of the union. It means inducing the em- [thing which the law prohibits or declares ployer to enter into a collective agreement otherwise to be inconsistent with the public with the union governing the relations of the welfare. The operator by the union agreeemployer to the employés. Unionizing im- ment binds himself: (1) To employ only. plies, therefore, at least formal consent of the members of the union; (2) to negotiate with employer. Both plaintiff and defendants in- union officers instead of with employés insisted upon exercising the right to secure dividually the scale of wages and the hours of contracts for a closed shop. The plaintiff work; (3) to treat with the duly constituted sought to secure the closed non-union shop representatives of the union to settle disthrough individual agreements with employés. putes concerning the discharge of men and The defendants sought to secure the closed other controversies arising out of the emunion shop through a collective agreement ployment. These are the chief features of with the union. Since collective bargaining a "unionizing" by which the employer's libis legal, the fact that the workingmen's agree- erty is curtailed. Each of them is legal. To ment is made not by individuals directly obtain any of them or all of them men may with the employer, but by the employés with lawfully strive and even strike. And, if the the union and by it, on their behalf, with the union may legally strike to obtain each of employer is of no significance in this connec- the things for which the agreement provides; tion. The end being lawful, defendant's ef- why may it not strike or use equivalent forts to unionize the mine can be illegal, only economic pressure to secure an agreement to if the methods or means pursued were un- provide them? lawful; unless indeed there is some special significance in the expression "unionizing without plaintiff's consent."

It is also urged that defendants are seeking to "coerce" plaintiff to "unionize" its mine. But coercion, in a legal sense, is not

It is urged that a union agreement cur- exerted when a union merely endeavors to tails the liberty of the operator. Every agreement curtails the liberty of those who enter into it. The test of legality is not whether an agreement curtails liberty, but whether the parties have agreed upon some

induce employés to join a union with the intention thereafter to order a strike unless the employer consents to unionize his shop. Such pressure is not coercion in a legal sense. The employer is free either to accept the agreement or the disadvantage. Indeed, the A witness for the defendants testified as follows: plaintiff's whole case is rested upon agree"There is a difference between unionizing a mine and unionizing the employés in a mine; unionizing ments secured under similar pressure of the employés is having the men join the organiza-economic necessity or disadvantage. If it is tion; unionizing a mine is creating joint relations coercion to threaten to strike unless plaintiff between the employers and employés; a mine cannot be unionized unless the employer enters into

contractual relations with the union; it is not the policy or purpose of the United Mine Workers as an organization to coerce a man into doing a thing against his will; this distinction between unionizing a mine and unionizing the employés of a mine has existed since the organization came about, and this method of unionizing a mine existed in 1906 and 1907."

A witness for the plaintiff testified that "the term 'union,' when applied to mining, means the United Mine Workers, and a union mine is a mine that is under their jurisdiction and So recognized. The contrary is "non-union or open shop." And further: "The men might be unionized at a

consents to a closed union shop, it is coercion also to threaten not to give one employment unless the applicant will consent to a closed non-union shop. The employer may sign the union agreement for fear that labor may not be otherwise obtainable; the workman may sign the individual agreement, for fear that employment may not be otherwise obtainable. But such fear does not imply coercion in a legal sense.

In other words an employer, in order to effectuate the closing of his shop to union mine and the mine owners not recognize the union. labor, may exact an agreement to that ef That would in effect be an open shop. When I fect from his employés. The agreement *itsaid 'unionize the employés' I meant practically all self being a lawful one, the employer may of the employés; but a union mine, as I understand it, is one wherein the closed shop is prac- withhold from the men an economic needtically enforced." In such case, the witness ex- employment-until they assent to make it. plained, the operator would be practically in contract relation with the organization.

