Thе first two cases are suits in equity which are here by appeals from final decrees granting injunctive *470 relief against the defendants, who were conducting a strike at the plants of each of the plaintiffs. The defendants also appealed from interlocutory decrees granting prehminary injunctions against them.
The last two cases are here by appeals by those who were defendants in the two suits in equity from judgments of a single justice of,this court dismissing petitions for writs of mandamus to compel.the trial judge in the suits to report questions of law arising out of the granting by him of the preliminary injunctions.
The two companies which were the plaintiffs in the suits in equity will be hereinafter referred to as the plaintiffs; and those who were defendants in the suits will be hereinafter referred to as the defendants.
. Certain motions to dismiss all the appeals must be first considered.
The plaintiffs filed motions in the Superior Court in the equity cases to dismiss the appeals therein. The judge on January 10, 1950, denied those motions. The defendants entered their appeals in this court on January 26, 1950.
The plaintiffs also filed in this court motions in the equity cases to dismiss the appeals on the ground that the defendants had not taken the necessary steps to perfect and enter them within the time prescribed by G. L. (Ter. Ed.) c. 231, § 135, and on the alternative ground that the appeals had been entered prematurely in this court. It is contended by the plaintiffs that there is nothing to show when the clerk of the Superior Court gave the defendants notice that the papers for the appeals had been prepared and were ready for filing in this court or that, if such notice was given, they were filed within five days thereafter. The. difficulty with these contentions of the plaintiffs is that it has not been made to appear that the defendants did not act within the designated times. The 'motions filed in this court cannot be sustained on the first ground.
Duff
v.
Southbridge,
The motions filed in the Superior Court to dismiss the appeals, another motion to dismiss them filed in this court, and motions filed in this court to dismiss the appeals in the mandamus cases are based upon the theory that the strikes had ceased to exist because the plants of the plaintiffs had long been in full operation since the appeals were taken and also that the contracts of employment existing at the time of the strikes had expired, and that consequently the controversy involved in the suits had become moot.
A strike like any other conflict comes to an end when the strikers have spent their strength and their subsequent efforts have no substantial effect upon the business of the
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employer so that there is no genuine hope of success.
M. Steinert & Sons Co.
v.
Tagen,
It is finally contended that the motions to dismiss should have been granted because the contracts of employment with the workers’ councils in effect when the strike began have expired. One contract has been renewed with one plaintiff and the contract with the other plaintiff has been extended with some change therein. There is nothing to indicate that so far as the contracts are concerned they are substantially different from those in existence when the strike commenced. The plаintiffs, of course, do not contend that the injunctions ceased when the old contracts expired and we see no logic in their contention that the controversy came to an end when the contracts were renewed or extended. We are not impressed with the argument that in order to keep their rights alive the local should have given notice to the plaintiffs before the contracts had expired, or taken other steps. The issues originally involved continue without any material change. Affidavits filed by the defendants in reply to motions of the plaintiffs show that at or about the time of the strike complaints charging the plaintiffs with unfair labor practices and involving the then
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"existing contracts of employment with the workers’ councils had been filed by employees with the national labor relations board under U. S. C. (1946 ed.) Sup. I, Title 29, § 158 (a) (1), (2), (3). Proceedings on these charges are seemingly pending before that board. We do not believe that this industrial struggle has become moot.
Jaffarian
v.
Mayor of Somerville,
The First Two Cases.
Preliminary injunctions having been denied after a hearing shortly after the return of the orders of notice, the suits came on to be heard upon the merits by another judge. After the hearing had continued for three days, during which evidеnce was introduced tending to show that the strikes were being conducted in an illegal manner, the judge directed that the order of the trial be modified and stated that he would hear further evidence as to the manner in which the strikes were being conducted, decide the motions for preliminary injunctions, and then proceed to complete the hearing upon the merits. He made findings of fact with reference to these motions and granted preliminary injunctions. He thereafter proceeded with the hearing, made further findings of fact, and ordered the entry of final decrees, granting injunctive relief. The judge was within his rights
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in adopting this procedure. A judge should take immediate and directive measures to check and suppress acts of violence occurring during a hearing, and he would be remiss in the performance of his duties if he should permit such acts to continue unabated until the conclusion of the hearing. The fact that preliminary injunctions had been previously denied did not stay the hand of the trial judge to grant relief if the acts occurring after the hearing on the first application for an injunction warranted such action. Successive applications for injunctions are not to be enсouraged, but where events happening after the denial of an application establish the need of injunctive relief, such relief should be granted.
