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A complete list of publications sent on request THE LABOR LAW OF MARYLAND Series xxxvii No. 2 JOHNS HOPKINS UNIVERSITY STUDIES IN Historical and Political Science Under the Direction of the Departments of History, Political Economy, and Political Science THE LABOR LAW OF MARYLAND BY MALCOLM H. LAUCHHEIMER, PH.D. First Lieutenant, Judge Advocate, A. E. F. BALTIMORE THE JOHNS HOPKINS PRESS 19x9 Copyright 1919 by THE JOHNS HOPKINS PRESS PRESS OF THE NEW ERA PRINTING COMPANY LANCASTER. PA. 7^35" CONTENTS Pags PREFACE vii CHAPTER I. Introduction 9 The Problem of the Labor Law 9 Maryland Conditions '6 CHAPTER n. The Labor Union 19 The Law of Union Activities *9 Statutes Relating to Unionism 39 CHAPTER in. The Workmen's Compensation Law 46 History 46 The Present Law as Social Legislation 5 ^ The Constitutionality of the Law 7° CHAPTER IV. The Conditions of Employment 76 Regulation by Commission 77 Fire Protection ^* Protective Devices ^5 Sanitation 86 The Tenement Law 9° CHAPTER V. The Terms of Employment 94 Foreword 94 Prohibitions of EmplojTnent 96 Hours 100 Wages 104 CHAPTER VL Some Miscellaneous Laws "3 Licenses . .* ^ *3 Attachments and Liens "^ Child Welfare "7 State Employment ^^9 CHAPTER Vn. The Administrative System 122 State Board of Labor and Statistics '23 State Board of Health ^3S Minor Administrative Agencies '35 Suggestions for Reform '3° CHAPTER VIII. The State in Relation to Labor MS V N G9Gi30 INST. INBUS. KBL. PREFACE This monograph needs little preface. The method of study is local and intensive, but I have endeavored to draw some general conclusions from the specific subject-matter treated. The book, as its title implies, is neither a text book nor a reference book, though it may serve to a slight degree in the latter capacity, but a dissertation. I take this means of expressing my gratitude to Prof. W. W. Willoughby, who served as my inspiration and rendered me much assistance in the preparation of this monograph, and also to Prof. George E. Barnett and to Miss Anna Herkner, former Assistant-Chief of the Mary- land Bureau of Statistics. Various others to whom I am indebted are mentioned throughout the text. The monograph was completed towards the end of 1916 and, because of the author's participation in the war, it has been impossible to bring it up to date in many particulars. M. H. L. Til THE LABOR LAW OF MARYLAND CHAPTER I Introduction The Problem of the Labor Law. — The labor law of a state is a peculiar combination of unwritten and statute law. It differs from most law in that it is not merely an evolution of the customary law of a community, but is a definite attempt by the community to solve, now by the common law, now by statute, an acute social problem. It does to a degree reflect the customary morality of the com- munity, but this not unconsciously, as, for example, in the case of commercial law, but as a conscious adoption of an ethical principle for a political norm. A complete under- standing of labor law requires, therefore, not merely a delving into jurisprudence, but also into political the- ory. We must study, not merely the law itself, but the law as an expression of the relation of the state to its citi- zens; the labor law in truth is one of the most interesting media in which to study the extent to which the state can justify its interference in the private life of individuals. Accordingly, although this study will be primarily a critical analysis and description of actual laws in practical opera- tion, there will necessarily be in it an undercurrent of specu- lative political theory. The state, then, in its labor law sets out to solve a very definite social problem, the problem of industrial unrest, the problem of reconciling and placating labor and capital. The history of this activity of the state stretches back six or seven centuries, and the policy of the state has varied from complete aloofness to intimate intervention. 9 10 THE LABOR LAW OF MARYLAND [156 Logically and perhaps historically the first instrumental- ity made use of by the state in meeting the labor problem is the common law. This results, not from an active in- tent on the part of the state to solve any problem, but from a quiescent attitude towards an unimportant phenomenon. The common law is turned to before the labor problem assumes any special characteristics of its own, and the various cases are settled according to the general principles of the common law as laid down in cases between individ- uals who are in no special relation to each other. If, in the beginning, as is usually the case, no economic question obtrudes into the case, but the matter is one of pure law, the decision based on former precedents will work substan- tial justice. When, on the other hand, the relative economic position of the two parties is of importance, decisions based on pure law will not be adequate and will often entirely fail to settle the question at bar. When, as always hap- pens, the economic status of the parties does not merit attention until after the deciding of cases involving similar matters, but not calling into question the economic relation, it is practically impossible for the judges when the economic question is presented to them to disregard the precedents and to dispense economic justice and not justice according to law. Common law does, as is often said, progress and grow with the times, but more often legislation is necessary to make it entirely adequate. Thus the common law of negligence did not meet the requirements of industrial accidents, and employers' liability and compensation laws were the result. Thus the common law of individual bar- gaining and competition does not seem to meet the require- ments of collective bargaining, and legislation recognizing the validity of unionism is being demanded. A more serious inadequacy of the common law, how- ever, as a means of solving the labor problem arises from the inherent characteristic of that law as a system of juris- prudence. The common law is remedial, compensatory; labor conditions call for regulation, prohibition. The com- 157] INTRODUCTION II mon law seeks to relieve the sting of a wrong after it has been committed ; labor conditions necessitate regulations making impossible the commission of the wrong. A close scrutiny of the entire field of the common law will reveal no principles which could support such movements as the " safety first " and " living wage " propagandas. Even equity with its canons of preventive relief against irrepara- ble injuries does not furnish a proper foundation for the state control of labor conditions. Thus, though the state could and does depend to a great degree upon its unwritten law in solving the economic problem of labor and capital, it must and does every day more and more seek the answer in social legislation. But the first manifestations of state activity in the field of labor legislation were of an entirely different nature from what is now usually referred to as social legislation. These laws, of which the Statute of Laborers, passed after the Black Death, with its later variations and the Eliza- bethan Statute of Apprentices are the classical examples, were not based upon any economic principle of the welfare of the laborer, but, in so far as any general principle of economics was involved, upon a desire to keep low the cost of commodities. Rather, it may be said, these laws were secured by the dominant legislative class, the monied class, for its own immediate benefit. In this sense these laws, like most labor laws, were class legislation and nothing else. But there did develop under the name of mercantilism, of which these two laws were precursors, a theory of state activity which entirely neglected the interests of the work- ingman. Under this system the paternalistic state in its endeavor to develop itself through its commerce subordi- nated the laborer to the merchant and subjected him to minute control in many of the terms of his employment. It is, of course, true that the workingman whom this legis- lation affected had just emerged from the status of serf- dom and was a new and disturbing factor in the industrial life of the time. But so thorough was this repressive legis- 12 THE LABOR LAW OF MARYLAND [158 lation that the new, free laborer was hardly in a better position than the former villein. It was against this system that Adam Smith and Jeremy Bentham wrote; and as a result of their preachings there ensued the period of