Appeal from the Circuit Court of Winnebago County; the Hon.
Robert C. Gill, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
The defendant, Carl Holder, was found guilty of intimidation (Ill. Rev. Stat. 1979, ch. 38, par. 12-6) after a jury trial in the circuit court of Winnebago County. He was sentenced to 18 months' probation and fined $1,000. He appealed to this court and contested, inter alia, the constitutionality of the section of the intimidation statute under which he was charged. This court declared section 12-6(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12-6(a)(3)) to be unconstitutionally overbroad and reversed Holder's conviction. (People v. Holder (1982), 103 Ill. App.3d 353, 431 N.E.2d 427.) Subsequently the State appealed to the supreme court.
The State's petition for leave to appeal was granted by the supreme court and the finding of this court was reversed insofar as we determined section 12-6(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12-6(a)(3)) to be unconstitutionally overbroad. The cause was remanded to this court for consideration of the other issues raised by the parties. People v. Holder (1983), 96 Ill.2d 444, 454, 451 N.E.2d 831.
The facts underlying this case have been described at length in previous opinions and only a summary will be presented here. In July of 1979 several cement truck drivers for the Rockford Redi-Mix Company, Inc. signed cards which authorized Carl Holder, the defendant, to act as their representative for purposes of collective bargaining. Holder was business representative for Teamsters Local 325. The drivers, dissatisfied with their wages and working conditions, arranged for Holder to present the authorization cards and a collective bargaining agreement to their employer, Rockford Redi-Mix.
The drivers made an agreement with Holder that they would report to work the following morning as scheduled, load their trucks with cement and proceed to a meeting spot on the way to their assigned job site. When the last truck left, the defendant, who would be parked near the plant, would enter the office and demand that the employer recognize the union and sign the union's contract. The defendant suggested that the drivers accompany him in presenting the contract, but the employees agreed to meet him after he had presented the Redi-Mix contract. The drivers hoped that Holder's unannounced appearance and presentation of the contract would provide them with sufficient leverage so that the union would be recognized and the contract signed.
At 7:45 in the morning of July 25, Holder and a union secretary entered the office of the general manager of Rockford Redi-Mix, Curt Countryman. Holder told Countryman they were from the union and represented a majority of his employees. According to Countryman, Holder told him that "the trucks that had just left are sitting down the road, and the drums aren't turning till I [Countryman] signed the contract." Countryman looked through the contract but refused to sign it. Holder testified that he then said, "Okay, sir, you've got a strike on your hands." Holder denied referring to the drums or the trucks.
The drivers and Holder then went to the job site at about 10:55 a.m. They contacted the employer by radio and left the message that they had arrived at the job site. The drivers then shut down the drums on their cement trucks. They indicated the drums had been turning up to this point. By the time an associate of Countryman's arrived at the job site the cement was hardened in some trucks, and there were no drivers present. There was a difference of opinion as to whether the cement could have hardened as quickly as the State's witnesses indicated. Countryman testified that it was necessary to replace one drum and jackhammer others to remove the hardened cement.
Holder and the drivers were charged, in an amended seven-count information, with the felonies of conspiracy, criminal damage to property and intimidation. The jury convicted Holder on one count of intimidation and acquitted him, and the drivers, on all other counts.
The defendant's initial contention on appeal was a challenge to the constitutionality of section 12-6(a)(3) of the Criminal Code of 1961. He contended it was overbroad and violative of his first amendment rights. The supreme court found that "the flaw in section 12-6(a)(3) is not a `substantial concern' when viewed in the context of the legitimate sweep of an intimidation statute." (People v. Holder (1983), 96 Ill.2d 444, 454, 451 N.E.2d 831, 835.) Thus, we turn to the remaining issues raised by Holder on appeal.
