Petition for a Writ of Certiorari — Weber v. Opera on Tour, Inc.

a\\- Supreme Court of the United States

OctosER TERM, 1941.

No. 2.95

JOSEPH N. WEBER, as President of the American Federation

of Musicians, and Grorcs E. Browns, as President of

International Alliance of Theatrical Stage Employees

& Moving Picture Operators of the United States and

Canada,

Petitioners,

PB

OprRa ON Tour, INC.,

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

and BRIEF IN SUPPORT THEREOF

WILLIAM Macy,

Attorney for Petitioners.

INDEX

PAGE

Petition for Writ of Certiorari

Summary Statement of Matter Involved ............ I

Jurisdiction of this Court ......cccccccccccseseves 4

Questions Presented 22... .ccccccccscvvccseseccocns 8

Reasons Relied on for Allowance of Writ .......... i)

PRAYER cnc cca ccccencgrdveeseeee bees Celene ad cease ll

Brief in Support of Petition

Opinions of the Courts Below... ........00.+0eeeees 13

SL © oak ono 05.05 Aas Oe FREE aR ORE ERE O ES 13

The Federal Questions Presented............ iain ite 14

Specification of Errors..........0. cece eee eee eee 14

Argument

The injunction violates the constitutional

guarantee of freedom of speech and assembly...... 15

The judgment in this case is in direct

conflict with the latest adjudications

Of Chin COUart «6 6 6 6c dicd i's Stree cide CUR ee oi ee 20

The Federal question involved was necessarily

passed upon by the New York Court of Appeals.... 20

The blanket injunction violates the

Fourteenth Amendment .............+. aire ety ey aces 21

TABLE OF CASESCITED

American Federation of Labor v. Swing,

Re ie. SrNbOM RE A ian ks. 7, 8, 9, 10, 11,

16, 17, 18, 20, 22

Atlantic, etc., R. R. Co. v. Mims, 242 U. 8, 582......-.-. 19

Bakery & Pastry Drivers v. Wohl, No. 901,

October Term, 1940, decided June 2, 1941...... 9, 11,

Bayer vy. Brotherhood of Painters, 108 N. J. Eq. 257.....

Carlson v. California, 310 U. S. 106..............

asehy ©. Mamene, See UO. GB. BOS. on. ccscccccccccces as

a Bs lg EE A bokeh a caine deve viva

Herndon v. Lowry, 301 U. 8S. 242........... ccc cece eens

Milk Wagon Drivers’ Union v. Meadow Moor

po a ee. er eee 9, 18,

Nat’l Prot. Ass’n v. Cumming, 170 N. Y. 315............ ‘

Near v. Minnesota, 283 U.S. 697............0c ce eeees 9,

New Negro Alliance v. Grocery Company,

. Rie SS eee Pe er Ce Per Te ee 5)

Deena ©. Mee, Be UO BG 6 noone cccincccccncenss 19

Rutan v. Loca] Union, 97 N. J. Eq. 77............06.. 21

Schneider v. State, 308 U.S. 147........... cc eee eens 17

Senn v. Tile Layers’ Union, 301 U. 8. 468...... 6, 9, 18, 20

Thornhill vy. Alabama, 310 U. S. 88............ c+ 6, 9, 2

ret F. COS Fee. 8. TG x ong oo G56 e oaks Sew 9

U. S. v. Brotherhood of Carpenters ete.,

312 U. &,. Decided Apeth S TAL. . 1:0 02 cccncvsiesees 10

U.S. v. Caroline Products Company, 304 U.S. 144...... 17

Oy, Th B. I, Ge GW. BBs oc icc ccwccccccacs 10, 16

U. S. v. International Hod Carriers’ etc.,

BES UT; Bi me eae TF, FI sein ccc cece ce ccccns 10

Wilson-Adams Co. v. Pearce, 264 N. Y. 521............ 21

Wohl v. Bakery & Pastry Drivers’ Union,

Na: a BENS biases WEVA cakes kana) 7, 10, 15, 16, 20

STATVTIES <-TéED

28 V-S-C-A. DBL TVDIC+ AL Coff S&c. 23) @/

xi? 7a AMENG MENT Jo Ce OST UT CT ener

“

a

Supreme Court of the United States

OcTOBER TERM, 1941.

