189 A.D. 501 | N.Y. App. Div. | 1919
Lead Opinion
We are concerned, on this appeal, solely with the question of the legality and propriety of the preliminary injunction issued in this action, originally without notice and continued after argument.
The wrongdoing charged by the plaintiff corporation against the defendant labor unions and the individual defendants members thereof, is the formulating of a plan to compel the plaintiff to unionize its employees, and that in pursuance of such plan the defendants have declared a boycott against the plaintiff by refusing to handle the freight or merchandise carried on or called for by the plaintiff’s trucks. Stripped of adjectives and denunciatory characterization, this is the sum and substance of the defendants’ alleged offense against the plaintiff. While the complaint characterizes the demands of the defendants as “ arbitrary, unjust and ruinous,” and avers that the defendants have conspired “ to crush such of plaintiff’s employees as might refuse to accept unionization ” and thereby deprive .them of means of livelihood and to injure and destroy plaintiff’s business as the penalty for further resistance to their demand, and to “ impede and stifle interstate and foreign commerce ” and to generally disrupt and disorganize plaintiff’s business, and while plaintiff alleges that defendant unions
If disputes of this kind are to be reviewed in courts of equity, the plaintiff must present a case in conformity with equitable principles, and upon the papers before the court on this appeal I think it fails to present such a case. The plaintiff does not make the employers, or common carriers, or shippers of freight, parties to this action. We are dealing here with the facts presented by the record, and with conditions prevailing in the months of January, February and March, 1919. We have here no dispute between employer and employee. No common carrier or employer, or shipper or receiver of freight is before the court complaining of the defendants. On the proof here one trucking concern, the plaintiff, is before the court complaining that it cannot transact its business although seventy-five per cent of the truck owners in the port of New York have no difficulty with the defendants. There is but one other trucking concern mentioned in the affidavits as involved in the same controversy, and that concern is not before the court as a plaintiff. Despite the agreement of its fellow-truck owners, the plaintiff will not agree with the defendants. And, so far as the record discloses, the immediate cause of the break between plaintiff’s concern and the defendants is its refusal to accede to the demand for an eight-hour day and a dollar an hour for overtime for its drivers. These are the so-called ‘ ‘ union rates. ’ ’ They are the rates paid by seventy-five per cent of the truck owners. The plaintiff pays its men the same regular wages as other truck owners, but it insists upon a ten-hour day and pays but fifty cents an hour for overtime. Of course, this gives plaintiff a great advantage over its
In Bossert v. Dhuy (supra), Judge Chase, writing for the Court of Appeals, said: “It is unnecessary in the case now under consideration to hold that in all cases and under all circumstances, whatever a man may do alone he may do in combination with others, but it was clearly established in the National Protective Association case” (National Protective Assn. v. Cumming, 170 N. Y. 315) “ that worldngmen may organize for purposes deemed beneficial to themselves and in that organized capacity may determine that their members shall not work with non-members or upon specified work or lands of work. It was not illegal, therefore, for the defendants to refuse to allow members of the Brotherhood to work in the plaintiffs’ mill with non-union men. The same reasoning results in holding that the Brotherhood may by voluntary act refuse to allow its members to work in the erection of materials furnished by a non-union shop. Such action has relation to work to be performed by its members and directly affects them.
The alleged “ boycott ” in the Bossert case went much further than in the case at bar. There is no evidence in the present case of circulars or appeals to plaintiff’s patrons. Nor does the recent decision of the Court of Appeals in Auburn Draying Co. v. Wardell (227 N. Y. 1) in any way militate against the defendants here, because, as Judge Collin points out in that case, the defendants “ inaugurated and carried on, affirmatively and aggressively, through the agencies of fear and coercion, a comprehensive exclusion of the plaintiff from the business of the community,” and it is this fact, Judge Collin says, which distinguishes the case from Bossert v. Bhuy. There is no similarity between the acts of the defendants in the Auburn case and the acts of the defendants in the case at bar. On the contrary, the acts of defendants complained of in the case at bar come expressly within the legitimate procedure indicated in the opinion of the Court of Appeals in that case.
