Opera on Tour, Inc. v. Weber , 285 N.Y. 348 ( 1941 )

The question presented for decision is far reaching and of vital importance to the best interests of unions of employees, of employers and of the general public. The only issue is whether the leaders of the defendant unions were engaged in promoting a lawful labor objective when the Musicians' Union induced the Stagehands' Union to join in a combination to destroy an enterprise solely because of the use of machinery in the production of music in place of the employment of live musicians.

There is no issue involved in this case of a possible compromise. The defendant Musicians' Union refused all offers of compromise made by the plaintiff. The position of the Musicians' Union cannot be better stated than it is in a letter from that union to the Stagehands' Union: "Our Federation is not in a position to compromise this matter * * * nothing short of ceasing to use canned music can be considered as safeguarding the interests of our organization."

This position was adopted and resolutely held even though such adherence destroyed plaintiff's business. The result was the loss of employment of over fifty stagehands, actors and singers, even though this business, which was being destroyed, had created new opportunities of employment where none had existed before.

At the outset we note that there is in the decision of the case at bar no denial of the right to strike. On that issue our decisions are not in doubt. (May's Furs Ready-to-War, Inc., v. Bauer, 282 N.Y. 331; Goldfinger v. Feintuch, 276 N.Y. 281. ) Individually and collectively, the members of any union may at any time refuse to work, because machinery is employed or for any other reason, and may strike in so doing. The members of these unions are free to refuse to work if they object to working in the presence of a machine. But what is here enjoined is the inducement by the Musicians' Union of the Stagehands' Union to enter into a combination to destroy the business of the plaintiff solely because machinery instead of live musicians is used. Here the members of the Stagehands' Union were ordered and coerced to leave the employ of the plaintiff, causing the ruin of plaintiff's business and the destruction of the opportunity of employment of a larger group of stagehands, actors and singers, and the denial to the public of an opportunity to enjoy the benefits of the classic operas. This, 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.

After a trial at Special Term, it was found upon sufficient evidence that plaintiff was engaged in the business of rendering performances of grand opera with an orchestral accompaniment of music mechanically reproduced from records instead of by an orchestra of live musicians. The purpose was to make grand opera available in those cities and towns of the United States which could not afford otherwise this form of entertainment because of the prohibitive cost of transporting a grand opera orchestra. Each of the two defendants is a labor union.

It was found that the members of the defendant unions had no other grievance of any kind, nor did there exist any controversy except this demand to discard machinery, between plaintiff and the defendant unions. The defendant Musicians' Union threatened to and did put plaintiff out of business solely because of the use of recorded music. The defendant Musicians' Union induced the defendant Stagehands' Union to order its members to cease rendering any service to plaintiff, which order had to be obeyed by the members of the defendant Stagehands' Union since over ninety-five per cent of the theatres and auditoria in the United States are closed shop, and without membership in the defendant Stagehands' Union the latter find it practically impossible to obtain employment. In addition, the defendant Musicians' Union ordered that no member of that union render services to plaintiff, and caused the American Guild of Musical Artists to order its members not to render services to plaintiff, and members of the Stagehands' Union not to accept employment from plaintiff. If they had not been so ordered, the members of the defendant Stagehands' Union would have continued to render services to plaintiff. As a result of this conspiracy between the two defendant unions, plaintiff was unable to fulfill its bookings and its contracts which had already been made and was prevented from entering into further engagements for the presentation of opera, and in consequence thereof this entire enterprise was forced to come to a complete stop. It was likewise found at Special Term that there was no labor dispute or controversy between the defendant unions and plaintiff, or between any member of those unions and plaintiff, and that the case did not involve or grow out of a labor dispute between plaintiff and these defendants, the only contention being the demand and refusal to cast out machinery.

An injunction was thereupon granted restraining defendants from interfering directly or indirectly with the business of plaintiff, and from ordering and coercing any person or persons to cease performing service for plaintiff, and from ordering and coercing employees of plaintiff to leave the employ of plaintiff, on the ground that plaintiff uses records or transcribed or mechanically reproduced music in connection with its performances, and from entering into a conspiracy with any group or organization having as its object the destruction of the business of plaintiff for the aforesaid reason, namely, to prevent the rendition of any services to plaintiff, on the ground that plaintiff uses music reproduced by machinery in connection with its performances.

