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 THE CLOSED SHOP CONTROVERSY The union is a fighting body and can reach a high order of efficiency only by excluding outsiders, who are its rivals, from the field of its operations. It does this by simply declining to work in company with nonmembers. To deny to it the right to do this is to impose a condition which weakens and renders ineffective the right of organiza tion which is pretended to be granted. It is as if the lawgiver, after making a certain concession, repented and sought to render the grant nugatory. It is sometimes said that the immediate purpose of the unions, in excluding inde pendent workers from association with them and thus forcing them, as is said, into the unions, is merely to strengthen the unions for the contest with employers and that the ultimate purpose to win victories over the employer does not justify the conduct. What has been already said answers this contention, it is submitted. If organiza tion for nghting purposes is lawful, means adopted to strengthen the organization or make it effective are equally so. Has it ever been heard, or can it be contended, that even strategy in a competitive struggle is forbidden? A trader may undersell his competitor in order to drive him out of busi ness, although in doing so he sells at a loss.1 The ultimate purpose of making profits after the competitor is out of the way justi fies the conduct. It would never be thought of applying to traders so narrow a rule as is sought to be applied to workmen in regard to what is embraced within the lines of competitive conduct. It may be said that the vice of the union scheme is that it discriminates between different classes of workmen and that, while professing to be for the benefit of workmen, it involves great hardship to large numbers of them. It does discriminate, it is true, but discrimination is lawful, except when practised by public service corporations toward customers, when it is unlawful be1 Mogul Steamship Co. Case, 23, Q. B. D. 598, A. C. (1892) 25.

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cause such corporations are bound to serve the public and to serve all alike. The point is, that certain workmen are not bound to consider the interests of other workmen. They may be as selfish as they please. The recent case of Boyer v. Western Union Tel. Co., 124 Fed. Rep., 246, furnishes an example of discrimination by employers towards workmen. In that case a telegraphers' union sought an injunction against the Western Union Tel. Co., alleging a com bination to destroy the union by discharg ing and blacklisting the men belonging to it. It was held that the action would not lie, that the employers had a right to dis criminate, that they might discharge and blacklist men for any cause whatever, as, for example, because they belonged to the G. A. R. Here, then, is a decision that a trade union has no right to be protected against discrimination. Can it be held consistently that others have a right to be protected against discrimination by it? Furthermore statutes forbidding such dis crimination as was practised in this case, forbidding an employer to discharge men because they are union men, are held to be unconstitutional.1 The argument against the unions actually, although perhaps not often professedly, seeks to introduce a new rule as to discrimination. There is a feeling which is manifested in statutes like the one above referred to, that such discrimination as is practised is not fair, and it is thought that the law should forbid it; but since the law does not forbid discrimination, it should be admitted that the labor unions may prac tise it by making contracts for the closed shop. In this, as in most of the arguments against the closed shop, loose popular notions are relied on instead of legal principles. The discussions on this subject deal more or less with malice, but that topic hardly calls for separate treatment. When the term is used in its negative sense, meaning 1 State v. Julow, 129 Mo., 163. Peoples. Mar cus, App. Div. Supreme Ct. ist Dep. N. Y. Jan. 1906. Stimson Hand Book of Labor Law, p. 182.