May's Furs & Ready to Wear, Inc. v. Bauer

• Decision Date: 16 April 1940
• Citation: 282 N.Y. 331,26 N.E.2d 279
• Court: New York Court of Appeals Court of Appeals
• Parties: MAY'S FURS AND READY TO WEAR, Inc., et al. v. BAUER.

282 N.Y. 331

26 N.E.2d 279

MAY'S FURS AND READY TO WEAR, Inc., et al.

v.BAUER.

Court of Appeals of New York.

March 12, 1940.

Reargument Denied April 16, 1940.

See 282 N.Y. 804, 27 N.E.2d 210.

Appeal from Supreme Court, Appellate Division, Second Department.

Suit by May's Furs and Ready to Wear, Incorporated, and another, against Aaron Bauer, as president of the Retail Women's Apparel Salespeople's Union, Local 1125, for injunction against picketing or other acts directed against plaintiff's business. From a judgment of the Appellate Division, 255 App.Div. 643, 8 N.Y.S.2d 819, affirming a judgment of the Special Term granting an injunction, defendant appeals by permission of the Court of Appeals, leave to appeal having been denied in 256 App.Div. 945, 11 N.Y.S.2d 237.

Modified, and, as modified, affirmed. Jonah J. Goldstein and Lawrence Kovalsky, both of New York City, for appellant.

Benjamin C. Ribman, of New York City, for respondents.

FINCH, Judge.

This is a suit for an injunction restraining a labor union from engaging in any picketing or other acts directed against the business of plaintiff employer. There are two plaintiffs, plaintiff employer and plaintiff association of employees of plaintiff employer. The general manager of plaintiff employer has been the president of the plaintiff association of employees since its inception. Defendant, a labor union, is Local 1125, chartered by the Retail Clerks International Protective Association, which in turn is affiliated with the American Federation of Labor. In referring to the parties hereafter, ‘plaintiff’ will mean plaintiff employer, unless it is otherwise specified, and ‘International’ will refer to the parent body of Local 1125.

Assuming that there is some evidence to sustain the findings, the following are briefly the facts upon which are predicated the issues of law raised upon this appeal.

Plaintiff operates a retail store for which it engages about 300 employees, a total which is increased to about 500 if temporary employees are included. The store is located in the borough of Brooklyn, city of New York, in one of the most congested shopping districts to be found anywhere. About 25,000 persons visit the store weekdays and between 45,000 and 60,000 on Saturdays and Mondays.

On October 19, 1935, a labor union other than the present defendant, but also chartered by the International and known as Local No. 1250, started a campaign in order to obtain recognition from plaintiff as the bargaining agent of its employees. These activities on the part of Local 1250 continued until March 20, 1936. During that course of time Local 1250 and those acting on its behalf committed acts of violence and endangered the safety of the employees of plaintiff and of other persons in that shopping neighborhood. On March 20, 1936, the general organizer of the International wrote to plaintiff to the effect that Local 1250 had been withdrawn from the field and that thereafter Local 1125, defendant herein, would prosecute the efforts of the union to obtain recognition as bargaining agent, and would participate in negotiations should plaintiff so desire. Local 1125 picketed from March 20, 1936, until the latter part of June or early part of July of the same year. It has been found that ‘the activities of said pickets in the employ of defendant were disorderly and unpeaceful and as a result at least two of said pickets were arrested, charged with disorderly conduct and duly tried and convicted.’ There was a cessation of the picketing and other activities of defendant in connection with its campaign directed against plaintiff from July, 1936, until March, 1937, at which latter date the campaign was resumed. Acts of violence were committed until the end of April, at which time this action was begun. No excrimeviolence appears to have occurred after April 24th, which is about a week before the actual commencement of this suit. From April 24, 1937, until the termination of the trial, a period of about two months, only one picket was arrested, and the charge in that instance was loud talking on the picket line. In connection with this offense of loud talking there may be considered remarks of counsel for plaintiff made upon the opening of the trial: ‘So that at the present time all that is going on at our place of business is the picketing of the Fulton street side with three pickets, bearing signs which are subject to some criticism, and the Hanover place entrance is being picketed by one picket doing the same thing, and then in addition these four women pickets are constantly talking in a loud tone of voice. They could not be heard if they talked in an ordinary tone of voice because of the noise and congestion existing there.’

