Schivera v. Long Island Lighting Co.

• Decision Date: 03 October 1946
• Parties: SCHIVERA v. LONG ISLAND LIGHTING CO. et al.
• Court: New York Court of Appeals Court of Appeals

296 N.Y. 26

69 N.E.2d 233

SCHIVERA

v.LONG ISLAND LIGHTING CO. et al.

Court of Appeals of New York.

Oct. 3, 1946.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by George R. Schivera against Long Island Lighting Company and Robert Forrester, as treasurer of Building and Construction Trades Council of Nassau and Suffolk Counties, for an injunction. From a judgment entered March 28, 1946, upon an order of the Appellate Division of the Supreme Court in the Second Judicial Department, 270 App.Div. 852, 60 N.Y.S.2d 793, which reversed on the law an order of the Supreme Court at Special Term, Johnson, J., 61 N.Y.S.2d 430, denying a motion by last-named defendant for dismissal of the complaint and granting a motion by plaintiff for temporary injunction, denied plaintiff's motion and granted last-named defendant's motion for dismissal of the complaint, the plaintiff appeals by permission of the Appellate Division which certified the following question: ‘Was the order of the special term properly made?’

Affirmed, certified question answered in negative, and motion to dismiss appeals denied.

LEWIS, CONWAY, and THACHER, JJ., dissenting. Joseph M. Proskauer, Donald Marks, Burton A. Zorn and Harold H. Levin, all of New York City, for appellant.

I. Cyrus Gordon and Carl Rachlin, both of New York City, for respondent.

DESMOND, Judge.

The facts are undisputed. William Levitt & Sons, Inc., not a party here, owns a tract of land in Roslyn Heights, Nassau County, on which it has built and is building a number of residences. The streets on which the houses are located, inside the development, are private streets and there is only one entrance thereto from the public highway, through a gateway. Levitt is a nonunion builder which, sometime prior to November 28, 1945, refused to recognize the defendant-respondent union or to bargain with it. Thereupon the union on November 28, 1945, called a strike of such union men as were employed by Levitt inside the development. At the same time the union established a picket line at the gateway leading from the public road into the Levitt property. The picketing was peaceful and there can be no doubt that, in so picketing Levitt, the union members were exercising their constitutional right of free speech. About three weeks after the strike and picketing began, plaintiff contracted to purchase from Levitt one of the dwellings in the subdivision and on January 28, 1946, closed the purchase. The house was completed except that defendant Long Island Lighting Company had not yet connected to this house (and to others in the area) its gas and electric services. On December 7, 1945, defendant Long Island Lighting Company sent some of its employees to the subdivision to do the work necessary to connect up its gas and electric lines to certain of the residences, including the one now owned by plaintiff. The lighting company's employees belonged to a union other than defendant union. What followed is described thus in an affidavit by a vice-president of Long Island Lighting Company:

‘When defendant Long Island's employees arrived at the entrance gate of said community known as North Park, which was the only point of public ingress to the houses specified in said applications, they were confronted by two pickets carrying placards in sandwich-board fashion which bore the following legend:

“Unfair To Building Trades Mechanics of A. F. of L. Building & Construction Trades Council of Nassau & Suffolk Counties'

‘The said pickets took up their position in the roadway leading to the houses in which defendant Long Island's employees (members of Local Union B-1049) and said employees of defendant Long Island, upon asking whether they would be allowed to enter the property or not, were told by one of the said pickets that they, the said pickets, had instructions not to allow any utilities to do any work whatsoever in the community known as North Park. Thereupon, when confronted with these circumstances, the said employees of defendant Long Island refused to cross the picket line, and gave as the reason for their refusal to so cross said picket line that as members of Local Union B-1049, International Bortherhood of Electrical Workers, A. F. of L., that by virtue of the provisions of the constitution and by-laws of said Union of which they were members, and the Union Shop provisions of the contracts between said Union and Long Island and its subsidiary the Nassau Company, they were obligated to respect the existence of a picket line and were forbidden to cross the same; that for them to cross such picket line would result in the loss of membership in the Union and, ultimately, loss of employment.

‘As a result of the refusal of the employees of defendant Long Island to cross the picket line and proceed with the work of installing the equipment necessary to provide gas and electric service applied for, the defendant Long Island was prevented from carrying out said work.’

