Fur Workers Union, Local No. 72 v. Fur Workers Union, 7189.

Citation105 F.2d 1
Decision Date27 March 1939
Docket NumberNo. 7189.,7189.
PartiesFUR WORKERS UNION, LOCAL NO. 72, et al. v. FUR WORKERS UNION, No. 21238, et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Samuel Levine and Sidney C. Schlesinger, both of Washington, D. C., and Louis B. Boudin, of New York City, for appellants.

Ringgold Hart and Irvin Goldstein, both of Washington, D. C., for appellees.

Before GRONER, Chief Justice, and STEPHENS and EDGERTON, Associate Justices.

STEPHENS, Associate Justice.

This is an appeal from an order of the District Court of the United States for the District of Columbia permanently enjoining the appellants from picketing the place of business of the appellee H. Zirkin & Sons, Inc., in Washington. The parties who must principally be referred to in the course of this opinion are the appellant Fur Workers Union, Local No. 72 (an unincorporated association), of the International Fur Workers Union of the United States and Canada, affiliated with the C. I. O.; the appellee Fur Workers Union, No. 21238 (an unincorporated association), affiliated with the American Federation of Labor; and the appellee H. Zirkin & Sons, Inc., a corporation of Washington, D. C.1 For convenience, these parties will be referred to as the appellant and the appellees; or where necessary for differentiation, as the appellant union, the appellee union, and the appellee Zirkin's, or Zirkin's.

The action was commenced by a bill in equity filed by the appellees. The appellants filed an answer and upon the issues joined there was a hearing. After several witnesses had testified on each side, the trial judge ordered a temporary injunction, and thereafter, upon the basis of some further testimony, a permanent one. This appeal was then taken.

The injunction was based upon findings of fact which, summarized, were to the following effect: For a long time prior to the commencement of the action, Zirkin's had been engaged in business in the District of Columbia as a retail dealer in ladies' clothing, including fur coats. Of a total of twenty-five employees, eleven were fur workers. On several occasions prior to August 15, 1937, the appellant had requested Zirkin's to acknowledge it as the sole representative of the fur workers for the purpose of collective bargaining, and to require the fur workers to join it and to negotiate a contract with it upon the subject of wages, hours and conditions of employment. During this period prior to August 15, 1937, the appellant also tried, but without success except in respect of one of the employees, to wit, the appellant Schwartz, to persuade the fur workers at Zirkin's to join it. After Schwartz had joined, at a date not made to appear, Zirkin's did recognize the appellant as the sole representative of Schwartz for collective bargaining, but consistently declined to recognize it as the representative of the other fur workers, and also refused to encourage or require their membership in it. On August 15, 1937, Schwartz went on strike and with the other appellants (except the appellant Haley, who will be referred to later) commenced picketing Zirkin's business establishment. On August 27, 1937, Haley, who had in the meantime become a member of the appellant, went on strike. On September 21, 1937, upon the application of seven of the remaining nine fur workers to the American Federation of Labor, the latter issued to the seven a certificate of affiliation authorizing the constitution of a unit to be named the Fur Workers Union, No. 21238, in Washington, to wit, the appellee union. Shortly thereafter, the remaining two of the nine fur workers joined the appellee union, whose membership then comprised all of the then active fur worker employees of Zirkin's, that is, all except Schwartz and Haley, who had, as stated above, discontinued work and had joined the picketing. The appellee union then organized as a collective bargaining unit, and on September 29, 1937, its members, through a selected representative, negotiated with Zirkin's, and on September 30, 1937, entered into a written agreement upon the subject of wages, hours and conditions of employment; and Zirkin's acknowledged and accepted the appellee union as the exclusive representative for collective bargaining of all of the fur workers then in Zirkin's actual employ. Neither the refusal of the employees other than Schwartz and Haley to join the appellant union, nor the application for the issuance of a certificate authorizing constitution of the appellee union, occurred as the result of influence, coercion or persuasion on the part of Zirkin's.2 Notwithstanding the foregoing, the appellant union, through its members and agents, continued to picket Zirkin's place of business. The picketing was in mass formation and in numbers as great as thirty-five, many of the pickets carrying banners or placards. The purpose of the picketing was to coerce Zirkin's and its fur worker employees to violate the agreement entered into with the appellee union and to cause Zirkin's to rescind its recognition of that union. The persons picketing Zirkin's place of business were disorderly in their conduct, made assaults and attempted assaults upon the fur worker employees at Zirkin's, intimidated and coerced them by threats of bodily harm, and interfered with customers of Zirkin's while they were entering or leaving the business establishment. The trial court further found as a fact that no labor dispute existed between the appellees and the appellants. The trial court made no finding that unlawful acts would be continued unless restrained, or that substantial and irreparable injury to the appellees' property would follow, or that, as to each item of relief granted, greater injury would be inflicted upon the appellees by the denial of relief than upon the appellants by the granting of it, or that the appellees had no adequate remedy at law, or that the public officers charged with the duty of protecting the appellees' property were unable or unwilling to furnish adequate protection.

