The affidavit in reply denies that plaintiff ever had anything but an open shop; that it never had any contract with the union containing any definite conditions; denies any discrimination; that its present employees are nonunion men; denies the hiring of any guards or toughs; denies police protection; denies that any threat was made to destroy the organization of its employees; denies any threats to discharge the waiters; that no dispute was ever had with them; that their leaving was a surprise, and that it had no prior knowledge of any reason for their action; denies the employment of a crew of nonunion men on the 13th day of February as claimed, but admits that a new crew was employed within 24 hours after the waiters walked

out, etc.

[1] The foregoing are the salient points which the papers on both sides exhibit, and they show how sharp the conflict is on this motion. If mere denials were controlling on applications for injunctions, that writ would seldom issue. It never issues as a matter of course. But a court of equity will not withhold its power in that regard when a prima facie case is presented and the exigencies of the situation warrant its action. In the case of Skolny v. Hillman, 114 Misc. Rep. 571, 187 N. Y. Supp. 706, I said, among other things:

"It is clearly established that picketing is lawful; that a man may work or not as he shall choose; that he may strike with others and peaceably seek others to join. But it is equally well settled that a worker may work wheresoever it pleases him; that he may labor and provide for himself and family, without being subjected to the danger of assault or threat of bodily harm; that he cannot be compelled to join a union, if he is not disposed so to do; that employees may not be enticed from their employment by threats or otherwise."

Many of the features in the cited case are present here. Plaintiff insists on an "open shop." The defendants, on the other hand, want it unionized, so that none but union men shall be employed. They are fighting, not only for what is known as the "closed shop," which excludes all workers not members of the union, but also to maintain in plaintiff's business a "shop representative," whose duty it is to see that union rules are enforced and that no one is discharged, except for reasonable cause, of which the union is to be the sole judge. That such is their contention is fairly to be inferred from the proof before me. And this, it is plaintiff's claim, is the origin of the trouble. Whether the waiters left voluntarily, or were locked out, does not confer upon them the right to injure or destroy. If causelessly discharged, the courts afford them a proper remedy. If to strike and picket means that employers must, through violence, intimidation, and threats of destruction of their business, yield to the demands which they (the strikers), through their union, shall see fit to impose, that is a direct challenge to existing laws, and defies the basic principle of freedom of action, on which our form of government rests.

[2] When I said in the cited case that strikes and picketing were lawful, I meant, of course, those conducted by lawful means. The fact must not be lost sight of that the right to picket, which is regarded in

(188 N.Y.S.)

the eyes of the union as a sacred one, was created by the courts, and solely by them, and it is that tribunal which must correct abuses, if any arise under the determinations made by them. The fundamental thought underlying such decisions no doubt was, and is, that the grant of such right was in furtherance, not of a greater liberty to be exercised by them, but for the betterment of the worker, if such result could be brought about, and to this central idea no one can or will find fault. But it was never intended that the laws of the land shall yield in the performance of that privilege. No court, I venture to say, ever imagined that their declarations of the right to picket would ever be construed to mean that it carried with it the right to inaugurate a reign of terror on either a small or large scale, or, if not that, that other members of the public through sympathy may introduce the rule of the mob. To strike and to picket are terms which comprehend much. But there is a vast difference between those terms and license. The prerogative to picket, even in an orderly and quiet manner, does not carry with it the privilege of destruction as a means to an end. Nor does it even inferentially confer the right to unlawfully coerce or oppress. Picketing, unaccompanied by threats and intimidation, is a useless weapon. Its effectiveness and its very essence is in the terror that it excites. If done peaceably, it would be futile. It follows, then, that the fear, if not the terror, that the picketing carries with it, is the keystone of the arch and the potential element to the success of the cause.

We have here established assaults of an aggravated nature; threats to employees, if they did not cease working for plaintiff, harm would follow; threats of injury to patrons; the necessity of carrying the employees back and forth in taxicabs to protect them from harm. Are all these charges mere fables? Were the assaults and injuries selfinflicted? Is the use of taxicabs to carry the employees back and forth merely a whim? Are employees to be coerced and oppressed by threats of injury, and held remediless because forsooth the charges are denied? Is the state to be held so weak that it cannot protect those who desire to work, but are fearful of the result, if they do? Is a worker to be deprived of the right to live, even though he is willing to work for a wage acceptable to him? Or forced to join a union against his will? If these things are permitted, and the courts are to be held powerless to protect the weak against the strong, then the law is a mockery. If the claim that ours is a government of laws, and not of men, is to be upheld, conduct of the kind set forth in the moving papers must be dealt with, and I can find no better expression in that connection to convey the thought in my mind than that used by the court in the case of Curran v. Galen, 152 N. Y. 33-37, 46 N. É. 297, 299 (37 L. R. A. 802, 57 Am. St. Rep. 496), where it was said: "Every citizen is deeply interested in the strict maintenance of the constitutional right freely to pursue a lawful avocation, under conditions equal as to all, and to enjoy the fruits of his labor, without the imposition of any conditions not required for the general welfare of the community. The candid mind should shrink from the results of the operation of the principle contended for here; for there would certainly be a compulsion, or a fettering, of 188 N.Y.S.-3

