Appendix — Rath v. Crosby

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APPENDIX.

Statement of the Case.

Crosspy, APPELLANT, v. Ratu er au., APPELLEES.

Tnjunction—Labor unions—Picketing and boycotting

enjomed—No legitimate trade dispute existed,

(No. 27689—Deeided March 6, 1940.)

Arprean from the Court of Appeals of Cuyahoga county.

The plaintiff is the operator of a restaurant in the city of

Cleveland,

The defendants are officers and members of three vol-

untary, unincorporated associations known as labor unions.

In her second amended and supplemental petition the

plaintiff asks an injunction to restrain the defendants

from continuing certain acts of violence in’ furtherance

of a conspiracy to injure her restaurant business and

thereby compel her to discharge her employees unless they

become members of one of the defendant unions.

With few exceptions the controlling facts in the case

are not in serious dispute. The evidence in the record dis-

closes that the plaintiff's present employees are not mem-

bers of a union or represented thereby; that they do not

desire such membership; that each employee is serving

under a renewable, written, three-month contract; that

in selecting her employees the plaintiff makes no inquiry

as to such membership; that in a number of instances she

has emploved union members; that when asked by her

employees for advice on this subject she tells them to fol-

low their own preference; that she never has discharged

an employee because of membership in a union; that there

ix no dispute between the plaintiff and her employees; that

she has permitted a representative of the defendant unions

to solicit her employees; that the defendants do not com-

plain about the wages paid by the plaintiff to her employ-

ees; that the defendants do not accuse the plaintiff of un-

derselling restaurants employing union members exclu

>

sively; that on October 4, 1937, the defendants began to

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picket plaintiff’s restaurant; that the number of persons

engaged in picketing varied from 40 to 100; that these

persons wore union badges and obstructed the entrance

to the plaintiffs restaurant; that they called the plaintiff's

employees vile and obscene names; that they threatened,

assaulted, struck and injured some of the plaintiff’s em-

ployees, one of whom suffered a fractured jaw; that plain-

tiff’s restaurant was stenchbombed on two oceasions; that

a dynamite bomb was exploded at the place of the plain-

tiff’s former residence; that an attempt was made to bomb

the plaintiff’s present residence; that the home of one of the

plaintiff’s employees was stenchbombed; that the homes of

some of the plaintiff's customers were stenchbombed; that

some of the plaintiff's customers who drove to her restau-

rant found the tires of their automobiles cut and punctured

while there; that anyone attempting to deliver supplies to

plaintiff’s restaurant was insulted and threatened; that one

delivery truck driven by a union driver was seized and par-

tially burned; and that during the period of picketing the

plaintiff’s business was reduced to approximately one-third

of its former volume. The defendants disclaim responsibil-

ity for the above-enumerated acts of violence and insist

that the contracts existing between the plaintiff and her em-

ployees are invalid,

The Court of Conunon Pleas rendered a decree in favor

of the plaintiff. The employment contracts were held valid,

and the court found that no legitimate trade dispute was

involved. The defendants were enjoined from picketing

or boyeotting the plaintiff's restaurant and from interfer-

ing with the operation of the plaintiff’s business.

Upon appeal to the Court of Appeals on questions of law

and fact the decree of the court was the same as that of the

Court of Common Pleas except that picketing and boy-

cotting were permitted.

The case is in this court for review upon the allowance

of a motion to certify the record.

Messrs. Galvin & Babin and Messrs. Stanley & Smoyer,

for appellant.

Mr. Martin E. Blum and Mr, Leonard J. Stern, for appel-

lees,

18

By ruk Courr. The question as to the validity of the

three-month, written, renewable employment contracts here

involved requires no discussion. Both the Court of Com-

mon Pleas and the Court of Appeals held them valid, and

a study of the record discloses nothing tending to support

the contention of the defendants to the contrary.

The controlling question in the case is whether the evi-

dence discloses the existence of a legitimate trade dispute.

