- 1 • ^^ ^ £)l)Qk Cf[ £^(5lA.<7VtCceo ". V .Y\ .C^ ^oWv' -^ W(aJU . C:ln2lv^ ^ lA^^rvfe^^^ UC— NRLF 'inTi!iii"'lilil"H'l{ill'l!'lll'{lffl>l{ 3YU, Monroe County. JOSEPH ^riCIIAELS, ^rOKLEY A. STERN ct aJ., Plaintiffs J against SIDNEY HILLMAN, individually and as Presi- dent of theJAmalgamated Clothiii£_\A ^rIvers ^ America, \et atr, Defendants. MEMORANDUM OF LAW. O'BRIEN w<;: POWEIX, Attorneys for Defendants. Felix Fkankfcrter, Emory \\. Bucknbr, (Jerard C. Henderson, llOBERT SZOLD, Max Lowenthal, of Connael. The Hecia Press, 57 Warnn «t., N. Y. Tel. Harclay 62S0. ^iiLvARY CF ECONOMIC x fiH 117 LIBRARY TABLE OF CONTENTS. PAGE PRELmiNAUY AXAIASIS 1 Part Fikst: The purpose of ('iifoi'cin<>- follec- tivc Itaiiiuiiiiiijn' is not illei^al 4 A. The leadino- New York ca.ses 5 B. The Uiiiteil States Siiprenie Court in tlie Hitcliman ease 23 (\ The princiides established in the New York cases 31 1). Conclusion 37 Paut Slx'OND : Sc()i)e and adiiiissiltility of evi- dence 38 A. The jdeadinjis and the preliminaiy in- junction 38 T>. The issues raised in the pleadings. ... 40 ( \ What facts are relevant to these issues 42 T). AdniissiUility of such evidence 4.") K. ^fethods of ]HOof 51 I'Airi" Tiiiuk: Lawfulness (tf jiarticulai- uieans. (>2 Strikes (>2 Persuasion oi* eiidceuieut f>3> Iiiduciiiii hreach of contract Gl^> Physical force and violence 70 Threats. uuMiac<'s and intimidation 70 TMcketinu 81 Coercion 84 Boycotts , 80 Ajijjeals to the pulilic 00 TABLE or CASES CITED. PAGE Adair v. United Slalca, 20iy U. S., 161 25 Aldridge V. Stuyvesaut. 1 iiall (N. Y.), 210 -('J American Malting Co. v. Keitel, 209 Fed., 351 73 Angle V. Chicago etc. Ry., 151 U. S., 1 72 Ashley v. Dixon, 48 N. Y., 430 69, 70, 71 Auhurn Draying Co. v. VVardell, 178 App. Div., 270. . 20 Auburn Draving Co. v. VVardell, 227 N. Y., 1 19, 32, 36, 88, 92 P.adger v. Badger. 88 N. Y., 546 52 Hailcy v. Alabama, 219 U. S., 219 68 Barnes v. Chicago Typo. Union, 232 111., 402 81 Barron v. Collins, 49 Ga., 581 68 Beck V. Railway Teamsters Union, 113 Mich., 497. . . 81 Benton v. Pratt, 2 Wend., 385 73 Bitterman v. Louisville & Nashville R. R., 207 U. S., 205 V4 Board of Trade of Chicago v. United States, 246 U. S., 231 50 Bouslier v. McCauley, 91 Ky., 135 73 Bossert v. Dhuy, 166 App. Div., 251 18 Bossert v. Dhuy, 221 N. Y., 342. . 15, 30, 41, 85, 87, 88, 91 Bossert v. United Brotherhood of Carpenters, 77 Misc., 592 Ki Boston & Worcester R. Corp. v. Dana, 67 Mass., 83 53,56 Bowen v. Hall, 6 Q. B. D., 333 73, 71 Boyson v. 'I hum, 98 Cal., 578 7') Brennan v. United Hatters, 73 N. J. L., :29 2!) Bucks Stove & Range Co. v. Am. Fed. of Labor. 21 !> U. S., 581 !»(> Burns v. Bricklayers' Union, 14 N. Y. Supp., 3(;i 2:* Burton v. Driggs, 20 \\'all., 125 5(i Caughey v. Smith, 47 N. Y., 244 6.'. Chaffee & Co. v. United States, 18 Wall., 5I(; 5'.( Citizens Light etc. Co. v. Montgomery etc. Co., 171 Fed., 553 ! ' 75 11 PAGE Cliquot's Champagne, 3 Wall., 114 59, 61 Coppage V. Kansas, 236 U. S., 1 25 Curran v. Galen, 152 N. Y., 33 5. 9, 10, 30 Daly V. Cornwell, 34 App. Div., 27 TO Daniel v. Swearengen, 6 S. C, 29T 68 De Jong V. Behnnan Co., 148 App. Div., 3: ; 131 X. Y. ■ " Supp.. 1 083 rO, 71 Dorenius v. Hennessy, 1T6 111.. 608 73 Dougherty v. Milliken. 163 N. Y., 527 53 Eggler V. People, 56 N. Y., (J4.? 60 Foster v. Retail Clerks' Protective Assn., 39 Misc., 48 82,91 Fuerst v. Musical Mutual Protective Union, 95 N. Y. Supp., 155 29 Gill Engraving Co. v. Doerr, 214 Fed., HI 88 (iompers v. Bucks Stove & Range Co., 33 App. Cas. (D. C), 83; 33 App. Cas. ( D. C). 516; 221 U. S., 418. . 90 Gore V. Condon, 87 Md., 368 73 Grimes v. State, 68 Ind., 193 47 Haight V. Badgeley, 15 Barb., 499 .64 Hamlin v. Sears, 82 N. Y., 327 60 Haskins v. Royster, 170 X. C, 601 68 Heit Kamper v. Hoffman, 99 Misc., 543 91 Herzog v. Fitzgerald, 74 App. Div., 110 79 Hitchman Coal & Coke Company v. Mitchell, 172 Fed.. 963; 176 Fed., 549; 202 Fed.. 512; 245 U. S., 229 5. 23. 41 . 66, 73 Homan v. Hall (Xeb.), 165 X. W.. 881. . .' 74 Huxley v. Hays, 191 Fed., 943 76 Iron ]\Iolders' Union v. Allis-Chalmers Co., 1()6 Fed., 45 ..77,84, 89 Jacobs V. Cohen. 183 X. Y.. 207 9. 32, 85 Jesse L. Lasky Feature Play Co. v. Fox. 15 ^ X'. Y. Supp., lo'e ' ^70 Johnston Harvester Co. v. Peter Meinhardt. 60 How. Pr., 168 ; 24 Hun, 489 65, 70 Jonas Glass Co. v. Glass Bottle Blowers' Assn., 77 X. J. Eq., 219 29. 34 Jones V. Maher, 62 Misc., 388 ; affd. without opinion 141 App. Div., 919 ' 84 Ill PAGE Kellogg V. Sowerby, 190 N. Y., STO 47 Kilpatrick v. Whitmer & Sons, Incorporated, 118 App. Div., 98 (JU Kissam v. United States Printing Co., 199 N. Y., TG 12, 29, 32 Knickerbocker Co. v. Gardiner Co., 107 Md., 556. .73, 75 Krebs v. Rosenstein, 31 Misc., GGl ; affd. 5G App. Div.. G19 ^9 Lamb v. Cheney & Son, 227 N. Y., 418 71, 74 Lawlor v. Loewe, 235 U. S., 522 52 L. D. Willcutt & Sons Co. v. Driscoll, 2(»0 Mass.. 110 29 Leitch V. Atlantic Mutual Insurance Co., GG N. Y., 100 GO Leonard v. Whetstone, 31: Ind., 383 74 Lindsay & Co. Ltd. v. Montana Fed. of Labor, 3^ Mont., 2G4; note in 18 L. R. A., 70: 91 Lumley v. Gye, 2 Ell. & Bl.. 21G G4. G5, 73 Lush V. Druse, 4 Wend., 313 59 Lyon V. Mitchell, 3G N. Y., 235 28 Mahler Co. v. Mahler. IGO App. Div., 548 70 Marfield v. Goodhue. 3 N. Y., 62 28 Martin v. McFall. 65 N. J. Eq., 91 30, 87 McCord V. Thompson & Starrett Co., 129 App. Div., 130; attd. without opinion, 198 N. Y., 587 11 Miele v. Rosenblatt, 1G4 App. Div., 604 58 Mills v. United States Printing Co.. 99 App. Div., 605 ; 128 App. Div., 889 ; 199 N. Y., 76 12, 13, 29, 30, 79, 83, 87 Mogul Steamship Co. v. McGregor, 23 Q. B. D., 598. 72 Motley Green & Co. v. Detroit etc. Co., 161 Fed., 389. 73 National Protective Association v. Cumming, 53 .\pp. Div., 227 ; 170 N. Y.. 315 8. 29. 31. 32, G2, Nd, s.-) New Arcade Co. v. Owens, 258 Fed.. 965 59 Newton v. Erick.son. 70 Misc.. 291; ill .\pp. Div.. 939 15. k; Norcross v. Utis, 152 I'a., isl 7(i O'Brien v. People, 2 1 li 111., 3.') 1 85 Paine Lumber Co. v. Xeal, 214 U. S., 15!i .Ki Park & Sons Co. v. National Druggists' Assn., 175 N. Y.. 1 7(i. 80 IV PAGE Parkinson Co. v. Bldg. Trades Council, 15-1 Cal, 581 91 I'atterson v. United States, •>>> p^^ _ 099. 238 U. S., 635 47 Peek V. Northern Pac. Ry. Co., 51 Mont., 295 7^ People V. Barondess, 16 N. Y. Supp., 436; 133 N. Y.. 649 35 People V. Becker, 215 N. Y.. 126 46 People V. Duffy, 212 N. Y., 57 46 i'eople V. Faber, 199 N. Y., 256 5v People V. Kostka, 4 N. Y. Crim.. 429 69 I'eople V. McKane, 143 N. Y.. 455 46 People V. Molineux, 168 N. Y., 264 46 People V. Peckens, 153 N. Y., 576 46 People V. Sclnveinler Press. 214 N. Y., 395 43 People V. Thau, 219 N. Y.. 39 46 People V. Van Tassel, 156 N. Y., 561 46 People V. Williams, 189 N. Y., 131 43, 44 People ex rel. Woodbury, 67 Misc., 481 56 Pickett V. Walsh, 192 Mass.. 572 30, 87 Posner Co. v. Jackson, 223 N. Y., 325 70, 74 Plant V. Woods. 176 Mass., 492 29 Piatt v. Bonsall, 136 App. Div., 397 28 Ouinn V. Leatham, 1901 A. C, 495 73 Reinke v. Sanitary District. 260 III. 380 54 Reynolds v. Everett, 67 Plun, 294; 144 N. Y., 189. .29, 66 Rice V. Manley, 66 N. Y., 82 78 Rogers v. Evarts, 17 N. Y. Supp., 264 (affd. sub. nom. Reynolds v. Everett, 67 Hun, 294; 144 N. Y., 189) 29, 66, 70, 81 Ruddy V. United Association, 79 N. J. L., 467 29 Schomwald v. Rogain, 32 Okla., 223 73 Sinsheimer v. United Garment Workers, 77 Hun, 215. 91 Sisson V. Cleveland & Toledo R. Co., 14 Mich., 489. 60 .Sleeper v. Baker, 22 N. D., 386 73 Smith & Melton v. N. C. R. R. Co., 68 N. C, 107. . 60 Smith v. National Benefit Society, 123 N. Y., 85 52 Smithies v. Nat. Assn. of Operative Plasterers (1909), 1 K. B., 310 75 Sperry & Hutchinson Co. v. Asch, 145 Fed., 659. ... 72 Same v. Brady, 134 Fed., 691 72 Same v. Weber & Co., 161 Fed., 219 72 PAGE Same v. Mechanics' Clothing Co., 135 Fed., 838 72 Same v. Pomnier, 199 Fed., 309; 208 Fed., 804 75 Same v. Temple, 137 Fed., 992 72 Standard Oil Co. v. United States, 221 U. S., 1 46 State V. Van Pelt, 136 N. C, 633 90 Stuart v. Simpson, 1 Wend., 376 64 Sun Printing Co. v. Delaney, 48 App. Div., 623 79 Swan V. Johnson, 151 N. C, 93 73 Sweeney v. Smith, 167 Fed., 385 75 Temperton v. Russell (1893), 1 Q. B., 715 73 rhacker Coal Co. v. Burke, 59 W. Va., 253 ; 53 S. E., IGl 25,27 Thomas v. Cincinnati R. R. Co., 62 Fed., 803 73 Towle V. Forney, 14 N. Y., 423 28 Triangle Film Corp. v. Artcraft Pictures Corp., 250 Fed., 981 41, 67 Truax v. Raich, 239 U. S., 33 73 Tuttle V. Buck, 107 Minn., 145 35 United States v. Craig, 4 Wash. C. C, 729 47 \'an Doren v. Jelliffe, 1 Misc., 354 60 Van Name v. Van Name, 38 App. Div., 451 55 Von Sachs v. Kretz, 72 N. Y., 548 55 Vegelahn v. Guntner, 167 Mass., 92 49 Walker v. Cronin. 107 Mass., 555 74 Whclan v. Lynch, 60 N. Y., 469 60 Winans v. N. Y. Erie R. R. Co., 21 How., 88 58 Woodward v. Washburn, 3 Den., 369 64 Year Book Mich.. 11 H., 4 (a) ; fol. 23A, pi. 46. . . . 63 Year Book Mich., 10 H.. 6 (d) ; fol. 8B, pi. 30 64 ^itprpm? Oloitrt Monroe County. JOSEPH MICHAELS, MORLEY A. STERN ct ah, Plaintiffs, against SIDNEY HILLMAX, individually and as 'Presi- dent of the Amalgamated Clothing Workers of Ainorica, ct aJ., Defendants. MEMORANDUM OF 1.KW, Preliminary Analysis. ' In orih'i- to give a setting to tlie legal discnssion, ii brief jn-eliminary analysis (\i alleged facts is ueeessaiy. Ol" course we ncc^d not add that it is not onr ])nr|»()se to anticii)ate or forestall in this memoranduiii niiy facts that may he develojjod on eithei* side at the liial. 'riic |)iii-i)ose of the pre- liiiiinary statement is merely to tl^■(>^^■ liglil on the general seojte of the h^gal (Hiestioiis NNliich are likel_\ to ai-ise at the trial. The ])i-iii(il)al delciidaiits are national and local officers, of the Amalgamated Clothing W'oikeis of America, a national union of workers in the men's clothing indnsti-y. The union has made market agreements for ^^(ll•king siandaids, collective liai- gaining and arbitration with the great bulk oT the men's clothing manufaetui-ei-s in (he leadini:- nien's clothing- centers of the United !r?tates. The plain- tiff firm is a large men's clothing manufactnrer of Eochester, which has declined to enter into snch an agreement with the Amalgamated. It is, with insig-niflcant exceptions, the only men's clothing mannfactnrer in Rochester which has refused to join the general agreement between the Clothiers' Exchange and the Amalgamated. The gist of the plaintiff's case appears to he an alleged conspiracy of the representatives of this nationally organized union, and a concerted effort on th«eir part to induce the plaintiff to recognize and deal with the union in all matters affecting wages, hours of labor and working conditions. In ])ursuance of this purpose, the representatiyes of the union are alleged to have ( 1 ) calleettenuent of the economic condition of their members, by maintaining fair wages and reasonable hours, and in other respects improving the'r working condi- tions, as well as by contril)uting to law and oi-der in industry and directly advancing the public in- tei'est. They will show furthei- that the enforce- ment of collective bargaining in the plaintiff's shop wa*? a strategic objective, wliicl! it was necessary 3 to attain in order the better to fulfill this ultimate object of ef'ouoniic betterment, an objective Avliicli was necessary not only because it woubl brin.u about immediate ini]tr()vemeut in woikiu;.', comii- tions, but because it was an indispensable safe- li'uard auainst a lowerinj]j of induslrial standards in the future. Tliey will furtlier show that the strikes, iucitcniciit of stiikcs. pickctinu, and appeals to the laihlic (in so far as they did not involve \iolence, fraud or defamaticn and similar tactics, which the defendants em])hatically disavow), were tactical means reasonably adajjted to the achievement of the strategic objective of collective barjiainin;Li. The lejial aspects of the controversy divide them- selves naturally into two larger subjects of inves- tiiiation : first, was the stratejiic ])urpose of the defendants, /. c, the enforcement of c(dlective bai-- liaininu and arbitration between Michaels, Stern cV: ('(.'iiipany ainl iIk^ Amalgamated, a lawful oi- an uidawful i)urpose? Second, were the pai-ticular means em})lov<^d in achievinii this ])urpose lawful or uida\\ful? The princi])les involved in this case have been much litiiiated in New York, anloyees on the other. It substitutes for the purely contractual relation of master and servant an industrial rela- tion in which the basic laws of the industry are placed beyond the influence of individual agree- ment. It presupposes organization, since without organization authorized representatives cannot be elected, nor can agreements be enforced. It cul- minates in formal trade agreements, which not only contain specific terms as to wages, hours and con- ditions of employment, but set up machinery by which the observance of these terms can be en- forced on each side, and by wliicli disputes between the parties, as they arise, can be adjusted or if necessaiy arbitrated without stoppage of work. Collective bargaining does not mean the closed union shop, or even necessarily the preferential union shop. In Rochester, for example, the open shop prevails in the men's clothing trades, and in other cities tlie ])iefereHti;il iiiiioii sli()]». It does mean, liowever, tliat both eni])loyeis and einployees recolaint alleged that the defendants "made complaint to the plaintiff's employei-s and forced them to dis- charge him from their employ, and by false and malicious reports in regard to him, sought to bring him into ill repute with members of his trade and employers and to prevent him from prosecuting his trade and earning a livelihood." To this complaint there was an answer denying all the allegations except those relating to the organization of the union, and a separate answer setting up an agreement between the Ale Brewers' Association and the local assembly. Knights of Labor, providing, among other things, that no per- son should be employed by any brewer member of the association for more than four weeks, unless lie joined the Knights of Labor; that the plaintiff was employed in violation of this agreement ; and that the defendants so notified his employer, i'solely in pursuance of said agreement and in accordance with tlie terms thereof, and without intent or pur- pose to injure the plaintiff in any way." To this separate answer there was a demurrer, which was sustained at Special Term and in the Ap])ellate Division. On appeal to the Court of Apjteals, the decision was affirmed. The opinion of the Ccurt recognizes the lawfulness of combinations of workingmen who^e purpose is to raise wages, but asserts that such combinations become illegal "when they are so extended in their operation as either to intend, or to accomplish, injury to others." The following extracts from the opinion sIioav what the Court conceived to be the principle a])- ])licable to such cases: "Public policy and the interests of society favor the utmost freedom in the citizen to piii'sne his lawful trade or calling]:, and if the jjurpose of an orpmization or combina- tion of workinjjmen be to hamper, or to re- strict, that freedom, and, throujjh contracts or ai-raniicnients with employers, to coerce other workinnTiien to become members of the organization and to come under its rules and conditions, under the penalty of the loss of their position, and of deprivation of em- ])loyment, then that purpose seems clearly unlawful and militates, ag^ainst the spirit of our Gfovernment and the nature of our insti- tutions" (p. 37). "While it may be true, as arjrued, that the contract was entered into, on the part of the Ale Tirewers' Association, with the object of avoidinji' disputes and conflicts with the workin.umen's organization, that feature and such an intention cannot aid the defense, nor legalize a plan of compellins- woi-kinjimen. not in affiliation with the oruanization. to join it, at the peril of beinjx deprived of their employment and of the means of mak- iuiX a livelihood" (p. 39). Tn considei-inc; this case in its relation to the later cases- in the Court of Ap])eals, it is important to bear in mind : M) That the case Avas decided on pleadinj^s, and not on evidence. (2l That the allcuations in tlic comidaint. whicli <1<) not appear to have been ex])1icitly denied in the se])arate answci-. cliar-zcd a malicious con- spiracy to drive the plaintiff out of employment rrrn/irhrrr, not merely in Kru-hester. or in that •^niploynient. or in cniployniciits in which the union MT.s represented. 