322 Mass. 499 | Mass. | 1948
The plaintiff, a corporation engaged in canning fish, brings this bill in equity against the officers
The findings of the judge included the following: The plaintiff is a corporation which operates a fish cannery in Gloucester. The workers’ union is an unincorporated labor organization, the members of which are employed in processing and canning fish. The fishermen’s union is a labor organization embracing workmen who constitute the crews of fishing boats operating out of Gloucester. Both unions are affiliated with the American Federation of Labor. On September 16, 1942, the plaintiff and the workers’ union entered into an agreement which ceased to be operative after March 31, 1943.
The defendant White, a business agent of the workers’ union and'the officer in charge of its affairs, was desirous of entering into a new agreement with the plaintiff. The contract proposed by him was to include provisions that the workers’ union was to be the exclusive bargaining agent of the plaintiff’s employees, that all of its employees be required to join the union,
Failing to reach an agreement with the plaintiff, the workers’ union in accordance with the war labor disputes act
During the period that picketing continued no Gloucester boat manned by crews which were members of the fishermen’s union delivered any fish to the plaintiff. Due to the fact that the crews of practically all of the fishing boats operating out of Gloucester were members of the fishermen’s union, that union had a monopoly of such labor and no
No evidence was introduced touching the issue of damages, and it was stipulated by the parties that the failure to present any evidence on this issue was without prejudice to the plaintiffs’ right to recover damages in an action at law. There is no evidence that the picketing at any time was other than peaceful, or that the number of pickets employed was excessive.
Facts in addition to those hereinbefore stated will be mentioned hereinafter as occasion requires.
The findings of the judge establish that one of the purposes, if not the principal one, of the strike was to obtain a closed shop. This finding is supported by evidence. But even if we assume, as the defendants argue, that the evidence required a finding that the workers’ union sought a union shop (one where the employees who have been hired by the plaintiff must join the union after they have been in its employ a specified period of time), it would not affect the result. It is settled by our decisions that a strike either for a closed shop or for a union shop is illegal. This subject has been fully discussed in the recent case of Colonial Press, Inc. v. Ellis, 321 Mass. 495, where the authorities are collected. What was said there need not be repeated. That decision is controlling here.
On behalf of the workers’ union, however, it is urged that to enjoin it from picketing in the circumstances here disclosed would violate its right of free speech under the Constitution of the United States. In support of this contention several recent decisions of the Supreme Court of the United States are relied on.
That part of the decree which enjoins the fishermen’s union is based upon the findings that both unions were engaged in an unlawful conspiracy to achieve an unlawful purpose and that the action of the fishermen’s union constituted “an illegal combination in the nature of a sympathetic strike or boycott.” Since the fishermen’s union earnestly challenges these findings, it becomes necessary to consider whether they are supported by the evidence. The pertinent evidence touching this issue was as follows: The defendant White told O’Hara, an officer of the plaintiff, that if he did not sign a contract with his union (the workers’ union) the plaintiff would not get any fish. The agents representing the fishermen’s union at Gloucester at the time of the strike were Gomes and Sparrow. On the day the strike began the defendant White met Sparrow and informed him that the plaintiff’s premises were being picketed and asked what he (Sparrow) could do about it. Sparrow said that a boat, the “Catherine,” was in, that he thought the captain was a union member, and that he would go down to see him. When he got to the wharf the “Catherine” had not arrived so he wrote a message on a card and gave it to a picket who subsequently delivered it to one Clark, the captain of the “Catherine.” The message was as follows: “Capt. Clark. Don’t land any fish at Davis Brother wharf by order Fishermens Union. John Sparrow, Delegate.” The captain, who was a member of the fisher
We are of opinion that the judge could find — as in effect he did — that the officers and members of the fishermen’s union conspired and combined with the workers' union to accomplish an unlawful purpose and that he rightly ruled that the plaintiff was entitled to injunctive relief against both unions. He also could find that whát the officers did
There can be no doubt that the controversy between the plaintiff and the workers’ union falls within the definition of a labor dispute contained in G. L. (Ter. Ed.) c. 149, § 20C, inserted by St. 1935, c. 407, § 3. Consequently the provisions of G. L. (Ter. Ed.) c. 214, § 9A, inserted by St. 1935, c. 407, § 4, relative to injunctions in labor disputes are applicable. The judge, as the findings set forth in the footnote indicate, found that there had been compliance with the requirements of § 9A.
The finding that “substantial and irreparable injury to the plaintiff’s property will follow” was supported by the evidence, which shows that from eighty to ninety per cent of the plaintiff’s supply of fish comes from Gloucester and that while the picketing continued none of the Gloucester boats which customarily supplied the plaintiff with fish docked at the plaintiff’s wharf. These facts, taken together with the admissions in pleadings of the defendants to the effect that they would “find it difficult” to respond in money damages, were sufficient, we think, to support the judge’s finding.
