Building Service and Maintenance Union Local No. 47 v. St. Lukes Hospital, 843188

CourtCourt of Common Pleas of Ohio
Citation11 Ohio Misc. 218,227 N.E.2d 265
Docket NumberNo. 843188,843188
Parties, 40 O.O.2d 500 BUILDING SERVICE & MAINTENANCE UNION LOCAL NO. 47, Plaintiff, v. ST. LUKES HOSPITAL, etc., et al., Defendants.
Decision Date14 June 1967

HOOVER, Judge.

One of the most difficult things for a trial judge to do, is to tell a sincere litigant that his position is mistaken. I have that unhappy duty.

This is an equity action brought by Local No. 47 of the Building Service and Maintenance Union against St. Lukes Hospital, a non-profit corporation, and against Kenneth Shoos, the hospital's superintendent. In essence the plaintiff says it is the duly designated bargaining agent of several hundred of the hospital's non-professional workers who are on strike, and plaintiff complains of two alleged acts of the defendants, namely:

1. Violation of the Cleveland city ordinance re: strikebreaking, and

2. Refusal of the defendants to bargain collectively with the plaintiff.

Plaintiff seeks an injunction to stop the alleged ordinance violation and to order the defendants to bargain collectively with the plaintiff.

Whether one is a baseball umpire, a football referee or a court judge, in making decisions he must turn to the book to find the governing rules. He can't make up rules extemporaneously as he goes along, however much sometimes he would like to do so. This is a court of equity in which plaintiff is seeking an injunction, and the rule book has some very definite requirements by which the right to an injunction is gauged.

First, one is confronted with what the rule book says about the nature of an injunction. It is recognized as a most powerful judicial weapon, often called 'the strong arm of the law,' and often characterized as summary, peculiar, high or extraordinary. No power is more dangerous in a doubtful case. For these reasons it is exercised sparingly and cautiously. One does not run to a court of equity for everything as he does to a shopping center. 29 Ohio Jur.2d, Injunctions, 179, Section 15; Arthur Murray Dance Studios of Cleveland, Inc. v. Witter, Ohio Com.Pl., 105 N.E.2d 685, 694; 62 Ohio Law Abst. 17, 31, (and authorities cited; in this case an injunction was denied to an employer).

Second, one faces what the rule book says about the burden of proof. The burden of establishing, by the required degree of proof, that one is entitled to an injunction, is on the one who seeks the injunction. 29 Ohio Jur.2d, Injunctions, 406, Section 178; Arthur Murray Dance Studios of Cleveland, Inc. v. Witter, supra, (and authorities cited).

Third, right there in the rule book is spelled out how great this burden is. The injunction seeker must prove that he has a clear legal right to the injunction. A mere moral obligation is not sufficient. If the right is doubtful, injunction is denied. 29 Ohio Jur.2d, Injunctions, 177-78, Section 14, 180-81, Section 16, 240-41, Section 58, 407-08, Section 179; 20 Ohio Jur.2d, Equity, 128, Section 63; 27 Am.Jur.2d, Equity, 516-17, Section 1; Arthur Murray Dance Studios of Cleveland, Inc. v. Witter, supra, (and authorities cited).

Fourth, the rule book, too, shows that equity does not generally create rights. It merely provides remedies for recognized rights that exist. It will provide service for a car but not a car. 20 Ohio Jur.2d, Equity, 26, Section 7, 39, Section 13; 29 Ohio Jur.2d, Injunctions, 168, Section 5; 27 Am.Jur.2d Equity, 518, Section 2, 522, Section 5; Chapman v. Sheridan-Wyoming Coal Co., Inc., 338 U.S. 621, 631, 70 S.Ct. 392, 94 L.Ed. 393.

With the rule book open, we approach plaintiff's complaints. First we ask-has the plaintiff proved a 'clear right' to enjoin the alleged violation of the city's strikebreaking ordinance? To determine this intelligently we must know what the law was prior to the ordinance and how the ordinance altered that law.

Strikes and replacement of strikers have long been, and still are, sensitive and emotional areas for both employer and employee. If, for a moment, each could realistically stand in the other's set of shoes, he probably would better understand the other. When employees strike, an employer tends to feel that his employees are injuring or destroying his business. When an employer replaces a striker, that employee feels that someone is taking his job-jeopardizing his livelihood.

