Pickett v. Walsh

• Decision Date: 16 October 1906
• Citation: 192 Mass. 572,78 N.E. 753
• Parties: PICKETT et al. v. WALSH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

192 Mass. 572

78 N.E. 753

PICKETT et al. v. WALSH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

October 16, 1906

COUNSEL

Fredk. W. Mansfield, for appellants.

Elder & Whitman, for appellees.

OPINION

LORING, J.

This suit comes before us on an appeal from a final decree, where the evidence was taken by a commissioner and where no findings of fact were made in the lower court.

The bill was brought to enjoin the defendants from combining and conspiring to interfere with the plaintiffs in pursuing their trade of brick and stone pointers. The purpose of the bill as stated in the prayers for relief was to enjoin the defendants (1) 'from combining and conspiring in any way to compel L. P. Soule & Son Company, or any other person, firm or corporation, by force, threats, intimidation or coercion, to discharge the complainants in the bill of complaint, to wit Robert H. Pickett, Charles A. Pickett, Thomas J. Lally and Walter H. Wilkins, or to refrain from further employing them in and about their trade and occupation'; (2) 'from combining and conspiring to compel the owners of the so-called Ford Building on Ashburton Place in the city of Boston to break or decline to carry out their said contract with the complainant Robert H. Pickett'; and (3) 'from combining and conspiring to interfere with the said complainants, or any of them, in the practice of their trade and occupation, or to prevent them from obtaining further employment thereat.'

The defendants were the officers of two unincorporated bricklayers' unions, to wit, Unions No. 3 and No. 27, and of one stone masons' union, to wit, Union No. 9. The plaintiffs also undertook to make each one of the three unincorporated unions parties defendant. The Bricklayers' Union No. 27 seems from the evidence not to have been concerned in the matters in dispute. For this reason we shall not refer to it again except to show later on that there is no evidence that it took part in the matters here in question. The individual defendants were one Driscoll, the walking delegate of the Bricklayers' Union No. 3, one Walsh, the walking delegate of the Stone Masons' Union No. 9, and other persons who were officers of those two unions.

It appears from the evidence that the trade of brick and stone pointing is a trade which, in the neighborhood of the city of Boston at any rate, has been carried on to some extent as a separate trade for nearly if not quite 100 years. It further appears that there are now some 45 men engaged in that trade in the vicinity of that city.

The trade of a brick or stone pointer consists in going over a building (generally when it is first erected) to clean it and to put a finish on the mortar of the joints. Apparently in the city of Worcester, and to some extent in the city of Boston, this work of pointing is done by bricklayers and stone masons.

The dispute which gave rise to the suit now before us had its origin in a set of rules adopted in January, 1905, by the Bricklayers' and Masons' International Union of America, to which the two unions here in question were subordinate unions. This set of rules contained a provision that Bricklaying masonry should consist (inter alia) of 'all pointing and cleaning brick wall,' and that stone masonry should consist (inter alia) of the 'cleaning and pointing of stone work.' The practical working of the principles of brick and stone masonry as defined in these rules was left to the subordinate unions.

By the constitution, by-laws and rules of order of the Bricklayers' Union No. 3, it is provided that members shall not accept employment 'where a difficulty exists in consequence of questions involving the rules which govern the Union,' and that any member violating a law of the union shall on conviction 'be reprimanded, suspended or fined at the discretion of the union.' No similar provision appears in the extract from the constitution of the Stone Masons' Union which was in evidence, but it is not a violent assumption from the action of the masons and from the testimony of Walsh, the walking delegate of the Stone Masons' Union that the members of the Masons' Union stood on the same footing as the members of the Bricklayers' Union in this respect.

In other words, the make-up of the two unions was such that any member of a subordinate union (which had adopted a working rule containing in substance the provisions of the working rules of the International Union as to cleaning and pointing buildings) who continued to work on a job on which a pointer was at work was liable to be reprimanded, fined or suspended.

This brings us to the action taken by the unions here in question.

