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press agreement of alliance, the interest of men in one trade in the general principle of unionism is so great as to justify them in inflicting damage on persons whose conduct is hostile to unionism in another trade (i. e., hostile to the interests of a union composed of men in another trade). Assuming that unionist printers may take certain measures in behalf of the principle of unionism in their own trade, can they adopt the same sort of measures in behalf of unionism among carpenters? Does the fact that they are all hand workers or wage earners create such a common interest as to bring certain measures within the limits of self-defense ? 1
Of course, if we repudiate the view of Chief Justice Holmes in Plant v. Woods, then, a fortiori, there is no justification in Case 4
But if we adopt the Holmes view and concede that the men of one trade may take certain defensive measures to strengthen the principles of unionism in their own trade, then the question comes whether they may take similar measures to strengthen the principle of unionism in another trade. Does logical consistency require the extension of the Holmes view to the latter case; and if logic might so require, does expediency forbid?
We think that it should not be so extended.?
It may be urged that the difference between Cases 3 and 4 is only one of degree. But, as Judge Holmes has said, most differences, when nicely analyzed, are differences only of degree. Here the differences of degree are very marked. The interest of the printer in the prosperity of the carpenter is much less than in that of men of his own trade; and the same is true, to a large extent, as to the success of unionism in the two trades. On the other hand, the
1 “The cause of one laborer is the cause of all laborers. Organized labor must give to each of its members its collective force and influence, else they will fall, one by one, a sacrifice to the greed of their employers.” Dissenting opinion of Caldwell, J., in Hopkins v. Oxley Stave Co., 83 Fed. Rep. 912, 935. The learned judge was here answering the objection that only one member of a labor combination was in the employ of the plaintiff company.
2 If our conclusion is correct, the well-known case of National Protective Ass'n v. Cummings, 170 N. Y. 315, should have been decided for plaintiff. The defendants (walking delegates) threatened the employer that if he did not discharge the members of the plaintiff association, the defendants “would cause a general strike of all men of other trades employed on said buildings.”
8 Rideout v. Knox, 148 Mass. 368, 372. In Haddock v. Haddock, 201 U. S. 562, 631, the same learned judge said : “I am the last man in the world to quarrel with a distinction simply because it is one of degree. Most distinctions, in my opinion, are of that sort, and are none the worse for it."
4 “Another objection to the sympathetic strike is the fact of its remoteness. The public may sympathize with oppressed tailors who are struggling for better condi.
exercise of the right claimed by men of all trades to take such an active part in an economic conflict between the men of one particular trade and their employer would operate to the great disadvantage of the employer. Nor is this all. The effect would be harmful to the general public; and there is a “growing conception of the public as a distinct entity having rights.” 3 If economic war on the part of all workmen in all trades can be declared whenever there is a controversy in any one trade, there must always be great uncertainty as to the completion of any business undertaking in any trade, and as to obtaining the necessaries of life. Undoubtedly there may be close questions as to where the line shall be drawn between certain occupations, to determine whether men pursuing them belong to the same trade or to different trades. But this is a difficulty only of fact, and does not furnish a reason for considering all trades as identical with each other. Whether pressmen and compositors belong to the same trade or not (whether they both belong to the printing trade or not), they certainly do not belong to the same trade as carpenters.
Case 5. Add to Case 4 the following statement :
The members of each trade have their separate unions ; but these unions have in turn formed a federation of trades. By the agreement of federation, whenever the interest of any one of the allied trades is involved the interests of all shall be deemed to be involved, and the members of each trade are bound to take the same defensive measures which they might lawfully adopt if their own trade were the one especially affected.
tions, but it will not sympathize with waiters, teamsters, bricklayers, or railroad employees, if by any chance they strike sympathetically with the garment workers. The public finds in the original quarrel no justification for the intervention of the new unions, and it fears that by means of sympathetic strikes a conflict originally limited in its scope may become extended so as needlessly to involve the entire labor world.” Mitchell, Organized Labor, 303.