Does this demand of these defendant unions, that plaintiff discard machinery in the interest of the immediate employment of a few individuals, constitute a lawful labor objective? If the acts of these 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. (National Protection Association v. Cumming, 170 N.Y. 315;Bossert v. Dhuy, 221 N.Y. 342; J.H. S. Theatres, Inc., v.Fay, 260 N.Y. 315; Goldfinger v. Feintuch, 276 N.Y. 281;May's Furs Ready-to-Wear, Inc., v. Bauer, 282 N.Y. 331;Baillis v. Fuchs, 283 N.Y. 133.) If on the other hand the labor objective here sought is illegal and not a lawful labor objective, since it has no reasonable connection with wages, hours, health, safety, the right of collective bargaining, or any other condition of employment or for the protection of labor from abuses, then there is no immunity for injury inflicted by a labor union. For such activities labor is not free from legal responsibility. "* * * prima facie, the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law * * * requires a justification if the defendant is to escape. * * *" (Mr. Justice HOLMES in Aikens v.Wisconsin, 195 U.S. 194, 204.)

The self-interest of labor, like the self-interest of any other body, receives immunity only for those objectives which have a legitimate and reasonable relation to lawful benefits which the union is seeking. When the labor objectives are illegal, the courts must control, otherwise there are bodies within our midst which are free from the provisions of the Penal Law. When doubt arises whether the contemplated objective is within the legal sphere, or without and so illegal, it is for the courts to determine. In Exchange Bakery Restaurant, Inc., v.Rifkin (245 N.Y. 260, 262) we said: "If, however, any action taken is concerted; if it is planned to produce some result, it is subject to control. As always, what is done, if legal, must be to effect some lawful result by lawful means, * * *." By way of illustration, the courts condemn the combined effort of employees to coerce an employer to pay a stale or disputed claim, even though it might be to the self-interest of the striking employees. (Dorchy v. Kansas, 272 U.S. 306.) So a conspiracy is illegal involving extortion or to force the employer to commit a crime; or one where the intent to injure rests solely on malice or ill will. Or if those engaged in police duty or in the armed forces should conspire in the face of an emergency or otherwise to coerce others to cease maintaining law and order or defense. A secondary boycott has always been held to be an illegal labor objective. (Auburn Draying Co. v. Wardell, 227 N.Y. 1, 11.) Harm done to another or to the public may be countenanced only if the purpose, in the eye of the law, is sufficient to justify such harm.

So in Scavenger Service Corporation v. Courtney (85 Fed. Rep. [2d] 825), a labor union joined an employers' association to prevent plaintiff from price cutting in performing scavenger service in the city of Chicago. This labor objective was held unlawful.

To make impossible the continuance of a business and thus to prevent the employment of a full complement of actors, singers and stagehands merely because a machine is not discarded and in place thereof live musicians employed, is not a lawful labor objective. In Hopkins v. Oxley Stave Co. (83 Fed. Rep. 912) the labor objective sought was to abandon certain machines for hooping barrels which materially lessened the cost of making the same. The introduction of the machine actually resulted in the dismissal of certain employees, and the court held the labor objective unlawful.

In Haverhill Strand Theatre, Inc., v. Gillen (229 Mass. 413) the owner of a motion picture theatre used an organ played by hand during the presentation of its pictures. A union sought to compel the use of an orchestra of five pieces. The Supreme Court of Massachusetts held that defendants were guilty of an unlawful labor objective.

For a union to insist that machinery be discarded in order that manual labor may take its place and thus secure additional opportunity of employment is not a lawful labor objective. In essence the case at bar is the same as if a labor union should demand of a printing plant that all machinery for typesetting be discarded because it would furnish more employment if the typesetting were done by hand. We have held that the attempt of a union to coerce the owner of a small business, who was running the same without an employee, to make employment for an employee, was an unlawful objective and that this did not involve a labor dispute. (Thompson v. Boekhout, 273 N.Y. 390.) So, too, in a case just unanimously decided, we held that it was an unlawful labor objective to attempt to coerce a peddler employing no employees in his business and making approximately thirty-two dollars a week, to hire an employee at nine dollars a day for one day a week. (Wohl v. Bakery Pastry Drivers Union, 284 N.Y. 788. )

