IRON MOLDERS' UNION NO. 125 OF MILWAUKEE, WIS., et al. v. ALLISCHALMERS CO., 166 F. 45

BAKER, Circuit Judge (after stating the facts as above). No Wisconsin statute authorized an unincorporated voluntary association to be sued in its common name. So the objection might have prevailed if it had been seasonably made. Karges Furniture Co. v. Amalgamated Wood Workers’ Union, 165 Ind. 421, 75 N. E. 877, 2 L. R. A. (N. S.) 788; Pickett v. Walsh, 192 Mass. 572, 78 N. E. 753, 6 L. R. A. (N. S.) 1067, 116 Am. St. Rep. 272.

But the members could have been reached, of course, either by naming and serving them all, or, if that were impracticable on account of their numbers, by suing some as representatives of all.

The bill treated the unions as representative of their membership; an individual member filed a verified answer in the names of the unions, alleging that he had been authorized by them so to do; and the case was carried through three hearings (temporary injunction, contempt, final decree) without a suggestion that there was a defect of parties, or rather a defect in the form under which appellee asked to have the membership of the unions brought into court. An objection of this kind will not be entertained on appeal unless it has been first duly presented in the trial court. Barnes v.

Chicago Typographical Union, 232 Ill. 424, 83 N. E. 940, 14 L. R. A. (N. S.) 1018. The evidence showed that appellee was entitled to injunctive relief. To keep other workmen out of appellee’s foundries, some of the union men went to the extent of using vile and abusive language, threats of violence, and actual assaults. This was effective enough to damage appellee’s business quite seriously, and was carried on under circumstances that might be held to indicate the unions’ tacit approval.

None of the appellants ever challenged by appeal the justice of the temporary injunction or of the punishments for its violation. And on this appeal from the-final decree not a shadow of justification is found for these acts of violence and intimidation. The only substantial question is whether or not the trial court has stepped beyond the line of safeguarding the legal rights of appellee and has thereby deprived appellants of some of their legal rights.

To organize for the purpose of securing improvement in the terms and conditions of labor, and to quit work and to threaten to quit work as means of compelling or attempting to compel employers to accede to their demands for better terms and conditions, are rights of workmen so well and so thoroughly established in the law (Thomas v. Rid, Co. [C. C.] 62 Fed. 803; Arthur v. Oakes, 63 Fed. 320, 11 C. C. A. 209, 25 L. R. A. 114; Wabash Rld. Co. v. Hannahan [C.

C.] 121 Fed. 563), that nothing remains except to determine in successive cases as they arise whether the means used in the endeavor to make the strike effective are lawful or unlawful. By

section 4466a, St. Wis. 1898, and, appellee asserts, by the common law as well, it is illegal for two or more persons to combine for the purpose of “doing a harm malevolently for the sake of the harm as an end in itself, and not merely as a means to some further end legitimately desired.” Aikens v. Wisconsin, 195 U. S. 194, 25 Sup. Ct. 3, 49 L. Ed. 154.

As the combination among appellants was entered into and carried on in Wisconsin, a threshold inquiry is whether the present is a malicious mischief case under this paragraph, wherein otherwise innocent means are condemned because the end is wicked, or a true strike case under the preceding paragraph, wherein, because the end is lawful, all means may be called into play except those that are unlawful in themselves.

The record shows that the local unions had a conference in regard to conditions in all the foundries in the city and county of Milwaukee; that ihey formulated demands respecting wages, overtime, double time on holidays, piecework, weekly pay day, limitation of the number of apprentices, and a joint arbitration board; that these demands were made alike upon all the form dry owners within that territory; and that when the demands were rejected the union men in all the foundries struck.

Nothing in the record indicates that there was any want of good faith in making these demands, or that the strike was undertaken with any other purpose than to enforce them, or that appellee received or was singled out to.receive different treatment from that dealt out to other foundry owners. So ilie employment of assault and duress in the progress of the strike should be attributed to a combination to accomplish a lawful end by unlawful means, rather than the employment of unlawful means should be taken as proof that the end sought to be accomplished by such means was itself unlawful.

And con • sequently the parts of the decree which prohibit the use of persuasion and picketing can be justified only on the basis that sttch means are not lawfully to be applied in a genuine struggle of labor to obtain better terms and conditions; for surely men are not to he denied the right to pursue a legitimate end in a legitimate way, simply because they may have overstepped the mark and trespassed upon the rights of their adversary. A barrier at the line, with punishment and damages for having crossed, is all that the adversary is entitled to ask.

So far as persuasion was used to induce apprentices or others (section 16 of the decree) to break their contracts to serve for definite times, the prohibition was right. And the reason, we believe, is quite plain. Fach partjr to such a contract has a property interest in it. If either breaks it, he does a wrong, for which the other is entitled to a remedy. And whoever knowingly makes himself a party to a wrongful and injurious act becomes equally liable.

But in the present case the generality of the men who took or sought the places left b)r the strikers were employed or were offered employment at will, as the strikers had been. If either party, with or without cause, ends an employment at will, the other has no legal ground of complaint. So if the course of the. new men who quit or who declined employment was the result of the free play of their intellects and wills, then against them appellee had no cause of action, and much less against men who merely furnished information and arguments to aid them in forming their judgments.

Now it must not be forgotten that the suit was to' protect appellee’s property rights. Regarding employments at will, those lights reached their limit at this line: For the maintenance of the incorporeal value of a going business appellee had the right to a free access to the labor market, and the further right to the continuing services of those who accepted employment at will until such services were terminated by the free act of one or the other party to the employment.

