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A selection of cases and other authorities on labor law online

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no competition between the bricklayers* and masons' unions on the
one hand and the individual pointers on the other hand. But there
is comj)etition. There being competition, they prefer the coui-se
they have taken. They prefer to give all the work to the unions
rather than get non-union men to lay bricks and stone to Ix? pointed
by the plaintiffs.

Further, the effect of complying with the labor unions' demands
apparently will be the destruction of the plaint itTs' business. But
the fact that the business of a plaintiff is destroyed by the acts of
the defendants done in pursuance of their right of competition is
not decisive of the illegality of the acts. It was well said by Ibun-
mond, J., in Martell v. White, 185 Mass. 255, 200, in regard to the
right of a citizen to pursue his business without interference by a
combination to destroy it: "Speaking generally, however, com-
petition in business is permitted, although frequently disastrous to
those engag(Hl in it. It is alwavs s(>lfish, often sharp, and sometimes
deadly." ...

The application of the right of the defendant unions, who arc
composed of bricklayers and stone masons, to compete with the
individual plaint itTs, who can do nothing but pointing (as we have
said), is in the case at bar disastrous to the ix)inters and hard on
the contractors. But this is not the first case where the exercise
of the right of competition ends in such a result. The case at l)ar



/U^-



\r1



274 LEGALITY OF ENDS PURSUED [CHAP. V

is an instance where the evils which are or may be incident to com-
petition bear very harshly on those interested, but in spite of such
evils competition is necessary to the welfare of the community. . . .
It follows that the third clause of the decree, which follows the
third prayer of the bill, must be striken out.^ . . .

So ordered.^

* The remainder of the opinion deals with the first and second causes of ac-
tion, which give rise to issues quite distinct from the first. "The firm of L. P.
Soule & Son Co. were the general contractors for the erection of the Ford Build-
iag; but they had nothing to do with the employment of 'pointers.' The
pointing of that building was being done under a contract between the owners
of the building and Pickett, a pointer who was one of the plaintiffs. Other build-
ings were being erected for other owners, on which the Soule Co. were the gen-
eral contractors, and as to which no complaint existed in reference to the point-
ing. The bricklaying and masonry on these other buildings were being done
by members of the defendants' union. The defendant officials induced all the
bricklayers and masons to quit working for the Soule Co. on these other build-
ings, because that company 'was doing work on another building [the Ford
Building] in which work was being done by pointers, employed not by the L. P.
Soule & Son Co. but [by] the owTiers of the building.' The evident purpose
was to thus induce the Soule Co. to exert pressure on the owners of the Ford
Building to discontinue the employment of the pointers (Pickett et ah.). The
court held that this conduct was not justifiable. The decision is not based on
the ground that the defendants were intentionally inducing, or attempting to
induce, a breach of contract; but on the broad ground that the forcing a neutral
third person to exert a pressure on the plaintiff's employer was not a lawful
means of competition." (Condensed statement of fact taken from 20 H. L. R.
446.) Loring, J., said (192 Mass. 587): "That strike has an element in it like
that in a sympathetic strike, in a boycott and in a blacklisting, namely: It is a
refusal to work for A, with whom the strikers have no dispute, because A works
for B, with whom the strikers have a dispute, for the purpose of forcing A to force
B to yield to the strikers' demands. In the case at bar the strike on the L. P.
Soule and Son Co. was a .strike on that contractor to force it to force the owner of
the Ford Building to give the work of pointing to the defendant unions. That
pas.ses beyond a case of competition where the owner of the Ford Building is left
to choose between the two competitors. Such a strike is in effect coinpclling the
L. P. Soule and Son Co. to join in a boycott on the owner of the Ford Building.
It is a combination by the union to olitain a decision in their favor by forcing
third persons who have no interest in the dispute to force the emi)loyer to decide
the dispute in their (the defenflant unions') favor. Such a strike is not a justi-
fiable interference with the right of the plaintiffs to pursue their calling as they
think best. In our opinion organized labor's right of coercion and compulsion
is limited to strikes against persons with whom the organization has a trade dis-
pute; or to put it in another way, we are of opinion that a strike against A, with
whom the .strikers have no trade dispute, to comi)el A to force B to yield to the
strikers' demands, is an imjustifiable interference with the right of A to pursue
his calling as he thinks best."

^ Accord: Minasian v. Osborne, 210 Mass. 250 (strike to secure the abolition
of a system of work felt by the workers to be unjust).



