Mengel v. Justices of Superior Court

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

313 Mass. 238

47 N.E.2d 3

KEITH MENGEL & others v. JUSTICES OF THE SUPERIOR COURT.

Supreme Judicial Court of Massachusetts, Suffolk.

February 23, 1943

November 6, 1942.

Present: FIELD, C.

J., DONAHUE, QUA COX, & RONAN, JJ.

Labor and Labor Union. Contract, Of employment. Equity Pleading and Practice Labor dispute, Report. Mandamus. Words, "Labor dispute." "Employee."

Certain employees under contracts of employment terminable at will, who left their work as a result of a failure of their employer to grant their demands as to terms and conditions of employment and thereupon engaged in picketing and persuasion of other employees of the same employer but stood ready to resume work upon settlement of the dispute, remained employees and were waging a "labor dispute" within the provisions of Section 20C, inserted in G. L. (Ter. Ed.) c. 149, by St.

1935, c. 407 Section 1.

The fact that, in a suit in equity growing out of a controversy between striking employees and their employer which was a "labor dispute" within the provisions of Section 20C inserted in G. L. (Ter. Ed.) c. 149 by St.

1935, c. 407 Section 1, the employer sought specific performance by the employees of their contracts of employment, did not preclude the operation of Section 9A inserted in c. 214 by St. 1935, c. 407, Section

4, and a judge issuing an injunction restraining the striking employees upon the return of an order of notice was required to report questions of law involved for the review described in clause (6) of said Section

9A. Mandamus is the proper remedy to require a report in compliance with cl.

(6) of Section 9A, inserted in G. L. (Ter. Ed.) c. 214 by St. 1935, c. 407, Section 4, the new procedure peculiar to litigation involving labor disputes.

PETITION, filed in the Supreme Judicial Court for the county of Suffolk on April 24, 1942, averring in substance that Dillon, J., in the Superior Court, after issuing a restraining order enjoining a strike by the petitioners herein in what they alleged was a labor dispute, refused to report questions of law in accordance with the requirements of Section 9A (6), inserted in G. L. (Ter. Ed.) c. 214 by St. 1935, c. 407, Section 4, and praying that the case in the Superior Court "be determined to be one `involving or growing out of a labor dispute' and that a writ of mandamus issue directed to" the justices of the Superior Court directing them and Dillon, J., in particular "to report any and all questions of law involved in the issuance of the preliminary injunction, and to stay all further proceedings in such issuance except those necessary to preserve the rights of the parties pending a determination by summary hearing" by a single justice of the Supreme Judicial Court, "and for an injunction restraining the said justices of the Superior Court from ordering the completion of pleadings and from ordering hearings before a master pending the determination of this present petition."

The petition was ordered dismissed by Lummus, J., who thereupon reported the case for determination by the full court.

The case was submitted on briefs. H. R. Donaghue, for the petitioners.

R. T. Bushnell, Attorney General, & R.

Clapp, Assistant Attorney General, for the respondents.

RONAN, J. The General Beverage Corp., 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 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 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 employees 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, Section 9A (6), inserted by St. 1935, c. 407, Section 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, Section 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, Section 20C, inserted by St. 1935, c. 407, Section 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 Section 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 Section 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, Sections 20B, 20C; c. 214, Sections 1, 9, 9A; and c. 220, Sections 13A, 13B, contains any definition of an employee as does the State labor relations law. G. L. (Ter. Ed.) c. 150A, Section 2, inserted by St. 1938, c. 345, Section 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...