Page:The Green Bag (1889–1914), Volume 18.pdf/368

 THE CLOSED SHOP CONTROVERSY

339

THE CLOSED SHOP CONTROVERSY BY CHARLES R. DARLING AMONG the trade and industrial ques to join the union. In sustaining the action tions with which the courts have had the court does not commit itself in terms to deal so largely in recent years, the chief to the general proposition that an agreement interest just at present seems to center about of the kind in question is illegal and void. the contract of the unions for exclusive The case is put upon the ground of unlawful employment, or, as it has come to be called, interference with a workman already em the "closed shop." In the questions most ployed, the plaintiff having been in the mooted heretofore, arisiu&.from the activity employment of the master prior to the con of labor unions in their efforts to unionize tract, and the court reserves its opinion as labor, the unions have not had the advan to whether the same result would follow tage of a contract silcfi as that referred to. in the case of a workman seeking employ Now they come armed with this contract, ment and prevented from getting it. The and the question arises as to its legality, effect of the decision seems, however, to be both for the purpose of enforcing it between that the contract is unlawful; for, if lawful, the parties, and to justify the discharge of it would justify all acts done under it, in third persons from employment in fulfil cluding the discharge of workmen in accord ment of its provisions. Is such a contract ance with its terms. against public policy and void as in restraint In Jacobs v. Cohen, the New York case, of trade or for any other reason? That the question arose in an action upon a question, after being litigated in the lower promissory note given by the employer to courts of several states, which are said to the union as liquidated damages for viola have generally decided against the validity tion of an agreement for the exclusive of the contract, has within a year reached employment of members of the union. This the courts of last resort in two states, viz., raised directly the question of the lawful Massachusetts ' and New York,3 the deci ness of the contract, and it was held that sion being, roughly speaking, against the it was lawful and the action was sustained. validity of the contract in Massachusetts, The force of the decision may be thought and in favor of its validity in New York, to be weakened by the fact that an earlier the decision in New York, however, being a case, viz. Curran v. Galen, 152 New York, 33, majority decision of four to two, while that which seems to have held the contrary, is of the Massachusetts court is unanimous. not overruled, but an attempt is made to To state these decisions more accurately, distinguish it. In Curran v. Galen the Berry v. Donovan, the Massachusetts case, action was, as in Berry v. Donovan, an ac was an action for damages brought by a tion for damages brought by a discharged workman against the representatives of workman against the members of the union, a labor union, for causing his discharge from and on demurrer to an answer setting up a employment, the union having made a con contract between the employer and the tract with the employer to employ only union for the employment of only union men, union men and thereafter requesting the the demurrer was sustained. The opinion discharge of the plaintiff pursuant to the in Jacobs v. Cohen does not make it plain contract, after giving him an opportunity on what ground the earlier case is distin guished. It is said that in Curran v. Galen 1 Berry v. Donovan, 188 Mass., 353. there was a plan to compel the workman to join the union at the peril of being deprived 28, 1905.
 * Jacobs v. Cohen, N. Y. Court of Appeals, Nov.