278 F. 827 | N.D. Ohio | 1922
This cause has been heard, argued, and submitted on plaintiff’s application for a preliminary in
The plaintiff fabricated the material at one of its plants, shipped it to and delivered it upon the City Hospital premises, and began the work of installation some time early in October, 1921. The plaintiff sent its supervisory staff to said hospital and employed union carpenters at the union wage scale and on union terms and conditions, and members of the United Brotherhood of Carpenters and Joiners of America to perform the actual work - of erection and installation. William O’Brien
Later, the lat ter part of November or the early part of December, the defendant J. H. MacDowell, city architect, and Dudley Blossom, director of public welfare, acceded to the demands of the defendants representing Local No. 65. They directed plaintiff to discontinue further erection work, and upon refusal of plaintiff, through its employees, so to do, police officers of the city of Cleveland, acting under some unknown and undisclosed authority, appeared at the City Hospital building and excluded plaintiff’s employees from the premises and prevented further performance, under threat .of arrest. The architect and director of public welfare, while assuming to act on behalf of the city of Cleveland, do not appear to have been acting under any other authority than such as was assumed or usurped by ihem. Upon this hearing, affidavits were filed on behalf of the city, and argument was made by an assistant to the director of law in support of the position taken by the architect and director of public welfare. Early in December, after procuring from said architect and. director of public welfare written assurances that plaintiff must employ members of the sheet metal workers’ union or that its contract would be broken and further work of installation done by the city, said O.’Brien and Nester caused the sheet metal workers to return to work on the City Auditorium and for other contractors on the City Hospital, but plaintiff has since been unable, by reason of the conduct complained of, to proceed further with its work, which, is now at a standstill.
Such, in brief, are the main outstanding facts. No other conclusion therefrom can be drawn than that the defendants have entered into
There is no dispute here between any of the labor union defendants and clie plaintiff concerning terms or conditions of employment. They are not seeking to compel plaintiff to employ union labor or to conduct its business on union terms and conditions. Plaintiff’s employees are members of the United Brotherhood of Carpenters and Joiners of America, having a national membership of 400,000, as compared with a membership of 24,000 of the Amalgamated Sheet Metal Workers’ International Alliance. Plaintiff’s union employees are satisfied with the terms and condi dons of their employment and the rate of pay, which the evidencejihows are the same conditions and wage scale as have been adopted by Jinocal No. 65. If plaintiff accedes to the defendants’ demand and employs members of the sheet metal workers’ union, then the members of the carpenters’ and joiners’ union might with equal legal right indulge in the same conduct as is here alleged against defendants. It (hey did so, their legal standing would be precisely the same. It resnJiS that all the cases cited on behalf of defendants, even if not in conflict with the decisions of the United States Supreme Court and the greater weigh! of authority, have no application whatever to the controversy before the court.
The union defendants have a right to obtain business in the way of employment and wages which plaintiff has the power to dispose oí, on the same terms and none other, as the plaintiff would have the right to obtain a contract which a competitor was seeking to obtain. In no cvoiit does that right include the rigid: to induce or persuade another to break an existing contract, much less to do so by coercion, or by the calling of sympathetic strikes and the institution of secondary boycotts. If plaintiff were employing nonunion laborers and undertaking to perform this contract on an open shop basis, the better considered crises all hold that defendants might not resort to the means to which thej'’ are now resorting, to prevent the. performance by plaintiff of its contract. See Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 249, 38 Sup. Ct. 65. 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461; Aberthaw Construction Co. v. Cameron, 194 Mass. 209,
The remedy at law by an action for breach of contract against the city is not adequate. In the first place, it does not appear that the city, through any properly and lawfully constituted authority, is a party to the conspiracy, and no one except the city council could properly commit a legal breach of plaintiff’s contract. In the second place, the injury to plaintiff’s business, good will, and trade could not be measured or included in determining the damages in an action at law. For this and other reasons, it is settled law that injunction is the proper remedy. See Lehigh Structural Steel Co. v. Atlantic Smelting & Refining Co. (N. J. Ch.) 111 Atl. 376; Aberthaw Construction Co. v. Cameron, 194 Mass. 209, 80 N. E. 478, 120 Am. St. Rep. 542.
A preliminary injunction will be granted as prayed for in paragraph 1, except as to the last sentence thereof, which does not appear at this time to be justified upon the present state of the record. Bond in the penalty of $2,000 will be required, conditioned to pay such costs and damages, if any, as the defendants or any one of them may sustain, or as may be awarded against plaintiff in the event this injunction shall be held to have been improvidently awarded.