L.D. Willcutt & Sons Co. v. Bricklayers' Benevolent & Protective Union No. 3

Decision Date24 October 1908
Citation85 N.E. 897,200 Mass. 110
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Report from Superior Court, Suffolk County; F. A. Gaskill, Judge.

Bill by the L. D. Willcutt & Sons Company against the Bricklayers' Benevolent & Protective Union No. 3 and others. On report from superior court. Decree for plaintiff.


Elder &

Whitman, for complainant.

Frederick W. Mansfield, for respondents.



This bill, although originally brought against two unincorporated associations or labor unions by name, has now been amended so that it runs only against certain individuals as officers and members of these associations and against the other members of those associations as represented by these individuals. No question is made that the defendants do not sufficiently represent all the members of both unions; and the Pickett v. Walsh,

192 Mass. 572, 589, 590, 78 N.E. 753, 6 L.R.A.(N.S.) 1067, 116 Am.St.Rep. 272, and cases there cited.

The questions before us are raised upon a report of the facts found by the justice of the superior court who heard the case. They grew out of a trade dispute between the plaintiff and the members of the unions who were in its employ. In April, 1906, these unions adopted a code of working rules, in which, beside some minor demands not now material, they demanded that wages be increased five cents an hour, that all foremen should be members of the unions, that the business agent of the unions should be allowed to visit any building under construction to attend to his official duties, and that wages should be paid during working hours. The plaintiff declined to accept these rules, and a strike followed.

By the constitution and rules of the unions it appeared that a code of fines and penalties was established by the International Union, an association composed of these and other similar unions throught the country, and that this code was being actively enforced by the local unions. One rule provided that any member violating any section of the working code should be fined upon conviction not less than $5 nor more than $25 one of these sections being that 'no member of the union shall work with a nonunion man who refuses to join the union.' Various other penalties were provided, varying from $5 to $500 for each offense, to be imposed upon persons designated as 'common scabs,' 'inveterate or notorious scabs,' and 'union wreckers'; these terms being applied to those who in different ways persist in working after a strike has been called. These fines in their operation are likely to be coercive in their nature.

This code was actively enforced by the unions, and most of the members of the unions who left their work did so through fear of the fines that would be imposed upon them if they continued to work. The defendants Driscoll and Reagan on one occasion found two men at work for the plaintiff, one a journeyman who had been and the other a foreman who was a member of the union. Reagan threatened the journeyman with a fine of $100 if he continued to work, and Driscoll notified the foreman that he was called out. Both refused to leave. Driscoll reported

the fact at a meeting of the union and a vote was passed that charges be preferred against the men for working contrary to the rules. A preliminary injunction was issued in this case and no further steps were taken under the vote.

The defendants established a strike headquarters, and provided a strike fund from which payments were made to the strikers and other men out of work. Some of the defendants made constant visits to a job of the plaintiff, generally at noontime, to persuade men whom the plaintiff had hired to leave its employ. They offered as inducements in some cases to nonunion men membership without the full payments usually required, and in other cases work elsewhere. Men frequently left the plaintiff's employ after these talks, in some cases stating that they would like to work but could not run the risk of being fined. The defendant Driscoll induced two men to go who otherwise would have continued at work, by paying them with funds of the unions the wages due them from the plaintiff and providing them with transportation to Utica, N.Y., where he had secured other work for them.

The plaintiff was constructing other buildings at Fairhaven and at Andover, which were within the districts of other unions and the union men employed by the plaintiff on those jobs also struck. It was found however that these men were not under the control of the defendants, though it did fairly appear that these strikes were a direct result of the strike in Boston, since all these unions were affiliated together in the International Union and all members of the unions were familiar with what should be done in such cases.

It was admitted that the defendants were not persons of financial responsibility, and the court found 'that the acts of the defendants as above set forth were calculated to interfere and did interfere with the performance of the complainant's contracts for the construction of buildings, and had they continued, would have seriously embarrassed the complainant in the prosecution of its business, and that such consequences were contemplated by the defendants in their endeavor to force the complainant to accept their working rules to govern the management of its business.'

As already stated, the strike had four objects. Of these the demand for an increase of wages was properly enforceable by a strike. The demand that wages should be paid during working hours amounts merely to a demand for a shorter day, and also was properly enforceable by a strike. The reasonableness of such demands we have not the means of determining; and it is settled that such matters are best left to be adjudicated in the freedom of private contract between the interested parties. More difficult questions are presented by the demands that all foremen shall be members of the unions, and that the business agent of the unions shall be allowed to visit any building under construction. See as to the first of these points a very interesting article by Professor Smith, 20 Harvard Law Review, 431, note 1. But it is unnecessary under the circumstances to determine these questions, as the plaintiff peplied with a bare refusal of all the demands.

We are of opinion therefore that this strike must be regarded as simply a strike for higher wages and a shorter day. It was not a mere sympathetic strike, as in Pickett v. Walsh, 192 Mass. 572, 587, 78 N.E. 753, 6 L.R.A.(N.S.) 1067, 116 Am.St.Rep. 272, or one whose immediate object was only remotely connected with the ultimate object of the strikers, as in Plant v. Woods, 176 Mass. 492, 57 N.E. 1011, 51 L.R.A. 339, 79 Am.St.Rep. 330. It was a direct strike by the defendants against the other party to the dispute, instituted for the protection and furtherance of the interests of the defendants in matters in which both parties were directly interested and as to which each party had the right, within all lawful limits, to determine its own course. Such a strike must be treated as a justifiable strike so far as respects its ultimate object.

But however justifiable or even laudable may be the ultimate objects of a strike, unlawful means must not be employed in carrying it on; and it is contended by the plaintiff that the use of fines and threats of fines, under the circumstances disclosed in the record, are unlawful. The question is stated by the trial judge in the following language: 'In case of a justifiable strike, has the contractor the right to invoke the aid of the court to prevent the labor union from imposing a fine [which the court has found to be coercive in its nature] or taking action to impose one upon one or more of its members under its rules to induce them to leave the contractor's employ to his injury?' Under the findings of the court it would seem that the question is not intended to be quite so broad as otherwise might be inferred

from its language. The language is broad enough to include the case where the employé is under a contract to stay with his employer and where to leave would be a violation of that contract. But no such state of things appears upon the record. The plaintiff 'hired its masons by the day and paid them on the basis of the number of hours worked, and it might have discharged them and they might have left at the close of any day.' The question must therefore be considered as applying only to cases where the employé by leaving violates no contractual right of the employer.

The question how far the imposition of fines by an organization upon its members where the effect is to injure a third party is justifiable, was considered by this court in Martell v. White, 185 Mass. 255, 69 N.E. 1085, 64 L.R.A. 260 102 Am.St.Rep. 341, and it was there adjudged that the imposition of such a fine by which members of the organization were coerced into refusing to trade with the plaintiff, not a member, to his great damage, was inconsistent with the ground upon which the right to competition in trade is based, and as against him was not justifiable. In the course of the opinion the case of Boutwell v. Marr, 71 Vt. 1, 42 A. 607, 43 L.R.A. 803, 76 Am.St.Rep. 746, was cited, in which the same conclusion was reached. In Martell v. White, five justices sat, and four of them, being a majority of the whole court, concurred in the ground upon which it was decided. The case was carefully presented by counsel, the questions involved were regarded as important, and there was a difference of opinion among the judges who sat in it. It was therefore considered at great length; and the conclusion was reached after...

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