Nann v. Raimist

• Decision Date: 06 January 1931
• Citation: 174 N.E. 690,255 N.Y. 307
• Parties: NANN v. RAIMIST.
• Court: New York Court of Appeals Court of Appeals

255 N.Y. 307

174 N.E. 690

NANN

v.RAIMIST.

Court of Appeals of New York.

Jan. 6, 1931.

Action by Fred Nann as president of Local Union No. 3 of the Amalgamated Food Workers, etc., against Lasar Raimist, as treasurer of Local No. 500 of the Bakery and Confectionery Workers' International Union of America, etc. Judgment for plaintiff was affirmed by the Appellate Division (228 App. Div. 856, 241 N. Y. S. 832), and defendant appeals.

Modified and, as modified, affirmed.Appeal from Supreme Court, Appellate Division, Second Department.

Charles H. Kelby, Hyman Bushel, and Samuel Gottlieb, all of New York City, for appellant.

Bruce R. Duncan, of Brooklyn, and Charles W. Froessel, of Jamaica, for respondent.

CARDOZO, C. J.

The controversy is one between rival labor unions competing for supremacy.

The trade represented by the two unions is that of bakers and confectioners. The plaintiff association is a local union of the Amalgamated Food Workers; the defendant association, which is affiliated with the American Federation of Labor, is a local union of the Bakery and Confectionery Workers' International Union of America. Each union is accustomed to make contracts with employers in the trade whereby the employers so contracting agree to employ the members of the chosen union to the exclusion of all others. The contracts are not for a fixed period, but are terminable at will. They prescribe the conditions of service for the workers, and in particular the wages. The schedule of wages fixed by the Amalgamated is considerably lower than that fixed by the International. The International, however, has established what is described as the ‘substitute system’ for the benefit of its members. According to this system, known also as the ‘stagger system,’ a member employed by the week must give up part of his time to a member out of a job, when the supply of union labor is in excess of the demand. The result is to shorten the week for some members, but to make it impossible for others to be idle altogether. The substitution is one to which a proprietor contracting with the union is required to submit. The Amalgamated, on the other hand, has refused to apply this system to the shops subject to its control. Its members, if employed at all, work more days in the week, but at a lower wage by the day. Their weekly earnings are sometimes higher and sometimes lower than the earnings of their rivals.

For some years the two unions worked in harmony, each acting within its own sphere of influence, and not encroaching on the other Gradually, however, the Amalgamated began to draw away employers who had given allegiance to the International. There was attraction in the lower wages and in escape from the inconvenience and perhaps the loss of efficiencyoccasioned at times by the employment of substitutes. Trouble soon developed.

The International, menaced by defections, made demand on the Amalgamated that it merge or surrender. A blunt refusal followed. Upon this the International threatened to drive the Amalgamated out of existence. It would go from shop to shop, would make the methods of its rival manifest to the world, and, in the words of a witness, ‘wipe it off the map.’ The campaign had its beginnings in August, 1927. In that month the Winthrop Baking Company, allied with the Amalgamated, opened a new shop. Members of the International spoke from wagons at the street corner, and others bearing signs paraded up and down the street. They denounced the Amalgamated as a ‘fake’ union, a union made up of ‘scabs,’ asserted that theirs was the only regular or genuine union, and told passers-by that a strike was going on and that by encouraging their rival they would be giving aid and comfort to the bosses. This happened on August 30 and again the following day. The Winthrop Company sued for an injunction, and obtained an order restraining interference with its business, but the order was narrower in scope than the one demanded. The International was restrained from marching up and down in front of the bakery with false or misleading signs, and from making false and misleading statements, but it was not restrained from picketing. The bakery, dissatisfied with the scope of the restraint, appealed to the Appellate Division, and there on December 7, 1927, the order was affirmed.

Picketing, if there had been any in the meantime, had been peaceful and without disorder. A change came about toward the end of 1927 and the beginning of 1928. The evidence as to what happened is conflicting. In view of the findings of the trial court, we state the version of the testimony adverse to the defendant.

On January 3, 1928, there was disorder at the Winthrop bakery. Two men walked up and down the street telling every customer that ‘the place was on strike,’ and not to patronize it till the strike was over. Ten other men, members of the union, were hanging about the street corners. When the day's work was over, an employee of the bakery, coming out of the shop, was set upon and beaten.

