.

Even if the Labor Anti-Injunction Act were not applicable we would still necessarily affirm the court below.

Courts of equity, under the Act of June 16, 1836, P.L. 784, § 13, 17 P.S. 281, 282, and the Act of February

[ 397 Pa. Page 36714]

, 1857, P.L. 39, § 1, 17 P.S. 283, have had and continue to have jurisdiction to grant or refuse to grant injunctive relief even in labor disputes except where such jurisdiction has been withdrawn. See Main Cleaner & Dyers, Inc. v. Columbia Super Cleaners, Inc. et al., 332 Pa. 71, 75, 2 A.2d 750; Bright v. Pittsburgh Musical Society, American Federation of Musicians, Local 60, 379 Pa. 335, 108 A.2d 810.

It must be remembered that we are not reviewing here a case where the court below granted an injunction; we are, instead, reviewing a case where the lower court refused to do so. Therefore, it does not necessarily avail the club to demonstrate that neither the Labor Relations Act nor the Labor Anti-Injunction Act is applicable. All that would follow would be that the court below was possessed of its reviewable discretionary power to grant or refuse the requested equitable relief under the circumstances of the individual case.

The chancellor here found that the picketing was constitutionally protected and within the public policy of the Commonwealth. Upon this finding he predicated his refusal to enjoin it.

It is well settled that the basic findings of the chancellor, supported by the record and affirmed by the court en banc, will not be disturbed on appeal. DeJoseph v. Zambelli, 392 Pa. 24, 139 A.2d 644; Howarth v. Miller, 382 Pa. 419, 115 A.2d 222. It is likewise settled law that an injunction will not issue in the absence of a clear right thereto. McDonald v. Noga, 393 Pa. 309, 312, 141 A.2d 842. Chancery never puts forth this strong arm of injunction unless in a clear case of the invasion of a private or public right. City of Philadelphia's Appeal, 78 Pa. 33. The club, nevertheless, contends that we must reverse the court below because the conduct of the union was unlawful and should have been enjoined under the Act of 1836, supra.

[ 397 Pa. Page 368]

It is true that in International Brotherhood of Teamsters v. Vogt, 354 U.S. 284, the Supreme Court of the United States ruled that a state has the power to decide its own public policy in the matter of picketing, subject only to the rule that it cannot enact blank prohibitions against all picketing per se.

By way of historical background it is interesting to note that at one time it was considered a criminal conspiracy for men to organize into unions. Cote v. Murphy, 159 Pa. 420, 425, 28 Atl. 190. However, in this State, it was declared by our Legislature many years ago that it was not criminal per se for employees to organize, Act of May 8, 1869, § 1, P.L. 1260, 43 P.S. § 191; or concertedly to refuse to work, Acts of June 14, 1872, § 1, P.L. 1175, 43 P.S. § 200, and June 16, 1891, P.L. 300, 43 P.S. § 199.

While these Acts removed the stigma of a criminal sanction, they did not impose upon an employer the duty to bargain with any organized group of employees. This concept was not part of the law of Pennsylvania until the passage of the Pennsylvania Labor Relations Act in 1937, which was patterned after the National Labor Relations Act (Wagner Act) of 1935. Since the Pennsylvania Labor Relations Act is not applicable to the plaintiff (Overbrook Golf Club, supra) the plaintiff is free to refuse to bargain. This means only that there exists no remedy, administrative or otherwise, whereby the union can compel such recognition and bargaining. It does not mean that the union is thereby prevented from using lawful economic pressure to persuade the club to recognize and bargain, and the lower court has found, upon sufficient evidence, that that is precisely what occurred in this case.

All of this was determined by us in Kirmse v. Adler, 311 Pa. 78, 166 A. 566. That case substantially

[ 397 Pa. Page 369]

    answers all of the club's contentions. The primary aim of the Appellee Union here in picketing the Club was to achieve recognition for the Union as collective bargaining agent, and thereby improve and protect the wages, hours and working conditions of the Club's employees, while at the same time preserving the standards in other unionized establishments among hotels and clubs in the City of Philadelphia. The secondary purpose was, of course, to impose economic pressure upon the patronage of the Club, clearly a lawful act. As we said in Kirmse, at p. 86: "... If one has a legal right to do a particular thing, the law will not inquire into his motive for doing it: Beirne v. Continental Equitable, 307 Pa. 577. Having this unquestioned right to present their case ... in a peaceful way, if the employer suffers loss from this peaceable assertion of rights, it is a damage without a remedy. The controlling factor must be, do the methods used involve intimidation or coercion in any form? If they do not, but are peaceful and orderly, equity will not interfere." (Emphasis supplied.) In reversing an injunction we said, quoting from Kraemer Hosiery Co. v. Amer. Fed. F.F.H. Workers, 305 Pa. 206, 157 A. 588: "This much is secured to the citizen by the constitutional provision that: 'The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.'"*fn8

Although the activity engaged in by the Union in the Kirmse case did not specifically turn upon picketing, as such, the Court there said "Picketing, if peaceful and unaccompanied by coercion, duress, or intimidation, is lawful."

[ 397 Pa. Page 370]

The Kirmse case was decided by this Court prior to the passage of either the Labor Anti-Injunction Act or the Pennsylvania Labor Relations Act, and is still the law today, when the procedural Anti-Injunction Act is not controlling.

Peaceful picketing has been recognized as a form of assembly and of speech, and has been afforded the protection of Article I, Section 7 of the Constitution of Pennsylvania. In addition to Kraemer Hosiery Co. v. Amer. Fed. F.F.H. Workers, supra, and Kirmse v. Adler, supra, cited above, see: American Brake Shoe Co. v. District Lodge 9 of the Int. Asso. of Machinists, 373 Pa. 164, 173, 94 A.2d 884; Wortex Mills, Inc. v. Textile Workers Union of America, C.I.O., 369 Pa. 359, 85 A.2d 851; Alliance Auto Service v. Cohen, 341 Pa. 283, 19 A.2d 152.

