Lipoff v. United Food Workers Industrial Union

• Decision Date: 09 February 1938
• Docket Number: 5632
• Citation: 33 Pa. D. & C. 599
• Parties: Lipoff v. United Food Workers Industrial Union, Local No. 107, et al
• Court: Pennsylvania Commonwealth Court

33 Pa. D. & C. 599

Lipoff v. United Food Workers Industrial Union, Local No. 107, et al

No. 5632

Common Pleas Court of Philadelphia County, Pennsylvania

February 9, 1938

September term, 1937.

Bill in equity for injunction.

David Kanner, for plaintiff.

M Herbert Syme, for defendants.

OPINION

FLOOD and LEVINTHAL, JJ.

Plaintiff has brought a bill in equity, alleging that he conducts a retail grocery and meat store at 1116 West Columbia Avenue, Philadelphia; that he has two employees with whom he does not now have and never has had any dispute; that defendant union and its agent and organizer have demanded that plaintiff agree to employ members of defendant association only, to which demand he has refused to accede; that the union has placed 15 pickets before plaintiff's store, which has a frontage of 15 feet; that as a result of the picketing, the entrance to plaintiff's premises is obstructed, and customers are intimidated and subjected to abusive language; that the pickets carry placards stating that the employer is unfair to organized labor; that defendants are financially irresponsible and the plaintiff suffers irreparable damage and is without an adequate remedy at law.

We are prayed to enjoin defendants, preliminarily, from combining and conspiring to injure or interfere with plaintiff's business, his employees and patrons, by assaults, threats, intimidation, injury, annoyance, and abusive language, and by congregating about plaintiff's place of business and the approaches thereto.

Defendant objects that it is beyond our power to grant the prayers of plaintiff's bill because of the limitations placed upon our jurisdiction by the Labor Anti-Injunction Act of June 2, 1937, P. L. 1198, 43 PS § 206a, et seq. (Supp. 1937). Plaintiff's reply raises two very important questions which have not yet been passed upon by our Supreme Court.

First, is the Labor Anti-Injunction Act applicable to the facts before us?

Second, is the act constitutional?

1. Section 4 of the act deprives the courts of this Commonwealth of any power they may have had to issue an injunction in any cases included within the act except in strict conformity with its provisions, and in accordance with the public policy declared therein. The cases included within the act, as shown by sections 6 to 17, inclusive, are all cases involving or growing out of labor disputes. Section 3 provides, inter alia, that for the purpose of the act:

" (a ) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in a single industry, trade, craft or occupation, or have direct or indirect interests therein, or who are employees of the same employer, or who are members of the same or an affiliated organization of employers or employees, whether such dispute is (1) between one or more employers or associations of employers, and one or more employees or associations of employees; (2) between one or more employers or associations of employers, and one or more employers or associations of employers; or (3) between one or more employees or association of employees, and one or more employees or association of employees; or when the case involves any conflicting or competing interests in a 'labor dispute' (as hereinafter defined) of 'persons participating or interested' therein (as hereinafter defined).

" (b ) A person or association shall be held to be a person participating or interested in a labor dispute if relief is sought against him or it, and if he or it is engaged in the same industry, craft or occupation in which such dispute occurs or has a direct or indirect interest therein, or is a member, officer or agent of any association composed in whole, or in part, of employers or employees engaged in such industry, trade, craft or occupation.

" (c ) The term 'labor dispute' includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment or concerning employment relations or any other controversy arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the proximate relation of employer and employee, and regardless of whether or not the employees are on strike with the employer."

This controversy clearly concerns the association as well as the representation of persons in negotiating terms and conditions of employment. Defendant union is an association of employees engaged in the same trade as plaintiff, the retail grocery and meat business. Both parties have direct interests therein, the very existence of the union and the welfare of its members being intimately bound up with and dependent upon it. Subjects in controversy are conditions of employment and the representation of employees. And since, under the terms of the act, neither a strike nor the proximate relation of employee and employer is an indispensable element in a labor dispute, the controversy before us involves such a dispute.

