JB 3695 >1 -A Akl ^o k ~ '.~: 757lq,U5 0 /I Interborough Rapid Transit Company against William Green, et al, BRIEF FOR DEFENDANTS WVith a Foreword by WILLIAM GREEN PRESIDENT, AMERICAN FEDERATION OF LABOR PUBLISHED BY The Workers Education Bureau Press 476 West 24th Street - New York 1928 Interborough Rapid Transit Company against William Green, et al. Attorneys for Defendants BLAU, PERLMAN AND POLAKOFF New York ROBERT F. WAGNER JOSEPH FORCE CRATER SIMON H. RIFKIND NATHAN D. PERLMAN HERMAN OLIPHANT SAMUEL MEZANSKY of Counsel 154 FOREWORD ECAUSE the abuses of the injunction process seem to be an element in a partisan controversy, many persons do not realize that fundamentals of concern to public interest are involved. Injunctions issued in labor disputes are invading civil rights of individuals, establishing by judicial order legislation that the law-making bodies would refuse to pass, and nullifying guarantees of a fair trial. Temporary injunctions secure for employers an immediate advantage through the inclusion of unfair provisions that even though later reversed by the court, have in the interim enabled the employers to gain the contest against their employees. Employers have used injunctions to invoke the backing of the courts in controversies with employees, to take from employees the right to do things that might gain the struggle for them. The procedure which equity courts have followed in labor injunction cases, has increased opportunities for abuses in highly controversial industrial issues. Because the situations out of which the injunction have grown are regarded as partisan contests there has been an attitude on the part of some to regard Labor's protests against injustice as a partisan attempt to gain advantage. This attitude has obscured the existence of a situation prejudicial to national welfare as well as the broader aspects of the legal implication. No industrial problem can be solved by according a special advantage to any one group. All elements concerned have associated interests that will be affected and advantages should be reciprocal if sustained progress is to result. Labor is not asking for special privilege but to be freed from abuses of the injunction process which put workers on an unequal footing in bargaining with employers. The injunction is not a constructive method of adjusting industrial relations and we hope that employers will come to see that the conference table and cooperative relations with unions promise more profitable results than methods of force or governmental regulation. The union provides an agency (1) for orderly development and continued growth bringing mutual advantages to employers and employed. To approach the problem in this spirit requires the help of fact-finding agencies and methods. As facts are made available the area of conflicting opinions is steadily decreased. The major portion of the dispute over the use of injunctions in labor disputes is due to the failure to present to courts the economic and social meaning of the issues involved. Comparatively few judges or lawyers have first hand information of industrial problems and are inclined to interpret industrial disputes in terms of theories of rights and precedents. But an industrial conflict is a very real situation and understood only when interpreted in terms of economic and social purposes. Briefs which illustrate this method of interpretation are rare. The Brief submitted for the workers in the case of Interborough Rapid Transit Company v. William Green, et al., is such an illuminating interpretation of the social and economic consequences of the proposed injunction that it is a distinguished contribution to information in this field. The injunction which the Interborough Rapid Transit sought to secure was a most flagrant attempt to mistreat employees. It was to protect a most inequitable contract which the corporation had required each employee to sign, and would have restrained every probable source of moral and financial support of the Interborough employees in a dispute with the company. That this Brief might be available for larger usefulness, I requested the Workers Education Bureau to undertake its publication. -WILLIAM GREEN Washington, D. C. April, 1928 (2) PREFACE ONLY a very few copies of this Brief were originally printed for use in court. It is being reprinted so as to be made available to students of the labor problem. Those who are interested in questions relating to labor relations may find this Brief significant and useful in their work for three reasons. While some of the questions considered in this Brief are discussed in books already available, this litigation raised, for the first time, questions, such as binding workmen for a fixed time, which cut to the root of the labor problem. This Brief may have interest and utility for educational purposes because it is a brief in an actual case, briefs seldom being printed in such numbers as to be generally available. The economic arguments in this Brief incorporate material from published works on labor problems, but they also include much valuable material which the writer obtained from some fifty affidavits prepared for use in this litigation by experts in the labor field. These affidavits are not reprinted in full in the Brief, but the parts of them most important for this litigation are fully digested and extensively quoted. The form and arrangement of this book not being that common to the usual book, it has been thought desirable to set out a running sketch of its contents. The first 88 pages of this Brief contain a statement of the facts and circumstances of this litigation. Beginning on page 44 is a statement of the background facts of this case, the purpose being, first, to present the facts as to this particular labor dispute, and then to present that dispute, not as an isolated phenomenon, but as a part of a larger economic structure, whose stresses and strains caused this particular dispute to emerge. Points I and II, while apparently dealing with matters of technical law, may well interest the general student because they deal with the usual form of labor organization, namely, the unincorporated association. There will be found here considerable material on how the law deals with such associations and what the powers of their officers and the liabilities of their members are. (1) Much of the current discussion on the abuses of the injunction in labor disputes would be more helpful if it were more specific. During the preparation of this Brief, the whole literature on the subject was pretty carefully examined and it was possible to gather only a surprisingly small amount of concrete information about the uses and abuses of the injunction although an abundance of general condemnation and commendation was found. Exactly what is the machinery used in obtaining these injunctions and how, in detail, does it work? What standards have the courts set up to guide themselves in deciding such cases? Some sidelights on the first two questions and a full discussion of the last question are to be found in Points III to VII of this Brief. The Exchange Bakery Case, decided by the New York Court of Appeals in 1927, is notable not merely because of its explicit recognition of Labor's right to unionize, but also because of its illuminating analysis of the legal problem underlying these labor cases. That analysis and its application to the present case are set out in Points IX, X and XII of this Brief. Point XI is devoted to showing that the Interborough employees were in fact unionless. It contains a fairly detailed study of what amounts to a bona fide company union. Points XIII, XIV and XIX consider what circumstances of fairness must attend the consummation of a contract in order for it to be protected by law. The specific facts, because of which the court decided in favor of the defendant in this case, are set out under heading 7 of Point XI, and the law applicable thereto is discussed under heading 4 of Point XIII. Points XV, XVI and XVIII are devoted pretty largely to the problem raised by the famous Hitchman Coal and Coke Company Case, which case probably does not represent the law of the State of New York. It has long been recognized.that legislatures may equalize disparity in bargaining power between parties to a contract by supervising the terms and conditions of any contract entered into so that it may not operate harshly. An attempt is made in Point XVII of this Brief to show that the same principle is being applied by the courts without the aid of (2) legislation. Had more time been available, it seems clear that a great deal of additional material could have been collected to show the widely pervasive character of the judicial practice of supervising contracts rooted in disparity of bargaining power. In this Point, also, a catalogue is made of the factual circumstances constituting the disparity of bargaining power which exists between a large corporate employer and unorganized workmen. This material and that in Points XX and XXI, dealing with the social consequences of the wide-spread use of anti-union promises, constitutes the matter in this Brief likely to be of greatest general interest. An acknowledgment of indebtedness should be made to those who aided the work on this case by the preparation of expert affidavits discussing its economic aspects. The names of the scholars who cooperated in this fashion appear in the Bibliography. Special acknowledgment of indebtedness is made also to Ruth Reticker of the Economic and Business Research Staff of the University of Chicago. Great obligations are acknowledged to Professor L. C. Marshall of the University of Chicago, and Homer Carey of the New York Bar; to Samuel Klaus, Professor Paul F. Brissenden and Professor Robert L. Hale, of Columbia University; and to Marion Harron. Not all the defects of workmanship in this Brief are to be attributed to the very great haste with which it had to be prepared. The writer would appreciate having attention called to its inaccuracies and other defects. -HERMAN OLIPHANT Columbia University, New York City April, 1928 (3) TABLE OF CONTENTS NOTE: The Statement of Facts and each Point of the Argument in this Brief is summarized in an italicized statement at the beginning of each. PAGE NATURE OF THEACTION.......---------------------------------------------- 1 STATEMENT OF FACTS ------------------------ -------------------- ------ 1 A. Complaint..................................... 3 B. Amended Answer.................................... ----- -----. 6 C. The Plaintiff's Affidavits........................ -..-..... 10 1. Mr. Hedley's Affidavit.................................... 10 2. The Plaintiff's Other Affidavits................... __~.......... 18 D. The Defendants' Affidavits: Foreground Facts of this Case..............................................................-.. 19 1. The American Federation of Labor and its Relation to this Controversy-------...........-------- 20 2. The Charge that the Amalgamated Association Is a Trouble-Maker and the History of New York Subway Strikes --_----.-....... ------------------- 21 3. The End Sought by the Defendants--------.....-.... 24 4. The Means Used by the Defendants ---_--------_-- 25 5. Facts as to the Origin of the Brotherhood of Interborough Rapid Transit Company Employees... 29 6. How the Brotherhood has Been Operated...... 31 7. The Two Year Contract: Its History and its Implications.............................. -...... -..... 36 8. The Culpability of the Plaintiff's Conduct -------. 38 9. Facts Bearing on the Balance of Convenience...... 42 E. The Defendants' Affidavits: Background Facts of this Case _.-_ 44----------..................................... 44 1. The Work Contract...................--------- --------- 45 a. Disparity in Bargaining Power -----------............ 45 (1) When Men Are Unorganized ----.....--- 4 (2) Though Men Are Organized in a Company Union...................... 48 (3) Disparity in Bargaining Power in this Case..... ------------...... -- _ 52 b. The Promise Not to Join a Union-.------_ 55 (1) An Improper Part of the Work Contract.................................... ---- 55 (2) Incompatible with Real Company Unionism.----------.... -.....- -------- 59 (3) Effects of Such Anti-Union Contracts on the Survival of Inter-Company Unions -.........--..-.-.-.----_----- 61 PAGE 2. Company Unionism versus Trade Union ism.-... 63 a. What a Bona Fide Company Union Can A ccom plish................................. _...... --- 63 b. What Only a Genuine Inter-Company Union Can Accomplish................----------- 65 c. Company Unions are at the Very Most Promising Experiments.................................. 77 d. A Possible Sequel to Company Unionism 83 POINT I. THE GENERAL ASSOCIATIONS LAW PROHIBITS JOINING IN ONE ACTION UNINCORPORATED ASSOCIATIONS AND INDIVIDUAL MEMBERS THEREOF-------------------------------------------------.. 89 1. Such Joinder is Expressly Prohibited and it Has Been so Held................................................... 89-90 2. This Defect in the Complaint Has Not Been W aived............-.-............................................... 90-95 3. The Plaintiff Must Elect Which Set of Defendants it W ould Hold...................... ---................._ 95-96 4. No Temporary Injunction Can Issue and Leave to Amend Will Not Keep Alive the Application for Injunctive Relief.....................-.. 96 POINT II. A COMPLAINT FAILING To ALLEGE THE INDIVIDUAL LIABILITY OF EACH MEMBER OF AN UNINCORPORATED AS~ocIATION is FATALLY DEFECTIVE UNDER THE GENERAL ASSOCIATIONS LAW. -.................---------------------------------------------- 97 1. Statutes Involved...................-...... 98 2. Summary of the Argument on this Point -... 100 3. General Considerations..................._..... 101 4. All Members Must Be Liable -.-----------.-...~.... _101-112 5. Allegation of Power in Officers under Association Constitution or By-Laws is Not Sufficient.......................... - ----- ---.....-.......-------__103-112 6. No Sufficient Allegation or Proof in the Present Case...........................................- 113 7. No Showing that Illegal Acts Were Authorized 114 8. General Associations Law Does not Apply to a Federation of Unincorporated Associations -- 116 POINT 111. No SUBSTANTIAL., IRREPARABLE OR IMMEDIATE DAMAGE is THREATENED...........................................................117-------------- 11 1. The Plaintiff's Principal Affidavits Are Fatally D ef ective..................................._............-........... 118 2. The Law Governing Affidavits................121 3. No Strike Is Threatened or Contemplated........... 123 iii PAGE 4. Breach of the Anti-Union Promise Causes Only Technical Injury...................125 5. No Injunction When the Injury is Remote........... 127 6. No Present Damage Whether the Contract is Valid or Invalid.......-. -.................. 130 7. No Substantial Injury Having to Do with the Brotherhood............................. 132 POINT IV. THE BALANCE OF CONVENIENCE.'-..--...... 135 1. The Slight Injury to the Plaintiff if the Injunction Is Denied......... _...................35 2. The Serious Injury to the Defendants if the Injunction Is Granted.............................-....... 136 3. Cases on the Balance of Convenience........ 137-139 4. General Considerations: Opinions of Students of Labor Problem s......................................... 139-143 5. An Innovation in the Use of the Injunction is Here Attempted................................ 144 POINT V. A DECREE GRANTING AN INJUNCTION WOULD BE UNCONSTITUTIONAL AND IMPRACTICAL...........................-----...................-- 145 1. General Associations Law Unconstitutional if Construed to Authorize a Decree Against Non-residents Not Served......................... 145 2. Equity Will not Attempt to Do a Futile Thing... 146 POINT VI. A TEMPORARY INJUNCTION IS IMPROPER BECAUSE EQUIVALENT TO PERMANENT RELIEF ---......................-......--............... 147 1. The Plaintiff Seeks Only a Temporary Injunction 147 2. The Rule of Law and the Reasons For It........ 147-149 POINT VII. THE PLAINTIFF DOES NOT COME INTO EQUITY WITH CLEAN HANDS......-....-.............. - -.......................................--..-- 150 1. The Plaintiff's Conduct toward its Employees.... 151-153 2. The Plaintiff's Conduct in Relation to the Public................................................... 153-154 3. The Plaintiff's Conduct in the Strike of 1919 154 4. The Plaintiff's Conduct in the Strike of 1916......... 155 5. McCord v. Thompso-n-Starrett Co. and its Application to this Case........................................ 155-156 6. The High Standards of Conduct Prescribed by Courts of Equity............................. 156-161 POINT VIII. THE RELEVANCE OF SOCIAL AND ECONOMIC DATA 162 1. The Rules of Equity Practice Applicable to this Case................... 162 PAGE 2. The Position of the Court of Appeals........................ 163-164 3. How Questions of Public Policy Are Determined.................... 164-165 POINT IX. THE PRINCIPLES OF LAW UNDERLYING THIS CASE.-------..-. 166 1. The Exchange Bakery Case and its Bearing on this Case..................................167-170 2. No Justification Required since No Injury Is Shown.......................170-172 POINT X. THE DEFENDANTS ARE DUTIFULLY PURSUING A LAWFUL PURPOSE............ -.. 173 LAWFULPURPOSE--------------------------------------------------173 1. The Charge of a Pu"pose to Destroy Company Unions.................................................... 174-175 2. The Charge of a Purpose to Destroy the Plaintiff's Brotherhood................ 175-176 3. The Charge of a Purpose to Induce Employees to Q uit W ork.......................................-..... -............ 177 4. The Defendants' Acts are Privileged..................... 182 POINT XI. THE PLAINTIFF'S EMPLOYEES ARE IN FACT UNIONLESS ASSHOWN BY:............................ 186 1. The Circumstances Attending the Organization of the Plaintiff's Brotherhood....................... 190 2. The Constitutional Structure of the Plaintiff's Brotherhood.......................... 191 3. A Comparison of the Plaintiff's Brotherhood with Other Company Unions.............................. 197 4. How the Plaintiff's Brotherhood Has Been O perated.._.............................................................................. 207 5. A Study of Wages and Working Conditions on the Plaintiff's Lines............-.... --.............---211-212, 215-218 6. Relation of Plaintiff's Financial Condition to its Payment of Low Wages.------..--.--..------........---....--- 212-215 7. The Nature of the Alleged Two Year Contract and the Circumstances of its Execution......... 218 POINT XII. No UNLAWFUL MEANS ARE INVOLVED. THE CRUCIAL QUESTION IN THIS CASE STATED.......-........-------------........-........- 224 1. No Means Other than Proper Persuasion Were Used by the Defendants...................... 228 a. The Charge of Force and Violence Is Unfounded............--- -........... 228 b. There Is No Showing that Coercion Was Used -......................... 230 PAGE c. Impro'per Secrecy Has Not Been Resorted to by the Defendants.------------_----.. ----_ _ 233 d. The Defendants Did Not Resort to Fraud or M isrepresentation................----------_ 238 2. No Means Other than Invitation and Argument Have Been Used.......~..........------_------- ----- 243 3. The Defendants Have Not Attempted to Induce the Plaintiff's Employees to Quit Work...---- 245 4. The Crucial Question in this Case Stated.........------ 252 POINT XIII. THE CONTRACT OF JUNE 30, 1927 IS. WITHOUT CO N S1EiD ERA TI ---N ------------------------------------------------------------------- 256 1. The Company Made No Promise to the Men to Employ Them for any Definite Period -----..---.-,257-259 2. The Promise of Employment in Clause 1 of the Contract is a Promise to Employ Only so Longy as the Company Wants to Keep the M en -------..........-.............................._ _..................259-263 3. The Law as to Employment at Will. -...............263-264 4. The Disparity of Undertakings is so Gross in this Contract that Equity Will Not Protect It......................................................................... 264-267 POINT XIV. THE Two YEAR CONTRA.CT FAILS IN EQUITY BECAUSE OF OVER-REACHING AND SMART BARGAINING................---- 268 1. Facts Establishing Over-reaching and Smart Bargaining in this Case ----.--_-----........ -...------ ----269-272 2. The Law as to Contracts Obtained by Overreaching and Smart Bargaining.----- __.........-272-283 POINT XV. ANTI-UNION PROMISES ARE. NOT WITHIN THE CATEGORY OF PROMISES THE INDUCEMENT OF THE BREACH OF WHICH EQUITY WILL ENJOIN................................---------------- --------- 284 1. That Category of Premises is Limiited to Those in No Sense Opposed to Public Policy 286 2. No Injunction unless Breach of the Promise Will Deprive a Plaintiff of His Employee's Services..........................--------..----------..-----289-292 POINT XVI. Ti-is IS A HIRING AT WILL UNACCOMPANIED BY ANY ANTI-UNION PROMISE. THE LAW IN THE FEDERAL COURTS 293 1. The Invalid Two Year Contract Cannot be Construed to Be a Contract at Will.......................293-294 2. The Separa-te Ratifying Instrument and the Form of Application for Employment Contain no Valid Anti-Union Promise..............................294-297 PAGE 3. The Law of New York as to Anti-Union Promises in a Hiring at W ill...................-.-.--.----.. 297 4. The Determination of this Question Involves No Question of Constitutional Law.................. 298-299 5. The History and Scope of the Present Federal R ule.................................................................................... 299-304 POINT XVII. THE PRINCIPLE THAT INEQUITABLE CONTRACTS ROOTED IN DISPARITY OF BARGAINING POWER AS IS THE TWO YEAR CONTRACT ARE SUBJECT TO JUDICIAL SUPERVISION.-...--... 305 1. Disparity of Bargaining Power in the Negotiation of Employment Contracts Generally............ 306 2. Disparity of Bargaining Power in the Negotiation of the Contract of June 30, 1927........... 311 3. Origin of the Principle as to Contracts Rooted in Disparity of Bargaining Power...............................- 312 4. A Principle Applied all through the Law............... 314 5. Eleven Type Situations wherein it Applies............317-330 6. Application of the Principle to Employment C ontracts................................................................. 330-341 7. Kimberley v. Jennings, a Case Squarely in Point.... 341-344 8. Harsh and Inequitable Contracts Condemned by Courts Where No Disparity of Bargaining Pow er Is Present..................................................... 344-349 POINT XVIII. THE PRIVILEGE TO DISCHARGE FOR UNION MEMBERSHIP DOES NOT INCLUDE THE POWER TO EXACT Enforceable ANTI-UNION PROMISES......-............--..................... 350 1. Cases Involving Only this Privilege are Not in POINT XI Point.................................................................... 350-351 2. McCord v. Thonmpson-Starrett Co. Is Squarely in Point........................................ 351-352 3. Other Examples of this Distinction....................... 353 4. People v. Marcus and Coppage v. Kansas Are N ot A pplicable...................................................... 355 5. The Bearing of the Lavin Case...................................... 356 X. THE CONTRACT OF JUNE 30, 1927 Is COLORABLE..-..- 357 1. Why the Plaintiff Exacted the Two Year Promise to W ork.................................................. 358-359 2. Contents of the Contract Disclosing its Colorable C haracter............................................................................... 359-361 3. The Contract if Taken Seriously Would be Revolutionary.............-........... 361-362 4. That the Contract Is Colorable Admitted in the O ral A rgum ent.................................................... 362 Vii PAGE POINT XX. BOTH THE PROMISE TO WORK Two YEARS AND THE ANTI-UNION PROMISE ARE VOID BEING OPPOSED TO PUBLIC POLICY............................................................................ 364 1. The Promise Not to Join a Union Is an Improper Part of the Modern Work Contract 366 2. The Effects of the Anti-Union Contract on the Public W elfare.....................................-...... 367 3. Legal Authorities and Analogies as to the Validity of Anti-Union Promises................ 376 4. The Two Year Promise to Work Is Opposed to Public Policy.............................. 385 5. These Promises Combined Are Doubly AntiSocial................................ 387 POINT XXI. SOCIAL AND ECONOMIC CONSEQUENCE OF JUDICIAL APPROVAL AND WIDESPREAD USE OF THE PLAINTIFF'S WORK CONTRACT.......................................................------------------------------------------------------........... 393 1. The Promise Not to Join a Union Is Deadly Even to Real Company Unionism..................... 395 2. Company Unions Are at the Very Most Promising Experiments........................................ 398 3. The Social Necessity of Genuine Inter-Company U nions............................................................. 409 4. The Threat of the Anti-Union Contract to the Present Conservative Labor Movement and the Social Dangers Which its Collapse Would Involve. What Might Well Happen if the Plaintiff's Two Year Contract Is Upheld... 435 5. The Social Wastefulness of the Plaintiff's Labor Policies............................................ -445 POINT XXII. THE DENIAL OF AN INJUNCTION RAISES NO 'CONSTITUTIONAL QUESTION...............-----------------........---------...............................-------- --------449 1. Equal Protection of the Law Would Not Be Denied......................................................... 450 2. No Denial of Due Process Is Involved.............--- 451 POINT XXIII. THE RIGHT TO A PERMANENT INJUNCTION IS IN DOUBT; AND WHERE THIS IS SO A TEMPORARY INJUNCTION WILL BE DENIED.........--------..................------------------------------------.............----------- 458 CONCLUSION ---..........................-------------.......................---------------............................. 460 TABLE OF CASES --------................--------------- ----------------------------- 461 BIBLIOGRAPHY........----------------------------------------------------........... 470 Ouprmr Jnurt NEW YORK COUNTY. INTERBOROUGH RAPID TRANSIT COMPANY, Plaintiff, against WILLIAM GREEN, et al., Defendants. BRIEF FOR DEFENDANTS. Nature of the Action. This is an action to enjoin various individual defendants and three association defendants from various alleged illegal acts in violation of an alleged contract between the plaintiff and the Brotherhood of the Interborough Rapid Transit Company and the individual members thereof, employees of the plaintiff. The present controversy concerns the plaintiff's application for an injunction pendente lite. This application rests, as it must, upon such cause of action as may be stated in the complaint so far as supported by the proof by affidavits. Its needed foundation is that required for permanent injunctive relief. For purposes of presenting the issues in this case clearly, the pleadings will be analyzed before other facts are presented. Statement of Facts. This is an action to enjoin, pendente lite, various individual defendants and three labor associations from inducing breach of an alleged Contract between the plaintiff and the Brotherhood 2 of Interborough Rapid Transit Company Employees, and the individual members thereof, employees of the plaintiff. This Brotherhood was formed in 1916, the plaintiff alleges, as a device to prevent the recurrence of strikes. Its Constitution purports to be a contract between the plaintiff and the employees and it provides, among other things, for a General Committee which has power to negotiate, for the men and with the plaintiff, contracts dealing with wages and conditions of work. In particular, it is alleged that the General Committee made a Contract with the plaintiff dated March 30, 1927; and another dated June 30, 1927. This latter Contract is alleged to have been individually ratified by the employees through the execution of a separate instrument; and the plaintiff alleges that it has an enforceable contract in which the men promise not to join an outside organization, the consideration therefore being "an extended period of employment", and a promise to employ for two years. The plaintiff complains that the defendants are inducing a breach of this promise by inviting these employees to join the Amalgamated Association of Street and Electric Railway Employees; and it further complains that improper and unlawful methods are used by the defendants in their activities. The amended answer of the defendants denies every material allegation of the complaint and sets up various affirmative defenses. Among other things, the defendants allege and give proof that the Brotherhood is a sham labor organization whose officials are in reality the subservient tools of the plaintiff; that the alleged Contract of June 30, 1927, is in fact without consideration and is invalid, both because it lacks consideration and because it rests on over-reaching and smart bargaining; that the Contract is colorable, the plaintiff having tried to develop a legal situation, hoping thus to build up a case for an enforceable promise. The answer further avers that the plaintiff has not drawn its complaint properly and that'it is fatally defective; that the plaintiff does not come into equity with clean hands; that it fails to prove substantial or irreparable injury to be threatened the plaintiff-indeed far greater injury is threatened the defendants. Furthermore, in any event, the defendants are privileged; they seek lawful ends by using lawful means. Finally, on grounds of public policy, the alleged contract is void. These and other pertinent considerations are set forth by the defendants in detail and are fully supported by the facts recited in the Statement of Facts and in the argument of the defendants' Brief. A. COMPLAINT. The plaintiff recites that the Amalgamated Association of Street and Electric Railway Employees of America caused a strike of the plaintiff's employees in 1905 and in 1916; that in the course of the latter strike violence on the part of the Amalgamated Association occurred. Statements are also made of unlawful strikes caused by the Amalgamated Association between 1900 and 1926 on various street railways of the country accompanied by alleged violence in many cases. The conduct of the Amalgamated Association, particularly in the year 1916, is stated to have caused "the officers of the plaintiff and the employees of the plaintiff" to devise a method of "preventing recurrence of strikes in the future," and "in August, 1916 the employees of the plaintiff organized among themselves" an "association under the name of the Brotherhood of Interborough Rapid Transit Company Employees" (Paragraph No. IV). The Brotherhood is alleged to have adopted a constitution approved by the directors of the plaintiff that same year and various amendments to the same are alleged to have been adopted and approved by the plaintiff from time to time down to June 12, 1927. The said Constitution, made a part of the complaint by reference, will be hereinafter analyzed in detail. It is sufficient now to point out that the foregoing is an admission by the officers of the plaintiff that the genesis of the Brotherhood was this strike situation, a fact of great importance in determiining whether the organization was in fact a voluntary one on the part of the employees organized for the purpose of benefiting them or whether it was imposed upon the men primarily for the benefit of the plaintiff Company. The complaint further alleges that the Constitution of the Brotherhood, when accepted by the plaintiff, became a contract between and among the individual members of the Brotherhood, the Brotherhood, and the plaintiff; that 4 the General Committee of the Brotherhood has the power under the Constitution approved by each member of the Brotherhood, to make contracts for the men with the plaintiff concerning wages and conditions of employment for a period not exceeding five years; that in pursuance of such authority the General Committee made a contract with the plaintiff dated March 30, 1927, and another dated June 30, 1927, known as the "Two Year Contract of Employment and Arbitration." This agreement of June 30, 1927, is made part of the complaint and purports by its terms to bind each and every member of the Brotherhood to work for two years to obligate him not to join any other labor organization than the Brotherhood and to: make the Constitution and all present and future amendments thereof a part of the said Contract. The Contract provides for its ratification by each member of the Brotherhood through the execution of a separate contract set forth in paragraph No. VII of the complaint. This! separate contract is alleged to have been executed by each member of the Brotherhood, i. e., by all employees of the plaintiff after their having read, or having heard read, this contract and the Constitution of the Brotherhood. The complaint in paragraph No. VIII alleges that each employee of the plaintiff subsequent to April, 1920 has, as a condition to his employment, executed a contract agreeing to be bound by the Constitution of the Brotherhood and all amendments thereof, and to be bound by any present or future contract between the plaintiff and the Brotherhood; that each employee of the plaintiff became bound by the Two Year Contract. The complaint from this point details the alleged wrongful conduct of the defendants. Paragraph No. X states that the American Federation of Labor is a, federation of labor organizations of seven or more persons with the defendant, William Green, as its president. Paragraph No. XI states that the Amalgamated Association is an unincorporated association of seven or more persons with the 5 defendant, William D. Mahon, as its president. Paragraph No. XVIII states that Local Division No. 977 of the Amalgamated Association was chartered in September, 1926. The complaint alleges that various individual defendants and the defendant associations affiliated with the American Federation of Labor conspired unlawfully to destroy "company unions". As proof of this, the complaint sets forth the reports and resolutions of the annual conventions of the American Federation of Labor, held in October, 1925, October, 1926, and October, 1927 (paragraphs Nos. XIV and XV). The complaint in paragraph No. XVI alleges that the defendant, Ed. P. Lavin and other defendants conspired in forming, in July, 1926, a voluntary association known as the Consolidated Railroad Workers Union of Greater New York; that they induced employees of the plaintiff to strike and to leave the Brotherhood and become affiliated with the Consolidated Union with the malicious intent to injure the plaintiff's business and property; that a strike occurred early in July, 1926 and ended on or about July 30, 1926 and that these same defendants and others continued toi conspire by the circulation of "false, defamatory, scurrilous statements about the plaintiff and its officers, and the Brotherhood" to induce the plaintiff's employees to break their contracts of employment and join said other association; the plaintiff was granted an injunction pendente liet by the Supreme Court of New York County which relief was sustained by the Appellate Division of the Supreme Court, June 24, 1927; that, during the pendency of said action, various individual defendants, acting in said conspiracy and with similar purposes as before stated, formed a local association of the Amalgamated Association known as Division No. 977 in September, 1926, a defendant in this action, and that, by threats and false and defamatory statements, they have induced some of the plaintiff's employees to become secret mem 6 bers of said Division; that said practices are being continued. The complaint alleges in paragraph No. XXII, that the plaintiff, to make provision for maintaining its services to the public, has been compelled to expend $130,000.00, judgment for which is demanded in the complaint against all the defendants; that said expenditure was necessitated and caused by the aforesaid unlawful conduct of the defendants. Paragraph No. XXIII alleges that presumably all of the plaintiff's employees are skilled and trained workmen. The two concluding paragraphs XXIV and XXV, of the complaint contain arguments, but no facts grounding such arguments, on constitutional law, and on irreparable injury if the court should deny the equitable relief asked for in the prayers of the complaint. B. AMENDED ANSWER. The amended answer denies every material allegation of the complaint and sets up eleven affirmative defenses as follows: 1. That no consideration was ever given by the plaintiff to its employees for the execution of the alleged Constitution or the alleged Two Year Contract; that the latter, in so far as it purports to obligate the plaintiff, is wholly illusory in that it unconditionally obligates each individual employee to work for two years while the plaintiff is wholly free to discharge any or all of them and that the plaintiff has been discharging men with that freedom. 2. That the execution of both the Constitution and the Two Year Contract was secured by duress and over-reaching conduct on the part of the plaintiff in that the plaintiff threatened to discharge and dismiss from its employ those who refused to execute them. 3. That fraud and deception were used by the plaintiff in securing the signatures of its employees to the alleged Constitution in that the same, drawn and devised by the plaintiff, purported to give to the plaintiff's employees the right to bargain collectively with it when in fact the same conferred no such right, as the plaintiff well knew and intended; that the plaintiff did not reveal that the said Constitution could not be amended except by consent of the plaintiff; that the General Committee of the alleged Brotherhood under the alleged Constitution has power to bind every member of the association, and that said Committee is not subject to the control of the members of the Brotherhood but is under the control and domination of the plaintiff; that the plaintiff, well knowing these facts, concealed them and induced its employees to approve the said Constitution in ignorance thereof; that the members of the association had no collective voice in bargaining with the plaintiff nor could they even collectively advise the General Committee as to how it should act; that members of the Brotherhood are subject to discharge by the General Committee without recourse; that the General Committee, purporting to act for the employees, are paid servants of the plaintiff; that the General Committee has always been selected by the plaintiff and dominated by it; that the plaintiff drew the Constitution and put the same into effect, deceiving its employees as to its inception, its operation, its provisions, and its purpose; that the various provisions of the said Constitution are harsh and unfair; that the alleged Two' Year Contract was signed by the plaintiff's employees under the misrepresentation by the plaintiff that it embraced a wage schedule which was not shown to them, the plaintiff well knowing such representation to be false. 4. That the alleged Constitution was never adopted by the plaintiff's Board of Directors and never adopted by the plaintiff's employees; that the alleged Two Year Con 8 tract was never signed by the plaintiff's employees themselves or by others with their authority although the same purports to have been executed by the employees whose signatures were placed thereon with absolute want of authority from them. 5. That both the alleged Constitution and the alleged Two Year Contract are the creation of one Ivy Lee, Frank Hedley, and James L. Quackenbush, and were devised to crush the plaintiff's employees and were foisted upon the plaintiff's employees in furtherance of a conspiracy to injure the association defendants whose objects are and have been the improvement of conditions of the working classes throughout the United States. 6. That the alleged Two Year Contract is harsh and inequitable in that it purports to bind the plaintiff's employees for twoa years while the plaintiff is not in substance subject to any reciprocal obligation. 7. That the defendants have at, no time advised, induced, or persuaded the plaintiff's employees to quit the service of the plaintiff and that no strike is now contemplated or threatened; that at no time did the defendants ever advise, induce, or persuade the plaintiff's employees to leave the Brotherhood. 8. That the plaintiff has an adequate remedy at law for the alleged misconduct of the defendants, for they are solvent. 9. That the granting of an injunction will inflict irreparable injury on the defendant associations by causing loss of membership and loss of material resources and by preventing them from accomplishing their lawful purposes, while the denial of injunctive relief would result in no injury whatever to the plaintiff. 10. That Frank Hedley, James Quackenbush, Ivy Lee, and others, including the National Association of Manufacturers and various chambers of commerce in the United States conspired and are conspiring to destroy all trade unions whose object and purpose like those of the association defendants are to secure the betterment of the laboring classes; that, in furtherance of said conspiracy, the aforesaid plaintiff's agents have hired spies to shadow, intimidate, and annoy the defendants, have circulated false and defamatory oral and written statements about the defendants, have secretly induced employees to join the defendant Amalgamated Association to spy upon the latter's activities, have spent thousands of dollars for all of the aforesaid purposes and made false and deceptive financial reports to the Transit Commission as to the objects of said expenditures, all in fraud on the City of New York; that the plaintiff has fraudulently expended large sums of money to maintain the Brotherhood as an instrument of oppression in furtherance of a conspiracy to destroy all associations working for the improvement of the conditions of the working classes. 11. That the expenditure of money by the plaintiff in maintaining the Brotherhood and in carrying into effect the provisions of the alleged Constitution thereof is in violation of Public Service Commission Law and is a fraud on the City of New York by reason of contracts which the plaintiff has with the City of New York; that the selection of employees by the plaintiff upon any basis other than that of the fitness and efficiency of applicants is void and unlawful; that the plaintiff by these devices does not make efficiency and fitness of an applicant the basis of employment, but rejects any applicant seeking employment who refuses to become bound by the provisions of the alleged Constitution of the Brotherhood requiring that he become affiliated with no labor organization other than said Brotherhood. 10 C. THE PLAINTIFF'S AFFIDAVITS. 1. Mr. Hedley's Affidavit. The bulwark of the plaintiff's proof in its entirety is to be found in the affidavit of Frank Hedley, president of the plaintiff, and for this reason his affidavit merits a careful separate treatment. It, like the complaint, opens with charges of wrong-doing by the Amalgamated Association in causing strikes on the plaintiffs lines in 1905 and 1916, the latter of which is stated to have been accompanied by violence. The affidavit proceeds to detail the origin of the conception of the Brotherhood after the 1916 strike and uses the following language: "That on account of the great loss in revenue and other injuries sustained by the plaintiff, the losses inflicted upon the plaintiff's employees * * * it was deemed desirable at the end of such strike, by deponent and other managing officers of the plaintiff and also the plaintiff's employees as a body" that a method of preventing a recurrence of similar strikes in the future should be devised. Then follows the statement of the adoption of a constitution and amendments thereto, all approved by the plaintiff. Nevertheless, statement is made that the organization of the Brotherhood was voluntary on the employees' part and "without interference or dictation" on the plaintiff's part and came into being, "because of a general belief on the part of the employees of the plaintiff, * * * that the interest of such employees * * * could best be subserved and carried out" by an organization independent of the Amalgamated Association. The statements in the affidavit fail more than 11 those in the complaint to conceal the fact that the Brotherhood was not the men's but the plaintiff's own device. The Constitution of the Brotherhood which is made a part of the affidavit by reference will be hereinafter carefully analyzed to show this fully. Mr. Hedley states that since 1920 all applicants for employment have agreed to be bound by the Constitution of the Brotherhood and all amendments thereof and that the Constitution provides for a General Committee which has power to bind for a period of five years all members of the Brotherhood by contracts with the plaintiff with respect to, wages and working conditions; that in pursuance of said authority the General Committee made with the plaintiff the Two Year Contract dated June 30, 1927, that said Contract has been individually approved by the Brotherhood members, substantially all of the employees of the plaintiff, they constituting upwards of 14,000 persons. This alleged Contract will be hereinafter carefully analyzed and its fatal defects shown. The deponent charges that the defendants Mahon, Shea, Green, Frayne, Fitzgerald, and others at the annual convention of the American Federation of Labor in October 1925 conspired unlawfully and maliciously to destroy labor organizations like the Brotherhood. Copies of the reports and resolutions adopted at said convention are set forth, but they fail to show that anything contained therein is directed against the plaintiff's Brotherhood or that the ends to be accomplished or the aims and ends of the reports and resolutions are not legitimate ends; namely, the improvement of the condition of the working classes by organized labor, or that the proposed means to accomplish those ends are improper. It is charged that in July, 1926, the defendants Lavin, Phelan, Bark, Walsh, and others caused a strike on the plaintiff's lines; that the plaintiff secured an injunction order from the Supreme Court of New York County December 30, 1926, which order was upheld by the Appellate Division June 24, 1.927; 12 that in July, 1926, the last named defendants organized an association among the plaintiff's employees in violation of a contract between the latter and the plaintiff, an association called the Consolidated Railroad Workers Union of Greater New York; that said last named defendants conferred at the American Federation of Labor headquarters of New York with the defendants Ooleman, Phelan, and Frayne with a view of affiliating the said Consolidated Union with the American Federation of Labor; that all of said persons deliberately and maliciously conspired to destroy the plaintiff's Brotherhood and to induce its members to leave the same and strike; that on or about September 2, 1926, the said Consolidated Union became Local Division No. 977 of the Amalgamated Association. That some or all the individual defendants and others during the succeeding months carried on an active campaign to induce the plaintiff's employees to join said Local Division No. 977; sent out literature and personally solicited the plaintiff's employees to join said local, all in furtherance of the conspiracy conceived in the convention of the American Federation of Labor of October, 1925; that in the annual convention of the American Federation of Labor held in October, 1926, the matter of company union was denounced in speeches, reports, and resolutions, the latter of which are purported to be set forth in the affidavit but none of which show that the plaintiff's Brotherhood was the object of any attack or that any unlawful means were proposed or that the organizing of labor and betterment of the working classes were not the sole ends sought. It is charged that the campaign to induce members of the plaintiff's Brotherhood to desert it and join Local Division No. 977 continued through publications and through personal solicitation promising secrecy with respect to membership in the Amalgamated Association. The statement that the American Federation of Labor retained Hon. Robert Wagner to cooperate 13 with counsel retained by the Amalgamated Association in taking an appeal taken from the injunction granted December 30, 1926, is denied in the defendants' affidavits, Coleman, Fitzgerald and Woll. After the making of the Two Year Contract dated June 30, 1927, it is stated, the attack on the plaintiff's Brotherhood took new vigor and some of the defendants personally wrote Mr. Hedley that the plaintiff's workers were being enrolled in the Amalgamated Association and requested recognition by the plaintiff of the Amalgamated Association. It is charged that the Contract was called a "yellow dog" contract and was stated to involve "servitude"; that the plaintiff was charged with duress for procuring individual employees to ratify it. At that point the affidavit attempts to show that the efforts of the various defendants were directed towards producing a strike, the fact being that the deponent refused to treat with the Amalgamated Association or even to reply to the letters addressed to and received by him; that the deponent sent copies of the injunction order, copies of the Two Year Contract, and a letter to three of the alleged principal defendant offenders and on July 17, 1927 issued a public statement explaining his conduct. This public utterance by its very terms purports to enlighten the public upon the plaintiff's labor situation. That public statement proceeds to show the perils that would result from angering the Brotherhood, and, to prove this, the deponent refers to the strike of 1919, which strike is alleged to have been caused by insults to the Brotherhood leaders at a meeting of the Board of Estimate, as ai result of which the plaintiff's operations ceased 100 per 'cent. nMr. Hedley in that public statement urges the fact that the obligations of the company to the Brotherhood under the alleged Constitution of the latter would legally prevent the plaintiff from recognizing any labor organization other than the Brotherhood, and, if the plaintiff should violate this sacred covenant, its employees would, 14 as they did in 1919, walk out in a body and totally paralyze the plaintiff's operations. The dominant thought to be conveyed is that the employees of the plaintiff desire no other organization for the protection of their interests than the Brotherhood. As will later appear, the publicly known fact concerning the 1919 strike is that the plaintiff itself called that strike in an effort to secure a higher fare. The most significant part, however, of Mr. Hedley's public statement is the following: "At the most, the Amalgamated might persuade or frighten a few hundred men out of thirteen thousand to leave their jobs. Their places can readily be filled." Thus Mr. Hedley admits that there could be no strike caused by the Almalgamated Association because of the faithfulness of the Brotherhood.. The affidavit fails to set out any statement written or oral by any defendant that, fairly construed, indicates an intention to call a strike. In fact, the statements quoted show the contrary, indicating only the insistence upon the right of the plaintiff's employees rightfully and effectively to organize for their own protection and for the purpose of securing improvement of laboring conditions. The affidavit then turns to a consideration of the meeting of the plaintiff's workers allegedly called by the defendants Coleman and Shea on July 22, 1927 at the Brooklyn Labor Lyceum for the purpose of urging recognition by the plaintiff of the Amalgamated Association. This meeting is spoken of by the deponent as follows: "At no time were there more than from two hundred to three hundred persons in attendance of whom not more than eight were employees of the plaintiff." At that meeting it was resolved that Coleman and Shea should arrange to see Mayor Walker and arrangements were made for such conference on July 23, 1927, and ap 15 parently the deponent was invited to attend for on that day he addressed a public letter to Mayor Walker stating that he could not attend. This letter contains the usual propaganda to be found in the public utterances of the deponent: 1. That the plaintiff's employees had evidenced their entire satisfaction with conditions of employment by the execution of a Two Year Contract; 2. That the Brotherhood "was organized by our employees as a protest against the action of this Amalgamated Association during the strike" of 1916; 3. That 97 per cent "of our employees would regard as a great breach of faith on my part any transactions either directly or indirectly" with the Amalgamated Association; 4. "'I feel that I am in a position to assure you that * * * no strike which the representatives of the Amalgamated can bring about will amount to any serious inconvenience * * as evidence of the correctness of this viemw, permnit me to call attention to the fact that the much heralded great mass meeting called last night in Brooklyn failed to muster over 150 people in the hall during the entire night. Not over eight employees of the Interborough were there, except those who were there to observe what took place." In the light of this statement it is inconceivable that the plaintiff believes it is being threatened with a strike causing such substantial immediate and irreparable injury as to form a basis of this application. It is then stated that the conference of Coleman and Shea with Mayor Walker on July 23, 1927 resulted in the extension of an invitation to the deponent on July 25 to attend a conference at 5 P. M., July 26, 1927. The deponent replied to this invitation by a letter of the same character as was written in answer to the previous one and the same was supplemented by a press statement dated 16 July 26, 1927. It is stated that the second meeting of the Amalgamated Association was publicly announced for the night of July 26, 1927, and the same was widely advertised in advance; that on the morning of that date a few of the plaintiff's workmen manifested insubordination and were discharged and the deponent addressed to them a letter which states, not that they were discharged for neglect of duty, but that they were present at the Amalgamated meeting in Brooklyn on July 23rd. The conference with Mayor Walker attended by the defendants Shea, Coleman, and Frayne, on July 26th resulted in the deponent being called on the telephone by Mayor Walker to attend the same and the deponent sent James L. Quackenbush "" ' * even though deponent felt confident that no serious interruption of the service being rendered by the plaintiff or material defections from the ranks of its employees could be brought about by the defendants. * * " At said conference Mr. Quackenbush agreed on behalf of the plaintiff to take back the employees of the plaintiff whom the deponent had previously discharged without discrimination against them in the future; but the deponent states that he "is reliably informed" no arrangement or assurance was "made or given by Mr. Quackenbush that the Amalgamated organizers would be free thereafter to enroll any of plaintiff's employees * * *"; that at said conference the defendants in attendance "agreed that they would call off the threatened strike"; that notwithstanding the terms of the agreement aforesaid, the defendants announced that the plaintiff had agreed to permit the organization of its employees into the Amalgamated Association. That, in the meeting of July 26, 1927, in the Brooklyn Labor Lyceum, the strike was definitely abandoned, but the plaintiff, in preparing to meet it, spent $130,000.00 prior to that date; that the efforts to organize the Amalgamated Association among the plaintiff's employees continued with increasing vigor, the defendants pointing out 17 the oppressive character of the Two Year Contract and the inability of the plaintiff's Brotherhood to fulfill the needs of labor. The deponent, to combat this effort, on August 9, 1927, addressed a printed letter to the members of its Brotherhood explaining his interpretation of the agreement with Mayor Walker and in the same said: "We can calmly overlook a little bombastic talk, but the fact is that everybody in New York knows that your Brotherhood is on too solid a foundation to be weakened to any serious extent by anybody." Here it appears that the plaintiff has no real apprehension of injury to the Brotherhood. In the face of the fact that the Brotherhood Constitution is said to be a contract between the members of the Brotherhood and the Company requiring the exclusion of persons affiliated in any way with the Amalgamated Association, it is stated that Mr. Quackenbush agreed to take back into the fold the discharged employees without the prior approval of the Brotherhood. It is stated that the campaign to unionize the employees of the plaintiff continued and that the general attack on company unionism fostered by the annual conventions of the American Federation of Labor in 1925 and 1926 was again endorsed by its annual convention in October, 1927. The affidavit of Mr. Hedley shows' two fatal defects: 1. It shows no apprehension of any substantial or irreparable injury to the plaintiff in the near future. 2. In the statement of important and vital groups of fact, at least 103 instaunce's are alleged on information and belief and the sources of that information and the grounds for that belief are not stated. In innumerable other instances where facts do not purport to be given upon information and belief, it cannot be inferred that the statements were made upon personal knowledge for they are not ac 18 companied by other statements upon which such an inference can possibly rest. The concluding paragraph of the affidavit endeavors to cover this fatal weakness by stating that the sources of the deponent's information and the grounds for his belief as to all matters so stated are: "reliable reports received by deponent" and, in.addition to accompanying affidavits: "articles appearing in daily newspapers." 2. The Plaintiff's Other Affidavits. The other affidavits submitted in support of the plaintiff's application are, with but few exceptions, made by employees of the plaintiff and members of its Brotherhood. They add little or nothing to the statements of Mr. Hedley, are all of the same general character and tenor, and contain substantially the following allegations': 1. That the deponent is a member of the Brotherhood, has approved its Constitution, executed the Two Year Contract, voluntarily, is satisfied with the company union and does not desire to affiliate with the Amalgamated Association. 2. That the deponent was personally approached or sent literature designed to induce him to join the Amalgamated Association, but that he refused to do so. 3. That some of the members of the Brotherhood became members of the Amalgamated Association, thus breaking their alleged Contract with the plaintiff. 4. Two of the 76 affidavits of the plaintiff state that the American Federation of Labor levied assessment purposely to combat company unions. Five of the defendants' affidavits specifically deny this. 5. One affidavit states that several employees of the plaintiff who became members of the Amalgamated Association threw stones at the plaintiff's cars. Two of the 19 defendants' affidavits specifically deny this so far as the identity of the alleged offenders is disclosed. The general tenor of the affidavits' of the plaintiff's workmen submitted in behalf of the plaintiff's application for a temporary injunction show an overpowering fear on the men's part of becoming in any way associated with the Amalgamated Association because of the danger of being discharged by the plaintiff. Typifying this situation is the affidavit of Daniel P. Holland. Mr. Holland states that, when the defendant Joseph G. Phelan endeavored merely to interview him, he told him (Phelan) that he "did not intend to place himself in a position where he could be suspected of being connected with the Amalgamated." D. THE DEFENDANTS' AFFIDAVITS: FOREGROUND FACTS OF THIS CASE!. The recital of facts; submitted in the defendant's affidavits is divided into two parts: There is first set out the substance of affidavits stating the immediate or foreground facts of this controversy, viz., what the parties to this action have said and done. This is a labor dispute and all of these happenings have taken place, and are taking place, against a general background of facts constituting the present and actual situation in the' field of labor relations. The foreground facts, viz., what the parties to the controversy have said and done, cannot be understood or judged except when projected against the background facts constituting the present situation in the labor world out of which the immediate or foreground facts' of this case emerge. This principle had explicit recognition and extended use in the Exchange Bakery case, for example. Accordingly, the second part of the defendants' proof sets out in full the facts of the modern labor problem as they have been collected and evaluated by many of the country's foremost scholars and experts in the field. 20 The American Federation of Labor and its Relation to this Controversy. The affidavit of William Green, President of the American Federation of Labor, reviews at length the organization, the history, purposes, and achievements of the American Federation of Labor. It shows: that it has been the most powerful and useful instrument in the United States for improving the condition of the laboring classes in this country; that it has received the approval and commendation of our government; that it has received official recognition for its' services to our country during the World War; that its efforts have been confined largely to the political field in sponsoring legislation for the benefit of the working classes and in opposing legislation unfavorable to them; that this legislative activity has not been confined merely to the industrial field, but has extended into the educational field; that the American Federation of Labor is democratic in its organization and is a body primarily deliberative in its nature; that it has no power to compel obedience to any directions or decisions that it might make and has no authority or supervision whatever over the affairs of the large national unions composing it or over their subordinate local unions. The American Federation of Labor has done nothing directly or indirectly in an attempt to combat the efforts of the plaintiff to maintain its' company union and has done nothing directly or indirectly to combat the efforts of the plaintiff to prevent the voluntary organization of its employeesi. The defendant Green specifically denies that, at the time of his activities in the conventions of the American Federation of Labor in 1925 and 1926 when the matter of company unions was discussed, he was aware of the plaintiff's methods of employment or of its methods of dealing with its employees or that he ha.s done anything alone or in combination with others to injure the plaintiff in any way, and he likewise denies the same with re 21 spect to the American Federation of Labor. So also do Woll and Frayne. The American Federation of Labor is the loosest sort of labor federation and takes no part in local controversies in any detailed way (Green and the Constitution of the American Federation of Labor). Hugh Frayne, a representative of the American Federation of Labor in New York, swears that his only duty in respect to the Amalgamated Association was to give general advice, and the resolutions of the various conventions of the American Federation of Labor set forth in the affidavit of Mr. Hedley were in no way directed specifically against the plaintiff; that the plaintiff was unknown to the greater number of persons on the committees which framed these resolutions and the only one who may have been aware of the plaintiff's situation with respect to its employees exercised no especial influence over these deliberations; that there was no conference between the officials of the American Federation of Labor and the Amalgamated Association until after the present action was commenced, and the only aid from the American Federation of Labor before that time was an moral one to be implied from its resolutions (Woll, Mahon, Frayne, Green). Moreover, no levy of an assessment was made by the American Federation of Labor for the purpose of combatting company unions. The statements in the affidavits of Mr. Hedley and Patrick D. Healy submitted by the plaintiff stating that such an assessment was made are specifically controverted by affidavits of Coleman and Walter B. Price submitted by the defendants. The Charge that the Amalgamated Association is a Trouble-Maker and The History of New York Subway Strikes. While the complaint charges in effect that the defendant Amalgamated Association has been a constant trouble 22 maker all over the United States, these charges are unfounded for the facts are that it takes most elaborate measures to prevent strikes. It has trade agreements with 269 companies in other citiesi and, if the organization possessed the iniquitous character charged by the plaintiff, it could never have succeeded in effecting so many trade agreements and in attaining a membership of 131,000 in its 269 local divisions. Moreover, the Amalgamated Association participated in only four strikes during 1926 and all four were for just cause (Mahon, Fitzgerald). Its objects have been the betterment of the conditions of the working classes and it has attained notable achievements in that regard. It is democratic in its organization. Its war record was so notable that it received the commendation of President Wilson, the Council of National Defense, Secretary of War Hon. Newton D. Baker, and other national leaders (Mahon, Shea, Fitzgerald). Its 22 years' history in New York City has been most favorable for, of the four strikes during that period, only one had the support of the Amalgamated Association. The strike of 1905 was, as the exhibits attached to the affidavit of Mahon show, an outlaw strike condemned by the Amalgamated Association for the Association publicly urged all men to return to work. The strike of 1919 was caused and called by the plaintiff itself (H. A. Munch, Hogan, G. E. Moore, Hedley). And in 1926 the Amalgamated Association had no organization in New York City. The 1919 strike which resulted in a 100 per cent. walkout of the plaintiff's employees was especially stressed by Mr. Hedley in his communication to Mayor Walker, stating the reasons why he could not attend a conference with Mayor Walker, Coleman, and Shea in July of 1927. These reasons were because his attendance at that conference to negotiate with the representatives of the Amalgamated Association would result in a violation of the Company's agreement with the Brotherhood and the solidarity of the 23 Brotherhood would result in their quitting as a body as they did in 1919. Mr. Hedley attributes the strike of 1919 to the fact that the delegates of the Brotherhood were insulted in a hearing before the Board of Estimate which hearing, as Mr. Hedley does not state, was for the purpose of securing a higher fare for the Company. This strike was in no way caused by the rank and file of the Brotherhood and there was no assurance given to the plaintiff's employees that their wages would be increased if a higher fare were obtained. The members of the General Committee, without consulting the men in the Brotherhood in any way, advised the plaintiff's employees to quit work, telling them at the same time that the object of the strike was to compel the granting of a higher fare to the plaintiff (A. J. Munch, Hogan, G. E. Moore, Menalis, Strohmenger, Hedley, Hummer, IHackett, MlcEnaney). The strike of 1926 came as a result of dissatisfaction on the part of the members of the Brotherhood themselves with the.action of the General Committee in agreeing with the Company, against the known wishes of the men, to renew the 1925 wage agreement (Coleman, A. J. Munch, G. E. Moore, Cook, Driscoll, Corrigan, Beggs). That strike was carried on by the Consolidated Railway Workers of Greater New York which was in no way affiliated or associated with the Amalgamated Association. The Amalgamated Association entered New York after the 1926 strike had terminated in the latter part of July, and after the Consolidated had disbanded (Coleman, Fitsgerald, Shea, A. J. Munch, G. E. Moore, Cook, Driscoll, Corrigan, Beggs). The officials of the Consolidated were not officials of the Amalgamated Division, but were taken in individually as members upon their own individual application in the same manner as any other employee becomes a member of the Amalgamated Association. The statements contained in the plaintiff's motion papers indicating that there was a connection between the Amalgamated Association and the Consolidated Union are refuted by the fact that such connection was not shown to exist 24 and did not in fact exist with the knowledge or authority of the Amalgamated Association (Coleman, Shea). The leader of the Consolidated Union, Lavin, was expelled from the Amalgamated Association because of his communist views (Coleman). The End Sought by the Defendants. Except in so far as the complaint in this action charges a bona fide attempt on the part of the defendants to organize the employees of the plaintiff's company into a union for the betterment of their welfare, the affidavits submitted by the defendants emphatically deny that the end sought by any of the defendants are those alleged in the complaint. In other words, the affidavits submitted by the defendants show that their efforts to unionize the plaintiff's employees have for their object their unionization for the sole purpose of bettering their economic and social conditions. (Coleman, Shea, Mahon, Frayne, Green and others). The defendants have intended and intend no injury to the plaintiff in any way or to its Brotherhood. They have no malice to indulge or spite to vent. These labor officials are serious and responsible leaders of nation-wide institutions. Any charge that they are actuated by malice as they go about the discharge of their duties does not merit serious consideration. The conditions under which the plaintiff's employees work make unionization desirable and amelioration necessary. The Amalgamated Association has in other parts of the United States been able to accomplish much amelioration (Mahon, Fitzgerald, Shea). The plaintiff's employees are not only underpaid, but the conditions under which they work call for improvement. For example, the affidavit of Mr. Stryker of the faculty of Columbia University shows, by statistical comparison of wage rates paid by the plaintiff and those prevailing in Chicago and Bost -: nnder union conditions, that the men are more poorly 25 paid in New York regardless of the higher cost of living prevailing here; and that groups of workmen among the Interborough Rapid Transit employees are receiving less than the minimum American standard of living for a family of five, even when working seven days each week. The affidavit of Mr. Mahon confirms Mr. Stryker's findings as to wages. Mr. Mahon's affidavit further shows a list of abuses in working conditions such as unpaid for deadhead runs, which only genuinely independent labor organizations can correct. As examples of the plaintiff's disregard for the welfare of its employees, cases are cited of employees living in Brooklyn who are compelled to report for work in the Bronx, and, upon reaching the Bronx, are told to return to Brooklyn. The employee has thus spent two to three hours in travel and is actually paid only for the time of running a train. This results, too, in the workman being compelled to spend much more than a full working day on the Company's business without receiving adequate compensation (Foster). Such practices have been everywhere abolished wherever the Amalgamated Association has made contracts with transit companies (Mahon, Fitzgerald). Many of the plaintiff's employees are required to report for work early in the morning ýafter they have had only four or five hours of sleep. It appears also that the shifts of the men are so arranged that men are in fact kept on duty nine or many more hours though they are paid for only eight hours (Beggs, Menalis, Doak). The Means Used by the Defendants. The defendants' affidavits clearly show that the means employed by the defendants have been wholly lawful; that no secrecy has been used in the organization of the Amalgamated Association, for their meetings have been open, and have been publicly announced; that, in fact, as Mr. Hedley's affidavit shows, several of the defendants personally advised him in writing that the employees of the 26 plaintiff were being organized by the Amalgamated Association. There are explicit denials that any such number system as is charged in the affidavit of Mr. Hedley is being used, or has been used, by the Amalgamated Association in its organization (Coleman). Indeed, secrecy would be useless were it attempted because the enormous number of spies maintained by the plaintiff leaves nothing secret in the affairs of its employees (H. A. Munch, Hogan, G. E. Moore, Hedley, F. Menalis, Strohmenger). The defendants' affidavits show that men who have joined the Amalgamated. Association have done so voluntarily and with full knowledge of all the facts. This is shown by scores of affidavits submitted by the defendants from men who have so joined and who have sought to persuade others to do likewise. All of the prospective members of the Amalgamated Association sign their own applications voluntarily and pay an initiation fee of one dollar. The proof shows that their impelling motive for joining the Amalgamated Association has been their desire to better their working conditions, results which the Amalgamated Association has accomplished in other cities of the United States. All the employees of the plaintiff who have joined the Amalgamated Association have done so because of their dissatisfaction with the plaintiff's Brotherhood. The affidavits submitted by the plaintiff which have not been specifically controverted and those submitted by the defendants show that no means other than proper persuasion have been used by the defendants or are being used, to accomplish unionization. The methods used, as indicated by the affidavits, are generally as follows: employees are solicited by their friends, by circular letters, by announcement of the meetings, etc., or men who hear about the Amalgamated Association, its achievements and objects, and who are dissatisfied with the Brotherhood voluntarily apply for membership. No violence, threats, fraud, or over-reaching conduct is used to induce the plaintiff's 27 employees to become members of the Amalgamated Association. The American Federation of Labor representative, Hugh Frayne, has no direct control over the activities of unionization, for he acts only as counsel and gives general advice. Meetings are held openly by the Amalgamated organizers on fixed dates and in public places and membership is secured because of the fact that men are convinced of the value of the Amalgamated Association as opposed to the Brotherhood. The Amalgamated Association is not an ephemeral organization. It wants only satisfied and hence permanent members (Corrigan, Mililio). Any and all picketing or loitering on the plaintiff's premises is flatly denied (Coleman, Fitzgerald, Shea). Those who join the Amalgamated Association are constantly advised to be loyal to the public and to the interest of the Company in giving service to the public (Coleman). And this is required by the Constitution of the Amalgamated Association. Coleman specifically denies that he ever made any false statement to any one with respect to the number of the plaintiff's employees in the Amalgamated Association. The affidavit of Wm. J. Thompson submitted by the defendants specifically denies the statement of Mr. Hedley that the Brotherhood members are unwilling to join the Amalgamated Association. It specifically and emphatically denies the statements made concerning him in the affidavit of Hugh Mulligan which states that he (Thompson) told him (Mulligan) that, if he could get the Brotherhood members to join the Amalgamated Association, he (Thompson) would be made president of its local division. The affidavit of John Beggs submitted by the defendants denies, as is stated in the affidavit of Joseph Felix submitted by the plaintiff, that he (Beggs) showed Felix a letter from the defendant Joseph G. Phelan to the effect that the workers in the subway barn at 180th Street West were 100 per cent. Amalgamated, and, furthermore, spe 28 cifically denies statements in the affidavit of said Felix attributing to himn (Beggs) threats of violence to one Moriarty unless the latter joined the Amalgamated Association and the said Beggs specifically denies other threats of violence stated, in the affidavit of Joseph Felix, to have been made by him against Brotherhood delegates. The affidavit of Arthur M. Mead, submitted by the defendants denies that he told Joseph Woolf, whose affidavit submitted by the plaintiff attributes such statements to the said Mead, that he would get fifty cents for each applicant to the Amalgamated Association that he signed up, and that the speak-easy of Harry Bark was no longer used as Amalgamated headquarters; the affidavit of said Mead also denies the affidavit of Robert J. Spitzer submitted by the plaintiff on this application which states that he (Mead) stated that he wanted the injunction enforced against him to make a test case. The affidavit of James J. Driscoll submitted by the defendants denies the statement in the affidavit of John J. Lallyon submitted by the plaintiff to the effect that he (Driscoll) was at the house of Joseph G. Phelan. Said Driscoll relates in his affidavit that he was reported by said Lallyon to have been at said meeting, and so reported to have been a sympathizer with the Amalgamated Association, all of which was false, and that, as a consequence of this false report by the said Lallyon, he was discharged from the plaintiff's employ after twenty-two years of faithful service. The affidavits of Joseph Hackett and Edward Corrigan submitted by the defendants specifically deny the affidavit of Peter Mack submitted by the plaintiff in which the latter stated that they had thrown stones at the plaintiff's cars and the affidavit of Edward Corrigan that he ever called motorman Ribler a "scab" as he is attributed to have done by the affidavit of said Mack. The affidavit of Joseph Wicker submitted by the defendants denies that he ever threatened conductor Felix with 29 a beating for "squealing" on men and that he threatened the Brotherhood members with violence for standing in the vicinity of the meeting place of the Amalgamated Association, which statements were attributed to him in the affidavit of Joseph Bloomington submitted by the plaintiff. The affidavit of Peter McEnaney submitted by the defendants denies the statement in the affidavit of Joseph Bloomington submitted by the plaintiff to the effect that he (McEnaney) stated that he lost a fountain pen, a card, and a dollar bill in a subway washroom, as a consequence of the search for which, said Bloomington stated in his affidavit a membership card of McEnaney was found, for McEnaney specifically states that he made no announcement that he had lost anything and the fact was that someone stole the card from his pocket. These specific denials with respect to the plaintiff's affidavits, although in some instances relating to unimportant matters, are emphasized, nevertheless, to show the general unreliability of the plaintiff's proof. Both Coleman and Frayne, who attended the conference with Mayor Walker on July 26, 1927, specifically deny under oath that the agreement reached at that conference between the plaintiff and the Amalgamated Association related only to the re-employment by the plaintiff of the few men who had previously been discharged by the plaintiff. It was clearly agreed at the conference that the plaintiff was not to discriminate in the future against any of its employees who might be or become affiliated with the Amalgamated Association and this understanding of the agreement was subsequently separately confirmed by Mayor Walker. Facts as to the Origin of the Brotherhood of Interborough Rapid Transit Comptny Employees. The complaint and the affidavit of Mr. Hedley show the conception of a plan for the plaintiff's Brotherhood to destroy, by bargaining with its individual employees, the opportunity for genuine collective action. The affidavits submitted by the defendants show thatl the Brotherhood was born in duress, fraud, and over-reaching and certainly was not the result of any voluntary effort on the part of the plaintiff's employees to better their own conditions, for the improvement of which they have been struggling with the plaintiff. The complaint and the affidavit of Mr. Hedley, though carefully and cautiously worded, show that the Brotherhood was the conception of the plaintiff's officers and was devised as a means by which the Company could successfully combat collective efforts on the part of its employees to bargain with it concerning wages and conditions of employment. The allegations of the complaint and the statements in the affidavits of Mr. Hedley with respect to the inception of the Brotherhood negative the purposes which are in other places stated to be its objects. The story of the inception of the Brotherhood, however, is more clearly told in the affidavits of the defendants and in the admission on the part of the plaintiff's officers and their confederates that the Brotherhood was the work of the legal department of the plaintiff and of one Ivy Lee receiving a salary of $12,000 a year in addition to salaries received by him for similar services from a large number of other corporations. The facts show that, at the time of the strike of 1916, Mr. Hedley, then General Manager of the plaintiff, called a meeting of a few of its employees at the Manhattan Casino and at that meeting he proposed to them the idea of an organization of employees attached solely to the plaintiff. He himself appointed a committee of employees to do the organizing. In this committee was W. J. Thompson whose affidavit, submitted by the defendants on this application, merits careful study. It specifies in detail the inception of the Brotherhood. At the first meeting of the committee so appointed, Mr. Hedley distributed printed applications for membership in the 31 Brotherhood and other literature and told the members of the committee to distribute these applications among the employees. This was practically all that was done by the plaintiff's employees themselves or any of them to bring about the organization of the Brotherhood. The rest was done by the legal department of the plaintiff and its officers. The Constitution of the Brotherhood was prepared by Ivy Lee and James L. Quackenbush without the participation even of the employees whom Mr. Hedley had appointed as an organizing committee (Walters, Coleman, Davenport, Fitzgerald, Beggs, Thompson, Richards, Brewster, Public Service Commission Hearings). The affidavits of the last mentioned individuals show that the employees of the plaintiff had done or heard nothing about the Brotherhood before they were given application blanks, to sign, and the affidavit of Thompson shows that the members of the committee protested against the drafting of the Constitution by the legal department of the plaintiff. The same affidavits show that the plaintiff's employees soon realized that the Brotherhood was purely a sham organization imposed on them by the plaintiff for the sole purpose of preventing effective organization on their part, and Thompson, with others appointed by Mr. Hedley on the organization committee, resigned therefrom for this reason. These affidavits likewise show that men who joined the Brotherhood did so either under the impression that it was for their benefit or because they were threatened with loss of their jobs if they did not join it. In the light of these facts, all statements by the plaintiff endeavoring to show that the Brotherhood is primarily an organization furthering the interests of the plaintiff's employees cannot be taken seriously. How the Brotherhood Has Been Operated. The actual operation of the Brotherhood, as its inception would indicate, has not been in the interest of the 32 plaintiff's employees and clearly shows that it has operated solely in the interest, of the plaintiff, whose officers and agents conceived it. A detailed study of the Constitution of the Brotherhood, showing it to be a sham instrument as far as the plaintiff's employees are concerned, will be hereinafter made. A study of the Constitution itself will show the purpose of the plaintiff and the actual operation of the Brotherhood under the Constitution reveals that conditions are quite as bad as one would predict from an analysis of the Constitution itself. While the Constitution provides for the election of delegates to a General Committee every two years, elections of delegates are frequently not made at all, and, at the meetings held to elect them, few employees are in attendance. At those elections votes are counted by persons who are appointed by the President of the General Committee, who are usually running for re-election or are interested in the election of some candidate, and the wages of the tellers are paid by the Company (Coleman, Beggs, Thompson, Brewster, Davenport, Foster). There is no way in which the honesty of the tellers can be supervised by members of the Brotherhoods' locals. Moreover, cases are related in the affidavits of the appointment of delegates by the president of the General Committee itself. Such a case occurred during the strike of 1926 when the General Committee was packed by appointees of Connolly, president of the Brotherhood (Thompson, Cook, Munch). Although the Brotherhood Constitution requires one delegate to be elected from every 250 men, Connolly appointed three delegates from a group of 150 men who were not on strike. When objection to this action on the part of Connolly was made by some members of the Brotherhood, they received no redress at all. One case is related where the appointed delegate was never seen by the men whom he was supposed to represent (Mililio, Beggs). The division of the employees into locals is just as arbitrary as the Constitution indicates and the power of 33 the General Committee to make even more arbitrary divisions is realized in practice. It appears that the General Committee has by order consolidated four different locals in spite of the unanimous disapproval of the members of these locals (Betty). The absence of control, by the plaintiff's employees, over their delegates to the General Committee is abundantly evidenced by the General Committee's conduct in 1921 in agreeing with the plaintiff to a reduction of wages, to the extent of ten per cent. after the plaintiff's employees had twice voted in opposition to such a reduction. This reduction of wages occurred while large increases of salary were made to the plaintiff's officers (Hearings before Transit Commission 1926, Nichols, Thompson). The 1926 strike was caused by the fact that the members of the General Conmmittee agreed to a renewal of the 1925 wage scale after it had been rejected by members of the local divisions of the Brotherhood. It was dissatisfaction with the Brotherhood that caused this strike (Menalis, Thompson, Driscoll, Coleman, Fitzgerald, Bauer, McEnaney). After the strike of 1926, a number of locals voluntarily voted in favor of the restoration of seniority rights, which had been taken away from the plaintiff's employees who struck, but the men's own General Committee refused to allow such a restoration (Richards). Another striking instance of the operation of the Brotherhood is to be found in the action of Local Division No. 7 which voted to cease paying death benefits and Brotherhood dues. At least, so far as death benefits were concerned, this was a local matter in as much as death benefits were originally paid under the by-laws of the local. President Connolly, however, informed the men that it was unconstitutional to repeal a by-law unless there was a referendum and a two-thirds vote in favor of the repeal; upon a referendum, 78 votes more than were necessary for a two-thirds vote approved of the repeal. 