However, this difficulty is simplified by the fact that both

the plaintiff and the defendants rely upon the decision of

this court in the case of La France Electrical Const. &

Supply Co. v. International Brotherhood of Electrical

Workers, 108 Ohio St., 61, 140 N. E., 899, subsequently cited

with approval in the case of State, ex rel. United District

Heating, Inc., v. State Office Building Commission, 125

Ohio St., 301, 181 N. E., 129. In the La France case this

court gave careful consideration to the principles of law

relating to the subject of trade disputes, and affirmed the

decision of the lower courts permitting the picketing of the

employer’s plant. But in the opinion it is clearly pointed

out that ‘‘'Upon the record with regard to this point there

can be little doubt that a legitimate trade dispute existed

in this case, in which former employees of the plaintiff com-

pany were seeking to secure the right to work with the

company under terms of employment different from those

which their employer was at the time requiring. That being

the case, the methods open to use in a legitimate trade dis-

pute were open to strikers here.’? Of course, as already

indicated in the factual statement, it is not even contended

that in the instant case there is any dispute whatsoever be-

tween the plaintiff and her employees, as in the La France

case, supra, On the contrary, the only dispute in the instant

case is between the plaintiff and the defendants with whom

the plaintiff's employees have no connection. The thing

upon which the defendants are insisting is that the plain-

tiff discharge her employees unless they become members

of one of the defendant unions. There is no reason or con-

vincing authority sustaining the contention of the defend-

ants that they have the right to engage in picketing or boy-

cotting under such circumstances. That this must be the

law is clearly indieated by the intolerable and unexplain-

19

able predicament in which an employer might well find him-

self if picketed by two or more hostile unions with each one

insisting that the employer discharge his employees unless

they become members of that particular union alone.

Finally it should be noted that the instant situation is

concededly unaffected by statute. This clearly distinguishes

the case from most of the authorities relied upon by the

defendants.

Two recent decisions restating the generally accepted

rule are to be found in the cases of Meadowmoor Dairies,

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

(2d), 308, and Roth v. Local Union, — Ind., —, 24 N. E.

(2d), 280. In the former case one paragraph of the sylla-

bus reads in part as follows:

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

right to labor freely and without restraint are all constitu-

tional 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 activities in interference

with another’s business * * *,””

The decree of the Court of Appeals must be reversed

to the extent that it permits picketing and boycotting.

Final judgment is hereby rendered in conformity with the

decree of the Court of Common Pleas.

Judgment reversed in part.

Weyoanpr, C. J., Wintiams, Marratas and Hart, JJJ.,

coneur.

Myers, J., concurs in the judgment only.

Day and Zimmerman, J.J., dissent.

Myers, J., concurring. Since the ease is in equity, the pleas

of both plaintiff and defendants are addressed to the trial

court as a chancellor. All elements of the ease are to be

considered. The conduct of the parties will be carefuily

scrutinized to determine whether they are entitled to relief

or protection of the court. From a consideration of the

entire record, the trial court was justified in its finding that

there was a proximate connection between the acts of de-

20

fendants and the violence charged. In respect to the plain-

tiff’s place of business, the defendants have therefore for-

feited whatever rights they might otherwise have had peace-

ably to picket under the law. Rights peaceably exercised

will be protected by the courts but such protection is for-

feited when the attempted exercise thereof is accompanied

by acts of violence as in the instant case.

l’or the reasons stated I concur in the judgment only.

Day, J., dissenting. I dissent from the view of the ma-

jority of this court.

The Court of Common Pleas granted an injunction, re-

straining all picketing, bannering and boycotting of plain-

tiff’s restaurant. On hearing de novo, the Court of Appeals

permitted picketing and bannering, which judgment is here

for review. The record discloses that picketing was not

accompanied by violence following the judgment of that

court. It is the judgment of the Court of Appeals which is

here for review, and that judgment did not permit picketing

accompanied by violence.

Peaceful picketing, by carrying placards, signs, distribu-

tion of literature, or by oral speech, is not, in and of itself,

unlawful. It is a lawful right emanating from and_ pro-

tected by the constitutional provision governing the exer-

cise of free speech.

The judgment of the Court of Appeals should be affirmed.

