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and an unwarranted expulsion of a member, leading to his dis-
charge from employment, will support an action for the recovery
of damages for causing the discharge.^ It has also been held
that a labor union maybe enjoined from the expulsion of mem-
bers in a manner intended to improperly influence their free
action in the matter of employment, where such expulsion is a
part of a number of intimidating and unlawful acts.* An action
for damages will lie where a nonunion workman is shown to be
maliciously deprived of employment by reason of the action of
a labor organization ; * so also if the discharged workman was

» Berry v. Donovan, 188 Mass. 353, 74 N.E. 603.
« Levin v. Coagrove, 75 N.J.L. 344, 67 Atl. 1070.

» Campbell v. Johnson. 167 Fed. 102, 92 CCA. 654 ; Brennan v. United Hat-
ters, 73 N.J.L. 729. 65 Atl. 165.

* Connett r. United Hatters, 76 N.J. Eq. 202, 74 Atl. 188.

• Curran v. Galen, 152 N.Y. 33, 46 N.E. 297 ; Perkins c. Pendleton, 90 Me.
166, 38 Atl. 96 ; Berry v. Donovan, supra. In the Curran and Berry cases the
discharge was in consequence of contracts with employers to employ only mem-
bers of unions, resulting in the discharge of plaintiffs from emplojTnont. In the
case of Perkins v. Pendleton, the court said : " Merely to induce another to leave
an employment, or to discharge an employee, by persuasion or argument, however
whimsical, unreasonable, or absurd, is not, in and of itself, unlawful, and we do


a member of another union/ the rule of law being that any
malicious interference with the contract relation will ground
an action if damage ensues.^ Where the action of a union not
only interferes with the employment of the former members,
expelled without just cause, but also seeks to control their con-
duct in matters of public duty, an added reason exists for re-
straint against further interference, while damages will be al-
lowed for the loss of employment.'

The interference complained of may be of a more general sort,
directed against the business of an employer by way of con-
spiracy. Where there is an agreement to induce one's em-
ployees to cease work and to refrain from working until some
unauthorized mandate of those in agreement is complied with,
the latter may be held and punished for conspiracy.^ Where

not decide that such interference may become unlawful by reason of the de-
fendant's malicious motives, but simply that to intimidate an employer by
threats, if the threats are of such a nature as to induce this result, and thereby
cause him to discharge an employee whom he desired to retain, and would have
retained except for such unlawful threats, is an actionable wrong."
» Ruddy 11. Journeymen Plumbers, 79 N.J.L. 467, 75 Atl. 742.

* Angle V. Chicago R. Co., 151 U.S. 1, 14 Sup. Ct. 240.

'Schneider v. Journeymen Plumbers, etc., 116 La. 270, 40 So. 700. In this
case members of a union who were appointed by the mayor as examiners of
plumbers applying for certificates in the city of New Orleans were fined and ex-
pelled for not choosing as inspector a member indicated by the union. They
were also deprived of employment by reason of the loss of membership. The
judgment in this case awarded restoration of membership, remission of the fines,
damages, actual and punitive, and an injunction against further interference
with their employment.

* State V. Dalton. 134 Mo. App. 517, 114 S.W. 1132. (The members of two
labor unions combined to secure the payment of a fine levied on an employer.)
Employing Printers' Club v. Doctor Blosser Co., 122 Ga. 509, 50 S.E. 353. (An
association of printers and publishers combined to fix prices and prevent compe-
tition, and levied a fine against the Doctor Blosser Co. for accepting work in
violation of the agreement. On his refusal to pay the fine his business was
interfered with and his employees coerced into withdrawing from his service.)


intimidation and violence are used *there is of course no question
of the illegality of the acts no matter how lawful the object in
view might be ; ^ and unions giving financial support to strikers
and pickets guilty of such unlawful conduct will be themselves
liable for so aiding and abetting it.^

A number of statutes have been enacted directed to the
subject of interference with employment, conspiracy against
workingmen, intimidation, etc. Some of these apply to specific
employments, as those prohibiting interference with or the in-
timidation or molestation of railroad employees,^ or seamen.'*
More commonly, however, the acts are of general application
and prohibit conspiracy against or interference with any lawful
business by force or by threats of violence to person or prop-
erty ; * or the use of means calculated or intended to intimi-
date or compel one against his will to do or refrain from doing
any act which he has a legal right to do, or injury or threats of
injury to person or property with intent to intimidate any
person ; ® or threats, violence, or intimidation preventing or
attempting to prevent any person from engaging or remaining
in any lawful business, employment, or occupation.''
laws for the most part embody the principles of the common law
relative to conspiracy or the unlawful infringement on the rights
of others by coercion or other improper means. While they are

» Purvis V. Carpenters and Joiners, 214 Pa. St. 348, 63 Atl. 585.