8 (3) That uo facts were alleged or proven show- ing; the necessary connection between unionization and economic betterment. All the Court could do was to speculate upon the connection. The Court's remark, quoted above, that if such a connection existed it was immaterial, was mere dictum, since there was neither allegation nor proof that the connection existed. National Protective Association v. Cuinnnnfi, 170 N. Y., 315. The defendant in this case was the walking delegate of a union of steamfitters. The union required, as a condition of membership, that applicants pass an examination and pay an admission fee. The plaintiff, having failed to ivass this examination, organized a rival union of steam- fitters. The defendant union thereupon adopted a policy of refusing to permit its employees to work on any job on which members of the plain- tiff's union were employed. The xDlaintiff sued for an injunction, which was awarded in the trial court, but reversed in the Appellate Division (53 App. Div., 227). In the Court of Appeals a majority of tlie court affirmed the decision denying the injunction. Chief Judge Parker's opinion asserts broadly the right to strike; the right to give a reason for the strike; and the right to threaten to strike unless the griev- ance is remedied. For the sake of argument he conceded that a strike for a wrongful puri>ose might be actionable. "There is no pretense," he said, "that the de- fendant associations or their walking delegates had any other motive than one which the law justifies of attempting to benefit their members by securing their employment. Xowhere throughout that find- ing will be found even a hint that a strike was ordered or a notification given of the intention to 9 order a strike for the purpose of acconiplisliin-; any otlier result than that of seCurinp: tlie disehariie of tlie members of the i>laintitf association and the substitution of mendiers of the defendant associa- tions in tlieir place" (pp. 327, r>28). Judue \'ann, writin«» the dissentinj;- opinion, took the vi(nv that a strike to compel an employer to urant hiiiher wa was distinguished on the ground that it in- volved an attempt to exclude the plaintiffs from (Miipbiymcnt e\erywhere, in Rochester and else- where, and on the ground that the complaint in ('iirnin v. ddl^u alleged malice and the use of fal.^'C i-cpoits. Tlie concuriing opinion of Judge Gray, in the C :)urt of Appeals, distinguishes Cur- rtiii v. (I'dirn on tlic same grounds. Jacobs V. Cohen, 183 X. Y., 207. In tliis case a <-lotliing manufactui'cr made an agiccment with a union. i'ci)re.venting excdusivcly the employees in 10 his own shop (although affiliated with the United Garment Workers). The agreement provided for a closed union shop. As security for his promise to stand by the agreement, he executed a promis- sory note to the union. The union later claimed a violation of the agreement, and its president on behalf of the union brought suit on the promissory note. The answer set up the closed shop agi*ee- ment, and claimed that it rendered the note void for illegal consideration. The plaintiff demurred, and was sustained by the Trial Judge. The Appel- late Division, however, reversed, on authority of Currmv v, Galen. In the Court of Appeals, the decision of the Ap- pellate Division was reversed. The Court pointed out that the agreement appeared to have been voluntarily entered into between the employer and his own workmen. "If it might operate to prevent some per- sons from being employed by the firm, or, possibly, from remaining in the firm's em- ployment, that is but an incidental feature. Its restrictions were not of an oppressive nature, operating generally in the commun- ity to prevent such craftsmen from obtaining employment and from earning their liveli- hood. * * * Nor does the answer aver that it was in- tended, thereby, to injure other workmen: or that it was made with a malicious motive to coerce any to their injury, through their threatened deprivation of all opportunity of pursuing their lawful avocation" (p. 211). The case is, of course, distingTiishable fi-om tlie case at the bar because there was no allegation of any attempt by persons outside the particular shop to procure the unionization of the shoji. The agree- ment was found tO' have been voluntarily entered into between the employer and his own employees. 11 It was, however, an agreeiuent for a closed uiiiou shop, and the case establishes the law of New York that such a closed sliop is not in ;ii I of itself illegal. McConl V. Thoiiii)so)iSl(irrcl1 Co., 129 App. Div., laO; aflf'd without opinion, 198 N. Y., 587. Thi^ case involved one stage in a long contest between the building trades of New York and tlie l^rother- hood of Carpenters, later stages of which will rc;i]»- pear in several snbsecpieut cases. The builders of New York had formed the Building Trades Eniploy- ei-s' Association, and provided in their constitution that niend)ers must file bonds conditioned on their obeying all orders of the Board of Governors. The Board ordered a general lockout of all mendjers of the Brotherhood of Carpenters. The plaintiff, a meml>er of- tlie (Muployers' association, obeyed (his order. SubsiMpiently an emergency coiiimittee of the employers* as.^ociation issued an onler directing its memlmrs to re-employ only such men as would join a newly formed union, the Grreater New York rar])entersV' Union. This order was circulated un- der the signature of the seci-etary of the Board of (lovernors. The plaint ill refused to obey this oi-der, and his bond was declared forfeited. Upon this state of facts, the A])p('llati' Divisiisn was divided in opiiiiiii. A maj(5rity Avcre cf the opinion ( 1 ) that tlie geneial lockout ordei- was legal, but that it was obeyed; (2) that the order to employ only mciiibci- of the New Yoi'k Carpen- tere' Union was an oi-dcr of the Board of Governors Avithin the m«'aniiig of the b(;nd. i ."I i but tliat the order was illegal. They theicfoic concluded that violation of this ordei- could not b<' made the basis for a forfeit II i-e of the bon)tatrs Printuui Co. and J//7/.S V. United States Printing Co., 11)9 X. Y., 76. These cases, decided together, are of great importance, and come vei-y close to tlie case at bar. The plain- tiffs were, in the Mills case, an employee, and in the Kissam case an employee Avho was also a stock- holder, of the defendant printing conijiany. Tlie defendants wei'e the printing c(Hn])any and officers of the International Stereotypeis & Electi'otypers Union. The plaintiffs were non-union stereotypers,. and claimed that the union Avas inducing the print- 13 iiig company, by strikes, threats, etc., to tliscliarge them from its employ. They secured a preliminary injuiR-tion i-cstraiiiinii the company from discharg;- inji" them mi tlu^ urduiul that they were not members of the union, and restraininu the union ofticials from ''interfering:"" with tlie i>laintitt"s or other non- union workmen in the company's employ, fi-oni ••organizing- a strike against the said defendant |)rinting comitany,"* ans'. Print hiy Co., 1)9 App. Div.. (>()5). Merely oiganizing a strike, under the ciicumstances set forth, the Conrt held not t(> be ilb^gal. Picketing and boycotting were illegal only if acronijianied by foi'ce, violence, or unlawful coercive measui(s. \\'itli tlie injnnction thus moditied. the case went to trial. , By this time it ajjpears that the ])rinting com- itany had reachcil an agreement with the union, and had undertaken to employ only memliers ot the nniitn in its stereotyping department. The ])laintitts Avere therefoie de]irived of tlu'ir jobs. The Trial ((iiit rt fused to gi-ani an injunctioii. and the decision was attirmed withont ojtinion by the Apiudlate Division (iL'S A]))!. Div.. SS!>. SUi) \ . The ('(Hirt of Apjteals sustained the decision. up(Mi the facts found by the 'I'lial Couil, which it summarized ;is frJlows: 14 "The learned trial court found that the execution of the agreement between the TTnited States Printing Company and the several lal>or unions resulted in great finan- cial benefit to the former, and disposed of tlie ditierences between the parties ; that tlie agreement was not entered into for the ])urpose of gratifying malice against the non-union employes of the printing company or of inflicting injuiy upon them ; that it was not the object of the defendants to com- pel the plaintiffs to join the unions; that no pressure, so imperative as to amount to compulsion, was exerted upon the printing company with regard to the discharge of the ])laintiffs from their employment, and that there was no conspiracy to compel the plain- tiffs to join the unions or solely to injure them in their employment" (]). 79). The case comes very close to the one at bar. The defendant was a national union, and it used its ])ower to induce a particular employer to unionize his shop. The means used included the calling of strikes, picketing, boycotting, etc., etc. The first case in the Ai^pellate Division is therefore precisely in accord : indc^l it goes even further, since the agreement was for a closed union shop. Sub- sequently, it is true, the printing company yielded, so that it was no longer a case of forcing unioniza- tion on an unwilling employer. But if the purpose of the union was illegal, clearly the plaintiff could sue, after tlie wrongful pui'pose was achieved, as well as while the defendants were merely attempt- ing to achieve it. The decision of the Court Of Appeals necessarily involved, therefore, the proposi- tion that a national union, whose general objects were lawful, could in pursuance of those objects bring economic pressure to bear on an employer to compel him to discharge all non-union men, and to sign a general agreement with the union. 15 Bossert v. Dhuij, 221 N. Y., 342. Tliis case in- volves another stajie in tlie contest between the buildin«:: and wood nianufacturinii: trades and the United Brotherhood of Carpenters and Joiners. It is important to understand the liistoiw of the litiiiation. (\irpenters are employed lioth to manu- facture and install woodwork on buildings, and in factones whii-h prepare woodwork (doors, frames, sashes, etc.) for subsequent installation. These two classes of em])loYment naturally compete with each other, and after many disputes a working agreement was made between the Brotherhood and the ^ranufacturing Woodworkers Association defin- ing what types and sizes of woodwork should be made in factories, and what made liy carpenters immediately employed on the buildings. The agree- ment pi'ovidcd that the manufaoturei-s would em- ploy union men, and that the car]ienters would not work on any building which used woodwork manu- factured in a non-union factory. This agreenumt achieved the unionization of vir- tually all the wood mills in Manhattan, but Brook- lyn icinained V( ry largely a non-union field. At the 1010 convention of the Brotherhood it was therefoi-e voted to undertake a campaign of union- i/a!ioii in llrodklyii. Organizers of the union theieujjon notified the Brooklyn Builders Associa- tion that they would work only on buildings which used union trim, and soon after called strikes of th«'ir members on four Ituildings at which trim manufactured by the Albro J. Newton <~'omi>any, a non-union factory, was being used. The com])any asked for an injunction, and in Ncirlou (^ompnnrj v. KrUksnu. 