Schwartz v. Laundry & Linen Supply Drivers' Union, Local 187

I dissent from the majority opinion. That opinion says: "The closed shop has by legislation become legalized in Pennsylvania and the present case is in no way concerned with it." The last half of that statement raises the issue between the views of the majority and my views. I think this case is not only "concerned with" the "closed shop" question but goes to its very vitals. The majority opinion holds the contract in question to be "in restraint of trade"; I consider some restraint of trade as much a necessary incident of a "closed shop" as some restraint of individual liberty a necessary incident of living in an organized society. One cannot be for the "closed shop" in practice without accepting a certain amount of trade restraint.

One of the basic errors in the majority opinion as I view it is in its failure to recognize the fact that the now legally recognized principle of a "closed shop" applies not merely to the employees of one or more employers but to all who do thesame kind of work, i.e., to the craft. What a "closed shop" comprehends has been authoritatively set forth as follows: "With one union securely established and formally recognized as the exclusive bargaining agency for the entire working force orcraft, there would be an end of competition between variouslabor groups and harmony would replace bickering and working at cross purposes [italics supplied]": "Studies in Personnel Policy," No. 1, by the National Industrial Conference Board (1937), Chapter on "The Closed Shop," p. 6. The Labor Review published by the United States Department of Labor, Vol. 49, No. 4 (Oct. 1939), says under the caption "Closed Shop": "In union agreements a closed shop is established by a provision requiring union membership as a condition of employment in the plant or in the occupations covered by theagreement [italics supplied]." The occupation is of equal importance with "the plant" in considering "closed shop" agreements. Styling the "bob-tails" "independent business men," as the majority opinion does, cannot conceal the fact that they are doing exactly the same kind of labor, i.e., performing the same services, as the laundry solicitors and are competitors of these solicitors. Calling a non-union carpenter or miner or house painter "an independent business man" does not take that particular man out of his craft. The Court of Appeals of New York in Exchange Bakery Restaurant, Inc., v. Rifkin,245 N.Y. 260, 157 N.E. 130, per ANDREWS, J., said: "The purpose of a labor union to improve the conditions under which its members do their work; to increase their wages; to assist them in other ways may justify what would otherwise be a wrong. So would an effort to increase its numbers and to unionize an entire tradeor business. [Italics supplied.] It may be as interested in the wages of those not members, or in the conditions under which they work as in its own members because of the influence of one upon the other."

Those women who did "piece work" on garments and hats in their own tenement houses in New York could be called "independent business women" with as much propriety as these "bob-tails" are called "independent business men." The economic and social evils incident to this "independent contracting" in New York were stamped out only when the Garment Workers Union brought all such "independent business women" within the principle of the "closed shop," thus ending a "cutthroat competition" which was injurious alike to the workers in the tenement houses and those in the factories with whom they competed. In the agreement between Eastern Women's Headwear Assn., Inc., and United Hatters, Cap and Millinery Workers International Union and the Joint Board of Millinery Workers' Union, Locals 2, 24 and 42, it is provided that "Employers shall not cause to be manufactured in places other than on the premises owned and leased by them any millinery, sold, dealt in or otherwise handled by them. Employers shall not give out any millinery to be manufactured by contractors." In Maisel v.Sigman, 205 N.Y. Supplement 807, it was held that an agreement between a union and jobbers and an association of manufacturers limiting the amount of work which can be sent to outside shops, was valid and not in violation of the anti-monopoly laws and not against public policy.

In the contract between the New York Clothing Mfgrs. Exchange and the Amalgamated Clothing Workers of America, it is provided that "the manufacturer will not cause or permit any work to be performed for him directly or indirectly [italics supplied] outside his own shop, by any person, partnership, corporation or contractor who employ workers not members of the union."

The foregoing contracts and many similar contracts exemplify the fact that the basic idea of a "closed shop" is the elimination of competitive underselling by those who havethe same services to sell. As Chief Judge CRANE, speaking for a unanimous New York Court of Appeals, said in Williams v. Quillet al. (1938), 227 N.Y. 1, 12 N.E.2d 547: "Economic organization today is not based on the single shop. Unions believe that wages may be increased, collective bargaining maintained only if union conditions prevail, not in some single factory, but generally."