the individual, glaringly at variance with that freedom in the pursuit of happiness which is believed to be guaranteed to all by the provisions of the fundamental law of the state."

I am not unmindful of the rulings of the courts of our state on the subject of strikes and picketing. They exist in abundance, but in none that have been examined by me were the acts chargeable to the defendants here ever sanctioned. The terms, "threats," "coercion," "oppression," "intimidation," and perhaps others, have all been passed upon. It is known that a strike to coerce an employer to discharge nonunion men has been held by our courts to be lawful. They have gone so far as to say that employees may dictate to employers how their business shall be conducted and whom they shall employ (National Protective Association of Steam Fitters & Helpers v. Cumming, 170 N. Y. 315-324, 63 N. E. 369, 370, 58 L. R. A. 135, 88 Am. St. Rep. 648), and that the employees "have the moral and legal right to say that they will not work with certain men, and the employer must accept their dictation or go without their services." The cited and kindred cases have undoubtedly gone to the extreme limit. But they have never held that citizens may be assaulted, and industries or a business destroyed, at will. Nor have they gone so far as to say that intimidation, followed by felonious assaults, is permissible, or that the assaults are justified if a man labors against the union's will.

Other jurisdictions have had these questions before them. Picketing has been held unlawful in New Jersey (George Jonas Glass Co. v. Glass Bottle Blowers' Ass'n of U. S. & Canada, 72 N. J. Eq. 653, 66 Atl. 953, affirmed 77 N. J. Eq. 219, 79 Atl. 262, 41 L. R. A. [N. S.] 445); in Michigan, no matter how peaceful or orderly it may be (Beck v. Railway Teamsters' Protective Union, 118 Mich. 497, 77 N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421; Clarage v. Luphringer, 202 Mich. 612, 168 N. W. 440); in Illinois (Barnes & Co. v. Chicago Typographical Union No. 16, 232 Ill. 402, 83 N. E. 932, 14 L. R. A. [N. S.] 1150, 122 Am. St. Rep. 129); in California (Pierce v. Stablemen's Union Local No. 8760, 156 Cal. 70, 103 Pac. 324); in Ohio (Otis Steel Co., Limited v. Local Union No. 218 of Cleveland, Ohio, of Iron Molders' Union of North America [C. C.] 110 Fed. 698); and in Minnesota (Knudsen v. Benn [C. C.] 123 Fed. 636). In Massachusetts it is not only unlawful, but has been declared to be a nuisance. Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077, 35 L. R. A. 722, 57 Am. St. Rep. 443. And in Iowa the same ruling was made. Atchison, T. & S. F. Ry. Co. v. Gee (C. C.) 139 Fed. 582, 584. Among other things, the court in the case last cited said:

"There is and can be no such thing as peaceful picketing, any more than there can be chaste vulgarity, or peaceful mobbing, or lawful lynching. When men want to converse or persuade, they do not organize a picket line. When they only want to see who are at work, they go and see, and then leave, and disturb no one physically or mentally. But such picketing as is displayed in the case at bar by the evidence does, and is intended to, annoy and intimidate. The argument seems to be that anything short of physical violence is lawful. One man can be intimidated only when knocked down. But the peaceful, lawabiding man can be and is intimidated by gesticulations, by menaces, by being called harsh names, and by being followed, or compelled to pass, by men known to be unfriendly. Perhaps such a man may not be a bully, but is frail

Sup. Ct.)

PIERMONT V. SCHLESINGER
(188 N.Y.S.)

in size and strength, or he may be a timid man; but such a man is just as much entitled to go and come in quiet, without even mental disturbance, as has the man afraid of no one, and able with or without weapons to cope with all comers. The frail man, or the man who shuns disturbances, or the timid man, must be protected, and the company has the right to employ such."

At least a contrast is shown between what our courts have held on the subject of picketing and what the courts of sister states have declared. The cases cited may perhaps be explained or distinguished, or even held inapplicable to the instant case; but, whether followed or not, the fact remains that they also represent the best thought on a subject that touches the very heart of the body politic.