JospepH N. Wesker, as President of the American Federation

of Musicians, and Grorcr E. Browne, as President of

International Alliance of Theatrical Stage Employees

& Moving Picture Operators of the United States and

Canada,

Petitioners,

—v8.—

OPERA ON Tour, INC.,

Respondent.

-

—&

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

Yo the Honorable Harlan Fiske Stone, Chief Justice, and

the Associate Justices of the Supreme Court of the

United States:

The petition of Joseph N. Weber, as President of the

American Federation of Musicians, and George E. Browne,

as President of International Alliance of Theatrical Stage

Employees & Moving Picture Operators of the United States

and Canada, respectfully shows unto this Honorable Court:

Summary Statement of Matter Involved.

1. This case does not concern private or individual rights,

but is of far greater significance, as the opening sentence of

the prevailing opinion in the New York Court of Appeals

says (285 N. Y. 548, 352):

2

“The question presented for decision is far reaching

and of vital importance to the best interests of unions,

of employees, of employers and of the general public.”

2. Petitioners are the musicians’ union with a member-

ship of about 128,000 (R. 551), and the stage hands’ union

with a membership of between 50,000 and 60,000 (R. 490),

both bona fide labor organizations affiliated with the Amer-

ican Federation of Labor. The members of both organiza-

tions are united in interest, being engaged in the same trade

or industry—the amusement industry—working in the same

places and for the same employers (R. 769).

3. Respondent was organized as a New York corporation

in January, 1938 to engage in the general amusement busi-

ness (R. 806), but confined its activities to the stage pres-

entation of the opera “Faust”, travelling from city to city

outside of New York State, using live singers, but using a

new and novel scheme of recorded or mechanized music from

records made in England, in substitution for and in competi-

tion with live orchestras, thus creating the danger of further

serious inroads on the already greatly depleted employment

opportunities of musicians (R. 570, 595, 603, 604), theirs be-

ing the only industry in which their own product was being

used to “destroy ourselves” (R. 564).

4. At the request of the musicians’ union in its combat

against this further encroachment on the employment and

livelihood of its members, the stage hands’ union withdrew

its members from respondent’s service.

5. The New York Supreme Court thereupon issued a

permanent injunction (R. 27), which, in violation of the

XIVth Amendment to the U. 8S. Constitution, in most sweep-

ing terms not alone prohibits a strike by the members of

both labor organizations at the instance of either one of

—

3

them, but in effect prohibits any picketing, or causing, pro-

curing or advising anyone—even musicians whom respon-

dent says it does not employ or need—(R. 6, 15), by any

device or in any manner whatsoever, to leave respondent’s

employ or not to enter its employ, on the ground or for

the reason that respondent uses mechanized music.

The Appellate Division of the New York Supreme Court,

by a divided court of 3 to 2, reversed this judgment and

dismissed the complaint. The New York Court of Appeals,

by a divided court of 4 to 2, reversed the Appellate Division

and affirmed the Special Term judgment.

The effect of this judgment is to permanently enjoin both

unions, their members and representatives from in any

manner or by any device whatsoever, inducing, causing or

procuring any person or persons not to work for respondent

—irrespective of whether that is brought about by mere re- )

quest, peaceful persuasion and without force or intimida-

tion of any kind whatsoever. In effect, it prohibits strikes,

peaceful picketing, freedom of speech and assembly, and

denies to petitioners equal protection of the laws contrary

to the XIVth Amendment to the United States Constitution.

Respondent may use mechanized music to dispense with

musicians’ services, but musicians may not protect their

employment or livelihood by peacefully opposing the use of

mechanized music.

