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Case 1. A has only one vacancy among his employees. B applies for the place. Immediately after, defendant applies for it and obtains it. De fendant knew that his application, if successful, would prevent B's obtaining employment from A. B sues defendant.

Here defendant is justified. He has an equal right with B to be a candidate for the single place. The question whether defendant's justification would be destroyed by proof that his predominant motive was ill will to B is one seldom likely to arise. For reasons elsewhere given, we think that such bad motive would not rebut the otherwise sufficient justification.

Case 2. B is working for A under a contract terminable, at any moment, at the will of either party. Defendant, who is working for A under a similar contract, tells A that he will quit A's employ unless A ceases to further employ B. A thereupon ceases to employ B. A has room for both B and defendant in his business. Defendant's sole reason for the notice is his personal dislike of B. He has no objection to B's character or habits. B sues defendant.2

We think that the desire of gratifying defendant's capricious dislike of B does not justify thus intentionally inducing A to take action damaging to B. It is true that Lord Watson, in Allen v. Flood, said: “It is, in my opinion, the absolute right of every workman to exercise his own option with regard to the persons in whose society he will agree or continue to work.” But it is submitted that while the right to simply abstain from work may be "absolute," yet this “right" (or a threat to exercise it) cannot be used affirmatively as a lever to induce a third person to take action damaging to the plaintiff. No one can legally interfere with the employment of another, unless in the exercise of some right of his own which the law respects. His will so to interfere for his own gratification is not such a right." 4

Case 3. B, a non-union journeyman printer, is working in A's printing office under a contract terminable, at any moment, at the will of either party. Defendant, a union journeyman printer who is working for A under a similar contract, tells A that he will quit A's employ unless A ceases to further

1 See Knowlton, C. J., in Berry v. Donovan, 188 Mass. 353, 357 ; Loring, J., in Pickett v. Walsh, 78 N. E. Rep. 753 (Mass.).

2 The question would be the same in principle if defendant had offered to begin working for A on condition of A's ceasing to employ B.

3 [1898] A. C. 1, 98.
4 Knowlton, C. J., in Berry v. Donovan, 188 Mass. 353, 357.

employ B.1

A thereupon ceases to employ B. A has room for both B and defendant in his business. Defendant has no personal ill will towards B. His reason is a desire to strengthen the principle of unionism in his own trade. B sues defendant. ?

If a combination is regarded as unlawful per se, or as unlawful when there is a purpose to create a monopoly in labor, the justification here would be held bad. But if we reject these views, it does not necessarily follow that the justification must be held good.

The question then arising may be stated as follows: Are the defendants liable because the probable advantage to them is not sufficiently direct, or not sufficiently great, to justify them in inflicting this direct damage on the plaintiff or the indirect damage to the employer or to the community?

On this question the authorities are not unanimous.

The view that the justification is insufficient is supported by the courts of Massachusetts, Maryland, and Pennsylvania, and also by Mr. Justice William O'Brien and Mr. Eddy.3

It is urged that, to constitute a justification, the raising of wages or lessening of hours must be the direct and immediate result. Hammond, J., in Plant v. Woods, says:

“The necessity that the plaintiffs should join this association is not so great, nor is its relation to the rights of the defendants, as compared with the right of the plaintiffs to be free from molestation, such as to bring the acts of the defendants under the shelter of the principles of trade competition.”ı

1 Suppose that unionist journeymen in a machine shop, not content with monopolizing the journeymen's pos ons, threaten to leave unless a non-union foreman is dropped and a union foreman designated by themselves is substituted. If there is held to be a justification in Case 3, does this compel the conclusion that the above conduct as to the foreman is also justified? We think not. The exclusion of a nonunion foreman, while it may be beneficial to the union, is not as necessary to its existence as the exclusion of non-union journeymen. Nor is the foreman a rival or competitor of the journeyman. We have stated it as one of the requisites to justification (ante, p. 361) that the damage resulting to the plaintiff or to the general public (including the employer) must not be excessive in proportion to the benefit to the defendant. It is evident that the damage to the employer must be much greater than if the unionization of the shop is confined to the journeymen. Indeed it is difficult to see where the harm would stop. The next claim might be for the union to select the general superintendent; and next to exclude the employer altogether from personal supervision, or indeed exclude him from entering his own workshop.

