Meltex, Inc. v. Livingston

• Decision Date: 10 October 1955
• Citation: 208 Misc. 1033,145 N.Y.S.2d 858
• Parties: MELTEX, Inc., Plaintiff, v. David LIVINGSTON, as President, Cleveland Robinson, as Secretary-Treasurer, both individually and as officers of District 65, Retail, Wholesale and Department Store Union, CIO, Abe Cohen, Gasper Guy Cruz, James Doe, Arthur Doe, Louis Doe and Elmer Doe, said names James Doe, Arthur, Doe Louis Doe and Elmer Doe being fictitious, true names unknown, persons intended are pickets employed by defendant union to picket plaintiff's place of business, Defendants.
• Court: New York Supreme Court

Page 858

145 N.Y.S.2d 858

208 Misc. 1033

MELTEX, Inc., Plaintiff, v. David LIVINGSTON, as President, Cleveland Robinson, as Secretary-Treasurer, both individually and as officers of District 65, Retail, Wholesale and Department Store Union CIO, Abe Cohen, Gasper Guy Cruz, James Doe, Arthur Doe Louis Doe and Elmer Doe, said names James Doe, Arthur, Doe Louis Doe and Elmer Doe being fictitious, true names unknown, persons intended are pickets employed by defendant union to picket plaintiff's place of business, Defendants.

Supreme Court, Special Term, New York County, Part V.

Oct. 10, 1955.

Morris J. Feller, New York City (Leonard Rovins, New York City, of counsel), for plaintiff.

Weisman, Allen, Spett & Sheinberg, New York City (Irving Rosen, and Sheldon W. Goidell, New York City, of counsel), for defendants.

WALTER, Justice.

A woolen piece goods jobber here seeks to enjoin a labor union from picketing its place of business and to recover damages for past picketing. The picketing has not been spectacular and no vast financial interests are involved. On the contrary, the case is merely a rather grim portrayal of what I suspect is typical of the impact of labor union power upon the small business man. As such, it is a case in which decision can be reached only by navigating a channel which several statutes and a myriad of judicial opinions have made narrow and to a certain extent obscure. I can only hope that my effort to pick my way through that channel will not muddy the waters for those who come after me or render the markings of the channel still more obscure.

Plaintiff, a New York corporation, all the stock of which is owned by its president, who conducts its affairs, started business as a woolen piece goods jobber in 1952 in an upper floor loft at 215 West 40 Street, and moved to a small street level store at 250 West 39 Street on January 1, 1955. Its vice-president works as a salesman for it, and in May, 1955, it had in its employ a saleman, Robert Maisel, a bookkeeper, Miss Mitchell, and a delivery boy, Gaspar Guy Cruz, none of whom was a member of any union.

Defendant union, District 65, Retail, Wholesale and Department Store Union, CIO, has about 27,000 members in New York City, about 3,000 of whom are in the garment area. It has contracts with more than 500 establishments, including members of the Woolen Jobbers Association (of which plaintiff is not a member). About 120 of its members work for about 50 employers in the woolen jobbing industry.

In discussions had between the union and certain employers other than plaintiff in May, 1955, some employers with whom the union then had contracts complained that they were being subjected to unfair competition by non-union competitors who paid their non-union employees less wages than were being paid to the union employees of the then complaining employers. The union was thereby started upon what it calls an organizational drive. Plaintiff's employees, Maisel and Cruz, were asked to join the union. Cruz joined on May 23 or 24 and his employment by plaintiff terminated on the following day. The evidence does not show that plaintiff terminated his employment because he joined the union, but Cruz and the union both believed that that was so, and Maisel at least feared that that was so and that a similar fate might befall him if he joined. The bookkeeper, Miss Mitchell, was not asked to join.

An organizer of the union urged plaintiff to rehire Cruz, telling plaintiff that the discharge well might result in a fight with the union. Plaintiff refused to rehire Cruz and the organizer told plaintiff that the union would be forced to protect Cruz in order to give courage to other employees, and that therefore the union had 'no alternative but to strike.'

Picketing of plaintiff's place of business by members of the union began almost immediately and was still in progress on July 15, 1955, when a Justice of this Court restrained it until the hearing and determination of a motion by plaintiff for an injunction during the pendency of this action. That motiion subsequently was denied.

