Florsheim Shoe Store Co. v. Retail Shoe Salesmen's Union

This is an action in equity by plaintiffs, who operate twelve retail stores in New York and Brooklyn, to restrain the defendants from picketing their premises in this State and from the performance of other coercive, oppressive and unlawful acts. The defendants are labor unions affiliated with the Congress of Industrial Organization. No answer has been interposed to the complaint. However, it is alleged in the complaint that no “ labor

In a determination of that question we must consider, as respondents contend, not alone the allegations of the complaint but the assertions of affiants in the various affidavits contained in the record tending to support or negative the allegations of the complaint (Interborough Rapid Transit Co. v. Lavin, 247 N. Y. 65 ). The Appellate Division did not dismiss the complaint. By necessary implication, the certification by the Appellate Division of a question of law indicates that the denial of relief in that court was not in the exercise of discretion (Braunworth v. Braunworth, 285 N. Y. 151 ). To sustain the order from which the appeal is taken, we must find that the allegations of the complaint and affidavits and reasonable inferences therefrom when considered in aspect most favorable to plaintiffs are insufficient as matter of law to sustain a cause of action. There was no reversal of any finding of fact deemed by Special Term necessary to sustain the injunction. We, therefore, determine whether, as matter of law upon the record now presented, the plaintiffs can succeed. If so, we must reverse the order of the Appellate Division and reinstate the order of the Special Term (Woicianowicz v. Philadelphia & Reading Coal & Iron Co., 232 N. Y. 256 ; Partola Mfg. Co. v. General Chemical Co., 234 N. Y. 320 ; Mitchell, Inc., v. Dannemann Hosiery Mills, 258 N. Y. 22 ; Matthews v. Truax, Carsley & Co., 265 N. Y. 6 ).

The decisive question here, upon the basis above outlined, is whether the facts show that at the time of the commencement of this action a “ labor dispute ” existed between the parties within the meaning and intent of the provisions of section 876-a of the Civil Practice Act in view of the declared legislative policy of the State.

Defendants claim that in 1938 and the early part of 1939 the plaintiffs sponsored and dominated a company union under the name of the Florsheim Retail Shoe Employees Protective Union, which, on April 18, 1939, petitioned the New York State Labor Relations Board for investigation and certification of representatives for collective bargaining, pursuant to section 705 of the New York State Labor Relations Act (Labor Law, art. 20 [Cons. Laws, ch. 31]). On May 8, 1939, the defendant unions filed with the Board charges of unfair labor practice, pursuant to section 706 of the act, in which they accused the plaintiffs, among other things, of having sponsored that union and of having intimidated and coerced their employees into joining that union and into refraining from joining and into resigning from the defendant unions. Thus an issue was then raised before the Board as to the propriety of granting the petition of the so-called company union for investigation and certification of a bargaining agent. However, on June 5, 1939, the defendant unions withdrew those charges with the reservation, however, of a right to renew at a later date and to interpose those charges as a defense to the proceeding for investigation and certification. Thereupon, defendants called a strike and caused seventeen of plaintiffs’ employees to go out as a means more promptly and effectively to bring plaintiffs to terms. Defendants, as justification for the strike, asserted that plaintiffs interfered with, restrained and coerced their employees in their right of self-organization in the defendant unions, in their right to join and assist the defendant unions, in their right to bargain collectively through the defendant unions, in their right to engage in concerted activities through the defendant unions for the purpose of

On June 23d hearings upon the petition for investigation and certification were begun by the Board. On December 12, 1939, the Retail Clerks International Protective Association, affiliated with the American Federation of Labor, having absorbed the alleged company Protective Union, filed a petition for its affiliate, Retail Shoe Salesmen’s Union, Local 1115F, A. F. of L., and was permitted to intervene in the proceeding and be substituted in the place of the Protective Union. It is alleged in the complaint and confirmed by the record that a controversy there existed concerning the representation of certain employees, that Retail Clerks International Protective Association claimed to represent a majority of plaintiffs’ employees while defendant Locals 287 and 1268 claimed to represent certain employees and that Retail Clerks International Protective Association requested the Board to investigate such controversy pursuant to the provisions of the New York State Labor Relations Act and certify the name of the representative designated and selected by plaintiffs’ employees for the purpose of collective bargaining. Thereupon, the defendant unions again intervened and deemed it necessary to refile with the Board charges of unfair labor practice in that proceeding in answer to the petition. From then on numerous hearings were had in which the defendants appeared by counsel, made moves to stay the hearing on the petition and called witnesses who testified on the issue raised by their answer.

