Opinion
June, 1900.
Einstein Townsend, for plaintiffs.
Vernon M. Davis, for defendants.
The plaintiffs move to continue and make permanent, until final judgment in this action, the injunction restraining the defendants from doing certain alleged unlawful acts set forth in the affidavits upon which the order to show cause was granted. The material question as to the truth of the allegations of the moving affidavits is raised upon the return by the sworn denials submitted upon the part of the defendants. Many of the material averments in the complaint, and of the supporting affidavits, are stated upon information and belief. Among these is the charge that the Cigarmakers' International Union of America and Local Union, No. 44 (of which certain of the defendants are officers or members), are organized to compel the employment of members of said associations exclusively by all manufacturers of cigars, and to plan, advise, assist and carry on strikes and boycotts against manufacturers who refuse to accede to the demands of such associations. "This allegation made upon information and belief only, is positively denied by the affidavits read in opposition, of the accused persons who state that the objects of the associations mentioned are" to advance mutual interests of the members by endeavoring to procure employment for them by means of proper and lawful contracts made with manufacturers, by which such members can receive employment at a certain fair and just scale of wages, and under conditions satisfactory to both manufacturers and members. The statement on information and belief also in the complaint, that on the 9th day of March, 1900, plaintiffs' employees, under the instructions and by the advice and with the consent and connivance of certain of the unions, left the plaintiffs' employ and went on strike, is not only absolutely denied by these officers, but their denials are fortified by affidavits of many of the striking employees (four-fifths of whom were not members of the union), giving as their reason for quitting work the refusal of plaintiffs to furnish better stock; that by reason of this refusal, and of the poor grade of stock furnished, a longer time was required to make a cigar and their wages were thereby materially decreased, making it impossible for them to make a living. This statement is not denied by any one on the part of the plaintiffs. The alleged assaults and acts of disorderly conduct are squarely and positively denied, nor does it appear that any complaints were made to the police or that any person was arrested. The patrolling and picketing is frankly avowed by four girls and one man, and the candor of the avowal is creditable to the truthfulness of the affiants. The first question raised is the purely legal one: Whether picketing is of itself unlawful, for if it should be held so the plaintiffs would be entitled as matter of right to have this injunction made permanent. Our law recognizes the right of men and women to work or not to work, as interests or fancy may incline them, and if any number of employees determine to strike, there is nothing unlawful in their doing so. If by combination they can obtain shorter hours or higher wages, or in any other way advance their material interests they may do so, and to advance their purpose they are free to strive to win over others to their support by reason, arguments and proper appeal. "Argument, reasoning and entreaty are lawful weapons." People v. Kostka, 4 N.Y. Crim. 435; People v. Wilzig, 4 id. 418. They must not attempt to coerce by threat, menace or intimidation, either employer, co-employer or person willing to work under the conditions which are repugnant to the strikers. They may combine in defense of their own rights, but they must not infringe the rights of others. This question of picketing has been discussed in a great many cases, all of which I have most carefully considered, and I cannot find nor have I been referred to any adjudications in this State holding that mere patrolling of a neighborhood by some few persons has been declared unlawful. In Rogers v. Evarts, 17 N.Y.S. 264, the court, in dismissing the complaint, said: "The right to combine involves of necessity the right to persuade all co-laborers to join in the combination. This right to persuade co-laborers involves the right to persuade new employees to join the combination." In using this language, the matter of picketing was under consideration, because further on we find the following: "Picketing may be done in such numbers as to constitute intimidation." The same subject was considered by the court at Special Term in the case of Reynolds v. Everett, 67 Hun, 299, and an injunction restraining defendants from picketing plaintiff's factory was refused. In Davis v. Zimmerman, 91 Hun, 489, relied upon by the plaintiffs, menace, threat and attack in the light of the opinion must have been abundantly established by the proof. I have studied with care the record of Sun Printing Publishing Association v. Delaney, and the decision of the learned Appellate Division was, that the record disclosed sufficient facts to warrant the exercise of the court's discretion in continuing the injunction, but upon examination I find that the Special Term order was modified by the insertion of the words, "In such manner as to express or imply a threat, intimidation, coercion or force," in two places in the order. This amounts to a declaration that such unlawful elements were consistent with proof and should be embodied in the order so as to unmistakably indicate that the acts enjoined were unlawful acts. In Matter of Levy v. Rosenstein, N.Y.L.J., May 31, 1900, Mr. Justice Andrews discusses the matter of loitering, patrolling and picketing and holds such acts not to be unlawful or ground for an injunction unless accompanied by menace, threat or intimidation.
Motion to continue injunction denied, with ten dollars costs.
Motion denied, with ten dollars costs.