34 President Connolly, nevertheless, told the men that the General Committee would not agree to the repeal of local by-laws and that the same could not be done, as a result of which, the men still continue to pay death benefits in Local Division No. 7 (Bauer, Corrigan, Toal). The case is related where men were wrongfully forced by order of President Connolly to pay three months' dues to the Brotherhood in advance (Betty). The delegates of the local unions on the General Committee are paid by the plaintiff, supposedly for the perfolrmance of transit duties. Thus President Connolly, supposedly a motorman on the Ninth Avenue Elevated, is rarely seen on duty as a motorman (Hearings before Transit Commission 1926). Moreover, spies employed by the plaintiff to some extent are recruited from the General Committee of the Brotherhood and the numerous spies employed by the plaintiff are used to prevent employees from attending meetings of the Amalgamated Association. They are present even at Brotherhood meetings and report to the plaintiff the names of any individuals who dare criticize the Company or the conditions under which they work, as a consequence of which, such individuals are called to account by the plaintiff's officers and threatened with discharge (Cook). Cases are related where delegates on the General Connmittee who plead too vigorously on behalf of men whom they were supposed to represent were told that they had "talked themselves out of a job" (Strohmenger). The management of the Brotherhood's finances appears to have been very corrupt, and the whole control over the finances of the Brotherhood by its members is very inadequate. There is related the case of an item in a Brotherhood financial report denominated "dark horse." When some employees demanded an explanation of this item, they were told to see President Connolly and were advised by him that they would be discharged if they pressed their inquiry (Hogan). The tyrannical management of the 35 Brotherhood has caused the meetings to be sparsely attended and has: caused some who did attend them and who endeavored to express themselves freely to leave them in disgust (McGrath). The plaintiff, in its efforts to escape blame for the discharge of men without cause, has adopted the practice of having them discharged by Connolly, President of the Brotherhood, for "disloyalty" to the Brotherhood, and after they are discharged by the Brotherhood, the Company confirms such discharge (Ditter, McGuiness). For such discharge there is no appeal to anyone under the Constitution or under the terms and conditions of the Two Year Contract. In cases where the Company itself discharges its employees, appeals appear to be fruitless for the General Committee refuses to consider them. Even delegates who have expressed themselves too freely in General Committee meetings have been forced to resign therefrom (Walters, Ditter). Instances are related where an employee who requested to see the Contract between the General Committee and the Company was refused this privilege by a delegate. It is apparent that the governing committee of the Brotherhood does not act in the interest of its members as is the case in a bonac fido union (Diehl). The general apathy on the part of the members of the Brotherhood, due to its ineffectual operation for their interests and the inability of the members adequately to control their own delegates, has resulted in a general feeling among the plaintiff's employees that their organization is purely an instrument used to further the plaintiff's own interests. The Brotherhood lacks that independence, democratic organization, and representative principle which characterize a true labor union (Martin, Mililio, Neftelberger, Bruce, Ditter, Beggs, Frayne, Mahon, Fitzgerald, Coleman). 36 The Two Year Contract. Its History and Its Implications. The facts detailed in the defendants' affidavits compel the conclusion that the Two Year Contract was obtained by duress, over-reaching, and smart bargaining on the part of the plaintiff. It was simply a case of the men having to agree to the Contract or to lose their jobs, including their seniority rights and their interest in any benefit funds. In order for these men to know what they were agreeing to, they would have had to read 1. The Ratifying Instrument; 2. The Two Year Contract of June 30, 1927; 3. The incorporated contract of March 19, 1927; 4. The yet more remote and detailed contract setting out wage rates and conditions of employment; 5. The entire Constitution of the Brotherhood which was made a part of the Contract. There is no pretense in any of the proof submitted by the plaintiff that all, or even a major part, of these documents were ever submitted to the men when they agreed to the Contract. Yet it is claimed that these thousands of men intelligently and voluntarily assented to this contract, all within a day or two although the signing was done in shifts of large numbers of men during working hours (Mililio, Kile, McGrath). Many men asked to see the Two Year Contract and the Constitution which the Ratifying Instrument said they had read or heard read before signing. This was refused and most of the men were forced to sign anyway. That the men were threatened with the loss of their jobs if they did not sign is a fact appearing in almost all of the affidavits of the workmen submitted by the defendants. (That none were discharged shows the effectiveness of the threat.) They were shown only the Ratifying In 37 strument. A large number of men refused repeatedly to sign until compelled to do so by threats of discharge (McEnaney, Davenport, Thompson, Corrigan, Hackett, Toal, Coleman, Nichols, Doak, Brewster). A large number of men stated that, at the time that they were signing, they did not consider their signature valid or binding (Thompson, McEnaney and Gettinger). Such as were given booklets containing the Constitution and the Two Year Contract received them after they had signed (Martin, Thompson, Beggs, Richards, H. J. Martin, McGrath, Bauer). None of the men were shown the underlying wage agreement which the Two Year Contract incorporated (Beggs, Richards). Later in June, the men were again approached-this time by notaries and forced in the same manner to sign a ratification, sworn to by a notary. This appears in most of the affidavits of the workmen submitted by the defendants. Many of them again refused. The men expostulated that the terms of the ratification differed from the terms of the Two Year Contract, especially in respect to the conditions of discharge (Thompson, for example). The case is cited of the notary's requesting signatures of employees who were not even present (A. Martin, H. Martin, De Palos). There had been no change in the conditions of the labor mart corresponding to the revolutionary change introduced by the plaintiff in attempting to bind the men to work for two years. No case has ever occurred in the industrial history of this country where a body of industrial workmen, whether skilled or unskilled, organized or unorganized, have been asked to bind themselves individually not to leave their employment (Mahon). A group of workmen would not voluntarily give an absolute promise to work for two years and get in return what is in substance nothing but a promise of employment at the will of the employer. When it is further considered that under the provisions of the Contract and the Constitution of the Brotherhood the men are practically effectively bound to 38 work for life, the inference that its execution was procured by duress and over-reaching becomes irresistible. The Plaintiff's Condiuct Has Been Culpable. Regardless of whether the defendants or any of them are guilty of such conduct as under ordinary circumstances would cause an injunction to be issued against them, the record abounds with proof that the plaintiff is in no position toi claim the assistance of a court of equity. The affidavits submitted on behalf of the defendants together with public documents such as those of the Public Service Commission and the Transit Commission condemn the plaintiff's conduct and show that it has not so conducted itself that it can seek relief from a court of equity. The;statements in the complaint concerning the alleged iniquitous conduct of the Amalgamated Association in the strike of 1916 further detailed in the affidavit of Mr. Hedley were obviously made for the purpose of showing the defendants to be trouble makers and of Inducing the court to believe that recurrences of similar character would take place unless this injunction is granted in the terms prayed for by the plaintiff. That strike was the result of a breach of faith on the part of the plaintiff with Mayor Mitchell and the Amalgamated Association. The hearings before the Public Service Commission and the affidavits submitted herewith show that in 1916, the plaintiff Company agreed with Mayor Mitchell, members of the Public Service Commission, and the Amalgamated Association that disputes between the plaintiff and its employees represented by the Amalgamated Association would be submitted to arbitration. In spite of this arbitration agreement and while the plaintiff was still manifesting its willingness to abide by said arbitration agreement, it was secretly causing its employees individually to agree not to become members of the Amal 39 gamated Association or any other union and had conceived the scheme of forming a company union which resulted in the formation of the Brotherhood. The representatives of the Amalgamated Association were present at a meeting of the Bar Association of the City of New York with representatives of the plaintiff and a representative of the Public Service Commission with a view to arbitrating certain matters pursuant to the agreement to arbitrate which had been previously made. While this meeting was in progress, word came to the representatives of the Amalgamated Association that the plaintiff had been coercing individual employees to enter into an agreement not, to join the Amalgamated Association. The representatives of the Amalgamated Association, upon learning of this deception and violation of the arbitration agreement, then and there asked the plaintiff's representatives whether the plaintiff had actually done these things. The reply was in the affirmative. Thereupon the Amalgamated representatives demanded that the question as to the plaintiff's right to sign up the men in this fashion should be arbitrated. This question Mr. Quackenbush, counsel for the plaintiff, refused to arbitrate, stating that to do this would involve his personal honor. It was under these circumstances and for this breach of faith that the enraged employees of the company went out on strike (Fitzgerald, Thompson, hearings before Public Service Conmission). The plaintiff charges that the Amalgamated Association used force and violence during the strike which ensued. If such force and violence were used, they were caused by the unjustifiable conduct of the Company which exasperated irresponsible individuals into committing acts of violence (Davenport, Strohmenger). The fact is, however, as is indicated by the hearings before the Public Service Commission above referred to, that the Interborough during the strike of 1916 employed gunmen through the well known firm of professional strike breakers, Berghoff Bros. and Waddell, and that these 40 very strikebreakers were kept forcibly at work and thoroughly beaten when they refused to go on. The hearings before the Public Service Commission indicate clearly that force and violence were resorted to continuously by the Company against the men on strike (Hearings before the Public Service Commission, Fitzgerald). The next strike in the history of the plaintiff's Company was in 1919. The history of this strike has already been fully narrated. It indicates the deceptive methods that the plaintiff has restored in order to further its own ends (Davenport, Strohmenger). Moreover, the report of the Transit Commission dated December 10, 1927 (Coleman) proves that hundreds of thousands of dollars have been spent by the Company in maintaining spies and detectives in its endeavor to prevent its employees from voluntarily organizing or from coming in contact with any organization other than the Brotherhood. The same report indicates that the Company has spent large sums of money in maintaining the Brotherhood organization, in supplying quarters for it, in paying salaries to Brotherhood officials who are supposed to represent the interests of the Brotherhood members; that all of the aforesaid expenditures are illegal and operate to deprive the City of New York of profits to which it is entitled under the Dual Contract between the City of New York and the plaintiff. The plaintiff has also spent large sums of money in giving extra compensation to men nominally employed as motormen and guards or in some other capacity for shadowing employees suspected of sympathizing with the Amalgamated Association and preventing its employees from attending Amalgamated meetings (Ditter. Menalis, FH. A. Munch, Brewster, Hogan, C. E. Moore). The alleged Contract does not forbid attending meetings. All of these expenditures are unlawful and the sum so expended should have gone either to improve the service rendered to the public or to the City of New York under the Dual Contract. 41 The plaintiff has endeavored to create, and has succeeded in creating, an atmosphere of terror among its employees by constantly putting them in fear of discharge for the slightest excuse which in many cases constitutes no excuse at all when in fact the real excuse which has not been given is that they are thought to be in sympathy with the Amalgamated Association. The affidavits submitted by the defendants detail instances in which men were discharged for such matters as refusing to break in a new man on a car dangerous to life, for fixing a pair of pliers which needed repair, for coming late to work on one occasion (ordinarily never a ground for discharge) and for similarly slight reasons. The affidavits indicate that men suspected of entertaining any sympathy for the Amalgamated Association are continually discriminated against in numerous ways, such as for instance, being given no time off from duty, being demoted, and the like, in an effort to set an example to others who might sympathize with the Amalgamated Association. They show that the plaintiff has unjustly favored officials of the Brotherhood who are under its domination (Bruce, Hensler, Ditter, Driscoll, Toal, Thompson, Strohmenger). The Company has constantly denied its employees freedom of speech, discussion and debate. It has sent its employees notices threatening them with discharge for merely attending Amalgamated meetings (Coleman, Moore, Diehl, Betty). At public meetings' of the Amalgamated Association hundreds of person, hired for that purpose by the plaintiff, have blocked streets adjacent to the meeting hall so as to frighten away employees of the plaintiff who wished to attend the same to hear discussion and have threatened those who appeared at these meetings with all manner of reprisals. Its employees have been kept from congregating in groups of more than two or three for fear that they would discuss either membership in the Amalgamated Association or the betterment of their 42 conditions (Munch, Brewster, Hogan, Moore, Mililio, Davenport, Poster, Coleman, Toal). The plaintiff has not only endeavored by the above methods to keep its employees from joining the Amalgamated Association, but has even prevented them from operating through the Brotherhood to improve their conditions, for the plaintiff has maintained spies in the local meetings of the Brotherhood to report to it the names of any employees who should voice complaints against the plaintiff (Cook). The browbeating tactics of the plaintiff have manifested themselves along lines other than those which affect the welfare of its workers. A notorious example of this is the fact that in the last public election the plaintiff's employees were threatened with punishment of some sort if they did not vote against proposed Amendment No. 3 to the State Constitution which authorized a bond issue for new subways in New York (McCarty). The plaintiff re-employed the defendant Lavin, who had been expelled from the Amalgamated Association for radicalism, at a much higher salary than he had previously received and obviously with a view to secure from him information with regard to the activities of the defendants. Almost every affidavit submitted by the defendants contains a statement that very many employees of the plaintiff fear to join the Amalgamated Association lest they be discharged, and, in some instances, specific names are given of such employees who have expressed such fears. It is obvious that hundreds more have feared to give such expression (Corrigan). Facts Bearing on the Balance of Convenience. The affidavits of Coleman, Shea, Frayne, and Green show the great injury which trade unionism and the working classes of this country will sustain if the injunction is granted. The damage to the defendants would be 43 irreparable and immeasurable and would seriously affect the membership of trade unions throughout the United States and would subject the trade union movement in this country to attacks of radical labor elements and probably make it difficult if not impossible for the more conservative labor elements represented by the trade unions to prevent many in the ranks of labor from resorting to violence to accomplish their objects. The granting of an injunction would affect the good will of trade unions in this country and tend to alienate those who would otherwise become affiliated with them, and particularly would result in a loss to the Amalgamated Association of all the expense it has been put to in organizing in this city. It would be impossible for the defendants, or any of them, to be adequately compensated by any bond which the plaintiff might be compelled to give as a condition of obtaining the preliminary injunction, because the many injuries and losses, intangible though very real, resulting to organized labor as a consequence of an injunction would be nonrecoverable because incapable of ascertainment and measurement. The plaintiff, on the other hand, would not sustain any substantial injury at all from the denial of the injunction, even assuming that the Two Year Contract with its employees is a valid one because no injury to its property or business has been threatened and no strike is involved or even contemplated in this case. The affidavit of Mr. Hedley shows that he is convinced that no strike could be brought about by the Amalgamated Association. Furthermore, since the conference with Mayor Walker on July 26, 1927, no strike has been talked about. This is shown by affidavits submitted by the defendants (Fitzgerald, Mahon, Shea, Atkins, Coleman, Nichols, Kile). In fact, the Amalgamated Association is opposed to strikes. As the provisions of its Constitution show, it requires in all cases the submission of all controversies to arbitration, and a strike requires the consent of the Executive Board 44 of the Amalgamated Association (Constitution of Amalgamated annexed to affidavit of Mahon, Coleman, Shea., Mahon, Fitzgerald). E. THE DEFENDANTS' AFFIDAVITS: BACKGROUND FACTS OF THIs CASE. There are collected for the court and presented at this point such background facts as bear on the questions in this case. In point VIII of this Brief, these background facts are shown to be material and relevant to this litigation. The background facts are discussed in the following order: I. The Work Contract. A. Disparity in Bargaining Power. 1. When Men Are Unorganized. 2. When Men are Organized in a Company Union. 3. In This Case. B. The Promise Not to Join a Union. 1. An Improper Part of the Work Contract. 2. Incompatible with Real Company Unionism. 3. Its Effect on the Survival of Inter-company Unionism. II. Company Unionism versus Trade Unionism. A. What Can a Bona-Fide Company Union Accomplish? B. What Can Only a Genuine Inter-company Union Accomplish? C. Company Unions are at the Very Most Promising Experiments. D. A Possible Sequel to Company Unionism, 45 I. The Work Contract. Because the work contract is the heart of the employeremployee relationship in modern industrial society, the economists have long considered it from every angle. The experts who have made affidavits in this case have considered this general discussion of the work contract an important background fact and have discussed the general aspects of the work contract and the wage bargain. Professor Brissenden has incorporated in his affidavit excerpts from some two score of classical and current economic writers on the subject. This general discussion of the work contract is accompanied by many specific comments on the long printed Two Year Contract, incorporating several unusual provisions, which each individual employee of the Interborough Rapid Transit Company has signed. A. Disparity in Bargaining Power. 1. When Men are Unorganized. The experts have expressed themselves in no uncertain terms concerning the disparity in bargaining power when men are not effectively organized. This opinion is centered about the following five points: a. The size of modern business organization. b. Disparity in the stake in the contract. c. Disparity in waiting power. d. Disparity in the technique of bargaining. e. Disparity in knowledge and control of the market. a. This disparity of the two parties to the work contract arises in part from the size of modern business organization (Professors Brissenden, Commons, Seager, Seligman and Mr. Beyer); when one party to the contract is an employer of many men and the other party is an 46 individual among these men, there is nothing approaching equality between the two parties to the contract. In modern large scale business, the work contract is a takeit-or-leave-it offer on the part of the employer. Moreover, it is increasingly common for the modern corporate employer to associate with other employers in the same industry (Professor Seager). Quotations from the writings of Professors John Bates Clark, Clay, Hollander, Seligman, Walker, and the Final Report of the Commission on Industrial Relations, emphasize the same point. As Professor Clay points out, the worker acting singly sells labor retail, while the employer buys it wholesale. Furthermore says Professor Seligman "modern conditions of work have become collective or group conditions and bargaining to be equal must be collective or group bargaining." b. Disparity in bargaining power between the employer and employee results also from the disparity in their stake in the contra.ct (Professors Cohen, Evans and Slichter; quotation from Mr. Lewisohn). For the employer it is no life and death matter, only his profits are concerned. The worker has everything at stake. His life and his family welfare depend upon the work contract. c. Disparity in bargaining power is in part disparity in waiting power. Human services are the most perishable of all commodities; if today's labor is not sold today, it is lost forever because no one has yet discovered how today's labor can be sold tomorrow. The worker's costs are all overhead costs. They go on without diminution whether he works or not. He must sell promptly at some price in order to obtain funds to meet these unavoidable expenses. (Professors Seager and Slichter). The worker has no reserve or resources which will enable him to hold out for a fair price for his labor. Delay may mean privation for him but no great loss or inconvenience to the employer. The necessity of labor unions to secure for the 47 individual workman an opportunity to deal with his employer on a basis approaching equality and free from the duress of immediate want of a daily wage is reiterated in quotations from Professors Adams and Sumner, Catlin, John Bates Clark, Clay, Commons, Commons and Andrews, Hollander, Hoxie, McNeill, Patterson and Scholz, Ryan and Seager, and the present Chief Justice Taft. d. A most important element of disparity in bargaining power is disparity in the technique of bargaining. This is very important because the modern wage contract requires a gTeat deal of skill in negotiating. (Professors Douglas, Evans, Saposs, Commissioner of Labor Statistics Stewart, Miss VanKleeck and Mr. Soule.) The employer is a trained, educated and experienced bargainer. He can hire expert counsel and secure market-wide information. The average workman is seldom capable of driving as good a bargain as a skilled and shrewd negotiator. He has neither the time nor the opportunity to become a skilled bargainer himself, nor has he the means to employ high priced counsel to negotiate and to draft his work contract. "Moreover, the employer as a negotiator has the moral ascendency of class and tradition. Economically he is still a 'master' dealing with his 'men'" (Quotation from Professor Hollander). e. A fifth element of the situation which makes employer and employee economic unequals in bargaining is disparity in knowledge and control of the market (Quotations from Professors Catlin, Clark and Seager). The employer's technical equipment is supplemented by intimacy with general trade conditions. The individual worker is typically ignorant of market conditions, of the supply of workers, of alternative jobs, of wages and working conditions in other plants. Without organization with his fellows, he has no way of removing his ignorance. Under a system of individual bargaining, the competition for 48 jobs among necessitous men may unduly depress wages. Employers on their part, however, often have actual or tacit understandings to refrain from competing freely for employees by advancing wages. They are reluctant "to spoil the labor market," and, even when they are not combined in employers' associations as often happens, a gentlemen's agreement may prevent them from competing actively for workers and forcing wages up to the competi tive level (Quotations from Professor Seager and Pat terson and Scholz). The discussion of the individual worker's disadvantage in bargaining for his job leads the students of the labor problem to consider how these disabilities can be removed. The experts agree that collective bargaining through inde pendent labor unions is very important. The facts on this are set out in detail under the later heading, "What Can Only a Genuine Inter-company Union Accomplish?" 2. Disparity in Bar-gaining Power Though Men Are Orgalnized in a Company Union. Expert opinion is overwhelmingly of the view that the disparity in bargaining power between employer and em ployee is not removed when men are organized in compan3 unions, sometimes called shop committees, works councils. or employee representation plans (Professors Brissenden, Couper, Douglas, Evans, Fitch, Kallen, Saposs, Slichter, Suffern and Tead, Commissioner of Labor Statistics Stew art, Messrs. Beyer and Soule) just to mention a few of the outstanding statements. The following four reasons are emphasized: a. With a company union the men lack trained independent negotiators. Their representatives are not free to devote time to study of the questions at issue. They do not have access to bodies of facts. They lack contacts with other groups of workers whose support they might secure. This matter of the lack of skill in bargaining on 49 the part of company union representatives is stressed in quotations from Professors Blum, Catlin, John Maurice Clark, Douglas, Fitch, Hollander, Hoopingarner, Ruefner, Seligman, Taussig and Mr. Selekman. b. Men in company unions lack funds for research, for lawyers' fees and for relief (strike benefits) in time of stress. "Many company unions have no dues and those which have them usually collect very small amounts. Consequently company unions, as a rule, have very small reserve funds" (Professor Slichter). c. The fact that each company union is confined to the employees of one enterprise, usually to one establishment, deprives it of two sources of strength which a trade union has-financial support and the moral strength which comes from association with large numbers of wage earners in the same industry throughout the country (Professors Fitch and Slichter; quotations from Professors Catlin, Fitch and Taussig, and the Final Report of the Commission of Industrial Relations). d. The crux of the problem of bargaining power in the case of a company union is the matter of independence from management (Professors Brissenden, Couper, Edie, Evans, Fitch, Kallen, Slichter, Suffern and Tead, Commissioner of Labor Statistics Stewart and Mr. Soule). The company union spokesman is himself an employee of the employer with whom he bargains and is subject to discharge by him. He is, therefore, bargaining at a disadvantage. He cannot be expected to be as assertive, vigorous and persistent in pushing the interests of the men as a representative independent of the company, and employed by the men (Professor Slichter and Mr. Soule). The employer's control of the workers' means of livelihood gives him an incalculable advantage in any bargain. "Company unionism forces labor to rely too much upon te 50 benevolence of the employer. If the employer is a splendid example of tolerance, understanding and good-will, he can make company unionism succeed. But in case of misunderstanding, the company union is powerless and cannot represent labor's needs effectively" (Professor Edie). "It is obvious that an employee dependent upon the company for his position and not protected under his company union plan from arbitrary discharge (as he is not protected in the present situation) if he manifests zealous activity on behalf of the employees' interest, and not in a position to call upon specially qualified pleaders to represent him in joint deliberations and having no access to facts about economic conditions in his industry as a whole, finds he has no ability to bargain on terms of equality with the company representatives in arriving at the terms of employment" (Professor Tead). There is no guarantee against the company union "becoming a subservient organization for such purposes as the employer desires to use it. By discrimination, by under-cover means, by deception and otherwise, the employer holds it in his power to control elections and manipulate contracts" (Professor Evans). The company union weakens the collective bargaining power of the workers by depriving them of the skilled bargaining assistance of independent officers free from the fear of discharge or discipline or other form of victimization (Professor Couper). "In the last analysis, collective bargaining with unionism comes back merely to what the employer is willing to give his men. If he is unwilling to give them anything, their only resort is to strike, and relatively the employees under the company union are in a weak position when it comes to a strike" (Professor Suffern). Thus, "collective bargaining under company unionism is a weak weapon in adjusting wages unless the employers are so generous and fair that they pay relatively high wages anyhow" (Professor Edie). When they are generous the men hold their security not 51 of right but at sufferance-and it may at any time be taken from them. The same point is made in excerpts from the writings of Professors Blum and Fitch, Messrs. Lauck and Studensky and the Final Report of the Commission on Industrial Relations. "Company unions are the creation of the employer and as such are subject to dissolution at his pleasure; their power of decision is usually limited by a managerial veto; their leaders are untrained and liable to dismissal, as union officials are not; and their limited resources and membership make impracticable a strike to enforce their demands. Where good conditions and wages do prevail, it is usually because of the liberal policy of the management, rather than because of the strength of the shop committee" (Professor Blum). Illustrations of "the inadequacy of the company union as a device for overcoming the disparity in bargaining power between individual workmen and employers" are given by two experts. Professor Slichter points out the failure of company unions to produce important changes in the shop rules of industrial enterprises. In all of the many enterprises which he has visited in a four-year study of trade unions and company unions for the Institute of Economics, he has found almost no instance where the company union has influenced the shop rules in any important way. Morris L. Cooke states: "I have never yet encountered an instance of where employee opinion has prevailed against employer opinion in a matter of moment, and as a matter of fact, questions of gravity are not considered appropriate for company union consideration. In nearly every company union agreement, provision is made for appeals on questions which cannot otherwise be settled. Appeals are all but un!i7own,";/;: <~,.-'.il;.;.- -^ 52 3. Disparity in Bargaining Power in this Case. Several of the experts in the field comment on the disparity of bargaining power between the Interborough and its employees (Professors Brissenden, Evans, Seager, Slichter, Tead, Tufts and Ware, Messrs. Cook and Soule). It is pointed out that the Contract represents not the free meeting of minds but the acceptance by the employees of terms dictated by the employer (Professor Seager and Mr. Soule); that it is in fact an absurdity to assume that, because an I. R. T. worker signs a statement that he has read a certain agreement and that he is free and uncompelled in his signature, he is free and of equal bargaining power (Professor Evans); that in a city like New York where the labor market may fairly be said to be normally supplied with plenty of unemployed labor, the Company is in the position of distinct advantage in negotiating and bargaining (Tead); that, as now organized, the employees are in no sense "fully competent to take up and adjust with their employers, all questions as to rates of pay, hours of labor and any other working conditions that may hereafter arise as stated in the first paragraph of the Constitution" (Mr. Cooke). Many of the experts analyze the "Two Year Contract" executed by individual employees of the Company, and comment on the one-sidedness of this Contract (Professors Brissenden, Cohen, Commons, Couper, Edie, Fitch, Rottschaeffer, Seligman, Suffern and Tead, and Messrs. Blaisdell and Cooke). Their comments supplement the detailed analysis of this Contract included elsewhere in this Brief. They point out that in return for what the workers have obviously surrendered they appear to have received very little. They have no guarantees whatever as to continuity of employment and few as to the character of employment (Mr. Cooke). They have bound themselves for two years without any real guarantee of employment by the Company (Professor Couper). The one-sided character of the Con 53 tract is due to the presence in the system of company unions of factors that tend in a subtle manner, to render the worker's contribution to the determination of wages and other elements in the employer and employee relations more nominal than real (Professor Rottschaefer). The two-year promise is not safeguarded by provisions which are customary under good management: a method of jointly arriving at legitimate causes of discharge; a means of interpreting causes of discharge in individual cases to the satisfaction of the company and the individual; provisions for unemployment insurance, health insurance and old age pensions (Professor Tead). The experts agree that, if a labor organization is to have any effective strength, it must be in a position to protect its members from discharge. But the Brotherhood has conceded, and the workers have confirmed, the agreement that employees may be discharged for incompetency, inefficiency, carelessness, changes in economic conditions, the use of alcoholic beverages, dishoiesty, insubordination,,refusal or neglect of duty, physical i~icapacity, expnlsion from the Brotherhood, or for joining thee Amalgamrvated Association of Street and Electric Railway Workers; and as to the last seven underlined causes the Company's right to discharge is absolute. Professor Seligman declares that "this contract is much less favorable to the employees than an ordinary contract of employment"; that "the ostensible advantage of this work contract really turns out to be a disadvantage, because the employee abandons all right to leave the service while the company reserves entire freedom to discharge him"; that there is no compensating consideration for his promise not to join the Amalgamated Association. Mr. Blaisdell made a special study of discharges and on the basis of his study of the reports of investigations made for the United States Bureau of Labor Statistics and the United States Commission on Industrial Relations, he confirms the statement of other experts (notably Professors 54 Brissenden, Fitch, Tead) that the causes which the Interborough lists for discharge include all the causes for which any conmpacny ordinarcily wants to discharge employees. His examination of the literature on labor turnover-resignations and discharges of employees-leads him to state that, "All students of the causes of discharge are agreed that it is extremely difficult to determine the immediate cause of dismissal. According to the statements quoted above, the arbitrable causes in the Interborough Rapid Transit Co. are incompetency, inefficiency, carelessness, and intoxication or the use of alcoholic beverages. It is impossible to draw a line between 'inefficiency' (arbitrable) and 'neglect of duty' (non-arbitrable); 'incompetency' (arbitrable) or 'carelessness' (arbitrable), may easily become 'neglect of duty' (non-arbitrable)." The protection afforded by the provision for arbitration is there shown to be largely illusory. Some of the experts' affidavits point out that the Contract indicates such disparity in bargaining power between the Interborough and its men as to amount to duress (Professorsi Cohen, Ogburn, and Ware and Mir. Nelles). The modern industrial worker is "rarely in a position to read long documents and to understand the obligations which he incurs by signing them. Nor is he in a position to consult a lawyer to determine his rights. Indeed, if the applicant for a job were to ask the employment superintendent to be permitted to take the papers home for such a purpose he would render himself ridiculous and would have very little chance of receiving employment. Hence, if he needs work, he signs without knowing what is legally involved" (Professor Cohen). Mr. Nelles further emphasizes the "unreality of consent" implied in the men's acceptance of this contract, pointing out that only individuals and combinations that can deal on equal terms, with a real option of refusing to deal at all if they cannot agree upon arrangements satisfactory to both, can protect 55 themselves by contract. Professor Ogburn "questions whether the contract between the Interborough Rapid Transit Company and the Brotherhood of Interborough Rapid Transit Company employees could be said to be a contract freely entered into by the men, when the position of the men is viewed broadly against the total situation." B. The Promise Not to Join a Union. 1. An Improper Part of the Work Contract. The experts unite in condemning the promise required of the men not to join the Amalgamated Association of Street and Electric Railway workers or any other independent organization of their fellow workers. Their discussion centers about the following five points: a. The anti-union contract is unnecessary from the point of view of good management. b. It does not contribute to the ends sought by management. c. It is contrary to the key principles of American institutions. d. It is contrary to the spirit of modern economic life. e. It is an interference with individual liberty and hence contrary to public policy. a. Such a promise is unnecessary from the point of view of good management. Freedom from interruption of service can be much better secured by "decent arrangements" for arbitration, mediation and conciliation in cooperation with the unions (Professors Tead and Todd). Professor Suffern cites the experience of the Philadelphia Rapid Transit Company as proving that requiring employees to sign an agreement not to join a union is unnecessary in the street railway industry. Professor Keister points out that "the anti-union contract is a radical de 56 parture from customary labor contracts and the initiator of such radical departures should assume the burden of proof to show that the customary practice is no longer adequate to protect the parties involved as well as society at large." Just how much a departure from current practice is such a non-union contract in companies maintaining company unions will be shown in the discussion of the next point in this Statement of Facts. b. Moreover such a contract does not contribute to the ends sought by management. It defeats its own purpose (Professors Tead and Todd and Miss Van Kleeck). "Unwilling acquiescence by an individual workman who signs and keeps an agreement under threat of failing to secure or losing a job, cannot produce goodwill or afford a basis for worker-management cooperation in industry or protect the public against the danger of strikes in public utilities" (Miss Van Kleeck). A show of arbitrary power in imposing on men company unions with anti-union employment contracts is likely to provoke in turn an appeal to more radical types of labor activity, to militancy, direct action, and repudiation of the slower, more orderly processes of contractual relationship (Professor Todd). c. "The anti-union contract is contrary to the key principles of American government and institutions" (Mr. Nelles). "Such anti-union employment contracts are unAmerican and savor of arbitrary despotism" (Professor Todd). "This restraint, if approved by the courts, must strike at the very essence of those qualities in men which are essential to the exercise of the privileges and responsibilities of American citizenship" (Mr. Bruere). d. Such a contract is contrary to the spirit of modern economic life. "The court is asked to reverse the progress of the whole of the last century and to return to mediaeval '. The essence of our modern economic life is 57 freedom, freedom to contract, freedom to act; and this freedom attaches to both parties of the contract, the employer and the employee. The present contract leaves the freedom of the employer unimpaired; it even, as we have pointed out, increases if possible that freedom. On the other hand, it restricts in notable respects, actually if not technically, the freedom of the employee" (Professor Seligman). "There is little genuine liberty when men have, in order to earn their living, to sign away so much of their freedom and to make their future so uncertain as under the contract in this case. Were this condition to become very general, the working people of this country would have little more freedom than mediaeval laborers and serfs without any of the safeguards against extreme exploitation which custom, law and self-interest imposed upon the mediaeval lord or employer" (Professor Cohen). e. Such a condition of employment is an interference with individual liberty (Professors Cohen, Commons, Douglas, Fitch, Kallen, Slichter and Todd; Mr. Bruere and Miss Van Kleeck). "A contract such as the one involved in this case, not only seriously limits the liberty of the employees of the Interborough Rapid Transit Company, but also the liberty of all those in similar occupations connected with the American Federation of Labor" (Professor Cohen). "A contract between employer and employee should cover only his services not his opinions * * * If courts sustain an employment contract prohibiting an employee from joining a labor organization, why not a contract prohibiting a man from joining a fraternal order, a church, a cooperative society, a political party, or from marrying?" (Professor Todd). "If this is good law where labor unions are concerned, it would seem also to be good law as regards membership in churches and fraternal organizations" (Professor Commons). "The condition of employment seems to me destructive of the principle of 58 voluntary cooperation between employers and employees" (Mr. Bruere). "When non-membership in a trade union is made a condition of employment, the employee is frequently subject to a compulsion as real and effective as if physical force were used" (Professor Fitch). "In its economic effects this contract appears to require that the workman, in order to sell his services, must also sell his right to improve his future bargaining status by joining a trade union. 'X * In the first place, the right of the worker to improve his future bargaining position involves more than merely his opportunity to raise his wages. It involves his ability to feed and clothe hisi family and to educate his children. When he sells his freedom to improve his bargaining position, he is practically selling the opportunity of the members of his family to be better clothed, fed, and housed, and the opportunity of his children to obtain a better education" (Professor Slichter). "The contract not to join a union itself is vicious. It is signed always under coercion. It requires of the worker not only to give an honest day's: work for an honest day's pay; it compels him also to give up his right to seek such help as he may lawfully find effective to make sure that it is an honest day's pay. It requires him to surrender his constitutional freedom of association" (Professor Kallen). As an interference with individual liberty, such a contract is contrary to public interest (Professorsi Brissenden, Douglas, Edie, Fitch, Kallen, Seager, Seligman, Slichter, Squires, Todd, Commissioner of Labor Statistics Stewart, M]iss Van Kleeck, and Messrs. Bruere and Nelles). "The agreement itself in prohibiting freedom to join an outside union is opposed to the public interest because it fails to observe the fundamentals of human relationships in industry-equality in power to make agreements and free will in participating in them" (Miss Van Kleeck). "Restraints which produce such effects are not, in my judgment, in the public interest" (Professor Slichter). "It;scarcely seems to be good public policy, nor therefore good 59 law, to permit or to require any man to sign away essential rights" (Professor Todd). These statements of the experts that the promise not to join a union is an improper barnacle on the work contract are supported by the summary of Recommendations of the U. S. Coal Commission on Labor Relations in the Coal Industry, which recommended that "individual contracts which are not free-will contracts be abolished" lumping them with such "destructive labor policies as the use of spies, the use of deputy sheriffs as paid company guards, and house leases which prevent free access and exit." The Federal Council of the Churches of Christ of America, in a press release in December, 1920, expressed the emphatic opinion that: "When, for example, an applicant for work is compelled to sign a contract pledging himself against affiliation with a union, or when a union man is refused employment or discharged, merely on the ground of union membership, the employer is using coercive methods. * * * It seems incumbent upon Christian employers to scrutinize carefully any movement, however plausible, which is likely to result in denying to the ýWorkers such affiliation as will in their judgment best safeguard their interest and promote their welfare, and to precipitate disastrous industrial conflicts at a time when the country needs good-will and cooperation between employers and employees." 2. The Promise Not to Join a Union is Incompatible with Real Company Unionism. The promise not to join a union is not new in the work contract, but the affidavits of several students of the labor problem point out that it is unusual in companies which have organized their employees in a company union. Mr. Allen cites twelve street railway companies beside the plaintiff company which have company unions. Of these, two request that, their employees become members of the 60 independent labor union; two have expressed the willingness to deal with organized labor if their employees express such a desire; there are seven whose constitutions either state definitely that they will not discriminate against any employee because of union membership or make no mention of the subject; and only one, the Brooklyn Manhattan Transit Co., which, like the plaintiff, has a contract in which the employees promise not to become members of a trade union. He points out that the companies having company unions constitute a pronounced minority among the street railway companies of America, and only a minority of this minority are concerned with anti-union promises. Miss Reticker finds the same situation in a larger group of company unions covering a variety of industries and including many of the best known company unions in the country. Out of a random sampling of forty-four which were studied, twenty-three state definitely, in their constitutions or in other published literature, that they do not discriminate against employees because of union membership. Another seventeen firms do not mention the subject. Two Pacific Coast firms discriminate against members of the I. W. W. because "its constitution is not in accordance with the laws of the United States." Only two companies, the Brooklyn Manhattan Transit Company and the New Haven Railway System bind their employees against membership in "other associations or organizations." She concludes that enlightened bona fide company union plans and the contract not to join a union are inherently incompatible. The affidavit of Herman Oliphant quotes a letter from Mr. Noel Sargent, Manager of the Industrial Relations Department of the National Association of Manufacturers (January 4, 1928), which reports upon the replies to a letter which the association recently sent to 389 companies believed to have company unions, inquiring whether they use any form of contract requiring employees not to 61 join outside organizations. Replies from 182 companies received up to January 4 indicated that 169 have no form of non-union contract, 10 have a definite anti-union contract (in one company for certain key positions only), and 3 have definite written discrimination in favor of union members (in one case in one department only). This larger sampling confirms the opinion that the anti-union contract is quite exceptional in company unions. Professor Brissenden cites the anti-union clause of the plaintiff's Contract as an indication that the plaintiff's Brotherhood is not a bona fide company union. He points out that no soundly formulated company union plan should need to shelter itself from attack by such a questionable device. In the appendix to his affidavit he quotes Mr. Lauck's recent book on Political and Industrial Democracy to the effect that: "Almost all plans of employee representation have inserted clauses in their constitutions stating that there shall be no discrimination against employees who may be members of labor organizations. Many plans also add special provisions for protecting union members among the employees who may feel that they have a grievance on that account, and to insure proper redress in the event that they should meet with discrimination through acts of unsympathetic foremen or officials. All of the outstanding and typical plans have provisions of this description." 3. The Effect of Such Anti-Union Contracts on the Survival of Intercompany Unionism. Under this heading the following four tendencies are cited: a. The plaintiff's Contract, seeking to prevent its employees from joining the union, if reinforced by the injunction to prevent the union from trying to organize, would tie the hands of the union almost completely (Pro 62 fessor Douglas). Many other employers would follow suit, and trade unionismi in this country would be doomed (Professor Commons and Associates), b. The increasing size of business organizations and the consolidation of control in modern industry mean that widespread adoption by large companies of agreements sanctioned by the courts, which would bind employees not to join any union outside these large companies would interfere seriously with the growth of trade unionism (Miss Van Kleeck). Professor Brissenden points out that the 1925 Census of Manufactures show that 33.3 per cent of the manufacturing concerns of the company employ 90.3 per cent of the wage earners. Adoption of the antiunion contract in one-third of the plants would thus deunionize practically the entire manufacturing industry of the country. c. Employers in business for profits with executives interested in immediate rather than long run profits will take advantage of such contracts to abolish unionism. Enlightened employers will not take advantage of the situation but will be embarrassed when competitors use this contract to destroy unionism and then cut wages and lower working conditions (Professors Evans, Couper, Seager). d. Suppositions such as the preceding overlook the reaction of the workmen. "Such contracts will seriously impede the normal healthy growth of the independent intercompany unions along peaceful, sound, constructive lines and reduce the union's capacity to play a helpful, constructive, cooperative part in the conduct of industry" (Mr. Beyer). But rather than a final and decisive defeat of the historic labor movement will come a greatly embittered industrial struggle with a new form of unionism, aggressive, militant and destructive. This may mean a 63 marked weakening of the prestige of the courts (Professors Evans, Commons, Saposs, Seager, Squires, Todd, Ward, Ware, Messrs. Bailey, Beyer, Cooke, Soule and Wolman). This point is further illustrated in the comments of the experts on the development of radicalism if company unionism becomes dominant. II. Company Unionism versus Trade Unionism. Another set of background facts involved in this case is concerned with the fundamental principles of workers' organization. The Interborough, by its Brotherhood, calls attention to the questions: what is a bona fide company union; what can it accomplish for the workers, and for industry; how does it compare with the regular trades or industrial union? By its efforts toward present and future exclusion of union members, the plaintiff's course of action raises question of the functions performed by independent labor unions, the record of unions in the past, and their attitudes and status at present, especially in view of recent experiments in union-management cooperation. This leads naturally to a discussion of what will happen if the antiunion contract stands and company unions become dominant. A. What can a Bona-Fide Company Union Accomplish? As to what a bona fide company union can do, Professors Brissenden, Seager and Suffern, and Mr. Hunt refer to the success of the Philadelphia Rapid Transit Company's employee organization, and various experts cite the plans of the International Harvester Company, of Swift & Company and the Columbia Conserve Company. The excerpts in Mr. Brissenden's affidavit mention also the plan of the Colorado Fuel and Iron Company and the Partnership plan of the Dutchess Bleachery, Inc. None of these 64 companies discriminate against union members. As has been indicated, the Philadelphia Rapid Transit Company has announced its willingcess to deal with any union which two-thirds of its employees wish to join. The Columbia Conserve Company has stated publicly its preference for a union agreement if the canning industry were organized and one group of workers in the Dutchess Bleachery are union men, cooperating in the shop committee or company union. The things which a company union can accomplish may be classified as follows: 1. Cooperation to improve the service when the goodwill of employees is enlisted through granting a voice in determination of wages and working conditions, and payment according to production as in the case of the Philadelphia Rapid Transit Company (Professor Suffern). With intelligent leadership on the part of both employee and employer, the company union has great possibility of solving the particular and local problems of one company (Professor Evans). Professor Catlin points out in his book that company unions can secure cooperation through teaching workers something of the problems and difficulties of management when employees are given recognition and opportunities for collective expression. 2. Representation of the workers in determining conditions under which they work. Mr. Selekman, in "Employe Representation in Steel Works", cites that the men of the Minnequa Steel Works secured such important gains as the eight hour day and an opportunity to participate in revising wage scales, though until the men throughout the industry secure effective representation in determining wage standards, those employed in one plant have no effective share in determining their earnings. 3. Discussion of individual or group grievances so that employer, manager or superintendent has a chance to get 65 the worker's point of view, even though it leaves it entirely to him as to whether he will remedy these grievances (Commissioner of Labor Statistics Stewart-quotation from Selekman, "Employee Representation in Steel Works"). 4. A greater security in the worker's job because of the right to appeal to higher officials against the decisions of foremen and superintendents (Selekman, ibid.). 5. Participation in cooperative arrangements such as insurance, pensions, profit sharing and investment. The Philadelphia Rapid Transit Company employees have gone far in stock ownership. "During the last five years 10,000 employes have bought over 220,000 of the 600,000 shares of the company. This is said to have given them 'practical control' because the stock is held intact and administered for the men by their own trustees" (Professor Suffern). B. What Can only a Genuine Intercompany Union Accomplish? As was indicated in the discussion of disparity in bargaining power and the need for collective (trade union) bargaining, the experts are agreed that there are many functions, important to the worker, the employer, and the public, which only an independent union can perform. Their discussion centers about the following seven points: 1. Inter-company unions are necessary to standardize and stabilize wage levels. 2. Independent unions are necessary to adjust the grievances which arise in the shop. 3. Only inter-company unions can influence labor legislation. 4. Only national unions can provide adequate insurance benefits. 5. Only independent unions can provide a proper spirit for cooperation with management, extending even to discipline of members and prevention of strikes. 66 6. Inter-company unions have achieved notable success in recent years in union-management cooperation. 7. Organizations of their own forming and control are necessary to protect the workers' freedom and personality. 1. Inter-company unions are necessary to standardize and stabilize wages (Professors Brissenden, Couper, Douglas, Fitch, Saposs, Suffern, Todd and Ward, Commissioner of Labor Statistics Stewart, and Mr. Soule). It is pointed out that wages are determined on market areas, not company areas and workers should be organized on the same basis to secure an effective voice in the determination of their wages; that workers engaged in a similar occupation compete with each other in a sectional or national market, since labor is potentially or actually mobile (Professor Saposs). The trade unions which began as local shop organizations in the days of local industries have had to unite into national unions to be effective in these days of national markets (Professor Brissenden). A company union "limited to one shop or to the employees of one concern does not protect the 'fair' employer from the 'nibbling of competition' and the underbidding of the meanest employer. It is thus likely to drag the conditions of labor in all plants down to the level of the conditions granted by the meanest man" (Douglas). ""Moreover, the wage level cannot be determined and can only be disturbed by a company union in one establishment accepting a decrease in pay. Unless an organization has an entire monopoly of the field, a reduction of wages, even if apparently agreed to by a company union, results only in throwing the wages in that establishment out of line with wages in other establishments in the same industry. The attempt to readjust wages throughout the industry to this sporadic decrease accepted by a company union upsets the industry both from a production and a sales point of view and costs the industry infinitely more than is saved in wages (Commissioner of Labor Statistics Stewart). 67 The excerpts in the appendix to Mr. Brissenden's affidavit reiterate that wages, hours and working conditions are determined by nation-wide forces (Professors Catlin, Commons, Ely Fitch, Hoopingarner, Hoxie, Patterson and Sholz, Messrs. Lewisohn and Studensky, and the Final Report of the Commission on Industrial Relations). They point out that the trade union principle of standardization, uniformity in regard to the conditions of work and pay, and the trade union practice of trade agreements establishing such standards and regulating changesi during the life of the agreement have "bulwarked the standards of life" (Professor Ely). Professor Cohen states that, "There has grown up the legal recognition that the welfare of the whole community demands that workers be allowed to join trade unions strong enough to protect their interests and to promote a higher standard of living in that large part of the community engaged in industry." Professor Commons points out that "the trade union is, and has been, an effective force for the raising and maintenance of wage scales" and "economists of all countries agree that high wages are essential to public welfare and social progress as well as to efficiency, both mechanical and personal." 2. Only an independent union can adjust the grievances which arise in the course of the work day in any shop. Professor Evans states that "the trade union gives the worker freedom to assert his ideas as to how an industry should be managed, as to what constitutes proper remuneration, as to what constitutes overworking. Mr. Wolman cites "protection against arbitrary discharge, the equal division of work during periods of unemployment, the protection of piece rates, the handling of fines imposed for a great variety of reasons", as fundamental matters requiring a trade union to be handled effectively. Professor Suffern states that the inter-company union is "able to establish a considerable degree of security for the individual by incorporating rules in an agreement which pro 68 tect him against the abuse of power by the management." Similar opinions are frequent in the excerpts in Professor Brissenden's affidavit. Mr. Selekman comments on the bitterness engendered by the opposition of foremen and superintendents in attempts to secure the adjustment of grievances in company union plants which he has studied. Professor Catlin summarizes the situation: "Once on the job, the position of the unorganized worker is not much better. He presumably gets his pay; but so long as there are others outside the gate, who, he knows, would like nothing better than to take his place, he cannot be too sure of himself. He does not dare to question the weighing or measuring of his output and the reckoning of his pay; he must submit with patience to the persecution of a 'bully-ragging' foreman; he may even be required to spend his hardearned wages in a company store or to live in a ramshaclde company house. Numbers capable of taking concerted action call for attention, if not respect. Grievances get a hearing and intolerable conditions are removed. The interests and predilections of the workers come to be consulted in making alterations of policy or change in methods." 3. Only inter-company unions can provide for the enactment of labor laws. As Professor Douglas points out, "Legislation has been found necessary to protect men as well as women from the effects of unrestricted competition, and its passage and subsequent enforcement depends largely upon the efforts of labor itself, together with that of the independent humanitarian groups." Professor Hoopingarner, Justice Brandeis, Justice Taft, and Mr. Lewisohn emphasize the same point in their writings. 4. Only inter-company unions with their insurance funds drawn from a wide area can afford the worker adequate protection against sickness and unemployment (Professor Douglas, Mr. Soule; quotation from Professor Fetter). 69 5. Only independent unions can provide a proper spirit for cooperation of workers and management (Professors Evans, Kallen, Seligman, Slichter, Suffern, Ware, Messrs. Beyer and Soule, Commissioner of Labor Statistics Stewart, and Miss Van Kleeck). Mr. Soule points out that cooperation implies freedom of action. "No one can cooperate unless he has the power to refuse or withdraw cooperation. The employees of a concern, must be able, as a group, to refuse to cooperate." Mr. Beyer emphasizes that cooperation is "basically a matter of confidence between employer and employee", and that only the standard trade unions "have the power to mobilize the collective faculties of their members to cooperate effectively with management." Professor Suffern indicates that "the best regime for the development of personality and capacity on the part of both management and employee is one in which the psychology of conflict has been displaced by common interest in working on a project which is to the mutual advantage of both parties." Professor Slichter analyzes the reason why "the trade union is far superior to the company union as an instrumentality for improving technical efficiency." He points out that, since the immediate effects of technical improvements are injurious to workers, their cooperation cannot be secured unless they have definite assurance that their interests will be protected when labor saving devices are introduced. Commissioner of Labor Statistics Stewart summarizes his judgment, "It is my opinion and experience covering 45 years that trade unions (inter-company unions) provide the best basis for cooperation between labor and management to increase production and maintain a continuity of services." And Miss Van Kleeck calls union management cooperation the most effective form of worker-management cooperation, because it is based on free and willing agreement. 70 The authorities covered by the excerpts add additional opinions on this matter of the basis for cooperation, emphasizing the point that responsible unions can accept responsibility in.cooperation (Professors Fitch, Hoopingarner and Taussig, Messrs. Blethen, Cowdrick, Hillman, Macy, Older, Studensky, and The Chicago Joint Board, Amalgamated Clothing Workers of America). Professor Hoopingarner mentions that the trade union has established a "highly organized and responsible authority among workers for the employer to deal with and labor unions have demonstrated their willingness and ability to cooperate in the promotion of better principles and processes of finance, production, and control." The union's authority may go so far as to prevent strikes, as Professor Taussig and Mr. Studensky point out. "Hiring and firing, standards of wages, piece rates, apportionment of tasks, the powers of foreman, shop rules, may come to be settled not by the employer at his untrammeled discretion, but by conference, agreement, contract. When such methods of settlement, such participation in the contract of employment, are established and in effective operation, the strike may be subjected to greater restriction than can be imposed in their absence" (Taussig). The union's responsibility may go so far also as to discipline members. Commissioner of Labor Statistics Stewart in his affidavit states that "it is easier to get along without trouble if the worker, who is inclined to be troublesome, knows that he has an organization of his fellows not only in that factory but in the entire industry that will not stand by him if he is manifestly wrong and is in a position to replace him with a better man instanter." The Chicago Joint Board, Amalgamated Clothing Workers of America in their report on "The Clothing Workers of Chicago, 1910-1922", point out that 71 "Along with its new rights and powers, the union takes on corresponding responsibilities and obligations. The spirit of the agreement demands that while the workers' rights are to be enforced, their obligations under it shall also be observed and the power of the union shall be employed if necessary to enforce their observance." 6. Inter-company unions have achieved notable success in recent years in union-management cooperation. Many of the experts' affidavits cite illustrations of union-management cooperation which have gone beyond the usual trade agreements covering wages, hours, working conditions, and adjustment of grievances, to constructive cooperation to increase production, eliminate waste, and maintain continuity of service (Professors Brissenden, Commons and associates, Couper, Douglas, Evans, Kallen, Saposs, Seligman, Slichter, Suffern, Tead, Todd and Ware; Commissioner of Labor Statistics Stewart, Messrs. Beyer, Soule and Wolman, and Miss Van Kleeck). Instances of union-management cooperation are the following: "(1) The Railroad Shop Crafts, which include the following seven organizations: The International Brotherhood of Blacksmiths, Dropforgers and Helpers; The International Brotherhood of Boiler-makers, Iron Shop Builders and Helpers of America; The International Brotherhood of Electrical Workers of America; The International Brotherhood of Stationary Firemen and Oilers; The International Association of Machinists; Sheet Metal Workers' International Association; and The Brotherhood of Railway Carmen. (2) The Amalgamated Clothing Workers of America. (3) The International Printing Pressmen and Assistants of North America. (4) The International Photo-Engravers' Union of North America. 72 (5) The International Moulders' Union of North America. (6) The United Brotherhood of Maintenance of Way Employees and Railway Shop Laborers. (7) The Amalgamated Association of Street and Electric Railway Workers of America. (8) The United Textile Workers" (Professor Slichter). Professor Saposs mentions the following additional cases of "amicable relations with employers through collective bargaining and trade agreements that have continued unbroken for several decades or over a quarter of a century: (9) Glass industry-three unions: Flint Glass, Glass Blowers. Window Glass. (10) Potteries-Pottery Workers' Union. (11) Small independent Steel Mills-Amalgamated Association of Iron, Steel and Tin Workers. (12) Musicians Union in Theatres, Movies, Opera, Orchestras. "During the history of these amicable relations, the unions have devised in cooperation with management machinery for increasing production through more efficient methods." Mr. Beyer's affidavit describes in detail the program of systematic cooperation of the railroad shop craft unions involving 85,000 men on the Baltimore and Ohio, Canadian National, and Chicago and Northwestern Railways, and outlines the benefits secured during the last five years as follows: "From Standpoint of Employes: Greatly reduced petty misunderstandings and grievances. Speeded up adjustment of grievances. Greatly improved conditions of employment in respect to working facilities, sanitation, lighting, safety, fatigue and the like. 73 Provided better tools and- methods of doing work. Greatly improved quality of work performed and raised standards of workmanship. Provided improved methods of education and training of employes. Provided steadier employment. Contributed materially to the wage income of the employes. From the Standpoint of Management: Improved discipline. Reduced labor turnover. Secured better grade of employes. Reduced defects and failures of equipment in service. Improved workmanship and quality of service. Increased output. Secured new business. Reduced hazards of employment, travel and shipment. Improved the courtesy of the personnel in its dealings with the public. Greatly raised the morale of the service. Secured public good will." P. J. McGrath, Fourth International Vice-P-resident of the Amalgamated Association of Street and Electric Railway Employees, in his affidavit describes the cooperative agreement entered into between his union in Pittsburgh and the management of the Pittsburgh Railway Company, and the practical workings of this cooperative plan. An entire section of the excerpts. in Professor Brissenden's affidavit is devoted to this matter of union management cooperation. The statements of labor's cooperative attitude as expressed in official publications of labor unions and the speeches and writings of various labor leaders (William Green, President of the American Federation of Labor; Matthew Woll, Vice-President; Bert M. Jewell, President of the Railway Employees Department, of the American Federation of Labor; Sidney Hillman, General President of the Amalgamated Clothing Workers 74 of America; Warren S. Stone, late President of the Brotherhood of Locomotive Engineers) are most significant. So also are the appraisals of the actual working of union management cooperation plans by the employers as well as the impartial observers among the teachers of labor economics. Daniel Willard, President of the Baltimore & Ohio; Sir Henry Thornton, President and Chairman of the Board, and John Roberts, General Supervisor of Shop Methods of the Canadian National Railways, express their satisfaction with the recent developments of union management cooperation on their lines. L. K. Comstock, President of L. K. Comstock and Company, New York, describes cooperative measures in the electrical construction industry. The testimony before the Commission on Industrial Relations contained many significant statements by employers of the value of collective bargaining and cooperative dealings; Joseph Schaffner, pioneer in cooperative handling of shop discipline, and in arbitration of disputes in the clothing industry; T. I. Hogan of the Stove Founders Defense Association which has maintained industrial peace by cooperation with the Moulders Union since 1891; Charles Francis, President of the Printers' League of America; Fremont Older, Managing Editor of the San Francisco Bulletin; John Wanamaker, and Julius Henry Cohen, Counsel for the Manufacturers' Association in the Cloak Industry. The influence of the practise of cooperation on union policy is cited by several observers. Professor Kallen notes that "Unions which begin with revolutionary doctrine develop, under the influence of cooperation, into bulwarks of their industries." Professor Commons believes that "in general the tendency of unionism, when once the employer has recognized it and dealt with it on an equality is to give up revolutionary ideas of overthrowing capitalism and adopt partnership ideas with the employer." The responsibilities of union activity, particularly of cooperative activity, have an educational effect upon the 75 individual workmen also. The quotation from Andrew Carnegie points out how important this is: "It is not the intelligent workman, who knows that labor without his brother capital is helpless, but the blatant ignorant man, who regards capital as the natural enemy of labor, who does so much to embitter the relations between employer and employed; and the power of this ignorant demagogue arises chiefly from the lack of proper organization among the men through which their real voice can be expressed." 