National Protective Ass'n of Steam Fitters & Helpers v. Cumming

63 N.E. 369, 170 N.Y. 315, 1902 N.Y. LEXIS 1065

• Court: New York Court of Appeals
• Decided: April 1, 1902
• Status: Published

Opinions

Parker, Ch. J.

The order of the Appellate Division should be affirmed, on the ground, that the facts found do not support the judgment of the Special Term. In the discussion of that proposition I shall assume that certain principles of law laid down in the opinion of Judge Vann are correct, namely :

“ It is not the duty of one man to work for another unless he has agreed to, and if he' has so agreed hut for no fixed period, either may end the contract whenever he chooses.' The one ' may work, of refuse to work, at will, and the other may hire or discharge at will. The terms of employment are subject to mutual agreement, without let or hindrance 'from any one. If the terms do not suit, or the employer does not please, the right to quit is absolute, and no one may demand a reason therefor. Whatever one man may do alone, he may do in combination with others, provided they have no unlawful object in view. Mere numbers do not ordinarily affect the quality of the act. Workingmen have the right to organize for the purpose of securing higher wages, shorter hours of labor or improving their relations with their employers. They have the right to strike; that is, to cease working in a body by pre-arrangement until a grievance is redressed, provided the object is not to gratify malice or inflict injury upon others, but to secure better terms of employment for themselves. A peaceable, and orderly strike, not to harm others, but to improve their own condition, is not in violation of law.”

Stated in other words, the propositions quoted recognize the right of one man to refuse to work for another on any ground that he may regard as sufficient, and the employer has no right to demand a reason for it. But there is, I take it, no legal objection to the employee’s giving a reason, if he has one, and the fact that the reason given is, that he refuses to work with another who is not a member of his organization, whether stated to his employer or not,, does not affect his right to stop work nor does it give a cause of action to the workman to whom he objects because the employer sees tit to discharge the man objected to rather than lose the services of the objector.

.The same rule applies to a body of men who, having organized for purposes deemed beneficial to themselves, refuse to work. Their reasons may seem inadequate to others, but if it seems to be in their interest as members" of an organization to refuse longer to work, it is their legal right to stop. The reason may no more be denianded, as a right, of the organization than of an individual, but if they elect to state the reason their right to stop work is not cut off because the reason seems inadequate or selfish to the employer or to organized society. And if the conduct of the members of an organization is legal ift itself, it does not become illegal because the organization directs one of its members to state the reason for its conduct.

The principles cpioted above recognize the legal right of members of an organization to strike, that is, to cease working in a body by pre-arrangement until a grievance is redressed, and they enumerate some things that may be treated as the subject of a grievance, namely, the desire to obtain higher wages, shorter hours of labor or improved relations with their employers, but this enumeration does not, I take it, purport to cover all the grounds which will lawfully justify members of an organization refusing, in a body and by prearrangement, to work. The enumeration is illustrative rather than comprehensive, for the object of such an organization is to benefit all its members and it is their right to strike, if need J be, in order to secure any lawful-benefit to the several members of the organization as, for instance, to secure the re-employment of a member they regard as having been improperly discharged, and to secure from an employer of a number of them employment for other members of their organization who may be out of employment, although the effect will be to cause the discharge of other employees who are not members.

And whenever the courts can see that a refusal of members of an organization to work with non-members may be in the interest of the several members, it will not assume, in the absence of a finding to the contrary, that the object of. such refusal was solely to gratify malice and to inflict injury upon such non-members.

A number of reasons for the action' of the organization will at once suggest themselves in a case like this. One reason apparent from the findings in this case, as I shall show later, is the desire of the organization that its own members may do the work the non-members are performing. And another most important reason is suggested by the fact that these particular organizations, associations of steam fitters, required every applicant for membership to pass an examination testing his competency. Now, one of the objections sometimes urged against labor organizations is that unskillful workmen receive as large compensation as those thoroughly competent. The examination required by the defendant associations tends to do away with the force of that objection as to them. And again, their restriction of membership to those who have stood a prescribed test must have the effect of securing careful as well as skillful associates in their work, and that is a, matter of no small importance in view of the state of the law, wdiich absolves the master from liability for injuries sustained by a workman through the carelessness of a co-emplovee. So long as the law compels the employee to bear the burden of the injury in such cases.it cannot be open to question but that a legitimate and necessary object of societies like the defendant associations would be to assure the lives and limbs of their members against the negligent acts of a reckless co employee, and, hence, it is clearly within the right of an organization to provide such a method of examination and such tests as will secure a careful and competent membership, and to insist that protection of life and limb requires that they shall not be compelled to work with men whom they have not seen fit to admit into their organization, as happened in the case of the plaintiff McQueed.