“... in any given state or territory there is a wide divergence and dissimilarity of interest between its miners and its locomotive engineers, its carpenters and its garnient workers, its glass blowers and its waiters, its doctors and its farmers, its manufacturers and its newspaper writers, even though these various people live and work in the same city or on the same street.” Ibid. 400.
To prevent misapprehension, it should be added that Mr. Mitchell believes that sympathetic strikes, though to be resorted to only in the most extreme cases, are sometimes justifiable. Ibid. 304.
1 Men of other trades may use persuasion and argument, because these methods are not prima facie actionable and require no justification. But if they exert economic pressure, “they have not sufficient interest in the result to justify their act, if their act requires justification."
2 Prof. Bigelow, in Centralization and the Law, 7.
Assuming in Case 4 that the union printer would be liable in the absence of any alliance or federation among the different trades, does the formation of such an alliance as supposed in Case 5 render conduct lawful which would otherwise be unlawful? Will the law recognize, and as it were uphold, an artificial unity of interest, growing out of (created by) the defendant's own agreements inter se?
This inquiry must be answered in the negative.
The question is somewhat anajogous to the point considered in Boutwell v. Marr1 and Martell v. White.2 In these cases members of a union had enforced a penalty against a fellow member for dealing with the plaintiff, and had thereby damaged the plaintiff's business. They set up the defense that the penalty was provided for by the rules of the union, to which all its members had agreed. But the court held that the initial agreement of a member that a penalty may be imposed upon him does not make the imposition of such a penalty a lawful mode of attack upon the business of a third person. If the agreement of the members cannot directly justify conduct otherwise unlawful, can their agreement indirectly justify it by creating an artificial interest to serve as a foundation for the exercise of self-defense? Does a combination enjoy greater immunity than an individual?
Case 6. Defendant, a union carpenter, is working for A, a builder, under a contract terminable, at any moment, at the will of either party. A is in the habit of buying his family meat from B, a butcher who employs nonunion journeyman butchers. Defendant threatens to quit A's employ, unless A ceases to buy meat of B. Thereupon A ceases to buy meat of B. B sues defendant.
Case 7. Defendant, a union journeyman butcher, is working in A's meat market under a contract terminable, at any moment, at the will of either party. A is in the habit of selling meat to B, who employs non-union carpenters. Defendant threatens to quit A's employ unless A ceases to sell meat to B. Thereupon A ceases to sell meat to B. B sues defendant.
Even if there can be any question as to the invalidity of the justification in Case 4, it seems impossible to entertain any doubt as to Case 6 and Case 7. The condition here sought to be imposed is not that A shall himself refrain from employing non-union laborers. It is far more sweeping; namely, that A shall not have dealings with another person who employs non-unionists, even
171 Vt. 1.
185 Mass. 255.
though (as in Case 6) such dealings have no relation to the particular work on which the defendant would be engaged. The benefit likely to result to the defendant is much less, and the probable damage to the employer and to the community is much greater, than in Case 3 or Case 4.
If a contrary view is adopted, what limit is there to the conditions which may be imposed with a view to causing damage to persons other than the offeree? What of a condition that the employer shall cease to subscribe towards the support of a certain clergyman, or that he shall not contribute to the campaign fund of a particular candidate, or that he shall not vote for such a candidate? 1
Case 8. Defendant, a union bricklayer, is working for A, a builder, under a contract terminable, at any moment, at the will of either party. A is in the habit of buying bricks from B, who employs non-union brickmakers. Defendant threatens to quit A's employ unless A ceases to buy bricks of B. Thereupon A ceases to buy bricks of B. B sues defendant.
Defendant, a union brickmaker, is working in A's brickyard under a contract terminable, at any moment, at the will of either party. A is in the habit of selling brick to B, an employer of non-union bricklayers. Defendant threatens to quit A's employ unless A ceases to sell brick to B. Thereupon A ceases to sell brick to B. B sues defendant.
