Pappas v. Stacey

• Decision Date: 31 May 1955
• Citation: 151 Me. 36,116 A.2d 497
• Court: Maine Supreme Court
• Parties: , 36 L.R.R.M. (BNA) 2619, 28 Lab.Cas. P 69,420 Theodore PAPPAS v. Charles STACEY and William Winslow

Page 497

116 A.2d 497

151 Me. 36, 36 L.R.R.M. (BNA) 2619,

28 Lab.Cas. P 69,420

Theodore PAPPAS v. Charles STACEY and William Winslow

Supreme Judicial Court of Maine.

May 31, 1955.

Appeal Dismissed 76 S.Ct. 117.

Bernstein & Bernstein and James Connellan, Portland, for plaintiff.

Sidney W. Wernick, Portland, for defendants.

Before FELLOWS, C. J., and WILLIAMSON, TIRRELL, WEBBER and BELIVEAU, JJ.

WILLIAMSON, Associate Justice.

This is an appeal in equity from a permanent injunction against picketing for organizational purposes. The case was heard on bill, answer, replication, and an agreed statement of facts. The defendants are officials of Local 390, Hotel and Restaurant Employees and Bartenders International Union, which for convenience may be referred to as 'Local 390.'

The agreed statement of facts is here set forth in full:

'1. (That) the said Plaintiff is the operator and owner of a certain restaurant or eating establishment known as and called Theodore's Lobster House, located at 123 Commercial Street in said Portland.

'2. (That) the said Defendants and their agents and servants have been and are conducting picketing at the place of business of your Plaintiff.'

'3. The said picketing has been at all times peaceful picketing.

'4. At least three employees of the Plaintiff are on strike, two of whom have been participating in the picketing and the third of whom has been present at the site of the picketing. All three are members of the union, Local No. 390 of the Hotel and Restaurant Employees and Bartenders International Union.

'5. The defendants and the three employees aforesaid who are on strike have been conducting the picketing for the sole purpose of seeking to organize other employees of the Plaintiff, ultimately to have the Plaintiff enter into collective bargaining and negotiations with the Union, this being done as a preliminary for attempting to organize restaurant employees in other establishments throughout the State of Maine.

'6. The Plaintiff employs on an average thirty persons who would properly be subject to organization and of this thirty at least five are sporadic or transient employees.

'7. The business of the Plaintiff is a lawful business and if the picketing is illegal, the Plaintiff has been suffering and will continue to suffer damage in the conduct of his business which is irreparable and for which there is no adequate remedy at law.'

There are, in our view, two issues: (1) Does the law of Maine prohibit peaceful picketing for organizational purposes under the circumstances of this case? (2) If so, is such picketing protected under the 'free speech' provision of the Federal Constitution?

In ascertaining the law, or broadly speaking the public policy, which governs in this situation, we must consider the case of Keith Theatre v. Vachon, 1936, 134 Me. 392, 187 A. 692, and the statute first enacted in P.L.1941, c. 292, now R.S. c. 30, § 15 (1954), reading:

'Workers shall have full freedom of association, self organization and designation of representatives of their own choosing for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection, free from interference, restraint or coercion by their employers or other persons * * *.'

The parties are in accord that Keith Theatre v. Vachon, supra, is the only decision of our Court touching the issues. No question arises whether jurisdiction of the case lies in the federal or state courts.

We are free to find the facts in this appeal without reference to the findings of the single Justice. The firmly established principle 'that his decision, as to matters of fact, should not be reversed, unless it clearly appears that such decision is erroneous' found in Young v. Witham, 1884, 75 Me. 536, is not here applicable. 'The claim has no merit in a case which involves no oral testimony.' Mellen v. Mellen, 1952, 148 Me. 153, 90 A.2d 818, 820.

There are certain facts stated in or inferred from the agreed statement to be discussed before turning to the precise issues.

(1) The picketing is peaceful and effective. In a sense the picket line is a wall erected between the plaintiff's restaurant and the public. We may fairly infer that the public, or those who supply the needs of plaintiff's business, or more likely persons in both categories, refuse to cross the picket line or scale the wall.

At the moment we are not considering the objective of the picketing. It the purpose were to secure higher wages, or shorter hours, the immediate damage from the picketing would be like in kind and perhaps in degree to that suffered by the plaintiff.