» Jones V. Maher, 116 N.Y. Supp. 180, 62 Misc. Rep. 388.

» Del., R.C.. p. 928, sec. 3 ; 111., R.S., oh. 114, sees. 109, 110 ; Ky. St., sec. 803.

«La., R.L.,8ec. 944.

» Ala., Code, sees. 6394, 6856.

• Conn., Acts 1909, ch. 202.

'Ga., Pen. Code, sees. 123-126; see also III., R.S., ch. 38, sees. 158, 159;
Me., Acts 1903, ch. 127. sec. 21 ; Mass., Acts 1909, ch. 514, sec. 18; N.Y., C.L.,
ch. 40, sec. 530 ; Wash., Acts 1909, ch. 249, sec. 362.


penal in form and effect, subjecting their violators to penalties
of fines or imprisonment/ their violation also operates to give
a right of action to a party injured by the unlawful act.'^
"When such an injury results, from the execution of a con-
spiracy, it is the wrongful act done in carrying out the concerted
plan, and not the conspiracy itself which furnishes the real
ground for a civil action." In all the above cases the defendant
or defendants were agents or members of labor organizations,
and their actions were regarded as representing the force and
influence of numbers. Thus in the Fischer case, it was said that
"the accused was present, and professed to speak as the
authorized agent of a large organization." In Wyeman v. Deady,
"Deady was the business agent and so-called walking delegate
of the defendant union, and did said acts not only with the
knowledge and approval, but by the authority of the union," etc.
This fact would bring the acts within the common law principle
of conspiracy, while it was also true that the acts were unjusti-
fiable interference with employment, usually by violent or co-
ercive means, so that they would apparently have come under
the condemnation of the law without statutory provision.
But as remarked in another connection, such statutes have at
least the effect of declaring the policy of the states in which
they exist, and so have a measure of value.

Section 125. Remedies by Suits at Law. — It has frequently
appeared in the foregoing sections that persons, employers or
employees, may recover damages for injurious interference,
without justification, with employment or business by acts

I state V. Stockford, 77 Conn. 227, 68 Atl. 769 ; State v. McGee, 80 Conn.
614, 69 Atl. 1059 ; Fischer r. State, 101 Wis. 23, 76 N.W. 594.

* Wyeman v. Deady, 79 Conn. 414, 65 Atl. 129 ; Carter v. Oster, 134 Mo. App.
146, 112 S.W. 995.


done in connection with labor disputes; and it only remains
under this head to illustrate briefly the manner and extent of
the application of this rule of law.

An employer is entitled to a judgment for damages where a
union has unjustifiably caused injury on account of his failure
to carry on his business according to the methods prescribed by
the union.^ In the Carew case a union levied a fine on an em-
ploying stonecutter, and coerced him into payment by procur-
ing his workmen to leave him until he was unable to fill his con-
tracts, the purpose being to enforce the closed shop. To compel
one to yield to an illegal demand in order to secure the privilege
of carrjang on his business was said to be unlawful, if not actu-
ally a criminal conspiracy, and is "a species of annoyance and
extortion which the common law has never tolerated." The
judgment included the repayment to the employer of the amount
of the fine, as well as damages. In order to recover a fine in such
circumstances, it must appear that it was paid under coercion
and to remove an actual obstacle to the conduct of business,
since, if paid voluntarily or without duress, it will not be recov-
erable.^ In the case of the Old Dominion Steamship Company,
the union had interfered with the shipping of sailors, and de-
clared a boycott because the company had refused to pay
laborers in one locality the rates usually paid more skilled men
in another locality. In the cases of the F, R. Patch Mfg. Com-

> Carew r. Rutherford, 106 Mass. 1, 8 Am. Rep. 287 ; Old Dominion S.S. Co. v.
McKenna, 30 Fed. 48 ; F. R. Patch Mfg. Co. v. Int. Ass'n. of Machinists, 77 Vt.
294, 60 Atl. 74; O'Neil v. Behanna, 182 Pa. St. 236, 37 Atl. 843; Doremus r.
Hennessy, 176 111. 608, 52 N.E. 524 ; Moores v. Bricklayers' Union, 10 Ohio Dec.
(Rep.) 645 ; Branson v. Industrial Workers of the World, 30 Nev. 270, 95 Pac.
364 ; Thacker Coal A Coke Co. v. Burke. 59 W. Va. 253, 53 S.E. 161.

