JOY SETH HURD

Suit in equity by the Sterling & Welch Company against Marie Duke and others, as officers and members of the Retail Clerks International Protective Association, the Clerks Local Union No. 1163, and the Upholsterers Local Union No. 448, to enjoin defendants from picketing plaintiff's store and other buildings and inducing breaches of contracts between plaintiff and other unions, and to recover damages.

Order in accordance with opinion.Stanley & Smoyer W. K. Stanley, and Eugene B. Schwartz, all of Cleveland, for plaintiff.William J. Corrigan, of Cleveland, for defendants.
JOY SETH HURD, Judge.

This is a suit in equity for injunction and equitable relief, with a claim for damages, which comes before the Court at this time for final hearing on the merits. The trial of the case has extended over a period of four weeks during which time some forty witnesses have testified at length. There were some occasional interruptions when the parties attempted further negotiations to settle and compose their differences, and when the Court was obliged to give some attention to another case involving a labor dispute.

The plaintiff herein, the Sterling & Welch Company, complains against the defendants who are classes of persons made up of the officers and members of the Retail Clerks International Protective Association, the Clerks Local Union No. 1163, and the Upholsterers Local Union No. 448, all affiliated with the Cleveland Federation of Labor and the American Federation of Labor, and seeks by this action to enjoin the defendants from picketing plaintiff's store, wholesale division building and warehouse, and also seeks to enjoin said defendants from inducing breach of contracts claimed to be existing between the plaintiff and certain local craft Unions named in the petition. (For convenience and brevity the plaintiff will hereinafter be referred to as the Company, and the defendants as the Unions, except where the context calls for specific designations.)

The petition originally named 25 defendants. On motion at the close of plaintiff's case the Court dismissed the defendants representing the Carpenters Local Union No. 254, the Painters District Council No. 6, and the Cabinetmakers Local Union No. 1365, for the reason that the Court found no evidence of a conspiracy on the part of said defendants concerning the matters complained of in the petition. On motion at the close of the entire case the action is now dismissed as to the defendants representing the Teamsters Local Union No. 392, because the Court finds the evidence tending to implicate them is not clear and convincing.

The issues here presented involve essentially a labor dispute between the Company and the Retail Clerks International Protective Association, arising out of an organizing campaign conducted by said association for the purpose of representing the Clerks employed by the Company in collective bargaining negotiations. The dispute is further complicated by a strike of approximately ten Packers employed by the Company at the Euclid Avenue store represented by the Clerks Union Local No. 1163.

The petition of the Company, in substance, alleges a combination and conspiracy among the several defendants

1. To procure the breach of plaintiff's contracts with the craft unions, affecting the employees working at the warehouse by sympathetic strikes or cessation of work.

2. To prevent the operation of plaintiff's store and wholesale division by force and intimidation.

3. To prevent entrance and exit of plaintiff's employees and of customers by force and intimidation.

4. To injure plaintiff so as to require it to recognize the Clerk's Union as the representative of plaintiff's store employees without permitting said employees to express their desires by secret ballot in an election conducted by the National Labor Relations Board.

The answers of the several defendants are in effect general denials of the allegations of the petition, although knowledge of the existence of closed shop agreements with the craft Unions employed by the Company are generally admitted.

The material facts, condensed and summarized, are as follows: The Company, which has been in existence for a period of approximately 80 years, operates a large retail furniture and interior decorating establishment in the heart of downtown Cleveland on Euclid Avenue near its intersection with East 12th Street. It also operates separately a wholesale division on Chester Avenue immediately to the rear of its Euclid Avenue store. The Company owns and operates separately from these two establishments, a five-story warehouse on East 25th Street, wherein all its craft employees are engaged, including carpenters, upholsterers, furniture finishers, cabinetmakers and paperhangers. The teamsters and drivers represented by the Teamsters Local Union No. 392, also have their headquarters at this warehouse and operate therefrom making deliveries to and from the Euclid Avenue store and the wholesale division on Chester Avenue. Deliveries to customers of the Company throughout the Greater Cleveland area are also made by the teamsters and drivers operating from the warehouse.