On January 4 the pickets were on hand again. Once more the customers were notified that a strike was in progress, and most of them walked by and did their shopping elsewhere. About noon some one was heard to telephone the International headquarters to send as many men as possible. In response to this message, three taxicabs drew up. A fight ensued between the occupants and men from the Amalgamated who were already on the scene. One of the workers at the bakery was set upon and beaten. The police were notified, and thereafter, till the commencement of this action, an officer was posted at the scene of trouble.

Disorder occurred also at another bakery about the same time. On December 28, 1927, Scheffer & Edelstein opened a new shop. They had formerly been members of the International, but had gone over to the Amalgamated. Pickets informed the customers that the shop was not a union one, and that a strike was going on. Some one told a picket that he had no right to do such things, and that he must go away from the bakery. At this there was a fight, the picket striking the first blow. Only a few days before, the proprietors of the bakery had refused to give up their alliance with the plaintiff union or cancel their existing contract. A few days later, terrified by the interference with their business, they signed a contract with the defendant.

On January 12, 1928, the Amalgamated began the present action to enjoin the International from destroying its existence by violent or illegal acts, the suit previously brought by the Winthrop bakery being discontinued soon thereafter. The court at Special Term granted an injunction in the form stated below¹, and the Appellate Division unanimously affirmed.

The plaintiff, if threatened in its business life by the violence of the defendant or by other wrongful acts, may have the aid of the court to preserve itself from disruption through recourse to these unlawful means. The remedy is not lost because the controversy is one between the members of rival unions, and not, as happens oftener, between unions and employers. Tracey v. Osborne, 226 Mass. 25, 114 N. E. 959;Goyette v. C. V. Watson Co., 245 Mass. 577, 140 N. E. 285. On the other hand, the legality of the defendant's conduct is not affected by the fact that no strike is in progress in any of the plaintiff's shops. Exchange Bakery & Restaurant v. Rifkin, 245 N. Y. 260, 157 N. E. 130. If the defendant believes in good faith that the policy pursued by the plaintiff and by the shops united with the plaintiff is hostile to the interests of organized labor, and is likely, if not suppressed, to lower the standards of living for workers in the trade, it has the privilege by the pressure of notoriety and persuasion to bring its own policy to triumph. Exchange Bakery & Restaurant v. Rifkin, supra; Bossert v. Dhuy, 221 N. Y. 342, 117 N. E. 582, Ann. Cas. 1918D, 661.

Upon the facts exhibited in this record the defendant went beyond the bounds of lawful conduct in conducting its campaign for the suppression of its rival. These acts were of such a nature as to justify some of the restraints imposed by the courts below, though they are insufficient to gives support to others. The defendant does not complain of the injunction against acts of violence or intimidation or against causing crowds to gather or loitering in groups. Those provisions of the judgment may stand as they were written. What the defendant complains of is the injunction against picketing, against false and misleading signs and statements, and against peaceable persuasion.

1. ‘Where unlawful picketing has been continued, where violence and intimidation have been used, and where misstatements as to the employer's business have been distributed, a broad injunction prohibiting all picketing may be granted.’ Exchange Bakery & Restaurant v. Rifkin, supra, at page 269 of 245 N. Y., 157 N. E. 130, 135. ‘The course of conduct of the strikers' is then ‘such as to indicate the danger of injury to property if any picketing whatever is allowed.’ Ibid.

Before this action was begun, the defendant had already been restrained in the suit by the Winthrop bakery from acts of violence or disorder, from picketing with false and misleading signs, and from other false and misleading statements. These prohibitions it had violated, or so the trier of the facts has found. It had set upon and beaten innocent workmen. It had falsely asserted that a strike was in progress. By such falsehoods it had driven customers to other bakeries, had forced unwilling proprietors to succumb to its demands, and in so doing had threatened the prosperity and indeed the very existence of its rival.

Whether the trial court, in view of this record of defiance, would give the defendant still another chance to picket peacefully and in order, was something to be determined in the exercise of a wise discretion. This court may not interfere except for manifest abuse. ‘It...