Simon v. Schwachman

• Decision Date: 16 December 1938
• Citation: 301 Mass. 573,18 N.E.2d 1
• Parties: SIMON v. SCHWACHMAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

301 Mass. 573

18 N.E.2d 1

SIMON

v.SCHWACHMAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 16, 1938.

Suit by Samuel Simon against Phillip Schwachman and others, officers and members of the Amalgamated Meat Cutters & Butcher Workmen of North America, Local Union No. 618, to enjoin the picketing of plaintiff's shop. From an adverse decree, plaintiff appeals.

Reversed and remanded.Appeal from Superior Court, Suffolk County; Lewis Goldberg, Judge.

E. Miller, S. Miller, and J. M. Weisberg, all of Boston, for appellant.

A. F. Reel and B. Feinberg, both of Boston, for appellees.

LUMMUS, Justice.

A retail dealer in meat brings this bill against the officers and members of a voluntary association known as Amalgamated Meat Cutters and Butcher Workmen of North America Local Union No. 618, sometimes called the Hebrew Butchers Union Local No. 618, which is affiliated with the American Federation of Labor.

The plaintiff operates a small shop with the aid of three employees. None of them is a member of any labor union. Their wages are somewhat lower, and their hours of labor somewhat longer, than the wages and hours which the union seeks to maintain. There is not, and never has been, any dispute between the plaintiff and his employees.

In March, 1937, the defendant Hamlin became the business agent of the defendant labor union. He tried to unionize the various small butcher shops of the same kind and in the same district, as the plaintiff's shop. In this he was successful in about twenty instances. After July 1, 1937, Hamlin tried to induce the plaintiff to hire a unionmember as one of his employees, but without success. He told the plaintiff that if they did not come to a ‘peaceful adjustment’ the union ‘would have to do something.’ On March 22, 1938, with the authority of the union, Hamlin told the plaintiff that if the ‘matter’ should not be adjusted the union would picket the plaintiff's shop; and picketing began on March 26, 1938. Since that day picketing has been continued during business hours.

The method of picking is peaceable and orderly. Only four or five pickets remain in the neighborhood, and only one is active at a time. The others remain near enough to be available to take turns as the active picket. The active picket carries no sign, banner or placard. See Commonwealth v. Haffer, 279 Mass. 73, 180 N.E. 615. He walks back and forth on the sidewalk in front of and ten or twelve feet from the plaintiff's shop, saying ‘This store is unfair to organized labor,’ or ‘Do not patronize this store.’ There has been no disturbance, no threat, intimidation or coercion, no violence, no gathering of a crowed, and no interference with customers desiring to enter the shop. Occasionally the picket has said, ‘Do not cross the picket line.’ If spoken in a menacing manner or accompanied by a show of force, the words used might be found to carry a flavor of intimidation, rather than of peaceful persuasion. But taken by themselves they do not, and intimidation is expressly negatived by the findings. It is unnecessary in this case to consider whether the expression, ‘This shop is unfair to organized labor,’ ought to be considered a possibly untrue statement of fact making the picketing unlawful if the statement is untrue, or a technical expression meaning nothing more than that the proprietor is resisting the demands of some labor union. Martin v. Francke, 227 Mass. 272, 116 N.E. 404;Godin v. Niebuhr, 236 Mass. 350, 128 N.E. 406;Olympia Operating Co. v. Costello, 278 Mass. 125, 130, 179 N.E. 804;Cinderella Theater Co., Inc., v. Sign Writers' Local Union No. 591, D.C., 6 F. Supp. 164, 172;J. F. Parkinson Co. v. Building Trades Council, 154 Cal. 581, 592, 98 P. 1027, 21 L.R.A.,N.S., 550, 16 Ann.Cas. 1165;Nann v. Raimist, 255 N.Y. 307, 317, 318, 174 N.E. 690, 73 A.L.R. 669;J. H. & S. Theatres, Inc., v. Fay, 260 N.Y. 315, 183 N.E. 509. The plaintiff's business had decreased since the picketing began, ‘because of the natural disinclination, or fear, of certain people to enter a store which is being picketed.’

The defendants intend to continue the picketing until the plaintiff will sign an agreement with the union. The union and the individual defendants harbor no malice against the plaintiff. Neither do they desire to hurt him or his business, except as a means to an end. The purpose of the union is to bring pressure upon the plaintiff to compel him to enter into a contract with the union under which the plaintiff would recognize the union as the bargaining agency for his employees, and would, except under certain conditions, employ only members of the union. In other words, the object sought is a closed shop.

The question is, whether peaceful picketing for the purpose of compelling the plaintiff, through loss or fear of loss of public patronage, to enter into such a contract with a labor union, is lawful.