7. Organizations of their own forming and control are necessary to protect the workers' freedom and personality. The experts show undivided opinion on this subject (Professors Cohen, Commons, Douglas, Edie, Kallen, Saposs, Seager, Slichter, Suffern, Ward, Ware, Commissioner of Labor Statistics, Stewart, Messrs. Beyer, Soule, Wolman and Miss Van Kleeck). Their analysis of the situation emphasizes the following elements: a. "Membership in a trades-union removes the coercive element which membership in a company union imposes. It gives the individual worker a chance to speak for himself, without fear of the opinion of the management on the industrial matters in which he is concerned. This fear is a large factor in both his efficiency as a worker, and his sense of personal worth. It reduces the former to a rigid routine, and a minimum of actual effort. It degrades the latter." (Professor Kallen.) b. "One of the most valuable functions of trade unions is to afford the wage-earning class a means of being articulate. It is of great importance from the standpoint of the community in general that wage-earners have authentic mouthpieces which can present the state of mind of the working people, their aspirations and their grievances, to the rest of the community. The greatest grievance of all is absence of an opportunity to be heard." (Professor Slichter.) 76 c. "Labor organizations guard workers in industry against developing a general feeling of inferiority, futility and despair, and so prevent apathy and servility with its blighting effect on industrial and community morale from permeating the rank and file of wage earners." (Mr. Beyer.) d. "Wages, hours and working conditions govern the greater part of the modern employee's waking life, and extend their influence in economic, social and psychological ways throughout his whole existence and that of his family. The power to determine them is therefore more important than the political power which might be exercised by any dictator. For this reason, the employee's freedom and the heeds of his personality require that he be granted a considerable influence over them, such as can be exercised only by strong unions independent of management" (Mr. Soule). Professor Seager points out that the trade union has a decided tendency to increase the worker's sense of freedom and personal importance as a factor in industry and Professor Commons comments, "If unionism was completely withdrawn from the American industrial situation there would be very little left of independence and freedom on the part of the workers and they would have extremely little to say about working conditions." The excerpts from economic literature in Mr. Brissen(len's affidavit indicate the same opinion, that labor unionism is not merely desirable but necessary to give the workers a sense of freedom, security and self-respect (Professors Edie, Hoopingarner, Kallen, Seligman, Messrs. Lauck, Lewisohn and Myers). Mr. Lewisohn, as an employer, makes a significant statement that "There is no doubt that our present system does not adequately satisfy the desire of the workman for status." 77 Professor Edie, likewise comments: "It has been said that the root evil of the present industrial order is that it affords to the ordinary worker in industry no means of expression and no chance of responsibility of active citizenship. The Labor movement is primarily committed to the removal of this root evil, and to the achievement of status of influence, responsibility and dignity." The section of forty-four excerpts on Modern Industry, the Worker and Trade-Unionism include many statements by public officials, employers, university professors and official and unofficial investigators concerning the vital utility of labor unions for labor, industry and the community, particularly as they offset the effects of modern large scale industry and conserve the workers' personality and freedom. C. Company Unions Are at the Very Most Promising Experiments. The experts' appraisal of company unions leaves no doubt of their feeling that this type of workers' organization while useful, involves distinct limitations. Their discussion centers about the following eight points: 1. Company unions and inter-company unions are alike better than no union. 2. Cooperation of workers and management can be attained under company unionism in the exceptional cases where the spirit is right. 3. Company unions can supplement inter-company unions. 4. Company unions are not a substitute for trade unions; they have many limitations. 5. Company unions are inadequate in a crisis. 6. The company union is too new to pass judgment. 7. Public interest requires that both types of workers' organizations should be allowed to develop freely and competitively. 78 8. The older and proved device-unionism-should not be trade for an unproved one-company unionism. 1. Company unions and inter-company unions are alike better than no union. As Professor Evans points out, "both types of unions have advantages over the non-existence of any union. Each type has its advantages over the other. What is necessary is to weigh the advantages from the points of view of employer, employee and the public," 2. Cooperation can be attained under company unionism if the spirit is right. "Thorough-going cooperation can be attained under either form of relations. In both cases the attainment of cooperation is primarily dependent upon the attitude of management and the methods which it utilizes to establish an integration of interests. In both cases the psychology and technique of conflict must be displaced by the will to work out a status for both parties which enables each to make its greatest contribution to increased production and continuity of service and employment" (Professor Suffern). "In my opinion the essential condition to truly cooperative relations between employer and employee is mutual confidence. Only in exceptional cases under present conditions does the company union plan of organization inspire that confidence" (Professor Seager). 3. Company unions can supplement inter-company unions. "There need be from a functional point of view no basic conflict between the existence and activity of labor unions in relation to a company and the existence and activities of a company union with that same company. The evidence of the best modern labor practices is that the best conditions in terms of cooperation, permanent employment and freedom from interruption from work, are assured when both forms of organization and negotiation are made use of in relations with one company in a. way that allows the one to supplement the other" (Professor Tead). 79 The same point is made in the literature concerning company unions which Professor Brissenden has quoted in his affidavit (Professors Catlin and Douglas, Messrs. Lauck, Selekman and Studensky). "That conception of the two forms of organization which regards them as complementary, the union dealing with general controversial questions such as wages and hours, and the works council (company union) with more purely intra-shop matters, is the only reasonable and convincing one" (Professor Catlin). Mr. Selekman credits the success of the Duchess Bleachery Partnership plan, already mentioned, to its cooperation with the only organized group of workers in the plant. 4. There is very general agreement among the experts that company unions are not a substitute for trade unions; that they have many limitations (Professors' Couper, Douglas, Ogburn, Todd, Messrs. Wolman and Cooke). "There is nothing in the record they have made to date to suggest that they can in any way be looked upon as the equivalent of or an adequate substitute for inter-company unions" (Mr. Cooke). "Those who know the conditions of life and work of the typical modern workman and his family and are sincerely desirous that he may have an opportunity to lead the better life, will realize that shop committees are not and cannot be a just substitute for unionism" (Professor Douglas). "Company unionism is frequently suspect as a device against trade unionism and unless the workers have absolute and unqualified confidence in their employer can seldom provide a satisfactory substitute" (Professor Couper). "Company unions are a very unsatisfactory basis for co-operation between labor and capital. * * Cooperation implies mutuality and willingness on the part of parties uncoerced. * * * Under favorable conditions, the men in company unions may work well for a time, but it is hardly the basis for enduring good relations, for in times of crisis 80 when the men need to stand up for their rights, they do not have the power" (Professor Ogburn). "Company unions have so often been introduced as an anti-union device that impartial students of the labor problem can scarcely fail to suspect some company union plans, of being arbitrary, and, in their general tendency, inimical to the best interest of the employees and of the public. This suspicion is all the clearer where the labor contract is specifically anti-union" (Professor Todd). The same point is reiterated in excerpts from the writings of Professors Blum, Catlin, Fitch, Mr. Lauck and Mr. Studensky, and the Final Report of the Commission on Industrial Relations. From the point of view of the worker, the limitations of the company union are largely those connected with their disparity in bargaining power already described. 5. The point that company unions are inadequate in a crisis, (Professors Brissenden, Ogburn and Tead) is especially significant in the street railway industry where, it is generally agreed, strikes are to be prevented and service provided without interruption. Professor Ogburn states, "One thing is certain, that company unions is not the method of handling such strike situations. It should be approached on quite other bases, bases providing adequate machinery for safeguarding the rights of the workers. The development of company unions in city transportation companies should be viewed with the gravest apprehension by the public; for they do not provide adequate organization for the crises. Indeed it may be that their development will accentuate the development of the crises and make them more severe, in all of which cases the public will be a sufferer" (Professor Ogburn). 6. Many experts believe that the company union is too new for judgment (Professors Brissenden, Commons, Rottschaefer, Saposs, Todd and Mr. Wolman). "The company 81 union's history has been too short to permit of final judgment as to its efficacy or its assumed superiority to orthodox unionism" (Professor Todd). "I am convinced that much more information is needed (particularly in respect to local public utilities) about the results, of operation on a bona fide company-union basis and about some of the recently established systems of (trade) union-management cooperation. *' * It must be remembered that, while trade unionism and trade-union collective bargaining are long-established features of modern economic lifefeatures almost universally recognized by economists as not only legitimate, but as important, perhaps the most important causal factors in the elevation of the economic condition of wage-earners-the practice of union-management cooperation is of much more recent origin. * * * For our experience with both the inter-company union form of cooperation with (and in) management and the bona fide company-union form of such cooperation is very brief indeed. Like infant industries what they require now at the hands of government is not restraint but freedom-a free field and no favor-so that by further free experiment it may be possible, on the basis of more adequate and extended experience to make some definitive appraisal of the relative merits of the two systems" (Professor Brissenden). 7. Public interest requires that both types of workers' organizations should be allowed to develop freely and competitively (Professors Brissenden, Commons, Keister, Rottschaefer, Seligman and Miss Van Kleeck). "From the point of view of the general public it is desirable that both types of unionism should be allowed to develop on a fair, competitive basis. That trade unions in the past have performed a useful function both the courts and the legislatures have often recognized. * * * That they have something of value to contribute to American life in the future also is highly probable, particularly in view of 82 the interest which so many trade unions are now manifesting in the problems; of production and management. Perhaps, company unions also have served a useful pur. pose and have something to contribute to American life in the future. Clearly, public interest dictates that both company and labor unions should be given an opportunity to show what they can do toward bettering conditions in American industry" (Profes~sor Commons and Associates). "As long as this question is not yet settled it may be wise to give the employee an opportunity to choose between the company union and the intercompany or ordinary trade union. But it assuredly seems far from wise for the employer to compel the employee to join the one kind of union and to prevent him from joining the other" (Professior Seligman). "We are only at the beginning of the possibilities of developing goodwill in industry, fostering efficiency, avoiding strikes and protecting human rights through giving opportunity to organized groups of employees to cooperate in management. Just what form the arrangement for worker-management cooperation will take cannot be definitely stated without more experience. Nor is it probable that any one form will suit all industries, and all circumstances. Sometimes the agreement may be limited to one company; sometimes it may be industry-wide. It is in the public interest that the way should be left open for experiment. The agreement between the Interborough Rapid Transit Company and its individual employees, if sanctioned by the courts in that phase of it forbidding an employee to, join any other union, seems to me clearly opposed to the public interest on the ground that it interferes with freedom to develop by experiment the most effective form of worker-management cooperation" (Miss Van Kleeck). 8. It is emphasized that the older and proved deviceunionism-should not be traded for an unproved one-company unionism. "I feel that the company union movement 83 has yet to justify itself. It may have great possibilities for good latent within itself. It should be given every fair chance to demonstrate its possibilities, but I feel that it should compete with the trade union in a free field, a field in which employers do not throw their weight on either side. The contract under discussion impresses me as an attempt to force the trade union out of the field and to force in the company union. Such an attempt seems to me to be against good public policy" (Professor Keister). D.,A Possible Sequel to Company Unionism. Many of the experts have given serious consideration to the social results of an era of dominant company unionism built on anti-union contracts and injunctions (Professors Brissenden, Commons, Couper, Douglas, Edie, Evans, Fitch, Kallen, Saposs, Seager, Slichter, Suffern, Tead, Todd, Ward, Ware, Messrs. Bailey, Cooke, Soule and Wolman, and Miss Van Kleeck). They call attention to the following results: 1. Unions will be driven to secret association and destructive methods. 2. Radicalism will then prevail. 1. Unions will be driven to secret association and destructive methods. "If the impulse for association is not given free opportunity in the open and above board it will inevitably work under cover, secretly. And this covert activity is likely to be much more devastating to employee loyalty, to managerial efficiency and to public confidence than overt unionism, that is, open agreements openly arrived at between organized employers and organized employees" (Professor Todd). "The widespread adoption by large companies of agreements (binding employees not to join any outside union) would indeed make the free association of workmen, in organizations not controlled by their employers, a secret matter with all the dangers of 84 destructive tactics which such curtailment of individual liberty is bound to produce" (Miss Van Kleeck). "Naturally if the unions are to continue they will have to work underground, which will not only make it easier for the ultra-radical labor movement to become dominant, but will introduce an element of irresponsibility that may have farreaching serious consequences" (Professor Saposs). 2. Radicalism will prevail. "Radicalism develops most in those sections and industries where employees have been denied the protection of traditional trades unions (Professor Evans). "Discontent would be suppressed with consequent danger of violent and uncontrollable explosion" (Mr. Soule). "This attempt to set up company unions will naturally be resisted. There will be bitter and bloody strikes, useless and costly interruptions of the economic life of the nation in which everybody will suffer and nobody will win. * * * There is no doubt that every effort to fight it (trade unionism) will drive it to the left, until in its turn it becomes revolutionary" (Professor Kallen). "The persistent attempts of the Interborough Rapid Transit Company to prevent its employees from joining a bonc fide inter-company union by such work contracts as it exacts from its employees, if sustained, can have no other consequence than to contribute materially and most effectively to an ultra-radical labor movement, which will pin its faith to non-co-operation, sabotage, violence, destruction and revolution as the necessary stepping stones to relief and progress, and a general attempt to deny industrial workers the right to choose their own organization and to force workers, upon threat of discharge, to join company unions, will precipitate a far-reaching revolutionary movement throughout the ranks of wage earners, will sap the morale of industry and so seriously lower the high productivity and efficiency which characterizes American industry today" (Mr. Beyer). 85 "The effect, in my opinion, will be to encourage the rise of the irresponsible leader and foment industrial turbulence and violence" (Professor Fitch). "I feel certain that a multiplication of company unions based, not on the loyalty and confidence of the employees, as under the Mitten Plan, but on rigid contracts like the Interborough's, which are made a condition of employment and are accepted by the employee, not because he wishes but because in his situation he is forced to accept them in order to obtain work, and on a determination by the courts that contracts so entered into are entitled to protection through injunctions and otherwise, would give a radical turn to the American labor movement that would be highly detrimental to the public interest" (Professor Seager). "There is no better way of encouraging the development of hopeless, desperate and irresponsible radicalism among wage-earners than by denying them authentic organs of expression, agencies which can appeal on their behalf to the rest of the community and which can present the case of the wage-earners before the bar of public opinion. Company unions, by their lack of initiative and independence, have conspicuously demonstrated their inability to perform this function" (Professor Slichter). "Contracts of the proposed I. R. T. type would shift the strategy of organized labor, and force a desperate struggle to survive. If the goal is to engender intense industrial conflicts and to jeopardize the very existence of labor unions, this contract is the means to that end" (Professor Edie). Many of the experts cite examples of revolutionary unionism which have been precipitated by similar denials of unionism in the past. "The revolutionary unions, either of the communist or the I. W. W. type, are making inroads here and there and are likely to increase greatly in importance, depending upon the extent to which the employers exercise unreasonable control over wages, hours, conditions, hiring, firing, etc." (Professor Commons and 86 Associates). "Already the Workers' Party has come out for extra-legal measures to break the injunctions and the left wing's best weapon is the chance to go to jail in defense of the right to organize" (Professor Ware). "Unexpected and violent uprisings such as recently occurred in Colorado are signs of what happens when no real democratic machinery of industrial relations exists. The elimination of the United Mine Workers from the Colorado mining industry and the setting up of company unions brought strength to an irresponsible and radical organization like the I. W. W. with results reminiscent of the day of Bill Haywood and the Western Federation of Miners. When American industry again reaches the point, as in my judgment it in evitably will, when it will desire to cut wages, reduce payrolls and add to the number of unemployed, it will then face the kind of unorganized mutiny which is the price it must pay for its present use of undemocratic institutions like company unions" (Mr. Wolman). "The Colorado coal fields furnish an excellent modern example-the I. W. W. has replaced the more conservative labor unions which were defeated fifteen years ago and for which company unions were substituted. What occurred at Passaic, N. J., in the recent strike furnishes another striking example. The activities of the I. W. W. among the oppressed and unorganized loggers and lumbermen of the West during the late war is another example" (Professor Evans). The I. W. W. situation is cited also by Professor Couper and Messrs. Bailey and Soule. The quotations in Professor Brissenden's affidavit include several statements concerning the social perils of the collapse of the present conservative labor movement. Professor Frank Tracy Carleton has said: "When confronted by great obstacles in the form of hostile corporations whose policy is to destroy union 87 ism, not to treat with union representatives, certain labor organizations have deliberately turned to violence and dynamiting. Their leaders knowing of no legitimate methods other than those used by the oldline trade unions, and seeing only destruction ahead, adopted the cruel and primitive method of terrorism. And, it must also be said, employers have also, on occasion, grasped the same weapon,-of which the recent labor difficulties in the coal mining industry of West Virginia bear eloquent testimony. Another type of workers have turned to the idea of a mass union or syndicalism emphasizing the general strike, sabotage, and the overthrow of the capitalist and the wage system. The syndicalist does n-ot believe in arbitration or trade agreements. 'There is nothing nice and polite' about the program of the syndicalist. Syndicalism, represented in this country by the radicals of the Industrial Woi-kers of the World, spells anarchy rather than democracy. "It is folly for employers' associations, to expect permanently to eliminate labor organizations. The conservation of labor organizations not their destruction, is desirable. To destroy the organizations of the better class now affiliated w~ith the American Federation of Labor would be a. great national calamity because organizations of the revolutionary type would inevitably replace those destroyed. Sabotage, violence and industrial warfare would replace collective bargain iin g and strikes which are conducted, in a relatively peaceful mauner. The revolutionary mass union would become the dominent type of unionism. "The employer who arbitrarily and scornfully refuses to recognize tlie union or treat collectively with his employees, is an excellent promoter of radical, uncompromising unionism which rejects trade agreements and stands for sabotage and the social revolution. President Gompers of the American Federation of Labor has described the option open to employers. 'The problem now resolves itself into a question of what kind of organization they wish to deal with,-a responsible union employing business methods, or organizations unwilling to make and keep contracts,. niwilling to promote individual restraint and collective 88 discipline, fearing to give the workers any present relief lest their despair and misery be lessened and utopian possibilities lose their charm.' The proud impervious employers, ignorant of industrial history are often the best advance agents of radical unionism and of syndicalism." The Anthracite Coal Commission similarly predicts radicalism resulting from repression: "Experience shows that the more full the recognition given to a trades union, the more businesslike and responsible it becomes. Through dealing with business men in business matters, its more intelligent, conservative and responsible members come to the front and gain general control and direction of its affairs. If the energy of the employer is directed to discouragement and repression of the union, he need not be surprised if the more radically inclined members are the ones most frequently heard." Walter Gordon Merritt, the well-known opponent of unionism, has expressed similar opinions: "Recently, anti-union contracts, so offensive in character as to call for unqualified condemnation, have come to our attention. "Shall employees be thus driven to sell their birthright for a mess of pottage? Can the resourcefulness of radical leadership devise any means better calculated to influence the workers and the public against the employing class? In the name of justice-in the name of public policy-in the name of many other considerations-let us have an end of this." 89 POINT 1. The complaint fails to state a cause of action because the General Associations Law expressly probihits joining in a single action unincorporated associations and individual members thereof, and a complaint purporting to state causes of action against both is fatally defective. It has been held that the General Associations Law expressly and positively forbids action against both unincorporated associations and individual members thereof at one and the same time. In the instant case, therefore, it was incumbent upon the plaintiff to elect which set of defendants it chose to hold. Failure to do so constitutes a fatal defect in the complaint (one that may be raised even at the close of trial), and this objection is in no sense merely formal or dilatory but is a matter of substance which constitutes a complete failure to state a cause of action. As the complaint is now drawn, the defendants cannot know whether to defend an action involving a few individuals or one involving millions of people and the whole theory of the labor movement, while the court cannot know against which set of defendants to give the relief sought for and an injunction cannot issue against both sets. And it has been held that failure of the defendants to demur to a complaint thus defective does not result in a waiver of the defect. It follows that since the plaintiff has not elected which set of defendants to hold, neither the court nor the defendants can proceed and, of course, in the interim, it is not proper for a temporary injunction to issue. Nor can the application for injunctive relief be kept alive by granting leave to the plaintiff to amend. In the instant case the suit is against unincorporated associations and also against members thereof individually. Thus causes of action against both associations and individual members thereof are alleged in the complaint. But Section 16 of General Association Law expressly forbids action against both at the same time. The court so held, in Mandell v. Moses (1924), 209 App. Div., 531, affirmed without opinion 239 N. Y., 555 (1925). The court said (pp. 534, 535): 90 "Where an action under this law has been brought against an officer of the association, an action for the same cause shall not be brought against the members of the association or any of them until after final judgment in the first action and a return wholly or partly unsatisfied of an execution issued thereupon" * * * "plaintiff could not have judgment against the association and against the individual defendants simultaneously." There is, therefore, in this case a positive statutory prohibition against the joinder of causes of action alleged in this complaint and the plaintiff must elect as to which set of defendants it seeks to hold in this action since the court can not give ultimate judgment against both. This being so the court, of course, cannot grant a temporary injunction against both sets of defendants for, to permit this, the complaint must validly state a cause of action as toi each. The defendants do not in this argument take the position that a member of an association who, acting not as a member but as an individual, apart from the association and the furtherance of its business, has committed a tort may not be joined as a defendant with an association in an action under this statute. In other words, the mere fact that an individual belongs to an association which is joined with him as a defendant affords no ground for him to complain. But the defendants here most vigorously insist that, where the alleged tort is charged against associations and against individual members thereof who, as to such alleged wrong, were admittedly acting as members of these associations and in furtherance of their business, then to sue both in the same action is in direct violation of the express provision of Section 16 of the General Associations Law. The defect which exists in the complaint in this respect and is apparent from an inspection of the complaint is one which may be raised even at the close of trial, 91 Mandell v. Moses (supra). A fortiori it may properly be raised in the argument on this application for a temporary injunction for the court has no power to grant a temporary injunction as against those whom, on the case made by the complaint, it can not permanently enjoin. Such a defect in a complaint purporting to join the association and its individual members is more than a defect of parties defendant and more than a defect of joinder of causes of action. The defect is one of substance because under the statute there is here a complete failure to state a cause of action. The statute provides that the individual members of an associaion can not be sued until the return of an execution wholly or partially unsatisfied against the association where the association has once been sued. The two causes of action cannot exist simultaneously. That is the effect of the express language of the statute. The position of the plaintiff, who has joined the association and then individual members, is such that, without an election by the plaintiff, a court will not know against whom to give the relief asked for and consequently must deny the application for an injunction as to all. The statute's prohibition against such a joinder makes equally invalid both causes of action in a complaint until and unless the plaintiff itself makes an election. The failure on the defendants' part to make a motion directed to this defect in the complaint does not result in a waiver of that defect, as will be seen from the practice in Mandell v. Moses (supra). The provisions of Section 278 of the Civil Practice Act do not apply to this situation, but the situation is covered by Section 279. Section 279 of the Civil Practice Act was in substance embodied in Section 499 of the Code of Civil Procedure, and the provisions of Section 278 of the Civil Practice Act, in so far as they are material for this discussion, were embodied in Section 488 of the Code of Civil Procedure. In spite of the provisions of the Code of Civil Procedure, the courts have repeatedly held that, in instances 92 of the character involved in this case, a failure to demur to the complaint does not result in a waiver of such a defect. In Seloier v. Coe (1875), 63 N. Y., 438, the plaintiff, a creditor of a decedent's estate, brought an action against the heirs and next of kin of the deceased to recover upon a claim which the decedent owed him. The statutes in New York in force at this time prevented such a suit against heirs and devisees of the decedent for the recovery of a debt owed by the decedent within three years after the time of granting letters testamentary or of administration upon the estate. This action was commenced within two years after administration had been granted, and it was claimed that this objection was waived because it was not pleaded. The court held that Section 148 of the Code of Civil Procedure, which was later Section 499 of the Code of Civil Procedure without change, did not prevent the defendant from questioning the validity of the complaint, even though he had not answered or demurred. That section reads as follows: "Objection; when deemed waived. If such an objection is not taken, either by demurrer or answer, the defendant is deemed to have waived it; except the objection to the jurisdiction of the court, or the objection that the complaint does not state facts sufficient to constitute a cause of action." The court said (p. 443): "Section 148 does not embrace an objection of the character provided for by the statute, but those which are included within Section 144 of the Code, which are of a different nature. it may also be remarked that in an action against heirs at law, which is regulated by statute, the plaintiff must make out a case affirmatively within its provisions. He must show every thing that the statute demands, and his failure to do so is a good and sufficient ground for prevent 93 ing a recovery. An important and a material part of his case, which he is bound to establish, is, that his suit is brought after three years, as the statute provides, and without this he cannot maintain an action." In American Case &6 Register Co. v. Griswold (1910), 68 Misc., 379, (Rev. on other grounds, 143 App. Div. 807) the plaintiff, a foreign corporation, failed to allege that it had complied with the provisions of the General Corporation Law requiring that a foreign corporation in order to sue upon contract must have qualified to do business in this state. The defendants did not demur to the complaint, but raised this question for the first time upon the trial. The court held this was proper, saying (p. 381): " * The complaint says that the plaintiff is a corporation duly incorporated under the laws of the State of Ohio, located and doing business at Alliance, Ohio, and having no office or place of business within this State. The complaint contains no allegation with reference to compliance with said Section 15. The defendants did not demur; but this was not a waiver of the objection that the complaint does not state facts sufficient to constitute a cause of action, as this objection may be taken either by demurrer, answer or motion." In Prankard v. Cooley (1911), 147 App. Div., 145, the relevant portion of the opinion reads as follows (pp. 149, 150): "The incapacity of the plaintiffs to sue appears on the face of the complaint. On the argument we called the attention of counsel to that fact and to the fact that, under Section 498 of the Code of Civil Procedure, the objection could be taken only by answer where it did not so appear. Supplemental briefs were filed to meet this suggestion, but we think the question of practice is immaterial. In Irving v. Rees (146 App. Div., 703), the Appellate Division in the First Department has affirmed an interlocutory judgment which sustained a demurrer to a complaint interposed 94 on the ground that the complaint did not state facts sufficient to constitute a cause of action. The precise claim of the demurrant was that it appeared on the face of the complaint that the plaintiff had not the legal capacity to maintain the action. The court said that 'As the complaint shows that the plaintiff had not capacity to sue, it did not state facts sufficient to constitute a cause of action.' Applying that principle in this instance, it is obvious that the present complaint does not state facts sufficient to constitute a cause of action. That objection cannot be waived, even if not presented by either demurrer or answer" (Code Civ. Proc., #499). In Potts v. Baldwin, (1901), 67 App. Div., 434, the plaintiff sued the executors of a decedent's estate on a note made by the decedent jointly with other persons. The complaint failed to allege that he had sued the surviving joint makers upon the note and that he had exhausted his remedies against the surviving makers or that they were insolvent. The defendant executors failed to raise this objection by demur and it was contended that they had waived the defect. The court, however, held that the defect was not waived, and said (p. 439): "At the opening the defendant's attorney moved to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The motion was denied, and at the close of the evidence the defendant renewed his motion upon the same grounds and the further ground that the evidence upon the trial failed to state a cause of action against the defendant Dounce as executor, etc., and upon the submission of this case he urged that the plaintiff could not recover under the pleadings. "The complaint contains no allegations to the effect that the plaintiff has exhausted her remedies against the surviving joint debtors, or of their insolvency. The defendant did not demur, but the objection was not, therefore, waived (Code Civ. Proc., #499). The plaintiff has not amended her complaint, nor supplied the facts by proof. Under the decisions upon that 95 point, we are constrained to hold the omission in that particular fatal to a maintenance of this action against the defendant Dounce." See in accord with this case Barnes v. Brown (1892), 130 N. Y., 372. These authorities clearly establish the difference between the situation where two coexisting causes of action are improperly joined and the situation where it appears on the face of the complaint that the cause of action does not exist at all. The difference is broad and fundamental. Thus suppose that A has a tort claim against B and that there exists a valid contract between A and B. Now suppose that that contract provides that no action can be maintained upon it, though breach occurs, until after the tort claim has been reduced to judgment with a return unsatisfied. If these two claims are joined in one action there can be no waiver of the objection that the cause of action on the contract does not exist at all. Finally, this objection is in no sense merely formal or dilatory. The whole frame of the complaint and the supporting affidavits so intertangle and confuse these two inconsistent causes of action that no formal discontinuance as to either the associations (unions) or the individual defendants will meet the difficulty. It is one of substance. The plaintiff must elect, but, after it has elected, the whole complaint must be entirely recast and the supporting affidavits must be disentangled to determine upon what theory the plaintiff wants this whole litigation to proceed. This is a burden which the plaintiff cannot cast upon the defendants. It has completely misconceived its whole case and the defendants are entitled to know just what that case is. For example, if the defendants are to prepare to defend an action involving the enumerated and local acts of a few named and local individuals, that is one thing. If they are called upon to defend an action based on an alleged nation-wide conspiracy 96 involving millions of people and the whole theory of the labor movement of modern times, that is an entirely different matter. Neither the court nor the defendants can proceed until that be determined. And of course no temporary injunction can issue in the interim. The plaintiff's complaint being defective, the motion for an injunction pendente lite cannot be granted nor can the application for injunctive relief be kept alive by granting leave to the plaintiff to amend (Section 877 of the Civil Practice Act; Wood v. Cook (1909), 132 App. Div., 318; Williams v. Montgomery (1896), 148 N. Y., 519, 524). 97 POINT II. The General Associations Law permits suit against an unincorporated association only when all its members are liable either jointly or severally, and the decisions under it uniformly hold that a complaint which fails to allege the individual liability of each and every one of the individual members thereof is fatally defective. The right of the plaintiff to maintain a suit against an unincorporated association-as is desired in this instant case-has wholly a statutory foundation, and this present cause of action cannot properly be brouLght under the General Associations Law. There is not a single case in conflict with the proposition that under this statute action against an unincorporated association cannot be maintained unless the plaintiff alleges and proves and the court finds that such action could be maintained against each and every member of the association. It has been held that it is not sufficient to allege that the by-laws and constitution of an association vest in its officers a power to create liability on the part of its members; the liability of the individual members must rest upon the principles of agency and a complaint to be sustained must allege that every member of the association defendants has authorized or ratified the alleged unlawful conduct. There is no such allegation in the whole voluminous complaint in the instant case. There is no allegation that the tens of thousands of members of these unions themselves engaged in unlawful acts, and, even if it be absurdly contended that they each personally authorized their officers to enlist subway workers in the Amalgamated Association, there is no showing that they authorized this to be done by illegal acts. And in any event this statute which speaks of associations of seven or more persons does not apply to a federation of organizations which are not persons; yet the American Federation.of Labor is such a federation, its members being neither natural persons nor artificial persons. The complaint cannot stand. It cannot serve as a basis of permanent injunction and hence fails as a foundation for temporary injunction. The suit in the instant case is for damages and an injunction against three unincorporated associations and against numerous individual defendants, members thereof. An analysis of the complaint fails to reveal the presence 98 of allegations showing that all of the members of any of the three defendant associations have authorized or ratified the unlawful conduct which is charged as a basis for the relief sought. An analysis of the complaint shows clearly that the plaintiff purports to sue the association defendants pursuant to the provisions of the General Associations Law. The complaint states, with respect to each of the three defendant associations, that it is composed of seven or more persons and this is an allegation in the very language of the statute. For a complete understanding of the nature of the defendants' contention, it is necessary to study the statute under which this action against unincorporated associations is brought since the right of the plaintiff to maintain a suit against an unincorporated association has wholly a statutory foundation. Independent of statute no such action can be maintained. STATUTES. The provisions of statute law pertaining to suits against unincorporated associations will be found in the General Associations Law, Section 13 of which reads as follows: "13. Action or proceeding against unincorporated association. An action or special proceeding may be maintained, against the president or treasurer of such an association, to recover any property, or upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or ownership, or claim of ownership therein, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership, or other company of persons, which has a president or treasurer, is deemed an association within the meaning of this section." Sections 14, 16 and 17 of the General Associations Law provide that execution upon the judgment secured against 99 an unincorporated association must be had against the joint or common property of its members and only after a return of the execution wholly or partially unsatisfied can a suit be commenced against the individual members of the association. It must be kept constantly and sharply in mind that this motion rests on a proposition which has nothing whatever to do with any matter of defect of service. The proposition is that the whole cause of action, as a matter of substance, cannot be brought under Section 13 of the General Associations Law. An understanding of this proposition and the cases to be cited in support of it, will be facilitated by getting firmly fixed in mind the threshold proposition that the Court of Appeals and other New York courts have been very strict in dealing with this statute because: first, it is in derogation of the common law, i. e., "this action is statutory and must be strictly construed," Whitney v. King (1924), 210 App. Div., 312, 315; and, second, this statute offers possibilities of grave injustice. A group of men may be sued under this statute and dragged all the way through the courts in order that a few dollars in the treasury of the association may be reached. Then the same group of men may be again dragged all the way through the courts in defending another action against them individually although it involves the same transaction. The courts have repeatedly said of this statute that it confers a privilege upon the plaintiff in relieving him of burdens as to service and that, if he is to take advantage of this privilege, he must take the statute with all its burdens and must strictly comply with it. 100 SUMMARY OF THE ARGUMENT ON THIS POINT. The arguments and authorities hereinafter set forth may be summarized as follows: 1. No action can be maintained under this statute against an unincorporated association unless the plaintiff alleges and proves and the court finds that such action could be maintained against each and every member of the association. 2. The complaint makes no showing at all that all the members of these labor unions being sued, who are scattered throughout the United States, are guilty of the unlawful conduct charged, either by their own act or by their authorization of others. The liability of such members rests on the principles of agency. Even though there were a showing in the complaint that each and every one of them personally authorized officers of the union to enlist subway workers in the Amalgamated, there is not a shadow of a showing that they authorized it to be done by illegal acts which is what the complaint charges. This rests on an elementary proposition in the law of agency. 3. The statute purports to cover only unincorporated associations. It does not cover a federation, but the American Federation of Labor is a federation of unincorporated associations, not an association of individuals. 4. Though it were true that the statute is applicable to a federation, the statute says "association of seven or more persons." Some courts have said persons mean natural persons. Even though it be considered that it means artificial persons, i. e., corporations, it does not mean by "persons" unincorporated associations. 101 GENERAL CONSIDERATION. A study of the provisions of the General Associations Law and of the decisions under it shows that its object was to confer upon a plaintiff for his convenience, a mode of suing where, under the doctrines of the common law and equity, he would be required to sue each individual member of an unincorporated association. In other words, the aim of the statute was not to create a new liability or to alter the rules of the common law or equity with reference to the liability of any member of an unincorporated association, but its sole aim was to provide a convenient way by which a plaintiff might secure redress without the necessity of suing each member. It is important to bear in mind that the question of substantive right or of substantive liability has not been altered by the enactment of the statute. And that it is only where the plaintiff can maintain a suit against ALL of the members of an unincorpo'rated body that? he can secure the advantages which the statute gives him. The whole frame of the statute shows, as has already been stated, that it presupposes the right of the plaintiff to sue each and every member of the association jointly or separately in order to maintain a suit against the association by suit against its president or treasurer, and Section 13 of the statute specifically prescribes that this must be so. ALL MEMBERS MUST BE LIABLE. Moreover, the decisions uniformly hold that the plaintiff, in order to maintain a suit against an unincorporated association by suing its president or treasurer, must allege and prove the liability of all the members of the association. This proposition has nothing to do with the matter of jurisdiction over the individual members of an association for, apart from the allegations of a complaint, the question of jurisdiction over individuals is a matter of the service of process. 102 For the purposes of illustration and argument we must assume that jurisdiction of all the members of an unincorporated association has been secured by service of process upon its treasurer or its president. Conceding this to be so, the question presented by this statute is whether the complaint states a cause of action according to' its requirements. It needs no argument to show that, under the doctrines of common law and equity, an unincorporated association was not and is not recognized as a legal entity and cannot be sued as such, nor can the liability of the individual members of an association be in any way affected by a suit against the president or treasurer of the association. The right of action against an unincorporated association through the institution of suit against one of its officers, as in this action, is of wholly statutory foundation. The statute permitting such a suit, as has already been stated, confers upon a plaintiff a new mode of suit for his benefit to relieve him from the necessity of many suits, or, in the alternative, from a single suit in which all of the individual members must be joined. McCabe v. Goodfello:w (1892), 133 N. Y., 89. This was a suit by an attorney against the treasurer of an unincorporated association which was organized for the purpose of furthering the social and civic interest of a community and the plaintiff was hired as an attorney to prosecute certain suits for it. The court said (pp. 92-93): "But the plaintiff cannot, in any case, maintain such an action against the officer, unless the debt, which he seeks to recover, is one upon which he could maintain an action against all the associates by reason of their liability therefor, either jointly or severally. This, therefore, is the test to be applied in the present case. The plaintiff must allege and prove, and the court must find that all of the members of the association were liable, either jointly or severally, to pay the plaintiff the amount of his claim, or the judgment in this action cannot stand." 103 The plaintiff endeavored to show that the constitution and by-laws of the association, which specified its objects, clearly indicated that his employment was one designed to accomplish those objects and that, therefore, the authority for his employment was necessarily given by each and every member of the association. The court in dealing with this contention said (pp. 94, 95): "We fail to discover anything in the organization of the association or in its constitution, or professed objects, or in the methods which it adopted or the conduct of its affairs, which indicates an intention on the part of these members to become personally bound for any debts contracted by its officers and committees beyond what might be necessary for the maintenance of its existence." "In Lindley on Partnerships (2d Am. ed., p. 50) it is said: 'It is mere misuse of words to call such associations partnerships, and, if liabilities are to be fastened on any of their members, it must be by reason of the acts of those members themselves, or by reason of the acts of their agents, and the agency must be made out by the person who relies on it, for none is implied by the mere fact of the associations.' " And again the court said (pp. 95-96): "The individual liability of the members for contracts made by the association or its officers or committees depends upon the application of the principles of the Law of Agency, and authority to create such liability will not be presumed or implied from the existence of a general power to attend to or transact the business, or promote the objects for which the association was formed, except where the debt contracted is necessary for its preservation." This is the leading case in New York on the matter of suits against unincorporated associations and the principles governing their liability. It establishes beyond a question the following propositions: 104 1. That an unincorporated association is not a partnership and the principle of agency applicable to the law of partnerships does not apply to unincorporated associations. 2. That a plaintiff, to get the benefits of the statutes, must allege and prove the joint or several liability of all the members of the association. 3. That the liability of the members of an unincorporated association rests upon the general principles of agency. 4. That the courts of this State are strict in requiring the proof of authority on the part of anyone acting on behalf of the association, and the authority to bind the members of an association will not be inferred from the fact that the conduct of the officer was even reasonably designed to accomplish the objects which, according to the constitution and by-laws of the association, it was principally organized to attain. This case has always been cited with approval and has never been questioned. The approach to our problem of determining the validity of the complaint in the instant case must, be an approach in the light of the doctrine established by it. Schouten v. Alpine (1915), 215 N. Y., 225. In this case the plaintiff sued an unincorporated association for alleged wrongful expulsion from a local union and the court said in denying recovery (p. 232): "This action is sought to be maintained under Section 1919 of the Code of Civil Procedure. The provisions of this section, however, in an action against an unincorporated association are limited to a cause of action for which the plaintiff might maintain an action against all the associates by reason of their liability therefor either jointly or severally, and in the event of a recovery satisfaction is to be made under subsequent provisions of the Code out of per 105 sonal property belonging to the association, or owned jointly, or in conmnon, by all the members thereof. It is essential, therefore, to a right of recovery in such a case that the cause of action was one for which an action might be maintained against the thirty thousand members of the United Association, and for this reason we do not agree that this action is maintainable in its present form" (McCabe v. Goodfellow, 133 N. Y., 89). People, ex rel. Solomon v. Brotherhood of Painters (1916), 218 N. Y., 115. This was a mandamus proceeding for reinstatement of an expelled member of a union and also for damages. The court said (p. 123): "In so far as the district council and the local union are concerned, both being voluntary, unincorporated associations, this proceeding is brought against them only by virtue of Section 1919 of the Code of Civil Procedure. It is well established that in the proceeding or action against a voluntary, unincorporated association, to recover damages, facts must be alleged and proved which render all the members of such association liable for the sum claimed (McCabe v. Goodfellow, 133 N. Y., 89; Schouten v. Alpine, supra). In the present proceeding there was neither allegation nor proof to meet the requirements of this rule." Whitney v. King (1924), 210 App. Div., 312. This was an action upon an insurance certificate against a labor union. The court (p. 314) said: "Aside from the merits of the plaintiff's cause of action, as to which I concur in the opinion of Van Kirk, J., the defendant King has raised the question that he is not, as treasurer of the grand lodge, the proper party to this action so far as the grand lodge is concerned; that the action is brought under Section 13 of the General Associations Law (as added by Laws of 1920, chap. 915) being formerly the last two sentences of Section 1919 of the Code of Civil Procedure, and that in order to maintain an action against him 106 as treasurer of the brotherhood, it must appear that the cause of action is one which the plaintiff could maintain against all of the members of the association, either jointly or severally. Such is the accepted construction of the statute in question (McCabe v. Goodfellow, 133 N. Y., 89; Schouten v. Alpine, 215 id., 225; People ex rel. Solomon v. Brotherhood of Painters, 218 id., 115)." Mazwrajtis v. Makanwyce (1916), 93 Misc., 337. This was an action for assault and battery sought to be maintained against a labor organization. It was instituted against the president and treasurer. A motion for judgment on the pleadings was made because both the president and treasurer were sued and because the complaint did not state a cause of action. The court, holding the action did not lie under the statute, said (p. 340): "The defendants' counsel further insists that this action cannot be maintained against the defendant association. The plaintiff could have brought an action individually against the members who assaulted him, for they are joint feasors, and, for whatever injury they have done, each and all are liable. Green v. Davies, 83 App. Div., 216, 217. He has seen fit, however, to bring an action under Section 1919 of the Code of Civil Procedure against officers of the defendant association, apparently in order to reach its property for the satisfaction of any judgment he may recover, rather than take any chance of failure in the first instance to collect any judgment he might obtain against individual members. Having thus elected to bring the action under such section he must accept and observe the limitations by its provisions." Friedman c& Cole v. Amalgamated Clothing Workers (1921), 115 Misc., 44. This was an action for an injunction. A motion was made for judgment on the pleadings. The court said (pp. 45, 46): "This is a motion for judgment on the pleadings made on behalf of defendant, 'Sidney Hillman, in 107 dividually, and as General President of the Amalgamated Clothing Workers of America,' and also on behalf of certain other officials of that organization. The motion is directed particularly against the sufficiency of the complaint to charge the Amalgamated Clothing Workers of America as an unincorporated association in that it fails to allege a cause of action maintainable against all of its members. This point is based upon the fact that the action is brought against the association pursuant to the privilege accorded to the plaintiff by Section 1919 of the Code of Civil Procedure which permits it to be maintained against the president or treasurer 'upon any cause of action, for or upon which the plaintiff may maintain such an action against all the associates.' It is well settled that where the action is so brought 'the plaintiff must allege and prove, and the court must find, that all the members of the association were liable.' McCabe v. Goodfellow, 133 N. Y., 89, 92; Schouten v. Alpine, 215 id., 225, 232; People, ex rel., Solomon v. Brotherhood of Painters, 218 id., 115, 123; Brower v. Crimmins, 67 Misc. Rep., 68, 71; Masurajtis v. Makanwyce, 93 id., 337. Plaintiff's counsel undertakes to demonstrate that the complaint does charge all the members with liability for the acts which are laid as the foundation of the cause of action." The court proceeded to analyze carefully the allegations of the complaint quoting extracts from the constitution of the association and the allegations of the complaint with respect to the avowed purposes of the association to destroy private property and the social, industrial and political structure of society. The court said with respect to this matter (p. 52): "Finally, however liberal may be the rules of construction to be applied to a pleading, I know of none which permits the interpretation of a general allegation of the purposes of an association as the equivalent of a categorical statement (which could have been couched in a few words) that all of its members 108 are in favor of or are engaged in pursuing such purpose, or have directly or indirectly authorized or ratified acts in furtherance thereof." All this applies directly to the allegations as to the resolutions of the American Federation of Labor and the general charges as to it and the Amalgamated Association contained in the complaint in this action. Bearing directly upon the parts of the constitution of the American Federation of Labor upon which the plaintiff relied to show its right to maintain this action by reason of the alleged authorization, by all of the members of the association, of the unlawful acts charged, is the following language of the court (p. 54): "Thus, in respect of the alleged acts, just as in regard to the alleged purposes, we find that the draftsman of the complaint has significantly omitted the simple averment that all the members of the defendant association have participated therein or have authorized or ratified the same or are chargeable with knowledge thereof." Doscher v. Vaenderbilt (1917) 177 App. Div., 813. This was a suit upon contract for death benefits which, by the constitution and by-laws of the defendant fraternal association, were payable to the assignee of a member thereof. In this case, the court in denying recovery, denied the efficacy of the constitution and by-laws of the association to create a contract between the plaintiff and all the members of the association, and, therefore, held that the plaintiff could not maintain his suit under the provisions of Section 1919 of the Code of Civil Procedure since he failed to show a joint and several liability on the part of all the members of the association. Hale v. Hirsch (1923) 205 App. Div., 308. This was an action against an unincorporated association for repaypayment of a loan. The case arose on a motion to strike out an affirmative defense, and, upon this motion under 109 settled practice, the court determined the validity of the complaint. Hence the case should be treated as one involving a motion for a judgment on the pleadings. The court said (p. 310): "The party is a voluntary unincorporated association of more than seven members organized to advance certain political theories and objects and to attain its ends through appeals to the eloctorate of the State. It was in no sense a partnership, and, if any liabilities are to be fastened upon any of its members, it must be by reason of the acts of the members of the party or by reason of the acts of their agents duly authorized by the members themselves. The authority to create such liability will not be presumed or implied from the existence of general power to attend to or transact the business or promote the objects for which the association was formed. It is for the plaintiff to plead and prove this authority." Siff v. Forbes (1909) 135 App. Div., 39. The opinion of the court reads as follows (p. 40): ScoTT, J. "Defendant appeals from a determination of the Appellate Term affirming a judgment of the City Court in favor of the plaintiff. "The plaintiff sues for money alleged to have been loaned to the Socialist Labor party, an unincorporated voluntary organization. It is conceded that this action is controlled by the rule in MoCabe v. Goodfollow (133 N. Y., 89) that in order to succeed the plaintiff must show that all the members of the association are liable either jointly or severally to pay the debt, and that the individual liability for debts contracted by officers or committees depends upon the application of the principles of the law of agency; that authority to create such liability will not be presumed or implied from the existence of a general power to attend to or transact business or promote the objects for which the association is formed, except when the debt contracted is necessary for its preservation. The loan upon which this action is based was 110 contracted by the national executive committee of this party. It is not contended that this committee had any direct authority to incur indebtedness on behalf of all the members. It is testified to by some of the witnesses that the incurring of the indebtedness was reported to and approved by the national convention, and this is claimed to have been a sufficient ratification. We cannot find in the constitution any direct authority given to the national convention to incur debts which shall be binding upon the members of the party generally. The convention is given power to frame a platform, decide the form of organization, select the seats of the national executive committee and board of appeals and investigate and decide all difficulties within the party. All acts of the convention must be submitted to the sections for a general vote. Assuming that the convention ratified the loan, this was not equivalent to ratification by the party at large, in the absence of a reference to the sections for a general vote. The court below suggested that the report to the national committee gave the party at large a. knowledge of the transaction, and that its silent acquiescence was a sufficient ratification (63 Misc. Rep., 319). In the absence of a reference to the sections it cannot be assumed that the party at large had any knowledge of a report made to the convention, and in the absence of knowledge, 'silent acquiescence" certainly cannot be construed into ratification. Although it seems to be now claimed that the money was advanced to preserve the existence of the party, the evidence does not bear out the claim, and the court expressly took that question from the jury without apparently any objection on the part of plaintiff. It is extremely difficult to trace the disposition of the money, but it appears that at least a part of it was devoted to extricating certain newspapers from difficulties. These papers were issued as organs of the party, but their existence was not so tied up with the existence of the party as to justify a holding that the preservation of the party depended upon their preservation. "The determination of the Appellate Term and the judgment of the City Court must be reversed and a 111 new trial granted, with costs to appellant in all courts to abide the result." Bobe v. Lloyds (1926) 10 Fed. (2d.) 730. The court (p. 733) in speaking of the purpose of the General Associations Law in permitting a plaintiff to sue an unincorporated association by instituting action against its president or treasurer, said: "There (New York), the statute permits a suit to be brought against the president or treasurer, for the purpose of doing away with the inconvenience of having each individual member of the association named as a party to the action and process served upon them." Mein'hart v. Contresta (1922), 194 N. Y. Supp., 593. In this case the court, in the following language, declared the object of the General Associations Law to be as follows (p. 594): "An unincorporated association is an organization composed of a body of persons united without a charter for the prosecution of some common enterprise. It is not a legal entity separate from the persons who compose it. The statute permits a suit to be brought against the president or treasurer of an association merely for the purpose of doing away with the inconvenience of having each individual member of the association named as a party to the action and process served upon him. An action in this form is one against the individuals comprising the association in so far as it affects property held in the name of the association, or property owned jointly or in common by all the members of the association." Coney v. Brennan (1917), 167 N. Y. Supp., 903. This case arose on a demurrer to a complaint, which demurrer was sustained in the following language (p. 595): "The defendant association has a large number of members, and, in order to maintain this action, it is 112 incumbent upon plaintiff to show that such members would be liable, either jointly or severally, to pay the plaintiff's claim. The complaint utterly fails to show any cause of action against the individual member of the association (see Schouteen v. Alpine, as pres., 215 N. Y., 225; 109 N. E., 244; McCabe v. Goodfellow, 133 N. Y., 89; 30 N. E., 728; 17 L. R. A., 204). Nowhere in the constitution and by-laws which are attached to the complaint is any authority shown in the socalled officers to make the contract which plaintiff seeks to enforce." In accord with McCabe v. Goodfellow are the following cases among the many which might be cited: In PRe Tidewater Coal Exchange (1921), 274 Fed., 1008, see page 1010; Lightbourn. v. Walsh (1904), 97 App. Div., 187. There is not a single case in conflict with this line of authority. The various cases heretofore sighted in this memorandum show beyond question the rule that the statute permitting suits against unincorporated associations has not conferred upon a plaintiff new substantive rights or imposed new liabilities upon the persons being sued as a group by service upon an officer of that group. Neither has the statute affected in any way the power of an unincorporated association to bind its members, and its power to do that rests upon plain principles of agency. The courts of this State have been strict in construing of those cases have the by-laws and constitution of the association been held to vest in any officers thereof the power grave injustice which would result to the members of an association from multiple suits. HOW THE LIABILITY OF EACH MEMBER MUST BE SHOWN. Some of the above cases arising on the pleadings and some passed upon subsequent to the trial of the case involved the effect of conduct on the part of the officers of the association in furtherance of the object of the associa 113 tion, as specified in its constitution and by-laws. In none of those cases have the by-laws and constitution of the association been held to vest any officers thereof the power to create liability on the part of its members. If this is so in cases of contractual liability, it is all the more so in cases where the plaintiff seeks to impose liability upon all the members of an association for tortious conduct as is attempted in this case. In other words, the authority on the part of officers to commit torts for which the individual members of an association are liable must be found in something more than the constitution and by-laws of the association. The complaint in the instant case is for damages, but also for the prevention of a tort; and there is not a single allegation in this voluminous complaint which states liability on the part of all the members of these unincorporated associations. The liability of the individual members of the association must rest upon principles of agency and the complaint to be sustained must allege, and the plaintiff must be prepared to prove, that every member of the association defendants has authorized or ratified the alleged unlawful conduct. That authority cannot be found in the allegations of the complaint specifically or by fair inference; nor will such authority be inferred from or be found to rest upon the objects of the American Federation of Labor or the Amalgamated Association as specified in their constitutions and by-laws. The following cases and authorities show the principles upon which agency by implication must rest: Mechem in his work on Agency, 2nd edition (vol. 1, p. 498), says: "And so, as has been elsewhere noticed, the authority, if implied at all, can only be implied from facts. It is not to be created by mere presumption, nor by any abstract considerations, however potent, that it would be expedient or proper or COrYetiie-t that the authority should exist," 114 Bickford v. Menier (1887), 107 N. Y., 490. This was an action against the principal to recover a loan made by the defendants' agent, who was conducting business in New York City on behalf of the defendants whose principle place of business was in France. The agent's authority was specifically to receive consignments of goods from his principals, to care for and sell them, and, after paying the expenses of his business from the receipts, to remit the balance to them. The foregoing were the expressed powers conferred upon the agent and, even though those powers carried with them of necessity many incidental powers, the court held that the agent had no authority to bind his principals' credit by borrowing money even for the purpose of the business. It said (p. 499): "If the transaction of this business absolutely required the exercise of the power to borrow money in order to carry it on, then that power was impliedly conferred as an incident to the employment, but it does not afford a sufficient ground for the inference of such a power, to say that the act proposed was convenient or advantageous, or more effectual in the transaction of the business provided for, but it must be practically indispensible to the execution of the duties really delegated in order to justify its inference from the original employment." Mali v. Lord (1868), 39 N. Y., 381. The defendant was the owner of a store and left it in charge of a superintendent who, on suspicion that the plaintiff had stolen goods from the store, called a policeman and had the plaintiff arrested. No specific authority had been given the superintendent to do this, and, on these facts, the court held that the defendant was not liable, on the ground that the authority of an agent or servant to do an u nlawful thing will not be implied or inferred. It said (pp. 384 -385) "The master would not, if present, be justified in arresting, detaining and searching a person upon sus 115 picion, however strong, of having stolen his goods, and secreted them upon her person. The authority of the defendants to the superintendent could not, therefore, be implied from his employment." Isaacs v. Third Avenue Railroad Comnpany (1871), 47 N. Y., 122. The defendant railroad was sued by a passenger who was pushed from the car by the conductor after she had insisted that she would not leave it until it had come to a full stop. The court following Mali v. Lord, supra, held that the defendant was not liable in the following language (p. 128): "In the present case an act was done by the conductor completely out of the scope of his authority, which there can be no possible ground warranted by the evidence for supposing the defendant, authorized, and which it could never be right under any circumstances for the defendant to do." Gambilt v. Fuqua (1906), 148 Ala., 448. In this case the plaintiff was arrested without a warrant by a deputy of the defendant, a milk inspector of the City of Birmingham, because the plaintiff was selling milk without a license. It was conceded that the arrest without a warrant was unlawful but the defendant was given judgment because his deputy was held not to have the implied or inferred authority to do an unlawful thing. The court said (pp. 456, 457): "No authority to make arrests without warrants could be implied from the fact that he was defendant's deputy license inspector, and there is no evidence that defendant authorized the arrest. Indeed, there is nothing in the evidence that would indicate that the defendant had authority to arrest people for violating the ordinance. An agent has no implied power to do that which the master himself, being present, would not be authorized to do.-Mali v. Lord, 39 N. Y., 381; 100 Am. Dec., 448; Whitmore v. Allen, 33 Tex., 355; 12 Am. & Eng. Ency. Law, 775. "Where a principal is sued for an unlawful arrest and imprisonment made or caused by an alleged agent 116 and there is no evidence of prior authority or subsequent ratification, it is error to leave it to the jury to say whether or not there was such authority or ratification." This action is brought, as the allegations of the complaint show (see its Paragraphs X and XI), pusuant to the requirements of Section 13' of the General Associations Law. Compliance with this section of the statute was the only way in which the plaintiff could sue an unincorporated association in the courts of this state without suing, individually, the members of it. STATUTE NOT APPLICABLE TO A FEDERATION. Paragraph X of the complaint states that the American Federation of Labor is composed of affiliated organizations and thus is a Federation of organizations. Its constitution makes this perfectly clear. No provision is made in the law of this state for suit against such a body. It follows that the plaintiff, as against the American Federation of Labor, has instituted suit improperly for the statute permits an action against an unincorporated association composed of seven or more persons. Even though it were true that Section 13 of the General Associations Law is applicable to an association of seven or more natural or legal persons (corporations), it certainly has no application to a federation of unincorporated associations, for they are not persons either legal or natural. The decree asked for by the complaint would be both futile and unconstitutional as is shown in Point V (p. 145) of this Brief. CONCLUSION. In view of all the foregoing, this complaint cannot stand. It can serve as a basis of no permanent injunction and, therefore, fails as a foundation for a temporary injunction. 117 POINT IlI. The plaintiff is not entitled to a temporary injunction because the proof fails to show that any substantial or irreparable injury is threatened. Equity will not protect a mere naked legal right or grant an injunction to prevent a mere possibility of injury. The plaintiff relies for its proof of an urgent state of facts which would warrant a temporary injfunction primarily upon Mr. Hedley's affidavit. This afidavit is so fatally defective that proof fails. He states important groups of facts upon information and belief without revealing the source of his information and the grounds for his belief; he states many vital facts upon personal knowledge without it -anywhere appearing that he actually had personal knowledge. It is well established that affidavits so drawn are fatally defective; and also that his blanket statement concerning his sources of information is quite insufficient. But, even aside from the fatal defects in the proofs submitted by the plaintiff, the plaintiff's affidavits completely fail to substantiate any contention that a strike would result from the formation of a local of the Amalgamated Association whereas abundant proof exists that no strike is threatened-that only peaceful persuasion is used to induce the plaintiff's employees to become members of the Amalgamated Association. Even if it be assumed-not conceded-that the plaintiff has a valid contract with its employees not to join the Amalgamated Association, violation of this contract does not result in the type of substantial, imminent, irreparable injury which justifies the intervention of equity, as is well established by the cases. Of course, if the alleged contract for a two year period of employment were valid, which is not conceded, and if the time should ever come when a strike was threatened, the plaintiff could secure relief, but the court cannot properly be expected to concern itself at the present time with injury which proof shows to be unjustifiably anticipated by the plaintiff. The plaintiff cannot even properly cla'im, as a justification for a temporary injunction, the immediate disintegration of the plaintiff's Brotherhood as a device for handling labor problems. Seeking to have the men join the Amalgamated Association does not necessarily mean the end of the Brotherhood; and even if this were the case, proof is abundant that the Brotherhood is not a bona fide company union but a mere sham set up to keep real labor organization out of the plaintiff's business. 