Swing v. American Fed'n of Labor

• Decision Date: 09 January 1939
• Docket Number: Gen. No. 40195.
• Citation: 18 N.E.2d 258,298 Ill.App. 63
• Parties: SWING ET AL. v. AMERICAN FEDERATION OF LABOR ET AL.
• Court: United States Appellate Court of Illinois

298 Ill.App. 63

18 N.E.2d 258

SWING ET AL.

v.AMERICAN FEDERATION OF LABOR ET AL.

Gen. No. 40195.

Appellate Court of Illinois, First District, First Division.

Dec. 21, 1938.

Rehearing Denied Jan. 9, 1939.

Appeal from Circuit Court, Cook County; Joseph Burke, Judge.

Suit by Ross W. Swing and others against the American Federation of Labor and others to restrain the defendants from picketing in front of the named defendant's place of business. From orders dissolving a preliminary injunction and dismissing the complaint, the plaintiffs appeal and the defendants cross-appeal.

Orders reversed.

O'CONNOR, J., dissenting in part. Samuel A. Rinella and Myer N. Rosengard, both of Chicago (Joseph Barbera and Seymour Rady, both of Chicago, of counsel), for appellants.

Stanton & Stanton, of Chicago (Bailey Stanton, S. J. Stanton, and Wm. McK. Gleeson, all of Chicago, of counsel), for appellees.

McSURELY, Presiding Justice.

By this appeal plaintiffs seek the reversal of an order dissolving a preliminary injunction, assessing damages and dismissing their complaint.

Pursuant to the prayer of the complaint a temporary injunction was issued restraining the defendants from picketing in front of Swing's place of business; subsequently answers were filed by defendants and a motion made to dissolve the temporary injunction and to dismiss plaintiffs' complaint, which motions were allowed. Defendants' brief seems to assume that the court considered both the complaint and the answers filed in passing upon the motions, but the orders show definitely that the complaint was dismissed for want of equity on its face, so that in considering the question before us we have only to consider whether the complaint sets up a cause of action.

The complaint is a joint pleading filed by the employer, Swing, and all of his employees; in it Swing asserts that he is engaged in the beauty parlor business in Chicago and his co-plaintiffs are all his employees; none of the members of the defendant unions are employees, or former or expectant employees of Swing; the Cosmetologists Union, defendant, is a union Local recently organized for the purpose of taking into the union employees of Chicago beauty shop operators. Plaintiff Swing asserts he has spent a large sum of money in equipment and furnishings in his place of business and in advertising, and has built up a large clientele.

April 30, 1937, four persons purporting to be officials and business agents of Local No. 548-D of the Hairdressers and Cosmetologists Union, called upon Swing and demanded that he order his employees to join their union; the complaint alleges he told them he had no objection to his employees joining the union if they wished to do so, and had no objection to these agents discussing the matter with his employees; that he permitted them at various times to speak to his employees and never at any time, by any means, attempted to influence his employees in the matter; that he was perfectly willing that the employees should decide for themselves.

That the employees, of their own free will and without any suggestions on his part, have refused to join this union for the reason that several of them had previously on several occasions joined other unions, which unions had lasted for but a short time and were never heard of thereafter, and they believed that this experience would be repeated if they joined this particular new union; that the employees saw no advantage in joining and believed it was merely a front for its organizers for the purpose of permitting them to collect large sums of money, not to be used for the benefit of the members but for the personal use of the organizers. Employer Swing asserts that he has had no disputes or controversies with his employees; that they are satisfied with the wages he is paying them and with their working hours and conditions; that there has never been any lockout on his part or any strike by his employees.

That notwithstanding these conditions defendants caused his place of business to be picketed by several persons; none of the pickets were employees and all of them were strangers to him and never employed by him; that beginning April 30, 1937, there were one and very often two male and female pickets walking up and down and close to the entrance to his place of business, carrying large signs with the words in large letters, “This Beauty Shop is Unfair to Organized Labor, Hairdressers and Cosmetologists Union Local 548-D, American Federation of Labor and Chicago Federation of Labor;” that the picketing continued during the entire day and part of the evening when the place was open for business. The complaint charges that the wording and lettering on the signs are untrue and designedly false and malicious; that the pickets interfered with the customers entering and coming from the place of business; that on the evening of May 15, 1937, one of his women customers, who had had some beauty work done in his shop and was just leaving, was accosted by one of the pickets then walking in front of the shop, who grabbed her by the arm and in a threatening manner said to her, “You better not go in there again; it's a scab shop;” that on the same day another customer, as she was leaving the premises, was accosted by two men who had been loitering about the premises for some time, and who in a threatening and menacing voice said to her, “You ought to be shot for going into that scab shop.”

