Plaintiff Stillwell Theatre, Inc., maintains a motion picture theatre in Brooklyn. *Page 413 By contract with defendant Local 306 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators Union, based on the principle of collective bargaining, plaintiff employed only members of that union as operators. Under that contract, defendant supplied four operators and two assistants at an aggregate weekly wage of $350. That contract expired August 31, 1930, and plaintiff declined to renew. Instead it contracted with another union, the Empire State Motion Picture Operators, whereby this union agreed, also on the principle of collective bargaining, to supply and has supplied to plaintiff's satisfaction three operatives at an aggregate weekly wage of $155. This contract is with the union, not with individuals, and is for a fixed term. Plaintiff's right to change the personnel of the operators supplied by the union does not authorize it to cancel its contract with the union. For an agreed duration, plaintiff may employ no one except members of this union. Each operative averaged thirty-one and one-half hours per week of six working days. Defendant had knowledge of the terms of this contract between its rival and plaintiff. Within a few days members of Local 306 began and continued to picket the theatre, displayed signs stating that its owners would not employ operators who were members of its union, stopped patrons of the theatre, caused crowds to collect in front of it and interfered with and injured its patronage. All these facts have been found by the trial justice and unanimously affirmed by the Appellate Division. Also this finding has been unanimously affirmed: "That the sole purpose of Local 306 in picketing the Stillwell Theatre was to induce the public not to patronize said theatre; to injure and destroy the plaintiff's business and by pressure and coercion compel the plaintiff to breach the contract aforesaid between it and said Empire State Motion Picture Operators Union, Inc., which will not expire until August 31, 1931." On these findings of fact, *Page 414 which are supported by evidence, the Appellate Division unanimously affirmed the judgment enjoining defendant, during the continuance of this contract, from doing any act calculated to induce or cause a breach of it and from picketing and patrolling the streets in front of or near the theatre.
The majority of this court believes that the real controversy lies between two unions. As I view the case, the essential dispute hinges upon the question whether plaintiff as employer must become submissive to the demands of one of these unions or allow its business to drift to ruin. As long as any semblance of liberty of contract continues to be recognized by the law, it seems to me that a duty rests upon the courts to vindicate such a right.
The old agreement with defendant was more favorable to employees than this new contract with its rival, but the one now existing certainly cannot offend a reasonable sense of social justice. Conduct by an employer, whereby its employees have obtained steady employment, subsequent to August, 1930, at an average of eight dollars for a working day of five hours is truly far from unconscionable.
The lucid exposition of the reciprocal rights of employer and employee by Judge ANDREWS in Exchange Bakery Restaurant,Inc., v. Rifkin (245 N.Y. 260) met the approval of every member of this court. Our unanimous concurrence respecting legal principles and disagreement by a minority concerning the application of those principles to the facts as construed by the minority is shown in Judge CRANE'S dissenting opinion with which two of his associates agreed. All conceded that the hiring at will by the employer might be ended at any time by either party and, therefore, that no contract for a fixed term was involved. The duty of a court of equity to intervene or to refrain when a breach of contract has been induced in a labor dispute was not defined. The question was expressly left open. The right of unions to *Page 415 conduct strikes by lawful means for the purpose of promoting the interests of labor was freely recognized. In the language of the opinion, picketing connotes no evil but no crowds may be collected on or near the employer's property. Freedom to conduct a business, freedom to engage in labor, each is like a property right, and to prevent repeated violations threatened or probable of property rights an injunction may be granted. Where unlawful picketing has been continued, where violence and intimidation have been used and where misstatements as to the employer's business have been distributed, a broad injunction prohibiting all picketing may be granted. These are the principles expressed in the opinion in that case. In Steinkritz Amusement Corp. v.Kaplan (257 N.Y. 294, 297), wherein the doctrine of theExchange Bakery case was applied, the picketing was found as a fact, unlike the case at bar, to have been accompanied by violence but, also unlike the case at bar, there was no finding that the sole purpose of the picketing was to compel plaintiff to breach its contract. An injunction was sustained by this court to the extent of restraining picketing of plaintiff's premises, the exhibition of signs and the distribution of notices in front of them. Our mandate proceeded as far as the necessities of that case required; it afforded all practical protection to the plaintiff and conformed with the rule announced in the ExchangeBakery case. We decided all that was necessary for decision. Other provisions of the judgment at Special Term, very general in form, which were eliminated by this court, constituted, under the circumstances, nothing more than surplusage. Far from decreeing the right to picket peacefully for the sole purpose of inducing a breach of contract, the effect of our judgment was, as in theExchange Bakery case, to leave the question open. All the security which, in the view of this court, was needed by that plaintiff was accorded. Theoretical discussion in an opinion by way of an essay and other elaborate *Page 416 provisions in the judgment would have been purely academic. Although the findings at bar are not identical with those inReed Co. v. Whiteman (238 N.Y. 545), they are closely analogous and seem to require an application of the same rule. The coercive nature of defendant's policy and acts is not dissimilar from that pursued in Auburn Draying Co. v. Wardell (227 N.Y. 1). Without an injunction, damage to this plaintiff would seem to be irreparable. The inference is required that the individual property right of freedom of contract, which is recognized, at least by words, in the Exchange Bakery case, would be compelled to succumb to a stronger collective force. Plaintiff would be confronted with a choice either of breaking its contract with defendant's rival and compulsorily resuming relations with defendant or closing its theatre. In the event of reversal of this judgment and a consequent violation by plaintiff of its present contract and a renewal with defendant, the Empire State Union could proceed as defendant is found to have done in the present case, to stop patrons of the theatre, cause crowds to collect in front of it and picket plaintiff's premises with signs denouncing plaintiff as the breaker of a union contract. It could do so for the sole purpose of destroying plaintiff's business and disrupting an agreement for a fixed term by plaintiff and defendant. If we refuse relief against defendant's coercive measures we would be bound impartially to do the same in respect to the weaker union. In such a conflict between these hostile organizations there is the gravest danger that plaintiff would become submerged. Reversal of this judgment might fairly be regarded as a recession in the direction of a relinquishment of this court's equitable powers relating to the protection of property from threatened destruction.
CRANE, LEHMAN, KELLOGG, HUBBS and CROUCH, JJ., concur with POUND, Ch. J.; O'BRIEN, J., dissents in opinion.
Judgments reversed, etc. *Page 417