118 THE PLAINTIFF'S PRINCIPAL AFFIDAVITS ARE FATALLY DEFECTIVE. Preliminary to taking up this point, it is necessary to digress for some pages to point out fatal defects in the body of the plaintiff's proof. An examination of the moving papers shows that the main corpus of the plaintiff's proof is to be found in Mr. Hedley's affidavit and this has been rather fully reviewed in the Statement of Facts, for that reason. In particular, when we come to the question whether there is such an urgent state of facts as to warrant a temporary injunction, almost complete reliance for proof must be put on Mr. Hedley's affidavit. If the body of it is fatally defective, proof fails and this motion must be denied. It is fatally defective. In at least 103 instances Mr. Hedley states important groups of facts upon information and belief and does not reveal the sources of his information or the grounds for his belief. The instances where this occurs are so numerous that it would be impossible to point out all of such recitals in his affidavit unauthoritatively made; that would involve restating most of his affidavit. Random samplings of such recitals are: Mr. Hedley states on information and belief that the plan of Wm. Green and other officials and members of the American Federation of Labor to destroy "company unions" assumed definite form at the annual meeting of the American Federation of Labor in October 1926 and that there were in attendance at said convention some 400 persons including Shea and Fitzgerald who represented the Amalgamated Association (p. 67); that, after the annual convention of the American Federation of Labor in October 1926, the defendants Mahon and Fitzgerald came to New York to confer with the leaders of the 1926 strike (p. 75); that the latter defendants and others conferred to formulate a course of action to have the injunction which the plaintiff had secured in December, 119 1926 vacated and to intimidate the judges of the courts in New York, and that the defendant Shea conferred with the Central Trades and Labor Council to enlist the service of organized labor in New York to support the fight of the Amalgamated Association to destroy the plaintiff's Brotherhood (p. 78); that various defendants retained Nathan Perlman to represent the Amalgamated Association to act as counsel for those against whom the plaintiff had secured an injunction order from the Supreme Court in December, 1926 (p. 79); that the defendant Green retained Hon. Robert Wagner to represent the American Federation of Labor in the litigation that was then pending (p. 83); that on July 13, 1927, Green had a secret conference with other defendants at the Hotel Continental with a view of breaking up the Brotherhood (p. 89); that the defendant Green and other defendants, on and after July 23, 1927, increased their activities to destroy the Brotherhood and called meetings of the various organizations affiliated with the American Federation of Labor to support them in this effort, and appealed to public officials to use their influence to coerce the plaintiff to recognize the Amalgamated Association and made threats of strike and influenced certain persons, who had become secret adherents of the Amalgamated Association, to sign the Two Year Contract with the plaintiff (p. 97); that the defendant Green, on July 17, 1927, caused or influenced a labor organization known as Typographical Union No. 6 to lend its efforts to the plan to destroy the plaintiff's Brotherhood (p. 99); that not more than eight employees of the plaintiff attended a mass meeting held in the Brooklyn Labor Lyceum on July 22, 1927 (p. 103); that various defendants consulted at the Hotel Continental on July 23, 1927 to prepare an ultimatum to be served upon the plaintiff; that preparations were made for calling a strike of the plaintiff's employees; that the ultimate purpose of the various defendants in enrolling the plaintiff's employees as members of the Amalgamated Association is to destroy 120, the Brotherhood and to bring about a general strike (p. 150). These and a multitude of other statements are made upon information and belief. Their incompetency will be shown later. Many vital facts stated by Mr. Hedley, not purporting to be upon information and belief but rather upon personal knowledge, cannot be said to be made upon knowledge because there is not a sufficient statement of other facts to warrant the inference that the deponent had personal knowledge. Random samplings of such statements are: Speeches are stated to have been made by the defendants Fitzgerald and Green with respect to "company unions"; the activity of the various defendants at the annual convention of the American Federation of Labor in October 1926 is described; and a resolution providing for the raising of a fund to destroy "company unions" is stated to have been passed at said convention (pp. 67-75). The defendant Coleman is alleged to have stated that the injunction order granted by Mr. Justice Delehanty in December of 1926 did not apply to him or to the Amalgamated Association (p. 84). At the meeting of various adherents to the American Federation of Labor in the Brooklyn Labor Lyceum on July 22, 1927, it is stated,: efforts were made to incite antagonism toward officers of the plaintiff Company and to incite the plaintiff's employees to strike; the activities of various defendants at said meeting are stated (pp. 104-105). The activities of various defendants at the annual convention of the American Federation of Labor held in October 1927 with reference to "company unions" are stated (p. 143). These and a multitude of other statements are made upon personal knowledge, it not appearing anywhere that Mr. Hedley had personal knowledge of the facts recited in these statements. An attempt is made in the closing paragraph of Mr. Hedley's affidavit to cure the defect by a blanket stateimnt that the sources of information and the grounds for 121 his belief "are reliable reports received by deponent, * * * including the accompanying affidavits, articles appearing in daily newspapers * * *, and official reports of conventions and proceedings and other official publications of the American Federation of Labor." TI-IE LAW GOVERNING AFFIDAVITS. The following rules with respect to the sufficiency of affidavits are well established and when applied to the affidavit of Mr. Hedley show that his is, in many respects, fatally defective: 1. An allegation which on its face is on information and belief merely, without stating the sources of the information or grounds for the belief, is a nullity. Buell v. Van Camp (1890), 119 N. Y. 160; Simmons v. Craig (1893), 137 N. Y. 550. 2. An allegation, positive in form, unsupported by a recital of such facts which would reasonably support the inference that the deponent has personal knowledge, will be treated as an allegation on information and belief. Lewis v. Tindel Morris Co. (1905), 109 App. Div. 509; Price v. Levy (1904), 93 App. Div. 274; James v. Signell (1901), 60 App. Div. 75. 3. If a statement, made upon information and belief, has its foundation in a communication from a third person, the deponent must set forth the substance of the communication, if it was oral, and, if written, sworn copies of the writing must be set out. Buell v. Van Camp, supra; Simmons v. Craig, supra. 4. It is essential to show either by necessary implication or specific allegations that the person. from 122 whom the information is derived has himself personal knowledge. Anthony d- Co. v. Fox (1900), 53 App. Div. 200; Steele v. Gilmour Mfg. Co. (1902), 77 App. Div. 199. 5. A good excuse must be given for failure to produce an affidavit of the person who has actual knowledge. Mere inconvenience will not suffice. It must appear either that the person is too ill to make the affidavit or is so far away that it would be impossible to secure his affidavit in time or that he has been requested to make the affidavit and has refused to do SO. Haskell v. Osborn (1898), 33 App. Div. 127; Delaney v. Bouse (1904), 91 App. Div. 437; Empire Warehouse Co. v. Mallett (1895), 84 Hun 619; Levy v. Goldstein (1896), 18 Misc. 639; Brwster v. Van Camp (1889), 8 N. Y. Supp. 588. The closing paragraph of Mr. Hedley's affidavit is a blanket attempt to cover fatal weaknesses in the same and the effect is to leave the reader in the dark as to the extent to which the deponent relies upon the various sources of information attached to the affidavit as exhibits for statements contained therein. Undoubtedly Mr. Hedley was informed by the nwnmerous spies which he empployed, but their names are not revealed and no excuses are given for the failure of those parties to make affidavits, as is required by the decisions. To have made these revelations would have substantiated further the claim made by the defendants that the plaintiff does not come into court with clean hands. In McCulloh v. Aeby & Co. (1889), 9 N. Y. Supp. 361, the court held invalid an affidavit in the concluding paragraph of which the deponent attempted to substantiate 123 numerous averments made upon information and belief by a general statement such as Mr. Hedley used in his affidavit. The court in speaking of that paragraph said: "And this defect (material averments made upon information and belief) has not been supplied by the statement made in the affidavit that the plaintiff's knowledge and belief had been derived from books, papers, agreements, and accounts of the parties to the action, in his possession, and from knowledge of the affairs of the company of which he is receiver, and its relations to and with the defendants, acquired while he was in its employ as bookkeeper for 14 months before his appointment as receiver." This case was cited with approval in Barrell v. Todd (1901), 65 App. Div. 22, Carrier v. United Paper Co. (1893), 73 Hun 287, and Ladenburg v. Commercial Bank of Newfoundland (1895), 33 N. Y. Supp. 821. One of labor's gravest charges against the use of injunctions in labor disputes rests on this very matter of irresponsible statements in affidavits. It must be borne in mind that an injunction can issue when such statements are its major support, and the defendants, in such case, cannot prove their worthlessness by cross examination. The plaintiff's spies do not run the risk of perjury as they would if compelled to make affidavits. No STRIKE Is THREATENED OR CONTEMPLATED. So much for the fatal defects in Mr. Hedley's affidavit. To return now from this necessary digression to the point that no substantial or irreparable injury is threatened, we see that the picture, which the plaintiff has endeavored to paint in its complaint and its supporting affidavits, is one in which it attempts to show that the various defendants, after organizing its employees into Local No. 977 of the Amalgamated Association, will immediately call a strike, and that the strike will be accompanied by the 124 same great violence as is attributed by the complaint to the Amalgamated Association in the strike of 1916. The plaintiff's affidavits fail to substantiate the statement that subsequent to July 26, 1927, a strike has been mentioned by the defendants or any of them. In fact, the affidavit of Mr. Hedley shows that, after the conference with Mayor Walker on July 26, 1927, all talk of a strike was abandoned and various affidavits submitted on behalf of the defendants in opposition to this application show that no strike is contemplated by any of the defendants. The proof upon this point has been so fully dealt with in the Statement of Fact in this Brief that it will not be repeated here. It should be briefly emphasized again that the whole history of the Amalgamated Association in achieving its objects, as specified in its constitution, shows conclusively that it is opposed to strikes. Indeed, the Amalgamated Association takes, and always has taken a conciliatory attitude, and strikes are resorted to only when conciliation fails and arbitration is refused. It has likewise been shown in the Statement of Facts heretofore given that the violence occurring on the plaintiff's lines in 1916 was the result of, and was directly caused by, the plaintiff's own conduct. If the employees of the plaintiff are successfully organized by the Amalgamated Association and thereafter the latter requests the plaintiff for higher wages and for improved conditions of labor, as it will have the right to do for there exists at the present time a crying need on the part of the plaintiff's employees for both, a strike will result only if the plaintiff refuses the request and also refuses to arbitrate the matter. If, therefore, there is ever a strike, it can result only from the plaintiff's taking, and persisting in, an arbitrary and autocratic attitude, which, of course, is not to be anticipated. The principal affidavit submitted by the plaintiff, viz., that of Mr. Hedley, is so fatally defective that the plain 125 tiff's proofs certainly establish nothing beyond the fact that the defendants are seeking merely by peaceful persuasion to induce the plaintiff's employees to become members of the Amalgamated Association. The inevitable conclusion to be reached from weighing the proof in the record is, therefore, that the defendants are inducing breach of contract only, assuming a contract exists, and, by means wholly lawful. No strike or violence is threatened by them and so the only possible violation of the alleged Two Year Contract relates to the promise of the plaintiff's employees not to join any union other than the Brotherhood. THE BREACH OF THE ANTI-UNION PROMIISE CAUSES ONLY TECHNICAL INJURY. Assuming, but not conceding, that the plaintiff has a valid contract with its employees not to join the Amalgamated Association, it is clear that the violation of this provision by its employees, as a result of peaceful persuasion used by the defendants, results only in a violation of a technical legal right of the plaintiff's and does not result in any substantial injury. It is clear that equity will not give relief where only nominal injury has occurred or is threatened. The following cases establish beyond question that equity will not interfere to protect the violation of a mere technical legal right. Wormser v. Brown (1896), 149 N. Y. 163. The plaintiff in this case sought to enjoin the defendants from erecting and maintaining bay windows which shut off light and air from the plaintiff's property. The trial court found as a fact that there was no irreparable injury done to the plaintiff's property even though light and air were shut off by the erection of the structures complained of. The court (p. 174) said: "As in this case there was no proof or finding that the plaintiff suffered any substantial damage, the doc 126 trinle of the ease, as cited, amply justifies tlie conclusions that the question whether the court would grant. or withhold relief by injunction was discretionary with the trial court." Doyle v. Metropolitan Elev. BY. Co. (1893), 1-36 N. Y. 505. This was an application for an injunction by the plaintiff as an abutting owner of property on a street to restrain the defendant's interfering with easements of light, air and access. The court, in denying injunctive relief, said (pp. 511-512) S**and the proof of damages was an indispensable element of the plaintiff's case as it ca~nnot be supposed that a court of equity will entertain jurisdiction to restrain a trespass which was not shown to have produced any damage or loss to the plaintiff." Mc~an~n v. GhasM Power LVo. (1914), 211 N. Y. 301. In this case the southern boundary of the defendant's property was the northern boundary of the plaintiff's property, and through the properties of both ran a stream. The defendant, for power development purposes, constructed a dam in the stream, as a consequence of which many acres of the plaintiff's property were flooded. The property of the plaintiff that was flooded was not valuable property, but it was nevertheless conceded that the defendant had no right to flood it. The plaintiff applied for an injunction restraining the defendant from continuing to flood the property, and the court, in denying the application, said (p. 305): "In the present case the plaintiffs have no equities and no larger or other claim than that an invasion of a technical and profitless legal right should be corrected.*** They have sustained no damage and there is neither finding nor request to find that the trespass was preventing or interfering with the plaintiffs' present or contem-plated use of their lands." 127 McHenwy v. Jewett (1882), 90 N. Y. 58. This was an application to enjoin the defendant from voting certain shares of stock which had been pledged to him by the plaintiff and which the defendant had transferred to his name upon the books of the corporation issuing them. The plaintiff set out in his application the transaction under which the defendant had secured the shares and it was conceded by the court that the right to vote on the shares remained in the plaintiff and did not pass with the pledge of them. The Court of Appeals in reversing the injunction order granted below said (p. 62): "It is not sufficient to authorize the remedy by injunction, that a violation of a naked legal right of property is threatened." The following cases are in accord with those above cited: Gray v. Manhattan Railway Co. (1891), 128 N. Y. 499; Adler v. Metropolitan Elev. Ry. Co. (1893), 138 N. Y. 173. No INJUNCTION WHEN THE INJURY Is REMOTE. As has already been stated, the plaintiff has failed to establish the likelihood of any substantial future injury as it had hoped to do by allegations that the Amalgamated Association would call a strike upon organizing the plaintiff's employees and by creating the impression that such strike would be accompanied by great violence. These assertions are unsupported by proof on the plaintiff's part and are specifically controverted by ample proof submitted by the defendants. It is clear that equity will not intervene where the injury which is threatened is remote and not likely to occur. Cases defining the limits of this doctrine follow: Mumford v. Roclk Springs Grazing Association (1919), 261 Fed. 842. The plaintiff applied for an injunction to prevent the defendant from interfering with the plaintiff's driving his sheep across the defendant's property. The 128 defendant, it seems, owned certain strips of land which made it impossible for the plaintiff to utilize the public domain for grazing purposes without trespassing upon them. The court in denying the plaintiff injunctive relief said (p. 849): "A court of equity will not intervene * " W unless it is first shown that the wrong has been threatened, and that it is his (defendant's) intent and purpose to carry the threat into effect, and that the person complaining will be irreparably injured. * * *" In re Penn Development Company (1915), 220 Fed. 222. This was an application by a creditor of an involuntary bankrupt seeking to prevent a judgment creditor, who had secured a judgment in a state court against the bankrupt, from enforcing the judgment, upon the ground that the enforcement of the judgment would deprive other creditors of the bankrupt of property which should be distributed among its creditors in proportion to their several claims. In denying the plaintiff's application the court said (p. 224): " " "::" neither is it alleged that the judgment creditor, or anyone acting for him or on his behalf, is about to, or has in any wise indicated that he will proceed to an enforcement of his judgment, either by the issuance of a writ of execution and sale thereunder, or otherwise." Again the court said (p. 224): "It (an injunction) will be issued, and its use is intended to prevent the infliction of threatened or imminent, and not merely possible, injury." Dalton Adding Machine Co. v. State Corp. Commission of Virgitnia (1913), 213 Fed. 889, affirmed 236 Fed. 699. The applicant for an injunction was a foreign corporation doing an interstate business in Virginia which sought to 129 enjoin the state authorities from subjecting it, as a foreign corporation, to the payment of license fees and penalties for failing to comply with the provisions of a Virginia statute. The bill of complaint alleged that the state threatened to commence proceedings to enforce the statute. The statute, the enforcement of which the complaint sought to prevent, contained elaborate provisions for redress. The court, in denying injunctive relief, said (pp. 892-893): "Injunctions are granted upon the theory that complainant is about to suffer irreparable injury, and that he is without a complete and adequate remedy at law." Morgan v. The City of Binghampton (1886), 102 N. Y. 500. The plaintiff sought to enjoin the construction of a sewer by the defendant city on the ground that his property, by reason of its proximity to the point of discharge, would, in a few years at least, be seriously damaged through the unhealthy conditions that would be created by a large discharge of sewage. The court, in denying his application, said (p. 502): "The theory of the finding (referring to the finding of the trial court) is that in one or two, and very surely in three years after the branch sewers are emptied into the Carroll Street sewer and have become largely connected with premises along their line, the discharge at the mouth of the Carroll Street sewer into the river will be strewn along its banks and then stranded upon lowlands. ': * The findings plainly disclose two characteristics of this apprehended danger. It is not imminent and is wholly contingent and not inevitable. No immediate danger exists. It is found to be possible within one or two years but not certain to occur sooner than in three years." And on page 504 the court said: "The injury described in the findings before us is problematic, distant, merely possible." 130 And, in People v. Canal Board (1874), 55 N. Y. 390, the court said (p. 397): "Injury material and actual, not fanciful or theoretical, or merely possible, must be shown as the necessary or probable results of the action sought to be restrained." In accord with the above cases see Genet v. Del. Hudson Canal Co. (1890), 122 N. Y. 505; Stillman v. City of Olean (1918), 184 App. Div. 323, (Rev. on other grounds, 228 N. Y. 322). No PRESENT DAMAGE WHETHER CONTRACT IS VALID OR INVALID. Assuming but not conceding that the contract which the plaintiff has with its employees entitles it to their services for a period of two years, it is clear that when a strike is actually threatened, the courts of this state can enjoin such strike. In other words, the plaintiff has an ample remedy in the event a strike should be threatened, and when that time comes, the plaintiff will be able to secure adequate relief, assuming it has a valid contract as it claims. The court should not at this time concern itself with injury which the proof upon this application shows to be unjustifiably anticipated by the plaintiff. The following cases sustain the proposition that a strike in violation of lawful contracts will be enjoined and that injunctive relief against striking in such a case violates no constitutional principle. If the promise to work two years be valid, equity will enjoin a future strike so no present injury is possible. If the promise is invalid, no right to a permanent injunction exists. The granting of an injunction prohibiting a strike and binding the individual members of a union does not violate the Thirteenth Amendment to the Federal Constitution. 131 See International Brotherkood of Electrical Workers v. Western Union Telegraph Go. (1925), 6 Fed. (2d), 444. See note 46 A. L. R. 1541. The problem of involuntary servitude was presented in Burgess Bros. Go. v. Stewart (1920), 112 Misc. 347, 361. and in Burgess Bros.. Go. v. Stewart (1921), 114 Misc. 673, 677. In neither of the last two cases, however, did the decree enjoin a strike, but left the workers free to leave their employer whenever they wanted. In Rosenwasser Bros., Inc. v. Pepper (1918), 104 Misc. 457, an examination of the last part of the opinion of Scudder, J., shows that the injunction specifically prohibited strikes during the continuance of the World War, and no constitutional difficulty regarding this provision was raised in the opinion. In Grcassi VContracting Co. v. Bennett (1916), 174 App. Div. 244, the court on page 248, said: "Where a strike, or other action, is threatened by a labor union in violation of its contract, or of the contract of its members with their employers, the jurisdiction of a court of equity to issue an injunction is well recognized (Reynolds v. Davis, 198 Mass. 294; Folaom v. Lewis, 208 if. 336; National Protective Assn. v. Cummring, 53 App. Div. 227; affd. 170 N. Y. 315; Cooke, Comnbinations, Monopolies, Labor Unions [2d ed.]; No. 67 and cases cited)." It is elementary, therefore, that a strike may be enjoined; in other words, that concerted action by a labor union, in violation of an existing contract may be prohibited. It follows, therefore, that the plaintiff in this case, assuming but not conceding that its Contract with the Brotherhood is valid, can have injunctive relief against the breach of the promise on the part of the workmen to give their service for two years. The only injury which the plaintiff can hope to show is that which may result from a strike following upon its workers' joining the Amal 132 gamated Association. But if the provision of the contract for two years' employment is valid, this threatened injury can be prevented by the courts when that occasion arises. No SUBSTANTIAL INJURyY HAVING TO DO WITH THE BROTHI-IErIOOD. But one other possible contention remains to the plaintiff as a justification for a temporary injunction and that is the immediate disintegration of its Brotherhood as a device for handling its labor problems. But there is no showing that that is threatened. Proof shows that the Amalgamated Association seeks only to get men to join it, not to get them to leave the Brotherhood. But if the contrary were true, the plaintiff has no interests in the Brotherhood worthy of protection. It is conclusively shown later (p. 186, et seq.) by reference to the constitution of the Brotherhood, to the circumstances attending its organization and to the manner in which the plaintiff has manipulated it, that it is not a bona fide company union but is a mere sham,-a pretense of an organization set up merely to keep real labor organization out of the plaintiff's business. This showing is decisive. It is not set out here but it should be turned to and examined at this point with care. If it were not a sham organization, any injury threatened would be injury to it. A cannot get an injunction to prevent injury to B. Why is not the Brotherhood suing? That is a question which needs answering yet the plaintiff ventures no answer. The argument on this point may be concluded and summarized in the following outline form. I. No real irreparable damage is threatened: a) No attempt is being made to have the employees cease work. 133 b) The difference between having employees who also belong to a union and those who belong solely to the Brotherhood is quite speculative and metaphysical so far as the tenor of their present work is concerned. c) Denying the injunction and allowing the men to choose their own organization may, of course, weaken the plaintiff's superior bargaibting position so that, at the end of the present "term" of employment, it may be obliged to bargain with a collective group, a group from which it cannot exact as favorable terms as it could when bargain ing with employees individually. 1) Denying the injunction will "injure" the plaintiff at most to the extent of equalizing bargaining power. 2) As will be shown under Point XV, all employers have to face the fact that their competitors may take away their employees after the end of a real period of employment. In the case of a talented artist this is a real loss. But courts cannot undertake to protect employers against possible loss after the term of employment. Protection extends only during the term of employment. Here the plaintiff is not threatened with the loss of services during the term, for no strike is threatened or contemplated. II. The only real damage that the plaintiff can suffer is the loss of the services of the employees. But if the plaintiff brings this upon himself by discharging men for joining a union, he is not in a position to complain. A recent case has a clear cut analysis of this point. In Diamond, Block Coal Co. v. United Mine Workers of America (1920), 188 Ky. 477, 277 S. W. 1079, no union men could be employed and those who joined a union were discharged; at least, if there was no express contract, the employees were given to understand that this was the em 134 ployers' attitude. An injunction restraining the union from peacefully persuading the men to join the union was denied. The court said that, so long as no violence was used, the defendant might peacefully persuade men to join the union. The justification was improving the status of the laborer. The court further said that the "proximate" cause of the loss of the employees' services is not the unionizing of the men but their discharge by the plaintiff who does not like union men. When a competitor tempts an employee to leave; or a non-competitor persuades him to quit, the loss of the employee's services is not due to the employer's own fault, as it would be in this case. If the injunction is denied and if services are lost by the men being discharged, that loss will not be due to the defendants' peaceful persuasion. 135 POINT IV. The granting of an injunction in this case would result in incomparably greater loss to the defendants than would result to the plaintiff from its denial, and, under such circumstances, equity will not grant an injunction. The doctrine of balance of convenience, clearly recognized in our courts, makes a temporary injunction inappropriate in this case. If this injunction is denied, the only injury to the plaintiff which can result is that some of its employees will join a labor organization other than its Brotherhood: The plaintiff's employees are not threatening to leave the plaintiff's employ and the defendants are not desiring or advising these employees to leave it nor, indeed, to leave the Brotherhood. On the other hand, if the injunction is granted, the sums spent by the Amalgamated Association in the effort to organize a true labor union among the plaintiff's employees will have been wasted and, far more serious, a blow will have been struck at the trade union movement of the entire country. The socially beneficial achievements of this movement have been such that it is no light matter thus to hamper its future. It shoiuld be considered in this connection that there is not even a bona fide company union to be benefited by the injunction. Then, too, there is ground for honest doubt as to the social wisdom of the use of the injunction in this type of labor controversy. The only injury which the plaintiff can rightly claim is resulting or will result to it is from the mere violation by its employees of the promise not to join any labor organization other than its Brotherhood. As has already been stated, this involves at most a violation of a technical legal right, assuming that the contract between the plaintiff and its employees is a valid one. There is no proof in the record that the plaintiff's employees have threatened or are threatening to leave the plaintiff's employ or that the defendants desire them to do so or that any of them are urging or advising or otherwise seeking to induce the plaintiff's employees to leave its employ. 136 In view of these facts, the plaintiff cannot claim that it will sustain substantial injury of any kind if its application for an injunction is denied. On the other hand, the defendant Amalgamated Association has expended considerable sums of money in a serious and honest effort to form a voluntary organization among the plaintiff's employees pursuant to its object to secure for them the advantages of trade unionism. If the plaintiff's application is granted, the sums heretofore spent by the Amalgamated Association will have been totally wasted. A much more serious consequence than the loss of money is the effect of the injunction upon the trade union movement in the United States which would, asi a consequence of an injunction in this case, be very seriously handicapped and damaged. The granting of an injunction in this case would undoubtedly result in depressing the ranks of labor or in working a material loss of membership and dues to tradei unions throughout the United States and would certainly very materially effect their growth. A court cannot lightly overlook the effect on the trade union movement of granting an injunction in this case. It would sanction a two year promise not to join a union which would be a complete bar to further organization of labor and would be taken as a sweeping condemnation of a responsible and conservative labor movement. The achievements and usefulness of the trade union movement under the American Federation of Labor, which are briefly reviewed in the affidavit of its president, William Green, have been such that a court should not lightly render a judgment which might impair such achievements in the future, and especially so where, as will be shown later, there is not even a bona fide company union to be benefited by the injunction. These considerations bring this case well within the category of cases, which, under the doctrine of balancing of convenience clearly recognized in the decisions of the 137 courts of this state, make a temporary injunction inappropriate. The scope and purpose of that doctrine in New York is shown by the following cases: MoClure v. Leaycraft (1905), 183 N. Y. 36. In this case the plaintiff sought to enjoin the defendant from erecting an apartment house and founded his right to the relief asked for upon restrictive covenants to which the defendand was subject and which prohibited the erection of apartment houses upon the property upon which the defendant sought to erect them. The restrictive covenants had been inserted in all deeds to that particular tract of property and dated back some considerable time. The character of the neighborhood had changed from that of a residential community to a business section and it was no longer desirable as a residential conrmunity and no longer profitable for residential purposes as compared to its use for commercial purposes. With these conditions in mind, the court said (p. 41): "It (equity) cannot set aside a binding contract. but when the effect would be inequitable owing to facts arising after the date of the agreement and not within the contemplation of the parties at the time it was made, it refuses to enforce the contract and remands the party complaining to his remedy at law through the recovery of damages." And (p. 44) the court said: "An injunction that bears heavily on the defendant without benefiting the plaintiff will always be withheld as oppressive." See also Trustees of Columbia College v. Thacher (1882), 87 N. Y. 311. In McCaivn v. Cha sm Power Co. (1914), 211 N. Y. 301, the court, while admitting the continuing trespass on the 138 defendant's part, nevertheless denied the plaintiff injunctive relief, saying (p. 305): "A Court of Equity can never be justified in making an inequitable decree. If the protection of a legal iright even would do a plaintiff but comparatively little good and would produce great public or private hardship, equity will withhold its, discreet and beneficial hand and remidt the plaintiff to his legal rights and remedies." In W~halen~ v. Union Bag ~& Paper Co. (1913), 208 N. Y. 1, 4, the court said: "It is not safe to attempt to lay down any hard and fast rule for the guidance of Courts of Equity in determining whether an injunction shall issue." In Schaiken~back v. National Vent Co. (1908), 129 App. Div. 389, the plaintiff sought to enjoin the defendant from making certain patented products pursuant to the terms of a license which had been granted to the plaintiff comnpany by him. The injunction application was, denied because the defendant, said the court (p. 394): Cý * * will sustain far greater damage by the is. suance of the injunction than plaintiff will sustaina if it be not issued." In Bro'wer v. W4illiamvs (1899), 44 App.. Div. 337, the court denied injunctive relief to the plaintiff who sought to restrain the defendant from tearing down a party wall and used the, following language (p. 340): "It can readily be seen that the damages susitained by him. (defendant), if the injunction were continued, would probably be largely in excess of any possible damage that the plaintliff would sustain by the tearing down of the old wall and the court properly refused on this account to continue the injunction." 139 See in accordance with the foregoing: People v. Canal Board (1874), 55 N. Y. 390; Morgan v. City of Binghanmpton (1886), 102 N. Y. 500. For a further discussion of the balance of convenience doctrine in injunction cases, see the able opinion by Learned Hand, J., in Smith v. Staso Milling Co. (1927), 18 Fed. (2d) 736. GENERAL CONSIDERATIONS. Finally, the court is entitled to know the studied opinions of able and thoughtful experts on labor problems as to the need for caution in the use of the injunction in labor cases and, in particular, as to the practical consequences of its use in cases such as this one. E. E. Witte (Wisconsin Legislative. Reference Library), The Value of Injunctions in Labor Disputes, The Journal of Political Economy, Vol. XXXII, February alnd December, 1924. "Most people associate injunctions with violence. They believe that but for injunctions violence in labor disputes would be well-nigh unrestricted, or, that 'the alternative is the soldier and the bayonet.' "At first glance this view seems correct. Injunctions are most commonly sought because violence has occurred, and almost without exception injunctions in labor disputes include prohibitions of acts of violence and intimidation. Likewise, many contempt cases growing out of injunctions in labor disputes are premised upon assaults and other criminal acts. "Upon further consideration, however, the value of injunctions in preventing acts of violence will not appear quite so obvious. Acts of violence are criminal offenses, in every state. To prohibit such acts in injunctions does not render them any more unlawful than they are without injunctions. 'The most drastic, severe, and permanent of all injunctions against violence is the penal law.' 140 "Nor do injunctions operate to increase the police protection enjoyed by employers. In a few instances federal courts have directed marshals, to swear in enough deputies to physically protect the property of complainants to whom they allow injunctions. But such a course undoubtedly is without warrant in law and has been seldom attempted. The courts do not conmmand the militia or the police. They will ordinarily not even assume responsibility for advising the executive when troops are needed. It is only through punishment for contempt after violations have occurred that injunctions can be enforced; unless, indeed, the fear of being cited for contempt deters lawbreakers (pp. 335-6). "In many strikes in which injunctions were issued, little or no violence occurred thereafter. In other cases, however, the issuance of an injunction seems, to have made little difference, or to have actually increased the violence (p. 338). "As a matter of law, injunctions in labor disputes are not issued to prevent crimes but to protect the property rights of employers. Hence, if injunctions are effective in preventing unlawful acts which fall short of crimes, their use in labor disputes is fully justified, even if they have often proven ineffective against acts of violence. But in this: respect, also, injunctions have often been a disappointment to eamployers (p. 340). "a" " + It is undeniable that the use of injunctions in labor disputes has had much to do with promoting the growing distrust of the integrity of the courts, and of the impartiality of the law that has been manifested in the last two decades. Not only the labor leaders, but the rank and file of the union workmen and also many unorganized workmen, feel that the use made of injunctions in labor disputes is grossly unfair. *" * While in specific cases, labor leaders have urged the union men to observe injunctions, organized labor has always insisted that 'constitutional rights permit of no compromise' (p. 347). c* * * It is undeniable that millions of organized workingmen ip. this country believe that the is 141 suance of injunctions in labor disputes is grossly unfair and that the courts are under the control of the employing class. Nor is this belief one which we can reasonably hope will in time disappear. On the contrary, it has steadily become more firmly rooted: and each new injunction supplies it with fresh nour ishment, and that regardless of the circumstances or merits of the case. "The conviction that the law is, unjust and that its administration is unfair has had much to do with the great amount of lawlessness which has characterized labor disputes in this country. When men feel that they are not being given a fair chance, they will not observe the rules of the game. The spirit is that which was expressed by a leading labor lawyer in the statement: 'Law is a game in which everybody slugs. I slug for labor.' Interference by the courts in strikes is bitterly resented by the workingmen. The employer who appeals to the courts is labor's 'dearest foe.' Such employers are singled out to be boycotted; no efforts are spared to force them to come to terms. "The employers of the country, as a class, have been ardent champions of injunctions in labor disputes. But it is undeniable that in fighting strikes employers have resorted to methods of self-help not unlike those employed by strikers. Nothing shows this more clearly than the fact that no great strike is fought nowadays without resort to armed guards and strike-breakers furnished by numerous private detective agencies'. "In view of these facts, questions like these arise: Is the use of injunctions in labor disputes worth while? Who is benefited by injunctions? Has anybody, or any group of persons or class derived advantages from the issuance of injunctions which can fairly be said to offset the consequences of the distrust of the courts which their use in labor disputes has engendered? "The benefits from injunctions are, to say the least, questionable. Employers who have relied upon them to protect their property and their employees have often found that they afford but poor protection. Nor is.there any evidence that injunctions have prevented strikes or hastened their settlement. In states, like Massachusetts, where the decisions of the courts 142 in injunction cases have been most uniformly against labor, at least as many strikes have occurred as in states where injunctions in labor disputes are much less common. The United States probably has more strikes both in absolute number and relative to population than any other country. Certainly, violence and intimidation are much more common in connection with strikes in the United States than anywhere else in the world. "In contrast, the harmful results from the use of injunctions in labor disputes are very evident and undeniable. As expressed by President Roosevelt in a special message to Congress as long ago as April 27, 1908: 'They are blind, indeed, who fail to recognize the bitterness, caused among large bodies of worthy citizens by the use that has repeatedly been made of the power of injunctions in labor disputes.' Whether this feeling is warranted or unwarranted need not here be discussed. The significant fact is that this feeling exists, has survived for many years, and appears to be growing ever stronger. The existence of this feeling constitutes a grave menace to this country, which renders timely serious attention to the question, whether there is not some better way of dealing with labor disputes than we are now pursuing" (pp. 354-6). Jacob H. Hollander, Economic Liberalism. The Abington Press, 1925. 4" * * Liberalism is emphatic in opposition to the use of injunction in trade disputes. It regards the procedure ineffective as to purpose, mischievous as to result, and, most important of all, unsound as to basic theory. "As to the first, the labor injunction has, in the opinion of the most careful students of industrial controversy, failed signally to accomplish the direct end in view. Its immediate design is to prevent acts of violence. But acts of violence are in all States criminal offenses. To prohibit such acts by injunction does not render them any more criminal than they would otherwise be. Moreover, injunctions do not 143 increase the police protection enjoyed by employers. They can be enforced only by contempt proceedings, and in practical experience delays and appeals have ordinarily divested this of any real usefulness to the employers. "Nor have injunctions served much better to realize what in point of law they are designed to accomplish -the prevention of unlawful rather than of criminal acts; that is, to protect the property rights of employers rather than to prevent acts of violence (pp. 127-8). "Liberalism has no sympathy with the predetermination of a trade dispute in this manner. It regards effective organization and collective bargaining as an indispensable guaranty of industrial welfare. In such bargaining competitive equality should be present; certainly it must not be precluded. If the employer has easy and certain recourse to injunction, there is no possibility of equality. He comes to the conference table with the assurance of judicial reinforcement; he takes the field with the knowledge that the enemy's guns are spiked. "An eminent jurist has referred to the grave error, from the standpoint of popular respect for law and the courts, of 'compelling the United States courts to take up the shock of our industrial warfare' and of 'placing upon our federal courts the nonjudicial duty of maintaining the negative side of the dispute while organized labor maintains the affirmative.' But far graver than its reaction upon public respect for law is the extent to which the labor injunction violates the principle of a square deal in the tense game which, stripped of sentimentality, is, after all, the essence of industrial controversy. "In bargaining, even in fighting, the worker is entitled to at least a fair field and no favor. He must conform to the rules of the debate, or of the ringside, but his antagonist should not have the tactical advantage of knowing that, while discussions go on, an automatic is within his own reach, or that, if an actual fight develop, his opponent's hands are tied" (pp. 131-2). 144 Although injunctions have been used by employers in this country quite extensively during the last four decades, their use still causes increasing doubts and misgivings in the minds of thoughtful students of the labor problem. To date, however, the injunction has been used almost wholly in connection with strikes. Their wisdom there is doubtful enough. But here the plaintiff is attempting to use the injunction in times of peace, i. e., when no strike is present. This is an attempt at an innovation as unfortunate as it is startling. Are we to enter a new era in which the struggles between workers and their employers are to be pre-determined by manoeuvers carried out in time of industrial peace under cover of injunctions granted when no strikes are threatened or contemplated? That is a possibility which even experts on labor matters had not anticipated and, hence, condemnation of it has not yet found its way into the literature on the subject. That they will condemn this dangerous innovation, una voce, is certain. 145 POINT V. Granting of an injunction according to the prayers of the complaint would result in a constitutionally invalid decree, and, aside from this, one which it is not practical to enforce. A judgment of a court of equity operates in personam and, to be valid, can be had only after personal service of a summons; yet injunctive relief in this case would result in a decree against individuals most of whom are non-residents of the State of New York. Aside from constitutional difficulties, the enforcement of a decree against the 2,800,000 members of the American Federation of Labor would be so difficult as to be in practice futile and it is well settled that a court of equity will not attempt to do a futile thing. The granting of injunctive relief against all the members of the association defendants as is prayed for in the complaint would result in a decree against individuals most of whom are non-residents of the State of New York and have not been served vwith process in this action. In its constitutional aspects, a case involving equitable relief presents more serious difficulties than an action for damages only since a judgment of a court of equity operates in personam and such a judgment to be valid can only be had after personal service of a suimmons. The General Associations Law permitting suit against unincorporated associations by service upon an officer of the association should not be construed to confer jurisdiction upon the court to issue a decree in equity against non-resident members of the association, for such a construction of the statute would render it unconstitutional and void at least, pro tanto. In United States & Cuban Corp. v. Lloyds (1923), 291 Fed., 889, Learned Hand, J., said (p. 891): "I do not mean that Section 13 of the General Associations Law should be read as attempting so to 146 extend the jurisdiction over persons not within the boundaries of the state. Yet if the argument be that it should be thus extended and there be no escape from such a construction, it is void pro tanto. That will be a valid reason for not so reading it." See also Flecner v. Fwrson_ (1919), 248 U. S., 289. Aside from constitutional difficulties, the court could not, as a practical matter, enforce its decree against the approximately two million eight hundred thousand members of the American Federation of Labor without great difficulty and it would be of doubtful wisdom for a court to make a decree which could not as a practical matter be enforced with reasonable ease and certainty. It is well settled that a court of equity will not attempt to do a futile thing. The ultimate wisdom of a decree is within the sound and prudent discretion of the chancellor. 147 POINT VI. A temporary injunction is improper in this case because it is equivalent to permanent relief. Labor injunction cases are seldom pressed beyond the point of securing a temporary restraining order. The plaintiff's failure for eighteen months to notice the Lavin case for trial and its failure for three months to notice the present case for trial show that the ultimate relief actually sought is a temporary injunction. Such an injunction will not issue in any case where it will give the plaintiff, as a matter of substance, all it wants and would get if it obtained a permanent injunction. It is common knowledge that, in actions for injunctions in labor disputes, only a temporary restraining order is ordinarily sought, no effort being made to prosecute the action until a permant injunction is obtained. But apart from the general practice in labor litigation, it is clear that the plaintiff in the present case seeks only a temporary restraining order. It appears from a bare inspection of the public records of the state that the action for an injunction brought by the plaintiff against Lavin, et als., on July 13, 1926, has not, in the year and a half which have elapsed, been noticed for trial. The present action was brought about three months ago and it has not been noticed for trial. It is obvious, therefore, that the sole and ultimate relief actually, as opposed to theoretically, sought by the plaintiff is a temporary restraining order. It is a well settled principle of equity jurisprudence that a temporary injunction will not issue in any case where such temporary injunction will give to the plaintiff, as a matter of substance, the full relief which he wants and would get if he successfully prosecuted his action and obtained a permanent injunction. See Maloney v. Katzenstein (1909), 135 App. Div. 224, and cases cited; Bronk v. Riley (1888), 50 Hun, 489; Byrnes V. Kaufwein Realty Co., Inc. (1923), 206 App. Div. 306; West Side E. 148 Co. v. Consol. Subway Co. (1903), 87 App. Div. 550; Newgold v. Childs Co. (1911), 148 App. Div. 153; Carter v. Phillips (1926), 127 Misc. 903. The reasons supporting this principle are urgent and substantial. In the first place, a temporary injunction is, as a rule, issued on evidence contained solely in affidavits not subject to cross examination and notoriously often replete with perjury. In the second place, this court does not need to be cited to the numerous cases in the books in which permanent injunctions have been refused after preliminary injunctions had been issued on affidavits. In these cases, as this court well knows, it has been found that the facts set out in the affidavits submitted at the preliminary hearing were not substantiated on the final hearing. Where the granting of a temporary injunction is tantamount to giving final relief, the defendant is exposed to all the foregoing hazards. Specifically in the case which is now before this court for decision, granting the present motion on behalf of the plaintiff would so disrupt the legitimate organization activities of the defendant union, would so dishearten the employees of the plaintiff, would so discourage unionization of industries other than the present one that, whatever might be the outcome of the final hearing, the plaintiff would have achieved all that it desires. Be it noted, what the plaintiff apparently desires is not merely prevention of unionization on its own lines but a death blow to the American Federation of Labor which represents the working men of the United States, Canada and Mexico in the pursuit of their lawful purpose. It is no answer to the foregoing argument that the defendants may, at any time, notice this case for trial because the question is what relief the plaintiff is actually trying to obtain in the present action. It is its failure to notice the case for trial which demonstrates that the sole relief actually sought is the temporary order. The Jdefendants are not in this case actively seeking relief. 149 If the plaintiff feels that its rights are being inf ringed, then it is the plaintiff who must be diligent and it is the plaintiff who must notice this case for trial. Certainly, a court of equity will take this fact into consideration in determining whether in its discretion it should accord its extraordinary relief, in the form of a temporary injunction based on affidavits not safeguarded by cross examination, to a complaining party who is actually seeking no permanent relief. 150 POINT VII. The plaintiff cannot obtain a permanent injunction because it does not come into equity with clean hands. The temporary injunction also must, therefore, be denied. It is well understood and fully established in the cases that courts of equity prescribe high standards for suitors therein. Now in the instant case the proof shows that the standards of the plaintiff company have been astonishingly low-so low as to leave no doubt that it comes into equity with unclean hands. It has employed force and violence against striking employees and even against its own strikebreakers; it has discharged men for spurious reasons and has discriminated in every possible way against members of the Amalgamated Association, and has, at the same time, utilized invidious preferences in employing or promoting men; it has denied to its men constitutional freedom of speech and action; it has created an atmosphere of distrust and terror with its spies; it has browbeaten its employees into courses of action pleasing to the Company. Even more unconscionable has been the plaintiffs conduct toward the public. It has spent in spying and in other improper repressive activities, hundreds of thousand of dollars that should, under the Dual Contract, have gone to the taxpayers of the City of New York; it has not selected employees on the basis of rendering efficient service to the public; it has even managed to have a spurious strike as a means of securing an increase of fares; it has negotiated with public officials while at the same time taking steps to nullify the effect of the negotiations; it is engaged in illegally boycotting the Amalgamated Association. Many other items of inequitable conduct and unfair dealing will be taken up later in this Brief, but sufficiently numerous items have already been cited to bar the plaintiff at the threshhold of the case. At the threshold the plaintiff is barred by its inequitable conduct. The facts, not only those from the defendants' affidavits but those from public records and even from the plaintiff's own admissions, point clearly to the plaintiff's unconscionable conduct. It is not necessary at all to advert to the question of whether the defendants' conduct would actually entitle the plaintiff to any relief. A mere rehearsal of some of the facts already indicated in the 151 Statement of Facts with which this Brief opened is sufficient. The plaintiff's conduct in regard to its employees must operate to deprive it of any relief from equity in this action. During the 1916 strike, to which reference has been made before in this Brief and to which further reference will be made later, it is clearly shown that the plaintiff Company employed force and violence not only against the striking employees but also against the very strikebreakers whom it employed during that strike. The hearings before the Public Service Commission during 1916, reference to which has been made before, showed beyond a shadow of a doubt that the plaintiff employed gunmen through the well-known professional strikebreakers, Berghof Bros. and Waddel. These strikebreakers and the men who had not struck were kept forcibly at work and mercilessly beaten when they refused to go on. One might concede that the plaintiff would be privileged to discharge any of its men who joined a bona fide labor union without being subject to any legal liability. However, the plaintiff Company has not discharged men for that reason. The affidavits submitted by the defendants detail instances which, summed up, show that the plaintiff Company has created an atmosphere of terror by constantly putting men in fear of discharge for the slightest real or forced excuse, but not for joining the Amalgamated Association. Men who have joined the Amalgamated Association or are suspected of having joined it are discriminated against in every possible way. False charges of inefficiency, insubordination, neglect of duty and other things of which an honest workman would not be guilty are made. In this manner the Company expects to set an example to others not yet affiliated with the Amalgamated Association not to sympathize with or belong to the Amalgamated Association. The Company has shadowed with spies and has pried into the personal affairs of members of the 152 Amalgamated Association. It has induced spies to secure the confidence of members of the Amalgamated Association under false pretenses and then betray that confidence. Above all, the Company has constantly denied to its men constitutional freedom of speech and actions. Affidavits and exhibits attached to the moving papers show that the officers of the Company have circulated false notices subtly implying or stating outright that merely to attend public meetings of the Amalgamated Association is a breach of contract and that they have made verbal and covert written threats that all persons merely attending Amalgamated meetings would be discharged. When meetings were held by the Amalgamated Association, hundreds of spies and "bosses" and Brotherhood delegates have blocked the streets adjacent to the meeting hall so as to frighten away any employees of the plaintiff who might wish to attend the meeting, not necessarily in order to become members of the Amalgamated Association but to hear discussed matters affecting their personal welfare. So much does this atmosphere of terror pervade the lives of employees that they cannot congregate in groups of more than two oir three because of the fear that they will be suspected of discussing the betterment of their conditions and then be discharged. The Company has not only shadowed the men with spies at work and after work, but, even at the meetings of the Brotherhood, spies have been maintained to report to the Company the names of any employees who were too vociferous in complaining of their working conditions. Men so reported to the Superintendent have been upbraided on many occasions. The Statement of Facts indicates many occasions upon which the officials of the Company have browbeaten their employees. For example, before the last general election, the men were told by their superiors that, if they did not vote against the proposed Amendment 1No. 2 to the State Constitution, which authorized a bond issue for new sub 153 ways in the city of New York, they would be subjected to punishment of some sort by the Company. The plaintiff Company, as part of this atmosphere of terror, has made invidious preferences in employing or promoting men. As an example, the re-employment of Edward Lavin, a defendant in the present action, may be cited. Edward Lavin led the strike of 1926 and was subsequently expelled from the Amalgamated Association for having Communistic tendencies. The plaintiff Company has re-employed Edward Lavin at a salary far in excess of that which he previously received. Not only does the plaintiff's conduct in reference to its employees bar it from equitable relief but likewise its conduct in relation to the public. The Dual Contract with New York City, under which the plaintiff operates, provides that the profits are to be divided between the city and the company. In the Statement of Facts reference has been made to the Report of the Transit Commission of December 10, 1927. That report shows that hundreds of thousands of dollars have been spent by the plaintiff Company on the Brotherhood and for spotters whose business it was to see to it that the men should not have any contact with any labor organization. This money should properly have gone to the taxpayers of the city of New York. The very large amounts of money spent by the Company in maintaining the Brotherhood organization, in supplying special quarters for the Brotherhood, in paying the salaries of Brotherhood officials for time not spent in Company employment should likewise have been paid to the taxpayers of the city of New York or spent in improving the service rendered to the public. Twelve thousand dollars ($12,000) a year has been paid to Ivy Lee, as the Transit Commission hearings show, in large part for organizing and carrying on the Company's Brotherhood. This unjust withholding from the taxpayers of New York City of money rightfully belonging to them under 154 the Dual Contract and the failure to provide more efficient and adequate service on the plaintiff's rapid transit lines have gone on for over a decade with impunity. Moreover, under the Public Service Commission law, Section 26, the plaintiff company is obligated to render adequate, safe and efficient service to the public. The squandering of money by the plaintiff and the selection of employees upon the basis of servility to the Brotherhood not merely deprive the citizens of New York City of what should properly be given them but also betray the trust which the Company assumed on incorporation under the laws of the state. The plaintiff's practice in refusing to employ men who do not belong to its own employees' organization should in itself clearly put the plaintiff beyond relief in a court of equity. By this practice men are chosen not on the basis of their ability to perform service efficiently and loyally, but upon a basis wholly unconnected with efficient service. The underhandedness of the plaintiff, its utter disregard for public welfare, its history of fraud and deception may well be illustrated by the strike of 1919 and by the public utterances of the plaintiff's officials in referring to that strike. As the affidavits indicate, it is a matter of public knowledge in this city that the strike of 1919 was not called by the employees themselves but by the officials of the Company in the hope of securing an increase in fares. The men were simply told not to report for work, and then, through the publicity department of the plaintiff Company, the report was given out that the men had voluntarily struck. This strike was part of a scheme to deceive the citizens of New York into a belief that only by an increased fare could the employees of the plaintiff receive a living wage. Moreover, the officials of the Comn pany told the Board of Estimate of the City of New York that the men had walked out voluntarily. 155 The conduct of the plaintiff's officials before the 1916 strike, which the plaintiff makes a part of its case, is dramatically presented in the report of the hearings of the Public Service Commission during 1916 and in the affidavit of W. B. Fitzgerald. These documents show that, while the officials of the plaintiff Company were negotiating with Mayor Mitchell and with the members of the Public Service Commission, they were secretly compelling individual employees to execute contracts with the Company, thus frustrating the efforts of the Public Service Commission and the defendant, the Amalgamated Association, peaceably to settle the controversy by arbitration already agreed upon. The Company had solemnly agreed with the Public Service Commission, with Mayor Mitchell and with the Amalgamated Association that all disputes would be submitted to arbitration. Nevertheless, when the Amalgamated Association requested that the Company submit to arbitration the question of whether the individual employees had not been made to sign their individual contracts by fraud, duress and other unlawful means the Company officials refused to arbitrate. It was this breach of faith that caused the strike of 1916. Lastly, the evidence is convincing that the plaintiff organized the Brotherhood and has maintained it solely to cripple the efforts of organized labor in this city. In other words, the plaintiff Company is engaged in illegally boycotting the Amalgamated Association. Authority on this aspect of the present case is not wanting. One need cite in support only McCord v. Thompson Starrett Co. (1908), 129 App. Div., 130, affirmed (1910) by the Court of Appeals in 198 N. Y., 587. That case was an action on a bond by a building trades employers' association against one of its members. The bond was conditioned on the members' employing as carpenters no members of the Brotherhood of Carpenters. In effect it was conditioned upon the members' employing only carpenters affiliated with an apparently sham labor 156 union called the Greater New York Carpenters Union. The court found the condition illegal and against public policy. The court said (p. 132): "While an individual employer may lawfully agree with a labor union to employ only its members because such an agreement is not of an oppressive nature operating generally throughout the community to prevent craftsmen in the trade from obtaining employment and earning their livelihood, yet such an agreement when participated in by all or by a large proportion of employers in any community becomes oppressive and contrary to public policy because it operates generally upon the craftsmen and the trade and imposes upon them as a penalty for refusing to join the favored union the practical impossibility of gaining employment at their trade and thereby gaining a livelihood." In this case a vast labor market is absolutely dominated and controlled by the plaintiff Company and the BrooklynManhattan Transit Company which, as the record shows, has a company union and an anti-union stipulation like the plaintiff's. The methods used by the plaintiff in organizing the Brotherhood, in preparing its Constitution, in securing the execution of the alleged TWo Year Contract as well as the provisions of these instruments are all matters of vital significance in relation to the inequitable conduct of the plaintiff. All of these matters are gone into fully in later parts of this Brief and the showing there made is that of an abundance of inequitable conduct and unfair dealing. The foregoing recital of conduct rendering the plaintiff's hands unclean may well be projected against a statement of the law which shows the high standard of conduct which courts of equity prescribe for suitors therein. One of the best statements of this law is that found in Weegham v. Killefer (1914), 215 Fed. 168. The facts of the case were that the plaintiff, a Chicago ball club, sought in 157 junctive relief against Killefer, a ball-player, and the Philadelphia National League Club, preventing the latter from employing the ball-player. Killefer during the 1913 season was under contract with the Philadelphia club which, at the close of that season, notified him that it desired his services for the ensuing season. The court held that the reserve clause or option clause of the contract did not purport to give the employer the right to. renew the contract on the same terms as the preceding season so that the original agreement was nothing more than a contract to enter into a contract in the future. In other words, no contract existed between the Philadelphia club and Killefer when the plaintiff executed with him a written contract calling for his services during the 1914 season. The court, however denied injunctive relief to the plaintiff because it had negotiated a contract with the ballplayer knowing of the expectations of the Philadelphia club to renew the employment of Killefer. In other words, while the plaintiff did not induce the ball-player to breach a contract of employment, it nevertheless was aware of the moral obligation he was under to the Philadelphia club and the court considered this conduct on the plaintiff's part to constitute unclean hands. For this reason it denied injunctive relief. The court said (pp. 171-173): "The principle embodied in the maxim, 'He who comes into equity must come with clean hands,' is a cardinal one, lying at the foundation of equity jurisprudence. Equity imperatively demands of suitors in its courts fair dealing and righteous conduct with reference to the matters concerning which they seek relief. He who has acted in bad faith, resorted to trickery and deception, or been guilty of fraud, injustice, or unfairness will appeal in vain to a court of conscience, even though in his wrongdoing he may have kept himself strictly 'within the law.' Misconduct which will bar relief in a court of equity need not necessarily be of such nature as to be punishable as a crime or to constitute the basis of legal action. 158 Under this maxim, any willful act in regard to the matter in litigation, which would be condemned and pronounced wrong by honest and fair-minded men, will be sufficient to make the hands of the applicant unclean. Both courts and text-writers have repeatedly spoken upon this subject in no uncertain language. "In Michigan Pipe Co. v. F'remont Ditch, Pipe Line & Reservoir Co. (1901), 111 Fed. 284-287, 49 C. C. A. 324, 327, the Circuit Court of Appeals of the Eighth Circuit, speaking by Judge Sanborn, said: " 'A suit in equity is an appeal for relief to the moral sense of the chancellor. A court of equity is the forum of conscience. Nothing but good faith, the obligations of duty, and reasonable diligence will move it to action. Its decree is the exercise of discretion, not of an arbitrary and fickle will, but of a wise judicial discretion, controlled and guided by the established rules and principles of equity jurisprudence. One of the most salutary of these principles is expressed by the maxims, "He who comes into a court of equity must come with clean hands" and "He who has done inequity cannot have equity." A court of equity will leave to his remedy at law-will refuse to interfere to grant relief to-one who, in the matter or transaction concerning which he seeks its aid, has been wanting in good faith, honesty, or righteous dealing. While in a proper case it acts upon the conscience of a defendant, to compel him to do that which is just and right, it repels from its precincts remediless the complainant who has been guilty of bad faith, fraud, or any unconscionable act in the transaction which forms the basis of his suit.' "In Dewoeese v. Reinhard, 165 U. S., 386, 17 Sup. Ct. 340, 41 L. Ed. 757, Mr. Justice Brewer, speaking for the courts, said: " 'A court of equity acts only when and as conscience commands, and if the conduct of the plaintiff be offensive to the dictates of natural justice, then, whatever may be the rights he possesses and whatever use he may make of them in a court of law, he will be held remediless in a court of equity.' "In La'cheid v. Kittell Mfg. Co., 142 Wis. 172, 175, 125 N. W. 442, 443 (20 Ann. Cas. 576) the Supreme Court of Wisconsin said: 159 " 'The exclusion of a plaintiff from the peculiar favors of courts of equity results equally where his conduct has been unconscionable by reason of a bad motive, or where the result in any degree induced by his conduct will be unconscionable either in the benefit to himself or the injury to others.' "Mr. Pomeroy in his work on Equity Jurisprudence, paragraphs 398, 400 and 404, says: " '* * * While a court of equity endeavors to promote and enforce justice, good faith, uprightness, fairness, and conscientiousness on the part of the parties who occupy a defensive position in judicial controversies, it no less stringently demands the same from the litigant parties who came before it as plaintiffs or actors in such controversies. "'A contract may be perfectly valid and binding at law; it may be of a class which brings it within the equitable jurisdiction, because the legal remedy is inadequate; but, if the plaintiff's conduct in obtaining it, or in acting under it, has been unconscientious, inequitable, or characterized by bad faith, a court of equity will refuse him the remedy of a specific performance, and will leave him to his legal remedy by action for damages. " 'It is not alone fraud or illegality which will prevent a suitor from entering a court of equity; any really unconscientious conduct, connected with the controversy to which he is a party, will repel him from the forum whose very foundation is good conscience.' "Mr. Eaton in his work on Equity, at page 74, says: " 'The maxim applies not only to fraudulent and illegal transactions, but to any unrighteous, unconscientious, or oppressive conduct by one seeking equitable interference in his own behalf. A court of equity will not decree the specific performance of a contract unless it is strictly equitable, and free from trickery and deception on the part of the party seeking such performance. Even if the inequity of the plaintiff is insufficient to warrant the court in canceling the contract, yet the plaintiff may be refused its enforcement. And equity will refuse its aid in the enforcement of a contract where the plaintiff has practiced fraud on the defendant, and also where 160 the plaintiff has been guilty of unconscionable conduct which does not amount to legal fraud.' "Authorities to the same effect might be multiplied indefinitely. The foregoing will suffice to state and to define the universally accepted and adopted rule upon this subject. The principle thus broadly enunciated is not confined in its application to controversies of any particular nature or class, but extends generally to all cases cognizable by courts of equity. It is, however, peculiarly appropriate and applicable to cases like the present one, where relief will not be granted as a matter of strict right, but must result from the exercise of a sound judicial discretion. Measuring and testing their conduct, by this rule, are the plaintiffs in court with clean hands? Knowing that the defendant, Killefer, was under a moral, if not a legal, obligation to furnish his services to the Philadelphia Club for the season of 1914, they sent for him, and by offering him a longer term of employment and a much larger compensation, induced him to repudiate his obligation to his employer. In so doing a willful wrong was done to the Philadelphia Club, which was none the less grievous and harmful because the injured party could not obtain legal redress in and through the courts of the land. Can it be doubted that, if the plaintiffs had not interfered, Mr. Killefer would have carried out his agreements with the Philadelphia Club in honesty and good faith? The plaintiffs and Killefer both expected to derive a benefit and a profit from their contract, and both knew that such contract, if performed, would work a serious injury to the Philadelphia Club. The conduct of both is not only open to criticism and censure, but is tainted with unfairness and injustice, if not with actionable fraud. To drive a shrewd bargain is one thing and to resort to unfair and unjust practices and methods in order to obtain an advantage over a business rival or competitor is another. Courts of equity may protect and enforce the former, but will not sanction nor lend their aid to the latter. While it is true that the plaintiffs and Mr. Killefer have entered into a legal and binding contract, for the breach of which the one may be compelled to respond in damages to the other, it is also true that, because both have acted wrongfully 161 and in bad faith, a court of equity will neither adjust their differences nor balance their equities. The motion for an injunction must be denied, not because the executory part of the 1913 contract between the defendants was of superior or any legal force and effect, not because the contract between the plaintiffs and defendant, Killefer, is not in itself such a one as the courts will enforce, not because there are any equities in Killefer's favor which excuse or exempt him from the performance of his engagements, and not because the merits of the controversy are with the Philadelphia Club, but solely because the actions and conduct of the plaintiffs in procuring the contract, upon which their right to relief is and must be founded, do not square with one of the vital and fundamental principles of equity which touches to the quick the dignity of a court of conscience and controls its decision regardless of all other considerations." 162 POINT VI. The court is at liberty to consider and, indeed, under a duty to consider the whole question broadly, including those aspects of the general labor problem which are affected by this litigation. It is an elementary principle established by the uniform practice of courts through the centuries that a court of equity is at complete liberty to consider any and all material which will aid it to make a wise use of its discretion. In this present litigation an all-pervading issue is whether the plaintiff's anti-union promise from its men is opposed to public policy. If the court has doubt as to the sound public policy of this anti-union promise, the temporary injunction is to be denied. Now the only test of sound public policy is a consideration of probable effects upon public welfare. On this, fortunately, there is extant an abundance of scientific data and reliable expert opinions in the field of labor relations, and a court of equity cannot be denied access to such material, especially when called upon to exercise the broad discretion involved in the issuance of a temporary injunction. In the first place, it is to be noted that this is a court of equity, endowed with all the powers of a Chancellor and so acting. When such a court is passing upon a motion for a temporary injunction, no rules of evidence, such as are applicable to the trial of an issue of fact in an action at law -or in hearings on the merits in equity, apply to limit the court in any way. The Chancellor is at complete liberty to consider any and all material from any and all sources which will shed any light for him on the wise exercise of his discretion. The discretion lodged with the court in such cases is a weighty responsibility and the exercise of it in a wise fashion cannot be jeopardized by attempts to prevent the court's scrutinizing any facts or opinions whatsoever that it may find illuminating. This is an elementary principle established by the uniform practice through the centuries in the high court of equity 163 in England and by chancery custom and practice throughout this country since colonial days. The Court of Appeals in People v. Schweinler Press (1915), 214 N. Y., 395, has put beyond question the relevancy of economic data and expert social opinion when the issue before the court is the constitutionality of a statute affecting labor relations. Indeed, the court in that case gives as one of its two reasons for overruling People v. Williams (1907), 189 N. Y., 131, the fact that such economic and other scientific material as is presented in this case-the belief and opinion that night work in factories is injurious to the health of women-had not been called to the attention of the court in deciding the Williams case. In this connection the court says (p. 412): "So, as it seems to me, in view of the incomplete manner in which the important question underlying this statute-the danger to women of night work in factories-was presented to us in the Williams case, we ought not to regard its decision as any bar to the consideration of the present statute in the light of all the facts and arguments now presented to us and many of which are in addition to those formerly presented, not only as a matter of mere presentation, but because they have been developed by study and investigation during the years which have intervened since the Williams decision was made. There is no reason why we should be reluctant to give effect to new and additional knowledge upon such a subject as this even if it did lead us to take a different view of such a vastly important question as that of public health or disease than formerly prevailed. Particularly do I feel that we should give serious consideration and great weight to the fact that the present legislation is based upon and sustained by an investigation by the legislature deliberately and carefully made through an agency of its own creation, the present factory investigating commission." If such material is relevant when a court of law is passing upon the question of the constitutionality of a statute, 164 by the much more so is it relevant when a court of equity is called upon to exercise the extraordinary broad discretion vested in it, with reference to the issuance of a temporary injunction. Finally, one of the all-pervading issues of this litigation is whether or not. the plaintiff's anti-union promise is opposed to public policy. Public policy means merely what is good for the public welfare. If the court has any doubt as to the sound public policy of this anti-union contract, the temporary injunction is to be denied. Doubt as to the plaintiff's right to a permanent injunction is fatal to the issuance of a temporary one. Therefore, the question squarely presented by this motion is this question of public welfare: Is the promise not to join the union for which the plaintiff is seeking protection in equity opposed to public policy either because of its content or because of the situation out of which it arises? There is no guide to determine whether or not promises are opposed to public policy except a consideration of their probable effects upon public welfare. As to many questions of public policy, we do not have available scientific data and expert opinion of any great quantity or reliability. Some of the fields of the social sciences have been only meagerly cultivated, but the field of labor relations is not such. Here we have an abundance of accumulated expert experience and judgment gathered over a long period of years by thoughtful and conscientious students working in almost all of the country's great institutions of learning and a like body of material collected by careful investigators actually working with labor problems in the business establishments of the country. A court called upon to determine whether or not a given contract is opposed to public policy cannot be denied access to such a wealth of material and especially is this true when the court is a court of equity called on to exercise the broad discretion involved in the issuance of a temporary restraining order. 