91 N.Y.S. 185 | N.Y. App. Div. | 1904
The defendant printing company was ordered to show cause why an injunction should not issue, restraining it from discharging the plaintiff or any other of its workmen because of their failure to join the labor unions mentioned in the complaint, and from carrying out the provisions of two contracts made with two of the unions, defendant. The other defendants were ordered to show cause why they should not be restrained and enjoined from in any way interfering with the plaintiff or any of his fellow non-union workmen in their
It must be carefully noted that the defendants appellant are thus restrained from “ organizing a strike against the said defendant printing company,” from “ picketing ” and from “ boycotting.” I think that the injunction against organizing a strike cannot stand, and that the injunction against “picketing” and “boycotting” runs in terms too broad, and that the learned Special Term rightly denied the injunction as against the printing company. The record contains many affidavits full of allegations, denials, counter allegations and counter denials. This is natural to a hearing of such issues upon ex p/arte statements unsubjected to the tests of cross-examination, and unrestricted by rulings upon relevancy, materiality or competency. It may be that the judgment upon trial will be far different from any preliminary relief which this record justifies. (See Warsaw Water Works Co. v. Warsaw, 4 App. Div. 509; Meyers v. City of New York, 58 id. 534.)
The defendants should not be restrained from “ organizing a strike against the said defendant printing company.” An employee who has not bound himself to his master by contract cannot be bound to him by law. Therefore, he may quit his work. If he may quit his work absolutely, he may quit it because the conditions thereof are not to his liking, and he is free to say that he will not take up that work until the conditions are to his liking. What one may lawfully do alone, he may do in concert, and hence a strike is not jper se unlawful. The court, in National Protective Assn. v. Cumming (170 N. Y. 315, 321) do not differ over the proposition that “a peaceable and orderly strike, not to harm others, but to improve
“ Picketing ” may simply mean the stationing of men for observation. If in the doing of this act, solely for such purpose, there be no molestation or physical annoyance, or let or hindrance of any person, then it' cannot be said that such an act is per se unlawful. But “ picketing ” may also mean the stationing of a man or men to coerce or to threaten, or to intimidate or to halt or to turn aside against their will those who would go to and from the picketed place to do business, or to work, or to seek work therein, or in some other way to hamper, hinder or harass the free dispatch of business by the employer. In that case picketing may well be said to be unlawful. .But the vice of the injunctive order lies in the fact that this word, unqualified, may signify a lawful act. (See Krebs v. Rosenstein, 31 Misc. Rep. 661; Levy v. Rosenstein, 66 N. Y. Supp. 101; affd., 56 App. Div. 618; 67 N. Y. Supp. 630; Rogers v. Evarts, 17 id, 264; Cumberland Glass Mfg. Co. v. Glass Bottle Blowers’ Assn., 59 N. J. Eq. 49.) Rogers v. Evarts (supra) was affirmed subnom. Reynolds v. Everett (67 Hun, 294) which was affirmed (144 N. Y. 189), Gray, J., saying: “ There were absent the elements of intimidation, oi’, as the trial judge observed, of such circumstances surrounding the acts of persuasion and entreaty as would characterize them as intimidation.” I may add that I am not prepared to say that all picketing which goes no further than “ persuasion and entreaty ” of those who are about to work or to seek work or to do business in the picketed place is absolutely lawful. A wayfarer upon the public street should be free for peaceful travel. No man against my will has the legal right to occupy the public street to arrest my course or to join me on my way, be he ever so polite or gentle in his insistence. There may be no intimidation, and yet an interruption of peaceful travel. There may be annoyance without danger.
