Busch Jewelry Co. v. United Retail Employees' Union Local 830

The respondents, hereinafter referred to as the companies, operate twelve retail stores in New York city. The appellants will be referred to as the unions. Labor difficulties arose between the unions and the companies, and an attempt was made to settle such differences by negotiations, but the representatives of the unions would not negotiate while there was a stenographer in the room. They threatened to strike and left the room with the statement, “ I’ll meet you at the barricade.” On May 17, 1938, the unions called a strike against the companies and established picket lines at the companies’ stores. There are no questions of fact involved. The detailed findings of the learned trial court are fully sustained by the evidence and in most instances are undisputed.

Sufficient has been said to illustrate the extreme length to which the strikers went and the unlawful and dangerous nature Of their acts. The companies repeatedly appealed to the police for protection from the unlawful acts and were repeatedly informed that the police were helpless to protect them. The unlawful conduct was not that of individuals acting from impulse and excitement but were acts deliberately inspired by the unions and approved by them. The

The same conduct continued after the commencement of this action for an injunction, during the trial, and in total disregard of the trial justice’s oral instructions. It thus appears that the unions did not act in ignorance of the law but that they acted with full knowledge that their acts were in violation of law and illegal. The trial justice found that the unions had threatened to continue such illegal acts,

In the bulletin of May 18th the union advised the pickets to cast restraint aside, to become louder and more aggressive, and to keep prospective customers from entering the stores, Other bulletins advised the pickets to use language and antics provocative of violence, disorderly conduct and breach of the peace.

Organized labor has the rights of free speech, peaceful picketing and collective bargaining. Those rights are fully protected by law. During peaceful picketing there may occur minor disorders on the part of some of those engaged m picketing, owing to the over-enthusiasm of individuals, for which acts the unions are not responsible and which they generally repudiate. Unions which authorize a strike and picketing are under a legal responsibility to the public not only to avail themselves of their lawful rights in a legal way, but also to endeavor to uphold all laws and to avoid the destruction of property, disorderly conduct, personal assaults, breach of the peace, violence and fraud. When unions not only fail to live up to that responsibility but deliberately, willfully and with full knowledge that their acts are illegal, advise and encourage the commission of acts which are in violation of law and result in disorderly conduct aud breach of the peace, they are no longer entitled to the benefits of special statutes enacted to protect them in the enjoyment of their conceded right of peaceful picketing,

The effect of that statute is to prevent courts from enjoining peaceful picketing. It was never intended to deprive the Supreme Court of jurisdiction to enjoin dangerous, illegal acts which constituted disorderly conduct and breach of the peace. If such was its intent and effect it is to that extent unconstitutional and void as an attempt to abridge the jurisdiction of the Supreme Court, guaranteed by article VI, section 1, of the State Constitution. (DeHart v. Hatch, 3 Hun, 375 ; People ex rel. Swift v. Luce, 204 N. Y. 478 .)

The trial court has made every finding required by section 876-a of the Civil Practice Act. It has found specifically “ that all the -unlawful acts hereinabove described * * * will be continued unless enjoined by this court;” also “ that further unlawful acts of the nature hereinabove discussed have been threatened by defendants.”

It is difficult to see how the trial court could have made more specific findings. If a trial court can ever grant an injunction against continuing picketing where the picketing has been carried on with violence and will be in the future, this is such a case.

In the case of Steinkritz Amusement Co. v. Kaplan (supra, p. 296 ) we said: “ In the case of Exchange Bakery & Restaurant, Inc., v. Rifkin ( 245 N. Y. 260 ) at p. 269) it was said: ‘ Where unlawful picketing has been continued; where violence and intimidation have been used and where mis

“ Where such an injunction has been granted, 1 This court may not interfere except for manifest abuse.’ (Nann v. Raimist, 255 N. Y. 307 , at p. 315.) ” To the same effect is the case of Wise Shoe Co. v. Lowenthal (supra).

The late decisions of the United States Supreme Court are apparently in harmony with our decisions. Referring to the National Labor Relations Law (U. S. Code, tit. 29, ch. 7) that court said: “ There is not a line in the statute to warrant the conclusion that it is any part of the policies of the Act to encourage employees to resort to force and violence in defiance of the law of the land.” (National Labor Relations Board v. Fansteel Metallurgical Corp., 306 U. S. 240 , 257.)

