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

53 A.D. 227, 65 N.Y.S. 946, 1900 N.Y. App. Div. LEXIS 1902

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1900
• Status: Published

Opinions

McLaughlin, J.:

This action was brought to procure a judgment perpetually-enjoining and restraining the defendants and each of them, their officers, members and agents, from in anywise interfering with or in any manner hindering or harassing the work or employment of the plaintiff McQueed, or any members of the plaintiff corporation, and from coercing or obtaining by threats, commands, strikes or otherwise the dismissal or discharge of such persons, or from in anywise interfering with the business of the plaintiff or any of its members. The complaint, in substance, charged that the plaintiff association is a corporation organized under the laws of the State of New York, for the purpose of supplying steam fitters and helpers ; that McQueed is the president, and instituted the action in behalf of himself and all other members of the association; that the defendant O’Brien is the president of a hoard of delegates, an unincorporated association composed of delegates of various labor organizations; that the defendant Duff is the treasurer, and the defendant Gumming, the walking delegate of the defendant Enterprise Association, an unincorporated association composed of steam fitters; that the defendant Mullaney is the treasurer, and the defendant Nugent is the walking delegate of the Progress Association, an unincorporated association composed of ■ steam fitters’ helpers; that the members of both the Enterprise and Progress associations are “ banded together chiefly to secure employ-' rnent in said trade or. work for their members and to prevent other persons of the same trade, not members of the said associations, from procuring or retaining such employment, and the officials of said associations usually charged therewith are the said walking.delegates, and they, together with all the other like delegates duly elected from other trades unions and labor organizations, make up the said Board of Delegates; ” that the defendants Gumming and Nugent, as such walking delegates, are empowered by their respective associations to visit buildings in the course of erection wherein steam fitting and steam work are being done, and to ascertain if any persons are engaged on such work who are not members of their respective associations, and if they find such persons are engaged, then, in their discretion, to demand that such persons be discharged by their employers; that the by-laws, rules and regulations of such associations and of the other labor organizations whose representatives act with them and compose the board of delegates, require that the members of such organizations give prompt and implicit obedience to the demands of the walking delegates; that on or about the 14th of February, 1898, certain members of the plaintiff corporation were employed by one William E. Roys in doing some work for him in the city of New York, and while they were thus employed the defendants Gumming and Nugent, acting for and representing their organizations, unlawfully conspired and combined with the other officers and members of the Enterprise and Progress associations and the other members of the board of delegates with the intent and for the purpose of injuring the plaintiff and its members and depriving them of their employment and business, and threatened that if said Roys did not discharge the members of the plaintiff, the members of the defendant organizations would order and compel the other laborers employed by him to strike and withdraw from the work in which they were engaged, and thereby hinder, delay and embarrass him by stopping work on iiis buildings then in the course of erection, to his great loss and damage, etc., and that by reason of such threats Roys did discharge the members of the plaintiff organization, to their great loss and damage. The complaint also contains similar allegations as to two other jobs, designated as the J. B. Smith job and the George A. Pratt job.

Gumming and the Enterprise Association, Nugent and the Progress Association, and O’Brien, as the president of the board of delegates, interposed separate answers, denying substantially all the material allegations of the complaint. The issue thus formed by the complaint and the respective answers came on for trial before the court at Special Term, where a decision was rendered awarding to the plaintiffs substantially all the relief demanded in the complaint. Judgment was thereafter entered in accordance with the decision, from which Gumming and the Enterprise Association and Nugent and the Progress Association have appealed.

It is unnecessary to consider the appeal taken by Nugent and the Progress Association, since no exception was taken by either of them to the decision of the court. The decision rendered was the one provided for in section 1022 of the Code of Civil Procedure, and inasmuch as no exception was taken to it as required by that section, this court has no power to review either the decision of the court or any of the exceptions taken upon the trial. (Goldstein v. Guedalia, 40 App. Div. 451; Van Vleck v. Ballou, Id. 489; Thompson v. Schwartz, 39 id. 658 ; Stiefel v. New York Novelty Co., 12 id. 266 ; Murphy v. Reddy, 19 id. 630.) The judgment, therefore, so far as it relates to the Progress Association and its walking delegate, must be affirmed, with costs. The defendant O’Brien did not appeal; therefore, the only question presented is the one raised by the appeal taken by the Enterprise Association and its walking delegate, Camming.