• 1 Holder contends on appeal that section 12-6(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12-6(a)(3)) is unconstitutional as applied to him even if it is valid on its face. Defendant relies on the case of Watts v. United States (1969), 394 U.S. 705, 22 L.Ed.2d 664, 89 S.Ct. 1399, where the Supreme Court considered whether a statement made by an 18-year-old, in which he threatened to shoot the president if he was drafted and had to carry a rifle, was constitutionally protected. The court stated the statute prohibiting such threats on the president (18 U.S.C. § 871 (1976)) requires that the government prove there was a threat. The court did not believe the "political hyperbole" indulged in by petitioner was such a threat. Rather, it stated, the language was a crude and offensive method of stating a political opposition to the president. While it is true that Watts bears some similarities to the facts of the case at bar, we believe it is fundamentally inapposite. In Watts, unlike the case at bar, the statements made were recognized as protected speech based on the principles that debate on public issues should be wide open and robust (394 U.S. 705, 708, 22 L.Ed.2d 664, 667, 89 S.Ct. 1399, 1401). The court also recognized that speech in labor disputes can even be "vituperative, abusive and inexact." By contrast, in the instant case Holder was not interested in any form of discussion. His statements did not advocate a theory, but rather sought to coerce the employer to sign, or face as an alternative, the consequences. In the present context the statements were designed to intimidate and coerce. This is what the intimidation statute was intended to prohibit. We do not believe the statute is unconstitutional as applied.
We turn next to Holder's claim that his speech was protected under Federal labor law. While the federally created right to strike (29 U.S.C. § 157 (1976)) has been construed to protect abusive, intemperate or defamatory language which may otherwise be actionable (Old Dominion Branch No. 496 v. Austin (1974), 418 U.S. 264, 41 L.Ed.2d 745, 94 S.Ct. 2770), we believe the statement made by Holder, that the "drums aren't turning," was not within the umbrella of protection afforded by the Federal law.
• 2 Defendant concedes, for purposes of this appeal, that his conversation in the Redi-Mix office was as Countryman testified; i.e., that he stated the drums were not going to turn unless the contract was signed. The implication of this statement was that the concrete would harden in the trucks, and repairs to those trucks would have to be made by the employer unless he signed the contract. Holder's position is that it was within his authority, as union representative, to make such a statement. We disagree. While Holder had clear authority to put economic pressure on the employer, he also had a duty to bargain collectively with the goal of reaching an agreement. (NLRB v. Insurance Agents' International Union, AFL-CIO (1960), 361 U.S. 477, 484, 4 L.Ed.2d 454, 461, 80 S.Ct. 419, 424.) While it is clearly not our role to ascertain if or when Holder violated his duty to bargain collectively, the cases which discuss that issue have significance in our determination of whether Holder's conduct was protected by Federal labor policy. In the above-cited NLRB case the employees engaged in harassing tactics which, the employer contended before the National Labor Relations Board (NLRB), amounted to a refusal to bargain collectively. The court found that the union had not breached its duty to bargain in good faith, and could use economic pressure and still be considered to have been bargaining in good faith. The case considered the scope of section 8(b)(3) of the National Labor Relations Act (NLRA) (29 U.S.C. § 158(b)(3) (1976)), which makes it an unfair labor practice for a labor organization to refuse to bargain collectively with an employer. In discussing what types of conduct may be protected Justice Frankfurter stated in his separate opinion:
"Moreover, conduct designed to exert and exerting `economic pressure' may not have the shelter of sec. 8(b)(3) even in isolation. Unlawful violence, whether to person or livelihood, to secure acceptance of an offer, is as much a withdrawal of included statutory subjects from bargaining as the `take it or leave it' attitude which the statute clearly condemns. One need not romanticize the community of interest between employers and employees, or be unmindful of the conflict between them, to recognize that utilization of what in one set of circumstances may only signify resort to the traditional weapons of labor may in another and relevant context offend the attitude toward bargaining commanded by the statute. Section 8(b)(3) is not a specific direction, but an expression of a governing viewpoint or policy to which, by the process of specific application, the Board and the courts> must give concrete, not doctrinaire content." NLRB v. Insurance Agents' International Union, AFL-CIO (1960), 361 U.S. 477, 506, 4 L.Ed.2d 454, 474, 80 S.Ct. 419, 436.
• 3 Thus, under judicial interpretations of the NLRA, the right to strike is not an unqualified right. Further, we do not believe Holder's conduct in the instant ...