Passing still a step further, we come to the employes of the boss carpenters. We have now four parties to the affair in hand, and the situation has become more complex, but, after all, there is no difficulty, it seems to me, in solving the problems which the situation presents. The employes of the boss carpenters, in the exercise of their absolute, unquestionable right to refrain from being employed, and their further unquestionable right to do this thing in voluntary combination, may, from good motives or bad motives notify the boss carpenters that if they take "unfair" material from the complainant they will cease to renew their contracts of employment, and thus the boss carpenters may be coerced to refrain from dealing with the complainant, and this coercion may in turn coerce the complainant to discharge its nonunion men and take back the strikers. Still we have no case of coercion which can constitute the tort with which we are dealing, because at the very basis of the entire series of transactions which we are examining we find only a free combination of dealers exercising their absolute right to refrain from dealing, so that all inquiry into motives is excluded. The tort under consideration, which necessarily involves coercion, consists in a violation of some dealer's right to a free market. In the case which we have now reached, there is no such right belonging to the complainant or to its customers, the boss carpenters, which is in any way invaded. Coercion which results, however, directly and intentionally, from the exercise of the absolute right to refrain from contracting, cannot possibly be a tort, because it violates no legal right; it is a mere incidental result of the assertion and enjoyment of a right. Taking one more step, at last we come to the defendants. If it appeared that these defendants, individually or in free combination, were merely exercising their right to refrain from contracting, then, no matter how damaging to the complainant such conduct might be, no right of the complainant would be violated, and the defendants would be guilty of no tort. I know of no reason why the chain which I have been following up, link by link, might not be indefinitely extended. The employes of the boss carpenters in turn might be constrained by a most powerful coercion to refrain from continuing in the employ of their masters by a voluntary combination of other dealers in labor or merchandise, but if this last set of dealers were merely exercising their absolute right to refrain from contracting with the employes of the boss carpenters, unless these employes submitted to their dictation, it seems to me beyond all question that we have not yet reached any tort or found anyone liable to an action at law or in equity for the relief of any of the parties in this long chain, no matter how enormous the pecuniary damage of such party might be. But, in fact, we have come to the end of the chain, and we find that the powerful coercive force originating there which draws dealers away from the complainant at the other end of the chain is not the voluntary exercise of the right to refrain from contracting. The pull at the far end of the chain is given by the defendant Burgess, the business agent of this powerful labor organization in Hudson county, when he snaps his fingers, and the employes of the boss carpenters against their will are coerced to refrain from renewing their contracts for labor with their employers by the fear of fines, expulsion from their labor unions, social ostracism, and poverty. The last question to be considered which is presented by the facts of this case is whether there is any justification shown for the interference with the complainant's market by the coercion exercised upon the employes of the boss carpenters by these defendants or the labor organization which they represent. It may be conceded that the coercion may be justified, and hence may not consitute a violation of any one's right to a free market, precisely as persuasions and inducements may be justified so that they cannot constitute the tort which consists in causing the breach of a contract. The concrete question in this case is whether these employes of the boss carpenters, by voluntarily joining these labor unions and subjecting themselves to the by-laws and regulations of these unions and the control of its officers and agents, deprive the coercion which is exercised upon them of all illegal taint. This is the only question in this case which seemed to me to be open to debate. In the first place, it must be borne in mind that [employes of] the boss carpenters are not here in court making any complaint. The coercion was exercised upon them, and they may have suffered on that account; but it is not their grievance which is being redressed, in this suit. As we have seen, it is the interest of the complainant in their freedom to deal in the labor market, and not their own interest in their freedom to deal in that market, which this court in this suit is asked to protect. Suppose it be conceded that these employes may surrender their liberty to the arbi trary power of this immense organization and agree that this power can be exercised whenever a business agent of the organization speaks the word; they can only surrender the interest which they themselves have in their liberty. I certainly do not propose to question the lawfulness of fining or expelling, and consequently threatening to fine and expell, members of labor unions who disobey the laws to which they have voluntarily subjected themselves. It is impossible to give the time necessary for an exhaustive discussion of this somewhat novel subject. Let it be conceded for the purposes of this case that labor unions may lay down many rules for the guidance of employers in the conduct of their business, and prohibit by by-laws or otherwise their members from working for employers who disregard those rules. Employers, for instance, who expose their employes to dangerous machinery or unwholesome conditions may find that they cannot readily employ union men, and union men who, in violation of the by-laws of their unions, engage themselves to such employers, may be exposed to fines or expulsion from their unions. These and other similar cases, the status of which in the eye of the law I do not pause to consider, present the use of the penalties of fine and expulsion for the purpose of advancing the