The pickets carried large placards stating that 'the employees of Meltex, Inc. are on strike. Please do not patronize.' The pickets paraded in front of plaintiff's store, which has a street frontage of less than 20 feet, and sometimes asked prospective customers not to enter and sometimes followed persons who came out of plaintiff's store with the object of ascertaining where they went and who they were. The union itself appears never to have directed more than two pickets to parade at any one time, but conditions in the neighborhood of plaintiff's place of business are such that the mere presence of two pickets carrying 'strike' signs was enough to cause many of the persons employed in that neighborhood to congregate in front of plaintiff's place of business, especially during the lunch hour.

The public was made aware of the fact that defendant union was picketing plaintiff's place of business, and that of itself was enough to deter some prospective customers from entering plaintiff's store, to deter some suppliers from delivering goods there, to deter some truckmen from delivering goods to plaintiff's store or delivering goods from plaintiff's store to the customers who had purchased the goods from plaintiff, to deter some spongers and other processors from processing goods for plaintiff, and even to deter some persons from coming to court to testify upon the trial, which was had nearly two months after the picketing had stopped. In short, labor union power and strength are now such that the mere fact that plaintiff was having a dispute with defendant union which caused defendant union to picket plaintiff's place of business has been enough to inflict damage upon it.

On at least one occasion Miss Mitchell was called a scab; and a member of the union, who was a shop steward in a nearby establishment, was arrested on a charge of having put liquid cement in the lock of the front door of plaintiff's store so as to make the lock unworkable. Except for those incidents there was no violence or actual disorder of any sort at any time during the picketing.

It does not necessarily follow, however, that the picketing was 'peaceful', because picketing, in order to be peaceful, must be free, not only of violence, but, also, of any unlawful act, i. e., free of intimidation of customers, free of any form of physical obstruction or interference with business, and free of any misrepresentation of the facts of the controversy. Senn v. Tile Layers Union, 301 U.S. 468, 479, 57 S.Ct. 857, 81 L.Ed. 1229.

On June 2, 1955, the Union filed with the National Labor Relations Board a charge that plaintiff was guilty of an unfair labor practice and had violated the statute in that it had fired Cruz solely because he had joined the union. On July 1, 1955, the regional director of the board decided that there was insufficient evidence of a violation and therefore further proceedings were not warranted. The union applied for a review of that decision, but on August 15, 1955, the general counsel of the Board sustained the ruling of the regional director.

I do not consider whether that ruling is conclusive in the sense that it would prevent me from reaching a different conclusion, because there is nothing in the evidence before me which would warrant a different conclusion. This case, therefore, must be decided on the basis of the absence of any unfair labor practice on the part of plaintiff.

Neither do I decide whether, because of the absence of any unfair labor practice on the part of plaintiff, or because the union was not in fact a legal representative of Cruz, it was illegal for the union to urge plaintiff to rehire Cruz or to picket plaintiff's place of business as a means of securing his rehiring. For even if it be assumed that, as plaintiff contends, it would be illegal for this union to picket plaintiff's place of business solely for the purpose of getting plaintiff to rehire Cruz, the facts yet remain (1) that the union had a legitimate interest in getting plaintiff's employees to join it, in then getting them to select it as their bargaining representative, and in then getting plaintiff to make a contract which would give plaintiff's employees wages, hours, and other working conditions equal to those set forth in the contracts which other employers have made in reference to the employees of those other employers; and (2) that, although defendant Cohen emphasizes his desire to show that the union could secure the rehiring of Cruz, the real object of the picketing was to attain the ends I have just stated as ends which the union had a legitimate interest in attaining.

The further fact, of course, is that whenever a union pickets the place of business of an employer whose employees do not belong to a union it necessarily brings pressure to bear upon the employer and makes it at least likely that that employer will endeavor to relieve the pressure by doing something to get his employees to join the union which is doing the picketing. That is so even though the union loudly assert that its sole object is to persuade the employees to join and not to coerce the employer into coercing his employees into joining. I hence think it should be frankly realized that the picketing of the place of business of an employer whose employees do not belong to a union necessarily is an attempt to cause the employer to commit the unfair labor practice of discriminating in order to encourage or discourage membership in a labor organization, National Labor Relations Act, 49 Stat. 449, as amended by 61 Stat. 136, 29 U.S.C.A. § 158(a)(3), and hence has an illegal objective. The attempt to draw a distinction as to whether such picketing is done in order to get employees to join the union or done in order to get the employer to get his employees to join the union impresses me as wholly lacking in any...