Opera on Tour, Inc. v. Weber

The question presented for decision is far reaching and of vital importance to the best interests of unions of employees, of employers and of the general public. The only issue is whether the leaders of the defendant unions were engaged in promoting a lawful labor objective when the Musicians’ Union induced the Stagehands’ Union to join in a combination to destroy an enterprise solely because of the use of machinery in the production of music in place of the employment of live musicians.

There is no issue involved in this case of a possible compromise. The defendant Musicians’ Union refused all offers of compromise made by the plaintiff. The position of the Musicians’ Union cannot be better stated than it is in a letter from that union to the Stagehands’ Union: “ Our Federation is not in a position to compromise this matter * * * nothing short of Ceasing to use canned music can be considered as safeguarding the interests of our organization.”

At the outset we note that there is in the decision of the case at bar no denial of the right to strike. On that issue our decisions are not in doubt. (May’s Furs & Ready-to-War, Inc., v. Bauer, 282 N. Y. 331 ; Goldfinger v. Feintuch, 276 N. Y. 281 .) Individually and collectively, the members of any union may at any time refuse to work, because machinery is employed or for any other reason, and may strike in so doing. The members of these unions are free to refuse to work if they object to working in the presence of a machine. But what is here enjoined is the inducement by the Musicians’ Union of the Stagehands’ Union to enter into a combination to destroy the business of the plaintiff solely because machinery instead of five musicians is used. Here the members of the Stagehands’ Union were ordered and coerced to leave the employ of the plaintiff, causing the ruin of plaintiff’s business and the destruction of the opportunity of employment of a larger group of stagehands, actors and singers, and the denial to the public of an opportunity to enjoy the benefits of the classic operas. This, even though the members of the Stagehands’ Union were not dissatisfied with respect to wages, hours or terms and conditions of their employment, and no controversy existed or exists between them and plaintiff.

After a trial at Special Term, it was found upon sufficient evidence that plaintiff was engaged in the business of rendering performances of grand opera with an orchestral accompaniment of music mechanically reproduced from records instead of by an orchestra of five musicians. The purpose was to make grand opera available in those cities and towns of the United States which could not afford otherwise this form "of entertainment because of the prohibitive cost of transporting a grand opera orchestra. Each of the two defendants is a labor union.

An injunction was thereupon granted restraining defendants from interfering directly or indirectly with the business of plaintiff, and from ordering and coercing any person or persons to cease performing service for plaintiff, and from

Does this demand of these defendant unions, that plaintiff discard machinery in the interest of the immediate employment of a few individuals, constitute a lawful labor objective? If the acts of these 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. (National Protection Association v. Cumming, 170 N. Y. 315 ; Bossert v. Dhuy, 221 N. Y. 342 ; J. H. & S. Theatres, Inc., v. Fay, 260 N. Y. 315 ; Goldfinger v. Feintuch, 276 N. Y. 281 ; May’s Furs & Beady-to-Wear, Inc., v. Bauer, 282 N. Y. 331 ; Baillis v. Fuchs, 283 N. Y. 133 .) If on the other hand the labor objective here sought is illegal and not a lawful labor objective, since it has no reasonable connection with wages, hours, health, safety, the right of collective bargaining, or any other condition of employment or for the protection of labor from abuses, then there is no immunity for injury inflicted by a labor union. For such activities labor is not free from legal responsibility. “ * * * prima facie, the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law * * * requires a justification if the defendant is to escape. * * * ” (Mr. Justice Holmes in Aihens v. Wisconsin, 195 U. S. 194 , 204.)

The self-interest of labor, like the self-interest of any other body, receives immunity only for those objectives which have a legitimate and reasonable relation to lawful benefits

So in Scavenger Service Corporation v. Courtney (85 Fed. Rep. [2d] 825), a labor union joined an employers’ association to prevent plaintiff from price cutting in performing scavenger service in the city of Chicago. This labor objective was held unlawful.

To make impossible the continuance of a business and thus to prevent the employment of a full complement of actors, singers and stagehands merely because a machine is not discarded and in place thereof live musicians employed, is not a lawful labor objective. In Hopkins v. Oxley Stave Co. ( 83 Fed. Rep. 912 ) the labor objective sought was to abandon certain machines for hooping barrels which

In Haverhill Strand Theatre, Inc., v. Gillen ( 229 Mass. 413 ) the owner of a motion picture theatre used an organ played by hand during the presentation of its pictures. A union sought to compel the use of an orchestra of five pieces. - The Supreme Court of Massachusetts held that defendants were guilty of an unlawful labor objective.

