Davis Bros. Fisheries Co. v. Pimentel

• Decision Date: 11 March 1948
• Citation: 78 N.E.2d 93,322 Mass. 499
• Parties: DAVIS BROS. FISHERIES CO., Inc., et al. v. PIMENTEL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 499

78 N.E.2d 93

DAVIS BROS. FISHERIES CO., Inc., et al.

v.PIMENTEL.

Supreme Judicial Court of Massachusetts, Essex.

March 11, 1948.

Exceptions from Superior Court, Essex County.

Suit by Davis Bros. Fisheries Co., Inc., and others against Manuel Pimentel, Jr., for injunction against picketing or otherwise interfering with plaintiffs' business. From interlocutory and final decrees enjoining the defendants, the defendants appeal and bring exceptions.

Exceptions overruled and interlocutory and final decrees affirmed.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and WILLIAMS, JJ.

D. Burstein, of Boston, for plaintiff.

H. Wise, of Boston, for defendants.

SPALDING, Justice.

The plaintiff, a corporation engaged in canning fish, brings this bill in equity against the officers and members of two unions: the Sea Food Workers' Union, Series 1572, Local 1 of Gloucester, Massachusetts, hereinafter called the workers' union, and the Atlantic Fishermen's Union, No. 21455, ¹ hereinafter called the fishermen's union. The bill alleges that the workers' union was engaged in an unlawful strike and that it had entered into an unlawful combination and conspiracy with the fishermen's union to interfere with and injure the plaintiff's business, and sought an injunction against interference with its business by picketing or otherwise. From interlocutory and final decrees enjoining the defendants, the defendants appealed. The judge made findings of material facts and the evidence is reported. The defendants also bring certain questions here by exceptions.

The findings of the judge included the following: The plaintiff is a corporation which operates a fish cannery in Gloucester. The workers' union is an unincorporated labor organization, the members of which are employed in processing and canning fish. The fishermen's union is a labor organization embracing workmen who constitute the crews of fishing boats operating out of Gloucester. Both unions are affiliated with the American Federation of Labor. On September 16, 1942, the plaintiff and the workers' union entered into an agreement which ceased to be operative after March 31, 1943.² After the expiration of this agreement no contract existed between the plaintiff and the workers' union.

The defendant White, a business agent of the workers' union and the officer in charge of its affairs, was desirous of entering into a new agreement with the plaintiff. The contract proposed by him was to include provisions that the workers' union was to be the exclusive bargaining agent of the plaintiff's employees, that all of its employees be required to join the union,³ and that he (White) be given unrestricted rights of visitation to the plaintiff's factory. There was no dispute between the plaintiff and the workers' union with respect to working conditions and wages. The wages paid by the plaintiff were for the most part higher than the union schedule. At the time that these negotiations were being conducted the vast majority of the plaintiff's employees were not members of the workers' union and the plaintiff was unwilling to recognize it as the exclusive bargaining agency of its employees. The workers' union at all times refused to permit an election to be conducted by either the state or national labor relations board for the purpose of determining whether the employees wished it to be their exclusive bargaining agent. ‘The great majority of the employees of the plaintiff did not wish to be represented by * * * [the workers' union] and did not wish it to be the sole and exclusive bargaining agent of the plaintiff's employees.’

Failing to reach an agreement with the plaintiff, the workers' union in accordance with the War Labor Disputes Act⁴ gave notice of the existence of a labor dispute which threatened to interrupt war production, and upon the expiration of the statutory period of thirty days the national laborrelations board caused a vote of the plaintiff's employees to be taken by secret ballot to determine whether they desired to permit an interruption of war time production. Fifty-one employees voted in the negative and five in the affirmative. Immediately upon learning of the vote, the workers' union called a strike and proceeded to picket the plaintiff's premises. On the first day of the strike all of the plaintiff's employees crossed the picket line. Thereafter only five employees, all members of the workers' union, stayed out on strike.

During the period that picketing continued no Gloucester boat manned by crews which were members of the fishermen's union delivered any fish to the plaintiff. Due to the fact that the crews of practically all of the fishing boats operating out of Gloucester were members of fishermen's union, that union had a monopoly of such labor and no captain or owner of a fishing boat could attempt to deliver fish to the plaintiff without being faced with labor trouble with that union. The judge ruled that the strike called by the workers' union was illegal and that the action of the fishermen's union ‘constituted an illegal combination in the nature of a sympathetic strike or boycott.’

