Bakery Sales Drivers Local Union No. 33 v. Wagshal

• Citation: 161 F.2d 380
• Decision Date: 28 April 1947
• Docket Number: No. 9121.,9121.
• Parties: BAKERY SALES DRIVERS LOCAL UNION NO. 33 et al. v. WAGSHAL.
• Court: U.S. Court of Appeals — District of Columbia Circuit

161 F.2d 380 (1947)

BAKERY SALES DRIVERS LOCAL UNION NO. 33 et al. v. WAGSHAL.

No. 9121.

United States Court of Appeals District of Columbia.

Decided April 28, 1947.

Mr. Herbert S. Thatcher, of Washington, D. C., with whom Mr. Joseph A. Padway and Miss Jacqueline Wemple, both of Washington, D. C., were on the brief, for appellants.

Mr. William E. Leahy, of Washington, D. C., with whom Mr. Philip Wagshal and Mr. Nicholas J. Chase, both of Washington, D. C., were on the brief, for appellee.

Before EDGERTON, CLARK and WILBUR K. MILLER, Associate Justices.

CLARK, Associate Justice.

Technically, this cause is before us on an appeal from an order of the District Court overruling appellants' Motion to Dismiss and an order of the District Court granting an injunction pendente lite against appellants. Appellants' petition for allowance of a special appeal from the same orders, filed subsequent to the filing of the Notice of Appeal of right, was denied by this Court at the October term, 1945. Appellee moved to dismiss the appeal on the ground that neither order is a final order appealable to this Court. Appellants answered this motion to dismiss by alleging that the cause involved a "labor dispute" and was appealable as a matter of statutory right under the Norris-LaGuardia Act, 29 U.S.C.A. §§ 101-115. This Court at the April term, 1946, ordered that the case be placed on the summary docket and set for argument on the single question as to whether the case involves a labor dispute under the terms of the Norris-LaGuardia Act. That, therefore, is the only question now to be considered by this Court.

This litigation arises out of these facts. Appellee here, plaintiff below, is the owner and operator of a delicatessen. Appellants, defendants below, are a local union organization of bakery drivers, as well as the Union's business agent. Appellee had been for a number of years the purchaser of a considerable quantity of bakery products from Hinkle's Bakery, delivered by a Union driver, who, it is undisputed, was an employee of Hinkle and not of appellee. For some time prior to July 5, 1945, the Union driver had been making deliveries to appellee at the noon hour.

This schedule was unsatisfactory to appellee because a luncheon business was operated in conjunction with the delicatessen and at this hour it was inconvenient, if not impossible, for appellee to check the bakery delivery with the driver. Appellee requested delivery at a later hour. Thereafter, Hinkle's Bakery advised appellee that the driver would make no further deliveries to her establishment and that the bakery could make and furnish appellee with no more bakery supplies. Appellee then turned to other sources for supplies and secured another connection on terms mutually agreeable to both parties.

It is undisputed that throughout the relationship between Hinkle and appellee, appellee had been consistently in the habit of paying all accounts directly to Hinkle.

On July 26, 1945, business agent Andre, representing the Union, appeared at appellee's place of business and stated that $150 was due and owing to the bakery driver who had refused further deliveries. Demand for immediate payment was made. Appellee's manager countered with the claim that he did not owe the driver anything since his practice had always been to pay directly to the bakery.

On this visit the Union representative demanded that payment be made to the driver, and also told appellee that he should immediately stop selling a certain non-Union made item that he observed in appellee's establishment. The latter portion of the demand was complied with by appellee and the sale of the non-Union item was discontinued. Appellee's manager was told that if he did not comply with all of these demands the drivers' Union would stop all shipments of bakery, milk and dairy products coming to his store from any source, even by Railway Express from outside the District of Columbia. Shortly thereafter appellee made payment, by check, to the bakery, conformable to her contractual relationship with the bakery and as had always been her practice. The check was returned by the Union representative with a letter which stated that it could not be accepted in settlement because "it was $12.22 short of the amount which is owned (sic) to our member, Leon Wolf."

On July 27, 1945, the New Philadelphia bakery which had been delivering bakery products to appellee, notified appellee that no more deliveries could be made inasmuch as appellant Union had threatened to pull out all of its drivers if any products of any sort were sold or delivered to appellee.

