Reinforce, Inc. v. Birney

Desmond, J.

Plaintiffs (Reinforce, Inc., a corporation organized to carry on a lathing business, and Foley, its principal officer and owner) were awarded money damages by a jury, on their complaint that defendant union and its members had maliciously conspired to prevent plaintiffs from carrying on their business and had put an end to such business operations by causing some of the union members to quit their employment with plaintiffs, and by causing all the union’s members to refuse to work for plaintiffs. The Appellate Division reversed plaintiffs’ judgment on the law, and dismissed the complaint for failure of proof. The members of that court were not, however, in full agreement as to the applicable law. The Trial Justice had charged the jury that its task was to determine whether defendants’ acts had been motivated by malice, or by a desire to improve employment conditions, and had instructed the jurors that, if the motivation was malicious, plaintiffs would be'entitled to their damages. The majority Justices in the Appellate Division took the view that since the union members “ had the absolute right to refuse to work for the plaintiffs, for any reason or for no reason at all ”, malice was immaterial. The Presiding Justice, however, coming to the same result (reversal and dismissal) by a different route, did not agree that the element of malice was immaterial. Defendants’ acts, he pointed out, were concerted and so, if prompted by malice alone, would cast defendants in damages. But the evidence here, as he saw it, was insufficient to show that malice was the only spur to the union’s activity, or that damage to plaintiffs was the union’s sole purpose. We agree with the Presiding Justice’s analysis of the proof and with his statement of the law.

Plaintiff Foley was for many years a construction worker and member of the operating engineers union. After attending law school and being admitted to the Bar, he again took up construction work and in 1937 became president of one of the locals of his union. While so acting as a union representative, he, in 1940,1945 and 1946, had three serious disagreements with the representatives of defendant union. The first of those controversies had to do with a complaint by defendants’ officers that plaintiff Foley was siding with a contractor who, according to defendants, was violating a certain building contract, to defendants’ disadvantage, by installing fewer steel rods than were called for in the specifications. In the second, or 1945, dispute, Foley lined up on the side of certain contractors and against defendant union, which was resisting efforts of the contractors to eliminate double pay for Saturday work. The third difference of opinion came in 1946, when, after a Federal board had authorized a seven-hour day in the construction industry, defendant union tried to obtain an agreement whereby its members would get eight hours pay for seven hours work, but the contractors (and Foley) insisted that the regular workday remain at eight hours.

. Later in 1946, Foley resigned as his union’s president and became a labor relations consultant. Again, trouble broke out between Foley and defendants’ officers, who blamed him for grievances which defendant union had suffered at the hands of a contractors ’ organization with which Foley was associated.

In 1948, Foley organized the plaintiff corporation to go into the lathing business as a so-called * ‘ lumper ’ ’, that is, one whose contracts require it .to supply labor only on construction work, the general contractor furnishing the materials. Foley had never done lathing work, or operated osa“ lumper ” previously. On behalf of plaintiff Reinforce, he consulted one of defendants’ principal officers, Matthews, who recommended one of the union members for the job of Reinforce’s superintendent. Foley, for Reinforce, then signed a lathing contract on an apartment house job, and got some workers for it (between ten and thirty men, at various times) from defendant union. No contract, however, was ever made by the union, with either plaintiff. Late in 1948, Reinforce obtained several more lathing jobs. However, after a union hearing at which Foley appeared and at which there was some discussion of the old grievances, defendant union notified plaintiffs that Reinfoce had been denied approval as a contractor to which defendant union would supply men, and that, after the next payroll date, no members of the union would work for plaintiff Reinforce. None of the members ever did work for Reinforce thereafter, and so, since defendants’ members included all the metal lathers in the vicinity, Reinforce was out of business. The union sent to Reinforce’s general contractors some letters informing them of the union action, and we will mention those letters again, at another place in this opinion. All the above facts, including the recurring difficulties between Foley and the union, were undisputed at the trial.

