J. F. Parkinson Co. v. Building Trades Council

I concur in the judgment, but am not prepared to assent to everything that is said in the main opinion.

What is particularly to be borne in mind is that we are not here concerned with a strike or boycott presenting any of the features of violence, either expressly or impliedly threatened, to be found in so many of the decided cases. There was here no effort or threat to interfere by physical force with the plaintiff or its employees, nor any intimidation of employees or customers, using the term "intimidation" as meaning an act tending to inspire fear of violence to person or property. One may, to be sure, be put in fear of violence without the use of any word indicating an intent to resort to force. "Picketing," as practiced in labor disputes, may, and perhaps usually does, constitute an intimidation of the employees and patrons of the person whose establishment is picketed. (Goldberg v. Stablemen'sUnion, 149 Cal. 429, [117 Am. St. Rep. 145, 86 P. 806].) The carrying, near a place of business, of banners calling upon laborers to remain away from such place, has been treated as a form of menace directed against those who might seek employment.(Sherry v. Perkins, 147 Mass. 212, [9 Am. St. Rep. 689, 17 N.E. 307].) So, too, words which, of themselves, purport to express merely a request, may be uttered in such manner and under such circumstances as to convey to the hearer a plain threat that refusal to comply with the request (or demand) will result in physical harm to him. None of these considerations are, however, presented in this case. In so far as the injunction restrains the defendants from the use of force or threats of violence, it is clearly not supported by any evidence.

Nor need we here consider how far it is unlawful, whether by persuasion or other means, to induce one of the parties to a contract to break it to the damage of the other. As is pointed out in the opinion of the chief justice any acts of this character that may have been committed by the defendants had occurred prior to the commencement of the action, and there was no evidence that any further interference in this direction was to be anticipated. There was, therefore, no basis for enjoining such acts.

The real question in the case turns upon the activities of the defendants exerted in two ways: 1. In ceasing to work for the plaintiff (striking), and 2. In notifying (or threatening, if that term be preferred) the customers of plaintiff that workmen affiliated with the Building Trades Council would not work for contractors using materials purchased of plaintiff.

That workmen employed by the Parkinson Company had a right to leave its employ whenever they desired, and for any reason that might seem to them sufficient, is universally conceded. Was it unlawful to notify contractors dealing with the Parkinson Company that union men would not continue to work for them if they purchased material of said Parkinson Company? In this inquiry, I think it is unimportant that the defendants were merely acting in accordance with a rule adopted before any difference with the plaintiff had arisen. The opinion of the chief justice appears to proceed upon the theory that, since the defendants had bound themselves to act in a certain way in the event of a controversy of this kind, it was not only proper, but laudable, for them to notify contractors of their intended action and of the consequences which would follow to contractors who should continue to deal with the plaintiff. More than this, that it was in some way incumbent upon plaintiff to notify contractors dealing with him that a continuance of their patronage would be likely to result in loss to them. I cannot agree to the proposition that the rights of the parties are in any way affected by such considerations. If the defendants' course of conduct amounted to an unlawful interference with plaintiff's rights, it was not made lawful by the fact that the defendants had decided, in advance, to act in this way whenever an occasion should present itself.

