J.H.&S. Theatres, Inc. v. Fay

Citation183 N.E. 509,260 N.Y. 315
PartiesJ. H. & S. THEATRES, Inc., v. FAY et al.
Decision Date22 November 1932
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Action by the J. H. & S. Theatres, Inc., against John A. Fay, as president of the International Alliance of Theatrical Stage Employees, Local No. 4, and others. Judgment of Special Term in favor of plaintiff was modified and affirmed by the Appellate Division (236 App. Div. 744, 258 N. Y. S. 993), and defendants appeal.

Judgment of Appellate Division reversed, and that of Special Term modified and affirmed.Appeal from Supreme Court, Appellate Division, Second department.

William S. O'Connell, of New York City, for appellants.

Joseph A. Teperson, of New York City, for respondent.

LEHMAN, J.

The plaintiff has leased and is conducting three theaters at which a member of the defendant union had previously been employed. To do the same work, the plaintiff now employs a member of a rival union, and has entered into a contract for the term of one year to employ ‘only theatrical stage employees who are members in good standing’ of the rival union and supplied by it. The defendant union demands that the plaintiff employ one of its members at each theater and pay him the union rate of wages. By picketing and other activities the defendant union attempted to induce the public not to patronize the three theaters conducted by the plaintiff until its demands are complied with.

The defendant union is a lawful combination. It may, by lawful means, endeavor to induce the plaintiff to employ its members upon terms and conditions satisfactory to it. Its demand that the plaintiff employ one of its members at each theater, though at the present time a single employee is performing the same work at all three theaters, may be unreasonable. It is attempting to destroy the plaintiff's business in order to induce, or, perhaps we should say, compel, the plaintiff to comply with its demand and refuse to go on with the contract made with the rival union.

‘Demands of workmen may sometimes be fair and sometimes unfair. Combinations give the workmen a power of compulsion which may work harm to their employer, the public and even to themselves. Where the workmen do not combine they may be compelled by force of economic circumstances to accept unfair terms of employment. Such conflicting considerations of economic policy are not primarily the concern of the courts.’ Interborough Rapid Transit Co. v. Lavin, 247 N. Y. 65, 74, 159 N. E. 863, 866, 63 A. L. R. 188. ‘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, 259 N. Y. 405, 412, 182 N. E. 63, 66. A combination of workmen formed for the purpose of obtaining employment for its members upon terms and conditions satisfactory to them may use lawful means to achieve its purpose. The courts have not been constitutedarbiters of the fairness, justice, or wisdom of the terms demanded.

Combinations of workmen, like other combinations, be they weak or strong, must nevertheless, restrict the exercise of their powers of compulsion within the limits imposed by law. In Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260, 263, 269, 157 N. E. 130, 133, we affirmed the right of such combinations to picket for the purpose of achieving their lawful purposes, though injury to others might be incidental to such picketing; but we added the warning, ‘it may not be accompanied, however, by violence, trespass, threats or intimidation express or implied,’ and further that, ‘where unlawful picketing has been continued; where violence and intimidation have been used and where misstatements as to the employer's business have been distributed, a broad injunction prohibiting all picketing may be granted. The course of conduct of the strikers has been such as to indicate the danger of injury to property if any picketing whatever is allowed.’

In Stillwell Theatre, Inc., v. Kaplan, supra, page 412 of 259 N. Y., 182 N. E. 63, we held that the right of the defendant ‘peacefully and truthfully’ to declare to the world that the business practices of the rival union were unjust and that theaters which patronized that union ought not to be patronized by the public, was not lost because the plaintiff had a year's contract with the rival union. The limitation placed in both cases upon the rights to picket and persuade are integral parts of the definitionsof those rights. The courts may not enjoin exercise of those rights because such exercise may cause incidental injury to others. They must, in proper cases, by injunction, protect others from injury caused not by exercise of legal rights, but by unlawful extension and abuse of such rights.

The defendant uinion, in this case, picketed the plaintiff's premises in a peaceful orderly manner. So far it was within its rights. It did more. Four canvassers employed by it to distribute copies of the Labor World interviewed residents of the neighborhood and endeavored to persuade them not to patronize the plaintiff's theaters. So long as they confined themselves to honest truthful persuasion, the plaintiff had no right to complain, but the evidence shows that they misrepresented the situation and attempted by intimidation of prospective customers to destroy the plaintiff's business. That they certainly had no right to do, and even the defendant does not assert that the courts may not, by injunction, protect the plaintiff from a threatened injury to its business by the continuance or renewal of such acts, if the convassers acted as agents of the defendant and if future injury is threatened. It does assert that the canvassers were not authorized to do anything but distribute newspapers, and that they were not acting as defendant's agents in attempting oral persuasion. The justice at Special Term has found otherwise, and the evidence justifies, if, indeed, it does not dictate, such finding. In spite of evidence that long before the case came to trial the defendant had ceased to employ these canvassers, the court was not bound to accept belated repentance or belated caution as a sufficient guaranty that the plaintiff's business would not be injured in similar fashion in the future. It might, in its discretion, grant protection by an injunction broad enough to achieve that purpose.

The injunction which was granted at Special Term is not only broad, but vague. It prohibits, ‘the defendant, its agents, servants and employees, and/or those in concert with them, during the continuance of the existing contract between the plaintiff and the Empire State Theatrical Stage Employees Union, Inc., from doing any act or acts calculated to induce or cause a breach of such contract * * * and from committing any act or acts which is or are calculated to * * * cause persons desiring to enter the said theatre to refrain from so doing.’ Perhaps these broad prohibitions are intended to be confined to ‘picketing and patrolling’ and to the use of ‘unlawful means' in an ‘unlawful...

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