Since the endeavor to prevent the use of a mechanical device bears no reasonable relation to wages, hours of employment, health, safety, the right of collective bargaining, or any other condition of employment or for the protection of labor from abuses, there is no labor dispute within either the letter or the spirit of the Civil Practice Act. (Civ. Prac. Act, § 876-a, subd. 10; Thompson v. Boekhout, 273 N.Y. 390; Luft v. Flove,270 N.Y. 640.) In other words, there is involved in the case at bar solely the demand that a new enterprise shall not make use of machinery in order to create places for live musicians. Neither in the previous judicial decisions of this court has it been held, nor in any statute enacted, that a dispute is a labor dispute which has no connection with or relation to terms or conditions of employment, collective bargaining, protection from abuses, or respective interests of employer and employee. In the case at bar there is no actual employment at all. There is the use of a machine in place of a human relationship between one individual and another. Section 876-a (subd. 10, par. c) defines a labor dispute as any controversy concerning terms or conditions of employment, or concerning representation in arranging terms and conditions of employment, or any controversy arising out of the respective interests of employer and employee whether they stand in such relationship or not. All these words assume the existence of a human relationship. The words of this statute eo nomine relate to terms or conditions of employment, the right of representation for purposes of collective bargaining concerning such terms and conditions of employment, and the respective interests of employer and employee. Such respective interests of employer and employee must be interests that grow out of or have some relationship to employment. Advantage not connected with employment is not the interest referred to in the statute. To coerce an employer to commit a crime, or to pay a stale claim (Exchange Bakery Restaurant, Inc., v. Rifkin, 245 N.Y. 260,262; Dorchy v. Kansas, 272 U.S. 306), even though the payment of such a claim may be to the material advantage of the employees, does not make such actions labor disputes or bring them within the terms of the phrase "the respective interests of employer and employee" and thus overrule the previous decisions of this court and of the Supreme Court of the United States. The cases of Goldfinger v. Feintuch (276 N.Y. 281), May's Furs Ready-to-Wear, Inc., v. Bauer (282 N.Y. 331) and Baillis v.Fuchs (283 N.Y. 133) were all cases where a mere inspection of the questions presented shows the legitimate and real labor interests there involved. Thus the previous decisions of this court have recognized that there are unlawful labor objectives and that the courts must take cognizance of the difference between an unlawful objective and an objective which has some legitimate connection with terms or conditions of employment or concerning an interest of an employer or employee, even though the parties concerned do not themselves stand in an employer-employee relationship.

There is in the case at bar no question raised concerning the dismissal of any employee on account of the introduction of machinery. In Scavenger Service Corporation v. Courtney (85 Fed. Rep. [2d] 825), decided since the enactment of the Norris-LaGuardia Anti-Injunction Act, it was held that the labor objective, to compel the discontinuance of price cutting, was an illegal labor objective. This was so held notwithstanding the claim that price cutting practices tended to depress the wage scale and thus involved an economic dispute. A labor dispute is an economic dispute, but not all economic disputes are labor disputes. In the Scavenger case the court said: "We are clearly of the opinion that no labor question is involved, and the District Court was not therefore denied jurisdiction by reason of the Labor Injunction Act (Norris-LaGuardia Act, 29 U.S.C.A. §§ 101-115). Three decisions of this Court (citing cases) are decisive of this question. By no stretch of reasoning can we find a labor question involved in this controversy" (p. 832).

A majority of the Appellate Division sought to limit the effect of the question herein decided by stating that they were passing solely on the right of the defendants to stop work in protest against the use of mechanical music. As we have pointed out earlier in this decision, the right to strike is not involved in this case. Also the right to strike does not prevent the issuance of an injunction against a continuance of the unlawful labor objectives sought herein by the defendant unions. The leaders of a labor union cannot make an illegal objective legal merely by the use of a legal method (the strike) to obtain that objective.

An attempt was made to rest this appeal on the employment of one Schavitch, against whom the Musicians' Union has a grievance, as well as upon the employment of a non-union pianist. This issue was found to be belated and was brushed aside by both the majority and minority in the Appellate Division and need not concern us here.

It follows that the judgment of the Appellate Division should be reversed and that of the Special Term affirmed, without costs.