Summarizing defendants’ position throughout, the charges related only to the propriety of certifying a collective bargaining agent in the pending proceeding for certification and were, substantially and essentially, the answer of the defendant unions to the petition therefor and so recognized. No complaint was ever issued upon the charges nor was effort seriously made to secure the issuance of any such complaint. The contention of the defendants

An election was directed and held under the supervision of the Board in accordance with .the provisions of the New York State Labor Relations Act “ to determine whether [the said employees] desire to be represented for the purposes of collective bargaining by Retail Shoe Salesmen’s Union Local 1115F, A. F. of L., or by the Rétail Shoe Salesmen’s Union Locals 1268 and 287, C. I. 0., or by neither of these organizations,” with the result that of those eligible to vote from the appropriate unit the employees of appellants selected by a vote of more than two to one the first above named local union. No objections were filed to the submission, to the conduct of the election or to the result. In accordance with the provisions of the act, the Board thereupon certified on July 2, 1940, that local as “ the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment and other conditions of employment,” and the certification remained in effect for one year after its date (Rule 34, General Rules and Regulations of the New York State Labor Relations Board). Thereupon, the appellants and their employees, through the certified agent, duly entered into an agreement dated July 14, 1940, covering wages, hours and conditions of employment, by its terms to remain effective for one year, by which all labor disputes between the employers and their employees then existing were settled and adjusted.

When the contract was executed by appellants, and the duly certified agent of the employees and went into effect, any labor dispute within the provisions of the New York State Labor Law ended and the contract as made was the sole enforceable contract between employers and employees (Cf. Matter of Triboro Coach Corp. v. New York State Labor Relations Board, 286 N. Y. 314 ). Such a result is the only conclusion possible in consonance and

Notwithstanding all those proceedings and the negotiation and execution of the contract by the representative who was duly named as the exclusive agent of all of the employees of appellants, the defendants, the plaintiffs’ complaint sets forth, “ have continued, are continuing and are threatening to continue to picket and patrol in front of plaintiffs’ stores, and to approach, molest and shout at plaintiffs’ customers and potential customers.” Under the second cause of action, plaintiffs plead a conspiracy by defendants “ to boycott and picket plaintiffs and to picket and patrol in front of their stores in order to injure plaintiffs and ruin and destroy their business, property and Good Will; to interfere with plaintiffs’ contract with Retail Shoe Salesmen’s Union, Local 1115F, A. F. of L.; to exert pressure upon plaintiffs to breach their aforesaid contract with said Union; to coerce plaintiffs into violating the New York State Labor Relations Act, and to punish plaintiffs and retaliate against plaintiffs for not having entered into a collective bargaining agreement with Defendants Local 287 and Local 1268 ” and that in pursuance thereof they have “ wilfully and maliciously boycotted plaintiffs and have wilfully and maliciously picketed and patrolled, and continue to picket and patrol in front of plaintiffs’ stores and to approach, molest and shout at plaintiffs’ customers and potential customers, and have wilfully and maliciously, in a misleading manner, created the impression that plaintiffs are unfair to their employees and to organized labor and that a labor dispute exists between plaintiffs and their employees * * * all to