The natural, emotional, human resentment at being replaced is understandable. No one likes to be edged out even in a legal way, whether he be an incumbent public official, the president of a union or corporation, or a striking employee. Nevertheless, however detestable the striker's replacement may be in the eyes of the one being replaced, is the act of replacement illegal? What is the status of a so-called 'strikebreaker'? What is a strikebreaker? We accept this general definition (83 C.J.S. 546):

'Strikebreaker. One who takes the place of a workman on strike; a worker who takes the place of one who has left work in an effort to force the employer to agree to demands made.'

There is a popular misconception about the ordinary strikebreaker. In certain understandable ears the very word carries an odious connotation, but it does not carry an illegal connotation. The common law (apart from some provision of a constitution, statute or ordinance saying otherwise) does not condemn ordinary strikebreaking as either a civil or criminal wrong. It is legally legitimate.

That same Common law has long recognized two fundamental, legal rights-one an employee's right and the other an employer's right-and when either exercised that legitimate right the other often considered him something of a scoundrel. One was the employee's right to strike even though it emotionally upset the employer. The other was the right of the employer to break the strike in the sense that he had the right to replace the striker even though the striker became emotionally upended. In neither case did resentment and emotion become the law.

This law is not something that this Court has just now concocted for the first time. It has been in Ohio's common law rule book at least since 1903 when it was inscribed there by the case of The L. Hoster Brewing Co. v. Giblon et al., 1 Ohio N.P., N.S. 377, wherein the court, 'in view of the fact that there is probably some misunderstanding,' took particular care to state the law, saying (p. 380):

'Whether the defendants here (strikers) and their fellow employes have left the service of plaintiff (employer) of their own volition, or whether they have been discharged * * * their rights after leaving that employment are the same. They have a right to refuse to work upon the terms offered, whatever these terms may be, and they have a right to unite themselves together for the purpose of obtaining better conditions of employment, and they have a right to use all peaceful means to that end. * * * These defendants being no longer in the employment of the plaintiff, cannot again enter its employment except by mutual agreement of the parties. The plaintiff upon its part has the same freedom of choice under the laws. It may again employ the defendants or employ others in their places. Whtever difference of opinion there may be as to the propriety or policy of other men taking the places of men on strikes, yet under the law that right is clear and undisputed, and there never was a decision by any court to the contrary.'

See also: 33 Ohio Jur.2d, Labor, 165, Section 47; Pancake, Inc. v. Cincinnati Joint Executive Board, Ohio Com.Pl., 160 N.E.2d 743, 81 Ohio Law Abst. 44, Syl. 3, 51, 52; Eureka Foundry Co. v. Lehker, 13 Ohio Dec. 398, 402; Fulworth Garment Co. v. International Ladies Garment Workers Union, 15 Ohio N.P., N.S., 353, 359. The last part of the last quoted sentence is a strong statement-' there never was a decision by any court to the contrary.' Significantly, counsel have not furnished and we have not been able to find any common law holding to the contrary either inside or outside of Ohio.

Having exposed the common law to view, we now consider the pertinent parts of the pertinent ordinance (Section 13.112501 of the Codified Ordinances Of The City Of Cleveland, reported in The City Record of November 4, 1964, at page 34) in order to determine whether there has been an ordinance violation:

'Employment of Persons Where a Lockout or Strike Exists.

(a) It shall be unlawful for any person, firm or corporation directly involved in a labor dispute to willfully and knowingly employ, or to contract or arrange for the recruitment or procuring for employment, any person who customarily and repeatedly offers himself for employment for the duration of a strike or lockout in place of employees involved in a strike or lockout.'

From just a cursory reading it is obvious that this ordinance does not pretend to obliterate the general common law which gives an employer the right to replace a striking employee. It injects prohibition into just a very narrow niche. Essentially two things must exist in order to make up the prohibited act, namely:

(1) The employer must willfully and knowingly employ or contract or arrange for the recruitment or procuring for employment of

(2) A person who customarily and repeatedly offers himself for employment for the duration of a strike or lockout in place of employees involved in a strike or lockout.

The hospital does not deny that some of its striking employees have been replaced, but such mere replacement does not outrage the ordinance any more than it does the common law. To save space, the court will not parade the voluminous evidence on this point, but plaintiff's clincher evidence is woefully lacking. Particularly has it...

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