Plaintiff concedes its failure to comply with section 876-a of the Civil Practice Act. The court, therefore, was entirely without jurisdiction to grant plaintiff any sort of injunction if the case is one "involving or growing out of a labor dispute." The existence of a labor dispute does not depend on the strength or weakness of a disputant's case, on his wisdom or folly, or on the views of any court as to the rights or wrongs of his position. By express definition of the Legislature, the term "labor dispute" includes "any controversy concerning * * * the association or representation of persons in negotiating * * * or seeking to arrange terms * * * of employment" (§ 876-a). Defendant union tendered to plaintiff employer a contract which the former refused to sign. That refusal, claims the union, was unfair. The employer denies that impeachment, pointing to the fact that it was already under contract to a rival union. Obviously and beyond doubt this was such a dispute as is encompassed within the above quoted definition, found in section 876-a, of a "labor dispute." The statute's flat prohibition of the issuance of an injunction in such a case, without pleading and proof required by the statute and concededly absent here, makes it unnecessary and improper for any court to investigate the merits of the dispute. There is simply no jurisdiction to issue the injunction.
Even if we could write section 876-a out of this case, we would still have to deal with our own decisions. Early and late, those decisions positively deny the right to issue an injunction against peaceful picketing by an ambitious union, though the employer has a subsisting contract with another union. (Interborough R.T. Co. v. Lavin, 247 N.Y. 65; J.H. S.Theatres, Inc. v. Fay, 260 N.Y. 315; Stillwell Theatre, Inc. v. Kaplan, 259 N.Y. 405.) In the Stillwell case, which cannot be distinguished from the present case, Chief Judge POUND wrote: "We would be departing from established precedents if we upheld this injunction." (p. 412.) The established precedents of that day have since been reinforced by an express statutory prohibition.
The theory that defendant's peaceful picketing is unlawful because it amounts to a demand that the employer breach its contract with the other union, was expressly passed upon and repudiated by this court in Stillwell Theatre, Inc. v. Kaplan (supra) (259 N.Y. at page 412). *Page 108
The trial court found that there was at no time more than one picket and that the activities of this picket were at no time violent or disorderly. The sign he carried announced to the public that plaintiff was "unfair" to defendant's branch of the Retail Salesmen's Union, American Federation of Labor. It did not say, as such signs often do, that plaintiff was unfair to "labor" or to "organized labor." The trial justice, during the trial, stated in a colloquy with counsel, that this sign was misleading as tending "to create the impression that they [plaintiff] are unfair to labor generally." For that reason, he twice told counsel during the trial, he considered it necessary to "dispel that impression" by adding to the picketing sign a further statement that plaintiff's employees were all members of the rival, or C.I.O., union. However, when the decision and judgment were entered, they ordered not that the explanatory statement beadded to defendant's original plaint on its picketing sign, but that the statement suggested by the court be substituted for defendant's sign, and that no other kind of statement be made to the public. Even if the court had forbidden picketing unless its verbiage should be added to that of defendant on the sign, such an order would have been illegal, as held by this court inEdjomac Amusement Corp. v. Empire State Motion PictureOperators' Union, Inc. (273 N.Y. 647) where, in an identical case, we reversed an injunction order and dismissed the complaint. But when the court by refusing to allow any wording but its own, denied to the union its right to assert that plaintiff was unfair to it, there was the plainest violation of rules laid down by this court (Nann v. Raimist, 255 N.Y. 307,319) and of defendant's right of free speech under the Federal Constitution (Bakery Pastry Drivers Helpers Local 802 v.Wohl, 315 U.S. 769, 774, and cases therein cited).
The Appellate Division was correct in dismissing the complaint and its judgment should be affirmed, with costs.