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ditions require new laws, these laws should be made by the
law-making power, not by the courts."

These cases stand quite clearly marked off from the great
body of decisions on the point involved, since the boycott is
generally, by its very definition, put without the pale of those
combined activities which the law will permit. In a tolerably
recent case it was said that the distinction between an ordinary
lawful and peaceable strike, entered upon to obtain concessions
in the terms of the strikers' employment, and a boycott, is not
a fanciful one. "Boycotts, though unaccompanied by violence
or intimidation, have been pronounced unlawful in every state
in the United States where the question has arisen, unless it be
in Minnesota, and they are held to be unlawful in England;" ^
and in a somewhat earlier case it was said that "no case has
been cited where, upon a proper showing of facts, an unsuccess-
ful appeal has been made to a court of chancery to restrain a

> Thomas v. Cincinnati, etc.. R. Co., 62 Fed. 803. It may be noted that in
the State of Minnesota, boycottinR, which was allowed in the case of Bohn Mfg.
Co. V. Hollis, 54 Minn. 223, 55 N.W. 1 1 19, was hold to bo properly enjoined in the
later case of Gray r. Building Trades Council, 91 Minn. 171. 97 N.W. 663. See
also Ertz v. Produce Exchange. 79 Minn. 140, 81 N.W. 737.


boycott." ^ While so sweeping a statement is not now pos-
sible, it remains true that boycotts are by most courts held un-
lawful even without public disturbance, physical injury, or direct
threats of attacks on person or property ;2 since "the use of
the word ' boycott ' is itself a threat, and the distribution of boy-
cott notices is intended as a menace, intimidation, and coercion." '
Where the coercion consisted only in the enforcement of fines
on members of the association conducting the boycott, it was
still held to be unlawful, since it was no less an unlawdful inter-
ference with business because accomplished by the enforcement
of coercive fines on members than if it had been accompHshed
by coercive measures against nonmembers to compel them to
aid in the boycott ; and the fact that there was an initial agree-
ment by all the members was not regarded by the court as war-
ranting a finding that the continued withholding of patronage
was also voluntary, when the failure to do so would have re-
sulted in a heavy fine ; * the imposition of fines on nonmembers
is unlawful.*

It is evident that it is the coercive feature of the boycott
that discredits it so emphatically in the great majority of the
courts. The mere refusal of individuals to deal would not be a
violation of law, since individuals acting independently cannot

1 Casey v. Cincinnati Typographical Union, 45 Fed. 135.

» Barr v. Essex Trades Council, 53 N.J. Eq. 101, 30 Atl. 881 ; March v. Brick-
layers, etc., 79 Conn. 7, 63 Atl. 291 ; Shine v. Fox Bros. Mfg. Co., 156 Fed. 367, 86
CCA. 311 ; Purvis v. Carpenters & Joiners, 214 Pa. St. 348, 63 Atl. 585.

' Brace Bros. v. Evans, supra ; Beck v. Railway Teamsters' Protective Union,
118 Mich. 497, 77 N.W. 13 ; Casey v. Cin. Typ. Union, supra, etc.

* Boutwell r. Marr, 71 Vt. 1, 42 Atl. 607 ; Martell r. White, 185 Mass. 256,69
N.E. 1085.

» Purington c. Hinchcliff, 219 111. 159, 76 N.E. 47 ; Burke v. Fay, 128 Mo. App.
690, 107 S.W. 408 ; United States t>. Raish, 163 Fed. 911.


conspire nor can they intimidate the public acting alone.^ "It
has been decided, however, that while such action would not
be unlawful by an individual, a combination and a conspiracy
to accomplish the purpose would be an illegal act." ^ In the
Hopkins case it was said that the definition of a boycott was
not essential, since the evident purpose was, even if without
violence, to so act by concert, force of numbers, and exciting
the fears of the timid, as to compel many persons to surrender
their freedom of action and submit to the dictation of others in
the management of their private business affairs. "At common
law every person has individually, and the public has also col-
lectively, a right to require that the course of trade should be
kept free from unreasonable obstruction;"' nor can the
ordinary methods of the boycott be justified as matter of trade
competition ; * since the relations involved are not those of
trade competitors engaged in rivalry for a market for their
products ; inducing one's employees to leave his service, or
interfering with the employment of workmen, for the purpose
of crippling his business, where the organization is not itself
engaged in any business, competitive or otherwise, and has no
need of labor, its only object being to compel the employer to

» Lohse Patent Door Co. r. Fuelle, 215 Mo. 421. 114 S.W. 997.