It is true that picketing, even though peaceful, is not necessarily beyond the power of a court to enjoin and an injunction may issue wherever the picketing is for an unlawful object or is in violation of state law or public policy. However, the chancellor found that the picketing in this case did not have an unlawful object, was not forbidden by law and did not contravene public policy. That finding was in accordance with the evidence in the case and we uphold it. Therefore, we could not overrule the lower court in this case unless we were to enforce a blanket prohibition against all picketing on the ground that picketing, since it involves more than mere speech, is enjoinable per se. This we could not do even under the Fourteenth Amendment to the United States Constitution. Thornhill v. Alabama, 310 U.S. 88; American Federation of Labor v. Swing, 312 U.S. 321; and Bakery and Pastry Drivers v. Wohl, 315 U.S. 769, even when considered in the light of Teamsters Union v. Vogt, 354 U.S. 284, still stand in the way. But even if the Fourteenth

[ 397 Pa. Page 371]

Amendment did not apply to the facts of this case, as found by the chancellor, we would still be enjoined from reversing by our own Constitution. It is only where public policy, whether enunciated by the court or legislature, or state law, contravene the Fourteenth Amendment that the decisions of the Supreme Court of the United States are controlling. Therefore, even were we permitted by the Fourteenth Amendment to reach a different result, we are not compelled to do so. We rest decision in this case upon our own Constitution, law and public policy.

It may be suggested that this economic warfare, without administrative agency to settle the problem, is undesirable but it is our function to interpret the law as we find it and not to usurp the legislative province. We have here a conflict between a club, which cannot lawfully be forced to recognize or bargain with the union, and a union which, lacking such legal procedures to compel the club to recognize and bargain with it, nevertheless has the right, so long as it does not resort to unlawful coercion, to attempt by all economic means in its power to persuade the club to do what it cannot otherwise compel it to do. There is here involved no question of peaceful picketing which constituted persuasion in the first instance but, having been too long and persistently continuous, becomes a nuisance and an unlawful form of coercion, as in Jefferson & I. Coal Co. v. Marks, 287 Pa. 171, 134 A. 430; nor, as in Anchorage, Inc. v. Waiters & Waitresses Union, 383 Pa. 547, 119 A.2d 199, where there was involved organizational picketing persisted in for five years which the court below found could never succeed at all. Even so, in the Anchorage case, we were careful to point out that "It is, of course, true that picketing which is lawful does not necessarily become unlawful merely by the extended duration of time during

[ 397 Pa. Page 372]

    which it may be carried on ..." The court below, in the present case, found on sufficient evidence that this picketing had not become unlawful. The court below in the Anchorage case found that it had.

It is not significant in the present case that all members of the union did not go out on strike. By remaining at their work they did not thereby cease to be members of the union. To hold that a club which employs persons in the categories in which the Locust Club does and that such employees may be restrained by a court from acting collectively, requires a very clear statutory differentiation between them and others which does not appear under the circumstances of the present case. An interpretation of law which would put persons similarly situated in a different category in respect of their equality before the law requires, at least, that the legislation which seeks to accomplish such purpose is free and clear of all doubt.

We conclude that the court below was without power under the Labor Anti-Injunction Act to restrain the lawful activity of the union as disclosed by this record and that in any event it was justified in refusing to impose the heavy hand of injunction under the circumstances of this case.

Mr. Chief Justice JONES concurs in the result.

Disposition

The decree of the court below is affirmed, costs on appellant.

ING OPINION BY MR. JUSTICE BELL:

The Locust Club is a Pennsylvania non-profit corporation organized and operated for the purpose of maintaining a clubhouse to provide for the social enjoyment of its members and for the promotion of friendship and good citizenship. It operates a restaurant

[ 397 Pa. Page 373]

    and bar for the pleasure and accommodation of its approximately 300 members, as well as for non-member guests whose use thereof is merely incidental. It is a social club and is not engaged in any industry or commerce, or in any business as that term is commonly understood.

The union has been picketing the Locust Club since October 1956 without gaining a single member. However, the picketing has harassed and oppressed the Club and its members and many persons have refused to deliver food and essential supplies because of the picket line. It is as obvious as anything can be that the real object of the picketing is to coerce the Club into requiring its employees to join the union - in violation of the Pennsylvania Labor Relations Act. We note parenthetically that such picketing even of an industrial corporation has been termed "blackmail picketing" by President Eisenhower in his recent nationwide radio address, and has been prohibited by Congress in the recent Labor-Management Act of 1959.

The lower Court refused injunctive relief because "We believe the Pennsylvania Anti-Injunction Act is applicable to plaintiff's business or trade and the court is therefore without power to issue an injunction prohibiting picketing for recognition purposes." The majority opinion states "The court below was correct in holding itself to be without jurisdiction in this case."

The unions argue that they have an absolute right (1) to peacefully picket for as many years as they desire, if one of their objectives is to organize the employees, or to compel recognition of the union, since such picketing is a form of free speech and is therefore absolute, boundless and unlimited; and (2) a fundamental right to injure or destroy, by picketing, the business of any employer whether the employer be engaged in industry or in business, or is a hospital, a

[ 397 Pa. Page 374]

    charity or a social club. The law does not support these alleged "picketing" rights. Since the aforesaid misconceptions are so deep-rooted and are not confined to union lawyers, we shall once again and, we hope forever, dispose of them.

Picketing is a form of freedom of speech, but as the Supreme Court of the United States has realistically said, picketing is much more than freedom of speech*fn1 and consequently it is neither actually nor legally the equivalent of free speech.*fn2

There is no absolute unqualified unlimited right to picket. For example, picketing accompanied by intimidation, threats or violence, as well as mass picketing is illegal. Moreover, the recent decisions of the Supreme Court of the United States and of this Court hold that a State Court may enjoin peaceful picketing if it is conducted in an unlawful manner or for an unlawful purpose; peaceful picketing is lawful only if the method and means employed and all the objects and purposes of the picketing are lawful: International Brotherhood of Teamsters v. Vogt, Inc., 354 U.S. 284 (1957); Giboney v. Empire Storage & Ice Co., 336 U.S. 490; Hughes v. Superior Court, 339 U.S. 460; Building Service Employees v. Gazzam, 339 U.S. 532; Teamsters Union v. Hanke, 339 U.S. 470; Plumbers Union v. Graham, 345 U.S. 192; Anchorage, Inc. v.

[ 397 Pa. Page 375]

    with the A.F.L.' 'In consequence,' drivers of several trucking companies refused to deliver and haul goods to and from respondent's plant, causing substantial damage to respondent. Respondent thereupon sought an injunction to restrain the picketing.