The majority opinion says: "(1) The provision that a 'bob-tail' is not to be allowed to sell his laundry service at prices lower than those charged by the laundry company to its own retail customers amounts to a requirement that sales of laundry service by a company to a 'bob-tail' shall be conditioned upon a prohibition against the resale of such service to 'customers' at less than a certain price. It is clearly illegal." That statement ignores the fact that what the "bob-tail" is selling is his own labor. He is receiving for that labor the difference between what the laundry charges him and what he collects from his customer. He is not selling acommodity but labor service. He is doing exactly the same kindof labor and to the same end as the unionized laundrysolicitors, and the legally recognized "closed shop" principle cannot be circumvented by calling what the "bob-tails" are doing a "resale of service to consumers." The laundry performs the service of laundering. The "bob-tail" only "brings the grist" to the mill and his "toll" is his pay for his labor. If by taking less wages for their labor than the union laundry solicitors these "bob-tails" reduce the work of these solicitors, they are violating the "closed shop" principle and that is precisely the "unfair labor practice" (according to modern conceptions) that the Laundry Drivers' Union proposed to stop. If it is not stopped, the "bob-tails" could by accepting less pay for their services in collecting laundry put the union laundry solicitors completely out of business. The contract now challenged is a contract which the union laundry solicitors deem necessary to their own preservation. The "bob-tails" can join the union on reasonable terms and thus be secured in this work and at a remunerative wage. The purpose of the "closed shop" has been declared "to prevent underbidding by non-union workers in the same shop or craft."

The majority opinion says: "Even in the sale of an article which is copyrighted, or manufactured under a secret process, or patented, a vendor may not restrict resales by the vendee to a specified price." To compare labor with a "copyrighted article" as a subject of sale is to invoke a doctrine that is now completely obsolete. There was a time when human labor was regarded as a commodity, and competition between the sales of such commodities was so much favored by government that laws were enacted making it illegal for persons in the same craft to conspire to keep up the price of their "commodity," to wit, their labor. During the last century it was held that a combination of workmen to raise wages was unlawful. See King v. Journeymen-Tailors, 8 Mod. 10. In 1806 the Organized Shoemakers of Philadelphia, who went on strike for the purpose of improving working conditions, were convicted. In charging the jury in that case the court said: "A combination of workmen to raise their wages may be considered in a twofold point of view. One is to benefit themselves — the other is to injure those who do not join their society. The rule of law condemns both."

During this century labor unions have now general acceptance as social forces making, when properly conducted, for human welfare. The earlier doctrine that labor was a commodity in the sale of which there should be unrestrained competition and "against which no one had a right to be protected," as an American court expressed it 69 years ago, has completely given way to the modern idea expressed in the Federal Clayton Act. This Act was described by Hon. John W. Davis, then (1912) a member of the House of Representatives, as "an effort to crystallize into law the best opinions of the best courts" (48 Cong. Rec. 6421). This Act, which became a law in 1914, provided that "the labor of a human being is not a commodity or article of commerce." Practically all of the American states have in their statutes and judicial decisions adopted the same view, to wit, that labor is not a commodity. The Clayton Act also provided that "labor organizations should not be construed to be illegal combinations or conspiracies in restraint of trade, under the anti-trust laws."

The cases cited in the majority opinion following the excerpt last above quoted refer to articles of commerce and therefore do not apply to the issue now before us. Typical of these cases is that of Dr. Miles Medical Co. v. Park Sons Co.,220 U.S. 373. It dealt solely with the sale of patent medicines and not with labor or services. In that case Mr. Justice HUGHES recognized the fact that even as to commodities certain common law formulas, like "freedom of trade" or of contract, cannot be maintained in all their ancient rigidity in the face of modern economic conditions. He said: "With respect to contracts in restraint of trade, the earlier doctrine of the common law has been substantially modified in adaptation to modern conditions." He added that the rule as to the invalidity of contracts in restraint of trade "was made under a state of society different from that which now prevails" and the rule "is not regarded as inflexible." He was, of course, referring to the common law rule, which the majority opinion invokes.

