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June 30, 1958


Appeals, Nos. 17 and 18, Jan. T., 1959, from order of Court of Common Pleas of Carbon County, Jan. T., 1958, No. 5, in equity, in case of Fountain Hill Underwear Mills et al. v. Amalgamated Clothing Workers' Union of America et al. Order reversed.


E. G. Scoblionko, with him Maxwell e. Davision, George Kerestes, Frank A. Doocey, and Loose, Kerestes@ 6. & Bayer, and Scoblionko & Frank, for appellants.

Orrin E. Boyle, with him Harold Caplan and George A. Shutack, for appellees.

Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Jones

[ 393 Pa. Page 387]


This appeal questions the dismissal by the Court of Common Pleas of Carbon County of plaintiffs' complaint in equity seeking an injunction to restrain the Amalgamated Clothing Workers' Union of America (herein called Union), and George Nejmeh, its staff representative (herein called Nejmeh), from the unlawful picketing of plaintiffs' plant located in Palmertion, Pennsylvania.

Plaintiff, Fountain Hill Underwear (herein called Fountain Hill), is a partnership engaged in the manufacture and sale of clothing with its principal place of business in Bethlehem, Pennsylvania. The employees of the Bethlehem plant are represented by the International Ladies' Garment Workers Union (herein called ILGWU). On September 1, 1956, Fountain Hill and the ILGWU executed a collective bargaining agreement, presently in effect, which provides that the terms and conditions of the agreement would apply to any plants that Fountain Hill might open in the future. Fountain Hill subsequently organized the Palmerton Mills, Inc. (also a plaintiff herein) - a wholly owned subsidiary - to extend its operations to a factory building located in Palmerton, Pennsylvania. This building had been leased previously by the Palmer Shirt Co., a corporation without any relationship to plaintiffs, whose employees were represented for collective bargaining purposes by the Union.

[ 393 Pa. Page 388]

Plaintiffs allege that, shortly after the acquisition of the Palmerton factory, the Union demanded a written contract providing for its recognition as the sole and exclusive bargaining agent for all persons to be employed by the plaintiffs at the Palmerton plant because it had represented the employees of the previous occupant of the factory. Plaintiffs were further advised by the Union that, unless there was compliance with its demands, the Palmerton factory would never open.

On December 17, 1957, after plaintiffs had hired approximately fifty persons, the Union picketed the plaint entrance. The complaint avers that approximately two hundred pickets completely obstructed the sole entrance to the plant preventing those employed from entering the building and that numerous acts of violence were committed. Two days after these incidents - on December 19, 1957 - plaintiffs filed this complaint in equity requesting the court to enjoin the Union and Nejmeh preliminarily, until hearing, and permanently thereafter, from (1) mass picketing; (2) acts of violence; (3) preventing entrance to the plant by employees; (4) doing any act calculated to bring about a breach of the contract between plaintiffs and the ILGWU.

The court issued a rule to show cause why a preliminary injunction should not be granted; after a hearing on January 3, 1958, this rule was discharged. The preliminary hearing was limited - in the language of the court - to the question of determining "whether or not there is such violation and interference down there in the operation of the plant, and whether or not it should be restrained."*fn1 On January 21, 1958, a final

[ 393 Pa. Page 389]

    hearing was held at which time plaintiffs attempted to show a continuity of mass picketing and violence subsequent to the filing of the complaint. The court refused to permit the introduction of such evidence without an amendment to the complaint setting forth the specific dates of the subsequent acts; upon a plea of surprise, the court granted the Union thirty days to file an answer to these additional charges. At a hearing re-scheduled for February 29, 1958, the court then refused to permit the hearing to continue until plaintiffs filed a written notice of discontinuance of an appeal taken to this Court on January 22, 1958.*fn2 On April 1, 1958, the Union filed a motion to dismiss the complaint; on April 8, 1958, the court below dismissed the complaint.

The court bases dismissal of plaintiffs' complaint upon the grounds that: (1) plaintiffs failed to allege and prove certain prerequisites to the granting of an injunction under the Labor Anti-Injunction Act, supra;*fn3

[ 393 Pa. Page 390]

(2) plaintiffs failed to produce sufficient competent evidence to justify the relief sought; (3) by instituting a trespass action against defendants in the Court of Common Pleas upon the same cause of action alleged in the equity complaint, plaintiffs ousted equity's jurisdiction and admitted the existence of an adequate remedy at law; (4) the filing of a petition with the National Labor Relations Board by plaintiffs against the Union, charging it with unfair labor practices, also ousted equity's jurisdiction and admitted the existence of another adequate remedy at law.

The basic error of the court below stemmed from its mistaken belief that the Anti-Injunction Act applies to every labor dispute. Section 206(d) provides specifically that the Act shall not apply to certain labor disputes.*fn4 If a particular labor dispute falls within the

[ 393 Pa. Page 391]

    exclusion of section 206(d), compliance with the procedural requirements of pleading and proof of that statute is not a prerequisite to the issuance of an injunction: Westinghouse Electric Corporation v. United Electrical, Radio & Machine Workers of America (CIO) Local 601, 353 Pa. 446, 46 A.2d 16; Carnegie-Illinois Steel Corporation v. United Steelworkers of America, 353 Pa. 420, 45 A.2d 857. The allegations of the complaint and the evidence introduced at the preliminary and abortive final hearings clearly reveal that the Act has no application to the instant controversy. In any event, plaintiffs were never granted a final hearing in order fully develop this argument, nor did the court below even consider its validity in dismissing the complaint.