The judgment of the Appellate Division should be affirmed, without costs, and the motion to dismiss the appeal denied.

(dissenting). Findings sustained by competent evidence and not challenged upon this appeal establish that picketing in this case has been conducted in an unlawful manner and that the illegal and wrongful acts were approved and even incited by the defendant unions, as part of a deliberately prepared plan. I accept the statement of facts contained in the prevailing opinion. I agree, too, with the court’s conclusion that “ the effect of [the] statute is to prevent courts from enjoining peaceful picketing. It was never intended to deprive the Supreme Court of jurisdiction to enjoin dangerous, illegal acts which constituted! disorderly conduct and breach of the peace. If such was its; intent and effect it is to that extent unconstitutional and void as an attempt to abridge the jurisdiction of the Supreme Court.” The difficulty in this case is that in spite of the

By judicial decision the right to picket peacefully in order to achieve a lawful purpose in a labor dispute has been firmly established in this State. We have said that “ ‘ picketing ’ connotes no evil. It may not be accompanied, however, by violence, trespass, threats or intipfidation express or implied.” (Exchange Bakery & Restaurant, Inc., v, Rifkin, 245 N. Y. 260 , 263.) In the same case we pointed out that where picketing has been accompanied by unlawful acts, an injunction may be granted to protect a complainant’s rights. “ This is no novel assumption of jurisdiction,” we said there. “ Freedom to conduct a business, freedom to engage in labor, each is like a property right, Threatened and unjustified interference with either will be prevented.” (p. 265.) The right to picket peacefully for a lawful end was not created by statute and no statute, I agree, could take away from the Supreme Court its jurisdiction to grant in proper case needed protection against unlawful abuse of the right to picket.

Here unchallenged findings establish that the right to picket has been abused. The abuse indeed is so flagrant that continuance of picketing when so conducted would constitute an intolerable threat not only to the rights of the plaintiff but to the public peace and order. There can be no room for doubt that a court of equity has jurisdiction and_power to protect the plaintiff by injunction against the threatened wrong. The question remains whether in the manner and form of the exercise of that power the court rejected regulations which the Legislature has power to impose. I differ with my associates only upon that narrow question.

The right of the individual to protection against unlawful interference with the conduct of his business through unlaw

In such disputes injunctions may still be issued, but in manner and form there provided. There is proviso that an injunction is to be confined to prohibition of unlawful acts, and

“ (f.) That no item of relief granted prohibits directly or indirectly any person or persons from doing, whether singly or in concert, any of the following acts: * * *

“ (5) Giving publicity to and obtaining or communicating information regarding the existence of, or the facts involved in, any dispute, whether by advertising, speaking, picketing, patrolling any public street or any place where any person or persons may lawfully be, or by any other method not involving fraud, violence or breach of the peace.”

The intent and effect of the hew statute is clear. It does not sanction acts previously unlawful; it does not ban acts previously lawful. It does not abridge the jurisdiction or power of the court to grant protection against acts which are unlawful but it does provide that in granting such injunction it shall leave the parties to a labor dispute free to do acts which Under the decisions of this court were lawful before the statute and remain lawful after the statute was enacted. The Constitution does not prevent the Legislature from imposing such regulations so long as they leave to the courts jurisdiction and power to grant adequate and appropriate protection against wrong through • injunction confined to prohibition of unlawful acts. (Cf. Goldfinger v. Feintuch, 276 N. Y. 281 , 288.)

There is in this case a finding that “ th§ illegal conduct of defendants, their members, agents, servants, employees, and

There may, it is true, be cases where “ violence and disturbance have been so great and threatening that peaceful picketing is out of the question.” (Wise Shoe Co. v. Lowenthal, 266 N. Y. 264 , 268.) The statutory command is that no injunctive relief shall indirectly prohibit picketing or other method of giving publicity or information “ not involving fraud, violence or breach of the peace.” That, I agree, cannot prevent a court from prohibiting all picketing where in truth “ peaceful picketing is out of the question.” Here, I must repeat, there is no finding and perhaps no basis for a finding that an injunction against continuance of the

For these reasons the judgment should be modified to permit picketing lawfully conducted.

Crane, Ch. J., Loughran, Finch and Rippey, JJ., concur with Hubbs, J.; Lehman, J., dissents in opinion; O’Brien, J., taking no part.

Judgment affirmed, etc.