For a union to insist that machinery be discarded in order that manual labor may take its place and thus secure additional opportunity of employment is not a lawful labor objective. In essence the case at bar is the same as if a labor union should demand of a printing plant that all machinery for typesetting be discarded because it would furnish more employment if the typesetting were done by hand. We have held that the attempt of a union to coerce the owner of a small business, who was running the same without an employee, to make employment for an employee, was an unlawful objective and that this did not involve a labor dispute. (Thompson v. Boekhout, 273 N. Y. 390 .) So, too, in a case just unanimously decided, we held that it was an unlawful labor objective to attempt to coerce a peddler employing no employees in his business and making approximately thirty-two dollars a week, to hire an employee at nine dollars a day for one day a week. • (Wohl v. Bakery & Pastry Drivers Union, 284 N. Y. 788 .)

Since the endeavor to prevent the use of a mechanical device bears no reasonable relation to wages, hours of employment, health, safety, the right of collective bargaining, or any other condition of employment or for the protection of labor from abuses, there is no labor dispute within either the letter or the spirit of the Civil Practice Act. (Civ. Prac. Act, § 876-a, subd. 10; Thompson v. Boekhout, 273 N. Y. 390 ; Luft v. Flove, 270 N. Y. 640 .) In other words, there is involved in the case at bar solely the demand that a new enterprise shall not make use of machinery in

There is in the case at bar no question raised concerning the dismissal of any employee on account of the introduction of machinery. In Scavenger Service Corporation v. Courtney (85 Fed. Rep. [2d] 825), decided since the enactment of the Norris-LaGuardia Anti-Injunction Act, it was held that the labor objective, to compel the discontinuance of price cutting, was an illegal labor objective. This was so held notwithstanding the claim that price cutting practices tended to depress the wage scale and thus involved an economic dispute. A labor dispute is an economic dispute, but not all economic disputes are labor disputes. In the Scavenger case the court said: “ We are clearly of the opinion that no labor question is involved, and the District Court was not therefore denied jurisdiction by reason of the Labor Injunction Act (Norris-LaGuardia Act, 29 U. S. C. A. §§ 101-115). Three decisions of this Court (citing cases) are decisive of this question. By no stretch of reasoning can we find a labor question involved in this controversy ” (p. 832).

A majority of the Appellate Division sought to limit the effect of the question herein decided by stating that they were passing solely on the right of the defendants to stop work in protest against the use of mechanical music. As we have pointed out earlier in this decision, the right to strike is not involved in this case. Also the right to strike does not prevent the issuance of an injunction against a continuance of the unlawful labor objectives sought herein by the defendant unions. The leaders of a labor union

An attempt was made to rest this appeal on the employment of one Schavitch, against whom the Musicians’ Union has a grievance, as well as upon the employment of a nonunion pianist. This issue was found to be belated and was brushed aside by both the majority and minority in the Appellate Division and heed not concern us here.

It follows that the judgment of the Appellate Division should be reversed and that of the Special Term affirmed, without costs.

(dissenting). The defendant American Federation of Musicians (hereinafter referred to as the Musicians’ Union) is an unincorporated association which, according to its constitution, “ shall consist of local unions of musicians, the individual musicians who form such local unions, and conditional members as conform to its rules and regulations, as well as such organizations active in the field of music which may be granted a charter of affiliation with The American Federation of Musicians.” Its declared purpose is to unite “ all local unions of musicians, the individual musicians who form such local unions and conditional members of the American Federation of Musicians into one grand organization for the purpose of general protection and advancement of their interests and for the purpose of enforcing good faith and fair dealing, as well as consistency with union principles, in all cases involving or of interest to members and local unions or the Federation.”

The defendant International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States (hereinafter referred to as the Stagehands’ Union) is an unincorporated association, consisting, as found by the trial court, “ of persons employed as stagehands, stage technicians and stage electricians (hereinafter called ‘ stagehands ’); that the said union is the parent organization which has approximately seven hundred (700) locals in the United States and Canada.”

