#### CONSTRUCTION AND GENERAL LABOR UNION, LOCAL NO. 688, et al. v. STEPHENSON.

No. A-2322.

Supreme Court of Texas.

Jan. *4,*1950.

Rehearing Denied Feb. 1, 1950.

*959Mullinax, Wells & Ball, Dallas, L. N. D. Wells, Jr., Dallas, Charles J. Morris, Dallas, for petitioners.

E. Byron Singleton, Amarillo, Singleton, Smyth, Morris, Lockhardt . & Edwards, Amarillo, Looney, Clark,, & Moorhead, Austin, Everett L, Looney, Edward Clark, R. Dean Moorhead, Austin, for respondent.

HART, Justice.

The question before us is whether a permanent injunction against peaceful picketing can be sustained under Texas statutes when attacked on the ground that it deprives the petitioners of their rights under the Fourteenth Amendment to the United States Constitution.

The picketing was directed against thie respondent, H. I. Stephenson, who is engaged in the house-moving business. He uses special equipment and employs a crew of men who perform all of the tasks necessary to dismantling and removing a building from one place and transporting it to and setting it up at another location. None of the members of this crew belong to any union.

Stephenson contracted with Potter County to dismantle two hangars at Dal-hart and to transport them to Amarillo and to reconstruct them there as one building. Before he began work on this contract, Stephenson was approached by union representatives who wished to have the members of'his crew join unions. Stephenson stafed that he had no objections to their joining unions, and agreed that the union representatives could talk to a meeting of his crew. They did so, and an election was held in which Stephenson’s employees voted not to join any union. An effort was made by union representatives to have Stephenson employ union men in the work at Dalhart, but there was no interference by the union with Stephenson’s work until the hangars had been removed to Amarillo and the work of reconstruction had started there. The union representatives then attempted to persuade Stephenson to substitute union men for his non-union regular crew in this work. Upon has refusal to do so, they picketed Stephenson’s job, a *960single picket carrying a banner reading as follows:

“Amarillo Building and Construction Trades Council protest the employment by Ira Stephenson and Company of non-union labor on this job, and the failure of the employees on this job to join unions affiliated with the Amarillo Building and Construction Trades Council.”

Stephenson thereupon brought suit, alleging that the unions’ purpose was to force him to hire only union men and to compel biis crew to join two local unions, that no labor dispute existed as defined by Texas statutes, and that the picketing was in violation of Texas statutes, particularly referring to Article 5154f, Vernon’s Ann. Civ.St., Acts 1947, 50th Leg., p. 779, ch. 387. He prayed for temporary and permanent injunctive relief against picketing. The unions and their business agents who were named as defendants answered that a bona fide labor dispute existed, that Stephenson had agreed to employ only union members on the re-erection job in Amarillo but had failed and refused to carry out this agreement and had employed non-union labor at wages below the union scale, that thie unions and their members had a constitutional right to picket Steph-7⁄8 enson s job, and that to the extent that Texas statutes prohibited the exercise of this right they were invalid.

The defendants waived a hearing on a temporary injunction and agreed that the court might proceed to a hearing on the merits. After a trial without a jury, thq court rendered judgment in favor of Stephenson permanently enjoining the unions and their members from picketing the premises where Stephenson was performing his work, “unless at such time controversy then exists between plaintiff and the majority of his employees concerning wages, hours or conditions of employment, or a controversy exists between plaintiff and the majority of his employes belonging to any one labor union concerning wages, hours or conditions of. employment.” This judgment has been affirmed by the Court of Civil Appeals. 221 S.W.2d 375.

