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A History of Trade Unionism in the United States

Any injury they might do was irreparable


But

the theory of protection to property also presented some difficulties. The problem was to establish the principle of irreparable injury to the complainant's property. This was a simple matter when the strikers were guilty of trespass, arson, or sabotage. Then they damaged the complainant's physical property and, since they were usually men against whom judgments are worthless, any injury they might do was irreparable. But these were exceptional cases. Usually injunctions were sought to prevent not violence, but strikes, picketing, or boycotting. What is threatened by strikes and picketing is not the employer's physical property, but the relations he has established as an employer of labor, summed up in his expectancy of retaining the services of old employes and of obtaining new ones. Boycotting, obviously, has no connection with acts of violence against physical property, but is designed merely to undermine the profitable relations which the employer had developed with his customers. These expectancies are advantages enjoyed by established businesses over new competitors and are usually transferable and have market value. For these reasons they are now recognized as property in the law of good-will and unfair competition for customers, having been first formulated about the middle of the nineteenth century.

The first case which recognized these expectancies of a labor market was Walker _v._ Cronin,[35] decided by the Massachusetts Supreme Judicial

Court in 1871. It held that the plaintiff was entitled to recover damages from the defendants, certain union officials, because they had induced his employes, who were free to quit at will, to leave his employ and had also been instrumental in preventing him from getting new employes. But as yet these expectancies were not considered property in the full sense of the word. A transitional case is that of Brace Bros. _v._ Evans in 1888.[36] In that case an injunction against a boycott was justified on the ground that the value of the complainant's physical property was being destroyed when the market was cut off. Here the expectancies based upon relations which customers and employes were thought of as giving value to the physical property, but they were not yet recognized as a distinct asset which in itself justifies the issuance of injunctions.

This next step was taken in the Barr[37] case in New Jersey in 1893. Since then there have been frequent statements in labor injunction cases to the effect that both the expectancies based upon the merchant-function and the expectancies based upon the employer-function are property.

But the recognition of "probable expectancies" as property was not in itself sufficient to complete the chain of reasoning that justifies injunctions in labor disputes. It is well established that no recovery can be had for losses due to the exercise by others of that which they have a lawful right to do. Hence the employers were obliged to charge that the strikes and boycotts were undertaken in pursuance of an unlawful conspiracy. Thus the old conspiracy doctrine was combined with the new theory, and "malicious" interference with "probable expectancies" was held unlawful. Earlier conspiracy had been thought of as a criminal offence, now it was primarily a civil wrong. The emphasis had been upon the danger to the public, now it was the destruction of the employer's business. Occasionally the court went so far as to say that all interference with the business of employers is unlawful. The better view developed was that interference is _prima facie_ unlawful but may be justified. But even this view placed the burden of proof upon the workingmen. It actually meant that the court opened for itself the way for holding the conduct of the workingmen to be lawful only when it sympathized with their demands.


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