183 N.Y. 207 | NY | 1905
Lead Opinion
The plaintiff sues the makers and the indorser a promissory note, payable to the order of the Protective Coat Tailors' Union, of which he is the president, to recover the amount due thereon. The answer of the defendants denied the allegations of the complaint, except as to the making of the note, and set up as a distinct and separate defense that it was given "as collateral security to the plaintiff, to be applied as liquidated damages, for violation by the defendants, of any of the covenants and conditions of a certain *209 contract." The particular part of the contract set forth is as follows: "That the party of the first part [meaning the makers' firm] shall not employ any help whatsoever other than those belonging to, and who are members of the party of the third part, [meaning a `union' of the firm's employés] and in good standing, and who conform to the rules and regulations of the said party of the third part, and the said party of the first part shall cease to employ any one and all those employés who are not in good standing, and who do not conform to and comply with the rules and regulations of said party of the third part, upon being notified to that effect by its duly credentialed representatives. That the party of the first part shall not engage any help whatsoever, even those who are members of the party of the third part, without their first having produced a pass-card duly executed and signed by the authorized business agent of the party of the third part; said card to show that the bearer thereof is a member in good standing of the party of the third part, and that he has complied with the rules and regulations thereof in force at that time." The answer then alleged "that the said contract is in restraint of trade and the said contract has for its purpose the combination of employers and employees, whereby the freedom of the citizen, in pursuing his lawful trade and calling, is through such contract, combination and arrangement, hampered and restricted, and has also for its purpose the coercing of workingmen, to become members of the said Employees' Organization and come under its rules and its conditions, under the penalty of the loss of their positions and of deprivation of employment, and that such purposes are in restraint of trade, that they hamper and restrict the freedom of a citizen, in pursuing his lawful trade and calling and that they are against public policy and unlawful." To this defense, the plaintiff demurred, for being insufficient in law. The demurrer was sustained at the Special Term; but, upon appeal to the Appellate Division, in the second department, the judgment sustaining the demurrer was reversed and the demurrer was overruled. Permission *210 was given to the defendants to appeal to this court and the following questions were certified for our review, namely:
"I. Is a contract made by an employer of labor, by which he binds himself to employ and to retain in his employ only members in good standing of a single labor union, consonant with public policy, and enforcible in the courts of justice in this state?
"II. Is the `Second' separate defense, contained in the answer herein of the defendants, Morris Cohen and Louis Cohen, insufficient upon the face thereof to constitute a defense?"
If we refer to the prevailing opinion of the Appellate Division, it appears that the question in this case was there regarded as within our decision in Curran v. Galen, (
If the question were more correctly presented by some appropriate allegation, I, still, would be of the opinion that the agreement is not one which comes under the condemnation of the law. The right of workingmen to unite and to organize for the protection of their interests and welfare is not denied. It has been, expressly and recently, declared by this court. (Curran
v. Galen,
The case of Curran v. Galen, (supra), which stands *213 unaffected as an authority, presented a very different state of facts. There the plaintiff demanded damages of the defendants, who were officers and members of an association of workingmen in the brewing business in the city of Rochester, for having conspired to injure him and to take away his means of earning a livelihood. In substance, he alleged in his complaint that he was threatened by certain of the defendants, members of the association, that, unless he became a member, they would obtain his discharge from employment and would make it impossible for him to obtain any employment in that city or elsewhere; that, upon his refusing to become a member of the association, the defendants forced his employers to discharge him and, by false and malicious reports circulated in regard to him, 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 answer to the complaint, among other defenses, set up an agreement between the Ale Brewers' Association in the city of Rochester and the particular association referred to in the complaint, to the effect that all employés of the brewery companies should be members of the association and that no employé should work for a longer period than four weeks without becoming a member; and that, upon the plaintiff's refusal to comply with defendants' request to become a member of the association, his employers were notified thereof in accordance with the terms of the agreement with the Ale Brewers' Association. To this matter set up as a defense the plaintiff demurred and the order sustaining the demurrer was affirmed in this court. I endeavored to point out in the opinion that the agreement could be no justification for the acts charged in the complaint and that it could not legalize a plan for compelling other workingmen to join the defendants' organization, at the peril of being deprived of employment and of making a livelihood. However lawful and legitimate the purposes of the organization of the workingmen may have been, its power and influence were being unlawfully wielded in efforts to keep other persons from working at the particular *214 trade and to procure their dismissal from employment. In the general discussion of the question, I conceded the general right of workingmen to organize for the common good of the members and sought to show how the agreement and acts, there in question, were contrary to public policy and unlawful, because oppressive and restricting the freedom of others to engage in the same line of occupation, or to make a livelihood at their trade, as a penalty for refusing to join the defendants' organization. That was a very different case from the present one. The subsequent case of National Protective Association v. Cumming, (supra), in no wise overruled Curran v. Galen. It was not at all within the principle of the prior case. It concerned a dispute between rival labor organizations. The plaintiff organization sought to restrain the defendants from preventing the employment of its members and from procuring their discharge by any employer through threats and strikes, and the reversal of a judgment awarding the relief demanded was affirmed by this court. The right of the defendants, in that case, to refuse to permit their members to work with others, who were members of a rival organization, and to bring about their discharge upon the common work in which they were engaged, if confined to threats to withdraw from the work, or to ordering a strike of their own members, without resort to injurious acts, was admitted. The defendants' effort was not to compel the others to join with their organization as a condition of being allowed to work and, whether it was to secure only the employment of approved workmen, (which was a possible inference from the facts), or whether it was to obtain an exclusive preference in employment, if without resort to force, or the commission of any other unlawful acts, it was not within the condemnation of the law.
