Mengel v. Justices of Superior Court

• Decision Date: 23 February 1943
• Citation: 313 Mass. 238,47 N.E.2d 3
• Parties: MENGEL et al. v. JUSTICES OF SUPERIOR COURT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

313 Mass. 238

47 N.E.2d 3

MENGEL et al.

v.JUSTICES OF SUPERIOR COURT.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 23, 1943.

Report from Supreme Judicial Court, Suffolk County.

Mandamus proceeding by Keith Mengel and others against the Justices of the Superior Court to compel one of the justices to report to the Supreme Judicial Court questions of law arising out of the granting of a restraining order, on ground that the case in which restraining order was granted involved a labor dispute. The single justice, after hearing the case on the petition, answer and traverse, ordered the petition dismissed and reported the case to the Supreme Judicial Court.

Writ of mandamus issued.

Before FIELD, C. J., and DONAHUE, QUA, COX, and RONAN, JJ.

H. R. Donaghue, of Boston, for petitioners.

R. T. Bushnell, Atty. Gen., and R. Clapp, Asst. Atty. Gen., for respondents.

RONAN, Justice.

The General Beverage Corporation, a corporation engaged in the bottling and distribution of soft drinks and employing twelve persons, brought a bill in equity in the Superior Court on April 15, 1942, against Mengel, Cardaropoli, Godfrey, Wapner and Brown, alleging that they terminated their employment with the plaintiff on April 1, 1942, when the plaintiff rejected their demands; that the plaintiff refused to reemploy them and was informed by them that they had become members of a certain labor union; that they have induced three other employees to quit their employment with the plaintiff; that since April 8, 1942, they picketed the plaintiff's place of business, displaying placards and banners, informing the plaintiff's customers that they were on a strike and advising them not to trade with the plaintiff; that they have endeavored by persuasion and threats to cause other employees of the plaintiff to leave their employment; and that the police were unable to furnish adequate protection to the plaintiff. The bill also alleged that the plaintiff was notified on April 10, 1942, that an application had been made by its employees through said labor union to the labor relations commission, seeking the certification of said union as the representative of these employees for the purpose of collective bargaining with the plaintiff; that after a hearing, at which the plaintiff was represented by counsel, the commission decided that a controversy existed between the plaintiff and its employees and ordered an election to determine whether the majority of the employes had designated the union as their representative for collective bargaining. This decision of the commission was made on April 13, 1942. There were further allegations contained in the bill, to the effect that each of the five defendants had executed an individual contract of employment with the plaintiff containing a provision that he would ‘not do, suffer or consent to any act or things prejudicial or injurious to the business or good will of said General Beverage Corp., during the term of * * * [his] employment and for two years thereafter, whether said termination shall be voluntary or involuntary.’ The bill prayed for injunctions restraining the defendants from violating the above provisions of their contracts of employment, from picketing the plaintiff's premises, from interfering with its customers and its business, and from threatening its employees in order to compel them to leave their employment. A temporary restraining order issued on the filing of the bill, and a preliminary order issued on the return of the order of notice, restraining these defendants from violating the above quoted provisions of their contracts of employment. The judge of the Superior Court denied a request made under G.L.(Ter.Ed.) c. 214, § 9A(6), inserted by St.1935, c. 407, § 4, to report to this court the questions of law arising out of the granting of the restraining order, and ruled ‘that the case is not a case involving or growing out of a labor dispute.’

The defendants in the bill in equity thereafter brought this petition for mandamus to compel the judge of the Superior Court or some other judge to report such questions in accordance with their request. The petition, which included a copy of the bill in equity, alleged that the said preliminary order was granted upon the statements of counsel although counsel for the defendants requested that the hearing be held in accordance with said c. 214, § 9A; that after the issuance of said order the judge ordered the pleadings completed in five days and that the case be heard by a master. None of the allegations of the petition was denied by the answer. The single justice, after hearing the case upon the petition, answer and traverse, ordered the petition dismissed and reported the case to this court.

The first question presented is whether the Superior Court was dealing with a labor dispute as defined by G.L.(Ter.Ed.) c. 149, § 20C inserted by St.1935, c. 407, § 1, or whether the suit before it was no more than a bill in equity seeking the specific performance of a contract of employment.

