II. LABOR DISPUTES AND CONTROVERSIES.

A. RIGHTS OF EMPLOYER AND LABOR UNION GENERALLY GRASSI CONTRACTING Co., v. BENNETT, 174 App. Div. 244 (July 10, 1916), in part.

An employer may lawfully discharge or refuse to employ one because he is or is not a member of a labor union, and may lawfully contract with his employees to employ only union labor and to discharge others, or vice versa; but it has been held that employers may not combine and agree to employ either only union or non-union labor when such employers control the trade in any community or control it to such an extent that it would be practically impossible for those thus discriminated against to obtain employment, for in such case the agreement would be oppressive and contrary to public policy (McCord v. Thompson-Starrett Co., 129 App. Div. 130; affd., 198 N. Y. 587; Farrelly v. Schaettler, 143 App. Div. 273; affd., 207 N. Y. 644); and members of a labor union may refuse employment with non-members, or quit if non-union labor is continued, and vice versa, so long as this is done for their own interests and not through a conspiracy to injure others. (People v. Marcus, 110 App. Div. 255; affd., 185 N. Y. 257; Jacobs v. Cohen, 183 id. 207; Kissam v. United States Printing Co., 199 id. 76; Davis v. United Engineers, 28 App. Div. 396. See also, Adair v. United States, 208 U. S. 161, 175.) Employees, who are not bound by contract, acting in concert or through a labor union with which they are affiliated, may quit or strike at will for any lawful reason, or purpose, and doubtless they may do so for no reason or purpose, and they may endeavor by lawful persuasion without violence or intimidation to induce others to join them or to refrain from taking their places (Mills v. United States Printing Co., 99 App. Div. 605; National Protective Assn. v. Cumming, supra, and see Judge Gray's opinion, at p. 334; Reynolds v. Everett, 144 N. Y. 189; Davis v. Zimmerman, 91 Hun, 489. See also, Iron Moulders' Union v. Allis-Chalmers Co., 166 Fed. Rep. 45; Folsom v. Lewis, supra; Horseshoers' Protective Assn. v. Quinlivan, 83 App. Div. 459; Jetton-Delke Lumber Co. v. Mather, 53 Fla. 969; 43 So. Rep. 590); but where a labor organization calls or threatens to call a strike of its members, not primarily for the lawful benefit or advantage of the union, or of its members, but for an unlawful purpose, that is, one prohibited by law, or which contravenes public policy, to the injury of another or others, then its action or threatened action, if consummated, will render it liable in damages (Curran v. Galen, 152 N. Y. 33; Jacobs v. Cohen, supra; Purvis v. United Brotherhood, 214 Penn. St. 348); and if not consummated, may be enjoined. It is perfectly lawful to organize to advance or to maintain a scheduled rate of wages, and to call a strike for those purposes, where no contract rights are violated; but not for the primary purpose of restricting the freedom of others by coercing them under a penalty of loss and deprivation of employment to join a labor union (Penal Law, § 582; Curran v. Galen, supra; Mills v. United States Printing Co., supra); but a refusal by the members of a labor union to work with those not belonging to the

union, or vice versa, or a threat to strike if others are not discharged, where the action is primarily for their own benefit, does not constitute an unlawful interference with the freedom of others and affords no ground for action either for damages or for injunctive relief.

B. DISCHARGE OF PERSON CLAIMING UNION MEMBERSHIP AS GIVING RIGHT OF ACTION AGAINST EMPLOYER

CUSUMANO V. SCHLESSINGER, 90 Misc. 287 (May, 1915), abstract. An employer was a member of an association affiliated with the International Garment Association. There was an agreement between the latter and the employer's association that only members of the defendant's union should be employed. Plaintiff procured his employment by representing that he was a member of said union. Members of the union informed the employer of the fact that plaintiff was, in fact, not a member, and demanded his discharge. Plaintiff was discharged and, after several weeks of alleged idleness, sued the president of the union for damages for causing his discharge. Reversing a judgment for $500 in his favor the court said:

"It is impossible to sustain this judgment upon any legal basis. The plaintiff has not shown that he was employed for any definite time by Rodin. If his hiring was for an indefinite term, Rodin had a right to discharge him at any time for cause or without cause.