In Atlantic Cleaners Dyers v. U.S., 286 U.S. 427, and inApex Hosiery Co. v. Leader, 8 U.S. L. Week 932, the questions involved were whether there were combinations in restraint of trade contrary to the Sherman Anti-trust Act. Ethyl GasolineCorp. et al. v. U.S., 60 Supreme Ct. Rep. 618, relates to the vending of patent products under the Sherman Anti-trust Act. The county court cases referred to in the majority opinion, 19 Pa. D. C., and 27 Northampton County relate to price fixing agreements. No price-fixing is charged in the bill before us. In Doremus et al. v. Hennessy, 176 Ill. 608, 52 N.E. 924, the action was based upon a malicious conspiracy to induce others to break their contracts with plaintiffs. The cases of FordMotor Co. v. Quinn, 70 Pa. Super. 337, and Ford Motor Co.v. Union Motor Sales Co., 244 Fed. Rep. 156, relate solely to the sale and resale of automobiles.

The majority opinion says: "If 'bob-tails' are able, in the light of the cost of the laundry work which they themselves do and the prices at which they can get the remainder done for them, to sell the complete service at lower prices than those charged by the laundry companies, an agreement is not legal which compels them to raise their prices and thus accept more profit than they care to demand. After the companies have charged the 'bob-tails' what they are willing to accept for their service 'the public is entitled to whatever advantage may be derived from competition in the subsequent traffic': Dr.Miles Medical Co. v. Park Sons Co., 220 U.S. 373, 409."

I consider that paragraph as complete a negation of the "closed shop" philosophy as would be a statute declaring all "closed shops" illegal. It is equivalent to saying: "If workmen known as 'bob-tail' laundry solicitors are willing to do the same work as the unionized laundry solicitors for less money (or wages), an agreement between these union solicitors and their employers providing that the latter will not accept further services at the hands of these non-union 'bob-tail' solicitors until they join the solicitors' union, is not legal and should be enjoined." If that kind of an agreement is illegal then virtually all "closed shop" agreements are illegal. For example, the Anthracite Coal industry is a "closed union shop." The agreement between the Anthracite operators and the United Mine Workers of America provides that "special and individual contracts in the mining of coal where now in use shall be eliminated." The purpose of that provision was the same as in the provision in the contract before us that "the company will not accept laundry work or serve or do any laundry work for any 'bob-tail' who is not a member of the union." The purpose in the Anthracite agreement was to prevent the undercutting of the wage scale of labor by individual contractors; the purpose in the provision just quoted in the contract before us is the prevention of the underselling of their labor by the "bob-tail" solicitors.

The American Law Institute recognizes the legality of a "closed shop" with all its necessary implications. It says in section 788, p. 128, in the Restatement of Torts: "Closed shop. Restriction of employment by an employer throughout his business, or on specified jobs within it, to workers who are members of a labor union, or of a particular labor union, is a proper object of concerted action by his employees." It says further under b on the same and the next page: "An employer may hire non-union men only on the understanding that they will become union men within a stated period. This is sometimes called the 'open closed shop.' Or, finally the employer may employ only men of a particular union affiliation and thus operate a 'closed union shop.' . . . The policy may be adopted by an employer and may be demanded by his employees for his entire business, for a single craft or for a particular type ofwork which may be done by workers of more than one craft [italics supplied]." The policy adopted by the employing laundries and their employees in the instant case falls precisely within what the Restatement of Torts declares may lawfully be done.

