Cinderella Theater Co. v. SIGN WRITERS'LOCAL UNION

• Decision Date: 06 March 1934
• Docket Number: No. 6191.,6191.
• Citation: 6 F. Supp. 164
• Parties: CINDERELLA THEATER CO., Inc., et al. v. SIGN WRITERS' LOCAL UNION NO. 591 et al.
• Court: U.S. District Court — Western District of Michigan

6 F. Supp. 164

CINDERELLA THEATER CO., Inc., et al. v. SIGN WRITERS' LOCAL UNION NO. 591 et al.

No. 6191.

District Court, E. D. Michigan, S. D.

March 6, 1934.

Ralph E. Routier, of Detroit, Mich., for plaintiffs.

William L. Thorp, of Detroit, Mich., for defendants.

TUTTLE, District Judge.

This suit involves the construction and constitutionality of the act of Congress of March 23, 1932 (chapter 90, §§ 1-15, 47 Statutes at Large, 70-73), being sections 101-115 of title 29 of the United States Code (29 USCA §§ 101-115), entitled "An Act to amend the Judicial Code and to define and limit the jurisdiction of courts sitting in equity, and for other purposes," the provisions of which act, if valid, materially restrict the power of federal courts with respect to the issuance of injunctions in labor disputes.

The plaintiffs, Cinderella Theater Company, Inc., and Imperial Building Corporation, are Delaware corporations which own and operate moving picture theaters in the city of Detroit, and the defendants, Sign Writers' Local Union No. 591, an unincorporated association, which is a labor union, and its officers, are citizens and residents of Michigan, the jurisdiction of this court being properly invoked upon the basis of the requisite diversity of citizenship accompanied by the statutory amount of the value of the matter in controversy.

The bill of complaint alleges that the defendants have been pursuing a course of unlawful conduct, consisting specifically of the placing of stench bombs in the plaintiffs' said theaters, the mutilation of signs and posters displayed by the plaintiffs on the outside of such theaters, the maintenance of patrols in front of the entrances to such theaters, bearing signs reciting that the said theaters are "unfair to organized labor," and the distribution of cards containing similar language, all with the object and effect of causing the patrons of such theaters to discontinue such patronage, and thereby to compel the plaintiffs to discharge from their employ a certain nonunion sign writer and to employ in his place a member of the defendant union; and the bill prays that the defendants be enjoined by this court from continuing the acts and conduct so alleged. The answer of the defendants denies that they have been guilty of any unlawful act towards the plaintiffs and asks for a dismissal of the bill. After a full hearing of the evidence of the parties in open court, the cause was heard and submitted on the pleadings and proofs and on the briefs of counsel for the parties, to all of which pleadings, proofs, and briefs, and to the questions thereby raised and discussed, I have devoted most careful consideration and study.

The material facts, as I find them from the record, may be stated, sufficiently for the purposes of this opinion, as follows:

The plaintiffs for several years have owned and operated, in the city of Detroit, the Cinderella Theater and the Roosevelt Theater, both of which are moving picture theaters which have enjoyed a considerable patronage by the general public. In January, 1933, the plaintiffs were requested, by officers of the defendant union, to discharge from their employ their one sign writer, a certain George Campbell, who was not, and is not, a member of any labor union, and to employ in his place a union sign writer, which request was promptly refused, for the reason that he had been a faithful, efficient employee of the plaintiffs for the preceding seven years and his services were entirely satisfactory to them. A few days later, and in the same month, on two successive Sundays, so-called stench bombs were discharged, by unknown persons who have not been discovered or identified, in the said Roosevelt Theater, as a result of which the performances then in progress were interrupted and a number of disgusted patrons left the theater, some of whom have never returned. There has been no recurrence of this outrage in either theater since January, 1933. Beginning, however, shortly afterwards, and following another request by a representative of the defendant union for the discharge of this employee (which request also was refused) and continuing thereafter, except for certain intervals, during the remainder of the year 1933, the advertising posters and signs in front of the said theaters were, on numerous occasions and usually at night, defaced and mutilated by unknown persons who were never apprehended, discovered, or identified, such posters and signs being cut and torn so as to be illegible, and stickers containing the words, "Unfair to Organized Labor," being pasted thereon.