"He evidently was discharged by reason of statement made by Lubin and Schuster, the latter representing the defendant. But these statements were not false or untrue. On the contrary, they were true and were merely to the effect that, according to the existing agreement between the members of the two associations, Rodin could not in consonance with that agreement longer continue plaintiff in his employ. If plaintiff had been employed for a definite time and discharged for the reason that he was not a union man, in an action brought against Rodin for a wrongful discharge it could have been determined whether or not this was a sufficient reason therefor. The responsibility for such a discharge rests entirely upon the employer, and he alone must respond in damages to such discharged employee, if the discharge is wrongful. There is also no evidence that the defendant in any way attempted to prevent the plaintiff from obtaining employment elsewhere, and it is perfectly clear that the plaintiff has no cause of action against the defendant."

C. COERCION BY THREATS AFTER TRIVIAL VIOLATION OF

UNION RULES

GRASSI CONTRACTING Co. v. BENNETT, 174 App. Div. 244 (July 10, 1916), abstract.

Plaintiff, having a contract to perform, obligated himself to employ only members of a union. The laws of the union pro

vided that "Under no circumstances shall any work be done. between the hours of 7 and 8 A. M., 12 M. and 1 P. M., and 12 м. and 6 P. M. on Saturdays." Two men were found by the steward of the union at work at 1:10 P. M. on a Saturday. On being brought before the union these men claimed that the work was done through inadvertence and without the knowledge of the employer. Plaintiff's treasurer denied before the executive board of the union that the plaintiff had any knowledge of the violation of the agreement, or gave its consent thereto. However, the executive board decided that plaintiff was conducting its business in an unfair manner and recommended that a foreman be placed on "each and every job" for one year, and that the "whole shop be cleaned out of the men who worked for them previous to this trouble." Plaintiff alleged that if this was done the cost of one job would be increased over three thousand dollars, and the cost of completing another job would be increased more than five thousand dollars; that all of plaintiff's employees were willing and desirous of continuing in its employ, and had petitioned the union to reconsider its action; that unless the plaintiff acceded to the union's demands, a strike would be called; and that the threatened action was in violation of plaintiff's contract with the union and tended to destroy the good will of the business. The terms of the contract between plaintiff and the union were not set forth. Affirming, after modifying the order granting the injunction so that it applied specifically only to the action contemplated, the court said:

"It is sought to justify the threatened action of the union by the violation of its regulations by two of its members in working overtime while in the plaintiff's employ. It may be assumed that it was within the jurisdiction of the union to prescribe the hours of labor for its members and to enforce such regulations against them by any proper discipline.

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but it is manifest that the action which it threatens to take cannot be justified on any theory of necessity to prevent further violations of its regulations with respect to hours of labor, and it is a reasonable inference that the violation of the rule has been taken advantage of and is to be made a pretext for the unlawful action threatened, and although thereby future violations may be prevented, that is not the purpose for which resort to such drastic action is to be had. Doubtless the union was not bound by the claims of the plaintiff and of the two members that the violation was inadvertent, for that claim is somewhat improbable; but it does not follow that the union was at liberty to make such violation the basis of an unlawful