2 The question can be varied by supposing B to be a member of a rival union.

8 Plant v. Woods, 176 Mass. 492; Berry v. Donovan, 188 Mass. 353; Erdman v. Mitchell, 207 Pa. St. 79; Lucke v. Clothing C. & T. Assembly, 77 Md. 396; William O'Brien, J., in Leathem v. Craig, Ireland [1899] 2 Q. B. & Ex. D. 667, 698; 1 Eddy, Combinations, 416. Cf. Erle, Trade Unions, 73, 74.

The contrary view is forcibly stated in the dissenting opinion of Holmes, C. J., in Plant v. Woods:

To come directly to the point, the issue is narrowed to the question whether, assuming that some circumstances would be a justification, the purpose in this case of the threatened boycotts and strikes was such as to justify the threats. That purpose was not directly concerned with wages. It was one degree more remote. The immediate object and motive was to strengthen the defendant's society as a preliminary and means to enable it to make a better fight on questions of wages or other matters of clashing interests. I differ from my brethren in thinking that the threats were as lawful for this preliminary purpose as for the final one to which strengthening the union was a means. I think that unity of organization is necessary to make the contests of labor effectual, and that societies of laborers lawfully may employ in their preparation the means which they might use in the final

contest." 2

The result reached by a majority of the New York Court of Appeals in National Protective Association v. Cumming 3 is like that of Judge Holmes; but Professor Lewis points out a radical difference in the reasons given.

1 176 Mass. 492, 502. And see Knowlton, C. J., in Berry v. Donovan, 188 Mass. 353, 359.

We are here discussing Case 3 upon the supposition (ante, pp. 358, 253) that such a movement against the employment of non-unionists can be, and is, carried on without resorting to the unlawful method of using or threatening force, either against the persons of the non-unionists or the property of the employer. But it may be contended that this supposition hardly ever accords with the actual fact ; that a movement of this sort, supported as it generally is by bitter denunciation of the non-unionist, is certain to result in the use or threat of violence by a part of the unionists; and that the remainder of the unionists will make no effectual effort to restrain their fellows. In the majority opinion in Plant v. Woods, supra, 496, 497, Judge Hammond assumes that such results are always to be expected. If it is practically impossible to carry out such a movement peacefully, then it may be urged that the law should not permit the movement to be undertaken, and that hence the attempted justification in the present case should be held bad.

As to the special reasons for expecting a resort to violence in a labor contest of this particular kind, see Professor Bullock in 94 Atl. Monthly 438.

2 176 Mass. 492, 505. “To Trade Unionists Non-Unionists are permanent rivals ; acting in their own interests, they undersell them in the labor market, take the side of the employer against the Unionists in time of strike, and if the strike is successful seek to share the fruits obtained by the sacrifices of the Unionists.” Sir Godfrey Lushington, Report of Royal Commission, 90.

See the discussion in Mitchell, Organized Labor, c. 32: “The Unionist and the Non-Unionist." 3 170 N. Y. 315.

44 Am. L. Reg. (N. s.) 496.

In the decision of Allen v. Flood, in the House of Lords, the majority of the Law Lords held that there was not even a primâ facie tort, and hence they had no occasion to decide what would constitute a justification. But, if that question had been considered material, we should infer that some, at least, of the majority Lords would have taken the same view as Judge Holmes. The opinion of one of the ablest of the majority, Lord Herschell, leaves little doubt as to his concurrence.1

The question has repeatedly arisen in mercantile transactions whether it is unfair competition for a trader (or a combination of traders) to insist that those who deal with him shall not deal with his rivals as to the subject-matter of rivalry. Here again the authorities are not unanimous, but there is more tendency to sustain the justification, and the authorities which sustain such conduct in mercantile transactions may fairly be cited to justify the conduct of labor unionists in the case now under consideration. Professor Bullock says:

2 “To refuse to sell sugar or tobacco to a dealer who will not agree to buy from no other source is precisely like the refusal of laborers to work for a person who will not buy all his labor from the trade-union.” 3 Some of the cases 4 will be referred to in connection with the discussion of Temperton v. Russell under Case 11.5

2

1 [1898] A. C. 1, 141. See also Lord Shand, p. 167.

