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vacated positions and seek to persuade them not to remain in
or accept employment with their former employer.* It was
even said in a concurring opinion in a recent case that, where a
strike or a lockout has for its purpose the procuring of more
desirable terms of employment from one of the parties to a
labor contract, the act of striking or locking out does not com-
pletely terminate the relationship between the parties. " The re-
lationship is an anomalous one, yet distinctive, and of such nature
as to secure to the parties certain correlative rights under which
acts may be performed that would assume a different aspect
if done by absolute strangers or in different circumstances." '

The extent to which this rule may be carried is difficult to
determine, since, while it seems clear that peaceable persuasion
in connection with a lawful strike should be regarded as lawful,
it may not be legally carried so far as to become vexatious and
coercive, nor may the equal rights of all men in freely contracting
or in seeking employment be ignored. A display of force, though
with no use of actual violence, is unlawful,' and no one has the
right to obtrude upon others to impose upon them arguments
and persuasion to which they are unwilling to listen.* Strikers

•Iron Molders' Union v. Allis-Chalmcra Co., 166 Fed. 45. 91 CCA. 631;
Karges Furniture Co. v. Amalgamated Woodworkers' Union, 165 Ind. 421, 71
N.E. 877; Wabash R. Co. v. Hannahan, 121 Fed. 563; Everett-Waddy Co. p.
Typographical Union, 100 Va. 188,53 S.E. 273; Jones v. E. Van Winkle Gin A
Machine Work.s, 131 Gal. 336, 62 S.E. 236.

' Iron Molders' Union v. Alli.s-Chalmers Co., supra.

« O'Neil V. Behanna, 182 Pa. St. 236, 37 Atl. 843.

* Frank t. Herold, 63 N.J. Eq. 443, 52 Atl. 152 ; Southern R. Co. r. Machin-
ists' Local Union, 111 Fed. 49; O'Neill r. Rchanna, supra; Union P. R. Co. v.
Ruef, supra; Goldfield Conaol. Mines Co. v. Goldfield Miners' Union, supra.
T



274 LAW OF THE EMPLOYMENT OF LABOR

may not go upon the premises of the employer to confer with his
employees, since in doing so without his permission they become
trespassers.^ Intimidation must not be disguised in the as-
sumed character of persuasion. Persuasion too emphatic or
too long and persistently continued may itself become a nuisance,
and its use a form of unlawful coercion.^

With the extensive and freely used power of organizations to
influence the prospects of employment or of the formation and
maintenance of business relations of every sort, it must be ad-
mitted that a simple representation to the effect that a given
course of conduct is looked upon with disfavor by an organiza-
tion is of itself a potent influence, and often amounts to an
interference with the free course of conduct on which the "prob-
able expectancies" of business rest.^ Such interference, there-
fore, even if by simple persuasion, is not an absolute right, but
demands justification for its exercise. Courts have given ut-
terance to the statement that a wrongful motive cannot convert
a legal act into an illegal one,* but the overwhelming consensus
of opinion is to the effect that acts affecting injuriously or in any
manner interfering with or embarrassing the course of employ-
ment or business require justification in order to protect them
from being actionable, however legal they may be merely as
acts.^ The question whether conduct is actionable necessarily

1 Webber v. Barry. 66 Mich. 127, 33 N.W. 289.

* Otis Steel Co. v. Iron Molders' Union, 110 Fed. 49 ; O'Neil v. Behanna, supra.
' State V. Donaldson, 32 N.J.L. 151, 90 Am. Dec. 640 ; Boutwell r. Marr, 71

Vt. 1, 42 Atl. 607 ; Curran v. Galen, 152 N.Y. 33, 46 N.E. 297.

* Quinn v. Leathern, 85 L.T. 289 ; J. F. Parkinson Co. v. Building Trades
Council, 154 Cal. 581, 98 Pac. 1027 ; State v. Van Pelt, 136 N.C. 633, 49 S.E. 177.

s Aikens v. Wisconsin, 195 U.S. 194, 25 Sup. Ct. 3 ; Loewe v. Lawlor, 208 U.S.
274, 28 Sup. Ct. 301 ; Jersey City Printing Co. v. Cassidy. 63 N.J. Eq. 759, 53 Atl.
230 ; State v. Stockford, 77 Conn. 227, 58 Atl. 769 ; Reynolds v. Davis, 198 Mass.



