McCord v. Thompson-Starrett Co.

Scott, J.: We would find no difficulty in affirming this judgment if the Building Trades Employers’ Association had gone no further than to order a general “lock out” of the members of the Brotherhood of Carpenters. The communication of September 22, 1904, however, does go [131] farther, and instructs the members of the association that no men may be set to work, or retained at work, who do not at once join a particular labor union, the Greater New York Carpenters’Union. This requirement, if it is to be considered as the act of the association, was against public policy, illegal and void. (Curran v. Galen, 152 N. Y. 33 ; Jacobs v. Cohen, 183 id. 207.) I see no reason why we are not bound to regard this 2'equirement as the act of the association. By its constitution the board of governors is designated as the body' which is authorized to act for the association and to issue orders to the members. The complaint alleges, and the court has found, that the letter containing the objectionable order was “ sent to said defendant by the said Board of Governors and certified by its Secretary.” It is true that the letter speaks of the emergency committee as directing that all carpenters then in the employ of a member, who are competent, shall become members at once of the Greater Hew York Carpenters’ Union, and it does not appear who constitute the emergency committee or what power it possessed. But the same letter also contains the injunction, not purporting to emanate from the emergency committee, that no brotherhood carpenter, although willing to sign the arbitration plan, may be set to work unless he at once joins the designated union. Whether these instructions originated with the emergency committee or any one else, the board of governors, by causing them to be subscribed by their secretary and by sending them to the members of the association, adopted them and made them their own. In so doing, as it seems to us, they exceeded their lawful authority and undertook to impose upon the Thompson-Starrett Company an obligation which it was not required to assume. The bonds sued upon, although purporting to be given to secure liquidated damages, are in fact given to secure penalties for non-compliance with the order of the association, for it is apparent that the association, as such, could suffer no actual pecuniaiy damage from the disobedience of an order. To collect a penalty for the disobedience of an order, it must appear that the order was one which was rightfully and lawfully given, and as it appears that the asscciation exceeded its authority in requiring that no carpenter should be employed unless he joined a particular union, it follows that the penalty cannot be collected. [132] I do not understand that there is any serious difference of opinion between us as to the illegality of the directions to employ only members of one particular union. This seems to be established by the opinion of the Court of Appeals in Curran v. Galen (supra), reaffirmed and explained in Jacobs v. Cohen (supra). In the'latter case Judge Gray, writing for the court, makes it' quite clear that while an individual employer may lawfully agree with a labor union to employ only its members, because such an agreement is not of an oppressive nature operating generally throughout the community to prevent craftsmen in the trade from obtaining employment and earning their livelihood, yet that such an agreement when participated in by all or by a large proportion of employers in any community becomes oppressive and contrary to public policy because it operates generally upon the craftsmen in the trade and imposes upon them as a penalty for refusing to join the favored union, the practical impossibility of obtaining employment at their trade and thereby gaining a livelihood. The evidence makes it quite clear that the objectionable order of September 22, 1904, was of the latter class, for it is in evidence that the employers’ association embraced nearly every prominent building contractor, and that the “ lock out” affected practically the whole building trade in the borough of Manhattan. It is suggested, however, that even if the order to employ only members of the Greater Mew York Carpenters’ Union was beyond the authority of the board of governors of the employers’ association, still the earlier orders which merely forbade the employment of members of the Brotherhood of Carpenters, were authorized and lawful, and that the disobedience of these by defendants constituted a breach of the conditions of their bonds. Hence, it is argued that the illegal order may be ignored and tb^ forfeiture upheld by reason of the disobedience of the earlier orders, which are assumed to have been lawful. The difficulty with this argument is that the defendants did obey the earlier orders and did -lay off their employees in obedience to them. Indeed, for a long time after the issuance of the obnoxious order they continued to lock out the members of the Brotherhood of Carpenters, and made efforts to obtain a sufficient number of carpenters from outside the membership of that organization. There 'certainly is no reason to suppose that if defendants had filled up their work [133] ing force with carpenters unaffiliated with any labor organization, the employers’ association would have accepted their action as a compliance with its orders for the violation of the illegal order of September 22, 1901, is expressly included in the bill of complaint as a reason for forfeiting the bonds sued upon. The judgment appealed from must, therefore, be reversed and a new trial granted, with costs to the appellants to abide the event. Patterson, P. J., and Lattghlin, J., concurred; Ingraham and Olarjke, JJ., dissented.