laissez-faire in the relation of the state to labor. At the climax of this individualistic philoso- phy the state retired almost completely from the regulation of economic affairs. Competition was relied upon to work the salvation of society. The individual laborer was made perfectly free to bargain for his own terms and to secure his own economic betterment. The state progressed through the progress of its individual citizens. The period of laissez-faire marked a real and substan- tial advance for the workingman, but it was short-lived. It was not any inherent fallacies in the theory which caused its modification — the philosophy of individualism has never been abandoned — but rather a change in the actual condi- tions to which the theory had to be applied. Contempora- neously with the growth of laissez-faire individualism OC' curred that stupendous advance in industrialism which is usually termed the Industrial Revolution. With the inven- tion of steam-driven machines and modern means of trans- portation the factory system of manufacture speedily took the place of the small shop system. A single employer began to employ hundreds and then thousands of laborers. The laborer, though legally and theoretically free to bar- gain with the employer for the terms of his employment, found himself practically at such a disadvantage that the employer could hire him almost on his own terms. The labor union was the workingman's answer to the factory system, but it has not yet proved adequate in itself. The state has, therefore, stepped in to guarantee to the laborer certain terms and conditions of employment which have been conceived to be reasonable and necessary. This is the present-day status of labor legislation. The doctrine of laissez-faire survives in so far as the state leaves to the common law and individual action all that / 159] I NTRODUCTION 1 3 these instrumentalities are capable of handling. Laissez- faire is abandoned in so far as the state, recognizing the inequality of the bargaining power of employer and em- ployee, regulates as seems best for the welfare of the state certain of the terms of the bargain. The state sacrifices theoretical individual liberty for what is considered a truer means of self-development. The state in its endeavor to offset this inequality of bargaining power has returned to some of the functions of the medieval paternalistic state; but those who wish to make the distinction between the former antagonistic and the present sympathetic attitude of the state to labor sometimes term the present state mater- nalistic rather than paternalistic in its regulations. To a certain degree this distinction is specious and more will be said of it in the final chapter of this study. It is sufficient to say here that the solution which has been attained in practical legislation is hardly a final remedy. In the United States there is, besides political theoriz- ing upon the relation of the state to labor, another funda- mental to be considered. Our written constitutions en- forced by powerful courts impose a legal limitation upon state activity as well as a philosophical limitation. While the state is quiescent the constitution is unobtrusive; but when the state functions in enacting laws the constitution exercises a tremendous restraint upon state action. The whole of state activity in the United States affecting the labor problem has been manifested within the last of the periods just discussed, that of laissez-faire ameliorated in favor of the laborer. All of this social legislation comes in conflict with the " equal protection of the laws " and the "due process of law" clauses of the Fourteenth Amend- ment of the federal constitution or similar provisions of the state constitutions. Both require brief discussion. The essentials of " equal protection of the laws " are eas- ily stated. Every citizen of a state is entitled to equal treat- ment by the laws of that jurisdiction and to all the privi- leges extended to any other citizen by the law. Reasonable 14 THE LABOR LAW OF MARYLAND [l6o classification, however, is permissible if exercised on ad- ministrative or any other justifiable grounds. Legislative classifications are prima facie reasonable. The "due process of law" clause is not so easily ex- plained. Historically it is traced back to the per legem terrae provision of Magna Charta, but as a substantive provision of law its development is recent. Strictly con- ceived this clause might have been construed as making perpetual the eighteenth century doctrines of laissez-faire and natural rights, and as limiting state activity to the nar- rowest bounds. The clause luckily never received so nar- rowing an interpretation, but was merely construed as allowing the courts to inquire whether property appropri- ated by legislation was taken for a legitimate state purpose. Early in their interpretation of this clause, especially with reference to social legislation, the courts evolved the police power of the state as an exception to the prohibition and through this exception the effect of the prohibition has been much curtailed. It is indeed more profitable to consider the cases dealing with labor legislation under the Fourteenth Amendment as limiting the extent of the police power than as defining due process of law, for the exercise of the police power is due process of law. Thus viewed, the explanation becomes more simple. It is still impossible to define and limit exactly the police power, but it is now possible to give rather succinctly the two extreme views to one of which most decisions adhere. There is, on the one hand, the strict legalistic view that the police power extends only to the protection of the health, safety and morals of the community ; that the state activity should be strictly defined ; that none but the most moderate of social legislation should be enacted. The Maryland Court of Appeals leans to this view, although it is not en- tirely constant in its principles. The other view is that the police power extends also to the furtherance of public con- venience. As put by Justice Holmes, "it may be said in a general way that the police power extends to all the great l6l] INTRODUCTION 1 5 public needs. It may be put forth in aid of what is sanc- tioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and imme- diately necessary to the public welfare."^ This is the view held by the Supreme Court and appears to exercise practi- cally no restraint on really seriously considered legislation.* Having these fundamentals in view, even as so inade- quately outlined in this chapter, the object and plan of this study may be made clear. The primary purpose has been to describe and analyze all of the law of Maryland in any way concerning labor. In order better to understand the law of Maryland, I have usually brought it into contrast or comparison with some conceived ideal borrowed some- times from purely theoretical sources, but more often from the law of other communities, generally of other States of the Union such as Massachusetts, New York and Wiscon- sin, but when necessary going to England and Continental Europe for suggestions. In fulfilling this primary purpose there must usually be some incidental consideration of the manner in which Maryland has met the problems which have just been outlined. This discussion of political theory will be kept strictly in the backgroimd until the last chap- ter, which will endeavor to lay down some constructive principles. The plan of the work has been to follow as ,closely as possible the logical development of state activity. No space has been allotted to the consideration of the law of the labor contract, since this law is merely an adaptation of ordinary contract law and contains no distinctive feat- ures. The study begins with the law of the labor union, which has been almost entirely left to the common law. Then follows a consideration of the law of workmen's com- pensation, which marks the only complete abandonment of any principles of the common law referring to labor. The three succeeding chapters deal with the new social legis- 1 Noble State Bank v. Haskell, 219 U. S. 104. 2 For a statement of the author's sympathy with this view, see his article, "Imminent Constitutional Shams," in the Forum, vol. 57. Jan. 1917, pp. 91-98. 