Enterprise Window Cleaning Co. v. Slowuta , 273 A.D. 662 ( 1948 )

Van Voorhis, J.

Plaintiffs appeal from an order modifying an injunction decree entered April 3, 1933, by eliminating any restraint against the peaceful picketing of premises of customers of the plaintiffs.

The final decree, before being modified, was entered by consent in an action by two window cleaning companies against the Window Cleaners Protective Union, Local No. 2. The material facts alleged in the complaint have been adjudicated conclusively in the plaintiffs ’ favor by the judgment entered by consent (Canfield v. Harris & Co., 252 N. Y. 502, 505; Culross v. Gibbons, 130 N. Y. 447, 454; Davies v. Mayor, etc., of City of New York, 93 N. Y. 250). The complaint, among other matters, alleged that the plaintiffs’ businesses are conducted by means of contracts to wash the windows of “ several of the large downtown bank buildings, the Exchange buildings, numerous theatres and other large concerns. ’ ’ The complaint alleges that none of plaintiffs’ employees have joined the defendant union, but that the latter has by threats and duress and other unlawful means, attempted to compel plaintiffs’ customers to discontinue their contractual and business relations with the plaintiffs, which was the announced object of the picketing. It is further alleged that in order to do so, the union has indulged in mass picketing, threats and intimidation of plaintiffs’ customers, stating particulars.

The complaint also avers, what has likewise become res judicata as of the time of the decree, that the defendant is “ the willing tool of an association of employers in the window cleaning industry known as the Manhattan Window Cleaners Association ; that upon information and belief, the latter association is a price fixing body whose primary object is that of controlling the trade in the industry, and that the defendant union is operated, controlled and maintained by the said Employers’ Association for the purpose of corralling other employers by means of coercive measures such as picketing to join the Association; that the so-called strike against the plaintiffs and the picketing of their customers is not prompted by any motive to aid and assist members of the union, but on the contrary, is the result of a conspiracy between said Employers’ Association and the defendant. union to force and compel the plaintiffs to join the Association.”

It is thus established in this action that the activities of the defendant which have been enjoined involved (1) mass picketing, accompanied by threats, violence and intimidation, (2) concerted action with an association of employers in price fixing, and (3) secondary boycott.

Although a court of equity has inherent power, under appropriate conditions, to vacate or to modify a continuing permanent injunction as events-may shape the need (Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287, 296-298; United States v. Swift & Co., 286 U. S. 106, 114), the United States Supreme Court in an opinion per Cabdozo, J., in the case last cited, has been careful to limit the exercise of that power. The opinion states at page 119: “ The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. We are not at liberty to reverse under the guise of readjusting. Life is never static, and the passing of a decade has brought changes to the grocery business as it has to every other. The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned.”

It has been argued in behalf of the defendant union and held by Special Term that since 1933, when this injunction decree was entered, the law has changed, and that such an injunction as this would not have been granted if applied for now. For that reason, and on the assertion that the union has not indulged in violence or intimidation since the injunction was issued, it is argued that the restraints upon peaceful picketing of plaintiffs ’ customers should be removed.

On the other hand, the plaintiffs aver by opposing affidavit that the circumstances which called for bringing the suit still exist, that the Manhattan Window Cleaners Association, an organization of employers, entered into a conspiracy with defendant union to harass the plaintiffs due to their refusal to become members of that association, and by way of reprisal to the appearance of one of the officers of plaintiffs before a New York County Grand Jury which indicted the manager of the employers association, and two delegates of the union, for conspiracy to injure trade. Ever since then, it is stated in the affidavit of one of plaintiffs’ officers, plaintiffs have refused to join the said employers association on the ground that it was attempting to restrict free trade by controlling prices in the window cleaning industry. He further states that he and his brother were severely assaulted and beaten by persons in the employ of the said union acting in concert with the employers association. He denies that the union has not violated the injunction, the statement being made that the said employers association and the union in 1937, and 1938, commenced another campaign of terror and vandalism against the plaintiffs, their employees and customers, and that plaintiffs’ employees were assaulted and properties of at least two of their customers (whose names are mentioned) were destroyed. It is stated that a discharged employee of one of the plaintiffs, associated with the union, whose name is given, was at that time convicted and sentenced in the Court of Special Sessions for an assault inflicted upon an employee of the plaintiffs, and that fourteen or fifteen representatives of the defendant were arrested for malicious mischief, assault and disorderly conduct, most of whom were convicted and sentenced. The denials .of these statements are evasive and unconvincing, and are made against-the background that these Or similar charges were established against defendant by formal judicial admission in 1933.