In the affidavits upon which the allegations of the complaint were overwhehningly and without contradiction sustained it appeared that the acts and conduct of the defendants both before and after the election and after the execution of the contract were in continual wilful, intentional and malicious defiance of the jurisdiction of the Labor Relations Board rightfully obtained of any labor dispute that existed between the parties and of the determination and decision of the Board and for the purpose of punishing the plaintiffs, of hurting and crippling and, if possible, of ruining their business, property and good will and of compelling them to violate their contract with their employees entered into honestly, legally and in accord with the provisions and purpose of the Labor Relations Act. In the monthly magazine, the “ Retail Shoe Clerk’s Digest,” the official organ of defendant Local 287, it was said: “ Election or no election, we can thank God that we still will have the right to picket. And this vicious anti-labor shoe company will continue to get a bigger and better picket. As a matter of record, never in the history of our existence have we ever taken a picket off a store until our cause was won. And we don’t intend to remove the Florsheim pickets until our objectives are gained.” In the issue of that magazine in September, 1940, it was said: “ Florsheim strike now more alive than ever * * * The men on the Florsheim Picket Line have quite courageously picketed under all sorts of conditions — the line still holds. Let us now get right behind them. Let’s help advertise to the world that the owners of Florsheim Shoes would rather keep their New York enterprise as an agency for advertising purposes — an expensive loss at that — rather than recognize a bona fide union.” In September, 1940, in another article proceedings before the Labor Board were repudiated and it was said: “ It has become increasingly clear that our fight with the owners of Florsheim Shoes has just begun.” With reference to the jurisdictional dispute, in one article it was said: “It is very essential that our membership do their part in prohibiting the A. F. of L. from gaining a wedge into the retail shoe field.” In written articles as well as in official resolutions defendants urged the establishment and spreading by union members

On the record here presented it is impossible for the respondents successfully to maintain that any “ labor dispute ” between plaintiffs and defendants theretofore existing under section 876-a of the Civil Practice Act survived the certification by the Labor Relations Board of the collective bargaining agent for plaintiffs’ employees and the execution of the collective bargaining contract. Nothing in this opinion is designed to interfere with, impede or diminish in any way the right of employees lawfully to strike or engage in other lawful concerted activities or leave plaintiffs’ employ if they so desire, nor do we recede from principles relating thereto laid down in earlier decisions of the court. The action here is to restrain unlawful actions and their threatened continuance not governed by pro

The decision in the case of Stillwell Theatre, Inc., v. Kaplan ( 259 N. Y. 405 ) is clearly distinguishable and is not in point. The policy of the State with reference to settlement of labor disputes or in regard to the methods of selection of a collective bargaining agent had not then been declared by the Legislature as we now find it. Neither section 876-a of the Civil Practice Act nor the Labor Relations Act had then been enacted. Furthermore, in that case the employer voluntarily entered into a contract which was the subject-matter of the case with one union to the exclusion of its rival. There it was found that the picketing was not accompanied by acts of violence, trespass or intimidation.

The certified question should be answered in the affirmative.

(dissenting). It is no function of ours to decide whether defendants’ picketing is unfair or anti-social, or whether attitudes like those taken by defendants tend to promote and prolong industrial strife and make more difficult the achievement of industrial peace. Such questions are for other forums. Our inquiry is this narrow one: Does this complaint state a cause of action for injunctive relief? Narrowing the question even more, we need only examine the pleading to see if the facts it sets forth spell out a labor dispute; for if the controversy, so pleaded, is a labor dispute, then plaintiffs, by failing to allege compliance with section 876-a of the Civil Practice Act, have made it impossible for the courts, obeying the command of that section, to grant them an injunction.

Justifying the issuance of an injunction here, the majority opinion holds that the signing of the contract between plaintiffs and the union theretofore duly certified by the State Labor Relations Board, had the effect of ending the labor dispute previously existing between plaintiffs and their employees. In. this connection we are referred to Matter of Triboro Coach Corp. v. New York State Labor Relations Board ( 286 N. Y. 314 ). There is no such holding in that case. Both the majority (286 N. Y. at p. 322) and the minority opinions (286 N. Y. at p. 344) point the other way. All the decisions of this court in parallel situations, for years back, forbid the kind of injunction sought here, and the labor relations statutes of this State (Civ. Prac. Act, § 876-a, and Labor Law, art. 20) have not overruled those cases in any manner whatever.

