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fore, confronted the law, requiring its protec-

The leading case upon boycott in America
is Crump v. Commonwealth (84 Va. 927).

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In this case the strikers dragged the whole
community into their dispute. They pub-
lished a blacklist upon which they put the
names of every hotel, boarding house, trades-
man, or shopkeeper who dealt with their
former employers in any way, or who had
anything to do with the new employees.
Finally matters came to such a pass that
the ringleaders were arrested; and, being
found guilty by the jury, they appealed
upon the points of law to the higher court.
In dismissing the appeal Mr. Justice Faunt-
leroy spoke very sharply: "It was proved
that the conspirators declared it their set
purpose and persistent effort to ' crush '
Baughman Brothers; that the minions of the
boycott conmiittee dogged the firm in all
their transactions; followed their delivery
wagons, secured the names of their patrons;
and used every means short of actual physical
force to compel them to cease dealing with
Baughman Brothers — thereby causing them
to lose from one hundred and fifty to two
hundred customers and ten thousand dollars
of net profit. The acts alleged and proved
in this case are unlawful and incompatible
with the prosperity, peace, and civilization
of the country; and, if they can be perpe-

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trated with impunity, by combinations of ir-
responsible cabals or cliques, there will be
the end of government, and of society itself.
Freedom — ^individual and associated — ^is the
boon and boasted policy and peculium of
our country; but it is liberty regulated by
law; and the motto of the law is: Sic utere
tuOj ut alienum non laedas/^

In the ruling case in the British Empire
to-day, Quinn v. Leathern (1902 A. C. 495),
we have one of the clearest examples of the
sort of pressure which it must be obvious
that a trades union should be forbidden to
use, even to advance its own interests. The
complainant in that case was a butcher en-
gaged in business near Belfast. His em-
ployees organized a union to which they
refused to admit one Dickie, a foreman; they
later demanded of the plaintiff that he dis-
miss Dickie. Upon the plaintiff's refusal to
do this the defendants representing the union
went to one Munce, who bought meat of the
plaintiff, and warned him that unless he
stopped buying while the trouble was on, his
own men would be called out next. Munce

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at last yielded to this coercion, and notified
plaintiff to send no more meat until he set-
tled with his men. This interference with
his business relations was the cause of the
action, in which damages to the trade were
claimed. The House of Lords, notwith-
standing the contrary tendencies of Allen v.
Flood, held for the plaintiff. The best
opinion was that of Lord Lindley, who
handled the question with characteristic
method: "As to the rights of the plaintiff —
he had the ordinary rights of a British sub-
ject. He was at liberty to earn his own
living in his own way, provided he did not
violate some special law prohibiting him from
so doing, and provided he did not infringe
the rights of other people. This liberty in-
volved liberty to deal with other persons who
were willing to deal with him. This liberty
is a right recognized by law; its correlative
is the general duty of everyone not to pre-
vent the free exercise of this liberty, except
so far as his own liberty of action may
justify him in so doing. But a person's lib-
erty or right to deal with others is nugatory,
unless they are at liberty to deal with him if
they choose to do so. Any interference with
their liberty to deal with him affects him."

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In current discussion an attempt is some-
times made to distinguish between this ex-
treme case of secondary boycott, which has
just been illustrated, and the lesser dis-
turbance created by the primary boycott, as
it is called, where only the members of the
affiliated unions are worked upon to break
off their business relations with dealers who
persist in continuing to deal with the con-
cern against which their attack is directed.
But almost all courts find this sort of boy-
cott practically as dangerous to the industrial
peace as the other. In Barr v. Essex Trades
Council (53 N. J. Eq. 301) the Council of
the aflSliated trades had exhorted its mem-
bers in this wise: " Friends, one and all, leave
this council-boycotting ' Newark Times.'
Cease buying it. Cease handling it. Cease
advertising in it. Keep the money of fair
men moving only among fair men. Boyctott
the boycotter of organized fair labor." The
New Jersey chancery court thought that it
would be dangerous to indifetrial society to
permit such appeals to go unchallenged.
Vice Chancellor Green discussed the problem
broadly thus: "The freedom of business ac-
tion lies at the foundation of all commercial
and industrial enterprises — ^men are willing

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to embark capital, time, and experience there-
in, because they can confidently assmne that
they will be able to control their affairs
according to their own ideas, when the same
are not in conflict with law. If this privilege
is denied them, if the courts cannot protect
them, if the management of business is to
be taken from the owner and assumed by,
it may be, irresponsible strangers, then we
will have come to the time when capital will
seek other than industrial channels for in-
vestments, when enterprise and development
will be cripples, when interstate railroads,
canals, and means of transportation will be-
come dependent on the paternalism of the
national government, and the factory and the
workshop subject to the uncertain chances
cooperative systems."