165 Justice Cardozo, in his essay on the Growth of the Law has said (p. 116): "Some of the errors of courts have their origin in imperfect knowledge of the economic and social consequences of a decision, or of the economic and social needs to which a decision will respond. In the complexities of modern life there is constantly increasing need for resort by the judges to some fact finding agency, which will substitute exact knowledge of economic conditions for conjecture." In controversies such as this one arising out of a conflict between broad social interests, the courts have come to weigh facts gathered by the authorities in the economic and social fields involved. The Exchange Bakery case is rested explicitly on such facts as are numerous other New York cases. Recognition and use of this material by other courts are to be found in such cases as Muller v. Oregon (1908), 208 U. S., 412; Truax v. Corrigan (1921), 257 U. S., 312; Adams v. Tanner (1917), 244 U. S., 590. Such cases are replete with references to "the contemporary conditions, social, industrial and political, of the community affected" and have proved to be, in the words of Chief Judge Cardozo, ibid (p. 117): "an impressive lesson in the capacity of the law to renew itself from extrinsic sources." 166 POINT IX. In general, the principles of law underlying this case and, in particular, no justification is required since no injury is shown. The Exchange Bakery case lays broad and deep a foundation of basic principles, applicable to the instant case. These basic principles are: (1) The purpose of a labor union to make union conditions prevail generally may justify what would otherwise be a wrong; (2) this immediate end is legitimate as a means of enabling the union to accomplish its ultimate ends of improving the conditions under which its members do their work; (3) unionization is legitimate because all in a trade are affected by the fact that economic organization today is not based on the single shop; (4) even if the end sought is lawful, the means used must be lawful also. With these basic principles with regard to unionization and the methods properly used to accomplish unionization embedded in our law, the core question in this present litigation is whether the alleged Two Year Contract not to join a union is sufficient to prevent all efforts to unionize these workmen by proper persuasion. This anti-union promise squarely negatives the end (unionization) sanctioned by the Court of Appeals. It will be shown that such a promise cannot stand as a complete bar to unionization. For the present let it be noted that, since there is no probability that the plaintiff will suffer substantial injury, the defendants do not really need to invoke the elemental principle that a proper purpose will justify an injury to another if the means used be lawful. No strike is threatened or contemplated; the employees of the plaintiff are not being prevented from going about their work for the plaintiff in the normal and usual fashion; the Amalgamated Association by its history as well as by its explicitly stated purposes and its collective agreements is committed to permitting a strike only after arbitration is refused. This includes any disputes that may conceivably arise in the future; there is no malicious purpose to destroy the plaintiff's Brotherhood. If it should happen that the Brotherhood would languish in competition with the Amalgamated Association, that would be merely a normal consequence of lawful rivalry. If any damage be done by this competition, it must be damage to the Brotherhood, but the Brotherhood is not a party to this action and claims no damage. The truth is that the Brotherhood is but a sham union used by the plaintiff to prevent the unionizalion of its men. 167 There are two reasons why the plaintiff is not entitled to a permanent injunction and hence not entitled to a temporary injunction. The first reason is the one just set out, namely, that it does not come into equity with clean hands. The second reason is that the defendants' conduct has been and is wholly privileged. The remainder of this Brief will be devoted to this latter proposition and this discussion will fall into five large divisions as follows: 1. This litigation presents no problem of justifying the defendants' conduct since nothing approaching substantial injury has been suffered or is threatened. 2. The end sought by the defendants in doing wohat they have done and propose to do is not merely lazoful but also a muatter of capital importance to them and to society. 3. The means being used by these defendants in their effort to unionize the plaintiff's employees are lawful. 4. The core question is this litigation is whether the two-year promise not to join a union is to stand as a complete; barrier to all efforts to unionize these workmen by proper persuasion. It will be sho.wn that it cannot so stand. 5. There is no constitutional mandate requiring a court to grant the injunctive relief sought by the plaintiff. This division and organization of the discussion which follows have been adopted because it represents the approach and analysis laid down by the Court of Appeals in Exchangel Bakery and Restaurant, Inc. v. Rifkin (1.927), 245 N. Y. 260. The basic principles or law governing whether the defendants' conduct is privileged has been authoritatively stated in that case, a case destined to become one of the great cases of Anglo-American law (Yale Law Jour., Dec. 1927, p. 249, et. seq.). There was no dissent from Judge Andrew's statement of these underlying prin 168 ciples of law in that case. In order to bring out sharply the exact application of these principles to the present litigation, the facts of that case will be briefly stated, a quotation from the opinion embodying the rationale of the decision will be given, and finally its four underlying principles will be set out. The plaintiff, the Exchange Bakery, employed only such waitresses as did not belong to a labor union. This was made clear to prospective employees before they were en)ployed and written promises to this effect were in fact exacted from them as a condition to continued employment. Employment, however, was at will. As the court says (p. 266): "Thereafter the waitresses were asked repeatedly if they had joined a union. They always denied it. If it had been discovered that the denials were untrue, they would have been at once discharged. Also after beginning work each waitress signed a paper stating that it was the understanding that she was not a member of any union, pledging herself not to join one or, if she did, to withdraw from her employment. She further promises to make no, efforts to unionize the restaurant and says that she will attempt to, adjust by individual bargaining any dispute that may arise." The defendants were members of a labor union who induced a number of these waitresses to join their union without the knowledge of the plaintiff. Efforts were made to induce other employees to join. At the same time the defendant union demanded of the plaintiff that it unionize its restaurant. Upon the plaintiff's refusal, the defendants called a strike and picketed the plaintiff's restaurant. The Special Term denied an injunction and found in the defendants' favor, and, though reversed by the Appellate Division, its judgment was affirmed by the Court of Appeals. The rationale of the decision may be gathered from the following quotation from the opinion (p. 263): 169 "The purpose of a labor union to improve the conditions under which its members do their work; to increase their wages; to assist them in other ways, may justify what would otherwise be wrong. So would an effort to increase its members and to unionize an entire trade or business. It may be as interested in the wages of those not members, or in the conditions under which they work, as in its own membership, because of the influence of one on the other. All engaged in a trade are affected by the prevailing rate of wages, all by the principle of collective bargaining. Economic organization today is not based on the single shop. Unions believe that wages may be increased, collective bargaining maintained only as union conditions prevail, not in some single factory but generally. That they may prevail it may call a strike and picket the premises of an employer with an intent of inducing him to employ only union labor and it may adopt either method peaceably. Picketing without a strike is not more unlawful than a strike without picketing. Both are based upon a lawful purpose. Resulting injury is incidental and must be endured. "Even if the end sought is lawful, the means used must be also." The underlying principles of this great case may be helpfully stated in the form of four propositions. They show the exact application of this case to the present litigation. So far as possible they are stated in the language of the opinion of the court: 1. The purpose of a labor union "to increase its numnbers and to unionize an entire trade or business'," "to make union conditions prevail not in a single factory but generally" "mnay justify what would otherwise be a wrong * * *." 2. This immediate end is legitimate in order that the union may thereby accomplish its ultimate ends, viz., "to improve the conditions under which its mem-n bers do their work; to increase their wages; to assist them in other ways." 170 3. Such unionization is legitimate because "all engaged in a trade are affected by the prevailing rate of wages, all by the principle of collective bargaining. Economic organization today is not based on the single shop." 4. "Even if the end sought is lawful, the means used must be also." These basal and authoritative pronouncements are perfectly explicit and, for a body of law to govern labor relations, they lay bare a foundation having greater amplitude and depth of foresight and wisdom than the present generation will be able fully to realize. The elemental principle that a proper purpose will justify an injury to another if the means used be lawful, which is embedded in these four more definitive propositions, does not need to be invoked by the defendants if there be no probability that the plaintiff will suffer an injury to some degree substantial. The defendants are not put to a justification of any conduct on their part unless the injury complained of by the plaintiff be something more than merely imaginable or possible. It must be something more than merely technical or trivial for equity to intervene at all. In the Statement of Facts and under Point III of this Brief, the facts have been fully set out showing that the injury necessary to put the defendants to the justification of their conduct is not present or in prospect. It there appears that, no strike being threatened or contemplated, the plaintiff is not losing, and there is no immediate danger of its losing, the services of its workm~en. Its employees are not being interfered with in any fashion in the full discharge of their duties to the plaintiff. An official statement of the policy of the Amalgamated Association with reference to strikes is in point here. It is taken from the affidavit of Mr. William B. Fitzgerald, Vice-President of the Amalgamated Association since 1917: 171 "The Amalgamated Association of Street and Electric Railway Employees of America and its local divisions and the officials of the said Amalgamated Association and its local divisions are all fully aware and profoundly realize that the members of said Amalgamated Association work upon public utilities rendering a most essential service to th e public; that suspension of service inflicts serious injury upon the public, and because of their realization, the said Amalgamated Association is committed to a policy of hostility to the strike as a weapon of union activity, and is unequivocally and unalterably committed to a policy of arbitration to all differences that may arise between union and management, and provision for arbitration is made in the constitution of the said Amalgamated Association and is made fundamental in every contract entered into between the Amalgamated Association and an operating company. Not a single one of the approximately three hundred contracts now outstanding and in force between the said Amalgamated Association and operating companies is without its stringent arbitration clause. That by reason of the aforesaid policy of the Amalgamated Association of Street and Electric Railway Employees of America and the attitude of its officers, the requirements, of its constitution and the provisions of its contracts, there have been very few suspensions called by the said Amalgamated Association or its local divisions.; that during the calendar year 1926, there were no more than four suspensions called by the 289 local divisions of the said Amalgamated Association; that in 1927, only two suspensions. have been had by said local divisions. Your deponent is reliably informed and verily believes that these very few suspensions were caused by attempts of the operating companies to destroy the local division operating on its lines, and that said attempts were made as part of a conspiracy to destroy trade unionism, engineered by a group of detective agencies, providers of labor spies, and organizations that provide strike breakers and are thus interested in instigating strikes." Open discussions of the desirability of the plaintiff's employees joining the Amalgamated Association have been 172 and are being held. There is no desire on the defendants' part that any workman not inclined to join the Amalgamated Association and hence to become a permanent recruit to its ranks, should do so. The plaintiff is proceeding about its business and its worlkmen are going about their work in the normal and usual fashion. What damage can accrue to the plaintiff merely by the fact that its employees belong to one labor organization rather than to another? If any damage be done, it must be damage to the Brotherhood, but the Brotherhood is not a party to this action and claims no damage. The defendants have no malicious purpose to destroy the plaintiff's Brotherhood. So far as the defendants are concerned, it is a matter of complete indifference to them whether or not the plaintiff's employees continue members of the Brotherhood. Their only concern is that they should become members of the Amalgamated Association. If, as a result of the growth of the Amalgamated, the Brotherhood languishes, that result will be the normal consequences of a lawful rivalry between competing forms of labor organizations. Moreover, the complete destruction of the plaintiff's Brotherhood would involve no such injury as to cause equity to intervene because it will be shown under Point XI of this brief that the Brotherhood in its genesis, structure, and operation, is not a bona fide company union but is a mere sham used for the negative and destructive purpose of preventing the unionization of these men. The plaintiff, in its moving papers seeks to present the view that the destruction of its Brotherhood is threatened and that such destruction would constitute a real loss because the Brotherhood is a legitimate and valuable device for adjusting the conflicting interest of employer and employee. The defendants accept the challenge of the view thus presented and want to see it faced squarely. Their showing that the Brotherhood is a sham and pretense is wholly decisive. 173 POINT X. The defendants are dutifully pursuing a lawful purpose and are privileged so to do. There is abundant proof that the charges made in the plaintiff's complaint are not well founded. It is alleged that the defendants have entered into a giant conspiracy to destroy company 'unions in general. If this allegation is intended to charge responsible leaders of two prominent and important social institutions with malice and spite, its absurdity hardly calls for the denials found in the affidavits of the defendants. If the allegation is intended to indicate that the defendants are seeking to increase the membership of regular trade unions, it merely charges the pursuit of a lawful purpose well recognized by the law.of this state. It is also alleged that the defendants maliciously seek to destroy the plaintiff's Brotherhood but this is amply disproved by the fact that the defendants are simply engaged in their usual lawful and important duties in the trade union movement; the lack of malice is further evidenced by the honorable history of the organizations they serve, by the avowed purpose of the constitutions of these organizations, and by the positive affidavits of the defendant individuals. Equally unfounded-the lack of foundation being established by similar proof-is the allegation that the defendants intend to induce the plaintiff's employees to quit work. The absurd charge that the Amalgamated Association is a chronic trouble-maker is amply met by a recital of nation-wide and local facts quite to the contrary, as well as by positive affidavits from individual defendants. The purpose of the defendants is precisely that set forth in the notable decision in the Exchange Bakery case as lawful and socially valid. In carrying out their lawful purposes, these defendants are not officious inter-meddlers; their acts are privileged. The labor affiliations of the plaintiff's employees are quite as much the business of these defendants as they are the business of the plaintiff; for if the Two Year Contract in this case were permitted to stand, the results would be serious to labor the country over. The character of the community of interest of the defendants with 'the plaintiff's employees was well pointed out in the Exchange Bakery case where it was said that all in a trade are affected by the principle of collective bargaining. In modern industry all the rank and file of labor cannot devote a part of their time to organizing to secure collective bargaining. These defendants have been charged by their respective groups 174 with that duty; and being thus charged, they and the groups they serve have such a solidarity of interest with the plaintiff's employees that they would be privileged to induce breach of a contract which was erected for the sole purpose of serving as a bar to unionism, even if that contract were valid-as it is not valid in this case. This right or privilege is well established in the cases. Even if injury to the plaintiff of some substance and likelihood were threatened, the relief sought could not be given because the defendants have been pursuing, and are pursuing, a legitimate and lawful end or purpose by lawful means, and, in the language of the court in the Exchange Bakery case, "the resulting injury is incidental and must be endured," 245 N. Y. 262, 263. First it will be shown that the defendants' purposes are not those charged in the complaint; and second, that their sole purpose is to unionize these employees, this being the very purpose so well described by the Court of Appeals in the Exchange Bakery case and stated in Point IX of this Brief. In the third place, it will be shown that the pursuit of this purpose by the defendants in the present situation would be justified even though the plaintiff had set up and there were now in operation a bone fide company union to which its employees belong, and is especially justified by the fact that the plaintiff's employees are now absolutely unionless. THE CHARGE OF A PURPOSE TO DESTROY COMPANY UNIONS. The complaint makes a general charge of a purpose on the part of the defendants to destroy company unions in general. This is coupled with an allegation that the defendants have entered into a giant conspiracy for this purpose. This charge is necessarily ambiguous. Enumerating its possible meanings and disposing of them one at a time is the best way to dispose of it. Conceivably, this allegation that the defendants are motivated by a purpose to destroy all company unions may mean that 175 their desire to destroy all company unions is malicious in the sense that it is based upon ill-will and spite. These defendants are the most responsible leaders of two national social institutions; both the American Federation of Labor and the Amalgamated Association are permanent and important parts of our social fabric. Any charge that the responsible officers of these two organizations are actuated by malice in the sense of ill-will or spite needs merely to be stated in order to demonstrate its absurdity. A second possible meaning of this general charge is that the defendants, acting consciously and voluntarily, are taking steps, looking to an increase in the membership of regular trade unions. As intelligent and reasonable men, they must know that such extension of their membership may result in a decrease in the membership of company unions. Given this meaning, the general charge falls because it merely charges the pursuit of a lawful purpose. Whether or not organizers may unionize workmen is no longer an open question in this state,-that is privileged conduct. If the privilege means anything, it means that such organization can go forward.at the expense of rival organizations. National Protective Ass'n v. Cumming (1902), 170 N. Y., 315. The situation is exactly parallel to business competition. When a schoolmaster complained that he had been injured by another schoolmaster coming into the town where the plaintiff had hitherto had a monopoly, the complaint was dismissed. The success of one trade rival necessarily involves loss of business by another. Anon. (1410) Y. B. Hen. IV. f. 47, pl. 21. The complaint also contains the more specific charge that the defendants have in view a purpose to destroy the plaintiff's Brotherhood. This charge, by use of the term "malice," is subject to the same ambiguity as the more general charge just disposed of. It has the same two possible meanings as has that one and the answer to each is exactly the same as it was with reference to the more general charge. When all verbiage is swept to one side, 176 when all make-weight arguments and allegations are eliminated, when the question in this litigation is stripped naked, the realities disclosed are that these defendants, the responsible leaders of a significant social movement, are in no sense engaged in venting.any spite or ill-will toward the plaintiff, but are engaged in their proper and important business of attempting to bring the plaintiff's employees into a labor organization, national in its scope, in no sense ephemeral in its make-up-a national organization committed by its Constitution and the long history of its worthy activities to provide workmen with an effec tive voice in negotiations and disputes vitally affecting their welfare. These propositions do not need argument-the history of both the American Federation of Labor and the Amalgamated Association is an open book. It is set out fully in the affidavits of the presidents of these two organizations. It has been summarized in the Statement of Facts. It needs no elaboration or defense. The Constitution of the Amalgamated Association is unambiguous as to its purpose. Let these vague and irresponsible charges of the plaintiff be met by a sober reading of the serious purposes of the Amalgamated Association. "Sec. 3. The objects of this Association shall be to organize Division Associations. "Sec. 4. To place our occupation upon a higher plane of intelligence, efficiency and skill; to encourage the formation in Division Associations of sick and death benefit funds in order that we may properly care for our sick and bury our dead; to establish schools of instruction for imparting a practical knowledge of modern and improved methods and systems of transportation and trade matters generally; to encourage the settlement of all disputes between employes and employers by arbitration; to secure employment and adequate pay for our work; to reduce the hours of labor and by all legal and proper means to elevate our normal, intellectual and social conditions." 177 THE CHARGE OF A PURPOSE TO INDUCE EMPLOYEES TO 'QUIT WORK. The third charge made by the plaintiff with reference to the defendants' purpose is that they intend to induce the plaintiff's employees to quit work. Abundant proof appearing in the affidavits and summarized in the Statement of Facts shows that no strike is threatened or contemplated. The plaintiff understands this perfectly well. Again, when its allegations and proof are stripped of verbiage and make-weight charges, the sole actuality disclosed is the following fear on the part of the plaintiff: if the Amalgamated is successful in organizing a major part of the plaintiff's employees, the plaintiff will lose its present superiority of bargaining power as against its workmen. The plaintiff fears that when the present Two Year Contract expires, it will be confronted by a body of employees independently organized and effectively led so that they can, when a new contract comes to be negotiated, enter the negotiation on terms approaching equality. The result may well be a new contract, free from the gross disparity and inequity of the present contract. The plaintiff's fear of all this may be reasonable but that does not mean that there will be a strike. The Amalgamated Association is by its constitution and history committed to a policy in opposition to strikes. It realizes that its members are engaged in a business in which continuity of service is of paramount importance to the public. Concerning this, William D. Mahon, President of the Amalgamated Association says: (Amended Answer, p. 186.) "The cornerstone upon which the organization was established was that of arbitration. Realizing that their occupation was one where they would continually have to serve the public and that, therefore, it was necessary to get as far away from strikes and industrial distubances as possible, the organization was founded upon the principles of arbitration and in all its contracts and dealings with the various conm 178 panies, there is a clause providing that when disputes arise between this organization and the employing company that cannot be adjusted mutually between them, the same is submitted to arbitration, and your deponent affirms that practically all of its disputes on wages and other conditions are adjusted by arbitration." On the same subject, William F. Fitzgerald, Vice-President of the Amalgamated Association since 1-91-7 says: (Amended Answer, p. 229.) "The Amalgamated Association of Street and Ele-ctric Railway Employees of America and its local divisions and the officials of the said Amalgamated Association and its local divisions are all fully aware and profoundly realize that the members of said Amalgamated Association work upon public utilities rendering a most essential service to the public; that suspension of service inflicts serious injury upon the public, and because of other realization, the said Amalgamated Association is committed to a policy of hostility to the strike as a weapon of union activity, and is unequivocally and unalterably conrnitted to a policy of arbitration of all differences that may arise between union and management, and provision for arbitration is made in the constitution of the said Amalgamated Association and an operating company."ý The provisions of its constitution with reference to the calling of strikes are as follows: "SEC. 120. Wheit an~y di/flc'wlty ar-ises between the members of any Local Division of this Association and their employers, regarding wages, hours of labor, or any other question that may result in a strike or lockout, the dispute shall be first taken up by the executive board of the Local Division, or by a committee appointed by the Local Division for that purpose, and they shall m~ake a~ thoro'ugh investigation, amd seek., through conferences with the conmpany to got the m~atter satisfactorily adju~sted. The committee, 179 after having finished the work of negotiation with the company, shall submit a full report to a meeting of the Local Division. "SEC. 121. If by compliance with Sec. 120, the committee has been unable to secure a settlement of the matters in dispute satisfactory to the Local Division, and the Local Division believes that the matters in dispute are of such importance that a strike should be ordered, the question of a strike shall be submitted to a secret ballot vote of the entire membership of the Local Division. If necessary to reach the entire membership of the Local Division the ballot shall be taken by referendum, ballots being prepared and so distributed to give every member an opportunity to vote. If two-thirds of the membership voting upon the question decide in favor of suspending work the Locat Division shall at once notify the International President. The International President upon receipt of such notice shall proceed to the scene of dispute in person or by deputy, and in conjunction with the committee of the Local Division, shall make a thorough investigation and attemrpit to settle the matter in dispute. In case of failure thus to secure a settlement he shall then, in conjunction with the local committee, prepare propositions of arbitration defining the points in dispute and the basis upon which they shall be arbitrated. If the Company refuses to accept arbitration as tendered, the International President or his deputy shall then communicate with the membership of the General Executive Board in writing or by telegram and obtain the consent of a majority of the General Executive Board before endorsing the strike." The plaintiff does not fear a strike. What it really fears is that it will have to abandon its present autocratic attitude in dealing with the men and to submit, as other employers do, to negotiating contracts with its employees arrived at on the basis of fair bargaining and mutual giveand-take. There can be no strike unless the plaintiff has committed itself for all time to an autocratic and stiffnecked attitude in dealing with its employees. 180 Any construction of the plaintiff's charge to mean that the defendant intends to bring about a strike for a malicious purpose, using malice in the sense of venting ill-will or spite, is so foreign to the facts of this case as to require no answer. The complaint charges in effect that the defendant Amalgamated Association has been a constant trouble-maker all over the United States. These charges are unfounded. The Amalgamated Association has trade agreements with 269 companies in other cities. If it were a trouble-maker, it could never have succeeded in negotiating so many trade agreements and in recruiting 131,000 members. If it were a trouble-maker, it is improbable to suppose that its membership would be so large. Its war record received commendation from President Wilson, from the Council of National Defense, from Secretary of War Baker, and from other leaders of this country at that time. As a plain matter of fact, its twenty-two year history in New York City has been most favorable. Of the four strikes during that period, only one had the support of the Amalgamated Association. The 1905 strike was, as the correspondence attached to the affidavit of William D. Mahon shows, an outlaw strike condemned by the Amalgamated Association. Indeed, the Amalgamated Association publicly urged all loyal men to return to work. The 1919 strike was caused and called by the Company. The 1926 strike came as a result of dissatisfaction of members of the Brotherhood themselves with the action of the General Committee in agreeing with the Company, against the wishes of the men, to renew the 1925 wage agreement. That strike was carried on by the Consolidated Railway Workers of New York, which was in no way affiliated or connected with the Amalgamated Association. The Amalgamated Association did not enter New York until after the 1926 strike was over and the Consolidated disbanded. The charter issued to Local Division No. 977 of the Amal 181 gamated Association in New York was issued on September 9, 1926; whereas, the Consolidated Railway Workers was disbanded on July 31, 1926. The officials of the Consolidated organization were not officials of the Amalgamated Local Division, but were taken into the Amalgamated Association, if at all, as members, individually upon their own individual application, and in the same manner as other employees became members of the Amalgamated. Any correspondence contained in the plaintiff's motion papers indicating that there was any connection between the Amalgamated Association and the Consolidated organization is not shown to have been, and was not in fact, carried on with the knowledge or authority of the Amalgamated Association. Indeed, the leader of the Consolidated, Ed. Lavin, was expelled from the Amalgamated Association for his communistic opinions but was later employed by the plaintiff. The 1916 strike is fully described in the Statement of Facts and in Point VII of this Brief. An official and authoritative statement of the purposes and ends sought by the Amalgamated Association is the following taken from the affidavit of William D. Mahon, President of that Association since 1894 (Amended Answer, pp. 201-202): "It is not the policy of the Amalgamated Association and it does not intend to insist that plaintiff shall employ upon its lines only members of the Amalgamated Association. The Amalgamated Association does, however, believe that it has the right to inform plaintiff's employees of the nature and organization of the Amalgamated Association, of its aim, purposes, methods and policies, and that plaintiff's employees shall have the right to freely choose, if they so desire, what organization to join and with whom to associate." This discussion of the defendants' purpose cannot be better concluded and summarized than by stating that that 182 purpose is exactly the same as described and approved in the notable opinion of Judge Andrews in the Exchange Bakery case. These defendants realize, as the defendants in that case did, that (p. 263): "All engaged in a trade are affected by prevailing rate of wages. All, by the principle of collective bargaining. Economic organization today is not based on a single shop. * * * The purpose of a labor union to improve the conditions under which its members do their work; to increase their wages, and to assist them in other ways. * * " These defendants, as those defendants (p. 263): "believe that wages may be increased, collective bargaining maintained, only if union conditions prevail, not in a single factory, but generally." How firmly these principles are imbedded in the law of this State is shown by an analysis of the facts and a reading of the opinion in Bossert v. Dhuy (1917), 221 N. Y. 342. In this case a boycott of materials was held legal as a means to bring about unionism. And see also National Protective Ass'n. v. Cumming, supra. THE DEFENDANTS' ACTS ARE PRIVILEGED. It is worth stressing that these defendants are not officious inter-meddlers. The two-year promise not to join a union incorporated by the plaintiff in its work contract is aimed squarely at the defendant labor unions. If that Contract stands and is to be used here and elsewhere, the defendant labor unions fall. The labor affiliations of the plaintiff's employees are quite as much the business of these defendants as they are the business of the plaintiff. The organization of men into effective labor unions is not a mere privilege of these individual defendants; it is their solemn duty. It is the duty which the rank and file whom 183 they represent have placed upon them. Whatever might be the status of destructivists who were seeking to tear down all labor organizations, and who, in pursuit of that end, induced the plaintiff's employees to breach their promise not to join a union, their status would not be the status of these defendants. Even if the plaintiff's Brotherhood were a boma fide company union, these defendants represent a competing form of organization and they are charged with the responsibility not merely of maintaining its ranks intact, but also of enlarging its membership. These defendants would not be officious inter-meddlers even though the promise, the inducement of the breach of which is sought to be enjoined, were founded on wholly adequate consideration and were in no sense opposed to public policy. The category of persons privileged to induce the breach of a contract is quite wide, wide enough to include these defendants. Samplings of that category follow: In Brimlow v. Casson (1924), 1 Ch. 302, an association of actors was held privileged to induce theatre managers to break their contracts with the plaintiff, because he paid his actresses so little that they could not live decently. This is a case of capital importance to this litigation. It is not distinguishable on the ground that the Trade Dispute Act of 1906 prohibited such suits because the court first held that the defendant's act was privileged and then added (p. 313): "This decision renders it unnecessary to consider the defense raised by them under Sec. 3 of the Trade Disputes Act, 1906. * * *" Russell, J., then went on to indicate his view that that Act prohibited the suit. A mother may induce the breach of a contract if her purpose is to protect the health of her children. Legris v. Marcotte (1906), 129 Ill. App. 67. A parent is privileged to induce his or her son or daughter not to marry a person whose character he deems objectionable. Overholtz v. Row (1922), 152 La. 9; Leonard v. Whetstone (1904), 34 Ind. App. 383; Guida v. Pontrelli (1921), 186 N. Y. Supp. 147. 184 More important for present purposes is the fact that a rival lover or a stranger is privileged to induce a person under contract to marry not to do so. Ableman v. Holman (1926), 190 Wis. 112; Stifter v. Boehen (1924), 206 N. Y. Supp. 187. The bishops of a church are privileged to induce the members of the church to break subscription contracts with a newspaper if, in their honest judgment, the reading of such a newspaper is detrimental to the spiritual welfare of the church members. Compare Kuryer Pub. Co. v. iMiessmer (1916), 162 Wis. 565; Rowan v. Butler (1908), 171 Ind. 28; Jones v. Cody (1902), 132 Mich. 13; Gott v. Berea College (1913), 156 Ky. 376. The inhabitants of a town who dislike the character of the plaintiff's store may induce the Board of Aldermen to revoke his license in breach of contract. McKee v. Hfughes (1915), 133 Tenn. 455. An agent who, acting in good faith and within the scope of his authority, secures a breach of contract between his employer and a third person, is not liable in an action by the third person. See Said v. Butt (1920), 3. K. B. 497. This incomplete catalogue of cases discloses the broad scope of the category of persons privileged to induce a breach of contract. It should be projected against the background fact that to allow an employer by individual anti-union contracts to.tie the hands of his employees so that they cannot get themselves into a position to use collective bargaining in order to protect their vital interests is to permit the employer to get the jump on the employees and to win a race all too unequal at best. With these two things in mind, a series of hypothetical cases should be considered. If the wife of one of the plaintiff's employees, believing that it would better the economic condition of the family for her husband to join a regular trade union, induced him to break his contract not to join a. union, her act would be privileged. 185 There is a like solidarity of interest existing between any two of the plaintiff's employees. If one of them. honestly believing that he could better his economic condition by joining the Amalgamated Association, and in doing so needed the cooperation of his fellow employee, he should likewise be held privileged to induce such fellow employee to break his contract. The defendants in this action have a community of interest with the plaintiff's employees, as was so well pointed out in the Exchange Bakery case where it was said that "All engaged in a trade are affected by * * * the principle of collective bargaining." All the rank and file of labor cannot devote a part of their time to organizing to secure collective bargaining. Division of labor is necessary. These defendants are merely the specialized organizers under a duty to the unions whom they represent to increase their numbers. They are not officious inter-meddlers but have, with the plaintiff's employees, such a community of welfare, such a solidarity of common interests that they too should be privileged to induce a breach of any contract erected as a bar to unionizing even though it were based upon ample consideration and were in no sense opposed to public policy. If A's daughter is aboat to marry B, and A, in order to induce her not to do so, conveys to her property in exchange for her promise not to marry B, certainly B would be privileged to continue his courtship and to induce A's daughter to marry him although that involved a breach of her promise to A. Just as the father's promise was aimed directly at B, so the anti-union promises which the plaintiff has taken from its employees are aimed directly at these defendants. While officious inter-meddlers would not be privileged to induce their breach, these defendants are privileged to do so. Otherwise the right to unionize is converted into a pretense and a sham-destroyed by the mere putting of words on paper. 186 POINT XI. The plaintiff's employees are in fact unionless. If the plaintiff's employees were organized as a part of an established national labor union or if they were organized into a bona fide company union, it might be argued-although even under such conditions not successfully argued-that the privilege of the defendants to attempt to unionize these men would be somewhat qualified. But in fact the conditions mentioned do not prevail. These men are in fact unionless. The circumstances attending the organization of the plaintiff's Brotherhood, as set forth in the history of the organization, in the affidavits of the defendants, and even in the complaint of the plaintiff, leave no question that the idea was conceived by Company officials as a means of preventing true collective bargaining; that secrecy and deception.attended the birth of the Brotherhood; that the Constitution of the organization was prepared by Company agents, the men having no part in its preparation; that the organizing "committee" of the men was selected by the Company, the mass of the employees knowing no-thing of the matter until they were handed application blanks for membership and other literature drafted by the Company; that so.me of the men-even some of the "committee"-protested; but it was made clear to them and to others that they could join or they could lose their jobs. The constitutional structure of the Brotherhood is such that it could, by no possibility, be accepted by bona fide unionists. The Company's employment department, by the act of hiring, decides who become-and by compulsion-members of the Brotherhood, the Brotherhood has nothing to do with complaints -as to efficiency and discipline; all officers are employees of the Company, and are subject to what is, in substance, an unlimited power of the Company to discharge; the Brotherho'od uses quarters provided by the Company and the Brotherhood officials are paid by the Company and not by the men; the provision for arbitration of disputes is so drawn as to carry out the obvious intent of making it wholly nugatory; and this is but the beginning of a list of such defects. Two other matters are worthy of particular mention. The provisions governing the General Committee of the Brotherhood are so drawn as to give the Company control of this committee. The General Committee, in turn, is placed in a position where it can completely disregard the real wishes of the men, It can enter into five year contracts with the Company without referring the issues to the men; can disfranchise men; can re 187 move representatives of the local and appoint substitutes; four of its officers can expell men from the Brotherhood and by thus doing actually terminate their employment; it can do various other things that are simply unheard of in a bona fide union. If this list is amazing, still more amazing is the fact-and this is the second matter worthy of particular mention-that this General Committee alone has power to amend the Constitution, and all amendments to the Constitution must be approved by the Company, the allegation being that this Constitution is a contract between the Company and the Brotherhood! When the provisions under which the Brotherhood operates are compared with the specifications for a bona fide company union, the spurious character of the Brotherhood stands out even more clearly. In 1926 the American Management Association accepted as sound objectives of a true company union the following: production uninterrupted by labor disturbances; efficient production growing out of healthy employee morale; constructive cooperation of employees in eliminating waste and reducing labor costs; orderly procedure for handling complaints and grievances with justice and equity; absence of grounds for feelings of repression; a sense of responsibility and leadership in employees. Measured against these standards, the Brotherhood proves to be not even the shadow of a true company union. A similar result is obtained when the Brotherhood is compared with the Industrial Council of the International Harvester Company for instance. It is an example of a successful company union. The Harvester Industrial Council provides for true representation and cooperation; for voluntary participation by the workers; for freedom from discrimination against membership in an outside union; for frank recognition of the part openly played by the company and its officials who are bound as truly as are the men; for complete freedom of discussion and freedom to secure outside advice; for guaranteeing control by a majority and not by a minority, for elections sufficiently frequent to make responsibility of its servants real. The Brotherhood lacks all these elements of a company union engaged in constructive work in industrial relations. The actual operation of the Brotherhood has been on a par with its astounding Constitution. Upon occasion the General Committee can be and is packed; locals are similarly disciplined and their wishes disregarded; corruption has been in evidence; spies infest meetings and it is easy for a man to "talk himself out of his job" by raising complaints; the President of the Brotherhood is the Company's obliging tool in suppressing discussion and in separating men from their jobs by the simple process of ejecting them from the Brotherhood. It is not surprising that the men's distrust of the Brotherhood has resulted 188 in.apathy toward it manifested in irregular attendance at meetings. Objective evidence of the failure of the Brotherhood to function as a bona fide trade union is further available in the affidavits setting forth the wages and working conditions of members of the Brotherhood in comparison with similar data for other cities and for other workers in this city. The economic status of the members of the Brotherhood is so low on this comparative basis as to make inescapable the inference that their wages and working conditions are fixed not in a free labor market but in a controlled labor market-in a labor market dominated by the Company unchecked by a bona fide union. If all other proof were lacking, the nature of the Two Year Contract of employmtent which was foisted upon the men would be sufficient to establish the unionless condition of the plaintiff's employees. To begin with, calling upon the men to execute individual contracts would be unheard of and unnecessary in connection with contracts executed by regular trade unions, and yet individual contracts were forced upon these men, in many cases without their having an opportunity to read the documents and typically without their genuine consent. Then, too, the document itself, by its violation of elementary considerations of contractual fair play, demonstrates that the men are unionless, for otherwise they never would have signed. In this spurious Contract the men are bound not to join another organization, but the Company is not so bound; the Company may discharge men if economic conditions change, but no man may quit to take a better job; if the men are in any degree unable to do tasks assigned them, or inefficient, or even slightly careless, or disobedient of even an unreasonable order, or neglectful of any duty, they may be discharged; but they may not quit if the Cozmpany's officers or agents are inefficient, unfair, careless, dishonest or neglectful. The men have in substance no safeguards against discharge either directly by the Company or indirectly through expulsion from the Brotherhood, yet the Contract purports to bind themn not to quit for two years; indeed the provisions for renewal of contracts is such that it would be easy to make the Contract in effect perpetually binding. This situation, so inequitable to the men, does not even have the safeguard of any true arbitration of disputes. It would be ridiculously easy to discharge men on grounds that are not, under this Contract, arbitrable; and, even in the case of the grounds that are alleged to be subject to arbitration, the men would find that the provision for arbitration was unenforceable because of its vagueness. This discussion piles proof upon proof that the plaintiff's employees are in fact unionless. 189 If the plaintiff's employees were already organized as a part of an established -national labor union and if these defendants; were seeking to introduce a rival labor organization, it might be argued that their privilege to pursue as an end the unionization of these men might be somewhat qualified though no such limitation upon that privilege is incorporated in Judge Andrews' statement of it; and the contrary was held in National Protective Ass'n. v. Cummning (1902), 170 N. Y., 315. If the plaintiff's employees were already organized into a bona fide company union, such organization not being an inter-company union, as is the Amalgamated Association, the same thing might be argued as to the defendants' privilege. In fact, the plaintiff's employees are organized in a socalled Brotherhood, but it will be demonstrated that the circumstances attending the organization of this Brotherhood, the way that Brotherhood has been actually operated, and a detailed study of its constitutional structure, show clearly, not merely that it is not an independent union enabling the men to match the plaintiff's bargaining power, but also that it is not even a bona fide company union of the Company's establishment. The defendants' affidavits, particularly those of the economists and other students of the labor problem, show that, in recent years, some hundreds of genuine company unions have arisen in this country. They are all fundamentally similar by whatever name they may be called; they are each limited to the employees of a single company so that the bargaining strength of the men in one company is not added to that of the men in another company. Great numbers of these company unions have been organized in an honest effort to provide the men with some voice in determining their conditions of labor but with a clear purpose of avoiding the necessity of dealing with the regular trade unions which are national in scope. But the plaintiff's Brotherhood is not an organization of this 190 species at all, as is demonstrated by the following six-fold catalogue: 1. The circumstances attending its organization. 2. Its constitutional structure. 3. Comparison with other company unions. 4. The way it actually has been operated. 5. The results which it has failed to produce for the men with reference to wages, hours, and working conditions. 6. The nature of the alleged Two Year Contract and the circumstances attending its execution. CIRCUMSTANCES ATTENDING THE ORGANIZATION OF THE BROTHERHOOD. 1. Anterior to the organization of the plaintiff's Brotherhood, there was no grouping of the employees enabling them to bargain collectively for a beneficial constitution. They got only what the Company was willing to concede out of hand; therefore, the results must be closely scrutinized in determining whether a bona fide organization was set up. 2. The Brotherhood had its genesis in secrecy and deception. Its initiation by the Company was a breach of an arbitration agreement entered into between the officials of the Amalgamated, Mayor Mitchell and Oscar S. Strauss, Chairman of the Public Service Commission, which agreement Mr. Hedley accepted and adopted on behalf of his Company on August 30, 1916. This breach of faith caused the strike of 1916. It is fully described in the affidavit of William B. Fitzgerald, President of the Amalgamated Association since 1917 and member of its Executive Board since 1903, and in the Hearings before the Transit Commission. 3. The complaint admits that the idea of a Brother hood originated with the Company's officials. 191 4. Its Constitution was prepared by Mr. Quackenbush, and revised in 1920 by Ivy Lee. No representative of the men had any part in its preparation. 5. The Committee to get the men to agree to form the Brotherhood was chosen by Mr. Hedley. The members did practically nothing but receive from Mr. Hedley and distribute among their fellows application blanks and literature drafted by the Company. These application blanks were the first notice of the proposed Brotherhood which the mass of employees had. 6. Some of the Committee resigned because they had no voice in the matter. 7. All the defendants' affidavits touching on the matter, and they are numerous, show that the men had to join or lose their jobs. 8. The organization of the Brotherhood was accompanied by the secret distribution of contracts! not to join a union for execution by the men acting separately. The most illuminating history' of the genesis of the Brotherhood is that found in the affidavits' of President Fitzgerald and William J. Thompson, who was a member of Mr. Hedley's Committee. THE CONSTITUTIONAL STRUCTURE OF THE BROTHERHOOD. 1. By the Preamble, the Constitution is made a Contract with the Company. Amending the Constitution without the Company's consent would seem to be a breach of contract as against the Company. These men did not make and cannot even amend their own constitution. No real union would tolerate such a situation nor would the company agree that its charter or by-laws could not be changed except with the consent of its laborers or of its day to day creditors. 192 2. Article I, Section 9, makes the Constitution a part of any contract with the Company and that Constitution cannot be changed without the Company's consent. A real union's Constitution concerns only its own household. Imagine the Company's charter being made a part of each work contract and the incongruity of this provision with any semblance of independent organization appears. A labor union's Constitution would hardly be made part of its contract with a telephone company for a telephone. 3. Whomever the Company's Employment Department engages becomes a member of the Brotherhood, i. e., the members cannot reject any new members. Membership in a real trade union is not usually compulsory. See the Constitution of the Amalgamated Association, Section 66. A church or club or other voluntary association has: absolute power in determining who shall or shall not belong. See also No. 7 below as to how members are expelled. 4. By Article I, Section 3, the Brotherhood cannot have anything to do with complaints as to efficiency and discipline. Excluding the petty tyrannies of bosses from group protest rules out, at one stroke, as functions of the Brotherhood, one of the most important group activities of genuinely autonomous labor organizations. 5. The manner in which the men are divided and subdivided for the purpose of fixing representation on the General Committee by Article I, Section 6-some by crafts, some by executive departments of management, some geographically-is significant in showing the "madeto-order" character of the organization. 6. One of the most arresting facts about the Brotherhood is the immense scope of the powers of the General Committee: a. Its members hold office for two years (Article I, Section 6). 193 b. Article I, Section 7, grants the General Committee absolute rule-making and assessing power, two powers jealously guarded in organizations founded upon the consent of the workmen governed. c. Article I, Section 19, deserves careful study. Under it, the General Committee has the unheard-of power to conclude contracts. It can bind the men to a five year contract covering wages, hours, and conditions of employment. They are given no power to veto the action taken and have no machinery providing for instructing the Committee or even for advising it as to the wishes of the rank and file. Their only control is through removing Committee members at election time. If this Committee is an agent of the men to deal with the Company for them, it is indeed a most extraordinary agent, being completely beyond the control of its principals. It can be removed at election time but then the damage has been irrevocably done; the contract is already in force. Those negotiating for real labor unions have no power to conclude contracts until the men approve. A General Committee of the Brotherhood could conclude a five year contract just before an election and bind two subsequent Committees for their full terms and another for half of its term. d. By Article I, Section 11, a two-thirds vote of the General Committee can completely disfranchise the men in any one or in any number of locals. This provision destroys the men's ability to control the General Committee even by election in case any real dispute is involved. e. A majority vote of the General Committee can remove a local representative of the men on it (Article I, Section 13). By the same vote, a substitute can be appointed (Article I, Section 12). This makes the men's control of their Committee shadowy and Company control simple when its power to remove from office is considered. f. Article I, Sections 3, 5 and 16 seem to make honest differences of opinion cause for removal, by the 194 General Committee, of a Member and/or an Officer of that Committee. A like power in government would enable Congress to exclude a minority for voting for a low tariff. g. Article II, Section 8 gives the officers of the General Committee - seven in number - absolute power by majority vote, i. e., four, to expel a man from the Brotherhood, which means the immediate loss of his job, his seniority, and his share in benefit funds. In the Amalgamated Association a member cannot be put on trial, to say nothing of expelled, except by vote of his fellow members in the local; and after trial he has a right to appeal to the national officers. h. The General Committee by Article V, Section 4, has the power to veto by-laws passed by a local, even though they comply with all the terms of the Constitution. This provision writes its own comment so far as representative government is here concerned. i. Under Article V, Section 7, the General Committee seems to have the power to adopt the minority view on any issue before all the locals and its action is final. This would be true even though the question were whether a proposal to ask for more pay would be in order. This gives a bare majority of the General Committee most extraordinary powers and leaves the majority of the men helpless. j. Most amazing is the fact that only the General Conmmittee can amend the Constitution (Article VIII, Section 1). The men can have no part in this vital matter. It is to be noted that only a two-thirds vote of the General Committee with fifty present is necessary to amend the Constitution and it is to be further noted that the Company must assent to all changes in the Constitution (Article I, Section 9). 7. All members of the General Committee and all its officers as well as all officers of all locals are employees of the Company and as such are subject to discharge by the Company under Clause 5 of the Contract. That power 195 to discharge is absolute for a number of classes of offenses, which are so vague and elastic that the power to discharge may, in actual operation, be completely unlimited. The inference is that such discharge would disqualify an officer or member of the General Committee. The existence of this power in the management is most important in considering just what kind of labor organization this is. The inference is that the Company, by discharging a man who was a member or officer of the General Committee, or an officer of a local, could thereby vacate the office in question. This absolute power of removal from office makes the Company's domination of the organization an easy matter. 8. Article V, Section 6, makes officers of the locals members of the General Conunittee. This is an interesting bit of intertying and makes Company domination much easier. 9. By the Contract, the Company pays for the services of officers and members of the General Committee while engaged on Brotherhood business. It supplies the Brotherhood's headquarters. The significance of this is not negated by the fact that they are paid no more than they would get if they were worldng at their regular jobs with the Company when it is coupled with the fact that preference and favoritism are easy. Of course, a regular trade union pays the salaries of its own officers and supplies its own headquarters. 10. The President of the General Conmmittee appoints the Election Committee (number undesignated) and a bare majority of that Committee has absolute power to decide whether an election has been fairly and honestly held (Article VII, Section 18). Experience has shown how vital a matter is here involved. Company control of the President would seem fatal to responsible representative government. 196 11. The Power of the President to prohibit members of the General Committee from leaving the room during any session is significant (Article I, Section 7). When it is coupled with the fact that no provision is made for the men to advise, much less control, the "agents" who are to negotiate for them on matters of their and their families' greatest concern, it is doubly significant. 12. Article III, Section 10 makes any debate questioning anybody's motives out of order. How, under this provision, is dishonesty in the representatives to be dealt with? 13. The provision for arbitration in Article VI, Sections 8, 9 and 10 does not meet the great need for better control over the General Committee by the rank and file. It relates to disputes between the General Committee and the Company. The provision for appointing the third arbitrator makes the whole nugatory, as it doubtless was intended to do. Which of the thirty-seven Justices of the First Judicial District is to do the appointing? No real labor union would consent to any president of the chamber of commerce appointing the third arbitrator. 14. In comparison, the Constitution of the Amalgamated Association as a whole is most interesting. It is set out in full in President Fitzgerald's affidavit. It is a long document. It is packed with sharply specific provisions. It shows throughout evidence of jealousy of excessive power in officers, their complete responsibility to the men, etc. It is a remarkable picture of plain men seriously but proudly going about the business of ordering their own affairs. It is a sturdy document. It spells independence of spirit, respect for rules, but, most of all, individualism and freedom. The underlying issue as to the Brotherhood is: As organized, does it give the men a genuine organization so 197 that there is present in the situation an independent body of workmen free to negotiate and bargain with the Company, using their full collective strength? The foregoing list of defects (and it could be extended) compels the answer that it does not even approach doing so. On the contrary, the men are all but powerless. They are unionless for all practical purposes. COMPARISON WITH OTHIER COMPANY UNIONS. The purpose of the following discussion is to subject the plaintiff's Brotherhood to an objective examination by comparing it with the specifications for building a bona. fide company union laid down by the American Management Association in 1926 and by comparing its constitution with that of a bone fide company union, the one chosen at random being the company union of the International Harvester Company. These comparisons serve to pile proof on proof hitherto set out that the men are doubly unionless. They are deprived of relations with the organized union men in their craft and are given a company union which is so bound by "contracts" and restrictions that it cannot function as a bona ficde company union does. In November 1926 the American Management Association held a conference in Chicago on Employee Representation Technique. This conference accepted the following statement of the objectives of a company union or of an employee representation plan proposed by Glenn A. Bowers of Industrial Relations Counselors, Inc. in a paper on "The Evaluation of the Results Achieved by an Employee Representation Plan." These objectives are: 1. Production uninterrupted by labor disturbances. 2. Efficient production growing out of healthy employee morale. 198 3. Constructive cooperation of employees, individually and collectively, in eliminating waste, devising better methods of production and otherwise reducing labor costs. 4. The creation of an orderly procedure for handling complaints and grievances with justness and equity. 5. The removal of all grounds for feelings of repression, real or apparent, among employees. 6. The development of a sense of responsibility and leadership in employees. How can the Brotherhood accomplish any of these? 1. Production uninterrupted by labor disturbances. There are two ways of securing production uninterrupted by labor disturbances. The first is through a satisfied, contented work force whose good will and cooperative effort are not coerced but are stimulated by the cooperative attitude of the employer. Nothing in the Constitution of the Brotherhood or in the reports of its workings in the defendants' affidavits lead us to believe that it is calculated to create a contented cooperative work force. The second method of securing uninterrupted production is through a working force so helpless that it cannot start a labor disturbance. Obviously the plaintiff has tried to bind its Brotherhood so completely with its contracts that it will be helpless. There is abundant evidence, however, that coercive methods are but temporarily useful in avoiding labor disturbances, that the atmosphere created is one which historically tends to give rise to irresponsible leadership, to violence and to radical demonstrations. 2. Efficient production growing out of healtJhy employee morale. This is related to the first point. What is there in the plan of the plaintiff's Brotherhood designed to create healthy employee morale? Not compulsory member 199 ship in the Brotherhood; not the anti-union contract which cuts the men off from satisfying a natural desire for free association with members of their craft in other organizations and in other cities; not the lack of control of their representatives in the Brotherhood; not the provision that the General Committee may not discuss with the Company the most vital questions of efficiency and discipline of members. 3. Constructive cooperation of employees, individually and collectively, in eliminating waste, devising better methods of production and otherwise reducing labor costs. The restrictive provisions in the Constitution of the plaintiff's Brotherhood and the lack of constructive provisions, which have been cited in the first two points, preclude realizing this third objective. There is no provision for stimulating suggestions or for reward for suggestions which would secure the constructive cooperation of employees in eliminating waste and devising better methods of production. The plaintiff discloses no desire for the cooperation of its employees in these fundamental matters. 4. The creation of an orderly procedure for handling complaints and grievances woith justness and equity. If this end was in the mind of the plaintiff when it established its company union, it set up no -adequate machinery to take care of it. All questions of efficiency or discipline are specifically excluded from the province of the Brotherhood, even though most complaints and grievances which arise in the course of work are concerned with questions of efficiency or discipline, the unfair decisions of bosses, the ruthless discharge of employees. The plaintiff's contract with its employees is a "heads I win, tails you lose" proposition. If the employee loses his job because of a change in business conditions, or because of the introduction of machinery which makes him unnecessary, or because he joins the Amalgamated Association, or because some supervisor has said that he is dishonest or insubordinate or physically incapacitated or has neglected his 200 duty, he has no effective and controllable machinery for handling his complaint. He is out of a job and a new man will be hired to take his place, who in turn will be required to sign away his rights of association and his rights to the ordinary expectation of continuity on a job. 5. The removal of all grounds for feelings of repression, real or apparent, among employees. The plaintiff's Brotherhood has been so formed as to increase the grounds for feelings of repression rather than removing them. Compulsory membership in the Brotherhood gives no sense of freedom. The anti-union contract gives no sense of freedom. Formal representation by the General Committee with no effective control over the actions of the Committee gives no sense of freedom but increases the feeling that the company union plan of the Brotherhood is not a "give and take" plan, but a "you take what I give" plan, it being only too apparent that the plantiff Company is giving nothing real. 6. The development of a sense of responsibility and leadership in employees. Leaders of the local organizations of the Brotherhood and members of the General Committee have, of course, some practice in leadership of employees. Unfortunately, however, it is not in democratic leadership controlled by responsibility to constituents and, furthermore, it is leadership in an atmosphere of repression, of spying, of double dealing which is not designed to make for responsible constructive leadership. When checked against these objectives of a real company union, the plaintiff's Brotherhood does not qualify as such. A company union that is suspected of being formed out of opposition to a genuine union can scarcely attain these objectives. One, which by its anti-union contract is admittedly formed out of opposition to a genuine union, certainly can not attain them. A comparison of the constitutions of the Brotherhood of Interborough Rapid Transit Company Employees and the International Harvester Company's Industrial Council 201 is undertaken as a type study for the further light it will throw on the question whether the plaintiff's Brotherhood is a bona fide company union. The International Harvester Company Industrial Council is taken as a sample because it is an outstanding example of a successful company union. Comment is made only on the points of significant difference. The order followed is that of the Constitution of the plaintiff's Brotherhood. The Plaintiff's Brotherhood. Article I (Section 3) Scope. "The objects of this organization shall be to cooperate 1with the Company to promote the welfare of the members of the Brotherhood in good standing and of the Company by amicable adjustment of all questions as to wages and working conditions that may hereafter arise, and to preserve to the employees the right of collective bargaining as to wages and working conditions and period of service, but shall not include questions of efficiency or discipline of members." Article 1 (Sections 4 and 5) Membership. All employees of the Company, with the usual exception of those having disciplinary power, must be members of the Brotherhoodas a condition of employment. Harvester Industrial Council. "The Works Council may consider and make recommendations on all questions relating to working conditions, protection of health, safety, wages, hours of labor, recreation, education, and other similar matters of mutual interest to the employees and the management. It shall afford full opportunity for the presentation and discussion of these matters" (Article XI, Section 1). No requirement of compulsory participation in the plan. 202 The Plaintiff's Brotherhood. Article VIII (Section 4). All members of the Brotherhood shall take the obligation as appearing in Appendix A (the anti-union contract). Harvester Industrial Cowncil. "There shall be no discrimination under this plan against any employee, because of race, sex, political or religious affiliation or membership in any labor or other organization" (Article XVIII). Article I (Section 6) Voting Divisions. One representative for each 250 employees. One employee representative for each 200-300 employees elected by the employees and a number of management representatives appointed by the management, not to exceed the employee representatives in number. The conference plan is by far the most common plan of workers' organizations under company auspices. It constitutes a basis for regular and frequent conference of workers with management and for decisions, approved by management representatives, which can be carried out without further consultation. It is frankly a company organization, but set up with power. The Plaintiffs Brotherhood. Article I (Section 8) Officers. "The General Committee shall elect from among their members a President, a Vice Harvester Industrial Council. "The Manager of the Department of Industrial Relations or someone desig 203 The Plaintiffs Brotherhood. President, a Second VicePresident, a Secretary, a Treasurer, a Sergeant-atArms and an Inside Guard." Harvester Industrial Council. nated by him, shall act as Chairman of the Works Council. A Secretary shall be appointed by the Superintendent of the Works. Neither the Chairman nor Secretary shall have a vote." (Article X, Section I.) Here we have on the one hand seeming independence of the company union, which is vitiated by other provisions of the Constitution, and on the other hand frank recognition of the Works Council as the Company's organization together with provision for its guidance by a responsible personnel officer of the Company. The Plaintiffs Brotherhood. Article I (Sections 9 and 10) Authority of General Comnmittee. "The General Committee shall be vested with the power at all times to promote the welfare of the members of the Brotherhood and of the Company by amicable adjustment of all questions as to the wages and working conditions that may arise from time to time. The respective obligations of the Brotherhood and the members of the Brotherhood, including the obligations of the members contained in Appendix A to this constitution (the anti-union contract) and the obligations of the Interborough Harvester Industrial Council. "The Works 'Council shall be concerned solely with shaping the policies of the Company relating to the matters heretofore mentioned.' When the policy of the Company as to any of these matters has been settled, its execution shall remain with the management, but the manner of that execution may at any time be a subject for the consideration of the Works Council." (Article XI, Section I.) 204 The Plaintiff's Brotherhood. Company in this constitution set forth, including any amendments thereto as the same may from time to time be adopted by the Brotherhood and approved by the Company, shall be deemed to be a contract between the Interborough Company and the Brotherhood and each and every member thereof." "The decision of the General Committee in all controversies between' the members of the Brotherhood and the Company shall be final and binding upon all members of the Brotherhood." "Whenever the General Committee considers a proposition in which all the members of the Brotherhood are interested the President of the General Committee "shall appoint a committee to take the matter up with the General Manager and report back to the General Committee." Harvester Industrial Council. "When the Works Council reaches an agreement on any matter, its recommendation shall be referred to the Superintendent for execution, except that if the Superintendent considers it of such importance as to require the attention of the general officers, he shall immediately refer it to the President of the International Harvester Company, who may either approve the recommendation of the Works Council and order its immediate execution by the Superintendent, or proceed with further consideration of the matter in accordance with Article XIII." (Article XII, Section VII.) When the Harvester Works Council reaches a decision, it is automatically carried into action; when the General Committee of the plaintiffs Brotherhood agrees on a matter, it appoints a committee to take the matter up with 205 the General Manager. It is significant also that the plaintiff's Brotherhood binds not the Company but the employees to action. The decisions of the Harvester Industrial Council bind the employing company. The inference is obvious that the Brotherhood acts to bind the men to do the will of the Company, not to bind the Company for action in the interests of the men. The Plaintiff's Brotherhood. Article I (Section 13) Removal from Office. The General Committee of the Brotherhood has "power to remove from office any representative on the Committee who, in its opinion, is not acting in the best interests of the Brotherhood." Harvester Industrial Council. "If the service of any employee representative becomes unsatisfactory to the employees of a voting division from which the representative was elected, they may recall him" according to a definite plan for petition signed by not less than one-third of the employees of the division, secret special election, etc. (Article IX). Article II (Section 7) Leaving Room During Meetings. The inside guard "shall at no time allow a member or members to enter or leave the room while there is any business being transacted before the meeting, without he or the member or members first receiving authority to do so from the Chair." "Both the Employee Representatives and the Management Representatives shall have the right to withdraw temporarily from any meeting of the Works Council for private discussion of any matter under consideration." (Article XII, Section 6.) 