70 Misc.. 201. such an injunction was granted liy dust ice HIackmar. The roui-t said that tlie UM'ans einjiloyed — the calling of strikes— was biwfiil, l;iit that tlic end in aIcw — injnry to tlic jdninlif'l by in^lucing his cnstoincis to leave liini — 16 was unlawful. The decision was affirmed without opinion by the Appellate Division (144 App. Div., 939). A year later the union organizers made a new effort, this time directed against another non-union manufacturer, L. Bossert & Bon. They called strikes, as before, on four buildings using the trim of this company. An injunction was again issued, restraining the defendants from conspiring "in any manner to injure or interfere with the good will, trade or business of the plaintiff' si co-partnership, for the purpose of coercing plaintiffs to employ union labor," either by threatening his customers with labor trouble, or by enforcing any by-laws or regulations requiring their members not to work on non-union trim. Soon after an organizer went to a bnilding in Brooklyn, informed the carpenters working there that non-union trim was being used on tlie building, and they at once ceased work. He was brought up on contempt proceedings, but Jus- tice Crane (now of the Court of Appeals) denied the motion (Bossert v. United Bvotherliood of Car- penters, 77 Misc., 592), He observed that it was not unlawful merely tO' inform tlie men that tliey were using non-union trim, and that the affidavits did not reveal that anything more was done. But his opinion went fnrther. Even if the organizer had threatened fines and expnlsion from the union if the men did not stc^p work, he considered that the injunction would not be violated unless the acts were done "for the purpose of interfering with tlie good will of the plaintiff's co-partnership." In this case he found the organizer was acting for the juirpose of legitimately advancing the interests of the brotherhood, and hence Avas acting lawfully. In the meantime the injunction in the Bossert case went to ti-ial. Justice Putnam summarized the effect of the testimonv as follows: 17 ^'Tlie full and elaborate proofs iu this hearing- raise sciuarely the rigiit of the orga- nized body of car]>eiiters to single out one non-union mill, ut permits its members to earn more; that the defendants were actuated by the motive of bettering llicir conditions; that tliere was no violence or threat of violence, and no tlireat at all excepting threats to enforce their by-laws; that tlie defendants did tiothing to interfere with the plaintiff's getting nf>n-u?ii55l. In discussing particularly the contention of the Trial Court that a strike against buiblers who used the plaintiffs' materials was illegal, the Court said : "The bounds beyond which an association of em])loyees may not as a general rule go in controlling its meml>ei-s in their dealings with em])loyers are not easily determined. They cannot at least extend beyond a point where its or their direct intere.»ts cease. There is a material difference in tlie power 19 of an association so fai* as it aflVcts its pri- mary or secondary interest. Where the acts of an eni])h)yee or eni])loyees in their indi- vidual or associate capacity aie reasonably and directly calculated to advance lawful objects, they should not be icstraiiu'd by in- junction * *" { p. ;>1>5 ). In the case now before us if the defend- ants had called upon tlie public j^enerally to discontinue usinj; the plaintilTs' material and had sought to prevent all peisons by communications, written or otherwise, from dealin. -Wi)). The case holds, necessarily, two thinjj;s: First, that it is not unlawful for a national union to endeavor to unionize, by economic ])rei>-sure, a shop which does not employ union mendters; and second, that in i)ursuanc(' of this i)uip(ise it is not unlawful to put into eltect a boycott within the indiistri/. Tr does not extend to the case of a boycott exercised through other industries. It does not cover the case, for instance, of a coal minei-s' union which induces a railway union to compel the lailway to boycott the mine, or which induces an electrical M'(M'kers' uni(Ui to compel the (dectnc light plant t{» boycott the mine. The carpenters employed by builders and the carpentei-s employed by woodwork nuinufacturers were in tiie sanu' industry, and cuni- jseled \\itli each otluM*. The existence of non-union factories was a nK-nace to the standaids and lules established by the cariKMiters em])loyed on build- ings. The bi.ycoti did not therefore extend, as the ('oiirl says, "bcyoml a jioiiil w licic its oi- their interests ceas^'." Aiihuiii Dnijiliui Co. \. W'dKlcN, I'l*! X. '\'.. 1. The [ilainiilt in l!i;s case was the largest trucking concei-n in Aii1mi:'?i. In l!ll2, a teanistcis* union 20 was formed, and attempts were made to induce the plaintiff's emplo^-ees to join, but the attempts generally failed. The teamsters' union therefore adopted a resolution declaring the plaintiff to be "unfair." The Central Labor Union then inter- vened, and endeavored to negotiate with the plain- tiff, but he took the position that he did not care whether his men joined the union or not, and that he would not compel them to join. The Central Labor L^nion thereupon formally approved the sen- tence of "unfairness" imposed on the plaintiff by the teamsters. Then began a "systematic cam- paign," by means of strikes, and threats of strikes, to compel customers of the plaintiff to withdraAv their patronage. A building contractor, butchers, bakers, merchants, any customer in shr^rt who used union labor of any description, was threatened with a strike if he employed the plaintiff's teams for trucking. It was shown that the declaration of principles of the Central Labor Union included tl-e following: " 'We shall withdraw and use our influence to have others withdraw all patronage from any unfair employer, or any person patroniz- ing such unfair employer, let his calling be what it may' " (p. 5 ) . The constitution of the Central Labor Union also provided fines and expulsion for non-conformity with its orders. In tlie Appellate Division (ITS App. Div., 270) an injunction restraining this boycott was sus- tained Ity a majoiMty of the court. "In the case at bar,'' said tlie court, "the trial court has found u}jon ample e\idence tliat the primary purpose sought by the de- fendants was the injury and destruction of plaintiff's business, and that altliougli |»er- ; 21 liaps opoii to tlie suu'uostioii that tlierc was iiii ultimate hope of benefit to oi-^aiiized labor, the iimiiediate business in hand was to injure the i)laintiif'. If these facts are well fjrounded in this record, then we have no fuitlier diflicully foi* such a purpose is unlawful at eoninion law whether or not it offends any particular statute. 8uch a ])ur- pose cannot be justified by argument that each ]iarticular stej) in the transaction was lawful in and of itself" (]». 270 I , In the (N)nrt of Ai)peals the decision was unani- mously afllniied. dndjie (\)llin pointed out that the riji^ht to carry on busin.ess unniolesteerty of the plaintiff the jud*>nient appealed fi-oni is rij»ht an. It was not sini]tly that the nuMubers of Union No. (ilJ), from which the defendants insisted the i)laintiff must hire its einpb)yees, I'efused to be eni])loye(l by the ])hiintilf or its patrons, unless and until it employed mend)ers of the union. The unic'us and their members souj^ht to induce and induced the emjdoyers of labor in the vari(;us trades and industries and the ])nblic ^iMHM-ally in that conimnnity to discontinue emi)loyinu and to al)slain I'vom business transactions with the ])laintifT, l»y directly and aflirmatively causini;- b>ss anhere of interest in the controversy, to join in the boycott — distinguished the case, the Court said, from the Bossert case. It is clear that they dis- tinguish it likewise from the cave of t|ie Amalga- mated Clothing Workers in Rocliester. They have made no attempt to use economic pressure to induce liersions outside the industry to boycott Micluiels, ^'tern & Company. Tliey have gone to other cloth- ing shopsj and induced tliem not to do the plaintiff's w(n'k. They have appealed to tlie nnderstanding of tlie public. But they have kept within tlie limits set bv the Wnrdell case. 23 B. The United States Supreme Court in the Hitch- man Case. Althon.ah the decisions of the New York Court of Ai>])oals wliicli have been reviewed seem clearly to establish lliat it is not unlawful for a nationally organized union to use persuasive means, and even coercive means within the industry, to induce a particular employer to unionize his shop, neverthe- less an attempt will undoubtedly be made to invoke the authority of Hiicliman Coal tC- Colxe Co. v. MitchcU, 245 U. S.. 229, dei'ided December 10, 1917. This case was, in fact, relied upon hy the Court in sustaininjT; the preliminary injunction in the case at bar. The Hitchninn case is therefore worth care- ful analysis, to ascei-tain to what extent it affects the decision of this case. The suit in that csae was by a West N'irjiinia mining; corporation ajiainst the officials of the I'nited Mine Workers of America. The mine was OT-iijinally unionized, but after a seiies of strikes and disaii'rcements it decided to run non- union. The superintendent therefore stipulated oi-ally A\ith every employee whom it took on that he would keep out of the union so lono- as he worked for the ]>laintiff. Subse(pient to the bi-inuinj]: of suit t!ie acn'P^ment was reduced to wi-itini:-. At this time the Panliandle district of West ^''irii•inia was in jjeneral non-union tei'ritory, wliilc Oliirt, Indiana and Illinois were unionized. At tie national convention of the Fnitcd Mine AVoikci-s in iTidianajioJis tliei-e was a ueiKM-al erators in West Virginia, who demanded that the mines be run "union," and threatened to incite strikes if they were not. The operators having refused, the orga- nizers proceeded to proseletyze among the workers, persuading them to sign statements agreeing to join the union and strike when called upon to do so. There was some evidence that deception and abuse were used. It was also shown that the orga- nizers knew of the existence of the contracts. District Judge Dayton, on the siiit of the Hitch- man Company, granted a restraining order (172 Fed., 963), and the Circuit Cburt of Appeals dis- missed an appeal on jurisdictional grounds (17(5 Fed., 549) . The case went to trial, and Judge Day- ton made the injunction permanent. His opinion was based upon the theory that the law of Engl And. as it existed prior to 1776, forbade combinations of workingmen to raise wagevs^ or in any way to restrain trade; that this law was adopted by Vir- ginia in 1776, and in West Virginia when that state separated from Virginia ; and that it bad not been changed by subsequent legislation. He held that the whole organization of the United Mine Workers was an illegal conspiracy at common law and under the Sherman Law, because it undertakes to "control the freedom of its members to work when and for whom they please," and to "destroy tlie right of the employer to conduct his own busi- ness as he pleases" (202 I'ed., 512). In the Circuit Court of Appeals the decree was reversed. The Court ]iointed out that the old Eng- lish law upon which Judge Dayton relied prevailed A^'llell "property rights were recognized as para- 25 mount to personal rifjhts," and when labor's "domi- nation bv the landlord and capitalist was absolute in most respects." Under the modern concejition of the law. the Court held, the conduct of labor unions was lawful so lone; as only persuasion was useil. It was as lawful for the defendants^ to induce employers to deal only with them as it was for the plaintiff to induce its employees not to deal with the ecuniary value, and is protected by law, even if there are no contracts which requir<' I lie (Mii])l()yc('s to continue to worlc. Tlic riulit (if action for persuadinu- em])loyees to leave their em- ])loyers exists in AVest Vii-jiinia {TJiarkrr Con] Co. V. Hiirhr, 50 West Va., 253). For infriniiinjj this ri^ht of the plaintiffs, tin* dt fcndants have shown no justification. They can- not justify under the rijiht of emjjloyees to bettci- their conditions, because they do not represent the employee.s of the plaintiff, but i-ei)re.sent employees in other .'States. They cannot justify under the ri.uht of unions to inci-ease their mcmlKM-ship. because theii- jmrjiose was nol so iimdi to enlarge tlieii- memheisliip. as to ((uiipel the |ilaintiri' to i-eeoniii/c 26 and deal witli the union. "There is no evidence to show, nor can it be inferred, that defendants in- tended or desired to have the men at these mines join the Union, unless they could organize the mines'' (p. 256). They cannot justify under the right of competition, since the defendants were not competitors of the plaintiff. Moreover, illegal meansi were used. The defendants knowingly in- duced the men to break their contracts, and they used intimidation. "The disordered condition of a mining town in time of strike is matter of common knowledge. It was this kind of intimidation, as well as that resulting from the large organized membership of the Union, that defendants sought to exert upon plaintiff. * * *" (p. 258). "Upon all the facts," the Court concluded, "we are constrained to hold that the purpose enter- tained by defendants to bring about a strike at plaintiff's mine in order to compel plaintiff, through fear of financial losvS, to consent to the unionization of the mine as the lesser evil, was an unlawful pur- pose, and that the methods resorted to by Hughes the inducing of employees to unite with the Union in an effort to subvert the system of employ- ment at the mine by concerted breaches of the con- tracts of employment known to be in force there, not to mention misrepresentation, deceptive state- ments, and threats of pecuniary loss communicated by Hughes to the men were unlawful and malicious methods, and not to be justified as a fair exercise of the right to increase the membership of the Union" (p. 259). The Court therefore sustained an injunction which covered (1) interfering with employees of the plaintiff for the purpose of unionizing the mine without the plaintiff's consent, by representing tliat the employees will suffer "some loss or troulile" if they continue to work for the jilaintiff; (2) in 27 aid of such a purpose causini;- auy breach of con- tract; (3) "knowiiiiily and wilfully enticing plain- tiff's employees, present or future, to leave the plaintiff's service on the ground that plaintiff does not rwognize the United Mine Workers of America or runs a non-union mine." In so far as the case holds that it is unlawful for a national union to peacefully persuade the employees of a non-union em})loyer to strike for recognition of the nnion, it may be argued that the ease is in favor of the plaintiffs in the case at bar. The following circumstances, however, weak- en the force of the case as a precedent : (1) The decision, not resting upon any consti- tutional or other Fedeml principle, is not binding upon the New York courts. The jurisdiction of the Federal District Court rested solely upon di- versity of citizenshi]), the plaintiff being a West Virginia corporation and the defendants all citizens of Ohio. The District Court i-ested its conclusion solely upon an interjiretation of West Virginia law, and the Supreme Court also referi-ed to the fact that AVest Virginia law recognized an action foi- enticing aAvay em])loyees. Indeed the AVest A'irginia case cited by the Court has already estab- lisJHMl ilic law (if that state in accoj-d willi tlic tbH'ision in the HilcJniKnt ease. Tluu-kcr ('(Mil Co. v. Burke, nil AVest A'a-, 'j:>:i: r^i S. K., l(;i. in this ease a <(>al com])any brought a bill in e(iuity alleging that the defendants, officials of the l^nitcil Mine WorkcM-s, liad wilfully, wrong- fully and nialiciva,t!:es and shorter hours. In tliis case three Jus- tices dissented, citiu}? in su])})ort of their disi^ent tile lOllowinii New York ciises; liot/crs v. Krarls, 17 X. ^'. Su])p.. 2()1; Burns v. Bricklai/ers^ Union, It X. V. 8u}tp., ."501: Rri/nolfh v. Errrcit. 