1 6 THE LABOR LAW OF MARYLAND [l62 lation, demonstrating how far the laissez-faire theory has been abandoned; and the study ends with chapters on the administrative system and the relation of the state to labor. But before taking up the law itself it is necessary to set forth some uninteresting, but necessary, facts about Mary- land. Maryland Conditions. — As far as labor law is concerned Maryland will be found to be, if not a typical American State — for no State is typical when legislation is in question — at least a mean or average State. Its law displays none of the extremist characteristics of the experimentally in- clined Western and Middle Western States, nor does it lag with the Southern States in the wake of social legislation. It follows rather closely on the heels of New York and more remotely after the more radical Massachusetts. Con- sidering its geographical position Maryland, with its some- what backward labor law, may be judged rather leniently. The State is usually classed as one of the Southern States. Though the northernmost of these States and outside of the Confederacy in the Civil War, it was a slave State and had all the traditions of the aristocratic, non-industrial South. Moreover its southern neighbors, Virginia and West Vir- ginia, have the typical Southern labor law, perhaps suffi- cient for their needs, but by no means effective. On the other hand, Maryland has come to be in the class of indus- trial States and, in this respect, her competitors lie to the north rather than to the south. But, here also, the State is restrained rather than spurred on by its neighbors. Pennsylvania, which borders the whole northern boundary, has until recently been most delinquent in its labor law and many of the odious half measures in the Maryland law have been caused by the potential competition of Pennsyl- vania's industries. These excuses for the inferiority of the Maryland law call up an explanation of another cause of Maryland's backwardness. Like most Southern States, Maryland's party politics are at a low ebb. The State does not seem to have mastered the art of clean politics and 163] INTRODUCTION 1 7 it is dominated much more than is desirable by mediocre poHticians. Ahhough this condition does not perhaps ac- count for many statutory shortcomings, its effect is evi- dent in the administration of the law. Aside from these external facts, there are other practi- cal difficulties which must be mastered in solving by legis- lation the labor problem. The population of Maryland in 1910 was 1,295,346, about evenly divided between urban and rural. Of the urban population, however, 558,485 people are collected in Baltimore City, which is the only city of any size in the State. There are besides Baltimore three other cities of between ten and twenty-five thousand population and eleven other towns which are classified as urban. Baltimore is, therefore, practically the only large industrial center in the State and in it alone are found many of the social problems which are usually the occasion of legislation. Maryland, furthermore, is divided into two unequal parts by the Chesapeake Bay. The Eastern Shore, with a population of 200,161, is almost entirely rural and the only industry of any importance is canning, which for political as well as administrative reasons is almost unregu- lated. The Western Shore may again be divided into tw'O sections, the Western Shore proper and Western Maryland. In the first of these is Baltimore, w^hich practically domi- nates the industrial life of the section. Western Maryland lies in the Appalachians and centers around Cumberland, the second largest city in the State. Its chief industries are coal-mining and transportation. Western Maryland is a narrow strip of country, and it is chiefly here that the low standards of the Pennsylvania and West Virginia labor laws have to be guarded against. Geographical and eco- nomic sectionalism accounts for the great amount of local legislation on the Maryland statute books and to some ex- tent for the lack of coordination in the administrative system. In 1910 there were employed in gainful occupations a 1 8 THE LABOR LAW OF MARYLAND [164 total of 541,164 persons, of whom 410,884 were male and 130,280 were female, comprising, respectively, 81 per cent and 25 per cent of the total population of each sex above the age of ten years. Their occupational distribution was as follows: Occupation Number Per Cent Agriculture 171,100 21.6 Manufacture 172,155 31.8 Domestic and personal service 78,820 14.6 Trade 61,646 11.4 Transportation ^^,77^ 7.9 Clerical 28,871 5.3 Professional 23,474 4.3 Public service 8,954 1.7 Mining 7,368 1.4 CHAPTER II The Labor Union The Law of Union Activities. — Historically the law of labor union activities was the first evolved by the state; evolved, not enacted, for most of it is judge-made law. Logically considered, also, the law of union activities must be accorded first place; for, granted that the labor union receives favorable treatment from the state, it seems easy to demonstrate that hardly any other state activity is neces- sary. The Maryland labor law of the present day is based on and grew from the eafly English law, and hence some slight treatment of that law is necessary. The beginnings of the English law, however, are somewhat surrounded in mys- tery. It seems that the earliest activities of the union were branded as criminal conspiracy at the common law, though it is by no means certain that the ofifense of criminal con- spiracy was not the creation of a statute. Be this as it may, before labor unions as such came into prominence statutes were passed early in the eighteenth century forbidding com- binations of laborers for the raising of wages and other purposes and making such combinations criminal conspira- cies. These statutes grew in severity and comprehensive- ness until the beginning of the nineteenth century. There- after the law became more liberal. The cause of this change was the union itself. Utterly unsanctioned and potentially oppressed in its most beneficial activities by the law, it nev- ertheless continued to exist. It was not a casual phenome- non: it was an economic growth, necessary to and justified by industrial conditions. Slowly and often surreptitiously it grew, but grow it did until, in the atmosphere of greater political liberty, it made itself felt in legislative halls. In 19 20 THE LABOR LAW OF MARYLAND [l66 1875 the ban of criminal conspiracy was lifted and finally, in 1906, the union was granted a most enviable place in English law.^ Maryland in 1776 adopted, with the other twelve States, the English law of union activities in so far as it was con- sonant with American ideas and ideals. This law was the harsh, antagonistic law of the eighteenth century hardly modified at all in the adoption. Thus, in an early case, the Maryland Court of Appeals sums up the law of criminal conspiracy: "An indictment will lie at common law — (i) for a conspiracy to do an act not illegal, nor punishable if done by an individual, but immoral only; (2) for a con- spiracy to do an act neither illegal nor immoral in an indi- vidual, but to effect a purpose which has a tendency to prejudice the public — for a conspiracy (by two or more) to raise their wages, either of whom might legally have done so; (3) for a conspiracy to extort money from an- other, or to injure his reputation by means not indictable if practised by an individual, as by verbal defamation ; (4) for a conspiracy to cheat and defraud a third person, ac- complished by means of an act which would not in law amount to an indictable cheat if effected by an individual ; (5) for a malicious conspiracy to impoverish or ruin a third person in his trade or profession; (6) for a conspiracy to defraud a third person by means of an act not per se un- lawful and though no person be thereby injured; (7) for a bare conspiracy to cheat or defraud a third person, though the means of effecting it should not be determined on at the time."- It is obvious that, either under the third clause declaring indictable a conspiracy to raise wages or under the fifth referring to a conspiracy "to impoverish or ruin a third person in his trade or profession," a labor union would almost surely have found itself running counter to the law. In fact, if the union were merely formed for one 1 For a complete discussion of the early law of conspiracy as applied to labor unions, see J. W. Bryan, English Law of Conspiracy. 2 State V. Buchanan, 5 H. & J. 317 (1821). 