Cases 8 and 9 both differ in one respect from Case 6. Like 6, they are attempts to regulate the employer's dealings with other persons who are not his employees. But, unlike 6, the dealings have some relation to the particular work on which the defendant would be engaged. One relates to the obtaining of the material on which the defendant is to work; the other relates to the disposition of the product manufactured by the defendant's labor. We think, however, that the justification is not good. The defendant does not simply exercise his right not to work. Such conduct might not need justification. But, instead, he is offering to refrain from exercising his right on condition that another person (A) will take action damaging to the plaintiff (B). Such conduct is prima facie actionable; and the attempted justification is not sufficient. The damage to B, and to the employer (A), and to the community would be excessive in proportion to the benefit to the
i Defendant threatens to “boycott " any one boarding, or selling necessaries to, any servant employed by plaintiff. The effect is to prevent plaintiff from obtaining help. Held, an action lies. Patch Mfg. Co. v. Protection Lodge, etc., 77 Vt. 294.
2 See, more fully, ante, pp. 272-274; 358, 359.
defendant. B has a right that A should be left reasonably free to purchase of B or to sell to B. The attempted condition imposes an undue restriction upon A's freedom in purchasing material and in selling finished product. It goes further than Case 3, where the attempted restriction relates to the class of persons employed by A himself in working up the material after he has purchased it. If we were right in the answer to Case 4, then a fortiori the above conclusion is correct. If the defendant is not justified, as against a third person, in imposing a condition as to who shall be hired by his employer in trades other than his (defendant's) own, then he cannot impose a condition as to who shall be engaged by outsiders with whom his employer has dealings.
1 Ante, p. 260.
2 Under Case see Purvis v. Local, etc., 214 Pa. St. 348 ; also Purington v. Hinchliff, 219 Ill. 159.
Under Case 11, post, cases are cited where the defendant's conduct was similar to that in Case 8 or Case 9, but with the additional fact that the defendant also exerted "economic pressure" upon customers of A in order to induce such customers to exert in their turn similar pressure upon A. See, e. 8., Moores v. Bricklayers' Union, 23 Oh. Wkly. Bul. 48.
As to Case 9, Lyons v. Wilkins,  1 Ch. 811, is a very strong authority for plaintiff. In that case there was a strike against Lyons for the purpose of getting wages raised. Schoenthal was a manufacturer who employed workmen under him separately, but who did work at his own place of business as a “sub-manufacturer” for Lyons. The defendants, trade union officials, intimated to Schoenthal that if he went on working for Lyons they would call out his workmen ; and the workmen were called out accordingly. (In Appendix II to the Report of the Royal Commission, p. 104, it is said that defendants ordered "a secondary strike " against Schoenthal.) This threat to call out Schoenthal's workmen was made, “not because they objected to the wages that he was giving them, not in order to make a strike of the workmen for the sake of those workmen as between them and their own employer, but for the express and direct purpose of preventing Schoenthal from working for Messrs. Lyons & Co., and of putting in this manner additional pressure upon Messrs. Lyons & Co. so as to induce them to come to the terms which they wished to establish between Messrs. Lyons & Co. and the workmen of Messrs. Lyons & Co." Kay, L. J., p. 829. “ There was no dispute between Mr. Schoenthal and his men.” What the union did “was to call out Mr. Schoenthal's men in order to prevent him from working for Messrs. Lyons, and thus to compel Mr. Schoenthal, who was willing to work for Messrs. Lyons, not to work for them, by depriving him of the men wherewith to work for Messrs. Lyons, and by this means to injure Messrs. Lyons in their trade, if they did not obey the edicts of the union.” A. L. Smith, L. J., p. 834. The proceedings of the union were held unlawful.
If the conduct of the unionists in that case was unjustifiable, much more would it have been so if Schoenthal, instead of working on material owned by Lyons, had been working on his own material and afterwards selling the finished product to Lyons.
In State v. Van Pelt, 136 N. C. 633, it was held that defendant unionists were not criminally punishable for combining to damage an employer of non-unionists by notifying the public that the defendant unionists would not work on material purchased