ZIMMERMAN, ¥J., dissenting. From a reading of the ma-

jority opinion, this case would appear to be wholly one-

sided. However, such is not the fact and the writer believes

the position of the defendants, supported by ample and

respectable authority, is entitled to expression.

Having had a strict injunction issued against them in the

Court of Common Pleas forbidding any ‘‘picketing,’’ the

defendants appealed the cause on questions of law and facet

to the Court of Appeals.

The higher court heard the controversy de novo, but

substantially on the record as made in the court of first

instance. The matter was presented to Judges Hamilton,

Ross and Matthews of the First Appellate District, sitting

by designation in the FKighth Appellate District.

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By unanimous action the court found that Mrs. Pearl

i. Crosby operates a restaurant in the city of Cleveland,

and does not employ union labor; that her employees are

under contract for specified terms of employment and do

not desire to become unionized, and that the defendant

unions have the right to notify the public that Mrs. Crosby

does not employ union labor.

Apparently following the principles enunciated in the

case of S.A. Clark Lunch Co. v. Cleveland Waiters & Bev-

erage Dispensers Local, 22 Ohio App., 265, 154 N. E., 362,

it was *fordered, decreed and adjudged,’’ subject to the

limitations of laws or ordinances as to the use of streets

and sidewalks, that the defendant unions might maintain

two moving representatives near the front of the restan-

rant and one at the rear entrance for the sole purpose of in-

forming the public orally, or by handbills and signs, that

Mrs. Crosby does not employ union help, and to request

that the restaurant be not patronized for that reason; such

activities to be conducted in a quiet, orderly fashion, and

so as not to interfere with any person desiring to enter

or leave the restaurant for any purpose.

The defendants, and those having notice of the order,

were enjoined from molesting, interfering with, or annoy-

ing Mrs, Crosby and her employees in any manner.

Was such decree reasonable, proper and lawful?) A ma-

jority of this court holds in effect it was not, adopting the

attitude that **peaceful picketing’? is only authorized when

a bona fide trade or labor dispute exists directly between

an employer and his employees, as concerns wages, hours,

working conditions, ete. Supporting this conclusion, re-

liance is placed on the ease of La France Elvetrical

Construction & Supply Co. v. International Brother-

hood of Rk ctrical Work rs, 108 Ohio St., 61, 140 N. E., 899,

With due deference for the opinion of his associates, the

writer of this dissent submits that the general view taken

by the majority is too narrow, and that the La France case.

upon its facts, is not authority for the proposition that

“peaceful picketing’’ may be resorted to only in the

event of a strike.

Acts of violence perpetrated against Mrs. Crosby, her

employees and customers are mentioned in the majority

22

opinion. It is to be borne in mind that these occurred

prior to the issuance of the injunction by the Court of

Common Pleas, that the defendants disclaim responsibility

therefor, and that there is a lack of evidence implicating

them.

Be that as it may, such conduct, by whomsoever carried

on, cannot be defended, condoned or sanctioned.

Responsible labor leaders realize that the pursuit of ille-

gal methods to bring about what may be a desirable result

is harmful to the labor movement as a whole, and arouses

public opinion against the cause of organized labor.

However, we are not here concerned with the past. Our

primary function is to determine whether the order of the

Court of Appeals for the future should remain undisturbed.

J. H. & S. Theatres, Inc., v. Fay, 260 N. Y., 315, 320, 183

N. E., 509, 511. Or, as it was put in Fenske Bros., Inc., v.

Upholsterers International Union, 358 Ill, 289, 260, 198

N. E., 112, 121, 97 A. L. R., 1318, 1333: ‘‘The mere fact

that acts of violence had been previously committed would

of itself furnish no justification for enjoining legal acts of

peaceable persuasion.”’

