White Mt. Freezer Co. v. Murphy

• Decision Date: 01 May 1917
• Citation: 78 N.H. 398,101 A. 357
• Parties: WHITE MT. FREEZER CO. v. MURPHY et al. NASHUA CO-OP. CO. v. SAME. FLATHER FOUNDRY CO. v. SAME.
• Court: New Hampshire Supreme Court

101 A. 357

78 N.H. 398

WHITE MT. FREEZER CO.

v. MURPHY et al.

NASHUA CO-OP. CO.

v. SAME.

FLATHER FOUNDRY CO.

v. SAME.

Supreme Court of New Hampshire. Hillsborough.

May 1, 1917.

Transferred from Superior Court, Hillsborough County; Pike, Judge.

Suits for injunction by the White Mountain Freezer Company, by the Nashua Cooperative Company, by the Flather Foundry Company, and by the William Ilighton & Sons Company against Eugene L. Murphy and others. Transferred from the superior court in advance of trial. Cases discharged.

Bills in equity for injunctions. The bills allege that the plaintiffs are manufacturers of machinery at Nashua, employing a large number of persons, many of whom are moulders; that the defendants are officers and members of a voluntary unincorporated association known as International Moulders' Union of North America, Local, No. 257; that on or about October 11, 1916, the defendants demanded that the plaintiffs compel all their moulders not members of said local, No. 257, to join the same, and that thereafter only members of such union should be employed by the plaintiffs, who should thereafter conduct a "closed shop" where only members of the union would be employed; that the plaintiffs refused to accede to these demands, and informed the defendants that they would at all times thereafter conduct an "open shop" making no discrimination in the employment of persons because of their membership in the union or otherwise; that thereupon the defendants, conspiring together to injure and ruin the plaintiffs' business, and in pursuance thereof, induced and ordered the plaintiffs' employes to enter upon a strike against them for the purpose of compelling them to accede to their demands; that said strike is now in progress and is being, maintalned for such purpose; that since said October 11, 1916, the defendants by themselves and others have threatened, intimidated, and annoyed the persons remaining in their employ for the purpose of inducing and compelling them to join said union, have picketed and caused others to picket said plaintiffs' factory for the purpose of annoying and intimidating their employes.

The cases were sent to a master for the finding of facts. In the course of the hearing certain evidentiary questions arose which the presiding justice was requested to pass upon. The issue on trial was the object of the strike. Eugene L. Murphy, called as a witness by the plaintiffs, testified that he was the business agent of the International Moulders' Union of North America, and as such represented the members of the local union in relation to the strike; that he represented the men after the strike; that he called the attention of the labor commissioner to the fact that a labor controversy existed at Nashua, and in consequence thereof the labor commissioner called him and the plaintiffs together for a general conference. The court ruled subject to exception that the witness should answer inquiries as to admissions made by him to the labor commissioner and to the plaintiffs as to the object of the strike. Mr. Davie, the labor commissioner, also called as a witness by the plaintiffs, testified that he had had some correspondence with Murphy in reference to the controversy, and that shortly before October 27, 1916, he received a communication from him, but declined to produce or to answer the question whether at an interview before him between Murphy and the plaintiffs the plaintiffs requested of Murphy a statement in writing as to the demands of the union.

The defendants objected to these questions, and the witness declined to answer upon the ground that the conference between him as labor commissioner and the parties was of a confidential nature. The court ruled in reliance upon Hale v. Wyatt, 78 N. H. 214, 98 Atl. 379, that, as a quasi judicial officer, the commissioner could not be required to answer and the plaintiffs excepted.

The plaintiffs claimed and asked the court to rule that, if it should be established that the defendants combined to bring about a strike in the plaintiffs' shops for the purpose of compelling the plaintiffs to employ only union men in their shops, and the strike was inaugurated for that purpose, the facts stated would constitute a conspiracy as matter of law. The court ruled otherwise, and the plaintiffs excepted. The case adds:

"Assuming the facts upon which this ruling is made to have been established, the court could not find therefrom that the defendants' conduct was unreasonable."

The court was asked to rule before trial that all organized picketing, that is, picketing, by order of the international Moulders' Union, by twos who parade the streets, observe who are entering and leaving the plaintiffs' shops, in order that they may argue and persuade them to join the strike, is unlawful. The court declined so to rule, and the plaintiffs excepted. The case was transferred upon the foregoing rulings by Pike, C. J., in advance of a trial upon the ground that the advance decision of these questions might shorten or avoid a trial of the facts.

