Fair Share Organization, Inc. v. Mitnick

• Decision Date: 19 March 1963
• Docket Number: No. 2,No. 19741,19741,2
• Citation: 188 N.E.2d 840,134 Ind.App. 675
• Parties: , 1 Empl. Prac. Dec. P 9692 FAIR SHARE ORGANIZATION, INC., an Indiana Corporation, Appellant, v. Morris MITNICK, d/b/a Central Fourth Street Drugs, Appellee
• Court: Indiana Appellate Court

Page 840

188 N.E.2d 840

134 Ind.App. 675, 1 Empl. Prac. Dec. P 9692

FAIR SHARE ORGANIZATION, INC., an Indiana Corporation, Appellant, v. Morris MITNICK, d/b/a Central Fourth Street Drugs, Appellee.

No. 19741.

Appellate Court of Indiana, Division No. 2.

March 19, 1963.

Rehearing Denied April 4, 1963.

F. L. Anderson, Jr., Anderson, Hicks & Anderson, Hilbert L. Bradley, Gary, for appellant.

Raymond M. Fox, Jr., Michigan City, Link, Link & Franceschini, La Porte, for appellee.

PFAFF, Judge.

This action was brought by the appellee to obtain a temporary injunction and a permanent injunction. The trial court granted a temporary injunction and upon the appellee's request it entered Special Findings of Fact and Conclusions of Law. This appeal followed.

'In appeals of this character the court is not concerned with pleadings and will consider only the evidence which tends to support the judgment. It is not necessary that such a case shall be made as would entitle the plaintiff to relief at all events at the final hearing. It is enough if the evidence shows the case to be a proper one for investigation in a court of equity and that the facts are such that the thing sought to be enjoined shall be prevented until the final determination of the case. Tuf-Tread Corporation et al. v. Kilborn (1930), 202 Ind. 154, 172 N.E. 353.' Weist v. Dirks (1939), 215 Ind. 568, 20 N.E.2d 969.

The Special Findings of Fact indicate that the appellee operated a retail drug store at 327 Franklin Street, Michigan City, Indiana, in which he employed four clerks and a Negro janitor. Approximately 15 percent of appellee's business was Negro trade. The appellant is a non-profit organization existing under the laws of the state of Indiana for the following purposes: To awaken the Negro politically, economically, socially and civilly; to educate the Negro to vote intelligently and to foster and promote qualified candidates for positions irrespective of their party affiliation; to educate the Negro not to spend money where he cannot work; to cooperate wholeheartedly with every other organization which is working for the alleviation of race discrimination; and to employ all legal means necessary to accomplish these purposes.

The Findings further reveal that on September 27, 1961 the appellant, through its agents and representatives, made demand upon the appellee to employ a Negro as a clerk in his drug store even if appellee had to discharge a white clerk to do so. The appellant offered no specific persons for such employment. The appellee had no need for an additional clerk or clerks at this time; therefore, he refused the appellant's demand to hire a Negro clerk. The appellee did, however, offer to employ a Negro pharmacist immediately if one were available. No member of the Negro race applied for a position with the appellee as a clerk in said drug store prior to the time of the demand made by the appellant on the appellee, and no Negro has applied for a position as a clerk since that time.

The Special Findings also state that beginning September 29, 1961, until the filing of this temporary injunction, the appellant picketed the appellee's place of business for purpose of coercing the appellee to employ a Negro as a clerk. The picketing was carried on by using from two to eight pickets; the number varied from time to time. In addition to these pickets, at different times, there were large numbers of the Negro race congregating near appellee's place of business. The appellant organization conducted the picketing by displaying and carrying some signs which were misleading and false in fact as follows:

'This Drug Store Discriminates Against Negroes.'

'No Negro Clerk or Salesman in Michigan City.'

'Help Us Fight Communism.'

'This Store Does Not Hire Negro Help.'

Further findings are to the effect that the purpose of the picketing was to intimidate customers from utilizing the services of appellee's business and the appellee suffered a loss in the volume of business in the sum of $5000.00 prior to the granting of the temporary injunction.

The trial court also found that the appellee offered to negotiate the differences between the parties but the appellant refused.

We think that the above set out Special Findings of Fact are supported by evidence and are not contrary to law.

In addition, the trial court specially found that no labor dispute exists between the appellee and his employees and that no labor dispute exists between the appellee and appellant. The first three points in the appellant's argument challenge this particular finding. Appellant contends that this is a labor dispute and that the Appellate Court is the proper court for review.