94 Atl. Monthly 436. 3 The theory that there is a perfect analogy between the cases of mercantile competitors and labor competitors seems inconsistent with the decision in Cleland v. Anderson, 66 Neb. 252. The statute there under consideration punished any combination of dealers intended " to prevent others from conducting or carrying on the same business," or which tended “to prevent or preclude a free and unrestricted competition among themselves or others or the public generally.” Section 9 of this statute expressly excepted from its operation organizations of laboring men for the purpose of raising wages. It was held that this exception did not make the statute unconstitutional. We think this decision erroneous (ante, p. 353), and it is admitted to be in direct conflict with Ins. Co. v. Cornell, 110 Fed. Rep. 816, 825. But if the Nebraska decision is sustained, the labor unions can no longer rely on the supposed analogy in support of their demand (see post, under Case 11) that the common law should allow the laborer the same methods of economic warfare which it allows to the trader; they cannot take inconsistent positions, according to their varying interest. They cannot deny the analogy when the constitutionality of the Nebraska statute is in controversy, and then insist on the existence of the analogy in order to enjoy certain competitive rights at common law.

4 See authorities collected by Professor Wyman, 17 Green Bag 200, 222 ; also 18 Harv. L. Rev. 446; 44 Am. L. Reg. (N. S.) 472, 473; Sir Godfrey Lushington, Report of Royal Commission, 90. 6 As to the constitutionality of a statute making it a criminal offense to make it a

If the application of Judge Holmes' view in Plant v. Woods can be confined (as we think it can and should be) to threatened “ strikes in support of the principle of unionism in the strikers' own trade, we should be inclined to favor Judge Holmes' view and hold the justification in Case 3 sufficient. But if courts are to hold that this view necessitates the further concession that members of a union in one trade may take such action in behalf of the principle of unionism in other trades, then we should prefer to reject Judge Holmes' view.

Of course, if such means (as in Case 3) can be resorted to in order to strengthen the prestige of unions and to promote the spread of unionism, it must be allowable to use similar means to weaken unions and to prevent their growth. Non-unionists must have correlative rights as against unionists, and employers must be at liberty to form a combination not to employ unionists (to refuse employment to unionists).

Case 4. B, a non-union carpenter, is making repairs on A's dwellinghouse, under a contract terminable, at any moment, at the will of either party. Defendant, a union printer who is working in A's publishing establishment under a similar contract, tells A that he will quit A's employ unless A ceases to further employ B. Thereupon A ceases to employ B. Defendant was actuated by a desire to strengthen the general principle of unionism in all trades. B sues defendant.

Case 4 raises the question whether, in the absence of any ex

condition of the sale of goods that the purchaser shall not sell or deal in the goods of any person other than the seller, see Com. v. Strauss, 191 Mass. 545.

1 Lord Shand, in Allen v. Flood, (1898) A. C. 1, 169; and of. Knowlton, C. J., in Berry v. Donovan, 188 Mass. 353, 360.

2 The bill pending in the British Parliament gives immunity to combinations of masters as well as combinations of men.

In Boyer v. Western Union Tel. Co., 124 Fed. Rep. 246, it was held that discharging men because members of unions, and keeping a blacklist of their names and the reason for discharge, was not unlawful. See also Willis v. Muscogee Mfg. Co., 120 Ga. 597. Cf. Bulcock v. St. Anne's, etc., Federation, 19 T. L. R. 27.

In People v. Marcus, 185 N. Y. 257, a statute prohibiting any person from making the employment of another conditional on the employee not joining or becoming a member of a labor organization was held unconstitutional.

Statutes making it unlawful to discharge an employee because he belongs to a labor organization have been held unconstitutional. State v. Kreutzberg, 114 Wis. 530; Gillespie v. People, 188 Ill. 176; State v. Julow, 129 Mo. 163; Coffeyville, etc., Co. v. Perry, 69 Kan. 297.

A statute relative to employment offices, which discriminated against employers in case of a lock-out or a strike, was held unconstitutional in Matthews v. People, 202

Ill. 389.

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