But was their action unlawful? They had a right, as has been said, to cease working for Parkinson. They had an equal right to cease working for any other employer. Upon what ground, then, is it claimed that while their refusal to work for plaintiff gave plaintiff no cause of complaint, the refusal to work for others did give plaintiff a ground of action? Because, it is said, they are bringing to bear upon the Parkinson Company, with which they have a controversy, the pressure of loss inflicted by third persons, not connected with the main dispute, and are, by holding over these third persons the risk of financial loss, compelling them, against their will, to inflict upon Parkinson the damage resulting from a cessation of their patronage. This is the argument commonly advanced to establish the illegality of what has been called, in much of the recent discussion of the subject, a "secondary" rather than a "primary" boycott. I do not see that we are helped to a solution of the question of the illegality of the defendants' acts by looking into the "motive" or "intent" with which they acted. Even if we assume, contrary to the decisions of this court, that an improper motive may, as a general proposition, render actionable an act otherwise lawful, or, to use another form of statement, that damage intentionally inflicted will be actionable unless its infliction can be justified by showing that it was inspired by a proper motive, the motive with which these defendants acted was not, in my opinion, one which the law regards as improper. The defendants were seeking, in all they are shown to have done, to secure employment by the plaintiff for themselves, to the exclusion of those not associated with them, and to secure that employment upon terms deemed satisfactory or advantageous to them. That is the effort of every dealer in goods; it is the struggle of competition, and is no more to be frowned upon where the subject of trade is labor than where it is a specific commodity. The uniting or combining of a number of persons to accomplish a lawful object by lawful means will not, per se, render the conduct of the many any more unlawful than would be the same conduct on the part of any one of them. "It is plain," as is said by Mr. Justice Holmes in his dissenting opinion inVegelahn v. Guntner, 167 Mass. 92, 108, [57 Am. St. Rep. 443, 44 N.E. 1077], "from the slightest consideration of practical affairs, or the most superficial reading of industrial history, that free competition means combination, and that the organization of the world, now going on so fast, means an ever increasing might and scope of combination. . . . One of the eternal conflicts out of which life is made up is that between the effort of every man to get the most he can for his services, and that of society, disguised under the name of capital, to get his services for the least possible return. Combination on the one side is patent and powerful. Combination on the other is the necessary and desirable counterpart, if the battle is to be carried on in a fair and equal way."

The injunction then, must rest upon the principle that it is unlawful, in an effort to compel A to yield a legitimate benefit to B, for B to demand that C withdraw his patronage from A, under the penalty of losing B's services or patronage, to which he has no contract right. That there are many cases sustaining the affirmative of this proposition is true. (Thomas v. Cincinnatietc. Ry. Co., 62 Fed. 803; Hopkins v. Oxley Stave Co., 83 Fed. 912, [28 C.C.A. 99]; Vegelahn v. Guntner, 167 Mass. 92, 108, [57 Am. St. Rep. 443, 44 N.E. 1077]; Beck v. Railway Teamsters'Protective Union, 118 Mich. 497, [74 Am. St. Rep. 421, 77 N.W. 13]; Gray v. Building Trades Council, 91 Minn. 171, [103 Am. St. Rep. 477, 97 N.W. 663]; Barr v. Essex Trades Council, 53 N.J. Eq. 101, [30 A. 881]; Lucke v. Clothing C. T.A., 77 Md. 396, [39 Am. St. Rep. 421, 26 A. 505]; Jackson v. Stanfield,137 Ind. 592, [36 N.E. 345, 37 N.E. 14]; Crump v. Commonwealth, 84 Va. 927, [10 Am. St. Rep. 895, 6 S.E. 620].)

So are there many to the contrary. (Mogul Steamship Co. v.McGregor, L.R., [1892] App. Cas. 25; National Protective Assoc. v. Cumming, 170 N.Y. 315, [88 Am. St. Rep. 648, 63 N.E. 369];Clemmitt v. Watson, 14 Ind. App. 38, [42 N.E. 367]; Cote v.Murphy, 159 Pa. St. 420, [39 Am. St. Rep. 686, 28 A. 190];Macauley Bros. v. Tierney, 19 R.I. 255, [61 Am. St. Rep. 770,33 A. 1]; Bohn Mfg. Co. v. Hollis, 54 Minn. 223, [40 Am. St. Rep. 319, 55 N.W. 1119]; Payne v. Western etc. R.R. Co., 13 Lea, 507, [49 Am. Rep. 666]; Heywood v. Tillson, 75 Me. 225, [46 Am. Rep. 373]; Raycroft v. Tayntor, 68 Vt. 219, [54 Am. St. Rep. 882, 35 A. 53]; State v. Van Pelt, 136 N.C. 633, [49 S.E. 177]; Lindsay Co. v. Montana Fed. of Labor, (Mont.) 96 P. 127.)

