Art Steel Co. v. Velazquez

280 A.D. 76, 111 N.Y.S.2d 198

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 1952
• Status: Published

Opinions

Callahan, J.

A temporary injunction has been issued by Special Term restraining the prosecution of a strike initiated by the plaintiff’s employees. Plaintiff concededly is engaged in interstate commerce manufacturing art metal products in several plants located in the County of Bronx, City of New York. Since June 15, 1950, a collective bargaining agreement has been in effect governing labor relations of plaintiff and its employees. This agreement was entered into by Local 1764 of the United Steel Workers of America, C.I.O”., as duly certified bargaining agent for such employees. The contract expires in June, 1953, but there is a provision for renegotiation in June, 1952.

The employees claim that the contract was arbitrarily, if not illegally, executed by their bargaining agent. They assert that it was submitted for adoption to the union members at a packed meeting, which was so disorderly that no accurate vote could. be taken, and that no majority vote was cast in favor of the contract. They further claim that the C.I.O. union, and its officers and business agents, since the execution of the contract have failed properly to represent the employees or present their grievances. After several meetings in 1951, in which they protested the contract, unsuccessfully demanded resignation of defendant Velazquez as president of the local union, and made like protests, with like lack of success, to the central authorities of the C.I'.O. union, the employees called a meeting shortly after November 1, 1951, at which they purported to elect another executive board and one of their number, defendant Caban, as president of Local 1764. Caban’s election was refused recognition by plaintiff and the C.I.O., and Caban was forthwith discharged from his employment. Thereupon, the employees struck and began picketing the plaintiff’s plants. They claim that 80% or more of all of plaintiff’s employees joined in the protest against the arbitrary adoption of the contract, and in the subsequent protests against the C.I.O. representation down to and including the strike.

Since the strike, the employees attempted to disaffiliate themselves with Local 1764 and the C.I.O. and to become affiliated with United Mine Workers of America (U.M.W.A.), a rival international, securing a charter under the Art Steel Employees Union District 50, United Mine Workers of America. Said new local and international union have been named defendants.

The present appeals are (1) by the employees individually and by the U.M.W.A. union from the order granting the temporary injunction, and (2) from an order denying the motion to dismiss the complaint for lack of jurisdiction.

We will first take up the question of jurisdiction in the case. There can be no doubt that the gravamen of the present complaint is as to a condition that involves an unfair labor practice within clause (C) of paragraph (4) of subdivision (b) of section 8 of the Taft-Hartley Act (U. S. Code, tit. 29, § 158, subd. [b], par. [4], cl. [C]). Special Term, nevertheless, refused to dismiss the complaint for lack of jurisdiction (see Costaro v. Simons, 302 N. V. 318). It held, in effect, that despite the provisions of the Taft-Hartley Act this court might proceed to enjoin the strike without first having the National Labor Relations Board act in the matter, because the complaint showed that defendants (other than Velazquez) had violated the terms of a current collective bargaining agreement and the provisions of the local charter and international constitution of the C.I.O., and that the only thing the plaintiff conld do was to proceed in the State court.

It is unnecessary to decide whether the reasons thus assigned by Special Term for assuming jurisdiction are correct. Clause (C) of paragraph (4) of subdivision (b) of section 8 of the Labor Management Relations Act, 1947 (Taft-Hartley Act) makes it an unfair labor practice for a labor organization or its agents to engage in a strike or concerted refusal to perform services, when the object is “(C) forcing or requiring any employer to recognize or bargain with a particular labor organization * * # if another labor organization has been cer-

tified as the representative of such employees ”. That is the gist of the complaint insofar as it relates to the cause of the strike. Merely because, after the certification of a particular union, a collective bargaining agreement was signed, would not seem to alter the fact that where an attempt is being made to force the employer by striking and picketing to recognize a second union, an unfair labor practice as defined in the TaftHartley Law is involved. Insofar, therefore, as any injunctive relief is concerned, as distinguished from a claim for damages, it may be doubtful whether under the Federal statute it is required that action be taken by the National Labor Relations Board (Act, § 10, subd. [a], U. S. Code, tit. 29, § 160, subd. [a]). The certification of Local 1764 as bargaining agent is conceded. That a contract was executed by the certified agent would not necessarily alter the procedure to be followed in restraining an unfair labor practice.