6. As Chief Judge Lehman in his dissenting opinion in

the Court of Appeals says (285 N. Y. 3638, 365) :

“There is no substantial controversy about the facts

* * * The evidence establishes beyond possible contra-

diction, and the Appellate Division has found, that ‘the

actions of the defendants were all in good faith, without

malice or ill-will, with primary or direct intent to in-

jure or destroy plaintiff's business, without fraud, force,

coercion, or intimidation of any kind, in the honest

4

belief that such actions were necessary for the protec-

tion of the employment opportunities of their mem-

bers, in furtherance of their economic interest in the

continued employment of those in allied trades, and

there was no effort on the part of the plaintiff to dis-

pute the good faith of the defendants’.”

Respondent’s officers so testified (R. 89, 140, 423, 424,

432), and the Trial Court so stated (R. 462, 721).

Statement as to Jurisdiction.

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

344 (b) (Judicial Code, Section 237 (b) as amended by the

Act of February 138, 1925).

The decision of the New York Court of Appeals, by a divi-

sion of 4 to 2, was rendered April 24, 1941. Pursuant to

the New York practice and procedure, this was made the

judgment of the Supreme Court, New York County, by order

dated June 9th, 1941, and judgment thereon was entered

in the Supreme Court, New York County on June 10th,

1941. Application for a rehearing, timely filed, was denied

by the Court of Appeals on June 5th, 1941. The Court of

Appeals is the highest Court in New York State in which

a decision could be had.

Petitioners persistently throughout the trial and on ap-

peal urged and insisted:

1. Upon the right to strike—refusal to work—and to

freely and peacefully solicit, persuade and request others

to similarly help them in protective measures against

the use of mechanized music (R. 65, 115).

5

2. That the case involved a labor dispute under

Section 876-a of the New York Civil Practice Act, pro-

hibiting the injunction here issued ;

3. That the case presented merely an economic prob-

lem which was for the Legislature and not for the

Courts.

These questions were extensively argued throughout the

trial as well as on petitioners’ motion to dismiss the com-

plaint at the commencement of the trial (R. 67) and at the

close of plaintiff's case (R. 546). Respondent’s counsel an-

swered by saying (R. 122), that petitioners’ acts were not

protected either by

“the common law nor the 14th amendment.”

There was thus specifically drawn in question, in the case

at bar, the constitutional guarantee of free speech.

Respondent again, at page 11 of its brief before the Appel-

late Division, similarly urged, quoting from Dorchy v. Kan-

sas, 272 U.S. 306, that the XIVth Amendment did not apply,

that the right to carry on a business—be it called a liberty

or property—has value and that to interfere with this right

without just cause is unlawful, Following up its argument

that the XIVth Amendment afforded petitioners no pro-

tection for their action, respondent, at page 35 of its brief

in the Appellate Division, and at page 3 of its brief in the

Court of Appeals, reiterated its position that petitioners’

actions were so far outside the allowable area of economic

conflict, that the blanket injunction in this case, no matter

how sweeping in its terms, was proper.

Petitioners, at page 30 of their brief in the Appellate

Division, cited New Negro Alliance v. Grocery Co., 303 U. 8.

552, quoting this court’s language, which sustains the right

to

6

“advertise and disseminate facts and information with

respect to terms and conditions of employment and

peacefully to persuade others to concur in their views

respecting an employer’s practices.”

Petitioners, at pages 63 and 64 of their same brief, made the

specific point that this injunction practically prevents free

discussion and the dissemination of facts.

Petitioners, in their brief to the Court of Appeals, dis-

cussed the sweeping character of this injunction, and cited:

At page 21, Senn v. Tile Layers’ Union, 301 U. S. 468,

482; and at page 35 of the same brief, Thornhill vy. Alabama,

310 U. 8S. 88, and Carlson vy. California, 310 U. 8S. 106, quot-

ing from the Thornhill case, at page 102:

“In the circumstances of our times, the dissemination

of information concerning the facts of a labor dispute

must be regarded as within the area of free discussion

that is granted by the Constitution.”

The court at Special Term (R. 1222) held that there was

no labor dispute, merely an economic question as to whether

in the march of time, plaintiff may lawfully use canned

music as a medium of conducting operas instead of employ-

ing live musicians, and therefore, held defendants’ acts

to be illegal.

