Petition for a Writ of Certiorari — Rath v. Crosby

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[ 3 | JUN 27 1940

CHARLES ELMORE CROPLEY

CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1940 : oe

No. 187

FRANK G. RATH, Inpivipvatity anp as PRESIDENT OF

Hore. anp Resraurant “impLoyEEs’ INTERNATIONAL AL-

tiance, Cooks’ Locat Union No. 167, 87 Ax.,

Petitioners,

vs.

PEARL E. CROSBY.

PETITION FOR WRIT OF CERTIORARI TO THE

| SUPREME COURT OF THE STATE OF OHIO AND

BRIEF IN SULFUR THEREOF. —

~~, Josppo A. Papway,

Martin BE. Buum, ° .

Leonarp J. Stern,

Counsel for Petitioners.

INDEX.

Supsect Inpex.

Page

Petition for writ of certiorari. ....-..... 2.0.5... 1

Summary statement of matter involved........ 2

Statement as to jurisdiction........... Ser) 3

The Geese WTONNNNG se ae 5

Reasons relied on for the allowance of the writ. . 5

ise iak irexes Kaas a4 6

Brief 16 support of petiton . ee. 7

Opinion of the court below.................... 7

UN anor of Gis Gioia wad vik ON 7

Be ee eee 8

Binion GE-ae OREO... 2 10

eens OE ONTOS. Ls ee a ea 10

MI oe aaa ha ee Aaa es 11

I. Freedom of speech guaranteed by the

CII 5S Skies cee as 11

Il. A legitimate trade dispute exists be-

tween the employer and labor unions. 13

III. Employer’s claims cannot defeat peti-

tioners’ right of free speech ........ 16

Summary and conclusion..................... 20

TaBLE or Cases CITED.

American Federation of Labor v. Swing, 22 N. E.

OY SNE oo ois wo onree eke Bese eae ye ena 5

American Steel Foundries v. Tri-City Trade Council,

Oe ee Oe WO ae Ce aa athlete Nace wie boca yg 5, 14

Apex Hosiery Co. v. William Leader et al., — U.S.

son GM DEMG D1, EOS se eines et ese staan 14

Boiler & Engine Co. v. Benner, 14 Ohio Dee. 357... .... 1§

Borderland Coal Co. v. Gasway, 278 Fed. 56.......... 18

C2 0. v. Bdewe; SS Ga Ch. See. oo. sik. 11,13

Carlson v. California, 84 L. Ed. 668............. 4, 5, 6, 12

Chicago R.1. P. R. R. v. Perry, 259 U.S. 548........ 9

Cinderella Theatre v. Sign Writers’ Union, 6 Fed.

MMR CA, weet setae sie mn nea heise 19

Cissna v. Tennessee, 246 U.S. 289................. 9

Cumberland Coal Co. v. Board of Revision, 284 U.S.

Bec aioe, Uae Renae owt enl de iee

DeJonge v. Oregon, 299 U. 8. 353

—8625

il INDEX

Exchange Bakery Co. v. Rifkin, 245 N. Y. 260....... 15

Fenske Brothers v. Upholsterers’ Union, 358 Ill. 25),

"aa sei ree ee ee are 18

Grannis v. Ordean, 234 U.S. 385..........--------- 9

Great Northern Ry. v. Washington, 300 U.S. 154... 14

Henrici Co. v. Alexander, 198 Ill. App. 568........-. 18

Herndon v. Lowry, 301 U.S. 242........---------- 13

Hill v. Smith, 260 U. S. 592...........---- 2-0 )

Home Insurance Co. v. Dick, 281 U. 8. 397.......... 9

Iron Molders Union v. Allis Chalmers Co., 166 Fed.

ee alee Ene armies Sine ws VR RR AES 17

Johnson v. Zerbst, 304 U.S. 458. ......-----------: 19

Kentucky Diamond Coal Co. v. Mine Workers, 188

8g 2 Sa rere ee 19

Mallinckrodt v. State of Mississippi, 238 U.S. 41.... 9

Manhattan Life Insurance Co. v. Cohen, 243 U. S.

MR rea a oy St ieee 4,9

Meadowmoor Dairies, Inc., v. Mik Wagon Drivers’

Union, 371 Ill. 377, 21 N. E. (2d) 308............- 3, 5,8

Near v. Minnesota, 283 U. S. 697..........-----+-- 4

Norris v. Alabama, 294 U. S. 587..........-------: 13

People v. Young, 188 In. App. 208.........--.-.--- 18

People ex rel. Bryant v. Zimmerman, 278 U.S. 63.. 9

S. A. Clarke Lunch Co. v. Waiters’ Local, 22 Ohio

ee 15

Schenk v. United States, 249 U.S. 47.............-- 13

Schneider v. State, 308 U.S. 147..........-. +--+: 4,11, 13

Senn v. Tile Layers, 301 U. S. 468............- 4, 5, 11, 13

State ex rel. Anderson v. Brand, 303 U.8.95....... 9

Thornhill v. Alabama, 84 L. Ed. 659......... . 4,5, 6, 11, 15

Warner v. Lilly Co., 265 U.S. 526.........-.------- 18

Wise Shoe Co. v. Lowenthal, 266 N. Y. 264, 194 N. E.

ee EU AB AEE Ib me eS Ae Ah Rae nie S Od 18

Oruer AvTHorRITIES CITED.

