Citations
- 99 A.D. 605
Full opinion text
Jenks, J. :
The defendant printing company was ordered to show cause why an injunction should not issue, restraining it from discharging the plaintiff or any other of its workmen because of their failure to join the labor unions mentioned in the complaint, and from carrying out the provisions of two contracts made with two of the unions, defendant. The other defendants were ordered to show cause why they should not be restrained and enjoined from in any way interfering with the plaintiff or any of his fellow non-union workmen in their employment by the printing company, from organizing a strike against the said defendant printing company, from picketing, boycotting, or in any way interfering with its business management and affairs, or with any of its officers, agents, employees or servants, and that they and each thereof be restrained from boycotting or in any way interfering with the sale of any goods manufactured by the defendant printing company. The order contained a preliminary injunction. Upon the hearing, the Special Term continued the injunction pendente lite as to the defendants other than the printing company, but'denied the injunction as against the printing company-These are cross-appeals from that order by the plaintiff, and by the defendants other than the printing company.
It must be carefully noted that the defendants appellant are thus restrained from “ organizing a strike against the said defendant printing company,” from “ picketing ” and from “ boycotting.” I think that the injunction against organizing a strike cannot stand, and that the injunction against “picketing” and “boycotting” runs in terms too broad, and that the learned Special Term rightly denied the injunction as against the printing company. The record contains many affidavits full of allegations, denials, counter allegations and counter denials. This is natural to a hearing of such issues upon ex p/arte statements unsubjected to the tests of cross-examination, and unrestricted by rulings upon relevancy, materiality or competency. It may be that the judgment upon trial will be far different from any preliminary relief which this record justifies. (See Warsaw Water Works Co. v. Warsaw, 4 App. Div. 509; Meyers v. City of New York, 58 id. 534.)
The defendants should not be restrained from “ organizing a strike against the said defendant printing company.” An employee who has not bound himself to his master by contract cannot be bound to him by law. Therefore, he may quit his work. If he may quit his work absolutely, he may quit it because the conditions thereof are not to his liking, and he is free to say that he will not take up that work until the conditions are to his liking. What one may lawfully do alone, he may do in concert, and hence a strike is not jper se unlawful. The court, in National Protective Assn. v. Cumming (170 N. Y. 315, 321) do not differ over the proposition that “a peaceable and orderly strike, not to harm others, but to improve their own condition, is not in violation of the law.” . (See, too, Wunch v. Shankland, 59 App. Div. 482.)
“ Picketing ” may simply mean the stationing of men for observation. If in the doing of this act, solely for such purpose, there be no molestation or physical annoyance, or let or hindrance of any person, then it' cannot be said that such an act is per se unlawful. But “ picketing ” may also mean the stationing of a man or men to coerce or to threaten, or to intimidate or to halt or to turn aside against their will those who would go to and from the picketed place to do business, or to work, or to seek work therein, or in some other way to hamper, hinder or harass the free dispatch of business by the employer. In that case picketing may well be said to be unlawful. .But the vice of the injunctive order lies in the fact that this word, unqualified, may signify a lawful act. (See Krebs v. Rosenstein, 31 Misc. Rep. 661; Levy v. Rosenstein, 66 N. Y. Supp. 101; affd., 56 App. Div. 618; 67 N. Y. Supp. 630; Rogers v. Evarts, 17 id, 264; Cumberland Glass Mfg. Co. v. Glass Bottle Blowers’ Assn., 59 N. J. Eq. 49.) Rogers v. Evarts (supra) was affirmed subnom. Reynolds v. Everett (67 Hun, 294) which was affirmed (144 N. Y. 189), Gray, J., saying: “ There were absent the elements of intimidation, oi’, as the trial judge observed, of such circumstances surrounding the acts of persuasion and entreaty as would characterize them as intimidation.” I may add that I am not prepared to say that all picketing which goes no further than “ persuasion and entreaty ” of those who are about to work or to seek work or to do business in the picketed place is absolutely lawful. A wayfarer upon the public street should be free for peaceful travel. No man against my will has the legal right to occupy the public street to arrest my course or to join me on my way, be he ever so polite or gentle in his insistence. There may be no intimidation, and yet an interruption of peaceful travel. There may be annoyance without danger.