Within, even, the view expressed by the minority of the judges of this court in the Cumming case, the contract in the present case was not unlawful, which the employer made with his workingmen. Judge VANN asserted the right of every man "to carry on his business in any lawful way that *215 he sees fit. He may employ such men as he pleases and is not obliged to employ those whom, for any reason, he does not wish to have work for him. He was the right to the utmost freedom of contract and choice in this regard." This contract was voluntarily entered into by the Cohens and, if it provided for the performance of the firm's work by those only who were accredited members, in good standing, of an organization of a class of workingmen whom they employed, were they not free to do so? If they regarded it as beneficial for them to do so, (and such is a recital of the contract), does it lie in their mouths, now, to urge its illegality? That, incidentally, it might result in the discharge of some of those employed, for failure to come into affiliation with their fellow-workmen's organization, or that it might prevent others from being engaged upon the work, is neither something of which the employers may complain, nor something with which public policy is concerned.
I think that the questions certified should be answered in the affirmative and, therefore, that the order of the Appellate Division, reversing the interlocutory judgment and overruling the demurrer, should be reversed and that the interlocutory judgment, which sustained the demurrer, should be affirmed, with costs in all the courts to the appellants.
Dissenting Opinion
The contract which the court is about to pronounce valid and in accord with public policy is in substance as follows: The defendants were the party of the first part; their own employees, "by Barnard Kaplan, their representative and attorney in fact," party of the second part, and the Protective Coat Tailors and Pressers' Union, Local No. 55, of the United Garment Workers of America, a voluntary association organized by the parties of the second part, acting "through Barnard Kaplan, its secretary," party of the third part. It consists chiefly of restrictive stipulations against the employers, who agree to employ the persons already in their employment "as operators, basters, finishers, pressers, fitters, bushelers and button-hole makers, each in his *216 own capacity and for no other work than that he was engaged for," during the period of one year. After fixing the number of working hours per week, it was agreed that "under no circumstances shall work be carried on by the parties of the first and second part at any other hours than herein specified without a written consent of the party of the third part, executed by its duly authorized officer, * * *."
It was further agreed "that the party of the first part shall not employ any help whatsoever other than those belonging to and who are members of the party of the third part, and in good standing and who conform to the rules and regulations of the said party of the third part; and the said party of the first part shall cease to employ any one and all those employees who are not in good standing and who do not conform to and comply with the rules and regulations of said party of the third part, upon being notified to that effect by its duly credentialed representatives. The party of the first part hereby agrees to abide by the rules and regulations of the party of the third part, as known in the trade, and to permit and allow representatives of said party of the third part to enter their shop or shops at any and all hours of the day and night for the purpose of inspection and enforcement of the terms of this contract, as well as all the rules and regulations herein referred to. The party of the first part shall not engage any help whatsoever, even those who are members of the party of the third part, without their first having produced a pass card duly executed and signed by the authorized Business Agent of the party of the third part, said card to show that the bearer thereof is a member in good standing of the party of the third part and that he has complied with the rules and regulations thereof in force at that time. The party of the first part shall not employ more than one helper to every two operators, or one helper to two basters, and under no consideration to employ any apprentices."
The parties of the second part also agreed not to employ apprentices and to abide by the rules and regulations of the party of the third part. "In the event of any one of the *217 parties of the second part not remaining and continuing during the entire period of this contract in good standing, or does not in all respects conform with the rules and regulations of the party of the third part, then the party of the first part shall cease to employ such employee whoever he may be. * * * That the parties of the second part may quit work during a so-called `sympathy strike,' provided no new demands are made by them; such quitting of work on their part shall in no way affect the validity of this agreement or suspend its operation." A minimum scale of wages was agreed upon, and finally the party of the first part agreed to deposit "and hereby does deposit with the party of the third part a promissory note in the sum of two hundred dollars, * * * as security for the faithful performance by the party of the first part of all the covenants and conditions herein contained * * * as liquidated and ascertained damages upon the commission of any breach or violation of any of the covenants herein above set forth on the part of the party of the first part, * * *." The only stipulation on the part of the union was that it would "furnish any and all help it may have on its application books," which it was to keep for the benefit of the other parties, without charge of any kind to any person.
