Florsheim Shoe Store Co. v. Retail Shoe Salesmen's Union of Brooklyn & Queens, Local 287

• Decision Date: 04 June 1942
• Citation: 288 N.Y. 188,42 N.E.2d 480
• Parties: FLORSHEIM SHOE STORE CO., Inc., et al. v. RETAIL SHOE SALESMEN'S UNION OF BROOKLYN AND QUEENS, LOCAL 287, et al.
• Court: New York Court of Appeals Court of Appeals

288 N.Y. 188

42 N.E.2d 480

FLORSHEIM SHOE STORE CO., Inc., et al.

v.RETAIL SHOE SALESMEN'S UNION OF BROOKLYN AND QUEENS, LOCAL 287, et al.

Court of Appeals of New York.

June 4, 1942.

Appeal from Supreme Court, Appellate Division, Second Department.

Action in equity by the Florsheim Shoe Store Company, Inc., and another against the Retail Shoe Salesmen's Union of Brooklyn and Queens, Local 287, affiliated with the Congress of Industrial Organization, and others, to restrain defendants from picketing plaintiffs' premises. From an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered May 26, 1941, 262 App.Div. 769, 27 N.Y.S.2d 883, which reversed on the law on order of the court at Special Term (May, J.), 24 N.Y.S.2d 923, granting a motion by plaintiffs for an injunction pendente lite restraining the defendants from picketing the premises of the plaintiffs, and denied the motion, plaintiffs appeal by permission of the Appellate Division, 262 App.Div. 862, 29 N.Y.S.2d 718, which certified a question to the Court of Appeals.

Order of Appellate Division reversed and that of Special Term affirmed, and certified question answered in the affirmative.

DESMOND, J., LEHMAN, C. J., and LOUGHRAN, J., dissenting. Julian C. Sorin and Milton Waxenfeld, both of New York City, for appellants.

Samuel Null and Arthur K. Garfinkel, both of New York City, for respondents.

RIPPEY, Judge.

This is an action in equity by plaintiffs, who operate twelve retail stores in New York and Brooklyn, to restrain the defendants from picketing their premises in this state and from the performance of other coercive, oppressive and unlawful acts. The defendants are labor unions affiliated with the Congress of Industrial Organization. No answer has been interposed to the complaint. However, it is alleged in the complaint that no ‘labor dispute’ exists and it appears that such proceedings have not been taken by plaintiffs as would be required preliminary to the granting of an injunction in the event that the controversy involves a ‘labor dispute’ within the words and meaning of section 876-a of the Civil Practice Act. Upon the complaint and affidavits, Special Term granted an injunction pendente lite. 24 N.Y.S.2d 923. Upon appeal, the Appellate Division, by a divided court, reversed on the law and denied the motion for preliminary injunction on the ground that the complaint, on its face, was insufficient in law and certified to us the question ‘Does the complaint state facts sufficient to constitute a cause of action?’ 262 App.Div. 862, 29 N.Y.S.2d 718.

In a determination of that question we must consider, as respondents contend, not alone the allegations of the complaint but the assertions of affiants in the various affidavits contained in the record tending to support or negative the allegations of the complaint. Interborough Rapid Transit Co. v. Lavin, 247 N.Y. 65, 159 N.E. 863, 63 A.L.R. 188. The Appellate Division did not dismiss the complaint. By necessary implication, the certification by the Appellate Division of a question of law indicates that the denial of relief in that court was not in the exercise of discretion. Braunworth v. Braunworth, 285 N.Y. 151, 33 N.E.2d 68. To sustain the order from which the appeal is taken, we must find that the allegations of the complaint and affidavits and reasonable inferences therefrom when considered in aspect most favorable to plaintiffs are insufficient as matter of law to sustain a cause of action. There was no reversal of any finding of fact deemed by Special Term necessary to sustain the injunction. We, therefore, determine whether, as matter of law upon the record now presented, the plaintiffs can succeed. If so, we must reverse the order of the Appellate Division and reinstate the order of the Special Term. Woicianowicz v. Philadelphia & Reading Coal & Iron Co., 232 N.Y. 256, 133 N.E. 579;Partola Mfg. Co. v. General Chemical Co., 234 N.Y. 320, 137 N.E. 603;Mitchell, Inc., v. Dannemann Hosiery Mills, 258 N.Y. 22, 179 N.E. 39;Matthews v. Truax, Carsley & Co., 265 N.Y. 6, 191 N.E. 714.