* Oxley Stave Co. r. Coopers' International Union, 72 Fed. 695, citing Arthur
V. Oakes. 63 Fed. 310; affirmed in Hopkins v. Oxley Stave Co., 83 Fed. 912,
28 CCA. 99 ; see also Lohse Patent Door Co. v. Fuelle, supra.

* Erie, Trade Unions, cited with approval in Loewe v. Lawlor, 208 U.S. 274,
28 Sup. Ct. 301 ; Purington v. Hinchcliff, supra; Jersey City Printing Co. t.
Cassidy, 63 N.J. Eq. 759, 53 Atl. 230 ; Branson v. Industrial Workers of the World,
aupra, etc.

* March r. Bricklayers, etc., supra; George Jonas Glass Co. v. Glass Bottle
Blowers, 72 N.J. Eq. 653. 66 Atl. 953 ; My Maryland Lodge v. Adt. 100 Md,
238. 59 Atl. 721 ; per contra, J. F. Parkinson Co. c. Building Trades Council,


concede the desired terms to the organization, is said not to be
the competition which the law recognizes or upholds. Nor is
the publication of boycott notices within the protection of the
right of free speech and a free press/ since with the right of
free speech there is a guarantee of other rights and liberties, and
it is a maxim of jurisprudence that each one must so use his own
rights as not to infringe upon the rights of another ; ^ and it
has been said that it would be strange indeed if the right of free
speech could be used to sustain the carrying out of an unlawful
and criminal conspiracy.' It has been contended against this
view that the restraint of publication cannot be effected by
the courts, since courts will not interfere with the publication
of a libel, but will leave the parties to their freedom of action,
subject to liability for the consequences.* But "there is a

' Loewe v. California State Fed. of Labor, 139 Fed. 71 ; Crump v. Com., 84
Va. 927, 6 S.E. 620 ; Shine v. Fox Bros. Mfg. Co., supra; Beck v. Ry. Teamsters,
Prot. Union, supra; My Maryland Lodge v. Adt, supra; Buck's Stove & Range
Co. V. American Fed. of Labor, 35 Wash. L. R. 797 ; Huttig Sash & Door Co. v.
Fuelle, 143 Fed. 363 ; and see Loewe v. Lawlor, supra.

» Jordahl v. Hayda, 1 Cal. App. 696, 82 Pac. 1079. "While our republican
government guarantees the right to pursue one's own happiness, yet that gov-
ernment is charged with the duty of protecting others than appellant in the
pursuit of their happiness, and hence the inalienable right to pursue one's own
happiness must necessarily be subject to the same right in all others. Hence,
when that right is asserted in such a manner as to conflict with the equal right
to the same thing in others, it is not an inalienable right at all, but is a wrong."
Townsend v. State, 147 Ind. 624, 47 N.E. 19.

5 Thomas v. Cincinnati, etc., R. Co., 62 Fed. 803.

* Marx & Haas Co. v. Watson, 168 Mo. 135, 67 S.W. 391 ; Lindsay v. Montana
Fed. of Labor, supra. In the former case it was said that there was no authority
under the constitution for a distinction between proceedings to enjoin the pub-
lication of a libel and one to enjoin publications of any other sort, however in-
jurious. "No halfway house stands between prevention and absolute freedom.
. . . The two ideas, the one of absolute freedom to say, write, or publish what-
ever he will on any subject, coupled with the responsibility therefor, and the


clear distinction between suits to enjoin the publication of a
libel, and one to restrain acts to intimidate persons from dealing
with another. In the one, when the acts complained of consist
of such misrepresentations of a business that they tend to its
injury and damage to its proprietor, the offense is simply a libel ;
and in this country the courts have with great unanimity held
that they will not interfere by injunction, but that the injured
party must rely upon his remedy at law. On the contrary,
when the attempt to injure consists of acts or words which will
operate to intimidate and prevent the customers of a party from
dealing with him, or laborers from working for him, the courts
have, with nearly equal unanimity, interposed by injunction." ^
A distinction is sometimes drawn between what are classed
as primary and secondary boycotts. In the former, the action
is directly against the offending employer, the members of the
organization simply withholding their patronage as laborers or
purchasers, and inducing their fellows to do the same. The
mere withholding of patronage or refusal to trade is not unlaw-
ful,'^ and the announcement or publication of such a purpose is
within the rights of the persons agreeing together, even though

other idea of preventing any such free speech, free writing, or free publication,
cannot coexist." The fact that the defendants were without funds or property
that could be attached in a damage suit was said not to affect the situation,
though it left the plaintifif company open to ruinous attacks with no possibility
of recovery or redress. This case was commented on adversely in Rocky
Mountain Tel. Co. v. Montana Fed. of Labor, 157 Fed. 821 ; and see Lohse
Patent Door Co. v. Fuelle, supra.