In any event, another and more certain ground for assuming jurisdiction exists as the case involves another aspect. The complaint and the moving affidavits on the motion for an injunction charge that the strike is accompanied by many acts of violence and breaches of the peace, which have been set forth in the papers in detail. Plaintiff sought the injunction on the ground of violence as well as breach of the labor agreement. The answering affidavits deny substantially all of the charges of violence and allege that the strike was being conducted in a lawful manner without any mass picketing or breaches of the peace. The Special Term did not pass upon the question as to whether the papers sufficiently disclosed that violence existed. It granted the injunction solely in recognition of the effect of the contract, and because of the failure of the employees to resort to other remedies for relief required by said contract and the O.I.O. constitution.

The allegations of the complaint showing an unfair labor practice as well as those showing the existence of violence must be assumed to be true on the motion to dismiss the pleading for lack of jurisdiction in determining the motion to dismiss the complaint. Accordingly, we must decide what effect the presence of violence has on the question of whether jurisdiction will be retained by a State court in a case where an unfair labor practice as defined in the Taft-Hartley law is shown as the basis of the strike or labor dispute.

The Taft-Hartley law contains no reference to violence as a ground for action by the National Labor Relations Board. “ The intention of Congress to exclude States from exerting their police power must be clearly manifested ”. (Napier v. Atlantic Coast Line, 272 U. S. 605, 611; Allen-Bradley Local v. Board, 315 U. S. 740.) The statute is not to be construed to interfere with the right of the affected parties as individual suitors to seek relief in State or Federal courts to restrain violence. Such application would, of course, be subject to the provisions of such statutes as the Norris-LaG-uardia Act (TJ. S. Code, tit. 29, § 101 et seq.) or similar State enactments. (See Teller on Labor Disputes and Collective Bargaining [1950 Supp.], § 398.18.)

In Auto. Workers v. Wis. Board (336 U. S. 245, 252-253), it was said: “ Congress has not seen fit in either of these Acts to declare either a general policy or to state specific rules as to their effects on state regulation of various phases of labor relations over which the several states traditionally have exercised control [citing statutory examples]. However, as to coercive tactics in labor controversies, we have said of the National Labor Relations Act what is equally true of the Labor Management Relations Act of 1947, that ‘ Congress designedly left open an area for state control ’ and that the ‘ intention of Congress to exclude States from exercising their police power must be clearly manifested.’ Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U. S. 740, 750, 749. We therefore turn to its legislation for evidence that Congress has clearly manifested an exclusion of the state power sought to be exercised in this case.”

The cited decision proceeds to point out that the work stoppages involved were not expressly made unfair labor practices by the Federal statute, and then adds (p. 253): “ While the Federal Board is empowered to forbid a strike, when and because its purpose is one that the Federal Act made illegal, it has been given no power to forbid one because its method is illegal — even if the illegality were to consist of actual or threatened violence to persons or destruction of property. Policing of such conduct is left wholly to the states. In this case there was also evidence of considerable injury to property and intimidation of other employees by threats and no one questions the State’s power to police coercion by those methods.”

Teller on Labor Disputes and Collective Bargaining (1950 Supp., § 398.24) points out that to punish or prevent violence and breaches of the peace is primarily a State function even under the Federal Constitution, and he construes the TaftHartley law as assuming that such local function will be exercised by the courts. We are in accord with this view and will assume jurisdiction because of the charges of violence. We, however, feel that although the intention to permit the States to act in circumstances involving violence may be deemed inherent in the Labor Management Law, it would be consistent and proper that care be exercised to avoid having State action collide with the policies of the Federal act.