No request was made of the trial court to make and file findings of fact and conclusions of law, under Rules 296-299, Texas Rules of Civil Procedure, and no separate findings and conclusions were filed. In the absence of findings of fact in a case tried without a jury, it is settled that we must test the validity of the judgment on the assumption that the trial court found every disputed fact in such a way as to support the judgment he rendered. Rolison v. Puckett, 145 Tex. 366, 198 S.W.2d 74; International Union of Operating Engineers v. Cox, Tex. Sup., 219 S.W.2d 787; North East Texas Motor Lines v. Dickson, Tex.Sup., 219 S.W.2d 795. Petitioners point out that the judgment in this casé recites certain findings of fact and, after granting an injunction against picketing, provides thiat all other relief not specifically granted is denied. However, this denial of other relief does not constitute a finding of the nonexistence of facts not recited in the judgment; and in this situation omitted findings necessary to support the judgment will be supplied by a presumption in support of the judgment, if there is evidence in the record to sustain such omitted findings. Bednarz State, 142 Tex. 138, 176 S.W.2d 562. Moreover> 1⁄8 1⁄8 established that this court not reverse a judgment of the trial court affirmed by the Court of Civil Appeals if the judgment is correct in view of the entire record, even though in our opinion one or both of the lower courts have given erroneous reasons for rendering or upholding the judgment. Walker v. Garland, Tex.Com.App., 235 S.W. 1078; Bordelon v. Philbrick, 125 Tex. 460, 84 S.W.2d 710; Payne v. Bracken, 131 Tex. 394, 115 S.W.2d 903. This rule is not contrary to the holdings in Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238, and Kousal v. Texas Power & Light Co., 142 Tex. 451, 179 S.W.2d 283, to the effect that parties are restricted in the appellate court to the.theory on which the case was tried in the lower court. In the present case, the case was tried in part on the theory on which we hold the judgment can be sustained, as is shown by the pleadings *961and the evidence in the record, and therefore the fact that the lower courts rested their judgments in part on what we hold to be erroneous legal reasons does not require a reversal of the judgment.

The ground on whichi the district court apparently based his judgment was that the picketing was unlawful because no labor dispute existed between Stephenson and any of his employees, and therefore the picketing in question was “secondary picketing” as defined and prohibited by Article 5154f, Vernon’s Ann.Civ.St. The Court of Civil Appeals sustained this reason for the judgment, and also placed its judgment in part on the basis that the purposes for which the unions picketed Stephenson were not lawful purposes or objectives. 221 S.W.2d at pages 380, 381. In spite of our settled policy not to decide constitutional questions where they can be avoided, we must determine whether Article 5154f can be validly applied to sustain the injunction in this case, because the injunction by its terms incorporates the provisions of Sec. 2, par. h of that statute, and the petitioners specifically attack this portion of the trial court’s judgment.

 We do not think that the injunction can be upheld on the ground that no “labor dispute” existed because there was in fact no dispute between Stephenson and any of his employees.' To the extent that *L^\.rticle 5154f restricts the meaning of a “labor dispute” to a controversy between an employer and his employees and prohibits picketing except where such a controversy exists, we think that the statute is in conflict with the Fourteenth Amendment as construed by the Supreme Court of the United States in American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855, and Cafeteria Employees Union, Local 302 v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58, and that the statute must yield. In the Swing case the Supreme Court held, - and repeated in the Angelos case, that “a state cannot exclude workingmen from peacefully exercising the right of free communication by drawing the circle of economic competition between employers and workers so small as to contain only an employer and those directly employed by him.” 312 U.S. at page 326, 61 S.Ct. 568, 570, 85 L.Ed. 855; 320 U.S. at page 296, 64 S.Ct. 126, 88 L.Ed. 58. The rule is thus stated unequivocally as a constitutional limitation on the exercise of power by a state in dealing with industrial disputes, and we must therefore hold that the admitted fact that none of Stephenson’s employees had any quarrel with him will not justify the issuance of the injunction in this case.

