Olympia Operating Co. v. Costello

• Decision Date: 26 January 1932
• Citation: 278 Mass. 125,179 N.E. 804
• Parties: OLYMPIA OPERATING CO. v. COSTELLO et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

278 Mass. 125

179 N.E. 804

OLYMPIA OPERATING CO.

v.COSTELLO et al.

Supreme Judicial Court of Massachusetts, Hampden.

Jan. 26, 1932.

Appeal from Superior Court, Hampden County; Whiting, Judge.

Suit by the Olympia Operating Company against Charles J. Costello and others, as members of a voluntary association or labor union known as Local No. 15 International Association of Billposters and Billers. From a final decree in favor of the plaintiff, the defendants appeal.

Affirmed.

J. E. Kerigan, of Springfield, for appellants.

C. H. Beckwith, of Springfield, for appellee.

CROSBY, J.

This is a bill in equity brought by a Massachusetts corporation engaged in the business of operating theaters in several cities in this Commonwealth, including the Paramount and Broadway theaters in the city of Springfield, against the members of a voluntary association or labor union known as Local No. 15 International Association of Billposters and Billers (herein called the Local), and against other members of the Local whose names are alleged to be unknown to the plaintiff. The bill is brought to restrain the defendants from conspiring together to injure the plaintiff in its business and from other acts set forth in the prayers of the bill. The case was heard by a master whose report was confirmed, and a final decree was entered restraining the defendants from picketing before the Paramount or the Broadway Theater in Springfield, and from attempting to induce persons not to patronize the theaters by signs, cards, placards or otherwise. The case is before this court upon an appeal from that decree.

The master made the following findings: The Paramount Theater has been operated by the plaintiff since it was opened in September, 1929. Members of the union were employed about a month before the opening to do the outside billposting and billing, and thereafter they were employed to do such advertising work, except during the summer and fall of 1930, until December of that year. Shortly after the opening of the theater a discussion arose between the representatives of the plaintiff and the Local as to the right of the members so employed to ‘change’ the lobby. The phrase ‘to change the lobby’ means the taking down of the advertising matter in the lobby of the theater and the setting up of new advertising matter at times when the program of the theater is changed. In December, 1929, a member of the Local was told by the plaintiff's then district manager to refrain from changing the lobby, and was threatened by him with removal from the lobby by the police if he persisted in making such change. From the opening of the Paramount Theater on September 27, 1929, to the following December, this member was forbidden to change the lobby which he had been doing in conjunction with the plaintiff's artist.

It is further found by the master that this lobby work at the Paramount Theater was not within the scope or purpose for which this member of the union was hired, as stated to him by the plaintiff's representative at the time of such hiring, nor was he at any time requested to do this work by any authorized representative of the plaintiff. There was no evidence that he was paid for such work, as such, by way of overtime or otherwise; but he was employed daily during working hours to put up and distribute outside advertising for the theater, for which he was paid.

Since about August 14, 1929, the plaintiff has employed a poster artist, who prepares the advertising matter to be put up in the lobby; he has a helper, and the advertising matter is put in the lobby each Friday night when the pictures are changed in the theater. Many meetings between the plaintiff's manager and representatives of the Local were held between September, 1929, and December, 1930, without result. At the request of representatives of the Local a meeting was held on March 10, 1931. At this meeting a copy of a proposed agreement was submitted to representatives of the plaintiff with a statement by an attorney of the Local, in substance, that its terms were not final but might be changed to conform to any mutual agreement reached. The agreement provided that the plaintiff employ members of the union to perform the duties of advertising agents at its theaters, and that such members so employed should do all the changing in the lobbies, and also the outside billing and posting. A wage scale was included in the proposed agreement. At a subsequent meeting, held March 13, 1931, the plaintiff's managers refused to enter into the agreement with the Local or to allow its members to change the lobbies or to do lobby work. It was further found that the plaintiff in good faith refused to allow members of the Local to do the lobby work at the Paramount and Broadway theaters because of the...