Citation Numbers: 188 Misc. 752
Judges: Church
Filed Date: 2/19/1947
Status: Precedential
Modified Date: 1/12/2023
The plaintiffs seek to recover from the defendants’ union the sum of $981.74 which they deposited with the union in the following circumstances: Between January, 1941, and October 15,1945, plaintiffs operated a restaurant and night club in which they employed members of defendant union as instrumental musicians. During that period plaintiffs’ restaurant and night club was classified by the union’s executive board as a class B restaurant and they paid the musicians the Tm'm'nmm rates of compensation fixed by the union for class B restaurants and night clubs. On October 15,1945, the secretary of the union advised plaintiffs in writing that commencing with the 22d day of October, 1945, the plaintiffs ’ restaurant and night club would be classified as a class A restaurant and that plaintiffs would be required to pay the musicians employed by them the minimum rates of compensation which the union’s executive board had established for all class A restaurants and night clubs. Plaintiffs objected to the reclassification of their restaurant and night
All that the plaintiff’s claim amounts to is that they were induced to pay the higher wages demanded by the union because they could not obtain the services of the union’s members unless such payment were made. Obviously, such a claim does not give rise to any cause of action. An employer is free to deny employment to workers unless the workers are willing to accept employment at the wages and upon the terms and conditions which he offers them. By the same token workers in private industry are free to refuse employment or withdraw from employment unless the employer is willing to meet their terms as to wages, hours and working conditions. Workers, in the absence of statute, cannot base a claim against an employer for wages greater than those which they agreed to accept on the ground that their consent to the lower wage was involuntary and dictated by their economic necessities. By the same token employers, in the absence of statute, cannot base a claim for a return of a portion of the wages which they agreed to pay on the ground that their consent to higher wages was involuntary and dictated by their need of the workers’ services. These propositions are well settled in our jurisprudence. In People v. Cuddihy (151 Misc. 318, affd. 243 .App. Div. 694) where the defendant was indicted for extortion and coercion because he had exacted from the complaining witness, as a condition of giving him employment, the repayment of a substantial portion of the union’s scale of wages, the court dismissed the indictment, say
Long before the foregoing was written, the Court of Appeals expressed the same doctrine, when it said in Bossert v. Dhuy (221 N. Y. 342, 352-353): “ 1 It is not the duty of one man to work for another unless he has agreed to, and if he has so agreed but for no fixed period, either may end the contract whenever he chooses. The one may work, or refuse to work, at will, and the other may hire or discharge at will. The terms of employment are subject to mutual agreement, without let or hindrance from any one. If the terms do not suit, or the employer does not please, the right to quit is absolute, and no one may demand a reason therefor. 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 the act. W7orkingmen have the right to organize for the purpose of securing higher wages, shorter hours of labor or improving their relations with their employers. They have the right to strike; that is, to cease working in a body by prearrangement until a grievance is redressed, provided the object is not to gratify malice or inflict injury upon others, but to secure better terms of employment for themselves.’ ”
Plaintiffs seem to be of the belief that the courts are censors of the reasonableness and propriety of labor’s economic demands. They are not, of course. But even if they were, there is no evidence in this record that the union acted unreasonably or arbitrarily or in bad faith. On the contrary, plaintiff Larsen admitted so many substantial changes in the character of plaintiffs’ businéss, as well as in its practices, as to require a holding, if this court were vested with the jurisdiction to make such holding, that the union acted in the proper exercise of its discretion when it reclassified plaintiffs’ restaurant and night club.
Larsen admitted that when the plaintiffs first opened the restaurant in 1941 they featured a ninety-nine cent dinner and
The changes which the plaintiffs made in the nature and practices of their business were of such proportions that beginning in 1945 they advertised the Iceland Restaurant as “ Broadway’s Biggest Night Club ”.
If the court had the power to pass upon the reasonableness Hid propriety of the union’s action in reclassifying the restaurant from B to A, the wages for which had hitherto been established with approval of National War Labor Board, it cannot say that the union, in reclassifying plaintiffs’ restaurant and night club, had acted unreasonably and arbitrarily and in bad faith.
The court takes judicial notice of the Stabilization Act of 1942 (U. S. Code, tit. 50, Appendix, § 961 et seq.) and of various Executive Orders issued by the President pursuant to the act in respect to the stabilization of wages, the purport of all of which was that employers could not lawfully pay and employees could not lawfully accept, during the war period, wage increases without the approval of the National War Labor Board. However, on August 18, 1945, the President promulgated Executive Order No. 9599 (Code of Fed. Reg., 1945 Supp., tit. 3, p. 104) which provides in subdivision 1 of section IV thereof as follows: “ The National War Labor Board, and such other agencies as may be designated by the Director of Economic Stabilization with the approval of the Director of War Mobilization and Reconversion, are authorized to provide that employers may,
On the same day, i.e., August 18,1945, the National War Labor Board issued its General Order No. 40 (Code of Fed. Reg., 1945 Supp., tit. 29, § 803.40) reading as follows: “ (a) Employers may, through collective bargaining with duly certified or recognized representatives of the employees involved, or, if there is no such representative, by voluntary action, make wage or salary increases without the necessity of obtaining approval therefor, upon the condition that such increases will not be used in whole or in part as the basis for seeking an increase in price ceilings or for resisting otherwise justifiable reductions in price ceilings, or, in the case of products or services being furnished under contract with a Federal procurement agency, null not increase the cost to the United States.
“ (b) The provisions of paragraph (a) above [of this section] shall be effective as of August 18,1945, but this shall not preclude the selection by the party or parties of any earlier date as the effective date of the wage or salary increase. The provisions of this general order [section] shall not, however, operate as an approval of any wage or salary increase put into effect before August 18, 1945, and prior to receipt of any approval required by the Stabilization Act of October 2, 1942, or the orders or regulations issued thereunder.
“(c) Wage or salary increases referred to in paragraph (a) above [of this section] may be made notwithstanding any previous denial or modification of an application for approval thereof by the National War Labor Board or its agencies,” (Emphasis supplied.)
Under the. foregoing provisions it was clearly lawful and proper for the union to demand and for the plaintiffs to pay the wage increases sought by the union without obtaining approval of the National War Labor Board. In this respect the case at bar is clearly distinguishable from the case of Kells v. Boutross (184 Misc. 206) wherein, prior to August 18, 1945, plaintiff sought recovery of a wage increase which had not been approved by the National War Labor Board. Prior
The facts which the court deems essential are found as noted . in the margin of the proposed findings of fact and conclusions of law. Settle decision and judgment in favor of the defendant union, dismissing on the merits, on the law and the facts, the plaintiffs’ complaint, with costs.