167] THE LABOR UNION 21 of these purposes — and it must be remembered that these prohibitions against conspiracy referred to the indirect effects as well as to the direct purposes of the union — it would be absolutely barred ; for, in the same case, the court declared : " A conspiracy is a substantive offence and pun- ishable at common law, though nothing be done in execu- tion of it." It seems, indeed, that this decision was entirely efficient, for no cases concerning trade unions came before the Appeal Court under this decision. But it must not be imagined that merely because no cases against unions came before the court there were no unions. The decision was efficient and complete, but hardly effective. As in England, trade unions seem to have flourished even under the shadow of the law and to have carried on trade disputes, perhaps not legally, but extra-legally. It was probably because of the growing strength of the unions, especially as political institutions, that the legisla- ture of 1884 was compelled to recognize their existence. In that year two bills were enacted legalizing labor unions. The first declared that an act of a combination formed in " furtherance of a trade dispute between employers and workmen shall not be indictable as a conspiracy, if such act committed by one person would not be punishable as an offense (nothing in this section shall affect the law relat- ing to riot, unlawful assembly, breach of peace, or any offense against any person or against property)."^ The second was an addition to the incorporation acts, permit- ting the incorporation of trade unions " to promote the well-being of their every day life, and for mutual assistance in securing the most favorable conditions for the labor of their members."* In this year, then, we can say, the labor union entered the realm of law in Maryland. In this year, also, the law concerning unionism took a different turn. Prior to this the unions had been subject to the law of 3 Laws 1884, Ch. 266; Code 1914, Art. 2^, Sec. 40. *Laws 1884, Ch. 267; Code 1904, Art. 23, Sec. 41. Incorporation since 1908 takes place under the general law of incorporation, Laws 1908, Ch. 240, Sees. 2-5; Code 1911, Art. 23, Sees. 2-5. 22 THE LABOR LAW OF MARYLAND [l68 criminal conspiracy; after these acts the employers were able to combat the unions in court merely by civil suits or injunctions. Prior to this year, moreover, no cases involv- ing unionism came before the Court of Appeals, so that the Maryland law, in contradistinction to the English law, has practically nothing to do with criminal conspiracy. The salient principle in the Maryland law of labor unions — and indeed in all American law on this subject — is the right of the individual to his own property and, what is practically identical in law, the right to freedom of contract. There has also been evolved another right, sometimes con- sidered a property right, the right to carry on one's busi- ness or to work at one's trade free from outside interfer- ence. This right is indeed a recent creation of the courts, and, to a certain degree, an unfortunate creation. It is broader than the right of personal freedom and was, there- fore, useful in ruling against some of the first harsh, but elusive, activities of the union; but there are two sides to this right and the unions soon came to assert it on their side. There are in every conflict between union and em- ployer two conflicting rights. A strike is called for an in- crease in wages or for shorter hours, what the employees conceive to be their rights ; the employer forthwith asserts that his freedom of contract is being abridged. A labor union stipulates that its men shall work only in a " closed shop," and the discharged non-union man sues for a viola- tion of his right to work as he will. To generalize briefly in advance, we shall find in considering strikes, boycotts, closed shops — in short, all of the means by which a union makes its demands effective — that "honest effort to better the conditions of employment by the members of a labor union is lawful,"^ though it may incidentally interfere with the right of an individual to work on such terms as he may see fit. If, however, the aim of the union is wilful inter- ference with the individual, though the union may thereby be indirectly benefited, the union is operating contrary to 5 Minasian v. Osborne, 210 Mass. 250, 96 N. E. 1036 (1912). 169] THE LABOR UNION 2$ the law. Let us first, however, consider in some detail the law relating to the various activities of the unions. "The right to organize and to utilize their organization by instituting a strike is an exercise of the common law right of every man to pursue his calling, whether of labor or business, as he in his judgment sees fit."*^ A strike per se is not unlawful ; it is the purpose'' or the means® which renders it unlawful. " The law does not permit either em- ployer or employee to use force, violence, threats of force or threats of violence, intimidation or coercion,"^ so that it may be said now and for all that force is unlawful ; and, for the sake of brevity, the consideration of violence may be dismissed from the following discussion. The leading Maryland case on labor organizations is the case of My Maryland Lodge v. Adt,^*^ and it will be best to quote first from that part of the decision relating to strikes. " Employees have a perfect right," says the court, " both as individuals and in combination, to fix a price upon their labor, and to refuse to work unless that price is ob- tained. They may organize to improve their condition and to secure better wages. They may even use persuasion to have others join their organization. They have an unques- tionable right to present their cause to the public in news- papers or circulars in a peaceable way, but with no attempt at coercion. If ruin to the employer results from their peaceable assertion of these rights, it is a damage without remedy." Laborers, therefore, may strike for an increase of wages, for shorter hours, for better working conditions, for specified methods of employment or of pay.^^ They « Martin, Modern Law of Labor Unions, p. 36. 7 Reynolds v. Davis, 198 Mass. 294, 84 N. E. 457. 8 My Maryland Lodge v. Adt, 100 Md. 283, 68 L. R. A. 152. e Ibid. " Ibid. 11 It has even been held in a federal court (Delaware, L. & W. R. R. Co. vs. Switchmen's Union, 158 Fed. 541) that workmen may strike for such purposes even though it be in violation of their service contract. What the court' very probably meant was that these strikers could not be enjoined; they are clearly liable for damages. 24 THE LABOR LAW OF MARYLAND [l?© may, it has been held, even seek the aid of their fellow workers in another establishment to join with them in a sympathetic strike if the employer is striving to circumvent the efforts of the strikers by having his work done in brother employers' shops/- But this case, although well considered and precise, must be confined to the exact point involved; for a sympathetic strike, like a secondary boycott, usually brings into the contest an uninterested third person who, if injured, usually has a cause of action against the union. Where there is such a community of interest as in this case, however, a sympathetic strike is not actionable. Another danger which must be avoided by the sympathetic strike as well as by all other union activities is the possibility that the union may be running counter to the contract liabilities of a third party, for " a man who induces one of two par- ties to a contract to break it, intending thereby to injure the other or obtain a benefit for himself, does the other an actionable wrong."^^ This is a fundamental rule of con- tract law and has no special application to the law of the labor union : it is mentioned here merely because of the num- ber of times the union has felt its force/* The foregoing conclusions that a strike is a legal instru- ment of the labor tmion apply only when the disputes ars strictly limited to the two parties concerned, the strikers and their employer ; when a third party suffers injury, as was intimated in discussing the sympathetic strike, the strike stands in less favor with the courts. Unfortunately it is a rare strike which does not directly or indirectly affect some third person. The cause of this can readily be seen if we consider the problem from the point of view of the unions. The strike cannot be effective if the employer is able to fill easily the places of the strikers with non-union 12 Iron Moulders' Union v. Allis-Chambers Co., i66 Fed. 45 ; 20 L. R. A. (N. S.) 315. 13 Gore V. Condon, 87 Md. 368, 376. 