Summary
In Building Service Maintenance Union v. St. Luke's Hospital (C.P. 1967), 11 Ohio Misc. 218 [40 O.O.2d 500], the court held, at page 227, that the provisions of Section 16, Article I of the Ohio Constitution, that every person shall have a remedy for "`an injury done him' * * * refers to wrongs that are recognized by law."
Summary of this case from Haskins v. BiasOpinion
No. 843188
Decided June 14, 1967.
Labor — Strikebreaking — Common law — Ordinance — Injunction — Clear right required — Collective bargaining — Duty of employer to engage in — Hospitals — National Labor Relations Act — Exclusion — State law.
1. In order to obtain an injunction a plaintiff must establish a clear right to such relief.
2. At common law strikebreaking, the practice of employing another to replace an employee on strike, gives rise to no cause of action on behalf of the striker replaced.
3. No violation of an ordinance which forbids an employer to willfully and knowingly employ a person who customarily and repeatedly offers himself as a strikebreaker is shown by evidence only that some employees on strike have been replaced.
4. At common law no employer has a duty to bargain collectively with his employees.
5. The provision of the National Labor Relations Act requiring collective bargaining does not affect non-profit hospitals due to their exclusion in 29 U.S. Code Section 152(2).
6. There is no statute of this state requiring that an employer bargain collectively.
7. The provision of Article I, Section 16, Ohio Constitution, that every person shall have a remedy for an "injury done him" refers only to wrongs that are recognized as such by law.
8. The provisions against a contract denying one a right to join a labor organization, found in Section 4113.02, Revised Code, contain no implied duty to bargain collectively.
9. Any common-law right to refuse to accept an employer-dominated organization as bargaining agent for the employees would not justify finding a duty of the employer to bargain collectively with the organization selected by the employees.
Messrs. Sweeney Maher, Mr. Robert E. Sweeney, Mr. Edward J. Maher, and Mr. Eugene Green, for plaintiff.
Messrs. Arter, Hadden, Wykoff Van Duzer, Mr. Joseph A. Rotolo, and Mr. Fred J. Perkins, for defendants.
One of the most difficult things for a trial judge to do is to tell a sincere litigant that his position is mistaken. I have that unhappy duty.
This is an equity action brought by Local No. 47 of the Building Service and Maintenance Union against St. Luke's Hospital, a nonprofit corporation, and against Kenneth Shoos, the hospital's superintendent. In essence the plaintiff says it is the duly designated bargaining agent of several hundred of the hospital's non-professional workers who are on strike, and plaintiff complains of two alleged acts of the defendants, namely:
1. Violation of the Cleveland city ordinance re: strikebreaking, and
2. Refusal of the defendants to bargain collectively with the plaintiff.
Plaintiff seeks an injunction to stop the alleged ordinance violation and to order the defendants to bargain collectively with the plaintiff.
Whether one is a baseball umpire, a football referee or a court judge, in making decisions he must turn to the book to find the governing rules. He can't make up rules extemporaneously as he goes along, however much sometimes he would like to do so. This is a court of equity in which plaintiff is seeking an injunction, and the rule book has some very definite requirements by which the right to an injunction is gauged.
First, one is confronted with what the rule book says about the nature of an injunction. It is recognized as a most powerful judicial weapon, often called "the strong arm of the law," and often characterized as summary, peculiar, high or extraordinary. No power is more dangerous in a doubtful case. For these reasons it is exercised sparingly and cautiously. One does not run to a court of equity for everything as he does to a shopping center. 29 Ohio Jurisprudence 2d 179, Injunctions, Section 15; Arthur Murray Dance Studios of Cleveland, Inc., v. Witter, 62 Ohio Law Abs. 17, 31, 105 N.E.2d 685, 694 (and authorities cited; in this case an injunction was denied to an employer).
Second, one faces what the rule book says about the burden of proof. The burden of establishing, by the required degree of proof, that one is entitled to an injunction, is on the one who seeks the injunction. 29 Ohio Jurisprudence 2d 406, Injunctions, Section 178; Arthur Murray Dance Studios of Cleveland, Inc., v. Witter, supra (and authorities cited).