The Court of Civil Appeals undertook to distinguish the Swing case, supra, citing Carpenters & Joiners Union of America, Local No. 213 v. Ritter’s Cafe, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed. 1143, on the ground that there was no “interdependence of economic interest” between the petitioners and Stephenson’s employees, emphasizing the facts that house moving is a specialized business, that there was no house movers’ union for Stephenson’s employees to join, and that Stephenson’s employees performed a variety of tasks, many of which were not performed by any members of the picketing unions. Conceding all of this to be true, still we think that the undisputed facts compel the conclusion that a relation existed between the work which Stephenson’s employees were doing at the time of the picketing and the work which the union members were accustomed to perform which would give them a real and substantial economic interest in the work on Stephenson’s job. The undisputed evidence shows that the work of erecting the steel trusses was work which members of the iron workers’ union were accustomed to do. Other work being done in the erection .of the building came within the tasks usually performed by members of the carpenters’ and the laborers’ unions. Moreover, union members were employed by the county on the same job and had to work alongside of Stephenson’s employees. We believe, therefore, that it must be concluded that the unions had a legitimate concern with the work done by Stephenson’s employees, and that .therefore the injunction cannot be sustained on the basis of the absence of such concern.

*962Without specifically referring to Article 5207a, Vernon’s. Ann.Civ.St, Acts 1947, 50th Leg., p. 107, ch. 74, the Court of Civil Appeals indicated in its opinion that it considered the purpose for which peti- , tioners picketed to be unlawful. 221 S.W. 2d at pages 380, 381. Stephenson alleged in his petition in the district court that the purpose of the picketing was to compel Stephenson to employ only union men on this job. The answer filed by the unions sought to justify the picketing on the ground that Stephenson hiad violated an alleged agreement to employ only members of unions affiliated with the Amarillo Building and Construction Trades Conned. The banner carried by the picket protested the employment by Stephenson of non-union men and the refusal of his employees to join the unions. The testimony heard by the court reasonably sustains the conclusion that the purpose, of the unions was to make this a union job. There was therefore a substantial basis in the record for the trial court to conclude that the immediate purpose of the picketing^ was to compel Stephenson to discriminate in favor of union members and against nonunion men in hiring his employees, in violation of Article 5207a, which reads in' part as follows:

“S.ection 1. The inherent right of a person to work and bargain freely with his employer, individually or collectively, for terms and conditions of his employment shall not be denied or infringed, by law, or by any organization of whatever nature.

“Sec. 2. No person shall be denied employment on account of membership or nonmembership in a labor union.

“Sec. 3. Any contract which requires or prescribes that employees or applicants for employment in order to work for an employer shall or shall not be or remain members of a labor union, shall be null and void and against public policy. The provisions of this Section shall , not apply to any contract or contracts heretofore executed but shall apply to any renewal or extension of any existing contract and to any new agreement or contract executed after the effective date of this Act.”

There cannot be any question re-garding the constitutionality .of Article 5207a in view of the recent decisions of thie Supreme Court of the United States-upholding almost identical provisions con-turned in the statutes and constitutions of other states. Lincoln Federal Labor Union v. Northwestern Iron & Metal Co. and Whitaker v. North Carolina, 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed., and American Federation of Labor v. American Sash & Door Co., 335 U.S. 538, 69 S.Ct. 258, 93 L.Ed. -.

The immediate pUrp0se of the picketing bdng t0 compd Stephenson to violate the statutory prohibition by denying employ-men(. 3⁄8-0 kjs regular crew because of their nonmembership in a labor union and to require 1⁄8 1⁄8 violation of the statute to aj,¿de by an aueged agreement requiring 1⁄8 employees t0 be members of labor unionS; 1⁄8£ picketing was not entitled t0 constitutional protection and could be validly enjoined. This follows from the decision of the Supreme Court of the United States in Giboney v. Empire Storage and Ice Co.; 336 U.S. 490, 69 S.Ct. 684) 93 *L.*Ed. -._ There it was held that picketing could be enjoined where it was designed to compel a violation of a valid Missouri statute prohibiting combinations in restraint of trade. Here a different statute 1⁄8 involved, but the Texas statute, like the Missouri law, represents a solemn and valid declaration of an important public policy by the legislative branch of the state government. We have recently recognized, in line with decisions of the Supreme Court of the United States, that picketing is one form of the exercise of thie constitutional right of freedom of speech. Ex parte Henry, 147 Tex. 315, 215 S.W.2d 588; International Union of Operating Engineers v. Cox, Tex.Sup., 219 S.W.2d 787. But we have been careful to point out that there must be a valid controversy, International Union of Operating Engineers v. Cox, Tex.Sup., 219 S.W.2d at page 794, and that the picketing must be for lawful purposes. North East Texas Motor Lines v. Dickson, Tex.Sup., 219 S.W.2d at page 798. Since the purpose of the picketing in this case was to bring about a violation *963of a valid statute, the purpose was unlawful, and under the Giboney case, supra,, it could validly be enjoined. See, also, Fred Wolferman, Inc. v. Root, 356 Mo. 976, 204 S.W.2d 733, 174 A.L.R. 585; R. H. White Co. v. Murphy, 310 Mass. 510, 38 N.E.2d 685; Restatement of Torts, § 794; Dodd, “Picketing and Free Speech: A Dissent,” 56 Harv.L.Rev. 513 at 523-524.