The members of all these crafts are employed under presently existing contracts between the plaintiff and the respective Unions, which were entered into prior to the present controversy. No dispute or controversy of any kind exists between the Company and any of these Unions or their members, nor have any strikes been called by them or their officers. All matters affecting the wages, hours and working conditions are covered by these contracts, each of which contains an obligation on the part of the Company to give employment exclusively to the members of said Unions for the class of work under the jurisdiction of said Unions, and in the greater number of said contracts there is an agreement that there shall not be any lockout or strike during the period of said contracts. While the dispute involved herein is primarily between the Company and the Clerks Union, the Clerks Union does not seek to represent any of the craft employees now under contract, except the group of ten Packers above referred to, for which group recognition has for some years been accorded to be Clerks Union by the Company. At no time prior to the strike was there any claim of representation or demand made by the Clerks Union for or on behalf of the four or five employees at the warehouse not represented by the various craft Unions, and at no time did the Clerks Union ever distribute any literature at the warehouse, although it made such distributions periodically at the store. The evidence shows that each of the several non-craft employees at the warehouse has continued to work on and after March 12th.

The evidence shows that prior to March 12, 1946, the first day of the strike, there had been some negotiations between the Clerks Union, representing the Packers and the Company which failed of agreement. Also there had been correspondence between the Clerks International Protective Association and the Company, the Clerks Union taking the position that they were entitled to represent some 100 employees for whom they claimed to have signed applications for membership and the Company taking the position that there should be an election, under regular procedures provided by the National Labor Relations Act, for the determination of the claim of representation made by the Clerks Union for purposes of collective bargaining. The Clerks International Protective Association, however, refused to agree to such an election. The strike and picketing hereinafter described followed as a consequence of the failure of the parties to reach an agreement on the questions at issue.

Thereafter, on Tuesday morning, March 12, 1946, when the employees reported for work at the East 12th Street entrance of the store the entrance was blocked by a group of pickets. These pickets were composed primarily of representatives of the Clerks International and Local Unions and of members and some business agents of other labor organizations affiliated with the Cleveland Federation of Labor of the City of Cleveland. The evidence is clear and convincing that by a showing of and the actual use of physical force this group of pickets effectually prevented the employees from entering the store that day. The conduct of the pickets constituted, what is known as, mass picketing with the result that the Company closed its doors for business the entire day of March 12, 1946, and posted a notice in its Euclid Avenue window to that effect.

On the following day, Wednesday, March 13, 1946, the mass picketing continued, and was especially violent at the Euclid Avenue entrance which made it practically impossible for employees and customers to enter the store without encounteringphysical force exerted by the pickets who formed a circular picket line, which, to use a phrase of one of the pickets, ‘tightened up’ when persons attempted to enter the store. On this same day it appears that the employees gathered together in a meeting at the Cleveland Hotel, where one of the Company's officers addressed the group on the subject of the negotiations and incidents leading up to the strike and stated, in substance, that it was ‘up to the employees' to decide for themselves whether they would attempt to enter the store for work that day. It appears that these employees then decided to enter the store by forcing their way past the pickets stationed at the Euclid Avenue entrance. In order to do so they divided up into groups of three and four and converged upon the picket line at about 10 o'clock A.M., from three directions, east, west and south. This action, together with the action of the pickets in resisting their entrance, caused a melee in which several of the employees suffered minor injuries, but succeeded largely in entering the store. The following day, Thursday, March 14th, the mass picketing continued by means of the circular picket line hereinbefore described and by other means so that agian it was impossible for persons to enter the store at certain hours without the exertion of physical force against the picket line.

This condition of affairs continued generally until late Thursday, the 14th, and on the same afternoon, application having been made to this Court by the Company for a temporary restraining order, an agreement was reached in court, by the terms of which mass picketing was to cease entirely, and the picket line would be reduced to two in number at each of the entrances to the store, warehouse and wholesale division on Chester Avenue. During the three day period above described there were frequently recurring instances of violence resulting from personal encounters between the pickets and persons attempting to enter the store.

