# Appendix — Rath v. Crosby

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1942
- **Citation:** 316 U.S. 688

## Text

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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,

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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-

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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-

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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

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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-

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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

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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)

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