Case 10. Unionists in a particular trade refuse to buy goods made by non-unionists in that trade, and give notice that they will so refuse. Such notice is given with intent, either to prevent retail merchants from purchasing such products of the manufacturer, or to induce the manufacturer to cease employing non-unionists. Suit is brought by manufacturer; or by non-unionist who has been dropped from employ of manufacturer without breach of contract.

Are the unionists justified?

Here" the power of the workingman as a consumer is enlisted in support of his demands as a producer." 1

The relation of the unionists to the product, in case they purchased it and used it for their own purposes, would be more direct than in Case 8, where they would be connected with it only by working on it while the property of another. In Case 10 they would, if purchasers, become owners in their own right and consumers.2 In Case 8 they would merely be working on it for the ultimate benefit of another. In Case 10 their interest is more directly served by their refusal than in 8; and the embarrassment and confusion resulting to the business relations of other parties would probably be less than in 8.

In Case 10 we incline to think them justified; but the decision. of the majority of the court in Hopkins v. Oxley Stave Co. is opposed to this view.

from him. Connor, J., said, p. 658: "There is no complaint that the conduct of the defendants was intended to injure non-union men. This case has no such element in it, and we do not wish to be understood as expressing any opinion in regard to it. The question has been before other courts. There is a painful absence of harmony in the

decisions."

1 Mitchell, Organized Labor, 293.

2 "... a product may be boycotted either by a refusal to buy it or a refusal to work on it or with it." Mitchell, Organized Labor, 287.

3 In Hopkins v. Oxley Stave Co., 83 Fed. Rep. 912, affirming 72 Fed. Rep. 695, the Coopers' Union and labor unions in other trades induced the Oxley Company's customers to refrain from buying machine-hooped barrels of the Oxley Company, by threatening that labor unionists would refuse to buy commodities packed in such barrels. An injunction was granted, the literal terms of which are not stated. Caldwell, J., in his dissenting opinion, p. 933, says that the defendants “are enjoined from refusing to buy the barrels, and the commodities packed in the same." This would, of course, be going too far. Probably the main feature of the decree consisted in enjoining the defendants from inducing (or from combining to induce) the Oxley Company's customers not to buy the barrels by threatening that the defendants would refuse to buy commodities packed in the barrels. The majority of the court were probably influenced by the idea that combination was in itself an unlawful method; and also by the idea, pp. 918, 921, that a "conspiracy to compel a manufacturer to abandon the use of a valuable invention " is one to accomplish an unlawful end. If the Coopers' Union

Suppose that unionists of a particular trade do not merely abstain from buying goods manufactured by non-union laborers of another trade, but also give notice to retail merchants that they will refuse to buy; and suppose that such notice is given with the intention of preventing retail merchants from purchasing these goods of the manufacturer, or with the intention of preventing the manufacturer from continuing to employ non-unionists. Can the giving of this notice be justified? Does not this present the same question as where unionists of one trade give notice that they will refuse to work for a man who employs non-unionists in another trade? That question was considered under Case 4, ante, and the ground taken was that such notice is unjustifiable as against the non-unionists.

Case 11. Defendant is a union carpenter, 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 lumber from B, who also sells lumber to X, an employer of non-union carpenters. Defendant threatens to quit working for A unless A ceases to buy lumber of B. Thereupon A ceases to buy lumber of B. B sues defendant.

In Case II the interest of the defendant is even more remote than in Case 8 or Case 9. The defendant has no fault to find with the manner in which B manufactures his lumber or with the source from which he obtains the material. B is not a competitor, or rival, or antagonist, or employer of the union workmen; yet they are attempting to restrict his liberty in the matter of disposing of his property to whomsoever he wishes. There is no valid justification, as against B.

This is much like one branch of the case of Temperton v. Russell.1

Temperton is a dealer in building materials. Myers is a builder who refuses to conform to labor union rules in the conduct of his business. The union requests Temperton to cease selling material to Myers. Temperton refuses this request. Thereupon the union. officials notify Brentano, another builder who is accustomed to buy materials of Temperton, that the union men will refuse to work upon any material purchased of Temperton. In consequence of this notice, Brentano ceases to purchase materials of Temperton, a result desired by the union.

alone had made the threats, they would seem to have a sufficient interest to justify their conduct.

1 [1893] 1 Q. B. 715.

Temperton sues the union officials for the loss of Brentano's custom. It is held that he can recover.1

"Have A and B, in the course of combined competition with C, the right to attack D, with whom they are not in direct competition, in order to effect the object of driving C out of the market? Will the object of competition, which has been held by the highest tribunal to justify combined injury to trader C, excuse an injury effected by combined action to trader D, who is not, as is trader C, in the position of a direct rival? "2

Here the unionists' only ground of complaint is because Temperton refused to be an instrument of vicarious attack on their part against Myers. If it is allowable for them to inflict damage upon Temperton for such a cause, they can next proceed to inflict similar damage on A because he refuses to cease dealing with Temperton, and then on B because he refuses to cease dealing with A, and so on to the end of the alphabet.

Whatever may be the dicta in Allen v. Flood, there is no inconsistency between the actual decision in that case and the result

1 For American authorities tending to sustain the result reached in Temperton v. Russell, and also tending to sustain the action in Case 12, post, see Loewe v. California, etc., Federation, 139 Fed. Rep. 71; Pickett v. Walsh, 78 N. E. Rep. 753 (Mass., 1906); March v. Bricklayers', etc., Union, 63 Atl. Rep. 291 (Conn., 1906); My Maryland Lodge v. Adt, 100 Md. 238; Beck v. Railway Teamsters, etc., 118 Mich. 497; Barr v. Essex Trades Council, 53 N. J. Eq. 101; Casey v. Cincinnati Typographical Union, 45 Fed. Rep. 135; Matthews v. Shankland, 56 N. Y. Supp. 123; Moores v. Bricklayers' Union, 23 Oh. Wkly. L. Bul. 48; State v. Glidden, 55 Conn. 76; Crump v. Com., 84 Va. 927. See also Purvis v. Local, etc., 214 Pa. St. 348.