From the evidence offered upon the trial it appears that the object to be accomplished by the Enterprise Association is “to encourage a higher standard of skill in the craft, and provide the trade with a better class of workmen. To raise and keep up the standard of wages. To assist each other to secure employment. To reduce the houi-s of daily labor. To furnish aid in cases of death. And by all legal and proper means to advance and elevate the moral, intellectual, financial and social conditions of all members.” And the duty of the walking delegate is to see, among other things, that “ no member works with non-Union men; ” that before a person can become a member of the association he must first submit to and pass the examination required by the association and pay an admission fee; that the defendant Gumming when he first applied to become a member was subjected to this examination, which he failed to pass, and was refused admission, but subsequently succeeded in passing the examination, and thereupon became a member of the association; that the plaintiff McQueed sought to join said association, but was unable to pass the required examination, and he thereupon, in connection with others, organized the plaintiff association; that the Enterprise Association refused to permit its members to work upon any job where the members of the plaintiff were employed, and informed the employer in each instance that unless the members of the plaintiff were discharged its members would strike or, in other words, abandon the job, which they did, or threatened to do, in the three instances specified in the complaint; that they neither used force nor did anything tending to a breach of the peace, other than that included in its threat to order a strike or withdraw its members, as well as the members of the other associations allied with it, from the work on which they were engaged.

This is all that the evidence shows when it is carefully considered ; and the sole question presented is, whether or not such acts constitute in law a wrong for which the plaintiff and its members are entitled to the relief demanded, or any relief. It cannot be seriously questioned but that every workman has the right, in the first instance, to say for whom and with whom he will work. This right is guaranteed to every person of legal age and competent to contract, under •our laws. An employer has the absolute right to say whom he will employ, and the employee has the right to say by whom he will be employed and with whom he will work. The right is reciprocal, and once that right is destroyed, personal liberty is destroyed and chaos reigns. And if one has this right, acting in his individual capacity, he does not lose it when acting with others, clothed with an equal right, so that employers may combine and say they will not employ persons who are members of labor organizations, and laborers may combine and say they will not work for employers who engage any but members of labor organizations.

Hero the question, it is true, is not between the employed and "the employer, but between two rival labor organizations, but the principle which is sought to be invoked is the same as that which relates to and governs the relation between the employed on the one side and the employer on the other. As already indicated, the only complaint made against the Enterprise Association and its walking delegate, Gumming, as set out in this record, is that the members of that organization refused to work with the members of the plaintiff organization, and that they threatened to quit and abandon the work on which they were engaged, in each instance, unless the members of the plaintiff organization were discharged, and that by reason of that threat they were discharged and their places filled by members of the Enterprise Association.

It cannot, be questioned but that one may, by lawful means, obtain employment either for himself or another. He may procure the discharge, by lawful means, of another person in order that he may obtain employment, either for himself or another. This is all that the Enterprise Association did. It was seeking to obtain employment for its own members, and wherever it found places-filled by members of the plaintiff association it procured their discharge in order that the employment might be given to members of the Enterprise Association, and in case that was not done, they either withdrew or threatened to withdraw from the work. The case, therefore, is brought directly within the principle laid down in the celebrated case of Allen v. Flood (L. R. [1 App. Cas.] 1898, 1).

In Allen v. Flood (supra) the plaintiffs were shipwrights and members of a trades union called the Shipwrights’ Providence Union, and employed by the Glengall Iron Company upon the repairs of a certain ship. The Glengall Iron Company had also-engaged, for the iron work upon the ship, members of a trades-union called the United Society of Boiler Makers and Iron Shipbuilders. A dispute arose between the two labor associations as to the right of the shipwrights to do iron work, and the members of the boiler makers communicated with their organization, whereupon one of its representatives had an interview with the Glengall Iron Company and informed it that unless the members of the shipwright association were discharged the boiler makers would strike, that they would not work with the shipbuilders, and by means of such threat the iron company discharged the shipwrights, who brought an action to recover the damages sustained by reason thereof. They had a judgment, which was affirmed by the Court of Appeal, but reversed in the House of Lords, and during the course of the opinion delivered by Lord Watson he said : “ It is,' in my opinion, the absolute right of every workman to exercise his own option with regard to the persons in whose society he will agree or continue to work. It may be deplorable that feelings of rivalry between different associations of workingmen should ever run so high as to make members of one union seriously object to continue their labour in company with members of another trade union; but so long as they commit no legal wrong, and use no means which are illegal, they are at perfect liberty to act upon their own views.” And Lord Herschell, in delivering an opinion in the same case, after reviewing very many authorities bearing upon the subject, reached the same conclusion that Lord Watson reached, and said : “ I understood it to he admitted at the Bar, * * * that it would