AYliile I purpose to take the broader ground, which I deem fully justified by the principles quoted, as well as the authorities, that the defendants had the right to strike for any reason they deemed a just one, and further, had die right to notify their employer of their purpose to strike, I am unable to see how it is possible to deny the right of these defendant organizations and their members to refuse to work with non-members, when, in the event of injury by the carelessness of such co-employees, the burden would have to be borne by the injured, without compensation from the employer and with no financial responsibility, as a general rule, on the part of those causing the injury; for it is well known that some men, even in the presence of danger, are perfectly reckless of themselves and careless of .the rights of others, with the result that accidents are occurring almost constantly which snuff out the lives of workmen as if they were candles, or leave them to struggle through life maimed and helpless. These Careless, reckless men are known to their associates, who not only have the right to protect themselves from such men, but, in the present state of the law, it is their duty, through their organizations, to attenrpt to do it, as to the trades affording special opportunities for mischief arising from recklessness.

I know it is said in another opinion in this.case that “ work, men cannot dictate to employers how they shall carry on their business, nor whom they shall or shall not employ ; ” but I dissent absolutely from that proposition, and assert that, so long as workmen must assume all the risk of injury that may come to them through the carelessness of co-employees, tjiey have the moral and legal right to say that they will not work with certain men, and the employer must accept their dictation or go without their services.

If it be true, as was recently intimated by the Supreme Court of Pennsylvania in Durkin v. Kingston Coal Co. (171 Pa. St. 193), that an act of the legislature which undertakes to “ reverse the settled law upon the subject arid declare that the employer shall be responsible for an injury to. an employee resulting from the negligence of a fellow-workman ” is unconstitutional — a doctrine from which I dissent (see Tullis v. L. Erie & W. R. R. Co., 175 U. S. 348), but which it is possible may receive the support of the courts — then the only opportunity for protection, in the future as well as the present, to workmen engaged in dangerous occupations is through organizations like these defendant associations, which restrict their memberships to careful and skillful men, and prohibit their members from working with members of other organizations which maintain a lower standard or none at all. For the master’s duty is discharged if the workman be competent, and for his recklessness, which renders his employment a menace to others, the master is not responsible.

But I shall not further pursue this subject. My object in alluding to it is to emphasize the fact -that there are other purposes for which labor organizations can be effectually used than those quoted above; and also, because it is fairly infer-able from the facts found that the members of plaintiff association were objectionable to defendants because not up to the latter’s standards, so as to make them eligible for membership. in defendant organizations and that this was the motive for defendants’ acts in holding a strike and notifying their employer, of their intention to do so. But whether this be so or not, when it can be seen from the facts found that such or other motives of advantage to themselves may have prompted defendants’ action, a court which can review only upon the law, certainly will not presume that another and an unlawful motive and one not stated in the findings of fact, prompted the action of the organization and its members; in other words, this court cannot import into the findings of fact a fact that is not therein expressed. This is not a case of unanimous affirmance, but one of reversal, and under section 1338 of the Code of Civil Procedure we are to assume that the Appellate Division intended to affirm the facts as found by the trial court, and having so affirmed them it then reversed because they were insufficient in law to support the judgment. It is our duty, therefore, if we discover that the facts as actually found are insufficient to support the conclusion of law, to sustain the action of the 'Appellate Division in reversing the judgment. (Nat. Harrow Co. v. Bement & Sons, 163 N. Y. 505, and cases cited.)

In Bowen v. Matheson (14 Allen, 499) the court had before it on demurrer a declaration in an action where the defendants’ business liad been practically broken up, and it said: “ In order to be good the declaration must allege against the defendants the commission of illegal acts. Its allegations must be analyzed to ascertain whether they contain a sufficient statement of such acts.” This was followed bv an interesting analysis which resulted in disclosing that no illegal act was alleged notwithstanding the liberal use of such extravagant words and phrases as “ maliciously conspiring together,” and “ fellow-conspirators as aforesaid in pursuance of their conspiracy as aforesaid,” whereupon the demurrer was sustained and a precedent created which should be followed in this case.

