(dissenting in part). The trial court’s finding that the primary objective of the picketing in this case was to coerce plaintiff into signing a recognition agreement with the defendant union is sufficiently supported by the evidence to sustain the injunction. I think that we are not warranted on an *535appellate review of the record in reversing the finding and dissolving the injunction.
The majority opinion rests upon their finding that plaintiff had interfered with its employees’ freedom of choice in respect to union affiliation and representation and that the defendant was justified and acted in good faith in picketing in December, 1950, after eight months of effort to have plaintiff’s employees recognize their contractual obligations as members of the union.
My difficulty with this conclusion is threefold: first, I find no showing in the record adequate to support a finding of intervention or interference on plaintiff’s part in the employee-union relationship; second, whatever complaint the union might have had in this connection, justifying either proceeding before the National Labor Relations Board or by the counteraction of picketing, was waived in the settlement voluntarily effected with plaintiff in the spring of 1950, by which the petitions of both parties before the board were withdrawn and the pickets were withdrawn; third, there was no effort by the union during the next eight months to gain the support of the plaintiff’s employees. On the contrary, there was no communication whatever between the union and the employees during this period and the so-called organizational effort of December, 1950, took the form of initial picketing with signs which were not addressed to the employees but which were calculated to bring pressure upon the employer.
While there is some difference between the parties as to whether the spring and winter picketing should be viewed as connected or unconnected, I would think that unimportant. Regardless of the merits of the conflicting claims and charges made with respect to the earlier events, the parties made their settlement of those differences; all questions of representation were closed out before the Labor Board, the union disclaimed any representation of plaintiff’s employees and discontinued picketing. In the light of this settlement, it was not allowable for the union later to revert to its charge that plaintiff had behaved improperly in respect to its employees’ union affiliation and representation or to renew picketing on that ancient ground.
Nor do I think that we can view the settlement as strange or draw any inferences from it unfavorable to either party. Defendant’s own frank statement of the situation in its brief marks that chapter closed. As stated, the picketing was as regrettable to the Brotherhood as to Pennock and the settlement *536was reached. That was a mutually satisfactory end of the matter, mutually arrived at, and we may not now appropriately view that settlement as tainted or as strange or as reflecting upon plaintiff.
I agree with defendant’s premise that disclaimer of representation in the spring of 1950 did not prevent it from attempting to organize plaintiff’s employees at a later time. It is to be noted, however, as stated in appellant’s brief, that “ For the next eight months, there was no contact or communication between the Brotherhood on the one hand and Pennock or Pennock’s New York employees on the other hand.” The crucial question, therefore, is whether the union’s picketing instituted in December, 1950, without any previous communication with Pennock’s employees, was a good faith recruitment measure or was for the ulterior purpose of gaining recognition from the plaintiff. I think it quite clear from the record which defendant made and the text and context of the picketing that the purpose was coercive as to plaintiff and not persuasive as to its employees. Without any attempt to communicate with the employees, the resolution for the picketing opened with a castigation of the employees, followed by their expulsion from the union. The resolution reveals that the picketing was disciplinary in nature, premised upon a detachment of the employees from the union and aimed at reaching the employer.
I would agree with the majority of the court that damages have not been established and would permit the union to apply to the court for such modification of the injunction at any time as might be appropriate to allow bona fide organizational activity.
The judgment, in my opinion, should be modified to incorporate this permission and to eliminate the award of damages and otherwise should be affirmed.
Callahan and Bbeitel, JJ., concur with Bastow, J.; Peck, P. J., dissents in part, in opinion in which Dobe, J., concurs.
Judgment reversed, with costs, and judgment is directed to be entered in favor of the defendant dismissing the complaint herein, with costs. Settle order on notice.