NASH v. STATE OF TEX.
In September 1978, Buddy Schoellkopf, Inc. ("Schoellkopf Products" or "the company"),
maintained a plant in Tyler, Texas, where it manufactured marine safety equipment and
down-filled hunting clothes. Many of the events giving rise to this action occurred near the
plant. It is located on Gentry Parkway, a main thoroughfare, which consists of six lanes of
traffic and measures 150 feet in width. Two access roads lead to the plant from Gentry
Parkway, each of which is about twenty-seven feet wide.
On September 18, 1978, the National Labor Relations Board certified Local 746 of the
United Rubber Workers ("the union") as the collective bargaining representative of an
appropriate unit of employees at the Schoellkopf Products plant in Tyler. Management
personnel at Schoellkopf Products were disquieted by the union's presence at the plant,
and seemingly felt that the presence of the police might be needed, because of union
activities. Accordingly, company representatives and agents called on Willie Hardy, then
the Assistant Chief of Police of Tyler, in order to "get to know" officials of the Tyler Police
Department. The plant manager, Jeff Keasler, again met with Hardy (by then Chief of
Police) and Charles Clark, Esquire, his attorney, in late January 1979, for lunch at a
country club in Tyler, ostensibly to discuss security at the company's plant.
During the period from September 1978, to February 8, 1979, the union bargained with
Schoellkopf Products, without any disruption of work at the company's Tyler plant. On
February 8, 1979, the union began engaging in protected concerted activity, in the form of
a strike, against the company. Picket lines were thereafter established at the entrance to
the company's plant in Tyler. Members of the union at Schoellkopf Products' Tyler plant
were mostly women. Thus, picketing at the plant site was primarily conducted by striking
women employees of the company, from the inception of the strike on February 8, 1979, to
March 12, 1979.
The company employed the services of Century Security Company, as a security force,
prior to the beginning of the labor dispute. This service provided three armed guards, led by
one Herbert Thompson. Each guard was issued one or more firearms, including pistols,
shotguns, and rifles. At the picketing site, Thompson possessed a .357 caliber magnum
revolver, worn as a sidearm. In his automobile, stationed nearby, he kept a 12 gauge
shotgun, a .30 caliber carbine with a 20-shot clip, and an AR-15 automatic rifle, all of which
were loaded. At times, security personnel pointed the weapons in the direction of pickets.
Security guard Thompson frequently taunted picketers by threats of violence. Additionally,
he made crude, explicit, and unwelcome sexual overtures to some female pickets.
Apparently in response to the tactics employed by the company's security force, a large
number of the union's members, mostly male, from the Kelly-Springfield Tire Company
plant in Tyler, joined in the picketing at the Schoellkopf Products' plant on March 12, 1979.
In several instances during that day and the following two days, non-striking employees
were delayed for short periods in entering and leaving the company's plant, when pickets
temporarily blocked the access roads leading from Gentry Parkway to the plant. On these
occasions, picketers taunted and jeered at non-striking employees, often using obscene
and abusive language and gestures, as well as making a few intermittent threats of
violence. The strikers, in turn, were reviled and scoffed at by the non-strikers, who also
uttered obscenities and threats. In addition, pickets broke off several radio antennas on
automobiles occupied by non-strikers, and they flailed a small number of the non-strikers'
vehicles with picket signs and with their hands. On one occasion during the three day
interval, the president of Local 746, John Nash, apparently provoked by his perception that
plant guards were making unnecessary and threatening displays of their weapons,
appeared on the picket line with a shotgun. At the instance of the company, he was
promptly arrested by the police. Aside from these incidents, no actual force or significant
threats of force occurred during the entire course of the strike.
In the period from February 8, 1979, to March 14, 1979, the Tyler Police Department had
sent police officers to the location of the picketing at Schoellkopf Products' plant only in
response to specific complaints from company representatives. During that interval, five
arrests were made by the police force at the scene of the picketing, none of them
concerning alleged violation of the mass picketing statute. On at least one occasion, on
February 12, 1979, police officers "advised that as long as strikers were moving, no action
could be taken by officers."