1* A few of these cases only are here cited : Garst v. Charles, 187 Mass. 144; Folsom v. Lewis, 208 Mass. 336; Iron Moulders' Union V. Allis-Chambers Co., 166 Fed. 45. I/l] THE LABOR UNION 2$ men. The unions strive to prevent this by picketing and by making the union monopoHstic as to that particular class of workmen. Again, the strike will not attain the maximum efficiency if the standard which is obtained by the union is continually undermined by the cut-throat competition of non-union men in the same shop. The unions fight against this evil with the instrument of the closed shop. Again, the strike will often fail entirely if other employers or dealers trade in their normal manner with the tabooed employer. To offset this, the union has evolved the boycott, or more correctly in the technical economic phrase, the secondary boycott. But, before considering any of these more ad- vanced forms of union activity, it will be first necessary to consider one more form of strike, a rather more advanced and more involved form of this particular activity which might be called a cross between the strike and the closed shop. It is a strike, not to procure an immediate advantage, as, for example, a raise of wages, but to strengthen the union by dictating to the employer certain terms of employ- ment for all men in his shop. A Maryland case will illus- trate. In Lucke v. Clothing Cutters' Assembly^^ the appellant, a non-union man, had had permanent employment termin- able at will with the New York Clothing House. He was objected to by the appellee, who notified the clothing house that they objected to working with non-union men. Lucke applied for membership in the union ; but, because of the lack of employment among its then members, the appellee refused him membership. Later the union sent notice to the employer that, if Lucke were not discharged, it would notify through its official organ all labor organizations of the city that "the house was a non-union one." Feeling that it was threatened with a boycott, though during the trial the union denied that this was its intention, the New York Clothing House discharged the appellant, who later ^^yy Md. 396; 19 L. R. A. 408 (1893). 26 THE LABOR LAW OF MARYLAND [172 brought suit against the union for damages. The court held that Lucke was entitled to damages since the union had in- terfered with his right of property and freedom of contract. This interference may have indirectly benefited the union, but it wilfully and directly injured the individual in one of his fundamental rights ; and the court said : " It is not necessary that such interference [of the union with a laboring man's privilege of seeking an honest liveli- hood] should have been malicious in its character. ... In this case we think the interference of the appellee was in law malicious and unquestionably wrongful . . . and, by so doing, it [the appellee] has invaded legal rights of the ap- pellant for which an action properly lies. "When the state granted its generous sanction to the formation of corporations of the character of the appellee (Code 1904, Art. 23, Sec. 37) it certainly did not mean that such promotion (of the well-being of their every day life and for mutual assistance in securing the most favor- able conditions for the labor of their members) was to be secured by making war upon the non-union laboring man, or by any legal interference with his rights and privileges. The powers with which this class of corporations are clothed are of a peculiar character, and should be used with prudence, moderation and wisdom, so that labor in its or- ganized form shall not become an instrument of wrong and injustice to those who, in the same avenue of life, and some- times under less favorable circumstances, are striving to provide the means by which they can maintain themselves and their famihes." To understand more thoroughly the significance of this case let us look at one apparently opposed to it, that of Pickett V. Walsh," in which was held legal a strike to en- force an agreement between a bricklayers' union and a con- tractor, by which the union agreed to work for the contrac- tor if he would employ its members to perform some tasks 16 192 Mass. 572; 78 N. E. 753; 6 L. R. A. (N. S.) 1067 (1907). 173] '^^^ LABOR UNION 2/ closely allied to, but less skilled than bricklaying. The court differentiated between these two cases on the ground that the strike in the latter case was on a matter directly concerning the two parties to it, the strikers and the em- ployers, and that the laborers were striving directly to im- prove their own conditions. This distinction seems to have been generally followed," but in discussing this question some of the finest legal reasoning has been used. The tendency seems to be to find a community of interest among the strikers and between them and their brother unionists who are not actively engaged in the strike, but for whose benefit the strike is declared, and, on the whole, the trend seems to be towards holding legal strikes aimed at securing these competitive advantages for union laborers. The dis- tinction, however, is still good between mediate and imme- diate quarrels and will certainly be used in hard cases where justice seems to demand it.^® If the tendency has been towards increasing the rights and powers of trade unions in securing the privileged em- ployment of its own members, the absolute contrary has been true with respect to the legality of picketing. Labor unions, in fact, have suffered to a great degree because of of injunctions restraining them from posting members on the environs of the place of strike to persuade strike- breakers not to take employment in the hostile shop and to obtain information as to the employer's activities. Pick- eting, it is true, was far from being such a milk-and-water affair twenty-five years ago as it is now ; it was in this ac- tivity, perhaps, that the trade unions showed their ugliest side and incurred the ill-will of the public. This popular estimate seems to have been reflected to a great degree in the courts, which, beginning by merely discountenancing picketing that was contrary to public order, have come to 1' E. g., National Fireproofing Co. v. Mason Builders' Ass'n, 169 Fed. 256, 26 L. R. A. (N. S.) 148; and Meur v. Speer, 32 L. R. A. (N. S.) 792 (Ark.). 18 For a fuller discussion see note in 6 L. R. A. (N. S.) 1067. 28 THE LABOR LAW OF MARYLAND ['74 look Upon almost all picketing as enjoinable, if not abso- lutely criminal. A general declaration of the law was given in the case of My Maryland Lodge v. Adt:^** "They (the union laborers) may even use persuasion to have others join their organiza- tion.^^ They have an unquestionable right to present their cause to the public in newspapers or circulars in a peace- able way. , . . But the law does not permit either employer or employee to use force, violence, threats of force or threats of violence, intimidation or coercion." The trouble- some question has been, what is intimidation and coercion? Thus mere argument, where the odds were four or five to one in favor of the arguers, has been said to constitute un- lawful intimidation. 2^ Peaceful picketing, which inci- dentally interfered with customers patronizing the picketed shop, has been enjoined.-^ A fair statement of the law is contained in the following : " The very fact of establishing a picket line is evidence of an intention to annoy, embar- rass and intimidate, whether physical violence is resorted to or not. There have been a few cases where it was held that picketing by a labor union is not unnecessarily unlaw- ful if the pickets are peaceful and well behaved ; but, if the watching and besetting of the workmen is carried to such a length as to constitute an annoyance to them or their em- ployed, it becomes unlawful. ... To picket . . . was in itself an act of intimidation and an unwarrantable interfer- ence with the employer's rights." Even if pickets are not guilty of intimidation, " the complainants are entitled to pro- tection."^^ The Maryland law would seem to go quite as far as this Illinois case, for, in spite of the rather liberal language just quoted from the Adt case, the court in that 19 loo Md. 283 ; 68 L. R. A. 752- 20 See, however, Hitchman Coal & Coke Co. v. Mitchell et al., 38 Sup. Ct. 65 (1917). 21 Allis-Chambers Co. v. Iron Moulders' Union, 150 Fed. 155. 22 Foster v. Retail Clerks' Intern'tl Protective Ass'n, 78 N. Y. S. 860. 23 Barnes v. Chicago Typographical Union, 232 111. 421 ; 14 L. R. A. (N. S.) 1018. 