Now, before taking up the findings of "fact for analysis in the light of the principles quoted above, as was done in Bowen's case, and with the view of showing that they do not sustain the judgment of the Special Term, I wish to again call attention to the rules quoted, and particularly to so much of them as intimates that if the motive be unlawful or be not for the good of the organization or some of its members, but ’ prompted wholly by malice aiid a desire to injure others, then- ’ an act, which would be otherwise legal, becomes unlawful. ' To state it concretely, if an organization strikes to help its members, the strike is lawful. If its, purpose be merely to injure non-members, it is unlawful. If the organization noth fies the employer that-its members will not work with nonmembers, and its real object is to benefit the organization and secure emqiloyment for its members, it is lawful. If its sole purpose he to' prevent non-members working, then it is unlawful. I do not assent to this proposition, although there is authority for it. It seems to me illogical and little short ofil absurd to say that the every-day acts of the business world, I apparently within the domain of competition, may be either I lawful or unlawful according to the motive of the actor. If tliePJ motive be good, the act is lawful; if it be bad, the act is unlawful. Within all the authorities upholding the principle of com- . petition, if the motive be to destroy another’s business in order to secure business for yourself, the motive is good; but, according to a few recent authorities, if you do not need the business, or do not -wish it, then the motive is had ; and some court may say to a jury, who arc generally the triers of fact, that a given act of competition which destroyed A’s business was legal if «- the act was prompted by a desire on the part of the defend- f; ant to secure to himself the benefit of it, but illegal if its V purpose was to destroy A’s business in revenge for an insult 1 given.

But for the purpose of this discussion I shall assume this . proposition to be sound, for it is clear to me that, applying that rule to the facts found, it will appear that the Appellate Division order should be sustained.

While I shall' consider every fact found by the learned trial judge I shall consider the findings in a different order, ■ because it seems to me the more logical order. He finds “ that the defendants Gumming and Nugent, while acting in their capacity ■ of walking delegates for their respective associations and members of the Board of Delegates, caused the plaintiff McQueed and other members of the plaintiff association to be discharged by their employers from various pieces of work upon" buildings in the course of erection, * * * by threatening the * "x" employers that if they did not discharge the members of tile -plaintiff association and employ the members of the Enterprise and Progress associations in their stead, the said walking delegates would cause a general strike of all men of other trades employed on said buildings, and that the defendant Gumming, as such walking delegate, did cause strikes, "x" * * in order to prevent the members of the plaintiff association from continuing with the work théy were doing at the time the strike was ordered, and that said employers by reason of said threats and the acts of the defendants Gumming and Nugent, discharged the members of the plaintiff association and employed the members of the Enterprise and Progress associations in their stead.”

Now there is not a fact stated in that finding which is not lawful within the rules which I have quoted supra. Those principles concede the right of an association to strike in order to benefit its members; and one method of benefiting them is to secure them employment, a method conceded to be within the right of an organization to employ. There is no pretense that the defendant associations or their walking delegates had any other motive than one which the law justifies of attempting to benefit their members by securing their employment. Nowhere throughout that finding will be found even a hint that a strike was ordered or a notification given of the intention to order a strike for the purpose of accomplishing any other result than that of securing the discharge of the mem bers of the plaintiff association and the substitution of members of the defendant associations in their place. Such a purpose is not illegal within the rules laid down in the'opinion'of., Judge Vann, nor within the authorities cited therein ; án the . contrary, such a mptive is conceded to be a legal one. It is only where"the sole purpose is to do injury to another, or the act is prompted by malice, that it is insisted that,the act becomes-illegal. Eo such motive is alleged in that finding./ It is not hinted at. On the contrary, the motive which always under! lies competition is asserted to have been the animating-mile. , It is beyond the right and the power of this court 'to' in^iorf j into that finding, in contradiction of another finding Or other! wise, the further finding that the motive which prompted the conduct of defendants was an unlawful one, prompted by' malice and a desire to do injury to plaintiffs without benefiting the members of the defendant associations.

I doubt if it wonld ever have occurred to any one to claim that there was anything in. that finding importing a different motive from that specially alleged in the finding, had not the draftsman characterized the notice given to the employers by the associations of their intention to strike as “ threats.”