Because of the nature of the basic dispute involved, we think that before the trial steps should be taken to ascertain whether the National Labor Relations Board desires to act with respect thereto.

The dispute is essentially between two unions, one of which has been certified by the national board, and charges are made involving alleged misconduct by said certified union. We can anticipate that the machinery of the labor board to investigate the charges of misconduct, and possibly to supervise another election, might be called into play before that dispute is resolved. At least, we deem it proper in this instance to give the board an opportunity to act on the main dispute before we act further thereon. It would seem that the plaintiff has the first duty to present the matter to that board, and we direct it to do so. If it fails to do so promptly, any other party may act.

Returning to the question presented upon the first appeal, we must determine whether the temporary injunction should be maintained in this case. If there had been no collective bargaining agreement here, we would decide this question solely on the basis of the existence of violence in connection with the strike and the extent thereof. But we have a collective bargaining agreement in this case, and it is entitled to due respect at least until it is declared invalid. The agreement contains a covenant against suspension or stoppage of work, and in passing on the question as to whether an injunction should issue we see no reason why we may not give due consideration to the fact that a covenant was entered into. We see no inconsistency in giving this degree of recognition to the contract, even though we are reluctant to hold that interference with its performance would in and of itself warrant our exercising jurisdiction.

We find the charges of violence substantial, and that the strike was permeated with such disorder and violence to require us to enjoin the entire strike. The danger of a renewal of this disorder would appear to be imminent, if the ban on the strike is presently removed. Therefore, and in view both of the disorder, which warranted our taking jurisdiction, and the covenant against work stoppage above referred to, we direct that the injunction be continued pendente lite in all respects. We do not construe any provision of the temporary injunction to prevent an application to the National Labor Relations Board to act in the dispute. To continue the injunction will serve to maintain the status quo.

We are of the view that section 876-a of the Civil Practice Act does not bar the issuance of an injunction under the present circumstances (Florsheim Shoe Store Co. v. Retail Shoe Salesmen’s Union, Local 287, 288 N. Y. 188; Wolchok v. Kovenetsky, 274 App. Div. 282). The present case differs from Goodwins, Inc., v. Hagedorn (303 N. Y. 300) in that here one union has been certified by the labor board and an unfair labor practice is involved as well as a strike.

We find no occasion to discuss at length the matters referred to in the concurring opinion. Both opinions are in accord in holding that the presence of violence in connection with the strike affords a sufficient basis for the exercise of our jurisdiction. It, therefore, would not alter our decision even if the making of the contract, or interference therewith, or its breach would possibly afford an additional basis for the exercise of jurisdiction by a State court. Nor does it appear to us necessary to decide whether the decision in the Costaro case (302 N„ Y. 318, supra) holding that the administrative remedy must be exhausted should be applied only to situations which have been newly proscribed as unfair labor practices by the Taft-Hartley Law, and not to those causes previously recognized at common law as actionable by the State courts. (See, however, Ryan v. Simons, 277 App. Div. 1000, affd. 302 N. Y. 742.) It is enough to hold that neither the statute nor the Costaro decision prevents us from exercising jurisdiction in a case where violence is found to exist.

Our disagreement with the dissenting opinion is largely with respect to the extent to which jurisdiction will be exercised in a case involving disorder. We are of the view that once jurisdiction is taken, the entire controversy may be disposed of by the State court.

We think that as a matter of comity the parties should promptly call the dispute to the attention of the National Labor Relations Board. If the National Labor Relations Board takes jurisdiction, after action taken by that board has been determined or concluded, any surviving issues may be disposed of by trial or entry of judgment. If the National Labor Relations Board does not take jurisdiction, we direct an immediate trial of the issues by the court.

The orders appealed from should be affirmed, with one bill of $20 costs and disbursements to the respondents. Settle order.