No evidence was introduced touching the issue of damages, and it was stipulated by the parties that the failure to present any evidence on this issue was without prejudice to the plaintiff's right to recover damages in an action at law. There is no evidence that the picketing at any time was other than peaceful, or that the number of pickets employed was excessive.

Facts in addition to those hereinbefore stated will be mentioned hereinafter as occasion requires.

The findings of the judge establish that one of the purposes, if not the principal one, of the strike was to obtain a closed shop. This finding is supported by evidence. But even if we assume, as the defendants argue, that the evidence required a finding that the workers' union sought a union shop (one where the employees who have been hired by the plaintiff must join the union after they have been in its employ a specified period of time), it would not affect the result. It is settled by our decisions that a strike either for a closed shop or for a union shop is illegal. This subject has been fully discussed in the recent case of Colonial Press, Inc., v. Ellis, 321 Mass. 495, 74 N.E.2d 1, where the authorities are collected. What was said there need not be repeated. That decision is controlling here.

On behalf of the workers' union, however, it is urged that to enjoin if from picketing in the circumstances here disclosed would violate its right of free speech under the Constitution of the United States. Amendment 1. In support of this contention several recent decisions of the Supreme Court of the United States are relied on.⁵ With respect to a similar contention in Colonial Press, Inc., v. Ellis, 321 Mass. 495, at page 501, 74 N.E.2d 1, at page 4, we said, ‘We do not understand, however, that that court has held that picketing in support of an unlawful objective cannot be enjoined. See Carpenters & Joiners Union of America, Local No. 213, v. Ritter's Cafe, 315 U.S. 722, 727, 728, 62 S.Ct. 807, 86 L.Ed. 1143;Bakery & Pastry Drivers & Helpers Local 802 of the International Brotherhood of Teamsters v. Wohl, 315 U.S. 769, 775, 62 S.Ct. 816, 86 L.Ed. 1178; 56 Harv.L.Rev. 180, Teller, Picketing and Free Speech; 56 Harv.L.Rev. 513, 529, Dodd, Picketing and Free Speech: ‘A Dissent. Until there is an unequivocal pronouncement to that effect we adhere to the view of the law laid down in our own decision.’ See Saveall v. Demers, 322 Mass. 70, 73, 74, 76 N.E.2d 12.

That part of the decree which enjoins the fishermen's union is based upon the findings that both unions were engaged in an unlawful conspiracy to achieve an unlawful purpose and that the action of the fishermen's union constituted ‘an illegal combination in the nature of a sympathetic strike or boycott.’ Since the fishermen's union earnestly challenges these findings, it becomes necessary to consider whether they are supported by the evidence. The pertinent evidence touching this issue was as follows: The defendant White told O'Hara, an officer of the plaintiff, that if he did not sign a contract with his union (the workers' union) the plaintiff would not get any fish. The agents representing the fishermen's union at Gloucester at the time of the strike were Gomes and Sparrow. On the day the strike began the defendant White met Sparrow and informed him that the plaintiff's premises were being picketed and asked what he (Sparrow) could do about it. Sparrow said that a boat, the ‘Catherine,’ was in, that he thought the captain was a union member, and that he would go down to see him. When he got to the wharf the ‘Catherine’ had not arrived so he wrote a message on a card and gave it to a picket who subsequently delivered it to one Clark, the captain of the ‘Catherine.’ The message was as follows: ‘Capt. Clark. Don't land any fish at Davis Brother wharf by order Fishermens Union. John Sparrow, Delegate.’ The captain, who was a member of the fishermen's union, upon receiving the message regarded it as an order and went elsewhere. Sparrow testified that members of the fishermen's union were not permitted to cross a picket line and if they did they could ‘be brought up on charges.'⁶ Gomes while the strike was on told O'Hara that if he signed a contract with the workers' union he would be ‘all right’ but otherwise he was ‘not going to get fish.’ McHugh, who was secretary-treasurer of the fishermen's union, said to O'Hara while the trial of the case was in progress, ‘Well, Jack, haven't we put you out of business yet?’ McHugh stated that the position of the fishermen's union in a case of picketing by another union was that its members were ‘not to reason why’ and that those who crossed a picket line would be expelled. A few days after the strike started Sparrow at a hearing in court authorized a stipulation to be entered into on behalf of...