No one will seriously deny that organized labor has done

as much if not more than any other single agency to im-

prove the lot of working people as a class. Increased

wages, shorter hours, better working conditions and a higher

standard of living can be ascribed in an important degree

to its activities and influence. The struggle has been long

and arduous, and the continued existence of labor organi-

zations as effective bodies is dependent upon progress,

While, of course, no employer can be compelled to hire

union workmen, and no workman ean be foreed to join

a labor union, organized labor should have the privilege,

in a reasonable, peaceable and orderly way, of advising the

public, if it so desires and for what it may be worth, of the

truth concerning an employer of labor, especially where

the practices followed and the policies pursued by such

employer are opposed to the interests of union labor, and

are considered deleterious to employees generally, or to

employees engaged in a particular kind of work. The de-

fendants strongly urge that such is the situation as con-

23

cerns the Crosby restaurant, and testimony in the record

is pointed out as supporting the contention.

Irrespective of special legislation on the subject of which

there is none in Ohio, the term ‘‘trade dispute,’’ or ‘‘labor

dispute,’’ according to the liberal judicial concept, has a

broader and more comprehensive meaning than the one

given it by the majority of this court.

Such concept is exemplified in the leading case of Ha-

change Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y., 260,

263, 157 N. E., 130, 182, where the court said:

‘‘The purpose of a labor union to improve the conditions

under which its members do their work; to increase their

wages; to assist them in other ways may justify what would

otherwise be a wrong. So would an effort to increase its

numbers and to unionize an entire trade or business. It

may be as interested in the wages of those not members,

or in the conditions under which they work as in its own

members because of the influence of one upon the other. All

engaged in a trade are affected by the prevailing rate of

wages. All, by the principle of collective bargaining. Eco-

nomie organization today is not based on the single shop.

Unions believe that wages may be increased, collective

bargaining maintained only if union conditions prevail,

not in some single factory but generally. That they may

prevail it may call a strike and picket the premises of an

employer with the intent of inducing him to employ only

union labor. And it may adopt either method separately.

Picketing without a strike is no more unlawful than a strike

without picketing. Both are based upon a lawful purpose.

Resulting injury is incidental and must be endured.”’

Again, in Blumauer v. Portland Moving Picture Machine

Operators’ Protective Union, 141 Ore., 399, 403, 17 P. (2d),

1115, 1116, it was remarked:

‘‘Organized labor has the right to present its side of a

controversy to the publie by all lawful means if such means

may be, and are, used in a lawful manner without violence,

or threats, or intimidation of the employer, his employees,

or the patrons of the employer’s business.

* * *

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‘This right of presenting its side of a controversy, organ-

ized labor may exercise by lawful means, in a lawful manner

when its members have reasonable grounds to apprehend

that the practices or pay of any employer will produce an

injurious effect on the working conditions of employees

generally, or of those in a particular trade or calling, even

though there may be no direct controversy between the em-

ployer and his immediate employees.”’

In the later case of Geo. B. Wallace Co. v. International

Association of Mechanics, 155 Ore., 652, 664, 638 P. (2d),

1090, 1095, the same court observed:

if ‘Without any attempt to reconcile all that has been said

on the subject, we think the better reasoned cases are to the

effect that a strike and picketing are not necessarily con-

comitant. There may be a strike without picketing and

} picketing without a strike. Each is a combative weapon

which labor may use to accomplish its objectives if the

same be lawful.’’

And in Music Hall Theatre v. Moving Picture Machine

Operators, 249 Ky., 689, 642, 61S. W. (2d), 2838, 285, this

language appears:

“The law recognizes the right of peaceful picketing. Al-

though that term is sometimes erjticised as a contradictory

one, since the word ‘picketing’ is taken from the nomen-

clature of warfare and is*stronghy suggestive of a hostile

attitude, it has acquired a significance and meaning com-

monly understood. It connotes peaceable methods of pre-

senting a cause to the public in the vicinity of the employer's

premises. Labor has the recognized legal right to acquaint

the public with the facts which it regards as unfair, to give

notoriety to its cause, and to use persuasive inducements

to bring its own policies to triumph.’’

A number of courts, in the absence of enactments like

the Norris-LaGuardia Act (29 U. S. Code, Section 101 et

seq.), and where no controversy has existed between an

employer and his immediate employees, have held ‘‘peace-

ful picketing’’ lawful, when its avowed design and purpose

25

is to benefit organized labor directly or indirectly. Some

of the representative cases are: United Chain Theatres,

Inc., v. Phila. Moving Picture Machine Operators Union

(D. C., Pa.), 50 F. (2d), 189; Steffes v. Motion Picture

Machine Operators Union, 136 Minn., 200, 161 N. W., 524;

Empire Theater Co. v. Cloke, 53 Mont., 183, 163 P., 107, L.