On March 14, 1979, the company filed a suit in a state court against the union, John Nash,
and another union member, seeking a temporary restraining order, a temporary injunction,
and a permanent injunction against the union's picketing activities.3 A temporary restraining
order was granted, ex parte, by the Honorable Galloway Calhoun, Judge of the 114th
Judicial District of Texas, on March 14, 1979, restraining picketing and other alleged
activities of the union and Local 746.
On March 15, 1979, the company's president, Hugo, Schoellkopf, arranged for a meeting to
be held in the office of the City Manager of Tyler, Texas, at 11:00 o'clock a.m. Schoellkopf,
executive vice-president Delbert Chandler, plant manager Jeff Keasler, and company
attorney Erich Klein represented the company. Also present were City Manager Ed
Wagoner, Assistant City Manager Terry Childress, Chief of Police Willie Hardy, and the
executive director of the Tyler Chamber of Commerce, Freeman Carney. Neither the City
Attorney, State District Attorney, nor any union representative was invited to attend this
meeting. According to Schoellkopf, the purpose of the meeting was to insure that the City
of Tyler and its Police Chief would enforce the mass picketing statute at the company's
Tyler plant. At the gathering, copies of the statute were made available to the city officials
by the company representatives
Later on March 15, 1979, at 2:15 o'clock p.m., Hardy met with Chandler and Nash. In the
ensuing discussion, Hardy stated that the police would be present at the picketing situs and
would enforce the mass picketing statute. He further explained that the pickets would be
allowed to cross the company driveway, if traffic at the entrance to the plant was not
blocked for more than one minute. Nash was not advised by Hardy of the 11:00 o'clock
a.m. meeting earlier that day with officials of the company, the City of Tyler, and the
Chamber of Commerce.
After the temporary restraining order was granted by the state court on March 14, 1979,
Nash and a representative of the Tyler Police Department, together, marked off a distance
of fifty feet from each entrance to the defendant company's plant. Thereafter, all pickets,
strikers, and their sympathizers were required by the police to stay behind the fifty-foot
markers.
After March 15, 1979, the Tyler Police Department followed a standard procedure. At
approximately 4:15 p.m., fifteen minutes before production workers at the company's plant
stopped work for the day, four to six vehicles of the Tyler Police Department, including a
"paddy wagon," were stationed along the curb on both sides of the entrance driveway to
the plant. From six to twelve members of the Police Department posted themselves in the
vicinity of the picket line. Pickets, other striking employees, and their sympathizers were
thereafter arrested by the police, for perceived violations of the mass picketing statute.
From March 15, 1979, to March 28, 1979, approximately ninety arrests were made for
"unlawful picketing." In arresting the picketers, the police cited three alleged violations of
the mass picketing statute, Article 5154d, as follows:
1. Under the "numbers-distance" provision, § 1, paragraph 1, anyone who approached the
two picketers within fifty-foot markers laid out by police and union members was arrested,
even a person intending to relieve a picketer on duty;
2. A picketer who caused a vehicle driven on the access and exit roads to the plant to stop,
even momentarily, was arrested, allegedly pursuant to § 1, paragraph 2; 5 and
3. Any striker or sympathizer who shouted "scab" or who was accused of uttering a
profanity was arrested, supposedly in accordance with § 2 of the statute.
No arrests were made for alleged acts or threats of violence, destruction of property, or
resisting arrest.
The arrests of the union's attorneys were particularly notable. Ken Miller, Esquire, and Joe
Beam, Esquire, counsel for Local 746, approached the picket line on March 15, 1979, at
about 4:30 o'clock in the afternoon. Each identified himself to the police as an attorney for
the picketing union members. Without regard to these facts, the Tyler police officers on the
scene arrested each attorney for unlawful picketing, handcuffed both, and placed them,
first, in the police paddy wagon and, later, in a patrol car. The two attorneys were
afterwards taken to jail, booked, and processed. They were ultimately released on bail near
midnight on March 15, 1979. On March 20, 1979, Beam and Michael Hubband, Esquire,
another union attorney, visited the picket line, to speak to the sole picket on the scene.