' Cceur d'Alcne Consol. Min. Co. v. Miners' Union, 51 Fed. 200; and see
Beck V. Railway Teamsters' Union, supra; Casey r. Cincinnati Typ. Union, 45
Fed. 135 ; Gray v. Building Trades Council, supra.

* Toledo, etc., R. Co. v. Penna. Co., 54 Fed. 730 ; State r. Glidden, 55 Conn.
46, 8 Atl. 890 ; Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 323 ; Hey v.
WUson, 232 111. 389. 83 N.E. 928.


it results in the injury of the person against whom the acts are
directed.^ And it will follow that persons freely joining in such
withholding of business intercourse will not by their acts incul-
pate either themselves or the original actors. But such is not
the usual course of the boycott ; and indeed the definitions usu-
ally adopted do not cover such acts, but are applicable only to
the second class, or the so-called secondary boycotts (sometimes
called compound boycotts), which are generally understood to
mean combinations to harm one person by coercing others to
harm him, as already set forth above. Exceptions to the
practically uniform declaration as to the illegality of such
boycotts are to be found where the employer extends or
seeks to extend his activities by combinations with others
of his class. Thus where an employer whose men are on
strike sends material to be worked up by other employers,
it is justifiable for sympathizers with the original strikers to
withhold service from these other employers for the purpose of
inducing them to refrain from dealing with him, and so seek to
isolate him from business. "To whatever extent employers
may lawfully combine and cooperate to control the supply and
conditions of work to be done, to the same extent should be
recognized the right of workmen to combine and cooperate to
control the supply and the conditions of the labor that is nec-
essary to the doing of the work." ^ The supreme court of

1 Gray v. Building Trades Council, supra; People v. McFarlin, 89 N.Y. Supp.
597, 43 Misc. 591 ; Pierce v. Stablemen's Union, supra.

» Iron Molders' Union v. Allis-Chalmers Co.. 166 Fed. 45. 91 CCA. 631. See
also Sinsheimer v. United Garment Workers, 77 Hun, 215, 28 N.Y. Supp. 321,
where relief was denied an employer who was held not to have "come into court
with clean hands," having himself employed methods similar to those of which
he complained.


California "recognizes no substantial distinction between the
so-called primary and secondary boycott," permitting strikers
not only to withhold their own patronage, but also, " by threat
of like boycott, to coerce others into doing so." However, it
held illegal any act which tends to impair the right of free action
by individuals by means passing beyond moral suasion and
playing by intimidation upon the physical fears.^ A dissent-
ing opinion in the Pierce case pointed out what is no doubt a
fatal weakness in the position taken by the majority, contend-
ing that the use of any means constituting duress, menace, or
undue influence would render the boycott unlawful. "Whether
this coercion or compulsion comes from fear of physical violence,
as in the case of picketing, or from fear of financial loss, as in
the 'secondary boycott,' or from fear of any other infliction, is,
in my opinion, immaterial, so long as the fear is sufficiently
potent to control the action of those upon whom it is cast."

In a few states boycotting is forbidden by statute, the term
"boycott" being used for the most part without definition;'^
while in two other states concerted refusal to trade with dealers
or manufacturers, or concerted action to interfere with their
business, is made an offense.' The effect of these statutes is
slight, since they are little if any more than a declaration of the
rules of the common law. "Neither at common law nor under
statutes modifying the common law doctrine is it lawful for
workmen to combine to injure another's business by causing
his employees to leave his service by intimidation, threats,

1 Pierce v. Stablemen's Union, supra; approving Parkinson r. Building Trades
Council, supra, and citing as a supporting case Lindsay v. Montana Federation
of Labor, supra.

» Ala.. Code, sec. 6396 ; Colo., Acts 1905. ch. 79 ; 111., Acts 1905, ch. 38.

» Ind., A.S., sec. 3312m ; Texas, Acts 1903, ch. 94.


molestation, or coercion." ^ They have the effect, however,
of declaring the policy of the state in regard to any possible
departure from the rule laid down.