With these facts before it, Special Term denied the motion of defendant union for a dismissal of the complaint and directed defendant Long Island Lighting Company to install its services at plaintiff's residence. It went further and granted plaintiff an injunction, pendente lite, against the picketing. It not only enjoined the defendant union from ‘picketing plaintiff's premises', or the area in which it is located, in such manner as to compel the lighting company employees to cross the picket line in order to do their work, but forbade picketing: ‘in such manner as will directly or indirectly result in preventing the Long Island Lighting Company from installing the gas and electric service in plaintiff's premises'. That, of course, effectively forbade any picketing at all since picketing was physically possible only at the single gateway entrance to the development, which entrance is, incidentally, a considerable distance from plaintiff's dwelling.

On appeal the Appellate Division reversed on the law and dismissed the complaint, solely because of plaintiff's conceded failure to comply with section 876-a, of the Civil Practice Act. That well known ‘autiinjunction’ statute deprives the courts of ‘jurisdiction’ to issue any restraining order ‘to any case involving or growing out of a labor dispute’, except after finding facts concededly not here present. The Appellate Division stated: ‘That case grows out of a labor dispute in which the disputants are the Building and Construction Trades Council of Nassau and Suffolk Counties, and William Levitt & Sons, Inc., builders'. 270 App.Div. 852, 60 N.Y.S.2d 793. That statement seems to us to be unquestionably true on the undisputed proof, and, being so, it ends this case.

Plaintiff's only answer is that he is not a party to that labor dispute. We do not see how that can by-pass the express prohibition of section 876-a. That statute, like its prototype, the Federal Norris-LaGuardia Act, 29 U.S.C.A. s 101 et seq., prohibits the issuance of any injunction, which, like the one here granted by Special Term, enjoins peaceful picketing in a labor dispute. Jurisdiction to issue any such injunction is, in so many words, denied to the courts. It makes no difference who is the plaintiff. There is no jurisdiction to issue such an injunction on any one's application. Such are the plain words of the statute, and the obvious intent makes it even plainer. The whole purpose of the ‘anti-injunction’ statute would be neatly and effectively thwarted if such an injunction were available to an outsider, injured, or annoyed by the peaceful and lawful picketing. Such a third party can always be found by the disputant who wishes to enjoin his adversary it was conceded in open court on the argument of this appeal that the attorney who represents this plaintiff-householder is in fact being paid by the strike-bound employer Levitt. (That circumstance explains why plaintiff continues to seek a reinstatement of the temporary injunction against picketing, even though the picketing has now ceased and the gas and electric installations have in fact now been made.)

The cases cited as justifying this injunction are not in point since they involve either secondary boycotts or violent or otherwise intrinsically unlawful strikes or picketing.

Since, as the Appellate Division held, this injunction was forbidden by section 876-a, it is unnecessary to discuss the violation of the union's fundamental constitutional right op peaceful picketing.

The judgment and order should be affirmed, with costs, and the certified question answered in the negative. The motion to dismiss the appeals should be denied.

FULD, Judge (concurring).

The question, simply posed, is whether a third person, who suffers incidental injury from peaceful picketing in a labor dispute between others, may obtain injunctive relief without complying with the provisions of section 876-a of the Civil Practice Act. I agree with the conclusion stated by Judge Desmond that plaintiff here must comply with the requirements of that statute. Its broad language makes no exception for cases such as the present, and there is no reason in logic or justice why the courts should engraft on it such an exception.

Every labor dispute has the capacity of injuring noncontestants. Every strike, every stoppage of production or cessation of work due to labor differences, necessarily imposes an involuntary burden of hardship upon the consuming public. That plaintiff suffered inconvenience or injury as a result of the picket line neither renders the union liable (Restatement of Torts, s 809) nor furnishes reason for departing from the State's settled policy. See May's Furs and Ready to Wear, Inc., v. Bauer, 282 N.Y. 331, 340, 26 N.E.2d 279, 283;Interborough Rapid Transit Co. v. Lavin, 247 N.Y. 65, 74, 75, 159 N.E. 863, 866, 63 A.L.R. 188;Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N.Y. 260, 157 N.E. 130. If the mere fact of such incidental injury were to...