That the untruthful statements on the signs misled the public and patrons into believing there was a strike in the shop; that this is untrue and unfair to the employees, resulting in loss of patronage; that successful attempts were made by the defendants to shut off the hot water and laundry supply of plaintiffs by reason of some connection with the engineer of the building and the drivers of laundry trucks.

The complaint charges that the pickets were all strangers to the plaintiff employer and that defendants were conspiring to ruin plaintiffs' business, and that the entire campaign was a malevolent one, and if permitted to continue would bring about the destruction of plaintiff's business.

The question presented for determination is whether a labor union, in which none of its members are present, past or expectant employees of an employer, has a right to picket his place of business for the purpose of compelling the employees, who do not wish to join a union, to do so?

In the past the Illinois courts were committed to the proposition that peaceful picketing and peaceful persuasion were unlawful. Philip Henrici Co. v. Alexander, 198 Ill.App. 568;O'Brien v. People, 216 Ill. 354, 75 N.E. 108,108 Am.St.Rep. 219,3 Ann.Cas. 966;Franklin Union v. People, 220 Ill. 355, 77 N.E. 176, 4 L.R.A.,N.S., 1001, 110 Am.St.Rep. 248;Barnes & Co. v. Typographical Union, 232 Ill. 424, 83 N.E. 940, 14 L.R.A.,N.S., 1018, 13 Ann.Cas. 54;Wilson v. Hey, 232 Ill. 389, 83 N.E. 928, 16 L.R.A.,N.S., 85, 122 Am.St.Rep. 119,13 Ann.Cas. 82;Kemp v. Division No. 241, 255 Ill. 213, 99 N.E. 389, Ann.Cas.1913D, 347;Anderson & Lind Manfg. Co. v. Carpenters' Council, 308 Ill. 488, 139 N.E. 887.

October 15, 1914, the Federal Congress passed the Clayton Act 38 Stat. 730 as an amendment to the Sherman Anti-Trust Law, 15 U.S.C.A. § 1-7, 15 note and section 20 of the Clayton Act, 29 U.S.C.A. § 52, prohibited the granting of injunctions against peaceful picketing and persuasion. July 1, 1925, Laws of 1925, p. 378, Ill.Rev.Stat.1937, c. 48, § 2a, our legislature passed an act substantially the same as section 20 of the Clayton Act. This provides in substance that no restraining order or injunction shall be granted by any court of this State “in any case involving or growing out of a dispute concerning terms or conditions of employment, enjoining or restraining any person or persons, either singly or in concert, from terminating any relation of employment or from ceasing to perform any work or labor, or from peaceably and without threats or intimidation recommending, advising, or persuading others so to do; or from peaceably and without threats or intimidation being upon any public street, or thoroughfare or highway for the purpose of obtaining or communicating information, or to peaceably and without threats or intimidation persuade any person or persons to work or to abstain from working, or to employ or to peaceably and without threats or intimidation cease to employ any party to a labor dispute, or to recommend, advise, or persuade others so to do.” Ill.Rev.Stat.1937, c. 48, § 2a.

In Ossey v. Retail Clerks' Union, 326 Ill. 405, 158 N.E. 162, and Fenske Bros. v. Upholsterers' Union, 358 Ill. 239, 193 N.E. 112, 97 A.L.R. 1318, the Supreme Court of this State has said that our Anti-Injunction Act is substantially the same as the Clayton Act, and our courts in interpreting our own Anti-Injunction Act have followed the decisions of the United States Supreme Court in its interpretation of the Clayton Act. That court has interpreted section 20 of the Clayton Act, 29 U.S.C.A. § 52, to refer to disputes between employers and employees. Duplex Printing Press Co. v. Deering, 254 U.S. 443, 469, 41 S.Ct. 172, 65 L.Ed. 349, 16 A.L.R. 196;...