Plaintiffs (Reinforce, Inc., a corporation organized to carry on a lathing business, and Foley, its principal officer and owner) were awarded money damages by a jury, on their complaint that defendant union and its members had maliciously conspired to prevent plaintiffs from carrying on their business and had put an end to such business operations by causing some of the union members to quit their employment with plaintiffs, and by causing all the union's members to refuse to work for plaintiffs. The Appellate Division reversed plaintiffs' judgment on the law, and dismissed the complaint for
Plaintiff Foley was for many years a construction worker and member of the operating engineers union. After attending law school and being admitted to the Bar, he again took up construction work and in 1937 became president of one of the locals of his union. While so acting as a union representative, he, in 1940, 1945 and 1946, had three serious disagreements with the representatives of defendant union. The first of those controversies had to do with a complaint by defendants' officers that plaintiff Foley was siding with a contractor who, according to defendants, was violating a certain building contract, to defendants' disadvantage, by installing fewer steel rods than were called for in the specifications. In the second, or 1945, dispute, Foley lined up on the side of certain contractors and against defendant union, which was resisting efforts of the contractors to eliminate double pay for Saturday work. The third difference of opinion came in 1946, when, after a Federal board had authorized a seven-hour day in the construction industry, defendant union tried to obtain an agreement whereby its members would get eight hours pay for seven hours work, but the contractors (and Foley) insisted that the regular workday remain at eight hours.
In 1948, Foley organized the plaintiff corporation to go into the lathing business as a so-called "lumper", that is, one whose contracts require it to supply labor only on construction work, the general contractor furnishing the materials. Foley had never done lathing work, or operated as a "lumper" previously. On behalf of plaintiff Reinforce, he consulted one of defendants' principal officers, Matthews, who recommended one of the union members for the job of Reinforce's superintendent. Foley, for Reinforce, then signed a lathing contract on an apartment house job, and got some workers for it (between ten and thirty men, at various times) from defendant union. No contract, however, was ever made by the union, with either plaintiff. Late in 1948, Reinforce obtained several more lathing jobs. However, after a union hearing at which Foley appeared and at which there was some discussion of the old grievances, defendant union notified plaintiffs that Reinfoce had been denied approval as a contractor to which defendant union would supply men, and that, after the next payroll date, no members of the union would work for plaintiff Reinforce. None of the members ever did work for Reinforce thereafter, and so, since defendants' members included all the metal lathers in the vicinity, Reinforce was out of business. The union sent to Reinforce's general contractors some letters informing them of the union action, and we will mention those letters again, at another place in this opinion. All the above facts, including the recurring difficulties between Foley and the union, were undisputed at the trial.
The Trial Justice submitted to the jury questions of fact as to whether Foley was "anti-union" or "guilty of anti-union acts". In another part of his instructions he told the jurors that it was for them to decide whether defendants' purpose was to further the proper aims of union labor or whether their motive was vengeful and spiteful. Finally, he told them that if they should conclude that defendants had acted maliciously and without cause or justification, damages might be awarded to
Just as (when there is no binding contract) an employer may hire, or refuse to hire, at will, so may a worker or a group of workers refuse, or quit, employment for any reason or no reason (Opera on Tour, Inc., v. Weber, 285 N.Y. 348, 353; Hunt v. Cromboch, 325 U.S. 821, 825). But when men quit work in concert, they offend against the law if their sole and unmixed motive or purpose is to injure an employer (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N.Y. 260, 262; see GRAY, J., in National Protective Assn. v. Cumming, 170 N.Y. 315, 334; Bossert v. Dhuy, 221 N.Y. 342, 359; Williams v. Quill, 277 N.Y. 1; see Dorchy v. Kansas, 272 U.S. 306, 311). But, if the acts of unions "have any reasonable connection with wages, hours of employment, health, safety, the right of collective bargaining, or any other condition of employment or for the protection from labor abuses, then the acts are justified" (Opera on Tour, Inc., v. Weber, supra, p. 355). The result is not changed by the fact that the work stoppage or refusal injures an employer. Such harm, although intentionally done, is actionable only if not justified (Lough v. Outerbridge, 143 N.Y. 271, 283; Grombach Productions, Inc., v. Waring, 293 N.Y. 609, and cases cited; Aikens v. Wisconsin, 195 U.S. 194, 204). If the doers, by means not in themselves unlawful, of acts not in themselves unlawful, have any proper purpose to serve, they are not liable for the damage they cause (Peabody, Jr., & Co., v. Travelers Ins. Co., 240 N.Y. 511, 519; Al Raschid v. News Syndicate Co., 265 N.Y. 1). Unions, as well as everyone else, may claim the benefit of the settled rule that "the genesis which will make a lawful act unlawful must be a malicious one unmixed with any other and
The modern application, to controversies between unions and employers, of these rules, is illustrated by Rochette & Parzini Corp. v. Campo (301 N.Y. 228). There, the defendant union, whose members were the only ones available in the metropolitan New York area for certain kinds of stone work, decided not to supply labor to any subcontractors, and so put plaintiff, a subcontractor for such work, out of business. Just as in the present case, the question in Rochette was not as to the fairness, propriety or necessity of such a determination by the union. In the absence of proof that the motivation was entirely malicious, plaintiff had no remedy at law. In the Rochette situation, the union withdrew its members from an employment because the union thought it to its interest so to do. In each case it was impossible, on the record, to find that the sole motivation was "malicious", hence, there was no basis for a judgment against the union.