As our law stands, therefore, in some in-
stances concerted action is permitted, while
against many kinds of joint action redress
may be had. It has been seen that simple
striking is permitted in certain cases; a com-
bination of laborers may, for example, de-
mand higher wages, and then leave in a body

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if the increase is not granted. On the other
hand, it has been seen that workmen may
not bring their combined force to bear upon
persons who have no part in the dispute to
induce them not to deal with their former
employers. The problem of the legaUty of
the use of its great power by the trade union
to force non-union men out of the same em-
ployment lies somewhere between these two
extremes. As this is one of the most im-
portant of modem questions, it might be
well to state the leading cases with consider-
able detail, so that there may be clear appre-
ciation of the precise issue involved.

In Lucke v. Assembly (77 Md. 396), we
have a rather aggravated case of unionizing
a shop. The plaintiff was a non-union man;
he was non-union against his will, as it were,
because the Assembly had repeatedly re-
fused to take him in, although he had several
times applied for membership. Later the
Assembly demanded of their employers, that
they discharge this non-union man, Lucke.
Rosenfeld Brothers could not withstand the
pressure; and they discharged Lucke at this
dictation. Lucke then sued the Assembly
for damages for the loss of his job; and he
was successful in his suit. Upon the final

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appeal Mr. Justice Roberts gave these as
the reasons: " In this case, we think the
interference of the appellee was ia law
malicious and unquestionably wrongful. The
appellant was a man of family, a good work-
man, engaged' in a lawful pursuit, perform-
ing his duties in an entirely satisfactory man-
ner, without objection in any respect, and
willing and desirous of becoming a member
of the appellee if an opportunity had been
afforded him. He was not able to obtain
membership with the appellee, nor was he
permitted to continue his work with his em-
ployers, who would gladly have retained him
in their service, if they could have done so
without loss or embarrassment to themselves.
If, therefore, the appellee sought to bring
about the discharge of the appellant imder
the circumstances detailed in the evidence,
if not malicious it was certainly wrongful,
and by so doing it has invaded the legal
rights of the appellant for which an action
properly lies."

A recent case in point is even more thor-
oughgoing in its denunciation of these at-
tempts by the unions to force non-union men
out of the same employment. In Erdman v.
Mitchell (207 Pa. St. 79), there appeared

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in evidence a series of labor difficulties in the
construction of a building too involved to
relate fully here. Finally the Central Union
showed its hand, and threatened a general
strike unless certain men engaged on the
work, who were not members of an affiliated
union, should be immediately laid off. An
application was made in time for an injunc-
tion, which the lower court granted and the
upper court confirmed. Mr. Justice Dean
said, in granting the injunction: "Trades
unions may cease to work for reasons satis-
factory to their members, but if they combine
to prevent others from obtaining work by
threats of a strike, or combine to prevent an
employer from employing others by threats of
a strike, they combine to accomplish an un-
lawful purpose — a purpose as unlawful now
as it ever was, though not punishable by in-
dictment. Such combination is a despotic and
tyrannical violation of the indefeasible right
of labor to acquire property, which courts are
bound to restrain. It is argued that de-
fendants, either individually or by organiza-
tion, have the right now to peaceably per-
suade plaintiffs and others not to work, and
their employer not to hire them. So they
have. It is further argued that they can

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quit work when they choose. So they can.
But neither of these suggested cases is the
one before us. Here a strike on a large
building was declared because plaintiffs
would not join the particular society. The
declared purpose of the strike was to cause
loss of employment to plaintiffs because they
would not join the Allied Building Trades,
and chose to remain faithful to their own
union, The Plumbers' League."

The cases brought up for discussion in this
section are undoubtedly less extreme than
the cases under consideration in the preceding
section. It may be admitted that in the
case of unionizing, the ultimate motive of
the union is to advance its own interests; but
so it is in boycotting. In boycotting the
end was held not to justify the means; and
this may well enough be true of unionizing.
The principal question is, then, whether this
sort of concerted action is to be held justi-
fiable or not. In this respect a difference
may be urged between boycotting and union-
izing; it may be said that in boycotting the
methods employed are indirect, and much
unnecessary damage is therefore done to third
parties; while in unionizing it may be claimed
that the methods are direct, and that there

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is ho unnecessary damage. But the fact
remains that both in the case of boycotting
and in the case of unionizing we see the
resistless force of numbers employed against
the individuals attacked. The fear of this
lies at the bottom of all of our laws against
conspiracy from time immemorial.