Petitioners urge, however, that the objective of their picketing was to improve wage and working conditions, because the evidence shows that some of Stephenson’s employees were paid less than the union scale and ■ there was some evidence that Stephenson’s nonunion employees were so inexperienced in heavy steel work as to endanger union men working on the same location. On the record/ before us, there is evidence to support/á conclusion that the unions were only concerned with making Stephenson’s job a union job and that they agreed that if Stephenson’s employees joined the unions Stephenson could continue the same men on the job at the same wages he was then paying them. Under our settled procedure, we must presume that the trial court so found. Aside from this, however, we note that in the Giboney case the facts showed that “one objective of. the organizational drive was to better wage and working conditions of peddlers and their helpers.” 336 U.S. 490, 69 S.Ct. at page 685, 93 L.Ed.-. Nevertheless, the court held in that case that since the immediate objective was to cause a violation of the statute, the ultimate objective of improving wages and working conditions would not justify the picketing. Similarly here, the immediate purpose being to cause a discrimination among employees on the basis of their membership or faonmembership in a union, the underlying purpose of improving wages and working conditions would not validate the picketing.

We sustain the granting of the injunction on the ground that the picketing had as its unlawful purpose to cause a violation of Article 5207a. However, we think that the petitioners are in part correct in saying that the terms of the injunction should be modified. The requirement that before picketing will be permitted there must be a dispute between Stephenson and a majority of his employees or between him and a majority of such employees belonging to any one labor union, concerning wages, hours or conditions of employment, is invalid, as • we have held, and should be eliminated. The application of the injunction is of course to be confined to picketing for unlawful purposes, as disclosed by the facts of this record, and is not to be construed to prevent peaceful picketing at proper places for lawful purposes, or other methods of publicizing any legitimate protests which petitioners may have against respondent.

Petitioners assign error to the alleged failure of the Court of Civil Appeals to make supplemental findings of fact under Rule 455, Texas Rules of Civil Procedure. Under Rule 482 we could refer the case back to the Court of Civil Appeals for further findings, if we were of the opinion that additional findings of fact by that court were necessary to enable us properly to determine the rights of the parties. We believe, however, that the Court of Civil Appeals’ opinion sufficiently states its conclusions on the controlling issues -of fact, that many of the findings requested by the petitioners were eviden-tiary and argumentative, and that the Court of Civil Appeals properly refused to make the requested findings. Nowlin v. Hall, 97 Tex. 441, 79 S.W. 806.

The judgment of the district court is modified, and as modified, ’ that judgment and the judgment of the Court of Civil Appeals are affirmed.

GRIFFIN, Justice

(concurring).

We are all in agreement that the judgment of the trial court and Court of Civil Appeals must be affirmed on the second ground stated in the opinion. Therefore any ruling on the constitutionality of Art. 5154f in this cause is unnecessary to a decision of this case. Regardless of our holding. on this question as to Art. 5154f, the judgment must be affirmed. As I understand the law, Courts should not declare *964acts of -the Legislature unconstitutional unless necessary to do so for a decision in the case at hand. For that reason I do not concur in the. decision that Art. 5154f is unconstitutional but reserve that for determination when the point squarely arises.

SHARP, J., joins in this opinion.