Jacobs v. . Cohen

The plaintiff sues the makers and the indorser a promissory note, payable to the order of the Protective Coat Tailors' Union, of which he is the president, to recover the amount due thereon. The answer of the defendants denied the allegations of the complaint, except as to the making of the note, and set up as a distinct and separate defense that it was given "as collateral security to the plaintiff, to be applied as liquidated damages, for violation by the defendants, of any of the covenants and conditions of a certain contract." The particular part of the contract set forth is as follows: "That the party of the first part [meaning the makers' firm] shall not employ any help whatsoever other than those belonging to, and who are members of the party of the third part, [meaning a ``union' of the firm's employés] and in good standing, and who conform to the rules and regulations of the said party of the third part, and the said party of the first part shall cease to employ any one and all those employés who are not in good standing, and who do not conform to and comply with the rules and regulations of said party of the third part, upon being notified to that effect by its duly credentialed representatives. That the party of the first part shall not engage any help whatsoever, even those who are members of the party of the third part, without their first having produced a pass-card duly executed and signed by the authorized business agent of the party of the third part; said card to show that the bearer thereof is a member in good standing of the party of the third part, and that he has complied with the rules and regulations thereof in force at that time." The answer then alleged "that the said contract is in restraint of trade and the said contract has for its purpose the combination of employers and employees, whereby the freedom of the citizen, in pursuing his lawful trade and calling, is through such contract, combination and arrangement, hampered and restricted, and has also for its purpose the coercing of workingmen, to become members of the said Employees' Organization and come under its rules and its conditions, under the penalty of the loss of their positions and of deprivation of employment, and that such purposes are in restraint of trade, that they hamper and restrict the freedom of a citizen, in pursuing his lawful trade and calling and that they are against public policy and unlawful." To this defense, the plaintiff demurred, for being insufficient in law. The demurrer was sustained at the Special Term; but, upon appeal to the Appellate Division, in the second department, the judgment sustaining the demurrer was reversed and the demurrer was overruled. Permission was given to the defendants to appeal to this court and the following questions were certified for our review, namely:

"I. Is a contract made by an employer of labor, by which he binds himself to employ and to retain in his employ only members in good standing of a single labor union, consonant with public policy, and enforcible in the courts of justice in this state?

"II. Is the ``Second' separate defense, contained in the answer herein of the defendants, Morris Cohen and Louis Cohen, insufficient upon the face thereof to constitute a defense?"

If we refer to the prevailing opinion of the Appellate Division, it appears that the question in this case was there regarded as within our decision in Curran v. Galen, (152 N.Y. 33), and, hence, that the contract was unlawful because contrary to public policy. In this view, I think the learned justices below erred. The contract is annexed to, and made part of, the answer and is tripartite, between the defendants, Morris and Louis Cohen, a firm engaged in the tailoring business, their employés, represented by an attorney in fact, and a voluntary association, formed by the latter and called the Protective Coat Tailors' and Pressers' Union, of which the plaintiff is president. It provided for the employment by the Cohens of their employés, in their various skilled capacities, for the term of one year; for a system of work by the week; for the number of hours of work and for the mode of payment of the wages and, generally, for the regulation of the relations between the employers and their employés, including this particular agreement not to employ others than members of their employés' union. Whatever else may be said of it, this is the case of an agreement voluntarily made by an employer with his workmen, which bound the latter to give their skilled services for a certain period of time, upon certain conditions, regulating the performance of the work to be done, and restricting the class of workmen, who should be engaged upon it, to such persons as were in affiliation with an association, organized by the employers' workmen with reference to the carrying on of the very work. It would seem as though an employer should be, unquestionably, free to enter into such a contract with his workmen for the conduct of the business, without its being deemed obnoxious upon any ground of public policy. If it might operate to prevent some persons from being employed by the firm, or, possibly, from remaining in the firm's employment, that is but an incidental feature. Its restrictions were not of an oppressive nature, operating generally in the community to prevent such craftsmen from obtaining employment and from earning their livelihood. It was but a private agreement between an employer and his employés, concerning the conduct of the business for a year and securing to the latter an absolute right to limit the class of their fellow-workmen to those persons, who should be in affiliation with an organization entered into with the design of protecting their interests in carrying on the work; as, indeed, the agreement recites. Nor does the answer aver that it was intended, thereby, to injure other workmen; or that it was made with a malicious motive to coerce any to their injury, through their threatened deprivation of all opportunity of pursuing their lawful avocation. To coerce workmen to become members of the employés organization, through such a contract, is not the allegation of something, which the law will, necessarily, regard as contravening public policy. The allegation that its "purposes are in restraint of trade," or that "they hamper and restrict the freedom of a citizen," or "that they are against public policy," is the mere statement of a legal conclusion.