Third, right there in the rule book is spelled out how great this burden is. The injunction seeker must prove that he has a clear legal right to the injunction. A mere moral obligation is not sufficient. If the right is doubtful, injunction is denied. 29 Ohio Jurisprudence 2d 177-78, Injunctions, Section 14, 180-81, Section 16, 240-41, Section 58, 407-08, Section 179; 20 Ohio Jurisprudence 2d 128, Equity, Section 63; 27 American Jurisprudence 2d 516-17, Equity, Section 1; Arthur Murray Dance Studos of Cleveland, Inc., v. Witter, supra (and authorities cited).
Fourth, the rule book, too, shows that equity does not generally create rights. It merely provides remedies for recognized rights that exist. It will provide service for a car but not a car. 20 Ohio Jurisprudence 2d 26, Equity, Section 7, 39, Section 13; 29 Ohio Jurisprudence 2d 168, Injunctions, Section 5; 27 American Jurisprudence 2d 518, Equity, Section 2, 522, Section 5. Chapman v. Sheridan-Wyoming Coal Co., Inc., 338 U.S. 621, 631.
With the rule book open, we approach plaintiff's complaints. First we ask — has the plaintiff proved a "clear right" to enjoin the alleged violation of the city's strikebreaking ordinance? To determine this intelligently we must know what the law was prior to the ordinance and how the ordinance altered that law.
Strikes and replacement of strikers have long been, and still are, sensitive and emotional areas for both employer and employee. If, for a moment, each could realistically stand in the other's set of shoes, he probably would better understand the other. When employees strike, an employer tends to feel that his employees are injuring or destroying his business. When an employer replaces a striker, that employee feels that someone is taking his job — jeopardizing his livelihood.
The natural, emotional, human resentment at being replaced is understandable. No one likes to be edged out even in a legal way, whether he be an incumbent public official, the president of a union or corporation, or a striking employee. Nevertheless, however detestable the striker's replacement may be in the eyes of the one being replaced, is the act of replacement illegal? What is the status of a so-called "strikebreaker"? What is a strikebreaker? We accept this general definition (83 Corpus Juris Secundum 546):
"Strikebreaker. One who takes the place of a workman on strike; a worker who takes the place of one who has left work in an effort to force the employer to agree to demands made."
There is a popular misconception about the ordinary strikebreaker. In certain understandable ears the very word carries an odious connotation, but it does not carry an illegal connotation. The common law (apart from some provision of a constitution, statute or ordinance saying otherwise) does not condemn ordinary strikebreaking as either a civil or criminal wrong. It is legally legitimate.
That same common law has long recognized two fundamental, legal rights — one an employee's right and the other an employer's right — and when either exercised that legitimate right the other often considered him something of a scoundrel. One was the employee's right to strike even though it emotionally upset the employer. The other was the right of the employer to break the strike in the sense that he had the right to replace the striker even though the striker became emotionally upended. In neither case did resentment and emotion become the law.
This law is not something that this court has just now concocted for the first time. It has been in Ohio's common law rule book at least since 1903 when it was inscribed there by the case of The L. Hoster Brewing Co. v. Giblon, et al., 1 Ohio N. P. (N.S.) 377, wherein the court, "in view of the fact that there is probably some misunderstanding," took particular care to state the law, saying, page 380:
"Whether the defendants here (strikers) and their fellow employes have left the service of plaintiff (employer) of their own volition, or whether they have been discharged * * * their rights after leaving that employment are the same. They have a right to refuse to work upon the terms offered, whatever these terms may be, and they have a right to unite themselves together for the purpose of obtaining better conditions of employment, and they have a right to use all peaceful means to that end. * * * These defendants being no longer in the employment of the plaintiff, cannot again enter its employment except by mutual agreement of the parties. The plaintiff upon its part has the same freedom of choice under the laws. It may again employ the defendants or employ others in their places. Whatever difference of opinion there may be as to the propriety or policy of other men taking the places of men on strikes, yet under the law that right is clear and undisputed, and there never was a decision by any court to the contrary."