At least it may be made a working hy-
pothesis that in unionizing we have the legal
wrong of conspiracy against those forced out
of the employment. A case so extreme that
almost all courts would agr^e upon it, is
Curran v. Galen (152 N. Y. 33). It ap-
peared that in Rochester there was an agree-
ment between the Ale Brewers' Association
and the Brewery Workingmen's Assembly
that no person not a member of the associa-
tion should be retained in the employment of
any member of the association. The plain-
tiff got employment in one of the breweries,
but declined to join the union. The whole
opinion of the Court of Appeals follows:
" The organization of the local assembly in
question by the workingmen in the breweries
of the city of Rochester may have been per-

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fectly lawful in its general purposes and
methods and may, otherwise, wield its power
and influence usefully and justly, for all
that appears. It is not for us to say, nor do
we intend to intimate, to the contrary; but
so far as a purpose appears from the defense
set up to the complaint that no employee of
a brewing company shall be allowed to work
for a longer period than four weeks, without
becoming a member of the Workingmen's
Local Assembly, and that a contract between
the local assembly and the Ale Brewers'
Association shall be availed of to compel
the discharge of the independent employee,
is, in effect, a threat to keep persons from
working at the particular trade and to pro-
cure their dismissal from employment. While
it may be true, as argued, that the contract
was entered into, on the part of the Ale
Brewers' Association, with the object of
avoiding disputes and conflicts with the
workingmen's organization, that feature and
such an intention cannot aid the defense, nor
legalize a plan of compelling workingmen
not to join it, at the peril of being deprived
of their employment and of the means of
making a livelihood."

Plant V. Woods (176 Mass. 492) shows

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one of the latest developments in this general
problem. This was a case of a contest for
supremacy between two labor unions of the
same craft, having substantially the same
constitution and by-laws. The chief differ-
ence between them was that the plaintiff
union was affiliated with one national organi-
zation, while the defendant union was affiliated
with another. It appeared that the members
of the defendant union declared " all painters
not affiliated with the Baltimore headquarters
to be non-union men," and voted to " notify
the bosses" of that declaration. This action
was for an injunction to prevent threats
being made in pursuance of this vote. Mr.
Justice Hammond stated the following rea-
sons of the court for confirming the injunc-
tion against the defendants: "It is to be ob-
served that this is not a case between the
employer and the employed, or, to use a
hackneyed expression, between capital and
labor, but between laborers all of the same
craft, and each having the same right as
any one of the others to pursue his calling.
In this, as in every other case of equal rights,
the right of each individual is to be exercised
with due regard to the similar right of all
others, and the right of one must be said to

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end where that of another begins. The right
involved is the right to dispose of one's labor
with full freedom. This is a legal right, and
it is entitled to legal protection."

The majority of courts thus believe thut
an organized union should not be allowed to
work its will, that it would mean disruption
of the industrial order if a union could be
permitted to dictate who should work and
who should not. As a matter of law, the
question whether the members of a union are
liable when they demand that their shop be
unionized depends upon whether the courts
will find some basis for justification. But
although the public policy is doubtful, most
courts seem to be convinced that to allow
unionizing would be prejudicial to the best
interests of society. The public wants the
best services that can be gotten at the lowest
wages that will be accepted. If we are to
believe much testimony that is brought for-
ward in current discussion, unionizing means
less efficient services and increasing wages.
This, then, is an instance for the assertion
of the general policy of the law against com-
bination in restraint of trade. Our general
law is, of course, opposed to schemes to con-
trol the market in any such way.

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There is some dissent to these prevalent
doctrines; and in order that the discussion
may be quite fair it is necessary to give this
minority a chance to be heard. The principal
case on the other side is undoubtedly National
Protective Association v. Cummings (170 N.
Y. 315). The facts in this case as they were
brought out at the trial were somewhat com-
plicated, as the final developments in the in-
dustrial organization have become so complex.
The complainants were a formal association
themselves, who sued both collectively and
individually; the defendants were also an
association and the individual members of
it. The defendant association wanted to
put its men at work upon certain works in
the place of certain men belonging to the
rival association. They were in a position
to enforce their demands, as they had strong
affiliations with the building trades in New
York. The trial court found that the walk-
ing delegate of the older association threat-
ened to cause a general strike against the
members of the newer association, wherever
he found them at work upon the same jobs
with his men. The opinion in this case de-

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serves respectful consideration, as it is by
former Chief Justice Parker; but the basis
of his opinion is the obsolete argument that
any single man may quit work alone. " The
principles quoted above recognize the legal
right of members of an organization to strike,
that is, to cease working in a body by pre-
arrangement until a grievance is redressed,
and they enumerate some things that may be
treated as the subject of a grievance, namely
the desire to obtain higher wages, shorter
hours of labor, or improved relations with
their employers, but this enumeration does
not, I take it, purport to cover all the ground
which will lawfully justify members of an
organization refusing in a body and by pre-
arrangement, to work. The enumeration is
illustrative rather than comprehensive, for
the object of such an organization is to
benefit all its members; and it is their right
to strike, if need be, in order to secure any
lawful benefit to the several members of the
organization as, for instance, to secure the re-
employment of a member they regard as hav-
ing been improperly discharged, and to se-
cure from an employer of a number of them
employment for other members of their or-
ganization who may be out of employment.

