11. "BOYCOTT."

Boycott Defined and Considered.-Boycotts are in their nature a species of sympathetic strike. Their origin can be traced in McCarthy's "England Under Gladstone," and it is generally supposed the idea had its inspiration in the proceedings of excommunication practiced in ecclesiastical courts. Judge Taft has presented a definition of the boycott as seen in actual operation in the United States:

"As usually understood, a boycott is a combination of many to cause a loss to one person by coercing others against their will to withdraw from him their beneficial business intercourse through threats that, unless those others do so, the many will cause similar loss to them."

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This definition perhaps assumes too much, since the use of the word "coerce" and "threats" indicate a measure of physical force or at least the introduction of fear of such active aggression. Acts or threats of that character of course, are prohibited by the criminal laws, and such a method would render the organization and the members participating therein subjects for fines and penalties of various kinds.

But where moral suasion alone is resorted to and the business of the employer or even of third parties suffers thereby or therefrom, it is an injury that is incidental to the right to refuse to deal, and there exists no means for obtaining damages or other redress, since no legally recognized injury can result therefrom. In brief, it is an instance of damnum absque injuria. It is the natural outgrowth or incident of some lawful relation, i. e., that of employer and employee, and under such circumstances the former test of malice or malicious intent, recognized and applied in some jurisdictions, no longer controls.

12. PROTECtion affORDED BY SECTIONS 6 AND 20 OF CLAYTON LAW.

Toleration and Protection Assured by Clayton Law.-By an affirmative enactment the Clayton Law, Section 6, specifically exempts labor organizations from any construction of the Antitrust laws that will forbid their existence and lawful operation;

14 Toledo, etc., Ry. Co. v. Penna. Co., 54 Fed. 730, 19 L. R. A. 387, 395.

and it is therein equally forbidden to regard them as illegal combinations or conspiracies in restraint of trade, under those laws. The subject of the revision of the method of granting and applying injunctive relief in labor disputes is treated at pages 119, 120, so that we may now devote our attention to the clauses that contain the legislatively promulgated method of dealing with disputes between employers and employees.

13. PROVISIONS SEPARATELY EXAMINED.

Restrictive Regulations Applicable to Injunctive Orders.Section 20 prohibits restraining orders or injunctions unless necessary to prevent irreparable injury to property, or to a property right, of the party making the application, for which injury there is no adequate remedy at law. In addition, the property or property right must be described with particularity in the application, which must be in writing and sworn to by the applicant or his agent or attorney.

With these introductory special requirements complied with, the applicant will find further and important restrictions, which are in reality declarations of the independence of organized labor, so far as regulation of their lawful acts by courts or court proceedings is concerned. The effect of the several clauses of the second paragraph is and was intended to be so comprehensive as to definitely preclude the courts from rulings unfriendly and adverse to organized labor as such; indeed, these clauses are so fundamental and so thoroughgoing as to approach the dignity of a revolution or at least of a reform in the legal aspect of this department of social science. It, therefore, is not only useful but necessary to devote space to their proper and orderly consideration.

First: The Right to Strike.

Right to Strike Recognized.-This right is affirmed in the following words:

"And no such restraining order or injunction shall prohibit any person or persons, whether singly or in concert, from terminating any relation of employment, or from ceasing to perform any work or labor, or from recommending, advising or persuading others by peaceful means so to do."

The reasoning which prevailed and brought about this provision is so generally covered in the authorities already referred to and discussed in this chapter that it seems unnecessary to treat of those matters again in this place. It must suffice to say that while the evils which are or may be incident to labor agitation and management oftentimes bear very harshly on those interested, yet in spite of those evils organized labor is necessary to the welfare of the community as it exists to-day.

Second: Peaceful Picketing.

Peaceful Promoting of Strikers' Interests Permitted.Paragraph second further provides that such organizations or their members shall not be restrained or enjoined by courts

"Or from attending at any place where such person or persons may lawfully be, for the purpose of peacefully obtaining or communicating information, or from peacefully persuading any person to work or to abstain from working."