See also: 33 Ohio Jurisprudence 2d 165, Labor, Section 47; Pancake, Inc., v. Cincinnati Joint Executive Board, 81 Ohio Law Abs. 44, Syl. 3, 51, 52; Eureka Foundry Co. v. Lehker, 13 Ohio Dec. 398, 402; Fulworth Garment Co. v. International Ladies Garment Workers Union, 15 Ohio N. P. (N.S.) 353, 359. The last part of the last quoted sentence is a strong statement — "there never was a decision by any court to the contrary." Significantly, counsel have not furnished and we have not been able to find any common law holding to the contrary either inside or outside of Ohio.
Having exposed the common law to view, we now consider the pertinent parts of the pertinent ordinance (Section 13.112-501 of the Codified Ordinances of the City of Cleveland, reported in The City Record of November 4, 1964, at page 34) in order to determine whether there has been an ordinance violation:
"Employment of Persons Where a Lockout or Strike Exists. (a) It shall be unlawful for any person, firm or corporation directly involved in a labor dispute to willfully and knowingly employ, or to contract or arrange for the recruitment or procuring for employment, any person who customarily and repeatedly offers himself for employment for the duration of a strike or lockout in place of employees involved in a strike or lockout."
From just a cursory reading it is obvious that this ordinance does not pretend to obliterate the general common law which gives an employer the right to replace a striking employee. It injects prohibition into just a very narrow niche. Essentially two things must exist in order to make up the prohibited act, namely:
(1) The employer must willfully and knowingly employ or contract or arrange for the recruitment or procuring for employment of
(2) A person who customarily and repeatedly offers himself for employment for the duration of a strike or lockout in place of employees involved in a strike or lockout.
The hospital does not deny that some of its striking employees have been replaced, but such mere replacement does not outrage the ordinance any more than it does the common law. To save space, the court will not parade the voluminous evidence on this point, but plaintiff's clincher evidence is woefully lacking. Particularly has it failed to show any willfulness and knowledge, or to produce a single person who fits the "customarily and repeatedly" shoe.
Since the plaintiff has shown no clear right either under the common law or ordinance (in fact the clarity is in reverse gear) to stop the hospital from employing replacements, this court has no other course but to deny an injunction on the replacement issue.
Now we face the second issue — if the hospital does not voluntarily wish to bargain collectively with the union, can a court compel it to do so — and we face it in the light of the rule book requirement that the plaintiff union must show a clear duty on the part of the hospital to bargain collectively when the plaintiff requests it.
Once again we have cast a dragnet and, even with the aid of counsel, have failed to net from the vast sea of labor law in Ohio or elsewhere, a single, reported case at common law (apart from, and prior to, some constitutional or statutory provision) in which, where the issue was raised, any court ever "held" that any employer was under a duty, or could be compelled, to bargain collectively if he did not voluntarily wish to do so.
Sometimes we enjoy the benefits of a statute for so long that we begin to think that those benefits always existed, and we forget that they didn't really exist prior to the special statute which created them. That may be the stiuation here.
Today the duty of an employer, who is subject to The National Labor Relations Act, to bargain collectively seems so much a part of our way of life that we tend to forget that that duty was expressly placed upon the employer by a special statute, namely, the above Act. (49 Statutes at Large, Part 1, p. 453; 29 U.S. Code Section 158.) This Act was passed more than 30 years ago in 1935. That it was this statute that lowered the compulsive boom upon the employer was recognized by the United States Supreme Court when it said ( N. L. R. B. v. Sands Mfg. Co., 306 U.S. 332, 342):
"The legislative history of the Act goes far to indicate that the purpose of the statute was to compel employers to bargain collectively with their employees to the end that employment contracts binding on both parties should be made."
In N. L. R. B. v. Wooster Div., B-W Corp., 356 U.S. 342, Syl. a., 349, the court said that the provisions of the Act " establish the obligation of the employer and the representative of its employees to bargain with each other in good faith * * *."