The defendants contend that the plaintiff was not entitled to relief because of failure to comply with G. L. (Ter. Ed.) c. 214, § 9A (2), which provides that the hearing at which an injunction is sought “shall be held after due and personal notice thereof has been given, in such manner as the court shall direct, to all known persons against whom relief is
The defendants urge that the bond filed by the plaintiff did not satisfy the requirements of § 9A (2) and (3). But it is not necessary to decide this question. “The ‘undertaking with adequate security ’ required from a plaintiff by subdivisions (2) and (3) is a condition of a temporary restraining order or a preliminary injunction, but not of in-junctive relief given after a final determination of the merits establishing that the issuance of the injunction is neither ‘improvident’ nor ‘erroneous.’ ” Simon v. Schwachman, 301 Mass. 573, 582.
The plaintiff argues that there was no labor dispute between it and the fishermen’s union within the meaning of those words in G. L. (Ter. Ed.) c. 149, § 20C, and that therefore compliance with the provisions of G. L. (Ter. Ed.) c. 214, § 9A, was not necessary. But we need not decide this question inasmuch as we have already held that the requirements of § 9A have been satisfied.
The defendants’ exceptions must be overruled. These seek to raise the question that the judge who issued the preliminary injunction was without jurisdiction to do so. When a final decree has been entered a preliminary injunction has served its purpose, and ordinarily on an appeal from a final decree there is no occasion to consider whether the granting of such an injunction was proper. Lowell Bar Association v. Loeb, 315 Mass. 176, 189-191. But in view of the remedy given to a defendant by § 9A (2) and (3) in the event of an erroneous or improvident issuance of a preliminary injunction, it becomes necessary for us to consider whether it was properly granted. See also § 9A (6). It appears that the judge who granted the preliminary injunction heard the case in Essex County where the bill was filed. The case was heard in open court on the testimony of witnesses with opportunity for cross-examination in compliance with G. L. (Ter. Ed.) c. 214, § 9A (1). Upon a report of the case to a justice of this court under § 9A (6), the interlocutory decree granting the preliminary injunction was reversed because there was no express finding as required by § 9A (1) (c) that as to each item of relief granted greater injury would be inflicted upon the plaintiff by the denial of relief than would be inflicted upon the defendants by the
The judge could reconsider the case in chambers on the evidence already heard. Rule 47 of the Superior Court (1932). Peterson v. Hopson, 306 Mass. 597, 601-602. He . was not obliged to hear the case de nova. Nor was he without jurisdiction to reconsider the case because of the fact that he was then sitting in another county. G. L. (Ter. Ed.) c. 213, § 5. G. L. (Ter. Ed.) c. 214, § 18. Rule 68 of the Superior Court (1932). See Ripley v. Collins, 162 Mass. 450, 452-453. This conclusion is not at variance with anything decided in Commonwealth v. Handren, 261 Mass. 294, and Stoneman v. Coakley, 266 Mass. 64, on which the defendants rely.
Questions of evidence have not been argued and are treated as waived. Commonwealth v. Dyer, 243 Mass. 472, 508. Commonwealth v. Gale, 317 Mass. 274, 276.
We have considered all of the questions argued by the defendants and have dealt with such of them as require discussion.
Exceptions overruled.
Interlocutory decree affirmed.
Final decree affirmed with costs.
In this agreement, which is before us as an exhibit, the plaintiff recognized the workers’ union as the exclusive bargaining agency for all of its employees, with certain exceptions not here material. The agreement also contained a so called “union shop”, clause, which provided that in the event that the workers' union could not supply the necessary employees the plaintiff could obtain them elsewhere but after thirty days such employees must become members of the union.
Elsewhere in his findings the judge found that the workers' union was seeking a contract for a closed shop, and there was evidence to support such a finding.
57 U. S. Sts. at Large, 163, c. 144, § 8 (a) (1), (2).
New Negro Alliance v. Sanitary Grocery Co. 303 U. S. 552. Thornhill v. Alabama, 310 U. S. 88. Carlson v. California, 310 U. S. 106. American Federation of Labor v. Swing, 312 U. S. 321. Bakery & Pastry Drivers & Helpers Local 802 of the International Brotherhood of Teamsters v. Wohl, 315 U. S. 769. Milk Wagon Drivers’ Union, Local No. 753 v. Lake Valley Farm Products, Inc. 311 U. S. 91. United States v. Hutcheson, 312 U. S. 219.
The constitution of the fishermen’s union stated that one of its purposes was to assist “other bona fide labor organizations in the attainment of their labor demands” and a duty was imposed on members of the union “to shun all places or institutions where scab labor is employed.”
He found that unlawful acts had been committed and would continue unless restrained; that substantial and irreparable injury to the plaintiff’s property would follow; that as to each item of relief granted greater injury would be inflicted upon the plaintiff by the denial of relief than would be inflicted upon the defendants by the granting of relief; that the plaintiff had no adequate remedy at law; that the public officers charged with the duty of protecting the plaintiff’s property were unable to furnish adequate protection inasmuch as the unlawful acts of the defendants involved no
The bill of exceptions states that “the defendants did not offer or ask for permission to introduce any further evidence.”