John R. Spring and Ivory C. Eaton, both of Nashua, and Herbert A. Baker and Joseph J. Feely, both of Boston, Mass. (Joseph J. Feely, of Boston, Mass., orally), for plaintiffs. William H. Barry, of Nashua, and Frederick W. Mansfield, of Boston, Mass. (Frederick W. Mansfield, of Boston, Mass., orally), for defendants.

PARSONS, C. J. The defendant Murphy, called as a witness by the plaintiffs, testified that he represented the other defendants after the strike, and was inquired of as to statements made by him as to the object of the strike both during a conference between the parties before the labor commissioner and at other times. To the ruling requiring the witness to answer the defendants excepted. Murphy, though a party, was a competent witness and could be required to testify. Whitcher v. Davis, 70 N. H. 237, 46 Atl. 458. He could not, of course, be required to give testimony tending to incriminate himself, to detail an offer of compromise or disclose privileged communications. But it does not appear that the questions asked him had such tendency. There is no evidence of an offer of compromise by either party. If there had been, an admission of an independent fact like that inquired about, the object of the strike, would be competent. Colburn v. Groton, 66 N. H. 151, 158, 28 Atl. 95, 22 L. R. A. 763. The defendants contend that as matter of public policy all communications to the labor commissioner should be privileged.

This is matter for the Legislature. The statutes on the subject in force at the time contain no such provision, but, on the other hand, indicate a legislative belief that the public good demands publicity rather than secrecy as to the controversies which the office was designed to adjust. Laws 1911, c. 198, §§ 3-8; Laws 1913, c. 186, §§ 3, 4.

Since the argument of this case the Legislature has amended section 4 of chapter 198, Laws 1911, renumbered by section 1, c. 186, Laws 1913, by adding at the close: "Neither the proceedings nor any part thereof before the labor commissioner by virtue of this section shall be received in evidence for any purpose in any judicial proceeding before any other court or tribunal whatever."

This amendment was adopted April 10, 1917. Section 4, referred to, prescribes the duty of the commissioner "whenever any controversy or difference arises relating to the conditions of employment or rates of wages between an employer * * ♦ and his * * * employes." Section 7 of the same act relates to his action when he had knowledge a strike is threatened or has occurred. Whether the matters inquired about arose in proceedings under section 7 or section 4, whether the amendment applies to proceedings under 7 as well as under 4, and whether the amendment will be applicable in further proceedings in this suit, pending when the legislation was adopted (Rich v. Flanders, 39 N. H. 304; Kent v. Gray, 53 N. H. 576), are questions which were not presented when the case was argued, and which therefore are not now considered.

The labor commissioner did not put his objection to testifying upon ground that he was judge of a court, but upon the ground that the communications made to him were privileged. If the witness was a judge called to testify as to proceedings before him, that fact did not render his testimony incompetent (Hale v. Wyatt, 78 N. H. 214, 98 Atl. 379), and, as the court had already ruled the matter inquired about was not privileged, the defendants' objection to the questions should have been overruled. The court suggested that, if the commissioner objected, he could not be compelled to testify because he was a quasi judicial officer. This suggestion was made in reliance upon the decision in Hale v. Wyatt, supra. The office of labor commissioner was created in 1893. The duties of the office as then defined were "to collect, assort, arrange, and present in annual reports * * * statistical details relating to all departments of labor in the state." Laws 1893, c. 48, § 5. By the legislation of 1911 additional duties of investigation, prosecution, advice, and persuasion and report are imposed upon the commissioner.

He is not to hear and decide controversies between employers and employes, but to endeavor to bring about an amicable adjustment, and, failing that, to induce the parties to submit the dispute to arbitrators or to the state board of conciliation and arbitration, substituted two years later for the board of arbitrators. In case of failure to secure such reference in case of a strike, he is to investigate the causes of the controversy, ascertain which party is mainly responsible, and make and publish a report assigning such responsibility. But there is no suggestion such investigation is to be a judicial one. No machinery is provided for a judicial proceeding. The only trace of judicial action is found in the provisions of section 3 requiring him to hear all parties...