The music, traditionally produced by an orchestra composed of instrumental musicians, was mechanically reproduced from records previously prepared for plaintiff’s use. Mechanical reproduction of recorded music as a substitute for the. traditional orchestra of living musicians had not been attempted previously in connection with any similar stage performances. The Musicians’ Union, concluding that mechanical reproduction of recorded music, as part of a stage production, would result in decrease of employment of professional musicians, objected for that reason to the plaintiff’s use of recorded orchestral music. The Musicians’ Union and the Stagehands’ Union are both members of the American Federation of Labor. They had agreed that in specified contingencies either party to the agreement might call upon the other to render “ all moral support ” in its controversies with an employer, and in some cases co-operation that might go beyond “ moral support.” For the purpose of compelling the plaintiff to abandon its use of such mechanical reproduction of music, the Musicians’ Union called upon the Stagehands’ Union for co-operation and that union, in turn, ordered its members not to render any service to the plaintiff. The plaintiff has demonstrated that it could present stage performances of grand opera without employing any members of the defendant Musicians’ Union but it cannot continue to conduct its business and

After trial the court at Special Term granted the injunction which the plaintiff asked. The Musicians’ Union, “ its officers, members, agents, servants, employees, representatives and attorneys ” and the Stagehands’ Union and its “ officers, members, agents, servants, employees, representatives and attorneys ” have been permanently enjoined and restrained, among other things, “ from interfering with plaintiff’s employees and from directing, ordering, instructing or advising any person or persons to cease performing or not to perform services for the plaintiff, Opera on Tour, Inc., and from inducing, causing or procuring in any manner or by any device whatsoever, any person or persons or organization, association, corporation or group of which any of plaintiff’s employees may be a member or may be affifiatedwith or any group or groups of plaintiff’s employees to leave or not to enter the plaintiff’s employ or to cease performing services for the plaintiff or to cause or induce its members or others to leave or not to enter the plaintiff’s employ or to cease performing services for the plaintiff on the ground that, or for the reason that, the plaintiff, Opera on Tour, Inc., uses recorded_or transcribed or mechanically reproduced music in connection with its performances ” and both defendant unions have been directed “ forthwith to cancel each and every resolution, order, instruction, notice, message, or other communication heretofore given or

There is no substantial controversy about the facts, and the problem presented upon this appeal is a simple problem. The plaintiff desires to conduct its business by the use of mechanical devices which will produce a result that could otherwise be obtained only by the employment of musicians. It produced evidence to show, that it would not be economically possible to conduct its business unless it can use the mechanical devices. The two defendant unions have determined that the use of mechanical devices for reproducing recorded music increases unemployment of members of the Musicians’ Union, and perhaps, indirectly, of members of affiliated unions engaged in stage productions. To compel the plaintiff to abandon the use of such devices, the Stagehands’ Union, at the request of the Musicians’ Union, has ordered its members not to work for the plaintiff. The question presented upon this appeal is whether a union or a combination of unions may be prohibited from calling a strike for such a purpose.

Judge Finch concedes in his opinion that “ individually and collectively, the members of any union may at any time refuse to work, because machinery is employed or for any other reason, and may strike in so doing ” and that a denial of the right would be in conflict with our decisions in May’s Furs & Ready-to-Wear, Inc., v. Bauer ( 282 N. Y. 331 ); Goldfinger v. Feintuch ( 276 N. Y. 281 ). He adds, however, that “what is here enjoined is the inducement by the

There is no evidence in the record and there is no finding that the Stagehands’ Union was induced by the Musicians’ Union to enter into a conspiracy to destroy the business of the plaintiff because machinery instead of live musicians is used or for any other reason and the judgment does not enjoin inducement by the Musicians’ Union to enter into a combination to destroy the plaintiff’s business. It-''does, as heretofore pointed out, enjoin both unions and each of them “ from interfering with plaintiff’s employees and from directing, ordering, instructing or advising any person or persons to cease performing or not to perform- services for the plaintiff * * * on the ground that, or for the reason that, the plaintiff * * * uses recorded or transcribed or mechanically reproduced music in connection with its performances, or on the ground that plaintiff uses foreign made records in connection with its performances, or on the ground that plaintiff uses transpositions or copies of records, or on the ground that Vladimir Schavitch is connected with or employed by plaintiff as artistic director to synchronize the voices of singers and performers with recorded, transcribed or mechanically reproduced accompaniment, or on any other ground which has its origin in or is due to steps or actions taken by the defendant unions to prevent the use by plaintiff of recorded or transcribed or mechanically reproduced music in connection with its performances.” It does not refer directly or indirectly to any combination to destroy plaintiff’s business for the very good reason that there has never been any claim, evidence or finding that the defendants conspired to produce that result. It seems to me that it is an injunction against a strike and nothing else. In fairness to the plaintiff and its attorneys, to the justice at Special Term and to the dissenting justices in the Appellate Division, there has not heretofore been any suggestion in the complaint, in the findings, in the opinions in the courts below or in the brief of the appellants that the defendant