There is no dispute that the petitioners left their places of employment on April 1, 1942, as a result of the failure of their employer to grant their demands, and that, up to the time of the granting of the injunction, they had conducted a strike against their employer. In quitting their work, they did not violate their contracts of employment which were terminable at will. Neither is it disputed that they engaged in the strike for the purpose of securing better terms and conditions of employment. According to said § 20C (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 the same employer.’ And according to (b) one shall be deemed to be a person participating or interested in a labor dispute if relief is sought against him. According to (c) the term ‘labor dispute’ includes any controversy concerning terms or conditions of employment. The activities of the petitioners that were enjoined included picketing and persuasion of employees by striking employees in waging a ‘labor dispute’ with their employer within the terms of said § 20C.

The quitting of their work in order to enforce their demands did not for the purpose of the statute terminate their relationship of employees. They stood ready to resume the performance of their duties when a settlement had been effected. None of the various sections that originated in St.1935, c. 407, which was enacted to regulate the issuance of injunctions in labor disputes and which, in their present form, appear as G.L. (Ter.Ed.) c. 149, §§ 20B, 20C; c. 214, §§ 1, 9, 9A; and c. 220, §§ 13A, 13B, contains any definition of an employee as does the State labor relations law. G.L.(Ter.Ed.) c. 150A, § 2, inserted by St.1938, c. 345, § 2. The word employee must be given its usual and ordinary meaning. We think that workmen who have temporarily suspended work in an effort to compel their employer to increase their wages or improve their working conditions are commonly regarded as employees while making such an effort or at least until it has become apparent that the employer has weathered the attack and has resumed business in a normal manner. If the word ‘employee’ were given a strict technical construction then many statutes dealing with labor disputes would have no application, since the very act of quitting work would sever the continuity of the legal relationship of employer and employee and the latter would be deprived of the benefit of the statutes. The present case differs from Simon v. Schwachman, 301 Mass. 573, 18 N.E.2d 1, and Quinton's Market, Inc. v. Patterson, 303 Mass. 315, 21 N.E.2d 546, because in each of those cases the picketers had never been in the employ of the merchant whose store they picketed. Moreover, in the absence of a statute it has been generally regarded that employees who quit their work to wage a lawful strike in a lawful manner still continues as employees, at least in reference to matters connected with the strike. Densten Hair Co. v. United Leather Workers International Union of America, 237 Mass. 199, 129 N.E. 450;Iron Molders' Union No. 125 of Milwaukee, Wis. v. Allis-Chalmers Co., 7 Cir., 166 F. 45, 20 L.R.A.,N.S., 315; Michaelson v. United States, 7 Cir., 291 F. 940;Jeffery-DeWitt Insulator Co. v. National Labor Relations Board, 4 Cir., 91 F.2d 134, 112 A.L.R. 948;State v. Personett, 114 Kan. 680, 220 P. 520;Keith Theatre Inc. v. Vachon, 134 Me. 392, 187 A. 692;Greenfield v. Central Labor Council, 104 Or. 236,192 P. 783,207 P. 168;Uden v. Schaefer, 110 Wash. 391, 188 P. 395, 11 A.L.R. 1001.

The real purpose of the bill in equity was to enjoin the defendants, who are the petitioners here, from continuing the strike by securing a decree ordering specific performance of a provision of their contracts of employment. The fact that there may be involved in the present controversy breaches of contracts of employment upon the facts of the present case does not take the case out of said c. 214, § 9A, if the controversy itself was a labor dispute as defined by said c. 149, § 20C. See G.L.(Ter.Ed.) c. 149, § 20A, inserted by St.1933, c. 351, § 1. See also R. H. White Co. v. Murphy, 310 Mass. 510, 38 N.E.2d 685;Cascade Laundry, Inc. v. Volk, 129 N.J.Eq. 603, 20 A.2d 505;Holland Laundry, Inc. v. Lindquist, 173 Misc. 121, 16 N.Y.S.2d 140;Nevins, Inc. v. Kasmach, 252 App.Div. 890, 300 N.Y.S. 64;Florshein Shoe Store Co. Inc. v. Retail Shoe Salesmen's Union of Brooklyn & Queens, 288 N.Y. 188, 42 N.E.2d 480.

We conclude that the case presented by the bill in equity was one involving and growing out of a labor dispute within the provisions of G.L. (Ter.Ed.) c. 149, § 20C, and that, in determining whether an injunction should issue on the return of the order of notice, the judge was bound to comply with the provisions of G.L.(Ter.Ed.) c. 214, § 9A, as...