The experience of Captain Boycott has added to our language a substantive and a verb. There is little, if any, question as to the meaning of the substantive, but there is no commonly accepted definition of the verb. Some courts have defined it as necessarily implying violence, or intimidation, or the threat thereof ; others as but necessarily implying abstention. A may refuse to trade with B unless B changes a certain policy, and A may think that his attitude is necessary for his own welfare and protection. It cannot be contended that A thereby offends the law. In Mogul Steamship Co. v. McGregor, Gow & Co. (66 L. T. Rep. [N. S.] 1) Halsbury, L. C., says: “Now it is not denied and cannot be even argued that, prima facie, a trader in a free country in all matters £ not contrary to law may regulate his own mode of carrying it on according to his own discretion and choice.’ ” Judge Cooley in his work on Torts (2d ed. p. 328) says: “ It is a part of every man’s civil rights that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason or is the result of whim, caprice, prejudice or malice. With his reasons neither the public nor third persons have any legal concern.” If A may take this step, it does not seem logical to hold that A and C together may not, and may not, by argument, persuasion and entreaty, bring D and E to their side. If A, C, D and E cannot do what A alone may lawfully do, the vice must be in the combination. But there is no dissent in our highest court over the proposition in National Protective Assn. v. Cumming (supra), that “ whatever one man may do alone he may do in combination with others, provided they have no unlawful object in view. Mere numbers do not ordinarily affect the quality of an act.” Parker, Ch. J., and Vann, J., are in accord (pp. 321, 338), and Gray, J., the other judge who wrote in that case, has expressly affirmed this principle in his dissent in Straus v. American Publishers' Assn. (177 N. Y. 473, 491). A’s attitude may be trivial as to B, when that of the combination might enforce B’s concessions, but this affords no legal reason against such combination. It is not in the breast of the court to stamp as illegal a combination for the betterment of the interests of the members thereof or of some of them, and which, without incidental violence or intimidation, severs all business dealings with an outsider until it may secure it. If this be illegal, where can we draw the line so as to countenance association to insure united, and, therefore, effective action to right what seems wrong, or to correct what seems an abuse, or to mark disapproval of some policy in the every day affairs of our social life ? The protest of one under threat of abstention may be unheeded in view of the slightness of the penalty, when a like protest of many, with similar threat, is effective, and only because the penalty is too great to pay. Lawful and concerted protest can regulate many things within the law without invoking paternal government.
It may be that the result of the boycott is a loss to him proscribed. Else, the combination would fail of its purpose. But when the result sought by a boycott is to protect the members of the combination or to enhance their welfare, that loss is but the incident of the act, the means whereby the ultimate end is gained. In Quinn v. Leathem (App. Cas. [1901] 495) Lord Shand marks the distinction between that case and the well-known case of Allen v. Flood (App. Cas. [1898] 1). He says: “ In Allen v. Flood, * * » the purpose of the defendant was by the acts complained of to promote his own trade interest, which it was held he was entitled to do, although injurious to his competitors, whereas in the present case, while it is clear there was combination, the purpose of the defendants was ‘to injure the plaintiff in his trade as distinguished from the intention of legitimately advancing their own interests.’ * * * Lord Herschell, for example, said: ‘ The object which the defendant and those whom he represented had in view throughout was what they believed to be the interest of the class to which they belonged; the step taken was a means to that end.’ * * * ‘ The case was one of competition in labour, which, in my opinion, is in all essentials analogous to competition in trade, and to which the same principles must apply.’ ” I think that the statement of Bouvier (1 Bouvier L. Diet. [Rawle’s Rev.] 260) is correct: “ A boycott is not unlawful unless attended with some act in itself illegal (54 Minn. 223).” I think that the verb “ to boycott ” does not necessarily signify that the doers employ violence, intimidation or other unlawful coercive means, but that it may be correctly used in the sense of the act of a combination in refusing to have business dealings with another until he removes or ameliorates conditions which are deemed inimical to the welfare of the members of the combination, or some of them, or grants concessions which are deemed to make for that purpose. And as such a combination may be formed and held together by argument, persuasion, entreaty or by the “ touch of nature,” and may accomplish its purpose without violence or other unlawful means, i.