New York Post Corporation v. Kelley

• Decision Date: 17 January 1947
• Citation: 296 N.Y. 178,71 N.E.2d 456
• Court: New York Court of Appeals Court of Appeals
• Parties: New York Post Corporation v. Kelley

296 N.Y. 178

71 N.E.2d 456

NEW YORK POST CORPORATION

v.KELLEY et al.

HEARST CONSOLIDATED PUBLICATIONS, Inc.,

v.SAME.

NEW YORK SUN, Inc.,

v.SAME.

NEW YORK WORLD-TELEGRAM CORPORATION

v.SAME.

Court of Appeals of New York.

Jan. 17, 1947.

Appeal from Supreme Court, Appellate Division, First Department.

Actions by New York Post Corporation, Hearst Consolidated Publications, Inc., New York Sun, Inc., and New York World-Telegram Corporation against William J. Kelley and others, constituting the New York State Labor Relations Board, for declaratory judgments.From an order of the Appellate Division of the Supreme Court in the First Judicial Department entered May 3, 1946, 270 App.Div. 916, 61 N.Y.S.2d 762, which affirmed, by divided court, an order of a Special Term of the Supreme Court, Pecora, J., 61 N.Y.S.2d 264, denying in all respects motions by defendants for judgment on the pleadings pursuant to section 476 of the Civil Practice Actandrule 112 of the Rules of Civil Practice, and for summary judgment under rule 113 of the Rules of Civil Practice, defendants appeal by permission of the Appellate Division.

The following questions were certified:

‘1.Should the Special Term of the Supreme Court have granted judgment for the defendants, on the defendants'motion for judgment on the pleadings, pursuant to Section 475 of the Civil Practice Act, andRule 112 of the Rules of Civil Practice?

‘2.Upon the pleadings in this action, should the Special Term of the Supreme Court have rendered judgment declaring the New York State Labor Relations Board to be the proper agency to determine, in the first instance, whether the newsdealers referred to in the pleadings are independent merchants, or are employees of the plaintiff within the meaning of the New York State Labor Relations Act?

‘3.Upon the pleadings in this action, should the Special Term of the Supreme Court have rendered judgment declaring the New York State Labor Relations Board to be the proper agency to determine, in the first instance, whether there exists any question or controversy concerning the representation of employees, between individuals or groups within the same labor organization, or between labor organizations affiliated with the same parent labor organization, within the meaning of Section 705, subdivision 3, of the New York State Labor Relations Act?

‘4.Should the Special Term of the Supreme Court have granted the defendants' motion for summary judgment under Rule 113 of the Rules of Civil Practice, as to the allegations contained in Paragraphs Seventeenth and Eighteenth of the Complaint, purporting to state a cause of action upon the alleged ground that a question or controversy concerning the representation of employees, exists between individuals or groups within the same labor organization, or between labor organizations affiliated with the same parent labor organization?'

Order affirmed and question certified answered in the negative.

DESMOND and FULD, JJ., dissenting.William E. Grady, Jr., and Philip Feldblum, both of New York City, for appellants.

Edward S. Greenbaum, Benjamin Kaplan and Harold H. Stern, all of New York City, for respondentNew York Post Corporation.

John B. Siefken and Thomas A. Brennan, both of New York City, for respondentHearst Consolidated Publications, Inc.

Harry H. Van Aken and William R. Lonergan, both of New York City, for respondentNew York Sun, Inc.

Charles B. Brophy, of New York City, for respondentNew York World-Telegram Corporation.

CONWAY, Judge.

In the first above-entitled action, plaintiff, a newspaper publisher, seeks a declaratory judgment that the provisions of the New York State Labor Relations ActLabor Law,Consol. Laws, c. 31, s 700 et seq., hereinafter referred to as N.Y.S.L.R. Act, do not apply to it; that certain newsdealers, licensed by the City of New York, are not its employees; that two organizations, viz: ‘Newsdealers Federal Labor Union, Local 22,371’ and ‘New York Newsboys Union, Local 471’, each of which claims to be the representative of and to be entitled to be designated as the bargaining agent of the licensed newsdealers, are affiliated with the same parent organization, the American Federation of Labor; that, since there is such controversy between those locals of the same parent body and since the newsdealers are not its employees, the New York State Labor Relations Board, hereinafter referred to as the Board, has no jurisdiction to make any investigation or to certify a collective bargaining representative.