"The trial court did not make the finding, requested by respondent, 'That the picketing of plaintiff's premises has been engaged in for the purpose of coercing, intimidating and inducing the employer to force, compel, or induce its employees to become members of defendant labor organizations, and for the purpose of injuring the plaintiff in its business because of its refusal to in any way interfere with the rights of its employees to join or not to join a labor organization.' ...

"... the Supreme Court [of Wisconsin], noting that the facts as to which the request was made were undisputed, drew the inference from the undisputed facts and itself made the finding.*fn3 It canvassed the whole circumstances surrounding the picketing and held that 'One would be credulous, indeed, to believe under the circumstances that the union had no thought of coercing the employer to interfere with its employees in their right to join or refuse to join the defendant union.' Such picketing, the court held, was for 'an unlawful purpose,' since Wis. Stat. § 111.06(2)(b) made it an unfair labor practice for an employee individually or in concert with others to 'coerce, intimidate or induce any employer to interfere with any of his employes in the enjoyment of their legal rights ....' ...

"Soon, however, the Court came to realize that the broad pronouncements, but not the specific holding, of Thornhill [v. Alabama] had to yield 'to the impact

[ 397 Pa. Page 377]

    of facts unforeseen,' or at least not sufficiently appreciated. Cf. People v. Schweinler Press, 214 N.Y. 395, 108 N.E. 639, 28 Harv.L.Rev. 790. Cases reached the Court in which a State had designed a remedy to meet a specific situation or to accomplish a particular social policy. These cases made manifest that picketing, even though 'peaceful,' involved more than just communication of ideas and could not be immune from all state regulation. 'Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated.' Bakery Drivers Local v. Wohl, 315 U.S. 769, 776 (concurring opinion); see Carpenters Union v. Ritter's Cafe, 315 U.S. 722, 725-728.

"These latter two cases required the Court to review a choice made by two States between the competing interests of unions, employers, their employees, and the public at large. In the Ritter's Cafe case, Texas had enjoined as a violation of its antitrust law picketing of a restaurant by unions to bring pressure on its owner with respect to the use of nonunion labor by a contractor of the restaurant owner in the construction of a building having nothing to do with the restaurant. ...

"The implied reassessments of the broad language of the Thornhill case were finally generalized in a series of cases sustaining injunctions against peaceful picketing, even when arising in the course of a labor controversy, when such picketing was counter to valid state policy in a domain open to state regulation. The decisive reconsideration came in Giboney v. Empire Storage & Ice Co., 336 U.S. 490. A union, seeking to organize peddlers, picketed a wholesale dealer to induce it to refrain from selling to nonunion peddlers.

[ 397 Pa. Page 378]

The state courts, finding that such an agreement would constitute a conspiracy in restraint of trade in violation of the state antitrust laws, enjoined the picketing. This Court affirmed unanimously.

"'It is contended that the injunction against picketing adjacent to Empire's place of business is an unconstitutional abridgement of free speech because the picketers were attempting peacefully to publicize truthful facts about a labor dispute.... But the record here does not permit this publicizing to be treated in isolation. ...'

"The Court therefore concluded that it was '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.' Id., at 503.

"The following Term, the Court decided a group of cases applying and elaborating on the theory of Giboney. In Hughes v. Superior Court, 339 U.S. 460, the Court held that the Fourteenth Amendment did not bar use of the injunction to prohibit picketing of a place of business solely to secure compliance with a demand that its employees be hired in percentage to the racial origin of its customers. ...

"On the same day, the Court decided Teamsters Union v. Hanke, 339 U.S. 470, holding 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. ...

"A third case, Building Service Employees v. Gazzam, 339 U.S. 532, was decided the same day. Following an unsuccessful attempt at unionization of a small hotel and refusal by the owner to sign a contract with the union as bargaining agent, the union began to

[ 397 Pa. Page 379]

    picket the hotel with signs stating that the owner was unfair to organized labor. The State, finding that the object of the picketing was in violation of its statutory policy against employer coercion of employees' choice of bargaining representative, enjoined picketing for such purpose. This Court affirmed, rejecting the argument that 'the Swing case, supra, is controlling. ...'

"A similar problem was involved in Plumbers Union v. Graham, 345 U.S. 192, where a state court had enjoined, as a violation of its 'Right to Work' law, picketing that advertised that nonunion men were being employed on a building job. This Court found that there was evidence in the record supporting a conclusion that a substantial purpose of the picketing was to put pressure on the general contractor to eliminate nonunion men from the job and, on the reasoning of the cases that we have just discussed, held that the injunction was not in conflict with the Fourteenth Amendment.

"This series of cases, then, established a broad field in which a State, in enforcing some public policy, whether of its criminal or its civil law, and whether announced by its legislature or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy.

"In the light of this background, the Maine Supreme Judicial Court in 1955 decided, on an agreed statement of facts, the case of Pappas v. Stacey, 151 Me. 36, 116 A.2d 497. From the statement, it appeared that three union employees went on strike and picketed a restaurant peacefully 'for the sole purpose of seeking to organize other employees of the Plaintiff, ultimately to have the Plaintiff enter into collective bargaining and negotiations with the Union ....' Maine had a statute providing that workers should

[ 397 Pa. Page 380]

    have full liberty of self-organization, free from restraint by employers or other persons. The Maine Supreme Judicial Court drew the inference from the agreed statement of facts that 'there is a steady and exacting pressure upon the employer to interfere with the free choice of the employees in the matter of organization. To say that the picketing is not designed to bring about such action is to forget an obvious purpose of picketing - to cause economic loss to the business during noncompliance by the employees with the request of the union.' 151 Me., at 42, 116 A.2d at 500. It therefore, enjoined the picketing, and an appeal was taken to this Court.

"The whole series of cases discussed above allowing, as they did, wide discretion to a State in the formulation of domestic policy, and not involving a curtailment of free speech in its obvious and accepted scope, led this Court, without the need of further argument, to grant appellee's motion to dismiss the appeal in that it no longer presented a substantial federal question. 350 U.S. 870.

