Keuffel & Esser v. International Ass'n of Machinists , 8 Stock. 429 ( 1922 )

The opinion of the court was delivered by

Swayze, J.

This is a motion on bill and affidavits for injunction to restrain defendants, employes of complainant, from improper interference in complainant’s business during a strike, and also to restrain Bauseh, who describes himself as business agent of District No. 15 of the International Association of Machinists, from like interference. A preliminary injunction was issued. Speaking generally, it restrained the defendants on the same lines as the defendants in Jonas Glass Co. v. Glass Bottle Association, 77 N. J. Eq. 219, were restrained. From the order, so far as this restraint is concerned, no appeal is taken. The appeal is from so much of the order as restrains the defendants from parading in the neighborhood of the plant of complainant, bearing placards or otherwise indicating that a strike is in progress at complainant’s plant; and from picketing the place of business of complainant. The object of the appeal, avowedly, is to secure a decision as to the legality of picketing when unaccompanied with violence, molestation of others, annoying language or conduct — in short, what is sometimes called peaceful picketing. Parading in the neighborhood /of complainant’s plant with placards indicating that a strike is in progress is similar in its legal character to picketing.

Since the present case was argued, the supreme court of the United States has decided the general principle underlying the present facts in a case that has been pending for several years, since, at latest, 1916. Tri-City Central Trades Council et al. v. American Steel Foundries, 238 Fed. Rep. 728; American Steel Foundries v. Tri-City Central Trades Council et al., United States Sup. Ct. Advance Sheets No. 2, October term, 1921, not yet officially reported. The authority of that high tribunal is of such weight as to be practically controlling on us in a class of cases in which it must often, and may always, have the full force of a binding authority. It would be unwise in us to assume to sit in review even if the reasoning of the opinion did not commend itself to our minds, as in fact it does. It is true that that case was within the terms of the Clayton act, and this case, as far as the record shows, is not, but the chief-justice discussed the case also as a matter of common law as well as a matter governed by the Clayton act. We start, therefore, with the ruling in that case as the foundation of our decision. It decided that the employer had the right to the access of Ms employes to his place of business and egress therefrom without intimidation or obstruction, and the employes recent or expectant had the right to use peaceable and lawful means to induce present employes and would-be employes to join their ranks. The legality of any particular conduct depends on the facts of the particular case. Picketing may or may not be lawful depending on whether or not it has an immediate tendency to intimidation of the other party to the controversy (to which we add, “if he has ordinary firmness of mind”), or an immediate tendency to obstruct free passage such as the streets afford, consistent with the right of others to enjoy the same privilege. Thus men may accost one another with a view of influencing action but may not resort to persistent importunity, following and dogging. The number of the pickets may of itself malee the picketing unlawful, since it may amount to intimidation. Every one knows that threats of bodily harm may be made, by a mere show of force without violence of language or breach of the peace, and’that mere numbers may intimidate. The real question is, Does the conduct under existing facts amount to intimidation ? twenty-five or fifty pickets may, when a single picket probably would not. If information alone were wanted in the pending case, all the information necessary for the defendants to enable them to prosecute their efforts to convert the complainant’s employes would have been obtained by a few men. The use of twenty-five or fifty or two hundred as in' fact used, was clearly unnecessary, and could not have been intended for any lawful purpose. In view of the testimony as to what actually went on, the vice-chancellor properly held that the conduct of the defendants was an illegal interference with the complainant’s property rights..

They were enjoined from personal molestation of persons willing to be employed by complainant with intent to coerce such persons to refrain from entering such employment. They do not appeal.

They were enjoined from loitering or picketing in’the streets or on the highways or public places near the premises of the complainants or near any premises with intent to procure the personal molestation and annoyance of persons employed or willing to be employed by complainant, or causing the employes of the complainant to refrain from or refuse to remain in the employ of complainant. They do not appeal.