(2) The plaintiff has not interfered with organizational activities by Local 390, or the striking employees among the other employees, apart from seeking injunctive relief against picketing. There is no suggestion that the plaintiff has objected to or interfered with the persuasion of the employees to join Local 390, except in this action.

(3) The objective of the strike of three union employees is not specifically stated. The picketing, however, has been conducted by the defendants and by the striking employees 'for the sole purpose of seeking to organize other employees of the Plaintiff * * *' It is apparent, therefore, that the strike of the three employees and the picketing are being conducted for the same objective.

(4) There are no grievances existing between the plaintiff and the employees, including the three on strike, relating to wages hours, and conditions of employment. The defendants alleged such grievances in their answer. There is, however, a total lack of such claims in the agreed statement. On the record the grievance (if it may be called such) of the defendants is not with the plaintiff, but with the employees for not joining Local 390.

We are here concerned, as we have seen, with picketing solely for organizational purposes. Whether the labor-management relationship in the plaintiff's restaurant 'ultimately', to quote from the agreed statement, shall take the form of a closed, union, preferential union, or nonunion shop, or any other type, is not the point at issue. Our question remains whether the defendants may press for their immediate purpose 'of seeking to organize other employees' by peaceful picketing at the plaintiff's place of business.

(5) The fact that the picketing is part of a plan for the organization of restaurant employees throughout the State, is not of weight in the case. If the picketing is lawful for organizational purposes at the plaintiff's restaurant, it does not become unlawful from the stated broader purpose. It is enough that we here consider picketing for organizational purposes among the twenty-seven nonunion employees of the plaintiff.

We are of the opinion that the strike by the three union employees for organizational purposes is an unlawful strike. It follows that picketing in support of such strike, although peaceful, is likewise unlawful and may be enjoined.

In Keith Theatre v. Vachon, supra, 134 Me. at page 397, 187 A. at page 694, a strike has been defined to be "a combined effort among workmen to compel the master to the concession of a certain demand, by preventing the conduct of his business until compliance with the demand." In Restatement, Torts § 797, comment a (1939) we find: 'Definition of strike. A strike is a concerted refusal by employees to do any work for their employer, or to work at their customary rate of speed, until the object of the strike is attained, that is, until the employer grants the concession demanded.'

The purpose of the strike, we repeat, is 'for the sole purpose of seeking to organize other employees of the Plaintiff * * *' A strike for organizational purposes is by definition a strike to obtain from the employer a concession which he may grant. 'A strike necessarily assumes the existence of a grievance. To right the asserted wrong is its purpose.' Keith Theatre, supra, 134 Me. at page 398, 187 A. at page 694. In this instance the purpose of the strike necessarily is to compel the employer to bring pressure upon the employees to join Local 390. For what other purpose under the circumstances of this case are the employees on strike?

Under the statute enacted in P.L.1941, c. 292, supra, the employee, or worker, is protected from 'interference, restraint or coercion by their employers or other persons * * *.' The worker must be left free from interference by employer or other persons in reaching a decision whether to join or refrain from joining a union. It follows necessarily that pressure cannot lawfully be directed against the employer to force him to interfere with the free choice of his employees. The plaintiff cannot lawfully be placed in a position where compliance with the strikers' demands requires action in violation of the law of the State.

This is, however, precisely what the strikers here seek to accomplish. In brief, the strike for organizational purposes is unlawful for it is by its very nature destructive of the protection for the employees provided by the statute of 1941, supra.

We do not base our decision, however, solely upon the fact of an unlawful strike. Treating the case as if only picketing were involved, we reach the same result.

In our view peaceful picketing for organizational purposes is unlawful under our law, and may be enjoined. For the moment we approach the problem, having in mind the 'labor-relations' principle in distinction from the 'picketing-free speech' principle. Although there is no dispute between the plaintiff and his employees, yet the employer, on the defendants' theory, may be subjected to irreparable loss from action directed in terms to the persuasion of nonunion employees to join a union.

A coercive force is generated by the picketing to secure new members for the union. It is apparent that this force is applied to the employer to urge his employees to join the union to save his business, and to the employees...