The second reason assigned, namely, the failure of plaintiffs to produce sufficient evidence to justify injunctive

[ 393 Pa. Page 392]

    relief, is equally erroneous. By the court's own action the plaintiffs were denied the opportunity to present such evidence. Furthermore, the court unduly restricted the hearing to a determination of the question of whether or not there was sufficient violence to justify the issuance of the injunction,*fn5 unmindful that mass picketing, threats, and intimidation of employees are equally as abhorrent to the term peaceful picketing as is physical violence. Westinghouse Electric Corporation v. United Electrical Radio and Machine Workers of America, 383 Pa. 297, 118 A.2d 180; Wortex Mills, Inc. v. Textile Workers Union of America, C.I.O., 369 Pa. 359, 85 A.2d 851.*fn6 Furthermore, not only must picketing be conducted in a peaceful manner, but the object which it seeks to attain must be legitimate and lawful: Sansom House Enterprises, Inc. v. Waiters & Waitresses Union, Local 301, AFL, 382 Pa. 476, 115 A.2d 746; Anchorage, Inc. v. Waiters & Waitresses Union, 383 Pa. 547, 119 A.2d 199.*fn7 Plaintiffs alleged in their

[ 393 Pa. Page 393]

    complaint that the mass picketing prevented ingress to and egress from the plant, amounted to a seizure of the employer's property and was an attempt to coerce the employer into recognizing the Union in violation of its valid collective bargaining agreement with ILGWU; any of these allegations, if proven, would warrant the issuance of an injunction. Not only did the court below improperly prohibit the introduction of evidence in support of these allegations, but it did not consider them worthy of any discussion in its opinion dismissing the complaint.

Moreover, the filing of a complaint in trespass for damages does not oust equity of its jurisdiction, or prove that plaintiffs have a complete and adequate remedy at law. In Wortex Mills, Inc. v. Textile Workers Union of America, 380 Pa. 3, 109 A.2d 815, we specifically recognized that equity relief which both prevents continued injury and allows damages for the harm already caused by the same unlawful act is not incompatible in a labor, or any other, controversy.*fn8 The fact that such relief is sought in two separate actions is immaterial. Our decisions hold only that once equity has assumed jurisdiction a court may award incidental damages; it is not mandatory for equity to do so, nor does a failure to do so bar a plaintiff from securing such relief.

The court below finally asserts that the filing of a petition with the National Labor Relations Board by the plaintiffs ousted equity of its jurisdiction and demonstrates that plaintiffs had an adequate remedy

[ 393 Pa. Page 394]

    at law. It is true that once a controversy comes within the jurisdiction of the National Labor Relations Board and an adequate remedy becomes available through such forum, state courts or agencies are, in general, unable to act; however, evidence of the National Labor Relations Board's jurisdiction must be either readily ascertainable from the complaint itself*fn9 or affirmatively proven by the defendant.*fn10 Otherwise, the mere filing of a petition with the National Labor Relations Board by either party would be sufficient to unnecessarily delay state action until the question of jurisdiction was finally determined by the federal agency. The defendants are certainly not prejudiced by the requirement that they prove federal jurisdiction; any uncertainty which necessarily surrounds the filing of a petition must be conclusively removed so that the state courts may act or decline to act in accordance with the proven facts.

However, even if we assume that the National Labor Relations Board does have jurisdiction over the controversy in question, this does not per se deny state action in all cases. In Wilkes Sportswear, Inc. v. International Ladies' Garment Workers' Union, 380 Pa. 164, 167-168, 110 A.2d 418, we stated: "Both parties to this controversy agree that plaintiff's business involved interstate operations ... But in view of the

[ 393 Pa. Page 395]

    court's findings in regard to the lawlessness, violence and intimidation of plaintiff's employes and customers which featured the picketing the court certainly had jurisdiction of the bill of complaint and was justified in issuing an injunction against the picketing so conducted: Wortex Mills, Inc. v. Textile Workers Union of America, C.I.O., 369 Pa. 359, 364, 85 A.2d 851, 854. It was pointed out in the Garner case (p. 488) that a State may still exercise 'its historic powers over such traditionally local matters as public safety and order and the use of streets and highways.'" In Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, Inc., 312 U.S. 287, 295, it was categorically declared that "The Fourteenth Amendment still leaves the state ample discretion in dealing with manifestations of force in the settlement of industrial conflicts." In Allen-Bradley Lcal No. 111, United Electrical, Radio & Machine Workers of America, v. Wisconsin Employment Relations Board, 315 U.S. 740, 749, it was held that the National Labor Relations Act did not prevent the State from enjoining mass picketing, threats or personal injury to employes desiring to work, or the obstruction of ingress to and egress from the employer's factory. By the dismissal of the complaint without a final and complete hearing, plaintiffs were deprived of any opportunity to prove that the Union was guilty of such acts.


For the above reasons, the order is reversed and the record remanded to permit plaintiffs to submit evidence in support of their allegations and to prove that the Union is still engaged in the alleged unlawful conduct.*fn1 In view of the unnecessary delay to which plaintiffs have already been subjected, we direct that a hearing is to be held within ten days of the remanding of the record and that, after hearing, the court below promptly either dismiss or grant the injunction.

Mr. Justice COHEN concurs in the result.

Disposition FOOTNOTES

1 Although, in our view, the present record adequately supported the issuance of a preliminary injunction to restrain mass picketing and violence at the time of the first hearing, due to the lapse of time, we believe that now it is in the best interests of all parties concerned to postpone the issuance or denial of any injunction until a complete and adequate final hearing on all the issues can be held in the court below.

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