The defendant associations, as appears from the finding . quoted, wanted to put .their men in the place of certain men- ■ at work who were non-members working "for smaller pay, and they set- about doing it in a perfectly lawful way. Théy." - determined' that if it were necessary they would bear the burden and expense of a strike to accomplish that result; and v in iso determining they were clearly within their rights, as all . ■ agree.. They could have gone upon a strike without offering ' any explanation until the contractors shofild have come in dis tress to the officers of the associations asking the reason for the strike. ■ Then,- after explanations,' the non-members would ' have been discharged and the men of defendant associations sent back to work. Instead of taking that course, they chose to inform the -contractors of their determination and the - ■ reason for it.

It is the giving of this information, a simple notification of their determination, which it was right and proper and reasonable to give, that has been characterized as “ threats ” by the Special Term, and which has led to no inconsiderable amount of misunderstanding since. But'the sense in which the word was employed by the court is of no consequence, for the defendant associations had the absolute right to threaten to do that which -they’ had the. right to do. Having the right to insist that plaintiff’s men be discharged and defendants’ men .put in tlieir place if the services of the other members of the organization were to be retained, they also had the right to threaten that none of .tlieir men would stay unless their mem-/-, hers could- have all the work there was to do.

The findings further stated that the defendants Gumming ' and Hugent were the walking delegates of the defendant associations and as such were members of the board of delegates of the building trades in Hew York and were, therefore, in control of the matters in their respective trades. The trial court also foundthat the defendant Gumming threatened to cause a general strike against the plaintiff association and against the plaintiff McQueed wherever he found them at work, and that he would not allow them to work at any job in the city of Hew York, excep’t some small jobs where the men of the Enterprise Association were not employed, and that he and the defendant Hugent threatened to drive the plaintiff association out of existence.” . •

How this finding should be read in connection with, and in ■the light of, the other findings which -I have already reayl and commented on and which show that the purpose of the' strike was to secure the employment of members of the defendant associations in the places filled by the members of plaintiff’s association, who were willing to work for smaller wages, á perfectly proper and legitimate motive, as we have seen. . But if the other findings be driven" from the mind while considering this one^ which the opinions of the Appellate' Division indicate was .not justified by the evidence, it-will be found that it fairly means no more than that the defendant assóciartions did not purpose to allow McQueed and the -members of his association to work upon any jobs where members of defendant associations were employed; that they were perfectly willing to allow them to have small jobs, fitted perhaps for men who were willing to work for small wages, but that the larger jobs where they could afford to pay, and would pay the rate of wages demanded by defendant associations, .they intended to secure for their members alone — a determination to which they had a perfect right to come, as is conceded by the rules which I have quoted.

Having reached that conclusion, defendants notified McQueed, who had organized an association when he failed to pass the defendants’ examination, that they would prevent him and the men of his association from working on a certain class of jobs. They did not threaten to employ any illegal method to accomplish that result; they notified them of the purpose of the defendants to secure this work for themselves and to prevent McQueed and his associates from getting it, and in doing that they but informed them of their intention to -do what they had a right to do, and when a man purposes to do something which he has the legal right to do, there is no law which prevents ,liim from telling another, who will be affected by his act, of. his intention.

A man has a right under the law to start a store and to sell at such reduced prices that he is able in a short time to drive the other storekeepers in his vicinity out of business, when, having possession of the trade, he finds himself soon able to recover the loss sustained while ruining the others. Such has been the law for centuries. The reason, of course, is 'that the doctrine has generally been accepted that free competition is worth more to society than it costs, and that, on this "ground^ the infliction of damages is. privileged. (Commonwealth v. Hunt, 4 Metcalf,. 111, 134.) .

Mor could this storekeeper be. prevented'from carrying out his scheme because, instead of hiding his purpose, he openly declared to those storekeepers that he intended to drive them out of business in order that he might later profit thereby. Mor would it avail such storekeepers, in the event of their bringing an action to restrain him from accomplishing their rniu by underselling them,- to persuade the trial court to characterize the notification as a “ threat,” for on review the answer would be : A man may threaten to do that which the law says he may do, provided that, within the rules laid down in those cases, his motive is to help himself.

A labdr organization is endowed with precisely the same legal right as is an individual to threaten to do that which it. may lawfully do.

Having finished the discussion of the facts, I reiterate that, within the rules of law I have quoted, it must appear, in order to make out a cause of action against these defendants, that in what they did they were actuated by improper motives, by a malicious desire to injure the plaintiffs. There is no such finding of fact, and there is no right in this court to infer it, if it would, and from the other facts found, it is plain that it should not, if it could.