Significantly, the court pointed out that the statutory duty to bargain related to specific things named in the Act and that (349)
"As to other matters * * * each party is free to bargain or not to bargain, and to agree or not to agree."
In N. L. R. B. v. Jones Laughlin Steel Corp., 301 U.S. 1, the court gave some insight into the novel aspects of the Act when it said (48):
"The instant case is not a suit at common law or in the nature of such a suit. The proceeding is one unknown to the common law. It is a statutory proceeding."
True, in Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 263, the court indicated, as it had already observed in National Labor Relations Board v. Jones Laughlin Steel Corp., supra, at page 33, that the rights of self-organization and collective bargaining were fundamental rights of employees which existed prior to, and were independent of, the National Labor Relations Act. 31 American Jurisprudence, Labor, 403-04, Section 22. However, neither of those cases holds, and the Supreme Court carefully avoided saying, that the pre-existing rights of employees to organize and to bargain collectively included the correlative, pre-existing duty on the part of the employer to bargain collectively if he did not wish to do so. The most that the Supreme Court was saying is that, even before the Act, employees had the fundamental right, which had been disputed in some circles, of organizing for the purpose of endeavoring to engage in collective bargaining.
We must remember that our case is not governed by the provision of the National Labor Relations Act which imposes a duty on employers to bargain collectively, because, after the Act had been in existence over 10 years, and after nonprofit hospitals had been held to be subject to the Act ( N.L.R.B. v. Central Dispensary Emergency Hosp., 145 F.2d 852, cert. den. 324 U.S. 845), Congress, in 1947, amended the Act and expressly excluded nonprofit hospitals from its operation. (61 Statutes at Large, Part 1, p. 137; 29 U.S. Code, Section 152[2].) Consequently this case is governed strictly by the law of Ohio. Utah Labor Relations Board v. Utah Valley Hospital, 120 Utah 463, Syl. 5.
We must remember, too, that generally in the field of labor relations Ohio is a common-law jurisdiction, and that we have no comprehensive labor relations act as do the federal and some state governments. There is not a word in Ohio's common-law rule book that says an employer must, against his will, bargain collectively. Other jurisdictions have expressly recognized this to be the common law. Hamer v. Nashawena, 315 Mass. 160, 164; Tate v. Phila. Transportation Co., 410 Pa. 490, Syl. 4, 499; Quinn v. Buchanan, 398 S.W.2d (Mo.) 413, Syl. 16, 420; Petri Cleaners, Inc., v. Automotive Employees etc., 53 Cal.2d 455, Syl. 7, 9 10, pp. 469, 471, 472, 474-5; Quill v. Eisenhower, 113 N.Y.S.2d 887, Syl. 2, 888-89; Erie County Water Authority v. Kramer, 143 N.Y.S.2d 379, 382-83; Brooklyn Hebrew Home etc. v. Ottley, 205 N.Y.S.2d 397, 400; In the Matter of Trustees of Columbia University v. Herzog, 295 N. Y. 605.
It is indicative, as held in some of the above cases, that where a state has a labor relations act which imposes the duty of collective bargaining, but the act expressly exempts from its operations certain types of employers, such as charitable corporations, then the particular labor relation status is relegated to the common law and the exempt employer is under no duty to bargain collectively.
Plaintiff points to Article I, Section 16 of Ohio's Constitution as supporting its position. This provides:
"All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have a remedy by due course of law, and shall have justice administered without denial or delay."
The signal expression there is "injury done." If the law recognized that an employer's refusal to bargain collectively was an "injury done" to his employees, this court would enforce this constitutional provision instantly, but nowhere in Ohio's common-law rule book does it say that such refusal constitutes a wrong or an injury. Such a constitutional provision refers to wrongs that are recognized by law. Quinn v. Buchanan, supra, at page 417; 11 American Jurisprudence 1124, Section 326.
