an essential element of a contract, whose dominant purpose is within the limits of lawful bargaining. No economic pressure, threat of business loss, or interference with absolute freedom of action was exercised in order to procure the making of the contract. There was nothing of the boycott about the contract, for an essential element of the boycott is intentional injury to somebody. An agreement of this sort under the circumstances disclosed is within the protection of Pickett v. Walsh 192 Mass. 572, 584. . . . . Decree dismissing bill affirmed. QUESTIONS 1. Explain why the agreement is "within the protection of Pickett v Walsh." 2. Of what value to labor are such contracts? 3. If some of the plaintiffs had been discharged as a result of the contract, would the court have granted the injunction? 4. If, in the principal case, the steamship companies had hired other longshoremen to unload a ship when members of the defendant union were idle, what remedy would the defendants have had? 5. If the contract had been secured from the steamship companies by a strike of the defendants, would the injunction have been granted? 6. If the contract had provided that the steamship companies should in no case use union men on a job where non-union men were working, would the court have upheld it? 7. Suppose members of the defendant union secede from it, form a rival union and endeavor to force the steamship companies to discontinue the agreement with the defendants by threatening a boycott. Could the defendants secure an injunction? 8. If the members of the union had refused to unload a particular ship unless paid more than the wages agreed upon in the general contract of the principal case, and the steamship company suffered loss thereby, would the union be liable in damages? 9. Members of a stone masons' union agree to work only for members of a stone masons' contractors' association and not to work for any contractor or builder owing money to any member of the association, and the members of the association agree to employ only members of the union. Is the contract legal? 10. Certain railway companies enter into an agreement with the Brotherhood of Railway Trainmen that not less than 85% of the yardmen employed by railways should be members of the Brotherhood and that such members, when available, should always be given preference over other applicants. Can the Switchmen's Union secure an injunction against the carrying out of the agreement on the ground that it prevents members of the union from obtaining employment? II. Would a contract by a municipality for public work which stipulated that the contractor should use only union labor be valid? 12. What is the legal status of closed shop agreements in your state? 3. STATUTORY IMMUNITY FOR ACTS DONE IN CONNECTION A Section 3 of the English "Conspiracy and Protection of Property Act" of 1875 (as amended): "An agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers and workmen (or workmen and workmen) shall not be indictable as a conspiracy if such act committed by one person would not be punishable as a crime." Section of the English "Trade Disputes Act" of 1906: "An act done in pursuance of an agreement or combination of two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done without any such agreement or combination, would be actionable." QUESTIONS 1. What is the difference between these two enactments? 2. Do they do away with the doctrine of conspiracy in connection with labor disputes? 3. How would the cases examined in section V, A, 2 be decided under them? 4. Do you think a statute embodying these provisions desirable? 5. Would they, if enacted by a state, be constitutional under the Federal Constitution? 6. Section 3 of the model anti-injunction bill proposed by the American Federation of Labor reads: "No person shall be indicted, prosecuted or tried in any court of the United States for entering into or participating in any arrangement, agreement or combination made with a view of joint action for the purpose of regulating the number of hours of labor, or regulating wages, or bettering the conditions of working men and women, or for any act done in pursuance thereof unless such act is in itself forbidden by law if done by a single individual." Is this provision more or less favorable to labor than the English law? B Section 3 of the English "Trade Disputes Act" of 1906: "An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labour as he wills." QUESTIONS 1. To what extent does this alter tortious liability under the common law? 2 Does it legalize the use of violence or intimidation in connection with trade disputes? 3. D, an officer of a labor union, in order to compel P, an employee of the X Company, to pay a fine due to the union and to punish him for not paying it, procured his discharge by threats that a strike would be called if he were retained. Is the statute quoted above a good defense in an action by P against D for damages? 4. How would the cases examined in section V, A, 2 be decided under it? 5. Do you think such a statute desirable? 6. Would it be unconstitutional under Amendment XIV, if enacted by a state legislature? 7. This section of the Trade Disputes Act does not "create a privileged class of persons or bodies, but . . . . a class of 'privileged occasions'." Do you think this argument would save the section from condemnation under the equal protection clause of the United States? 