Thayer Co. v. Binnall

• Decision Date: 16 November 1950
• Parties: THAYER CO. v. BINNALL et al. and three companion cases.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

326 Mass. 467

95 N.E.2d 193

THAYER CO. v. BINNALL et al. and three companion cases.

Supreme Judicial Court of Massachusetts, Suffolk and Worcester.

November 16, 1950

Argued May 4-5 1950.

S M. Salny, Fitchburg, W. A. Loughlin, Gardner, for Thayer Co.

S. S. Grant Boston, M. Raphael, New York City, for the Unions.

F. E. Kelly, Atty Gen., H. P. Fielding and L. E. Ryan, Asst. Attys. Gen., for the Justices of the Superior Court, submitted a brief.

Before QUA, C. J., and RONAN, WILKINS, and WILLIAMS, JJ. [Copyrighted Material Omitted]

RONAN, Justice.

The first two cases are suits in equity which are here by appeals from final decrees granting injunctive relief against the defendants, who were conducting a strike at the plants of each of the plaintiffs. The defendants also appealed from interlocutory decrees granting preliminary injunctions against them.

The last two cases are here by appeals by those who were defendants in the two suits in equity from judgments of a single justice of this court dismissing petitions for writs of mandamus to compel the trial judge in the suits to report questions of law arising out of the granting by him of the preliminary injunctions.

The two companies which were the plaintiffs in the suits in equity will be hereinafter referred to as the plaintiffs; and those who were defendants in the suits will be hereinafter referred to as the defendants.

Certain motions to dismiss all the appeals must be first considered.

The plaintiffs filed motions in the Superior Court in the equity cases to dismiss the appeals therein. The judge on January 10, 1950, denied those motions. The defendants entered their appeals in this court on January 26, 1950.

The plaintiffs also filed in this court motions in the equity cases to dismiss the appeals on the ground that the defendants had not taken the necessary steps to perfect and enter them within the time prescribed by G.L. (Ter.Ed.) c. 231, § 135, and on the alternative ground that the appeals had been entered prematurely in this court. It is contended by the plaintiffs that there is nothing to show when the clerk of the Superior Court gave the defendants notice that the papers for the appeals had been prepared and were ready for filing in this court or that, if such notice was given, they were filed within five days thereafter. The difficulty with these contentions of the plaintiffs is that it has not been made to appear that the defendants did not act within the designated times. The motions filed in this court cannot be sustained on the first ground. Duff v. Town of Southbridge, 325 Mass. 224, 90 N.E.2d 12; Great American Indemnity Co. v. Allied Freightways, Inc., 325 Mass. 568, 573, 91 N.E.2d 823. Neither can these motions be sustained on the alternative ground. The denial of a motion to dismiss as distinguished from the granting of such a motion relates only to an interlocutory matter. Scola v. Director of the Division of Employment Security, 326 Mass. 180, 93 N.E.2d 523. Compare Frost v. Kendall, 320 Mass. 623, 624, 70 N.E.2d 521. The orders of the Superior Court denying the motions filed there did not affect the final decrees or extend the time within which appeals from such decrees could be entered in this court. The short answer to the plaintiffs' contention is that the denial of such a motion is not appealable. Medlinsky v. Premium Cut Beef Co., 320 Mass. 22, 28, 67 N.E.2d 762.

The motions filed in the Superior Court to dismiss the appeals, another motion to dismiss them filed in this court and motions filed in this court to dismiss the appeals in the mandamus cases are based upon the theory that the strikes had ceased to exist because the plants of the plaintiffs had long been in full operation since the appeals were taken and also that the contracts of employment existing at the time of the strikes had expired, and that consequently the controversy involved in the suits had become moot.

A strike like any other conflict comes to an end when the strikers have spent their strength and their subsequent efforts have no substantial effect upon the business of the employer so that there is no genuine hope of success. M. Steinert & Sons Co. v. Tagen, 207 Mass. 394, 397, 93 N.E. 584; Samuel Hertzig Corp. v. Gibbs, 295 Mass. 229, 231, 3 N.E.2d 831; Hubrite Informal Frocks, Inc., v. Kramer, 297 Mass. 530, 534-535, 9 N.E.2d 570. Here the strikes were being waged by the strikers in full force and vigor until all their activities were enjoined. These injunctions were obeyed and the plaintiffs thereafter operated their plants without any interference by the defendants. So far as appears, the defendants have not written off these strikes as lost, or given up the struggle as a lost cause, but on the contrary are now pressing their appeals so that in the event of a favorable decision they may resume the strikes. In these circumstances, the controversy still exists, awaiting the determination by this court of the rights of the parties. The controversy has not become moot. Bakery Sales Drivers Local Union No. 33 v. Wagshal, 333 U.S. 437, 443, 68 S.Ct. 630, 92 L.Ed. 792. Hostilities have been suspended but not ended as will appear from what we have next to say.

