Keith Theatre, Inc. v. Vachon

• Decision Date: 24 September 1936
• Parties: KEITH THEATRE, Inc. v. VACHON et al.
• Court: Maine Supreme Court

187 A. 692

KEITH THEATRE, Inc.

v. VACHON et al.

Supreme Judicial Court of Maine.

Sept. 24, 1936.

Exceptions from Supreme Judicial Court, Cumberland County, in Equity.

Suit by Keith Theatre, Incorporated, against Wilbur J. Vachon and others. On plaintiff's exceptions to rulings of law as made by Presiding Justice and on appeal from the Presiding Justice's decision.

Appeal and exceptions sustained, decree reversed and case remanded, with directions.

Argued before DUNN, C. J., and STURGIS, BARNES, HUDSON, and MANSER, JJ.

Berman & Berman and Julius Greenstein, all of Portland, for plaintiff.

Leo J. Mahoney and Walter M. Tapley, Jr., both of Portland, for defendants.

HUDSON, Justice.

The plaintiff, lessee and operator of Keith's Theatre in the city of Portland, complains in equity against eight men of Portland, two men of South Portland (all union officials), three local unions, to wit, Local No. 458 of the International Alliance of Theatre Stage Employees and Moving Picture Machine Operators of the United States and Canada, the Portland Stage Employees Union No. 114, and the American Federation of Labor of Musicians Local Union No. 364 (voluntary and unincorporated labor organizations in Portland), and seeks injunctive relief from the picketing of its theatre by the defendants, their agents and servants. Hearing upon bill, answer, and replication was had before a single justice of this court, who refused to issue an injunction. The case now is before us on appeal and exceptions, the plaintiff excepting to the rulings of law as made by the Presiding Justice and appealing from his decision. The appeal and exceptions permit of one discussion.

The evidence as presented is not before us for the reason that the plaintiff is content to accept "the Court's findings of facts. * * *"

These findings may be thus summarized:

1. When the plaintiff started to operate its theatre, conferences were held with union representatives at which were discussed the adoption of the union wage schedule and operation of the theatre as a "closed shop," but no agreement for either was made.

2. The plaintiff conducted its theatre as an "open shop.'"

3. The wages it paid were materially lower than those of the union schedule, while the latter were considerably higher than the manager said the plaintiff could "afford to pay and live."

4. The plaintiff's employees were entirely satisfied with the wages they received. They neither struck nor picketed. They had no grievance against the plaintiff.

5. While the plaintiff did not have in its employment members of any unions, yet it did not refuse to employ union help. It would not consent, however, to employ only union laborers.

6. The picketing complained of commenced in August, 1935, and the court found that it was "for the sole purpose of compelling the plaintiff to adopt the so-called closed shop agreement and the union schedule of wages."

7. The picketing consisted mostly of walking "back and forth in front of the theatre with signs on which was printed a statement to the effect that Keith's Theatre is unfair to organized labor, that it does not employ union stage hands, musicians and operators, and urging the public not to patronize the house." For a time the same sentiments were expressed by word of mouth. It also is conceded that the musicians' union passed a votefining any of its members $10 who attended the theatre, and that this fine was imposed in at least two cases.

8. The single justice stated "with the exception of the action of the musicians' union, which involved only its own members, I find no evidence of any boycott, any threat, any intimidation of either the public or employees. The activities of the pickets have been an annoyance; but the pickets have not accosted patrons or employees; and their actions have not resulted in the collection of any crowds, which have blocked the entrances of the theatre or the approaches thereto. When they have talked in too loud a voice, they have stopped on being admonished. The evidence indicates that the public has paid very little attention to them; and there is nothing to show what, if any, effect their efforts have had in reducing the patronage of the theatre."

Having thus found the facts, the justice then said: "The problem in this case resolves itself into the simple issue whether the picketing of this theatre by these defendants as carried on should be restrained. An injunction should be granted, if, first, the end sought to be gained is unlawful, or, second, if the means used are oppressive," and then held that the end sought was lawful and the means employed not oppressive, to both of which rulings the plaintiff excepted, and from the decision based on such rulings it appealed.

