Waldbaum, Inc. v. United Farm Workers, AFL-CIO

• Decision Date: 05 April 1976
• Docket Number: AFL-CIO
• Citation: 383 N.Y.S.2d 957,87 Misc.2d 267
• Parties: , 92 L.R.R.M. (BNA) 2661, 79 Lab.Cas. P 53,860 WALDBAUM, INC. v. UNITED FARM WORKERS,, et al.
• Court: New York Supreme Court

Page 957

383 N.Y.S.2d 957

87 Misc.2d 267, 92 L.R.R.M. (BNA) 2661,

79 Lab.Cas. P 53,860

WALDBAUM, INC. v. UNITED FARM WORKERS, AFL-CIO, et al.

Supreme Court, Trial Term, Queens County, Part 16.

April 5, 1976.

James P. Durante and Douglas P. Catalno, Reavis & McGrath, New York City, for plaintiff.

Donald S. Hillman, Layton & Sherman, New York City, for defendants.

Alan H. Levine, Eve Cary, New York City, for defendants, New York Civil Liberties Union.

LEO BROWN, Justice.

Waldbaum, Inc. (Waldbaum), a chain of supermarkets in the New York City metropolitan area, commenced this action for injunctive relief and damages in response to picketing admittedly undertaken at the site of its stores. The complaint alleges that picketing began in early July, 1975, it had an unlawful purpose, and was attended by the commission of illegal acts. Defendant, United Farm Workers AFL-CIO (UFW), and the individual defendants deny plaintiff's allegations and maintain that the picketing in question was designed to persuade customers of Waldbaum to refrain from purchasing grapes and lettuce harvested by growers in California with which UFW is engaged in a labor dispute, and as such the picketing constitutes legally protected activity.

I

The initial question to be determined is whether section 807 of the Labor Law governs disposition of plaintiff's action, or, whether, instead, an injunction may be granted or denied solely on the basis of general equity principles. Also before the court is the question of what protection, if any, is accorded defendants' conduct under the New York State and Federal Constitutions, irrespective of whether section 807 applies.

Section 807 of the Labor Law, modeled after the Federal Norris-LaGuardia Act, imposes stricter limitations than previously existed on the issuance of injunctions 'in any case involving or growing out of a labor dispute' (Labor Law, § 807(1); Schivera v. Long Island Lighting Co., 296 N.Y. 26, 69 N.E.2d 233). Not every difference between management and labor, however, falls within the ambit of the statute, and it is well settled that union picketing in pursuit of an unlawful objective may be enjoined without conformity to the procedural safeguards of section 807 (Goodwins, Inc. v. Hagedorn, 303 N.Y. 300, 101 N.E.2d 697; Metzger v. Fay, 4 A.D.2d 436, 166 N.Y.S.2d 87). If the picketing is intended to accomplish a lawful labor objective, however, the commission of illegal acts in furtherance of it will not deprive defendants of the protection of the statute, and the court in such an instance lacks jurisdiction to issue an injunction absent certain findings mandated by section 807 (May's Furs & Ready-to-Wear v. Bauer, 282 N.Y. 331, 26 N.E.2d 279).

Accordingly, whether the picketing conducted in the instant case was for a lawful labor objective will now be considered. Where a union is engaged in a labor dispute with an employer, that employer is termed, by the cases, a primary employer and the dispute is termed a primary labor dispute. In addition to concerted activities at the location of the primary employer, the union may seek to picket at the site of an employer who purchases goods or services from the primary employer for sale to the public. This employer, such as Waldbaum in the instant case, is termed a secondary employer.

Picketing directed at consumers and conducted at the site of a secondary employer consists, for purposes relevant here, of two basic categories dependent on the nature of the appeal being made. Where the union requests consumers to forbear from purchasing only those goods sold by the secondary employer which are produced by an employer with whom the union has a primary labor dispute, the activity engaged in, known as product boycotting or product picketing, is generally held to be within the bounds of the law and will not be enjoined (Goldfinger v. Feintuch, 276 N.Y. 281, 11 N.E.2d 910; Englander v. Tishler, 280 App.Div. 217, 112 N.Y.S.2d 611; see, also, Galler v. Slurzberg, 27 N.J.Super. 139, 149--151, 99 A.2d 164; Jones v. Demoulas Super Markets, 364 Mass. 726, 308 N.E.2d 512; Almac's Inc. v. Rhode Island Grape Boycott Committee, 110 R.I. 36, 290 A.2d 52). On the other hand, where the union seeks to persuade customers to withdraw patronage generally from the secondary employer there result an impermissible secondary boycott and an unlawful labor objective which will be enjoined (see Opera on Tour v. Weber, 285 N.Y. 348, 34 N.E.2d 349; see, also, Goldfinger v. Feintuch, supra, 276 N.Y. pp. 285--286, 11 N.E.2d pp. 912--13).

The line drawn between product boycotts and secondary boycotts has not been a clear one (cf. American Bread Co. v. NLRB, 6 Cir., 411 F.2d 147). So defendants while claiming that their activities have constituted a product boycott, posit nonetheless that section 807 sanctions appeals to consumers not only to refrain from purchasing the primary's product but even to cease doing business altogether with the secondary employer, in short, that section 807 codones secondary boycotts (cf. Almac's Inc. v. Rhode Island Grape Boycott Committee, supra).

