160 N.Y.S. 279 | N.Y. App. Div. | 1916
The plaintiff is a domestic corporation engaged in the construction of buildings for others. It shows by its complaint and by affidavits that at the time of the commencement of the action it had the contract for the plastering and cement work on the fourteen-story apartment house at One Hundred and Third street and West End avenue, borough of Manhattan, New York, involving about $20,000, and another like contract on a building on Post avenue near Two Hundred and Fourth street, involving about $18,000; that it was obligated by its contracts to employ only “union labor recognized by the building trades,” and each contract contained a clause providing that time was of the essence thereof, and provisions by which after a specified time the plaintiff would be liable to the builders for damages caused by delaying performance of their work; that it had in its employ engaged in the performance of said contract work more than seventy-five plasterers and forty laborers, all members of the union sued herein or a branch thereof known as Local 30; that said union is an unincorporated association, and has a membership of more than three thousand, and that it absolutely controls and dominates all but two per cent of the competent plasterers, and that it is impossible to hire journeymen plasterers otherwise than through the union; that section 2 of article 8 of the constitu
Although the plaintiff does not show the terms of its contracts with its employees, it„does appear that they were willing to continue on the work where they were employed, and it is a fair inference that there was at least an implied contract with them that they would so continue, for it is not reasonable to suppose that there was a special hiring each day. The plaintiff does not set forth the contract between the union and the employers’ association, which it alleges the union threatens to violate; nor is it alleged or shown that the plaintiff was a party thereto. It is inferentially alleged that the employees are hired through the union, but the plaintiff does not show any contract with the union.
Where a strike, or other action, is threatened by a labor union in violation of its contract, or of the contract of its members with their employers, the jurisdiction of a court of equity to issue an injunction is well recognized (Reynolds v. Davis, 198 Mass. 294; Folsom v. Lewis, 208 id. 336; National Protective Assn. v. Cumming, 53 App. Div. 227; affd., 170 N. Y. 315; Cooke Combinations, Monopolies, Labor Unions [2d ed.], § 67 and cases cited. See, also, Hitchman Coal &
The injunction granted, however, is altogether too broad, and is warranted neither by the facts nor the law. Among other things it, in effect, enjoins the defendant generally from soliciting or inducing plaintiff’s employees by any species of threats, abuses, offers or promises of money or by any unlawful “or other means” to leave the employ of the plaintiff, and from publishing in any manner that plaintiff’s business has been blacklisted, or placed on any unfair list, and from threatening others with injury or loss to their business should they continue to deal with or be employed by the plaintiff. There is no evidence that the defendant has threatened or intends to do any of these things. The defendant is further enjoined, in effect, from calling a strike for any reason, by a general provision enjoining him from directing the members of his union “to refuse to work for the plaintiff.”
The injunction order should, therefore, be modified by striking out the paragraphs numbered III to VIII, inclusive, and inserting in place thereof a paragraph as follows:
“III. From approving the recommendation of its executive board to place foremen on the plaintiff’s work for the period of one year, for the purpose of bringing about the discharge of the men now in the plaintiff’s employ and from taking any other action with respect to placing foremen on the plaintiff’s work, or in any manner interfering with the plaintiff’s work, or with its employees, other than to require and see that its members observe its regulations with respect to the hours of labor so long as plaintiff observes the requirements of said regulations with respect to the hours of labor, and from calling a strike or otherwise directing or requiring its members to refuse to work for the plaintiff on account of the failure or refusal of the plaintiff to allow the union to place foremen or a foreman on the plaintiff’s contract work; and from taking any other action with a view to punishing or making an example of the plaintiff on account of alleged past violations of its regulations
Clarke, P. J., Dowling, Page and Davis, JJ., concurred.
Order modified as directed in opinion and as modified affirmed, without costs. Order to be settled on notice.