R. A. 1917E, 383; Bomes v. Providence Local No. 223 of

Motion Picture Operators, 51 R. 1., 499, 155 A., 581; Nann

v. Raimist, 255 N. Y., 307, 314, 174 N. E., 690, 73 A. L. R.,

669, 674. Compare People v. Harris, 104 Colo., 386, 91 P.

(2d), 989, 122 A. L. R., 1034; Scofes v. Helmar, 205 Ind.,

096, 187 N. E., 662; Kirmse v. Adler, 311 Pa., 78, 166 A., 566.

In American Furniture Co. v. I. B. of T. C. & H. of A.

Chauffeurs, etc., Local, Teamsters & Helpers General Local,

222 Wis., 338, 359, 268 N. W., 250, 260, 106 A. L. R., 335,

348, the court confidently stated that the proponents of the

Norris-LaGuardia Act intended to enact into law the views

expressed in Exchange Bakery & Restaurant v. Rifkin,

supra (245 N. Y., 260, 263, 157 N. E., 130, 132).

Under language as used in such act (29 U. 8. Code, Sec-

tion 113 [a] and [e]), it has been expressly held that a

‘labor dispute,’’ permitting ‘‘ peaceful picketing’’ adjacent

to an employer’s establishment, may exist, even though

none of the employees are union members, and there is no

altercation between the employer and his employees. Senn

v. Tile Layers Protective Union, 222 Wis., 383, 268 N. W.,

270, affirmed 301 U. S., 468, 81 L. Ed., 1229, 57 S. Ct., 857;

Lauf v. E. G. Skinner & Co., 303 U. S., 323, 82 L. Ed., 872,

o8 8S. Ct. 578; New Negro Alliance v. Sanitary Grocery Co.,

303 U.S., 552, 82 L. Ed., 1012, 58 S. Ct., 703; L. L. Coryell

€ Son v. Petroleum Workers Union (D. C., Minn.), 19 F.

Supp., 749.

The opinion has also been advanced that an injunction

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,” reasonably exer-

cised on a defensible basis, would constitute an infringement

of the constitutional guaranty of free speech. Senn v. Tile

Layers Protective Union, supra (301 U. S., 468, 478, 81 L.

Kd. 1229, 1236, 57 S. Ct., 857) ; People v. Harris, supra (104

3k

26

Colo., 386, 394, 91 P. [2d], 989, 993). Compare, Schneider vy.

State of New Jersey (Town of Irvington), etc., 307 U. S.,

..., 84L. Ed., ...., 608. Ct., 146.

While Mrs. Crosby declares she is not antagonistic to-

ward union labor and has no objection to her employees

becoming union members, the record contains instances

tending to belie such statements. Particular reference is

made to the reaction initially displayed to the suggestion

of unionization and the tactics subsequently adopted; to the

treatment of a union waitress working for a time at the

Crosby restaurant, and to the development when a union

organizer attempted to approach the restaurant cooks, who

had evinced a friendliness to his overtures.

Furthermore, the representations of the defendants and

the conclusion of the Court of Appeals as to the object of the

‘*neaceful picketing’’ cannot be ignored. If it were clear

that the dominant motive was to ruin Mrs. Crosby’s busi-

ness from a purely evil incentive rather than to promote the

interests of union labor, a different attitude would be in

order, for ‘‘when the purpose of picketing is to injure or

destroy a business rather than to further the common in-

terests of the worker, it is an unlawful interference with the

property rights of the employer and should be enjoined.”

Geo. B. Wallace & Co. v. International Association of Me-

chanics, supra (155 Ore., 652, 664, 63 P. [2d], 1090, 1095).

Therefore it is finally submitted that the judgment of the

Court of Appeals is justifiable and should be affirmed.

(9750)