Besides the statutes prohibiting boycotting, a number of
statutes have been referred to in boycott cases as violated by
the acts complained of. Thus a statute of Wisconsin,^ which
penalizes combinations for the purpose of willfully or maliciously
injuring the trade or business of another, was held to be con-
stitutional and applicable in a case of a combination of a number
of managers of newspapers to boycott a rival publisher.^ The
legislature was held to have the power to make the question of
motive a material one ; nor can the right to punish malicious acts
be denied because they are to be followed and worked out by
conduct which might have been lawful if not preceded by such
acts. This corresponds to the principles controlling in the
doctrine of conspiracy, whether under statute or common law.*
A similar statute of New York ^ was held to have like applica-
tion in a boycott case in which there was neither violence nor
threat of violence, where the combination was against builders
who should buy materials of any dealer not approved by the

The federal antitrust act ^ was made the basis of an action
against a labor organization which had largely reduced the sales

' 8 Cyc. 639, cited with approval in Branson v. Industrial Workers of the
World, supra. ' A.S., sec. 4466a.

» Aikens v. Wisconsin, 195 U.S. 194, 25 Sup. Ct. 3.

* Sec. 118. And see Purington v. Hinchcliff, supra.
» Penal Code, sec. 168, subd. 6.

• People V. McFarlin, supra. See also Branson v. Industrial Workers of the
World, supra, where a boycott was undertaken to compel an employer to union-
use his plant, the boycott being classed as a criminal conspiracy under sec. 4751,
G.L. of Nevada. » 26 Stat. 209, U.S. Comp. St., p. 3200.


of the complainant's products by boycotts in various parts of
the United States, and the court found that]there was a punish-
able combination or conspiracy to interfere with trade or com-
merce among the several states, as prohibited by the statute.^

Another federal statute that has been invoked is the provision
forbidding attempts to defraud by the use of the United States
mails.2 In this case a fine was assessed against a manufactur-
ing company by a union because of a refusal of demands to
employ only union workmen. A boycott was declared against
the company's products and notice thereof was mailed to its
customers. This was held to be a violation of the statute,
whether viewed as a means of inducing the payment of the fine
to escape the boycott, or as a means of maintaining the boycott
to the injury of the complainant's business.'

Section 123. Blacklists. — A blacklist is in brief a list of
persons marked out for unfavorable discrimination in business
or social relations. As the term is generally used, it applies to
lists kept by groups or associations of employers for their mutual
information as to workmen to whom employment will be re-
fused on the basis of certain facts or alleged facts stated or
assumed in connection with the placing of the names on the
lists. A mere exchange of information, leaving each employer
free to act on his own judgment in the case, is not, in the absence
of statute, illegal.'* It has already been stated that the giving

> Loewe r. Lawlor. 208 U.S. 274, 28 Sup. Ct. 301. See also Buck's Stove dc
Range Co. v. American Fed. of Labor, 37 Wash. L. R. 822.

* R.S., sec. 5480, U.S. Comp. St., p. 3696.
» United States r. Raish. 163 Fed. 911.

* Willis V. Muscogee Mfg. Co., 120 Ga. 597, 48 S.E. 177 ; Boyer v. Western
Union Tel. Co.. 124 Fed. 246 ; R. Co. t>. Young, 162 Ind. 102, 69 N.E.
1003 ; Baker v. Ins. Co. (Ky.), 64 S.W. 913.


of recommendations or clearance cards at the termination of
employment is not obligatory on the employer (sec. 14) ; but
in any information which an employer offers he must avoid
perversion of facts, as he will be liable for false or unfair state-
ments concerning his workmen.^ The same is true as to state-
ments made maliciously or for purposes of wrongful interference
with the relation of employer and employee; and where it
appears that one is blacklisted "without cause or provocation,"
a suit for damages will lie if it is shown that the person so black-
listed was thereby cut off from opportunity for employment, to
his injury. 2

It has been said that a discharged employee cannot recover
damages against one blacklisting him and so procuring his dis-
charge, even though the act was malicious, unless there was co-
ercion or deception, causing the discharge against the will or
contrary to the purpose of the employer,^ but this view is not in
harmony with what appears to be the better and more common
opinion ; * and where a workman is blacklisted by a former
employer, and others in association with the employer refuse
employment because of the information given, the agreement

1 Willis V. Muscogee Mfg. Co., supra; Hundley c. Louisville & N. R. Co., 105
Ky. 197,48 S.W. 429 ; St. Louis S.W.R. Co. v. Hixon (Tex. Civ. App.), 126 S.W.
338. See also Davis v. New England R. Pub. Co., 203 Mass. 470, 89 N.E. 565.
(This case involved the omission of a firm name from a list of all local " repu-
table express companies.")