Although the record amply supports the general finding that defendant and those for whom it is responsible did commit acts of violence, a study of the record fails to reveal any evidence in support of some of the specific acts charged against defendant. It is unnecessary to enumerate these for the following reason: There is no finding that those acts of violence which defendant did commit so permeated and characterized all the conduct of defendant that if defendant were allowed to continue any of its activities upon however restricted a field, even that narrow scope of activity would result in violence. On the contrary, there is the finding referred to above to the effect that after the commencement of this action the activities of defendant were considerably modified and restrained. That this is the situation in the case at bar is further indicated by counsel for plaintiff in the course of the following discussion which took place at the trial: ‘The Court: I could not stop them from peacefully picketing. Mr. Ribman (plaintiff's counsel): Of course not. I wish an order of this court restraining them from violence. Up to this date, evidently up to this time they yielded to the force of the action we brought, and all their conduct in the past has been modified; and all that they do now that we object to is to use this loud language.’ There are findings that unless the unlawful acts committed by defendant and those acting on its behalf are restrained, defendant and its agents will continue to perpetrate such acts.

Upon the basis of the foregoing facts Special Term has issued a perpetual injunction in sweeping terms restraining defendant, its members, agents ‘and any and all confederates' from calling or continuing any strike against plaintiff, ‘from interfering in any manner, directly or indirectly, with plaintiffs * * * engaging in the business of plaintiffs,’ ‘from causing or permitting its members, officers, or others acting in concert or part with them, including any and all persons, unions, associations, groups or bodies, to picket and patrol, congregate or walk back and forth or otherwise in front of and in the vicinity of said store of plaintiff,’ ‘from interfering in any manner, directly or indirectly, with the business, good will, name or reputation of plaintiff,’ ‘from attempting to take any action which may influence any employees of plaintiff,’ ‘from attempting to coerce, threaten or intimidate any employee of plaintiff (1) (employer) or member of plaintiff (2) (employees' association), or to attempt to persuade said employees or members or any of them, to join defendant or any other labor union.’ Thus, by the terms of the decree, defendant is prohibited from carrying on, not only unlawful acts, but even those which, either by statute or otherwise, have come to be recognized as lawful activities in which a labor union may engage. Upon appeal to the Appellate Division that court affirmed the judgment of Special Term and stated that because of its acts of violence defendant union was not engaged in a labor dispute and was ‘beyond the pale and protection of section 876-a. * * * The defendant union and its adherents, by their conduct referred to, became outlaws and, therefore, not entitled to the protection of the statute.’ 255 App.Div. 643, at page 644, 8 N.Y.S.2d 819, at page 820. Cf. Code Crim.Proc. ss 814, 826.

Upon this appeal there is involved the scope and application of a legislative enactment whose wisdom or lack of wisdom is not a consideration open to judicial inquiry. Subject only to constitutional restrictions, it is the duty of this court to apply the statute as enacted by the Legislature.

Plaintiffs contend (1) that section 876-a of the Civil Practice Act does not apply to the case at bar because the latter does not arise out of a labor dispute; (2) that if the case at bar does arise out of a labor dispute, nonetheless, section 876-a should not be construed to forbid the relief which has been granted to plaintiffs; (3) that if section 876-a does purport to proscribe such relief under the circumstances found in the case at bar, then to that extent the statute is unconstitutional. Defendant, on he other hand, urges that the case at bar is subject to the restrictions of section 876-a and that the judgment which has been rendered in favor of plaintiffs transgresses the limitations of that statute.

First. Whether the case at bar is within the scope of section 876-a.

Section 876-a provides that ‘No court nor any judge or judges thereof shall have jurisdiction to issue any restraining order or a temporary or permanent injunction in any case involving or growing out of a labor dispute,’ except in accordance with the provisions of the statute. A ‘labor dispute’ is defined as follows:

‘10. When used in this section, and for the purpose of this section:

‘(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 the same industry, trade, craft or occupation, or who are employees of one employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is between one or more employers or associations of employers and...