Exch. Bakery & Rest., Inc. v. Rifkin

CourtNew York Court of Appeals
Citation245 N.Y. 260,157 N.E. 130
Decision Date31 May 1927

Action by the Exchange Bakery & Restaurant, Inc., against Louis Rifkin, individually and as president of Waiters' and Waitresses' Union, Local No. 1, and others. From a judgment of the Appellate Division (216 App. Div. 663, 215 N. Y. S. 753), reversing a judgment of the Special Term for defendants, and granting a judgment for plaintiff, defendants appeal.

Judgment of the Appellate Division reversed, and that of the Special Term affirmed.

See, also, 214 App. Div. 777, 210 N. Y. S. 847; 215 App. Div. 709, 212 N. Y. S. 806.

Crane, Kellogg, and O'Brien, JJ., dissenting.Appeal from Supreme Court, Appellate Division, First Department.

Max D. Steuer, of New York City, Harold H. Corbin, of Saratoga Springs, and Edward J. Bennett, of Brooklyn, for appellants.

Carl Sherman, of New York City, for respondent.


[1] A workman may leave his work for any cause whatever. He need make no defense, give no explanations. Whether in good or bad faith, whether with malice, or without, no one can question his action. What one man may do, two may do or a dozen, so long as they act independently. If, however, any action taken is concerted; if it is planned to produce some result, it is subject to control. As always, what is done, if legal, must be to effect some lawful result by lawful means, but both a result and a means lawful in the case of an individual may be unlawful if the joint action of a number.

A combination to strike or to picket an employer's factory to the end of coercing him to commit a crime, or to pay a stale or disputed claim, would be unlawful in itself, although, for an individual, his intent in leaving work does not make wrongful the act otherwise lawful. His wrong, if wrong there be, would consist of some threat, of something beyond the mere termination of his contract with his employer. Likewise a combination to effect many other results would be wrongful. Among them would be one to strike or picket a factory where the intent to injure rests solely on malice or ill will. Another's business may not be so injured or ruined. It may be attacked only to attain some purpose in the eye of the law thought sufficient to justify the harm that may be done to others.

The purpose of a labor union to improve the conditions under which its members do their work; to increase their wages; to assist them in other ways, may justify what would otherwise be a wrong. So would an effort to increase its numbers and to unionize an entire trade or business. It may be as interested in the wages of those not members, or in the conditions under which they work as in its own members because of the influence of one upon the other. All engaged in a trade are affected by the prevailing rate of wages. All, by the principle of collective bargaining. Economic organization to-day is not based on the single shop. Unions believe that wages may be increased, collective bargaining maintained only if union conditions prevail, not in some single factory, but generally. That they may prevail, it may call a strike and picket the premises of an employer with the intent of inducing him to employ only union labor. And it may adopt either method separately. Picketing without a strike is no more unlawful than a strike without picketing. Both are based upon a lawful purpose. Resulting injury is incidental and must be endured.

Even if the end sought is lawful, the means used must be also. ‘Picketing’ connotes no evil. It may not be accompanied, however, by violence, trespass, threats, or intimidation, express or implied. No crowds may be collected on or near the employer's property. The free entrance of strangers, customers, or employees may not be impeded. There may be no threats-no statements, oral or written, false in fact, yet tending to injure the employer's business. We here make no attempt to enumerate all the acts that might make picketing illegal. Doubtless, there are others. When the situation in a particular case comes to be reviewed by the courts, there will be no difficulty in drawing the line between acts permissible and acts forbidden.

[8][9] We have been speaking in terms of the workman. We might equally have spoken in terms of the employer. The rule that applies to the one also applies to the other. The latter may hire and discharge men when and where he chooses and for any reason. But, again, any combination must be for lawful ends secured by lawful means. If believed to be for their interests, employers may agree to employ nonunion men only. By proper persuasion they may induce union men to resign from their unions. They may not, however, because of mere malice or ill will, combine to limit the opportunities of any one to obtain employment. The means adopted must be lawful. No violence or intimidation, no threats, no trespass, no harmful false statements, no means that would be improper, were the workman the actor.

