V THE LABOR CONFLICT A. ACTION TAKEN BY EMPLOYEES I. LEGALITY OF OBJECTS OF COLLECTIVE ACTION (a) General Principles 'Most of the cases of which labor complains have been premised, not upon the federal anti-trust laws, but upon the common law doctrine of conspiracy. This doctrine makes illegal acts done in pursuance of an agreement which are legal when done by one person. One manner of explaining this result is that when men combine their motives become of importance. Their combination is legal when their motive is primarily to benefit themselves, and illegal when they aim primarily at the injury of another. One person may sever all business relations with another, if not under contract to continue them, regardless of the motives which may lead him to take this step. But when workingmen combine to go on strike or to boycott an employer, the courts will inquire whether their primary motive is injury to the employer or benefit to themselves. To understand the full import of the conspiracy doctrine it is necessary to note two of its corollaries. One is the proposition that where the purpose of the combination is illegal every act done in pursuance thereof is rendered illegal, though the act may be innocent of itself. Acts normally protected by the constitutional guarantees of free speech, free press, and public assembly, become unlawful when done in furtherance of an unlawful purpose. As put by the Supreme Court of the United States: "No conduct has such absolute privilege as to justify all possible schemes of which it may be a part. The most innocent and constitutionally protected of acts or omissions may be a step in a criminal plot, and if it is a step in a plot neither its innocence nor the constitution is sufficient to prevent the punishment of the plot 2 1 Reprinted from The Principles of Labor Legislation by Commons and Andrews by permission of the publishers, Harper and Bros. 1920 ed., pp. 97-101. Aikens v. Wisconsin, 195 U. S. 194 (1904). by law." Again, if an illegal plot has been formed, all of the conspirators are responsible for the acts of any of the conspirators done in pursuance of the common object. Once it is established or taken for granted that the workmen have conspired, any or all of them are liable for acts of violence which may be committed by some of them. The soundness of the doctrine that the legality of a combination depends upon the motives which actuate it has been often questioned in recent years. It is most difficult to determine what is the primary motive of the workingmen in undertaking a strike or a boycott. They aim both to injure the employer and to benefit themselves. The bias of the judge necessarily plays a large rôle in the determination of which of these is the controlling motive. The doctrine that it is the immediate object and not the ultimate purpose which is controlling, helps but little. In most labor disputes many questions are at issue. A demand for the closed shop may be coupled with the demand for an increase of wages. The latter is recognized by all courts to be legal, while the former is held illegal by many courts. The result has been confusion and arbitrariness in the law. Where one judge sees only a lawful combination, another discovers an unlawful conspiracy. The fundamental premise in the conspiracy doctrine is that the many have a power for harm that no one person can exercise. Hence, while in the class of acts which are involved in labor disputes the motive is considered unimportant when they are done by one person, it becomes a determining factor when they are done in pursuance of an agreement among several. But in American law the corporation has been made a person. This makes the premise of the conspiracy doctrine an absurdity. The power of the large corporation, though a single person in the law, is greater than that of the combination of workingmen. Considerations such as these have led some courts to abandon the old form of statement of the conspiracy doctrine. They start with the proposition that the employer has a right of free access to the labor market and to the commodity market. Intentional interference with this right to do business is prima facie wrongful. Only when the injury done to the employer is the result of the exercise of equal or superior rights by the workingmen is it justified. These courts distinguish between malice in fact and malice in law. Whether personal ill-will and spite, malice in fact, actuates the workingmen, they hold to be of no importance. Malice in law determines the legality of their actions; and malice in law is merely the intentional infliction of injury without justification. In actual application, however, malice in fact is an important factor in determining whether there is malice in law. If intentional infliction of injury without justification is unlawful, everything turns on what is considered a sufficient justification. This involves an evaluation of the respective rights of capital and labor. The employer has a right to conduct his business without interference. The non-unionist has a right to earn his living. The union workman has a right to work or not to work, as he chooses. Which of these rights is to prevail when the union workmen go upon strike to compel the employer to discharge the non-unionist? Competition is recognized to be a justification for interference with the rights of others. But when can the workingmen be said to compete with their employers? It is competition when the workingmen aim primarily to benefit themselves, when there is no malice in fact. Thus, the doctrine that intentional injury done without justification is unlawful makes the motive the criterion of the legality of the acts of labor combinations. Though it differs in statement from the older conspiracy doctrine, its substance is the same. As Dean Lewis has put it: "Those who say with Justice Wells that a man is liable for the harm he does if he does it maliciously, meaning