"The Stacey case is this case. As in Stacey, the present case was tried without oral testimony. As in Stacey, the highest state court drew the inference from the facts that the picketing was to coerce the employer to put pressure on his employees to join the union, in violation of the declared policy of the State. (For a declaration of similar congressional policy, see § 8 of the National Labor Relations Act, 61 Stat. 140, 29 U.S.C. § 158.) The cases discussed above all hold that, consistent with the Fourteenth Amendment, a State may enjoin such conduct."*fn4

[ 397 Pa. Page 381]

The law of Pennsylvania is and has been in accord with the above mentioned principles and decisions. In Wortex Mills v. Textile Workers Union, 369 Pa. 359, 85 A.2d 851, we analyzed the decisions and said (pages 365, 366):

"It is well to recall that a State or other Sovereign has a paramount right and an inescapable duty to maintain law and order, to protect life, liberty and property and to enact laws and police regulations for the protection and preservation of the safety, health and welfare of the people of the state or community; Carnegie-Illinois Steel Corp. v. U.S.W. of A., 353 Pa. 420, 426, 45 A.2d 857; Westinghouse Electric Corp. v. United Electrical Workers, 353 Pa. 446, 460, 46 A.2d 16.

"'The power and duty of the State to take adequate steps to preserve the peace and to protect the privacy, the lives, and the property of its residents cannot be doubted': Thornhill v. Alabama, 310 U.S. 88, 105; Carlson v. California, 310 U.S. 106, 113. ...

"In Hughes v. Superior Court of California, 339 U.S. 460, the Supreme Court of the United States upheld the use of an injunction issued by a State Court to prohibit peaceful picketing (in order to secure compliance with the union's demand that its employes be in proportion to the racial origin of its then customers), in violation of the policy of a State. ... '... But while picketing is a mode of communication it is inseparably something more and different. Industrial picketing "is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of

[ 397 Pa. Page 382]

    one kind or another, quite irrespective of the nature of the ideas which are being disseminated." ... It has been amply recognized that picketing, not being the equivalent of speech as a matter of fact, is not its inevitable legal equivalent. Picketing is not beyond the control of a State if the manner in which picketing is conducted or the purpose which it seeks to effectuate gives ground for its disallowance. See Dorchy v. Kansas, 272 U.S. 306; Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287; Hotel and Restaurant Employees' International Alliance v. Wisconsin E.R.B., 315 U.S. 437; Carpenters & Joiners Union v. Ritter's Cafe, 315 U.S. 722; Giboney v. Empire Storage & Ice Co., 336 U.S. 490. "A state is not required to tolerate in all places and all circumstances even peaceful picketing by an individual." Bakery & Pastry Drivers & Helpers Local v. Wohl, supra, at 775.'

"Picketing is not protected by the Federal Constitution and may be enjoined by a State Court where the picketing is for the purpose of compelling an employer to violate a penal statute: Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684; or to violate the public policy of a state, statutorily or judicially declared: Building Service Union v. Gazzam, 339 U.S. 532, 70 S.Ct. 784; Hughes v. Superior Court of California, 339 U.S. 460; Carpenters & Joiners Union v. Ritter's Cafe, 315 U.S. 722; Wilbank v. Chester & Delaware Counties Bartenders, etc., Union, 360 Pa. 48, 60 A.2d 21; or where its objective will cause a violation of a State's Anti-Trust Act: Carpenters Union v. Ritter's Cafe, 315 U.S. 722; or where picketing is conducted by a union to force a closed shop: Phillips v. United Brotherhood of Carpenters, etc., 362 Pa. 78, 66 A.2d 227; or where it is conducted with violence or by a

[ 397 Pa. Page 383]

    sit-down strike or by a similar technique: Labor Board v. Fansteel Corp., 306 U.S. 240; Westinghouse Electric Corp. v. United Electrical etc., 353 Pa. 446, 46 A.2d 16; Carnegie-Illinois Steel Corp. v. U.S.W. of A., 353 Pa. 420, 45 A.2d 857; or where it is enmeshed in a context of violence: Drivers Union, etc. v. Meadow-moor, etc., 312 U.S. 287."

A State Court may enjoin a labor union from peacefully picketing the place of business of a self-employer in order to compel him to join the union or adopt a union shop or union wages or hours: International Brotherhood of Teamsters v. Hanke, 339 U.S. 469; Grimaldi v. Local No. 9, 397 Pa. 1, 153 A.2d 214. Moreover, an injunction may be issued to restrain peaceful "organizational" or "recognition" picketing if one of the objects or purposes of the picketing, even though not the sole object, is unlawful - for example "if its purpose is to coerce the employer to compel or require his employes to join the union: International Brotherhood of Teamsters Union, Local 309 v. Hanke, 339 U.S. 470; Wilbank v. Chester and Delaware Counties Bartenders, Hotel and Restaurant Employes Union, 360 Pa. 48, 52, 60 A.2d 21, 23; Garner v. Teamsters, Chauffeurs and Helpers, Local Union No. 776, 373 Pa. 19, 22, 94 A.2d 893, 895; Baderak v. Building and Construction Trades Council, 380 Pa. 477, 482, 112 A.2d 170, 173": Anchorage, Inc. v. Waiters & Waitresses Union, 383 Pa. 547, 119 A.2d 199. Also: Building Service Employees v. Gazzam, 339 U.S. 532; Sansom House Enterprises v. Waiters & Waitresses Union, 382 Pa. 476, 115 A.2d 746; Phillips v. United Brotherhood of Carpenters, 362 Pa. 78, 66 A.2d 227; International Brotherhood of Teamsters v. Vogt, Inc., 354 U.S. 284 and cases cited therein.

Realistically speaking, it is clear beyond even the peradventure of a doubt, that the real object and certainly

[ 397 Pa. Page 384]

    one of the objects of the present picketing is to coerce the Club into requiring its employees to join the union; and consequently even if the Pennsylvania Labor Relations Act were applicable to a hospital or club (which it is not) the Court must enjoin this violation of the Act!

Neither the Labor Anti-Injunction Act nor the Pennsylvania Labor Relations Act have deprived a Court of Equity of its Jurisdiction or power to enjoin this picketing.

