Dooley v. Anton
| Decision Date | 27 May 1960 |
| Docket Number | No. 34,A,34 |
| Parties | , 168 N.E.2d 356, 46 L.R.R.M. (BNA) 2668, 40 Lab.Cas. P 66,566 Paul C. DOOLEY, Doing Business as Dooley Provision Company, Respondent, v. Thomas ANTON, Individually and as Secretary of Food Stores Localffiliated with Amalgamated Meat Cutters, Butchers and Allied Market Employees of AFL, et al., Appellants. |
| Court | New York Court of Appeals Court of Appeals |
Richard Lipsitz, Buffalo, for appellants.
Donald D. Bentley, Buffalo, for respondent.
The question we are called upon to decide is whether an injunction permanently restraining peaceful recognitional picketing by two minority unions, where the employer had recognized and contracted with a different and independent union representing a majority of his employees, may stand. It is clear that the employer's business activities affect interstate commerce for the purpose of the jurisdiction of the National Labor Relations Act (), and the lower courts necessarily assumed so in their decisions. The employer was awarded injunctive relief on the authority of our decision in Pleasant Valley Packing Co. v. Talarico, 5 N.Y.2d 40, 177 N.Y.S.2d 473.
The facts in the Pleasant Valley case were substantially similar to the facts found here, except that the independent union in that case had been certified by the National Labor Relations Board (herein called the Board), as the exclusive bargaining agent of the employees. It should be noted, however, that the right of employees to bargain collectively through an exclusive bargaining representative is not conditioned upon an antecedent certification by the Board where the majority status of the union is clearly established; an employer who denies recognition to a noncertified majority union commits an unfair labor practice (United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 76 S.Ct. 559, 100 L.Ed. 941; National Labor Relations Board v. District 50, United Mine Workers of America, 355 U.S. 453, 462-463, 78 S.Ct. 386, 2 L.Ed.2d 401; Brooks v. National Labor Relations Board, 348 U.S. 96, 100-101, 75 S.Ct. 176, 99 L.Ed. 125; National Labor Relations Board v. Kobritz, 1 Cir., 193 F.2d 8, 14).
We held, in Pleasant Valley, that recognitional picketing by a stranger union designed to coerce an employer to commit an unlawful act i.e., to bargain with the picketing union despite the fact that another union had been certified as the exclusive bargaining agent of the employees was neither protected nor prohibited activity under the Act, and hence the State courts were free to assume jurisdiction. Subsequent to the Pleasant Valley decision, however, the Supreme Court of the United States decided San Diego Building Trades Council, Millmen's Union Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 782, 3 L.Ed.2d 775, which, in the words of Justice Harlan's concurring opinion, 'will stand as a landmark in future 'pre-emption' cases in the labor field' (359 U.S. at page 250, 79 S.Ct. at page 782).
The Garmon case involved peaceful picketing designed to coerce the employer into signing a union shop agreement, and, in reversing a judgment of the California Supreme Court awarding the employer tort damages for injuries caused by the Unions' activities, the Supreme Court held (359 U.S. at pages 245-246, 79 S.Ct. at page 780):
The Garmon decision was held to be controlling in Columbia Broadcasting System, Inc. v. McDonough, 6 N.Y.2d 962, 191 N.Y.S.2d 162, where a union engaged in a strike against two companies which supplied CBS with lantern slides and photographic prints commenced secondary picketing of CBS with the avowed purpose of compelling CBS to cease doing business with the struck suppliers. Special Term temporarily enjoined the secondary picketing on the authority of the Pleasant Valley decision, but the Appellate Division reversed (8 A.D.2d 695, 185 N.Y.S.2d 46, 47) and held: Since it was arguable whether the secondary picketing constituted an unfair labor practice under section 8 (subd. (b), par. (4), cl. (A)) of the Act , we unanimously affirmed the Appellate Division (6 N.Y.2d 962, 191 N.Y.S.2d 162).
