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Injunction. DeKalb Superior Court. Before Judge Guess. December 12, 1958.
HEAD, Justice.
1. Where an employer, with knowledge of the facts, files charges in a labor dispute against his employees with the National Labor Relations Board, a voluntary dismissal of the charges does not change the character of the acts charged.
On September 19, 1958, Huckabee Transport Corporation filed a petition for injunction and other equitable relief against Robert C. Cook and other defendants named, "individually and as representatives of a class composed of all members of Truck Drivers & Helpers Local Union No. 728 . . . a voluntary association and labor organization."
On October 14, 1958, the defendants filed their answer, admitting certain allegations of the petition and denying others, and they prayed that the temporary restraining order be dissolved and the petition be dismissed. Subsequently the petition was twice amended. After a hearing, Honorable H. O. Hubert, Jr., entered an order on November 13, 1958, containing several paragraphs, enjoining acts of violence and other acts, as prayed in the petition. The defendants were restrained from "patrolling or picketing in the vicinity of the petitioner's Atlanta terminal with more than two pickets at any time," and the manner of exchange of pickets was provided in the order. The bill of exceptions recites that no exception has been taken by any party to this interlocutory decree.
On November 25, 1958, the petitioner filed a third amendment, in which it was contended that the strike and picketing were being conducted "for an unlawful purpose under the laws of the State of Georgia, and are for that reason subject to injunction." In the third amendment it was alleged that, at the time of the filing of the petition and the grant of the interlocutory injunction by Judge Hubert on November 13, 1958, there was pending before the National Labor Relations Board a charge filed by the petitioner, alleging that the local union was restraining and coercing employees of the petitioner in violation of certain provisions of the National Labor Relations Act. Because of the pendency of this charge before the National Labor Relations Board, the petitioner did not set forth in its petition as originally drawn the unlawful purpose of the defendants' strike and picketing as a ground for relief. The charge was pending before the board from September 8, to November 19, 1958, during which time the board took no formal action, and on the latter date the petitioner submitted to the board a request that its charge be withdrawn, and the petitioner is not presently pursuing the charge made before the National Labor Relations Board. By reason of the facts set out, the strike and picketing are being conducted for an unlawful purpose under the laws of the State of Georgia. On March 20, 1958, an election was conducted by the National Labor Relations Board, and the petitioner's employees rejected the labor organization by a vote of 27 against the union to 8 for the union. The National Labor Relations Board certified the results of the election. Despite the results, the local union has persisted in its efforts to force the petitioner to recognize and bargain with it as representative of the petitioner's employees. The object of the defendants, and others acting in concert and association with them, is to force and require the petitioner to recognize and bargain with the local union. The acts of the defendants are in direct violation of the laws of Georgia as set out in Code (Ann.) 54-804, and Code 66-9906.
It was prayed that the defendants, and each of them, and the class represented by them, together with their servants, agents, officers, and employees, be restrained from picketing or patrolling in the vicinity of the petitioner's Atlanta terminal, and that, after a hearing, the defendants and the class represented by them be temporarily and permanently enjoined.
On November 25, 1958, Honorable Frank Guess allowed the amendment, subject to demurrer and objection, and ordered that the defendants show cause why the prayers of the amendment should not be granted, and why they should not be enjoined as prayed.
To this amendment the defendants filed their pleas in abatement. The first plea asserts that the matter had been fully litigated; that the petitioner had been afforded full opportunity to introduce its evidence as to why picketing should be enjoined; that, after a hearing, Judge Hubert had granted an interlocutory injunction restraining violence or threats of violence, but had declined to grant the application to restrain all picketing; that the petitioner seeks the same relief set forth in the original petition on which a full hearing was had; that the third amendment does not allege, and is not based upon, any act occurring subsequently to the filing of the original petition, or subsequently to the hearing and the grant of the interlocutory injunction. The second plea asserts that the cause set up in the third amendment had been presented to the National Labor Relations Board by the petitioner, and that the alleged cause had been pre-empted by the Federal Government by the passage of the National Labor Relations Act.
On December 12, 1958, after a hearing, Honorable Frank Guess granted a further interlocutory injunction, restraining the defendants and the class represented by them "from patrolling or picketing in the vicinity of petitioner's terminal," from attempting by other means to force or require the petitioner to recognize the union, and from attempting to coerce the petitioner's employees into joining the local union. The defendants except to and assign error on this interlocutory injunction.