The Trial Justice submitted to the jury questions of fact as to whether Foley was “ anti-union ” or “ guilty of anti-union acts ”. In another part of his instructions he told the jurors that it was for them to decide whether defendants’ purpose was to further the proper aims of union labor or whether their motive was vengeful and spiteful. Finally, he told them that if they should conclude that defendants had acted maliciously and without cause or justification, damages might be awarded to plaintiff. The charge does not say in so many words (although perhaps it is sufficiently suggested) that if the motives were found to be mixed — good and bad — defendants must win the case, provided their acts had some reasonable relation to wages, hours of employment, collective bargaining or some other valid union objective. But, whether or not the charge was adequate, the complaint was, in our opinion, properly dismissed by the Appellate Division, because plaintiffs did not carry their burden of showing that defendants’ acts were solely “ malicious ”, that is, that they were done "without legal or social justification ” (Campbell v. Gates, 236 N. Y. 457, 460).

Just as (when there is no binding contract) an employer may hire, or refuse to hire, at will, so may a worker or a group of workers refuse, or quit, employment for any reason or no reason (Opera on Tour, Inc., v. Weber, 285 N. Y. 348, 353; Hunt v. Cromboch, 325 U. S. 821, 825). But when men quit work in concert, they offend against the law if their sole and unmixed motive or purpose is to injure an employer (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260, 262; see Gray, J., in National Protective Assn. v. Cumming, 170 N. Y. 315, 334; Bossert v. Dhuy, 221 N. Y. 342, 359; Williams v. Quill, 277 N. Y. 1; see Dorchy v. Kansas, 272 U. S. 306, 311). But, if the acts of unions " have any reasonable connection with wages, hours of employment, health, safety, the right of collective bargaining, or any other condition of employment or for the protection from labor abuses, then the acts are justified ” (Opera on Tour, Inc., v. Weber, supra, p. 355). The result is not changed by the fact that the work stoppage or refusal injures an employer. Such harm, although intentionally done, is actionable only if not justified (Lough v. Outerbridge, 143 N. Y. 271, 283; Grombach Productions, Inc., v. Waring, 293 N. Y. 609, and cases cited; Aikens v. Wisconsin, 195 U. S. 194, 204). If the doers, by means not in themselves unlawful, of acts not in themselves unlawful, have any proper purpose to serve, they are not liable for the damage they cause (Peabody, Jr., & Co., v. Travelers Ins. Co., 240 N. Y. 511, 519; Al Raschid v. News Syndicate Co., 265 N. Y. 1). Unions, as well as everyone else, may claim the benefit of the settled rule that " the genesis which will make a lawful act unlawful must be a malicious one unmixed with any other and exclusively directed to injury and damage of another ’ ’ (Beardsley v. Kilmer, 236 N. Y. 80, 90, citing American Bank & Trust Co. v. Federal Reserve Bank, 256 U. S. 350, 358, for the epigrammatic phrase: “ disinterested malevolence ”; and see Park & Sons Co. v. National Wholesale Druggists’ Assn., 175 N. Y. 1; Rosenau v. Empire Circuit Co., 131 App. Div. 429, 436). The Beardsley decision rejects the idea that the motive is immaterial if the act be lawful, since a concurring opinion to that effect, in Beardsley, represented the view of one Judge only.

The modern application, to controversies between unions and employers, of these rules, is illustrated by Rochette & Parzini Corp. v. Campo (301 N. Y. 228). There, the defendant union, whose members were the only ones available in the metropolitan New York area for certain kinds of stone work, decided not to supply labor to any subcontractors, and so put plaintiff, a subcontractor for such work, out of business. Just as in the present case, the question in Rochette was not as to the fairness, propriety or necessity of such a determination by the union. In the absence of proof that the motivation was entirely malicious, plaintiff had no remedy at law. In the Rochette situation, the union withdrew its members from an employment because the union thought it to its interest so to do. In each case it was impossible, on the record, to find that the sole motivation was “ malicious ”, hence, there was no basis for a judgment against the union.

In Rochette & Parzini Corp. v. Campo (supra), there was another question, too, and some support was found there for a finding of illegal union activity by the union in sending, to other unions, letters coercing those unions not to work for plaintiff, and in sending letters to contractors describing plaintiff as “ non-union ”, etc. However, the letters sent by the defendant union in the present case were in no way unlawful since they merely gave simple notification that “ Reinforce, Inc. has not peen approved by Local Union 46 as one of the lathing contractors to whom it will furnish union members ”, and that, “ Effective as of the next payroll date no members of Local Union 46 will accept employment with, or continue in the employ of, Reinforce, Inc.”

The judgment should be affirmed, with costs.