They were enjoined from violence, threats of violence, insults, indecent talk and abusive epithets, annoying language, acts or conduct, practiced upon any person without their consent with intent to coerce them to refrain from entering the employment of complainant. They do not appeal. •

They were enjoined from attempting to cause any persons employed by complainant to leave such employment by intimidation or annoying such employes by annoying language, acts or conduct. They do not appeal.

They were enjoined from going either singly or collectively to the house of any of complainant’s employes for the purpose of intimidating, urging, annoying or coercing any or all of them to leave its employ. They do not appeal.

They were enjoined from interfering with, hindering or obstructing complainant’s business, and in the operation of complainant’s plant in any manner in inducing or compelling, or attempting to induce or compel 'by threats, intimidation, force or violence any of the complainant’s employes to leave complainant’s service, or to refuse or fail to perform their duties as such employes. They do not appeal.

They were enjoined from in any manner and by any means 'molesting or interfering with complainant’s employes, or any of them, in going to or returning from their daily work. They do not appeal.

We have mentioned enough of the defendants’ conduct which they confess by their failure to appeal. The injunctions against parading and picketing must be read in the light of such admitted conduct. There can, as Chief-Justice Taft said, .be no such thing as peaceful picketing in such surroundings and the evidence shows how mere picketing by overwhelming force runs into intimidation and breach of the peace. The law now recognizes the right of members of trade unions to combine in order that they may deal with their employers on terms approaching equality. On the same principles employes must be left unmolested in order that their conduct may be controlled by their .reason, unaffected by the vis melus of great numbers, which corresponds to the vis major of physical force. It might, perhaps, be claimed that the terms of the injunction from which an appeal was taken were unnecessary, in view of the extent of the other restraint, but they were necessary to present the different question of the right to restraint when the situation is such that what would otherwise be peaceful persuasion, becomes in the actual fact a system of terrorism. It was in this view that the terms appealed from were added; we think prbperly added.

We have referred to the conduct of the defendants at length and specifically because an injunction was issued against Bausch, and it may he argued that he did! no more than the trade unions were conceded the right to do in the American Steel Company Case above cited. The proof sufficed to show that Bausch was directing the strikers and endeavoring to secure more members for the union with a view to compel the complainants to unionize their shops. He denies that he actively intervened; but he accepted their invitation to aid in forming an effective organization. We think a man who takes paid in forming, fomenting or aiding an effective organization for the illegal purpose for which this organization was in fact used, cannot escape liability by letting others do the work of “active intervention.” He aided in forming, fomented and aided an “effective organization” which at once committed unlawful acts, for which it was properly enjoined, as it admitted by failing to appeal. Had he desired to keep within the bounds of the law, the way to do it was to withdraw when his associates (perhaps, in view of the martial character of picketing, we may properly say “his forces”) began their violations of law. It does not follow that because aiding in an effective organization may under some circumstances be legal, that will be the case under different circumstances. A very good illustration is to be found in a case that arose during the recent war. Schenck v. United States, 249 U. S. 47, 52.

“We admit,” said -Mr. Justice Holmes, speaking for the court, “that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from-an injunction against uttering words that may have all the effect of force.” In the later case of Abrams v. United States, 250 U. S. 616, 627, the same judge, although differing from the majority on the case then in hand, said he did not doubt that by the same reasoning that would justify punishing persuasion to murder, the United States may constitutionally punish speech that produces, or is intended to produce, a clear and imminent danger, that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. We need go no further than Chief-Justice Taft’s opinion for an illustration. Speaking of that case he says: “All information tendered; all arguments advanced and all persuasion used under such circumstances were intimidation. They could hot be otherwise. It is idle to talk of peaceful communication in such a place and under such conditions.” In our present case, the evil .to be prevented is the intimidation of workmen — prevention of their free action undisturbed by intimidation. In the existing situation Bauseh’s conduct tended immediately and directly to unlawful conduct of men associated with him in a common enterprise.

The order for injunction must be affirmed, with costs.