» Burke v. Fay, 128 Mo. App. 690, 107 S.W. 408. See also March v. Brick-
layers, etc.. 79 Conn. 7, 63 Atl. 291.


pany and of O'Neil v. Behanna, coercive and unlawful means
were used to sustain the demands of striking workmen. In the
Doremus case the violation of contracts was procured by a
laundrymen's association seeking to compel a general advance
in prices.' In the case of Moores v. Bricklayers, members of a
union had given notice that they would work no material pur-
chased from a material man who had disregarded a boycott
order issued by the union.^ In the Branson case a union at-
tempted to procure the discharge of members of another union
unless they would join the defendant union. In the case of the
Thacker Coal Company, members of the union were held to be
liable in damages for procuring workmen under contract to leave
employment, in an effort to unionize the mine.

A leading case involving the right of an employee to damages
where union activities prevent his employment is one in which
an agreement between a union and an association of employers
provided that the latter would employ no one not a member of
the union for a longer period than four weeks, within which time
he should become a member of the union or be discharged.'
The plaintiff declined to become a member, and was discharged
accordingly. In the suit against the union the only defense
offered was the contract. The court held that the principle of
this contract was "glaringly at variance with that freedom in
the pursuit of happiness which is believed to be guaranteed to all
by the provisions of the fundamental law of the state," and that
the effectuation of the purpose expressed in it " would conflict with

1 See also Employing Printers' Club v. Doctor Blosser Co., 122 Ga. 509, 50 S.E.

» See also Purington v. Hinchcliff, 219 111. 156, 76 N.E. 47 ; Purvis v. Carpen-
ters, etc., 214 Pa. St. 348, 63 Atl. 585.

» Curran v. Galen, 152 N.Y. 33, 46 N.E. 297.


that principle of public policy which prohibits monopolies and
exclusive privileges." The plaintiff, Galen, was therefore de-
clared to be within his rights in suing for damages resulting from
the procurement of his discharge. The fact that the contract
was such as to bar nonunion men from all employment locally
was held to put this case on a different footing from one in which
the contract was between a union and but a single employer.^
It was said in the Jacobs case that the doctrine of the Curran
case had not been overruled by the opinion in a case in which
was upheld the right of an organization to threaten strikes so as
to procure the discharge of workmen in order to secure the em-
ployment of members in their stead.^ The dissenting opinion
in the Gumming case, however, was to the effect that the doctrine
of Gurran v. Galen required a contrary finding in the case in
hand. In Massachusetts it is consistently held that an employee
is entitled to damages where his discharge results from a com-
bination of persons to obtain it because he refuses to become a
member of the union or act otherwise for their advantage in a
matter in which he has the right to act independently.'

Not only actual but punitive damages may be awarded a
workman whose employment has been maliciously, i.e., inten-
tionally and unjustifiably, interfered with ; and where such
interference is the action of an acknowledged representative of
a union, and is directed or approved by the latter, both he and
it are liable as joint tort feasors.* Where loss of employment

» Jacobs V. Cohen. 183 N.Y. 207, 76 N.E. 5.

* National Prot. Asa'n. of Steamfitters, etc., r. Gumming, 170 N.Y. 315, 63
N.E. 369.

' Berry v. Donovan, 188 Mass. 359, 74 N.E. 603 ; citing many cases. A judg-
ment against Donovan, a representative of the union, in the sum of $1500 waa
affirmed. * Wyeman v. Dcady. 79 Conn. 414. 65 Atl. 129.


follows unlawful expulsion from a union, damages are recover-
able, as well as an order for reinstatement.^ Damages may
include not only the actual wages lost, but may also cover the
loss of rank, damages to reputation, and the hindering of the
complainant's prospects of advancement.*

The judgment for damages may lie against the persons active
in carrying out the purposes of the union,' or against the union
as such,^ or against individual members and the union. ^ Where
a judgment against a union is unsatisfied, the amount may be
recovered against the individual members ; ® and, in general,
all the parties to a wrongful agreement are liable for illegal acts
done in the carrying out of the agreement.^ The fact of crimi-
nal liability does not affect the right of injured persons to bring
civil actions for the recovery of damages.^ In a number of
cases where unincorporated unions were held liable in damages,
it was by virtue of a statute fixing their status, the common law
rule generally observed being to the effect that such bodies can-
not, as such, either sue or be sued.

I Schneider v. Journeymen Plumbers, etc., 116 La. 270, 40. So. 700 ; Brennan
V. Hatters, 73 N.J.L. 729, 65 Atl. 166 ; Blanchard v. Carpenters & Joiners, 77
N.J.L. 389, 71 Atl. 1131.