206 The Plaintiff's Brotherhood. Article III (Section 2) Meetings. "Twenty members shall constitute a quorum to transact business.s" Harvester Industrial Council. "A majority of the Employee Representatives, together with a majority of the Management Representatives, shall constitute a quorum, and no business shall be transacted at any meeting where less than a quorum is present." (Article X, Section 2.) The General Committee of the plaintiff's Brotherhood can do business with only a fraction of its members present, considerably less than a majority. This may give opportunity for minority control. The Harvester Industrial Council protects against irresponsible representative action in this way. The Plaintiffs Brotherhood. Article VII Elections. Section 1. Every two years. Sections 1, 2. Election Committee (number undesignated) appointed by the President of the General Conmmittee to "receive application from members of the Brotherhood who desire to become candidates for membership in the General Committee." Section 6. "The elections committee shall designate a sufficient number of member of the General Committee to conduct the election." Harvester Industrial Council. December and June of each year. Members elected for one year and can be reelected. (Article VI.) ' J 207 The frequent election of members of the Harvester Industrial Council keeps the matter of the Works Council alive in each division of the shop, and assures the responsibility of the representatives to their constituents. The infrequent election of the members of the general committee of the plaintiff's Brotherhood and the control of the conduct of elections by the General Committee give opportunity at least for possible control of the results of elections by the General Committee instead of the men. How THE BROTHERHOOD HAS BEEN OPERATED. The actual operation of the Brotherhood, as related in the Statement of Facts (pp. 1-88) with specific references to the affidavits submitted by the defendants in this action, shows even more clearly that the plaintiff's employees are in fact unionless. In the first place, elections of delegates, supposed to be held every two years, if held at all, are little attended. The reasons are simple. Votes are counted by persons appointed by the President of the General Committee, members of which are commonly running for re-election or are interested in the election of some candidate. The wages of the tellers are paid by the Company. There is no way in which the honesty of the tellers may be supervised by the members of the locals. Moreover, in the affidavits, cases are related of delegates appointed by the president of the General Committee itself and not at all elected by the men. Such a case occurred during the 1926 strike, when the General Committee was packed by appointees of President Connolly of the Brotherhood. Although the Brotherhood rules require that one delegate be elected for every 250 men, President Connolly appointed three men for a group of 150 who were not on strike. When the strike was over and some members of the Brotherhood objected to their delegates thus appointed, their objection was overruled and has been continually overruled by the 208 officials of the Brotherhood. One case is related where an appointed delegate has never been seen by the men whom he is supposed to represent. The division of the employees into locals is just as arbitrary as the Constitution indicates. The power of the General Committee to make even more arbitrary divisions is realized in practice. An example is given of an order of the General Committee consolidating four different locals in spite of the unanimous disapproval of the members of these locals. In this manner dissenters are suppressed. Other examples may be cited. In 1921 there was a 10 per cent reduction of wages although there was a large increase in the salaries paid to Frank Hedley, James L. Quackenbush, and two other officials of the plaintiff Company. This 10 per cent reduction was said to be voluntary. As a matter of fact, when the proposition of a reduction was first suggested to the men by their delegates, they unanimously rejected it. The delegates returned to the General Committee with the rejection and again upon Hedley's orders came back to the men with the same proposal. Although the men again rejected the proposal, the General Committee then voted in favor of a 10 per cent reduction, which the men had thus twice rejected. The 1926 strike was itself caused by the fact that the 1925 wage scale was renewed by the members of the General Committee after it had been rejected by the members of the locals. It was this dissatisfaction with the Brotherhood that caused this strike. After the strike of 1926, a number of locals voluntarily voted in favor of the restoration of seniority rights. This was a voluntary affair and concerned the men themselves. Nevertheless, the General Committee refused to allow such a restoration. Finally, there is the case of Local Division No. 7, which voted to cease paying death benefits and Brotherhood dues. At least so far as the death benefits were concerned, this was an affair of the local itself, inasmuch as they were 209 originally paid under a by-law of the local. President Connolly, however, informed the men that it was unconstitutional to repeal a by-law unless there was a referendum and a two-thirds vote polled in favor of the repeal. Such a referendum was held and there were 78 votes more than the necessary two-thirds vote in favor of the repeal. President Connolly, however, told the men that the General Committee would not agree to the repeal. Thus the men still pay for death benefits in Local Division No. 7. A case is related of the men being wrongfully forced by order of President Connolly to pay three months' dues to the Brotherhood in advance. The control of the company over the Brotherhood is unquestioned. The delegates are paid by the Company for time supposedly spent in performance of transit duties. Thus President Connolly, supposedly a motorman on the Ninth Avenue Elevated, is rarely seen on duty as a motorman. The same is true of other members of the General Committee. Moreover, many of the spies of the Company are delegates to the General Committee, and the hundreds of spies and others who prevent employees from attending Amalgamated meetings are paid by the Company. Spies attend Brotherhood meetings to report to officials of the Company the names of any individuals who dare at these meetings to criticize the Company or the conditions of work. Instances are related where Assistant Manager Keegan has called members of the Brotherhood to his office to upbraid them and threaten them with discharge. Cases are related where delegates that dared plead too vigorously on behalf of men who presented their grievances were told that they had "talked themselves out of a job." Corruption appears to be not infrequent. There is no control over the finances of the Brotherhood apparently. A case is related of an item in the Brotherhood financial report denominated "dark horse." When some were bold enough to demand an explanation of the "dark horse", they were told to see President Connolly and were advised 210 that if they asked they would be discharged. The highhanded manner in which meetings are carried on has caused meetings to be rarely attended. Men who had attempted to express themselves freely in meetings, finding that impossible, have left in disgust. Those cases in which the Company itself does not dare to discharge men because it has not sufficient cause, appear to be handled through President Connolly, who discharges the men for "disloyalty" to the Brotherhood and for other or no other reasons. Confirmation of this discharge then comes from the superintendent's office. As to this, there is no appeal by the very terms of the Constitution and the Contract. Cases where the discharge is by the Company officials themselves are hardly different because appeals appear to be fruitless, the General Committee refusing to handle them. Connolly, it appears, has even forced delegates who plead too strongly to resign from the General Committee. The delegates refuse to take upappeals and refuse to do those things which delegates of a bona fide union do. The case is related of an employee who requested to see the contract between the General Committee and the Company. The delegate refused to show him any such Contract. Distrust of the Brotherhood, general apathy on the part of the men toward the Brotherhood, and absence from regular meetings, or meetings irregularly attended indicate, among other things, the absence of control by the men over their delegates and over the General Committee. The fruitlessness of efforts either to regulate internal affairs or to negotiate with the Company in matters of wages, hours, and conditions of labor are patent. While trade unions and other labor organizations provide for complete control by the rank and file over their representatives, this so-called voluntary organization of employees puts the power of representation in a small group, subject to flattery and favor by the employer, and utterly beyond 211 the control of the members whom they are supposed to represent. WAGES AND WORKING CONDITIONS ON THE PLAINTIFF'S LINES. A comparative study of the wages, hours and working conditions prevailing on the plaintiff's lines with those of workmen organized into regular trade unions such as the Amalgamated Association, is concrete and convincing proof of another sort that the plaintiff's employees are now in fact unionless. Particular reference is made to the affidavit of Roy Emerson Stryker of the Faculty of the Economics Department of Columbia University. In this affidavit is to be found a detailed statistical study of the rates of entrance wages received by the plaintiff's employees and by the employees of the Elevated lines in Chicago and in Boston. These studies are summarized as follows: Entrance Rates of Wages Paid to Rapid Transit Train Men in New York and Chicago. Initerborowgh Chicago Elevated Rapid Transit Railway Company Company (per howr in cents) (per hour in cents) Motormen........ 77.00 72.50 Conductors....... 72.00 60.00 Guards........... 70.00 53.13 Switchmen........ 71.00 61.00 Towermen........ 80.00 62.00 Porters........... 42.88 30.90 Trackmen........ 69.00 51.00 Gatemen............ 48.50 33.10 Total.......... 530.38 423.63 Average...... 66.30 53.00 212 These summarized results should be weighed against the fact that they make no allowance for the higher cost of living prevailing in New York. That the cost of living is higher in New York than it is in Chicago, for instance, is a matter of common knowledge. Again when the rates of wages paid by the plaintiff are measured against what is considered the average minimum cost of maintaining a fair American standard of living among industrial workers in New York City, it appears that a considerable number of groups of workers among the plaintiff's employees are below even the minimum American standard for a family of five when working seven days per week. The data upon which this conclusion is based are found in Mr. Stryker's Tables 5 and 6. The findings of Mr. Stryker are confirmed by the data collected by William D. Mahon, International President of the Amalgamated Association since 1894. He sets out in parallel columns rates received by various classes of workmen, first on the Chicago Elevated lines and second on the plaintiff's subsurface lines. While his results are not summarized, a glance down these two parallel columns shows that the disparity is most substantial. Mr. Mahon also includes a comparison of the minimum wages paid in the building trade in New York with the wages paid by the plaintiff to its employees. This comparison shows a gross disparity-much more than can be accounted for by the shorter work year in the building trades. In the public prints and elsewhere the plaintiff has defended its failure to pay an adequate wage on the ground that its earnings are not sufficient to enable it to do so. The plea has been made that to increase wages would involve the plaintiff's being thrown into bankruptcy. Communications from Mr. Hedley to the employees of the plaintiff Company which are included in the record stress the foregoing excuse, butt the underlying fact is that wages in a free market would be governed by supply and demand; no employer would be able to obtain labor at less than 213 the market rate merely because that is the only way to escape bankruptcy; nor, on the other hand, would labor be able to get more than the market rate merely because the particular employer could afford to pay more. Wages, in other words, if the market is free, have nothing to do with the profits or losses of any particular employer, save only as such profits and losses are sufficiently widespread to affect the demand for the type of labor in question. In a free market, neither party to any one bargain controls enough of the supply or demand to affect the price. The wage fixed in a free market may conceivably fall below the desirable social minimum; in that case some control over the supply may be justified. But no one can be properly required to work for less than his service is worth in a free market merely to help out a needy employer or to guarantee the bonds of the company for which he works. It would be as reasonable to insist that all of us should help out the Interborough by working for it though we could earn more in other occupations; or to insist that persons should sell it coal below the market rate because of its needy condition. It is doubtless a calamity when any of its bonds are defaulted; but that is one of the risks which the bondholders took with their eyes open. We have not yet reached a socialistic state where the government underwrites private losses out of general taxes, still less out of taxes or moneys collected from a single class of persons, namely the Company's employees. That would be a class government with a vengeance. In our society the risk of loss due to increased market prices of materials and labor is a risk shouldered by the owner and his creditors. When wages are found to be above or below the general market rate for similar labor, that is an indication that the market is controlled, and not free. The market might be controlled on the supply side if workers were not able to enter though willing to comply with all the conditions of the job, including unionization. 214 The market might be controlled on the demand side if workers were not free toi leave and seek similar jobs in the outside market. When a single company or a few companies acting in concert control most of the jobs of a given type in a given locality, and labor is not free to leave, that company has; a control sufficient to destroy a free market. The men cannot get other jobs of the sort for which they are fitted in that locality, and they cannot move to other places without serious sacrifice and risk. Under such circumstances, and only such circumstances, the company can force them to accept wages which fall short of wages for similar work in other places (account being taken of differences in living costs). Were the market free, the workers would get what all persons are normally entitled to-the full value that their services would have on a free market. The workers of the Interborough have to accept work in a labor market dominated by the Company. This fact is indicated by the fact that the wages of most of them are appreciably less than the wages for similar work in other cities, despite the higher living costs in New York. The Company tacitly admits that its wages are below the market, for it attempts to justify the low scale on the ground solely that the Company (it claims) cannot afford to pay more without defaulting on its bonds-a circumstance, as has been pointed out, which has no bearing on the market value of the labor. The only way to avoid the Company's control of the labor market is to organize the men in an independent union. The so-called Brotherhood is ineffective for this purpose. This is proved by its acceptance of wage conditions below the market rate, as well as by the extraordinary terms of its Constitution and of the so-called Contract negotiated with the Company. In the absence of a genuine union, the conditions of a free labor market will not prevail, and the wage earners will be compelled, contrary to the entire spirit of our laws, 215 to underwrite whatever losses have been assumed by the bondholders. Conditions under which the plaintiff's employees work and which make amelioration necessary appear in some of the affidavits. Such amelioration has been accomplished by the Amalgamated in other cities. The Brotherhood and the Company have failed or refused to ameliorate these conditions here. For example, one may cite the "dead end" runs obtaining on the plaintiff's lines. This is a condition brought about chiefly by inefficiency and disregard for the welfare of the men. Thus a man living in Brooklyn is compelled to report for work in the Bronx and is there told to return to Brooklyn to take a train and perhaps is then sent from Brooklyn elsewhere for a train. Having spent two or threee hours; in travel, he is paid for the time actually spent in running the train. In this manner, though paid for eight hours of work, the men actually spend anywhere from nine to twelve or more hours, on the Company's businessý. "Dead ends" have been abolished wherever the Amalgamated has made contracts with transit companies. More than that, men on the plaintiff's lines who are paid for eight hours of work have their shifts broken, and in fact perform nine or more hours of work though paid for eight. Many men are made to report for work early in the morning when they have had only four or five hours of sleep. The affidavits contain a great deal of human interest. They give poignant details on the human issues involved in this action. Besides the bad conditions of labor, etc., which the men want remedied, they want freedom. Many of them fought in France during the World War, and honorably. They are Americans who want the same freedom to do with their after hours what the employers may do with theirs. They cannot be bound to, keep away from fraternal organizations or craft organization of their own desire any more than can the officials of the Company. Many of the men discharged for insufficient reason or 216 solely because they belonged to the Amalgamated Union had records unblemished in any way, and some of them had served the Company for twenty years or more. The plaintiff's reply affidavits concerning the increase in the wage rates of the plaintiff's employees since the organization of the Brotherhood do not alter the conclusion that these men are unionless. According to Mr. Connolly's showing, 1927 wage rates are from 105.96 per cent to 260 per cent higher than 1916 rates in the same occupations. No average increase which would have any meaning can be computed from his figures, because the number of workers in each occupation is not given. From his: own tables, however, two things are apparent. 1. Wages in the car equipment department have increased by 148 to 260 per cent, in the engineering department by 133 to 189.8 per cent, in the motive power department by 108 2/21 to 175 5/8 per cent., and in the transportation department by 105.96 to 157.76 per cent. The transportation department contains the workers whose specialized skill has no ready market outside the transportation industry. The lower rates of increase in this department show the control which the plaintiff company has over its labor market. The other three departments include many men in occupations which are so well unionized that wage levels are influenced by union rates. Carpenters, blacksmiths, electricians, machinists, masons, riggers, riveters, armature winders, boiler makers, crane operators, stationary engineers, steam fitters, switchboardmen and many others of the plaintiff's employees can sell their skills to other buyers. What the plaintiff pays for such workers as these depends more on the influence of the building trades unions, the electrical workers' union, and the machinists' union than on the Brotherhood. 2. The rates paid by the plaintiff in 1916, on which the increases are computed are so low that it takes a very large percentage increase to bring them up to a reasonable figure. Disregarding for the moment the number of men in 217 each occupation (as the plaintiff does in preparing the lists) it is startling to observe that one day-work job and eight hour work jobs paid $475.78 to $588.00 per year (assuming that the hour work men worked ten hours per day and had only two days off each month). This is less than the National Industrial Conference Board figures for a minimum standard of living for a single man. Thirty-five additional day-work jobs and forty-two hour-work jobs paid less than $877.53, the minimum standard for a man, wife and one child. None of the day-work jobs and only one of the hour rate jobs, the motorman's, paid as much as $1,199.55, the minimum American standard for the ordinary family of five. Moreover, twenty-eight hour-rate jobs and eighteen day-rate jobs paid less than $750.36 per year, the average pay for factory workers in New York State in 1916, an admittedly low figure because it includes women as well as men workers, and small town as well as New York City factories. It was inevitable that rates so low should show an exaggerated increase in the era of economic changes during the past decade. Looking beyond the four corners of Mr. Connolly's affidavit, two things emerge clearly from the comparison of his figures and figures available at the office of the Transit Commission. 1. The transportation department, where the increases were the smallest, contains the bulk of the men on the plaintiff's lines. This shows how misleading is the long list of increases given for the other departments. 2. The figures given by the plaintiff for 1927 are "top pay" and are much higher than the "average earnings" according to its own Annual Report to the Metropolitan Division of the Department of Public Service of the State of New York for the year ended June 30, 1927. The twentyfour hundred guards and eleven hundred ticket agents, for instance, averaged $4.42 and $4.41 per day (though their top rates are 59.37 and 52.50 cents per hour). Their monthly earnings thus averaged $123.76 per month or 218 $1,485-12 per year. This. is much less than the figure given in Mr. Stryker's affidavit, as a current minimum American standard for a family of man, wife, and two children. These guards and ticket agents constitute one-quarter of the plaintiff's employees. Obviously the Brotherhood has not done much for them. The thousand motormen are now, as in 1916, the best paid group of workers, but their wages, by Mr. Connolly's own showing, have increased only 1-15.04 per cent during the last eleven years while union rates the country over have increased 142 per cent. The Brotherhood lias not done nearly so well by this group of its~ members as has the average independent, trade union in the same period. Examples could be multiplied. There is nothing in, the figures submitted which, shows tliat the Brotherhood has bargained effectively for its members. THE NATURE OF TimE ALLEGED Two YEAR CONTR.AcT AND 0 THlE CIRCUMSTANCES OF ITS EXECUTION. Ample proof that the plaintiff's employees are'unionless is found in the facts recited, pp. 36-8, of this Brief, describing the manner in which the alleged Two Year Contract was foisted upon the men. If these men had been organized into a genuine trade union or even into a bona fide company union, they would not have been called upon to execute the Contract individually. Such a practice was never heard of in connection with contracts executed by regular trade unions. The men in such unions have responsible leaders. They execute an agreement for the men and that ends the matter. Nor would the men, had they been able to, act with their full collective strength, have tolerated being compelled to sign this Contract, as many were, without an opportunity to read it and tyrpically without their genuine consent going with their signatures. Anxaination of the Contract itself discloses such Zgross inequity and disparity of obligations and rights as to establish beyond all question of doubt the fact that this 219 Contract was imposed upon the men without their consent and that such imposition was possible only because the men were completely unionless. There had been no changes in underlying conditions and yet the plaintiff suddenly called upon the men each to bind himself individually and unconditionally to work for two years. This revolutionary provision corresponds to no change in the actual situation. The plaintiff incorporated it in the Contract merely in order to make, as it thinks, the anti-union promise valid; and the men signed the Contract containing it. They had to do so because they are unionless. Within the four corners of this alleged Contract, there is an abundance of that inequality which demonstrates that these men are unorganized. It contains no equating of advantages and obligations. The whole document bristles with disparity of rights and undertakings; it bulges with the results of inequality of bargaining power. It is barren of any substantial measure of reciprocity of advantages. It is in contradiction with the term "agreement" and it violates elementary considerations of fair play. It demonstrates that the men are unionless. In the column below on the left are listed all the duties and hazards which the employees purport, by this Contract, to assume and the circumstances exposing them to discharge by the plaintiff. The column on the right recites the absence of corresponding duties and hazards on the plaintiff's part. This parallel study is followed by a statement of four other defects in this alleged Contract. The showing thus made is that of the workman getting no more than a hiring at will would give them, but the company getting a two year guarantee against any advance in wages, underwritten by each workman's individual obligation, and in addition, the men's promise to join no union and thus to forego all the benefits of real collective bargaining. Here is proof positive that these men are unionless: 220 1. The men are bound for two whole years not to join a union of their fellowcraftsmen working for other companies. 2. If change in economic conditions or in seasonal operations makes any man's further services unprofitable to the Company, he can be discharged at once. 3. If the -men are incompetent to perform work assigned to them by the Company, as to which assignment the men have nothing to say, they may be discharged without notice. 4. If the men are inefficient at their tasks, they may be discharged by the Company without notice. 1. The Company is free to join any association of employers and agree with them on the wages, hours, and working conditions which they will grant to workmen. 2. If any of these men are offered more pay elsewhere, however much more, they are not free to quit, though they give the Company ample opportunity to find men to take their places. There is no balancing advantage assured to the men such as unemployment insurance, for example. 3. The Company may employ incomnpetent men to discharge its duty to the men to provide them a safe and sanitary place in which to work or to supervise and assign tasks, yet, by the contract, the men cannot quit although they give the Company ample opportunity to find men to take their places. 4. The Company's bosses, supervisors, etc., may be grossly inefficient, for example, in wasting the men's time before and after the hours for which they are paid, yet by the contract the men cannot quit although they give reasonable notice of a desire to do so. 221 5. If the men are careless not habitually but once or twice, the Company can dismiss them without notice. 6. If the men drink, however slightly, they may be discharged without notice. 7. Dishonesty on the part of the men is cause for discharge without notice. 8. Let a man disobey an order, though markedly autocratic, unreasonable or humiliating, and he may be discharged without notice. 9. If the men neglect or refuse to perform any duty in the line of their employment they may be discharged at once. 10. If the men become physically unfit for their work, unless they have worked five years, they may 5. The Company can be careless about mode of payment of wages, providing safe places to work, squandering their free time, not occasionally but habitually, yet, by the contract, the men cannot quit though they give reasonable notice. 6. The Company may retain drunken bosses, superintendent, etc., to direct the men, yet, by the contract, they cannot quit though they give reasonable notice. 7. Dishonesty and unfairness on the part of the management does not, according to the contract, enable the men to quit even after reasonable notice to the Company. 8. There is no reciprocal undertaking of loyalty on the part of the management for breach of which the men may quit. 9. There may be multitudinous and substantial neglect on the part of the management or refusal to perform duty to men, yet, by the contract, they cannot quit though they find substitutes to take their places. 10. But they are bound for two years to keep( on working under physically unfit bosses and managers, 222 be discharged instanter or transferred to a position of lower pay at the Company's option. 11. If any new invention be found to displace men, they may be discharged peremptorily. and cannot quit. There is no equating provision made by the Company for sickness or old-age insurance in this contract. 11. Experience sho ws that this is a grave risk for labor, yet the Company assumes no reciprocal risk and provides no parallel device to minimize the disaster which this hazard entails. 12. The provisions of the latter part of Section 6 for putting men laid off on a waiting list are not as substantial as they seem because: a. Men laid off have no promise that their seniority is not lost. b. The waiting list is largely a convenience to the Company in providing itself with a reserve labor supply by the hope held.out. 13. The provision for arbitration in Sections 5 and 6 of the Contract does not cover anything like all the causes for which the Company can discharge without notice. Even though this provision covered all causes for discharge, it merely makes sure the cause is present. It does not save the men from the consequences of discharge above referred to. As is shown elsewhere, the provision for arbitration is unenforceable because of its vagueness. Its providing that any president of the Chamber of Commerce shall be the third arbitrator indicates quite clearly that no genuinely independent group ever consented to this provision. 14. Expulsion from the Brotherhood, provided the Company approves, is made a cause for discharge by clause 223 5 of the Contract. This is the loop-hole which gives the Company absolute control over discharges. By dominating a majority of the officers of the General Committee, i. e., only four men, it can procure the expulsion of any man from the Brotherhood and thus create a cause for discharge within the terms of this Contract. The Statement of Facts shows (p. 35) that this is a way men are being discharged. 15. By clause 12 this Contract is perpetually binding unless a party gives notice. But an individual workman is not a party and cannot give such notice. The realities are more than technical. A new two year contract just like this one can be suddenly put out for the men to sign just before this one expires, and they can be compelled to sign it as they were to sign this one. If unorganized, they are powerless to avoid this. By the Constitution of the Brotherhood, the General Committee can bind the men to a five year contract. A particular General Committee, therefore, can bind the men for seven years by making a contract as soon as they are elected and by renewing it for five years just before their term of office expires. All the men can do is to refuse to re-elect them, but the five year contract would still stand and a single General Conunittee would have been able to bind the men for a period of seven years. MVioreover this process can be repeated indefinitely, so that the unemotional reality is that there is here what amounts to, in practical effect, a perpetual servitude. This reality is not altered by the fact that individual workmen may drop out. There will always be a like number of thousands of workmen employed on the plaintiff's lines and in its Brotherhood so that this body of men, though a changing one, will continue in a practical servitude if the present arrangement, both as to the Brotherhood Constitution and as to the Two Year Contract which the plaintiff has so studiously worked out, is allowed to stand. 224 POINT XII. No unlawful means are involved. The crucial question in this case stated. Thus far it has been made clear that no injunction can be issued against the defendants on the ground that they are seeking to accomplish an unlawful purpose. It is well settled that their purpose to unionize the plaintiff's employees has the full approval of the Court of Appeals. But as was so well said in the Exchange Bakery case, "Even if the end sought is lawful, the means used must be also". In the instant case the means were and are lawful. The plaintiff alleges that force and violence and threats were used as means, charging in a general way threats of force and violence against workers, against a particular conductor, against Brotherhood delegates, and charging that on one occasion stones were thrown. Without exception all the many affidavits of the defendants on the point deny that force, violence, intimidation, threats or similar means were used; and, as regards the alleged throwing of stones, specific denial is made under oath by the persons the identification of whom is supplied by the plaintiff. The plaintiff's charges of threatened harm to particular workers are also specifically denied by the defendants in question. And generally, the plaintiff's charges of violence or of any other misconduct, negligible in number, do not allege repeated offenses and are specifically denied by the defendants under oath. These charges of sparse, isolated, and unrepeated acts of violence, had they happened, would not warrant an injunction. At one moment alleging that the Amalgamated Association had almost no strength, the plaintiff.at the next moment alleges that it was so strong that it coerced men to join by representing that, unless they did so, they would not be permitted to, join later and would not be permitted to remain in the employ of the company,-a privileged statement, in any event, it has been held. Without exception, the defendants state under oath that they became members of the Amalgamated Association voluntarily; and those who solicited membership make affidavit that they neither used coercive measures nor know of such measures being used by others. Ample proof is submitted that joining was often not the result of solicitation but of individual initiative arising out of dissatisfaction with the Brotherhood; and ample proof is submitted of the use of entirely lawful means of solicitation. By its very nature the Amalgamated Association is interested only in procuring members who will be permanent and satisfied. 225 The general charge of the use of secrecy as a means is completely disproved by affidavits of the defendants; by exhibits attached to the plaintiff's affidavits showing that organization was proceeding openly; by reference of the plaintiff to public statements by the defendants concerning meetings; by the fact that meetings of the Amalgamated were publicly advertised and openly held at fixed dates; by the fact that the plaintiff knew of these meetings and had present large numbers of spies, bosses, and other representatives; by the fact that no, effort was made to change or conceal the places of meeting; by the fact that Mayor Walker was notified of the intent to open up headquarters of a Local Division; and by the fact that, as Mr. Hedley's own affidavit shows, the defendants notified the plaintiff of their plan to organize these men. There is 'a specific charge of secrecy in that the defendants are alleged to have concealed the names of workers who had been enrolled. This charge apparently grows out of a statement which appeared in certain circulars issued by the defendants, indicating that conditions of mutual confidence and respect could obtain between organizers and men. It is settled by the Lavin case that the defendants had no duty to give the plaintiff the names of those who had joined the Amalgamated Association, especially in view of the known fact that such men would have been promptly discharged by the plaintiff. Ample proof is submitted that there is no foundation for any charge that the defendants sought to induce the employees of the plaintiff to keep their membership in the Amalgamated Association secret. The plaintiff charges resort to fraud and misrepresentation as a means in that there was an alleged misstatement as to an agreement reached between the plaintiff and certain defendants at a conference with Mayor Walker on July 26, 1927. A careful analysis of all the attendant facts and circumstances as well as a reading of the statement given out by Mayor Walker fully establishes that the defendants' interpretation of the agreement was honest and reasonable and raises a question whether the plaintiff's interpretation was likewise so. The plaintiff also charges fraud and misrepresentation as regards the number of persons who had joined the Amalgamated Association. This is expressly denied by the defendants. Even if the defendants were over-optimistic in their statements of the number who had joined-and it is nowhere established that they were over-optimistic-such statements cannot be said to constitute fraud any more than do like statements in political campaigns. In short, the defendants have not resorted to, any violence, unlawful trespass, threats, congregating on plaintiff's premises, obstructing access to plaintiff's premises, coercion, secrecy, fraud, nor any other unlawful means. They have used nothing but 226 such lawful means as invitation, suggestion, advice, persuasion, and argument to induce the plaintiff's employees to join the Amalgamated Association. Are the defendants about to induce a breach of any promise of the employees of the plaintiff to work? An examination of the proofs shows that the defendants did not and do not have in mind any purpose to call a strike or in any other manner to induce the plaintiff's employees to quit work. Mr. Hedley's own affidavits show that the defendants repeatedly denied immediate intent to call a strike; the affidavits of the defendants are to. the same purport as are also the public statements of officials of the Amalgamated Association to Mayor Walker; and it is well known-and is also stated by defendants under oath-that the constitution and accepted policy of the Amalgamated Association are opposed to strikes and committed to a policy of no strikes until arbitration is refused. It is clear that an injunction cannot issue on the ground that a strike was or is reasonably certain and imminent; nor on the ground of an inducement of breach of promises to work. In this present consideration of means used by the defendants to promote the lawful end of organization among the plaintiff's employees, there remains but one more act or conduct which could by any possibility be alleged to be an unlawful means: Can it be that the defendants' act of inducing men to break their alleged promise to the company not to join the Amalgamated Association is an unlawful means to attain the lawful end of organizing those men in the Amalgamated Association? To state the question is to answer it. It is not a means at all within the analysis laid down by the Court of Appeals in the Exchange Bakery case. It is the end sought and the end sought is proper. It becomes at once apparent that if the defendants are to be enjoined for inducing breach of anti-union promises, then any and every employer can prevent unionization by securing such promises. It follows that the vital question in the instant case is whether promises not to join a union are to stand as an impenetrable barrier to unionization. These defendants seek a lawful end and they use only lawful means: The crucial question in this case is whether there exists, for purposes of this suit, a contractual relation between the plaintiff and its employees which makes it unlawful for the defendants to pursue their lawful purposes by lawful means. It will be shown that no such contractual relation exists. The preceding part of this Brief has shown that these defendants are pursuing no end or purpose except to unionize the plaintiff's employees and that such unionization is needed because the plaintiff's employees do not 227 have even a company union, much less an inter-company one. It has been shown that the sole purpose or end sought by the defendants is, as stated in the Exchange Bakery case, "To make union conditions prevail not in a single factory but generally;" "to increase its (the union's) numbers" in order "to improve the conditions under which its members do their work; to increase their wages; to assist them in other ways." It has been shown that this purpose has the full approval of our courts, and expert students of our labor problems have testified as to how vital to the workmen's and to society's welfare this end or purpose is. It follows that there can be no injunction issued against the defendants because they are seeking to accomplish an unlawful purpose. The next step in following the analysis laid down by the Court of Appeals: in the Exchange Bakery case is to examine the means being used by the defendants, for the court there said: "Even if the end sought is lawful the means must be also." What are, then, the exact means used by these defendants to carry out their lawful purpose? It is vital to the understanding of this case to stop at this point and find out exactly what they are. There is no hope of accurately applying the analysis and the law laid down by the Court of Appeals in the Exchange Bakery case unless that be done. The complaint charges that many things have been done and are being done by these defendants. As to each of these acts, three questions must be asked and answered. 1. Is the act charged a means? 2. Was it done or is it threatened? 3. Is it unlawful? Grouping all possible acts of the defendants into three broad groups will aid in understanding this case and ap 228 plying the analysis laid down by the Court of Appeals. The first group may be subdivided into four categories: 1. Force and violence, or threats of these two things. 2. Coercion. 3. Improper secrecy. 4. Fraud and misrepresentation. All of these things are admittedly means to accomplish the lawful purpose sought, i. e., to get these employees to join the Amalgamated Association. That is to say, they are acts or conduct calculated to cause or induce the employees to join such an association. Admittedly also, they are unlawful, but an examination of the deficiencies in the plaintiff's supporting affidavits and a study of the defendants' proof show that none of them have been used or are threatened. No MEANS OTHERT THAN PROPER PERSUASION WERE USED BY THE DEFENDANTS. The complaint in this action charges that the defendants resorted to unlawful means involving force and violence, coercion, fraud and deception, and improper secrecy. 1. The Cha rge of Force and Violence is Unsubstantiated, and Unfounded. The evidence in the affidavits of the plaintiff supporting the charges of the use of unlawful means by the defendants is practically negligible. It is charged generally that the defendants coerced men by threats to join the Amalgamated Association; that on one occasion stones were thrown at a car; that certain workers were called scabs; that threats of bodily injury were made against workers; that a particular conductor was threatened with a beating; that Brotherhood delegates were threatened with beatings. 229 With hardly a single exception the affidavits submitted by the defendants states specifically that no force, violence, coercion, duress, intimidation or other forceful means were used to induce the plaintiff's employees to join the Amalgamated Association, or for any other purpose. Most of the affidavits submitted by the defendants are made by members of the Amalgamated Association, many of whom were and many of whom still are employees of the plaintiff. They state, without a single exception, that they became members of the Amalgamated Association voluntarily and solely with a view to bettering their conditions because of their belief that the Brotherhood was simply a sham arrangement organized, controlled and managed by the plaintiff. The defendants' proof meets squarely all charges of throwing stones which the plaintiff makes possible by identifying the persons charged with such wrongdoing. In answer to the charge of the plaintiff made in the affidavit of Mack, the defendant Corrigan denies under oath that he ever threw stones at the plaintiff's trains. Likewise Hackett denies that he ever threw stones at the plaintiff's trains, or at Motorman Rigler, or at anyone else, or that anyone else ever threw stones. Corrigan also denies calling Motorman Rigler a "scab." The plaintiff's charges that the defendants threatened harm to particular workers are denied by the defendants. Wycker denies in his affidavit that he made any threat to do harm to Conductor Felix or any member of the Brotherhood. Beggs, also, denies under oath that he made any statement to Felix threatening harm to Motorman Moriarty, and denies that he has talked to Joseph Bloomington since 1924; and denies as false and fraudulent the statement made by Bloomington to the effect that threats were made against Brotherhood delegates in the presence of both Bloomington and Beggs. In fact, the affidavit of Wycker charges that Bloomington himself stated to him that Felix should receive a beating. 230 The plaintiff's charges of violence are negligible in number. The plaintiff does not charge that the alleged offences were committed repeatedly. Indeed, only one identified instance of injury to property, admitting of rebuttal, is charged, and this is explicitly denied under oath. The charges of misconduct are directed against only two identified individuals who make denials under oath. None of the defendants is shown to have authorized anyone to commit acts of violence. These charges of sparse, isolated, and unrepeated acts of violence, had they happened, would not warrant an injunction. James H. Coleman has held a responsible position with the Amalgamated Association since 1913. HIe makes oath to the following statement (Amended Answer, p. 368): "The organization work of the Amalgamated Association has been carried on since the charter was granted to Local Division No. 977 on September 9, 1926, lawfully and without any attempt to interfere with or injure the rights or property of the Interborough Rapid Transit Company; that in securing new members there is absolutely no intimidation, fraud or deception used." 2. There is No Showing that Coercion Was Used in Enlisting Men in the Amalgamated Association. The plaintiff's charges that the defendants coerced the workers into joining the Amalgamated Association are based solely on the allegation of the plaintiff that the defendants represented to the workers that if they did not join the Amalgamated Association at once they could not do so in the future, and that they would not be allowed to remain in the employ of the Company when the Amalgamated Association should be recognized by the plaintiff. The defendants in their affidavits state without exception that they became members of the Amalgamated Association voluntarily. Likewise, both official organizers and 231 workmen who solicited the membership of fellow workers stated under oath that they did not use coercive measures to obtain members and that they do not know that any intimidation and coercion was used by anyone in procuring members. (See the following affidavits: McGrath, Amended Answer, p. 474; Cook, p. 425; Milillo, p. 500; Mead, p. 434; Moore, p. 439; DePalos, p. 452; Atldns, p. 455; Bauer, p. 508; Corrigan, p. 485; Nichols, p. 467.) Had the defendants stated that the failure of the plaintiff's workers to join the Amalgamated Association might constitute a menace to their jobs should the plaintiffs at a future time recognize the Amalgamated Association, such statement is a privileged one under the law of New York. (See National Protective Association v. Cumi'ug (1902), 170 N. Y., 315, holding that a labor organization may refuse to permit its members to work with the members of a rival organization.) However, there is no indication that such talk was any more than general talk, and if the Amalgamated Association was as weak as is sworn to by Mr. Hedley and others, such assertions would on their face appear ludicrous. It would in fact be surprising if such talk could arouse in the workers any reasonable fear such as to amount to coercion, in view of the well known fact that, rather than fearing the consequences of not joining the Amalgamated Association, the employees feared that if they did do so they would lose their jobs with the Interborough Company. Affidavits submitted by the defendants show that many workers, desiring to join the Amalgamated Association, failed to do so because of the fear of discharge by plaintiff. The affidavits of the defendants uniformly show that workers joined the Amalgamated Association voluntarily, and that this action was not always the result of solicitation, but was as often the result of individual initiative arising from conviction of the sincerity of the Amalgamated as an association for bettering their conditions, from individual investigation of the Amalgamated Asso 232 ciation and from dissatisfaction with the Brotherhood as an organization which many believed to be contrary to the best interests of the men. (See affidavit of Betty, Amended Answer, p. 427.) This dissatisfaction is illustrated by incidents of the following nature. At the regular meeting of Local Division No. 7 of the Brotherhood held at Moose Hall in April, 1927, it was voted to do away with paying further benefit dues to the Brotherhood and to eliminate sick and death benefits. This decision was carried to a referendum vote and passed by 78 votes. However, the decision of the men was disregarded by the General Committee and the workers were required to continue paying benefits. Affidavits submitted by the defendants show that after this incident many workers, dissatisfied with this disregard of their expressed will, joined the Amalgamated Association. (See affidavits of Strohmenger and Driscoll, Amended Answer, pp. 460 and 470.) That no coercion was used in securing members is further borne out by the method pursued in unionizing as shown by the affidavits of the defendants. Employees are solicited by their friends, by fellow-workers, by letter, and by announcements of public meetings; in some cases they make application without solicitation. Also, persons who formerly belonged to the Amalgamated Association either in this city or elsewhere have applied for membership. The organizers in New York direct these methods of organization. The American Federation of Labor representative, Hugh Frayne, has no direct control or interest or activity in this unionization. His activities consist only in giving advice or counsel. (See affidavit of Hugh Frayne, Amended Answer, p. 172.) Applications for membership are made by voluntarily signing blanks and paying $1.00 initiation fee. The Amalgamated Association is a permanent organization and has existed since before 1894, embracing more than 131,000 men, and having contracts with almost three hundred public utility companies. It is interested only in 233 procuring members who will be permanent and satisfied ones. Getting members by the unlawful means charged by the plaintiffs would be wholly incompatible with this interest of the Association. 3. Improper Secrecy Was Not Resorted to by the Defendants. The whole charge of secrecy is disposed of in the affidavits of Shea, Munch, Fitzgerald, Hogan, Mahon, Strohmenger, Menalis, Coleman, and Thompson. Patrick Shea, a member of the General Executive Board of the Amalgamated Association denies the plaintiff's charges of secrecy under oath (Amended Answer, p. 382): "I specifically deny that there was at any time or that there is now any secrecy connected with the work of the Amalgamated Association of Street and Electric Railway Employees of America. All meetings of the Amalgamated Association were held openly." The affidavits of the defendants and even the exhibits attached to the affidavit of Mr. Hedley show that the Amalgamated Association was organizing the plaintiff's employees openly. The affidavit of Mr. Hedley shows that on July 7, 1927, the defendants Shea and Coleman addressed a letter to Mr. Hedley advising him that the employees of the plaintiff were being organized by the Amalgamated Association. Exhibits in Mr. Hedley's affidavit further show that Coleman at various times made public statements that the Amalgamated Association was carrying on unionizing activities. Secrecy is further negatived by the fact that the meetings of the Amalgamated Association were publicly advertised and were openly held in public places at fixed dates. (See affidavit of Strohmenger, who says, Amended Answer, p. 462): "There is no secrecy connected with the Amalgamated Association. Meetings are held openly and I 234 have frequently talked to many of my associates about it." (See also Hogan, Amended Answer, p. 443.) The affidavits of the defendants show that large numbers of spies, bosses, and other representatives of the plaintiff attended these meetings and made reports of the proceedings and the names of those attending to the officers of the plaintiff. (See affidavits of Brewster, Davenport, Hogan, Foster, Munch.) At the organization meeting of the Amalgamated Association held on July 22, 1927, at the; Labor Lyceum, Brooklyn, which was openly and publicy announced, the Interborough Company had stationed outside the meeting hall four hundred bosses, sub-bosses, officials, detectives and Brotherhood delegates. (See affidavit of J. H. Coleman, Amended Answer, p. 389.) The regularity and facility with which representatives of the plaintiff covered these meetings is evidence in itself of the lack of secrecy on the part of the defendants. The total absence of any attempt to conceal these activities on the part of the defendants knowing that they were being spied on refutes any alleged intent to conduct them secretly. The denials by the defendants of attempted secrecy are substantiated by the fact that although they were individually aware that agents of the plaintiff were watching their actions and noting them down for record, the defendants nevertheless did not make any efforts to conceal their actions. This is illustrated by the affidavit of Frank Menalis who states (Amended Answer, p. 495): "I have myself been followed by Linsky, Sherman, Switchman, Shepherd and others whom I do not know by name or whose names I cannot at present, recollect, and these men listen to my conversations and report to the despatchers that I was distributing circulars. I know that Linsky is a delegate of the guards and at the same time a company spy. Tom White, Conductor, is also a delegate and at the same time a company spy." 235 It is significant that although representatives of the plaintiff stood around the entrances to the places where meetings were being held, nevertheless no efforts were made to change these meeting places. (See affidavit of Driscoll, Amended Answer, p. 474, denying as false and without foundation the charge of John Lallyon that he attended a secret meeting of the Amalgamated Association at the home of John S. Phelan.) It is significant, also, of a policy to be open and aboveboard that the Amalgamated Association notified Mayor Walker that they were going to open up headquarters of a local division and asked him if it was all right to do so; and that the defendants notified the plaintiff of organization meetings, as exhibits in Mr. Hedley's own affidavit show. A second charge of secrecy made by the plaintiff is that the defendants concealed the names of the workers who had been enrolled, and to accomplish this end adopted a number system. The defendants specifically deny this charge. (See affidavits of Coleman, Menalis, Strohmenger.) James H. Coleman denies under oath the use of a number system. Peter McEnaney states in his affidavit (Amended Answer, p. 456): "I voluntarily joined the Amalgamated Association in July, 1927, and there has been no occasion to keep my membership secret. I have attended the meetings of the Amalgamated Association which have been held openly." A similar denial is made under oath by Menalis, who says (Amended Answer, p. 495): "Men whom I have approached and asked to join are terribly nervous about joining for fear of losing their jobs. They are afraid of spies who will tell the company, but we have done nothing secret in organizing them." 236 Again he says (p. 495): "The names of the men who join are known to the bosses either through spies or because we tell them." There is no foundation for the charge that the defendants ordered the employees of the plaintiff to keep their membership in the Amalgamated Association secret in a deceptive fashion calculated to injure the plaintiff. A careful examination of the affidavits of the defendants shows that the members talked to their fellow workers of their enlistment or intent to join. Whatever inhibitions the employees of the plaintiff adopted were voluntary and the result of their own caution. As stated in the affidavit of Ditter (Amended Answer, p. 481), the men were afraid to talk about their membership too freely because they did not know whether the persons to whom they were talking were spies or not. The plaintiff in making this charge relies on certain statements in circulars sent out by the defendants, such as: "Your business with us is confidential." "Everything is held in strictest confidence with us." Certainly the use of "with" instead of "by" does not alter the evident intent of the defendants to assure the workers, whose positions were known to them to be made insecure by joining the Amalgamated Association, that the Amalgamated Association would not divulge their names. Assurances of confidence and respect are common usage in business. Should it be admitted that the defendants did keep secret the names of those who joined the Amalgamated Association, this would not admit the pursuit of any policy which is not wholly reasonable and lawful. The right of workers to form and join labor unions is an established right. It is not consistent with this right to compel publication of the names of those who join a union when such publicity would result in the discharge of these 237 workers from their positions. To so hold would be to doom to failure any attempt to form a union lawfully. It would amount to giving a right and taking it away at the same time. In fact, in Exchange Bakery v. Rifkin (1927), 245 N. Y. 260, when employees, who had signed an agreement not to join any union and to withdraw from their employment if they did join a union, did actually join a union and did also fail to tell their employer, the court did not find that any unlawful means had been used. The whole charge of secrecy is sufficiently disposed of in the affidavit of William B. Fitzgerald, Vice President of the Amalgamated Association, who says (Amended Answer, p. 235): "Your deponent denies that he or any officer or member of the said Amalgamated Association practiced any fraud, deception, coercion, intimidation or secrecy in soliciting plaintiff's employees to join the said Amalgamated Association; but admits that because of plaintiff's threat to discharge any of its employees who joined the union, the names of such employees were not divulged to plaintiff." And the defendants were under no obligation to divulge these names to the plaintiff. Lehman, J., in Interborough Rapid Transit Co. v. Lavin, Jan. 10, 1928, said: "They are under no obligation to the plaintiff to inform it that some of the plaintiff's employees are joining the union, so that the plaintiff may exercise its choice of retaining or discharging the new members. They are not under any obligation even to urge or compel their new members to give their employer such information. The defendants are acting for themselves or the Amalgamated Association and in taking lawful action to advance the interests of the members of that union they are under no affirmative duty of protecting the privileges or even the rights of the plaintiff." 238 4. The Defendan ts Did Not Resort to Fraud and Misrepresentationr in Inducing Employees of the Plaintiff to Join the Amalgamated Association. The charge of fraud in the plaintiff's supporting affidavits is based upon only two assertions; first the alleged misstatement by various defendants as to the agreement which was made between the plaintiff and the defendants Coleman, Shea, and Frayne at the conference with Mayor Walker on July 26, 1927; and second alleged misstatements made by various defendants as to the extent of the membership of the plaintiff's employees in the Amalgamated Association. The affidavits of the plaintiff completely fail to show that the defendants knew that the agreement reached was not as they represented it to be. The defendants do not deny their statements with respect to the agreement as set forth in the affidavit of Mr. Hedley. The question is whether the agreement actually made accords with the understanding of the defendants, and if not, whether those defendants present at the conference knowingly made misstatements concerning it. Examination of the affidavits of the defendants shows that they understood the agreement to be that the plaintiff would not in the future discriminate against any employees who joined the Amalgamated Association. The affidavits of Coleman and Frayne state that at the conference with Mayor Walker on July 26, 1927, which they attended, it was understood by them that the Interborough Co. through Mr. Quackenbush, after consulting Mr. Hedley, agreed not to discriminate against any employee because of his membership in the Amalgamated Association. These deponents state that the proposition which they submitted to Mayor Walker for consideration by the plaintiff was as follows (Amended Answer, p. 385): "That the Transit Companies agree to reinstate all employees discharged for no other reason except for 239 their membership in the Amalgamated Association of Street and Electric Railway Employees of America: and to further agree that they would not discriminate against or discharge any of their employees who are now members or those who may hereafter become members of the Amalgamated Association." The affidavits of Coleman and Frayne also show that this proposition was presented to Mr. Quackenbush by Mayor Walker in the Mayor's own words, which are quoted to be as follows (Amended Answer, p. 386): "The Transit Companies would put back all men discharged because of their sympathy with or membership in the Amalgamated Association and that the Companies would further agree that they would not discriminate against or discharge any of their employees because of their sympathy with or membership in the Amalgamated." The outcome of the presentation of this proposition to Mr. Quackenbush by Mayor Walker was understood by the defendants to be an acceptance by the plaintiff of the proposition submitted by Frayne and Coleman. This is stated in the affidavit of HIugh Frayne who says (Amended Answer, p. 386): "Mr. Quackenbush then agreed again to the proposition. Mayor Walker told us that under the terms of this agreement we received all that we were asking for. Thereupon Mayor Walker then called Mr. Mienden, President of the Brooklyn Manhattan Transit Company, who likewise agreed to the same proposition." That the defendants understood the agreement to be as they represented, and as above set forth is further affirmed by their efforts on two occasions to affirm their understanding of their rights under the agreement by further conferences with Mayor Walker. At a conference on August 5, 1927, Mayor Walker repeated to Mr. Fitzgerald the 240 terms of the settlement reached with the officials of both transit companies. The affidavits of Hugh Frayne and James Coleman state that at this meeting Mayor Walker stated that the agreement embodied every term of their proposition; that the defendants had a right to open up headquarters for a local division; that the defendants might hold mass meetings. (See Affidavit of Frayne, Amended Answer, p. 387.) "It was the unanimous opinion of all those attending this conference that under the terms of the agreement reached with the Interborough Rapid Transit Company and the Brooklyn Manhattan Transit Company, these companies could not discriminate against, or discharge, any of their employees who are now members or those who may hereafter become members of the Amalgamated Association and that the companies would reinstate all employees discharged for no other reason except for their membership in the Amalgamated Association." This understanding of the agreement was again affirmed at a meeting held with Mayor Walker in November, 1927. Not only is there no proof of a misrepresentation of this agreement by the defendants, but the conditions surrounding the conception of this agreement were such that the failure of the defendants to arrive at the same understanding as that arrived at by the plaintiff is entirely reasonable. The affidavits of Mr. Hedley, Mr. Frayne and Mr. Coleman show that the representatives of the Amalgamated Association (Coleman, Shea and Frayne) at no time met at any round-table with Mr. Quackenbush or any representative of the plaintiff, despite requests to the Mayor by Frayne, Calkins, Shea and Coleman, that the officials of the Interborough and Brooklyn Manhattan Transit Company be asked to attend the conference with them and the Mayor to discuss the situation. Mr. Hedley, in anticipation of an invitation from the Mayor, addressed 241 a letter to him, July 23, 1927, declining to attend for the not wholly disingenuous reason that: "It is my duty to our men and to the public, as I see it, to have nothing to do with such wrong doers" (representatives of the Amalgamated Association). Despite this letter the Mayor, on July 25, 1927, invited Mr. Hedley to meet the defendants in his office on July 26. Again Mr. Hedley declined, offering in excuse: "I am more than ever confirmed in my belief that over twelve thousand loyal employees would look upon my meeting their enemies, even, in your presence, as evidence of weakness on my part which might lead to ultimate betrayal of those loyal men." Mayor Walker was forced to adopt the tactics of an interpreter between the parties, first meeting the defendants in private conference and then telephoning the results to the plaintiff, who thereafter sent Mr. Quackenbush for a private interview with the Mayor. Since the purpose of the Mayor in this conciliation was to avert a public inconvenience, it is not inconceivable that his presentation of this compromise agreement, as noted above, did not wholly preclude interpretation by each side in the way most favorable to its respective interests. The public statements issued by both the plaintiff and the defendants immediately following the conference with Mayor Walker on July 26, 1927, are divergent on the point of discrimination for union membership. The public statement of the Mayor was itself not entirely lacking in ambiguity. "Then the Companies agreed that any man who had been discharged for sympathy or membership in the Amalgamated would be restored to his job, and no discrimination would be practiced because of his sympathy or membership in the Amalgamated," 242 All of these circumstances establish that the defendants' interpretation was honest and reasonable. Indeed, they raise the question whether the plaintiff's interpretation was likewise so. The second charge of fraud on the part of the defendants is specifically denied by the affidavit of Coleman, who denies the publication of untrue statements of the number of employees who had been enrolled by the Amalgamated Association. Exaggeration of the percentage of the employees who, had become members of the Amalgamated Association is also expressly denied by Mahon, Fitzgerald, Menalis and Shea. The affidavit of Mr. Hedley states that the various defendants erroneously claimed to have organized 70 to 85 per cent of the plaintiff's employees into the Amalgamated Association. But the plaintiff entirely fails to show that these alleged statements are false. In fact, Mr. Hedley states in his own affidavit that he does not know: "The deponent verily believes these claims to be greatly exaggerated and untrue, but that due to the secret and deceptive organizing methods used by the defendant, the deponent is unable to gain definite information as to the number of the employees of the plaintiff which the defendants may have succeeded in enrolling." If it were true that the plaintiff made over-optimistic claims as to membership, these can not be said to constitute fraud. At most, such statements are a legitimate type of persuasion similar to the "pure puffing" adopted by candidates just prior to election. The difficulties to be encountered in organizing this group were well understood by the employees and it is reasonable to suppose that they would have accepted these statements, had they been made, with some discount for puffing. Whatever estimates of the extent of membership of the plaintiff's workers in the Amalgamated Association may have been unofficially 243 made, they are more than matched by Mr. HEedley's claim made in his letter to Mayor Walker, dated July 23, 1927. He states therein that 97 per cent of the plaintiff's employees would regard as a great breach of faith on his part any transactions with the representatives of the Amalgamated Association. This is reiterated in a second letter to' Mayor Walker July 25, 1927. The affidavits of McGrath, Corrigan and Milillo, show that there was some justification for assertions by the defendants that they were making progress, for these deponents state under oath that at the Woodlawn terminal, at Pelham barn, and at 148th and Lenox Avenue nearly all workers had joined the Amalgamated Association. Nevertheless, the defendants were under no duty to disclose to the plaintiff the extent and progress of membership in their association. That is settled law in New York now. Finally in connection with this whole charge of secrecy, it is to be noted that nowhere in its prayer for an injunction does the plaintiff make any mention of secrecy asking for a restraining order relating to it. If the scope of the prayer for relief fixes the scope of the plaintiff's cause of action, then this whole matter of secrecy is entirely out of the case. No MEANS OTHER THAN INVITATION AND ARGUMENT HAVE BEEN USED BY THE DEFENDANTS. This exhaustive analysis of the affidavits of the defendants shows that they have not, during the present controversy, resorted to force or violence, coercion, fraud or misrepresentation or improper secrecy. The defendants deny, furthermore, that they have committed any acts injurious to the property of the plaintiff. They have not picketed the plaintiff's property, nor loitered thereon. (See affidavits of Hugh Frayne, Amended Answer, p. 182; Coleman, p. 373; Mahon, p. 224.) The de 244 fendants have not congregated on the property of the plaintiff in numbers exceeding two. (See affidavit of Toal, Amended Answer, p. 505.) The defendants have not been guilty of any unlawful trespass. Where trespass happens in a few isolated instances and is not likely to be continued in the future, equity will not act to enjoin an isolated wrong. (See Exchange Bakery v. Rifkin, 245 N. Y. 268 where the defendants entered the plaintiff's property to give the signal for a strike and were not enjoined.) The defendants repeatedly deny at any time enticing workers of the plaintiff to leave their places of duty, to quit service, to strike, or to violate any alleged contract. (See affidavits of Mahon, Frayne, Coleman, supra.) They also deny that the defendants have done any act calculated to deplete the working organization set up by the plaintiff Company. In short, the defendants have not resorted to violence, unlawful trespass, threats, congregating on the plaintiff's premises, obstructing access to the plaintiff's premises, coercion, or any other unlawful means. It is thus seen that none of the first group of possible acts on the part of the defendants have been resorted to. In consequence they can be dropped out except for the light which they throw on exactly what the Court of Appeals, in the Exchange Bakery case, meant by the term "means". The second broad grouping of possible acts on the part of the defendants includes invitation, suggestion, advice, persuasion, and argument. These acts also are means, i. e., they are acts or conduct calculated to induce, cause, or motivate the plaintiff's employees to join the Amalgamated Association. They constitute conduct calculated to attain the defendants' end or purpose, which is the unionization of the plaintiff's employees. These means have been used and are being used but they are wholly lawful. They also can be dropped out of the discussion except for the light they throw on exactly what the Court of Appeals meant by the term "'means". 245 THE DPFENDANTS HAVE NOT ATTEMPTED TO INDUCE THE PLAINTIFF'S EMPLOYEES TO QUIT WORK. There remains for a third possible group of acts or conduct on the part of the defendants, constituting "means", their inducing the breach of some promise which they are claimed to have made to the plaintiff. As outside possibilities, there are only two promises involved. The first is the promise of the plaintiff's employees to work for a period of two years. The second is their promise not to join a labor union. Making this distinction is in no sense pedantic, as it must be kept sharply in mind to understand exactly what the essence of the plaintiff's claim is. As to inducing breach of the promise to work for the plaintiff, an examination of the proof shows the complete absence of any proof that the defendants have in mind any plan or purpose to call a strike or in any other manner to induce the plaintiff's employees to quit work. The statements of Mr. Hedley in his own affidavit, made in most cases on information and belief, that the defendants talked of calling a strike of the plaintiff's workers to take place around July 26, 1927, may be regarded as too remote to show any such intent for the following reasons: In the first place, prior to July 26, 1927, the defendants were trying hard to gain the recognition of the plaintiff, feeling at that time that the policy of the plaintiff presented to the defendants the issue of protecting the best interests of the subway railway workers of this city. An examination of Mr. Hedley's own affidavit and of the exhibits attached thereto shows that at this time the absolute refusal of the plaintiffs to meet with the defendants resulted in the belief by the defendants that a continuation of this policy would inevitably, in the remote future, lead to such dissatisfaction on the part of the workers of the plaintiff that a strike would evolve as a natural sequence. Thus the statements which Mr. Hedley charges were made by the defendants and which were of the fol 246 lowing nature: that "if a strike comes it will come suddenly" and "we are going to protect the interests of our members at any cost," and similar statements, were obviously in the nature of prophecy and not statements of a purpose to call a. strike in the immediate future. In the second place, Mr. Hedley's own affidavits show that the defendants repeatedly denied any immediate intent to call a strike during the period preceding July 26. The following instances bear witness to the lack of such intent. The letter of Mahon, written to Coleman and made public by him on June 18, stated that the officers of the Amalgamated Association considered that a subway strike in New York would be a catastrophe and that their Constitution provided against this danger by prohibiting a strike until the employer has definitely refused to arbitrate. On June 21, the defendants Coleman, Shea and Frayne called on Mr. Untermyer to correct misapprehensions in the public press indicating that there might be a strike. On July 18, the defendant Coleman made the public statement that the Amalgamated Association was not trying to force a strike, that it did not want to inconvenience anybody, that it just wanted a fair deal for the employees. On July 18, William Green, President of the American Federation of Labor, addressed a letter to Mr. Hedley, suggesting that great benefit would be derived from the establishment of some arbitration tribunal where differences could be settled. In fact, the only bit of proof which goes to substantiate the charge that Coleman threatened to call a strike is in the affidavit of Felix which Coleman specifically denies, Coleman saying under oath (Amended Answer, p. 371): "I absolutely deny that any strike is at present threatened as charged by Mr. Hedley, or that any authority or permission for a strike has been asked for or that the employees of the Interborough Rapid Transit Company are leaving the employ of the Company." 247 The charge of Mr. Hedley that organizers of the Amalgamated Association induced workers to sign the Brotherhood contracts without disclosing their affiliation with the Amalgamated Association in order that they might be ready to act in concert with others in event of a strike called by the Amalgamated Association is denied. (See affidavit of Coleman, Amended Answer, pp. 372, 373; Shea, p. 383.) This charge is made by the plaintiff without any substantiating support. On July 23, the leaders of the Amalgamated Association told Mayor Walker that a strike was the last thing they wanted to happen and asked Mayor Walker to arrange a conference as a means of avoiding a strike, as is shown in Mr. Hedley's own affidavit. On July 26, the defendant Shea stated that he was not advocating a strike but that, through the refusal of the Interborough officials to confer with him and his associates, a strike situation was developing, and an analysis of events up to this point shows that, up to the proposed meeting of July 26, there was no reasonable certainty that the defendants would call a strike; that they were making serious efforts to gain some recognition from the plaintiff; and that in their minds the policy of the plaintiff would be the primary force, in creating a strike situation should one develop. On the afternoon of July 26, the defendants Coleman, Shea, and Frayne conferred with Mayor Walker and agreed with him, as he later publicly announced, that there would be no walk-out or strike, at least not until after the city should have completed the construction of its new subway system. At this time the defendant stated that they would advise the employees of the plaintiff against taking strike action in order to avert a strike which the men might themselves call because of the constant discrimination of the officials of the plaintiff Company against those in sympathy with the Amalgamated Association. (See affidavit of Coleman, Amended Answer, p. 391.) From that time to the date of the complaint, viz., 248 four months and to the present date, viz., about six months, there has not been one word froim anybody about a strike. Consequently, at the time at which the plaintiff petitioned this court for a temporary injunction, there was no remote possibility of the occurrence of a strike. All the prophetic assertions which the defendants made before the conference with Mayor Walker clearly have no weight, being nothing other than statements of apprehension of a possible occurrence. A careful examination of the affidavits of the defendants shows specific denials of the alleged threats to call a strike and brief reference may now be made to these statements under oath by various defendants. The defendants, Coleman, Shea, and Miahon specifically deny that they or any of the officials, officers, or employees of the Amalgamated Association had advised any of the employees of the plaintiff to quit the service of the plaintiff Company or to strike or to break any alleged Contract existing between all or any of the employees and the plaintiff Company. (See affidavits of Mahon, Amended Answer, pp. 198, 223; Coleman, p. 391; Shea, p. 381.) William H. Mahon states in his affidavit, dated December 14, 1927, as follows (Amended Answer, pp. 197-9): "Your deponent is reliably informed and believes that no strike preparations are being made by the Local Division No. 977 of the said Amalgamated Association, that no step whatever in the direction of a strike has been taken by anyone connected with said Amalgamated Association, that there has been no threat of a strike or that there is no threat of a strike upon the plaintiff's lines in so far as the said Amalgamated Association or its local subdivisions are concerned; that in the organic law of the Amalgamated Association, no strike may be called without the consent of two-thirds of the members of the local subdivisions affected and that after such consent has been secured no strike may be called until same is authorized by the General Executive Board of said Amalgamated Association, that said General Executive Board 1 249 never authorized a strike without first sending one of its members to the locality where there is danger of the strike, and said General Executive Board member is instructed to and always does do everything in his power to bring about a possible settlement of the difficulties between men and management, and that said General Executive Board member is instructed to and always does offer arbitration as a means of settlement of any dispute existing between the men and the management, and that not until such offer of arbitration is refused by the management does the General Executive Board member recommend to the General Executive Board the authorization of the strike and that such strike may not be called until so authorized by the General Executive Board; that no application to the General Executive Board for leave to strike upon plaintiff's lines has been made by Local Division No. 977 or any other local division; that no strike vote by members of Local Division No. 977 has been taken, but that, on the contrary, the Amalgamated Association and said Local No. 977 has done and is: doing everything in its power to avoid the possibility of a strike on the plaintiff's lines, and your deponent affirmatively alleges that there is no factual basis for the statements in the complaint and moving affidavits herein that the Amalgamated Association or Local No. 977 thereof is threatening to call a strike upon the plaintiff's lines." Individual employees of the plaintiff who had become members of the Amalgamated Association deny that they had any intention of leaving their work or striking at any time. The defendant Atkins states in his affidavit (Amended Answer, p. 455): "I have never gone out on strike and do not intend to leave the employ of the Interborough but do desire to have the independent right to choose my own labor organization free of the intimidation and secrecy employed by the Interborough Rapid Transit Co." Defendants Kile, Nichols, and Strohmenger likewise deny any intent on their part to leave the employ of the plain 250 tiff. (See affidavits of these defendants, pp. 465, 467, 463.) It is well known that the policy of the Amalgamated Association is opposed to strikes and that it is committed to a policy of arbitration of all differences that may arise between the union and the management. In its Constitution it provides for arbitration, in the Preamble, which is as follows: "We, the Amalgamated Association of Street and Electric Railway Employees of America, this day and date assembled in convention, in order to secure and defend our rights, advance our interests as working men, create an authority whose seal shall constitute a certificate of character, intelligence and skill, build up an organization where all the working members of our craft can participate in the discussion of those practical problems upon the solution of which depends our welfare and prosperity, to encourage the principles and practices of conciliation and arbitration in the settlement of all differences between labor and capital, establish order, insure harmony, promote the general cause of humanity and brotherly love, and secure the blessings of friendship, equality and truth, do ordain and establish this Constitution and these Laws for the government of said Association." Sections 120 and 121 of the Constitution and General Laws of the Amalgamated Association make specific provision for the arbitration of strikes and lock-outs. These sections are set out on pp. 178-179 of this Brief. The affidavits of the officers and leaders of the Amalgamated Association uniformly assert that it is a practice of their association to follow the lines of this policy. William D. Mahon, President of the Amalgamated Association, has held that position continuously since 1894 and is well qualified to state what the policies of the Association have been and are. He states that the cornerstone upon which the organization was established is that of arbitration because of the realization that continuous service to the public demands that strikes and industrial disturbances 251 be eliminated as far as possible. In each of the three hundred contracts of the Association, there is a clause providing that, when disputes arise between the Amalgamated Association and the employing company which cannot be adjusted between them, the disputes are submitted to arbitration. This deponent affirms that practically all of its disputes on wages and other conditions are adjusted by arbitration, and also that he is reliably informed that during 1926 only four strikes were called by four out of three hundred local divisions of the Amalgamated Association, and that during the year 1927 only two such strikes were called, involving a very small number of employees. (See Affidavit of Mahon, Amended Answer, pp. 186, 199.) These were caused by attempts of a few operating companies to destroy the Amalgamated Association or the local divisions thereof operating upon their lines. William D. Fitzgerald, Vice President of the Amalgamated Association, likewise states that the Amalgamated Association is committed to a policy of arbitration and that provision for arbitration is made in all contracts entered into by the Association. He admits that a charter was issued to Local Division No. 977 of the Amalgamated Association for the purpose of enrolling the employees of the plaintiff, but specifically denies that there was any malicious or unlawful purpose or conspiracy in such action, and denies that there was any plan or form of conspiracy entered into or participated in to do anything malicious or unlawful or wrong. (See affidavit, Amended Answer, pp. 229, 230, 245.) Hugh Frayne, general organizer of the American Federation of Labor, says that the general policy and practice of the American Federation of Labor is to discourage hasty strike action on the part of unions. (Amended Answer, p. 176.) Frayne also says that neither he nor any of the officials or officers of the American Federation of Labor have advised at any time all or any of the plaintiff's employees to absent themselves from their places of 252 duty or to quit the service of the plaintiff or to strike or to break any alleged contract existing between any or all of the employees and the plaintiff. (Amended Answer, pp. 180, 181.) James H. Coleman, organizer of the Amalgamated Association, also says under oath that arbitration is a guiding policy in the affairs of the Association. He states that in the twenty-two years that the Amalgamated Association has existed in New York, there has been absolutely no strike which can be said to have been caused by the Amalgamated Association; that the strike of 1916 was caused solely by a deliberate breach of faith by the Interborough Rapid Transit Company; and that the Amalgamated Association was in no manner connected with the Consolidated Railway Workers of America nor with the strike of 1926. (Amended Answer, pp. 365, 366.) In conclusion, it may be said that the plaintiff has failed to show any intent on the part of the plaintiff to call any strike; that the defendants have uniformly denied such intent to call any strike; that the policy of their organization is opposed to avoidable strikes, and finally, that, because of their agreement with Mayor Walker on July 26, 1927, all possibility of a. strike in the near future was dispelled. In order for an injunction to issue, there must be proof that a strike was reasonably certain and imminent at the time the plaintiff petitioned for an injunction. THE CRUCIAL QUESTION IN THIS CASE STATED. It having been shown that inducing the breach of a promise to work is not involved in this case because there is no showing that any strike is threatened or contemplated, the sole possible remaining act or conduct which could by any possibility be an unlawful means is the defendants' act of inducing these men to break their alleged promise to the Company not to join the Amalgamated Association. 