It is apparent that as a result of the Garmon decision (supra), unanimously followed in Columbia Broadcasting, the Pleasant Valley case (supra) is no longer controlling. It was certainly arguable in Pleasant Valley, where we were divided 4 to 3, whether recognitional picketing by a stranger union, in the face of an existing Board certification of a different union, violated section 8 (subd. (b), par. (4), cl. (C)) of the Act (U.S.C.A., tit. 29, § 158, subd. (b), par. (4), cl. (C)). In that case, we took the position that 'any doubt' in a particular case 'should be resolved in favor of (State) jurisdiction' (5 N.Y.2d at page, 47, 177 N.Y.S.2d [168 N.E.2d 358] at page 478). However, the basic approach to a labor pre-emption problem announced in the Garmon case is diametrically opposed to this view. In Garmon, the Supreme Court adopted the rule that any doubt must be resolved in favor of 'the exclusive primary competence of the Board', the 'governing consideration' being 'that to allow the States to control activities that are potentially subject to federal regulation involves too great a danger of conflict with national labor policy' (359 U.S. at pages 245-246, 79 S.Ct. at page 780).
The Garmon decision had not yet been rendered at the time the lower courts decided this case, and hence they understandably asserted jurisdiction under the Pleasant Valley decision. Meanwhile, the circuit courts disagreed as to whether peaceful picketing for recognition violated section 8 (subd. (b), par. (1), cl. (A)) of the Act , which makes it an unfair labor practice for a union to restrain or coerce employees in the exercise of the rights guaranteed them by section 7 ().
While the appeal to this court was pending, the Supreme Court, in the Curtis Bros. case (National Labor Relations Board v. Drivers, Chauffeurs, Helpers, Local Union (Curtis Bros.), 362 U.S. 274, at page 290, 80 S.Ct. 706, at page 715, 4 L.Ed. 710), held 'That Congress in the Taft-Hartley Act authorized the Board to regulate peaceful 'recognitional' picketing only when it is employed to accomplish objectives specified in § 8(b)(4); and that § 8(b)(1)(A) is a grant of power to the Board limited to authority to proceed against union tactics involving violence, intimidation, and reprisal or threats thereof conduct involving more than the general pressures upon persons employed by the affected employers implicit in economic strikes.' Thus, in the words of the Garmon decision (supra, 359 U.S. at page 246, 79 S.Ct. at page 780), the Supreme Court has supplied us with a 'compelling precedent' that the union activity here enjoined under the law in effect at the time of issuance of the injunction by Special Term was not an unfair labor practice, and hence the State courts were not pre-empted of jurisdiction on that count.
Whether it follows that peaceful recognitional picketing is protected activity within the compass of section 7 of the Act (U.S.C.A., tit. 29, § 157) the other side of the pre-emption coin is not altogether clear from the Curtis Bros. decision (National Labor Relations Board v. Drivers Local Union, supra). In discussing the limitations or qualifications on the right to strike and picket referred to in section 13 of the Act (U.S.C.A., tit. 29, § 163), the court made reference to the doctrine fashioned by the Board and the court 'that the Board should deny reinstatement to strikers (or pickets) who engaged in strikes (or picketing) which were conducted in an unlawful manner or for an unlawful objective' (362 U.S. 274, 281, 80 S.Ct. 706, 711; emphasis supplied).
The statement that employees who engaged in picketing 'for an unlawful objective' would not be entitled to reinstatement implies that such picketing is not protected activity within section 7. It is clear in the present case that the objective of the picketing, as found by the lower courts, was to induce the employer to commit an unfair labor practice by breaching a contract he had made with a majority independent union. In the 'sensitive area of peaceful picketing', however (362 U.S. 274, supra, at page 284, 80 S.Ct. 706, at page 712), it is susceptible of reasonable argument that picketing which is not proscribed by section 8 may be protected by section 7 for purposes of pre-empting the State's injunctive processes (see Weber v. Anheuser-Busch, 348 U.S. 468, 474-475, 75 S.Ct. 480, 99 L.Ed. 546...
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...L.Ed. 228, and San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, would apply. See, Dooley v. Anton, 8 N.Y.2d 91, 202 N.Y.S.2d 273. Second, in the absence of federal pre-emption of the field by Federal labor statutes or preclusion of jurisdiction by virt......
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Ex parte George, A-8518
...it. One other state decision deserves mention although it cannot be regarded as of controlling significance. In Dooley v. Anton, 8 N.Y.2d 91, 202 N.Y.S.2d 273, 168 N.E.2d 356, decided after second Garmon, the New York Court of Appeals held that the effect of the Garmon decision was to oust ......
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Incres S.S. Co. v. International Maritime Workers Union
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