The business affected did not belong to the union, or its members, but to the defendants, who agreed, voluntarily of course, to employ and discharge workmen at the dictation of the union. The labor department of the industry was under the control of the union, for both employer and employed, abrogating their own rights, placed themselves under its command in that respect. This was a form of slavery, even if voluntarily submitted to, for whoever controls the means by which a man lives controls the man himself. Both the proprietors and the workmen seem to have walked under the yoke of the union without a protest. The employers could employ no one who was not a member of the union and not even then unless he bore its pass card. They could have no apprentices. Even in an emergency and with the consent of their workmen they could not exceed the hours of labor prescribed *218 by the union. A baster, however willing, could not sew on a button and a presser, even if he wanted to, could not make a button hole. If a strong man, capable of working ten hours a day, wished to do so and his employers were willing to pay him extra for the overtime, he could not without the written consent of the union. A qualified workman, not a member of the union, might be unwilling to join, yet he could not get work unless he did. If an employee wished to leave the union, he could not without losing his place. The employers could not hire non-union men who wished to work for them, nor have extra helpers in their business and even the workmen themselves could not take apprentices. Employers were bound to abide by the rules and regulations of the union and permit its representatives to enter their shops at any and all hours of the day and night for the purpose of inspection and enforcing the terms of the contract as well as the rules and regulations. The employees could refuse to work during a "sympathy strike" and paralyze the business without affecting the validity of the agreement. They were bound to obey the rules and regulations of the union, whatever they might be, that were in force at any time during the year covered by the agreement.
Thus master and men bound themselves by these remarkable stipulations made with a voluntary association, which had no pecuniary interest in the business, or in the labor of those employed. The labor of the employees belonged to themselves and they had a right to sell it to whom they chose and on such conditions as were mutually satisfactory. The business belonged to the defendants and they had the right to employ any man who was willing to work for them, but by this agreement an outsider intervened and compelled those who owned the business and those who did the work to submit to its direction. As was said by the court below, the will of the employer "was subjected by executory contract to an arbitrary domination which not only deprived" him "of all freedom of action, but also crushed the rights and interests of all independent competition in the field of labor." *219
The manifest purpose of the contract was to prevent competition and create a monopoly of labor. A combination of capital, or labor, or as in this case of both, to prevent the free pursuit of any lawful business, trade or occupation is for bidden both by statute and the common law. (Matter of Davies,
This case is quite analogous to that of Curran v. Galen
(
This long quotation is warranted by the strong reasoning which applies directly to the case in hand. I unite with Judge GRAY in recognizing that case as a sound exposition of he law. I invoke its authority as controlling this appeal, for the facts of the two cases are so analogous that the same principle must govern both. If the agreement in that caes *222 was against public policy, what is to be said of the one before us? That agreement was held void because it required the discharge of workmen if they would not join a particular union, thus compelling them to join against their will. This agreement contains the same requirement, because the phrase "cease to employ" is merely a euphemism for the word "discharge," and in addition there are other provisions equally subversive of personal liberty and equally opposed to public policy.
Would a court of equity enforce such an agreement by a decree for specific performance? Would it command the employer to discharge workmen simply because they refused to join the union? Would it restrain him from employing competent men because they were not members of the union? Would it restrain him or his employees from taking apprentices? Would it compel both master and man to obey the regulations of the union, whether reasonable or unreasonable?
The promissory note sued upon is collateral security for the faithful performance of the agreement by the employer, and a violation of any stipulation thereof, according to its terms, renders the note collectible. Will a court of law make the employer pay the note because he refused to discharge a competent man who would not join the union, or who resigned from the union, or refused to obey its rules and submit to its dictation? Will it permit a recovery thereon because non-union men were employed, or apprentices taken, or for a failure to comply with any one of the many stringent stipulations? I think that neither a court of equity nor a court of law should attempt to enforce the agreement, directly or indirectly, because it is utterly void as a flagrant violation of public policy. I vote for affirmance.
CULLEN, Ch. J., HAIGHT and WERNER, JJ., concur with GRAY, J.; BARTLETT, J., concurs with VANN, J.; O'BRIEN, J., absent.
Ordered accordingly. *223