(c) Action to Promote Unionization

KEMP v. DIVISION No. 241.

Supreme Court of Illinois. 1912. 255 Ill. 213.

COOKE, J. . . . The bill was filed by eight employes of the Chicago Railways Company against Division 241 of the Amalgamated Association of Street and Electric Railway Employes of America, a corporation, and the officers and the members of the executive board of Division 241. Its purpose was to obtain an injunction restraining the appellants, their agents, servants, and attorneys from attempting to procure, by means of threats, the discharge of the appellees from the service of the Chicago Railways Company because of the fact that the appellees are not members of said Division 241.

The question presented for our determination, therefore, is whether a court of equity is authorized, upon application by the non-union employes, to restrain the union and its officers from calling a strike of the union employes in accordance with the vote previously taken by the union employes as members of the union, where the purpose of the proposed strike is to compel the employer to discharge the non-union employes who are engaged in the same class of work. In order to decide this question in the affirmative, it would be necessary to hold that had the threatened act been completed, appellees would have been entitled to maintain an action for damages against the union and its officers for accomplishing their discharge from the service of the Railways Company, and that such action at law would not afford an adequate remedy because of the financial inability of appellants to respond in adequate damages for the injuries which appellees would suffer by reason of their discharge. The inadequacy of the remedy at law sufficiently appears from the bill, and it will only be necessary to determine whether the appellees would have been entitled to maintain the action for damages had their discharge been accomplished by appellants.

That appellees would sustain damages if discharged by the Railways Company, and that such discharge and consequent damages would be occasioned by the acts of the appellants, acting for and on behalf of the union employes, clearly appears from the bill. The mere fact that one person sustains damage by reason of some act of another is not, however, sufficient to render the latter liable to an action by the former for such damage, but it must further appear that the act which occasioned the damage was a wrongful act and not one per

formed in the exercise of a legal right, otherwise it is damnum absque injuria. In Cooley on Torts, at page 81, it is said: "It is damnum absque injuria, also, if through the lawful and proper exercise by one man of his own rights a damage results to another, even though he might have anticipated the result and avoided it. That which it is right and lawful for one man to do cannot furnish the foundation for an action in favor of another. Nor can the absence of commendable motive on the part of the party exercising his rights be the legal substitute or equivalent for the thing amiss, which is one of the necessary elements of a wrong." Again, on page 688 of the same work it is said: "What was said in the opening chapter of the work, that the exercise by one man of his legal right cannot be a legal wrong to another, has been abundantly shown to be justified by the authorities, even if it were not in itself a mere truism. . . . . To state the point in a few words: whatever one has a right to do another can have no right to complain of."

Every employe has a right to protection in his employment from the wrongful and malicious interference of another resulting in damage to the employe; but, if such interference is but the consequence of the exercise of some legal right by another, it is not wrongful, and cannot, therefore, be made the basis for an action to recover the consequent damages. It is the right of every workman, for any reason which may seem sufficient to him, or for no reason, to quit the service of another, unless bound by contract. This right cannot be abridged or taken away by any act of the legislature, nor is it subject to any control by the courts; it being guaranteed to every person under the jurisdiction of our government by the thirteenth amendment to the Federal constitution, which declares that involuntary servitude, except as a punishment for crime, shall not exist within the United States or any place subject to their jurisdiction. Incident to this constitutional right is the right of every workman to refuse to work with any co-employe who is for any reason objectionable to him, provided his refusal does not violate his contract with his employer; and there is no more foundation for the contention that the employe commits an actionable wrong by informing the employer, before he leaves the service, that he will not work with the objectionable co-employe, and thereby occasioning his discharge, than there would be for the contention that the employe would commit an actionable wrong by quitting the service and afterward stating to the employer his reason therefor, if as a result thereof

the employer should choose to discharge the objectionable co-employe. In either case the employe is exercising a legal right, and although it results in damage to the objectionable co-employe the latter has no cause of action against the former for causing his discharge. In the case at bar, had the union employes, as individuals and without any prearranged concert of action, each informed the Railways Company that they would not longer work with appellees because appellees were not members of the union, and had appellees, in consequence thereof, been discharged because the Railways Company chose to retain the services of the union employes, appellees would have had no cause of action against the union employes for thus causing their discharge. Does the fact that the union, its officers and committees, acted as an intermediary between the union employes and the Railways Company, and under the circumstances and for the purposes disclosed by the bill, render unlawful the action by it or them which would have been lawful if performed by the union employes individually?

