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S.S. Pennock Co. v. Ferretti

Supreme Court of New York, Appellate Division

March 23, 1954

S. S. PENNOCK COMPANY, Respondent,
v.
JOSEPH FERRETTI, as President of Brotherhood of Wholesale Flower Trade Workers (Ind.), Appellant.

Page 528

APPEAL from a judgment of the Supreme Court in favor of plaintiff, entered April 2, 1951, in New York County, upon a decision of the court on a trial at Special Term (BENVENGA, J.).

COUNSEL

Murray Sendler of counsel (Sendler & Tryforos, attorneys), for appellant.

Bernard H. Fitzpatrick and John H. Archer of counsel (Butler, Bennett & Fitzpatrick, attorneys), for respondent.

Page 529

BASTOW, J.

Presented by this appeal is the labor-law problem as to the degree to which picketing is a privileged activity or an unlawful one that may be permanently restrained. The defendant union appeals from a judgment granting such permanent restraint and assessing against it substantial money damages.

Centered in the vicinity of Sixth Avenue and West 28th Street in New York are some sixty or more commission merchants engaged in the wholesale cut flower business. Plaintiff is one of these merchants. It has stores in several cities with its main office in Philadelphia. For many years these merchants, including the plaintiff, have been members of an association organized originally for credit purposes and known as the Wholesale Cut Flower Protective Association. Prior to 1949 the employees of these merchants had not been organized. In the summer of that year preliminary moves were made by the International Brotherhood of Teamsters, A. F. of L., to organize the industry. The vast majority of these employees decided to organize an independent union. This was done in October, 1949, and the defendant is that union.

Within a short time after the defendant had sent out specimen labor-management contracts to the members of the protective association they had been negotiated and signed with all the members except three. Plaintiff was one of the three that refused to sign. None of plaintiff's stores is organized. Significant in the light of subsequent events is the uncontradicted testimony of defendant's vice-president that in 1950 plaintiff's labor lawyer from Philadelphia told the witness that 'where I [the attorney] am interested, as far as the A. F. of L. is concerned they take up and leave'. When queried as to how the attorney had twice defeated the A. F. of L. in Philadelphia he replied 'We just guide the employees the way to vote'.

The plaintiff in 1949 had ten employees. They had been solicited for about two months to join the defendant union and did so as a group on December 22, 1949. Shortly thereafter defendant submitted to plaintiff evidence that all of plaintiff's employees had become members of the union. Plaintiff insisted on an appropriate election. At about this time plaintiff sent one of its officers to confer with the employees in the New York store. It may be found from the evidence that soon after this meeting the employees of plaintiff decided that as a group they would not continue as members of the defendant union. This decision was not communicated to the union but thereafter the

Page 530

employees ignored the union, attended no meetings and paid no dues.

In January, 1950, the defendant filed with the National Labor Relations Board a representation petition naming the protective association as employer in an industry-wide unit and a separate petition covering the employees of plaintiff. These were held in abeyance pending the determination of charges filed by the Teamsters Union against the defendant and the protective association. In March, 1950, the defendant commenced to picket plaintiff's store. At about the same time the defendant withdrew its representation petition naming plaintiff as an employer. Immediately thereafter plaintiff filed an employer's representation petition alleging that both the Teamsters Union and the defendant were claiming recognition rights. Informal hearings were held before a representative of the National Labor Relations Board and the date of April 25, 1950, was fixed for a final hearing to arrange for an election to determine the asserted rival claims of the defendant and the Teamsters Union.

About April 13, 1950, there was a strange turn of events. One of plaintiff's attorneys sought out the attorney for the defendant and asked for a conference. The former testified 'that some harm was being done to the business. The Union and its pickets were getting a little weary of the picketing, and there might be a framework within which we could terminate the matter'. Strange indeed was this action. It is clear that up to this time plaintiff had taken the position that it was neutral; that it was torn between the claims of rival unions; that it welcomed an election and would abide thereby. An election would have placed it upon firm ground as to the wishes of its employees to belong or not to belong to a union. Yet it took the initiative in working out a settlement by which the defendant disclaimed that it was bargaining agent for plaintiff's employees, the representation petition of plaintiff was withdrawn and the charges of the Teamsters Union were dismissed. The picketing ceased and there was no activity on the part of the defendant relating to plaintiff until December, 1950, some eight months later.

During these eight months efforts were made by defendant to have the plaintiff's employees recognize their contractual obligations as members of the union. They did not resign therefrom but paid no dues, attended no meetings and completely ignored the union. Finally at a meeting of the defendant on December 5, 1950, it was voted to expel ...


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