In determining its jurisdiction to hear this appeal the Appellate Court is bound by the Indiana Supreme Court decision, Fair Share Organization v. Kroger Company (1960), 240 Ind. 461, 165 N.E.2d 606, in which that court followed the United States Supreme Court ruling in New Negro Alliance et al. v. Sanitary Grocery, Inc. (1938), 303 U.S. 552, 58 S.Ct. 703, 82 L.Ed. 1012. These cases are almost identical with the case before us. In Fair Share Organization v. Kroger Company, supra, the Circuit Court granted a temporary injunction against picketing which the court found was designed to force the appellee to change its employment practices and to engage in selective hiring of Negro employees based on the proportion of Negro customers who patronize its store. The appellant wanted these changes even if such modification required appellee to discharge or transfer competent white employees and replace them with Negroes. Appellant brought its appeal to this court and this court transferred it to the Supreme Court which court held that the action grew out of a labor dispute and that the Appellate Court was the proper court for review. The case then came back to the Appellate Court, Fair Share Organization v. Kroger Company (1961), 132 Ind.App. 160, 176 N.E.2d 205; however, by this time the appellee had dismissed the action. This court held the appeal to be moot.

Once an action granting an injunction is held to have grown out of a labor dispute the determination that this court had jurisdiction must follow. The Indiana Legislature has enacted a law modeled on the federal anti-injunction legislation, the Norris-LaGuardia Act, Act of March 23, 1932, ch. 90, 47 Stat. 70, 29 U.S.C. § 101. This statute provides rules for the granting of an injunction in a labor dispute. See § 40-501 et seq., Burns' 1952 Replacement. Since this action grew out of a labor dispute, the statute must be applied. The Appellate Court is given jurisdiction to review the granting and denial of such injunctions in one of the sections of the Indiana statute, § 40-510, Burns' 1952 Replacement:

'Whenever any court of the state of Indiana shall issue or deny any temporary injunction in a case involving or growing out of a labor dispute, the court shall, upon the request of any party to the proceedings and on his filing the usual bond for cost, forthwith certify as in ordinary cases the record of the case to the Appellate Court for its review. Upon the filing of such records in the Appellate Court, the appeal shall be heard and the temporary injunction order affirmed, modified, or set aside with the greatest possible expedition giving the proceedings precedence over all other matters except older matters of the same character.'

The authorities and the statutes thus indicate that the appellant is correct as to both of its preliminary contentions, that is: (1) This action is one which has grown out of a labor dispute; and (2) the Indiana Appellate Court has statutory jurisdiction of appeals when the trial court grants an injunction in a labor dispute.

As its fifth and sixth points of argument, the appellant alleges that the evidence shows that the picketing was protected free speech and assembly under the Fourteenth Amendment of the United States Constitution and Article One, Sections Nine and Thirty-One of the Indiana Constitution. The appellee replies that he has no quarrel with the contention that the general rule is that picketing is protected free speech, but he further states that this protected right to picket cannot be used for unlawful purposes nor can it be carried on by unlawful means.

A review of Indiana decisions reveals that the Indiana courts have repeatedly held that if the purpose of picketing is unlawful then the picketing itself is unlawful and it may be enjoined. It is not immune from injunctive relief under the terms of the Indiana Anti-Injunction Statute. Roth v. Local Union No. 1460 of Retail Clerks Union (1939), 216 Ind. 363, 24 N.E.2d 280; Fulford v. Smith Cabinet Mfg. Co. (1948), 118 Ind.App. 326, 77 N.E.2d 755; Bartenders, etc. Union Local 103 A. F. of L. of South Bend v. Clark Restaurants (1951), 122 Ind.App. 165, 102 N.E.2d 220; Murrin, etc. et al. v. Cook Bros. Dairy, Inc. (1956), 127 Ind.App. 23, 138 N.E.2d 907.

The leading case upon which all the others rely is Roth v. Local Union No. 1460 of Retail Clerks Union, supra. In that case the court stated that the appellant had performed all obligations imposed upon him by law, and he was at peace with his employees. None of them belonged to or wanted to become a member of the picketing union. The object of the picketing was to compel the appellant, against his desire, to sign a closed shop contract under the terms of which his employees would be compelled to join the union against their will or be discharged. Since forcing a worker into a union is against the positive law, the court affirmed the granting of the temporary injunction; however, they did make some modifications which are not relative here. In regard to our problem the court said at p. 368, 24 N.E.2d at p. 282:

'Picketing becomes unlawful when either the object thereof or the means used is unlawful. Thus picketing for an unlawful purpose will taint and render unlawful acts done in furtherance...