On the hearing it was stipulated: The petitioner is a common carrier. In March, 1958, the National Labor Relations Board conducted an election, which election resulted in a stated vote against the union. On September 8, 1958, the petitioner filed with the National Labor Relations Board a charge, which was duly docketed, and was later withdrawn on November 19, 1958. Certain named common carriers are represented by the union.
The petitioner's evidence, as it appears from the two affidavits of its officers or agents, relates to acts occurring prior to the injunction granted, and to the financial status of the petitioner prior to and since the strike.
1. The National Labor Relations Act (29 U. S. C. A. 158) provides in part: "(b) It shall be an unfair labor practice for a labor organization or its agents--(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title: . . ." In 157 of the act it is provided that employees shall have the right to refrain from union activities as therein set out except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment.
Section 4 of the act approved March 27, 1947 (Ga. L. 1947, pp. 620, 621; Code, Ann., 54-804), provides that it shall be unlawful for any person acting alone or in concert with others to compel or attempt to compel any person to join or refrain from joining any labor organization, etc.
In paragraph 8 (a) of the original petition, it is alleged that three of the named defendants threatened one of the petitioner's employees with a knife for the purpose of inducing and coercing him into joining the strike that was planned. In the remaining subparagraphs of paragraph 8, and in paragraph 10 of the petition, acts of violence or intimidation are alleged which, if proved, would be illegal.
It is not alleged that, since the date of the interlocutory injunction granted by Judge Hubert, the defendants have committed, or attempted to commit, acts prohibited by our State laws. The two affidavits submitted by the petitioner are based upon acts alleged to have occurred prior to Judge Hubert's injunctive order, and other facts which have relation to the financial status of the petitioner before and after the strike. Whether or not the striking employees may have acted unwisely in striking at a time when the employer was having financial difficulties, is not before us for determination. No new facts are alleged to have occurred since the grant of an interlocutory injunction to show an intent on the part of the striking employees to commit acts prohibited by the State law.
Peaceful picketing is not unlawful, unless it is for an illegal purpose. On the contrary, it is authorized under the constitutional guarantee of free speech. Mason & Dixon Lines v. Odom, 193 Ga. 471 (18 S. E. 2d 841); Local Union No. 3871, United Steel Workers of America v. Fortner, 202 Ga. 206 (42 S. E. 2d 734); Hallman v. Painters District Council No. 38, 203 Ga. 175 (45 S. E. 2d 414).
There is no provision in the Georgia law limiting or restricting employees from forming, creating, or associating themselves with a labor union. Section 159 of the National Labor Relations Act provides that no election shall be directed in any bargaining unit within which in the preceding twelve months' period a valid election shall have been held. 29 U. S. C. A. 159 (c) (3). Whether the defendants were acting illegally, in that they were proceeding as a labor union within the period of twelve months from the date the employees of the petitioner had voted against union organization, in an election conducted by the National Labor Relations Board, would be a question for determination by the board, and not by the courts of this State. Compare Williams v. Cedartown Textiles, 208 Ga. 659 (68 S. E. 2d 705).
2. The refusal of an injunction will not bar a second application, where the complaint presents new and additional matter discovered since the former hearing. Blizzard v. Nosworthy, 50 Ga. 514; Savannah, Florida &c. R. Co. v. Postal Telegraph-Cable Co., 113 Ga. 916 (39 S. E. 399); Tolbert v. Long, 134 Ga. 292, 296 (67 S. E. 826, 137 Am. St. Rep. 222). Generally, where an application for injunction is denied, a second application should not be granted unless based upon grounds which were unknown to the applicant at the time of the first application, and which could not, by the exercise of ordinary diligence, have been discovered. Conwell v. Neal, 118 Ga. 624 (45 S. E. 910); Eminent Household of Columbian Woodmen v. Thornton, 135 Ga. 786, 797 (70 S. E. 666).
Where, as in this case, the petitioner seeks by another amendment to extend the force and effect of an injunction previously granted, facts should be alleged and proved that were unknown at the time the injunction was granted, or new facts arising since the date the injunction was granted should be alleged and proved. The petitioner's third amendment and the facts shown by the testimony in support thereof failed to show acts by the defendants since the injunction was granted on November 13, 1958, or facts unknown to the petitioner prior to the injunction granted and discovered since that time. It was therefore error to grant a further injunction prohibiting all picketing.
Judgment reversed. All the Justices concur.
Mitchell, Clarke, Pate & Anderson, William M. Pate, John Wesley Weekes, Weekes & Candler, contra.
Poole, Pearce & Hall, John S. Patton, for plaintiffs in error.
Saturday May 23 00:36 EDT

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