Labor's Rights in the Courts

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Labor's Rights in the Courts.


On no question affecting the rights and interests of organized labor are judges and lawyers and publicists more "at sea," more confused and puzzled, than on that of the legitimacy of boycotting and blacklisting. A number of late cases strikingly illustrates this fact. Of course, there is no difficulty in accounting for the perplexity of those who try to decide this essentially ethical question in the light of ordinary legal notions. The reasoning of the judges indicates that there is no guiding principle at all behind their adjudications, and that they are merely searching 'and groping after a consistent and sound rule. The trouble is, that while the old and barbarous common-law views of labor organizations and labor methods of self-protection have had to be gradually abandoned as being out of harmony with the spirit of the times, no new opinions have been carefully thought out. Ethical and social philosophy has, it is true, virtually settled the question; but the legal fraternity is proverbially conservative, and yields to the logic of progress only after the most stubborn resistance.

Any one who is familiar with the interesting history of early strikes and labor cases in the United States is aware of the fact that nearly everything now universally admitted to be within the indisputable power of organized labor was at first sternly denied to it in the name of "public interest." Workmen could not demand higher wages, or resist reductions, except as individuals. To threaten to quit work in a body was to be guilty of "conspiracy," within the very elastic definition of the common law. All concerted action was, in short, strictly prohibited as being in restraint of trade, and repugnant to that freedom of commerce and competition which the public welfare was held to demand.

We know how great the change is which has occurred since those days. The right to strike and to act in concert is no longer denied. The objection that organized resistance to capital involves the restriction of "free trade in labor" is no longer advanced. Even in the Debs case, the federal supreme court went out of

its way to declare most earnestly that the right of labor to strike in a body is not challenged by the courts, however great may be the injury to the employer thus crippled. Upon this declaration, labor may be congratulated. There are alleged economists and moralists who would restrict the right to organize general strikes, on the ground that the interests of the public at large are paramount, and that no general interruption of business ought to be tolerated by the community. There are alleged jurists who would draw a distinction between what may be termed "selfish" strikes and sympathetic strikes, tolerating the former as unavoidable evils and prohibiting the latter. But it is safe to say that such reactionary positions are not likely to secure much recognition. Labor is too strong to submit to curtailment of legitimate freedom, and even its right to order general and sympathetic strikes in obedience to the higher principles of solidarity cannot now seriously be invaded.

But, as already intimated, with regard to the right to boycott and blacklist,* the greatest confusion prevails. On the question of boycotting, but few decisions have been rendered. The ordinary legal writer or journalist never fails to associate boycotting with coercion and threats of violence. To this, more than to any other cause, is due the silly and indiscriminate denunciation of boycotting as un-American, vicious, aggressive and so on. But boycotting, pure and simple boycotting, totally free from the element of direct physical coercion, could only be held improper from the anachronistic common-law standpoint. Boycotting necessarily involves concerted action, or "conspiracy," but not all conspiracies are criminal. It is possible to conspire for good purposes as well as for bad purposes. The boycotter is essentially passive; he lets his victim severely alone. A passive man cannot be an aggressor, passive aggression being a contradiction in terms. Erom the ethical point of view, from the point of view of equal freedom, the right to boycott is clear and obvious. It may have been observed that of late there has been great reluctance to institute proceedings against Ixjycotters. The recent Milwaukee boycott afforded an excellent opportunity to test the legality of boycotting, but it was neglected. Shallow news

  • The meaning of the term will be readily inferred from the Kuglish case cited below. American workmen generally use "boycotting" to describe such situations; but the English, with greater accuracy, call it blacklisting.

papers continued to assail the method as an outrageous violation of liberty, but they gave no logical proof of their assertions. Meantime, the practice of boycotting is spreading and becoming popular. Not only workmen, but ministers, merchants and politicians are resorting to it. The intense prejudice against it will gradually die out, and at last even the courts will have to follow suit and pronounce boycotting perfectly innocent and proper.

Not so easy will be the acquisition of the freedom to use the blacklist. Corporations have long been in the habit of resorting to this method, but it is only recently that organized labor has attempted to use it against arrogant employers. Two interesting cases involving this question have recently been decided— one in the United States, the other in England. The American decision is reported in the monthly bulletin of the federal department of labor statistics. It is the first on record, and is, therefore, peculiarly significant. The English case possesses some novel and remarkable features, and a comparison of them will yield interesting results.

It is scarcely necessary to say, in view of the state of "labor law," that in neither decision was the right to blacklist upheld. The English decision is more progressive than the American, though less logical. Let us state the facts, and analyze the reasoning of the courts.

In the American case, a conductor of a certain railroad resigned his position, and secured employment with another road. His new employer, thereupon, was notified by private letter that he had left the other road "under charges," and this led to his dismissal. He brought suit, complaining that his loss of employment was due to the letter of the road he voluntarily left. There was no allegation that the statements contained in the communication were false, or that its sending was malicious. The court awarded him damages, and found the defendant guilty of blacklisting.