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although the effect will be to cause the dis-
charge of other employees who are not mem-

Another case that plainly holds for the
union is Clemmitt v. Watson, (14 Ind.
App. 38) . In this case, a body of employees
in a coal mine organized as a union and de-
manded the discharge of a certain man not
a member of their union. The owners refus-
ing to discharge him, a strike was called;
whereupon the employers yielded, and the
man was discharged. A suit was thereupon
brought by the man forced out to recover
damages caused by the conspiracy. The gist
of Mr. Justice Garvin's opinion was this:
" There is no law to compel one man or any
body of men to work for or with another who
is personally obnoxious to them. We cannot
believe it to be in accordance with the spirit
of our institutions or the law of the land to
say that a body of workmen must respond in
damages because they, without malice or any
evil motive, peaceably and quietly quit work
which they are not required to continue,
rather than remain at work with one who is
for any reason unsatisfactory to them."

Whatever weight may be given to these
two decisions as authority, they represent

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the view of the minority; for the contrary
holding now undoubtedly has the majority,
It is, therefore, the general American law
that legal wrong is done by a union in pro-
curing the discharge of a non-union man.
Even if their motive is self-interest, to get all
the work for their own members, still most
courts hold that the union cannot be allowed
to use the force of its members to crush the
non-union man. The law of conspiracy from
time immemorial has protected the single man
against the attack of the combination. This
is a modem instance for its application. Any
discussion which leaves out the fact of con-
spiracy, and defends the union upon the
basis of the permission given individuals to
compete as they please, misses the real point
upon which the issue turns. To maintain
free competition in general, the courts must
prevent suppression of competition by the'
action of the combination.


To suggest further distinctions, two of the
most recent cases, to a certain extent op-
posite in tendency, should be considered.
One, Pickett v. Walsh (192 Mass. 572), is
the most recent of the long line of excellent

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decisions in Massachusetts dealing with the
respective rights of capital and labor. The
plaintiffs were brick and stone pointers; the
defendants were officers and members of
bricklayers' unions and stone masons' unions.
One ground of complaint was that the plain-
tiff was forced out of employment by the
threat of the defendant unions that they
would do no laying unless the pointing was
done by their members. This policy Mr.
Justice Loring held justifiable: " It was with-
in the rights of these unions to compete for
the work of doing the pointing, and in the
exercise of their right of competition to re-
fuse to lay brick and set stone unless they
were given the work of pointing them when
laid." The other ground of complaint was
that the unions, in order to get these plaintiffs
discharged from one job, threatened a strike
upon other jobs. The court held that this
was not justifiable: "That strike has in it
an element like that in the sympathetic strike,
in a boycott, and in blacklisting, namely, —
It is a refusal to work for A, with whom
the strikers have no dispute, for the purpose
of forcing A to force B to yield to the
strikers' demands. In our opinion organized
labor's right of compulsion and coercion is

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limited to strikes on persons with whom the
organization has a trade dispute; or to put
it in another way, we are of opinion that a
strike on A with whom the striker has
no trade dispute to compel A to force B to
yield to the strikers' demands is an unjusti-
fiable interference with the right of A to
pursue his calling as he thinks best."

The other case in mind is Pierce v. Stable-
men's Union (156 Cal. 70). This was an
injunction procured in the course of a strike
called to make the plaintiff unionize his
stable. Unionizing being legal in itself in
California, the upper court was clear that no
injunction should be so broad as to prevent
the bringing about of this result by mere
representations, even when amounting to
coercion. The real issue to their mind was
whether boycotting and picketing should be
allowed. As for the boycotting feature, the
California court takes its position with the
small minority which permit it in every form,
primary as well as secondary. " Each rests
upon the right of the union to withdraw its
patronage from its employer and to induce
by any fair means all persons to do the
same; and in the exercise of those means, as
the union would have the imquestioned rights

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to withhold their patronage from a third per-
son who continued to deal with their em-
ployer, so they have the unquestioned right
to notify such third person that they will
withdraw their patronage if he continues so
to deal." But as to picketing, the California
court unexpectedly allies itself with the ma-
jority of courts, which forbid all picketing,
" peaceful " as well as " violent." " A picket
in its very nature," said Mr. Justice Henshaw
" tends to accomplish and is designed to ac-
complish these very things. It tends to and
is designed by physical intimidation to deter
other men from seeking the places vacated by
the strikers. It tends to and is designed to
drive business away from the boycotted place,

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Online LibraryBruce WymanControl of the market; → online text (page 4 of 14)