[3] From the proof submitted, I find myself unable to agree with the argument of counsel for defendants that the picketing in the case at bar has been as peaceful and as gentle as he would have me believe. The motion to continue the injunction pendente lite is granted. The amount of the undertaking to be given will be fixed on the settlement of the order.

Ordered accordingly.

(196 App. Div. 658)

PIERMONT et al. v. SCHLESINGER et al.

(Supreme Court, Appellate Division, First Department. April 29, 1921.) 1. Injunction 145—Allegations of affidavit as to intimidation of employees and interference with contracts of employment held conclusions.

In a suit against striking employees and the unions to which they be longed, allegations of the employers' affidavit, on a motion for an injunction, as to defendants' interferences with nonunion employees' contracts of employment, and their acts of intimidation, coercion, and criminal assaults, held mere conclusions, when the source and nature of his information was not disclosed.

2. Injunction 145-Affidavits insufficient to support injunction against interference with contracts of employment, etc.

In a suit against striking employees and unions to which they belonged, affidavits, on a motion for an injunction showing three instances of lawless assaults on nonunion employees, only two of which were shown to have been committed by individual defendants, with nothing to indicate that the union was responsible, and with no showing that any of the defendants had knowledge of contracts by the nonunion employees not to join any union while in plaintiffs' employ, were insufficient to support an injunction against the doing of any acts in violation of the employer's rights under such contracts of employment, or enticing or persuading employees under contract from deserting their employment, etc.

Page and Merrell, JJ.,

dissenting.

Appeal from Special Term, New York County.

Action by Gustave M. Piermont and another, copartners doing business as G. M. Piermont & Co., against Benjamin Schlesinger, as President of the International Ladies' Garment Workers' Union and others. From an order of the Special Term, granting plaintiffs' motion against all of the defendants, other than the defendant International Ladies' Garment Workers' Union, and enjoining defendants, other than the

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

International Ladies' Garment Workers' Union, during the pendency of this action, from doing any acts injurious to the plaintiffs, in violation of their rights under certain contracts of employment entered into between the plaintiffs and their employees on August 17, 1920, and from enticing or persuading employees under contract with the plaintiffs from deserting their employments, and from instigating a strike among the same employees of the plaintiffs, and from picketing and aiding in the picketing of the plaintiffs' place of business, etc., defendants appeal. Reversed, and motion denied.

Argued before DOWLING, LAUGHLIN, PAGE, MERRELL, and GREENBAUM, JJ.

Morris Rothenberg, of New York City (Morris Hillquit, of New York City, of counsel), for appellants.

Gordon, Tally & Gordon, of New York City (Reuben Tally, of New York City, of counsel), for respondents.

GREENBAUM, J. The facts are conflicting as to why the plaintiffs' employees struck. Each side charges the other with violating a contract under which the plaintiffs' shop had been operating. What we are immediately concerned with, however, is what happened after the strike went into effect. It appears from the affidavit of one of the plaintiffs that they determined upon a policy of running their factory upon a nonunion basis, and accordingly entered into agreements with their employees, under which they were to be employed from week to week, with the express understanding that they had ceased to be affiliated with the defendant Local Union No. 25, and that they would not join any union while in the employ of the plaintiffs.

* *

The motion was based upon the affidavit of one of the plaintiffs, Gustave M. Piermont, and the supporting affidavits of Esther Fisher, Lena Silverman, and Morris Isaacs, employees of the plaintiffs. The affiant Piermont alleges that, in violation of the agreements with his employees, the latter are prevented from performing their duties because of the acts of the defendants in molesting, threatening, and intimidating them, in an effort to induce and force plaintiffs' employees to violate their contracts of employment. It is also alleged by Piermont that the defendants have "continuously since August 9, 1920, and still are, wrongfully and unlawfully engaged in the practice of picketing plaintiffs' factory; * the defendants also caused the homes of the plaintiffs' workers to be visited, and the said defendants have been since the 9th day of August, 1920, and still are, coercing, threatening, intimidating, halting, and turning aside against their will the employees who would go to and from the place of business of the plaintiffs, and who desire and are willing to work therein"; that three of the defendants, who are specially named, assaulted one of the plaintiffs' employees, named Esther Fisher, on August 18, 1920, and that on September 9, 1920, a Mr. Isaacs, who is in the plaintiffs' employ as a cutter and patternmaker, was "attacked by two men, who, upon information and belief, are in the employ of the defendant Local Union No. 25."