of M struck or threatened to strike to require M, who had a direct relation with the rival group of employees to discharge them from his employ. In Quinn v. Leathem on the other hand, the employees of M threatened to strike to induce M to withdraw his trade from L so that L would discharge the rival group of employees. Why make any distinction between these two cases? In Allen v. Flood the competition was between the two groups working for the same employer and the pressure which one group brought to bear upon the other was direct because the defendant group of employees threatened to strike to induce their employer to discharge the rival group. In Quinn v. Leathem, the pressure was indirect and required the threat of harm to those who had no relation to the competitive struggle in question, or any direct power over the group of employees with which the parties threatening to strike were competing. Why should this distinction make a difference? The question is largely one of degree. The line must be drawn somewhere. Where better than here?

§ 98. Curran v. Galen 5 and National Protective Association v. Cumming should be considered together.

In Curran v. Galen the union and the employer had a contract that non-union men were to be discharged. This was carried out and the discharged non-union employees sued the union in tort and recovered. In National Protective Association v. Cumming, the union threatened the employer with a strike unless the non-union men were discharged. The discharged nonunion men were not permitted to sue the rival union in tort.

Thus stated the only distinction between the cases is that in Curran v. Galen there was an agreement between the union and the employer, while in the National Protective Association case there was merely a threat by the employees to strike. Does that make any difference? The agreement is more peaceful than the strike, and yet the agreement effects a combination of employers and employees which does not usually accompany the strike. Is it possible that you can do by strike what you cannot do by agreement?

It is submitted that the sounder line of distinction between

5-152 N. Y. 33 (1897) [408].

6-170 N. Y. 315 (1902) [413].

the two cases is this: In Curran v. Galen the union was a national organization. It had size. We may assume that it had a preponderant position in the particular group of labor which it represented. It had the power which size gave it. Against that power the individual unorganized unit had no chance for retaliation. The exclusive contract was itself direct evidence of an intention to exclude others from the labor market and thus secure a monopoly. When such an excluding practice as this contract is employed by such a combination with such a purpose, the resulting damage can not be justified upon any ground of permitting free and unrestricted competition. On the other hand in National Protective Association v. Cumming, we have a contest between two unions. One was seeking to secure certain work against the other. One union was more powerful than the other, but it could not be said that it occupied a preponderant position in the labor market of the country. The court in the National Protective Association case was after all, dealing merely with the competition of two collective units. The use by one of the strike in order successfully to compete with the other was merely competition, such as occurred in the Mogul case 7 and Allen v. Flood.8

§ 99. Berry v. Donovan follows Curran v. Galen. The discharge of the non-union employee pursuant to a contract between the union and the employer was held to be a tort to the discharged employee for which the union was liable. The union here was not so much competing with the plaintiff for his job as it was attempting to force the plaintiff into the union so as to strengthen the union. The union was clearly a national one and it may be assumed that it had a preponderant position in the labor market for shoe workers. The purpose to exclude others from that labor market was clearly present. Hence the monopoly feature offsets any public interest in allowing free competition. Clearly if the defendant union had threatened to strike, instead of securing a contract, it would equally have been guilty of a tort. This would not in the least have been contrary to Allen v. Flood, because there the court was dealing

7-Ante $94. 8-Ante § 96.

9-188 Mass. 353 (1905) [453].

with two local unions, each competing with the other for the work in question. In Allen v. Flood no case was presented of the defendant union occupying a preponderant position in the labor market as against its rival.

§ 100. In Vegelahn v. Guntner 10 the striking employees of a storekeeper were seeking employment in the store at a price which they named. To accomplish their purpose of obtaining employment, they picketed in front of the store and peacefully attempted to persuade those who came to take their placestheir rivals-not to do so. This was held to be a tort and was

enjoined.

This decision may be sustained on the ground that however peaceful the strikers may have been they were in fact interfering with the storekeeper's trade and customers. This trade is dependent upon a relation so delicate that the actual presence of picketers in front of the store will drive it away, however peaceful they may be. The strikers, therefore, are in the position of bringing to bear upon the storekeeper a secondary pressure, as in Quinn v. Leathem. They are keeping away the storekeeper's customers, so as to bring the storekeeper to terms. They are in effect turning away the storekeeper's customers, so as to bring pressure upon the storekeeper not to employ the rivals of the strikers.

