Wood v. O'Grady

Dye, J. In this appeal we deal with the propriety oran injunction issued by the court below to restrain peaceful organizational picketing because such picketing included “ an unlawful objective * * * by exerting economic pressure ”. Section 876-a of the Civil Practice Act (L. 1935, ch. 477) declares, as a matter of State policy, that injunctions may not issue “ in any case involving or growing out of a labor dispute ” except after a hearing and after a finding of fact in the language of the statute that ‘ ‘ unlawful acts have been * * * threatened or committed ” which “ will be executed or continued unless restrained ” (subd. 1, par. [a]) causing “ substantial and irreparable injury to complainant’s property ” (subd. 1, par. [b]). Even then, the restraint must not interfere with certain recognized rights, particularly the publication of the facts in any dispute by picketing not involving “ fraud, violence or breach of the peace ” (subd. 1, par. [f], cl. [5]). The Legislature, in carefully chosen language, defined a labor dispute as one between “ persons who are engaged in the same industry, trade, craft or occupation” (subd. 10, pars, [a], [b]) which “ includes any controversy concerning terms and conditions of employment * * * or representation * * * or concerning employment relations, or any other controversy arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the relation of employer and employee ” (subd. 10, par. [c]). The labor policy thus embedded in our statutory law stated nothing new or revolutionary. Over a long period of years this court has painstakingly evolved a pattern of decisional law repudiating the use of an injunction to restrain peaceful picketing in labor disputes which is too well known to warrant repeating here (National Protective Assn. v. Cumming, 170 N. Y. 315; Interborough R. T. Co. v. Lavin, 247 N. Y. 65, 74; Stillwell Theatre, Inc., v. Kaplan, 259 N. Y. 405; J. H. & S. Theatres, Inc., v. Fay, 260 N. Y. 315; Nann v. Raimist, 255 N. Y. 307; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260). In such a setting, it naturally followed that when the constitutionality of section 876-a was challenged, it would be upheld (Goldfinger v. Feintuch, 276 N. Y. 281) and that it would be applied, even though the disputants do not stand in relation of - employer and employee (May’s Furs & Ready-to-Wear, Inc., v. — 536 — Bauer, 282 N. Y. 331), and that if the acts of the unions “ have any reasonable connection with wages, hours of employment, health, safety, the right of collective bargaining, or any other condition of employment or for the protection from labor abuses, then the acts are justified ” (Opera on Tour, Inc., v. Weber, 285 N. Y. 348, 355). The long history of controversial labor relations in this State is replete with instances of inconvenience to the employer, but it does not follow that at this late date such a consequence without more can be labeled “ an unlawful objective ”. As we view this record, the incidents complained of do not constitute an unlawful objective but at most amount to no more than the consequences frequently accompanying peaceful picketing in a labor dispute. ' Briefly stated, the evidence establishes the plaintiff as the sole licensee and proprietor of a retail liquor store doing business under the name and style of 53rd Street Subway Liquor Store located at 135 East 53rd Street, New York City; that he employs, among others, three sales clerks. The defendant, Wine and Liquor Store Employees Union, Local 122, is an affiliate of the American Federation of Labor and represents, as bargaining agent, wine and liquor store clerks in New York City. For convenience, the plaintiff and defendant will hereinafter be referred to as “ employer ” and “ union ” respectively. Beginning in October, 1951, the union undertook a campaign to enlist nonunion liquor store clerks into its membership which, we may assume, was preparatory to representing them as bargaining agent in negotiating with employers for employment contracts. Preliminary to commencement of solicitation, union representatives went to the employer, as was their custom, and advised him of the proposed organization campaign and their intention to solicit his sales clerks to join their union. They did not at that time or any other time present him with a collective contract or demand that he sign such a contract with them. The employer not only rejected the proposal for a union shop, but stated affirmatively that he was not interested in the union and if any of his workers signed up to join “ they are not going to work in this store ” and “ he would put them out on the street with you ”. Under all the circumstances, it is clear that a statutory labor dispute is present here. — 537 — Picketing commenced October 20, 