New England Cement Gun Co. v. Mcgivern
| Decision Date | 26 May 1914 |
| Citation | 218 Mass. 198,105 N.E. 885 |
| Parties | NEW ENGLAND CEMENT GUN CO. v. McGIVERN et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
William M. Noble, for plaintiff.
Brandeis Dunbar & Nutter, Edward F. McClennen, and Alfred L. Fish, all of Boston, for defendants.
DE COURCY, J.
No exceptions were taken to the report of the master; and among the facts found by him are the following: The plaintiff is the exclusive licensee in New England of certain patented machinery and processes by which sand, cement and water are simultaneously mixed and projected upon the walls of buildings and other structures. The apparatus, which is called a cement gun, consists of a portable metal barrel with chambers and valves, in which dry cement and sand are mixed divided into units of quantity, and then by means of an air compressor driven out of the gun and through a hose to the nozzle. A second hose conveys water into a chamber of this nozzle, and the elements are converted into a mixture or plaster called gunite, which is instantly ejected from the nozzle onto the surface to be covered. The apparatus is operated by two men, the gun man and the nozzle man. The former controls the valves which regulate the flow of the mixture into and through the gun, the pressure of air within the chambers, and the rate of discharge of the mixture from the gun and through the hose to the nozzle. The latter holds and operates the nozzle, has charge of the hose, and controls the flow of the water. He must be skilled in determining the angle at which the plaster shall strike the surface, in judging and regulating the consistency, with respect to moisture, of the plaster which is being projected from the nozzle and in determining the thickness and evenness of the coat of plaster which he is laying.
In a majority of cases it is necessary for the plaintiff to employ a skilled plasterer to follow the work of the gun and 'true up' the surface of the cement. Operating the nozzle is very hard work, and it is the plaintiff's practice to have the nozzle man and the gun man interchange in their work at the end of each half day, for the purpose of resting each other; but if the nozzle man is a plasterer then when the plasterer 'truing up' the surface has learned the duties of nozzle man, the two plasterers can exchange places with the same result.
The defendants Cumming, Taylor and Keating are members of and respectively president, business agent and secretary of the Journeymen Plasterers' Benevolent Union of Boston, Mass., No. 10. McGivern is a member of the local union, and also president of the parent body, the Operative Plasterers' International Association of the United States and Canada, by which the local organization was chartered. The object of the local union, as defined in its constitution, is:
'To unite together all the practical journeymen plasterers working within the jurisdiction of this union for the purpose of securing united action in whatever may be regarded as beneficial to their united interest.'
And the master specifically finds that:
'One of the main objects of the International Association and of Union No. 10 is to exercise a control by concerted action over the relations of practical plasterers and those who may, from time to time, require their services.'
In the fall of 1912, the plaintiff was plastering with its process the exterior of an apartment house in Boston, when the defendant McGivern told the plaintiff's superintendent that he would have to employ union plasterers to operate the nozzle, or he (McGivern) would call a strike of the men working on the building; and for a time a union plasterer was so employed. On February 28, 1913, the plaintiff executed a written contract with the Old Colony Real Estate Trust to coat with gunite the exterior walls of a building which the Trust was erecting on Somerset and Howard streets in Boston. While the preliminary negotiations were going on the defendant Taylor asked the plaintiff's vice president, one Ambursen, if the plaintiff was going to employ union men on the job, and on being answered in the negative, told him that if the plaintiff did the outside work on the building it would have to do the inside work also. About this time Taylor called on one Farley, who was the acting trustee for the Old Colony Real Estate Trust, and said to him:
Early in April, when the interior plastering on the building in question was about one-third done, the plasterers, all of whom are members of Union No. 10, left their work, and Taylor stated to Farley that unless he canceled his contract with the plaintiff the plasterers would not return to their work. In order to induce them to return Farley, at Taylor's suggestion, wrote to one Caddigan, who was the general contractor on the building, notifying him that only union men should be employed in the work of covering the building with cement; and on the letter being given by Caddigan to Taylor the plasterers returned to work. A week later the union plasterers again left their work, and returned upon the assurance of Farley that none but union men would be employed on the outside of the building. Becoming suspicious of Farley's intentions, the union plasterers left their work a third time about ten days afterwards, the lathers and metal workers also leaving, and McGivern and Taylor also leaving, and McGivern and Taylor refused to allow the plasterers to return to work until a contract had been made and exhibited to them, by which the builder had arranged for this outside work with Monahan, who had the contract for the inside plastering, and would employ union labor. Shortly before this the plaintiff's letter, later referred to, releasing the owner from its contract, had been sent to Farley, and by him shown to McGivern and Taylor.
It appears that Taylor, the business agent, was accustomed to make reports orally at the meetings of the union. Their records, under date of April 16, 1913, contain the following:
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