Labor unions have long since been recognized by the courts of this country as a legitimate part of the industrial system of this nation. The ultimate purpose of such organizations is, through combination, to advance the interests of the members by obtaining for them adequate compensation for their labor, and it has been frequently decided by the American courts that the fact that this purpose is sought to be obtained through combination or concerted action of employes does not render the means unlawful.

The purpose of organizing labor unions is to enable those employes who become members to negotiate matters arising between them and their employers through the intermediation of officers and committees of the union and to accomplish their ends through concerted action. If duly authorized by the employes to adjust any controversy arising between them and their employer, the union, its officers, and committees are merely acting as agents of the employes in the matter. If the union employes had the legal right to inform their employer of their refusal to work with appellees, they had the legal right to convey that information to the employer through an agent or agents, and the agent or agents would not commit an actionable wrong thereby nor by reporting back to the union employes the result of the conference with the employer. The demand that appellees be discharged, and the threat that unless the Railways Company complied with the demand the members of the union would call a strike of the employes of the

Railways Company, in effect meant no more than the mere statement that the union employes of the Railways Company would no longer work with the non-union employes, and if the Railways Company chose to retain in its employ the non-union men, the union employes would quit the service of the Railways Company. . . . .

No contract rights being involved, the union employes had a right to quit the service of the Railways Company, either singly or in a body, for any reason they chose or for no reason at all. If the only purpose of the union employes was to quit the service and permanently sever their connections with their employer, appellees would in no wise be damaged, and could have no grounds for injunctive relief. The bill discloses, however, that this was not the only purpose of the members of the union. They did not propose absolutely to sever their connection with their employer, but by means of a strike to withdraw temporarily their services, and then, by such means as might be proper and permissible, seek to induce their employer to accede to their demands and re-instate them in the service under the conditions they sought to impose. By thus combining it becomes necessary to inquire whether the purpose of the combination was a lawful one.

Ordinarily it is true that what one individual may rightfully do he may do in combination with others. In some jurisdictions the question of the purpose or motive in such cases as this is not inquired into. But in other jurisdictions the opposite view is held, for the very apparent reason that acts done by a combination of individuals may be made much more potent and effective than the same acts done by an individual, and we believe the greater weight of authority to be that what one individual may lawfully do a combination of individuals has the same right to do, provided they have no unlawful purpose in view. Would the calling of a strike, and the inducing of an employer thereby to accede to the demands of the union employes and to discharge appellees under the circumstances disclosed, be such an interference with the rights of appellees as to be wrongful and malicious?

It has been comparatively but a short time since it was unlawful for workmen to associate themselves together under such organizations as are now known as trades unions for the purpose of improving the conditions of labor. Such an organization was formerly held to be a criminal conspiracy, and it required statutory enactment in England to permit workmen legally to combine for the purpose of maintaining satisfactory wages and for mutual protection. The right of labor to

organize, and to strike, if necessary, without resort to violence or other unlawful conduct, for the betterment of the condition of labor, is now generally recognized by the courts of this country. .

While it cannot be successfully contended that every strike is lawful, it is generally conceded by our courts that workmen may quit in a body, or strike, in order to maintain wages, secure advancement in wages, procure shorter hours of employment, or attain any other legitimate object. An agreement by a combination of individuals to strike or quit work for the purpose of advancing their own interests. or the interests of the union of which they are members, and not having for its primary object the purpose of injuring others in their business or employment, is lawful. As to whether the object which this bill discloses was sought to be attained by the members of the union was a lawful one or a valid justification of the threat to strike, the authorities in this country are clearly in conflict. . . . . This precise question has never been passed upon in this State, and were the position of appellees to be sustained, it would be a long step in advance of any decision of this court. In the unsettled condition of the law on this question we are not disposed to follow the cases cited by appellees. We are of the opinion that the cases holding the contrary view are supported by the better reasoning.

It does not follow from a consideration of all the material allegations of the bill that the primary object of the union employes, or of the union officers in carrying out the wishes of the members, was to injure appellees. Neither can it be said that any actual malice has been disclosed toward the appellees or an intent to commit a wrongful or harmful act against them. No threats are made, and no violence is threatened. The members of the union have simply said to their employer that they will not longer work with men who are not members of their organization, and that they will withdraw from their employment and use such proper means as they may to secure employment under the desired conditions. While this is not a combination on the part of the union employes to maintain their present scale of wages, to secure an advance in the rate of wages or to procure shorter hours of employment, all of which have been universally held to be proper and lawful objects of a strike, it cannot be said that this is not a demand for better conditions and a legitimate object for them to seek to attain by means of a strike.

It is insisted that a strike is lawful only in a case of direct competi