The evidence is clear that since the limitation of the picketing in compliance with assurances of counsel given to the Court March 14, 1946, violence has ceased completely and there have been no recurrences thereof up to the time of this final hearing on the merits of the case.

On the third day the picketing, which theretofore had been confined exclusively to the store and wholesale division on Chester Avenue, extended to the warehouse on East 25th Street wherein the craft Unions under contract with the Company are employed. Immediately upon the establishment of this picket line at the warehouse on Thursday, the craft Unions ceased to work, although on Tuesday and Wednesday they had worked at their regular occupations in the warehouse. The members of the craft Unions refused to cross the picket line at the warehouse as soon as the same was established, although no strike was called by them. An issue of fact was made during the course of the trial as to whether or not members and officers of Unions other than the Clerks Union participated in the picketing at the store, and whether or not they acted in concert with the Clerks and Packers in establishing a picket line at the warehouse.

The Court is convinced from the evidence disclosed by photographs and by the testimony of witnesses that the conduct of the president and business manager and the business agent of the Upholsterers Union, both parties defendant, was such as to implicate them in this general scheme to paralyze the operations of the store and warehouse acting in concert with the Clerks Union, and therefore the Court has overruled the motion made at the close of the entire case to dismiss the representatives of the Upholsterers Union from this action.

From this set of facts two principal questions emerge which may be stated as follows:

1. Conceding that peaceful picketing under all of the circumstances would have been a lawful exercise of the right of freedom of speech guaranteed under the Fourteenth Amendment of the Constitution for the purpose of advertising a labor dispute, was picketing in this case so enmeshed with contemporaneously violent conduct as to authorize this Court in the exercise of its equitable jurisdiction to enjoin or limit such picketing?

2. Where employees are already bound by collective bargaining agreements for definite periods of time between the company and the unions representing them, should the court, in the exercise of its jurisdiction in equity, allow the injunctive process to issue against picketing, and persuasion, peaceful or otherwise, the sole purpose of which is to procure breach of such contracts and the cessation of work by such employees who themselves have no grievance against said Company?

Considering the first proposition above stated, under existing decisions there was no question of the right of the Unions to engage in peaceful picketing at the Euclid Avenue store. This proposition of law has now been established by recent decisions of the Supreme Court of the United States.

The case of Thornhill v. Alabama, 1940, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, recognizes peaceful picketing implicitly as part of freedom of speech. In that case, a state anti-picketing statute, which exclusively forbade all picketing at the places of business of employers involved in labor disputes, was declared to be violative of the Constitutional guarantee of Freedom of Speech. Amend. 1. This same proposition was again affirmed in the case of Carlson v. California, 1940, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104.

The most notable case of recent years is the case of the American Federation of Labor et al. v. Swing et al., 1941, 311 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855, which recognizes ‘stranger’ picketing as lawful and as being a form of exercise of the freedom of speech guaranteed under the Fourteenth Amendment. In this case it was held that the State of Illinois was not free to enforce its common law labor policy in such a manner as to prohibit such picketing, provided however that the picketing was conducted without violence or ‘en masse.’

The same general principle has been affirmed in other cases decided by the Supreme Court, subsequent to the Swing case.

See Journeymen Tailors Union Local No. 105 et al. v. Miller's, Inc., 1941, 312 U.S. 658, 61 S.Ct. 732, 85 L.Ed. 1106;Bakery & Pastry Drivers & Helpers Local 802, etc., v. Wohl, 313 U.S. 548, 61 S.Ct. 1108, 85 L.Ed. 1513.

However, we wish to emphasize that not any court, from the United States Supreme Court down, has ever condoned violence or mass picketing in labor disputes. At no time has court approval extended to picketing conducted in a context of violence.

The leading case in the United States is the case of Milk Wagon Drivers Union of Chicago, Local 753 et al. v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61 S.Ct. 552, 555, 85 L.Ed. 836, 132 A.L.R. 1200, in which the court stated:

‘* * * utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution.’