This seems so clear that citation of authorities from other jurisdictions having similar or identical statutes would seem superfluous were it not that some courts have held otherwise: Lauf et al. v. E. G. Shinner & Co., Inc., 82 F.2d 68 (1936), rehearing denied, 90 F.2d 250 (C. C. A. 7th), certiorari granted, 58 S.Ct. 41 (1937); Mayo et al. v. Dean, 82 F.2d 554 (C. C. A. 5th, 1936); California State Brewers' Institute v. International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers, C. C. H. Labor Service, par. 18030 (W. D., Wash., 1937); Donnelly Garment Co. et al. v. International Ladies' Garment Workers' Union et al., 20 F.Supp. 767 (W. D., Mo.), affirmed, 5 U.S. Law Week 539 (1937); Culinary Workers' Union No. 331 et al. v. Fuller et al. (Court of Civil Appeals of Texas, 1937), 105 S.W.2d 295; Safeway Stores, Inc., v. Retail Clerks' Union, Local No. 148 et al., 184 Wash. 322, 51 P.2d 372 (1935). See also Gevas, etc., v. Greek Restaurant Workers' Club et al., 99 N.J.Eq. 770, 134 A. 309 (1926), Feller et al. v. Local 144, International Ladies Garment Workers Union et al., 121 N.J.Eq. 452, 191 A. 111 (1937), International Ticket Co. v. Wendrich et al., 122 N.J.Eq. 222, 193 A. 808 (1937), Oberman & Co., Inc., v. United Garment Workers of America et al., 21 F.Supp. 20 (W. D., Mo., 1937), Jensen et al. v. St. Paul Moving Picture Machine Operators, etc., et al., 194 Minn. 58, 259 N.W. 811 (1935), Thompson v. Boekhout et al., 273 N.Y. 390, 7 N.E.2d 674 (1937). For a comprehensive and recent discussion of the question in the absence of anti-injunction legislation, see Keith Theatre, Inc., v. Vachon et al., 134 Me. 392, 187 A. 692 (1936).

We cannot see how the plain language of this act can be so interpreted as it is in some of the above-mentioned cases. Those cases appear to us to modify rather than to expound the meaning of the act. In the absence of any decision which is binding upon us, we have no hesitancy in rejecting the authority of the cases last noted and aligning ourselves with those courts who have construed acts identical or substantially identical with that before us to mean what we think it plainly says: Cinderella Theater Co., Inc., et al. v. Sign Writers' Local Union No. 591 et al., 6 F.Supp. 164 (E. D., Mich., 1934); Miller Parlor Furniture Co., Inc., v. Furniture Workers Industrial Union, 8 F.Supp. 209 (D., N. J., 1934); Washington Shoe Workers' Union et al. v. United Shoe Workers of America et al., C. C. H. Labor Service, par. 18046 (D., D. C., 1937); Cupples Co. v. American Federation of Labor et al., 20 F.Supp. 894 (D., Mo., 1937); S. S. Kresge Co. v. Amsler et al., C. C. H. Labor Service, par. 18004 (E. D., Mo., 1937); Coryell & Son v. Petroleum Workers' Union, C. C. H. Labor Service, par 3563.06 (Minn., 1936); People ex rel. v. Sheriff of Kings County et al., 164 Misc. 355 (N.Y., 1937); Geo. B. Wallace Co. et al. v. International Association of Mechanics, etc., et al., 155 Ore. 652, 63 P.2d 1090 (1936); American Furniture Co. v. I. B. of T.C. & H. of A., etc., et al., 222 Wis. 338, 268 N.W. 250 (1936); Senn v. Tile Layers Protective Union, Local No. 5 et al., 222 Wis. 383, 268 N.W. 270, 872 (1936), affirmed, 301 U.S. 468 (1937). See also Levering & Garrigues Co. et al. v. Morrin et al., 71 F.2d 284 (C. C. A., 2d), certiorari denied, 293 U.S. 595 (1934), Starr v. Laundry & Dry Cleaning Workers' Local Union No. 101 et al., 155 Ore. 634, 63 P.2d 1104 (1936), and Blanchard et al. v. Golden Age Brewing Co. et al., 188 Wash. 396, 63 P.2d 397 (1936). This view has been followed even without a statute: Exchange Bakery & Restaurant, Inc., v. Rifkin, etc., et al., 245 N.Y. 260, 157 N.E. 130 (1927). Compare also Kirmse v. Adler et al., 311 Pa. 78 (1933), which appears to modify much that was said in the earlier cases of Erdman v. Mitchell, 207 Pa. 79 (1903), and Purvis v. Local No. 500, United Brotherhood, etc., et al., 214 Pa. 348 (1906). And see 84 U. of Pa. L. R. 771, 772, 1027, 85 U. of Pa. L. R. 224 (1936), 36 Col. L. R. 157, and 50 Harv. L. R. 1295 (1937). In this view, the facts alleged in plaintiff's bill in the instant case constitute a labor dispute.

Plaintiff contends that this interpretation of the act conflicts with the policy and provisions of the Pennsylvania Labor Relations Act of June 1, 1937, P. L. 1168, 43 PS § 211.1, et seq. (Supp. 1937). Even if this be so, the provisions of the later act, the Labor Anti-Injunction Act, being clear and unambiguous, must prevail over the general statement of policy in the earlier one, although they were enacted by the same legislature. See the Statutory Construction Act of May 28, 1937, P. L. 1019, sec. 65, 46 PS...