The complaint alleges in brief that the plaintiff is the publisher of the daily newspaper known as the New York Post; that the Board has been organized and is existing pursuant to the provisions of section 702 of the Labor Law of our State; that there are upwards of one thousand persons engaged in business in the city of New York as dealers in newspapers, magazines and other articles of merchandise who conduct their businesses on city property pursuant to licenses issued by the Department of licenses of the City of New York; that those newsdealers are independent retail merchants, many of whom purchase copies of plaintiff's newspapers from plaintiff and resell them to the public at a profit; that none of said licensed dealers receives any wages or salary from the plaintiff and that all of them are free to, and do, fix their own hours of labor and are free to determine what newspapers, magazines or other articles of merchandise they wish to sell, without any restriction by the plaintiff; that the dealers conduct their businesses as independent retail merchants, subject only to such restrictions as may be imposed upon them by the city; that none of such dealers is an employee of the plaintiff.

The complaint then alleges that, in an action instituted by the People of the State of New York through the Attorney-General in 1941 against Joseph Masiello, individually and as president of Newsdealers Federal Labor Union, LocalNo. 22,371, et al., as defendants, pursuant to article 22 of the General Business Law,Consol. Laws, c. 20, an injunction was issed by the Supreme Court of the State of New York enjoining the defendants therein named from picketing the places of business of newsdealers engaged in selling the plaintiff's newspaper and certain other newspapers published in the city of New York, from coercing the newsdealers to refrain from purchasing such newspapers, from distributing circulars representing that the defendants were engaged in a labor dispute, and from otherwise combining and acting in concert to impair, prevent and destroy free competition in the sale and distribution of said newspapers.The complaint then further alleges that the temporary injunction prayed for was granted and that it was then determined that none of the said licensed newsdealers was an employee of the plaintiff herein or of the other newspapers, that the licensed newsdealers were retail merchants, that the controversy between the plaintiff and the other newspapers on the one hand and the licensed newsdealers on the other was one between vendors and vendees, involving no employer-employee relationship and that there was no ‘labor dispute’ within the meaning of section 876-a of the Civil Practice Act.People v. Masiello, 177 Misc. 608, 31 N.Y.S.2d 512.

It then alleges that there were certain proceedings had before the National Labor Relations Board, Second Region, hereinafter referred to as the National Board, by ‘New York Newsboys Union, Local 471’, in which it was claimed among other things that the plaintiff had refused to recognize that local as the exclusive bargaining agent of certain licensed newsdealers; that thereafter the petition in that proceeding was withdrawn without prejudice following an informal conference at the office of the National Board at which representatives of plaintiff, other newspapers, and Local 471 were present; that thereafter a petition was filed with the State Board by Local 471 requesting that it be certified as the representaive of certain licensed newsboys and newsdealers for the purpose of collective bargaining pursuant to the provisions of section 705 of the N.Y.S.L.R. Act; that thereafter pursuant to the request of the Board plaintiff attended at an informal conference together with representative of Local 471; that the attention of the Board was called to the decision in People v. Masiello, supra, and the fact that it had there been held that the licensed newsdealers were independent merchants and not employees of the plaintiff, but that the Board decided to entertain an amended petition of Local 471 wherein it was alleged that the aforementioned licensed newsdealers were employees of plaintiff, that there were approximately fourteen hundred of them, and that a question or controversy had arisen concerning the representation of employees in an alleged bargaining unit referred to therein; that the plaintiff, designated therein as ‘the employer’, had refused to recognize Local 471 as the exclusive bargaining agent of said licensed newsdealers and had refused to bargain collectively with the local union; that thereafter the Board served upon the plaintiff a notice of hearing pursuant to section 705, subdivision 3, of the N.Y.S.L.R. Act and the hearing was finally set down for a particular day; that Newsdealers Federal Labor Union, Local 22,371 (the local involved in People v. Masiello, supra,) has intervened in the proceeding before the Board and claims that it is the representative of and should be designated as the bargaining agent of the licensed newsdealers above mentioned; that both local unions are affiliated with the same parent labor organization, namely the American Federation of Labor; that if said licensed newsdealers are held to be employees of the plaintiff so that they fall within the purview of the statute, constitutional rights of the plaintiff will be affected under both the New York State and United States Constitutions.

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