vent competition and create a monopoly of labor. A combination of capital, or labor, or as in this case of both, to prevent the free pursuit of any lawful business, trade, or occupation, is forbidden both by statute and the common law.

When read by the side of the prevailing opinion the protest seems ineffective indeed. There seems to be in the mind of the writer of this dissent a vague feeling that a closed shop is an injustice to the non-union workmen and to the employer as well, but the reasoning by which the view is supported certainly is not strong.

These are the leading cases that discuss the question squarely on its merits. Two others have resulted in long opinions, but they deal primarily with the right of unionists to strike for the purpose of securing a closed shop agreement. In O'Brien v. People, the company had refused to sign such a contract. The unionists had stopped work for the purpose of inducing thereby the employer to accept the agreement. This act is interpreted by the court as coercion.

There can be no doubt that any attempt to coerce [the employer] into signing said agreement by threats to order a strike was unlawful. It was violative of the clear legal right of the company, and was unjust and oppressive as to those who did not belong to the labor organizations.

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By the strike and its accompanying acts the unionists sought by threats, intimidation, and violence to prevent men and women from taking the places of the strikers." Further evidence of lawlessness led the court to view the entire matter as one of unlawful coercion.

The last case to be considered under this topic was also a strike, in this instance against an open shop policy that the employer proposed to adopt. (Reynolds v. Davis.) Two opinions were written, both reaching the same con

clusion but by different courses of reasoning. Judge Loring's argument has to do largely with the rights of unions as against non-union men. This general subject is treated elsewhere. Chief Justice Knowlton bases his conclusions on the ground that

the strike was for a closed shop in the sense that the shop should be closed arbitrarily to all workmen not members of the union, not because such workmen were personally objectionable in any particular, nor because there was not work enough for all the members of the union if non-union men were employed, but to compel all workmen to join the union for the purpose of creating a monopoly in the labor market, whereby to be able to contend successfully with employers whenever a controversy should arise. . . . A strike to compel a closed shop, merely to accomplish such a purpose, would not be justifiable on principles of competition, either as against non-union workmen or as against the employer, but would be unlawful.

The judical attitude, then, is not settled into agreement. Of course violence or intimidation will, if used by one party to secure agreement, free the other from the binding force of the contract. There is uniformity on that point worked out through other channels and applicable in all Coercion aside, there remains the uncertainty as to how the courts will view a contract of this kind. It may come within the right of the contracting parties so long as the agreement is entered upon voluntarily. It may, on the other hand, be viewed as a monopoly against which even the freedom of contract will not stand.

cases.

CHAPTER XI

UNIONISM-RIGHTS OF UNIONS

IN the foregoing pages have been considered the strike, the boycott, the picket and the blacklist, also the right of organization and certain policies directly connected with such right, as legislation and contracts intended to secure to the associations a more certain existence. There remain yet for consideration a variety of topics growing naturally out of these leading points of policy and very directly connected with them. Though the legal views on the points already considered may not seem so clear and unanimous as one might desire, yet compared with those that are to follow they are far more satisfactory.

The complex interrelations between the employer, the non-union employee, the unionist and the consumer, and the relation of the unionist to his employer and to his union offer a situation that has not yet been fully analyzed by our courts. Indeed many of the problems are so new that judges have expressed themselves with unusual caution.

The extracts that follow necessarily lack somewhat in consecutiveness, as each deals with a particular set of facts. Yet a reading of them will serve to reveal the attitude of the judges better than any attempted summary could do.

The problems that arise and concerning which the authorities are not in agreement are summed up by Judge Goode of Missouri as three in number.

The principal discrepancies among the authorities in cases like this are: (a) As to what means may lawfully be used

by a collection or order of workmen to cause the discharge of other workmen; but most courts hold the means must not pass beyond persuasion, and take on a coercive, violent, or punitive character. (b) Whether means which would be lawful if used by an individual become unlawful and amount to a conspiracy when used in combination. (c) Whether acts which might law fully be done simply to further the welfare of those who participate in them become unlawful when inspired by a malevolent design to injure obnoxious workmen. (Carter v. Oster.)

Judge Halloway of Montana (Lindsay v. Montana F. of L.) declares that "great diversity of opinion among the courts has arisen over a consideration of the question: what means may trade unions employ to further the objects of their organizations?"

Again the difficulty is dwelt upon by District Judge Sanborn, writing from the circuit court.

The right to strike being clear, the first question which comes up is, how far may the union and its members go to make the strike effective by preventing the employer from engaging other workmen, so that he will eventually be compelled to yield to the demands of the strikers? This is usually the pinch of the situation.

Finally, Judge Loring of Massachusetts, writing in 1906, admits his perplexity as follows:

In other words, we have to deal with one of the great and pressing questions growing out of the powerful combinations, sometimes of capital and sometimes of labor, which have been instituted in recent years where their actions come into conflict with the interests of individuals. The combination in the case at bar is a combination of workmen, and the conflict is between a labor union on the one hand and several unorganized laborers on the other hand.

It is only in recent years that these great and powerful combinations have made their appearance, and the limits to which they may go in enforcing their demands are far from being settled. (Picket v. Walsh.)

But statements setting forth the newness of the problems involved and the difficulty of settling them do not help the court materially, for a decision must be made and one that the court is willing to stand for. This has kept the courts within very narrow limits so far as expression of principles is concerned and has at the same time forced them back to fundamental propositions. Much depends, as will readily be seen, upon what principles are adopted as fundamental and what ones are deemed secondary. The views may be classed roughly as those favorable to the unions and those unfavorable. Of the first class are the following. Judge Sanborn, after making the statement that has just been quoted, declares the difficulty of the problem.

Here is the point where two equally clear and valuable constitutional rights come into opposition-the right of the workmen to get as much as possible for himself on the best terms, and the right of the employer to use his capital and ability as he pleases to secure whatever profit his investment and skill may bring. The legal right involved is single, but asserted by two independent and conflicting interests, and the question is, which one must yield his right to that of the other, so far as they conflict.

The general answer to this question is that neither must be permitted to maliciously injure the other without just cause or excuse. A more special answer is that so long as each, in the conflict between them, pursues only his own fair interest or advantage, and not the injury of the other, he is not liable for any injury which is merely incidental. . . . In other words, indirect interference by a labor union with the employer's business, not amounting to coercion, by preventing

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