BECT. IV] STRIKES TO UNIOXIZE SHOPS 275

Section 4. Strikes to Force the Discharge of Non-Union Men and
to Unionize Shops

ALLEN V. FLOOD
House of Lords. 1897

[isns] A. c. 1 '

The facta material to this appeal (omittinj^ matters not now in
question) were as follows: In April, 1S94, about forty boiler-makei-s,
or "iron-men," were employed hy the ( Ilrnj^all Iron Co. in re[)airinj^
a ship at the company's Reuf'ut Dock in Millwall. They were mem-
bers of the boiler-makers' society, a trade union, which objected to
the employment of shipwrights on ironwork. On April 12 the ri'-
spondents Flood and Taylor, who were shipwrights, were engaged
by the company in repairing the woodwork of tlie same ship, but
were not doing ironwork. The boiler-makers, on discovering that
the respondents had shortly Ix'fore been employed by another firm
(Mills & Knight) on the Thames in doing ironwork on a ship, 1m'-
camc much excited and began to talk of leaving their employment.
One of them, l']lliott, telegraphed for the apjx'llant Allen, the Lon-
don delegate of the boiler-makers' society. Allen came up on the
13th, and being told by Elliott that the iron-men, or some of them,
would leave at dinner-time, replied that if they took the law into
their own hands he would use his influence with the council of the
society that they should be deprived of all benefit from the society
and be fined, and that they must wait and see how things settled.
Allen then had an interview with Halkett, the Glengall Co.'s man-
ager, and Edmonds the foreman, and the result was that the respond-
ents were discharged at the end of the day by Halkett. An action
was then brought by the respondents against Allen for maliciously
and wrongfully and with intent to injure th(^ plaintifTs procuring
and inducing the Glengall Co. to break their contract with the plain-
tifTs and not to enter into new contracts with them, and also mali-
ciously, etc., intimidating and coercing the plaintifTs to break, etc.,
and also unlawfully and maliciously conspiring with others to do the
above acts.

At the trial before Kennedy, .1., and a common jury Halkett and
I'jlnionds were called for the plaintifTs, and gave their account of
the interview with Allen. In substance it wa.s this: Allen told
them that he had been sent for because Flood and Taylor were
known to have done ironwork in Mills tt Knight's yard, and that
unless Flood and Taylor were discharged all the meml)ers of the
boiler-makers' society would be "callcMl out" or ''knock off" work
that day; th(\v could not be sure which expression was u.sed; that

' Some of tho opinions am omitted, anti of tlu).><c quototl only comparatively
brief extnvcts arc nivcn. — l]i).



276 LEGALITY OF ENDS PURSUED [CHAP. V

Halkett had no option; that the iron-men were doing their best to
put an end to the practice of shipwrights doing ironwork, and where-
ever these men were employed, or other shipwrights who had done
ironwork, the boiler-makers would cease work — in every yard on
the Thames. Halkett said that if the boiler-makers (about 100 in
all were employed) had been called out it would have stopped the
company's business, and that in fear of the threat being carried out
he told Edmonds to discharge Flood and Taylor that day, and that
if he knew of any shipwrights having worked on ironwork elsewhere,
when he was engaging men, for the sake of peace and quietness for
themselves he was not to employ them. Allen was called for the
defence. His account of the interview is discussed in the judgment
of Lord Halsbury, L. C.

Kennedy, J., ruled that there was no evidence of conspiracy, or of
intimidation or coercion, or of breach of contract. Flood and Taylor
having been engaged on the terms that they might be discharged
at any time. In the ordinary course their employment would have
continued till the repairs were finished or the work slackened.

In reply to questions put by Kennedy, J., the jury found that
Allen maliciously induced the Glengall Co. (1) to discharge Flood
and Taylor from their employment; (2) not to engage them; that
each plaintiff had suffered 20Z. damages; and that the settlement of
the dispute was a matter within Allen's discretion. After considera-
tion Kennedy, J., entered judgment for the plaintiffs for 401. This
decision was affirmed by the Court of Appeal (Lord Esher, M. R.,
Lopes and Rigby, L. JJ.).^ Against these decisions Allen brought
the present appeal. It was argued first before Lord Halsbury, L.
C, and Lords Watson, Herschell, Macnaghten, Morris, Shand, and
Davey on December 10, 12, 16, 17, 1895, and again (the following
judges having been summoned to attend — Hawkins, Mathew, Cave,
North, Wills, Grantham, Lawrance and Wright, J J.) on March 25,
26, 29, .30, April 1, 2, 1897 before the same noble and learned lords,
with the addition of Lords Ashbourne, and James of Hereford. . . .