144 X. v.. IS!); .1////.S- v. I'nlinJ Slates Prhiiinii Co., 99 Ap]). Div., (;05; Fiirtsf v. Musical Muiutil Protn- lirc Union, 95 X. V. Suj)])., 155. It has always been recognized that the law <;!' Xew Ydik (til labor (piesfions is more advanccil than the law of Massachusetts oi* Xew Jersey. Thus a strike lor a closed shoj) is illegal in Massa- ^•husetts \ Plant v. Woods, 17(1 Ma.ss., 492) and in Xew Jersey ( h'mhii/ v. Inilrtl Associal io)!, 70 X. 4. I... 407; 75 All.. 712 i. It is lawful in Xew Ynvk {Kissani v. L nilcd Slafes Printintf Co.. P.M.) N. ^'., 70). Again, t(» persuade (■:i:])l(»yer's to strike is nn- lauriil ill Xew Jeisev [.lonas dhi.ss Co. \. Glass 30 BottJe Blowers Ass'n, 11 N. J. Eq., 219) . It is law- ful in New York {Mills v. United States Printing Co., 99 App. Div., 605). A boycott even within the industry, is unlawful in Masisachusetts {Pickett v. Walsh, 192 Mass., 572), and any boycott of what- soever description is illegal in Xew Jersey {Martin V. McFall, 65 N. J. Eq., 91; 55 Atl., 465). A boy- cott within the industry is not illegal in Kew York {Bossert v. Dhmj, 221 N. Y., 342). The fact that the Supreme Court of the United States has followed in itv«i decisions cases which have long been recognized to be contraiy to the New York law is surely no reason why the New York courts should now abandon their well-settled doctrines and adopt the doctrines of Massachusetts and New Jersey. (3) Moreover, the Supreme Oourt of the United States, in a case involving, not West Virginia law, but New York law, has itself recognized that the rule in New York was different, and has sustained trade union activities which would certainly be held uulawful under Xew Jersey and Massachusetts precedents. In Paine Lumhcr Co. v. Yr«7, 244 U. S., 459, the state of facts was virtually the same as in Bossert v. Dhuif. The Ignited Brotherliood of Carpenters' rules requiring meml)ers to refrain from working with non-union men or non-union trim were attacked in bills in equity in the Eederal Courts. A majority of the Court lield (Justices Pitney, McKenna, Van Devanter and McReynolds diBsenting) (1) that the activities could not be restrained at the suit of a private individual under tlie Sliei'tnan Law; (2) that they did not violate tlie conniion law of New York. On this latter point tlie Court said : '*As this court is not the final authority concerning the laws of New York we say hut 31 a word about them. We shall not believe that the ordinary action of a labor union can be made the ijronnd of an injunction under thos-^e law>« nntil we are so instructed by the New York Court of Appeals. National Protective Association of Steam Fitters & Helpers v. Cnnuuin.u-, 170 N. Y. 315. Cer- tainly the conduct conijilaincd of has no ten- dency to produce a monopoly of manufacture or biuldiuii- since the more successful it is the more competitors are iutronrpose was said to render the combination illeirnl des])ite a ])os-sil)le remote object of economic bettei- meut (152 N. Y.. :V.\. '}'.)). In Xdfioud} rrofrrfire 32 Ass'n V. Cumming, Chief Judge Parker cousideved that the only motive of the defendants was "to benefit their members by securing their employ- ment/' while Judge Vann, dissenting, believed that "the object of the defendants w^as not to get higher wages, shorter hoursi or better terms for themselves, but to prevent others from following their lawful calling." In Jacobs v. Cohen the closed shop agree- ment was sustained because its object was economic betterment, and injury to non-union workmen was considered incidental (183 X. Y., 207), In Kissant v. United States Printing Co., a closed shop agree- ment was likewise sustained, on a finding of fact that "the agreement was not entered into for the purpose of gratifying malice against the non-union employees of the printing company or of inflicting injury upon thenv' (199 N. Y., 76). In the Bosscrt case it will be recalled that Justice Blackmar held strikes called against builders who used the plain- tiff's non-union trim to be illegal, on the ground that the "purpose" was to injure the plaintiff; that Justice Crane held virtually the same conduct to be legal, because the "purpose'' was to im])i'ove the conditions of union labor; that Justice Putnam again held that such conduct was illegal because the injury to the plaintiff w^as the "dii'ect result souglit" and the economic betterment remote and incidental; and that finally the Court of Appeals reversed the decision, granting an injunction on the ground that "it was not the intent and pui'pose of the defendants in this case to injure the good mil or business of tlie plaintiffs as individuals or of non-union manufacturers generally." And lastly, in Anburn Drai/ing Co. v. WardcU, the gen- eral boycott through the Central Labor Union was held unlawi'ul, on a finding of fact that "the pri- mary purpose sought by the defendants was the injury and destruction of plaintiff's business," and 33 that tlio "uKiiiiate hojie of iKMiotit to oriiaiiizcd lalior" was too i-omote to l»o iiiatcrial ( '221 X. V., 1 ) . ProptM-Iv uii(l(M-slo(i(l. these jijejicral i>i-iiici])los correctly stute the jj^roiiiuls of decision in the Xew York courts. But they are liable to niisc-onstruction if considered apart from the facts of the particular cases, i^uppose a siiii]»l(' case of a strike to enforce a closed union shop. It cannot be that the lawful- ness of such a strike can de})end upon whether the trial con It was of opinion that the "purpose" was economic betterment, or whether it thought the ])ur])ose was injui-v to non-union employees. A ])urely i)sycholooical inquiry into motives can- not be the SK^le fn*ound of decision. If it w(M(\ the law would be in an intolerable state of uncertainty, for it wowld depend in each case upon the trial judiic's intuition as to the state of the defendant's mind. lieanufi in mind tlie facts of the New York cases previously sununarized. a slight analytical digression will indicate tlie ti-uc principle of the New Yoik cases. Assume tliat a natumal union sets ont. by tlie usual mctliods of peaceful ]ici'suasion, picketing", boycotts, and public ajipeals. to induce a pju'ticubir employei- to uiiioni/.e liis sho]). Any ])art iculai- act in the cour.»-e of this endeavoi* will have a whole hiei-archy of ]>ur])oses and intentions behind it. An oi-ganizer, for instance, tells a (dothing contractoi- that lie will call out liis employees if the coiit i-actoi- continues to work for the plaintiff. Tlis inunediate tactical objective is no doubt to intli<-t a <-ei-tain kind i.l' peciiiiiai-y loss on the jilahititf. I'lit bejiiml this tactical objective is the larger strategic o])jec- tive of unionization. And behind this strategic oI:jective is the ultimate juirpose, the cdiisd cfiiisiiiis of the whole nndert ak ing. namely. eocietj too great. The basis of the decision in the Wardcll ease was not that the ultimate purpose of the defendants was improper. It was conceded that their ultimate motive was economic better- ment, not personal ill-will or corruption. It was not because their strategic objective of unioniza- tion was illegal. The case does not purport to over- rule the Bossert case. The basis of the decision is that the means used, a coercive boycott which reaches out into unrelated industries outside the sphere of interest in the controversy, is contrary to public policy and illegal. It is illegal, however laudable the ultimate aims which inspired it. The facts in the case at bar present no features ?loyees of Michaels, Stern &: Company industrial 43 machineiy of arbitration and collective baigain- ing- which would preserve those standards in the future. It is- their purpose to prove this inter- est by laying- before the Court in comprehensive and scientifically arranged form the economic facts prevailing in the clothing industiy whicli prove that non-union conditions in a particular shop tend to undermine the standards and economic ideals of the industry. They intend to establish, not by the- oretical abstraction, but by proven industrial fact, the direct and demonstrable connection between ex- tension of the machinery of collective bargaining, of arbitration, and of labor standards, wliich the Amalgamated is seeking to put into effect, and the welfare and progress not only of the union member- ship, but of the industiy as a whole. The method which they propose to follow is the method whicli, in a striking case in an analogous field of the law, has received the emphatic approval of the New York Court of Appeals. The question was as to the constitutionality of a law proliibiting iiiglit work of women in factories. When such a law fii-st came befoi'e the Court, the issues weie argued upon abstract prhici]des of law, and the Court concluded, uj)oii a priori reasoning, that the purpose of the law Isore no relation to the health and welfare of the community, but that it was solely an attempt of the Legislature to exchule a class of citizens from a lawful occupation [People V. WilUams, 180 X. Y., 131). Eight years Inter virtually tlie same law came before the Court (Peo- ple V. Charles Selureiuler Press, 214 X. Y., 395)- This time counsel submitted to the Court an over- whelming mass of testimony bearing on the evil relation between night work and the health of the race. The Conrt recognized that what it once thought to be a question of law was in truth a complex question of industrial any theoretical argument, but also by the opinions of trade unionists, manufacturers, specialists in in- dustrial relations, and Government officials who have had oflftcial experience with the workings of the Amalgamated, and by the official and indis- ])utable records and statistics of the industry, D. Admissibility of Such Evidence. The admissibility of economic data of this sort Tests ujton recognized principles of the law of evi- dence. 1. It is adniivssiblii to show the purpose and <:haracter of the combination. If the defendants were under indictment foi- an alleged unlawful conspiracy, upon familiar prin- on the plaintiffs by tlie defendants was justified in laAv. An analysis of trade union cases, at first siglit slightly different from the analysis followed in the New York cases, but in substance the same, may l)e found in the writings of Mr. Justice Holmes (see especially Privilege;, Malice and Intent, by Oliver Wendell Holmes, Jr., 8 Harv. Law Rev.. 1 [1894]). The principle is that "the intentional infliction of temporal damage or the doing of an 49 act manifestly likely to inflict sncb (laniage anrl inflicting;- it, m actionable if done without just cause" {ihid, \). 3). And more specifically that *'when a plaintiff proves that several personsi have combined and conspired to injure his business, and have done acts produciug that effect, he shoAvs tem- poral damage and a cause of action, unless the facts disclose, or the defendants prove, some ground of excuse or jus-tificajtion" (Holmes, J.^ dissenting, in Yrr/elahn V. Gunfncr, 107 Mass., 92, 105). The justification in cases involving trade union activity is the broad justification of free competi- tion, of the economic strnggle for existence. Of course, the justification is not absolute. -'We all agree that it cannot be done by force or thi-eats of force" {ihkl, p. 100). And the justification exists only "when the damage is done not for its own sake, but as an instrumentality in reaching the end of victory in the battle of trade." As to the scope of the justification, "the true gi'ounds of decision are considerations of policy and of social advantage, and it is vain to suppose that solutions can be attained merely by logic and the general propositions of law which nobody disputes" {ibid, p. 100). "The danger is that such considerations should have their weight in an articulate form as unconscious prejudice or half con- scious inclination. To measure them justly needs not only the liighest powers of a judge and a training which the practice of the law does not insure, but alsO' a freedom from ])repossessions which is very hard to attain. It seems to me desirable that ^the work should be done with express recognition of its natui-e. The time lias gone by wlien law is only an unconscious embodiment of the common will. It has become a conscious reaction upon its,elf of organized society 50 knowingly seeking to determine its own des- tinies" {Privilege, Malice and Intent, 8 Harv. Law Eev., p. 9). Since the courts must, in the absence of legis- lation, determine the extent and scope of justifica- tion in industrial controversies, it is imperative that they should have before them, as material for the decision, all the relevant industrial facts — the effect of unionization upon the industry, its im- portance as a means of attaining and preserving fair industrial standards, and the extent to which it is able, while seeking primarily its own economic advantage, to safeguard the interests of the in- dustry and of the public. The type of economic fact legally relevant to such a judicial inquiry is clearly set forth in a recent decision of the Supreme Court of the United States (Board of Tirade of Chicago v. United States, 24G U. S., 231 ) . The question was whether a rule estab- lished by the grain market, forbidding any member from purchasing grain outside of market hours at any other j)rlce than the closing bid of the previous session, was in violation of the Sherman Law. The lower Court held the rule was in restraint of trade, merely from an examination of the rule itself, and excluded all evidence as to the economic effect or object of the rule. The Supreme Court reversed the decision. "The true test of legality-," said Mr.. Justice Brandeis, speaking for a unanimotis Court, "is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competi- tion or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts pecu- liar to the business to which the restraint is ap- plied; its condition before and after the restraint was imposed; the nature of the restraint and its 51 effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation or the reverse; but because knowledge of intent may help the court to interpret facts and to predict consequences. The District Court eiTed, therefore, in striking from the answer allegations concerning the history and purpose of the Call rule and in later excluding evi- dence on that subject" (pp. 238, 239). The analogj' between this case and tlie case at bar is a very close one. In each case there is a charge that the normal course of competitive in- dustry has been restrained — in the Federal case by an association of grain dealers, in the case at bar by an association of workers. In each case it is necessary to establish a justification. And in each case that justification must rest not on a mere deduction from theoretical economic conceptions, but on "the facts peculiar to the business to which the restraint is applied," E. Methods of Proof. As to tlie metlicd of establishing the relevanl facts, under the rules of evidence, little need here be said, for the legal problem will differ to some extent with each item of testimony. The outlines of the subject can, however, be touched u])on. 1. The res gestae. Since the piineipal i.