The majority opinion says: "(2) The provision that a laundry company may not accept work from any 'bobtail' with whom it is not now under contract or for whom it is not now performing laundry service is also clearly illegal, since it works an unreasonable and wholly unjustifiable restraint of trade." Not a single laundry in Philadelphia is obliged to accept any business from "bob-tails" or from anybody else. These laundries could legally say to the "bob-tails": "We accept laundry only from our own solicitors." Laundries are not like hotels or railroads, which must serve all who seek service of them. As the court below correctly said: "The service performed by the steam laundries is not one affected with a public interest, and the plaintiffs therefore have no right to demand that the laundry companies accept their work and the latter are free to engage in business as they deem advisable." I regard that statement as legally impregnable. The same view was taken in Dueber Watch-Case Mfg. Co. v. HowardWatch Clock Co., 66 Fed. Rep. 637, 645, where Judge LACOMBE said: "An individual manufacturer or trader may surely buy from or sell to whom he pleases, and may equally refuse to buy from or to sell to any one with whom he thinks it will promote his business interests to refuse to trade. That is entirely a matter of his private concern, with which governmental paternalism has not as yet sought to interfere, except when the property he owns is 'devoted to a use in which the public has an interest.' . . . Certainly there is nothing unlawful or unfair in the statement to the trade by the maker of any kind of merchandise, 'My goods are for sale only to those who will buy from me exclusively, not to others.' . . . It is not an unlawful business enterprise for sellers to seek to secure the entire trade of individual buyers, and an agreement between sellers, who wish to confine their dealings to such buyers only, not to sell to others, is not an unfair or unreasonable measure of protection for such trade." In United Shoe MachineCorp. v. Fitzgerald et al., 130 N.E. 86, the Supreme Judicial Court of Massachusetts said of a contract between a company and its employees which provided that none but union men should be employed when available, that "it would seem almost unnecessary to say that the parties could have mutually agreed to this proposed form of contract." In Smith v. Bowen et al. (Mass.),121 N.E. 814, the same court held: "An agreement by an employer with a union to give all his work to members of the union is a legal and valid agreement, . . . and a strike by the members of the union to enforce their rights under such an agreement is a legal strike."

The three cases cited in the majority opinion in support of the proposition (2) advanced do not support it. One of these is the case of Atlantic Cleaners Dyers, Inc. v.U.S., 286 U.S. 427. The only charge in that case was a violation of the Sherman Anti-trust Act. Apex Hosiery Co. v.Leader, 8 U.S. L. Week 932, was also under the Sherman Anti-trust Act. The third case cited, Bukelew v. Martens etal., 108 N.J.L. 339, 156 A. 436, was a case where, as the New Jersey court said: "The present contract is nothing but an agreement to fix prices." In the case now before us there is no allegation whatever that this contract will result in an arbitrary fixing of prices to the detriment of the public. It would be impracticable for the laundries to attempt any such arbitrary price-fixing because of the ease with which laundry can be sent elsewhere. It is a matter of common knowledge that there are hundreds of laundries within a short distance of Philadelphia. Let the Philadelphia laundries put their prices too high and those needing laundry service will get it elsewhere.

The majority opinion says: "(3) The provision that no person not now engaged as a 'bob-tail' shall be accepted in that capacity by a laundry company is illegal because it effects a further drastic restraint of competition by restricting 'bob-tails' to their present number and preventing newcomers from engaging in the wholly legitimate business of collecting wash on their own account and having it laundered by a laundry company. Those engaged in an industry have no right, by agreement of all of them, to exclude others thereafter from participating in it." The answer to that is the provisiondoes not restrict "bob-tails" to their present number. They can multiply themselves and collect laundry wherever they will and send it to any laundry anywhere which will take it.

The provision that "no person not now engaged as a 'bob-tail' shall during the term of this agreement be accepted as a 'bob-tail' by the company," is a provision which offends no law and violates no right. In Jacobs v. Cohen et al., 183 N.Y. 207,76 N.E. 5, Judge GRAY, speaking for the Court of Appeals of New York, said: "This is the case of an agreement voluntarily made by an employer with his workmen . . . restricting the class of workmen who should be engaged upon it to such persons as were in affiliation with an association, organized by the employers' workmen. . . . It would seem as though an employer should be, unquestionably, free to enter into such a contract with his workmen for the conduct of the business, without its being deemed obnoxious upon any ground of public policy." In Dunlap's Cable News Co.v. Stone et al., 15 N.Y. S. 2, it was held that a foreign corporation, organized for the purpose of collecting news and furnishing the same to the newspapers, cannot maintain an action to restrain an unincorporated association engaged in the same business from enforcing a rule that its members should take no news from other news agencies. The Supreme Court of New York said: "The plaintiff's application amounted to nothing more nor less than an attempt to restrain the defendants from transacting their lawful business in their own way, lest in doing so the plaintiff's rival business should be injured or diminished. . . . The plaintiff has no standing to maintain such an action, and its complaint is devoid of equity."