253 As to this, the first question to be asked is, is it a means at all? If it is a means, it must be a means to some end. Assume it is a means to the end or purpose sought by the defendants. But that end or purpose is to get the plaintiff's employees to join the Amalgamated Association. The result is that inducing them to join the Amalgamated Association is inducing them to break their promise not to do so, and inducing them to break their promise not to join the Amalgamated is inducing them to join. This act then is not a means at all, within the analysis laid down by the Court of Appeals in the Exchange Bakery case. It is not a means. It is an end. Even though inducing breach of the anti-union promise were unlawful conduct, it is not an unlawful means, for it would not be a means at all. Moreover, the breach of the anti-union promise as opposed to the inducement of its breach is not a means and it is not a means used by the defendants because such breach is not the defendants' conduct but the conduct of the plaintiff's employees. If we ask what the defendants did to cause the non-performance of the anti-union promise, we get at what the means are which are being used, and used by the defendants. The proof shows that what the defendants are doing to cause the plaintiff's employees to join the Amalgamated is to use invitation, proper persuasion and argument and no others. But these are lawful. It follows that there can be no injunction against the defendants because of the use of unlawful means. If inducing the breach of the anti-union promise is not a means, then what is it? Can it be argued that it is an unlawful, intermediate end or purpose, the defendants' ultimate end or purpose being admittedly to organize the plaintiff's employees. Is it such an intermediate end or purpose in fact? These defendants are not trying to get the plaintiffs employees to join any union other than the Amalgamated. There is no other union in the picture. They are not interested in getting these men to break their 254 promises not to join another union just to witness such promises being broken. Moreover, these employees cannot break their anti-union promises except by joining the Amalgamated Association. That is the content of these promises and it is a lawful end. The result is that inducing breach of the anti-union promises cannot be unlawful as an intermediate end or purpose. Inducing the breach of the promises not to join the union is identical with the purpose sanctioned as lawful by the Court of Appeals. It having been shown that the end sought by the defendants is proper and that the means being used include only peaceful persuasion, then, if the defendants are to be enjoined for their inducing the non-performance of these anti-union promises, that end, though sanctioned by law, cannot be sought at, all by these defendants, and the right of labor unions "to make union conditions prevail generally" becomes purely illusory, because the content of these anti-u~nion promises is iderntical with the end,.sought by these defendants and because the defendants can employ no means more i.nnocent than they are employi'ng. If the defendants are to be enjoined for inducing the breach of such anti-union promises, then, wherever men are unorganized, as are the plaintiff's employees, any employer can quickly slap on and keep on such a promise, thus forever barring labor organizers from any contract with the employees effective enough to bring about their unionization. The vital question, therefore, which lies at the very heart of this litigation is thus seen to be this: Are thes:e promises not to join the defendants' union to sta/nd as an impenetrable barrier to unionization? That is the summit question of this case. This case does not involve the question whether the defendants may induce the plaintiff's employees to quit work, assuming that they are bound to work for two years; it does not involve the question whether the defendants may induce them to quit work, assuming their hiring is a hiring at will, because no strike 255 is threatened or contemplated. Questions like these latter two were considered in the Exchange Bakery ca~se. They are not the vital question of this case, because the plaintiff is here attempting to go much farther. The plaintiff is actually taking the following extreme position: even though the defendants are urging these employees to continue at work at all times (and this the Constitution of the Amalgamated Association does), nevertheless these anti-union promises are to stand as a complete bar to all efforts merely to, get the men to join the Amalgamated Association. From this it follows that the cerucial question in this case, under the analysis laid down by the C-ourt of Appeals, is not wliether the defendants liad an unlawful purpose or end in view. Their purpose is to get these employees to join the Amalgamated Association. That is: lawful. Nor is the crucial question in this case whether the defendants are using unlawful means. They are using only invitation, persuasion and argument. Such means are lawful. The crucial question. in, this case is: Is there, for the purpose of this suit, a contractual relation between the plaintiff -and its enmployee's which m~akes unlawful the defentdants' pursuit of thei'r lawiful purpose by lalwfutl means? Tlie following parts of the brief will be devoted to showing that no, such contractual relation exists. 256 POINT XIU. The Contract of June 30, 1927 is without consideration. It is well settled that an injunction will not issue against inducement of the breach of an invalid contract. This Contract is invalid for it is without consideration. To begin with, the plaintiff's alleged promise to employ for two years, as recited in Clause 1 of the Contract, was not actually made to the men. There is not contained in the Separate Ratifying Instrument any promise by the Company to employ these men for any period of time and, in any event, this instrument was not executed by the Company. If, then, the men received the promise of the Company to employ them for a definite period, they must have received it through their alleged agents, the General Committee of the Brotherhood; but it has been abundantly established that it is highly doubtful whether the General Committee is really a properly authorized agent of the men, -certainly the Company did not so regard it for it insisted on individual signatures to the things promised by the men. But even if it be assumed that the promise made in Clause 1 of the Contract was actually made by the Company to the men, this promise cannot serve as consideration because Clause 5 so qualifies that promise as to make it wholly illusory. This is established to be true not only by a mere reading of Clause 5 but also from two separate and independent statistical studies of the causes of discharge actually arising in industry, from which studies it is clear that Clause 5 reserves to the Company unlimited and unhampered power to discharge for all the causes for which such employers ever want to discharge men. And this is true without considering three other causes for discharge, viz., changes in economic conditions, adoption of new inventions and expulsion from the Brotherhood. If wage levels go up, the men must stay; if down, the Company may replace these men with cheaper labor. Expulsion from the Brotherhood by vote of but four officers is made a non-arbitrable cause for discharge and the President of the Brotherhood has been entirely obliging in the matter of getting rid of undesired employees. Even as regards the causes of discharge that are listed as arbitrable, let it be noted that arbitration would merely establish that the causes exist. If they exist, the Company may discharge. In brief, the Company's promise, if any, is to employ the men for two years if it wants to; and the cases are numerous and clear that no contract exists where performance by one of the parties cannot be enforced for the reason that the contract is subject to the control of his will. 257 Turning from the alleged promise of the Company to its act of furnishing employment as set forth in the Separate Ratifying Instrument, there is no showing anywhere, in the record, that, at the time the men were employed, they were given anything other than an employment at will. Such an act is wholly insufficient as consideration for the promises made by the men. Since the only two things which can possibly serve as consideration for the promise made by the men are the alleged promise of the Company to employ for two years and the act of employment, and since both fail as consideration, the Contract is invalid. But, even if the plaintiff had satisfied formal technical legal requirements, it is well settled by the cases that equity will not protect a labor contract if it is harsh, unfair, and inequitable-and these adjectives fairly characterize this present contract. If the Contract for the inducement of the breach of which an injunction is sought be invalid for want of consideration or for other reasons, the injunction will not issue. In such suits the validity of the contract is always in issue. If it is invalid, no rights exist. Westinghotuse Electric Co. v. Diamond Co. (1920), 268 Fed., 121, 124; Gavieres v. United States (1910), 220 U. S., 338. This Contract contains only two things which, by any possibility, can serve as consideration for either the promise of the workmen to work for two years or for their promise not to join a union. Those two things are the plaintiff's alleged promise to employ these workmen from June 30, 1927 to April 30, 1929 recited in Clause 1 in the body of the Contract and its act of furnishing employment as set forth in the Separate Ratifying Instrument. At the threshhold of this discussion it is to be noted that the Separate Ratifying Instrument does not contain any promise by the Company to employ these men for any period of time. The Separate Ratifying Instrument was not framed to be executed by the Company nor did it execute it. Whatever promises it contains are not the promises of the Company. The workmen's promise "in consideration of my employment by the Company until and including the 30th day of April, 1929 upon the terms and conditions therein set forth" merely recites a consideration 258 for the workmen's promise. It does not recite a promise by the Compamny. It does not do so in terms and the Company did not sign the Separate Ratifying Instrument. If, therefore, these men received the promise of the Company to employ them for a definite period, they did not receive it in the Separate Ratifying Instrument but received it, if at all, through their alleged agents, the General Committee. But an examination of the Constitution and operation of the Brotherhood makes it clear that the General Committee cannot be said to be the authorized agent of the men. The coercive circumstances attending the negotiation of this Contract by the General Committee and its execution by the men make it clear that we do not have here a case of a responsible agent acting in behalf of its principal, nor a subsequent ratification of unauthorized action in this matter. The Company makes no promise to the men to employ them for a definite period. This defect is not supplied by the recital at the end of the Ratifying Instrument "that my employment and performance of services thereunder shall be deemed to be sufficient evidence of the acceptance of this agreement by the Interborough Rapid Transit as a binding contract between the Company and myself." The employee's own performance of services is not the Company's act and hence cannot be expressive of a promise by the Company. The workman's recital that his employment by the Company shall be deemed evidence of agreement by the Company cannot express such a promise, since the Company cannot be bound by the workman's (as opposed to its own) recital of what the Company's act of employing a workman shall signify. If the Company intended that its act of taking a workman into its employ should be expressive of a promise on its part to the workman to employ him for a definite period, it would have so stated in an instrument drawn by the Company with as great care as this one was and the instrument would have been signed by the Company. 259 If the Company has given no promise to the men, directly or through an authorized agent, to employ them for a definite period, which promise could serve as consideration for the workmen's promises to the Company, the only other thing present which could serve as consideration is the Company's act of giving the men employment. But the employment so given is an employment at will. We are now talking about the act of employment, not about any promise to employ, and there is no showing in the record that, at the time when these men were employed, they were given anything other than an employment at will. The Company's act of taking these men into an employment at will is wholly insufficient as consideration for any promises made by them, as will be hereinafter shown by the cases. Returning to the possibility that the consideration for the workmen's promises is not some act done but a promise made by the Company, let it be assumed that the promise recited in Clause 1 of the Contract was actually made by the Company to the men, either directly or through an authorized agent. This assumption does not save the plaintiff's case. It has given no promise which can serve as consideration. Clause 1 of the Contract recites an absolute promise but Clause 5 so qualifies it as to make it wholly illusory. A mere reading of the plaintiff's qualified promise against the men's absolute promise shows this to be true because the plaintiff's promise contains such sweeping reservations as a change in the amount of business it may be doing. But no change in the men's economic condition frees them. But whether the plaintiff's promise is illusory need not be left to the common sense judgments of fair-minded men. That it is wholly illusory is decisively established by reference to the affidavit of Thomas C. Blaisdell, Jr., of the Faculty of Economics of Columbia University. He has taken all of the things which the Company has specified in Clause 5 as causes permitting it to discharge 260 these men and has studied them in comparison with statistics gathered by the United States Bureau of Labor Statistics. These statistics covered over four thousand cases of men discharged in six metal trades establishments and a mail order house. The results show that the plaintiff has reserved the right to discharge for every cause for which these metal trades establishments ever wanted to discharge a man anyway, except as to 11 per cent, which are grouped under the heading "Misconduct." The word "misconduct" is not used in the plaintiff's Contract but it is obvious that these cases of "misconduct" could be easily distributed under some or all of the following headings (which are included in the plaintiff's Contract) for they are all misconduct: incompetency, inefficiency, carelessness, drunkenness, dishonesty, insubordination, refusal to do duty, neglect of duty. As to the comparison with the mail order house, only 1.5 per cent of the cases fall under "misconduct." These also could be distributed as just suggested. The 6.3 per cent of cases in the mail order house labelled "other causes" could not be brought into the comparison because the data available did not disclose what the other causes were. If there remains any reasonable doubt that' the plaintiff has been careful to reserve to itself the right instantly to discharge men for any cause for which a large corporate employer ever wants to discharge men anyway, reference should be made to Table 2 appearing in Mr. Blaisdell's affidavit showing the results of investigations carried on for the United States Commission on Industrial Relations by Prof. Slichter of the Institute of Economics, Washington, D. C., and Cornell University. In this Table over twenty-five hundred cases of men discharged over a period of four years in three metal trade plants, a printing and binding plant, a shoe plant, and a silk plant have been grouped according to the causes for discharge in the plaintiff's Contract. Again bearing in mind that the group of discharges labeled "misconduct" appearing near the bot 261 tom of Table 2 can be largely if not wholly distributed among the causes mentioned in the plaintiff's Contract, this Table shows that for all practical purposes the plaintiff has reserved the absolute right to discharge its employees for any causei for which a corporate emrpiloyer ever wants to discharge men. These twoo studies show that if the plaintiff made any promise to employ these men, it is a promise to employ them for two years if it wants to. But the plaintiff has gone further than to reserve for itself the right to discharge its employees for any cause for which employers like the plaintiff ever want to discharge their employees. The foregoing statistical studies of discharges in other plants does not include three causes for discharge which the plaintiff has put into this contract, viz., changes in economic conditions on its side, inventions enabling it to reduce its working force, and expulsion from the Brotherhood. Leaving these three causes out of the picture, the plaintiff had reserved for itself enough causes to cover all ordinary cases where discharge may be desired. Not satisfied with this, it has gone further and inserted these three causes for discharge. That fact makes overwhelming the showing that the employment is an employment at will from the plaintiff's side. The discussion so far has demonstrated that the Company's promise to employ these men is nothing but a promise to employ them as long as it wants to and that discussion has not had to utilize the remarkable provision in subsection b of Clause 5 in order to make that demonstration. This subsection makes expulsion from the Brotherhood a non-arbitrable cause for discharge. It has been shown on page 35 that in actual practice it is this subsection which the Company uses for discharging men when it would be embarrassed by assigning for such discharge the real occasion therefor. In this altogether remarkable Brotherhood, which the plaintiff is trying to represent to the courts as a bona fide company union, we behold Mr. Connolly, President of that Brotherhood, pre 262 sumably the representative of the men, charged with caring for their welfare, calling workmen into his office and telling them that they are discharged. And there is no appeal, for if the man discharged would appeal, the appeal lies through the very channel through which his discharge came. If there were not actually involved in this case such gross outrages to so many vital rights and interests of such grave concern to so many thousands of human beings, the spectacle which this whole arrangement discloses would not be wanting in comic relief. Let the provision for arbitration in Clause 5 (c) create no confusion at this point. Even if this Contract contained a valid provision for arbitration of every one of the causes of discharge reserved by the Company, the promise of the Company to employ would be none the less illusory. Such arbitration would merely guarantee that such causes exist. If they exist, the Company is free to discharge. Parenthetically it should be noted that the provision for arbitration is of little substance and pretty clearly invalid, as it was doubtless meant to be. Statistical Tables 1, 2, and 3 in Mr. Blaisdell's affidavit show that the Company has excluded from arbitration discharges for the causes which actually lead to the greater part of discharges in American industry. Moreover, the provision in the Constitution of the Brotherhood for arbitration is void for indefiniteness. Provision for the appointment of the third arbitrator by a Justice of the Supreme Court makes this clear. Which of the many Justices of the Judicial District in question is to do the appointing? In his affidavit, Mr. Blaisdell says: "On reading the Interborough's Contract with its workmen dated June 30, 1927 one is likely to get the impression that it is quite definite. First, in classifying the causes for discharge which can be arbitrated and those which cannot and second, in enumerating the causes for which the Company can discharge, these causes not being present, the Company being bound to 263 keep the men for two years. However, the Contract should be read keeping in mind the practical difficulty of classifying discharge." Mr. Blaisdell then goes on in his affidavit to quote from the writings of experts on discharge to demonstrate what an elusive and unreliable thing classification of discharges is. Any lingering doubts as to whether or not the plaintiff's promise to employ for a definite period is wholly illusory will be dispelled by a careful reading of these extracts. In them are to be found the studied conclusions of experts, who are not theoretical students of the subject but are men with an abundance of experience in handling pay-roll problems in actual plants, and have collected for their own guidance like experience of other experts. This part of the discussion should not be ended without reference to p. 220, et seq., of this Brief, where there is set out in parallel columns a long list of things which the men are, by this Contract, bound to do, and the complete freedom of the Company from any equating obligations. When those two columns are summed up and their results compared, there is an overwhelming showing that this Contract gave the men absolutely nothing which they did not have before, and that hence their promises to work two years and not to join another union are without consideration. In the following cases the courts have held that no contract exists where performance by one of the parties cannot be enforced for the reason that the contract is subject to the control of his will. They leave no doubt as to the law applicable to the plaintiff's promise to employ these men for two years if it wants to. Schlegel Mfg. Co. v. Cooper's Glue Factory (1921), 231 N. Y., 459; City of Pocatello v. Fidelity & Deposit Co. (1920), 267 Fed., 181; 264 Weil v. Chicago Pneumatic Tool Co. (1919), 138 Ark., 534; Van Slyke News Agency, Inc. v. News S. Co., Inc. (1924), 207 App. Div., 736; Nebraska Gas & Electric Co. v. lCity of Stromsburg (1924), 2 Fed. (2nd), 518, 522; Columbia Wire Co. v. Freeman Wire Co. (1895), 71 Fed., 302; Nicolls v. Wetmore (1916), 174 Iowa, 132; McCaffrey v. B. B. & R. Knight (1922), 282 Fed., 334; Velie M. C. Co. v. Kopmeier C. 0Co. (1912), 194 Fed., 324; Oakland Motor Co. v. Indiana Auto. Co. (1912), 201 Fed., 499; Goodyear v. Koehler Sporting Goods Co. (1913), 159 App. Div., 116; Killebrew v. Murray (1912), 151 Ky., 345; Morrow v. South Exp. Co. (1897), 101 Ga., 810; Parks v. Griffith & Boyd Co. (1914), 123 Md., 233; Texas Prod. Exchange v. Sorrell (1914), 168 S. W., 74 (Tex.); Joliet Bottling Co. v. Brewing Co. (1912), 254 Ill., 215; Amer. Agric. Chem. Co. v. Kennedy & Crawford (1904), 103 Va., 171; Hoffman v. Maffioli (1899), 104 Wise., 630; Lerner v. Tetrazzini (1911), 71 Misc., 182. The preceding analysis of the alleged Two Year Contract has been made with strict emphasis upon its invalidity at law for want of consideration. Even courts of law, as distinguished from those in equity, have, in numerous situations, felt called upon to pass upon the matter of sufficiency of consideration. Courts of equity, however, looking beyond form to substance, have never given 265 relief to one who, at too low a price, has bought the promise he seeks to enforce. If, therefore, the plaintiff, though he has satisfied the legal requirements for consideration, has given or obligated himself to give value grossly inferior to the value of the performance he seeks, equity will refuse relief on the ground that the bargain is harsh, unfair and inequitable. The following authorities fully establish the attitude of courts of equity towards labor contracts fully supported upon the employer's side by technical, legal, or even some substantial consideration. Without exception these cases show that equity will not protect such a labor contract if it is harsh, unfair and inequitable. Kimberley v. Jennings (1836), 6 Sim., 621. Consideration given by the employer for the employee's promise to work for 6 years was: ~150 per year first 2 years: ~160 third and fourth years, ~200, fifth and sixth years, and necessary travelling expenses during six years. But the employer reserved the qualified right to discharge the employee if he became incapable through sickness, or neglected his work, or was absent without leave and for these reasons to deduct from salary. The court held this to be a hard bargain because, if the employee should become incapacitated through illness, he could be discharged and yet the plaintiff could insist that he should not engage in the service of another for the remainder of the six year term. American League Baseball Club v. Chase (1914), 86 Misc., 441. The employer (Baseball Club) paid the player, besides his salary for the season, $1,500 as consideration for the option to dismiss: the player on ten days notice-this sum to be paid whether option was exercised or not. Weegham v. Killifer (1914), 215 Fed., 168. Contract employing a baseball player obligated the player for year of 1913 to continue in service for succeeding season of 1914 at a salary to be determined. The contract was held founded on sufficient consideration but lacking mutuality 266 because employer reserved option to terminate contract on ten days' notice. Rutland Marble Company v. Ripley (1870), 77 U. S., 339. In consideration for a quit claim deed of a marble quarry to the plaintiff, he agreed in return to supply Ripley with marble of a certain kind, in any quantity desired, for an indefinite period. Contract gave Ripley the privilege to abandon the contract at any time on giving one year's notice. Specific performance denied. Metropolitan Exhibition Co. v. Ward (1890), 24: Abb. N. C., 393. The plaintiff contracted for the services of the defendant, a skilled and experienced ball player, for a year, in consideration of a salary of $2,000. The contract gave the plaintiff an option to reserve the player for the succeeding season at a salary not less than $3,000. The contract also gave the employer an option to discharge after ten days' notice. Brooklyn Baseiball Club v. McGuire (1902), 116 Fed., 782. The plaintiff had an option to terminate the contract at any time on giving ten days' notice. Injunction denied. See also: Macrks, v. Gates (1907), 154 Fed., 481. In consideration of cancellation of indebtedness of $12,000, the def endant agreed to convey to the plaintiff one-fifth interest in all property he should ever acquire by location or purchase in Alaska. Specific performance was denied. Property worth $750,000. No limit in contract as to value or amount of property. Consideration inadequate. Contract unreasonable. Miss. R. R. Co. v. Cromrwell (1875), 91 U. S., 643. Specific performance of transfer of share of stock denied. Shares worth $32,000-consideration $50. Kelley v. York Cliffs Improvemeet Co. (1900), 94 Me., 374. Specific performance to enforce acceptance of tender 267 of stock worth only a few dollars as payment for land worth much more was denied. Randolph v. Quidnickl (1890), 135 U. S., 457. Specific performance of execution sale was denied where property worth $500,000 was sold for $275. The foregoing authorities are supplemented by numerous other cases discussed under Point XVII of this Brief where another angle of this question is considered. Let this discussion be concluded by a quotation from Rodenback J., in Michaels v. Hillman (1920), 112 Misc., 395, 399, which discloses an extraordinary understanding of industrial realities. While the case before the court did not involve the disastrous innovation which the plaintiff's Contract, if sustained, would bring about, the language, with a great intuitive wisdom, foreshadowed the present problem and sensed its proper solution. "Plaintiff's employees were not bound to remain in their employ any more than the plaintiffs were bound to retain them in their employ. The rights of the parties are on a par in this respect. It has not thus far in human affairs appealed to the sense of justice to require a man to keep another in his employ who can leave that employ at any time. The right to discharge and the right to quit work must be reciprocal until some other equitable basis for employ ment than the open market is established." 268 POINT XIV. The Contract relied upon by the plaintiff, whatever its status at law, fails in equity because of over-reaching and the smart bargaining in obtaining it. The proof shows abundantly that the plaintiff in this case engaged in over-reaching and smart bargaining. The internal evidence in the Constitution of the Brotherhood and in the Two Year Contract shows that the way was carefully paved, and followed to a bargain most one-sided and unjust. When it came actually to the attempt to bind men with promises desired by the Company, the plaintiff's own proof shows the following astonishing line of transactions: (1) The Constitution vested in the General Committee power to bind the men. (2) Each employee, as a condition of his employment, was required to sign an application stating he would become a member of the Brotherhood and be bound by all present and future contracts between the plaintiff and the Brotherhood, yet, (3) Each employee was required to sign the Separate Ratifying Instrument approving the alleged Two Year Contract, and (4) He was then required to swear before a notary that he had signed the Ratifying Instrument without duress. So over-anxious did the plaintiff become to surround its actions with technical legal safeguards that it made it appear that the individual ratifications of the Two Year Contract were made with the men knowing: (a) The contents of the Ratifying Instrument, (b) the Two Year Contract of June 30, 1927, (c) the incorporated Contract of March 19, 1927, (d) a detailed contract covering wages and conditions of employment, and (e) the entire Constitution of the Brotherhood. It is manifest that these thousands of men, signing as they did while working and in a period of some thirty-six hours, did not know the contents of these documents, especially since there is no pretense that all of these documents were before the men when they signed. These facts plus the harsh terms of the Constitution and the Two Year Contract make out a clear case of oppression and smart bargaining. There has grown up in our law a doctrine that, at least in equity, contracts obtained by over-reaching conduct not amounting to technical duress-contracts obtained by smart bargainingwill not be protected. Courts of equity have enlarged the 269 definition of duress; courts recognize the existence and reality of economic duress and emotional pressure, and other causes of inability of a person to bargain freely; courts no longer permit over-reaching and smart bargaining to pass unchallenged. In a long line of cases there are recognition and application of this equitable doctrine which rests upon considerations of fair dealing and justice. As applied to the instant case, the court may properly scrutinize the conduct of the plaintiff in forming its astonishing series of manipulative devices for controlling its employees in an oppressive way; and especially may the court properly scrutinize the conduct of the plaintiff in demanding from its employees these alleged individual contracts. Relatively speaking, workers have no bargaining power when dealt with separately. The plaintiff comes to court not only with unclean hands but also smirched with the practices of over-reaching and smart bargaining. None of those can equity tolerate. If the plaintiff resorted to over-reaching conduct and smart bargaining in obtaining the Two Year Contract, it is clear that equity will not aid it either in an action against its employees or in an action against third persons. This result would be founded, in part at least, upon the principle heretofore discussed, viz., that equity will not aid one whose hands are unclean; but very frequently courts of equity, motivated by that principle, have given a more concrete and specific reason for denying relief. As a result there has been developed a whole body of law pertaining to what, in general terms, may properly be designated as over-reaching and smart bargaining. Before discussing the law applicable to the case in this regard, the conduct of the plaintiff with respect to the alleged Contract should first be reviewed briefly. The most vital evidence on this aspect of the case can be found in the Constitution and Contract themselves. The detailed study of these instruments, which has already been made (Points X and XIII of this Brief), compels one to conclude that the bargains made by these two instruments are most one-sided and unjust. This evidence, which might properly be called the "internal evidence" of the case, should be given most serious consideration. These two in 270 struments, if held to be valid, give the plaintiff such strategic advantage that a practical servitude of its employees is the result. Where this would be the effect of validating instruments, a court will inquire most carefully into all the circumstances attending their execution, including the relative strength of the respective parties to them, to determine whether there was ever any genuine consent to such a gross inequality in rights acquired and duties assumed. The proof shows, and it is admitted by the allegations of the complaint, that the Constitution and the Contract involved in this case were submitted to the plaintiff's employees individually for their approval. The whole plan of securing individual approval shows a persistent attempt to get some sort of doubly ironclad evidence of consent, and evidences a serious doubt, in the plaintiff's mind as to the validity of its conduct. A whole series of successive steps were taken to get the assent of its individual employees. The plaintiff's own proof shows the following successive transactions: 1. The Constitution of the Brotherhood itself vested in the General Committee of the Brotherhood the power to bind by contract all its members with respect to wages and conditions of employment for a period of five years and, presumably in accordance with that authority, the alleged Contract of June 30, 1927 was made. 2. The plaintiff was not satisfied with the Contract so authorized and executed, but required each employee as a condition of his employment to sign a written application stating that he would become a member of the Brotherhood and be bound by all present and future contracts between the plaintiff and the Brotherhood. 3. In spite of all this, the complaint states that each employee signed a Separate Ratifying Instrument approving the alleged Two Year Contract. 271 4. Finally, to rivet the Two Year Contract upon its employees, the plaintiff required them individually to swear before a notary that they had signed the Ratifying Instrument freely and without duress (Mr. Hedley's affidavit, p. 125). One is made to wonder why the men were not asked to take some fifth pledge in the form of "crossing their hearts and hoping to die", for it is obvious that the Company could have secured any sort of memorial it desired. A full recital of the way this Contract was signed by the men appears in the Statement of Facts, ante (pp. 36 to 38). No one sensing the realities in this situation can fail to see that any man who refused to sign would have lost his job. The evidence on this point is superabundant. The affidavits submitted by the defendants show that the recitals contained in the Ratifying Instrument to the effect that the employees had read or heard read the Two Year Contract and the Constitution were not true. They show that, when the men refused to sign the Ratifying Instrument, they were threatened with discharge; that the circumstances under which that Instrument was submitted for execution did not afford them an apportunity to read anything because it was submitted to them during working hours when they were congregated in large numbers and given no time to examine even the Ratifying Instrument itself. In fact, the process of individual ratification by these thousands of men was substantially completed in approximately thirty-six hours time. To know what he was signing each man would have had to read: 1. The Ratifying Instrument. 2. The Two Year Contract of June 30, 1927. 3. The incorporated Contract of March 19, 1927. 4. A yet more remote and detailed contract setting out wage rates and conditions of employment. 5. The entire Constitution of the Brotherhood. 272 There is no pretense that all these documents were before the men when they signed, much less that they did or could have read them in the time available. These were some of the vital circumstances attending the alleged acceptance of this two year instrument, and the proof and inference are overwhelmingly to the effect that the men did not know its import and that they did not approve it, either intelligently or voluntarily. In either event a valid contract could not be held to have been made. A careful consideration of the onerous and harsh provisions of the Brotherhood Constitution, of the alleged Two Year Contract-which gave to the plaintiff's employees nothing but what they already had-, the successive independent transactions between the plaintiff and its employees individually, the circumstances attending the alleged individual execution of the Ratifying Instrument, and, above all, the very conception of the Brotherhood in 1916 by the plaintiff itself make all but conclusive the inference supporting the facts related by the defendants' affidavits and stating a clear case of oppressive and smart bargaining. The Court of Appeals has just said in Interboyrough Rapid Transit Co. v. Lavin, where it was speaking of the employee's right to quit work, that: "Unless the workers have by contract, freely made, given up such rights, they may leave an employment at any time separately or in combination, and may demand new terms of employment which in turn must be fixed by bargain." UNDER THE CASES, THE TWO YEAR CONTRACT WAS NOT SUCH A "CONTRACT FREELY MADE." It remains now to be considered what attitude courts have taken with respect to agreements of this nature and with respect to agreements executed under these circumstances. There has grown in our law a not wholly articulated, but none the less real, doctrine that, at least in 273 equity, contracts obtained by over-reaching conduct not amounting to technical duress or by conduct which may be described as smart bargaining will not be protected. This doctrine is an outgrowth partly of notions as to duress, and partly of border-line notions of fraud, but it is partly a result of wholly new notions generated by the development of many situations in current economic life, where there is present such marked difference in the bargaining power of the parties to contracts as to require new law to effectuate justice. In more recent years, courts of equity especially have enlarged the definition of duress. The early common law recognized nothing as duress that fell short of physical violence or threats of physical violence. Under the influence of increasing liberality of legal thought, courts of both law and equity have enlarged the definition of duress and have brought within its scope an increasingly large number of means formerly recognized as lawful, and an increasingly large number of objects formerly considered as proper. Thus, today courts take into account the age and the relationship of the parties and consider the susceptibility to influence of a particular party to a transaction. (20 Col. Law Rev. 80. Williston on Contracts, vol. 3, chap. 43.) So far has this development gone that the word, duress, no longer embraces the whole of the field covered, and terms such as over-reaching and smart bargaining are necessary to describe the present state of our law on this subject. The cases following illustrate the attitude which modern courts have taken with respect to transactions which have been foisted or imposed by one person upon another under stress of circumstances not amounting to technical duress. They recognize clearly the existence of such things as economic duress, emotional pressure and the inability of a person, because of pressing financial or other circumstances, to bargain freely. WVhere one in driving a bargain 274 has taken advantage of another in such circumstances, courts of equity will not protect it. This position of the courts can no longer be subtended by the term duress. Over-reaching and smart bargaining no longer pass unchallenged. Examples of the recognition and application of this equitable doctrine, resting on profound considerations of fair dealing and justice, are the following: Pope Manufactu/ring Co. v. Gormully (1892), 144 U. S. 224. Here a court of equity refused to enforce a contract whereby the defendant, in consideration of receiving a license to use certain patents belonging to the plaintiff, covenanted that he would not manufacture or sell machines covered by any of them or other patents owned by the plaintiff, unless by consent in writing; and that, after the termination of the license if he continued to make, sell, or use any such machines, the plaintiff should have the right to treat him as an infringer and to sue out an injunction against him without notice. The court held these stipulations to be unusual and oppressive and said (p. 237): "They were not understood by the defendant as importing any obligation on his part beyond the termination of his license. Indeed the operation of these covenants upon his legitimate business was such that it is hardly possible that he could have understood their legal purport. The testimony upon this point was fully reviewed by the court below in its opinion and the conclusion reached that the contract 'was an artfully contrived snare to bind the defendant in a manner which he did not comprehend at the time he became party to it.' While we are not satisfied that his assent to this contract was obtained by any fraud or misrepresentation, or that the defendant should not be bound by it to the extent to which it is valid at law, we are clearly of the opinion that it is of such a character that the plaintiff has no right to call upon a court of equity to give the relief it has sought to obtain in this suit." 275 In this case the defendant bartered away his right to defend himself against unjust actions and it is doubtful whether this is consistent with public policy. The contract was also open to the objection that the contract attempts to fetter the defendant from importing machines in which he might otherwise have a perfect right to deal, and as the court said (p. 236): "so foreclose himself from the ability to earn an honest living in his chosen calling." Further the court said (p. 236): "Whether the contract be absolutely void as contravening public policy or not, we are clearly of the opinion that it does not belong to that class of contracts the specific performance of which a court of equity can be called on to enforce. It has long been the recognized duty of such courts to exercise a discretion: to refuse to aid in the enforcement of unconscionable, oppressive or iniquitous contracts." Howells v. Pacific States Savings Loan and Building Co. (1901), 21 Utah, 45. The Pacific Loan Company was in the business of loaning money on installments and loaned respondent $1,500 at 6 per cent if he would subscribe to 30 shares of the company's stock at $100 par value. Howells was to make monthly payments on the stock and monthly interest payments on the amount borrowed until he had paid up the par value of the stock. Meanwhile he gave mortgages as security for the stock and assigned the stock to the company as security for the loan, and agreed also to pay fines on the stock. In reality he did not become a stockholder since the stock was to be forfeited on completion of payments to cancel the mortgage, and in reality the whole arrangement amounted to a loan at 26 per cent interest. The court held this to be an unconscionable contract and enforced it only as a loan, saying (p. 57): 276 "It is evident that the transaction in regard to the 30 shares of stock was simply a cunning device to obscure the real transaction and induce the respondent to believe he would derive a benefit other than the advancement of the sum loaned. Had the matter been presented in a direct and simple form there can be little doubt the offered loan would have been declined." The result reached by the court in Ne.wt Prague Flour Mill Co. v. Spears (1-922), 1-94 Iowa, 417, stated in this Brief (p. 328) is in point. Th~e court characterized the four thousand word sales contract In that case as including (p. 492): X.- a multitude of conditions, stipulations, reservations, exceptions, and waivers,, skillfully devised to restrict the liability of the seller within the narrowest possible limits,' and to leave no. avenue of escap~e from liability on the part of the purchasers." In Friend v. Lamb (1893), 152 Penn., 529, the plaintiff brought an action for specific performance to compel the defendant, a married woman, to complete the purchase of certain real estate which she had agreed to buy on certain severe credit terms. Tlie court found that the undertaking by the defendant was a rash and improvident one and for this reason, among others, held the contract to be an unconscionable, one and refused to grant specific performance. The courth said (p. 534): "An. unconscionable price, a clouded title, any circumstance of over-reaching, misrepresentation and many similar causes will induce the courts to refuse specific performance."y Th Faulkner v. Faulkner (1-914), 162 App. Div. N. Y., 848, the husband set aside the conveyance made by him to his wife, the defendant, which conveyance had been secured 277 by her under threat that she would leave him and take their child unless he deeded her the premises. Parker v. Hill (1908), 85 Ark., 363. This was an action to set aside the conveyance obtained from an old lady under threat of troubling her many years with a will contest. The court set aside the conveyance using the following language (pp. 371-372): "The will was in proper form, and there is absolutely no evidence in this record whatsoever of any ground of contest, and therefore the court must take it that this asserted claim of Mr. Hill's wife to the property her father devised to her step-mother was a groundless claim, asserted for the sole purpose of working upon her fears and causing her to surrender this property, rather than have her remaining years darkened with discord and worn with strife and her substance wasted in defending an unjust lawsuit." "Mr. Pomeroy says: 'Where there is no coercion amounting to duress, but a transaction is the result of a moral, social or domestic force exerted upon a party, controlling the free action of his will and preventing any true consent, equity may relieve against the transaction, on the ground of undue influence, even though there may be no invalidity at law. * * * The doctrine of equity concerning undue influence is very broad, and is based upon principles of the highest morality. It reaches every case, and grants relief "where influence is acquired and abused, or where confidence is reposed and betrayed." It is especially active and searching in dealing with gifts, but is applied, when necessary, to conveyances, contracts executory and executed, and wills.' 2 Pomeroy on Equity Jurisprudence, 3d Ed. S. 951. "The court is of opinion that the deed of Mrs. Locke to Mr. Hill was not made of her free will, but was the result of 'a moral, social and domestic force' exerted against her in her enfeebled condition which controlled her free action and prevented her true consent." Foote v. De Poy (1905), 126 Iowa, 366. This was a suit to set aside the voluntary agreement secured by the de 278 fendant from her husband, from whom she had previously been divorced, in proceedings in which provisions had been made for her support and that of their child. The deed of trust was secured under the following circumstances; the husband at the time of the execution of the deed of trust was an elderly person feeble in body and mind, although he was not insane. The wife instituted guardianship proceedings against him, not because he was squandering his money and wasting his property but with a view of causing him to execute for her benefit and that of their child the trust agreement in question. Upon the husband's execution of the agreement it was understood that the guardianship proceedings would be dismissed. The court said (pp. 371, 373): "The question whether one executes a contract or deed with a mind and will sufficiently free to make the act binding is often difficult to determine, but for that purpose a court of equity, unrestrained by the more technical rules which govern courts of law in that respect, will consider all the circumstances from which rational inference may be drawn, and will refuse its aid against one who, although apparently acting voluntarily, yet in fact appears to have executed a contract with a mind so subdued by harshness, cruelty, extreme distress, or apprehensions short of legal duress, as to overpower and control the will. Central Bank v. Copeland, 18 Md. 305 (81 Am. Dec. 597). "In reaching this conclusion, we may say it is very probable that no person active in securing the contract was moved by any malicious or wanton purpose to harass or despoil this feeble and broken old man. It may, indeed, be assumed that the divorced wife believed he was liable to waste or dispose of the remnant of his property, and that her motive in instituting the proceedings and obtaining the contract was not to enrich herself, but to obtain the best possible provision for her child.y" Gruetzkow Brothers Co. v. Breese (1897), 96 Wis., 591, was a suit by a lessee to recover certain insurance moneys 279 which it paid to the defendant, the lessor of the premises occupied by the plaintiff. The lease provided that the plaintiff lessee should insure the premises against fire under policy payable to both the lessee and the lessor as their interest should appear. A fire loss occurred and it was necessary under the policy to have the proof of loss signed by the lessor before the plaintiff could secure the insurance moneys. The plaintiff was in great need of money in order to continue its business and under these circumstances the defendant insisted upon a larger portion of the insurance moneys than it was lawfully entitled to and under these circumstances the money was paid by the defendant. The court permitted recovery, and says: "The case was this: The plaintiff could not obtain the insurance money due it unless the defendants joined in executing the proofs of loss and in indorsing the drafts. The defendants refused to do these things unless the plaintiff would pay them $666.74, which it did not owe. The plaintiff was in a position where it must obtain its insurance money at once in order to go on with its business and fulfill valuable outstanding contracts, or it would suffer great loss. Under these circumstances it submitted under protest to the unjust demand in order to obtain its own money from the insurance company. " * * The only other fact remaining necessary to be found in order to establish a good case is the fact that the claim of the defendants against the plaintiff for $666.74 was an unjust and unfounded claim. This is, of course, a vital fact, and if it did not exist-i. e., if the claim was in fact a valid one-the action certainly will not lie, because it is of the gist of the action that the money extorted upon a groundless claim" (p. 598). In Kilpatrick v. Germania Life Ins. Co. (1905), 183 N. Y., 163, the plaintiff sued to recover $1,000 which was exacted from him upon the satisfaction of a mortgage held by the defendant. The mortgage was one for $80,000 pro 280 viding for interest payments on February 1st and August 1st. The mortgage gave the plaintiff the privilege of discharging it by the payment of principle and accrued interest thereon any time after August 28th, 1900, and prior to August 1st, 1901. On August 1st, 1900, the defendant failed to pay the interest and this, according to the provisions of the mortgage, made the whole become due and payable at once. The defendant during the early part of August commenced foreclosure proceedings which were later withdrawn on the faith of the promise made by the plaintiff that he would in a few days pay for the mortgage, he stating at the time that he had made arrangements with other parties for a mortgage upon the premises. The defendant, knowing of the fact that the plaintiff had made other arrangements to secure a mortgage upon the property, refused to deliver the satisfaction piece to the plaintiff unless the plaintiff paid, in addition to the principal and accruing interest, the sum of $1,000, which sum was paid by the plaintiff on August 28th, 1900. The court in the following language held that the plaintiff was entitled to recovery (pp. 168, 169): "Having no right to the bonus, it still insisted on the payment thereof before it would do its legal duty. The plaintiff, in view of the way business is done in giving a new mortgage to pay off the old one, could not wait to make a tender and take legal action and he was not obliged to. He could submit to the exaction and pay the bonus, and sue to recover it back, because such a payment is not voluntary. In effect that defendant held plaintiff's property in its grasp through its lien thereon and would not surrender it until the unlawful exaction was complied with. The payment was made to free the property from the duress as much as if it had been a chattel and the defendant had it in his possession under a pledge, refusing to part with it unless the bonus was paid. Under these circumstances the compulsion was illegal, unjust and oppressive and the plaintiff having sub 281 mitted under protest, had the right to recover, according to the authorities. The refusal of the defendant to accept the mortgage debt and interest unless the bonus was paid, placed the plaintiff in a position where he was compelled to submit to the exaction in order to receive a satisfaction of the defendant's mortgage and secure the money on the new loan which would protect him in the emergency." A case like the foregoing in which a like result was reached is Kelley v. Cap lice (1880), 23 Kan., 337. Vyne v. Glenn (1879), 41 Mich., 112. On the equitable principles of quasi contract, the plaintiff was allowed to recover moneys paid on a settlement of accounts with the defendant under the threats made by the defendant that he would stop payment to the plaintiff from others, he, the plaintiff, knowing at the time that the plaintiff was pressed financially. Fuerst v. Musical Mutual Protective Union (1905), 95 N. Y. Supp., 155. In this case the plaintiff, a member of the defendant union, sued to recover a fine which was illegally imposed on him and which fine was paid'under threat by the defendant that he would be expelled from his membership unless it were paid. The court said (p. 159): "It is argued on behalf of the defendant that the threat to expel the plaintiff, if made, can add no force or effect to his claims herein, and that it is well settled that a threat to do a lawful act is not duress. The trouble with the defendant's position is that it threatened to commit an illegal act. The action of its board of directors in transferring fines to the plaintiff was void ab initio. The threat contemplated depriving plaintiff of a valuable right, without cause or justification for so doing. The plaintiff's membership in the defendant is a property right, deprived of which it would be well nigh impossible for him to practice his profession within the city of Greater New York, and, since the affiliation of defendant with the American 282 Federation of Musicians, probably in all jurisdictions of the United States and Canada, wherein the American Federation of Musicians has a local, and by reason thereof his means of earning a livelihood in his chosen profession would be impaired, if not totally destroyed." These cases show that duress no longer encircles the whole ambit of equitable relief and has no hard and fast meaning. It is only the central area of a broad standard of justice. All the above cases, and especially the last, recognize the existence of economic pressure exerted by one person over another to impel conduct and in all of the cases such pressure has been held to be a fatal defect. The relative bargaining power of the parties to an agreement has regularly led modern courts carefully to scrutinize the conduct of the party holding the stronger economic position. As applied to the instant case the court should carefully scrutinize the conduct of the plaintiff in dealing with its employees individually. Relatively speaking, they have no bargaining power when dealt with separately. The matter of dominance by one party over another by reason of his power to exert it has been recognized by law and equity in many situations as is shown by the following extract from Williston on Contracts, vol. 111, ~1627: "A relationship between parties to a transaction which tends to give dominance over the other may be an important element in determining whether duress was exercised. And courts of equity have established the principle that when such a relation exists, the burden is thrown upon the dominant party to establish the fairness of the transaction and that it was a free act of the other party. This principle has been generally applied to cases of settlements of property, especially gifts, rather than to contracts, but does not seem confined to such cases. It is applied where a parent obtains a conveyance from a child; and also where a child has obtained a conveyance from an aged parent by means of an agreement to support. So an 283 advantage obtained by a husband from a wife; or by one who stands in the position of a guardian from a ward, whether legal guardianship exists or not, or by an attorney from a client, a physician from a patient, a pastor from a parishioner, is subject to the same rule; which is indeed applicable to any relationship where one party is in a position to influence unduly the will of another." Again Professor Williston says, ibid, ~1425: "More exactly, it may be said that wherever a contract though legally valid, is grossly unfair or its enforcement opposed to good public policy for any reason equity will refuse to enforce it. * * * So, if the contract is unconscionable in its terms, equity will not enforce it." The foregoing discussion is unaffected by anything just decided or said by the Court of Appeals in the Lavin case. This is made clear by the discussion at the end of Point XVIII. 284 POINT XV. The promise in a work contract not to join a union is not within the category of promises the inducement of the breach of which equity will enjoin. There can be no question that courts of equity will, in proper cases, in order to prevent such a breach of promise as will cause irreparable damage not only enjoin a third person from inducing a breach of the promise but will also compel the promisor himself to perform. But this Contract does not fall within the range of this rule. To begin with, for equity to protect a contract of employment from interference from third persons, it is necessary that the contract be valid and in no sense opposed to public policyconditions not present in the case now at issue. And even in valid contracts of sound public policy, the court has permitted only certain limitations to be put upon the employee's freedomthose limitations, in brief, which were deemed necessary for the protection of the employer in essential matters, such as protecting the employer against future competition by the employee after the term of his employment. Even this protection for the employer is limited by due consideration of the disparity of bargaining power between employer and employee, as the cases well establish. In the second place, equity protects employment contracts only against such conduct of third persons as deprives the employer of the employee's services. And even in such event equity will not protect the employer unless the employer's contract is fair and reasonable. These matters also the cases fully establish. And the foregoing is all that the cases do establish. They do not at all support any such sweeping statement that inducing the breach of any contract is a tort and is enjoinable. On the contrary the cases in the field of labor relations (and they are supported by the cases in the marketing field) clearly hold that disparity in bargaining power is to be considered; that the employer must not over-reach; that the employer's case for protection is strongest where the worker's services are unique; that the employer is to be protected only against loss of his employee's services. In this instant case there is no danger that the employer will lose the employees' services. The antiunion promises which the plaintiff has taken from its employees are not designed to protect any of the plaintiff's rights to the services of these workers; they are merely designated to protect an asserted right to govern its employees' labor affiliations. No 285 such promise is within the category of promises the inducement of the breach of which equity will enjoin. Courts of equity will, in proper cases, in order to prevent such a breach of promise as will cause irreparable damage, not only enjoin a third person from inducing the breach of the promise, but will also compel the promisor himself to perform. Thus in the leading cases of Lumley v. Wagner and Lumley v. Gye, the court of equity, aiming to secure for the plaintiff the unique services for which he contracted, not only enjoined Gye, a third person, from inducing Miss Wagner not to sing for the plaintiff as she had contracted to do, but also, in effect, compelled her to sing for the plaintiff by specifically enforcing her negative promise not to sing for others. If the plaintiff is right in its contention that equity will protect the anti-union promises which it has taken from its employees, then it is entitled, not merely to an injunction to restrain the defendants from inducing the men to join the Amalgamated Association, but also to an injunction against its employees restraining them from joining that union. That the anti-union promises which the plaintiff has taken from its employees will not be protected by equity appears when the rationale of the cases which enjoin inducing breach of contract is carefully examined. The plaintiff is able to establish its position only by the use of a mechanical and over-generalized syllogism unwarranted by what the cases have decided. That uncritical syllogism is: a. Inducing the breach of any contract is a tort and is enjoinable. b. The anti-union promises of the plaintiff's employees are contracts. c. Therefore inducing their breach is enjoinable. A blind application of this mechanical and over-generalized syllogism would completely overlook the policy underlying the history of the development of the principles 286 protecting contractual rights as against both the promisor and third persons. Cf. Pound, "Mechanical Jurisprudence," 8 Col. Law Review, 605. As to this line of argument, it is to be noted first that the minor premise, viz., that these anti-union promises are contracts, assumes much that is in issue. 'To; call the document dated June 30, 1927 a true contract of employment is to mistake myth for reality. Within its four corners, its one-sidedness appears. Its content and the circumstances of its execution show that nothing approaching equality of bargaining power was present. The court does not need to remake a bad bargain made by improvident bargainers, but needs only to realize the real nature and true purpose of the whole transaction and reject the whole of it. And this may be done because a court of equity is here being appealed to. Such courts are founded on deeply laid traditions leading them to pierce the camouflage of one-sided arrangements dressed in the garb of contracts freely entered into. Equity's policy of protecting contracts of employment from the interference of third persons is not to be caught in any mechanistic formula. Courts of equity are not moved to act unless their underlying policy is applicable to the case. The underlying policy which has moved courts to protect contracts of employment from interference by third persons has two basic elements; viz., protection of only those valid contracts not opposed to public policy and protection against conduct which will deprive the plaintiff of the employees' services. In the first place, the policy presupposes that the contract of employment, the protection of which is sought, is really a valid contract and is in no sense opposed to public policy. The relationship of employer and employee has for centuries included first the primary bargain for services on the one side in exchange for money or other values on the other. Annexed to this primary bargain there have been added for centuries collateral stipulations, 287 conditions or promises, which are exacted from the employee both as a prerequisite to obtaining employment and to its continuance. Such collateral promises have thus limited the employee's freedom before obtaining the job and in order to keep it. When the question as to the validity of these collateral promises came to be litigated before the courts, they held that it was proper to limit the future conduct of the employee in certain respects but not in others. Courts permitted such limitations upon the employee's freedom as were necessary for the protection of the employer in matters which the courts considered essential, viz., future competition and loss of services. A frequent limitation on the freedom of the employee was for the purpose of protecting the employer against future competition by the employee after the term of his employment, but this limitation was carefully safeguarded. The employee's promise not to compete with his employer after he left the employment was held invalid unless it was limited in time and space so as to be no broader than the employer's business. Any limitation put upon the employee broader than this has been uniformly held to be an unreasonable limitation and to be unenforceable because opposed to sound public policy. The opinion of Younger L. J., in Attwood v. Lamont (1920), 3 K. B., 571, contains an excellent discussion of the basis of this doctrine. All through the centuries the courts have been compelled to be very vigilant in protecting employees against unreasonable restrictions because of the tendency of employers to indulge in over-reaching. The court said in Herreshoff v. Boutineau/ (1890), 17 R. I., 2, p. 3, where an unreasonable stipulation was involved, "covenantees desiring the maximum protection have, no doubt, a difficult task. When they fail it is commonly because like the dog in the fable they grasped too much and so lost all." So great is the disparity in bargaining power between the ordinary industrial employee and his employer and so slight is the employer's need for protection against pos 288 sible future competition by his employees that the House of Lords has restricted the category of enforceable promises not, to compete to those designed to protect the employer from a disclosure of his trade secrets and trade connections. Morris v. Saaelby (1916) 1 A. C., 688. Reflecting a similar attitude of greater protection to employees among American courts is the following language from Menter Co. v. Brock (19201), 147 Minn., 407. The court held the employee's promise not to compete invalid: "The contract of employment was in writing, signed by both parties. It contains numerous covenants and agreements to be kept and performed by Brock; but we look in vain for one to be carried out or kept by plaintiff. It does not agree to keep him in its employ for a single day nor does it, in terms, agree to pay the salary he bound himself to accept. * * It is readily seen that courts are and should be cautious in complying with the request of an employer to enjoin a former servant who has violated a covenant of this sort from earning a livelihood. It may well be surmised that such a covenant finds its way into an employment contract, not so much to protect the business as to needlessly fetter the employee and prevent him from seeking to better his condition by securing employment with competing concerns. One who has nothing but his labor to sell and is in urgent need of selling that, cannot well afford to raise any objection to any of the terms in the contract of employment offered him so long as the wages are acceptable. Therefore some proof of irreparable damage ought to be adduced in such a case before equitable relief by injunction will issue." Other valuable cases showing the safeguards which modern courts are throwing about the work contracts because of the growing weakness of the employee in the bargaining struggle are Ice Delivery Co. v. Davis (1926), 137 Wash., 649; Sternberg v. O'Brien (1891), 48 N. J. Equity, 370. 289 The second basic aspect of equity's policy in protecting employment contracts is that it protects against only such conduct of the employee and of third persons as deprives the employer of the employee's services and gives those services to a competitor of the employer. It is cases like Lunwmley v. Wagner and Lunmley v. Gye, which show the true inter-relation between the promise not to work for others and the policy against inducing breach of contract. That policy is grounded on an opposition to such unfair competition as would deprive the employer of the services for the term to which his bargain with the employee entitles him. If unique services were involved and such unfair competition was threatened, a competitor would be enjoined from inducing breach of the promise to work and the employee would be enjoined from breaking this collateral promise not to work for someone else. This collateral promise not to work for a competitor is so important that a double remedy is afforded. This contractual right to exclusive unique services has been called a right in remn i. e., a right good even against third parties, and is given the protection of a property right. "Equitable Rights and Liabilities of a Stranger to a Contract" by Harlan F. Stone 18 Col. Law Rev., 291. The New York Court of Appeals has applied the rule as to inducing breach of employment contracts in its true setting, i. e., to prevent the unfair competitive practice of depriving one's competitor of the services of his employees. Thus in Posner Co. v. Jackson (1918), 223 N. Y., 325, the plaintiff contracted for the services of a unique designer for five years. She agreed not to work for another during that period. The defendant, a competitor of the plaintiff, induced her to break her contract and to work for him. The court held the defendant liable in damages. Lamb v. Chaney (1920), 227 N. Y., 418 follows the Posner case, being also a case of employment for a definite term. Here a competitor of the plaintiff was held liable for "steali/ng" the services of the employee. 290 In Hayes v. Willio (1871), 11 Abb. Pr., N. S., 167 (Rev. on other grounds, 4 Daly, 259), an actor who had agreed to act at the plaintiff's theatre for a definite period and not to perform elsewhere was enjoined from performing elsewhere. All along it must be carefully noted that equity will not protect an employer from having the services of his employee appropriated by a competitor unless the employer's contract is fair and reasonable. If it is onesided and harsh, the protection is not afforded. See Harlan F. Stone, 1op. cit. In Star Co. v. Press Publishing Co. (1914), 162 App. Div., 486, the court denied an injunction restraining a competitor of the plaintiff from inducing one of his employees to leave him, the employee, an artist, having agreed to work for two years, the plaintiff not having agreed to employ him for that time. In Metropolitan Exhibition Co. v. Ward (1890), 24, Abb. (N. C.), 393, the artist employee was bound for a definite period, the plaintiff employer being privileged to terminate the employment on ten days' notice. The court refused to enjoin the artist from playing for a competitor, emphasizing the unfairness of the contract. In American League Baseball Club v. Chase (1914), 86, Misc., 441, the employee was bound for a definite term but the employer could terminate the contract of employment at any time. The court refused to enjoin the defendant ball player from working for the plaintiff's competitor. The scope of the original doctrine is this: if the contract of employment is valid and fair, and if the breach of those promises will deprive the employer of the employee's services and give them to a competitor, then equity will enjoin third persons from inducing the breach of the employee's collateral promises. The same doctrine is applied in the marketing field. If a farmer agrees to sell his crops to his cooperative association and to no one else, a third person, a competitor of that cooperative association, who induces the farmer to sell to him may be enjoined. 291 Here again equity acts to protect the plaintiff and to see that he gets the "core" thing which he bargained for. For cases and statutes on this situation see Tobriner's "Cooperative Marketing", 27 Col. Law Rev., 827. Suppose the third person who, by inducing the breach of the promise to work deprives the employer of the services of the employee, does not want them for himself and is not a competitor of the employer. A number of cases have extended the equitable doctrine to protect the employer in this situation. Thus in Winthrop Baking Co., Inc. v. BUlss, Sup. Ct., Kings County (1927), N. Y. L. J., Oct. 3, page 42, Strong J., held that, where the plaintiff company had a real collective contract with a union, another union might not induce its employees to cease working for the plaintiff in order to compel the plaintiff to recognize the other union, but it is to be noted that, in cases such as this the inducement of the breach of contract deprives the plaintiff of the services of the employee. The anti-union promises which the plaintiff has taken from its employees are not designed to protect the plaintiff's rights to its employees' services, but merely to protect the plaintiff's asserted right to determine its employees' labor affiliations. No such promise is within the category of promises the inducement of the breach of which equity will enjoin as this examination of the history of the doctrine shows. If they were, the plaintiff would be entitled to an injunction against the employees, preventing their joining the Amalgamated Association. Moreover, these collateral anti-union promises constitute an aggressive attack against the Amalgamated Association and a boycott of that labor union. The plaintiff is using its coercive influence over its employees as a weapon for attacking the Amalgamated Association. The plaintiff is asking a court of equity to guarantee and insure to it that, after the present period of employment, its employees will be in the same position as before so that the Company will be able to bargain with them upon terms 292 which it sets. To grant the relief prayed would put the court of equity in the position of enabling the plaintiff to produce and continue the present disparity in bargaining power between it and its employees. The plaintiff is not being deprived of the present services of its employees nor is it being threatened with such deprivation. As to their future services after the present period of employment is terminated, even a competitor may appropriate those services. Since the ultimate goal of unionization is recognized as legitimate by the law of this state, an employer cannot complain to a court of equity merely because his former advantage in bargaining power may be later impaired and because he may be called upon to enter a contract based upon genuine collective bargaining. One point cannot be over-emphasized. The defendants in this action are not attempting to deprive the plaintiff of the services of its employees. These anti-union promises are not within the category of promises the inducement of the breach of which equity will enjoin. If the workmen join the Amalgamated Association and the plaintiff discharges them for that reason, its own act is the proximate cause of whatever injury it may suffer, as has been shown ante, pp. 133-134. 293 POINT XVI. This is a hiring at will unaccompanied by any antiunion promise. The law in the federal courts. The court having held the Two Year Contract invalid, it is entirely wiped out of this picture. There remains only a hiring at will without any promise not to join a union. The plaintiff's Applications for Employment and the Separate Ratifying Instrument supply no such promise. The form of Application for Employment used until July 1, 1927 was before the Court of Appeals in the Lavin case and was held to contain no anti-union promise, as opposed to an "understanding". As to the new form of Application for Employment three things may be said: (a) There is no allegation that any men have signed it or, if so, are being induced to join the Amalgamated Association; (b) the second sentence of the stipulation in the new form refers to the Two Year Contract so that the latter being void, the former fails also; (c) the first sentence in this stipulation and the language of the Separate Ratifying Instrument both speak of a promise "as a condition of employment", which is the language not of -a promise but of an "understanding", i. e., these employees, understanding the plaintiff's attitude toward unions, purport merely to submit to discharge for union membership, not to make themselves liable in damages to the Company for joining a union. Though there were here an anti-union promise accompanying an employment at will, inducing its breach would not be enjoinable under the law laid down in the Lavin case. The Hitchman and later federal cases permit inducement by lawful means. Any broader interpretation of the Hitchman case would not be followed by the Court of Appeals as appears from the Lavin case. No federal case offers any constitutional barrier to a New York court declining to enjoin inducing breach of any antiunion promise in an employment at will. If, for any of the numerous reasons urged by the defendants, the court holds that the Two Year Contract of June 30, 1927 is invalid, the effect is completely to wipe that Contract out of the picture. The court cannot reform or modify the Two Year Contract to make it a contract to work at will plus a promise not to join a union. 