In terms of findings of fact, though in reality as conclusions of law, the trial court concluded further that the appellee union was properly and legally organized as a collective bargaining unit, and that the agreement of September 30, 1937, was negotiated and consummated pursuant to the provisions of the National Labor Relations Act (49 Stat. 449, 29 U.S.C.A. § 151 et seq.), and that the picketing described was without justification and unlawful. The court made certain further conclusions of law in terms stated as such, to wit, that no labor dispute existed between the appellants and the appellees, and that the appellees individually and collectively were entitled to have the appellants and each of them and their agents, servants and employees, permanently enjoined from continuing picketing, parading, carrying banners and signs, and acts of coercion, persuasion, intimidation, interference and threats against the appellee union or any of its members, or against the appellee Zirkin's, and permanently enjoined from in any manner interfering with the property or property rights of any of the appellees.

The contentions of the parties to the appeal are based largely upon the provisions of the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C.A. § 101 et seq., and the National Labor Relations Act. The pertinent provisions of these Acts are set forth in the margin.3

Against the order of the court decreeing the permanent injunction, the appellants assigned numerous errors, but in their briefs they reduce their contentions to three, and of these, in the view we take of the case, it is necessary to discuss but one. That contention is that under the facts and law, a labor dispute exists between the appellants and the appellees, and therefore, in the absence of the complete findings required by Section 7 of the Norris-La Guardia Act, 29 U.S.C.A. § 107, the trial court was without jurisdiction to issue the injunction. And, say the appellants, the findings required by the Norris-LaGuardia Act were not made.

I

We think the contention of the appellants is correct. As will be noted from the provisions of the Norris-LaGuardia Act quoted in the margin, Section 7 deprives the United States courts of jurisdiction to issue injunctions in any case involving or growing out of a labor dispute except after findings of fact by the court that unlawful acts have been committed and will be continued unless restrained, that substantial and irreparable injury to the complainant's property will follow, that as to each item of relief granted greater injury will be inflicted upon the complainant by the denial of relief than upon the defendants by the granting thereof, that the complainant has no adequate remedy at law, and that the public officers charged with the duty to protect the complainant's property are unable or unwilling to furnish adequate protection. As appears from the foregoing statement of the case, the only one of these findings made by the trial court was that unlawful acts had been committed. Therefore, if within the meaning of the Act the case is one involving or growing out of a labor dispute, the trial court was without jurisdiction to issue the injunction.

When the facts found in the instant case are viewed in terms of the definitions of Section 13, subsections (a), (b) and (c), of the Act, 29 U.S.C.A. § 113(a-c), it is clear, we think, that the case is one involving or growing out of a labor dispute. The case within subsection (a) "involves persons who are engaged in the same industry" — to wit, the appellee Zirkin's and the fur workers in the appellant and appellee unions; it "involves persons who are engaged in the same . . . craft" — to wit, the fur workers in the two unions; it involves persons who are "employees of the same employer" — to wit, the fur worker members of the appellee union and Schwartz and Haley, who, but for the...

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