And in the same case the Supreme Court of the United States upheld the Supreme Court of Illinois, 371 Ill. 377, 21 N.E.2d 308, in banning of picketing, saying:

‘* * * The picketing in this case was set in a background of violence. In such a setting it could justifiably be concluded that the momentum of fear generated by past violence would survive even though future picketing might be wholly peaceful. So the supreme court of Illinois found. We cannot say that such a finding so contradicted experience as to warrant our rejection. Nor can we say that it was written into the Fourteenth Amendment that a state through its courts cannot base protection against future coercion on an inference of the continuing threat of past misconduct. Cf. Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 60 S.Ct. 618, 84 L.Ed. 852.’

In all labor disputes there is what is known as an allowable area of economic conflict, the principal weapon of economic conflict being that of the strike. The economic power here exerted is in the cessation of work by the employees. As an incident to the strike there is the economic weapon of ‘peaceful’ picketing. Our Supreme Court in the case of La France Electrical Construction & Supply v. International Brotherhood of Electrical Workers, infra, has well stated the law of Ohio on this subject, as follows [108 Ohio St. 60, 140 N.E. 908]:

‘Equality of justice demands that in any controversy the rights of all parties be scrupulously maintained. The right of workmen to be employed, irrespective of union membership, must be maintained; the right of the employer to conduct his business without illegal interference must be upheld; and legal means employed by strikers must not be curtailed. Among the latter are the right of peaceful picketing, the peaceful persuasion of employees to terminate contracts at will, and the peaceful persuasion of expectant employees not to accept work with the employer in question.’

The overwhelming weight of the evidence clearly shows that the defendants engaged in mass picketing and violence during the first three days of their activities. Thus, although the purpose sought to be achieved was lawful the means employed were unlawful. This Court cannot condone the use of such unlawful conduct. On the contrary, such conduct must be condemned. The end in view in such a case cannot justify the means employed. Furthermore, the picketing was conducted in such an open and notorious manner, in disregard of the rights of persons desiring to enter the store, and persons desiring to use Euclid Avenue at that point for travel and transportation, that it constituted a menace to the safety of people generally in the immediate vicinity of the store.

In this connection we feel that it is proper to state that the employees of the Company were not without fault in contributing to some of the scenes of violence which occurred on Wednesday, the second day of the strike. Undoubtedly the conduct of the pickets was unlawful in barring, or attempting to bar the entrance to the store by the exertion of physical force. Under these conditions the pickets had taken the law into their own hands. On the other hand, the employees of the store, although having an undoubued right to enter the same, by making concerted attack at a given time from three directions on the picket line, also took the law into their hands and precipitated further violence uncalled for under the circumstances. We think the employees should have appealed to the proper public authorities and law-enforcing agencies in preference to a resort to force. It is axiomatic that violence begets violence, and of course the primary responsibility rested with the pickets who had no right in law or equity to ban ingress or egress to and from the premises.

In view of all the circumstances our conclusion is that the picketing in this case should be limited by reason of the context of violence in which it was first carried on. We believe that the limitation of picketing in effect since the first appearance of the parties in court, March 14th, offers a partial solution of this problem.

Coming now to the second question raised above, we are of the opinion that this question should be answered in the affirmative.

The evidence is clear that the craft employees in the warehouse continued their work Tuesday and Wednesday and until a picket line was established there on Thursday. Once a picket line was established the employees, of their own volition, ceased to work.

The evidence and pleadings also show that the defendants, some of whom appeared on the witness stand, had full knowledge of the existence of the contracts. We believe it is clear from all of the evidence that the sole purpose was then and is now to induce the employees at the warehouse to breach their contracts.

It is our conclusion, after considering the cases cited by counsel and other cases, that by the great weight of authority in Ohio it is unlawful to pursue any course of conduct, the sole purpose of which is to induce breach of contract.

This principle of law is equally applicable to contracts covering labor relations. Hence, it is unlawful for one union or its members to engage in picketing activities which would otherwise be lawful for the sole purpose of inducing other unions and their members to breach their existing contracts with their employer.

