Nat'l Protective Ass'n of Steam Fitters & Helpers v. Cumming

• Decision Date: 01 April 1902
• Citation: 170 N.Y. 315,63 N.E. 369
• Parties: NATIONAL PROTECTIVE ASS'N OF STEAM FITTERS AND HELPERS et al. v. CUMMING et al.
• Court: New York Court of Appeals Court of Appeals

170 N.Y. 315

63 N.E. 369

NATIONAL PROTECTIVE ASS'N OF STEAM FITTERS AND HELPERS et al.

v.CUMMING et al.

Court of Appeals of New York.

April 1, 1902.

Appeal from supreme court, appellate division, First department.

Action by the National Protective Association of Steam Fitters and Helpers and others against James M. Cumming and others. From an order of the appellate division (65 N. Y. Supp. 946) reversing a judgment for plaintiffs, they appeal. Affirmed.

Vann, Bartlett, and Martin, JJ., dissenting.

Andrew J. Shipman, for appellants.

Charles Steckler and Levin L. Brown, for respondents.

PARKER, C. J.

The order of the appellate division should be affirmed, on the ground that the facts found do not support the judgment of the special term. In the discussion of that proposition, I shall assume that certain principles of law laid down in the opinion of Judge VANN are correct, namely: ‘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. Workingmen 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. A peaceable and orderly strike, not to harm others, but to improve their own condition, is not in violation of law.’ Stated in other words, the propositions quoted recognize the right of one man to refuse to work for another on any ground that he may regard as sufficient, and the employer has no right to demand a reason for it. But there is, I take it, no legal objection to the employé's giving a reason, if he has one, and the fact that the reason given is that he refuses to work with another who is not a member of his organization, whether stated to his employer or not, does not affect his right to stop work; nor does it give a cause of action to the workman to whom he objects, because the employer sees fit to discharge the man objected to, rather than lose the services of the objector. The same rule applies to a body of men, who, having organized, for purposes deemed beneficial to themselves, refuse to work. Their reasons may seem in-adequate to others, but, if it seems to be in their interest as members of an organization to refuse longer to work, it is their legal right to stop. The reason may no more be demanded, as a right, of the organization then of an individual; but, if they elect to state the reason, their right to stop work is not cut off because the reason seems inadequate or selfish to the employer or to organized society. And if the conduct of the members of an organization is legal in itself, it does not become illegal because the organization directs one of its members to state the reason for its conduct.

The principles quoted above recognize the legal right of members of an organization to strike (that is, to cease working in a body by prearrangement until a grievance is redressed), and they enumerate some things that may be treated as the subject of a grievance, namely, the desire to obtain higher wages, shorter hours of labor, or improved relations with their employers; but this enumeration does not, I take it, purport to cover all the grounds which will lawfully justify members of an organization refusing, in a body and by prearrangement, to work. The enumeration is illustrative, rather than comprehensive; for the object of such an organization is to benefit all its members, and it is their right to strike, if need be, in order to secure any lawful benefit to the several members of the organization-as, for instance, to secure the re-employment of a member they regard as having been improperly discharged, and to secure from an employer of a number of them employment for other members of their organization who may be out of employment, although the effect will be to cause the discharge of other employés who are not members. And whenever the courts can see that a refusal of members of an organization to work with nonmembers may be in the interest of the several members, it will not assume, in the absence of a finding to the contrary, that the object of such refusal was solely to gratify malice, and to inflict injury upon such nonmembers. A number of reasons for the action of the organization will at once suggest themselves in a case like this. One reason apparent from the findings in this case, as I shall show later, is the desire of the organization that its own members may do the work the nonmembers are performing. And another most important reason is suggested by the fact that these particular organizations, associations of steam fitters, required every applicant for membership to pass an examination testing his competency. Now, one of the objections sometimes urged against labor organizations is that unskillful workmen receive as large compensation as those thoroughly competent. The examination required by the defendant associations tends to do away with the force of that objection as to them. And again, their restriction of membership to those who have stood a prescribed test must have the effect of securing careful as well as skillful associates in their work, and that is a matter of no small importance, in view of the state of the law, which absolves the master from liability for injuries sustained by a workman through the carelessness of a co-employé. So long as the law compels the employé to bear the burden of the injury in such cases, it cannot be open to question but that a legitimate and necessary object of societies like the defendant associations would be to assure the lives and limbs of their members against the negligent acts of a reckless co-employé; and hence it is clearly within the right of an organization to provide such a method of examination and such tests as will secure a careful and competent membership, and to insist that protection of life and limb requires that they shall not be compelled to work with men whom they have not seen fit to admit into their organization, as happened in the case of the plaintiff McQueed. While I purpose to take the broader ground, which I deem fully justified by the principles quoted, as well as the authorities, that the defendants had the right to strike for any reason they deemed a just one, and, further, had the right to notify their employer of their purpose to strike, I am unable to see how it is possible to deny the right of these defendant organizations and their members to refuse to work with nonmembers, when, in the event of injury by the carelessness of such co-employés, the burden would have to be borne by the injured, without compensation from the employer, and with no financial responsibility, as a general rule, on the part of those causing the injury; for it is well known that some men, even in the presence of danger, are perfectly reckless of themselves and careless of the rights of others, with the result that accidents are occurring almost constantly which snuff out the lives of workmen as if they were candles, or leave them to struggle through life maimed and halpless. These careless, reckless men are known to their associates, who not only have the right to protect themselves from such men, but, in the present state of the law, it is their duty, through their organizations, to attempt to do it, as the trades affording special opportunities for mischcf arising from recklessness. I know it is said in another opinion in this case that ‘workmen cannot dictate to employers how they shall carry on their business, nor whom they shall or shall not employ’; but I dissent absolutely from that proposition, and assert that, so long as workmen must assume all the risk of injury that may come to them through the carelessness of co-employés, they have the moral and legal right to say that they will not work with certain men, and the employer must accept their dictation or go without their services.

If it be true, as was recently intimated by the supreme court of Pennsylvania in Durkin v. Coal Co., 171 Pa. 193, 33 Atl. 237,29 L. R. A. 808, 50 Am. St. Rep. 801, that an act of the legislature which undertakes to ‘reverse the settled law upon the subject, and declare that the employer shall be responsible for an injury to an employé resulting from the negligence of a fellow workman,’ is unconstitutional,-a doctrine from which I dissent (see Tullis v. Railroad Co., 175 U. S. 348, 20 Sup. Ct. 136, 44 L. Ed. 192), but which it is possible may receive the support of the courts,-then the only opportunity for protection, in the future as well as the present, to workmen engaged in dangerous occupations, is through organizations like these defendant associations, which restrict their memberships to careful and skillful men, and prohibit their members from working with members of other organizations which maintain a lower standard or none at all. For the master's duty is discharged if the workman be competent, and for his recklessness, which renders his employment a menace to others, the master is not responsible. But I shall not further pursue this subject. My object in alluding to it is to emphasize the fact that there are other purposes for which labor organizations can be effectually used ...