This enumeration does not attempt to cite all of the great mass of authority that might be referred to as bearing upon the proposition here involved. Nor do I undertake to review or to reconcile the well-known English cases of Allen v. Flood andQuinn v. Leathem.

Upon a consideration of the authorities I think the sounder rule is that one who is under no contract relation to another may freely and without question withdraw from business relations with that other. This includes the right to cease to deal, not only with one person but with others; not only with the individual who may be pursuing a course deemed detrimental to another who opposes it, but with all who by their patronage aid in the maintenance of the objectionable policies. In other words, if the defendants violated no right of the Parkinson Company by refusing to work for it, they violated none by refusing to work for contractors who used material bought of Parkinson. Such refusal, as is shown in the opinion of the chief justice, and as is stated in the testimony of plaintiff's manager and principal witness, was the "sum total of the interference" which was practiced or threatened. An agreement by shipowners, in order to secure a carrying trade exclusively for themselves, that agents of members should be prohibited upon pain of dismissal from acting in the interest of competing shipowners (Mogul S.S. Co. v. McGregor, L.R., [1892] App. Cas. 25); a combination of retailers binding the members to refuse to purchase of wholesalers who should sell to non-members of the combination (Bohn Mfg. Co. v. Hollis,54 Minn. 223, [40 Am. St. Rep. 319, 55 N.W. 1119]; Macauley Bros. v.Tierney, 19 R.I. 255, [61 Am. St. Rep. 770, 33 A. 1]; an agreement of contractors to withdraw their patronage from wholesalers selling to a contractor who had conceded the demands of his employees for an eight-hour day (Cote v. Murphy, 159 Pa. 420, [39 Am. St. Rep. 686, 28 A. 190]; a threat by a railroad company to discharge any employee who should deal with the plaintiff (Payne v. Western etc. R.R. Co., 13 Lea, 507, [49 Am. Rep. 666]; a threat by an employer that he would discharge any laborer who rented plaintiff's house (Heywood v. Tillson, 75 Me. 225, [46 Am. Rep. 373],) have been held to give no right of action to the individuals affected. The defendants in each case were held to be acting within their absolute legal right in entering or refusing to enter into business relations with persons to whom they were not bound by contract. I see no reason why workmen have not the same absolute right to dispose of their labor as they see fit. So long as they abstain from breach of contract, violence, duress, menace, fraud, misrepresentation, or other unlawful means, they may lawfully inflict such damage as results from the withholding of their labor or patronage. To quote again from Judge Holmes's opinion in Vegelahn v. Guntner, 167 Mass. 92, [57 Am. St. Rep. 443, 44 N.E. 1077], "If it be true that workingmen may combine with a view, among other things, to getting as much as they can for their labor, just as capital may combine with a view to getting the greatest possible return, it must be true that when combined they have the same liberty that combined capital has to support their interests by argument, persuasion, and the bestowal or refusal of those advantages which they otherwise lawfully control."

The terms "intimidation" and "coercion," so frequently used in the discussion of this question, seem to me to have no application to such acts as were here committed. One cannot be said to be "intimidated" or "coerced," in the sense of unlawful compulsion, by being induced to forego business relations with A, rather than lose the benefit of more profitable relations with B. It is equally beside the question to speak of "threats," where that which is threatened is only what the party has a legal right to do.

It may be that the combination of great numbers of men, as of great amounts of capital, has placed in the hands of a few persons an immense power and one which, in the interest of the general welfare, ought to be limited and controlled. But if there be, in such combinations, evils which should be redressed, the remedy is to be sought, as to some extent it has been sought, by legislation. If the conditions require new laws, those laws should be made by the law-making power, not by the courts.