demand upon the plaintiff. I assume that it would not be argued that the union would be justified on account of such violation in exacting from the plaintiff a large penalty in money as a condition of allowing its members to continue in the employ of the plaintiff. On the evidence in the record the action taken is more drastic than the infliction of a heavy money penalty. It not only involves the imposition of a penalty so far as the plaintiff is concerned in the loss of its profits and the expenditure of money in addition thereto, but involves the taking over of its contract work virtually without leaving any control or discretion in the plaintiff with respect thereto. The threatened action is not designed solely, if at all, to prevent a repetition of the violation of the regulations with respect to the hours of labor, but is conceded by the authorized representative of the union to have been taken to inflict a penalty upon the plaintiff as a punishment, and doubtless it was intended also as a warning to others, and this is shown by the fact that plaintiff is not to be permitted to retain any of its present employees, and that the union is, in effect, to take charge of all its work for a year. This threatened action is unlawful, and, I think, in view of the other material facts which presumably were known to the officers and members of the union, constitutes prima facie evidence of a conspiracy to injure the plaintiff by preventing it from exercising its constitutional right to continue its business and to hire such employees as it requires to perform its contracts, and to have the work performed under its own direction or under the supervision or direction of others selected by it. (Penal Law, § 580, subd. 5; *). I do not say that the facts show all of the elements of a criminal conspiracy within the provisions of the Penal Law (§§ 580, 583); but they do tend to show an unlawful conspiracy to injure the plaintiff which is not taken from the operation of the Penal Law prohibiting the acts by the exception contained in section 582 with respect to combinations to advance and maintain the rate of wages, for manifestly the threat to take over the supervision of the plaintiff's business for a year is not for the purpose of advancing or maintaining the wages of the members of the union. Of course, the plaintiff was not obliged to comply with the demand of the union with respect to selecting and placing a foreman on its work, but I answer that, as did Judge Vann in National Protective Assn. v. Cumming (supra, 343), wherein he said: 'It may be argued that the employers were not obliged to yield to these threats, and this is true; but non-compliance meant ruin to them, for their work would be completely tied up and their business paralyzed. A threat, with ruin behind it, may be as coercive as physical force.' The plaintiff, therefore, presented a case for injunctive relief."

D. ACTS SUFFICIENT OR INSUFFICIENT TO WARRANT INJUNCTIVE RELIEF

1. PICKETING

STUYVESANT, L. & B. CORP. V. REINER, 110 Misc. 357 (February, 1920), abstract.

Plaintiff corporation conducted a restaurant. There was no claim that plaintiff had discriminated against the employment of persons belonging to the union, in its employment of from

twenty to thirty waiters and kitchen help. There was no criticism of the wages paid nor the hours of labor. The uncontradicted evidence tended to show that an agent of the defendant union called upon one of the principal officers of the plaintiff who had previously been a member of the labor union, for the purpose of inducing him to unionize the restaurant. This plaintiff refused. to do. The agent continued his efforts and finally threatened a strike if there was not a compliance with his demands. Subsequently, he came to the restaurant and blew his whistle, but the employees refused to strike. Thereafter they united in an affidavit to the effect that they had no wish to strike, and were satisfied with their wage and work conditions. It appeared that two persons were discharged, both members of a union, but neither of them was threatened with discharge prior to the agent's visit. Immediately following plaintiff's refusal to unionize, the defendant union instituted picketing in front of plaintiff's premises. The employees were threatened and intimidated, and customers annoyed. Granting a restraining order against picketing, the court held that while, under ordinary circumstances, picketing has been upheld where peaceably conducted, it could not be employed when its purpose was to effect a malicious and wanton interference with another's business or vocation.

2. VIOLATION OF UNITED STATES SHIPPING ACT

BURGESS BROS. Co., INC., V. STEWART, 112 Misc. 347 (June, 1920), abstract.

On motion for a preliminary injunction it appeared that plaintiff was engaged in business as a dealer in lumber, with its principal offices in Brooklyn. In all its sales plaintiff contracts to deliver lumber at a point designated by the purchaser, and trucks the lumber by its regularly employed chauffeurs and teamsters. In its export trade plaintiff either acted as shipper in securing water transportation, or the purchaser acts as the direct shipper, but in either case the plaintiff's chauffeurs and teamsters haul the lumber to the steamship piers. Plaintiff selected its help regardless of union affiliations and adhered to the open shop policy.

The defendant steamship lines were all common carriers engaged in transporting general freight, including lumber, between the United States and foreign countries. The other defend