In Rochette & Parzini Corp. v. Campo (supra), there was another question, too, and some support was found there for a finding of illegal union activity by the union in sending, to other unions, letters coercing those unions not to work for plaintiff, and in sending letters to contractors describing plaintiff as "non-union", etc. However, the letters sent by the defendant union in the present case were in no way unlawful since they merely gave simple notification that "Reinforce, Inc. has not been approved by Local Union 46 as one of the lathing contractors to whom it will furnish union members", and that, "Effective as of the next payroll date no members of Local Union 46 will accept employment with, or continue in the employ of, Reinforce, Inc."
The judgment should be affirmed, with costs.
Plaintiff Reinforce, Inc., is engaged in the building trades, organized to conduct a lathing business. This is a branch of industry in which closed or union shop conditions prevail. This entrepreneur must hire its employees from among the members of defendant's union or cease to do business. It is willing to sign a labor contract with defendant union, providing for wages, hours and working conditions on a parity with other contractors in the same industry. Nevertheless defendant union refuses to enter into such a contract, or to permit its members to work for this contractor due to the circumstance that plaintiff, Thomas Foley, president and owner of Reinforce, Inc., was formerly president of one of the union locals, but fell into disfavor for the reason that he afterwards became a labor relations consultant, and took the employers' side in negotiations with unions for various clients in labor disputes. Now, as above stated, Foley has become a contractor himself, owning and managing Reinforce, Inc.
It is true that individual workers, whether union members or not, have the right to refrain from working for this contractor or for any employer for any reason. They may do so in combination where the purpose serves some legitimate labor objective (National Protective Assn. v. Cumming, 170 N.Y. 315; Opera on Tour, Inc., v. Weber, 285 N.Y. 348). The law recognizes a difference between quitting work or refusing to work as individuals and doing so by concerted action (Opera on Tour, Inc., v. Weber, supra). What may lawfully be done by an individual separately cannot always be done through acting in combination with others. Here, as it seems to me, defendant unions have no more right to enter into a combination to destroy the business of plaintiff for the reason that they disapprove his having become a contractor, or that as a labor consultant he favored contractors in collective bargaining negotiations, than the union in Opera on Tour, Inc., v. Weber had to combine to destroy an enterprise for the reason that it produced music by machinery instead of through live musicians. This court pointed out (p. 353) that the vice in Opera on Tour, Inc., v. Weber was that this was done "even though the members of the Stagehands' Union were not dissatisfied with respect to wages, hours or terms and conditions of their employment, and no controversy existed or exists between them and plaintiff."
The following quotation from the dissenting opinion by Mr. Justice JACKSON in Hunt v. Crumboch (supra, p. 829) is, as it seems to me, in accord with the law of this State as reflected in the trial court's charge to the jury: "Those statutes which restricted the application of the Sherman Act against unions were intended only to shield the legitimate objectives of such organizations, not to give them a sword to use with unlimited immunity. The social interest in allowing workers to better their condition by their combined bargaining power was thought to outweigh the otherwise undesirable restriction on competition which all successful union activity necessarily entails. But there is no social interest served by union activities which are directed not to the advantage of union members but merely to capricious and retaliatory misuse of the power which unions have simply to impose their will on an employer."
Where a union departs from its proper sphere of activity, and engages in concerted action that is unrelated to its reason for existence, it loses the protection of laws enacted to safeguard its legitimate status. This is by the same token whereby a public officer, who abuses his office by employing it as a pretext to accomplish unlawful aims, becomes a law breaker when he transgresses the objects and purposes for which the office exists.
The formula of "disinterested malevolence" as applied in Beardsley v. Kilmer (236 N.Y. 80, 90) is not adapted to this sort of situation. Rather, we are confronted by an unlawful combination in restraint of trade which does not enjoy the exemption
The judgment entered on the order of the Appellate Division should be reversed and that of the Trial Term entered upon the verdict of the jury should be reinstated.