The experience of Captain Boycott has added to our language a substantive and a verb. There is little, if any, question as to the meaning of the substantive, but there is no commonly accepted definition of the verb. Some courts have defined it as necessarily implying violence, or intimidation, or the threat thereof ; others as but necessarily implying abstention. A may refuse to trade with B
It may be that the result of the boycott is a loss to him proscribed. Else, the combination would fail of its purpose. But when the result sought by a boycott is to protect the members of the combination or to enhance their welfare, that loss is but the incident of the act, the means whereby the ultimate end is gained. In Quinn v. Leathem (App. Cas. [1901] 495) Lord Shand marks the distinction between that case and the well-known case of Allen v. Flood (App. Cas. [1898] 1). He says: “ In Allen v. Flood, * * » the purpose of the defendant was by the acts complained of to promote his own trade interest, which it was held he was entitled to do, although injurious to his competitors, whereas in the present case, while it is clear there was combination, the purpose of the defendants was ‘to injure the plaintiff in his trade as distinguished from the intention of legitimately advancing their own interests.’ * * * Lord Herschell, for example, said
The discharges in this case are the result of the agreement between the printing company and the union. It is clear enough that the company made this agreement in order to end the strike and the boycott. Thus, the defendants secured the exclusive employment of their members, an adjustment of wages and a determination of the working hours. If the defendants had the right to refuse to work for the printing company until their demands were met, I cannot see why they could not agree that they would work only under conditions which represented a concession of such demands. If the employer preferred to have these workmen work for him on the conditions that he should employ none but their fellows, increase their wages, and settle the hours of labor, than to have them strike and organize a boycott, I cannot see why in the exercise of its right to regulate its own affairs it could not follow this course and make the agreement.
It may be queried whether the plaintiff has any status to attack this
I will assume that but for the agreement with the union the printing company would not discharge the plaintiffs. Can the printing company come to the court and say: I have made an agreement which I do not seek to avoid; perforce of it I intend to discharge the plaintiffs if they remain non-union men, but were it not for the agreement I would have no reason to discharge them; therefore, halt me in the doing of this thing ? If the court intervenes, does it not do so because it can determine the right of the master to discharge by weighing his reasons for it ? The employer is not the ward of the court. The court puts the responsibility upon him. It assumes that he is free to choose, but at the same .time it assures the employee of the right to choose, and when the employer has chosen, it does not stay his election upon any scrutiny of his reasons. It will not halt him when he proposes to go on. And the employee cannot be heard upon the reasons which move the employer to discharge him. Unless, then, the plaintiffs have a right to retention, what interest have they that warrants the court to hear their plea that the employer must not perform this agreement because it involves their discharge ? (See Reid v. Vanderheyden, 5 Cow. 728, 733; Grant v. Duane, 9 Johns. 591, 612; Baxter v. Baxter, 43 N. J. Eq. 82, 86 ; affd. on opinion below, 44 id. 298.) • What special or peculiar damage can the plaintiffs show to warrant private suits ? (See Cranford v. Tyrrell, 128 N. Y. 341.)
The plaintiff Kissam, who is not only an employee of the printing company, but also a holder of twenty-five shares of its stock, complains as such stockholder. It appeal’s that the agreement was made on behalf of the printing company by all of the members of the executive committee appointed by the board of directors to manage its business in the boroughs of Brooklyn and Manhattan. Of that committee, one is the first vice-president and general eastern manager. Presumably, the board of directors in the first instance would control such a matter of corporate administration or policy as the engagement, discharge or selection of employees. If so, this committee seems to have full authority in the premises. (Hoyt v. Thompson's Executor, 19 N. Y. 207. See, too, Beveridge v. N. Y.
I said at the outset that the judgment on trial may be far different from the determination upon the papers now before us. The evidence may put the combination within the prohibition of the principle of Curran v. Galen (supra), may justify an injunction against the picketing in the manner of its doing, against the boycotting in the methods of its practice, and more. But as I think that the printing company is free to discharge the plaintiffs and their other workmen, and that the other defendants have the right to organize a strike and to picket and boycott within the limitations which I have sought to state in this opinion, and that the record does not justify a retention of the injunction against picketing and boycotting, with specifications and limitations, the order must be modified in accord with these views, and as modified must be affirmed, without costs.
All concurred; Hirsohberg, P. J., and Bartlett, J., in result.
Orders modified. Orders to be settled before Jenks, J.
Allen v. Flood (supra).
Bohn Manufacturing Co. v. Hollis (54 Minn. 223).— [Rep.