1/5] THE LABOR UNION 29 case upheld an injunction which practically forbade all picketing, even for purposes of information only. It would then seem that picketing has been in law practically plucked of its stings : picketing can perhaps be safely used only as a means of procuring information. This would indeed be a hard blow at unionism if it were not for the fact that an employer will not usually combat in the courts peaceful picketing unless it is used in conjunction with an unlawful strike or boycott. As a practical matter it may then be said that peaceful picketing as an adjunct of any other lawful activity of a union is not likely to lead to any action at law. If used in its really civilized form this most powerful weapon of struggling unionism may be still of avail in in- dustrial disputes. Thus far we have been considering the union mainly as a body of workingmen ; it has another aspect, that of a body of consumers ; and it is upon this quality of its mem- bership that the union relies in the activity usually known by the name of the boycott. In its conflict with the em- ployer the boycott is a frequent weapon of the union. In itself, as will be seen, it is not a very efficient weapon ; but in conjunction with the strike, with which indeed it is gen- erally used, it often enables the union to achieve what an unaided strike might not have attained. There are two de- grees of the boycott, primary and secondary ; but the courts do not seem to observe the distinction, some including the two classes under one head, others limiting the two classes at entirely different points, and a great number having ref- erence to the second class alone when they speak of the boy- cott. The primary boycott is the act of a combination of individuals who agree among themselves not to patronize a certain dealer. The secondary boycott is the act of a com- bination which tries to economically outlaw a certain dealer by intimidating third parties, either by strike or boycott, to prevent them from patronizing this dealer. Assuming the object of the boycott to be legal, the primary boycott is gen- 30 THE LABOR LAW OF MARYLAND [176 erally a legal activity of the union, whereas the secondary boycott is quite as generally deemed illegal. In Maryland we have a leading case on this subject, and it may be well to consider it specifically. The case, My Maryland Lodge v. Adt,^* is one of secondary boycott, but the court laid down some additional law of utmost impor- tance. Adt, upon refusing an increase in wages, had been struck against. Further, the union sent circulars to the brewers who were in the habit of contracting with Adt for machinery asking them to boycott Adt on the ground that he no longer had a union shop. Upon failure of the brew- ers to meet this request, the union circulated "unfair" broadsides against them; and in self defense the brewers were compelled to withdraw their patronage from Adt, whose business was thereby practically ruined. On these facts the Court of Appeals upheld an injunction against the union, and declared such methods of warfare manifestly unfair and actionable. The court in this case merely held illegal the secondary boycott; but some of its language is so loose that it may be possible to interpret it as declaring all boycotts illegal, especially as the court makes no dis- tinction between the two classes of boycott. It is submit- ted, however, that if the court was referring to the primary boycott per se, its stand is hardly justified. The distinction, indeed, between the two classes of boy- cott has, as was intimated, been sustained by the great weight of authority.'^^ An individual has a right to bestow his patronage where he wishes; and the mere fact that he combines with others in carrying out his purpose does not make the act prima facie actionable. To make it illegal there must be in the object or means of the primary boy- cott some malicious purpose, as the injury of another with- out any direct benefit to those engaged in the boycott. The 24 100 Md. 238; 56 Atl. 721 ; 68 L. R. A. 752 (1905). 25 See American Federation of Labor v. Buck's Stove & Range Co., 33 App. D. C. 83; 32 L. R. A. (N. S.) 748; and note on this case in L. R. A. 177] THE LABOR UNION 3 1 primary boycott being in itself lawful, any publication in furtherance thereof, if that is the purpose of the publi- cation and no intimidation or coercion is intended, would also be lawful ;^^ but here again, as in the question of pick- eting, the courts are prone to see intimidation in any pub- lication, with the result that the unions must be most care- ful in their use of legally recognized weapons. If, then, it is dangerous to publish unfair lists in primary boycotts, it is of course an absolute infringement upon the rights of another to publish such a list in pursuance of a secondary boycott. It is needless and would be indeed useless to enter here into a detailed investigation of what has been held illegal boycott. The rule seems to be that if a third party has been drawn into the controversy between the two contend- ing factions, then the boycott is a secondary boycott and he against whom it is being prosecuted may recover for his damages.^'' This, although it seems to be well-settled law, involves an inconsistency. Take, for example, the Adt case : employees strike for increase of wages and in pursuance of that strike for a perfectly lawful purpose institute a boy- cott against the employer. In the Adt case there was some question as to the legality of the means used to enforce the boycott, but that does not seem to have influenced the de- cision. Then, granting the legality of the strike, why should it be illegal to enlist the sympathies of third persons who deal with the employer? If these third persons are injured, 26 See note in 32 L. R. A. (N. S.) 1017; and cases cited there, mostly New York cases. 27 Thus it has been held that " a combination of employees to compel their employers, by threats of quitting and by actually quit- ting their service, to withdraw from a mutually profitable relation with a third person having no effect on the character or reward of the employees' services, for the purpose of injuring such third per- son, is a boycott and an unlawful conspiracy." (Thomas v. Cinn. etc. Ry. Co., 62 Fed. 803) ; and that it was illegal for a union to boycott an employer of non-union labor by refusing to work for another employer who furnished him with supplies. [Burnham v. Dowd, 104 N. E. 841 (Mass.).] There are innumerable cases on this subject, generally decided on a question of fact. 32 THE LABOR LAW OF MARYLAND [178 are coerced into the boycott, they have their redress in the courts against the union. But why should the employer be entitled to plead in a controversy between himself and the union the injury of these third parties, who themselves do not complain? The employer, it is true, is injured, but he is injured in the course of fair competition between himself and the union, and it is damnum absque injuria. If we grant that a strike legally pursued is justified to raise wages, a boycott for the same purpose, as long as no third person complains, would seem equally justifiable, and the employer should not be heard to voice a third party's injury in pro- tection of himself. Perhaps the real explanation of the courts' antagonism to the boycott is to be found in their fear of its potentiali- ties — for it is one of the most efficient weapons of the union. But if this explanation is true, the courts are certainly guilty of a wrongful invasion of the legislative dom.ain and the explanation is merely a confession of this. Closely connected with the boycott and apparently a much more effective means of enforcing the boycott is the fre- quently occurring rule of a labor union forbidding its mem- bers to handle non-union material, that is, material pre- pared by non-union men. It has been held that the union may under conditions issue such a rule. Where the object of a labor union or the purpose of its action under this rule is principally to injure another or his property, the agree- ment forming the union is unlawful ; but where the pur- pose is only to advance the interests of the members 6f the union the union is not illegal and such rules may legally be enforced. ^^ Here, again, the distinction crops up be- tween the " mutual advantage " of the laborers and the malicious injury of another. "So long as the motive [of the rule] is not malicious, the object not unlawful nor op- pressive, and the means neither deceitful nor fraudulent, 28 Bossert v. Brotherhood of Carpenters