
    The Driggs Dairy Farms, Inc., v. Milk Drivers & Dairy Employees’ Local Union No. 361 et al.
    (Decided January 28, 1935.)
    
      Messrs. Yager, Bebout & Stecher, for plaintiff.
    
      Mr. Edwin J. Lynch, for defendants.
   Richards, J.

This action was brought by The Driggs Dairy Farms, Inc., for the purpose of securing an injunction against the defendants to prevent them from picketing plaintiff’s place of business and the places of business of those of its customers who conduct retail stores and restaurants, and from boycotting plaintiff by circulating handbills, and by other methods.

The defendants filed an answer and cross-petition in which they admit various allegations of the petition and deny other allegations. They further aver that an economic or trade dispute exists between the defendants and the plaintiff and that the plaintiff, while displaying on its premises the Blue Eagle issued by the National Industrial Recovery Administration, has violated the provisions of the National Recovery Act and has sought by threats and intimidation to discharge members of the defendant Union from its employment unless such members cease their activities on behalf of the Union. The Common Pleas Court on trial of the case rendered a declaratory judgment under the provisions of Section 12102-1, General Code, and following sections, from which judgment and decree the defendants appealed.

The plaintiff company is engaged extensively in the marketing of milk, and has or had 8,000 to 10,000 retail customers and about 200 groceries and operators of restaurants in the city of Toledo as its customers. It had a large number of employees, among whom was one Ronald Chisholm. In July, 1934, plaintiff discharged Chisholm from its employment, and he thereupon made a complaint to "William J. McGahan, business agent of the defendant Milk Drivers and Dairy Employees’ Local No. 361. Chisholm had at one time been a member of the Local Union. The Common Pleas Court found, and the evidence justifies the finding, that his membership had lapsed for non-payment of dues, but a collection was taken among the members of the Union and from the amount collected his dues were paid. The discharge of Chisholm was either the basis or the pretext for originating the controversy that arose between the defendants and the plaintiff. The Common Pleas Court made a finding on the subject of this discharge, and in that finding this court fully concurs. On this subject that court used the following language:

“The court has been driven, by the undoubted force of the evidence, to find that Ronald Chisholm was not discharged because of any activity in favor of the Union, but for just and proper cause; that the plaintiff, through its officers, does not object to have its employes join the Union and there is no evidence that it objects to collective bargaining with any representative chosen by its employes, or that it in any way violates Sec. 7(a) of the N. R. A.”

The evidence does not in any way disclose that the plaintiff company has been or is unfair to organized labor.

About the middle of August a strike was called by Local No. 361 and its members thereupon appeared at plaintiff’s place of business and sought to bring about a strike of the Driggs employees, but said employees refused to strike, and all voluntarily continued in their employment with the plaintiff company, although about one-half of its employees were members of the Union. The evidence justifies the conclusion that the strike and boycott originated by the activities of members of the Union who are employees of a company or companies which are rivals in business of the plaintiff.

As a result of the failure of the plaintiff’s employees to strike, the defendants declared a boycott against the plaintiff, but on September 1st Chisholm notified Local Union No. 361 in writing that his differences with the plaintiff had been settled, and withdrew his complaint. Notwithstanding the withdrawal by Chisholm of his complaint, the defendants have continuously persisted in enforcing the boycott, but without the use of violence. Wilbur H. Mohney, who was president of Union No. 361, testified that they never could really find out what Chisholm was discharged for, but that “the boycott is still on and will be on till Driggs settled with the labor union and 361, if it continues forever”. The Common Pleas Court, as shown by its opinion, found as follows:

“No controversy whatever has existed nor does now in any way exist between the plaintiff company and its employes. The procedure taken by the Union was not initiated by any of the plaintiff’s employes and was neither approved nor adopted by any of them. ’ ’

The evidence submitted to this court shows clearly and conclusively that such finding was fully justified.

Among the numerous methods by which the defendant sought to enforce the boycott was the circulation of thousands of pamphlets reading as follows:

“Attention! Union members and labor sympathizers — the Driggs Dairy Farm, 1149 Grand Avenue, Toledo, Ohio, is unfair to organized labor. This company has continuously violated Section 7(a) of the N. I. ft. A. by discharging employes who have joined an organization of their own choosing. We therefore, earnestly solicit your support by refusing to purchase any products which this company distributes. Patronize only those men who display a union button.
“Milk Drivers & Dairy Employes’ Local Union No. 361;
“912 Adams Street,
“Affiliated with the A. F. of L.”

The defendants not only circulated the handbills to which reference has been made, but the members of the union who were employed by competitors of the plaintiff called upon its wholesale customers and demanded that they cease selling plaintiff’s products. In the prosecution of this boycott they employed banners with inscriptions printed in large type reading as follows:

“Stay away! Driggs Dairy Farms, Inc., unfair to organized labor. Violating Sec. 7(a) N. R. A. Do not patronize this store. It handles Driggs products.”

Later, the banners were slightly changed, but they still contain the statement that the company has been declared unfair to organized labor and is a violator of Section 7 (a) of N. R. A.

The defendants allege in their pleadings that an , economic or trade dispute exists between them and the ■ plaintiff, but the evidence fails to sustain such an allegation. The evidence does show that the plaintiff and the defendants do not have, nor have they had, any business relations with one another and that the difficulty between the parties arose by reason of the conduct of the defendants in undertaking to call a strike and in persisting in enforcing a boycott without any just cause.

The defendants further contend that the plaintiff has failed to comply with the provisions of the National Industrial Recovery Act. The evidence fails to show any non-compliance by the plaintiff with that act, but even if it did do so this court does not understand that either the duty or privilege of enforcing that act rests upon the shoulders of any one or all of the defendants. The Federal Courts are quite in accord on the proposition that private individuals are without authority to invoke the jurisdiction of the court, under the provisions of the National Recovery Act.

Purvis v. Bazemore, 5 F. Supp., 230; Stanley v. Peabody Coal Co., 5 F. Supp., 612; Western Powder Mfg. Co. v. Interstate Coal Co., 5 F. Supp., 619; National Foundry Co. of N. Y., Inc., v. Alabama Pipe Co., 7 F. Supp., 821. See, also, Sherman v. Abeles, 265 N. Y., 383.

The only contrary authority to which our attention has been called is an unreported decision of the Circuit Court of Milwaukee.

Counsel cite LaFrance Electrical Construction & Supply Co. v. International Brotherhood of Electrical Workers, Local No. 8, 108 Ohio St., 61, 140 N. E., 899. That case was tried in this court, and the decision is applicable to the case of an existing strike of employees, attended with violence. The facts in that case have little resemblance to those disclosed by the evidence in the case at bar.

Our attention is also called to S. A. Clark Lunch Co. v. Cleveland Waiters & Beverage Dispensers Local No. 106, 22 Ohio App., 265, 154 N. E., 362. In that case the court held that the Union had a right, in a lawful way, to influence and control patronage, and it is significant that in the final sentence in the opinion the court used the following language: “Plaintiff in the present case alleges unlawful conduct, and the burden is upon it to prove it. This it has not done. ’ ’

In the instant case the plaintiff alleged unlawful conduct, and has clearly established the same by the evidence. Harvey v. Chapman, 226 Mass., 191, 115 N. E., 304, L. R. A., 1917E, 389; Stuyvesant Lunch & Bakery Co. v. Reiner, 110 Misc., 357, 181 N. Y. Supp., 212.

The plaintiff is entitled to an injunction as prayed for, but not so as to prevent the defendants from reasonable and peaceable persuasion, using only the truth.

Decree for plaintiff and injunction allowed.

Overmyer and Lloyd, JJ., concur.  