A literal reading of the statute lends support to defendants' position. Subdivisions (5), (6) and (10) of section 807(1)(f) of the Labor Law, when taken in conjunction, provide that no item of relief granted shall prohibit any person or persons by means of 'advertising, speaking, picketing, patrolling' (Labor Law, § 807(1)(f)(5)) from 'advising, urging or inducing without fraud, violence or threat thereof, others' (Labor Law, § 807(1)(f)(10) to 'ceas(e) to patronize * * * any person or persons' (Labor Law, § 807(1)(f)(6)). The words 'person or persons' mean in the present context store or stores. Federal decisions, moreover, indicate that the Norris-LaGuardia Act, the prototype of section 807, fully shielded secondary activity, such as secondary boycotts, from the injunctive power of the courts (Railroad Trainmen v. Terminal Co., 394 U.S. 369, 89 S.Ct. 1109, 22 L.Ed.2d 344; Amalgamated Ass'n, etc. v. Dixie Motor Coach Corp., 8 Cir., 170 F.2d 902; NLRB v. Peter Cailler Kohler Swiss Chocolates Co., 2 Cir., 130 F.2d 503). Be that as it may, however, this court is, of course, bound by Opera on Tour v. Weber, 285 N.Y. 348, 34 N.E.2d 349, Supra; see, also, Goldfinger v. Feintuch, 276 N.Y. 281, 11 N.E.2d 910, Supra in which the Court of Appeals declared a secondary boycott to be an unlawful labor objective and thereby interpreted by implication section 807(1)(f)(6) of the Labor Law to apply solely to cessation of business with a Primary employer.

Though earlier decisions had somewhat anticipated the court's direction (see, e.g., Bossert v. Dhuy, 221 N.Y. 342, 117 N.E. 582), Goldfinger v. Feintuch (supra) was the first case to enunciate clearly the rule relevant to product picketing at a secondary site. In Goldfinger, the defendant union endeavored to obtain an agreement with W & I Blumenthal, a manufacturer of non-union made kosher provisions. When those efforts failed, the union picketed stores where Blumenthal products were retailed, requesting the public not to buy the boycotted goods. On suit by a retailer for injunctive relief, the court upheld the union's right to 'follow the product to the place where it is sold and peacefully ask the public to refrain from purchasing it' (276 N.Y., at p. 286, 11 N.E.2d, at p. 913).

The court further decided (Id., p. 289, 11 N.E.2d, p. 914) that such conduct involves a 'labor dispute' within the meaning of section 876--a of the Civil Practice Act (the predecessor of Lagor Law, § 807, and identical to it in all relevant parts). The majority reached that result on the grounds that, as here, the controversy had arisen out of an attempt by the union to represent employees of the manufacturer in fixing the terms or conditions of employment (Labor Law, § 807(10)(c); see Englund v. Chavez, 8 Cal.3d 572, 105 Cal.Rptr. 521, 504 P.2d 457), and that the manufacturer and retailer and the union which seeks to organize the employees of the manufacturer are all engaged in the same industry (Labor Law, § 807(10)(c)). The court concluded by noting (276 N.Y., at p. 290, 11 N.E.2d at p. 914): 'The only ground that could be advanced for contending that the statute is not applicable is that the plaintiff is not the employer of the men whom the defendant seeks to represent; but the statute expressly provides that it is applicable to parties in the same industry, 'regardless of whether or not the disputants stand in the relation of employer and employee." (see Labor Law, § 807(10)(c); cf. Schivera v. Long Island Lighting Co., supra, where the court held that so long as a 'labor dispute' exists one seeking injunctive relief may not escape compliance with section 807 by claiming he or she is not a party to the dispute).

Plaintiff seeks to distinguish Goldfinger on the ground that the goods being sold there were non-union made, whereas in the instant case the vast majority of the produce boycotted is harvested by growers having contracts with the Western Conference of Teamsters (hereafter Teamsters). So narrow a construction of Goldfinger is inconsistent with the reasons expressed by the court for its decision as well as with subsequent cases (People v. Muller, 286 N.Y. 281, 36 N.E.2d 206; Englander Co. v. Tishler, supra), and, furthermore, might collide with the free speech guarantee of the First Amendment (NLRB v. Fruit & Vegetable Packers & Warehousemen, Lo. 760, 377 U.S. 58, 84 S.Ct. 1063, 12 L.Ed2d 129; People v. Muller, supra; Galler v. Slurzberg, supra).

The main concern expressed by the court in Goldfinger was that a prohibition on product picketing at the site of the retailer would 'deprive' the union 'of a fair and proper means of bringing its plea to the attention of the public' (Goldfinger v. Feintuch, supra, 276 N.Y. at p. 286, 11 N.E.2d at p. 913; cf. Bakery & Pastry Helpers Local v. Wohl, 315 U.S. 769, 775, 62 S.Ct. 816, 86 L.Ed. 1178). Whether the product...