The evidence establishes beyond possible contradiction, and the Appellate Division has found, that “ the actions of the defendants were all in good faith, without malice or ill-will, without primary or direct intent to injure or destroy plaintiff’s business, without fraud, force, coercion or intimidation of any kind, in the honest belief that such actions were necessary for the protection of the employment opportunities of their members, in furtherance of their economic interest in the continued employment of those in allied trades, and there was no effort on the part of the plaintiff to dispute the good faith of defendants.” Any threat which the Musicians’ Union may have made “ to put plaintiff out of business unless it abandoned its use of recorded orchestral music ” was concededly made without personal malice against the plaintiff, but solely to promote what the officers of the union in good faith believed to be for the best interest of the members of the unions, and the threat involved no implication that the unions would use any means to carry it out other than an order issued by the Stagehands’ Union to its own members not to work for the plaintiff or any other employer using mechanical or canned music in connection with stage performances.

I have posed the question in form designed to be as favorable as possible to the employer seeking an injunction — perhaps in form more favorable to the employer than is justified in this case by the evidence or by any findings that might be based upon the evidence. I have done so because in my opinion the injunction issued by the court at Special Term constitutes an intrusion by the court into a field from which it is excluded under the law of the State

Individual freedom of action, either alone or in concert, may be restricted or regulated in the public interest by statute or Constitution. Except as limited by the Constitution, the Legislature may prohibit action which in its opinion should not be sanctioned and outlaw conduct which previously was lawful; or the Legislature may sanction, and render lawful, conduct which previously was subject to penalty. Men combine in associations or unions to exercise in concert an influence or power which enables them to accomplish purposes and ends which, acting singly, they could not effect. The economic, social and political consequences of powerful combinations, large or small, of capital or of labor, of producers, of dealers, or of consumers, are profound, when, perhaps, even without the use of unlawful means, such combinations exert compulsion or pressure upon others to do their will — to pay prices which the combination demands, or to sell at prices which the combination is willing to pay, to conduct their businesses and, at times, to live their lives in accordance with the will of those who

The courts have no such power. A unanimous court approved and based their decision in Interborough Rapid Transit Co. v. Lavin ( 247 N. Y. 65 , 74) on the statement in the opinion in that case that “ Demands of workmen may sometimes be fair and sometimes unfair. Combinations give the workmen a power of compulsion which may work harm to their employer, the public and even to themselves. Where the workmen do not combine they may be compelled by force of economic circumstances to accept unfair terms of employment. Such conflicting considerations of economic policy are not primarily the concern of the courts.” (Italics are new.) We have said, too, that “ A workman may leave his work for any cause whatever. He need make no defense, give no explanations. Whether in good or bad faith, whether with malice or without, no one can question his action. What one man may do, two may do or a dozen, so long as they act independently. If, however, any action taken is concerted; if it is planned to produce some result.

Consideration of the effect of the legislative decree may profitably be postponed until the effect of earlier judicial decisions of this court has been discussed. I emphasize “ of this court ” for, though the decisions of this court in cases involving the power of the corut to enjoin a union from ordering a strike to achieve labor objectives which, in the opinion of the judges, are perhaps not in the true interest of the striking employees or of the public, accord, I think, -with the weight of authority in other jurisdictions, yet in some jurisdictions — and notably the Supreme Court of Massachusetts, as I shall show hereafter — have, by a different approach to the problem, at times reached conclusions inconsistent with the concepts of law long and consistently accepted by this court. (See “ The Labor Injunction,” by Frankfurter and Greene, p. 29; Stearns Lumber Co. v. Howlett, 260 Mass. 45 , at p. 65.)

I assume argumentatively that the unions have no dispute with the employer concerning the wages, hours of employment, health, safety, right of bargaining, or other incident of the employment of any member of the Stagehands’ Union or any other person presently in the employ of the plaintiff, and that the objective of the strike is not to improve the conditions of such employment, but to compel the employment of more musicians by stopping the use of musical devices “ operated,” as Judge Finch points out, “ in place of the employment of five musicians.” That the use of machines which displace men causes unemployment among those displaced is obvious; though at times the resultant saving of labor cost may so increase sales of the product that loss of employment by one set of workers may be offset by increased employment of other workmen or benefit to the public may, in the minds of reasonable men, far outweigh the harm caused by loss of employment in the group displaced by the- labor-saving machine. In this case it was shown that the number of professional musicians employed in public performances has been