legitimate objects of the union. When, however the threat of fine and expulsion is employed for the purpose of coercing the employes of a large number of different employers to refrain from renewing their contracts for labor in order to coerce all these employers to boycott the complainant, with the ultimate object of coercing the complainant in respect of a matter with which the employes who are first coerced have absolutely no concern whatever, then it seems to me the whole scheme becomes an attack upon the complainant's right to a free market. No surrender of liberty or voluntary agreement to abide by by-laws on the part of the employes who are first coerced, made by them when they enter their labor unions, can, in my judgment, affect the right of the complainant to a free market, which right he will enjoy for all it may be worth if these employes are permitted to exercise their liberty. The employes may be able to surrender their own right, but they certainly cannot surrender the right of other parties. Boutwell v. Marr, 71 Vt. 1, and Berry v. Donovan, 188 Mass. 353, I think fully sustain the view that no justification has been shown in this case. If 2,500 workmen in Hudson county could, by permitting themselves to be organized into labor unions, surrender not only their own right to freedom in respect of making contracts, but also destroy the interest of all other dealers in that freedom, the whole foundation of the right to a free market would be swept away. QUESTIONS 1. What is the difference between a primary and a secondary boycott? What is their relative usefulness as weapons in the hands of labor? 2. What part does the doctrine of conspiracy play in the decision? The rule against intimidation? 3. Which of the theories set forth by Commons and Andrews in section V, A, 1, (a) supra is the theory of the New Jersey Court? 4. Would either of the other theories lead to different results in this case? 5. The word boycott "in itself implies a threat." Do you agree? 6. Is the object of a boycott of any importance in determining its legality? 7. Does the legality of the boycott depend upon whether customers of the boycotted employer are induced to break contracts with him, or are induced to refrain from entering into contracts with him? 8. Whose right to a free market is violated by the acts of the defendants in the principal case? 9. Why is a boycotting agreement not contrary to public policy as an agreement in unreasonable restraint of trade? 10. Is it coercion of the plaintiff's customers or coercion of the employees of these customers that determines the illegality of the boycott? 11. Do you understand that if the employees of the boss carpenters had voluntarily agreed with the plaintiff's striking employees to cease work for their employers if the latter used the plaintiff's products, such action would have been legal? Would not the boss carpenters have been as effectively coerced in this way as in the actual case? 12. Do not the members of a union voluntarily agree, by entering the nion, to strike in a common cause? 13. Can you have a boycott based on "non-coercive inducements" or is a boycott necessarily coercive? 14. Why should the court concern itself with the effect upon the plaintiff of the coercion of the employees of the boss carpenters, as long as these employees do not themselves complain? 15. "While an individual has the right to trade with whom he will, it does not follow that a combination of individuals have a right to discontinue business intercourse with all who deal with one at whom the acts of the combination are aimed. Such a combination deflects the natural course of trade and it is the combination or conspiracy and not natural causes that is responsible for the result." Is this consistent with the reasoning of the court in the principal case? 16. A labor union, in order to force a newspaper to unionize its office, issued circulars instructing organized labor and its friends not to patronize the paper and not to patronize firms that advertised in it. Is this an interference with the legal rights of (a) the paper, (b) the advertisers? 17. In the last case, suppose the union's circulars merely stated that the paper was "unfair to organized labor." 18. The Teamsters' Union tries to persuade the employees of the A Trucking Company to join the union but they decline though the A Company does not object. The union requests the A Company to bring pressure upon its employees to join. The A Company refuses to do this and the union institutes a boycott, threatening to call strikes against the customers of the company unless they cease to patronize it. Consider the legality of the boycott. 19. The members of the Coopers' International Union and the members of a local Trades Assembly entered into an agreement to compel M, a manufacturer of barrels, to cease using hooping machines which were the direct cause of 100 coopers being out of employment. They planned to notify M's customers not to purchase machine-hooped barrels from him, and to induce members of all labor organizations in the country and all persons in sympathy with them to refrain from purchasing commodities packed in machinehooped barrels. Can M secure an injunction to forbid such action? 20. Is it of any importance to distinguish between a boycott of material e. g., an agreement not to work upon non-union material) and a boycott of a particular manufacturer? 21. "Any person who, by force or threats of violence to person or property, prevents or seeks to prevent, another from doing work or furnishing materials, or from contracting to do work or furnish materials for or to any person engaged in any lawful business, shall be guilty of a misdemeanor." (a) Would such a state statute cover boycotts? (b) Would it be desirable? 22. Is a secondary boycott against goods intended for interstate commerce a violation of the Sherman Act? 23. Are boycotts legal at common law in your state? Has their use been affected by statute? 24. Draft a model boycott law. [The use of the injunction by the federal courts to restrain boycotts arising out of labor disputes is limited by section 20 of the Clayton Act-see section V, D, 2, (a), infra.] (d) The Union Label HETTERMAN BROS. & COMPANY v. POWERS JUDGE HAZELRIGG delivered the opinion of the Court. The appellants were manufacturers and dealers in cigars in Louisville, Ky., and without right or claim of right used on boxes of cigars |