The Courts of Equity under the Act of June 16, 1836, and the Act of February 14, 1857, have always had and continue to have jurisdiction and power to grant or refuse injunctive relief, even in labor disputes, except where that jurisdiction or power has been expressly or clearly annulled by the Legislature: Northampton Area Joint School Authority v. B. & C. Trades Council, 396 Pa. 565, 152 A.2d 688; School District of West Penn Township v. International Brotherhood of Electrical Workers, 396 Pa. 408, 145 A.2d 258; Carnegie-Illinois Steel Corp. v. United Steel Workers, 353 Pa. 420, 45 A.2d 857; Westinghouse Electric Corp. v. United Electrical etc., 353 Pa. 446, 46 A.2d 16; Western Pennsylvania Hospital v. Lichliter, 340 Pa. 382, 17 A.2d 206; See also: International Teamsters v. Hanke, 339 U.S. 470; Grimaldi v. Local No. 9, 397 Pa., supra.

The Pennsylvania Labor Relations Act of June 1, 1937, and the Labor Anti-Injunction Act of June 2, 1937, each of which was amended on June 9, 1939, were unquestionably, as history and a reading of them will show, companion interrelated pieces of legislation and they must be construed together.

The Pennsylvania Labor Relations Act (as amended) created the Pennsylvania Labor Relations Board (pertinently) "to protect the right of employees

[ 397 Pa. Page 385]

    to organize and bargain collectively ... [and] declaring certain labor practices by employers to be unfair ... [and] empowering the board to prevent any person from engaging in any unfair labor practice." The term "person" was broadly defined to "include an individual, partnership, association, corporation, legal representative, trustee in bankruptcy, receiver or labor organization". Section 3(b).

"The term 'employer' includes any person acting, directly or indirectly, in the interest of an employer" with certain exceptions not here relevant. Section 3(c).

"The term 'labor dispute' includes any controversy concerning - (1) terms, tenure or conditions of employment; or concerning (2) the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions or employment, regardless of whether the disputants stand in the proximate relation of employer and employee." § 3(h).

"The term 'employee' shall include any employee, and shall not be limited to the employees of a particular employer ... but shall not include any individual employed as an agricultural laborer, or in the domestic service of any person in the home of such person, or any individual employed by his parent or spouse." Section 3(d).

If considered alone, the term "any person" and the term "employer", as defined in the Labor Relations Act are sufficiently broad to include hospitals, charities and social clubs, as well as industry, commerce and all businesses which employ employees; and the term "employee" is likewise sufficiently broad to include "any employee" who works for a hospital, charity or social club, as well as for an industrial, commercial or business concern.

[ 397 Pa. Page 386]

The definition of a "labor dispute" is, in all material respects, identical in each Act, and if considered alone, is sufficiently broad to include any controversy concerning terms or conditions of employment, etc., in hospitals, charities and social clubs, as well as in industry, commerce or businesses.

However, when interpreting this Act, as well as the inter-related Labor Anti-Injunction Act, the majority has overlooked the well settled principle that (a) the entire Act must be considered, and (b) the language of the Act, if ambiguous, must be considered in connection with the mischief sought to be remedied, and (c) the Act must be construed so as not to produce an unreasonable or absurd result: Sherwood v. Elgart, 383 Pa. 110, 117 A.2d 899; Salvation Army Case, 349 Pa. 105, 36 A.2d 479; Seburn v. Luzerne & Carbon County Motor Transit Co., 394 Pa. 577, 148 A.2d 534. Construing the Labor Relations Act in its entirety, this Court, over the vigorous and repeated contentions of the unions, has repeatedly and expressly held that the Act was intended to apply only in cases arising in industry, commerce or business, and has no application to employment relations or disputes or controversies arising between employer and employees of hospitals, charities or social clubs: Salvation Army Case, 349 Pa. supra; Overbrook Golf Club Case, 385 Pa. 358, 123 A.2d 698 (where the Club operated a restaurant and a bar for the pleasure and accommodation of its members and guests, as does the Locust Club); Pennsylvania Labor Relations Board v. Mid Valley Hospital Association, 385 Pa. 344, 124 A.2d 108; Western Pennsylvania Hospital v. Lichliter, 340 Pa. 382, 17 A.2d 206.

In the Overbrook Golf Club Case, Mr. Justice (now Chief Justice) JONES, said (pages 362, 363): "A detailed review of the provisions of the [Labor Relations] Act, ... led us 'irresistibly' in the Salvation Army case

[ 397 Pa. Page 387]

    to the conclusion that the legislature meant to limit the provisions of the Act to industrial pursuits and therefore, 'intended all of the statutory provisions and regulations of the Act to apply exclusively to industrial disputes.' Hence, the term 'employer', as used in the Act, does not embrace a hospital, as in the Western Pennsylvania Hospital case, or a charitable or eleemosynary institution, as in the Salvation Army case. ... The criterion for determining whether an employer is subject to the ... Act would seem to be, more particularly, whether he is engaged in an industrial or commercial activity rather than that he operates it as a non-profit enterprise."

The majority opinion, the lower Court, and the unions seek to distinguish the Labor Relations Act from the Labor Anti-Injunction Act because the definition of "employer" and of "employee" and of "labor dispute" is slightly different. The language and interrelationship of the two Acts, the prior decisions of this Court as well as the rationale of these decisions, demonstrate that there is no legal or justifiable reason for any distinction in their application to this case.

The Labor Anti-Injunction Act of June 2, 1937, as amended June 9, 1939, pertinently provides in § 3:

"(g) The term 'employer' is declared to include master, and shall also include natural persons, partnerships, unincorporated associations, joint-stock companies, corporations for profit, corporations not for profit,*fn5 receivers in equity, and trustees or receivers in bankruptcy.

"(h) The term 'employe' is declared to include all natural persons who perform services for other persons, and shall not be limited to the employes of a particular employer, ..."

[ 397 Pa. Page 388]

If considered alone, the term "employer" is sufficiently broad to include hospitals, charities and social clubs, as well as industrial, commercial and business concerns; and the term "employee", considered alone, is likewise sufficiently broad to include all persons who perform services for hospitals, charities and social clubs, as well as for industrial, commercial and business concerns; and the definition of a "labor dispute" (which in each Act was almost the same), was sufficiently broad to include all labor controversies arising in connection with terms and conditions of employment etc., of employees in hospitals, charities and clubs, as well as in industrial, commercial and business concerns. Nevertheless, considering the Labor Anti-Injunction Act in its entirety (as well as in conjunction with the Labor Relations Act), this Court has specifically, directly, squarely and expressly held in Western Pennsylvania Hospital v. Lichliter, 340 Pa., supra, that neither the Labor Anti-Injunction Act nor the Pennsylvania Labor Relations Act applied to a hospital, or precluded a Court of Equity from enjoining the peaceful picketing of a hospital and the attempted unionization of unskilled hospital employees.