Dec. 14. Lord Halsbury, L. C. . . . The first objection made
to the plaintiffs' right to recover for the loss which they thus un-
doubtedly suffered is that no right of the plaintiffs was infringed,
and that the right contended for on their behalf is not a right recog-
nised by law, or, at all events, only such a right as everyone else
is entitled to deprive them of if they stop short of physical violence
or obstruction. I think t he right_to_em ploy their labour_as_they will

pnJvisions'tcTliiTaTccany undue interference with tliat right an ac-
tioiiable^r ong .

Very early authorities in the law have recognised the right; and,
in my view, no authority can be found which questions or qualifies
it. The schoolmaster who complained that his scholars were being

' [lS9r,12(2. B. 21.



SECT. IV] STRIKES TO UNIONIZE SHOPS 277

assaulted and brought an action, the quarry ownor who complained
that his servants were heinj^ menaced and molested, were hoth
hold to have a rij^ht of action. And it apix'ars to me that the im-
portance of those cases, and the principle established by them, liave
not been sufficiently considered. It is said that threats of violence
or actual violence were unlawful means: the lawfulness of the means
I will discuss hereafter. But tiie point on which the.se ca.ses are
important is the existence of the ri^ht. It was not the schoolma.ster
who was assaulted; it was not the quarry owner who was lussaulted
or threatened; but, nevertheless, the schoolnuuster was held entitled
to brinj^ an action in respect of t\u) lo.ss of scholars attending;; his
school, and the (juarry own(!r in respect of the lo.ss of workmen to
his quarry. They were third persons; no violence or threats were
applied to them, and the caasc of action, which they had a riRht to
insist on, wtis the indirect eff(;ct upon them.selves of violence and
threats api)lied to otlun-s.

My Lortis, in my view these are bindirif? authorities to shew that
the preliminary question, namely, whether there was any riKht of
the plaintifTs to pursue their calling; unmolested, nuist bo answind
in the affirmative. Th(^ (|uestion of wliat is the right^invaded- Wuulxl
seem to be reavSonabFy answeret l, and the univer.sality of t he ri^li t
to all Her Majesty~'s~sut5jecls seenis^tgjne_toJjcj^o imjimien^^
its existeiTcev It is, indeed,' part of that freedom from restraint, That
riberty^(')r aTttT)!!, which, in my view, may be found running through
the principles of our law. . . .

First it is .said that the company were acting within their legal
rights in discharging the plaintiffs. So they were; but does that
afifect the question of the responsil)ility of the person who caused
them so to act l)v the means he used? The scholars who went away
from the school wore (Mitithnl to do so. The miners were entitled
to cease working at the quarry. The natives were entitled to avoid
running the risk of being shot; but the question is, What was the
cau.se of their thus exercising their legal right?

The f}U(^stion must b(> whether what was done in fact, and wliat
did in fact procure tiio dismissal of the plaintiff, was an actional)lo
wrong or not. I have never heard that a man who was dismissed
from his service by reason of some .slander could not maintain an
action against the slanderer liecause th(> master had a l(>gal right to
discharge him. . . .

But the obj(>ction made by the defiMidaiits app(>ars to be that
the word "malicious" adds nothing; that if the thing was lawful
it was lawful absolut(>ly; if it was not lawful it was unlawful — the
addition of the word "malicious" can make no ditTerence. The
fallacy apjjears to me to reside in the a.'^sumption that everything
must be absolutely lawful or absolutely unlawful. There art^ many
things which may Ix'come lawful or unlawful according to circum-
.stanc(\s.



278 LEGALITY OF ENDS PURSUED [CHAP. V

In a decision of this House it has undoubtedly been held that
whatever a man's motives may be, he may dig into his own land
and divert subterranean water which but for his so treating his
own land might have reached his neighbour's land. But that is
because the neighbour had no right to the flow of the subterranean
water in that direction, and he had an absolute right to do what he
would with his own property. But what analogy has such a case
with the intentional inflicting of injury upon another person's prop-
erty, reputation, or lawful occupation? To dig into one's own land
under the circmnstances stated requires no cause or excuse. He
may act from mere caprice, but his right on his own land is abso-
lute, so long as he does not interfere with the rights of others.