In Steinkritz Amusement Corp. v. Kaplan (257 N. Y. 294, 296) the opinion states: “ Ip the case of Exchange Bakery & Restaurant, Inc., v. Rifkin (245 N. Y. 260, at p. 269) it was said: ‘ Where unlawful picketing has been continued; where violence and intimidation have been used and where misstatements as to the employers’ business have been distributed, a broad injunction prohibiting all picketing may be granted. The course of conduct of the strikers has been such as to indicate the danger of injury to property'if any picketing whatever is allowed.’

“ Where such an injunction has been granted, * This court may not interfere except for manifest abuse.’ (Nann v. Raimist, 255 N. Y. 307, at p. 315).”

In Busch Jewelry Co. v. United Retail Employees’ Union (281 N. Y. 150) as recently as 1939, this language was again quoted, and the same doctrine followed resulting in the affirmance of a judgment restraining all picketing where violence and intimidation had been proven. There has been no change in the law in this respect since 1933.

Likewise, the United States Supreme Court has even more recently affirmed the rule that combinations between trade unions and employers or employers associations for unlawful purposes are subject to being enjoined, and that even the procedural provisions of the Norris-LaG-uardia Act (U. S. Code, tit. 29, § 101 et seq.) are inapplicable in such situations (Allen Bradley Co. v. Local Union No. 3, 325 U. S. 797 cited with approval in United States v. Mine Workers, 330 U. S. 258, 270, and in Brotherhood of Carpenters v. United States, 330 U. S. 395, 400; Philadelphia Record Co. v. Manufacturing Photo-Engravers Assn., 155 F. 2d 799).

There is little to refute the conclusion “ that the momentum of fear generated by past violence would survive even though future picketing might be wholly peaceful,” or to show “ that the passage of time has deprived the picketing of its coercive influence ” (Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287, 296, supra). The defendant has not proven, in the language of Cardozo, J., that “ dangers once substantial, have become attenuated to a shadow.” (United States v. Swift & Co., 286 U. S. 106, 119.)

It is said that the law has changed since 1933, so as to permit a secondary boycott under circumstances such as these (People v. Muller, 286 N. Y. 281; Goldfinger v. Feintuch, 276 N. Y. 281), and that this injunction should be modified for that reason. Apart from the circumstance that this was not the only ground alleged in the complaint on the basis of which the decree was entered, it is not clear that under the law, as it exists today, defendant would be entitled to picket every building in the city of New York where the plaintiffs have contracts for window washing. It is stated in the opposing affidavit, without contradiction, that “ The plaintiffs have been in the window cleaning business for many years and among their customers today are the New York Produce Exchange, the New York Curb Exchange, Irving Trust Company, Chase National Bank and many large and reputable enterprises located in the State of New York and also in the State of New Jersey.” These concerns do not furnish an exclusive retail outlet for the sale of goods manufactured by plaintiffs, as in Goldfinger v. Feintuch (supra). The facts more nearly resemble those in People v. Muller (supra) which went farther, in sustaining the legality of a secondary boycott than any other case which has been cited. It was a criminal action, however, in which there had been found by the Appellate Part of the Court of Special Sessions to have been a reasonable doubt concerning whether the defendants were properly convicted of disorderly conduct in violation of subdivision 2 of section 722 of the Penal Law. That determination was affirmed by the Court of Appeals. There was no previously established record of intimidation or violence, nor of concerted action with employers to fix prices. It is not without some significance that on a question where the application of the law depends upon the degree of unity of interest between the customer and the employer (cf. Goldfinger v. Feininch, supra), the Court of Appeals divided in the Muller case four to three, and that the distinction was so close that the same judge who wrote the prevailing opinion in the Goldfinger case wrote the dissenting opinion in the Muller case.

In People v. Bellows (281 N. Y. 67) it was held unlawful, as a secondary boycott, to picket a retail store over which an electric sign had been erected by an independent contractor employing members of a rival union. The difference in degree of unity of interest in case of the erection of an electric sign, and the installation and maintenance of a burglar alarm, both in retail stores, would appear to be less pronounced than the distinction between both of these cases and the washing of windows under contract in commercial buildings, often containing numerous tenants, of the type that has been described.