Before reviewing the Western Pennsylvania Hospital case it is important to note the inter-connection or inter-relationship of the two Acts. The Labor Anti-Injunction Act of (June 2) 1937, as amended in 1939, provided in § 4(a) that the Act shall not apply in any case:

"(a) Involving a labor dispute, as defined herein, which ... tends to procure the disregard, breach, or violation of, a valid subsisting labor agreement arrived at between an employer and the representatives designated or selected by the employes for the purpose of collective bargaining, as defined and provided for in the act, approved the first day of June, one thousand nine

[ 397 Pa. Page 389]

    hundred and thirty-seven [the Pennsylvania Labor Relations Act] ... and amendments thereto, ... Provided, however, That the complaining person has not, during the term of the said agreement, committed an act as defined in both of the aforesaid acts [the Pennsylvania Labor Relations Act and the National Labor Relations Act] as an unfair labor practice or violated any of the terms of said agreement." Moreover, the 1939 amendment to the Anti-Injunction Act provided that it "shall not apply ( § 4): (c) Where any person, ... employe, labor organization, ... engages in a course of conduct intended or calculated to coerce an employer to commit a violation of the Pennsylvania Labor Relations Act of 1937...."

It is clear, therefore, that the Legislature intended the Labor Anti-Injunction Act to be a companion, interrelated, interdependent Act to the Pennsylvania Labor Relations Act, and that the Labor Anti-Injunction Act (which annulled Equity's jurisdiction in certain labor disputes) would apply only when and where the Pennsylvania Labor Relations Act applied. It follows inevitably that when this Court has repeatedly held that the Pennsylvania Labor Relations Act applies only to industrial and commercial disputes, and has no application to employment or labor disputes arising in hospitals, charities or social clubs, those decisions are equally applicable to injunctive relief in cases involving labor disputes arising in hospitals, charities or social clubs.

This is made indisputably clear in Western Pennsylvania Hospital v. Lichliter, 340 Pa. 382, 17 A.2d 206. In Western Pennsylvania Hospital case, plaintiff hospital was granted an injunction (1) restraining hospital workers local union from attempting to peacefully organize the hospital employees and from asserting any rights against the hospitals and (2) likewise

[ 397 Pa. Page 390]

    restraining the Pennsylvania Labor Relations Board from proceeding in any way under the Pennsylvania Labor Relations Act against the hospital, since those labor disputes were outside its jurisdiction. The hospitals were public charitable institutions which were supported in part by State appropriations, in part by charitable contributions, and in part by fees or charges paid by the sick, the injured, the disabled or dying. The hospitals employed over 5,000 persons including clerks, stenographers, bookkeepers, elevator operators, mechanics, cooks and cleaning women, as well as nurses and doctors. We note parenthetically that each of these groups, except nurses and doctors, are employed in social clubs. The hospitals perform a marvelous and indispensable public service to all mankind, irrespective of race, creed or color. For their services the hospitals charge those who are able to pay, but give free service to the indigent and the poor at a cost of several million dollars, of which amount the State contributes less than one-third. Nearly all the hospitals operated at a deficit. The union sought to organize the hospital employees (excluding doctors and nurses) which would have entailed an increased yearly outlay of over two million dollars,*fn6 and when the hospitals refused to negotiate an agreement with the union, the union invoked the jurisdiction of the Labor Board and charged unfair labor practices. Notwithstanding that the Labor Anti-Injunction Act applied to employers including "corporations for profit" and

[ 397 Pa. Page 391]

"corporations not for profit", and did not exempt hospitals, this Court held that hospitals were not included in the Act,*fn7 and affirmed the injunction and the decree of the Court below "on the comprehensive opinion of Judge RICHARDS". We quote therefrom (pages 386, 387, 388):

"We think it will simplify matters to decide at the outset whether or not the Labor Anti-Injunction Act applies to the present situation. If so, the Court was without authority to issue the preliminary injunction before hearing: Sec. 9.

"Our first consideration is: Does a labor dispute exist? It is provided in Sec. 3(a) of the Act that:

"'(a) A case shall be held to involve or grow out of a labor dispute when the case involves persons who are engaged in a single industry, trade, craft, or occupation. ...'

"A hospital is not an industry. ...

"Even though the words of the statute be interpreted as broad enough to include the operations of a hospital, we do not think that the legislature intended such a result. ... To show the scope of the Act, the Legislature attempted to define cases which 'involve or grow out of a labor dispute.' In doing so, it used the words 'industry, trade, craft or occupation'. It has not been the custom in the past to unionize hospitals. The effect of unionization and attendant efforts to enforce demands would involve results far more sweeping and drastic than mere property rights. The question of profits for the employer or wages for the employee are not alone involved. It is not merely a matter of suspending operations, ceasing work and stopping production, such as might be true in a steel mill or automobile factory. It is a question of protecting

[ 397 Pa. Page 392]

    the health, safety and, in many cases, the very lives of those persons who need the service a hospital is organized to render. The results are quite different and more extensive than are involved in an ordinary labor dispute. We cannot conceive that the Legislature intended to include hospitals within the purview of the Act. ..."

"'... Frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act.'

"We are convinced not only that the words used in the Act have no application to a hospital, that no labor dispute is involved as defined by the Act, but also that the effects of holding to the contrary would be so dangerous, disastrous and absurd as not to be within the intent of the legislature. Hence, we hold that the Labor Anti-Injunction Act is not applicable, and that nothing therein legally deprived the Court of the power to issue the preliminary injunction in this case, ....

"We have already outlined our views as to the applicability of the Labor Anti-Injunction Act to hospitals. All that we have said is equally true with reference to the Pennsylvania Labor Relations Act."