LABOR DISPUTES 275

calls for determination on the merits of the individual case;
and "justification may be found sometimes in the circumstances
under which it is done, irrespective of motive, sometimes in the
motive alone, and sometimes in the circumstances and motive
combined."^

The problem of determining the boundary between persuasion
of an allowable sort and that which will be condemned as co-
ercive is therefore one of fact, and each case will be determined
on its own surroundings. The courts will not decree all per-
suasion an interference, "but where evidence presents such a
case as to convince the court that the employees are being in-
duced to leave the employer by operating upon their fears
rather than upon their judgments or their sympathy, the court
will be quick to lend its strong arm to his protection." ^

Officials of labor organizations who are not fellow-workmen
with the employees, and who have therefore no relation to the
employers, may nevertheless counsel and advise with employees
who are members of their organizations as to the advisability
of striking, especially where no strike can take place without
the vote and consent of the employees themselves ; ' and if the
officials are themselves authorized by the union to call or declare
strikes in their discretion, it is not unlawful for them to so act.*

294, 84 N.E. 457 ; Huskie v. Griffin, 75 N.H. 345, 74 Atl. 595 ; Martin. The Mod-
ern Law of Labor Unions, p. 47 ; Eric, Trade Unions, p. 20 ; Pennant. Trade
Unions and Workmen, p. 39. This view is rejected by Cooke, Combinations,
Monopolies, and Labor Unions, pp. 17-22, though he cites numerous cases
which, he says, "seem, generally speaking, to uphold the view condemned in the
text." > Plant r. Woods, 176 Mass. 492. 67 N.E. 1011.

* Rogers v. Evarts, 17 N.Y. Supp. 264.

» A. R. Barnes & Co. v. Berry, 157 Fed. 883 : Delaware. L. & W. R. Co. ».
Switchmen's Union, 158 Fed. 541 ; Wabash R. Co. v. Hannahan, supra.

* Thomas v. Cincinnati N. O. A T. P. R. Co., 62 Fed. 803 ; Delaware, L. My Maryland Lodge v. Adt. 100 Md. 238. 59 Atl. 721.

• Cooke, Combinations, Monopolies, and Labor Unions, p. 60.

• E. P. Cheney, 4 Pol. Sci. Q. 274.

• Mills V. U. S. Printing Co., 91 N.Y. Supp. 186, 99 App. D. 606; adopted in
Lindsay v. Montana Fed. of Labor, 37 Mont. 264, 96 Pac. 127.



284 LAW OF THE EMPLOYMENT OF LABOR

which gives character to the act. It is the illegality of the pur-
pose to be accomplished, or the illegal means used in furtherance
of the purpose, which makes the act illegal." ^ In this case the
court refused to continue an injunction against a boycott pros-
ecuted largely by the distribution of a circular declaring the
plaintiffs (wholesale and retail merchants) unfair, and calling
on retailers and the public to withhold their patronage from
them, asking them to do this "for your own protection and the
protection of organized labor," The supreme court of Cali-
fornia took a similar view in a case ^ involving efforts to unionize
the plaintiff's business and the causing of loss through the ces-
sation of trade relations with a number of former customers,
leading in some instances to the violation of contracts. It was
held that customers were entitled as a matter of fair dealing to
know that the company had been declared unfair so that they
would be able to avoid inconvenience and loss to themselves by
breaking off their relations with the company, since no union
workman would handle material purchased from it. A suffi-
cient justification for the acts of the council, in so far as they
were responsible for the violation of the contracts, was said to
exist in the duty of the union to so warn the customers of the
company. The situation was described as a bringing to bear
upon the company the pressure of loss inflicted by third persons,
with whom no controversy existed, by holding over those per-
sons the risk of financial loss, thus compelling them to act against
their own will. Such action was said to be nothing more than
trade competition in an effort to secure the employment of union

» Citing Bohn Mfg. Co. v. HoUis, 64 Minn. 223,55 N.W. 119; Nat. Prot.
Ass'n V. Cumming, 170 N.Y. 315, 63 N.E. 369.

» J. F. Parkinson Co. v. Building Trades Council, 164 Cal. 581, 98 Pac. 1027.
See also State v. Van Pelt, 136 N.C. 633, 49 S.E. 177.



LABOR DISPUTES 285

workmen to the exclusion of all not associated with them, and
on terms deemed satisfactory and advantageous to the members
of the union. Since each member was entitled to so act, all
might so act in combination. "It may be that the combina-
tion of great numbers of men, as of great amounts of capital,
has placed in the hands of a few persons an immense power, and
one which, in the interest of the general welfare, ought to be
limited and controlled. But if there be, in such combinations,
evils which should be redressed, the remedy is to be sought, as
to some extent it has been sought, by legislation. If the con-



Online LibraryLindley Daniel ClarkThe law of the employment of labor → online text (page 23 of 32)