Stillwell Theatre, Inc. v. Kaplan

182 N.E. 63, 259 N.Y. 405, 84 A.L.R. 6, 1932 N.Y. LEXIS 960

• Court: New York Court of Appeals
• Decided: July 19, 1932
• Status: Published

Opinions

Pound, Ch. J.

These are labor cases in which injunctions have been granted at the suit of proprietors of moving picture theatres, enjoining defendant during the existence of contracts between the Empire State Motion Picture Operators Union, Inc., and each of the respective plaintiffs from doing any act or acts calculated to induce or cause a breach of such contracts; from picketing and patrolling the streets in front of or near the respective theatres, and from committing any act or acts which are calculated to or apt to harm, harass or embarrass the respective plaintiffs in the conduct of their business, and which are calculated to cause persons desiring to enter the theatres to refrain from so doing; from exhibiting any sign or signs and distributing any notices in front of or near said theatres; from suggesting to any person or persons the boycotting of plaintiffs’ business; from interfering in any manner above set forth or in any other manner or by any other means with the business, custom or trade of the plaintiffs, or making any false statements respecting the plaintiffs or the plaintiffs’ business; from accosting, coercing, intimidating or in any manner interfering with persons employed by the plaintiffs or seeking to enter their employ, from entering or continuing in such employment, or doing any other illegal act in reference thereto.

The word “ defendant,” as hereinafter used, refers to labor union Local 306.

The real controversy is between Local 306 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators Union of the United States and Canada, affiliated with the American Federation of Labor, and a member of the State Federation of Labor and of the Central Trades and Labor Council of Greater New York, and the Empire State Motion Picture Operators’ Union, Inc., which is not affiliated with those organizations nor with any other labor union or body. Each plaintiff made a contract with the latter union whereby plaintiff is obliged to employ none other than members of that union as motion picture operators at such plaintiffs’ theatre, which contract ran from September 1, 1930, to August 31, 1931. Defendant picketed plaintiffs’ theatres with a sign which read: “ Owners of this theatre refuse to employ members of Motion Picture Operators Union Local 306, affiliated with the American Federation of Labor.” The picketing was peaceful; not accompanied by any acts of violence, trespass or intimidation and the sign truly stated the fact. Unquestionably defendant in picketing these three theatres was actuated by a desire to improve labor conditions as to wages, hours, number of employees and conditions of work, although incidental disadvantage to the employer might result. “ Resulting injury [from lawful picketing] is incidental and must be endured.” (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260, 263.)

While the trial court made findings in all three actions that a sign printed in Jewish characters and carried by the pickets was misleading in that it conveyed the idea that union labor was not employed on the premises and also that the purpose of the picketing was in part to destroy plaintiffs business, the judgment was based solely on the ground that the picketing was illegal because its purpose was to induce or cause a breach of the contract between the plaintiffs respectively and the rival union. The Appellate Division, unanimously affirming the judgment, rested its decision on the same ground. It said: “ The evidence amply justified the finding that the Empire State Motion Picture Operators Union, Inc., is a bona fide labor union; that there were valid, binding and subsisting contracts of employment for definite periods of time between the plaintiffs and that union at the time the defendant conducted its picketing of the theatres of the plaintiffs, and that this picketing was conducted with knowledge on the part of the defendant of the existence of such contracts. Such orderly picketing with truthful placards was wrongful, although the means employed were otherwise lawful, because such acts were indulged in to attain a wrongful and, therefore, an unlawful purpose, to wit, the breach of contracts of employment for fixed and definite periods of time.” (235 App. Div. 738.)

The Court of Appeals has for many years been disposed to leave the parties to peaceful labor disputes unmolested when economic rather than legal questions were involved. The employer, if threatened in his business life by the violence of the unions or by other wrongful acts might have the aid of the court to preserve himself from damage threatened by recourse to unlawful means, but the right of the workmen to organize to better their condition has been fully recognized. The fact that such action may result in incidental injury to the employer does not in itself constitute a justification for issuing an injunction against such acts. The interests of capital .and labor are at times inimical and the courts may not decide controversies between the parties so long as neither resorts to violence, deceit or misrepresentation to bring about desired results. (National Protective Assn. v. Cumming, 170 N. Y. 315; Paine Lumber Co. v. Neal, 244 U. S. 459, 471; Bossert v. Dhuy, 221 N. Y. 342.) Acts must be legal but they may be legal or illegal according to circumstances.