On the other side of this limiting line, appellants, we think, had the right, for the purpose of maintaining or increasing the incorporeal value of their capacity to labor, to an equally free access to the labor market. The right of the one to persuade (but not coerce) the unemployed to accept certain terms is limited and conditioned by the right of the other to dissuade (but not restrain) them from accepting. For another thing that must not be forgotten is that a strike is one manifestation of the competition, the struggle for survival or place, that is inevitable in individualistic society.

Dividends and wages must both come from the joint product of capital and labor. And in the struggle wherein each is seeking to hold or enlarge his ground, we believe it is fundamental that o'ne and the same set of rules should govern the action of both contestants. For instance, employers may lock out (or threaten to lock out) employees at will, with the idea that idleness will force them to accept lower wages or more onerous conditions; and employees at will may strike (or threaten to strike), with the idea that idleness of; the capital involved will force employers to grant better terms.

These rights (or legitimate means of contest) are mutual and are fairly balanced against each other.

Again, an employer of molders, having locked out his men, in order to effectuate the purpose of his lockout, may persuade (but not coerce) other foundrymen not to employ molders for higher wages or on better terms than those for which he made his stand, and not to take in his late employees at all, so that they may be forced back to his foundry at his own terms; and molders, having struck, in order to make their strike effective may persuade (but not coerce) other molders not to work for less wages or under worse conditions than those for which they struck, and not to work for their late employer at all, so that he may.be forced to take them back into his foundry at their own terms.

Here, also, the rights are mutual and fairly balanced. On the other hand, an employer, having locked out his men, will not be permitted, though it would reduce their fighting strength, to coerce their landlords and grocers into cutting ofii shelter and food; and employees, having struck, will not be permitted, though it might subdue their late employer, to coerce dealers and users into starving his business. The restraints, likewise, apply to both combatants and are fairly balanced. These illustrations, we believe, mark out the line that must be observed by both.

In contests between capital and labor the only means of injuring each other that are lawful are those that operate directly and immediately upon the control and supply of work to be done and of labor to do it, and thus directly affect the apportionment of the common fund, for only at this point exists the competition, the evils of which organized society will endure rather than suppress the freedom and initiative of the individual.

But attempts to injure each other by coercing members of society who are not directly concerned in the pending controversy to make raids in the rear cannot be tolerated by organized society, for the direct, the primary, attack is upon society itself. And for the enforcement of these mutual rights and restraints organized society offers to both parties, equally, all the instrumentalities of law and of equity. With respect to picketing as well as persuasion, we think the decree went beyond the line.

The right to persuade new men to quit or decline employment is of little worth unless the strikers may ascertain who are the men that their late employer has persuaded or is attempting to persuade to accept employment. Under the name of persuasion, duress may be used; but it is duress, not persuasion, that should be restrained and punished. In the guise of picketing, strikers may obstruct and annoy the new men, and by insult and menacing attitude intimidate them as effectually as by physical assault.

But from the evidence it can always be determined whether the efforts of the pickets are limited to getting into communication with the new men for the purpose of presenting arguments and appeals to their free judgments. Prohibitions of persuasion and picketing, as such, should not be included in the decree. Karges Furniture Co. v. Amalgamated Wood Workers’ Union, 165 Ind. 421, 75 N. E. 877, 2 L. R. A. (N. S.) 788; Everett-Waddy Co. v. Typographical Union, 105 Va. 188, 53 S. E. 273, 5 L. R. A. (N. S.) 792.

We have not found anything in the evidence that justified the decree as to an “illegal boycott.” No attempt was made to touch ap-pellee’s dealings or relations with customers and users of its goods. Oxley Stave Co. v. Coopers’ International Union (C. C.) 72 Fed. 695; Loewe v. Cal. State Federation of Labor (C. C.) 139 Fed. 71; Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301, 52 L. Ed. 488. After the strike was on, appellee sent patterns, on which the strikers had been working, to foundries in other cities.

The strikers procured the mold-ees in those foundries, who also were members of the Iron Holders’ Union of North America, to refuse to make appellee’s castings. Those molders notified their employers that they would have to cancel their contracts to make castings for appellee, or they would quit work. Some employers discharged the notifiers, others refused to cancel and the union men struck, and others complied and the union men stayed.

In those instances where the foundrymen fulfilled their contracts, ap-pellee was not damaged; in those where foundrymen broke their contracts, there is no. proof that appellee has not collected or cannot collect adequate damages. That might be taken as a reason why appellee on this branch of the case is not entitled to the aid of equity. But there is a more important reason. Appellants were aiming to prevent, and ap-pellee to secure, the doing of certain work in which the skill of appellants’ trade was necessary. Here was the ground of controversy, and here the test of endurance.

If appellee had the right (and we think the right was perfect) to seek the aid of fellow foundrymen to the end that the necessary element of labor should enter into appellee’s product, appellant had the reciprocal right of seeking the aid of fellow molders to prevent that end. To whatever extent employers may lawfully combine and co-operate to control the supply and the conditions of work to be done, to the same extent should be recognized the right of workmen to combine and co-operate to control the supply and the conditions of the labor that is necessary to the doing of the work.

In the fullest recognition of the equality and mutuality of their rights and their restrictions lies the peace of capital and labor, for so they, like nations with equally well drilled and equipped armies and navies, will make and keep treaties of peace, in the fear of the cost and consequences of war.

The decree is modified by striking out “persuasion” and “persuading” from the 4th and 7th paragraphs; further modified by adding after “picketing” in the 5th paragraph “in a threatening-or intimidating manner”; vacated as to the 1st, 8th, 9th, 10th, 14th and 15th paragraphs; affirmed as to the 2nd, 3rd, 6th, 11th, 12th, 13th, 16th and the modified 4th, 5th and 7th paragraphs. Costs of this court to be divided equally.