In this state we have been remarkably free from labor conflicts which might foment strikes, boycotts, and picketing Common sense, control of temper, and application of the Golden Rule upon the part of both employers and employees have made possible peaceable adjustments of their difficulties, so that until now this court has never had occasion to consider or discuss the use of the injunction in labor disputes. From other states, as well as federal courts, have come down many able opinions, displaying much lack of unanimity in labor law. This court, then, both unaided and unhampered by prior Maine decisions, but well served by the reasoning of other courts, is free to declare as law herein that which it considers best calculated in accordance with legal principles to effect justice.

Many of the older opinions dealt with questions about which now there seems to be no particular controversy. Not many years ago it was claimed that labor unions were illegal, and the Court of Queen's Bench, in the case of Hornby v. Close [1867], 2 L.R. 2 Q.B. 153, decided that a trade union was illegal, even though it existed only to secure higher wages and shorter working hours, because it was in restraint of trade. This continued to be the law in England until changed by an Act of Parliament in 1871. In this country, the courts have held fairly uniformly that labor unions, "when instituted for mutual help carrying out their legitimate objects," are lawful organizations. Yates Hotel Co., Inc., v. Meyers et al. (Sup.) 195 N.Y.S. 558; American Steel Foundries v. TriCity Central Trades Council et al., 257 U.S. 184, 42 S.Ct. 72, 66 L.Ed. 189, 27 A.L.R. 360.

A trade union or labor organization has been defined to be "a combination of workmen usually, but not necessarily, of the same trade or [of several] allied trades, for the purpose of securing by united action, the most favorable conditions as regards wages, hours of labor, etc., for its members." Stone v. Textile Examiners & Shrinkers Employers' Association, 137 App. Div. 655, 122 N.Y.S. 460.

"Workingmen may combine for their mutual benefit and protection and to improve their economic and social condition, including the improvement of working conditions, the obtaining of such wages as they choose to demand, and the establishment of a standard of wages throughout the country, without incurring either criminal or civil liability, even though they know that their action will necessarily cause loss to their employers, or to other persons." Oakes, Organized Labor and Industrial Conflicts, § 3, and cases cited thereunder.

The performance of work is vitally necessary to existence. Usually it is a matter of contract between employer and employee. Without question, fair and just compensation should always be paid for the work performed. The ideal contract is one in which the parties are able to determine and agree upon a wage that shall fairly and justly compensate the employee.

But the contracting parties are not always in exact equality in education and experience, influence and mentality, so that one of them may not have an advantage over the other in the making of the contract. Freedom to contract plays an important part. One who has no choice, but must work at whatever wage he can obtain, is an easy prey for an unfair and unjust employer.

Thus, inequality of position between the employer (and often it is a corporation of vast power) and a single employee, is sufficient justification for the creation of trade unions.

Work being necessary, the labor market should be as free as possible, both to employer and employee.

"* * * The right freely to contract with one's fellow men without interference other than may arise from the exercise by others of some equal or superior right" should be granted in a free labor market. Oakes, supra, page 406.

"The right to the free flow of labor is not an absolute right; it is limited by the right of employes to combine for purposes which in the eye of the law justify interference with the plaintiff's right to a free flow of labor. A combination which interferes with a plaintiff's right to a free flow of labor is legal if the purpose for which it is made justifies the interference with that right. On the other hand, it is illegal if that purpose does not justify the interference (which ensues from the making and enforcing of the combination in question) with the plaintiff's right to a free flow of labor." Haverhill Strand Theatre, Inc., v. Gillen, et al., 229 Mass. 413, 118 N.E. 671, 673, L.R.A.1918C, 813, Ann.Cas.1918D, 650.

A strike has been defined to be "a combined effort among workmen to compel the master to the concession of a certain demand, by preventing the conduct of his business until compliance with the demand." Farmers' Loan & Trust Co v. Northern Pac. R. Co. et al. (C.C.) 60 F. 803, 821, 25 L.R.A. 414.

A strike may be legal or not, depending upon its purpose.

"Whether the purpose for which a strike is instituted is or is not a legal justification for it is a question of law to be decided by the court. To justify interference with the rights of others the strikers must in good faith strike for a purpose which the court decides to be a legal justification for...