The defendants have been convicted upon a charge of "Disorderly conduct tending to a breach of the peace, in violation of section 722, subdivision 2, of the Penal Law." Some testimony was taken at the hearing of the charge, but by stipulation all the testimony was expunged from the record and the parties stipulated the facts pertaining to the complaint which were to be taken "in lieu of the sworn testimony." We quote the facts as stipulated in full: *Page 283
"1. The complainant, Ben Berkowitz, is the owner of a retail haberdashery store at 1587 Pitkin Avenue, Brooklyn, County of Kings;
"2. That on or about November 26th, 1935, the complainant and the National Wiring Protective Co. Inc. entered into written agreements which are here offered in evidence at Exhibits 1 and 2;
"3. The National Wiring Protective Co. Inc. have made agreements with other subscribers similar to the one represented by Exhibits 1 and 2;
"4. That on or about January 3, 1940, the defendant Andrew Fosgreen came to the store of the complainant and had a conversation with the complainant, in the course of which he told him that the union and the employees were on strike against the National Wiring Protective Co. Inc., and that they would put out pickets in front of his store, and that the maintenance of the burglar alarm system was unfair to Local No. 3 unless the complainant obtains union service on that system;
"5. That two days later, on January 5, 1940, the defendants Hans Muller and Vincent Teofilo appeared in front of the complainant's premises, each bearing a sign attached to his person, reading substantially as follows: `Maintenance of Burglar Alarm in this store unfair to Local No. 3, International Brotherhood of Electrical Workers Union, A.F. of L.;'
"6. That the defendants Hans Muller and Vincent Teofilo picketed in an orderly and peaceful way;
"7. That all three defendants are members of the International Brotherhood of Electrical Workers Union, and are on strike;
"8. That there is a labor dispute over wages and hours between the International Brotherhood of Electrical Workers Union, Local No. 3, the employees, and the National Wiring Protective Co. Inc.;
"9. That no labor was performed on the burglar alarm system installed at the complainant's premises since January 1, 1940." *Page 284
The stipulated facts thus establish beyond dispute that the defendants are members of a labor union engaged in a labor dispute with the National Wiring and Protective Co., Inc., over wages and hours of its employees. The National Wiring and Protective Co., Inc., has installed in the complainant's place of business an electric burglar alarm apparatus and has agreed to maintain the apparatus in serviceable condition, and the union has demanded that the complainant obtain union service on that system. The defendants have picketed in an orderly and peaceful way. Their conduct has not been disorderly in any way and has not tended towards a breach of the peace, unless peaceful picketing with a sign calculated to inform the public that the burglary alarm system installed in the complainant's store is not being maintained by the union of which the defendants are members is unlawful, and without more constitutes disorderly conduct.
The picketing is for the purpose of promoting the lawful interests of a labor union in a labor dispute. (Goldfinger v.Feintuch, 276 N.Y. 281.) There is here a "labor dispute" as that term is defined in section 876-a of the Civil Practice Act even under the restrictive interpretation of the scope of the statute by this court in Opera on Tour, Inc., v. Weber (285 N.Y. 348). Even were that not true, however, peaceful picketing by the members of a union in front of a business served by the union is the exercise of a right of free speech guaranteed by the Constitution of the United States as construed by the Supreme Court of the United States. (American Federation of Labor v.Swing, 312 U.S. 321, decided February 10, 1941; Bakery Pastry Drivers Helpers Local No. 802 v. Wohl, 313 U.S. 548.) Construction of the Federal Constitution by the Supreme Court of the United States is binding on all State courts.
The order should be affirmed. *Page 285