Page:The Green Bag (1889–1914), Volume 17.pdf/38

 THE MAINTENANCE OF THE OPEN SHOP the same craft, and each having the same right as any one of the others to pursue his calling. In this, as in every other case of equal rights, the right of each individual is to be exercised with due regard to the simi lar right of all others, and the right of one be said to end where that of another begins. The right involved is the right to dispose of one's labor with full freedom. This is a legal right, and it is entitled to legal pro tection." To all of the conclusions in this case Mr. Justice Holmes dissented, in one of the best known of his opinions. These courts believe that an organized union should not be allowed to work its will; that it would mean disruption of the industrial order if a union could be permitted to dictate who should work and who should not. As a matter of technique the argu ment is this; in the case of such action by a union every member may be conceived of as inducing every other member to cause the breach of the existing business relation be tween the non-union man and his employers; such interference requires justification, since in itself it is prima facie a tort. As a matter of law, then, the question whether the mem bers of a union are liable when they demand that their shop be unionized depends upon whether the courts will find some basis for justification. But public policy seems to be the other way; and most courts seem to be convinced that to allow unionizing would be prejudicial to the best interests of so ciety. The public wants the best services that can be gotten at the lowest wages that will be accepted. If we are to believe much testimony that is brought forward in cur rent discussion, unionizing means less effi cient services and increasing wages. This, then, is an instance for the assertion of the general policy of the law against combination in restraint of trade. Our general law is, of course, opposed to schemes to control the market in any way. VII There is some dissent to these prevalent

doctrines, and in order that the discussion may be quite fair it is necessary to give this minority view a chance to be heard. The principal case on the other side is un doubtedly National Protective Association v. Cummings, 170 N. Y. 315. The facts in this case as they were brought out at the trial were somewhat complicated, as the final developments in the industrial organ ization have become so complex. The com plainants were an association themselves, who sued both collectively and individually; the defendants were also an association and in dividual members of it. The defendant as sociation wanted to put its men in the place of certain men at work upon certain works. They were in a strong position to do so; their walking delegates were members of the board of delegates of the building trades in New York, which had general power over the whole building situation. The trial court found that the walking delegate of the older association threatened to cause a gen eral strike against the members of the newer association wherever he found them at work upon the same jobs with his men. The opinion in this case deserves respect ful consideration, as it is by former Chief Justice Parker. The basis of his opinion is that any single man may quit work alone. "The same rule applies to a body of men who having organized for purposes deemed beneficial to themselves, refuse to work. Their reasons may seem inadequate to others, but if it seems to be in their in terests, as members of an organization to refuse longer to work, it is their legal right to stop. The reason may no more be de manded, as a right, of the organization than of an individual, but if they elect to state the reason, their right to stop work is not cut off because the reason seems inadequate or selfish to the employer or to organized society. And if the conduct of the mem bers of an organization is legal in itself, it does not become illegal because the organ ization directs one of its members to state the reason for its conduct."