The decisive question here, upon the basis above outlined, is whether the facts show that at the time of the commencement of this action a ‘labor dispute’ existed between the parties within the meaning and intent of the provisions of section 876-a of the Civil Practice Act in view of the declared legislative policy of the State.

The controversy has at all times been essentially jurisdictional based upon a contest between rival unions to determine which should be recognized by plaintiffs as collective bargaining agent for plaintiffs' employees. On the one side was the Retail Shoe Salesmen's Union, Local 1115F, A. F. of L., and on the other side were Retail Shoe Salesmen's Union, Locals 1268 and 287, C. I. O. For the purposes of this case we assume without deciding that the controversy started out as a ‘labor dispute’ between the parties to this action within the meaning of section 876-a of the Civil Practice Act.

Defendants claim that in 1938 and the early part of 1939 the plaintiffs sponsored and dominated a company union under the name of the Florsheim Retail Shoe Employees Protective Union, which, on April 18, 1939, petitioned the New York State Labor Relations Board for investigation and certification of representatives for collective bargaining, pursuant to section 705 of the New York State Labor Relations Act, Labor Law, art. 20, Cons. Laws, ch. 31. On May 8, 1939, the defendant unions filed with the Board charges of unfair labor practice, pursuant to section 706 of the act, in which they accused the plaintiffs, among other things, of having sponsored that union and of having intimidated and coerced their employees into joining that union and into refraining from joining and into resigning from the defendant unions. Thus an issue was then raised before the Board as to the propriety of granting the petition of the so-called company union for investigation and certification of a bargaining agent. However, on June 5, 1939, the defendant unions withdrew those charges with the reservation, however, of a right to renew at a later date and to interpose those charges as a defense to the proceeding for investigation and certification. Thereupon, defendants called a strike and caused seventeen of plaintiffs' employees to go out as a means more promptly and effectively to bring plaintiffs to terms. Defendants, as justification for the strike, asserted that plaintiffs interfered with, restrained and coerced their employees in their right of self-organization in the defendant unions, in their right to join and assist the defendant unions, in their right to bargain collectively through the defendant unions, in their right to engage in concerted activities through the defendant unions for the purpose of collective bargaining and other mutual aid and protection and refused to enter into contractual relations with the defendant unions. It was asserted that plaintiffs had been employing workers who were not members of the defendant unions, defendants had been unable to unionize the plaintiffs' shops and that defendant unions could better improve the lot of plaintiffs' employees by being the collective bargaining agent than the rival union.

On June 23d hearings upon the petition for investigation and certification were begun by the Board. On December 12, 1939, the Retail Clerks International Protective Association, affiliated with the American Federation of Labor, having absorbed the alleged company Protective Union, filed a petition for its affiliate, Retail Shoe Salesmen's Union, Local 1115F, A. F. of L., and was permitted to intervene in the proceeding and be substituted in the place of the Protective Union. It is alleged in the complaint and confirmed by the record that a controversy there existed concerning the representation of certain employees, that Retail Clerks International Protective Association claimed to represent a majority of plaintiffs' employees while defendant Locals 287 and 1268 claimed to represent certain employees and that Retail Clerks International Protective Association requested the Board to investigate such controversy pursuant to the provisions of the New York State Labor Relations Act and certify the name of the representative designated and selected by plaintiffs' employees for the purpose of collective bargaining. Thereupon, the defendant unions again intervened and deemed it necessary to refile with the Board charges of unfair labor practice in that proceeding in answer to the petition. From then on numerous hearings were had in which the defendants appeared by counsel, made moves to stay the hearing on the petition and called witnesses who testified on the issue raised by their answer.

Summarizing defendants' position throughout, the charges related only to the propriety of certifying a collective bargaining agent in the pending proceeding for certification and were, substantially and essentially, the answer of the defendant unions to the petition therefor and so recognized. No complaint was ever issued upon the charges nor was effort seriously made to secure the issuance of any such complaint. The contention of the defendants was that Local 1115F was dominated by the plaintiffs, that the plaintiffs were so interfering by coercive and improper measures that it would be unjust to require the holding of an election to determine a representative for collective bargaining, and that a fair election could not be held in view of the conduct of the plaintiffs toward their employees. There was not even a pretense made by defendants that the charges of unfair labor practice were separate and distinct and separately identified from the proceeding instituted by their rival union for investigation and determination of a collective bargaining agent and the Board so understood the situation. The alleged illegal activities of the plaintiffs were...