^'Siie in the case is as to the nature, organization, activi- ties and purposes of the Amalgamated, in so far as the^' relate to the strike at Michaels, Stern cV: 'Company's shop, it follows that any transactions, negotiations, correspondence, aj^reements, etc., are 52 a part of, or cliaracterize, the activities of the Anial- i>aiiiated, or the surrounding eircimistances in which they acted, are admissible as part of tlie res f/esfac — ^^or, if the term is preferred, as evidentiary facts relevant to the issue. They are admissible, l^ecause it is a fact logically relevant to the issue that such agreements, transactions, corresipoud- ence, etc., took place {Badger v. Badger, 88 ]^. Y., 546, 556; Wigmore, p. 1729; cf. Lawlor v. Loeive, 235 IT. S., 522, 536, where statements of customer-s as to the reason why they stopped dealing with the plaintiff were held admissible). In SinifJi V. yafionnl Benefit Society, 123 X. Y., 85, the in- surance company claimed that the insured, being insolvent, had carried through a deliberate and fraudulent plan of placing life insulance with a number of companies and then committing suicide, so that his creditors and family might l)e pr-ovided for. It was held proper to show ap])lications to thirty-six insurance companies, letters and tele- grams to relatives and friends, and pre]>a rations for suicide, as part of the res gestae of the fraud. 2. Expert Testimony. As to th.e general eco- nomic facts at issue, the case is emphatically one for expert testimony. Economic problems are in- volved which require expert familiarity with the use of statistics, the oi\ganization nnd functioning of industry, and the problems of labor management. ]\[orec;ver, the case not only involves general ques- tions which might arise in any business, but in- volves the industrial facts j^eculiar to the men's clothing industry of the United States. Two kinds of expert testimony should be differ- entiated : (a) Where certain facts are in evidence, the rx])ert may be asked what conclusions his ex- l)ert knowledge and experience would lead him to draw f]-om the facts, (b) Where the ex])ert hns himself acquired knowledge of certain facts rele- 53 vaut to the case, which his experience and tiaiuiiiij, render him pecnliavly qualified to reproduce cor- rectly, he may testify directly to tluii-f' facts, as well as to the conclusions which he draws fi-om them {DoughGrty v. MilUken, 163 X. Y,. 527). In one aspect the firet type of expert evidence is especially important. It is settled law that where a mass of documents and records are involved, it is jH'oper to allow" an expert statistician to draw statistical and expert conclusions from this evi- dence, and place them before the Court in the form of summariesi, charts, and other graphic representa- tions. The rule is one of convenience, to save the time of the Court, and to give to the Court assist- ance in comprehending complicated and voluminous data. It is obviously a rule of common sense. The leading American case on the subject is Bos- ton (G ^yorcesier R. Corp. v. Dana, 07 Mass., 83. This was a suit agtiinst a ticket agent for em- bezzling ticket recei])ts, and a witness was allowed to present as exhibits schedules showing the num- ber of tickets sold at specified dates, and the num- ber of tickets taken u]) from ])assengers by con- on any data which an expert in tliat line custoiiiai-ily relies u])on (Wif/iiKire, See. (Uio [3]). 58 It frequently happens, however, that these gen- eral facts are themselves directly in issue in a case, instead of constituting merely the major premise upon which an expert opinion is based. An issue may arise, for instance, whether a given method of doing business is customary in a trade. Upon strict principle, no one could testify on this issue who had not ascertained from personal observation that all or virtually all the shops in the trade used the method in question. But it is recognized that one who is experienced in the trade and is familiar with the customs of the trade may testify without complete first hand observation. Thus two experi- enced workmen, though they had been employed in only four or five of the fifty shops of the kind in Kew York City, were allowed to testify to a general custom among those shops of furnishing workmen with tongs and anvil for sharpening tools rather than with gas pliers and slabs of steel [Miele V. Rosenhlatt, 164 App. Div., G04). Testimony of experts as to general industrial facts is familiar in many different kinds of litiga- tion. An expert witness in a patent case may tes- tify as to the "state of the art" at a given time {Winmis v. A^ Y. d Erie B. R. Co., 21 How., 88, 100). A farming expert may testify as to the average yield of a given crop (38 Ore., 291; 61 Pac, 837). In each of these cases the testimony is as to a fact, and much of the information upon which it is based is necessarily hearsay. The ex- pert in the patent case, for exami)le, had not him- self observed all the existing mechanical devices which made up the state of the art; lie had doubt- less read of them in technical journals, and lieard his colleagues discuss tliem; but liis expert train- ing enabled him to judge what statements he could rely upon. 59 The most familiar type of expert testimony of this character is testimony as tO' market value. Anyone familiar with an industry or with market conditions affecting" a commodity may testify what was the market value of that commodity at a given time, even tliough liis knowledge A\'as based n])on hearsay. The leading Xew York case is Lush v. Drusr, 4 Wend., 313, where it became relevant to prove the market value of wheat at Albany in 1822, 1824 and 1825. ''A witness,*' the statement of facts recites, *'pi'oved the value of wheat in Albany in the years 1822, '23, '24 and '25, derived by him from tlie books of large dealers in wheat at that place, he knowing nothing of the price of wheat from his own knowledge" (p. 314). The Court held the tes- timony admissible, observing that "The proof was by a witness who had inquired of merchants deal- ing in the article, and examined their books. This, uncontradicted, was sufficient" (p. 317). The decision was cited and approved by the f^u})reme Court of the United States in CUquofs iliampafine, 3 Wall., 114, where a witness was per- mitted to testify as to the market price of cham- pagnes in different sections of France, basing his <*onclusiongi on prices-curi'ent furnished him by Prench dealersi and on the statements of such ■dealers. In Chaffee ct- Co. v. United States, 18 Wall., 516, 542, referring to the Cliquot case, the Court said : '^Market value is a matter of opinion, which may require for its formation the con- sideration of a great variety of facts. To arrive at a just conclusion, prices current, vSales. sliipments, lettei-s from dealers and manufactureis. jiiay prtqterly i-eceive consid- eration." And in the recent case of Xew Arcade Co. v, €>wens, 258 Fed., 905, a ])r()dnce dealer was allowi^t.I 60 to testify as to the market value of celery, his knowledge being derived from "going down the line" at the market and asking the dealers. The cases have been followed without qualifica- tion in the later New York decisions. Of course it is not proper to introduce a newspa^ier report of market quotations, without some evidence of experts tending to show that it is reliable (WheJan v. L^nch, 60 N. Y., 469). But it is proper for an expert in the trade to testify as to the market value of barley on a certain day {Ham- Jin V. Sears^ 82 N. Y., 327), or for the sales agent of a Philadelphia lumber dealer to testify as to the wholesale price of lumber in New York, although his knowledge was derived from hearsay (Kilpaf- rich V. Whitmer d Son, 118 App. Div., 98), or for a broker to testify as to the customary commission of brokers {Van Doren v. Jelliffe, 1 Misc., 354. Accord, Sisson v. C. d T. R. Co., 14 Mich., 489 ; Stnith d- Melton v. N. C. R. R. Co., 68 N. C, 107, 116). An expert in the clothing industiy may, there- fore, testify to such general trade facts as the level of prices, or of wages, the customary hours of work, etc., etc., so long as the court is convinced that the source of his information is accurate, and that he lias the necessary expert qualifications for the task of summarizing and reproducing the information. He may testify, moreover, upon questions which are more nearly matters of opinion than of fact. Just as a marine underwriter may testify that cer- tain kinds of cargo increase the risk of the ven- ture (Lcifeh V. Insurance Co., 66 N. Y., 107), or a medical expert whether a certain wound caused the death of the victim {Egfjler v. People, 56 X. Y., 642). so it would seem clearly to lie competent for an expert familiar with the men's clothing in- dustry to testify as to the interrelation of markets 61 and the interdepeiideuce of industrial standards in the different clothing centers, or as to the effect of unionization upon an industry, or upon any similar question relating to trade. The expert witness may state not only the gen- eral conclusions reached by him, but the data upon whicli the conclusionsi are based {Wigmore, Sec. 5G2). Thus in CUquofs Champagne, 3 Wall., 114, the expert put in evidence the price-currents which foreign dealers had furnished him, and whicli were the basis of his expert judgment as to the market value of IIk' chMJiipngne. 62 PART THIRD. LaTirf Illness of Particular Means. Assuming- that in pursuit of their objective of inducing the plaintiff to accept the system of col- lective bargaining and arbitration generally preva- lent in the industry, the defendantsi could properly use any means not in themselvesi unlawful, it re- mains to consider what particular means are ap- proved by the law of New York and what means are disapproved. The inquiry is rendered difficult by the circum- stance that courts, especially in other jurisdictions, sometimes use words (like ''threat," "coercion," 'intimidation/' etc.) which have an ambiguous significance. They may denote illegal conduct, and they may denote legal conduct. Hence it will be necessaiw to cany the analysis behind such general j)hrases, and to inquire specifically into the facts behind these words which determine whether or not tlie conduct is legal or illegal. Fortunately the decisions of the New York courts contain much clarifying language as to the meaning of these am- Itigiious phrases. Strikes. It is, of coui-sp, no longer necessary to argue that in New York the workmen in a particular industry can concertedly cease to woik for an employer. As a means to a lawful end, the strike is nowhere held unlawful. Cases in which strikes have lieen enjoined have been those in which the object of the strike was deemed illegal. In National Protective Ass'n V. Cumming, 170 N. Y., 315, botli majoi'ity and minority Judges agreed upon the following statement of the law: 63 ''It is not the duty of one man to work for another unless he has agreed to, and if he has so agreed but for no fixed period, either may end the contract whenever he chooses. The one may work, or refuse to work, at will, and the other may hire or discharge at will. The terms of employment are subject to mu- tual agreement, Avithout let or hindrance from anyone. If the terms do not suit, or the employer does; not please, the right to quit m absolute, and no one may demand a reason therefor. Whatever one man may do alone, he may dO' in combination witli others, provided they have no unlawful ob- ject in view\ Mere numbers do not ordi- narily affect the quality of the act. Work- ingmen have the right to organize for the l>ui'])ose of securing higher wages, shorter hours of labor, or improving their relations with their employers. They have the right to strike; that is, to cease working in a body by pre-arrangement until a grievance is redressed, provided the object is not to gratify malice or inflict injury upon others, but to secure better terms, of employment for themselves. A peaceable and orderly strike, not to harm others, but to improve their own condition, is not in violation of law" (pp. 320, 321). Persuasion or Enticement. In Xew York it is not unlawful to persuade or entice other workmen to strike. Under the old English ccmimon law of the four- teenth century, before the Statute of Laborers, it was not actionable to entice away another man's servant. An action on the case at common law lay only where there was a forcible trespass, and a taking of the servant vi ct arm is. (Year Book Mich., 11 H. 4 [a], fol. 23 A, pi. 46. The fullest available report of this case is in Mr. Justice Coleridge's 64 opinion in Lumley v. Gye, 2 El. & BL, 216, 254.) The Statute of Laborers (23 Edw., Ill) estab- lished compulsory labor, and under it an action lay against anyone who caused a servant under contract of service to depart before his term ex- pired. The statute applied only to laborers in husbandry. As Justice Cottesmore said {Year Book Mich., 10 H. 6 [d], fol. 8B, pi. 30) : ''It was not made but for laborers in hus- bandly; as in case of a knight, an esquire, or gentleman, you cannot compel them to be in your service by the statute, for that the statute is not to be understood but of laborers, who are vagrant, and have nothing whereby to live; these shall be compelled to be in service, but a chaplain hath whereof he may live in common understanding as a gentleman'' (p. 265). From this statute and its successors grew the so-called common-law action for enticing seiwauts. It applied whether or not the seiTant was under contract for a specified time (Hart & Aldridge, Cowp. 54). Early ^N'ew York cases assume the existence of this right of action. Thus in Stuart v. Simpson, 1 Wend., 376, a theatre was sued for employing the plaintiff's apprentices as supernumeraries. There was a non-suit, for lack of evidence that the defendant knew they were apprentices. Woodicard V. Washburn, 3 Den., 369, was an action for false imprisonment of the plaintiff's servant. Recover^' was allowed and the Court in its opinion approved the English doctrine that for enticing a servant a cause of action lay. Haight v. Badgeley, 15 Barb., 499, was a suit for trespassing on the plaintiff's land and enticing away her servant girl. RecoveiT 65 was allowed on the theory tliat ^'The gravamen of the complaint is trespass domiim f regit, and the persuasion of the servant is matter of aggravation." Biit the Court was of opinion that the English ac- tion for enticing seiTantsi even without a trespass M'ould lie. Caughcy v. ^mitli, 47 N. Y., 244, was a suit by the father of a fifteen-year-old boy against one whO' enticed the son to enlist as his substitute in the army. Recovery was allowed on proof of scienter, and the Court'si language indicatesi its opin- ion that a similar action wonld lie for enticing any '^servant." But these dicta were soon recognized to be ont of harmony with the modern democratic spirit. Johnston Harvester Co. v. Peter Meinhnrdt, 60 How. Pr., 168 (1880), is a historic case, notable both for the importance of the point decided and for the ability of Justice Macond^er's decision. There was a strike at the plaintiff's shop, and the Iron Moulders Union adopted tactics designed to persuade workmen not to work for the plaintiff until he conceded the union denumds. The i)lain- tifP asked for an injunction and his counsel, relying upon the English decisions and Xew York dicta, claimed that the Court could enjoin any enticement of liis servants by the union officials. Justice Ma- comber, after examining fully the early New York <*aseg, and the English precedents culminating in Ijumley v. Gye, 2 El. & Bl., 216, commented as follows: ''As is well known, the origin of this kind of actions was at a time of the snbstantial enslavement of domestic servants, and at : the outset it proceeded u])on the theory that snch servant had not freedom of action which is conceded to that class today; yet in one way or another, the doctrine has been extended, as has been sliown above, not only in England but in ]>arts of the United States, G6 to cases which in its inception it did not cover. I am disinclined to extend, by any judgment of mine, the doctrine of recoveiy for enticing away servants where, both in fact and theory the person enticed is a free agent to come and go as he will, responsible only, like other persons, for the violation of his contract or his duty*' (pi>. 