This view is supported by analogy and reason in the following cases: La France Electrical Construction & Supply Co. v. International Brotherhood of Electrical Workers, 108 Ohio St. 61, 140 N.E. 899;Crosby v. Rath, 136 Ohio St. 352-354, 25 N.E.2d 934; Brost Pattern Works Co. v. Reid, 24 Ohio N.P., N.S., 60; Fulworth Garment Co. v. International Ladies Garment Workers Union, 15 Ohio N.P., N.S., 353; Drake Bakeries, Inc. v. Bowles et al., 31 Ohio N.P., N.S., 425, 426; Hamilton Tailoring Co. v. Cincinnati Joint Board, 132 Ohio St. 259, 7 N.E.2d 1, wherein the Supreme Court dismissed an appeal as a right from the decision of the Court of Appeals of Hamilton County in case No. 5054 on the docket of that court; United Tailors Co. v. Joint Board of Amalgamated Workers of America, 26 Ohio N.P., N.S., 439, wherein Judge Hay, sitting by designation in this case said, at page 442:

‘We have no difficulty in finding that the defendant should be enjoined from attempting to persuade the employes under contract with the plaintiff to breach their contracts. The holdings of our courts are uniform that injunctions should be granted to prevent such action.’ (Emphasis supplied.)

In the case of Crosby v. Rath, supra, wherein the decision of the Court of Common Pleas was sustained by the Supreme Court, Lausche, Judge, said:

‘Of the cases which I have read I have not found a single instance except a brief sentence in one of Judge Brandeis opinions, which indicate a lawful right in any individual, any union or the government itself, to interfere in any manner with the full performance of a contract and the enjoyment of the rights that contract conveys. * * * If neither of the parties had the right by voluntary act to terminate that contract, by what logic does that right vest in a third person to induce the breaking or a breach of a contract. A third person, of course, would not have any greater rights than the immediate parties to the agreement. The third person who with either a bad motive or a good motive induces a breach of contract to run for a definite period of time is guilty of a tort and becomes subject to an action for damages or subject to the orders that a court of equity can and must impose.’

It is interesting to note that in the case of Crosby v. Rath, supra, the Ohio Supreme Court reinstated the injunction which had been issued by this court in 1938, and that thereafter the union filed its petition for certiorari in the United States Supreme Court. That court denied the certiorari, 312 U.S. 690, 61 S.Ct. 618, 85 L.Ed. 1126, on the same day that it decided the cases of Milk Wagon Drivers Union v. Meadowmoor Dairies, supra, and the American Federation of Labor v. Swing, supra.

Counsel for the Unions have cited a number of cases to the general effect that a court of equity will not attempt by injunctive proceedings to enforce specific performance of contracts covering personal services.

With this position of counsel we are in the fullest accord. Counsel for defendants relies particularly upon the case of Lundoff-Bicknell Co. v. Smith et al., 24 Ohio App. 294, 156 N.E. 243. We have examined that case very carefully. In that case the Court held:

‘If workmen in the ordinary trades agree with their employer not to collectively quit work, and they violate such agreement, a court of equity may not compel them to resume work.’

And also:

‘Where workmen have so breached their contract and do not desire to perform same, and the situation is such that a court of equity cannot compel them to do so, a court of equity will not enjoin third parties from interfering with the contract relation of the parties.’

We think that this case is clearly distinguishable from the instant case on the facts, particularly for the reason that there is no evidence before the court in the instant case that the members of the craft Unions employed at the warehouse have expressed any desire to quit work. On the contrary the evidence before the Court is generally to the effect that they desire to carry out their agreements but that the presence of the picket line prevents them from so doing.

This fact is evidenced from the testimony adduced from the original defendant John T. O'Brien, secretary of Local 392 of the Teamsters Union, since dismissed from this action, who testified, in substance, that his Local had no dispute of any kind with the Company, that a binding contractual relationship existed between the Company and Local No. 392, and that the stoppage of work was due solely to the action of the Clerks Union in establishing the picket line. At one point in his testimony he testified as follows:

‘Q. What did you say? A. Well, we are not waving you through the picket line but we have a contract with the company and we always have been in the habit of living up to agreements. * * *

‘Q. If there had been no picket line at the store on Thursday morning, in your opinion, would your members have worked at the store on Thursday? A. We had absolutely no grievance with the Sterling and Welch Company.

