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National Protective Assn. v. Cummings, et al.

ployment is distasteful to him. It is not illegal for an employer to refuse to employ individuals who belong to a particular society or members of a particular corporation or for members of a particular association or organization to refuse to work with others who are not fellow-members of the organization or corporation. It is not, therefore, illegal for an employer to insist upon employing members of one organization only, nor for the employees of one employer to refuse to work for him unless all his employees are members of one organization or corporation."

Here, as we have already said, all that the Enterprise Association did, acting through its representative Cummings, was to refuse to work with members of the plaintiff organization, and to insist upon their discharge, and, in case that was not done, to withdraw from the work or order a strike of their members on that particular job; and applying the principle laid down in Allen v. Flood and Davis v. United Portable Hoisting Engineers, it must be held, it seems to us, that they had a legal right to do just what they did, and in reaching this conclusion the case of Curran v. Galen (152 N. Y., 33) has not escaped our attention. In that case the decision was based upon a demurrer to an answer interposed to the complaint. The allegations of the complaint were that certain members of a labor organization threatened the plaintiff that unless he would join the organization, pay the initation fee, and subject himself to its rules and regulations, they and the association would obtain his discharge from the employment which he then had, and make it impossible for him to obtain employment in the City of Rochester or elsewhere until he became a member of such association, and that in pursuance of that conspiracy, upon plaintiffs refusing to become a member of the said association, the said members and the association procured the plaintiff's discharge, by reason of false and malicious reports in regard to him, by which they sought to bring him into ill-repute

National Protective Assn. v. Cummings, et al.

with members of his trade and employers, and to prevent him from prosecuting his trade and earning a livelihood. The bare statement of the issue there involved is sufficient to show the distinction between that case and this. Here, the Enterprise Association and its members did not threaten to do anything to prevent the members of the plaintiff organization obtaining work at any place except where its members were employed.

The judgment, therefore, so far as the same relates to or affects the defendant Cummings and the Enterprise Association must be reversed and a new trial ordered, with costs to the appellant to abide the event, and affirmed, with costs, so far as the same relates to or affects the defendant Nugent and the Progress Association.

VAN BRUNT, P.J.; INGRAHAM and HATCH, JJ., concur.

INGRAHAM, J. (concurring)-I concur with Mr. Justice McLaughlin in a reversal of this judgment. I had occasion to express my views on this question in the case of Davis v. United Engineers (28 App. Div., 400), and, upon the principle there stated, it follows that in this case the plaintiffs are not entitled to any relief. This action is founded upon an alleged illegal combination or conspiracy, and it seems to me that the crucial question in such an action must be whether the acts of the defendants were illegal. It certainly must follow that, if it is lawful for an individual to do a certain act, it is lawful for him to combine with others in the same situation to do the same act. It is the illegality of the purpose to be accomplished or of the means used to accomplish that purpose that makes a combination illegal. Nor can it be that the fact that the purpose when accomplished will cause an injury makes the action of those engaged illegal. All competition in trade or business tends necessarily to reduce the profits

National Protective Assn. v. Cummings, et al.

of those engaged in that business, but it would not be claimed that a combination having for its object competition in business would be illegal. As I understand it, the right of an employer to select his employees, and the right of the employee to select his employer, is one that is not only recognized by law, but is a right that is essential to the liberty of the individual, and any consideration that would restrict that right would be illegal. But there is also the right of each individual to pursue his lawful trade or calling, and any combination which would have for its. object the restriction of that right would be opposed to the spirit of our institutions and against public policy. If the individual has the right to choose his employer without regard to his motive or reason for making the choice, he certainly has the right to combine with others having the same interest that he has, and such a combination would not be illegal. On the other hand, no individual has the right to prevent another individual from earning his livelihood, and for several to combine for such a purpose would be an illegal combination that would justify an interference by the court. As was said by the Court of Appeals in Curran v. Galen (152 N. Y., 36), "Public policy and the interests of society favor the utmost freedom in the citizen to pursue his lawful trade or calling, and if the purpose of an organization or combination of workingmen be to hamper, or to restrict, that freedom, and, through contracts or arrangements with employers to coerce other workingmen to become members of the organization and to come under its rules and conditions, under the penalty of the loss of their position, and of deprivation of employment, then that purpose seems clearly unlawful and militates against the spirit of our government and the nature of our institutions. The effectuation of such a purpose would conflict with that principle of public policy which prohibits monopolies and exclusive privileges." We have, therefore, to look at the object

National Protective Assn. v. Cummings, et al.

sought to be attained by this defendant association, and to determine whether the purpose sought to be accomplished or the means used to accomplish that purpose can be said to come within this condemnation. The constitution and by-laws of the Enterprise Association, of which the defendant Cumming was the walking delegate, disclosed no illegal or unlawful purpose; but, on the contrary, a praiseworthy one, having for its object the elevation of its members, the encouragement of a higher standard of skill in the craft, providing the trade with a better class of workmen, "and by all legal and proper means to advance and elevate the moral, intellectual, financia' and social conditions of all members."

But however worthy the aims of the association they had no right to use illegal means to accomplish their object. The individual plaintiff claims that the defendant association refused to allow him to become a member. The association had established a standard of skill in the trade to which its members belonged. Each applicant for membership was required to pass an examination to show that he was qualified as a mechanic. The individual plaintiff in this action sought such membership, and after an examination was refused admittance as a member of the association. There is nothing to show that there was bad faith in this refusal, and the evidence that the individual plaintiff was rejected because he failed to pass the examination strongly preponderates. There certainly was no right of action against either the association or its representatives because of the refusal to allow the plaintiff to become a member. Nor does the fact that Cumming as an officer of this association induced employers to discharge the individual plaintiff and other members of the plaintiff corporation from their employ, and to employ members of defendant association in their place by threats of ordering a strike if that demand was not complied with, prove an illegal combination entitling plaintiff to relief. I agree

National Protective Assn. v. Cummings, et al.

with Judge McLaughlin that a fair consideration of this testimony shows that all that Cumming did was to say to employers that if any other members of the defendant association were employed, the members of the association would refuse longer to work with such employer. The substantial statement that was made was that the members of the defendant association would refuse to work for an employer unless members of their association were exclusively employed. Thus, Mr. Baily testified that he employed the plaintiff and a helper, and that Cumming came to him and told him that he would have to take his steam fitters off; that if he did not, "he would strike the job. *** He told me I could not have the National Association men on that job;" that he would strike the job; "general strike of the whole building;" and that in consequence of that statement Baily discharged the individual plaintiff and his helper. Cumming appears to have been backed up by representatives of other labor organizations that were in sympathy with the defendant association. This is nothing more than a statement by the representative of this defendant association that its members wonld refuse to work for an employer who employed the plaintiff or others who were members of the plaintiff's corporation. Yet it would seem quite clear that this was nothing more than Cumming had a right to do. The members of the defendant association had the absolute right to refuse to work for Mr. Baily without assigning any reason, and the association could authorize its officers to say upon what terms its members would work for him; and if Cumming, as the representative of this association, stated the condition upon which members of the association should work for Baily, and Baily refused to accede to those terms, it was not illegal for him to advise the members of the association of which he was an officer or the members of other associations in sympathy with his to refuse to continue in Baily's employ. Thus, neither

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