Louisville & Nashville Railroad
v.
Kentucky Railroad Commission,
We turn now to the findings made by the judge. Before he ordered the preliminary injunctions he found that repeated acts of violence had taken place on the public ways in the vicinity of the plants of the plaintiffs; that mass picketing had occurred involving at times more than two hundred pickets at one plant and sixty-five pickets at the other plant; that persons including employees and those with whom the plaintiffs had contractual obligations were seriously interfered with or actually prevented from entering or leaving the plants; that vile and obscene names were directed to men and women entering or leaving the plants; that threats of violence and other unlawful acts had been made to nonstrikers and their families at their homes, on the public ways, and at their places of business; that private property of nonstrikers had been damaged in an effort to intimidate them to join the strikers; that these acts had been committed by the defendants named in the bill and • by persons acting in concert with them; that the police *475 were unable to prevent such acts; and that such acts would continue unless enjoined.
These findings were inadequate to support the issuance of these preliminary injunctions. There is no finding that substantial and irreparable injury to the property of the plaintiffs would follow if injunctions were denied or that denial of relief would inflict greater damage on the plaintiffs than the granting of relief would inflict upon the defendants. There is lacking any finding that the plaintiffs have complied with their obligations imposed by law involved in these labor disputes or that they have made reasonable efforts to settle the disputеs by negotiation, mediation or arbitration in so far as they might have been bound to seek such means. We find nothing in the record or docket indicating that either plaintiff had filed an undertaking with adequate surety to recompense those enjoined for any loss, expense or damage that might be caused by the granting of these preliminary injunctions if it should subsequently appear that they were improvidently and erroneously issued. The provisions of G. L. (Ter. Ed.) c. 214, § 9A, inserted by St. 1935, c. 407, § 4 — see now St. 1950, c. 452, § 3 — were not observed in the granting of these preliminary injunctions. The effect of the failure to comply with this section will be presеntly discussed.
At the conclusion of the hearing on the merits the judge made various findings of fact which incorporated by reference those already made with respect to the preliminary injunctions. We will attempt to summarize these latter findings. The plaintiffs, while separate and independent corporations, appear to be closely affiliated. They were engaged in the manufacture of children’s carriages and other wheél goods in Gardner and in the sale of these products in various States. The parties agree that the plaintiffs conduct “an industry affecting commerce” as those words are used in the national labor relations act, U. S. C. (1946 ed.) Title 29, § 151 et seq., as amended by the labor management relations act of 1947, U. S. C. (1946 ed.) Sup. I, Title 29, § 141 et seq. The defendants are members and *476 officers of a voluntary unincorporated association known as Local 154 which is a branch of a national body called the United Furniture Workers of America, C. I. O. The local has two thousand members. Neither the local nor the national body can be certified as a collective bargaining agent because of the failure to file affidavits that their officers are not members of the communist party, or affiliated with it, as required by the labor management relations act, U. S. C. (1946 ed.) Sup. I, Title 29, § 159 (h). The production employees in each plaintiff’s plant were organized in a workers’ council which was recognized by the plaintiff employer in that particular plant as the sole and exclusive bargaining agent of employees engaged therein. The officers of these workers’ councils, so called, have not filed the affidavits required by § 159 (h). Neither plaintiff had any contract with the local, but each had written contracts of employment with the workers’ council purporting to represent the employees in that particular plant. These contracts expired on December 15, 1948. The defendant Binnall, the business agent of the local, on October 26, 1948, wrote to the treasurer of The Thayer Company advising him that the local represented a majority of the employees; that the workers’ council had decided that the existing contract should be administered by the local; that the local was desirous of commencing collective bargaining negotiations in behalf of the employees; and that the letter would serve as a notice to terminate the еxisting contract between The Thayer Company and the workers’ council and to exercise, if necessary, “our right to strike.” The treasurer replied that he would not recognize the local as the collective bargaining agency until it should be certified as such by the national labor relations board. On December 15, 1948, Binnall sent a telegram to the treasurer notifying him that the local had been designated as the collective bargaining agency and cautioning The Thayer Company not to contract with any organization except the local. The Thayer Company executed оn December 15, 1948, a new contract with the workers’ council organized in that plant and on *477 January 15, 1949, the other plaintiff, H. N. Thayer Company, executed a similar contract with the workers’ council in that plant. Both contracts ran until December 15, 1949. The local on January 25, 1949, voted to strike against both plaintiffs. The strike began the next day. The judge found that the strikes were brought to compel the plaintiffs to recognize the local as the collective bargaining agency for their employees, to coerce the plaintiffs to violate contracts of employment between them and thе workers’ councils, and to