175-176). The Court held that only acts of violence, in- timidation or coercion would be enjoined. The case wasi afflirmed in the Appellate Division (21 Hun, 489, memorandum opinion) on the ground that the acts "did not constitute invasion of any clear right of property vested in the plain- tiff, and that no irreparable injury was threat- ened." Rogers v. Evurts, 17 K Y. Supp., 201; aff'd sub nom Reynolds V. Everett, 67 Hun, 291; 144 N. Y., 189, was a similar case, involving peaceful per- suasion of employees to strike. The Trial Ooui't discussed fully the common law cases, and reached the conclusion that the doctrine of the "entice- ment" cases had not been accepted in New York, and was not satisfactory. Its decision denying an injunction was sustained in the Appellate Division, in an exhaustive opinion. The Court of Appeals affirmed the decision, without passing on the merits, on the ground that it was within the Trial Court's discretion to deny the injunction, since there was no immediate iiTeparable injury threat- ened. These cases establish as the law of Xew York that, in the absence of contracts, it is not action- able to induce an employee by peaceful and honest persuasion to leave his master's employ. Hence it is clear that the dictum of Mr. Justice Pitney in Hitchman Coal <£• Coke Co. v. Mitchell, 245 U. S., 229, 252, that the "right of action for 67 persuading- an employee to leave his employer is universally recognized * * * and it refits upon fundamental principles of general application, not upon the English statute of laborers," is not ap- plicable to the law of New York. In New York the action is recognized as a relic of feudalism, of an age in whicli, as Cottesmere, J., pointed out, there was one law for "laborers" and anotlier law for "gentlemen." The Hitchmmi case has not changed the law of Xew York upon this point, even in the Federal rourts. In Triangle Film Corp. v. Artcraft Pic- tiires Corp., 250 Fed., 981, the Circuit Court of Appeals, Second Circuit, so held. W. S. Hart, the moving picture star, was under contract to remain with the plaintiff so long as one luce should be his supervising proxlncer. Ince was not under <-ontract to remain with the plaintiff. The defend- ant, a rival tilm producer, induced Ince to sever his connection with the plaintiff, thus releasing Hart from his contract, and then employed lioth Ince and Hart. The plaintiff claimed that altliough no contract was violated, yet a case was made out ainder the doctrine of enticement of servants set forth in the Hitchman case. The Court sustained the order of the Court below denying an iujunctiou^ staying: ^'Yet it is clear that the real question turns I upon what is 'just cause' (Piivilege, Malice and Intent, Oliver Wendell Holmes, Jr., <^ Harv. Law R., 1 ) and that in etfect it makes slight difference whether on© asks in respect of what 'cause of action' the plaintiff suf- fei'ed his damage, or whether the defendant had 'just cause' for inflicting the damage, though it d!)eK' make a good deal of difference in the development of the law. Nobody lias -ever thought, so far as we can find, that in the absence of some monoj)olistic pui*])Ose G8 everyone haw not tlie right to offer better terras to another's employee, so long as the latter is free to leave. The result of the contrary would he intolerable, both to such employers as could use the employee more effectively, and to such employees as might receive added pay. It would put an end to any kind of competition. That such a doctrine sliould be supposed to follow from Traux v. Raich, supra, or Hitchman Ooal Co. v. Mitchell, supra, some- what surprises us. In the first case the de- fendant had threatened to use illegal means to induce the employer to discharge the plain- tiff. In the second, a labor union had deter- mined to compel a mine to operate as a closed shop, and that, too, by fraud. It was iield that, since the union was not seeking to redress wrongs of which any of the plain- tiff's employees complained, but inter-vened only for the purpose of preventing any open shops which might compete with closed shops elsewhere, they had no 'just cause' for the ensuing damage. - * *" In siome of the Sonthern Statesi, it is true, the doctrine seems to ])e accepted {Lcc Daniel v. Sivearengen, 6 y. C, 297; Barren v. Colh'nfi, 49 Ga., 581; HasMns v. Roi/ster, 170 X. C, GOl). These were cases involving enticement of domestic servants, farm laborersi, and "croppers." In one of them ( DnnielY. ^ircarenfien) tlie Court observed that the doctrine was of especial importance in the state since tlie institution of s;lavery had been abol- ished. These cases belong to the days in Avhich the unregenerate South was trying hj indirect devices to re-establish slavery in the face of the Thirteenth Amendment (see Bailey v, Alabama, 21^ U. S., 210 ). Owe v>'ould hardly expect to hear them cited iu Xew Yorkv 09 In Xew York, therefore, the statement is true that ''ai'gunients, reasoning and entreaty are law- ful weapons" {People v. Kostka, i X, Y. Crini., 429, 435). Inducing Breach of Contract. There is no suggestion in this case that the em- ployees of Michaels, Stern & Company were under contract for any period of time. The relations appear to have been terminable at will. But it is alleged that certain contractors doing work for the plaintiff were induced, by threats of a strike, to cease working for the plaintilf, in breach of their contracts. And it is alleged that the de- fendants have sought to induce the plaintiff's em- ployees, who are members of the United Garment Workers, to break the contract between the United and Michaels, Stern & Company. Of course, no question of law arises under this heading unless it is proved that there was a valid mibsisting contract, and that the acts or omissions Induced by the defendants were in fact in breach of Sfuch contract. It is obviously unprofitable to Avs assumes that the plaintiffs are successful in meeting and sustaining" the burden of ]>roof upon this issue of fact. The law of New York u]x>n the right of action for inducing a breach of contract has been authori- tatively laid down in two recent decisions of the Court of A])i)eals; hence it is unnecessary to do more than refer briefly to the earlier cases. They begin with Ashley v. Dix&n^ 48 N. Y., 4.30, where A contracted to sell land to B, and B con- tracted to resell it to C. Thereupon O went over .B's> head to A, and induced A to sell it to C direct. 13 then >sued C in tort for iiulncin<2 A to l.u-eak 70 liis contract. The Court denied recovery, on the ground that C's obligation to refrain from inter- fering with the contract was "one of those imper- fect moral obligations which the law, as adminis- tered in OTir courts, does not undertake to enforce." This case was taken by the inferior courts of ^ew York to mean that the right of action for inducing breach of contract did not exist in Xew York unless illegal means was used {Daly v. Corn- wcJU 34 App. Div., 27; De Jonfj v. Behrman, 131 N. Y. Supp., 1083; MaJilcr Co. v. Mahler, 160 App. Div., 548; ^^ee also dicta in Johnston Harvester Co. V. Meinhardt, 60 How. Pr., 168; Rogers v. Erarts, 17 X. Y. Supp., 264, and Jesse I^asky Co. v. Fox^ 157 X. Y. Supp., 106). These eases expressly reject the English doctrine of Jumley y. Gye, 2 El. &: Bl., 216. In Posner Co. v. Jackson, 223 X. Y., 325, how- eyer, the Court materially modified the doctrine of these prior decisions. Sarah Posner, a dress designer of uni(pie abil- ity, had a fiye-year contract to work exclusiyely for the plaintiff corporation. The rovided in the contract." The Court distinguished Ashley v. Dixon and De Jonf/ V. Behrnian on the ground tliat in neither case was there a malicious intent to injure the ])laintiff. In Law!) v. Chencif, 227 N. Y., 418, the doctrine of the Posnrr case was amplified. One Bullard agreed to work for the ]daintif¥ for a year, receiv- ing in return stijmlated wages and the right to occu])y a liouse. Tlie <1efendant, with full notice of the contract, "maliciously enticed, induced and ])rocured" Bullard to leave the plaintiff's employ and enter that of the defendant. Damages were alleged. There was a demui'rer, overrided at Spe- cial Term and in the A])pellate Division. The Court of A])|)eals affirmed the decision, acce]>ting tlie general rule that "if one maliciously interferes with a contract between two parties, and induces one of them to break that contract, to the injury of the other, the party injured can maintain an action against the wrongdoer." "Tlie word 'maliciously'," the Court con- tinues, "is detined in Bouvier's Law Dic- tionary (Rawle, 3d Ed.) as meaning 'with deliberate intent to injure.' In actions of 72 tliis character the word should be given a liberal meaning. The act is malicious when the thing done is with the knowledge of the. plaintiff's rights and with the intent to in- terfere therewith. In a legal sense it means a wrongful act done intentionally without just cause or excuse (Mogul Steamship Co. V. McGregor, 23 Q. B. D. 598). It does not mean actual malice or ill will, but consists in the intentional doing of a wrongful act without legal justification" (p. 422). Both the Posner case and the Cheney case were decided on demurrer, hence they throw no light upon what facts would, if proven, constitute a jus- tification. Xor do the previous cases throw any light on the subject, since they reject the doctrine in toto. Hence it is necessary to look to the de- cisions in other jurisdictions to determine when an intentional interference with a contract is justified. At the beginning it is possible to set on one side a large group of cases in which the breach of contract was induced by illegal means, such as violence, fraud, or other conduct in itself tortious. Thus in Angle v. Chicago etc. Ry., 151 U. >>., 1, the defendants corruptly bribed trustees, in breach of trust, to transfer the controlling interest in a railway corporation to themselves, and through the control thus fraudulently acquired, procured the I'aihvay to break its contract with the plaintiff. In Bitterman v. Louisville d Nashville R. Co., 207 U. S., 205, ticket scalpers induced purchasers of non-transferable reduced rate tickets to transfer them, so that they might be fraudulently used b\- persons not entitled to use them. The trading stamp cases stand upon the same principle (Sperry d Hutchinson v. Brady ^ 134 Fed., 691; Same v. Mechanics Clothing Co., 135 Fed., 833; Same v. Temple, 137 Fed., 992 ; Same v. Weher d Co., 161 Fed., 219; Same v. Asch, 145 Fed., 659). 73 In Truaw v. Raich, 239 U. S., 33, the defendants, under color of an unconstitutional statute, were threatening forcible meang< to coerce an employer into dismissino- certain employees. See also Amer- ican Malting Co. v. Kcitcl, 209 Fed., 351 (C. C. A., 2nd Clr.) ; Motley, Green c6 Co. v. Detroit etc. Co., 161 Fed., 389; Gore v. Condon., 87 Md., 368; Ben- ton V. Pratt, 2 Wend., 385, and Rice v. Manley, 66 X. Y., 82. In these cases forcible or fraudulent means were used; and of course no economic justi- fication could be shown to excuse such conduct. Another group of cases involves, not illegal means, but an ultimate illegal purpose, such as restraint of trade or monopoly {Doremus v. Hen- nessy, 176 111., 608; Temperton v. Russell [1893], 1 Q. B., 715; Quinn v. LeatJianv, 1901 A. C, 195; KnickerhocJvcr Co. v. Gardiner Co., 107 Md., 556; Schonicald v. Rogain, 32 Old., 223) or a secondary boycott {Thomas v. Cincinnati R. Co., 62 Fed., 803). In these cases the conduct was considered illegal quite irrespective of the breach of contract. Hitchman Coal Co. v. Mitchell, 245 U. S., 229, properly falls under his head, since the Court con- sidered (contrary to the New York nile) that enticement of employees', for the purpose of union- izing the mine, was illegal, quite aside from the breaches of contract. Here also it is obvious that no justification could be found for the interference. In another group of jurisdictions the doctrine of Lumley v. Gye is flatly rejected {Bouslier V. McCauley, 91 Ky., 135; Sirann v. Johnson, 151 N. C. 93; Boyson v. Thorn, 98 Cal., 578; Sleeper V. Baker, 22 K D., 386). Turning, then, to the cases in which the question of justification is squarely raised, we find first a unanimous agreement that disinterested jiersuasion by a person who is not a mere intermeddler is not actionable, even though a breach of contract is directly and intentionally produced. Boweti V. 74 EaU, G Q. B. D., 333, the first English case to accept broadly the doctriue that iuteutioual inter- ference with a contract is actionable, recognized this exception. "Merely to persuade a person to break his. contract," said the Court, "may not be wrongful in law or fact^ as in the second case put by Coleridge, J. (p. 847). But if the persuasion be used for the indirect pur- pose of injur-ing the plaintiff, or of benefiting the defendant, it is a malicious act, which is in law and fact a wrong act, and therefore a wrongful act, and therefore an actionable act if injury ensues.'' Accord : ^Yalker \. Cronin, 107 Mass., 555, 55G. Pollock, Torts, Sec. 339. Thus, for a parent to persuade a son or daughter to break a contract of marriage, is not actionable {Leonard v. Whetstone, 34 Ind., , 383 ; Roman Y. Hall (Xeb.), 165 X. W., 881: Cooleij, Torts, 2nd Ed., Sec. 277). On the other hand, it is generally recognized in Xew York, as well as elsewhere, that there is no justification where the defendant merely wishes to appropriate to himself a contractual advantage to which the plaintiff isi in law and morals entitled (Posner v. Jackson, 223 N. Y., 325; Lamb v. Cheney, 221 jST. Y., 418). A competitor who per- suades a singer, or designer, or actress, or baseball player, under contract to work for the plaintiff, to break his contract and woi-k for the defendant, is doing what in business ethics is closely analogous to theft. He is appropriating to himself what he knows the plaintiff is entitled to. That the public policy in favor of free com])eti- tion affords some justification for inducing brea(•he^* 75 of contracts is, however, reeoguized by the courts. Where, for instance, a public utility company \yas established in a community, and had made con- tracts 'v\T.th its consumers extending into the future, it was held that a competitor could properly come into the field, and by adyertising and solicitation induce the customers to give him their patronage, although he knew that breaches of contract would probably eufeue. It was only when the company offered to hqld the prospective customers harmless from breach of contract suits that it was held tliat the justification of fair competition had l)een exceeded {Citkens Liglii etc. Co. v. Montgomery Co., Ill Fed., 553). And in Sperri/ cC- Hutchinson V. Ponuiier, 199 Fed., :509 ; 1'08 Fed.. SOi, tlie Oourt declined to enjoin the persuasion of customers to abandon their contrji^ts with the plaintiff, but en- joined only active and malicious and persistent solicitation- (See also Sweeney v. Smith, 167 Fed.. .