Some time late in July 1945, the drivers' Union set up a boycott against appellee which was successful in keeping appellee from purchasing bread either from bakers or retail stores in Washington or surrounding territory, even to the extent of a single loaf of bread. In addition to the boycott, aimed at shutting off the necessary food supplies, appellee's business was picketed by defendant Andre personally and by others and it was generally stated by the Union that appellee was involved in a "labor dispute" with the Union.

In addition to the undoubtedly effective boycott as to bakery products, plaintiff's complaint alleged (and it must be taken to be admitted by the defendants' motion to dismiss) that the defendants had also threatened to prohibit in like manner all deliveries and sales of milk and dairy products to be made to plaintiff, which, if not enjoined, would compel plaintiff to discontinue business to her irreparable damage.

On these essential facts appellee brought a complaint in the lower court asking that the Union be restrained pendente lite and permanently from boycotting and interfering with her business, and from publishing false statements. In addition to the injunctive relief requested, damages in the amount of $50,000 were asked, along with an equal amount of punitive damages. After hearing extensive argument and considering affidavits, the trial court overruled appellants' motion to dismiss and granted appellee's petition for an injunction pending trial.

Under this court's order, as noted supra, the single question before us now is: Does the complaint show the existence of a "labor dispute" as the term is defined in the Norris-LaGuardia Act.¹

If the question is to be answered in the affirmative, it seems clear that the temporary injunction was erroneously granted, for the standards prescribed by Section 7 and 9 of the Act as necessary to the issuance of injunctive relief were not met.²

In our opinion the facts of the instant case are so different from those in the two leading cases in this court cited and relied upon by appellants, as to take the case clearly outside those decisions.³ In those cases exacting consideration was given to the underlying principles which support the Norris-LaGuardia Act, and we are not disposed to modify or repudiate the policy fundamentals expressed in those opinions. We are here concerned with the specific problem of determining whether the trial court was correct in its judgment that on the facts before it no "labor dispute" within the terms of the Act, and the decisions under it, was made out.

In the first place appellants appear to urge that the mere fact that the complaint was directed toward a union, by a commercial concern which admittedly had some contact but no contractual relations with union members, is sufficient to subject the controversy to the interdiction of the Act. This argument, we think, goes substantially beyond the points decided, and the interpretations established in precedent cases. It is an unwarranted advance from the terms of the statute and the judicial interpretations stating that the proximate relationship of employer and employee need not exist in order that there be shown a labor dispute within the meaning of the law. See Lauf v. E. G. Shinner & Co., 303 U.S. 323, 58 S.Ct. 578, 82 L.Ed. 872; New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 58 S.Ct. 703, 82 L.Ed. 1012. If we were to accept appellants' argument on this point we would be providing a basis whereby even the most remote and casual association with a union employee, which resulted in disagreement, would be classed a "labor dispute". The protection of labor in its broad programs of organization, and in its specific efforts to advance the individual and collective well being of its membership does not require that we open the way, through interpretative expansion of the concept of "labor dispute", to unbridled attacks upon commercial interests which may by chance or misadventure brush a union or a union member. As appears from the decided cases, the courts have been most liberal in holding that wherever the facts show a bona fide labor controversy, founded upon genuine issues involving the protection of labor in pursuing its legitimate objectives, the Norris-LaGuardia Act is an effective bar to injunctive relief . . . even where the employer may in effect be an innocent bystander. It does not follow from this that, where the facts do not support the assertion that there is in fact a dispute, the union should have the benefit of the doubt, as against the interest in protecting the rights of private property owners whose business may be jeopardized by labor's antagonism.

The Norris-LaGuardia Act was passed to correct certain great abuses by management in the use of the injunctive process during the earlier struggles of the trades unions to gain economic and social rights for their membership. It was obviously intended by Congress to be a highly remedial Act and as such is to be liberally construed by the courts. And, indeed, it has been construed with the most extreme liberality to such a degree that it might be said with some justice that there have been extensions of the purposes of the Act not by legislative enactment but by judicial legislation. Be that as it may, no court so far as we are advised or have...