Judge RICHARDS then reviewed in detail the Pennsylvania Labor Relations Act of June 1, 1937, as amended, and the jurisdiction of the Court and of the Labor Relations Board and administrative remedies. The Court then said (page 393):

"We conclude, that the plaintiff hospitals are not obliged to pursue the administrative remedies afforded; that neither the Pennsylvania Labor Relations Act

[ 397 Pa. Page 393]

The majority opinion attempts to draw a legal distinction between a hospital on the one hand, and a charity or social club on the other hand. The Labor Anti-Injunction Act and the Pennsylvania Labor Relations Act will be searched in vain for any distinction between a hospital on the one hand, and a charity or a social club on the other hand. Certainly the majority opinion has been unable to point to any language which draws such a distinction. These Acts either apply to every labor dispute, no matter whether it arises in industry commerce or business, or in a hospital, a charity or a social club, or, on the contrary, they apply only, as this Court has repeatedly held, to labor disputes in industrial, commercial and business enterprises, and have no application whatsoever to labor disputes arising in hospitals or charities or social clubs. This is further confirmed by the prior decisions of this Court which draw no legal or legislative distinction between hospitals on the one hand, and charities or social clubs on the other hand, but apply the Acts equally to all of them.

[ 397 Pa. Page 395]

The majority opinion states: "... it is obvious that the operation of a club, such as the present one, is different from the operation of a hospital ..." and is like any restaurant or hotel. "The controlling feature is that the employees of the non-profit club perform the identical wage earning duties performed by other employees in profit-making establishments such as hotels and restaurants and thus are engaged in an occupation which gives both an interest in their mutual wages or working conditions." These conditions and these statements are equally applicable to unskilled hospital employees. A hospital is larger in size and operation than a charity or a social club, and much more important, the degree of harm which would result from picketing a hospital is far, far greater than the harm which would result from picketing a charity or social club. However there is no legal difference between a hospital and a charity and a non-profit club. A hospital is just as much "an employer" as a charity or a social club, and "its employees" are just exactly the same as similar employees who are employed in social clubs, or indeed in industry or business. A hospital employs cooks, mechanics, clerks, stenographers, bookkeepers, elevator operators, cleaning women, and similar employees - exactly the same kind, group or classification of persons as does a social club. The proof of the pudding is in the eating - the unions are attempting to unionize all of these hospital employees exactly the same as they are attempting to unionize similar employees of social clubs.

The Merits

The majority admit, as they must, (1) that neither the employees of a hospital or social club, nor the union has any standing before the Pennsylvania Labor Relations Board; and - notwithstanding the broad language of that Act which gives the Board jurisdiction

[ 397 Pa. Page 396]

    and power over every labor dispute or controversy, and over terms or conditions of employment, as well as to prevent "any person" from engaging in an unfair labor practice, - (2) that the Board has no jurisdiction of this dispute because its jurisdiction is limited to labor disputes in industry and business, and does not include hospitals, charities or social clubs.

The majority base their decision on the merits principally upon the following part of their opinion: "The Chancellor here found that the picketing was constitutionally protected and within the public policy of the Commonwealth. Upon this finding he predicated his refusal to enjoin it. It is well settled that the basic findings of the Chancellor, supported by the Record and affirmed by the court en banc, will not be disturbed on appeal." This well settled principle is, as stated, both inaccurate and inapposite - it applies to genuine findings of fact, not to inferences or deductions from facts, or to conclusions of law: Eways v. Reading Parking Authority, 385 Pa. 592, 601, 124 A.2d 92. In that case the Court said (page 601):

"'Findings of fact made by a Chancellor who saw and heard the witnesses, when confirmed by the Court en banc, will not be reversed on appeal if they are supported by adequate evidence: Pregrad v. Pregrad, 367 Pa. 177, 80 A.2d 58; Barrett v. Heiner, 367 Pa. 510, 80 A.2d 729. However, that well-settled principle is confined to findings which are true and genuine findings of fact. "With respect to [a] inferences and deductions from facts and [b] conclusions of law, both the Court en banc and the appellate Courts have the power to draw their own inferences and make their own deductions and conclusions: Barrett v. Heiner, 367 Pa. 510, 80 A.2d 729; Noonan Estate, 361 Pa. 26, 63 A.2d 80; Payne v. Winters, 366 Pa. 299, 77 A.2d 407; Smith v. Smith, 364 Pa. 1, 70 A.2d 630.": Kalyvas v.

[ 397 Pa. Page 397]

Kalyvas, 371 Pa. 371, 375-376, 89 A.2d 819.'" See to the same effect: West Penn Township v. International Brotherhood, 396 Pa., supra; Sansom House Enterprises v. Waiters & Waitresses Union, 382 Pa., supra; Anchorage, Inc. v. Waiters & Waitresses Union, 383 Pa., supra; International Brotherhood of Teamsters v. Vogt, Inc., 354 U.S. 284, and cases cited therein.

In Sansom House the Court said (page 481): "The court below found that the picketing was not for that purpose [of coercing the employer to require its employees to join the union], but such a finding is merely an inference or deduction from the testimony and is therefore reviewable by this court: ...." This Court then reversed the lower Court's finding and entered an injunction.

In the West Penn Township case, this Court reversed the decree of the lower Court and directed it to enter a preliminary injunction restraining the peaceful picketing. The Court said (page 413): "It is clearly settled that an appellate court is able to draw its own inferences, deductions and conclusions, as well as determine the proper legal interpretation to be placed upon the evidence; and this is especially true when plaintiffs' material testimony has not been contradicted or impeached."

It is clear and indisputable that the aforesaid conclusions of the lower Court were not findings of fact, as the majority erroneously assert - they were clearly conclusions of law, which, as we have demonstrated, are erroneous.

The majority opinion further holds that even if a Court of Equity has jurisdiction to restrain this picketing of the Locust Club, the historical background of unions and their (alleged) right to use "economic pressure to persuade*fn9 the club to recognize and bargain"

[ 397 Pa. Page 398]

    with the union, require this Court to affirm the refusal of the lower Court to issue an injunction. With this conclusion we are in entire disagreement.

A union is a group of working men banded together to protect themselves against any unjust act of, or overreaching by, their employer, and to obtain higher wages (including so-called fringe benefits), shorter hours and better working conditions in the industry or business in which they are employed.