■>85, and KjiickcrhocJcer Co. v. Gardiner Co., 107 Md., 550. Another generally accepted jiistifieatitjn is where tlie defendant is himself in good faitli asserting a legal right which, incidentally, causes another to break a contract. Obviously if A is under contract to work exclusiYely for B, and if he then contracts to work for C, B may i)roperly ini v. A His Chalmers Co., 166 Fed., 45 (C. C. A., Tth Cir. ). There was a strike at the Allis Chalmei-s iron foundry, and the company sent out its casiing to be done under con- tract by foundries in othei- cities. The strikers induced the molders in these other foundries to Tefuse to work on the castings, tind the molders thereupon tlireatened to strike unless tlieir em- ployers cancelled their contracts with the Allis Chalmers Company, Tlie District Court enjoined this procurement of bi-eaches of contract, but this part of the injunction was vacated in the Circuit Court of Ap])eals, "In t]i(;se instances where tlie foundrymen fultiiled their contracts," said the Court, "ap])ellee was not damaged ; in those wlicre i'ouudrymen bj-oke theii- contracts, tliere is 78 no proof that appellee has not collected or cannot collect adequate damages. That might be taken as a reason why appellee on this branch of the case is not entitlepellant had the reciprocal right of seeking the aid of fellow molders to prevent that end."^ Under the authority of this last cited case, there- fore, as well as nnder the manifest common sense of the situation, if it should appear that the con- tract between the United Garment AVorkers and the plaintiff was entered into merely as an incident in the general conflict between the plaintiff and the Amalgamated, it would follow that the Amal- gamated would be justified in using la^'ful means* of inducing a breach or abrogation of the contract. Any other mle would lead to the most extreme consequences. It would mean that any person who anticipated labor troubles conld at any time com- jdetely paralyze his opponent hy entering into con- tracts inconsistent \Aith their aims. Suppose a single nianufactui'er, who anticipates? a digagTeement \\ith a wealthy and powerful unionv of whicli his employees are all memTvers. He hastily makes large contracts with his customers for de- livery in the near future at a favorable price. He then notifies the union officials of the existence cf the rouirncts, and warns them that a strike will have the necessary effect of causing him to violate those contracts. Can it be that by this simple 79 device he can paralyze the actmty of the union leaders? Or that if they disregard the warning and call a strike, let ns say, for higher wages, they can be held for heavy damages to the manufac- turer's customers? Physical Force and Violence. No argument is necessary to show that to induce the plaintiff's employees not to work for him by physical violence is actionable, however laudable the motive. An early English case gave a trader a right of action against one Avho scared away his native customers by gunshots. And an early New York case allowed a landlord recovery against one who drove his tenant away by forcible means (Aldridge v. Stuyvesant, 1 Hall [N. Y.], 210). The same principle applies to a labor dispute {Mills v. U. S. Printing Co., 99 App. Div., COS). It is hardly necessary to add a word of caution that "force"' and "violence" when used in this connection mean physical force or violence. We sometimes speak of a strike as a resort to force rather than to reason, or say that a man is "forced" by economic pressure to do something against his will; but that is not the sense in which the word is used here. It means such an act as wonld sus- tain an action of assault and battery at common law. Threats, Menaces and Intimidation. Few words are as dangerously charged with am- I'riguity as these. The cases are full of injunctions against "force, threats and intimidation" (S^im Printing Co. v. Delaney, 48 App, Div., 623; Her^og V. Fitzgerald, 74 Ai)p. Div., 110; Kreha v. Rosen- stcin, 50 App. Div., ()19). But it must be insisted that where so nsed the words mean threats of 80' pliysical force, or of some other tortious conduct. In National Protective Ass'n v. Cwmming, 170 N. Y., 315, tlie lower Court supported its judgment by finding ''threats of a general strike of other Avorkmen.'' But Chief Judge Parker, for the Court of Appeals, pointed out that "A man may threaten to do that which the law saysi he may do, provided that, within the rules laid down in those cases, his motive is to help himself. A labor organization is endowed w^ith precisely the same legal right as is an individual to threaten to do that which it may lawfully do" (p. 331). In Park d Sons Co. v. Na- tional Draggisfs Ass'n, 175 ]!^. Y., 1, 20, the same Judge repeated "that a man may threaten to do that which the law says he nuiy do, provided that * * * his motive is to help himself." Such being the law, it is important to scrutinize very carefully the charges of threats, menaces and intimidation w^hich are usually made in labor cases. There are many means by which unions can inflict harm on an employer, for a proper purpose, and hence numy kinds of injury which it may lawfully threaten. Hence it is always important t(t c(ui- sider whetlier the tlireat was not (a) to drive the employer out of business unless he complies with a denumd which tlie union may properly make, and (b) to drive him out of business by juirely lawful means. If neither the object nor the threat- ened means were illegal, the threat itself does not give rise to a cause of action. And it sliould always be boi-ne in mind that where words are ecpially susceptible of two interi)retations, one lawful, tin* other unlawful, the burden is upon the ])laintiff to ])rove that the unlawful inter])i-etation is the cor- rect one. 81 Picketing. In some jurisdictions it is held that picketing is an unlawful means of conducting' a labor dispute, no matter how peaceful and orderly it may be. The decisions proceed upon a supposed presump- tion of law that picketing will necessarily involve violence (Beck v. UaUiray Teamsters Union, 118 Mich., 497; Barnes v. Chicago Typo. Union, 232 111., 402; opinion of Bramwell, B., cited in Wright, Criminal Conspiracy, p. 39). But the New York cases do not indulge in any such invidious presump- tion. They recognize that a workman is as much entitled to the presumption of innocence and lawful conduct as any other citizen. The first case upon the subject was Rogers v. Evarts, 17 X. Y. Supp., 2G4, in which Mr. Justice Smith laid down the rule that peaceful picketing was. lawful, and that it was only where the conduct conveyed threats and intimidation that it would be enjoined. The language of the learned Justice has b'^en often quoted: '^Picketing may be done in such numbers as to constitute intimidation. Jeering and slionting at employees by strikers may con- stitute intimidation. Persuasion or entreaty may be so persistent as. to constitute in- timidation. Wherever the strikers assume toward the employees an attitude of menace, then persuasion and entreaty, with words however smooth, may constitute intimida- tion, which will render those who nse them liable to the penalties both of the civil and criminal law. There has been no evidence offered in tliis case as to circnmstances sur- rounding the acts of persuasion and en- treaty, so that the court can liold that they were so used as to constitute intimidation, and thus become unlawful. It may be im- possible to lay down a general rule as to 82 what surrounding circumstances will char- acterize persuasion and entreaty as intimi- dation. Each case must probably depend upon its own surroundings. But when the evidence presents such a case as to convince the court that the employees are being in- duced to leave the employer by operating upon their fears rather than upon their judg- ments or their sympathy, the couit will be quick to lend its strong arm to his protec- tion" (p. 269). Of course, the words "threat," "intimidation," "fear," etc., must be understood to mean threats or fear of physical violence. The case was followed, after exhaustive discus- sion, in an able opinion by Judge (then Justice) Andrews, in Foster v. Retail Clerks Protective Ass^n^ 39 Misc., 48. "Mere picketing," he said, "if it is peaceful, if there is no threat or intimida- tion, if it is confined to simple persuasion, I do not regard in any sense as unlawful, whatever may be the motive by the picketers." The injunction granted by the Court enjoined the defendants, aside from actual trespass upon tlie -plaintiff's premisesi, only "from obstructing access to the plaintiff's store by any physical means ; from so acting as to collect crowds in front of or adjacent to said store, which crowds shall ob^struct travel upon the streets or sidewalks at or in the neighborhood thereof; and finally from the use of threats, violence or intimida- '' tion with the intent of preventing travelers upon the highway or intending customers of the plaintiffs from entering the store of the plaintiffs or trading with them, or whereby such result is attained" (p. 59). In Sun Printing Ass'n v. Delaneif, 48 App. Div., 623, an injunction against merely "requesting" 83 employees not to work for the plaintiff was modi- fied by the Appellate Division to read ^^in such manner asi to express or implj' a threat, intimida- tion, coercion or force." In Mills V. United States Printing Co., D9 Ajip. Div., 609, the subject is discussed at length. Picket- ing itself, the Court said, is not illegal. It may be. for instance, merely for purposes of ol)serYation, "But ^picketing-,' '' tlie Court continued, ^^may also mean the stationing of a man or men to coerce or to thi^eaten or to intinddate or to halt or to turn aside against their will those who would go to and from the picketed place to do businesis. or to work, or to seek work therein, or in some other way to ham- per, hinder or harass the free dispatch of business by the employer. In that case picketing may well be said to be unlawful." There is a dictum in the case which goes, perhajis., further than the pre^ious cases we have referred to. "I nmy add," the learned Justice contin- ued, "that I am not jjrepared to say that all picketing wdiich goes nO' furthei* than 'jjer- suasion and entreaty' of those who are about to work or to seek to worl?: or to do business in the picketed place is absolutely lawful. A wayfarer npon the public street should be free for peaceful travel. No man against my will lias the legal right to occupy the public street, to arrest my course or to join me on my way, be he ever so ]K)lite or gentle in his insistence. There may be no intimi- dation, and yet an interruption of j^eaceful travel. There may be annoyance witliont danger.^' As applied to an ordinary disinterested wayfarer lupon the highway, the language of the learned -his- tice is doubtless warranted. Bnt a person who >ieals with an employer against whom a sti-ilc*^ ia 84: in progress is not a disinterested wayfarer. He has voluntarily made hims'elf to a certain decree a party to the dispute. Just as a person who engages in political controversy, or puWishes a contentious literary production, throws himself open to a certain amount of privileged comment on the part of critics, even extending to disparage- ment and annoying publicity, so it would seem that one who deals with a party to a labor con- troversy cannot complain if he is subjected to the annoyance, persistent solicitation and entreaty, so long as there is neither actual nor threatened phy- sical injury. Judge Baker put the rule succinctly in Iron Moulders Union v. AH is Cliohners Co., ]6(> Fed., 45 : '^Under the name of persuasion, duress may be used; but it is duress, not per- suasion, that should be restrained and pun- ished^' (p. 51). Finally, in Jones v. Maher, 02 Misc., 388; aff'd without opinion 141 App. T)iv., 010. the law if* Btated in the same way. The picketing involved, in that case, violence, Tostling. "shouldering.'" etc., though the cases of serious violence were found not of sufficient frequency to warrant holding the union responsible. Hut the Tourt found frequent and' systematic u^e of "epithets offensive and even in- d'ecent," and this was lield to render the picketing tinlawfub damages being awarded". Coercion. Tliis is another dangeiously amln'guous word. So- far as it im])lies physical coercion — tlie application^ of bodily force — there is no doubt that it deseribesn illegal conduct. But it is generally used in iu broader sense, to include ocnnoiiiic coercion.. 85 Xow it is obvious that every act of ecouomic coercion is not illegal. An employer is informed by his men that if he does not raise llieir wages, they will strike. He knows that a strike will hurt his business; hence he yields. Of course he is coerced into 3'ielding, in one sense of the word, but it is equally clear that the coercion was lawful. In Illinois, it is true, it has been lield that tO' call a strike in order to compel an employer to sign an agreement relating to conditions of employment is illegal duress, and enjoinable ( O'Brien v. People, "216 111., 354). But this case speaks the language •of the dissenting opinions in the New York cases, ( See the language as to coercion, dictation, slavery, compulsion, etc., in the opinion of Vann, J., in Jacobs V. Cohen, 183 :N'. Y., 207, 215.) It is con- trary to the opinions and decisions of the majority.. A strike to "coerce" an employer to dischai'ge non- union men is lawful (Bossert v. DJiiii/, 221 N. Y.