have been perfectly lawful for all the iron workers to leave their employment and not to accept a subsequent engagement to work in the company of the plaintiffs. At all events, I cannot doubt that this would have been so. I cannot doubt, either, that the appellant or the authorities of the union would equally have acted within his or their rights if he or they had 1 called the men out.’ They were members of the union. It was for them to determine whether they would become so or not, and whether they would follow or not follow the instructions of its authorities, though no doubt, if they had refused to obey any instructions which, under the rules of the union, it was competent for the authorities to give, they might have lost the beneffts they derived from membership. * * * The members of these unions, of whichever class they are composed, act in the interest of their class. If they resort to unlawful acts, they may be indicted or sued. If they do not resort to unlawful acts, they are entitled to further their interests in the manner which seems to them best and most likely to be effectual. If, then, the men had ceased to work for the company, either of their own motion or because they were ‘ called out,’ and the company, in order to secure their return, had thought it expedient no longer to employ the plaintiffs, they could certainly have maintained no action. Vet the damage to them would have been just the same. The employers would have been subjected to precisely the same ‘ coercion ’ and ‘ intimidation,’ save that it was by act and not by prospect of the act; they would have yielded in precisely the same way to the pressure put upon them and been actuated by the same motive, and the aim of those who exercised the pressure would have been precisely the same. The only difference would have been the additional result that the company also might have suffered loss. I am quite unable to conceive how the plaintiffs can have a cause for action, because instead of the iron workers leaving, either of their own motion or because they were called out, there was an intimation beforehand that either the one or the other of these courses would be pursued. * * They had no ground for complaint if the men left, as they were by contract entitled to do, whether the men left of their own motion or followed the instruction of their union leaders. It is said that the company were in the power of the men, because of the business loss to which the withdrawal of the men would subject them. But to what was this due, if not to the act of the company themselves in employing these men under a contract which either party might any day determine? * * * The object which the appellant and the iron workers had in view was that they should be freed from the presence of men with whom they disliked working, or to prevent what they deemed an unfair interference with their rights by men who did not belong to their craft doing the work to which they had been trained. Whether we approve or disapprove of such attempted trade restrictions, it was entirely within the right of the iron workers to take any steps, not unlawful, to prevent any of the work which they regarded as legitimately theirs being entrusted to other hands.”

In the recent case of Davis v. United Engineers (28 App. Div. 396), Mr. Justice Ingraham, referring to the case of Allen v. Flood, said: “ The organization of an association or corporation, for the purpose of obtaining employment for its members, and the acts of the corporation or its agents in accomplishing that result, as long as such acts are confined to legal methods of solicitation, or the promise of the support of the organization or corporation and its members to those who employ them, are certainly not illegal. It must also be held to be a fundamental principle of our law that employers of labor have the absolute right to employ whom they please and to refuse to employ those whose services are not agreeable or advantageous ; and so it is the right of each employee to work for whom he pleases and to refuse to work for any one where either the employer or the employment is distasteful to him. It is not illegal either for an employer to refuse to employ individuals who belong to a particular society, or members of a particular corporation, or for members of a particular association or organization to refuse to work with others who are not fellow members of the organization or corporation. It is not, therefore, illegal for an employer to insist upon employing members of one organization only, nor for the employees of one employer to refuse to work for him unless all his employees are members of one organization or corporation.”

Here, as we have already said, all that the Enterprise Association did, acting through its representative Gumming, was to refuse to -work with members of the plaintiff organization, and to insist upon their discharge, and in case it was not done, to withdraw-f rom the work ■or order a strike of their members on that particular job; and applying the principle laid down in Allen v. Flood and Davis v. United Engineers, it must be held, it seems to us, that they had a legal right to do just what they did, and in reaching this conclusion the case of Curran, v. Galen (152 N. Y. 38) has not escaped our attention. In that case the decision was based upon a demurrer to an answer interposed to the complaint. The allegations of the complaint were that ■certain members of a labor organization threatened the plaintiff that unless he would join the organization, pay the initiation fee, and .subject himself to its rules and regulations, they and the association would obtain his discharge from the employment which he then had, ■and make it impossible for him to obtain employment in the city of Rochester or elsewhere until he became a member of such association, and that in pursuance of that conspiracy, upon plaintiff’s refusing to become a member of the said association, the said members and the ■association procured the plaintiff’s discharge, by reason of false and malicious reports in regard to him, by which they sought to bring him into ill-repute with members of his trade and employers and to prevent him from prosecuting his trade and earning a livelihood. The bare statement of the issue there involved is sufficient to show the distinction between that case and this. Here, the Enterprise Association and its members neither did, nor threatened to do, anything to prevent the members of the plaintiff organization from obtaining work at any place, except where its members were employed.

The judgment, therefore, so far as the same relates to or affects the defendant Gumming and the Enterprise Association, must be reversed and a new trial ordered, with costs to the appellant to abide the event, and affirmed, with costs, so far as the same relates to or affects the defendant Nugent and the Progress Association.

Van Brunt, P. J., Ingraham and Hatch, JJ., concurred.