There was an executive committee of the two unions. On July 28, 1905, this executive committee voted 'that beginning September 18, 1905, no member of the bricklayers' and masons' unions of Boston and vicinity, will work on any building where the contractor will not agree to have the pointing done by bricklayers or masons.'

This action of the executive committee was formally adopted by the Bricklayers' Union No. 3, and seems to have been informally adopted by the Stone Masons' Union No 9. In pursuance thereof the following circular letter was issued: 'The bricklayers' and masons' unions of Boston and vicinity have voted that no bricklayer or mason will work for any firm or contractor who will not employ bricklayers or masons to do the pointing of brick, terra cotta and stone masonry. This action will go into effect September 18, 1905.'

In September, 1905, L. D. Willcutt & Son as general contractors were erecting (among other buildings) a stone building on the corner of Massachusetts avenue and Boylston street in Boston. On the 18th day of that month, Mr. L. D. Willcutt of that firm was notified that if he did not discharge the pointers who were working for his firm in pointing that building all the masons and bricklayers working for his firm on other buildings in Boston (all of whom were union men) would strike. Thereupon he suspended the work which was being done by the pointers on the building on the corner of Massachusetts avenue and Boylston street. This evidence was admitted to show that there was a general scheme that where pointing was given to any one besides union bricklayers and stone masons there would be a strike.

On November 13, 1905, the defendant Walsh, the walking delegate of the Stone Masons' Union No. 9, and the defendant Driscoll, the walking delegate of the Bricklayers' Union No. 3, came to the Ford Building, for which the corporation of L. P. Soule & Son Company were the general contractors, and found that the cleaning and pointing of that building was being done under a contract between the owners of the building and Robert H. Pickett, one of the plaintiffs here. They then went to a brick building which was being erected by the L. P. Soule & Son Company as contractors, namely, a cold storage warehouse on Eastern avenue, where Driscoll notified the man that the pointing at the Ford Building was being done by pointers. In consequence all the bricklayers employed by the L. P. Soule & Son Company on the cold storage building, 50 in all, being union men, struck work on that or the next day. The next day, November 14, Walsh went to a stone building which was being erected by the same corporation for the International Trust Company on the corner of Arch and Devonshire streets, and told the workmen there of the pointing on the Ford Building; whereupon all the stone masons working there, 5 or 6 in all, being union men, struck work.

This bill was filed on November 20, 1905. It seems to have come on for hearing on December 5, 1905. As we have said, the evidence was taken by a commissioner, a final decree in favor of the plaintiffs on all three grounds was made on December 11th, without any special findings of fact, and the case is here on appeal from that decree.

It appeared from the testimony of Parker F. Soule, an officer of the L. P. Soule & Son Company, that it was cheaper to make a contract with pointers for the work of pointing and cleaning than to employ stone masons and bricklayers to do that work. It appeared from other evidence that the wages of a bricklayer or stone mason were 55 cents an hour, while pointers are paid $3.00 a day of eight hours, or 37 1/2 cents an hour. It further appeared from Mr. Soule's testimony that he preferred to give the work to the pointers because in cleaning a building acid has to be used, and, if the acid is used to excess, stains are caused which in some instances it is impossible to 'get out'; he did not think that the bricklayers and stone masons were competent to use these acids. He preferred also to give the work to the pointers because the work which is done by the pointers usually is done by contract, in which case the general contractor who employs the pointers is relieved from responsibility on account of accidents which may occur because of the fact that the work is done on a swinging stage, at times at great heights. It also appeared from the evidence that L. P. Soule & Son Company were not the only contractors who thought they got better work at a smaller cost and with less liability by making a contract with stone pointers for the doing of this work than by employing stone masons and bricklayers to do it.

All this was explained to the walking delegate of the Bricklayers' Union here in question, at an interview between Mr. Soule and the walking delegate of that union held within two days of the strike. It also appeared that at that interview the delegate told Mr. Soule that while it had been against the rules of the union that any member should take piece work, the taking of piece work recently had been allowed; whereupon Mr. Soule told him that 'if he had any...