The union movement was of slow growth in the United States. It was strongly favored by the American people because for many years the working man was the "little fellow" or "under-dog" who was frequently taken advantage of by an employer in long hours of work and/or in little pay and/or in inadequate or dangerous working conditions. The unions grew from babyhood to childhood to manhood and, within the last twenty years, to Gianthood. The unions are no longer weaklings who need further special protection and privileges and immunities*fn10 beyond those given to other Americans; they are unquestionably the most influential and the most powerful group of people in our Country today. Because their power is so great, union leaders too often fail to realize that great power must, for the protection and welfare of society, be accompanied by great responsibility, and by greater consideration for the welfare of our Country. It seems to be often forgotten that members of a union are Americans like all the rest of us, and like every other American citizen they are and certainly should be subject to the Constitution and the Law.

[ 397 Pa. Page 399]

Plaintiff refused to recognize defendant union for the purpose of collective bargaining. On October 18, 1956, defendant union declared a strike against plaintiff and set up a picket line. At that time there were 19 persons employed by the Locust Club. Twelve of these employees signed membership cards with the union, but only 9 of them participated in the strike. The 9 who participated in the strike have been replaced by the Club. The majority opinion admits that the Locust Club was not covered by the Pennsylvania Labor Relations Act, and consequently it was not compelled to bargain with the union, although of course it had a lawful right, if it so desired, to recognize or to bargain with a union which represents a majority of the employees. It is not and cannot be disputed that the employees had a right to leave their employment if they desired, and the Club was within its legal rights in discharging its employees who went on strike.*fn11 I agree with the able dissenting opinion of President Judge HAGAN that under such circumstances, the union no longer represented any of the Club's employees.

However, I prefer to place the disposition of this case, on the merits, on a broader ground. Realistically, by usage and custom, as everyone knows, picketing has become in many cases an economic club to compel an employer to recognize a union and/or to accede to its demands, or alternatively, to suffer great financial loss or ruin. If after a reasonable period of picketing, a majority of the employees do not join the union, the employer is between Scylla and Charybdis - he must choose between likely ruin or committing an unfair labor practice.

[ 397 Pa. Page 400]

The Amendment of June 9, 1939, to the Labor Anti-Injunction Act provides in § 4(c) that it is an unfair labor practice "where any person ... employe, labor organization ... engages in a course of conduct intended or calculated to coerce an employer to commit a violation of the Pennsylvania Labor Relations Act of 1937 ...." i.e., intended to coerce an employer to induce or compel his employees to join a union.

In Jefferson & I. Coal Co. v. Marks, 287 Pa. 171, 134 A. 430, the Court granted an injunction against peaceful picketing, which the union alleged was for the purpose of organization. The Court, speaking through Chief Justice KEPHART, aptly said: "Persuasion, too long and persistently continued, becomes a nuisance and an unlawful form of coercion:*fn12 32 C.J. 165, paragraph 227".

In Anchorage, Inc. v. Waiters & Waitresses Union, 383 Pa. 547, 119 A.2d 199, the Court granted an injunction against peaceful picketing which the union alleged was for the purpose of organization. Speaking through Chief Justice STERN, the Court pertinently said (pages 551, 555):

"(5) Picketing may be enjoined if one of its objects is unlawful even though not the sole object: National Labor Relations Board v. Denver Building and Construction Trades Council, 341 U.S. 675, 689; International Brotherhood of Electrical Workers v. National Labor Relations Board, 341 U.S. 694, 700; Local 74, United Brotherhood of Carpenters and Joiners of America, A.F. of L. v. National Labor Relations Board, 341 U.S. 707, 713.*fn13 ... It is, of course, true

[ 397 Pa. Page 401]

    that picketing which is lawful does not necessarily become unlawful merely by the extended duration of time during which it may be carried on, but its persistence during such an extraordinary period is at least an evidential factor pointing inevitably to the conclusion that its real object was the harassment and oppression of the employer and not to carry on for so many years an attempt to induce the employes voluntarily to join the Union, which, if not successful within a reasonably limited period certainly could never succeed at all [without coercion]."

Assuming, arguendo, that peaceful picketing of a social club is lawful, if its purpose is to induce the employees to join the union, it is obvious that that original objective is no longer the union's real objective. It is a clear and inescapable conclusion that the present real purpose, object and intent of this picketing which has been persisted in since October, 1956, without gaining a single union member, is intended to coerce the Locust Club to require or compel its employees to join the union, in violation of the Pennsylvania Labor Relations Act of 1939.

For each of the many reasons hereinabove discussed it is clear that the picketing of the Locust Club should be enjoined. Moreover, if there were any doubts as to plaintiff's right to an injunction to restrain the union from further damaging plaintiff's property, it would be removed by a consideration of the Constitution and the rights of property ordained therein which, in the last two decades, have been frequently forgotten or eroded or abridged.

[ 397 Pa. Page 402]

The Constitution

Picketing is not mentioned in the Constitution, but the rights of property are. For centuries before the Constitution, the right of private property was one of the great basic rights of Western civilization. "To secure their property was one of the great ends for which men entered society. The right to acquire and own property, and to deal with it and use it as the owner chooses so long as the use harms nobody, is a natural right. It is part of the citizen's natural liberty - an expression of his freedom - guaranteed as inviolate by every American bill of rights": Lord Appeal, 368 Pa. 121, 130, 81 A.2d 533.

Article I, § 1 of the Constitution of Pennsylvania provides as one of the "Inherent Rights of Mankind": "All men ... have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property ...."*fn14

The Liberties which the people of the United States most highly prize are freedom of religion, freedom of speech, freedom to acquire, possess, use and protect private property, freedom of the press, and free elections. These are the freedoms which have distinguished us from peoples living under Communism, Fascism or Totalitarianism. It is high time, very high time, that more consideration be given to the fundamental rights of property which are ordained and guaranteed in the Constitution; and if there be any doubt as to whether those rights conflict with a statutory right, or with a judicially created right of picketing, the Constitution is paramount and must prevail.

For each and all these reasons I would reverse the Decree of the lower Court and I would enter a Decree

[ 397 Pa. Page 403]

    restraining defendant, its agents and representatives, from picketing the Locust Club.

Mr. Justice BENJAMIN R. JONES joins in this dissenting opinion.


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