If the question were more correctly presented by some appropriate allegation, I, still, would be of the opinion that the agreement is not one which comes under the condemnation of the law. The right of workingmen to unite and to organize for the protection of their interests and welfare is not denied. It has been, expressly and recently, declared by this court. (Curran v. Galen, 152 N.Y. 33; National Protective Association v.Cumming, 170 ib. 315, at pp. 320, 334, 338.) The inviolability of the right of persons to freedom of action may well extend to any concert of action for legitimate ends, if consistent with the maintenance of law and order in the community and if not interfering with the enjoyment and the exercise by others of their constitutional rights. Their right to combine and to co-operate for the promotion of such ends as the increase of wages, the curtailment of hours of labor, the regulation of their relations with their employer, or for the redress of a grievance, is justifiable. Their combination is lawful, when it does not extend so far as to inflict injury upon others, or to oppress and crush them by excluding them from all employment, unless gained through joining the labor organization, or trades union. This we have decided and this the law of the state sanctions. (Curran v. Galen, supra; National ProtectiveAssociation v. Cumming, supra; Penal Code, § 170.) As it was observed in Curran v. Galen, an underlying law of human society moves men to unite for the better achievement of a common aim and this social principle justifies organized action. Organization, or combination, is a law of human society. It is open to all orders of men, who desire to accomplish some lawful purpose through the greater strength and effectiveness, which organization offers over individual effort. If surrender of individual liberty is involved in combination, that is, nevertheless, but an extension of the right of freedom of action. If, therefore, the organization of workingmen is not obnoxious to moral, or to legal, criticism and only the use, or directing, of the power of the organization to injure others, by preventing them from following their trade, is visited by the law with its condemnation, how can it fairly be said that the refusal of a body of men to work with those not in affiliation with them and an agreement with the employer, by which such are excluded from the shop, is acting beyond legally justifiable limits? Whether the reason for the refusal be purely sentimental, or whether based upon more substantial grounds, such as, for instance, an assurance of the character and of the competent skill of their fellow-workmen, is not material.

The case of Curran v. Galen, (supra), which stands unaffected as an authority, presented a very different state of facts. There the plaintiff demanded damages of the defendants, who were officers and members of an association of workingmen in the brewing business in the city of Rochester, for having conspired to injure him and to take away his means of earning a livelihood. In substance, he alleged in his complaint that he was threatened by certain of the defendants, members of the association, that, unless he became a member, they would obtain his discharge from employment and would make it impossible for him to obtain any employment in that city or elsewhere; that, upon his refusing to become a member of the association, the defendants forced his employers to discharge him and, by false and malicious reports circulated in regard to him, sought to bring him into ill-repute with members of his trade and employers, and to prevent him from prosecuting his trade and earning a livelihood. The answer to the complaint, among other defenses, set up an agreement between the Ale Brewers' Association in the city of Rochester and the particular association referred to in the complaint, to the effect that all employés of the brewery companies should be members of the association and that no employé should work for a longer period than four weeks without becoming a member; and that, upon the plaintiff's refusal to comply with defendants' request to become a member of the association, his employers were notified thereof in accordance with the terms of the agreement with the Ale Brewers' Association. To this matter set up as a defense the plaintiff demurred and the order sustaining the demurrer was affirmed in this court. I endeavored to point out in the opinion that the agreement could be no justification for the acts charged in the complaint and that it could not legalize a plan for compelling other workingmen to join the defendants' organization, at the peril of being deprived of employment and of making a livelihood. However lawful and legitimate the purposes of the organization of the workingmen may have been, its power and influence were being unlawfully wielded in efforts to keep other persons from working at the particular trade and to procure their dismissal from employment. In the general discussion of the question, I conceded the general right of workingmen to organize for the common good of the members and sought to show how the agreement and acts, there in question, were contrary to public policy and unlawful, because oppressive and restricting the freedom of others to engage in the same line of occupation, or to make a livelihood at their trade, as a penalty for refusing to join the defendants' organization. That was a very different case from the present one. The subsequent case of National Protective Association v. Cumming, (supra), in no wise overruled Curran v. Galen. It was not at all within the principle of the prior case. It concerned a dispute between rival labor organizations. The plaintiff organization sought to restrain the defendants from preventing the employment of its members and from procuring their discharge by any employer through threats and strikes, and the reversal of a judgment awarding the relief demanded was affirmed by this court. The right of the defendants, in that case, to refuse to permit their members to work with others, who were members of a rival organization, and to bring about their discharge upon the common work in which they were engaged, if confined to threats to withdraw from the work, or to ordering a strike of their own members, without resort to injurious acts, was admitted. The defendants' effort was not to compel the others to join with their organization as a condition of being allowed to work and, whether it was to secure only the employment of approved workmen, (which was a possible inference from the facts), or whether it was to obtain an exclusive preference in employment, if without resort to force, or the commission of any other unlawful acts, it was not within the condemnation of the law.

Within, even, the view expressed by the minority of the judges of this court in the Cumming case, the contract in the present case was not unlawful, which the employer made with his workingmen. Judge VANN asserted the right of every man "to carry on his business in any lawful way that he sees fit. He may employ such men as he pleases and is not obliged to employ those whom, for any reason, he does not wish to have work for him. He was the right to the utmost freedom of contract and choice in this regard." This contract was voluntarily entered into by the Cohens and, if it provided for the performance of the firm's work by those only who were accredited members, in good standing, of an organization of a class of workingmen whom they employed, were they not free to do so? If they regarded it as beneficial for them to do so, (and such is a recital of the contract), does it lie in their mouths, now, to urge its illegality? That, incidentally, it might result in the discharge of some of those employed, for failure to come into affiliation with their fellow-workmen's organization, or that it might prevent others from being engaged upon the work, is neither something of which the employers may complain, nor something with which public policy is concerned.

I think that the questions certified should be answered in the affirmative and, therefore, that the order of the Appellate Division, reversing the interlocutory judgment and overruling the demurrer, should be reversed and that the interlocutory judgment, which sustained the demurrer, should be affirmed, with costs in all the courts to the appellants.