When they approached the picket, both of the attorneys were arrested for unlawful
picketing and handcuffed, over their protests that they were attorneys for the union. The
picket was also arrested. All three were taken to jail, booked, and released hours later on
bail. The only persons placed in handcuffs incidental to the mass picketing arrests were the
union attorneys.
No formal complaints7 were filed in connection with any of these arrests until after the
subsequent hearing on plaintiffs' motion for a preliminary injunction in the instant litigation,
which was begun twelve days after the first arrests.
Immediately before the mass arrests began, John Nash filed a complaint in United States
District Court for the Eastern District of Texas, seeking damages, as well as declaratory
and injunctive relief, against the company, its officers, and City of Tyler officials. His
complaint, based on 42 U.S.C. § 1983, alleged, inter alia, that the defendants had
unlawfully conspired to deprive him of his individual right to be free from unlawful arrest and
imprisonment. On March 21, 1979, after the mass arrests had begun, a first amended
complaint was filed by Nash, together with the union and its attorneys, Ken T. Miller, Joe B.
Beam, and Michael W. Hubbard. There, the plaintiffs alleged that, through the illegal
enforcement of the mass picketing statute, the defendants were interfering with their First
Amendment rights. They further maintained that the enforcement of Article 5154d (which
had been declared unconstitutional by a federal district court in 1972),8 additionally violated
their rights under (1) the Fourteenth Amendment to the United States Constitution, (2) §§ 7
and 13 of the National Labor Relations Act, 42 U.S.C. § 141, et seq., and (3) 42 U.S.C. §§
1983 and 1985. In the amended complaint, the union sought a temporary restraining order
from this court, which was denied on March 22, 1979, after an in-chambers hearing,
because the issues required the taking of evidence. On April 4, 1979, after an evidentiary
hearing, a preliminary injunction issued, enjoining the city officials and police from arresting
those union members who shouted "scab" at non-strikers, those who slowed traffic on the
plant access roads only momentarily, and those who approached the picket line to relieve
other workers. The injunction also prohibited the arrest of attorneys who approached the
picketers to consult with them. Finally, city officials were required to control traffic at the
plant, so as to ensure the safety of the picketers.9 The preliminary injunction was appealed
to the Court of Appeals for the Fifth Circuit; but it was dismissed on May 30, 1980, because
the strike had ended and the union had been decertified as the collective bargaining agent
for the employees of Schoellkopf Products.
By subsequent order, the following actions were taken in this action: (1) leave was granted
to the striking employees to intervene individually; (2) pursuant to 28 U.S.C. § 2281 (since
repealed), the Attorney General of Texas was notified that the constitutionality of Article
5154d had been challenged; (3) leave was granted to the State of Texas to intervene; (4)
plaintiffs' claim for injunctive relief was dismissed; (5) plaintiffs' claim for declaratory
judgment concerning the constitutionality of § 1, paragraph 2, of Article 5154d was
dismissed;10 (6) the claims against all private parties-defendants were dismissed; (7) the
claims for damages of two named plaintiffs were severed in conformity with FED. R.CIV.P.
21;11 and (8) all other damage claims were dismissed. Thus, the remaining parties in this
action are Nash and the union, as plaintiffs, and the Chief of Police of the City of Tyler, the
City of Tyler, and the State of Texas, as defendants.
The plaintiffs seek declaratory relief that § 1, paragraph 1, and § 2 of Article 5154d
unconstitutionally infringe on their First Amendment rights. But before addressing the
constitutionality of the statute, it must be determined whether the issue has been rendered
moot by the decertification of the union and the termination of the strike.
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