and Joiners of America, 137 N. Y. 321; Gill Engraving Co. v. Doerr, 214 Fed. iii. 179] "^^^ LABOR UNION 33 the result is not a [illegal] conspiracy, although it may necessarily work injury to other persons, "^° The distinction between this rule and the boycott is not easy to perceive at first blush. The courts have distin- guished it upon the ground that the rule was laid down before any difference arose between the employer and the union, and that hence it might impliedly have entered into the service contract. Moreover, as stated above, the courts have recognized the direct interests of the laborers in the rule ; and, finally, the quarrels have been directly between the employer and the union, the boycotted dealer did not enter into the consideration. This method of boycotting is naturally only applicable in well-organized trades with a stable membership, and the older and more stable unions have to a great extent made use of it. It would seem one of the most effective instruments that the unions can use ; for, not being tainted with the ancient obloquy of trade unions, the courts have been more liberal in their attitude toward it. Precisely corresponding to the boycott, but issuing from the other party to the controversy, is the blackhst. It is a weapon that employers have been fond of using against the strike. As such it would seem to have generally been held legal. That is, if the employer of the shop which is the object of the strike should distribute to his brother employ- ers, who are associated with him in trade agreements, a list of his striking employees with the intention that these other employers should refuse the strikers employment in their shops, the courts would almost certainly hold such a blacklist lawful. But it is practically impossible to be abso- lutely certain how far the courts will go in holding any blacklist lawful. They are here confronted with the same conflict that has been evident in all the law of union activi- ties, the conflict of the right of the employers to carry on their business as they see fit and the right of the employees 29 National FireproofinR Co, v. Mason Builders' Ass'n. 169 Fed. 256, 26 L. R. A, (N. S.) 148, 34 THE LABOR LAW OF MARYLAND [l8o to the free use of their laboring powers. As was said in a recent Maryland case, "neither [the employer nor em- ployee] has the right to interfere, without cause, with the business or occupation of the other."^° And the courts, it would seem, are more opposed to the combination mani- festing itself in the blacklist than they are to the combina- tions of laborers against laborer. We have seen in our con- sideration of strikes directed against the non-union work- ingman, how eager the courts are to protect the laborer against the combination, but they have been somewhat re- strained by the fact that the two competitors are in the same economic position. The blacklist, however, represents a combination of economically strong employers functioning to deprive a workman of his only means of livelihood. It is natural that the courts should be more prone to condemn the blacklist than a combination of workingmen. The blacklist, nevertheless, does not always offend the courts. As a counter-weapon to the strike, as has been said, the blacklist is a proper thing. On the other hand, if the list circulated among the employers is tinged with slan- der, the workingman has naturally a clear right of action against the employers. In between these two extremes, it is often difficult to classify a blacklist. " Any malicious in- terference with the business or occupation," as our Court of Appeals has said, " if followed by damage, is an action- able wrong."^^ This is a safe enough guide where actual malice, or malice in fact, is evident in the case, as it was in our Maryland case ; but the concept of malice in law, though often used by the courts in their reasoning in black- listing cases, is no longer of much practical use because of its extreme elasticity. It would, perhaps, be sufficiently correct to say that when a blacklist is used against striking employees or to gain a legitimate interest of the employ- ers, it is legal, but when it is used merely as a disciplinary 30 Willner v. Silverman, 109 Md. 341 ; 71 Atl. 063 ; 24 L. R. A. (N. S.) 895 (1910). 31 Ibid. l8l] THE LABOR UNION 35 measure against an employee and to attain no advantage for the employer, it is an actionable tort against the indi- vidual workingman. That, at least, is the Maryland law. This careful regard of the courts for the welfare of the individual is not directed strictly towards the unions, and is, therefore, perhaps not appropriate in this place ; but so intimately is the blacklist related as a counter measure to the strike and boycott that the unions have really been much strengthened by this judicial curtailment of the em- ployer's powers. It seems, in most cases, that the decrees of the courts have been adequate enough for the protection of the laborers, but the public has not been — or, perhaps, it is more correct to say, the unions have not been — suf- ficiently satisfied with this judicial protection; and in many states laws have been passed prohibiting employers from circulating blacklists. Innocent information is not prohib- ited, so that these statutes have uniformly been held con- stitutional. Maryland has no such statute, but from the tendencies of the court in the case of Willner v. Silver- man^^ such a statute if it could be made effective would seem desirable, especially from the union standpoint. At the possible risk of digression, I want to call attention here to perhaps the greatest encouragement that has yet been extended to unionism by legal enactment. With no special reference at present to Maryland law, it is yet in- dicative of a tendency in the law which may at some future time be realized. There have been several state statutes and one federal statute relating to interstate commerce which have declared criminally illegal the discharge or threatened discharge of employees because of membership in any labor organization. Practically all of these statutes have been held unconstitutional as depriving the employer of the right of contract without due process of law ; but in the Supreme Court^^ three forcible dissenting opinions 82 Ibid. 33 Adair v. U. S., 208 U. S. 161 ; 52 L. ed. 436; and see note in this edition on State cases ; Coppage v. Kansas, 236 U. S. i ; 59 L. ed. 441. 36 THE LABOR LAW OF MARYLAND [182 were filed against this position, the one by Justice Holmes in the earlier case in particular being most suggestive of future modifications of the severity of the doctrine under- lying the majority opinion. The closed shop contract is the highest attainment of trade unionism. It is still a method, a means to an end, but it smacks more of the ultimate desideratum than do any of the other activities of the unions. Once the closed shop is attained in an industry, collective bargaining has achieved its most valuable guarantee; and collective bar- gaining is a primary goal of unionism. Unions, according to their advocates and publicists, are striving, not for the elevation of the workingman above his rightful economic condition, but for the absolute equality of the laborer with the capitalist and the landlord as a claimant in distribution. All the phenomena of unionism which we have considered are indications of this ambition — the strike and boycott, the weapons of the militant, struggling union ; the agreement against non-union material, a defense of the victorious union; and the closed shop, the security of the old and firmly established union. It is therefore obvious that the law of the closed shop agreement — more often an agree- ment than a formal contract — will be somewhat different from that of the other methods of unionism. Yet, in study- ing the agreement against non-union materials and the strike against the non-union workingman, a foundation has been laid down. The law seems to be that an agreement between one em- ployer and a labor union that he will employ only such laborers, members of that union, as the union shall specify is completely enforceable. Equally unenforceable is an agreement on the same point between all the branches of a labor union within a certain territory and all the em- ployers of that trade within the same territory.^* Between these two extremes lies the debatable ground. It is as- sumed, of course, in this discussion that the benefit of the 3* McCord V. Thompson-Starrett Co., 198 N. Y. 587 ; 92 N. E. 1090. 