The majority opinion characterizes as "arbitrary and illegal" the provision (without quoting all of it) that "a 'bob-tail' desiring to sell his route shall first offer it for sale to the company, and if the offer is not accepted by the company within ten days, then such route may be offered for sale to any other 'bob-tail' who is a member of the union or to any other laundry company doing wholesale work, upon the same terms and conditions." There is nothing more illegal or unusual about that contract than there is in a contract of an owner of shares of stock to first offer his stock to the company at a certain price before offering it to outsiders. Such contracts are common and are legal. See Cities Service Securities Co. v.McFarland, 159 A. 800. In Model Clothing House et al. v. Dickinson et al., 178 N.W. 957, the Supreme Court of Minnesota held that a mutual agreement between all the stockholders of a trading corporation, that whenever a stockholder wishes to sell any of his stock the corporation shall have the exclusive right to purchase it for a period of 60 days after notice of the wish to sell, is valid and not an unlawful restriction on the power of alienation. "A bargain todeal exclusively with another" is among those "restraints of trade" which the Restatement of Contracts recognizes asreasonable: 2 Restatement of Contracts, p. 996, sec. 516 e. See also a very able opinion of the Supreme Court of Appeals of West Virginia in Barnes et al. v. Koontz, 163 S.E. 719, 720: "It is not the law that all restraints on trade are illegal. The right of reasonable restriction is recognized by all modern authorities. . . . 'The public policy of the state varies from time to time.' MacGinniss v. Boston Co., 29 Mont. 428, 461,75 P. 89, 97. What is public policy is frequently a matter of mere personal inference, which may change as the personnel of the judiciary changes. But as that great chancellor Sir George JESSEL well said: 'If there is one thing which more than another, public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting.' Printing Co. v. Sampson, 19 L. R. 462, 465. Furthermore, the judicial power to declare a contract void as attended with injury or inconvenience to the public has been said to be a very delicate one, and should be exercised only in cases free from doubt."

Furthermore, the majority opinion in its discussion of the above provision in the contract overlooks the fact that a "bob-tail" desiring to sell his route may, if he does not getthe price he wants from "the company" or another "bob-tail," offer it to "any other laundry company doing wholesale work, upon the same terms and conditions." That gives him a completely wide open field of sale. The "any other laundry company" does not have to be one of the laundries which is a party to this agreement.

The majority opinion also foresees a situation in the future when "the 'bob-tail' industry will cease to exist" if this contract is not enjoined. Whether the possible extinction of the "bob-tail" industry should be a matter of public or judicial concern is irrelevant. Many industries much more important than the "bob-tail" industry have been extinguished by the march of progress. Furthermore, the "bob-tail" business will not be destroyed. Its business is collecting laundry. As long as clothes are used laundry will still be collected by solicitors and it is entirely immaterial to human societywhat they are called.

The majority opinion says: "(5) The provision that a laundry company will not accept work from any 'bobtail' who is not a member of the union would seem to be an anomalous requirement, since it brings into the union persons who are not employees, but, in the words of the bill in equity, are 'independent business men' and in most cases themselves employers of labor." There is nothing any more anomalous about that provision than there would be about a provision in our state laws that laundries could not accept laundry work from solicitors whether they had assistants or not, unless they first secured a license from the state. If A is a "bob-tail" employing a dozen assistants and he wants his laundry work accepted by the companies which are parties to this agreement, he must join the union. Calling a "bobtail" an "independent contractor" does not disguise the fact that he is a human being engaged in the work of soliciting laundry. Calling a man who shingles houses an "independent contractor" does not disguise the fact that he is a carpenter. These laundries which are parties to this contract say: "We don't want your laundry and will not take it unless you join the union." They are within their clear legal rights in saying that.

In summarizing its conclusions the majority opinion emphasizes again what is the basis of its opinion, to wit, that the cited provisions of the contract before us are "an illegitimate restraint of trade." I have pointed out that a requirement in an employer-employee contract that persons performing a certain kind of labor service must belong to a labor union is under modern statutes and judicial decisions completely divorced from the old common law concept of "restraint of trade." These "bob-tails" are workmen in direct competition with other workmen who are unionized laundry solicitors. Calling these "bob-tails" "independent contractors" does not affect the fact of their labor work and the fact of their competition against union solicitors. Of their anti-union practice, it can correctly be said, as Justice DAY said in his dissenting opinion (concurred in by Mr. Justice HUGHES) inCoppage v. Kansas, 236 U.S. 1: "No form of words can strip it of its true character." If these "bob-tails" are permitted to undersell their services as laundry collectors, the unionizedlaundry solicitors will eventually find their occupation gone.

