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 The Common Fund Theory of the Rights of Labor

245

and immediate interests of bricklayers as bricklayers; and a strike merely to

intimidation are just as unlawful when exercised under the guise of persuasion

enforce such a demand — a sympathetic strike —— is therefore unlawful. For the sympathetic strike, like the spite fence,

or picketing.

is not the beneﬁcial use of a co-equal

right, but is the usurpation of the power to punish. "This inﬂiction of harm is unjustiﬁ

able unless the harm is only the harm that naturally and directly ﬂows from the good-faith exercise of the competitive right. That is, the loss to his business that the contractor suffers by reason

of the striking bricklayers presenting their side of the controversy to other bricklayers (actual or potential) so that

the other bricklayers freely and of their own judgment decline to work for the contractor, must be suffered by him without sion andcomplaint. picketing limited Therefore, to learning persua~ who the new bricklayers are to whom to present their cause, are lawful; and all judgments to the contrary are wrong,

as I believe. But the use of force or intimidation to keep other bricklayers

More unjustiﬁable than

the use of force and intimidation to keep new bricklayers away is the com bined assault of the striking bricklayers upon the business of outsiders for the purpose of compelling them to cut off

all intercourse with the contractor. The strikers may deprive the contractor of their own society and trade, if they choose, for that is in the exercise of a

co-equal right; but concerted pressure by the strikers to coerce members of society who are not directly concerned in the pending controversy with the contractor to make raids in the rear -——‘ the secondary boycott—is wrong not

only because such action is not within the immediate ﬁeld of competition, but because the direct, the primary attack is upon society itself. "Without attempting to follow further this supposititious case of the brick layers, and without considering the many difﬁcult complications of fact that have arisen or may hereafter arise in labor

away from the contractor against their

cases, I venture to express my belief

will is unjustiﬁable, because it deprives the contractor of his co-equal right of access to a free labor market. And it must not be forgotten that force and

by applying to the controversy the prin ciple of co-equal and co-existent rights in a common fund as the means of solution."

that a just decree can always be framed

The principal witness in a case being tried before the Snyder county court, in Pennsylvania, when asked on what day of the week the speci ﬁed offense was committed, said he was sure it was not on Sunday. "I always wear my gal lowses on Sunday," he explained, "and I did not have any gallowses on that day."