But it is said that this injunction, granted originally without notice, directed to this army of more than one hundred thousand laboring men, is not mandatory; that there is no obligation on the men to continue working if they do not wish to work with plaintiff’s non-union drivers. This argument, it seems to me, is no answer in a court of equity. We know that longshoremen and dock laborers who are not regularly employed, and who are paid by the hour, cannot quit their work, because of their necessities. A so-called “ strike,” even if it be lawful, is a serious matter, entailing loss and hardship on employer and employee, a last resort to be avoided if it be possible by united effort. It appears that in this case the defendants have continued to work because of these considerations and in obedience to the preliminary injunction of the court, which gives to the plaintiff the full relief to which it might be entitled after trial. But is the suggestion that the men may quit their work, because of the individual plaintiff’s grievance, one that should commend itself to a court of equity? Events move rapidly nowadays and the disastrous results to the community of such action on the part of the men is
But it is said that these men are employees of common carriers and that they are in a different class from the defendants whose right to refuse to handle non-union material was sustained by the Court of Appeals in Bossert v. Dhuy (supra). It will be remembered that on the record here presented no governmental agency, no common carrier or shipper or receiver of freight is before the court complaining of the defendants. The plaintiff is a trucking concern employed to cart freight to and fro, under no public obligation. It may carry or refuse to carry merchandise, as it sees fit. From the necessities of the case the common carrier steamship companies and the like in the port of New York cannot give regular employment to the dock laborers and employees, by the month, the week, or even by the day. The labor is uncertain, depending on the arrival and departure of vessels, and the character and quantity of freight to be moved. The men are hired and paid by the hour. They have no regular steady employment or income. It seems to me that it may be argued that it is as unreasonable to deny them the right accorded to the defendants in the Bossert case as it would be to insist that the common carriers should
I, therefore, vote to reverse the order and to deny the motion for preliminary injunction before trial.
Rich, J., concurred; Jenks, P. J., concurred in separate opinion; Mills, J., read for affirmance, with whom Putnam, J., concurred.
Concurrence Opinion
I vote for reversal of this order. My brother Kelly has stated the facts and has cited the cases.
In Quinn v. Leathern (L. R. [1901] App. Cas. 506) the lord chancellor says: “Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.”
The course complained of may be described accurately enough as a boycott. The sole question is whether the court was justified in granting this injunction against this boycott. The court was not justified, unless it appear that the boycott is a conspiracy to accomplish an unlawful end, or a lawful end by unlawful means, causing “ irreparable damage.” (Gompers v. Bucks Stove & Range Co., 221 U. S. 437.) If the primary purpose of the boycott is to better the condition of the boycotters as laborers; and- not to do irreparable injury to the plaintiff, the boycott is not unlawful. And if to
So far, the facts appear by affidavits only. The trial may reveal that the facts are different from the present appearance of them, and it may establish that this boycott is a conspiracy; or the consequences of this course of the defendants may be far-reaching and conditions may follow that justify other legal remedies, either of the common law or of statutes, State or National. But that is not the concern of this court in the present litigation. The sole duty of this court is to declare the law as between the litigants now before it.
Dissenting Opinion
I feel compelled to dissent and to vote for affirmance, for the following reasons:
The plaintiff corporation conducts in the city of New York a large trucking business, owning and operating 340 horse trucks and 14 motor tracks. Its business consists mainly in trucking freight for its customers to and from the various railroad and steamship terminals in the city. The defendants are certain unincorporated labor unions and individual officers and members thereof, comprising various employees of certain common carriers, steamship companies, such as steamship clerks, checkers, scalemen, weighers, etc., engaged in handling such freight at the piers and docks of the city. The several unions involved have deliberately and formally resolved that their members shall not work with non-union men, and, therefore, shall refuse to handle merchandise brought to piers or called for thereat by drivers, chauffeurs or truckmen who are not members of the unions. Pursuant to such resolutions the defendants have refused to handle, in any way, freight with, to or for those of the plaintiff’s employees who are not members of the unions or of one of them. Plaintiff conducts its business upon what is commonly known as the “ open shop ” basis or plan, employing men without regard to
The effect of the order appealed from is not to compel any of the defendants to continue working in his present position in the employment of any given carrier, but only to compel him so long as he does continue in that position to deal therein with the non-union employees of the plaintiff the same as with the union employees of it, that is, to receive from them or deliver to them freight without regard to their being union or non-union men.
The question presented by this appeal is simply this: Can an employee of a common carrier, while acting as such, refuse to extend to any person accommodation, e. g., carriage of goods or persons, upon the same terms as are extended by the carrier to the public generally? It seems to me self-evident that he cannot so refuse. He may, if he so elect, decline to work for such an employer, but if he does work for him he must give the same service to all. It seems to me likewise plain that he, as well as the employer, is subject to the injunctive process of the court. I quite agree with the view presented to us upon the argument, that one of the defendants — for example, a freight receiving clerk — can no more refuse to receive freight from a non-union truck driver than if he were acting as a conductor of a street railroad car he could refuse to receive a fare from a non-union man, and refuse to admit such person to the car as passenger. It is a primary duty of any one engaged in the performance of such a public service to extend that service to all without
Therefore, the order appealed from should be affirmed, with ten dollars costs and disbursements.
Putnam, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.