» Mattison v. R. Co., 3 Ohio Dec. 526 ; Willner v. Silverman, 109 Md. 341. 71
Atl. 962 ; Hundley v. Louisville & N. R. Co., supra; Rhodes v. Granby Cotton
Mills (S.C), 68 S.E. 824; see also Willett v. Jacksonville, etc., R. Co. (U.S. C.
C, 1896, S. D. of Florida) in which the plaintiff obtained judgment in the
amount of $ 1700 for loss of employment with another company on account of
a letter written by his former employer.

» Baker v. Ins. Co. (Ky.), 67 S.W. 967.

< Joyce V. Great Northern R. Co., 100 Minn. 225, 110 N.W. 975; and cases
in note.2, supra.


will be condemned as a conspiracy if the circumstances show it
to be injurious and without warrant in fact.^

A number of states have statutes prohibiting blacklisting.'
The constitutionality of these statutes has been maintained,
their purpose being to protect employees in their natural and
constitutional right to sell their labor and acquire property.'
The Indiana statute refers only to the blacklisting of discharged
employees, and is therefore held not to be applicable to cases
where one voluntarily left service ; * while in construing the
Minnesota statute, which names both those who leave volun-
tarily and those who are discharged, the court said that the
fact that an employee left his place voluntarily does not give the
employer the right to prejudice his employment elsewhere,
and that it was not a sufficient answer that the employer may
have cause for making the statement, or that it may be to the
mutual advantage of all employers in an association, since if
such were the facts in the case, they would not bar the action
but would be available only as a matter of defense.^

Section 124. Interference with Employment, Intimidation,
etc. — Not falling specifically under any of the foregoing heads
and involving forms of collective action, thus differentiating
them in some respects from the acts of individuals already
considered (sec. 15), there are yet to be noticed some forms of

• Rhodes V. Granby Cotton Mills, supra. (Plaintiff was blacklisted as a
striker, and so published, although it was clearly shown that he was not.)

»Ala., Code, sec. 6398; Conn., Acts 1909, ch. 153; Ind., A.S., sec. 7076;
Minn., R.L., sec. 5097 ; N.C., Acts 1909, ch. 858 ; U.S., 30 Stat. 424, Comp. L.,
p. 3205.

« State V. Justus, 85 Minn. 279, 88 N.W. 759 ; St. Louis S. W. R. Co. r. Hixon,
Bupra; Joyce v. Great Northern R. Co., supra.

• Wabash R. Co. v. Young, supra.

• State r. Justus, supra.


interference with the employment of labor or the conduct of
business by methods which the law does not sanction. It has
been seen that the courts will take note of injuries inflicted or
threatened where they follow the unwarranted and improper
exercise of such powers as are possessed by a collective body,
even though there be neither fraud nor coercion by violent
means ; and the unjustifiable interference by way of persuasion
or the enticement of workmen, involving the violation of a
contract not to become members of a union, has been held to
entitle an employer to an injunction against members of a
labor union who were seeking to unionize his plant ; ^ but where
such a complaint is made, and it appears that the employees
are in fact members of the association complained of, the right
of officials to confer with their membership, and the right of
workmen to act singly or collectively in the matter of seeking
improved conditions of employment, will operate to prevent
the issue of an injunction against counseling and advising on
such subjects.^

Employees who are members of a union may take the initia-
tive and procure the restraint of a rival union which seeks to
procure their discharge and the employment of no others than
members of such rival union.^ The contrary view was taken in
a case in which it was said that the object of the rival union to
secure employment for its own members was sufficient justifi-
cation for acts leading to the discharge of the complainants,
though there was a strong dissenting opinion.'* In this case the

» Flaccus V. Smith, 199 Pa. St. 128, 48 Atl. 894 ; Hitchman Coal Co. v. Mitchell,
172 Fed. 963. « Wabash R. Co. v. Hannahan, 121 Fed. 563.

» Plant V. Woods, 176 Mass. 492, 57 N.E. 1011 ; Erdman v. MitcheU, 207 Pa.
St. 79, 56 Atl. 327.

* National Protective Aaa'n. v. Cumming, 170 N.Y. 315, 63 N.E. 369.


majority of the court seems to have lost sight of the rule of law
that one man's rights end where another's begin. "An inter-
ference by a combination of persons to obtain the discharge of a
workman because he refuses to comply with their wishes, for
their advantage, in some matter in which he has a right to act
independently, is not competition." ^ The right to seek em-
ployment is an inherent one, and an association's noninter-
ference with a workman in the exercise of that right is in no sense
a ground for claiming that such an association had protected
him in his employment or had conferred any legal benefit upon
him, since it had no right to interfere with him in this respect ; '

Online LibraryLindley Daniel ClarkThe law of the employment of labor → online text (page 24 of 32)