But it is said that defendant maintains a blacklist containing a list of names of such persons as may have incurred its displeasure and have been discharged from its service, and that, by methods not known to them, it prevents such discharged persons from getting employment as telegraph operators; that they have blacklisted people solely because they belong to the union, and that they intend to blacklist others for the same thing, etc. We have seen it is not unlawful to discharge plaintiffs because they belong to the union. Is it unlawful for defendant to keep a book showing that they were discharged because they belonged to the union? The union presumably, and especially in view of the allegations in the bill, is an honorable, reputable, and useful organization, intended to better the conditions and elevate the character of its members. Is it illegal for defendant to keep a book showing that it had discharged members of such a union solely because they belong to it? That seems to be the real essence of the bill. Is it illegal to notify others that it keeps such a book and that they can inspect it, or to inform others what such a book shows? That seems to be the ground of complaint. There can be no question about it; the positive, direct, and unequivocal allegation is that defendant keeps such a book; that plaintiffs are placed on it solely because they belong to the union, and have been discharged solely because they did belong to the union. Can a court of equity grant relief to a man who says for his cause of action that he belongs to a reputable organization, and that he has been discharged solely because he did belong to it; that his employer who discharged him keeps a book on which is placed his name, and has set opposite thereto the fact that he discharged him solely because he belonged to such organization; and that he gives that information to other persons, who refuse to employ him on that account? Suppose man should file a bill alleging that he belonged to the Honorable and Ancient Order of Freemasons, or to the Presbyterian Church, or to the Grand Army of the Republic; that his employer had discharged him solely on that account; that he had discharged others of his

employees, and intended to discharge all of them, for the same reason; that he kept a book which contained all the names of such discharged persons, and set opposite the name of each discharged person the fact that he had been discharged solely on the ground that he belonged to such organization; and that he had given such information to others, who refused to employ such persons on that account. Is it possible a court of equity could grant relief? If so, pray, on what ground? And yet that is a perfectly parallel case to this as made by the bill. (Boyer v. Western Union.)

One of the most recent reported cases in which the principle of the blacklist is dealt with occurred in 1909. In this opinion Judge Henry, of Maryland, wrote:

It may be well to announce as a principle of law that any malicious interference with the business or occupation of another, if followed by damage, is an actionable wrong. Such interference may be by a single individual, or by a number of individuals conspiring together, but it is the damage which constitutes the gist of the action, and not the conspiracy; the latter being a matter of aggravation, if proven, as affecting the means and manner of redress. We find no Maryland case that goes to the extent of sustaining the position contended for by the appellant to the effect that the "blacklisting" of discharged employees by a combination of employers is in itself actionable, without proof of damage. . . . An employer, where no right of contract is involved, may lawfully discharge an employee at what time he pleases, and for what cause he chooses, while, on the other hand, an employee may sell his labor to whomsoever he desires, at such wages as he is willing to accept, and may quit such employment at his pleasure, yet neither has the right to interfere, without cause, with the business or occupation of the other. While the law does not furnish a shield against the effects of fair and honest competition, yet injury to the business of another, if accomplished by threats or coercion, constitutes a ground of action

for damages on the part of the person so injured. In furtherance of their common welfare and in settlement of their ofttimes conflicting interests, both employers and employees stand upon a plane of perfect equality before the law, enjoying the same freedom and amenable to the same restrictions. Both may combine in unions or associations, but such associations, like individuals, must employ lawful methods for the attainment of lawful purposes. This was not always so. . . . It is now clearly settled that the same law which permits the organization of employers, and interposes to protect manufacturers and merchants from the violence of "strikes," or the "intimidation of boycotts," is also vigilant to see that the right and opportunity to work, which is the most valuable asset of the laboring man, as well as the privilege of organization, shall not be unjustifiably interfered with by employers, acting either as individuals or in combinations. (Willner v.

Silverman.)

In Minnesota the question came up on the interpretation of a statute, entitled, "An act to prohibit the practice of black-listing and the coercing and influencing of employees by their employers." The contention was that the law infringed the right of the employer, a "natural right, under the constitution, state and federal, to give such advice and information as he desires with respect to his employees, whether they have been discharged for cause or without cause, or whether they have voluntarily left the employment." The opinion does not adopt such a view. An employee who voluntarily leaves his employment, says the opinion,

is entitled to the presumption that his reputation as an employee has been unharmed by the fact of his leaving. The fact that such an employee voluntarily abandons his employment does not give the employer a right to prejudice his employment elsewhere. Under such circumstances a communication designed to prevent such employment is presumably a

reflection upon the standing of the employee. . . . The act does not attempt to interfere with the right of an employer to discharge an employee for cause or without cause. It does not seek to prohibit an employer from communicating to other employers the nature and character of his employees, when the facts would be for their interests. While such in

terference by an employer is not expressly characterized as malicious, that intent is necessarily implied. It is the purpose of this law to protect employees in the enjoyment of those natural rights and privileges guaranteed them by the constitution, viz., the right to sell their labor and acquire property thereby. The act is valid. (State v. Justus.)

These views indicate that the question is both new and difficult for the courts so far as it concerns the particular application of general rules. Reasoned on the basis of general rights, the employer may discharge or refuse to employ for any reason or for no reason. The advantage here certainly lies with the employer. The charge of conspiracy cannot be raised with the same degree of success as it has been by employers. The numbers are not so great and conspiracy is more difficult to prove. The employers may act with an understanding much more easily than can the employees and consequently a more elaborate organization is not necessary. Blacklisting is not easy to establish as a legal fact. All of these considerations make it difficult to bring cases before the court and still more difficult to establish to the court's satisfaction that the rights of the employees are being infringed to an unlawful extent.

Legislation to prevent blacklisting has been enacted by several states. The court in the above cited case upheld the principle involved in the legislation. But laws of this kind are difficult to enforce for the reasons already stated. The act which is forbidden is not easy to detect nor to prove to the satisfaction of a court of law.

CHAPTER VIII

UNIONISM

In the preceding chapters the more characteristic methods of labor organizations have been treated. While the strike and the boycott are among the most generally known activities of these associations, they do not complete the list. There remains a large field within which their activities are of industrial importance. These activities are with increasing frequency brought before the courts. The result is that the number of opinions is large, the variety of problems dealt with complex and the conclusions reached not altogether in agreement. These varied problems may all be gathered together under the general heading, Unionism, though they include a great variety of topics.

First there is the fact of the union, the organization of laborers associated together for a common purpose and under definite rules and regulations. What is the attitude of courts toward unionism itself? The answer may be considered with reference to two quite distinct points: (1) the union, the fact of organization or combination; (2) the activities of the union, the policies it adopts and the means it uses to carry them into effect. The second of these two points may be subdivided into a number of special topics. They will be considered in turn in the chapters that follow.

How do courts regard the existence of associations of workmen? In a preceding chapter, the attitude during the first half of the nineteenth century has been described. This period closed with the influential opinion in the case of