The Court of Appeals in the prevailing opinion (285 N. Y.

348) concludes, at page 357:

“For a union to insist that machinery be discarded in

order that manual labor may take its place and thus

secure additional opportunity for employment is not a

lawful labor objective.”

ERPS PLIST RR

7

The opinion, however, at page 353, reiterated the right

to strike, and that:

“Individually and collectively, the members of any

union may at any time refuse to work, because ma-

chinery is employed or for any other reason, and may

strike in so doing. The members of these unions are

free to refuse to work if they object to working in the

presence of a machine.”

The Court of Appeals thus necessarily passed upon the

Federal question—the right to strike, the right of freedom

of speech by persuasion, solicitation and request, refusing

that right to petitioners because of the claimed illegality of

their labor objective.

This is further shown by that court’s decision in Wo/l v.

Bakery & Pastry Drivers’ Union, 284 N. Y. 788, decided De-

cember 31, 1940, after the case at bar was argued and while

it still was awaiting decision by that court. The prevailing

opinion of the Court of Appeals in this case, at page 357,

refers to the Wohl case, as follows:

“So, too, in a case just unanimously decided, we held

that it was an unlawful labor objective to attempt to

coerce a peddler employing no employees in his business

and making approximately thirty-two dollars a week,

to hire an employee at nine dollars a day for one day a

week.”

This court’s later reversal in the Wohl case, on June 2nd,

1941, No. 91, October Term 1940, on the authority of Amert-

can Federation of Labor vy, Swing, 312 U. 8. 321, sustains

the petitioners’ position on the Federal questions presented

by them.

Chief Judge Lehman, in his vigorous dissent in the case

at bar, 285 N. Y. page 360, says that this

8

“Ts an injunction against a strike and nothing else.”

and finds that the economic dispute involved is a labor dis-

pute for Legislative enactment and not for the courts, and

that this injunction is a constitutional violation. He says at

page 369:

“In my opinion, the assertion of authority by the

court in this case to enjoin the defendant union from

calling a strike of their members does not accord with

judicial decision and Legislative decree which this court

has said is valid under the Constitution.”

And at page 366:

*...in my opinion, the injunction issued by the court

at Special Term constitutes an intrusion by the court

into a field from which it is excluded under the laws of

the State as formulated in an unbroken line of judicial

decisions, by statute of the Legislature, and by the

Constitution.”

The Court of Appeals thus decided that it was not a

legal labor objective for a labor union to protect its members’

employment opportunities by combating the use of labor cur-

tailing devices or equipment. Therefore, the Court of

Appeals reinstated a permanent injunction which not alone

prohibits a strike in good faith, without malice, force or

violence, but also in effect prohibits picketing, freedom of

speech and free assembly guaranteed by the XIVth amend-

ment.

Questions Presented.

The following Federal questions, of immense importance

not alone to labor but to the general public, are presented by

this record :

1. Does the injunction restraining unions from strik-

ing—refusing to work—in protest against the introduc-

tion of mechanical devices which displace labor, violate

the constitutional guarantee of freedom of speech and

assembly, and equal protection of the laws?

2. Does the injunction by its unlimited scope infringe

the constitutional guarantee of free speech and as-

sembly?

These questions are not complicated by any local ques-

tion which would independently sustain the injunction. The

only other question raised at the trial by petitioners, was the

application of $876-a, New York Civil Practice Act. The

Court at Special Term, and the Court of Appeals, held that

section inapplicable, and it did not enter into the result

reached by the Court of Appeals.

Reasons Relied on for the Allowance of the Writ.

1. The decision of the New York Court of Appeals is

in direct conflict with the following decisions of this court:

American Federation of Labor v. Swing, 312 U. 8.