Strikes involving inter-union rivalry are unfortunate at any time, and certainly not in the public interest in times like these. But this court has for forty years, since National Protective Association of Steam Fitters & Helpers v. Cumming ( 170 N. Y. 315 ), uniformly held that such strikes are not illegal. We have flatly and positively held that peaceful and truthful picketing by a union may not be enjoined on the ground that its purpose was to induce

Plaintiffs claim that our State Labor Relations Act (Labor Law, art. 20) somehow justifies or authorizes an injunction here. No one contends that this act repealed section 876-a; the two statutes are in pari materia and to be read together. Plaintiffs, in asserting that the procedures established by the Labor Relations Act, when invoked in a labor dispute, have, necessarily, the effect of bringing the dispute to an end, ascribe to the act a coverage much too broad. That act nowhere provides that all industrial strife and dispute are forbidden, once resort is had to the State Labor Relations Board. On the contraiy, it says in so many words that “ nothing in this article shall be construed so as to interfere with, impede or diminish in any way the right of employees to strike or engage in other lawful, concerted activities.” (Labor

The Legislature, in the statement of “ Findings and Policy ” (Labor Law, § 700) with which it prefaced the substantive matter of the Labor Relations Act, refers to the then existing inequality of bargaining power as between employer and individual employee, to the denial by some employers to their employees of the right to freedom of organization, to the refusal of some employers to recognize the practice and procedure of collective bargaining, and to the effect of such denials and refusals in leading to strikes, lockouts and other forms of industrial strife. This legislative statement of “ Findings and Policy ” asserts that protection by law of the right of employees to organize and bargain collectively “ removes certain recognized sources of industrial strife and unrest.” It is declared by the Legislature to be the public policy of the State to encourage and promote collective bargaining and self-organization of employees, free from coercion or restraint by employers.

To achieve these laudable purposes the Legislature, in the succeeding sections of the Labor Relations Act, set up a Labor Relations Board, described certain unfair labor practices by employers and empowered the Board to investigate and redress such practices. The act further authorized the Board to hold elections to determine who or what should be the bargaining agent of a group of employees, and to order an employer to bargain collectively with the agent so elected. So far, and no further, did the Legislate^ go in conferring power on the Board. The closed shop agreement made with the bargaining agent certified by the Board has no more validity, standing or effect than a similar agreement made with a bargaining agent not certified but otherwise authorized, and, as we have pointed out above, such a closed shop agreement does not justify an injunction against peaceful and truthful picketing by the unsuccessful union.

Nor did the Labor Board here, in certifying as a bargaining agent the union successful at the election, attempt to hand down a judgment determining the whole labor dispute between plaintiffs and their employees. The Labor Board issued no injunction against

This court has said so often that it will do no harm to say it again, that the right of workmen to organize and agitate, peacefully, to better their conditions, will not be destroyed or disminished but will be protected by the courts despite incidental injury to an employer’s business. (Stillwell Theatre, Inc., v. Kaplan, supra, at p. 409 .) “ It is not within the province of the courts to restrain conduct which is within the allowable area of economic conflict.” (Stillwell Theatre, Inc., v. Kaplan, supra, at p. 412 .)

In voting to affirm the Appellate Division and to refuse an injunction here, we are not put to the necessity of justifying, or excusing, the conduct of the defendants. Perhaps they should have accepted in good faith the results of the election, let the new contract have a fair trial, swallowed their defeat, and put away their picketing signs. But it is a right, and not manners, or sportsmanship, that we are concerned with. The right to picket peacefully is guaranteed by the Constitution of the United States as an incident to freedom of speech. “ Freedom of speech * * * is the matrix, the indispensable condition, of nearly every other form of freedom.” (Palko v. Connecticut, 302 U. S. 319 , 327.)

The certified question should be answered in the negative, and the order of the Appellate Division affirmed, with costs.

Finch, Lewis and Conway, JJ., concur with Rippey, J.; Desmond, J., dissents in opinion in which Lehman Ch. J., and Loughran, J., concur.

Ordered accordingly.