But, referring to Bowen, L. J.'s, observation, which to my mind
is exactly accurate, "in order to justifyjthejntcmtion^^
which is calculated in the jrdinaiy course~or^vents to d amage , and
whi ch do es^lip f a^i^jiamage~ai rottlgr1n T ha^_otheZj) £rs6n\j)rQper^
or"trade. voujnust^ji ave some ]ust cau se_ or excus e .

Now, the word '^malicious" appears to me to negative just cause
or excuse; and without attempting an exhaustive exposition of the
word itself, it appears to me that, if I apply the language of Bowen,
L. J., it is enough to shew that this was within the meaning of the
law "malicious."

It appears to me that no better illustration can be given of the
distinction on which I am insisting between an act which can be
legally done and an act which cannot be so done because tainted
with malice, than such a colloquy between the representative of
the master and the representative of the men as might have been
held on the occasion which has given rise to this action, nthej^ep-
resentati ve of the men had in good faith and withouUn direct mor
trVg""'pointed out the i nconvenience that might result from having^
two sets of men worKmg together on the same ship, whose view s
trpon the particular question were so diverse that it would be in-
expedient to bring them together, no one could have complaiilOcT;
but if his object was to punish the men belonging to anothei Minio n
because on some former occasion they had worked on an irorTsmp.
it seems to me that the difference of motive may make th e whol e
difference between the lawfulness or unlawfulness of what he (lid. . . .

My Lords, I regret that I am compelled to differ so widely with
some of your Lordships; but my difference is founded on the belief
that in denying these plaintiffs a remedy we are departing from the
principles which have hitherto guided our courts in the preserva-
tion of individual liberty to all. . . .

Lord Watson. . . . The whole pith of the verdict, in so far as
it directly concerns the appellant, is contained in the word "mali-
ciously" — a word which is susceptible of many different mean-
ings. The expression "i mlicio usly induce,'' as it occurs upon the
face of the verdict, is ambiguous: it is capaBl^ of signifying that the



i



SECT. IV] STRIKES TO UMONIZE SHOPS 279

appellant knowingly induced an act which of itself constituted a
civil wrong, or it may simply mean that the apix'llant procured, with
intent to injure the respondents, an act which, ajjart fnjm motive,
would luA have amounted to a civil wrcjiig; and it is, in my <jpini(jn,
material to ascertain in which of these senses it was us<'d by the jury.

Althouf^h the rule may be otherwise^withj|vgard to cri mes, th e
law of England does not, according lo my apprehension, ti^ke into_
account motive as coTisTiTuting an elem<'nt of civil w njng . Any in-
vasion of the civil rights of another [xMson is in itself a legal wrori^
carrying with it liability to repair itsncces sary or natuiil .>,ii^j^
quenches, in so far as these are injurious to the person who>e jigl it i.s
in/ringed, whetTier the motrve whTch^yroinpT(\d JOi^ooil, bad, ox_
indilTercM^t. But the existence^ of a bad motive, in tlu? ciu^e of an
act which is not in itself illegal, will not convert that act into a civil
wrong for which reparation is due. A wnnigful act, done k nowin^^ly
and with a view to its injurious consequence s, may, in th e sen se jj f
law, be malicious; but such malic e (lerlves its es.sential char a cter
fixjirrthe circ umstance that tlie act done constitutes a violati on of
the law. . . .

The root of the principle is that, in any legal ([uestion, malice_
dependsj^ n ot upo n evil motive which influenced tiie inijid of the
actor, but upon tlKTlTIegal^cha fader of the~Tict^ winch he contein-
plated and committed. _In my opinion it is alike consistent with
reason and common sense that when the act done is, apart from
the feelings which prompted it, legal, the civil law ought to take
no cognizance of its motive. -^

It does not appear to me to a,(lmit of d()ul)t tiiat tlie jury, in find- /^ d y^
ing the action of the company to have been maliciously induced by
the appellant, simply meant to affirm that the appellant was in-
fluenced by a bad motive, namely, an intention to injure the respond-
ents in their trade or calling of shipwrights. . . .

