Kay-Fries, Inc. v. Martino

• Citation: 73 A.D.2d 342,426 N.Y.S.2d 304
• Decision Date: 31 March 1980
• Docket Number: KAY-FRIE,INC,AFL-CIO
• Parties: , Respondent-Appellant, v. Frank D. MARTINO, Individually and as President of International Chemical Workers Union,, et al., Appellants-Respondents.
• Court: New York Supreme Court Appellate Division

Page 304

426 N.Y.S.2d 304

73 A.D.2d 342

KAY-FRIES, INC., Respondent-Appellant, v. Frank D. MARTINO, Individually and as President of

International Chemical Workers Union, AFL-CIO, et

al., Appellants-Respondents.

Supreme Court, Appellate Division, Second Department.

March 31, 1980.

Sipser, Weinstock, Harper, Dorn & Leibowitz, New York City (Susan Martin, I. Philip Sipser and Donald E. Klein, New York City, of counsel), for appellants-respondents.

Romano, Cohen & Icobelli, Orangeburg (Sanford Cohen and George J. Malinsky, Red Hook, of counsel), for respondent-appellant.

Before MANGANO, J. P., and GIBBONS, RABIN and O'CONNOR, JJ.

MANGANO, Justice Presiding.

This is an action for, inter alia, an injunction in a labor dispute. The litigation arises as a result of a strike against plaintiff, Kay-Fries, Inc., a manufacturer of intermediate organic chemicals at a 66-acre plant in Stony Point, Rockland County. The strike commenced July 1, 1979 and Kay-Fries, Inc. sought, by order to show cause dated July 2, 1979, to restrain defendants from obstructing ingress to and egress from the plant. On August 15, 1979, a hearing was held before the Supreme Court, Rockland County. On August 16, the court, in its oral decision at the end of the hearing, stated:

"I find such a course of violent, illegal and unlawful conduct, disorderly conduct, as to necessitate this Court exercising both statutory and inherent general jurisdiction to grant the injunction prayed for against Local 677 of the International Chemical Workers Union, A.F.L.-C.I.O., its officers, its board, executive committee, however designated, and all individuals acting in concert and together with them against interference with the free access to the plant and the grounds of the plaintiff Kay-Fries, Inc. of all persons legally entering thereon, against all acts of violence whatsoever, whether by the use of thrown objects or the placement of materials designed to slash or flatten tires.

"I specifically enjoin the physical stepping in front of an automobile or truck of any person legally entering the plant.

"I do not enjoin the peaceful assembly of a limited number of pickets on the site which has been used as a matter of safety and convenience. The Court is aware from the charts here and from just a little bit of the testimony that the street is sometimes here referred to as a private street, but it appears to be used as a public road and used by a number of businesses and does not seem to be limited solely to the plaintiff; that Holt Drive (the street) and (Route) 9-W is a heavily travelled intersection and that there is no place along 9-W which is safe for the pickets. I will not enjoin the continued use of the area approximately 20 feet in from the highway (9W) as a site for general picketing. I enjoin the presence of any persons in addition to five at any one time at such picketing site, except one union official at any one time in addition to the pickets.

"The testimony here is that on many occasions there were six, seven, eight persons on one side or both sides of Holt Drive near the picket line. I order absolutely that such additional assemblage not continue.

"I limit the number of persons across the highway to not more than twelve at any one time. While I am conscious of the fact that this is property which does not belong to the plaintiff, it is clear from the testimony in this record that a great number of persons in direct apposition (sic ) to each other in this union greatly increase the chances for exacerbating any particular incident."

The uncontradicted testimony of Kay-Fries' witnesses is replete with instances throughout July and August, 1979 of such particular unlawful acts as rock throwing and tire puncturing and slashing by union members, including one instance a week before the hearing in which a truck driver was struck by a rock hurled through his cab window. Some 19 cases of tires punctured by roofing nails, some coated with adhesive so as to be capable of upright placement on Holt Drive, were reported by Kay-Fries' security personnel, whose nightly "nail patrol" during its several weeks of existence had recovered nails on many of the days on Holt Drive, the sole access road to the plaintiff's property. The missiles utilized by the strikers damaged automobiles, trucks and plaintiff's guardhouse.