183] THE LABOR UNION 37 agreement is material to the two parties and that there is no malice. The law as to this has been sufficiently threshed out.^^ The law, then, with respect to the closed shop agree- ment is precisely that of the common law of contracts in restraint of trade, that of conspiracies in unreasonable or indirect restraint of trade. Where the agreement between the employer and the union is too monopolistic within too comprehensive a territory — of course much smaller than the unreasonable district in trade monopolies — the agreement is an unreasonable restraint upon the individual's freedom of contract and the competition of the non-union laborer is too completely stifled. This is the opinion of the courts. In the eyes of the economist — and the argument seems sound — a trade union with complete monopoly of the labor in its district is the acme of perfection of competition, of com- petition among the elements of production. The courts seem to have been led into this distinction as to extent of monopoly in a rather haphazard manner, if not absolutely against their will. The law of the closed shop has been most fully developed in New York. In the earliest case^^ the court held invalid a contract between a brewers' association and a labor union providing that no employee of the association should be allowed to work for longer than a specified time without becoming a member of the union. In the second case,^^ after several appeals and reversals, the court held valid a contract between an employer and a labor union providing for an absolutely closed shop. In this case the court specifically stated that the early case was not overruled. The critics immediately emphasized the conflict. The only way of resolving the conflict was to develop the distinction between the single employer in the enforceable agreement and the association 3s Cases concerning the closed shop in which this point is devel- oped are: Berry v. Donovan, 188 Mass. 353; 5 L. R. A. (N. S.) 899; Kissan v. U. S. Printing Co. of Ohio, 199 N. Y. 76; 92 N. E. 214; Hoban v. Dempsey, 104 N. E. 717 (Mass.). 3« Curran v. Galen, 152 N. Y. 33; 37 L. R. A. 802 (1897). "Jacobs V. Cohen, 183 N. Y. 207; 2 L. R. A. (N. S.) 292 (1905). 38 THE LABOR LAW OF MARYLAND [184 in the unenforceable. This distinction was developed in subsequent cases, and has been accepted as the rule in cases in other states.^^ Naturally, what is lawful in this respect for the labor unions is lawful for the employers, and there are several cases in which open shop agreements between employers aimed directly at the unions have been held legal.^® It might be profitable to present a brief and concise resume and to draw some conclusions from the Maryland law of labor combinations before proceeding to the specific statutes which are based upon or closely allied to the exist- ence of labor unions. Since the statute of 1884 labor or- ganizations are not per se conspiracies. An act which is lawful for an individual is therefore perfectly lawful for a union to undertake, with the one possible exception, most apparent in the law of picketing, that in certain circum- stances numbers themselves may be a menace to the peace of society. However, there is growing up in the law of torts a theory which is finding great application in labor cases that an act, though conducted for perfectly legitimate ultimate ends and in a perfectly lawful manner, may yet be actionable if immediately inspired by an improper motive. Thus a strike lawfully conducted to strengthen the union may still constitute a tort against a non-union man if its motive is to secure his discharge. On this proposition of law is based the rule that the activities of labor organiza- tions must have the direct purpose of improving the wel- fare of the members of the association, and may only inci- dentally, indirectly and perhaps unsubstantially affect a third uninterested party. But these generalities do not help us much to appreciate the trend of the Maryland decisions. The law of the union is in its present state of uncertainty because of conflict of »8 Connors v. Connoly, 86 Conn. 641, 45 L. R. A. 564; and note in L. R. A. 39 Hitchman Coal & Coke Co. v. Mitchell, 172 Fed. 963 ; Goldfield Consol. Mines Co. v. Goldfield Miners' Union, 159 Fed. 500. 1 85] THE LABOR UNION 39 two generalities : " improving the welfare of the members " and the indirectness with which the interest of a third party is affected. The courts until very recently have been in- clined by their training, by their leaning in the direction of the individualistic philosophy of freedom, towards protect- ing the rights of the third party, no matter how incidentally they may be infringed upon. It is fair to say that they did not truly understand the significance of unionism, the at- tempt to secure economic equality by strengthening the bar- gaining power of the laborers. Maryland law, of which the last case was decided in 1909, is still in this stage. In the Lucke case the court recognized no rights of the union to secure employment for its own members, but considered merely the technical right of the individual. In the Adt case the court might have justified its decision on certain forcible methods of the union, but it contents itself with unconditionally outlawing the boycott no matter what the actual economic conditions may be. Precedent is still su- preme. In the Willner case, the last word on the subject, the court might possibly be said to have taken subconscious cognizance of economic forces, but in reality the decision in favor of the unions was reached by purely individualis- tic reasoning. It may be hoped in view of certain tendencies manifesting themselves in other lines of decisions that the Court of Appeals will in its next union case take a broader view of the province of law, but as the decisions now stand, though the results in all these cases are perhaps justifiable, the law is not in a satisfactory condition and Maryland does not deserve a position with the more advanced states. Statutes Relating to Unionism. — The union label is now recognized as one of the useful, if not necessary, instru- ments of organized labor. The law on the subject is rather difficult and the decisions most conflicting; but the Mary- land legislature of 1892 has relieved us of the necessity of anything more than a cursory sketch of the unwritten law. In the earliest cases the union label was defended by its advocates as a trade-mark. The majority of decisions, how- 40 THE LABOR LAW OF MARYLAND [l86 ever, held that inasmuch as the union is not the owner, manufacturer or seller of goods to which the label is at- tached, the label is not a valid trade-mark nor entitled to protection or registration as such.*° Rebuffed by the com- mon law courts, the unions strove in equity proceedings to enjoin the counterfeiting and unauthorized use of the label. Here they were more successful, the courts viewing the label as union property. The courts declared that the con- cept of property should not be fixed, but progressive, de- veloping with the growing society. Surely, therefore, the label is property. Witness the reasoning in a Maryland case in a lower court: "The object and effect of this label, as used by plaintiffs on their associates, is to increase the value of their labor. ... It will not be denied that every freeman has a prop- erty right in his own labor. . . . From this broad principle it is easy to develop the particular proposition, that an asso- ciation of men who combine for the purpose of increasing, by legitimate means, the general demand for their common labor, have a property right in whatever lawful instrumen- tality they can succeed in creating and controlling for that purpose. "If the combination for that purpose be legitimate, and the label itself as used be a lawful instrumentality and con- tains no fraudulent misrepresentation, the label is entitled to the recognition of a court of equity as a property right, and any fraudulent imitation of it will be suppressed."*^ The reasoning here employed is valid and convincing, but nevertheless this opinion is in conflict with most courts of the country which have refused to view the label as prop- erty in the absence of statute. , Not satisfied with this tendency in the Maryland law — for, of course, it was not authority since the case did not reach the Court of Appeals — the unions caused the enact- *o See Martin, Law of Labor Union, pp. 423-429, for a more de- tailed discussion with references.