SMU Law Review

Volume 2 Issue 1 Article 5

1948

The Texas Mass Picketing and Closed Shop Statutes of 1947

William P. Barnes

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Recommended Citation William P. Barnes, The Texas Mass Picketing and Closed Shop Statutes of 1947, 2 SW L.J. 79 (1948) https://scholar.smu.edu/smulr/vol2/iss1/5

This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. PICKETING AND CLOSED SHOP STATUS

THE TEXAS MASS PICKETING AND CLOSED SHOP STATUTES OF 1947

I. T HE picket line has long been a favorite weapon of labor groups in economic contests with employers for a larger share of the products of industry and for amelioration of conditions of em- ployment. The popularity of picketing among labor union stra- tegists stems from its effectivness in enlisting public support in enforcing a boycott against a particular employer or business. Picketing can be carried on without unreasonable expense and without the active participation of a large number of personnel. The greatest advantage of picketing lies in its flexibility. Since the pickets need not be employees of the business being picketed, picketing is the device most commonly used to introduce union organization in industries where little or no unionization has pre- viously taken place. The public recognition today afforded to picketing as lawful and commonplace union activity gives little indication of the judicial hostility toward picketing that existed in the United States less than two decades ago. The coercive aspects of picketing and its use as a device for the intentional infliction of financial injury to business interests have caused the courts, historically committed to the protection of property rights, to regard this labor activity as anathema. Early decisions reflect this attitude in holding picketing to be illegal per se either on the theory that picketing is inherently intimidatory or that from its very nature picketing tends to pro- voke violence and breaches of the peace.' As recently as 1940 a substantial number of jurisdictions maintained this view of picket- ing without consideration of its purpose and without regard to

I I Tmuui, LABoR DisPumS AND COLLFTIVE BARGAINING § 112 (1940). SOUTHWESTERN LAW JOURNAL [Vol. 2 whether or not it was carried on in conjunction with a strike.2 However, the trend of judicial decision in the late thirties was that picketing was merely a prima facie tort and was privileged if conducted in a lawful manner and for a lawful purpose. This doctrine provided a fertile field for the development of rules of conduct in labor disputes in which consideration could be given to matters of public policy and social well-being and a balancing of interests achieved. The advantages of dealing with problems arising out of picketing according to the principles of tort law have been recognized.' However, the application of tort doctrines to picketing has been complicated and inhibited by decisions of the United States Supreme Court identifying peaceful picketing with the right of free speech guaranteed by the First and Four- teenth Amendments of the Federal Constitution. The first identification of picketing with free speech by the United States Supreme Court occurred in a dictum by Justice Brandeis in 1937 in the case of Senn v. Tile Layers Protective Union.' The fruits of the identification were not garnered by labor until 1940 when the Supreme Court decided the cases of Thorn- hill v. Alabama' and Carlson v. California.' In both cases penal statutes categorically prohibiting picketing were held unconstitu- tional as violative of the right of free speech. The Court particu- larly objected to the broad language of the statutes.' While foredooming attempts by the states to prohibit all picket- ing, the Court in the Thornhill case recognized the power of the states to regulate picketing and indicated a criterion for the exer- cise of that power.

" Id. § 117, n. 41. Id. § 111, n. 43; RESTATEMENT, TORTS § 775 (1938). 4 Teller, Picketing and Free Speech, 56 HARv. L. REv. 180, 204 (1942). 301 U. S. 468, 478 (1937). 6 310 U. S.88 (1940). 7310 U. S. 106 (1940). 8See Thornhill v. Alabama, 310 U. S. 88, 96-98 (1940) ; Carlson v. California, 310 U. S. 106, 112 (1940). For a later indication that broad prohibitions of picketing are especially objectionable see Cafeteria Employees Union v. Angelos, 320 U. S. 293, 295 (1943). 1948] PICKETING AND CLOSED SHOP STATUS

"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. But no clear and present danger of destruc- tion of life or property or invasion of the right of privacy can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter. We are not now concerned with picketing en masse or otherwise conducted which might occasion such imminent and aggra- vated danger as to justify a statute narrowly drawn to cover the precise situation giving rise to the danger." (Italics supplied.)' Picketing having been established as a constitutional right, the result of the case of American Federationof Labor v. Swing"0 was not surprising. Swing had secured an injunction prohibiting all picketing of his shop by virtue of the common law policy of Illinois which forbade picketing in any case where there was not a proximate relation of employer and employee between the pickets and the picketed employer. The United States Supreme Court, especially condemning the broad language of the injunc- tion, held that it was beyond the constitutional power of a state court to enjoin peaceful picketing merely because of the lack of an immediate employer-employee dispute. Justice Frankfurter, writing the opinion of the Court, stated: "Such a ban is inconsistent with the guarantee of freedom of speech. That a state has ample power to regulate the local problems thrown up by modern industry is axiomatic. But not even these essential powers are unfettered by the Bill of Rights. The scope of the Fourteenth Amend- ment is not confined by the notion of a particular state regarding the wise limits of an injunction in an industrial dispute, whether these limits be defined by statutes or by the judicial organ of the state."' I It would appear from this statement that the Court regarded picketing as completely identified with free speech and immune from state regulation. And yet on the same day that the Swing decision was handed down the Supreme Court decided the case of Milk Wagon Drivers Union v. Meadowmoor Dairies,' which

9 310 U. S. 88v 105 (1940). 10312 U. S. 312 (1941). 11 Id. at 325. 123 U. S. 287 (1941). SOUTHWESTERN LAW JOURNAL [ Vol. 2 upheld an injunction against all picketing and recognized the power of the state to prevent coercion in conjunction with picket- ing. The Meadowmoor Dairies case qualified the doctrine of the Swing case by upholding an injunction against peaceful picketing conducted in a setting of violence so that "it could justifiably be concluded that the momentum of fear generated by past violence would survive even though future picketing might be wholly peaceful."' While the Meadowmoor Dairies case is significant as a recogni- tion that peaceful picketing is not in all circumstances beyond the regulatory power of the states, it gave little indication that the Supreme Court considered peaceful picketing as anything more or less than free speech. The first hint of a retreat from the com- plete identification of picketing with free speech is found in the case of Bakery and Pastry Drivers Local 802 v. Wohl," in which Justice Jackson writing the majority opinion, declared: "A state is not required to tolerate in all places and all circumstances even p