In writing as we have done, we have in mind cases where the strike, the picketing, or the lockout is made use of by associates in the same trade or business; where the end sought, therefore, directly affects those, masters or men, engaged therein. We do not consider so-called sympathetic strikes, boycotts, or lockouts where interest is more remote. Questions that may arise under such circumstances are not before us. Neither do we consider strikes or lockouts not connected with labor disputes, but designed to enforce political action.

[11][12] Where the end or the means are unlawful and the damage has already been done, the remedy is given by a criminal prosecution or by a recovery of damages at law. Equity is to be invoked only to give protection for the future. To prevent repeated violations, threatened or probable, of the complainant's property rights, an injunction may be granted. This is no novel assumption of jurisdiction. For many years, while leaving to the law redress for single or isolated wrongs to property rights, where there is danger of their repetition, the chancellor has used this weapon to protect the innocent. The theoretical basis of this power has been said to be the avoidance of a multiplicity of actions. Whatever the basis, however, the power is undoubted. It has been exercised in many ways. Repeated trespasses have been prevented; the continued pollution of streams; the maintenance of nuisances; the misuse of a trade-name. Other instances might be cited. The rule is not different where behind the facts presented to the court lies a labor dispute. Freedom to conduct a business, freedom to engage in labor, each is like a property right. Threatened and unjustified interference with either will be prevented. But the basis of permissible action by the court is the probability of such interference in the future, a conclusion only to be reached through proof contained in the record. Unless the need for protection appears, equity should decline jurisdiction.

[15] In the case before us findings of fact were made by the Special Term, resulting in a judgment for the defendants. Most of such findings were reversed by the Appellate Division. As a substitute new findings were made by that court and a sweeping injunction was granted to the plaintiff. It therefore becomes our duty to review these findings and to determine for ourselves whether they are sustained by the weight of the evidence. Civil Practice Act, § 589.

[16][17] In 1918 the plaintiff corporation was formed. From the first its intention was to employ only nonunion waitresses in its restaurant. Always, with one exception, an applicant for employment was questioned as to her membership in any union and only those who denied such a connection were engaged. No contract as to this matter was then made, but the applicant was hired at the rate of $8 per week for full time, or $5 for half time. This hiring was at will and might be ended at any time by either party. Cuppy v. Stollwerck Bros., 216 N. Y. 591, 111 N. E. 249. Thereafter the waitresses were asked repeatedly if they had joined a union. They always denied it. If it had been discovered that their denials were untrue, they would have been at once discharged. Also after beginning work each waitress signed a paper stating that it was the understanding that she was not a member of any union, pledging herself not to join one or if she did to withdraw from her employment. She further promised to make no efforts to unionize the restaurant, and says that she will attempt to adjust by individual bargaining any dispute that may arise. This paper was not a contract. It was merely a promise based upon no consideration on the part of the plaintiff. From 14 to 16 waitresses were employed, and, so far as appears, the conditions of their work was satisfactory to them.

The three defendants are members of a waiters' union. Its schedule of wages is $15 a week for full time and $10 for half time. Apparently at their instigation 4 waitresses joined the union after employment was obtained. They had not been members on the date when they were originally engaged. The fact that they had done so was not known to the plaintiff. Efforts were also made to induce other employees to take the same course. At the same time the plaintiff was asked to unionize its restaurant, but it refused.

The Appellate Division has based its decision in part upon the theory that the defendants wrongfully attempted to persuade the plaintiff's employees to break this alleged contract. Even had it been a valid subsisting contract, however, it should be noticed that, whatever rule we may finally adopt, there is as yet no precedent in this court for the conclusion that a union may not persuade its members or others to end contracts of employment where the final intent lying behind the attempt is to extend its influence. In Lamb v. S. Cheney & Son (227 N. Y. 418, 125 N. E. 817) we said that where a specific...

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