The recent decision in Bender v. Local Union 118, 34 Wash. L. Rep. 574, is contrary to the above authorities.

In March v. Bricklayers' Union, supra, a union composed of bricklayers and plasterers voted to refuse to handle brick from any manufacturer delivering brick to boss masons employing non-union men. March, a manufacturer, sold brick to a boss mason employing non-union men. The union voted "to place damages of $100" against March. Afterwards March began delivering brick to a boss mason employing union men. The union demanded payment of the $100 under a threat that, unless payment was made, the men employed by the boss mason would refuse to handle the brick. Payment was made. It was held that March could recover back the payment; its exaction was an act of extortion in violation both of the Connecticut statute and of common law principles. Prentice, J., said, p. 293: "It is further said that the action of the defendants was justified in the exercise of the rights of fair trade competition. If it be assumed that these journeymen bricklayers and this brick manufacturer, whose business touched each other only in that the latter sold brick to persons for whom the former worked, are to be regarded as trade competitors, so that the recognized doctrines applicable to such competitors are applicable to them, it yet remains that the means resorted to in this case would not be permitted."

2 Chalmers-Hunt, Trade Unions, 100.

reached in Temperton v. Russell. Even if the workmen in Allen v. Flood had themselves given notice of their conditional intention to leave, the case against them would have been weaker than that against the defendant in Case II:

(a) Because there the defendants would be exerting pressure only upon persons for whose custom they were in competition with the plaintiffs, namely, upon their employers.

(b) Because the mode of pressure on their employers consisted solely in threatening certain action on their own part, without inducing action on the part of outsiders.

It has sometimes been asserted, or implied, that the decision in Temperton v. Russell (as well as the decision in Quinn v. Leathem), denies to the laborer a right which is allowed to the trader; that a method of warfare is there held inadmissible in labor conflicts which has been adjudged lawful in trade competition.1 The Mogul case is usually cited, and the Glasgow case probably will be cited, as a typical instance of methods of competition thus permitted to tradBut a careful comparison of the precise questions presented in the Mogul and Glasgow cases with those involved in the Temperton case will show that the objection is not well taken.

ers.

In the Mogul case 2 a number of ship owners formed a combination and offered specially favorable terms to shippers who would deal exclusively with vessels belonging to the combination. They offered local shippers a benefit by way of rebate if they would not deal with their rivals, the plaintiffs, but would deal exclusively with the combination. The rebate was to be forfeited if this condition was not fulfilled.3

4

In the Glasgow case a more drastic measure was adopted; not merely offering more favorable terms to a party if he would deal

1 See 8 HARV. L. REV. 7 and 8; Lord Dunedin's note in Report of Royal Commission, 19; Nat. Rev. for March, 1906, pp. 65, 66; see also Professor Lewis' comparison of the "labor boycott cases with the trade boycott cases," 44 Am. L. Reg. (N. s.) 491-492, and 498.

2 Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598; [1892] A. C. 25.

The combination also refused to continue to employ as) shipping agents persons who were also undertaking to act as shipping agents for their rivals. This refusal seems clearly justified on the grounds stated by Lord Watson and Lord Morris. The agents would be filling "an irreconcilable position in being agents for the two rivals ... See [1892] A. C. 43, 50; also Lord Dunedin's note in Report of Royal Commission, 19. Cf. Prof. Lewis, 44 Am. L. Reg. (N. S.) 498, 499.

4 Scottish Co-operative Wholesale Society, Ltd. v. Glasgow Fleshers' Trade Defense Association, 35 Scot. L. Rep. 645.

exclusively with defendants; but declining to deal at all, as to the business in hand, with a party who dealt, as to that business, with the defendants' competitors. American cattle were sold at only one place in Scotland; the sale there being by auction. Among the principal probable purchasers were on the one hand certain co-operative societies, and on the other hand an association of butchers who were competing with the co-operative societies in the retail sale of meat. The butchers notified the cattle salesmen that they would not buy at their auction sales, unless the salesmen declined to sell to the co-operative stores. The cattle salesmen yielded to this pressure, and intimated in their conditions of sale that they would not accept the bids of persons connected with the co-operative stores; the result being that the co-operative societies were cut out of the foreign meat market.

In both the Mogul and the Glasgow cases it was held that the methods of competition adopted did not give a cause of action.1

The pressure in the Temperton case goes beyond that in the Glasgow case, both as regards the number and character of the persons attempted to be influenced, and also as to the subjectmatter in respect to which the influence was exerted. In the Glasgow case the only party attempted to be influenced was the party carrying on the business in respect to which the plaintiffs and defendants were in competition. And the threat of refusing to deal with that party in case he should deal with the defendants' rivals was limited to the exact subject-matter of rivalry, to dealing in the precise thing concerning which the competition existed.

If the union workmen in the Temperton case had said to Myers, "We shall cease to work for you unless you cease to employ nonunionists," such a threat might have been justified on the analogy of the Glasgow case or the Mogul case. But instead of this, they in effect said to Brentano, "We shall cease to work for you, unless you cease dealing with Temperton, who sees fit (or, so long as he sees fit) to disregard our request that he will cease dealing with Myers."

In the Temperton case, instead of exerting pressure solely upon Myers, the party with whom the unionists are in controversy, the unionists exert pressure upon Brentano, either to induce Brentano to exert pressure upon Temperton for the purpose of inducing Temperton to take action damaging to Myers, or to induce