The parties had agreed to the positioning of pickets at a certain location on Holt Drive. Although usually only five pickets were positioned at that point, several others would be present at the roadside or would be summoned to that spot from across the highway (9W), where they were located, with permission, under a tent on private property. The tactic was to surround vehicles using Holt Drive, usually upon their turning onto that road from Route 9W, and to permit the vehicles to advance only in slow stages by picketing directly in front of the vehicles. On several occasions one of the pickets would jump onto the hood of a passenger car as it was stopped at the picket line.

Official reports of the local police department, which did not have the manpower to assure adequate protection, showed that there had been 55 incidents during the strike, 30 of which resulted in criminal charges (harassment, reckless endangerment, disorderly conduct and malicious mischief), and 90% of which involved prosecutions against union members.

Participation in the complained-of incidents was not limited to rank-and-file; at least one member of the local's executive board was directly involved.

Kay-Fries officials testified that the company had made reasonable efforts to negotiate and Kay-Fries' witnesses indicated that the pickets had not taken advantage of their close proximity during the induced traffic tie-ups or slow-downs to inform the drivers or passengers of the issues in the strike. This record amply justifies injunctive relief.

The judgment, drafted with the participation of counsel for both parties, enjoined commission or threats to commit acts of violence such as the throwing of objects or placing of nails so as to puncture tires, limited the number of pickets at the Holt Drive location to five (not including the advising union officer at the scene), required these pickets to move to the roadside and otherwise to refrain from interfering with incoming or outgoing traffic unless a driver were to stop voluntarily to permit face-to-face communication, and prohibited assembly within approximately 50 feet of the "T"-type intersection except for the designated Holt Drive picket site and the tent area across Route 9W from the Holt Drive entrance. The court limited to 12 the number of persons who could assemble in this tent area.

After defendants served their brief on appeal, which raised for the first time the sufficiency of the trial court's recitation of fact findings under subdivision 1 of section 807 of the Labor Law, plaintiff moved by order to show cause signed November 6, 1979 for an order "permitting the court to make findings of fact, nunc pro tunc, in accordance with § 807 of the Labor Law to be filed in the record of the case and further * * * resettl(ing) the Judgment dated August 23, 1979 to recite that it was based upon such findings of fact." By order entered November 13, 1979 the court denied the motion except to the extent that the opening paragraph of the court's oral decision, quoted above, was incorporated verbatim in the resettled judgment entered November 14, 1979, which in all other respects remained identical to the original judgment.

In so ruling on the motion, the court noted in its oral decision of November 8, 1979 that the original judgment had been executed by the court after review by counsel for both parties in conference. "No issue was raised by (defendants' counsel) as to the failure to incorporate in the judgment itself the findings of fact which I made from the Bench"; however, the court continued, the detailed recital of facts offered by plaintiffs "goes beyond my language." The court stated: "I do not reject the proposed findings as not being reflected by the record. I don't think I have the power at this time to make those detailed specific findings. I made them in a general way, that I thought appropriate under the language of the statutes, and I think that it is a question only of form as to my right to now incorporate a finding previously made in a resettled judgment."

Defendants assign as error (1) the court's jurisdiction to issue the injunction; (2) the extent of the restraints imposed by the injunction; and (3) the finding that the union and its officers were responsible for the acts complained of. I reject defendants' contentions except that I would modify the extent of the injunction for the reasons set forth below. Before turning to that discussion, however, I address myself to the issue of whether the court's recitation of facts does pose a jurisdictional problem under section 807 of the Labor Law.

The language of section 807 parallels that of the Federal Norris-LaGuardia Act (U.S. Code, tit. 29, § 101 et seq.). Particularly, the "facts" and "acts" referred to in subdivision 1 of section 807 are apparently taken from sections 107 and 104, respectively, of title 29. Further, section 107 of title 29 specifies that:

"No court of the United States shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute * * * except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after findings of fact by the court,"

which findings are identical to those specified in section 807 (subd. 1, pars. (a)-(e)) of the Labor Law. (Emphasis supplied.)

Defendants point out that in construing the Federal provision, the United States Supreme Court in 1938 held that the failure to find facts was...