The plaintiffs are domestic corporations. We shall call them the plaintiff employers. Though three labor organizations were named as defendants, only the defendant Department Store & Variety Store Employees Union, Local 1115A, appeared and defended the action. It will be called the defendant union.
The action was commenced in the New York Supreme Court for a judgment that would enjoin picketing by the defendant union of a store of the plaintiff employers located on Fulton Street in Brooklyn. After trial before an Official Referee, the complaint was dismissed. The Appellate Division affirmed by a divided vote and the plaintiff employers then brought the case here by an appeal taken as of right.
The dismissal of the complaint was not upon the merits but went upon the ground that the New York Supreme Court lacked jurisdiction over the subject matter and that any remedy of the plaintiff employers was to be had in the Federal courts or administrative agencies. Since the complaint has been dismissed without consideration of the merits of the controversy, we assume the truth of the evidence offered by the plaintiff employers.
There is not and there has not been any strike at their Fulton Street store nor have their employees selected any union as collective bargaining agent. Indeed representation proceedings looking to certification of such an agent have been pending before the National Labor Relations Board to whose jurisdiction the plaintiff employers are subject since they are engaged in interstate commerce. Nevertheless, the defendant union is picketing the plaintiff employers’ Brooklyn store with the avowed object of forcing the plaintiff employers forthwith to recognize the defendant union as sole collective bargaining agent despite the competing claims of a rival labor organization to represent the same employees.
The picketing in question is unlawful under the law of this State. Section 17 of article I of our State Constitution says that ‘ ‘ Employees shall have the right to organize and to bargain collectively through representatives of their own choosing.” The public policy thus declared by our State Constitution has been implemented by statute. Section 703 of the New York Labor Law says: “ Employees shall have the right * * * *305to bargain collectively through representatives of their own choosing * * * free from interference, restraint, or coercion of employers ”. Moreover, subdivision 3 of section 704 of the same statute denounces as an unfair labor practice an employer’s attempt by any means “ To dominate or interfere with the formation, existence, or administration of any employee organization or association, agency or plan ”.
The Federal Labor Management Relations Act of 1947 contains like provisions. Section 7 thereof (U. S. Code, tit. 29, § 157) says: “ Employees shall have the right to self-organizatian * ® * to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining ”. Subdivision (a) of section 8 of the same statute (U. S. Code, tit. 29, § 158) says: “ It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; (2) to dominate or interfere with the formation or administration of any labor organization ”,
In the face of the above legislation there is no denying that it would be unlawful for the plaintiff employers to yield to a demand that they recognize the defendant union instead of some rival labor organization as the exclusive collective bargaining-agent for the employees of the plaintiff employers in advance of a certification by the National Labor Eelations Board in the pending representation proceeding. Moreover, this conclusion seems to us to be fortified by a stipulation whereby, with the approval of the National Labor Eelations Board, the plaintiff employers have agreed not to commit any of the unfair labor practices that have been imputed to them by union officials.
In short, the defendant union is subjecting the plaintiff employers to economic pressure and is thereby injuring then-business without justification in law. Coercion of that kind is clearly unlawful (Dorchy v. Kansas, 272 U. S. 306, 311) and in our judgment can be enjoined by the courts of this State. Section 876-a of the New York Civil Practice Act does not bar injunctive relief in a case where, as here, no lawful labor objective is sought by the defendant union (American Guild of Musical Artists v. Petrillo, 286 N. Y. 226, 231; see Florsheim Shoe Store Co. v. Shoe Salesmen’s Union, 288 N. Y. 188). *306Furthermore, no principle of due process stands in the way of such an exercise of equity jurisdiction (Building Service Employees Int. Union v. Gazzam, 339 U. S. 532, 538-539).
Nor does the Federal Labor Management Relations Act (as we see it) disable our State courts from acting in the circumstances of this case. For one thing, the activity of the defendant union is not within any of the categories of union unfair labor practices denounced in subdivision (b) of section 8 of the Federal statute (U. S. Code, tit. 29, § 158). The provisions of the Federal statute that come closest to touching this case are contained in paragraph (4) of subdivision (b) of section 8 which says that it shall be an unfair labor practice for a labor union or its agents 11 to engage in, or to induce or encourage the employees of any employer to engage in, a strike * * * where an object thereof is: * * * (B) forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees * * *; (C) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees ”. The picketing conducted by the defendant union does not fall within the foregoing definitions of unfair labor practices under the Federal act because, as we have already noticed, no strike is involved in this case and no union has yet been certified as exclusive collective bargaining agent for the employees in question. Thus this aspect of the case presents no question of conflict with the Federal statute. In International Union, U. A. W. A., v. Wisconsin Employment Relations Bd. (336 U. S. 245), the Supreme Court upheld an order issued by the Wisconsin Employment Relations Board requiring a union to halt its practice of calling work stoppages against an employer during working hours. In that casé, the Supreme Court said (p. 253): “ Congress made in the National Labor Relations Act no express delegation of power to the Board to permit or forbid this particular union conduct, from which an exclusion of state power could be implied. The Labor Management Relations Act declared it to be an unfair labor practice for a union to induce or engage in a strike or concerted refusal to work *307where an object thereof is any of certain enumerated ones. § 8 (b) (4), 61 Stat. 140, 141; 29 U. S. C. § 158 (b) (4). Nevertheless the conduct here described is not forbidden by this Act and no proceeding is authorized by which the Federal Board may deal with it in any manner.” Again, in Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Bd. (336 U. S. 301), the Supreme Court in upholding an order of the Wisconsin board with respect to an employer engaged in interstate commerce had this to say (p. 305): “In seeking to show that the Wisconsin Board had no power to make the contested orders, petitioner points first to § 10 (a) of the National Labor Relations Act * * *. It argues that the grant to the National Labor Relations Board of ‘ exclusive ’ power to prevent ‘ any unfair labor practice ’ thereby displaced State power to deal with such practices, provided of course that the practice was one affecting commerce. But this argument implies two equally untenable assumptions. One requires disregard of the parenthetical phrase ‘(listed in section 8)’; the other depends upon attaching to the section as it stands, the clause ‘ and no other agency shall have power to prevent unfair labor practices not listed in section 8.’ ”
Nor, of course, is the conduct of the defendant union a concerted activity that is protected by the Federal statute (cf. International Union of United Automobile Workers v. O’Brien, 339 U. S. 454; Amalgamated Assn. of St., Elec. Ry. & Motor Coach Employees v. Wisconsin Employment Relations Bd., 340 U. S. 383). For the object of the picketing is to coerce the employer into committing an act which is denounced as an employer unfair labor practice under subdivision (a) of section 8 of the act. This kind of concerted activity cannot be supposed to be entitled to protection under section 7 of the act.
Our conclusion is that the acts of the defendant union here complained of by the plaintiff employers, if established by proof (1) would constitute an actionable tort under the law of this State entitling the employer to injunctive relief; (2) are not within the provisions of the National Labor Relations Act; and (3) are not such concerted union activity as is protected thereby. Even so, in the absence of any findings establishing the right of the plaintiff employers to the relief sought in the complaint, *308a new trial must be ordered. Hence we remit the case for a decision on the merits.
The judgments should be reversed and a new trial granted, with costs to abide the event.