Folsom Engraving Co. v. McNeil

Braley, J. The master reports that at a meeting of the local union, a voluntary association, of which the defendants are respectively the president and secretary, the other members being too numerous to be joined as parties though properly represented by the officers and members named, it was voted to submit to the “photo-engraving establishments of the city of Boston” a — 276 — form of proposed contract conferring on the union the absolute right of “collective bargaining,” and of preferential employment with a minimum wage scale, and that permanent employees should not be temporarily “laid off” even if there was not sufficient work to keep them employed. It was further provided that the ratio of apprentices to journeymen should be immutably fixed and that all disputes not covered by the agreement should be submitted to an arbitration committee of two from each party, but, if they failed to agree, a fifth member was to be chosen by the committee. And “No contracts, individual or otherwise, conflicting with this agreement be entered into, and all contracts of employment must be submitted and executed in accordance with the” by-laws and constitution of the international photo-engravers union with which the local union was affiliated. The agreement having been presented to the plaintiffs who are engaged in the business of “photo-engraving” and whose workmen included a large number of union men, was not accepted. The union because of non-acceptance voted to strike, and the employees who were members of the union ceased to work, forcing the plaintiffs to secure in so far as possible men and women to succeed them, some of whom entered into written contracts of service. The question for decision is not, whether an individual employee who has contracted to perform labor can abandon his contract, leaving his employer to whatever remedy in damages he may have. It is, whether by concerted action, using the strike as a mass weapon, the defendants could lawfully compel the plaintiffs to yield to their demands. The proposed agreement was presented as an entire contract to be unconditionally accepted. If the plaintiffs declined to enter into the agreement, the underlying purpose manifestly was to enforce acquiescence through the coercive power of a strike, which, even where there is both a legal and illegal purpose, is of itself illegal. Baush Machine Tool Co. v. Hill, 231 Mass. 30, 36. The provision that the employer must retain and pay more employees than were actually or reasonably required for carrying on his business, and that disputes not covered by the agreement must be submitted to arbitration, even if proper subjects for negotiation where the parties are willing to negotiate, were, until accepted, mere proposals, the refusal of which was wholly insufficient to justify the measures adopted — 277 — by the defendants. The plaintiffs could not be compelled to make an involuntary contract, or to substitute compulsory arbitration for due process of law. Haverhill Strand Theatre, Inc. v. Gillen, 229 Mass. 413. Reynolds v. Davis, 198 Mass. 294. But these provisions, while material and important, comprise a part only of a general plan to compel the plaintiffs, who were employing non-union as well as union labor, “to unionize” their shops.' The record states that, prior to the vote to strike which followed the1 decimation of the agreement, no disagreement or controversy had arisen between the plaintiffs and their workmen. It is true the agreement reads, that the plaintiffs in the employment of journeymen and apprentices will give preference to union men by notifying the union officials when additional journeymen and apprentices are needed, and if the union cannot furnish and supply competent help, the employer may secure such help from other sources; and no express requirement is found for the discharge of non-union men already under employment. No prolonged discussion however is needed to make plain that this was merely an indirect method which must culminate in a closed shop. The position of non-union employees under the practical working of the agreement would gradually become so unbearable and intolerable that, as they retired and were gradually eliminated by the process of selection, the plaintiffs necessarily must resort solely to union workmen to recruit their industrial force. It is unnecessary to consider what the status of the parties would have been if the agreement had been mutually accepted and executed. See Minasian v. Osborne, 210 Mass. 250; Hoban v. Dempsey, 217 Mass. 166; Shinsky v. O’Neil, 232 Mass. 99; Smith v. Bowen, 232 Mass. 106. The right of the plaintiffs at all times to hire in the labor market, and to retain in their employment, such workmen as they might choose, unhampered by the interference of the union acting as a body through the instrumentality of a strike, or of a boycott, or of a black list, is a primary right which has never been abrogated but remains unimpaired by our decisions. W. A. Snow Iron Works, Inc. v. Chadwick, 227 Mass. 382, 389. Folsom v. Lewis, 208 Mass. 336. The distinction between the cases at bar and Pickett v. Walsh, 192 Mass. 572, and kindred decisions, where the strike was inaugurated for the sole purpose of getting — 278 — all the work on a particular job for members of the union who-already had obtained a part of it, and a strike for the purpose of doing away with non-union labor altogether, and, by gaining a. general monopoly of the labor market, to force employers to deal only with union men, is plain. The master reports that in furtherance of their efforts to bring the plaintiffs to terms, picketing,, as well as intimidation of employees who continued to work for the plaintiffs by' the use of scurrilous language and abusive epithets, and individual boycotting have been resorted to in various forms more or less offensive and oppressive. It is also found that strenuous attempts have been made to induce workmen, employed by the plaintiffs to take the places of the strikers, to break their contracts of employment, and to depart from the city, and to remain in other localities. But, not satisfied with these methods insistently practised, the report further states, that the defendants in various printed or written communications characterized and held up the plaintiffs as being unfair to and prejudiced against union labor, and have endeavored by a circular letter to persuade their customers to boycott the "plaintiffs and to cease business dealings with them. The St. of 1913, c. 690, an act to define the extent to which peaceful persuasion is permitted, is invoked as a shield for what has been done. But the statute is applicable only to a lawful strike lawfully conducted. It is unavailing as a defence on the present record. The prayer for the assessment of damages has been waived, and, the defendants having deliberately, intentionally and unlawfully entered upon a course of procedure materially interfering with the right of the plaintiffs unmolested to carry on business in their own way, the plaintiffs are respectively entitled to a decree with costs awarding injunctive relief, the terms to be settled by a single justice. Berry v. Donovan, 188 Mass. 353. Cornellier v. Haverhill Shoe Manuf. Association, 221 Mass. 554. Shinsky v. Tracey, 226 Mass. 21. W. A. Snow Iron Works, Inc. v. Chadwick, 227 Mass. 382. Martineau v. Foley, 231 Mass. 220. Ordered accordingly.