injure the plaintiffs. He ruled there was no obligation upon the part of the plaintiffs to recognize the local as such agent. He excluded evidence of transactions between the employees of the plaintiffs and the local as to the signing of applications for membership in the local and other activities between the employees and the local but stated that upon the offer of proof made by the defendants he would be warranted in finding that a majority of the employees had become members of the local subsequently to the execution of the written contracts between the plaintiffs and the workers’ councils. He also ruled that these employment contracts were valid but that, if for any reason they were voidable, the defendants had no standing to attack them. He further ruled that the plaintiffs were not required to seek any remedy, administrative or otherwise, before bringing these suits. He found, however, that the plaintiffs had appeared before the State board of conciliation and arbitration but that efforts to settle the controversy failed because of the defendants’ insistence that the locаl be recognized as the collective bargaining agent. ■
■ The judge, although of opinion that the controversy did not constitute a labor dispute within said c. 214, § 9A, made the following findings, which he stated were made upon all the evidence: that by reason of the combination of members of the local, intentionally endeavoring to injure the business of each plaintiff, unlawful acts had been committed and would continue unless restrained; that substantial and irreparable injury had been sustained by the said businesses; that the injury to the property of each plaintiff was “greater *478 than that to the defendants ”; that the dеnial of relief would inflict greater injury upon each plaintiff than granting it would upon the defendants; that the plaintiffs had no adequate remedy at law; that the public officers were ■unable to furnish adequate protection to the property of each plaintiff in that the injury to the plaintiffs’ property had been caused not by any acts of the defendants which were violations of the criminal law but by acts unlawful under the civil laws of this Commonwealth; and that the plaintiffs had not failed to comply with any obligations imposed upon them by law and had made reasonable efforts to settle the disputе by negotiation and with the aid of available governmental machinery. He found each strike to be unlawful.
The judge excluded evidence of the dealings between the employees and the local prior to the .strike. It is clear, however, from his findings that at the inception of the strike some of the employees were actively engaged in picketing. We construe the statement of the judge, that he would have been warranted in finding upon the defendants’ offer of proof that," after the contracts of employment had been executed between each plaintiff and the wоrkers’ councils, respectively, a majority of the employees became members of the local, as meaning that he would have made such a finding if the evidence had been admitted. We therefore have a situation where persons who were still employees were participating in a strike under the management of a local which, from the beginning of the controversy, was acting for some of the employees and which, shortly thereafter, included a majority of the employees. See
Fashioncraft, Inc.
v.
Halpern,
A preliminary injunction was granted in one suit on Thursday, March TO, 1949, and in the other on Friday, March 11, 1949. Final decrees were entered in both suits on Tuesday, March 15, 1949. It thus appears that neither of these preliminary injunctions was in effect for more than four working days, even assuming the plants were in operation on Saturday, March 12, 1949. The purpose, of a preliminary injunction is to maintain the situation in statu quo until the merits can be determined. In labor disputes, however, so much time ordinarily elapses between the granting of a preliminary injunction and the time when a
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final decree can be reviewed on appeal that as a practical matter many regarded the issuance of a preliminary injunction as an effectual strike breaking weapon.
Mengel
v.
Justices of the Superior Court,
It is plain from the findings already recited that the methods adopted by the defendants in conducting these strikes were illegal.
Robitaille
v.
Morse,
Any publication of the facts by picketing differs materially from publication by radio, by newspapers, or by public meetings. The difference lies chiefly in the fact that picketing is oftentimes much more than the communication of ideas and the expression of free speech. It was said in
Saveall
v.
Demers,
The defendants, however, contend that these findings are not supported by the evidence and that they are plainly wrong. No principle of equity practice is better established than that such a contention cannot be sustained in the absence of a report of all the evidence. The furnishing of such a report is the only way in which this court can be put in the position of the trial judge and enabled to review his conclusions of fact. There is no other method by which this court can test the correctness of such conclusions. We cannot reverse his findings of fact except by an examination of the evidence. We have before us what the defendants contend is a transcript of the evidence. The plaintiffs on the оther' hand contend that it is not a part of the record because it was not taken in accordance with the statute, G. L. (Ter. Ed.) c. 214, § 24, as amended by St. 1947, c. 365, § 1, or Rule 76 of the Superior Court (1932). There is nothing outside of a recital in her notes by a stenographer to show that any person was designated to take the testimony. There is no record indicating any action by the judge or any notation made by the clerk with reference to any appointment. Furthermore, an examination of the dockets with which we have been furnished,
Styrnbrough
v.