In the English case, members of a trade union refused to work for a firm which insisted on employing non-union men. Not satisfied with striking, they issued a huge poster, in black and yellow, calling upon all trade unionists to boycott the offending firm. This poster was posted all over London, and attracted general attention. The firm instituted proceedings, and the blacklisters were found guilty of conspiracy to injure. The judge held that, while the trade union involved had a perfect right to prepare and circulate a blacklist of firms unfriendly to organized labor, the circulation must be confined to those directly interested. Malicious publications, holding up to public odium and execration, was in no wise needful to the protection of the rights of the unionists, and must, therefore, be inspired by criminal motive, by a desire to injure. A circular giving the facts and sent to all members of interested labor organizations would be entirely legitimate, because non-malicious and obviously necessary for defensive and protective purposes. Huge, offensive posters, on the other hand, are

manifestly intended for the general public, and tend to bring the blacklisted party into disrepute.

A more fallacious, puerile, illogical, lame decision can hardly be conceived. To say that an act, otherwise legitimate, becomes illegitimate when done maliciously and with the intent to injure, is an obvious absurdity. Judges do not know, and cannot inquire into, the real motives and intent of people. Motive and intent can only be inferred from the facts, and when apparent intent is opposed to real intent the former alone is taken into consideration.

Nor is intention to inflict injury material to the issue, because injury is not a trustworthy test of aggression. There are certain legitimate ways of inflicting injury upon one's enemies, and there are numerous illegitimate ways of doing so. The courts do not ask whether injury has been inflicted, but in what way it has been inflicted.

Let us suppose a case in which both malice and the intent to injure are present, and which yet would have to be pronounced entirely legitimate by any court of justice. The publisher of a newspaper offends somebody engaged in other than newspaper business, who has never had any notion of going into journalism. Asa method of "getting even," the offended individual starts a rival publication next door to the offender, and in every possible way known to the trade entices away his patronage and advertising. The offender is ruined, driven out of business. Can he be heard to complain that hi6 enemy had gone into journalism for the sole and malicious purpose of injuring him? Certainly not, and why? Because any individual is free to start a newspaper at any time, and no one can properly inquire into his motives for doing so. The injury he inflicts is incidental to his pursuing a legitimate business.

In the London blacklist case the real and sole question is whether the preparation and circulation of a blacklist is permissible. If it is, malice does not change the matter. As for the injury, certainly every strike is calculated to injure, yet courts have not, since medieval notions of conspiracy were discarded, ruled them out as illegal.

There is left, then, the point that the huge poster tends to bring the pilloried person into public contempt and disrepute. Even if this should be granted, it would not follow that the act of publication was wrong. The question of libel and slander aside, a man certainly has a right to hold another up to public odium. Statements are either libelous or they are not. If they are, an action for libel will lie. Such methods of holding up to public odium as are comprehended in the definition of libel are generally held to be inconsistent with equal freedom (a position I have challenged more than once) and, therefore, they may be prohibited. Statements that are not libelous, even if extremely disagreeable, are tolerated either because it is generally believed that they do not excite the contempt of the public or else because it is vaguely felt that there are certain ways of holding up to public odium which are not illegitimate or improper from the standpoint of justice. The London firm did not bring an action of libel, and it had no other possible ground for complaint.

Besides, it is absurd to contend that there was any holding up to public odium in the case. What the blacklist announced was simply that the firm named was giving employment to "scabs" and declining to pledge itself to employ none but union men. Since the firm has a perfect legal and ethical right to do what it was charged with doing, where was the danger of public odium? How can it tend to bring one into disrepute to state that he is exercising an unquestioned right? To antagonize trade unions might bring upon one the contempt and dislike of union men and their sympathizers,—which is to be expected,—but the general public is wholly indifferent to the controversy and does not get excited over the announcement that such or such a firm employs non-union labor. If, on the other hand, we suppose that the general public is so far in sympathy with unionism that antagonism to the principle does excite general contempt, then, since the black list or poster simply announced a fact, the firm cannot complain of the mode of arousing public resentment. The truth was told about the firm, and it must accept the consequences naturally resulting from its action. The right to publish the truth may give rise to the question of the alleged right to privacy, but this was not the ground of the action.

It is plain, however, that under the distinction drawn in the London case the blacklisting of the American conductor would be held to be legitimate. There was no malice and no holding up to public odium in that case, although there was intent to injure. The American decision holds that all blacklisting is illegal, whether malicious or not, whether public or private. This is, at least, consistent, though reactionary and absurd.

It is interesting to note that the London Chronicle, a leading liberal organ, attacked the English decision as an invasion of the rights of labor unions. The majority of the papers, however, perceived nothing unjust or incongruous in it. The American decision was naturally applauded by the superficial writers in the newspapers. The only proper test is the great principle of equal freedom, formulated by Spencer and Kant, and this test tells us that blacklisting, if not accompanied by libel, is perfectly consistent with the requirements of justice.