Page:The Green Bag (1889–1914), Volume 18.pdf/369

 340

THE GREEN BAG

of his employment, which element is said to be absent in Jacobs v. Cohen, but the opinion in Curran v. Galen goes on the ground that the contract itself is unlawful, saying distinctly that, if lawful, it justified the acts complained of. It is well to remember that the question at issue is one of the freedom of contract, and furthermore that it is a question of common law. There may be cases where legislation regulating or forbidding Certain classes of contracts would be icminently proper, although in a like case the courts unaided by legislation would have no right to afford relief. Judicial decision must conform in particular cases to general prin ciples, and where it departs therefrom to relieve the hardship of special instances it introduces confusion and does more harm than good; while legislation, which is con fessedly arbitrary, may except certain classes of transactions from the operation of a general principle without violating the integrity of legal theory. What objection is there, then, to a contract for the exclusive employment of certain men or a certain class of men? Ap proaching the subject somewhat indirectly, may an employer of labor engage a con tractor to furnish the labor needed in his shop, factory, or business? May he lawfully give to such person the entire management of his shop, factory, or business, so far as relates to the employment of workmen? It seems plain that he may. Such a pro ceeding is not so common in practice as the letting out of a contract to build a building or to do other specific work, but it is the same kind of a transaction and it would sound strange to say that either contains any feature making it illegal. In Berry v. Donovan the contract between the em ployer and the union provided that the former should hire only members of the union and should not retain any workman in his employ after notice that he was ob jectionable to the union; in short, gave the union full control over the employment of

men. The opinion makes a point of the fact that the contract not only provided for the employment of union men exclusively, but gave the union a right to interfere and deprive any workman of his job. But why is this unlawful? If an agreement such as we have supposed, farming out to a con tractor the employment of labor is lawful, this agreement, which only approaches that, must be so. One may engage another to employ his workmen for him; or, employing his workmen himself, may agree with another to employ or retain only such as the latter approves; or finally he may agree to employ only a certain class of workmen. Here are three forms of transactions, the first the most sweeping of all. The two latter must be lawful if the first one is, and that the first one is so appears to be selfevident. Considering another phase of the subject what shall be said of collective bargaining? That has been thought to have some advan tages for the employer as well as for the workman. Is there any legal objection to that kind of a contract? If not, that is if an employer may make a bargain for labor with a body of men instead of individuals separately, the result is that competition in the labor market between organizations on the one hand and individuals on the other is recognized as allowable. It cannot be said, then, that the exercise by such an organization of the ordinary rights of a com petitor, such as supplanting a rival, is unlaw ful. It cannot be objected that such an organization or its contracts are illegal as in restraint of trade or as tending to monopoly. A labor organization is put on the same footing as an individual and may lawfully supplant the individual if it can succeed in doing so. In what, then, does the illegality of the contract for a closed shop consist? The employer agrees with a labor union, or its representatives, to em ploy the union, or what is the same thing, to employ only members of the union. If that is a lawful and binding contract and