by malice without legal excuse, naturally turn to the defendant's motive as at least one of the elements on which the existence of a 'legal excuse' depends." Labor has profited little from the coming in of the "legal excuse" doctrine. It has rephrased the conspiracy doctrine, but has kept its spirit. In labor cases there is always much discussion of the rights of the respective parties. Thus, it is said that employers have a right to conduct their business as they see fit. On the other hand, the right of the workingman to quit employment is often described as absolute. These abstract statements read well; but the trouble is that in labor disputes these rights come into conflict. This clash of rights has led the courts to inquire into the motives that actuate the workingman. To justify holding against trade unions recourse has been had to the theory that the element of combination radically changes the situation. Where the court holds to the conspiracy doctrine, no matter how it may be expressed, the decision is apt to be against the union. There are a large number of cases, however, in which the courts 3 Columbia Law Review, February, 1905, p. 118. have held that the fact that acts are done in pursuance of a combination does not affect their legality. Other cases hold that a bad motive cannot render illegal acts that are otherwise lawful. Thus, they sweep away the foundations of the doctrine of conspiracy. The courts of California have gone furthest in this regard. In California quitting work and refusing to patronize are held to be absolute rights of the workingmen, and the fact that these rights are exercised in pursuance of a combination is treated as immaterial. The only limitation upon collective action is that labor shall not resort to coercion or intimidation. The practical conclusion reached in California is that all strikes and all boycotts are lawful. Even if the motive of the workingmen is held to be immaterial, there is wide room for diversity of opinion as to the means which labor may employ to gain its ends. There is agreement that coercion and intimidation are unlawful. But what conduct is coercive and intimidating? In California, pressure brought to bear upon third parties through sympathetic strikes and secondary boycotts is treated as not coercive. On the other hand, picketing is held to be necessarily intimidating. In other jurisdictions pressure upon third parties, other than that resulting from persuasion, is treated as coercion, while picketing is often considered legal. There is a pronounced tendency in recent cases throughout the country to say little about the illegal motives of the workingmen and to find the illegality of their conduct in the unlawful means they employ. This may seem to be a great advance for organized labor; but the gain is deceptive. Practically it makes no difference whether a sympathetic strike is condemned because the motive of the workingmen is held to be to injure the employer, or because it amounts to an effort to coerce a third party. "Coercion" and "intimidation" are so vaguely defined, that almost any conduct can be considered coercive or intimidating. Thus, there are three theories which underlie most of the cases involving collective action by labor. The most fundamental of these is the theory that when men combine the legality of their acts depends upon their motives. Another holds that intentional interference with the rights of others is wrongful, unless it results from the exercise of equal or superior rights. The third theory places emphasis upon the element of coercion and intimidation involved in the acts of combina- ! tion. In their manner of statement these theories are wide apart; but their practical conclusions have been much the same. No matter which theory a court may entertain, there is great latitude in its application. Under each theory much depends upon whether the demands of the workingmen are justified or unjustified. Hence, the bias of the judge is likely to be determining. QUESTIONS 1. Why does the juristic personality of the corporation make the fundamental premise of the conspiracy doctrine an absurdity? 2. Do you understand that the doctrine of conspiracy does not apply to the corporation? If so, why do labor unions not incorporate? 3. Which of the three theories described above would you prefer to apply in practice if you were a judge? 4. Can you suggest a better test of the legality of the collective acts of workingmen? 5. Is the legality of a particular strike a question of law or a question of fact? (b) Action to Increase Wages, Shorten Hours or Improve Working Conditions WABASH RAILROAD CO. v. HANNAHAN et al. ADAMS, DISTRICT JUDGE. This is a suit commenced by the railroad company against John J. Hannahan, grand master of the Brotherhood of Locomotive Firemen, W. G. Lee, vice grand master of the Brotherhood of Railroad Trainmen, and officers and members of the joint protective board of the first-mentioned and of the general grievance committee of the second-named order. . From the foregoing analysis of the bill of complaint it is observed that the jurisdiction of this court is invoked to prevent the execution of a conspiracy to accomplish the purpose of the defendants to secure recognition of their labor organizations, by violating and inducing others to violate the laws of the United States, in relation to interstate commerce, the mail service, and unlawful restraints and combinations. The threats of the defendants to subserve their own purposes by precipitating a strike on the part of complainant's employes, who, as already stated, are alleged to have been entirely satisfied with their present wages and conditions of service, is averred in the bill of complaint to be the initial act leading up to the culmination of the gist of the complaint, namely, preventing complainant from performing its duties and obligations, and thereby subjecting it to the pains and |