* * *

‘Q. That is true today the same as it was on Thursday March 14th? A. Correct.’

The testimony of the defendant, Joseph Fontana, business agent of the Upholsterers Local No. 48, is to the same effect, as may be noted from the following testimony:

‘Q. You have no quarrel with the Sterling and Welch Company,-your Union? A. No, I have not.

‘Q. You are negotiating the renewal of the contract on wages now? A. That is right.

* * *

‘Q. I mean there is no grievances between you and the Sterling & Welch Company? A. That is right; there is not.

‘Q. And if you had seen your men standing there and there had been no pickets there, you would have told them to go to work? A. They would have gone before I got time to tell them.

‘Q. It was simply because of the two pickets that they did not go to work? A. Well, naturally, they wouldn't cross the picket line.

‘Q. That is what I mean-in other words, other than the mere fact of the two pickets standing there, there was nothing between you and the Union or the men on the one side and the Sterling and Welch Company on the other side which would cause these men not to go to work, is that right? A. Well, no. That is true.’

On the other hand, in the Lundoff-Bicknell case, supra, an entirely different set of facts is presented. All of the men working on the building in question were union men and objected to the employment of non-union glaziers on the job and quit work at the same time because they would not work with the non-union men. The Court of Common Pleas upon application issued an order requiring the officers of the various union organizations to rescind their strike order. On appeal the Court of Appeals reversed the Court of Common Pleas, holding that the court did not have the power to issue a mandatory injunction ordering the officers and agents of the defendant unions to use their alleged disciplinary power under the Constitution and by-laws of their respective organizations to make a man who struck return to work. See 24 Ohio App. at page 303, 156 N.E. at page 245.

Again, 24 Ohio App. at page 304, 156 N.E. at page 246, the court say:

‘A court of equity should not make a mandatory order, which is to be enforced by the extraordinary remedy of contempt, unless the ultimate purpose to be accomplished by such order is one which such court is empowered to accomplish. If we cannot order the men themselves, who are parties to this suit, to perform personal services, we ought not to make an order, the only purpose of which is to indirectly accomplish that result.’

Of course this Court does not possess jurisdiction to order men to work irrespective of their contractual relations, and specifically in this case the Court will not issue any mandatory orders of any kind which would have the effect, even remotely, of attempting to enforce specific performance of existing contracts. The employees of the Company are free to work or not to work, as they choose, and the Court in that respect has no jurisdiction over them, and it is not the purpose of the Court to issue any orders which by any stretch of the imagination could be construed as an order to compel specific performance of a personal service contract. The Court may, however, and should issue a restraining order against picketing or any other activities, the sole purpose of which is to induce breach of contract.

Inasmuch as we conclude from the evidence dence that the sole purpose of picketing at the warehouse, which commenced on Thursday, March 14, 1946, was and is to induce the employees under contract to breach their contracts by cessation of work, an injunction against such conduct should issue. Further, because the evidence clearly discloses that deliveries between the store and the warehouse in the past have been by means of the driveway at the Chester Avenue entrance, it is imperative that this driveway by kept open if the Teamsters Union are to be able to fulfill the obligations of their contracts.

Therefore an order will issue enjoining picketing of the driveway on Chester Avenue used for delivery purposes on the condition, however, that the Company shall not use this driveway for customer or employee entrance, but that it shall be used only for delivery purposes. This order will not prevent the Unions from stationing one picket at the door entrance to the wholesale division on Chester Avenue. The order will further permit peaceful picketing by the stationing of two pickets each at the Euclid Avenue and East 12th Street entrance of the store, for the purpose of advertising to the public and the employees of the Company that a labor dispute exists between the Company and the Clerks Union. This order, however, should contain a provision which will allow free ingress and egress from and to any and all of the premises occupied by the Company without any molestation or interference whatsoever.

The claim of the plaintiff for damages is dismissed for the reason that the Court considers that the plaintiff has an adequate remedy at law.

Journal entry may be drawn in accordance with the facts herein set forth.

Exceptions are allowed to all proper parties.