This language is taken from the British trades disputes act, the second section of which is as follows:

"It shall be lawful for one or more persons acting on their own behalf or on behalf of an individual, corporation or firm in contemplation or furtherance of a trade dispute to attend at or near a house or place where a person resides or works or carries on business or happens to be if they so attend merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from work."

This section from the British act, it has been said,—

"might well be termed a codification of the law relating to peaceful picketing as laid down by a majority of the American courts.'

"15

The same authority affirms that while

"there are some decisions that all picketing is unlawful, yet the view taken by the majority of decisions is best supported by reason."

15 Martin's Modern Law of Labor Unions, Sec. 173.

Since it is a lawful right to persuade others, the incidental right to establish pickets to meet and argue with other workmen and to induce them to aid the cause of the strikers cannot well be gainsaid. Peaceful persuasion is obviously a feature that pertains to citizenship; when force or intimidating threats of bodily harm are employed, the statutory authorization should not and does not apply.

Unlawful Acts Subject Offender to Contempt Proceedings. -That this clause of Section 20, paragraph 2, is not intended to encourage acts of violence is evident from its terms; and when such conduct exceeds the limits of "peacefully persuading," the benefit of the exemption from restraining orders or injunctions is forfeited. Infractions of such restraining order or injunction when issued will necessarily come within the scope of the proceedings for contempt provided by Section 21, since acts of that description involve violations of the laws which everywhere prohibit breaches of the peace. This provision, Section 21, applies only to contempts committed without the presence of the court, where a criminal act is involved.

While this method of compelling obedience is very frequently employed by courts, Sections 21 to 25, inclusive-governing that method of judicial coercion for acts committed without the presence of the court-contain no express provision referring to labor. The statute applies to any disobedience to "any lawful writ, process, order, rule, decree or command" by any Federal court, where the act complained of is in violation of any of the criminal laws of the United States, or of any individual State in which the act was committed. The main distinction is the right to trial by jury, and to obtain release upon bail pending appeal.

These features, and others of minor importance, are referred to and commented on in Chapter X, pages 120-2.

Third: Boycott in Aid of Cause Legalized.

Right to Withdraw Patronage.-The third clause is:

"Or from ceasing to patronize or to employ any party to such dispute, or from recommending, advising, or persuading others by peaceful and lawful means so to do." The court opinions on this matter are conflicting, and some attention has been already devoted thereto, at pages 170-7, supra. The most recent text-book on the subject sums up the sense of

the most thoughtful and convincing authorities on this vexed topic, as follows:

"A combination between persons merely to regulate their own conduct and affairs is allowable, and a lawful combination though others may be affected thereby. And the fact that the execution of the agreement may tend to diminish the profits of the party against whom such act is aimed does not render the participants liable to a prosecu tion for a criminal conspiracy or to a suit for injunction. Even though he sustain financial loss, he will be without remedy, either in a court of law or a court of equity. So long as the primary object of the combination is to advocate its own interests and not to inflict harm on the person against whom it is directed, it is not possible to see how any claim of illegality could be sustained."1"

This useful "conclusion of the whole matter" leaves it a question of fact to be determined from the proof whether the "primary object of the combination is to advance its own interests and not to inflict injury on the person against whom it is directed"; and with this inquiry answered in the affirmative and in the absence of violence or threat thereof, the boycott or secondary strike (by whatever name it may be termed), becomes a weapon which may be lawfully employed.

Labor Organizations May Assert Every Right.-As has been stated above, the best authorities give their support to this attitude toward the efforts of organized labor, whether acting upon the defensive or when asserting its power to advance its own interests. Mr. Justice Van Orsdel in his concurring opinion in the Court of Appeals of the District of Columbia says:

"Applying the same principle, I conceive it to be the privilege of one man, or a number of men, to individually conclude not to patronize a certain person or corporation. It is also the right of these men to agree together, and to advise others, not to extend such patronage. That advice may be given by direct communication or through the medium of the press, so long as it is neither in the nature of coercion or a threat.

16 Martin's Modern Law of Labor Unions, see pages 109 and 110.