8. A state statute, in creating free public employment offices, provided that no office should in any case furnish employees or a list of employees to any applicant whose employees were on strike or were locked out. Is it valid under Amendment XIV? C Section 4, paragraph 1, of the English "Trade Disputes Act" of 1906: "An action against a trade union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or in behalf of the trade union, shall not be entertained by any court." QUESTIONS 1. Can such an action be maintained against a labor union in the United States, apart from statute? 2. Would this section cover tortious acts not committed in contemplation or furtherance of a trade dispute? 3. If the statute were in force in a particular state, would an employer have any recourse for the destruction of his property by strikers? 4. Under §3 of the Conspiracy Act and §§1, 3, and 4 (1) of the Trade Disputes Act, what restrictions would exist upon the use of the strike, boycott, picketing, or other methods used by employees in connection with labor disputes? 5. How many of the cases of Section V, A, 2 would have been affected by this statute? 6. Summarize the arguments for and against this legislative immunity for the funds of labor unions. Is it desirable? Is the necessity for it as great in the United States as in England? 7. Would a state statute to this effect be a denial of equal protection contrary to Amendment XIV? 8. Part of the model anti-injunction bill proposed by the American Federation of Labor reads: "Labor unions and the individual members thereof shall not be liable for damages for the unlawful acts of their officers or of other members thereof unless they shall have personally aided, counselled and advised the same." Is this more or less favorable to labor than the English statute? As a state statute would it be valid under Amendment XIV? 9. Are there in your state any statutes similar to the ones considered in this section? B. ACTION TAKEN BY EMPLOYERS I. THE LOCKOUT CITY TRUST, ETC., CO., v. WALDHAUER Supreme Court of New York, Trial Term, New York County. 1905. 95 N. Y. Suppl. 222. [The defendant, representing an association of roofers and sheet metal workers, joined the Building Trades Employers' Association, giving the plaintiff, a surety company, a bond for $500 in favor of the Association as security for his undertaking to obey its regulations and orders. In 1903 the Association formulated an arbitration agreement, providing that employees would arbitrate all disputes and not go out on sympathetic strikes. It was signed by many of the roofers, sheet metal workers, roof tilers and slaters. In furtherance of the policy, the Association ordered all its members not to employ workmen within these trades unless they had signed the agreement. The defendant laid off men, in compliance with the order, for three weeks, but when threatened with loss of his contract, he put them back, in violation of the order. The Association then expelled the defendant, and the plaintiff paid the Association the $500. This was a suit to recover this sum with interest and counsel fee, amounting to $642.] CLARKE, J. Defendant moves to dismiss the complaint on the ground that the prohibition in the resolution was not within the fair import of the constitution of the association; that they were not such orders or directions as the defendant was bound to obey, and were in restraint of defendant's right to contract, and in restraint of trade and against public policy. Further, that, although the sum of $500 is set forth in the bond as the stipulated damages, it is in fact a penalty; no actual damages having been shown. The defendant of his own free will joined the association, subscribed to its constitution and by-laws, thereby promising to obey and be governed by their provisions, and gave a bond with surety so to do. The general purposes of the association were lawful and commendable. The object was mutual benefit. If successful, the benefit would extend to the community at large, whose interests were grievously affected by the general interference with building operations; the strike having nothing to do with wages or hours of labor. It has been many times held in this state that workingmen have the right to organize for the purpose of securing higher wages, shorten hours of labor, or improving their relations with their employers; that they have a right to strike-that is, to cease working in a body by prearrangement until a grievance is redressedprovided 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. National Protective Ass'n v. Cumming, 170 N. Y. 315. The converse of that proposition must be equally true. If the workman may decline to work, the master may decline to employ. If the workman may strike, the master may lock out. Whatever one man may do alone he may do in combination with others, provided they have no unlawful object in view. Therefore, if it be lawful for workmen to organize and to conduct a peaceable strike to improve their condition, it seems a natural corollary that masters may organize and conduct a peaceable lockout for the same purpose. It is conceded in this case that there was no malice either towards the defendant or towards the employes in the lockout order. The sole object and intent was to secure peace and stability on this great industry by obtaining an agreement for the settlement of differences by peaceful arbitration, instead of by wasteful, irrational, so-called sympathetic strikes, which, as has been demonstrated by recent cases in |