Constitution of the United States, XIVth Amend-

ES BOP Baa ee ed me Pats eRe See ee EEE Cn, 3, 5, 9-12

Frankfurter and Greene, ‘‘The Labor Injunction’’, p.

ON ete CU ce ac nig Go x a ash So EN LA SS 17

41 Harvard Law Review, 754 ...........---.--+-:: 19

U.S. C. A., Title 28, Sec. 344(b), J udicial Code, Sec.

I oie a we ee cao og ee tM

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1940

No. 187

FRANK G. RATH, InprvipvaLtty anp As PRESIDENT OF

Hore, anp Restaurant Empuoyess’ INTERNATIONAL AL-

LIANCE, Cooks’ Locat Union No. 167, ET AL.,

Petitioners,

vs.

PEARL E. CROSBY.

PETITION FOR WRIT OF CERTIORARI.

To the Honorable The Justices of The Supreme Court of the

United States:

Frank G. Rath, individually and as President of Hotel

and Restaurant Employees’ International Alliance, Cooks’

Local Union No. 167, et al., respectfully petition for a writ

of certiorari to review a decision of the Supreme Court of

Ohio, 136 Ohio St. 352, rendered March 6, 1940, reversing

a decree of the Ohio Court of Appeals and affirming a de-

cree of the Court of Common Pleas of Cuyahoga County.

lm

LIEW heed” 4s & Tek: Tae eee a

A.

Summary Statement of Matter Involved.

Frank G. Rath and the other petitioners are members

and officers of the Joint Executive Board of the Hotel and

Restaurant Employees’ International Alliance, affiliated

with the American Federation of Labor. This association is

composed of members of Waiters’ Union, Local No. 106,

Waitresses’ Union, Local No. 107, and Cooks’ Union, Local

No. 167 (R. 177). The membership is composed entirely

of citizens residing and working in the City of Cleveland,

Ohio, and its environs (R. 342, 354-355, 397).

Pearl E. Crosby is the owner and operator of a restaurant

in the City of Cleveland, Ohio (R. 280-281).

In August, 1937, two representatives of the petitioners

called upon Mrs. Pearl E. Crosby in an effort to discuss with

her the employment of members of the petitioners’ labor

union in her place of business. This she refused to do (R.

397, 398, 399, 400).

On October 4, 1937, the petitioners proceeded to patrol

in front of employer’s restaurant, carrying banners con-

taining the following language:

‘‘Crosby’s Restaurant unfair to organized labor.

Please do not patronize. Cooks’ and Waitresses’

Union, affiliated with A. F. of L.’’ (R. 6).

On October 11, 1937, a temporary consent decree was

entered into, permitting two pickets in front and one in the

rear of plaintiff’s place of business (R. 7).

On January 27, 1938, the Court of Common Pleas of

Cuyahoga County heard the case on its merits and issued

an injunction prohibiting picketing (R. 20-21). The

case was heard de novo by the Ohio Court of Appeals, and

the decree was reversed so as to permit peaceful picketing

—e —

(R. 421-423). The Supreme Court of Ohio sustained a mo-

tion to certify filed by the appellee, Crosby, herein and by

a majority opinion sustained the Trial court’s decree pro-

hibiting picketing in any manner whatsoever.

3

Your petitioners resisted the claim of the employer for an

injunction on the ground that the decree of the Trial court,

sustained by the Court of Last Resort in Ohio, was re-

pugnant to the XIVth Amendment to the Constitution of the

United States, in that it deprived petitioners of the right of

freedom of speech and assemblage. The court, by entering

the decree, deprived petitioners of the protection of the :

due-process clause of said amendment. ‘

B.

Statement as to Jurisdiction.

Jurisdiction is invoked under Title 28, U. S. C. A. See-

tion 344 (b) (Judicial Code, Section 237 (b) as amended

by the Act of February 13, 1925.)

The decree of the Supreme Court of Ohio was rendered

March 6, 1940 (R. 445). Application for rehearing, timely

filed, was denied March 27, 1940 (R. 446).

In sustaining the decree of the trial court, the Supreme

Court of Ohio was divided 5 to 2. The majority premised

its conclusion on the ground that no ‘‘legitimate trade dis-

pute’’ existed, because there was no quarrel between plain-

tiff and plaintiff’s employees. Accordingly, with respect

to the Federal question of free speech, it adopted the fol-

lowing language from the case of Meadowmoor Dairies,

Inc. v. Milk Wagon Drivers’ Union, 371 Ill. 377, 21 N. E.