It is, in 111}' opinion, the absolute light of every workman to exer-
cise his own option with regard to the persons in whose society he
will agree or continue to work. It may be deplorable that feelings
of rivalr>' between difTerent associations of working men should
ever run so high as to make members of one union seriously object
to continue their labour in company with members of another trade
union; but so long as they commit no legal wrong, and use no means
which are illegal, they are at perfect liberty to act upon their own
views. That th(> b(Ml(>r-makers who were employed at the Regent
Dock, Millwall, did seriously resent the presence among thcMii of the
respondents very plainly appears from the evidence of the respond-
ents themselves; and that they would certainly have left the dock
had the respondents continued to be (>mployed apix»ars to me to
be an undoubted fact in the ca.se. They w(>re not under any con-
tinuing engagement to their employers, and. if they had left their
work and none out on strike, they would have been acting within



J^



280 LEGALITY OF ENDS PURSUED [CHAP. V

their right, whatever might be thought of the propriety of the pro-
ceeding. Not only so; they were, in my opinion, entitled to inform
the Glengall Iron Co. of the step which they contemplated, as well
as of the reasons by which they were influenced, and that either by
their own mouth, or, as thej' preferred, by the appellant as their
representative. , . ,

Having come to the conclusion with the majority of your Lord-
ships who have heard the appeal, that the doctrine advanced by the
respondents is neither sound in principle nor supported by authority,
I move that the order appealed from be reversed, and judgment
entered for the appellant. . . .

Lord Herschell. . . . The Master of the Rolls declined in the
present case to define what was meant by " maliciou sly" : he con-
sidered this a question to be determined by a jury. But if acts are,
or are not, unlawful and actionable, according as this element of
malice be present or absent, I think it is essential to determine what
is meant by it. I can imagine no greater danger to the com munity:
than that a jury should be at liberty to impose the penalty of_pax-
mgHamages for acts which are otherwise lawful, because they choose,
without any k^gal definition of the term,T6'say that th ey a rej mali -
cioi ^. N o one would know what his rights were. The result would
BeTo putall our actions at the mercy of a particular tribunal whose
view of their propriety might differ from our own. However_mali£p
m av be defined, if motive be an ingredient of it, my sense of the
danger_would not be dimi nished . ... If the fact bejthat malice is_
tlie~gist of jHe actionjofliiducilig or prociifing'an act to be done to



the prejudice^ another, an d not th at the act induced or procursE
i s an unlawfuT oneas b^Sg^ JjreaclTqr ^ntract'^'ot&erwise, I can
see no possible ground tor confining th^~action to cases m which the
thing induced is the not entering into a contract. It seems to me
that it must equally lie in the case of every lawful act which one
man induces another to do where his purpose is to injure his neigh-
bour or to benefit himself at his expense. I cannot hold that such
a proposition is tenable in principle, and no authority is to be found
for it. I should be the last to suggest that the fact that there was no
precedent was in all cases conclusive against the right to maintain
an action. It is the function of the courts to apply established
legal principles to the changing circumstances and conditions of
human life. But the motive of injuring one's neighbour or of benefit-
ing oneself at his expense is as old as human nature. It must for
centuries have moved men in countless instances to persuade others
to do or to refrain from doing particular acts. The fact that under
such circumstances no authority for an action founded on these ele-
ments has been discovered does go far to shew that such an action
cannot be maintained. I think these considerations (subject to a
point which I will presently discuss) arc sufficient to shew that the
present action cannot be maintained. . . .



SECT. IV] STRIKES TO UNIONIZE SHOPS 281

I undcrsfood it to he admitted at the Bar, and it was indf?ed stated
by one of the h-arncd jud^ies in tljc (loiirt of Ai)iK'al, that it would
have Ixxn perfectly lawful for all the ironworkers to leave tlieir
employment and not to accept a subsequent engagement to work
in the company of the plaintiffs. At all events, I cannot doubt that
this would have been so. I cannot doubt cither that the ai)|)«'llant
or the authorities of the union would ('(jually have acted witliin hi.s
or their rij^hts if he or they had "called the men out." They were
members of the union. It was for them to det^-rmine whether they
would Ix'come so or not, and whether they wouhl follow or not fol-
low the instructions of its authorities, tiiouf^h no doubt if they had
refused to obey any instructions which under the rules of the union
it was competent for the authorities to give they might have lr)st
the benefits they derived from m(>mbership. It is not for your Lord-
ships to express any o{)inion r)n tiie i)olicy of trade um'ons, member-
ship of which may undoubtedly inlluence the action of those who
have joined them. They are now recognised by law; there are com-
binations of employers as well as of employed. The members of
these unions, of whichever cla.ss they are composed, act in the in-



Online LibraryUnknownA selection of cases and other authorities on labor law → online text (page 36 of 124)