Haverhill Strand Theater, Inc. v. Gillen

• Decision Date: 28 February 1918
• Citation: 118 N.E. 671,229 Mass. 413
• Parties: HAVERHILL STRAND THEATER, Inc., v. GILLEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 413

118 N.E. 671

HAVERHILL STRAND THEATER, Inc.,

v.GILLEN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1918.

Case Reserved and Report from Superior Court, Suffolk County; Charles F. Jenney, Judge.

Suit for injunction by the Haverhill Strand Theater, Incorporated, against A. L. Gillen and others. On reservation and report to the Supreme Judicial Court. Injunction ordered to issue as prayed for.

Dunbar, Nutter & McClennen, of Boston (Jacob J. Kaplan and A. A. Berle, Jr., both of Boston, of counsel), for plaintiff.

W. Scott Peters and Harry J. Cole, both of Haverhill, Frederick H. Magison, of Boston, and Wilbert F. Barrett, of Haverhill, for defendants.

LORING, J.

The plaintiff corporation is a ‘moving picture and vaudeville house’ in Haverhill. The defendants are officers and members of a labor union of musicians. They are also joined as representing the other members of it who are too numerous to be made parties defendant. For convenience we shall speak of the union as the party defendant. In the summer of 1916 the plaintiff had in its employ an organist, one Coburn by name, who was a member of the defendant union. He played an organ (part of the plaintiff's building) at all performances given by it and the music of the organ was the only music furnished at these performances. Before 1916 the defendant had adopted a minimum rule fixing the number of musicians who should be employed in the different theaters in Haverhill. By this rule the plaintiff was required to employ an orchestra of five musicians if it wished to employ any member of the defendant union. The minimum rule had been suspended during the summer of 1916. At some time shortly before the filing of this bill the defendant notified the plaintiff that it was about to enforce the minimum rule so far as the plaintiff was concerned. ‘From motives of economy’ the plaintiff wished to continue to employ Coburn and Coburn alone. Upon being informed of the defendant's intention to enforce the rule, the plaintiff brought this bill on September 9th alleging that the rule was illegal and asking that the defendant be enjoined from putting it in force. After playing at the performance on September 10th, Coburn left the plaintiff's employ ‘because of the existence of said rule and penalties incident to its violation,’ to quote the terms of one of the findings made by the master. It would seem that Coburn's wages were $27 a week with one night off. Some time after Coburn left the plaintiff succeeded in hiring a nonunion organist, and it had to pay him $60 a week. The master's report ends in these words:

‘Upon the pleadings and the foregoing findings, general and special, the parties agree, without waiving their right to raise other questions, that the following question of law may be posited for the court: In the absence of boycott, strike, intimidation or interference with existing contractual relations, does an unincorporated labor organization have a legal right to enact with penalty of fine or expulsion a rule which prevents its members from working for any employer, unless said employer employs a given number of union men, and where, as a matter of fact, the operation of said rule narrows the labor market and restricts the field of competitive employment for the employer?’

The first contention of the defendant is that on the findings of the master the ‘plaintiff had acquiesced in the enforcement of the rule’ here complained of and that a decree dismissing the bill on that ground ‘would be well warranted on the findings.’ After making this suggestion counsel for the defendant seems to have waived it. But if the suggestion is not to be taken to have been waived it is enough to say that on the findings of the master what was said by the plaintiff to the defendant was not sufficiently definite to amount to an agreement not to maintain this bill if it was entitled to do so.

The defendant's next contention is based upon the master's finding that ‘neither a boycott or strike [had been] put in force or threatened to be put in force’ by the defendant before the bill now before us was brought; that the defendant had ‘in no wise disturbed or interfered with any existing contractual relations to which the plaintiff is a party’ and that the defendant ‘in no wise threatened the plaintiff or its business' before the bringing of the bill. The three special findings here relied on, together with the finding already referred to and one other finding, are set forth in full below.¹

The defendant's contention based upon these findings is that in the absence of a strike or of threats on the part of the defendant the present bill cannot be maintained. It is this contention without doubt which is referred to in the opening words of the question of law which the master says that the parties agreed should be ‘positive for the court.’ This contention is without foundation. On the findings made by him it must be taken that the master has found that the defendant did notify the plaintiff that it would enforce its minimum rule but that the defendant made no threats to the plaintiff other than the notice that the rule would be enforced. The bill was brought (first) on the ground that the rule was an illegal one and (second) on the ground that defendant had notified the plaintiff that they would enforce it. For the purpose of the question under discussion, it must be assumed that the rule was an illegal one. If a union notifies a plaintiff that they will enforce an illegal rule which operates to his prejudice he has a right to bring a bill to have the union enjoined from enforcing it. In the case at bar the master finds that the defendant union did notify the plaintiff that it would enforce the minimum rule and the plaintiff proved the fact that the defendant did intend to enforce it when it proved that Coburn left ‘because of the existence of the rule and penalties incident to its violation.’ The contention that a plaintiff cannot bring a bill upon being notified that a combination of individuals will enforce an illegal rule which operates to his prejudice in the absence of a strike or threats of a strike or intimidation is founded on a misconception. Where a combination is a legal one a plaintiff has a right to complain if the parties to the combination undertake to enforce it by illegal means. A boycott and threats of intimidation by using physical violence are illegal means of enforcing a legal combination. But a strike is one of the legal means to which parties have a right to resort to enforce a legal combination. On the other hand, when a combination is an illegal one the plaintiff has a right to have it enjoined in case it operates to his prejudice on proving the fact that the defendants intend to enforce it. He has no need to go further and prove that the defendants have threatened to enforce it by means which are illegal.

With this explanation the question propounded to the court by the agreement of parties is this: Is a combination between musicians a legal one by which a plaintiff is compelled to employ a number of musicians specified by the members of the combination if he wishes to employ any member of the combination, even though it be the fact that in the plaintiff's opinion the employment of a single musician is the most advantageous way of conducting his (the plaintiff's) business and that the employment of more than one musician will cause him pecuniary loss? It is manifest that such a rule is an interference with a plaintiff's right to that free flow of labor to which every member of the community is entitled for the purpose of carrying on the business in which he or it has chosen to embark. The right to the free flow of labor is not an absolute right; it is limited by the right of employés to combine for purposes which in the eye of the law justify interference with the plaintiff's right to a free flow of labor. A combination which interferes with a plaintiff's right to a free flow of labor is legal if the purpose for which it is made justifies the interference with that right. On the other hand, it is illegal if that purpose does not justify the interference...