It is finally contended that the motions to dismiss should have been granted because the contracts of employment with the workers' councils in effect when the strike began have expired. One contract has been renewed with one plaintiff and the contract with the other plaintiff has been extended with some change therein. There is nothing to indicate that so far as the contracts are concerned they are substantially different from those in existence when the strike commenced. The plaintiffs, of course, do not contend that the injunctions ceased when the old contracts expired and we see no logic in their contention that the controversy came to an end when the contracts were renewed or extended. We are not impressed with the argument that in order to keep their rights alive the local should have given notice to the plaintiffs before the contracts had expired, or taken other steps. The issues originally involved continue without any material change. Affidavits filed by the defendants in reply to motions of the plaintiffs show that at or about the time of the strike complaints charging the plaintiffs with unfair labor practices and involving the then existing contracts of employment with the workers' councils had been filed by employees with the national labor relations board under U.S.C. (1946 ed.) Sup. I, Title 29, § 158(a)(1), (2), (3), 29 U.S.C.A. § 158(a)(1-3). Proceedings on these charges are seemingly pending before that board. We do not believe that this industrial struggle has become moot. Jaffarian v. Mayor of Somerville, 275 Mass. 264, 175 N.E. 639. Baron v. Fontes, 311 Mass. 473, 477, 42 N.E.2d 280. Kenworthy & Taylor, Inc., v. State Examiners of Electricians, 320 Mass. 451, 70 N.E.2d 247. Commissioner of Corporations & Taxation v. Ryan, 323 Mass. 154, 80 N.E.2d 471.

The First Two Cases.

Preliminary injunctions having been denied after a hearing shortly after the return of the orders of notice, the suits came on to be heard upon the merits by another judge. After the hearing had continued for three days, during which evidence was introduced tending to show that the strikes were being conducted in an illegal manner, the judge directed that the order of the trial be modified and stated that he would hear further evidence as to the manner in which the strikes were being conducted, decide the motions for preliminary injunctions, and then proceed to complete the hearing upon the merits. He made findings of fact with reference to these motions and granted preliminary injunctions. He thereafter proceeded with the hearing, made further findings of fact, and ordered the entry of final decrees granting injunctive relief. The judge was within his rights in adopting this procedure. A judge should take immediate and effective measures to check and suppress acts of violence occurring during a hearing, and he would be remiss in the performance of his duties if he should permit such acts to continue unabated until the conclusion of the hearing. The fact that preliminary injunctions had been previously denied did not stay the hand of the trial judge to grant relief if the acts occurring after the hearing on the first application for an injunction warranted such action. Successive applications for injunctions are not to be encouraged, but where events happening after the denial of an application establish the need of injunctive relief, such relief should be granted. Louisville & Nashville Railroad v. Kentucky Railroad Commission, D.C., 214 F. 465, 467; Red Star Yeast & Products Co. v. La Budde, 7 Cir., 83 F.2d 394, 396; Ball v. Paramount Pictures, Inc., D.C., 57 F.Supp. 505, 507; In re Davis, 31 Cal.2d 451, 189 P.2d 283; Phelps Dodge Copper Products Corp. v. United Electrical, Radio & Machine Workers of America, 138 N.J.Eq. 3, 46 A.2d 453; Tallevast v. Kaminski, 146 S.C. 225, 143 S.E. 796.

We turn now to the findings made by the judge. Before he ordered the preliminary injunctions he found that repeated acts of violence had taken place on the public ways in the vicinity of the plants of the plaintiffs; that mass picketing had occurred involving at times more than two hundred pickets at one plant and sixty-five pickets at the other plant; that persons including employees and those with whom the plaintiffs had contractual obligations were seriously interfered with or actually prevented from entering or leaving the plants; that vile and obscene names were directed to men and women entering or leaving the plants; that threats of violence and other unlawful acts had been made to nonstrikes and their...