1951, the picket line consisting of one or two pickets stationed in front of the employer’s store and carrying a placard bearing the legend: “ The employees of this store are non-union. Please do not patronize this non-union store. We are members of the American Federation of Labor, Local 122 of A. F. L.” The truthfulness of this legend is not challenged. The record is barren of any instance of violence or disorder on the part of the pickets but does contain testimony that the employer frequently indulged in loud and abusive talk reflecting on the integrity of the union and the individual pickets; that he broomed the sidewalk in such a way as to scatter the sweepings around the feet of the pickets and, with an upward gesture toward the pickets, was heard to say in a loud voice to be overheard by persons in the vicinity, “ I have to get rid of this filth ”. There is other evidence not denied by Wood that the,employees were coerced with threats of dismissal into not joining the union. Hone of the workers joined, although one at least indicated a favorable attitude but refrained, due to the fear of dismissal. Implicit in the decision at Special Term is the finding that by such comment and attitude the employer attempted “ directly or indirectly, to interfere with, restrain or coerce employees in the exercise of [their] rights ” (Labor Law, §§ 703-704), which, under all the circumstances of this case was enough to warrant that court in denying an injunction. To justify the contention that the picketing was in fact directed against him, the employer adduced testimony to show that wholesale deliveries of merchandise to his store were cut off because their truck drivers refused to cross the picket line with the result that the employer had to get his merchandise from the wholesaler or warehouse himself which, in any view, amounts to no more than personal inconvenience, for it was readily admitted that at all times the shelves of his store were “ loaded ”. Furthermore, no proof was offered showing that the employer’s customers were in any way or at any time intimidated, molested or interfered with, nor did the employer attempt to prove any loss of patronage or business profits. Such showing fails to establish the “ substantial and irreparable injury to complainant’s property ” essential to justify the issuance of an injunction (Civ. Prac. Act, § 876-a, subd. 1, par. [b] ; Florsheim Shoe — 538 — Store Co. v. Retail Shoe Salesmen’s Union, 288 N. Y. 188; Busch Jewelry Co. v. United Retail Employees’ Union, 281 N. Y. 150; Remington Rand, Inc., v. Crofoot, 279 N. Y. 635). It should be mentioned that for a few days during March, 1953, the union picketed the Reilly Storage Warehouse Company located at 149th Street and Third Avenue where liquor consigned to the employer was stored. When the pickets were withdrawn, for a short time at least, lookouts were posted, but all such activities were voluntarily discontinued long before commencement of the within suit. Nothing was shown to indicate that the union intended to resume picketing at the warehouse in the future. This affords no evidentiary basis for restraining by injunctive means the picketing being peacefully conducted in front of the employer’s retail store (cf. Dinny & Robbins, Inc., v. Davis, 290 N. Y. 101; May’s Furs & Ready-to-Wear, Inc., v. Bauer, 282 N. Y. 331, supra). Prior to the commencement of the within suit and on or about October 30,1951, the employer filed a petition with the New York State Labor Relations Board (State Labor Relations Act [Labor Law, art. 20], § 705) seeking an election to determine whether the union was an authorized bargaining agent. After a hearing, the petition was dismissed for the reason that (1) the union had not claimed to and did not represent the workers and had never demanded of or submitted a collective contract to the employer (cf. Matter of Lombardi v. Cooks, Countermen, Soda Dispensers & Assistants Union, 14 S. L. R. B. No. 100; Matter of Minsang Wet Wash Co., 14 S. L. R. B. No. 130), and (2) 'that the union was merely engaged in an organizational activity (Matter of Wood v. Wine & Liq. Store Employees Union, 15 S. L. R. B. No. 23, Case No. SEE-20870). Following such dismissal, the employer commenced an action for injunctive relief to restrain the picketing altogether. This too resulted in a dismissal (Wood v. O’Grady, N. Y. L. J., April 28, 1952, p. 1682, col. 2). The Special Term, in dismissing the within complaint on the merits, made findings of fact to support its conclusion that the union’s picketing in front of plaintiff’s store was peaceful and unaccompanied by violence and was for a lawful purpose, namely, " for the purpose of organizing the employees of the plaintiff’s store, and to call the public’s attention to the fact that the plaintiff’s