Suppose this basis for the decision be withdrawn. Suppose the employer is a mail-order house, so that there are no customers whose physical presence is interfered with. Even in such a case we have an effort by the strikers to achieve a localized monopoly by combination. Every person who is turned away from the employer is a party to a combination to achieve a localized monopoly for the striking employees, of places in the particular store. If all who would seek places in that store can be turned away the monopoly is, for the time being at least, perfect.

The case is not in the least different from the blacklist by employers. If all the employers from whom a man might secure work which he is particularly fitted to do, combined in the most peaceful way to keep him from obtaining work so that he would

10-167 Mass. 92 (1896) [440].

come to the employers' terms, we should have a localized monopoly by employers directed against that man. Such action would be a tort to the employee who was blacklisted.

The same principle is involved where bidders at a public auction combine, however openly and peacefully, to keep others away from the bidding.

§ 101. In Bohn Mfg. Co. v. Hollis 11 no tort was committed by a retailers' association which notified its members not to deal with the wholesalers who sold direct to the consumer. Such a boycott was a legitimate means of protecting the business of the retailers. The manufacturers and retailers were possible competitors and yet each had a field of business which supplemented the other and was not competitive. Any public interest which there may be in having the wholesalers sell directly to the consumers is offset by the public interest in not putting established retailers out of business. Furthermore, the courts do not undertake to decide between competing economic principles but simply insist on equal freedom for the devotees of each to compete and survive, if possible. The retailers' association could, therefore, organize to protect the retailers from the manufacturers. Having organized they could use the weapon of the strike or the boycott, or refusal to buy from the wholesalers who competed with them. In Allen v. Flood one group of laborers used the strike to prevent the employers from dealing with a rival labor group. Here the retailer uses the strike to prevent the wholesalers from entering into competition with the retailers. Both are legitimate methods of competition, so long as they are not used by a union or association having a preponderant position in the market.12

§ 102. In Martell v. White 13 we have an association of quarriers, manufacturers and polishers of granite at a single important granite center. These three groups supplemented each other. The quarriers furnished stone to the manufacturer who passed it on the polisher. Together they formed an association which was complete within itself. Assume that competition between the members in each group was suppressed and that

11-54 Minn. 223 (1893) [473]. 12-See post § 132.

13-185 Mass. 255 (1904) [478].

the work was divided between them on some agreed basis. The court assumed that this organization of the three groups was lawful and proper. To maintain such an organization, however, the members of each group must be loyal to its rules and regulations. If quarriers at will could sell to outsiders, and if manufacturers could do the same, the organization must quickly have fallen to pieces. The real question presented was whether the association could enforce loyalty from its members by fining them for sending work to outsiders. It was held that it could not. The fine, it was held, was an unlawful means, or based upon an unlawful contract between the parties. Why? If the association was lawful and loyalty to it was necessary, why could not the members by mutual agreement provide such a means as a fine to make it effective?

In discussing the case of Bohn v. Hollis, the court says no fine was there imposed. On the contrary "inducements naturally incident to competition" were used. But in the Bohn case the association was seeking to prevent the wholesalers from competing with the members of the retailers' association in selling direct to consumers. The natural method was to strike against the wholesaler who did compete. There was no rational basis for any fine upon any member of the association unless it were required in order to enforce the strike. But when the exigencies of the situation require all the members of an association to deal only with each other the strike against outsiders is entirely inappropriate and the fine of members becomes a naturally effective and appropriate step. The different situations clearly call for different expedients. Conceding, therefore, the legality and propriety of the association in Martell v. White it should follow that the fine of members was quite as proper and appropriate as the strike in the Bohn case and should have been held legal.

What has thus far been said presupposes that the association in question did not have any preponderant position in the business in which it was engaged. Now suppose it had. The situation is quite changed. The power of the preponderant organization in making such exclusive arrangements would be to force all into the association or to exclude them from doing business entirely. The preponderant position coupled with the exclusive