Finally, commencing in the middle of December, 1933, and continuing, with substantial regularity, until the filing of this bill of complaint on January 3, 1934, and the issuance of the preliminary restraining order thereon, the defendant union established and maintained in front of each of the said theaters patrols, consisting of what are commonly known as "sandwich men," who, in groups of two or sometimes three, walked abreast, back and forth, on the public sidewalk in front of the entrance of each of the said theaters, carrying signs bearing the words, "Please Do Not Patronize This Theater. Unfair to Sign Writers' Union," and "This Theater Unfair to Organized Labor." Cards bearing similar language were distributed in the neighborhood of each of the two theaters. The plaintiffs appealed to the lieutenant in charge of a police station in Detroit to stop the patrolling of these "sandwich men," but were informed by him that the police would not interfere unless a disturbance of the peace was being created or pedestrians were being obstructed or interfered with, and, as no such disturbance, obstruction, or interference appeared, the police refused to take any action in the matter. It is not shown that the acts just mentioned were accompanied by any fraud or violence, or that they were not peaceable.

It is clear that, while it would be practically impossible for the police to prevent stench bombing and sign mutilations, because of the difficulty of catching and identifying the offenders, they are willing and anxious so to do. They could easily prevent the patrolling, as well as the displaying of "Unfair" signs or banners and the distribution of the cards in question, if they wished so to do, so that it cannot be said that the public officers charged with the duty to protect the plaintiffs' property are unable to furnish to plaintiffs adequate protection against such patrolling, sign displaying, or card distribution, although they are, for the reason already stated, unwilling so to do. The natural and inevitable effect of the acts already described would be, and has been, the loss to the plaintiffs of at least some of the patronage of their theaters by the public, with consequent financial damage to their business. It does not, however, appear from any direct evidence or other clear proof that any of the defendants actually participated in, actually authorized, or ratified, any of the acts of bombing and destruction of which the plaintiffs complain. Nor is it shown, or claimed by the plaintiffs, that they made every reasonable effort, or any effort, to settle the dispute here involved, either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration.

The defendants deny that they have authorized or sanctioned any bombing, mutilation, or defacement of signs or posters, or any other act of violence or lawlessness toward the plaintiffs or their property. They admit, however, that they established and maintained, and are responsible for, the patrols and "Unfair" signs in question and the distribution of cards of similar import, but insist that not only are they entitled so to do under general principles of law and equity, but also that under the circumstances presented here this court cannot, even though the patrolling be unlawful, grant to the plaintiffs any of the injunctive relief sought against the defendants, for the reason that the power to grant such relief has been taken away from this court by the provisions of the act of Congress already cited. With this latter contention of the defendants, after a careful study of the language of the act and of the legal rules and principles applicable, I agree, for reasons now to be stated.

The act in question is, as already noted, entitled, "An Act to amend the Judicial Code and to define and limit the jurisdiction of courts sitting in equity, and for other purposes."

It will be noted that the act does not attempt to broaden, limit, or define the rights of either employee or employer, nor does it assume to place any restrictions upon the state courts. The sole purpose seems to be to regulate, define, and limit the power of federal courts in labor disputes. The provisions applicable here are contained in sections 1, 2, 4, 5, 6, 7, 8, 9, and 13 of the act (29 USCA §§ 101, 102, 104, 105, 106, 107, 108, 109, 113).

Section 1 is as follows:

"No court of the United States, as herein defined, shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this act; nor shall any such restraining order or temporary or permanent injunction be issued contrary to the public policy declared in this act."

Section 2 provides as follows:

"In the interpretation of this act and in determining the jurisdiction and authority of the courts of the United States, as such jurisdiction and authority are herein defined and limited, the public policy of the United States is hereby declared as follows: Whereas under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of...