is a non-union store, and to ask the public to — 539 — patronize union stores ”. The Special Term pointed out that, “ Assuming that a labor dispute is not involved and that therefore the complaint is not required to comply with the provisions of section 876-a of the Civil Practice Act, plaintiff nevertheless has failed to establish that he is entitled to an injunction restraining peaceful picketing. ’ ’ Upon appeal to the Appellate Division, First Judicial Department, that court unanimously reversed, making new findings to support its conclusion of law that the picketing complained of is “ for an unlawful objective in that it seeks to coerce the employer into signing a contract with Respondent union by exerting economic pressure against the employer to force him to violate the State Labor Relations Act by compelling the employees to join Respondent union against their will or, in the alternative, to drive plaintiff out of business ” which it deemed violative of sections 703-704 of the Labor Law in that it was forcing the employer to contract “ with a union that does not represent any of his employees ”. (Wood v. O’Grady, 283 App. Div. 83, 85.) Such findings and conclusions are contrary to the overwhelming weight of the evidence. As we have already said, the evidence convincingly establishes that at no time did the union claim to this employer or to any one else for that matter — that it collectively represented his workers and at no time did it demand a collective contract for the very good reason that none of his employees had joined their union and none were members at that time. Notwithstanding that state of the record, the Appellate Division nonetheless cited as authority Goodwins, Inc., v. Hagedorn (303 N. Y. 300); Metropolis Country Club v. Lewis (202 Misc. 624, affd. 280 App. Div. 816); Haber & Fink v. “Jones” (277 App. Div. 176); Plastic Calendering Corp. v. Spilberg (121 N. Y. S. 2d 297, 304). An examination of those cases discloses their inapplicability to the present situation. In Goodwins (supra), for instance, we were not dealing with peaceful picketing for purposes of organization (cf. May’s Furs & Ready-to-Wear, Inc., v. Bauer, 282 N. Y. 331, supra; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260, supra), but rather with picketing to compel employer recognition as collective bargaining agent of its workers, despite the fact that a certification proceeding on that very issue was pending before the National Labor Relations Board to deter — 540 — mine whether the picketing union or a rival union should be certified, a quite different situation. Metropolis (supra) involved untruthful representation while in Haber & Fink (supra) there was violence in an attempt to nullify an election resulting in a vote of “ no union ’ ’. In Plastic Calendering Corp. v. Spilberg (supra), it was conceded by both sides that the purpose of the picketing was to obtain recognition of a local union as the employees’ collective bargaining agent without certification by the National Labor Relations Board. However, there is nothing in that group of cases or the statute authorizing the use of an injunction in peaceful picketing for avowedly organizational purposes. It is only when the picketing is unlawful that it may properly be restrained (cf. Building Service Union v. Gazzam, 339 U. S. 532; Plumbers Union v. Graham, 345 U. S. 192; Goodwins, Inc., v. Hagedorn, supra). It is axiomatic that we may not, under the guise of interpretation, import into a statute conditions or criteria which the Legislature has been careful to omit. By the same token, we may not review a record in such a way as to bypass the clear meaning and intent of the Legislature. If the Legislature wishes to sound the death knell of peaceful organizational picketing by repealing section 876-a as a declaration of State policy, or by amending it, so as to permit the restraint of peaceful organizational picketing as unlawful because ‘ ‘ exerting economic pressure ’ ’ in addition to that presently defined as “ substantial and irreparable injury to complainant’s property ” it, of course, may do so but we may not. In the court below much stress was laid on the length of time the within picketing had continued without success, as being in the nature of unlawful economic coercion. The test of illegality, as we see it, is not whether any particular picketing has “ gone on long enough ” but rather whether such picketing is being lawfully conducted in the furtherance of union interests in a statutory labor dispute. If picketing is a legally protected right one day, it continues as such into the next. Section 876-a prescribes no time limit. The judgment of the Appellate Division should be reversed and that of Special Term reinstated, with costs in this court and in the Appellate Division.