Adherence to both the principle and practice of the "closed shop" (an institution recognized as promotive of the public welfare by both the National and the State Labor Relations Acts and by countless judicial decisions), requires the upholding ofthis "closed shop" contract. To hold that A, who performs precisely the same labor services as B, is not a competitor of B's because A calls himself an "independent contractor" is a negation of the "closed shop" and where that view prevails the "closed shop" is not "closed." That both employers and employees frankly recognize that fact is proved by the numerous employer-employee contracts (two of which are heretofore referred to) which expressly bar all so-called "independent contractors." In the bituminous coal field (as in the anthracite field, already noted) such independent contracting is by agreement expressly barred. The contract entered into in September, 1937, between the Amalgamated Meat Cutters of America and the National Association of Retail Meat Dealers "restrains trade" by barring "retail sales of meat by packers, wholesalers or peddlers to the public" and "the selling of poultry by wholesalers directly to consumers." The International Fur Workers Union and the Associated Fur Coat and Trimming Mfgrs., Inc., in their contract "restrained trade" by providing that "no inside or outside contractors in any way, shape, form or manner shall be permitted." The "written agreement" before us is directed against exactly the same kind of non-union wage competition as are these other employer-employee agreements herein mentioned.

Twenty of the 28 plaintiffs aver, each for himself, that "he employes numerous help in his said store and, himself, drives a truck or other vehicle for the collection and return of customers' laundry." The remaining eight plaintiffs each aver "that for the purpose of said business" he "drives a truck or other vehicle for the collection and return of customers' laundry." Those averments constitute clear admissions of the fact that the "bob-tails" are in direct competition with the unionized collectors of defendant laundries. The only averment in the bill about any of the "bob-tail" employees being members of any union is the following: "31. . . . Your orators with the exception of J. Metlen, S. Paul, William Dickter, H. Semost, S. Sklar, William Feinberg, Simon Glossberg and G. Zlotnick employ help within their said stores (such employes being members of Laundry Workers International Union, Local No. 10, A. F. of L.)." This is an "inside hand workers laundry" union and isentirely distinct from the defendant union. The phrase "within their said stores" indicates that these union employees are not engaged in the business of driving about and collecting laundry. If the "bobtail" solicitors were unionized, there would be no issue between plaintiffs and defendant. The plaintiffs' complaint is that the laundry companies have entered into an agreement "to perform no laundry service for any independent or commission drivers, including the above named complainants, unless said independent or commission drivers, including the above named defendants, are or will become members of defendant union." That is the Laundry Linen Supply Driver's Union, Local 187.

That "restraint of trade" is no longer looked upon in this Commonwealth as per se anti-social, is illustrated by the passage of the Fair Trade Act of June 5, 1935, P. L. 266, by which it is made "actionable for any person to offer for sale or selling any commodity at less than the price stipulated in any contract entered into pursuant to the provisions of section 1, whether the person so offering for sale or selling is or isnot a party to such contract." We upheld that Act inBristol-Myers Co. v. Lit Bros., 336 Pa. 81, and we there said: "Price cutting which confers a slight pecuniary advantage to the buyer has nevertheless been adjudged by the lawmakers of forty states to be prejudicial to the public interest." The Supreme Court of the United States in Old Dearborn DistributingCo. v. Seagram Distillers Corp., 299 U.S. 183, said: "There is a great body of fact and opinion tending to show that price cutting by retail dealers is not only injurious to the good will and business of the producer and distributor of identified goods, but injurious to the general public as well." Since the formula, "restraint of trade," can no longer be successfully invoked against agreements to maintain the price of commodities at a certain level, it certainly should not be successfully invoked against agreements whose laudable purpose is to maintain the wages of labor at a subsistence level.¹ Unrestricted competition even in certain commodities of commerce is no longer looked upon as being to the public interest. See Rohrer v. MilkControl Board, 322 Pa. 257, 186 A. 336, and Nebbia v. N.Y.,291 U.S. 502, in which cases statutes fixing the price of milk were sustained. A few years ago such statutes were unheard of. It was a marked advance in judicial thought to declare milk to be a commodity "affected with a public interest." Moreover, in the instant case, as already pointed out, there was no attempt to "fix prices" as there was in the milk cases.