The findings conclude with a sentence which commences as follows: “ I find that the threats made by the defendants and the acts of the said walking delegate's in causing ine discharge of the members of the plaintiff association by means of threats of a general strike of other workmen, constituted an illegal combination and conspiracy.” — That is not a finding of fact, but a conclusion of law that the trial court erroneously, as I think, attempted to draw from the facts found, which I have already discussed, and which clearly, in my judgment, require this court to hold that <--he defendants acted within their legal rights.

In the lase analysis of the findings, therefore, it appears that they declare that members of the organizations refused to work any longer (as they lawfully might); that they threatened to strike (which was also within their lawful right), but witho'ut any suggestion whatever in the findings that they threatened an illegal or unlawful act. And such findings are claimed to be sufficient to uphold a judgment that absolutely enjoins the defendant associations and their members from striking. This is certainly a long step in advance of any decision brought to my attention.

I have refrained from discussing the authorities because it seemed unnecessary, for the reason already stated in this opinion. • But it seems not out of place to suggest that the decisions of the English courts upon questions affecting the rights of workmen ought, at least, to be received with caution, in view of the fact that the later ones are largely supported by early precedents which were entirely consistent with the policy of the statute law of England, but are hostile not only to the statute law of this country, but to the spirit of our institutions. In support of this view reference to a few early statutes of England will he made.

The statutes (for there are two) of Labourers, passed in 1349 and 1350 (23 Edw. Ill, and 25 Edw. Ill, st. 1) provided: “ that every man and woman of what condition he he, free or bond, able in body, and within the age of three score years,” and not having means of his own, “ if he in convenient service (his estate considered) be required to serve, he shall be bounden to serve him which so shall him require.” And the statutes provide that in case of refusal to serve, punishment by imprisonment might be inflicted, and that the laborer should take the customary rate of wages and no more. These statutes not only regulated the wages of laborers and mechanics, but they confined them to their existing places of residence and required them to swear to obey the provisions of the statutes. Sir James Fitz james Stephen, in his History of the Criminal Law of England (Yol. Ill, page 204), says, “ the main object of these statutes was to check the rise in wages consequent upon the great pestilence,called the black death.”

Mearly 200 years later, and in 1548, a more general statute was passed which forbade all conspiracies and covenants of artificers, workmen or laborers, “ not to make or do their work but at a certain price or rate,” or for other similar pur-, poses, under the penalty, on a third conviction, of the pillory and loss of an ear, and to.“be taken as a man ‘infamous.’” (2 & 3 Edw. YI, c. 15.)

Fourteen years later the prior statutes were to some extent amended and consolidated into a longer act, entitled “ An Act containing divers orders for artificers, laborers, servants of husbandry, and apprentices.” It provided, in effect, that all persons able to work as laborers or artificers and not possessed of independent means or other employments, are bound to work as artificers or laborers on demand. The hours of work are fixed ; power is given to the justices in their next session after Easter to fix the wages to be paid to mechanics and laborers; elaborate rules are laid down as to apprenticeship, and it further provides that for the future no one is to “ set up, occupy, use or exercise any craft, mystery or occupation now used ” until he has served an apprenticeship of seven years. (5 Eliz. c. 4.) This statute remained in force practically for a long period of time and was not formally repealed until the year 1875.

In the year 1720 an act was passed declaring all agreements between journeymen tailors “ for advancing their wages, or for lessening their usual hours of work ” to be null and void, and subjecting persons entering into such an agreement to imprisonment with or without hard labor for two months. (7 Geo. I, st. 1, c. 13.) Similar enactments were passed sis to employees in other manufactures and trades.

The act of 1800 (40 Geo. Ill, c. 60) provided for a penalty of three months imprisonment without hard labor or two months with hard labor for every journeyman, workman or other person who “ enters into any combination to obtain an advance of wages, or lessen or alter the hours of work * * * or who hinders any employer from employing any person as he thinks proper, or who being hired refuses without any just or reasonable cause to work with any other journeyman or workman employed or hired to work.” The same penalty is inflicted upon persons who attend meetings held for the purpose of collecting money to further such effort, and the act also makes it an offense to assist in maintaining men who are on strike. This statute, as well as the others referred to, have at last been swept away, but necessarily their influence has been not inconsiderable in shaping the decisions of the courts of England.

The order should be affirmed and judgment absolute ordered for. defendants on the plaintiffs’ stipulation, with costs.