Schivera v. Long Island Lighting Co. (296 N. Y. 26) appears to have been decided without ruling upon the secondary boycott question. It is stated in the concurring opinion of Fuld, J. (p. 33): “ There was here no secondary boycott aimed at plaintiff. Any hardship resulting to him was, as indicated, only an incidental effect, not the primary objective of the picketing.” The dissenting opinion indicates that three of the other members of the court were of opinion that due to absence of unity of interest the employees of the Long Island Lighting Co. as a group were not justified in refusing to cross the picket line thrown around plaintiff’s home by reason of a strike against the building contractor. A majority of the court thus appear to have been of the view that no secondary boycott of no justifiable secondary boycott was involved.

The object of the modification of the injunction sought, insofar as it can be ascertained from this record, is to get tenants and other business patrons to refuse to cross picket lines to be thrown around buildings of plaintiffs ’ customers, so as to cause them to discontinue their business relations unless plaintiffs, in turn, bring pressure to hear upon their employees to compel them to join defendant union. Heavy penalties may be visited upon employers who exercise coercion to prevent their employees from joining a union, or to force them to join a particular union. Irrespective of whether, in the absence of authorized representation by a union after an election under the labor relations acts, it would be an unfair labor practice for plaintiffs thus to discriminate in regard to the hiring and tenure of employment on the basis of union membership (cf. National Labor Relations Act, § 8, subd. [a], par. [3] ; U. S. Code, tit. 29, § 158, subd. [a], par. [3]; New York State Labor Law, § 704, subds. 3, 5), the proposed conduct of the union comes within the definition of “ secondary boycott ” in Duplex Printing Press Co. v. Deering (254 U. S. 443, 466); “ that is, a combination not merely to refrain from dealing with complainant, or to advise or by peaceful means persuade complainant’s customers to refrain (‘ primary boycott ’), but to exercise coercive pressure upon such customers, actual or prospective, in order to cause them to withhold or withdraw patronage from complainant through fear of loss or damage to themselves should, they deal with it. ’ ’

This law is thought still to be applicable to the facts in this case. In 1941, it was said in Opera on Tour, Inc., v. Weber (285 N. Y. 348, 356): “ A secondary boycott has always been held to be an illegal labor objective. (Auburn Praying Co. v. Wardell, 227 N. Y. 1, 11.) Harm done to another or to the public may be countenanced only if the purpose, in the eye of the law, is sufficient to justify such harm.”

It is not thought that the Supreme Court of the United States in American Federation of Labor v. Swing (312 U. S. 321) and Bakery & Pastry Drivers & Helpers Local No. 802, v. Wohl (313 U. S. 548) or the Court of Appeals in People v. Muller (286 N. Y. 281, supra) held that under the free speech doctrine the coercive effect of picketing in secondary boycott cases must in all instances be ignored. No such determination was made in Carpenters & Joiners Union of America v. Ritter’s Cafe (315 U. S. 322) decided at the same time as the Wohl case, and the contrary was indicated.

Certainly the Congress took no such view in the adoption of the Labor Management Relations Act of 1947 (F. S. Code, tit. 29, § 141 et seq.). There is serious likelihood that under the decisions on the National Labor Relations Act of 1935 (F. S. Code, tit. 29, § 151 et seq.), plaintiffs’ business affects interstate commerce so as to render applicable the Labor Management Relations Act of 1947 (see decisions cited on this point in Apex Hosiery Co. v. Leader, 310 F. S. 469, 485). While the procedure under the latter act for obtaining injunctions through the National Labor Relations Board is exclusive, there are substantive rights arising out of that statute which must be respected by the State and Federal courts in other actions and proceedings than those of which the National Labor Relations Board has exclusive original jurisdiction. No injunction is now being applied for. The discretion of the State court is being invoked, not to grant, but to relax an injunction previously granted, on the ground that the substantive law has since been altered. Changes in procedure would not be enough. Federal statutes within their sphere are binding upon State courts (Murnan v. Wabash Ry. Co., 246 N. Y. 244). The circumstance that secondary boycotts are now forbidden by Federal law (§ 8, subd. [b], par. [4], cl. [A]; U. S. Code, tit. 29, § 158, subd. [b], par. [4], cl. [A]) does not indicate that this injunction granted in 1933, is out of date, nor that we should use our discretion to modify it so as to permit what is prohibited by the substantive law of the land.

Section 876-a of the Civil Practice Act took effect after this decree was entered, and it, therefore, does not apply regardless of whether it would govern another application for a similar decree made at the present time. (See Sears, Roebuck & Co. v. 9 Ave.-31 St. Corp., 274 N. Y. 388, 400-401.)

The order appealed from should be reversed, with $20 costs and disbursements to the appellants and the motion to modify the 1933 injunction should be denied.