Samuel Hertzig Corp. v. Gibbs

• Decision Date: 09 September 1936
• Citation: 3 N.E.2d 831,295 Mass. 229
• Parties: SAMUEL HERTZIG CORPORATION v. GIBBS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 229

3 N.E.2d 831

SAMUEL HERTZIG CORPORATION v. GIBBS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 9, 1936

Suit in equity by the Samuel Hertzig Corporation against George Gibbs and others. From a final decree, certain defendants appeal.

Affirmed.

Appeal from Superior Court, Suffolk County; Brogna, Judge.

J. J Enright and W. J. Day, both of Boston, for appellants O'Brien and others.

Roewer & Reel, of Boston, amicus curiae.

M. J Moskow, of Boston, and L. J. Reibstein, of Brookline, for appellee.

LUMMUS, Justice.

This is an appeal by the officers and members of Local No. 11 of the International Alliance of Theatrical Stage Employees, a labor union affiliated with the American Federation of Labor, from a final decree enjoining them from interfering with the lawful business of the Park Theatre in Boston, conducted by the plaintiff, and from maintaining pickets near the theatre.

On November 16, 1933, a corporation called Park Entertainment Corporation, controlled by persons named Minsky, and engaged in the conduct at said theatre of an entertainment called Minsky's Park Burlesque, agreed in writing with said Local to employ as stage hands members of said Local and no others, at minimum wages stated. The agreement was to continue until September 1, 1934, and thereafter until September 1, 1935, unless notice of unwillingness to continue the agreement in force should be given on or before August 1, 1934. The agreement was still in force on February 20, 1935, when the Local called its members out on strike for the reason that for the preceding twenty-two weeks they had been paid less than the wages required by the contract, the total difference being $2,349.22.

The Local employed pickets to walk up and down in front of the theatre, crying out that the theatre did not employ union stage hands, operators or musicians affiliated with the American Federation of Labor. But the proprietor of the theatre at once filled the places of the strikers with members of another labor organization called the Knights of Labor, and has conducted business normally ever since, apart from the picketing. The picketing apparently was stopped during the summer of 1935, but was resumed on September 9, 1935, and was still in progress when the bill was brought on September 14, 1935, and when the decree appealed from was entered on December 6, 1935.

The judge found that the strike was called in good faith and for a legitimate object, and was conducted in an orderly manner. But he found that ‘ it has long since failed and been terminated.'

Even if the proprietor of the theatre was in the wrong, and ought to have paid larger wages to the members of the union, that does not enlarge the scope of the remedy by strike beyond the legitimate scope of that remedy in labor disputes in general. A simple remedy at law existed for the recovery of any unpaid balance of wages. Even if one action could not have been brought for all employees under G.L.(Ter.Ed.) c. 231, § 2, an assignment could have been made to one and a single action brought under section 5. But any remedy by way of maintaining a strike is limited to the period of effective maintenance of the strike. In this respect a strike bears some resemblance to a blockade in international law. The Olinde Rodrigues, 174 U.S. 510, 19 S.Ct. 851, 43 L.Ed. 1065. When a strike has become merely nominal, without substantial effect upon the business of the employer or genuine hope of success, continued acts of interference with business can no longer be justified as lawful incidents of an existing strike. M. Steiner & Sons Co. v. Tagen, 207 Mass. 394, 397, 93 N.E. 584,32 L.R.A.(N.S.) 1013; Commonwealth v. Libbey, 216 Mass. 356, 103 N.E. 923,49 L.R.A.(N.S.) 879, Ann.Cas.1915B, 659; Densten Hair Co. v. United Leather Workers' International Union of America, 237 Mass. 199, 129 N.E. 450; Moore Drop Forging Co. v. McCarthy, 243 Mass. 554, 562, 137 N.E. 919; G.L.(Ter.Ed.) c. 150, § 4. West Allis, Foundry Co. v. State, 186 Wis. 24, 202 N.W. 302; Frankfurter & Greene, The Labor Injunction (1930), 31. Oakes, Organized Labor & Industrial...