Simon v. Schwachman

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

301 Mass. 573

18 N.E.2d 1

SAMUEL SIMON v. PHILIP SCHWACHMAN & others.

Supreme Judicial Court of Massachusetts, Suffolk.

December 16, 1938

May 5, 6, 1938.

Present: LUMMUS QUA, DOLAN, & COX, JJ.

Unlawful Interference. Labor. Labor Union. Picketing. State Labor Relations Act. Equity Jurisdiction, To enjoin unlawful interference, Labor disputes, Retention for assessment of damages. Equity Pleading and Practice, Injunction.

Neither the provisions of St. 1935, c. 407, nor those of St. 1937, c 436, make lawful the peaceful picketing by a labor union of a shop and its business for the purpose of compelling the proprietor, through loss or fear of loss of public patronage to enter into a contract with the union under which he would recognize the union as a bargaining agency for his employees and would generally employ only members of the union, where no dispute existed between the proprietor and his employees who were nonunion, even if it be assumed that the circumstances showed a "labor dispute" as defined in Section 20C, added to G.L.c. 149 by St. 1935, c.

407, Section 1.

On the record it appeared that all of the conditions described in Section 9A added to G. L. (Ter. Ed.) c. 214 by St. 1935, c. 407, Section 4, as prerequisites to the granting of permanent injunctive relief in a labor dispute were met in a suit in equity to enjoin a labor union from peaceful picketing for an unlawful purpose.

A suit in equity for injunction of members of a labor union, pending in this court on appeal from a decree of dismissal, upon this court being informed that acts sought to be enjoined had ceased was ordered retained for assessment of damages sustained by the plaintiff from acts of the defendants adjudged by this court to have been unlawful.

BILL IN EQUITY, filed in the Superior Court on March 30, 1938. The suit was heard by Goldberg, J., who ruled "that the controversy in the instant case is a `labor dispute' within the meaning of St. 1935, c. 407, and that the case involves or grows out of a labor dispute"; and by his order a final decree dismissing the bill was entered. The plaintiff appealed.

E. Miller, (S.

Miller & J. M. Weisberg with him,) for the plaintiff.

A. F. Reel, (B.

Feinberg with him,) for the defendants.

LUMMUS, J. 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 union member 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 picketing 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 . 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 crowd, 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 store 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 . Godin v. Niebuhr, 236 Mass. 350. Olympia Operating Co. v. Costello, 278 Mass. 125 , 130. Cinderella Theater Co. Inc. v. Sign Writers' Local Union No. 591, 6 Fed. Sup. 164, 172. J. F. Parkinson Co. v. Building Trades Council, 154 Cal. 581, 592. Nann v. Raimist, 255 N.Y. 307, 317-318. J. H. & S. Theatres, Inc. v. Fay, 260 N.Y. 315. The plaintiff's business has 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 , majority opinion, and dissenting opinion of Holmes, J. Plant v. Woods, 176 Mass. 492 , both opinions. Truax v. Corrigan, 257 U.S. 312, all opinions. Commonwealth v. Strauss, 191 Mass. 545 . Wyeth v. Cambridge Board of Health, 200 Mass. 474 , 478. Minasian v. Osborne, 210 Mass. 250. Commonwealth v. Libbey, 216 Mass. 356 . Cornellier v. Haverhill Shoe Manufacturers' Association, 221 Mass. 554 , 559-560. Bogni v. Perotti, 224 Mass. 152 . Godin v. Niebuhr, 236 Mass. 350 . A. T. Stearns Lumber Co. v. Howlett, 260 Mass. 45 , 56-59. 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 providing higher wages, shorter hours and better conditions of employment. As early as 1842, in the leading case of Commonwealth v. Hunt, 4 Met. 111, 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, for the first time, it is believed, 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. Chief Justice Field and Mr. Justice Holmes dissented on this point.

Pages 103, 105. Of course violence or threats of violence must be outlawed in any country that claims civilization. But G. L. (Ter. Ed.) c 149, Section 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 he 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...