Cambridge Savings Bank,
There is another answer to this contention of the defendants. Numerous exhibits were introduced in evidence at the hearing in the Superior Court. Some of them might have been of considerable materiality in influencing the judge in making his findings of fact. We cannot say that they did not form an important branch of the evidence. It would not be safe for us to consider the so called transcript without also considering these exhibits. Motions of the defendants to incorpоrate in the record exhibits 1 to 20, inclusive, were denied on May 1,1950, by this court, the trial judge not having granted the request of the defendants so to do. Obviously, these cases cannot be heard on appeal “upon the same evidence as on the original hearing.” G. L. (Ter. Éd.) c. 214, § 24, as amended by St. 1947, c. 365, .§ 1. We certainly should not attempt to decide issues of fact on only a portion of the evidence.
Goshein
v.
Chavenson,
The defendants next contend that the plaintiffs should be denied relief because they do not come into court with clean hands. The plaintiffs are not seeking relief arising out of any contract or trаnsaction with the; local.. The plaintiffs have not been shown to have adopted any unfair or inequitable conduct by way of fraud, lack of good faith or otherwise in dealing with any matter in which the local had a direct and immediate interest. The judge made no specific finding of unclean hands. We are confined in deciding the question by the facts reported together with the inferences which may be drawn from these facts.
Vergnani
v.
Vergnani,
There was no error in the final decrees prohibiting all picketing. The judge saw the witnesses and was in a far better position than we are to determine the attitude of the strikers, their temperament and emotions, the depth of their feelings of hostility toward the plaintiffs, and the likelihood of a repetition of the unlawful acts if picketing was not restrained. There is a specific finding that unlawful acts would continue unless restrained. Steiner v. Long Beach Local No. 128 of the Oil Workers International Union, 19 Cal. (2d) 676, 684. Restatement: Torts, § 816.
The Third and Fourth Cases.
The defendants in the first and second cases filed on March 14, 1949, petitions for writs of mandamus to compel the judge who entered the preliminary injunctions on March 10, 1949, and March 11, 1949, respectively, to report forthwith the questions of law therein involved as requested by the defendants in order that his action might be reviewed by a single justice of this court as provided by said c. 214, § 9A (6). The trial judge had declined to make such report and upon the conclusion of all the evidence he entered, on March 15, 1949, final decrees. It was the duty of the judge to comply with the statute last mentioned and he would undoubtedly have done so except for the mistaken belief that he was not dealing with a labor dispute within § 9A.
Mengel
v.
Justices of the Superior Court,
Motions to dismiss denied.
Decrees affirmed with costs in the first two cases.
Judgments affirmed in the last two cases.
Notes
The following is an excerpt from the plaintiffs’ brief: “The cases in the court below must be ‘ripe for entry' in the Supreme Judicial Court at the time of such entry in this court. Acts or occurrences after such entry cannot cure or affect the situation as it existed at the time of entry. . . . When these cases were entered in the Supreihe Judicial Court on January 26, 1950, they were not ‘ripe for entry,’ by reason of the fact that no decree had been entered on Judge Kirk's order of January 10, 1950, denying the plaintiffs’ motions to dismiss the defendants’ appeals, and . . . such order by Judge Kirk was final in nature and required the entry of a decree thereon in order to lay the basis for an appeal by the plaintiffs. Thus the plaintiffs’ rights of appeal were cut off by reason of the entry of the case in the Supreme Judicial Court on January 26, 1950, because, upon its entry in this court, the Superior Court had no further jurisdiction to receive an app.eal, since the cases were no longer in that court. G. L. c. 214, § 22, does not apply, as denial of motions to dismiss was not interlocutory in naturе. . . . Clearly the plaintiffs had a right to appeal from this order by Judge Kirk as they also had a right to findings of fact in accordance with G. L. c. 214, § 23. Their requests for such findings were pending before and under consideration by Judge Kirk at the time of the entry in this court .... Judge Kirk did not take action upon these requests, because of the intervening and superseding entry of these cases in this court. The inclusion of Judge Kirk’s findings of fact was necessary in order to constitute the complete record, and these had to be filed before the case could become ‘ripe’ for entry in the Supreme Judicial Court.” — Reporter.