Opinion
279 A.D. 609 107 N.Y.S.2d 645 FRANK E. NASH, Doing Business under the Name of FRANK E. NASH FENCE COMPANY, Respondent, v. FRANK MENNAN, as President of Local 580 of the International Association of Bridge, Structural and Ornamental Iron Workers, et al., Appellants. Supreme Court of New York, Second Department. October 22, 1951
In an action by plaintiff, engaged in the business of fabricating and erecting fences, to restrain defendants, a local union of iron workers and its business agent, from interfering with plaintiff's business by engaging in allegedly unfair and illegal practices, designed to induce the building trade in general to refrain from contracting with plaintiff, defendants appeal from a judgment enjoining such activities by them. It was established, upon trial before an Official Referee appointed to hear and determine, that all of plaintiff's employees were members of Local Union No. 456 of the Teamsters' Union, with which plaintiff had entered into a collective bargaining agreement; that the defendant union had never made any bona fide attempt to organize or unionize plaintiff's employees as such, or to become their agent for collective bargaining, but that it had, over a long period, attempted to obtain from plaintiff an agreement that he would employ members of defendant union for the erection of commercial fencing instead of using his regular employees for such work. It further appeared that it was the practice of certain of plaintiff's competitors to employ members of defendant union for such work, and that the wage scale for members of that union was substantially higher than that of the Teamsters' Union. The 'work jurisdiction' which defendant union claimed for its members specifically included fence erection, in addition to structural and other types of iron work. The learned Official Referee found that in two instances defendants had interfered with plaintiff's business, in connection with construction jobs on which members of defendant union were engaged in iron work other than the erection of fences. In the first instance there was evidence that plaintiff had failed to receive a subcontract for fence construction by reason of activity by the individual defendant on behalf of defendant union, in that he pointed out to the general contractor that if plaintiff's employees engaged in fence erection on the job, members of defendant union engaged in other iron work on the job might walk off. In the other instance the Referee found, upon sufficient evidence, that there was a direct threat of a strike if the plaintiff's employees were allowed to proceed with fence erection which had already been commenced by plaintiff pursuant to a contract. In neither case did a strike, or picketing, actually occur. The Referee held that the controversy did not constitute a 'labor dispute' subject to the provisions of section 876-a of the Civil Practice Act, and that the activities of the defendants constituted illegal interference with plaintiff's business. Judgment reversed on the law and the facts, with costs, and complaint dismissed on the law, with costs. Insofar as the Referee may have found as a fact that no labor dispute existed, that finding is reversed. All other findings of fact are affirmed. In our opinion the evidence establishes a labor dispute within the meaning of section 876-a of the Civil Practice Act. Although the members of the defendant union are not employees of the plaintiff, and the defendants were not attempting to organize plaintiff's employees and were not interested in representing them as their bargaining agent, defendants had, nevertheless, a direct interest in the labor policies of plaintiff, who was engaged in the same industry as were the members of the defendant union, and whose wage scale was lower than that of the defendant union, for the work of erecting fences. All engaged in a trade are affected by the prevailing rate of wages. ( May's Furss&s Ready-To-Wear, v. Bauer, 282 N.Y. 331-340.) The dispute involved, although jurisdictional in nature, concerned terms and conditions of employment which directly affected the interests of the members of the defendant union. Consequently, plaintiff's failure to comply with the provisions of section 876-a of the Civil Practice Act requires the reversal of the judgment and the dismissal of the complaint. Moreover, whether such a labor dispute is, or is not, involved, it is our opinion that the evidence adduced was insufficient to establish any wrongful acts, or threats, on the part of defendants which justified injunctive relief. The members of defendant union had the right to refuse to work on any ground which they might consider sufficient, and to act individually, or as an organization, if they had no unlawful object in view. ( National Protective Assn. v. Cumming, 170 N.Y. 315; Williams v. Quill, 277 N.Y. 1.) Under the circumstances disclosed by this record, it was not unlawful for the members of defendant union to refuse to work on jobs upon which plaintiff's employees were erecting fences, or for defendants to threaten to call a strike of such members, if such conditions should continue.
Nolan, P. J., Carswell, Johnston, Sneed and MacCrate, JJ., concur. [See 279 A.D. 666.]