Another stance advanced by plaintiff is that the duty to bargain collectively has support in Section 4113.02, Revised Code, which reads:
" Every undertaking or promise, whether written or oral, express or implied, constituting, or contained in, any contract or agreement of hiring or employment between any individual, firm, association, or corporation, and any employee or prospective employee of the same, whereby either party to such contract or agreement undertakes or promises not to join, become, or remain a member of any labor organization or of any organization of employers, or either party to such contract or agreement undertakes or promises that he will withdraw from the employment relation in the event that he joins, becomes, or remains a member of any labor organization or of any organization of employers, is contrary to public policy and void." (Emphasis added.)
We have found no case in Ohio or elsewhere which firms up this contention. In fact, all the authority we've found holds just the opposite. Miami Water Works Local No. 654 v. City of Miami, 157 Fla. 445, Syl. 8, 452; Flenoy v. Yarborough, 318 S.W.2d (T. C. A.) 15; Petri Cleaners, Inc., v. Automotive Employees etc., supra, Syl. 7, 470-71.
The purpose of this statute is to outlaw the so-called "yellow dog" contract by which either party agrees not to join or remain in an employee or employer organization. 33 Ohio Jurisprudence 2d 136, Section 22. Neither by express terms nor by thinnest implication does it command that either an employee or an employer must bargain collectively.
Finally, in order to prop up its position, plaintiff cites the recent case of Youngstown Osteopathic Hospital Assn. v. Local Union 47, Building Service And Maintenance Workers Union, 11 Ohio Misc. 215, case No. 181,098, decided on January 9, 1967 by the Mahoning County, Ohio, Common Pleas Court, * * *. From that opinion and the journal entry and parts of briefs which have been brought to our attention, it is apparent that that case did not have as an issue and did not decide the question that is now before this court — namely, can an Ohio employer be compelled under the common law involuntarily to bargain collectively? In the Youngstown case the hospital chose voluntarily to bargain with its employees, but, in carrying out this voluntary intention, it encouraged, formed, financed and dealt with a company-dominated union so as to thwart the employees' desire to bargain through representatives of their own choosing. That is what drew the court's ire. Coincidentally, the Union in that case was the same distinguished Union involved in our case, and its brief in the Youngstown case winnowed out the real issue there when it stated that the
"* * * Hospital does not question the basic right of its employees to organize and bargain collectively, but rather alleges that its employees choose to organize and belong to a different association. * * * But, as the evidence will show, it seeks to circumvent and nullify these rights by creating its own employee association and designating its own creation as the bargaining agent for its employees."
That case is now pending in the Court of Appeals (No. 4719), and once again the Union's brief sifted the real issue when it stated to the higher court:
"The root of the dispute in this litigation can be simply stated: Which organization do the employees of the hospital wish to select as their bargaining agent, the Company-dominated employees Association or the Union?"
Neither on its facts nor in any buttressed discussion of the law is the Youngstown case helpful on our distinguishable problem.
Because the plaintiff has failed to show a clear right to compel the hospital involuntarily to bargain collectively with it, this court is duty-bound to deny an injunction compelling it to do so.
So that there can be no mistake, we wish to make it clear that in this case certain things have not been challenged by the hospital and are not at issue, particularly the striking, peaceful picketing and the hospital's employees, through a union of their own choosing, applying economic pressures against the hospital in order to persuade the hospital to recognize the union and to engage in collective bargaining.
Now that the court has rendered its decision, perhaps the writer would be justified in stepping out of his robe and making a few observations as a member of a community that is exercised by a serious community impasse. Sincere people, even clergymen, are lined up on each side of this controversy. It is hoped that the court's opinion will be helpful at least as a starting point in letting the community know what the law is on the issues raised and why. You can't come to grips with a situation if you don't know what the situation is.
The court's decision does not solve the many basic problems. It would not have solved them had the decision gone either way; besides, most were not at issue here. But, in good conscience, the writer, who took an oath, had to face the fact that he was elected a judge and not a legislator. The basic problems are many and they are for the Legislature.
It has been said that if the law gives hospital employees the right to organize for the purpose of bargaining collectively, but without placing a corresponding duty on the hospital to recognize and deal with the employees' union, the very gap invites labor conflict. The United States Supreme Court has said that "refusal to confer and negotiate has been one of the most prolific causes of strife." N. L. R. B. v. Jones Laughlin Steel Corp., 301 U.S. 1, 42.