Heretofore this court has unequivocally affirmed the right of workmen to combine for similar objectives. Here is an economic conflict between workers and producers. The workers seek to compel the producers to employ more men than the producers desire to employ, or than are required for the conduct of their business in manner which is acceptable to the public and which will produce greatest profit to the producers. The labor-saving machine displaces labor and reduces costs. That is its purpose. By displacing labor it causes unemployment in some places; by reducing costs it may make it possible to conduct at a profit a business which would otherwise be doomed to failure. A combination to compel the abandonment of cost-reducing devices may thus be a threat of ruin to a business already upon a precarious economic footing. Here it is such a threat to the plaintiff. Almost every strike indeed involves threat of ruin to the employer unless the employer accepts the demands of the strikers, for ordinarily strikes are successful only where the employer concludes that to run his business he must make terms with the strikers. None the less a strike to achieve a legitimate economic purpose cannot be outlawed because if successful some employers will no longer be able to conduct business at a profit; nor is a combination unlawful because it includes all the workers within a trade and thus no employer can find workers who know that trade and are willing to accept employment unless the employer reaches an agreement with the members of the combination. “ The purpose of a labor union to improve the conditions under which its members do their work; to increase their wages; to assist them in other ways may justify what would otherwise be a wrong. So would an effort to increase its

These principles have been established too firmly and too long to be repudiated now; but we are told that these principles do not apply here because the plaintiff employs no members of the Musicians’ Union and, therefore, the combination is not for the purpose of improving the conditions under which the members of that union work and that the evidence supports a finding that the members of the stagehands’ unions are not striking to improve the conditions under which they work but solely in order to compel the plaintiff to employ workers whom the plaintiff does not need and perhaps cannot afford to employ. Assuming arguendo that this is true, the conflict is still between an employer and employees who seek to improve the economic position of workmen in their own trade by compelling the employment of more workers. It is an economic conflict, nothing else, and this court has said that “ it is not within the province of the courts to restrain conduct which is within the allowable area of economic conflict.” (Stillwell Theater, Inc., v. Kaplan, 259 N. Y. 405 , 412.) Thus the fundamental question here presented is whether in this State a strike to compel an employer to discard a laborsaving device and to employ more human workers is within the " allowable area of economic conflict.”

Judge Finch and the dissenting judges in the Appellate Division have found in Haverhill Strand Theatre, Inc., v. Gillen ( 229 Mass. 413 , 417, 418) support for their holding that it is not within that “ allowable area,” though the appellant does not urge that case as authority here. Perhaps the appellant is wise because, though a similar question was there presented, an analysis of the opinion shows that the decision is based upon doctrines accepted in Massachusetts but repudiated here and in other jurisdictions. The Massa

Judge Finch finds authority for the injunction also in some cases in the Federal courts and stresses particularly Dorchy v. Kansas ( 272 U. S. 306 ) as a holding that coercion of an employer to pay a stale claim is unlawful “ even though the payment of such a claim may be to the material advantage of the employees.” In that case the only question presented was whether a statute which restricted or prohibited strikes in the mining; industry constituted a denial of the liberty guaranteed by the Fourteenth Amendment if applied to strikes called, as the court pointed out, “ to collect a stale claim due to a fellow member of the union who was formerly employed in the business.” Such a strike the court said was unlawful and it added that “ in the absence of a valid agreement to the contrary, each party to a disputed claim may insist that it be determined only by a

The court’s command to the unions to cancel their strike order is not only contrary to the policy of the State as established by an unbroken line of judicial decisions, but it disregards a direct and clear legislative mandate that such a strike is not unlawful and may not be enjoined. No court may under the statute directly or indirectly prohibit a strike, conducted peacefully and in orderly fashion “ in any case involving or growing out of a labor dispute.” The statute defines a labor dispute as follows: “ The term ‘ labor dispute ’ includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, or concerning employment relations, or any other controvery arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the relation of employer and employee.” (Civ. Prac. Act, § 876-a, subd. 10, par. c.) The validity of the statute is not now challenged. It could hardly be since this court has in careful and comprehensive opinions sustained and applied the statute. (Goldfinger v. Feintuch, 276 N. Y. 281 , opinion by Finch, J.; May’s Furs & Ready-to-Wear, Inc., v. Bauer, 282 N. Y. 331 , opinion by Finch, J.; Baillis v. Fuchs, 283 N. Y. 133 , opinion by Sears, J.)

We are told, however, that the statute does not apply here because there is no labor dispute. Why there is no “ labor dispute ” here remains a mystery to me. Reliance is placed upon Thompson v. Boekhout ( 273 N. Y. 390 ), where this court held that there can be no labor dispute

The judgment should be affirmed.

Bippey, Lewis and Conway, JJ., concur with Finch, J.; Lehman, Ch. J., dissents in opinion in which Loughran, J., concurs; Sears, J., taking no part.

Judgment accordingly.