It was also testified: "The difference between organizing the men at the mine and organizing the mine is that when the miners are organized the work of organizing the mine is only just started. They next proceed to meet with the operator who owns the mine, or operates it, for the purpose of making contracts or agreements. Under the constitution and methods of the United Mine Workers a mine cannot be organized without the consent of the owner, and it is not the object or purpose of the United Mine Workers to do so, and never has been; it has never been attempted as far as witness knows. After a mine has been organized, the agreement between the employer and the organization is paramount. The constitution of the organization has nothing to do with the workings

Likewise an agreement closing a shop to nonunion labor being lawful, the union may withhold from an employer an economic need-labor-until he assents to make it. In a legal sense an agreement entered into, under such circumstances, is voluntarily entered into; and as the agreement is in itself legal, no reason appears why the general rule that a legal end may be pursued by legal means, should not be applied. Or, putting it in other words, there is nothing in the character of the agreement which should make unlawful means used to attain

afterwards; that agreement does not take away it, which in other connections are recognized from the operator the control of his men."

as lawful

Fifth: There was no attempt to induce | the workmen are not bound by contract to employés to violate their contracts. remain in such employment.

As persuasion, considered merely as a means, is clearly legal, defendants were 1. COURTS within their rights if, and only if, their interference with the relation of plaintiff to its employés was for justifiable cause. The purpose of interfering was confessedly in order to strengthen the union, in the belief that thereby the condition of workmen engaged in mining would be improved; the bargaining power of the individual workingman was to be strengthened by collective bargaining; and collective bargaining was to be insured by obtaining the union agreement. It should not, at this day, be doubted that to induce workingmen to leave or not to enter an employment in order to advance such a purpose, is justifiable when

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

merits, or upon the face of the bill there is no ground for equitable relief, the appellate court may finally dispose of the merits upon an appeal from an interlocutory order; but where an application for a temporary injunction was submitted upon affidavits taken ex parte without opportunity for cross-examination and without any consent that the court proceed to a final determination of the merits, the Circuit Court of Appeals could not determine the merits, unless it appeared upon the face of the bill that there was no ground for equitable relief. 3. INJUNCTION 101(2)—SUBJECTS OF PROTECTION-INTERFERENCE WITH EMPLOYÉS. That employés were at liberty to quit the employment at pleasure did not deprive an employer of its right to injunctive relief against interference with its employés by third persons seeking to unionize them.

4. MASTER AND SERVANT

339-INTERFERENCE WITH RELATION BY THIRD PERSONS. The right of employés to quit their employment gave third persons no right to instigate a

strike.

Mr. Justice PITNEY delivered the opinion of the Court.

This case is quite similar to Hitchman Coal & Coke Company v. Mitchell et al., No. 11, this day decided, 245 U. S. 229, 38 Sup. Ct. 65, 62 L. Ed. and was submitted at the It was time of the argument of that case. a suit in equity, commenced July 28, 1913, in the United States District Court for the Northern District of West Virginia. This was after that court had rendered its final decree in the Hitchman Case (202 Fed. 512), and the decree awarding a temporary injunction herein was made before the reversal of the final decree in the Hitchman Case by the Circuit Court of Appeals (214 Fed. 685, 131 C. C. A. 425).

The plaintiff, Eagle Glass & Manufacturing Company, is a West Virginia corporation,

having its principal office and its manufactur5. INJUNCTION 101(3)—SUBJECTS OF PRO-ing plant in that state. The object of the bill TECTION-INTERFERENCE WITH EMPLOYÉS. was to restrain the defendants, officers and Plaintiff was operating a non-union plant members of the American Flint Glass Workunder individual agreements with its employés, ers' Union, a voluntary association having its each of whom on entering its employment signed a paper declaring that he was not a member of principal office at Toledo, in the state of Ohio, a union, and would not become a member while form interfering with the relations existing in its employment, and that if he desired to be- between plaintiff and its employés for the come connected with a union, he would withdraw from such employment, and that he would purpose of compelling plaintiff to "unionize" make no effort to bring about the unionizing its factory. The original defendants, Thomas of the plant against plaintiff's wish. Defend- W. Rowe, Joseph Gillooly, and three others, ants, with notice of these facts, were making were among the chief executive officers of the efforts through an organizer and threatening union, and were sued individually and as further efforts to induce some of the employés to quit the employment, and to persuade others such officers. secretly to join the union, but remain at work until a sufficient number had joined to enable them to compel the unionization of the shop by threatening to strike, and it also appeared that the organizer had used money and threatened to use dynamite to reinforce his other efforts to coerce plaintiff into agreeing to the unionization of the plant. Held, that the methods pursued were not lawful methods of inducing employés to join the union, but entitled plaintiff to an injunction.