(2d) 308:

‘*The right to contract, the right to do business, and

the right to labor freely and without restraint, are all

2m

4

constitutional rights, equally sacred, and the privilege

of free speech cannot be used to the exclusion of other

constitutional rights, nor as an excuse for unlawful ac-

tivities in interference with another’s business * * *”?

(Emphasis supplied) (R. 433).

Judge Day dissented from the majority specifically on the

Federal question. He said:

‘‘Peaceful picketing, by carrying placards, signs, dis-

tribution of literature, or by oral speech, is not, in and

of itself, unlawful. It is a lawful right emanating from

and protected by the constitutional provision govern-

ing the exercise of free speech”’ (R. 434).

Similarly, Judge Zimmerman, in his dissenting opinion,

said:

‘“The opinion has also been advanced that an injunc-

tion denying the members of a labor union the right to

apprise the public of the true facts in relation to an

employer of labor by means of ‘peaceful picketing’,

* * * would constitute an infringement of the con-

stitutional guarantee of free speech. Senn v. Tile

Layers’ Protective Union, supra, (301 U. S. 468, 478,

81 L. Ed. 1229, 1236, 57 Supreme Ct. 857) * * ey

(R. 439).

The following cases are believed to sustain jurisdiction:

Thornhill v. Alabama, 84 L. Ed. (Adv.) 659 ;

Carlson v. California, 84 L. Ed. (Adv.) 668;

Manhattan Life Insurance Co. v. Cohen, 243 U. 8. 123,

134;

Cumberland Coal Co. v. Board of Revision, 284 U. S.

23, 24;

Schneider v. New Jersey, 308 U. S. 147, and cases

therein cited in footnote 8;

Near v. Minnesota, 283 U. S. 697.

C.

The Question Presented.

Does the decree of the Supreme Court of Ohio, sustaining

the decree of the trial court, which forbids al! picketing,

peaceful or otherwise, abridge the right of freedom of

speech and of the press guaranteed by the XIVth Amend-

ment to the United States Constitution?

D.

Reasons Relied On for the Allowance of the Writ.

The grounds relied on by the petitioners for the allowance

of the writ are:

1. The decision of the Supreme Court of Ohio is in direct

conflict with the decisions of this Court in Thornhill v. Ala-

bama, 84 L. Ed. (Adv.) 659; Carlson v. California, 84 L. Ed.

(Adv.) 668; Senn v. Tile Layers’ Protective Union, 301

U. S. 468; American Steel Foundries v. Tri-City Trade

Council, 257 U.S. 186.

2. The precise question of whether the guarantee of free

speech, under the XIVth Amendment to the Federal Con-

stitution, precludes a State Equity Court from enjoining

peaceful picketing by members of a labor union has not

heretofore been decided by this Court. The same question

has been raised by the decisions of the Illinois Supreme

Court in American Federation of Labor v. Swing, 22 N. &.

(2d) 857, and Milk Wagon Drivers’ Union of Chicago, Local

753, et al. v. Meadowmoor Dairies, Inc., 371 Ill. 377, 21 N. FE.

(2d) 308. This Court granted certiorari to review those

cases on May 20, 1940, and June 3, 1940, respectively.

6

3. The case involves in its essential features the question

of whether a State court may, by the simple device of finding

that the facts in a particular case do not amount to a ‘“legiti-

mate trade dispute’, circumvent the protection of the

XIVth Amendment, as pronounced in Thornhill v. Alabama,

84 L. Ed. (Adv.) 659, and Carlson v. California, 84 L. Ed.

(Adv.) 668. Obviously, therefore, a decision on this ques-

tion is of transcendent and vital importance to all labor

organizations throughout the country. The decision of the

Supreme Court of Ohio precipitates an anomalous situation

wherein courts could, in the absence of statutes, impose

restrictions on labor unions, which, under the doctrine of

the Thornhill and Carlson cases, they are, in spite of exist-

ing statutes, constitutionally forbidden to impose.

Prayer for Writ.

Wuererore your petitioners pray that a writ of certiorari

be issued out of and under the seal of this Honorable

Court, directed to the Clerk of the Supreme Court of Ohio,

commanding that court to certify and send to this Court for

review and determination, on a day certain to be therein

named, a full and complete transcript of the record and all

proceedings in the case numbered and entitled No. 27639,

Crosby, Appellant v. Rath et al., Appellees, and that the

decree of the Supreme Court of Ohio may be reviewed br

this Honorable Court and that your petitioner may hav

such other and further relief in the premises as to thi-

Honorable Court may seem meet and just; and your peti-

tioner will ever pray.

JosepH A. Papway,

Martin E. Biv,

LeonarD J. STERN,

Counsel for Petitioners.