I do not concede that the contract now before us would injure the "bob-tails." I believe it would benefit the "bob-tail" solicitors of laundry as the "closed shop" has always benefited labor by preventing competition between individual laborers or groups of laborers. In American Steel Foundaries v. Tri-CityCentral Trades Council et al., 257 U.S. 184, 209, Chief Justice TAFT, speaking for the Supreme Court of the United States, said: "Union was essential to give laborers opportunity to deal on equality with their employer. . . . To render this combination at all effective, employees must make their combination extend beyond one shop. It is helpful to have as many as may be in the same trade in the same community united, because in the competition between employers they are bound to be affected by the standard of wages of their trade in the neighborhood." But even if the contract did work some economic disadvantage to the "bob-tails," that would not entitle them to an injunction against it. That certain actions of men may bring some economic loss to other men, gives these other men no cause of action either in law or in equity. Picketing visits an economic loss on the owner of the place of business picketed; it is intended for that purpose, the theory being that the economic loss occasioned will "bring to terms" the owner whose place is picketed. Yet courts uphold the right to peaceful picketing. This court, in Kirmse et al. v. Adler et al.,311 Pa. 78, 166 A. 566, in refusing to enjoin picketing, said: "If the employer suffers loss from this peaceable assertion of rights, it is a damage without a remedy." We said further: "Appellants do not deny their acts were calculated to compel the theatre men to employ men at the union scale by injuring the patronage. The primary aim was the protection of the employment of their members at the union rate of wage, while the means employed involved as a secondary purpose the injury of appellee's patronage." See alsoUnited Chain Theatres, Inc., et al. v. Phila. Moving PictureMachine Operators Union, 50 F.2d 189.

I think the majority opinion concedes the legal soundness of the position of these defendants when it says: "The union has a legitimate interest in thus seeking to protect the laundry employees against the lowering of working standards on the part of those who themselves, although in a different legal capacity, perform to some extent the same kind of labor." Then the majority opinion adds: "But such membership [in the union] cannot be made the means of controlling the regulation by the 'bob-tails' of their own business employees in the various aspects heretofore considered." In other words, the union laundry workers have a right to complain that the "bob-tails," who are doing precisely the same work as themselves, are lowering the working standards but the union workers haveno right to enter into a contract with the laundries to make the "bob-tails" stop lowering these working and wage standards on pain of having the laundries refuse to accept their services. As I have already pointed out, that position is an utter negation of the "closed shop" principle put into actualpractice. Every non-union miner or non-union carpenter can under that ruling go into court and under the plea of "preserving the freedom of contract," demand an injunction against any "closed shop" agreement that affects him.²

Since the contract here is one whose purpose is to maintain the wages of laundry solicitors at the level of the union scale and, as it says, "to stabilize the conditions under which said 'bob-tails' shall operate and prevent unfair advantages which they now have over the said retail route salesmen," and since the activities of the "bob-tails" tend to frustrate those purposes, I cannot understand how this contract can logically be enjoined except under a legal philosophy that was once accepted by the courts but is no longer judicially accepted either in England or the United States.

There is no doubt that one of the objects of the contract now under review was that every person who in Philadelphia follows the trade of laundry solicitor must be a member of the body known as "Laundry and Linen Supply Drivers' Union." Under the view of social welfare now prevailing in this country, that object is legal and laudable. As Judge GEORGE GRAY, Chairman of the Anthracite Coal Strike Commission, said in the report of that Commission in 1902: "Experience shows that the more full the recognition given to a trade union, the more businesslike and responsible it becomes."

This court, speaking through Justice SHARSWOOD inPhila.'s Appeal, 78 Pa. 33, 39, said: "Chancery never puts forth this strong arm [of injunction] unless in a clear case of the invasion of a private or public right." The plaintiffs have shown no right of any kind invaded by the contract they challenge and therefore their prayer to have it declared illegal and void and its performance enjoined, ought to be denied.

¹ "All competition imports an attempt to destroy the competition of rivals," per HOLMES, J., in Central Lumber Co. v. So.Dakota, 226 U.S. 157.

² Justice CARDOZO aptly said (44 Harvard Law Rev. 687): "Many an appeal to freedom is the masquerade of privilege or inequality seeking to intrench itself behind the catch-word of a principle."