The Legislature's job is not an easy one. Each side has talking points and problems. Many basic questions have to be considered. We list just a few. Is a hospital employer different from an industrial employer? Are their labor problems different? Should the law treat them differently? Should hospital employees be given the right to compel a hospital to bargain collectively? Must a hospital, whose functioning may determine whether you or I shall live or die or be a permanently disabled invalid — must its functioning be subjected to the hazard and whims of economic warfare? Should the right to strike or picket a hospital be limited or eliminated, and arbitration substituted? Should the law provide a cooling-off period, or for governmental seizure at a certain point? How far should hospital employees be allowed to go in disrupting, crippling or completely shutting down one hospital or all the hospitals in a community where people are constantly being admitted whose very lives, because of an accident, a stroke, a heart attack, or the birth of a child, are dependent upon the best, instant, hospital care? Who, for lack of adequate prompt service, must be consigned to die before state and community leaders tackle and resolve these problems? Theoretically, the victim could be the president of the United States, or of the C. I. O., or of The American Medical Association, or of Republic Steel, or an editor, or a Cardinal or Bishop, or Rev. Martin Luther King, or the child of a striker, or you. Should hospital executives alone have full, unquestioned consideration over wages and working conditions? Suppose some executives are arbitrary and autocratic as some might be on the law of averages? Should the helpless employee have no recourse but to lose his job? Should humble hospital employees who ordinarily are not gifted in, or used to, bargaining individually for themselves with experts, have the right to hire a professional who is gifted and experienced to speak for them, just as the ordinary citizen who is not capable of speaking for himself in court hires a trained professional, a lawyer, to speak for him there?
These and other basic problems have received much discussion. For the hospital's viewpoint, we refer to the following authorities: 9 Buffalo Law Review 255, article, "The Nonprofit Hospital And The Union"; St. Luke's Hospital v. Labor Relations Comm., 320 Mass. 467, 471-72; Western Penn. Hosp. v. Lichliter, 340 Pa. 382, 389; Jewish Hosp. Of Brooklyn v. Doe, 300 N. Y. S. 1111, 1116; St. Luke's Hosp. v. Ind. Comm., 142 Colo. 28, 33-37.
For the employees' standpoint we refer to these authorities: 9 Buffalo Law Review 255, id. article; 8 Cleveland-Marshall Law Review 48, article, "Non-Profit Hospitals and Labor Unions"; Utah Labor Relations Board v. Utah Valley Hosp., 120 Utah 463, 472-73; Northwestern Hosp. of Minneapolis v. Public Bldg. Service Union, 208 Minn. 389, 394; Wisconsin Employment Relations Board v. Evangelical Deaconess Society of Wisconsin, 242 Wis. 78, 81-82; N. L. R. B. v. Central Dispensary Emergency Hosp., 145 F.2d 852, 853, cert. den. 324 U.S. 847.
As has been pointed out in the hospital's brief, pages 8 to 12, 63 to 67, and in Petri Cleaners, Inc., v. Automotive Employees etc., 53 Cal.2d 455, 472-74 (which we advise legislators and community leaders to read) a mere legislative fiat that a hospital must bargain collectively would not alone begin to solve the myriad problems that are entailed in collective bargaining, and for the handling of which The National Labor Relations Act and other state acts have provided special, detailed guidelines and appropriate administrative machinery which we do not now have in Ohio.
Other states have handled these hospital problems in various ways. For a review of what they have done, we refer legislators and community leaders to the following: 9 Buffalo Law Review 255, id. article; 8 Cleveland-Marshall Law Review, 48, id. article; Johnson v. Christ Hospital, 45 N. J. 108 (see footnotes on pages 111-113).
If we have sensed the litigants correctly, neither side would be adverse to legislation that, with due safeguards for both hospital and employees, provided adequate guidelines and machinery. Other legislatures have found solutions. Why not Ohio?