« De Minico v. Craig, 207 Mass. 593, 94 N.E. 317.

5 Gatzow V. Buening, 106 Wis. 1, 81 N.W. 1003 ; Curran v. Galen, supra;
O'Neil V. Behanna, supra; Carew v. Rutherford, supra.

* F. R. Patch Mfg. Co. v. Int. Ass'n. of Machinists, supra; Branson v. Indus-
trial Workers of the World, supra; Brennan r. Hatters, supra; Schneider v.
Journeymen Plumbers, supra; Jones v. Maher, 116 N.Y. Supp. 180, 62 Misc.
Rep. 388. ' Wyeman v. Deady, supra.

• F. R. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 Atl. 938.

^ Purington v. Hinchcliff, supra, and cases cited ; Toledo, etc., R. Co. v.
Penna. Co., 54 Fed. 730; F. R. Patch Mfg. Co. v. International Ass'n. of Ma-
chinists, supra.

sUnderhiU v. Murphy, 117 Ky. 640, 78 S.W. 482; Purvis v. Carpenters &
Joiners, supra; Wyeman v. Deady, supra.


Section 126. Injunctions. — A remedy in more common use
than the suit for damages is the preventive remedy of the in-
junction or restraining order which issues from a court of equity
for the purpose of preventing injury or of preserving the status
quo until final determination of rights can be had. Though
coming more widely into public notice in recent years on account
of its use in important labor disputes, the writ of injunction is
of ancient origin, its counterpart existing in the decretal of the
Roman law.^ While injunctions are most commonly restrictive
or prohibitory in their operation, the mandatory injunction,
ordering the performance of a specified act, is not unknown, at
least to the extent of requiring the rendering of the service or
the performance of the work or duty which is incumbent on the
enjoined party in the premises.'' The writ is most frequently
invoked, however, so far as concerns the present study, to re-
strain the commission of injurious and unlawful acts in the
furtherance of labor disputes, as picketing, boycotting, the
distribution of unfair lists, and other forms of activity which
are classed as coercive, intimidating, or as unjustifiably inter-
fering with employment or business.

The injunction is classed as an extraordinary remedy, and is

• Bouvier, Law Diet.

'Toledo, etc., R. Co. v. Pennsylvania Co., 54 Fed. 730; Lennon r. Lake
Shore, etc., R. Co., 22 U.S. App. 561 ; In re Lennon, 166 U.S. 548, 17 Sup. Ct. 658.
In this case the Pennslyvania Co. had sought to avoid difficulty with its work-
men by refusing to handle cars or freight from the complainant road, against
which a strike was in progress. The court enjoined the Pennsylvania company
and its officers and employees from refusing to afford the complain.nnt road equal
facilities to those furnished other companies. This left all defendants free to
cease all railway service or emj^loyment, but obligated them, if they furnished
any, to furnish it to all alike. It was Lennon's refusal to do this, while still
remaining in service as a locomotive engineer, that brought him under the judg-
ment of the courts.


to be resorted to only when the remedy at law is inadequate,
"depending on whether the injury done or threatened is of such
a nature that, when accomplished, the property cannot be
restored to its original condition, or cannot be replaced by
means of compensation in money; or whether full compensa-
tion for the entire wrong can be obtained without resort to a
number of suits." ^ While no final decree will be made without
a hearing of both parties, a preliminary or interlocutory decree
may be issued at the instance of one party, who must show not
merely possible or probable danger of interference with his
rights or property, but that the injury is either already occa-
sioned and will continue unless enjoined, or that it is so immi-
nent as to warrant the intervention of the court. Other facts
to be shown are the irresponsibility, from a financial standpoint,
of the parties against whom the injunction is sought; their
numbers, making suits at law numerous and burdensome ; and
the preponderance of the threatened loss of the complainant
over the inconvenience of the respondents which would follow
the issue of the writ ; though not all of these would be required
in a single instance.^

Injunctions are granted only by courts of equity, and only in
cases of equitable cognizance according to the established prin-
ciples of equity jurisdiction. Since the purpose of the injunc-
tion is chiefly to maintain present conditions, and it is without
power to procure the restoration of conditions already changed,
it is said that an injunction will not issue relating exclusively

> Barr v. Essex Trades Council, 53 N.J. Eq. 101, 30 Atl. 881.