The case of Hitchma n Coal & Coke Co. v. Mitchell (245 U. S. 229) has often been cited as authority for the proposition that inducements of a breach of contract for a definite term of employment are illegal, even in the case of solicitation by groups of laborers, but, as the Supreme Court of the United States said of that case in American Steel Foundries v. Tri-City Central Trades Council (257 U. S. 184, 211), the unlawful and deceitful means used [to molest the plaintiff rather than to better the fortunes of the worker] were quite enough to sustain the decision of the court without more.” (Cf. Lamb v. Cheney & Son, 227 N. Y. 418.) It has never been held by this court that a labor union is without justification in fairly setting forth its claims in a controversy over terms and conditions of employment by sign, handbill or newspaper advertisement as a legitimate means of economic coercion, nor does the Hitchman case so hold, nor is that case a final authority on this point concerning the laws of New York. (Paine Lumber Co. v. Neal, supra.)

The law of the State of New York, as declared by this court, is perhaps more favorable to the defendant than that of the United States Supreme Court or other jurisdictions. The doctrine of the Hitchman case as applied to labor disputes by some of our lower courts has never been accepted here, if it has not been specifically rejected. A review of recent cases establishes this fact.

The question whether union tactics, merely persuasive in character, directed to the inducement of a breach of contract for a term are ever justified was expressly reserved in Exchange Bakery & Restaurant, Inc., v. Rifkin (supra, p. 267). The court, per Andrews, J., said: “ Here, however, we do not need to decide whether where the object of the act is to aid in a labor dispute, there is just cause or excuse for such interference with existing contracts, and if not how specific the contract must be, nor how substantial the term of employment contained therein to permit equity to intervene.”

In Interborough Rapid Transit Co. v. Lavin (247 N. Y. 65, 79) the court, per Lehman; J., said: “ This court has not yet been called upon to decide whether employees may lawfully be urged to make a choice in breach of a definite contract.” Of these cases it has been said: “ Thus, the judges of a great tribunal indicate their conviction that when dealing with legal problems enmeshed in dynamic social forces, courts ought to decide only the case before them and to remain open to all the wisdom the future may hold.” (“ The Labor Injunction,” by Frankfurter & Greene, p. 42.)

In Nann v. Raimist (255 N. Y. 307, 314) it was held that it was within the competency of a labor union to announce to the world its thought that another labor union was not dealing with its members in such a way as to promote the interests of organized labor and to persuade by peaceful picketing the employers of such labor to employ the members of the rival union.

In Steinkritz Amusement Corp. v. Kaplan (257 N. Y. 294), which was a companion case to these now before us, no opinion was written on this point. The court was divided. A maj ority held that a broad injunction restraining not only picketing but other acts as well should be modified by striking out the restraining provisions except as to picketing. By abuse of picketing, it was held that the union had forfeited the right to picket. Cardozo, Ch. J., and Lehman, J., were of the opinion that the injunction should be limited to picketing “ with an untruthful sign.” The injunction was greatly modified although the contract between employer and rival union existed. It was suggested in support of the injunction, as has been held in the cases now before the court, that the right of the defendant peacefully and truthfully to declare to the world that the business practices of the rival union were unjust and that theatres which patronized that union ought not to be patronized by the public had been lost because the plaintiff had a year’s contract with the rival union. The answer was that the public had no contract with the employer; that the union addressed itself to the public and that no one was asked to break any contract. The collateral result of the attempted persuasion of the public not to patronize the theatre while it employed the members of the rival union might make it unprofitable for the employer to go on with the contract, but to state fairly and truly to the public that the conduct of the employer is socially objectionable to a labor union is no persuasion to break a contract. This court has never undertaken to restrain such conduct, although it has had the opportunity. It has been at pains to avoid doing so. The cases cited supra disclose independence of the Hitchman doctrine and of the cases which follow and enlarge upon that doctrine. We would be departing from established precedents if we upheld this injunction. We would thereby give to one labor union an advantage over another by prohibiting the use of peaceful and honest persuasion in matters of economic and social rivalry. This might strike a death blow to legitimate labor activities. It is not within the province of the courts to restrain conduct which is within the allowable area of economic conflict.

The judgments should be reversed and the complaint dismissed in each case, with costs in all courts.