321;

Bakery & Pastry Drivers v. Wohl, No. 901, October

Term, 1940, decided June 2, 1941;

Carlson vy. California, 310 U. S. 106;

Hague v. C. I. 0., 307 U. 8. 496, 519;

Milk Wagon Drivers’ Union Vv. Meadow Moor,

Dairies, Inc., 312 U. 8. 287;

Near v. Minnesota, 283 U. 8. 697, 716;

Senn vy. Tile Layers’ Union, 301 U. 8. 468, 478;

Thornhill vy. Alabama, 310 U. 8. 88;

Truag V. Corrigan, 257 U. 8. 317, 327;

“a

U. 8S. vy. Brotherhood of Carpenters etc., 312 U. 8.

(Decided April 8, 1941) ;

U. 8. v. International Hod Carriers’ etc., 312 U. 8.

(Decided April 7, 1941) ;

U. 8. v. Hutcheson, 312 U. 8. 219.

| 10

The decision of the New York Court of Appeals which is

sought to be reviewed, is of historic importance.

That Court had made its decision in Wohl vy. Bakery &

Pastry Drivers on the ground (as explained in its reference

to the Wohl case in the case at bar) that the conceded

right to strike was nevertheless limited by the “legality”

of the object of the strike; that the Court had the right

to circumscribe, in accordance with its own notions of

economics, the precise area in which labor disputes are

“legal”.

Having taken that position, it claimed the right to pre-

vent, by injunction, any effort of labor unions to publicize

their grievances or by peaceful suasion to win both labor and

the public to their point of view. In so doing, the New York

Court of Appeals deprived the unions of their Constitutional

guarantee of freedom of speech and of assembly, and ran

counter to this Court’s line of decisions culminating in the

Siwing case, where this Court said (p. 326):

“The right of free communication cannot therefore

be mutilated by denying it to workers, in a dispute with

an employer, even though they are not in his employ.

Communication by such employees of the facts of a

dispute, deemed by them to be relevant to their interests,

can no more be barred because of concern for the eco-

nomic interests against which they are seeking to enlist

public opinion than could the utterance protected in

Thornhill’s case” ;

PRP RHIL ELLIS RID ERENT EUS RASA DIS Se ORG UR oat eg ee

il

and again (at p. 326): s

“The scope of the Fourteenth Amendment is not con-

fined by the notion of a particular state regarding the

wise limits of an injunction in an industrial dispute,

whether those limits be defined by statute or by the

judicial organ of the state”.

It was on the basis of the Swing case that this Court

reversed the Wohl case, but the Court of Appeals decided

the case at bar before the Wohl case was reversed, and

based its holding in the case at bar largely upon its de-

cision in the Wohl case.

2. The attempt of the New York Court of Appeals in this

case, as well as in Bakery & Pastry Drivers’ vy. Wohl, to

outlaw strikes inimical to that court’s ideas of economics,

under the guise of calling such strikes “unlawful,” is an

effort to outlaw strikes through judicial censorship, and is

an insidious method of stifling freedom of speech and assem-

bly. This is a matter of National rather than State impor-

tance. It is the only question presented by this record, and

the only question passed upon by the New York Court of

Appeals in sustaining the injunction.

WHEREFORE, your petitioners pray that a Writ of Certi-

orari issue out of, and under the seal of this Honorable

Court, directed to the Court of Appeals of the State of New

York, commanding that court to certify and send to this

court for its review and determination on a day certain to

be named therein, a full and complete transcript of the

record and all proceedings in the case entitled: “SUPREME

COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YorK:

OpERA ON TouR, INc., Plaintiff—against—JosErpH N. WEBER,

as President of American Federation of Musicians, and

12

GroRGE E. Browne, as President of International Alliance

of Theatrical Stage Employees & Moving Picture Machine

Operators of the United States and Canada, Defendants,”

and that the order and judgment of the said Court of Appeals

may be reversed and that your petitioners may have such

other and further relief as may be proper.

Dated: New York, July 21st, 1941.

JOSEPH N. WEBER,

Individually and as President

of American Federation of

Musicians.

GEORGE E. BROWNE, individually

and as President of International

Alliance of Theatrical Stage

Employees & Moving Picture

Machine Operators of the United

States and Canada.

By WILLIAM MAcy

Attorney for Petitioners

521 Fifth Avenue,

New York City, N. Y.