Prior to the legislation of 1935, plainly it was not lawful in this Commonwealth. This the defendants do not deny. We may start with propositions that seemingly are undisputed. Both the right to labor and the right to carry on business are liberty and property. Interference with them is unlawful unless justification is shown. Walker v. Cronin, 107 Mass. 555;Vegelahn v. Guntner, 167 Mass. 92, 44 N.E. 1077,35 L.R.A. 722, 57 Am.St.Rep. 443, majority opinion, and dissenting opinion of Holmes, J.; Plant v. Woods, 176 Mass. 492, 57 N.E. 1011,51 L.R.A. 339, 79 Am.St.Rep. 330, both opinions; Truax v. Corrigan, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed. 254, 27 A.L.R. 375, all opinions; Commonwealth v. Strauss, 191 Mass. 545, 78 N.E. 136, 11 L.R.A.,N.S., 968, 6 Ann.Cas. 842;Wyeth v. Cambridge Board of Health, 200 Mass. 474, 478, 86 N.E. 925, 23 L.R.A.,N.S., 147, 128 Am.St.Rep. 439;Minasian v. Osborne, 210 Mass. 250, 96 N.E. 1036, 37 L.R.A., N.S., 179, Ann.Cas.1912C, 1299; Commonwealth v. Libbey, 216 Mass. 356, 103 N.E. 923, 49 L.R.A.,N.S., 879, Ann.Cas.1915B, 659; Cornellier v. Haverhill Shoe Manufacturers' Association, 221 Mass. 554, 559, 560, 109 N.E. 643, L.R.A.1916C, 218;Bogni v. Perotti, 224 Mass. 152, 112 N.E. 853, L.R.A.1916F, 831;Godin v. Niebuhr, 236 Mass. 350, 128 N.E. 406;A. T. Stearns Lumber Co. v. Howlett, 260 Mass. 45, 56, 59, 157 N.E. 82, 52 A.L.R. 1125; Quinn v. Leathem, [1901] A.C. 495.

Undisputed also is the proposition, based upon sound public policy, that workmen have a common law right to strike, that is, to combine to cease work, for the purpose of coercing their employer into providinghigher wages, shorter hours and better conditions of employment. As early as 1842, in the leading case of Commonwealth v. Hunt, 4 Metc. 111,38 Am.Dec. 346, this court held that an indictment for conspiracy, alleging in substance ‘that the defendants and others formed themselves into a society, and agreed not to work for any person, who should employ any journeyman or other person, not a member of such society, after notice given him to discharge such workman’ (page 128), did not charge either an illegal object or illegal means. In that case, it is believed for the first time, the general right of workmen, when free from valid contractual obligation, to strike against their employer, was established. It has never been challenged since.

Picketing for the purpose of peacefully advising workmen and the public that a strike or trade dispute exists, in the hope of gaining sympathy expressed in a refusal of service and a withdrawal of patronage until the matter should be settled, originally was deemed, it seems, an illegal means of conducting a strike or other trade dispute. Vegelahn v. Guntner, 167 Mass. 92, 98-100, 44 N.E. 1077,35 L.R.A. 722, 57 Am.St.Rep. 443. Chief Justice Field and Mr. Justice Holmes dissented on this point. Pages 103, 105, 44 N.E. pages 1078, 1079. Of course violence or threats of violence must be outlawed in any country that claims civilization. But G.L.(Ter.Ed.) c. 149, § 24, first enacted as St.1913, c. 690, and amended by St.1933, c. 272, made it lawful to persuade or attempt to persuade any person to pursue any line of conduct which he has a right to pursue, unless the persuasion or attempt to persuade is accompanied by injury or threat of injury to the person persuaded or by disorder or unlawful conduct, or is a part of an unlawful or actionable conspiracy. In a lawful trade dispute, it was declared by the amendment of 1933 to be lawful to attend at any place where the person or persons persuading or attempting to persuade may lawfully be, ‘for the purpose of peacefully obtaining or communicating information or of so persuading or attempting to persuade.’ Picketing in trade disputes is thus legalized, under the statutory conditions. But it is settled that the statute gives protection in such cases only where there is a lawful trade dispute lawfully conducted. Harvey v. Chapman, 226 Mass. 191, 195, 115 N.E. 304, L.R.A.1917E, 389;Godin v. Niebuhr, 236 Mass. 350, 353, 128 N.E. 406;United Shoe Machinery Corporation v. Fitzgerald, 237 Mass. 537, 544, 130 N.E. 86, 20 A.L.R. 1508;Samuel Hertzig Corporation v. Gibbs, Mass., 3 N.E.2d 831. See, also, American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 203 et seq., 42 S.Ct. 72, 66 L.Ed. 189, 27 A.L.R. 360;Wise Shoe Co., Inc., v. Lowenthal, 266 N.Y. 264, 194 N.E. 749;Goldfinger v. Feintuch, 276 N.Y. 281, 11 N.E.2d 910, 116 A.L.R. 477; 35 Mich.Law Rev. 73.

In this case the acts of the defendants are not justifiable under the common law of this Commonwealth even with the peaceful persuasion act added, because there is no lawful trade dispute recognized by that law. By our common law, the right to strike and maintain pickets against an employer is deemed the right of his employees only. Labor unions and other persons helping striking employees do so only in the right, and for the benefit, of those employees. Each employer and his employees constitute a unit within which a trade dispute must be found in order that picketing and...