^ 312). "I know it said in another opinion in this •case,*' said Judge Parker in National Protective Ass'n v. Cummings, 170 jS^. Y., 315, 324, "that •workmen cannot dictate to employers how they shall caiTy on their business, nor whom they shall or shall not employ,' but I dissent absolutely from that proposition, and assert that, so long as work- men must assume all the risk of injuiw that may =come to them through the carelessness of co-em- ployees, they have the moral and legal riglit to say that they will not work with -certain men, and the 'employer must accept their dictation or go without •their seiTices." Coercion by lawful economic pressure is not Uierefore illegal. It is unlawful only when carried on in a way that ])ublic policy forbids; bnt tliis is 4>est considered under the next heading. 86 Boycotts. The tenn ''boycott" has a Avide variety of mean- ings. In its broadest sense it was used on a historic occasion by Sir Charles Russell : "My lords, in this matter of boyeotting, may I T>e foi*given for using the celebrated exclamation of Dr. Johnson, and say 'Let us clear our minds of cant.' Boycotting has existed from the earliest times that human society has existed. It is only a question of degree. Vp to a certain point, boycotting: is not only net criminal, but I say it is jus- tifiable and is right. For what does Iwy- cotting mean? It means the focusing of the opinion of the community in condemnation of the conduct of an individual of that com- munity Avho offends the general sense of propriety, or offends against its general in- terests. Is tliere no boycotting at the bar? Is there no boycotting in the other profes- sions? Is there no boycotting in the church? Is there no boycotting in politics? Is there no boycotting of tradei^uien in election times? What is the meaning of sending a man to Coventry? I say that boycotting — I am not justifying intimidation, I am not justifying foi'<-e, I am not justifying violence in connection with it, those are different things — I am talking of an act of moral reprehension called boycotting, and I say it always has existed and always will" (Ad- dress of Sir Charles Russell before Parnell Commission, 1889, Macmillan Ed., p. 214;; quoted Wiffmore Cas. Torffi, A^ol. II, p. .339). in so far as limited to mei-e social ostracism, it i^s not claimefl that boycotting is illegal. But in American cases it i*^" frequentlv used to designate ," concerted withdrawal of patronage, as a mean?- of economic coercion. It is said in Xew Jersey tbgt all boycotts, as incidents in trade disputeSj, 87 are unlawful (Martin v. McFalJ, 05 X. J. E(i., 91). But in Xew York tliis is not the law. "I think/' siaid Justice Jenks in Mills v. United States PrinHng Co., 99 App. Div., ()0r), Oil, ''that the verb 'to boycott' does not necessarily signify that the doersi employ violence, intimidation or other unlaw'ful coercive means, but that it may be correctly used in the sense of the act of a combina- tion in refusing- to have business dealings with another until he removes or ameliorates conditions which are deemed inimical to the welfare of the members of the combination, or some of them, or grantsi concessions which are deemed to nmke for that purpose. And as such a combination may be formed and hebl together by argument, persuasion, entreaty or by the 'touch of nature,' and may accomplish its purpose without violence or other unlawful means, i. e., simply by abstention, I think it cannot be said that 'to boycott' is to offend the law." Through what channels may this concerted eco- nomic pressure be laAvfully exerted? Of course, it may be exerted directly against the employee in ^juestion, asi the extract above quoted sbows. In some states this is held to be the lin>it of legality. Thus, for illustration, in Massachusetts it is lawful for employees to agree not to work with the plain- tiff until he meets their terms, but it is actionable to combine not to work for a third person unless he discontinues relations with the plaintiff (Pickett v. Walsh, 192 Mass., 572). This is called the "sec- ondary boycott." But in New York a further dis- tinction is necessai'j\ In Bosscrt v. Dhui/, 221 N. Y., 342, it was held that a carpenters' union could threaten strikes^ of its members against a builder, unless he discon- tinued the use of woodwork manufactured in a factory which em])loyed non-union carpenters. 88 This is a secondary boycott, but it is a boycott within the industry. In Gill Engraving Co. v. DoerVj 214, Fed., Ill, Judge Hough, in an able opinion interpreting ;New York Law, held that photo-engravers could decline in concert to work on plates to be used in any publication which also used engraving from non-union shops. On the other hand, in Auburn Braying Co. v. WardeJl, 227 N. Y., 1, it was held unlawful for all the unions in the city to combine to call strikes against any employer in any industiy who had any dealings with the plaintiff. The distinction between the cases we have already pointed out {suprw, Part First, pp. 22, 36). The ;New York rule is that coercive economic pressure, for a lawful object, is not actionable so long as it is confined to the general field of interest. In Bossert v. Dhuy, the builder and the factory both employed carpenters; they were engaged in differ- ent branches of the same industry, and competed with each other. It was a boycott within the in- dustry. In Gill V. Doerr Engraving Co., the boy- cott was confined to the line of distribution of the product in question, and was aimed against com- peting non-union firms in the same industr3\ But in Auburn Draping Co. v. Wardell, entirely unre- lated industries were dragged into the quarrel. The extent to which a boycott within the in- dustry may be lawfully carried is illustrated by another feature of the Bossert case. In that case the Brotherhood of Carpenters circulated the fol- lowing letter in New York : "To Owners, Architects, Contractors and Builders of New York City and Vicinity: Gentlemen : — In order to avoid any labor trouble on jobs you are interested in, we deem it necessary to request you to stipulate 89 in all Yonr contracts; a clause guaranteeing tlie eni])lojnieut of recognized union men, also a clause requiring in tlie execution of all contracts for carpenter work the employ- ment of union-made trim, mantels, parquet flooring, and otlier shop-made car]ienter work. This applies particularly to all classes of kalamein and metal coyered work. We desire to inform you that unless' this material has been constructed under strict union conditions we shall refuse to handle it * * *" (pp. 351. 352). Kere was: a direct threat of a strike on any job on which non-union trim was used, but it was held lawful. The limits beyond which a coerciye boycott may not go are clearly indicated in Iron Holders Union V. Allis Chalmers Co., 166 Fed., 45, 51. In that case the Court held that it was not unlawful for the union to instigate strikes of iron molders in other iron foundries which were doing the plain- tiff's work. ^'On the other liand,'' said the Court, "an employer, haying locked out his men, will not be permitted, though it would reduce their fighting strength, to coerce their land- lords and grocers into cutting off shelter and food ; and employees, haying struck, will not be permitted, though it might subdue their late employer, to coerce dealers and users into starying his business." It seems clear, therefore, that under New York law it was not actionable for the Amalgamated Clothing Workers to threaten strikes against con- tractors who did work for the plaintiff. The facts are precisely analogous to those in the Bosserf case, since both the contractors and the plaintiff employed the same class of labor, and the products of one competed with the products of the other. 90 It was a boycott Avithin the iiidnstry, and lieiice lawful. Appeals to the Public. Assuming- that no economic coercion against tliird persons is used, may the union publish and circulate statements truthfully conyeying to the public generally the facts of the strike or other labor controyersy, and requesting the public gen- erally not to deal with the employer until the grieyance is adjusted ? In the Bucks Htove & Range case it was held unlawful to put the plaintiff on the "unfair' or "'we don't patronize'' list of the union's weekly journal {Gompcrs \. Bucks Hiore iC- Range Co., 33 App. Cas. [D. C], 83; 33 App. Cas. [D. C], 51G). The Supreme Court did not pass upon the lawfulness of the "boycott." It referred to the conflict of authority upon the subject in the courts (p. 437), but held that if such a boycott wasi illegal it was not beyond the jurisdiction of a coui-t of equity to enjoin it, although it was con- ducted exclusively by means of written and spoken words (p. 437). In other words, the injunction was not utterly yoid, so that a yiolation of it could not be punished for contempt. The conviction for contempt was, however, set aside, because the pro- ceedings brought against Mr. Gompers were held to have been civil proceedings rather than proceed- ings for criminal contempt, and hence it was held he could not be sentenced to imprisonment (221 U. S., 418). When the injunction came up for direct review, the C^urt found the controversy had become moot (219 U. '^., 581). On the other hand, in a decision of unusual ability and thoroughness in North Carolina, the circulation of an "unfair" list was held lawful {^tati! v. Tan PcU. 130 N. C, 633). A well-con- 91 sidered decisiou iu raliforiiia is to the same effect {Parkinson Co. v. Bhhf. Trades Council, 154 Cal., 581), and the Montana Supreme f'ourt in a vi<»oi- ous opinion takes the same view [Lindsay v. Mon- tana Federation of Labor, 37 Mont.. 264 ; see a note to this cas^ in 18 L. R. A., 707). The New York decisions are clearly on the side of those cases which take the more liberal view of this kind of trade union activity. Thus in Foster V. Retail Clerks' Proicrtiiye Ass'n, 39 Misc., 48, the union had circulated cards statino- that the plaiu- tiflfs had been declared "unfair," and that union nu^n sliould "keep awa>."' Justice Andrews refused to enjoin the circulation of thisi card, or any publica- tion whicli did not im])ly "'a threat to do an unlawful injur-;)"" (p. 55). And in Sinsheimer Y. United Gar- inenf Workers, 77 Hun, 215, the striking union cir- cularized the tradesmen in other cities, asking them not to deal with the employer. The lower Cburt enjoined the conduct, but the Appellate Division reversed the decision, holding that sucli appeals could only be enjoined when they carried "threats or intimidation.'' And in Heitkamper v. Hoffman, 99 Misc., 543, the CcHirt enjoined unlawful picket- ing and threats and intimidation, in the course of a strike against a bake shop in Brooklyn, but re- fused to enjoin publication of a circular requesting ])eo]de not to patronize it. "The union was within its legal rights," said the Court, "in ])ublishing and distrib- uting the circular, soliciting its sympathizers and friends to withdraw their iiatronage or to refrain fiom patronizing the plaintiff" (]). 548). The only possible doubt upon this subject may be thought to arise out of a dictum in Bossert v. Dhuy, 221 X. Y., 342, 3()5. The Court said : 92 "A strike or boycott may be legal or illegal according to the acts involved therein (citing cases), so an action for a direct and primary purpose in the interest of indi- vidnals or a combination of individuals taken in good faith to advance the interest of the individuals or combination may be lawful, while a remote and secondary action Avhich carries with it a degiee of maliee as a matter of law is illegal. In the case now before us, if the defendants had called upon the public generally to discontinue using the plaintiffs- material and had sought to prevent all per- sons by communications, written or other- wise, from dealing with the plaintiffs, their acts would have been illegal.'' It seems clear, however, that the Court had reference, not to mere appeals and arguments, but to coercive conduct. It will be recalled that the Brotherhood of Carpenters in the Bossert case had sent circulars to the building trade, threatening strikes against all builders who used non-union woodwork. The Court liad in mind, doul)tless, coercive measures of this sort, operating in other industries. The dictum is prophetic of Auhurn Drayinff Co. v. WardcU, 227 N. Y., 1, in which strikes were threatened against every business man in the city who dealt with the plaintiff. It was not designed to overrule the clear decisions in the ])rior cases we have cited, sustaining the right to appeal to the iniblic by argument and persuasion. And on ])rinciple it seems that such a right must be sui-^tained. The right to tell the truth publicly and ap])eal by argument and persuasion to the conscience and conviction of the public is funda- mental. In a democratic country public opinion rules, and honest ap])eals to public opinion should never l)e forbidden. If the public conceives that trade unionism and collective bargaining are right 93 and in the public interest, the public should be permitted to encourage and assist union labor by refusing to deal with its enemies. If the union is in the wrong, the public may be relied upon to condemn it, and the appeals will fail. No employer has a right to complain because tlie public, after it has heard the facts and the arguments, disap- proves of his method of doing business and refuses to deal with him. If he feels that the case is being put before the public in a one-sided way, it is his privilege to present facts and arguments in reply. But he has no right to apply to the courts to censor the facts and oi)inions and arguments of his oppo- nents. Industrial free speecli is as fundamental a right as political free speech. O'BRIEN & POWELL, Attorneys for Defendants. Felix Frankfurtek, Emory R. Buckner, Ger.\rd C. Henderson, Robert Szold, Max Lowenthal, Of Counsel. RETURN TO: CIRCULATION DEPARTMENT 198 Main Stacks LOAN PERIOD 1 Home Use 2 3 4 5 6 ALL BOOKS MAY BE RECALLED AFTER 7 DAYS. Renewals and Recharges may be made 4 days prior to the due date. Books may be renewed by calling 642-3405. DUE AS STAMPED BELOW. ^ 7QQ1 -J CUUv Am 2 2003 i JUN I 2 2003 1 ^ FORM NO. DD6 UNIVERSITY OF CALIFORNIA, BERKELEY 50M 5-02 Berkeley California 94720-6000 U.C. BERKELEY LIBRARIES CQBDM^bSbl