The federal jurisdiction was invoked on the ground of diversity of citizenship, it being alleged that all of the defendants were citizens of the state of Ohio.

Upon the filing of the bill, with numerous affidavits verifying its averments, and showing that plaintiff's factory was run as a non-union shop under individual agreements with its employés, each employé having signed a paper declaring that he was not a mem

Mr. Justice Brandeis, Mr. Justice Holmes, ber of the American Flint Glass Workers' and Mr. Justice Clarke, dissenting.

Appeal from and Petition for Writ of Certiorari to the United States Circuit Court of Appeals for the Fourth Circuit.

Suit by the Eagle Glass & Manufacturing Company against Thomas W. Rowe, individually, and as President of the American Flint Glass Workers' Union, and others. A decree granting a temporary injunction was reversed by the Circuit Court of Appeals for the Fourth Circuit (Hill v. Eagle Glass & Mfg. Co., 219 Fed. 719, 135 C. C. A. 417) and plaintiff appeals, and petitions for a writ of certiorari. Appeal dismissed, writ of certiorari granted, and decree of the Circuit Court of Appeals affirmed in part, and reversed and remanded in part.

Union and would not become a member while an employé of the Eagle Company, that the company agreed that it would run non-union while he was in its employ, that if at any time while so employed he desired to become connected with the union he would withdraw from the employ of the company, and that while in its employ he would not make any effort amongst its employés to bring about the unionizing of the plant against the company's wish; that the defendants, with notice of this, were making efforts through Gillooly as organizer, and threating further efforts to induce some of plaintiff's employés to quit its employ, and to persuade others secretly to join the union and remain at work in plaintiff's factory contrary to the terms of their agreement until a sufficient number had joined so as to be able by threatening to quit in a body to compel the unionization of the shop; and that by the activities of defendants the plaintiff was threatened with irreparable inMr. John A. Howard, of Wheeling, W. Va., jury; the District Court granted a restrainfor appellees.

Mr. George R. E. Gilchrist, of Wheeling, W. Va., and Mr. Hannis Taylor, of Washington, D. C., for appellant.

ing order.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
38 SUP.CT.-6

davits of the answering defendants which were not specifically rebutted by the plaintiff. The court, having struck out the entry of appearance for the original defendants other than Gillooly, made a decree granting a temporary injunction to restrain the defendants in the cause from interfering with plaintiff's employés, the form of the injunction being modeled upon that ordered by the final decree made in Hitchman Coal & Coke Co. v. Mitchell et al.

The answering defendants appealed to the Circuit Court of Appeals, and that court (219 Fed. 719, 135 C. C. A. 417) reversed the decree; holding that as the Steubenville defendants submitted affidavits that they were only members, not officers, of a local union, that the original defendants, who were the general officers of the union, were not authorized to represent them in the alleged illegal acts and that they knew nothing of the efforts to unionize plaintiff's factory, and as plaintiff had made no showing to the contrary, it was erroneous to issue a temporary injunction against the defendants (other than Gillooly) named in the bill and amended bill; that as Rowe and the other general officers were not served, no relief could be given against them unless it could be said that they were brought before the court by representation when the Steubenville defendants were brought in; and that as plaintiff had no case against the latter defendants for particsuch common or general interest as authoripation in the alleged torts, there was no ized a decree against the defendants not served by virtue of the service upon and appearance of the Steubenville defendants. Having said this to show error in the decree awarding a temporary injunction, the court concluded its opinion as follows:

Process requiring defendants to answer the bill was promptly issued, but was served upon Gillooly alone, together with the restraining order. At the request of an attorney, a general appearance was entered for the other defendants. Gillooly filed an answer, amounting to a plea to the jurisdiction of the court, based upon the allegation that he was a resident and citizen of the state of West Virginia, and not of the state of Ohio as alleged in the bill. Upon this answer and affidavits in support of it he moved to dissolve the restraining order and dismiss plaintiff's suit, and thereupon, on the ground that he was a citizen of West Virginia, an order was made dismissing the bill as to him, without prejudice, and retaining the suit as to the other defendants. Plaintiff moved for a temporary injunction against them, whereupon the attorney at whose request their appearance had ⚫ been entered moved to strike it out on the ground that his request was due to inadvertence and in fact he had no authority to appear for them. His motion was granted; but in the meantime plaintiff obtained leave to file and did file an amended bill, adding as defendants Peter J. Glasstetter and seven other parties named, residents of Steubenville, Ohio, and citizens of that state, and averring that they were members of the American Flint Glass Workers' Union, had constituted the original defendants, including Gillooly, their agents and representatives, and had assisted and were supporting them in their efforts to unionize plaintiff's employés and to force plaintiff to recognize the union. Process to answer the amended bill was issued and was served upon the added defendants, the remaining original defendants being returned "not found." Afterwards, and upon proper notice to the served defendants, plaintiff renewed its motion for a temporary injunction, basing it upon the original bill, exhibits, and accompanying affidavits, the amended bill, and some additional affidavits. Meanwhile the served defendants, who may be called the Steubenville defendants, filed answers denying knowledge of the matters alleged in the bill, denying that they had constituted Gillooly and the other original defendants their agents or representatives, or had assisted or supported them in the effort to unionize plaintiff's employés and force plaintiff to recognize the American Flint Glass Workers' Union, admitting that they were members of a local union of glass workers at Steubenville which was affiliated with the principal union, and averring that except their relation as members of the local union they had no connection or relation [1] Since it appears from the averments with the other defendants, were not officers, of the bill and amended bill that the federal agents, representatives, or organizers of the jurisdiction was invoked solely upon the union, and even in their capacity as members ground of diversity of citizenship, it is eviof their local had not by act, word, or deed dent that, as in the Hitchman Case, the authorized, assisted, aided, or encouraged appeal must be dismissed. 241 U. S. 644, any of the other defendants in doing any 36 Sup. Ct. 450, 60 L. Ed. 1218. But, as of the things alleged in the bill or amended in that case, we grant the writ of certiorari,

"All the questions involved in the merits of the appeal were decided adversely to the appellee by this court in Mitchell v. Hitchman Coal, & Coke Co., 214 Fed. 685 [131 C. C. A. 425].'

*Thereupon a decree was made reversing the decree of the District Court, and remanding the cause with directions not only to dissolve the injunction, but to "dismiss the bill in accordance with the opinion of this court." The mandate was stayed pending application to this court for a writ of certiorari. Afterwards an appeal was allowed by one of the Circuit Court judges, together with a supersedeas. The transcript on appeal having been filed in this court, an application for a writ of certiorari was afterwards presented, consideration of which was postponed to the hearing of the appeal.

bill. These answers were supported by affil- the record on appeal to stand as the return

2

to the writ. And, as the case was submitted on the merits, we proceed to dispose of them. So far as the decision of the Circuit Court of Appeals dissolved the temporary injunction upon the ground that the Steubenville defendants had denied, and plaintiff had not adduced sufficient evidence to sustain, the averment of the amended bill that they had constituted Gillooly and the other original defendants their agents and representatives "It will be observed that by the terms of the and had assisted and supported them in contract that either of the parties thereto may their efforts to unionize plaintiff's employés at will terminate the same, and while it is proand force plaintiff to recognize the American vided that so long as the employé continues to Flint Glass Workers' Union, we see no reasonganization, nevertheless there is nothing in the work for the plaintiff he shall not join this orto disturb the decision.