« My Maryland Lodge v. Adt, 100 Md. 238, 59 Atl. 721 ; Sherry v. Perkins, 147
Mass. 212, 17 N.E. 307 ; Coeur d'Alene Co. v. Miners' Union, 51 Fed. 260 ; In re
Debs, 158 U.S. 564, 15 Sup. Ct. 900 ; Dudley v. Hurst, 67 Md. 44, 8 Atl. 901.


to acts already committed.^ It may be issued, however, even
after the termination of a strike, on the ground that the right
to relief is to be determined by the status existing at the time of
the filing of the bill.^ An injunction will not issue to restrain
the commission of criminal acts, merely as such, but where such
acts involve injuries to property or property rights for which
the law does not afford redress within the principles laid down
above, equity will intervene by means of the injunction, even
though the prohibited acts would be punishable by the state as
criminal.^ Where there is no adequate proof of intimidation
or impending danger, no writ will be granted ; * actual violence
is not necessary, however, to ground a successful complaint,
since the numbers of the striking employees, their positions,
attitudes, looks, ridicule, threats, etc., may produce intimida-
tion and coercion against which an injunction will be allowed.'
The free use of streets, free access to works, and freedom from
insulting or otherwise objectionable treatment, both at home
and in public places, are among the rights of every citizen ; and
an employer's interest in such rights for his employees and cus-

> Reynolds v. Everett, 144 N.Y. 189, 39 N.E. 72 ; De Minico r. Craig, 207
Mass. 593, 94 N.E. 317 ; City of Alma v. Loehr, 42 Kans. 368, 22 Pac. 424.

* U.S. V. Workingmen's Amalgamated Council, 54 Fed. 944. ("Rights do not
ebb and flow. If they are invaded, and recourse to courts of justice is rendered
necessary, it is no defense to the invasion of a right that since the institution of
the suit the invasion has ceased. With emphasis would this be true where, as
here, the right to invade is not disclaimed.")

•Sherry v. Perkins, supra; Coeur d'Alene Co. v. Miners' Union, supra;
United States v. Elliott, 62 Fed. 801 ; Arthur v. Oakes, 63 Fed. 310, 11 CCA.
209 ; Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 324.

* Everett-Waddy Co. r. Richmond Typ. Union. 105 Va. 188, 53 S.E. 273 ;
Rogers v. Evart, 17 N.Y. Supp. 264.

' Barr r. Essex Trades Council, supra; Jordahl v. Hayda, 1 Cal. App. 696, 82
Pac. 1079.


tomers, actual or potential, is sufficient to support a complaint
from him and to secure an injunction on a proper showing of
facts.^ In general, it may be said that what acts will warrant
the intervention of a court of equity will be determined by
the circumstances in each case rather than by any general rule,
and in deciding the matter the courts will consider the spirit
and intent, and not merely the form and letter, of the act or

An injunction may issue on the initiative of the state, to abate
a public nuisance, such as the obstruction of a highway or in-
terference with the transportation of the mails ; ' and the fact
that the act enjoined would be an offense punishable criminally
does not interfere with the issue of the writ.'* In the Debs case,
involving obstruction of the mails and of interstate traffic, it
was said by the Supreme Court: "It must be borne in mind
that this bill was not simply to enjoin a mob and mob violence.
It was not a bill to command a keeping of the peace ; much less
was its purport to restrain the defendants from abandoning
whatever emplo3Tnent they were engaged in. The right of any
laborer, or any number of laborers, to quit work has not been
challenged. The scope and purpose of the bill was only to re-
strain forcible obstructions of the highways along which inter-
state commerce travels and the mails are carried."

In line with the above, it is true that no injunction will issue
to restrain a libel or slander, merely as such ; and this fact has

1 American Steel & Wire Co. v. Wire Drawers' Union, 90 Fed. 608 ; In re
Debs, supra; Jersey City Printing Co. v. Cassidy, 63 N.J. Eq. 759, 53 Atl. 230.

* Cceur d'Alene Co. v. Miners' Union, supra.

* Att'y General v. Ice Co., 104 Mass. 239 ; State v. Goodnight, 70 Texas 682,
11 S.W. 119 ; U.S. V. Debs, 64 Fed. 724 ; In re Debs, supra.

* In re Debs, supra; Port; of Mobile v. R. Co., 84 Ala. 115, 4 So. 106.


been relied upon by parties publishing unfair lists, boycott
notices, and the like, as a defense against the issue of an injunc-
tion to restrain such publications. It is held by the weight of
authority, however, that they may properly be enjoined, not as
libels, but as intimidating and coercive.' "In the case of an
unlawful conspiracy, the agreement to act in concert when the
signal is published, gives the words 'unfair,' *we don't patron-
ize,' or similar expressions, a force not inhering in the words
themselves, and therefore exceeding any possible right of speech

Online LibraryLindley Daniel ClarkThe law of the employment of labor → online text (page 25 of 32)