294 The plaintiff's complaint is not a complaint in an action for a reformation of contract. The court is, therefore, powerless to revise it. Having been found invalid, the whole Contract drops out of the present litigation. The Two Year Contract of June 30, 1927 should not be, as it cannot be, construed to be an expressed contract for an employment at will for the substantial reason stated by Lord Moulton in Mason v. Provident Clothing &c Spply Co. (1913), A. C. 724, 745: "It would, in my opinion, be pessimi exempli if, when an employer had exacted a covenant deliberately framed in unreasonably wide terms, the courts were to come to his assistance and, by applying their ingenuity and knowledge of the law, carve out of this void covenant the maximum of what he might validly have required." The Two Year Contract of June 30, 1927 being entirely out of the case, there remains the question whether the plaintiff has any promise from these men in which they undertake not to join a union. The only other possibility is that of some promise made by the men at the time they applied for work. No such promise, though it existed, can be relied upon by the plaintiff in this action because the whole frame of its complaint discloses this action to be a suit on the alleged Two Year Contract of June 30, 1927. It would be a grave variance between pleading and proof for the plaintiff to attempt now to stand on a second leg and rely upon some anti-union promise other than the one contained in the Contract of June 30, 1927. The plaintiff sets out in Mr. Hedley's affidavit, verified January 18, 1928, two Forms of Application for Employment. The first is the form which, it is stated, all men seeking employment between April, 1920 and July 1, 1927 were required to sign. That form contains the following provision: 295 "I hereby agree as a' condition of employment, to apply within five days after appointment for membership in the Brotherhood of Interboroug) Rapid Transit Company Employees and to accept its obligations." The Court of Appeals has held in the Lavin case that whatever obligation may be contained in the foregoing stipulation runs to the Brotherhood and not to the plaintiff. Even though this stipulation incorporates the antiunion promise contained in the Constitution of the Brotherhood, that anti-union promise runs from the men not to the plaintiff Company but to the Brotherhood. That was settled by the Court of Appeals in the Lavin case, and, hence, this first Application for Employment can be disregarded. The second Form of Application for Employment, used after July 1, 1927, is set out in Mr. Hedley's affidavit and contains the following language: "I hereby agree as a condition of employment to forthwith make application for membership in the Brotherhood of Interborough Rapid Transit Company Employees and to accept and perform all the obligations and agreements of the Brotherhood contained in its Constitution and appendices thereto as it now exists or may be amended with the consent of the Company, and in any contract between the Brotherhood and the Company. I hereby further agree that the terms of my employment shall be for the term of any existing or future contracts between the Company and the Brotherhood and subject to all the terms and conditions of any such contract." All of this language as a possible source of an anti-union promise running from the plaintiff's employees to the plaintiff is decisively disposed of by two observations as follows: In the first place, it is nowhere alleged in the complaint or shown in the proof that any of the plaintiff's employees 296 who entered its service on or after July 1, 1927 have been induced, are being induced, or will be induced, to join the Amalgamated Association. In the second place, the foregoing language taken from the plaintiff's new Form of Application for Employment is divided into two sentences. The language used in the first sentence of this stipulation in the second Form of Application for Employment as well as the language in the Separate Ratifying Instrument attached to the Contract of June 30, 1927 does not constitute an undertaking on the part of the men to do or not to do anything except to submit to discharge in case they join the Amalgamated Association. Like language was before the Court of Appeals in the Lavin case, and this is the construction which the court there gave it when it pointed out that, at most, there was a mere understanding as opposed to a promise that the plaintiff's employees should not join the Amalgamated Association. The first sentence, therefore, adds nothing to what were the legal effects of the language used in the earlier Form of Application for Employment. By the second sentence of this new Form of Application for Employment, the employee agrees that his term of employment shall be that of "any existing contract". This can mean only the Two Year Contract of June 30, 1927, but, the court having held such Two Year Contract to, be invalid for any of the many reasons pointed out by the defendants, the second sentence of the new Form of Application for Employment becomes wholly inoperative. From the foregoing, it appears that the legal relation which exists between the plaintiff and its employees is that of a hiring at will, there being no express promise not to join the Amalgamated Association. At the very most, the plaintiff has made clear to its employees that it will discharge those employees who join an outside union. The men understanding this, we have what Judge Lehman, in the Lavin case, calls an "understanding", as opposed to a promise. Stated otherwise, the plaintiff has, at most, im 297 posed a condition upon the men in contradistinction to taking a promise from them. If they join the union they will be discharged but such joining will not render them liable to the Company in an action for breach of contract. The Two Year Contract of June 30, 1927, having been wiped out and there being no other expressed contract of employment between the plaintiff and its employees, what we have is an employment at will unaccompaanied by any promise whatsoever, eitheor expressed or implied, not to join the Amalgamated Association. The situation therefore becomes exactly that involved in the Lavin case and that decision disposes of this litigation. Even though it is to be supposed that the situation here present is that of a hiring at will, coupled with a promise from the men to the Company not to join a union as long as they are in the Company's employ, still there is no basis for enjoining the defendants from inducing these men to join the Amalgamated Association in breach of such an anti-union promise. As was shown under Point XV in this Brief, the law of New York is that a promise not to join a union is not within the category of promises, the inducement of the breach of which equity will enjoin. Equitable protection of collateral promises in employment contracts so far has been limited by the Court of Appeals to the protection of those promises which, if broken, would deprive the plaintiff of the employees' services, not of some other or collateral advantage. The Court of Appeals, in the Lavin case, pretty clearly seems to have taken the position that an anti-union promise, accompanying a hiring at will, will not be protected against inducement of breach by lawful means. It seems clear that the only question left open by the court in that case is the question whether such an antiunion promise, accompanying a hiring for a definite term, precludes unionization by lawful means. Moreover, such authorities as we have in this country outside of New York, which sanction enjoining inducing, 298 by lawful means, the breach of an anti-union promise in a hiring at will, all go back to, and rest upon Hitchman Coal & Coke Co. v. Mitchel (1917), 245 U. S. 229. When the holding in that case is viewed in the light of the interpretation later put upon it by the Supreme Court of the United States and by various Circuit Courts of Appeals, it will be seen that the present federal rule in this matter is that,such a promise does not bar unionization if only lawful means are used. To understand the present federal rule it is necessary to consider the Hitchman case in the light of American Fouwndries v. Tri-City Trades Council (1922), 257 U. S., 184, and of subsequent cases in the Circuit Courts of Appeals applying the rule of the H-Iitchman case. It will clear the ground for such understanding to observe, as is more fully pointed out in Point XXII of this Brief, that none of these federal cases relate to any question of constitutional law. They involve the common law question whether labor organizers may induce the breach of a promise not to join a union and, if so, by what means. If the federal courts in all of these cases refused to, protect these employment contracts, the provision of the federal constitution relating to the impairment of the obligation of contracts would not have been violated, for such impairment is limited to legislative, as opposed to judicial, impairment. Denial of such relief by the federal courts would not have been a denial of the equal protection of the law because the same courts might later also deny like injunctive relief to the defendants in these cases, so that the parties would then be on a parity before the law. The denial of all relief in all of these cases by these federal courts would not, have violated the due process guaranty of the Fifth Amendment to the federal constitution because whether one is liable for inducing the breach of any contract is merely a question of common law. It would be an amazing contention to say that all such common law 299 was codified into the constitution by the due process provision. Now if these federal courts would be denying no constitutional rights by refusing to protect these contracts in all of these cases, it is all the more clear that a state court, in holding that such contracts are not to be protected by an injunction, would not be violating the due process provision of the Fourteenth Amendment or any other provision of the federal constitution. The United States Supreme Court has frequently held a state court to have the power not merely to enunciate for the first time a new rule of the common law but also to alter a rule already established by state decisions. This elementary proposition of constitutional law may be put concisely, as it often has been, by saying that no provision of the federal constitution gives any one a vested right in the common law of a state. State legislatwres are subject to having their enactments reviewed by the federal courts but state courts declaring for the first timne, or modifying, the rules of the non-statutory common law of their states are subject to no such federal supervision under the due process clause. It is a well-known fact that the contrary contention is repeatedly made to the Supreme Court of the United States and is regularly rejected. A full citation of authority on this point appears under Point XXII of this Brief. If then, none of these cases involves any question of constitutional law, they can have no direct bearing on the present litigation. So far as they merely announce a rule of common law, they are not controlling in the State of New York for its common law will be determined by the Court of Appeals. Their only weight is that which precedents in any jurisdiction outside of New York have when novel questions are being considered by the courts of New York. Returning to the question as to the rule of common law in the federal courts relating to inducing breach of anti 300 union promises, it is one not free from difficulty because the Hitchman case, the case with which this line of federal cases starts, is by no means clear as to just what it holds. The opinion in that case has given greatest difficulty to students of the subject, and, indeed, has been frequently criticized because of its obscurity as well as its results. See for comments on the Hitchman case: "Privileges of Labor Unions in the Struggle for Life" (Cook). 27 Yale Law Journal 779. "Inducing Breach of Contract" (Sayre). 36 Harvard Law Review 663. Comment, 31 Harvard Law Review 648; Comment, 3 Cornell Quarterly 317; Comment, 18 Columbia Law Review 252; Comment, 24 Columbia Law Review 185; Comment, 16 Michigan Law Review 250. The only satisfactory way to get at what rule of law the Hitchman case has established is to consider it and subsequent cases in the federal courts as a group because what the case now stands for is determined by the interpretation which subsequent courts have put upon it. It involved inducing a breach of a promise not to join a union while in the plaintiff's employ. One major doubt about the case was as to what means may be used to induce such breach. But subsequent cases clearly establish that such inducement, by at least some means, is lawful. The Supreme Court of the United States itself said of the Hitchcan case in the later Tri-City Council case, Chief Justice Taft speaking for the court (p. 211): "The unlawful and deceitful means used were quite enough to sustain the decision of the court without more." Support for the proposition that the Hitchman case prohibits inducing breach of anti-union promises only if un 301 lawful means are used is to be found in Judge Learned Hand's statement in Triangle' Film Corp. v. Artoraft Pictures Corp. (1918), 250 Fed. 981, 982: "In the second (the Hitchman case), a labor union had determined to compel it (the plaintiff) to operate as a closed shop and that, too, by fraud." Judge Hand's further statement that the case also rested upon the fact that a purpose to unionize an entire industry is an unlawful purpose, is aside from the present discussion, and, though it be a ground for the Hitchman case, it is not law in New York because such a purpose was expressly declared lawful in the Exchange Bakery case. Indeed, there is no way of reconciling subsequent decisions in the federal Circuit Courts of Appeals, unless the Hitchman case be taken, as indicated by Chief Justice Taft, to lay down the rule that the breach of an anti-union promise may be induced by lawful means. This will appear from a careful examination of the following federal cases. In Gasaway v. Borderland Coal Corp. (1921), 278 Fed. 56, the Court of Appeals of the 7th Circuit held, as a careful reading of the opinion (pp. 64, 65) will show, that it is lawful for labor organizers to induce an employee to terminate an employment at will and to join a union, his promise being not to join a union while in the employ of the plaintiff. This was one of the horns of the dilemma upon which the defendants were impaled in the Hitchman case, the dilemma being that, if the men joined the union and remained at work, a breach of the promise not so to join was thereby induced, while, if the workmen quit in order to join a union, the defendants were liable for having enticed away the plaintiff's servants. In Bittner v. West Virginia-Pittsbwrg Coal Company (1926), 15 Fed. 2nd, 652, the Circuit Court of Appeals of 302 the 4th Circuit held that it was lawful to induce men to join a union by speeches and circulars regardless of whether an employee, induced thereby to join the union, terminated his employment upon so doing. International Organizoti~on United Mime Worker's of America v. Red Jacket Consolidated Coke and Coal Cc. (1927), 18 Fed. (2d) 839. This case was decided by the Circuit Court of Appeals of the 4th circuit. Certiorari was denied to the defendants below by the Supreme Court without opinion (48 Sup. Ct. Rpr. 31). This case involved a decree worded exactly as was the decree in the Bittner case and it expressly sanctions the use of speeches, circulars, and the like, even though they cause men to join the union in breach of contract (18 Fed. [2d] 839, 849). Where, therefore, there is a promise not to join a union so long as one is employed at will, the rule of the federal courts at the present time seems to be that inducing breach of an anti-union promise is lawful if lawful means are used. Apart from this, the decision in the Red Jacket case adds nothing to our learning with reference to what the federal rule is. It is a case without importance and its significance for present purposes is much reduced by the fact that the court discusses a situation where labor organizers induce men to join the union and to go on a strike for a purpose of forcing the company to recognize the union. All the court says is that one may not approach an employee and induce him to join a union and to go out on a strike. The defendants are not asking the Interborough's employees to quit work. In fact they are asking them to stay at work, the Constitution of the Amalgamated Association being quite explicit on this point. The defendants are not, even asking them to quit tlhe Brotherhood. What the court in the Red Jacket case was getting at did not include a prohibition of asking employees to join the union. 303 Nor can it be shown that the federal rule permits inducing breach if not done by personal solicitation. Such a distinction is impossible in fact and without practical merit for what is public speech? How many listeners make a crowd? Circulars are permitted. How many can be sent and how few? No such distinction can be drawn. The Supreme Court having indicated that the rule of the Hitchman case is limited to the use of unlawful means and the Circuit Courts of Appeals having sanctioned speeches, circulars, etc., it seems clear that the federal rule now permits the inducement of the breach of antiunion promises by lawful means. These Federal cases all rest on the Hitchman case. The pertinency of the lot of them to the present litigation ik qualified by the following general considerations: 1. The Hitchman case purports to announce, and could announce, only the common law of West Virginia. 2. It was decided by a court which decided the Bedford Stone Cutters v. Journeyman Stone Cutters Assoo. (1927), 47 Sup. Ct. R. 522, directly contrary to the decision of the New York Court of Appeals in Bossert v. Dhuy (1917), 221 N. Y. 342, both cases involving the legality of a boycott of non-union material. 3. Finally, the pronouncement of the Court of Appeals in the Exchange Bakery case and in the Lavin case is that the Hitchman case is not the law in New York. The Hitchman case was fully discussed pro and con in the briefs and arguments of the parties in the Lavin case. It was undoubtedly this case in particular to which the Court of Appeals referred when it said in the Lavin case: "Both parties have upon this appeal cited decisions, most of them from other jurisdictions, which they urge support certain of their contentions. Some of the opinions in these cases are of great weight be 304 cause of the strength of the reasoning and the authority of the tribunals. The law that should be applied in this jurisdiction to the circumstances disclosed by the record has been established by repeated decisions of this court. Difficulty, if any, lies in the application of established rules of law to particular facts." 305 POINT XVII. Where, as here, a contract is rooted in a disparity in the bargaining power of the parties and the contract is harsh, unfair or inequitable, courts will supervise and alter that contract in order to work justice, even though the contract is founded on sufficient consideration and is otherwise valid. In the last fifty years there has developed an increasing number of so-called "dotted-line-contracts" (such as the standard fire insurance company contract) containing many promises and conditions, and executed between parties, one of whom typically must either sign or not sign-he cannot alter the contract. The development of such contracts has brought about not merely in the field of legislation but also in the field of judicial decision recognition of disparity in bargaining power as a sufficient reason for qualifying freedom of contract. There is ample justification for this both in sound social theory and in legal precedent. The principle that courts will refuse to enforce all or parts of contracts reflecting disparity in bargaining power has, indeed, become deeply imbedded in our law. To cite only some of the types of cases in point: (1) safeguarding the inferior bargaining power of the needy borrower is of long standing and of varied application in judicial history as the cases well show; (2) disparity of bargaining power is recognized as a basis for altering contracts otherwise valid between the seller of property on credit and the buyer; (3) a similar situation obtains in the field of investment; (4) judicial supervision of contracts reflecting disparity of bargaining power has had long and varied application in the field of fire insurance; and (5) also in the field of life insurance; (6) the same principle has been very extensively applied in the field of carriers and (7) in the field of public utilities; (8) the courts are finding it necessary to revise standardized contracts between banking institutions and their customers; (9) the field of corporate suretyship discloses examples of the same type of supervision as does also (10) the Srelation between landlords and tenants in the field of domestic housing in large urban centers; (11) even the relationship between the large corporate seller and the individual buyer of commodities is entering a regime of supervision by the courts. The principle that courts will step in to revise contracts which, otherwise valid, are rooted in disparity of bargaining power is firmly established and widely prevailing in our law; and one should expect that the weakness of the workers' position would 306 result in the principle having long standing and frequent application in the field of contractual rights and liabilities of employers and employees. A long line of pertinent cases bears witness to the fact that this expectation has been fully realized, and realized in many varying types of situations,-one leading case, Kimberley v. Jennings (1836), 6 Simons', 340, being squarely in point and all but identical with the case before the court. How does this principle, so fully established, bear upon the instant case? The harsh and unjust provisions of the Contract involved in this suit have already been discussed at length: This Contract is more harsh, oppressive, and inequitable than those-otherwise valid-which have been condemned by the courts in the cases in the defendants' Brief. It was not negotiated by collective bargaining since the plaintiff's employees are in fact unionless. The terms of the alleged Contract and the conditions attendant upon its alleged execution are such as to make it impossible to believe that it was signed by workers with any bargaining power. There was gross disparity of bargaining power-disparity so gross that, even were the Contract otherwise valid (as it is not), the court would be justified in supervising and altering that Contract. This is sound social policy and sound law. DISPARITY OF BARGAINING POwVEI IN THE NEGOTIATION OF EMPLOYMENT CONTRACTS GENERALLY. It has been shown under Point XI of this Brief that these men are, in fact, unionless. Without an independent union, they have nothing approaching equality of bargaining power in their negotiations with the Company. As the Statement of Facts in this Brief points out, the experts' affidavits expressed very definite opinions concerning the disparity of bargaining power between employer and employee in modern business (pp. 45-55, supra). This disparity is compounded of the following five elements: the insignificance of the individual in large corporate business; disparity in the stake of workers and employer in the contract; disparity in resources and waiting power; disparity in the technique of bargaining; disparity in knowledge and control of the market. The size of modern business organization gives all the advantage to the employer. He buys labor wholesale, 307 while the worker, acting singly, sells his labor retail. Moreover, the employer is often associated with other employers in the same industry (trade associations) or in the same community (chambers of commerce). The disparity in their stake in the contract means directly disparity in bargaining power. For the employer it is no life and death matter; only his profits are concerned. The worker has everything at stake. His life and his family welfare depend upon the terms of the work contract. Disparity in bargaining power is in part disparity in waiting power, as has been often pointed out. Thus, Professor Slichter says: "Human services are perhaps the most perishable of all commodities. If today's labor is not sold today, it is lost forever because no one has yet discovered how today's labor can be sold tomorrow. The worker's costs, unlike the costs of the business man, are all overhead costs. They go on without diminution whether he works or not. He must sell promptly at some price in order to obtain funds to meet these unavoidable expenses." The unorganized worker has no reserve or resources which will enable him to hold out for a fair price for his labor. Delay in getting a job may mean privation for him but no great loss or inconvenience to the employer. Labor unions are needed to secure for the individual workman an opportunity to deal with his employer on a basis approaching equality, and free from the duress of immediate want of a daily wage. A most important element of disparity in bargaining power is disparity in the technique of bargaining. This is very important because the modern wage contract requires a great deal of skill in negotiating. The employer is a trained, educated and experienced bargainer. He can hire expert counsel to draft involved contracts and he can secure market-wide information. The average workman 308 has neither the time nor the opportunity to become a skilled bargainer himself, nor has he the means to employ high priced counsel to negotiate and to draft his work contract. Moreover, the employer as a negotiator has the moral ascendency of class and tradition. Economically he is still a "master" dealing with his "men.7" Added to disparity in the technique of bargaining is disparity in knowledge and control of the market. The employer's technical equipment is supplemented by intimacy with general trade conditions. The individual worker is typically ignorant of alternative jobs, and of wages and working conditions in other plants. Without organization with his fellows, he has no way of removing his ignorance. Under a system of individual bargaining the competition of men for jobs may unduly depress wages. Employers on their part, however, often have actual or tacit understandings to refrain from competing freely for employees by advancing wages. They are reluctant "to spoil the labor market", and, even when they are not combined in employers' associations as often happens, a gentlemen's agreement may prevent them from competing actively for workers and forcing wages up to the competitive level. The experts' opinion is overwhelmingly to the effect that the disparity in bargaining power between employer and employee is not removed when men are organized in bona fide company unions. With such a union, men lack trained independent negotiators. Their representatives are not free to devote time to study of the questions at issue. They usually do not have access to bodies of facts in their own business. They lack contacts with other groups of workers with whom they might pool information. Men in company unions lack funds for research, for lawyers' fees and for relief (strike benefits) in time of stress. Many company unions have no dues and others collect very small amounts. Consequently company 309 unions, as a rule, have very small reserve funds. The fact that each company union is confined to the employees of one enterprise, usually to one establishment, deprives it of two sources of strength which an inter-company union has-financial support and the moral strength which comes from association with large numbers of wage earners in the same industry throughout the country. The crux of the problem of bargaining power in the case of a company union is the matter of independence from management. The company union spokesman is himself an employee of the employer with whom he bargains and is subject to discharge by him. He is, therefore, bargaining at a disadvantage. He cannot be expected to be as vigorous and persistent in pushing the interests of the men as a representative independent of the company, and employed by the men. The employer's control of the worker's means of livelihood gives him an incalculable advantage in any bargain. As Professor Tead says: "It is obvious that an employee dependent upon the company for his position and not protected under his company union plan from arbitrary discharge (as he is not protected in the present situation) if he manifests zealous activity on behalf of the employees' interest, and not in a position to call upon specially qualified pleaders to represent him in joint deliberations and having no access to facts about economic conditions in his industry as a whole, finds he has no ability to bargain on terms of equality with the company representatives in arriving at terms of employment." The opinions of the experts on the workers' disparity of collective bargaining under company unions are not merely theory. Many of these experts have had practical experience in the handling of labor problems in industry. Others have spent years in detailed investigation conducted in the workshop-not aloof in the University. Thus they add to their analysis of the reasons for this disparity 310 of bargaining power illustrations of the inadequacy of the company union as a device for overcoming this disparity. Professor Slichter points out the failure of bargaining through company unions to produce important changes in the shop rules of industrial enterprises: "The rules which govern the operation of factories, mines, and transportation agencies-the rules prescribing when work begins, how long the men shall have for lunch, when work shall cease, for what reasons and for how long employees may absent themselves without losing their jobs, whether payment shall be by the day or by the piece, whether the employer shall pay by cash or by check, by whom and for what reasons men may be discharged, how promotions and lay-offs shall be made-affect the lives of the employees as intimately as the ordinances of the city in which they live. The workers have a right to vote for the members of the city government but the only way in which they can influence the shop rules under which they work is by their bargaining power. In all the enterprises which I have visited, I have found almost no instances where the company union has succeeded in bringing about important changes in shop ltes. This, in my judgment, indicates conclusively that the company union is not the answer to the problem of industrial freedom which the modern large business enterprise has created." Morris L. Cooke states: "I have never yet encountered an instance of where employee opinion has prevailed against employer opinion in a matter of moment, and as a matter of fact, questions of gravity are not considered appropriate for company union consideration. In nearly every company union agreement, provision is made for appeals on questions which cannot otherwise be settled. Appeals are all but unknown." That appeals are unknown does not mean that they are unnecessary, but that they are considered useless. 311 DISPARITY OF BARGAINING POWER IN THE NEGOTIATION FOR THE Two YEAR CONTRACT OF JUNE 30, 1927. Judging by the evidence within the four corners of the plaintiff's Two Year Contract of June 30, 1927, the experts see great evidence of disparity of bargaining power. The individual workman is one-fourteen-thousandth of the plaintiff Company. How can he make his wishes felt in any contract with the Company? Professor Tead reminds us that, in a city like New York where the labor market may fairly be said to be normally supplied with plenty of unemployed labor, the Company is in the position of dis tinct advantage in negotiating and bargaining. Professor Evans points out: "It is in fact an absurdity to assume that, because an I. R. T. worker signs a statement that he has read a certain agreement and that he is free and uncompelled in his signature, he is free and of equal bargaining power." And the terms of the Contract make it clear that it does not represent the free meeting of minds but the employee's acceptance of the terms dictated by the Company. Mr. Cooke summarizes the opinion of many when he says that, as now organized, the plaintiff's employees are in no sense "fully competent to take up and adjust with their employers all questions as to rates of pay, hours of labor and any other working conditions that may hereafter arise as stated in the first paragraph of the Constitution." It has been seen from an examination of the facts in this case that when the Contract of June 30, 1927, was negotiated between the General Committee and the Company, it was not negotiated by collective bargaining because the plaintiff's employees were in fact unionless. It is admitted by the plaintiff that the Separate Ratifying 312 Instrument executed by the men was not their collective attitude because they acted separately when they executed that ratifying agreement. The promises to work for the Company for two years and not to join an outside union are rooted deep in a gross disparity of bargaining power. When a company employing upwards of 14,000 men singles out each individual separately and asks him to sign a contract, it is to shut one's eyes to the realities not to see the gross disparity in bargaining power. When the Constitution of the Brotherhood is examined, when the circumstances of its organization are looked into, when the manner of its operations are considered, when the results which it has signally failed to secure for these men are weighed, when the hopeless inequality of rights and duties in the Contract of June 30, 1927, is studied, it appears beyond any shadow of doubt that no genuine company union is present in this situation and that, consequently, no collective bargaining of any kind took place. In deciding whether or not he would execute this Contract, a workman on the plaintiff's lines had nothing but his own strength to pit against that great Company. Here we have a case of disparity of bargaining par excellence. This is a situation urgently crying for the application of a principle that contracts rooted in disparity of bargaining power will be completely voided by the courts or overhauled to eliminate their harshness, unfairness and inequity. There is such a principle in our law, well founded and broadly applied. There follows a discussion of the nature of the principle, the breadth of its application throughout the whole body of the law, the wealth of judicial authority applying it in the labor field, and general conditions controlling its application. THE ORIGIN OF THE PRINCIPLE. There has been developing in this country during the last fifty years an increasing number of what have been called 313 "dotted line contracts." These are contracts containing a considerable number of promises and conditions. They are executed between parties, one of whom typically has no choice but to sign or not to sign; that is, he cannot by higgling or bargaining induce the other party to alter the printed form. A large number of such contracts will be listed below. For the moment, the standardized fire insurance company contract or the contract on the back of telegraph blanks will serve as examples. The development of this new type of contract is but one aspect of a more fundamental change which has been taking place. The progress from status to contract has been reversed and the movement is now from contract back to status. The feudal organization of medieval Europe concentrated great power in the hands of a relatively few. and left the masses substantially powerless. The position of a member of the mass was not, the result of consentient arrangements but represented a more or less fixed and definite status. The break-up of the feudal form of social organization changed the static society into one of flux with the result, that an increasing number of human relations were adjusted and determined on the basis of negotiation and agreement. Modern pecuniary society is becoming more and more like medieval feudal society, in one respect at least,-in that power and control are not uniformly distributed but are concentrated, and, to an increasing degree, in the hands of individuals and groups of dominant economic position. The modern business corporation, for example, was democratic in its inception but power gravitates more and more to strategic points of control, and, however democratic the modern business corporation may be, it represents a tremendous concentration of power as against the individuals who deal with it. (See "Opposition of Law to Business Usages," A. T. Wright, 26 Col. Law Rev. 917; "Standardizing of Contracts," Nathan Isaac, 27 Yale Law Jour., 34.) 314 The foregoing changes in the structure and function of modern industrial society have long been sensed by legislatures and courts of law and they have brought about in both the field of legislation and of judicial decision a well marked recognition of disparity in bargaining power as a reason for qualifying freedom of contract. In our law there has grown a well defined and broadly applied principle based on the outstanding fact that disparity in bargaining power makes it necessary for the law to fix a plane above which, and only above which, shall the competitive principle and the uncontrolled incentive for gain operate mercilessly. That plane marks the upper limit of a social minimum which the law protects. The principle that courts will alter contracts otherwise valid if they are rooted in disparity in bargaining power is applicable to cases where the mere relation of the parties ascertained by judicial notice only is such that a court will, independently of evidence as to disparity in that particular case, void a contract in whole or in part because of its harsh, unfair or inequitable provisions. It is a matter of crystallized inference. This principle is one of general application to all contracts made between members of certain groups, which groups the courts have judicially recognized as inherently possessing such disparity of bargaining power, that contracts between them must be subject to judicial control in order that justice may be done. As the catalogue of cases below shows, there is a widespread judicial recognition that in the language of Mr. Justice Holmes, it is in "the equality of position between the parties in which liberty of contract begins." It is for the court to determine how much, if any, of the alleged Contract of June 30, 1927, is to stand. A PRINCIPLE APPLIED ALL THROUGH THE LAW. The Contract, for the alleged inducing of the breach of which this action has been instituted, is a "dotted line 315 contract," not one entered into by two single parties of equal bargaining power dealing with one another on an equal footing. It is one of a sort with those, numerous in the books, where courts have stepped in and given relief to a party who, out of necessity or distress not amounting to duress in a technical sense, had been forced by circumstances into a bargain which in good conscience he should not be required to see through. There are many groups of cases where the courts have recognized the disparity of bargaining power between parties to a contract, and where they have accordingly readjusted the relations of the parties established thereby. In his article on "Liberty of Contract," 18 Yale Jour. 454, at 482, et seq., Dean Pound revealed ample justication both in precedent and in sound social theory for judicial intervention in behalf of a party who otherwise would suffer under the oppressive obligations assumed by him in his powerlessness, rather than in his exercise of the so-called "freedom to contract." He wrote: "From the time that promises not under seal have been enforced at all, equity has interfered with contracts in the interests of weak, necessitous, or unfortunate promissors. One of the earliest cases of equitable interference was to prevent forfeitures to which promissors had agreed solemnly under seal. Not only did equity grant to a debtor a right of redemption for which he did not stipulate, but it would not and will not let him contract it away in advance or 'clog' it by a collateral agreement that will operate to prevent a redemption. (Spurgeon v. Collier, 1 Eden 56, 59; Vernon. v. Bethell, 2 Eden 110, 113; Rice v. Noakes, 2 Ch. 445; Jarrah Timber Corp. v. Sam'uel, 2 Ch. 1). In like manner, equity interfered to set aside contracts of sailors for the disposition of their wages or of prize money due them, where they appeared unfair, one-sided or inequitable. * * * It interfered also with contracts of heirs or reversioners in case of inadequacy of consideration, on the theory that they were peculiarly liable to be imposed on and sub 316 ject to the danger of 'sacrificing their future interests in order to meet their present wants. It refused and refuses to grant specific performance of hard bargains, simply because they are hard, leaving promises to confessedly inadequate and nugatory actions for damages. Courts of equity have simply recognized the facts of human intercourse, and have not suffered jural notions of equality to blind them thereto. * * * But what is worth more, a number (of cases) clearly recognize the actual facts of inequality as between employer and employee in bargaining for labor in many sorts of employment." Recognition of the bare reality which often gives the lie to the idea of liberty of contract found expression in a dissenting opinion of Justice Holmes-Continental Wall Paper Company v. Louis Voight and Sons Company (1909), 212 U. S. 227, 271. There the defendant had been compelled, in making a purchase from an illegal combination, to sign a separate agreement restricting sales, or to find himself driven out of business. After examining the defendant's "rambling defense," Justice Holmes said, "The allegations that the price was unreasonable, and that the plaintiff threatened and had power to drive jobbers out of business that did not come into its arrangement, is not stated in such form as to make a case of duress. I think that that would have been the strongest ground on which the defense could have been put. Courts and legislation sometimes have recognized that the so-called freedom to contract or not may be made illusory by the economic situation of one of the parties." A general discussion introductory to the subject of disparity in bargaining power as a basis for altering contracts is to be found in 27 Col. Law Rev. 178. It is urgent that it be fully recognized how deeply embedded and widely prevailing is this principle that courts will refuse to enforce all or parts of contracts rooted in disparity of bargaining power. Therefore there is set out 317 below a somewhat extended, but by no means exhaustive, catalogue of situations to which courts have applied this principle. Types of situations in which courts have recognized the disparity of bargaining power of the two parties to a contract include contracts between: 1. Lender and borrower of money. 2. Seller and buyer of property on credit. 3. Corporation and investor. 4. Fire insurance company and insured. 5. Life insurance company and insured. 6. Common carriers and their patrons. 7. Public utility companies and their customers. 8. Banks and depositors. 9. Surety companies and their customers. 10. Landlord and tenant. 11. Corporate seller and individual buyer of commodities. Each of these situations will be discussed in some detail. 1. One of the oldest applications of the principle is to the relation between the lender and borrower of money. The standardized inference as to the inferior bargaining power of the borrower is of long standing in judicial history. There are cited a few of the numerous cases holding that a contract by a mortgagor limiting or waiving his right to redeem his mortgaged property, is not, effective to deprive him of that right. Edington v. Aetna Life Ins. Co. (1879), 77 N. Y. 564; Parmer v. Parmer (1883), 74 Ala. 285; Vinton v. Pratt (1917), 228 Mass. 468; Wamsley v. Crook (1874), 3 Neb. 344, 351; and Quar'termous v. Kennedy (1874), 29 Ark. 544. In Cra;e v. Franch (1860), 38 Miss. 503, recognition of the general principle is found in the holding to the effect that a contract by a debtor not to avail himself of the statute of limitations in any action for recovery of money loaned, is void. 318 Marks v. Gates (1907), 154 Fed 481. A borrower's promise to convey to the lender all the land he should acquire in the future in Alaska was denied specific enforcement, the loan being $11,000 and the land subsequently acquired being worth $75,000. Brown~ v. Hall (1883), 14 R. 1. 249, was a bill in equity to redeem a mortgage. The lender having promised to pay interest at the rate of 5 per cent per month, asked to have the rate of interest reduced on the ground that the stipulated rate was, grossly exorbitant and unenforceable. The court, without the aid o~f any statute against usury, granted his request. Means v. Anderson (1895), 19 R. I. 118, involved a similar situation, the court holding that the contract was unconscionable and would not be enforced. Houtgh v. Hunt (1856), 2 Ohio 442. In this case a decree in equity was issued cancelling a land contract. A necessitous borrower wanting to borrow $2600, applied to the defendant. The defendant agreed to loan $101,000 on condition that the borrower purchase from the lender 593 acres of land at $25 per acre. The lender advanced only $2600 and obtained a note secured by a mortgage upon other land of. the borrower. This note secured payment of both the $2600 and the payment of the purchase price of the land. The court cancelled the agreement, holding it harsh and unconscionable in the following language (p. 443): "The rule in Chancery iis well established. When a person is incumbered by debts and that fact is known to a person with whom he contracts, who avails himself of it to exact an unconscionable bargain, equity will relieve upon account of the advantage and hardship." Under the Business Law, corporations may not use the defense of usury, yet courts have torn away the corporate veil to see whether a necessitous borrower has been compelled by an ingenious lender to incorporate his business 319 before promising to pay excessive interest on his loan. Such cases are: Schanz v. Sotscheck (1915), 167 App. Div. 202; Grannis v. Stevens (1916), 216 N. Y. 583. See also Meaker v. Fiero (1895), 145 N. Y. 165; and Denys'e v. Crawford (1841), 18 N. J. L. 325. Clark v. Spencer (1875), 14 Kan. 306, a debtor's agreement to withdraw a plea of usury which he had filed in an action brought against him was held void in this case. Butler v. Duncan (1881), 47 Mich. 94. The lender advanced to a dissolute spendthrift $1,000 and various valueless items, and took from the borrower a note for $5,000 secured by a mortgage on all the real estate to which the borrower was entitled as his father's heir. This arrangement was modified by the court to work justice between the parties. A mortgagee has been held to have no right to possession or to rents or profits until foreclosure at the end of the redemption period, even though the mortgage itself attempts to give such a right. Such a stipulation in a mortgage has been held to be opposed to public policy, a result following from the standardized inference with reference to inequality of bargaining power. Hall v. Hall (1893), 41 S. C. 163. See also the Real Estate Mortgage Act of 1927, Sixth Tentative Draft, p. 2(2). An agreement by a debtor which in effect meant that he was not to borrow money from anyone but that particular creditor has been subjected to judicial control. Union Central Life Inswrance Co. v. Champlin (1901), 11 Okla. 184.. Likewise an agreement with a third party, money-lender, that the promisor shall work forever for his employer will be supervised. In Horwood v. Millar's Timber & Trading Co., Ltd. (1916), 2 K. B. 44, an employee made a contract assigning his future wages to secure a loan, and promised not to determine his engagement with the defendant-employers "without the express sanction of the lender"; nor "to remove from or take any other dwelling-house or resi 320 dence."1 In a suit by the lender to collect the employee's wages from the employer under the assignument, the contract was held void as against public policy for unduly fettering and restricting the mortgagor's labors and mode of living. In Kn~ettle v. Newcom-b (1860)', 22 N. Y. 249, the court supervised an agreement in connection with a loan, th~at, in case of non-payment the creditor should be entitled to levy execution upon property exempt from execution by the general laws of the state. Laws exempting property from execution are based upon the policy of establishing a social minium. made necessary by disparity in bargaining power and cases holding such laws. as. non-waivable are a yet stronger recognition of tlie general principle. There are cases so holding in almost all jurisdictions. A few of these are: Flermister v. Phillips (1880), 65 Ga. 676; B~ran~ch v. Tonmlrnson (1877), 77 N. C. 388;- Phelps v. Phelps (18,74), 72 Ill. 545; Carter v. Cairter (1884), 20 Pla,. 558, 563, 569, 570. 2. A second situation in which disparity in bargaining power has been recognized as, a basis for altering contracts otherwise valid is. that existing between the seller of property on credit and the buyer. An agreement in a conditional sales contract to waive the benefits of the Lien Law has been supervised by the courts. So, also was a clause in such a contract allowing the vend or to: dispose of goods at private sale, the goods having been returned to, the seller because of the buyer's failure to pay the price. Roach v. Cu'rtis (1908), 191 N. Y., 387. See also Adler v. Weis & Fisher Co. (19,16), 218 N. Y., 295. 3. In the field of investment, as opposed to the field of personal loans, the principle of altering contracts rooted in disparity of bargaining power is having a reverse application. Here the lender needs protection. There is a growing recognition of disparity in bargaining power between 321 investors in corporate enterprises and those responsible for their promotion. Reference may be made without citation to the numerous cases imposing extraordinary liabilities on promoters of corporations. Hope v. Int'l Financial Society (1876), L. R. 4 Ch. Div., 327, holds void a contract made by a stockholder providing that, if he should ever bring any action against the corporation or any director thereof on account of his ownership of the stock, the same should be forfeited. In Fisher v. Bwch (1885), 35 Hun, 641, the court held void a contract by which the owner of stock deprived himself of the right ever to vote by proxy. In Industrial Trust Co. v. Tod (1904), 180 N. Y., 215, there was involved a trust instrument calling for the agreement of bondholders not to charge trustees under a reorganization agreement except for wilful default. The trustees were, by the instrument, given final power to construe its meaning. The court held that this provision must be qualified by inserting "in good faith." To go beyond this was held to be exceeding the limits fixed by public policy. 4. The principle of judicial supervision of contracts rooted in disparity of bargaining power has had very wide application in the field of fire insurance. Fire insurance policies, for instance, have been materially altered by the courts in the interest of justice. Such modification is none the less real because often expressed as if it involved only a process of interpretation. The effect given by the courts to the "iron safe" clause of fire insurance policies is a striking instance. Liverpool Insu'ance Co. v. Kearney (1900), 180 U. S., 132. Insurance provisions for the keeping of "account books" have been subject to substantial modification at the hands of the court. Mord v. N. Y. Indemnity (1926), 214 N. Y. Supp., 693. 322 The common "mortgagee clause" does not mean at all as a matter of law what its plain meaning is as a matter of grammar. 'Coykendall v. Blackmer (1914), 161 App. Div., 11. Provisions in insurance policies that various acts on the part of the company shall not constitute a waiver of its immunity under the contract have been subjected to decisive judicial control. Wood v. The American Fire Ins. Co. (1896), 159 N. Y., 382. An agreement in a policy to limit the jurisdiction in which suits against the company may be brought has been held void. McLean v. Tobin (1908), 58 N. Y. Misc., 528; Darling v. Protective Assurance Co. (1911), 71 N. Y. Misc., 113; Benson v. Eastern Building & Loan Association (1903), 174 N. Y., 183; Sliosberg v. N. Y. Life Insurance Col. (1925), 125 Misc., 417 (Rev. in part on other grounds, 217 App. Div., 685). Policyholders are held powerless to waive advantages given them by statute such as the statutory provision that the true value of the property is to be considered in estimating the damage resulting from a fire. Reilly v. Franklin Ins. Co. (1877), 43 Wis., 449. So a stipulation for arbitration in conflict with a statute has been held void. Thompson v. St. Louis Ins. Co. (1877), 43 Wis., 459. A provision in an insurance policy that the interest of the insured in the policy is not assignable without the written consent of the insurer, and that the policy should become void in case of any transfer or termination of the interest of the insured, either by sale or otherwise, without such consent, was held by the court in Mellen v. The Hamilton Fire Ins. Co. (1858), 17 N. Y., 609, not to apply to an assignment after loss, which in reality is only an assignment of a debt, which it would be unreasonable to prohibit. German Alliance Ins. Co. v. Lewvis (1914), 233 U. S., 389; Insurance rates regulation was here upheld, the court saying (p. 416): 323 'We may venture to observe that the price of insurance is not fixed over the counters of the companies by what Adam Smith calls the higgling of the market, but formed in the councils of the underwriters, promulgated in schedules of practically controlling constancy, which the applicant for insurance is powerless to oppose, and which, therefore, has led to the assertion that the business of insurance is of monopolistic character and that 'it is illusory to speak of liberty of contract.' "? 5. There is broad recognition of the principle that contracts rooted in disparity of bargaining power will be modified by the courts in the field of life insurance. Here again much of the modification has taken place under the guise of construction, but it is none the less real for this reason. The common rule as to how representations of life insurance policies are to be handled is an example. When the applicant's statement that his parents did not die of tuberculosis is construed to mean that he does not know that his parents died of this disease, an actual change in the contract has been made by the court. Here again courts have been reluctant to allow the insured to waive benefits secured to him by statutes although the benefits are such that they would be held to be waivable if disparity of bargaining power were not present. Statutory provisions that representations should not be considered to be warranties have been held to be nonwaivable. Emery v. Piscataqua Ins. Co. (1864), 52 Maine, 322, 326; White v. Conn. Mutual Ins. Co. (1877), 5 Cent. Law Jour., 486. No attempt has been made to mention any but a few of the great multitude of things with respect to which the courts have altered contracts of insurance. Only random and sparse samplings have been set out. 6. The principle of altered contracts rooted in disparity of bargaining power has had most extensive application in 324 the law of carriers. A few type situations are as follows: Newt York Central Railroad Co. v. Lockwood (1873), 17 Wall., 357, is a holding that a common carrier could not take a valid agreement from a drover absolving it from liability to the shipper for injuries resulting from the carrier's negligence. Gulf Transit Co. v. U. S. (1908), 43 Ct. Cl., 183, held that as a general rule it is contra bonos mores to permit contracts against liability for the negligence of servants acting within the scope of their employment, the court stating that the principle applies to carriers, warehousemen, and all corporations and persons engaged in receiving and caring for the property of others. In point here are the cases modified by the New York Public Service Commission Law (Laws of 1910, Chap. 480, p. 38) and the Harter Act nullifying stipulations in bills of lading exempting the carrier from liability for negligence. Here we have one of a plethora of "dotted-line-contracts" used in modern industry and subject to judicial control. Like supervision has been exercised over the contracts made by steamship companies. In Liverpool Steamship Co. v. Phenix Ins. Co. (1889), 129 U. S., 379, the court held that a common carrier by sea cannot exempt itself from all liability for loss or damage by perils of the sea arising from the negligence of its servant even though the shipper voluntarily signs a stipulation to this effect. 7. Recognition of the principle that contracts rooted in disparity of bargaining power are subject to judicial control is to be found throughout the field of public utility law. Early examples of its application involve telegraph companies. A telegraph company may not enforce a stipulation that suits for damages caused by it cannot be maintained unless a claim is presented within an unreasonably short period. Western Union Tel. Co. v. Blanchard 325 (1882), 68 Ga., 299. Western Union Tel. Co. v. Reynolds (1883), 17 Va., 173, 184. A telegraph company cannot by contract relieve itself from liability caused by gross negligence. Krivitsky & Cohen Corpi. v. Western Union Tel. Co. (1927), 129 N. Y. Misc., 431. The application of the same principle to other types of public utilities might be instanced. Cases of this sort are likely to be found less and less frequently in the books because public utilities are coming so generally to be regulated by commissions. The regulations and rulings of these commissions are adjusting the disparity of bargaining power between public utilities and their customers. Frequently this commission control takes the form of prescribing the type of customer contract to be used but the whole movement for the regulation of public utilities by commissions is itself a monumental recognition of the necessity for the intervention of the law to equalize the agreements between utility and customer because of the disparity of their bargaining power. 8. The relations between banking institutions and their customers have congealed in an atmosphere of disparity of bargaining power with the result that courts are having to supervise the standardized contracts entered into between banks and their customers in order that justice may not miscarry. In 27 Col. Law Rev., 294, there are listed and cited numerous cases where courts have stepped in to modify or set aside agreements exacted from depositors to absolve banks from liability for negligence in losing checks deposited for collection. Rules in savings bank books for the protection of the bank from any liability to the depositors for paying funds to unauthorized persons presenting the book have been relieved against by courts. The courts have reached this result in the teeth of express agreements by the depositors 326 to subject themselves to such rules. Kummel v. Germa~nia Savings Bank (1891), 127 N. Y., 488; Fiero v. Franklin Savings Bank (1924), 207 N. Y. Supp., 235, 244. A bank rule requiring a depositor to appear in person to withdraw his account is ineffectual to prevent an assignee's doing so because, it is said, the bank is a debtor and "cannot make rules and regulations which will limit the right to assign the debt." Bank of United States v. Public Bank (1915), 88 N. Y. Misc., 568. It is quite clear that two individual tradesmen could by agreement render an ordinary debt non-assignable. 9. The field of corporate suretyship discloses examples of the courts regulating bargains rooted in disparity of bargaining power that justice may be done. Where the dominant bargaining party is the professional or compensated surety, its contracts have been modified by courts time and again to eliminate lopsidedness. The situation here is that the "professional gathers experience and clause by clause builds an agreement wholly jughandled in effect, but which, adopted by all the professionals becomes the only form of bargain available" (15 Amer. Econ. Rev. 665, 673). In some cases the courts have expressly avowed that no different results follow from such contracts than are warranted by general rules of contract law, yet, these courts have been astute to sense the inequality in the positions of the respective parties and, by a process described as interpretation, have modified the substance of these contracts. Leading cases on this point are Remington v. Fidelity and Deposit Company (1902), 27 Wash., 429; Hormel v. American Bonding Co. (1910), 112 Minn., 288; Bross v. MacNicholas (1913), 66 Ore., 42; Hull v. Mass. Bonding and Ins. Co. (1912), 86 Kan., 342. 10. The relation between the landlord and the tenant in the field of domestic housing in large urban centers is characterized by disparity of bargaining power. The 327 relation has become standardized into printed lease forms containing a multitude of elaborate safeguards all running in favor of the landlord. It is this fact, coupled with the fact of a shortage in housing, that rendered constitutional recent legislation regulating domestic leaseholds and rents. When landlords resorted to the device of exacting agreements of tenants to waive the benefit of the emergency rent laws of this state, it was held that such agreements were invalid even though no section of the rent laws was applicable. In St. Andrew's Parish v. Gallagher (1923), 200 N. Y. Supp., 590, the court said, "if tenants who are obliged to seek new houses could obtain them only upon condition that they would agree to waive benefits, the acts or statutes would be effectually nullified. To give tenants the full benefits of these laws, they must be protected against the acts of over-reaching landlords who seek to nullify the statutes by requiring tenants who are forced to make new leases to agree to their provisions." If there were equality of bargaining power these sentences would not correctly describe the situation. Legislative recognition of disparity of power to contract advantageously appears in the Laws of 1926, Chap. 842, page 8, wherein the emergency rent laws were amended to provide that a waiver of the benefits of these laws should be void as against public policy. Similarly, courts have refused to give effect to certain exemptions in a lease freeing a landlord from liability for damages, caused a tenant by machinery or pipes under the landlord's sole control. Kessler v. The Ansonia (1927), 221 N. Y. Supp., 488. There the landlord's failure to repair a defective radiator in an apartment, after the tenant gave due notice that steam was escaping therefrom, constituted continued negligence for which the landlord was liable, notwithstanding a provision of the lease exempting the landlord from liability for damages resulting from leakage of water, steam, or gas, or for any other 328 cause in any event. The landlord could not relieve himself from duties arising from his sole control of the building. This decision was not the exercise of a new power of the court, nor was the propriety of giving the greatest possible effect to the contract of the parties sorely strained or disturbed by the administration of justice as determined by policy rather than by the verbal requirements of the agreement. In Security Mortgage Co. v. Thompson (1910), 66 Misc., 151, the court held void a provision in a lease stipulating that, if a tenant failed to pay his rent, the landlord might enter and remove all persons, using such force as he deemed proper without being liable to a criminal prosecution therefor. The remainder of the lease was held to be enforceable. 11. The fact is not generally recognized but it is none the less true that the relationship between the large corporate seller and the individual buyer of commodities is entering a regime of supervision by the courts. Such supervision is found in New Prague Flowr Mill Co. v. Spears (1922), 194 Ia., 417, where there was involved a printed form contract of some four thousand words running over about nine pages which "includes * * a multitude of conditions, stipulations, reservations, exceptions and waivers skillfully devised to restrict the liability of the seller within the narrowest possible limits and to leave no evidence of escape from liability on the part of the purchasers." Here the courts supervised the contract and refused to give any effect to a provision that the damages to the seller should be assessed as of the date when he sees fit to regard the contract as broken, rather than as of the date of actual repudiation by the buyer. The holding in Nichols and Shepard Co. v. Charlebois (1901), 10 N. D., 446, cannot be accounted for except as it is taken to stand for a recognition of disparity in bargain 329 ing power between the vendor and the purchaser of agricultural machinery. In this connection should be compared Roach v. 'wurtis (1908), 191 N. Y., 387, holding invalid a provision in a conditional sales contract authorizing the vendor to sell repossessed property at private sale contrary to the Lien Law. This general question is considered in an able discussion in 27 Col. Law Rev. 430, where one of an important group of recent cases is discussed. A part of that discussion follows: "Automobile manufacturers have generally been able to impose upon distributors unusually one-sided contracts, whose utilization in itself discloses inequality of bargaining power. In Weil v. Chicago Pneumatic Tool Company a typical agreement of this sort was litigated. The dealer had promised for the space of one year not to sell any other motor truck without the company's consent, and in addition to order at least twenty-five trucks. The dealer was required to make a deposit of $1,250, receiving $50 credit on each car delivered. The manufacturer agreed to sell to no other dealer within the assigned territory, and 'to ship any and all cars ordered from it by the dealer: Provided, however, the company shall not be liable in any way for failure or delay in making shipments caused by strikes, fires, or other causes beyond its control, or delays occurring in the manufacture of its product or in the manufacture and delivery of parts thereof, and the Company shall not be liable for any loss of profits or damage for its failure to deliver goods ordered, or for the cancellation of this agreement.' The manufacturer sued to enforce payment of a promissory note given in part payment of trucks which had been delivered. The dealer filed a cross-complaint asking that he be credited with the unused portion of his deposit, and demanding damages for failure to deliver other trucks ordered. Under the direction of the court, the jury allowed the dealer credit for the unapplied portion of his deposit, but refused to allow 330 him anything for loss of profits or damages for refusal to fill his orders. On appeal by the dealer the judgment was affirmed. The court below, and the majority of the affirming court based their decision upon a socalled lack of mutuality; it is not likely that the court intended by this that there had been no bargain. The language of the court is more than usually explicit in its inquiry into the adequacy of the consideration: 'What does it matter that the dealer may have assigned to him exclusive territory in which to sell the Company's goods if "the Company shall not be liable for any loss of profits or damage for its failure to deliver goods ordered, or for the cancellation of this agreement?" ' This is by no means as certainly a rhetorical question as the court seems to think; the dealer acquired in the manufacturer's self interest a considerable sanction to the agreement to deliver cars, even if the court's construction of the exemption clause is accepted. This sanction was recognized in the concurring opinion of the Chief Justice, who based his concurrence on the protection afforded by the exemption clause rather than on the unenforcibility of the contract, maintaining that there was a valid and enforcible contract because of the exclusive territory." The foregoing eleven groupings of cases represent merely wide and random samplings to show how firmly established in our law and how widely prevailing is the principle that, where contracts otherwise valid are rooted in disparity of bargaining power, courts step in on the side of the lower balance and relieve against contracts too heavily weighted in favor of the party occupying a position of dominance in the bargaining struggle. APPLICATION OF THE PRINCIPLE TO EMPLOYMENT CONTRACTS. The foregoing discussion has shown that the principle of regulating contracts because of inequality of bargaining power pervades our entire law. The economic insecurity of the workman's position is so great that it is not re 331 markable to find that this principle has had a long standing and frequent application by judicial modification of the contractual rights and liabilities of employers and employees. In a case decided in 1415 (Anon. Year Book 2 Hen. V fol. 5, pl. 26), we find a most vehement condemnation of a promise binding a workman not to ply his trade within the plaintiff's town. Promises made by workmen not to compete with their employers after the end of a term of employment have been subjected to very close regulations by the courts from that time to the present. Indeed, current thought on the matter would strike down all such promises except so far as they are necessary to protect the employer against disclosure of his trade secrets and trade connections. Younger, L. J., said, passim, in Attwood v. Lamont (1920), 3 K. B., 571: "Now, we are here dealing with a branch of the law which has at all times been peculiarly susceptible to influence from current views of public policy. Its modern developments have grown up under the shadow of the 'laissez faire' school of economics, and, until recently, have, in consequence, been uniformly in the direction of extending the principle of freedom of contract in relation to such bargains, a tendency that has not yet ceased to be operative when the covenant in question is one exacted from a vendor on the sale of the good will of his business. But current opinion on the relations between employers and employed has moved rapidly in recent years, and thus it is that the House of Lords, itself bound by comparatively few of the numerous previous decisions on the subject, took the opportunity in 1913, when the validity of a restrictive covenant entered into by an employee came in question before it, to examine the whole problem afresh, with the result that the supreme tribunal, for the guidance of every court, has now placed upon the permissibility of such covenants a limit which the general interest, including, of course, that of employees themselves, had not previously seemed to require. In consequence it must now, I think, be recognized in all 332 courts that there is every difference in the matter of its validity between such a covenant as we find here embodied in a, contract of service and the same covenant when found in an agreement for the sale of good will; and the dispute between the parties to this action must be decided with due regard to that difference. This declared difference is, as I have said, a matter of recent development, and although it has not been put forward by the House of Lords as a new departure, its effect upon previously accepted views has already been as complete as if it were. Moreover, it may be doubted whether all its incidental consequences have even now become apparent. `" * * The House of Lords in Mason v. Provident Clothing & Supply Company (1913), A. C., 724, and 1916 in the subsequent case of Morris v. Saxelby (1916), 10 C., 688, defined the limited permissible effect of such a covenant; and the difference between it and one entered into by a vendor was then at length clearly emphasized. The subject is thus introduced by Lord Haldane in his speech in Mason's Case: 'It is no doubt as a general rule wise to leave adult persons to make their own agreements and take the consequences, but in the present class of case considerations of public policy come in and make it necessary for the court to scrutinize agreements like the one before your Lordships jealously. The practice of putting into these agreements anything that is favourable to the employer is one which the courts have to check, and the judges have to see that Lord MacNaughten's test is carefully observed.' Lord Shaw in the same case expresses the view that there is much greater room for allowing as between buyer and seller a larger scope for freedom of contract and a correspondingly large restraint in freedom of trade than there is for allowing a restraint of the opportunity for labour in a contract between master and servant or an employer and an applicant for work." Lord Moulton said (p. 745) in Mason v. Provident Clothing & SuZpply Comnpaciny (1913), A. C., 724: "* * * I do not doubt that the court may, and in some cases will, enforce a part of a covenant in 333 restraint of trade, even thougYh taken as a, whole the covenant exceeds what is reasonable. But, in my opinion, that ought only t~o be done in cases where the part so enforceable is clearly severable, and even so only in cases where th~e excess is of trivial importance, or merely technical, and not a part of the main purport and substance of the clause. It would in my opinion be pessiini ewemipli if, when an employer had exacted a covenant deliberately framed in unreasonably wide terms, the courts were to come to his assistance and, by applying their ingenuity and knowledge of the law, carve out of this void covenant the maximum of what he might validly have required. It must be remembered that the real sanction at the back of these covenanats is the terror and expense of litigation, in which the servant is usually at a. great disadvantage, in view of the longer purse of the master. * * * and the hardship imposed by the exaction of unreasonable covenants by employers would be greatly increased if they could continue the practice with the expectation that, having exposed the servant to the anxiety and expense of litigation, the court would in the end enable them to obtain everything which they could have obtained by acting reasonably." Nor have Anmerican courts failed to recognize this situation when dealing with promises exacted from employees by employers. In Men.)ter Co. v. Brackc (1920),ý 147 Minn., 407, 180 N. S., 533, the plaintiff hired defendant who agreed to' work for the plaintiff, and, for four years after the term of employment, not to engage in a similar business. The plaintiff sued to restrain the defen-dant from opening a similar business. An injunction was denied. The court said (pp. 408, 411): "The contract of employment was in writing, signed by both parties. It contains numerous covenants and agreements to be kept and performed by Brock; but we look in vain f or one to be carried out or kept by plaintiff. It does not agree to keep him in its employ f or a single day nor does it, in terms, 334 agree to pay the salary he bound himself to accept. * * * It is readily seen that courts are and should be cautious in complying with the request of an employer to enjoin a former servant who has violated a covenant of this sort from earning a livelihood. It may well be surmised that such a covenant finds its way into an employment contract, not so much to protect the business as to needlessly fetter the employee, and prevent him from seeking to better his condition by securing employment with competing concerns one who has nothing but his labor to sell, and is in urgent need of selling that, cannot well afford to raise any objection to any of the terms in the contract of employment offered him, so long as the wages are acceptable. Therefore some proof of irreparable damage ought to be adduced in such a case before equitable relief by injunction will issue." Here the court squarely takes judicial notice of a dottedline-contract with its antecedent inequality of bargaining power. See also Herreshoff v. Boutineau (1890), 17 R. I., 2 where the court said (p. 7): "Covenantees desiring the maximum of protection have, no doubt, a difficult task. When they fail, it is commonly because like the dog in the fable they grasp at too much so. lose all." The New York Court of Appeals scrutinizes limitations upon workmen's freedom to engage in their trade or occupation as is evidenced by Clark Paper Mfg. Co. v. Stenacher (1923), 236 N. Y., 312, where an unskilled workman's promise not to enter like employment for 8 years after leaving his employer was held to be an unreasonable restraint of personal liberty, and therefore void. There are two groups of cases in apparent conflict when viewed superficially, but, when examined more closely, turn out to rest together on this principle that the ineffectiveness of the workman's bargaining position results in 335 the courts relieving him from harsh stipulations in his work or other contract. Statutes have prohibited the assignment of future wages and they have been sustained by the courts; Iternatiopal Text Book Co. v. Weissenger (1902), 160 Ind., 349; Chicago & E. R. Ry. Co. v. Ebersole (1909), 87 N. E., 1090 (Ind. Sup. Ct.). A statute requiring the recording of such assignment and the acceptance of it in writing by the employer, accompanied by the written consent of the wife of the employee has been held valid in The Mutual Loan Co. v. Martell (1911), 222 U. S., 225. The Supreme Court of Massachusetts in McCalluln- v. Simplex Co. (1908), 197 Mass., 388, held valid a statute limiting the right to make assignments of future earnings to a period not exceeding two years. These statutes and the cases sustaining them rest upon the fact that the wage earner is peculiarly susceptible to impositions and wrongs by those lending him money or otherwise advancing him credit. Where, however, it is necessary, in order to make sure that the workman may collect his wages in cash rather than "truck," it has been held that the workman's agreement that his claim for wages should be non-assignable, is invalid and opposed to public policy, this result being reached without aid of statute. See Aldridge L. Co. v. Graives (1910), 131 S. W., 846, and Bewick Lumber Co. v. Hall (1894), 94 Ga., 539. WTe have a most substantial recognition of the necessity for supervising the work contract because of disparity of bargaining power in those cases which held, without the aid of statute, that an employer could not by contract with his employee exempt himself from liability for torts. Such are: Campbell v. Chicago Ry. Co. (1910), 149 ml.. App. 120; Canr-aday v. Atl. Coast Line Co. (1906), 143 N. C. 439; Dodd v. Central R. Co. (1912), 82 N. J. Law 524; Farrel v. Blackbird Coal Co. (1911), 150 No. App. 552; Hartman v. Chicago Ry. Co. (1915), 192 Mo. App. 271; Jewell v. Kansas City Bolt & Nut Co. (1910), 231 Mo. 176; Olson v. Neb. Tel. Co. (1909), 85 Neb. 331; koesner v. Her. 336 man (1881), 8 Fed. 782; Snipes v. Southern Ry. (1908), 166 Fed. 1; Twaits v. Penn. R. Co. (1910), 77 N. J. Eq.; Vancil v. Ill. Collieries Co. (1909), 152 Ill. App. 146; Mumford v. Ry. (1905), 128 Iowa 685; Chicago, R. I. & P. Ry. Co. v. Maucher (1919), 248 U. S. 359. Even those courts not adopting the view represented by the foregoing cases subject the contrary rule to strict limitations; Campbell v. C., R. I. L& P. Ry. (1909), 243 111. 620. In the case of Schlemmer v. Buffalo, Rochester c& Pittsburg Ry. Co. (1907), 205 U. S. 1, the plaintiff's intestate had been killed while trying to couple a shovel car to a caboose. Holmes, in delivering the opinion of the court holding for the plaintiff, again enunciated the illusoriness of the liberty of contract theory (pp. 12-13)44* * * when a statute exonerates a servant from the former (assumption of risk), if at the same time it leaves the defense of contributory negligence still open to the master, a matter upon which we express no opinion, then, unless great care be taken, the servant's rights will be sacrificed by simply charging him with assumption of the risk under another name." The risk assumed by an employee when he knowingly submitted to it by engaging in dangerous work around dangerous machinery was once thought (p. 12): " * * to be assumed because a person who freely and voluntarily encounters it has only himself to thank if harm comes. Probably the modification of this general principle by some judicial decisions and by statutes like Section 8 is due to an opinion that men who work with their hands have not always the freedom and equality of position assumed by the doctrines of laissez-faire to exist." In Johnston v. Furgo (1906), 184 N. Y. 379, the plaintiff signed an employment contract with the defendant express company, agreeing in a separate writing to relieve 337 the defendant from liability to the plaintiff for personal injuries resulting from the company's negligence which he might receive in the course of his employment. This agreement the court held void as against public policy, even though there was a consideration for it. And the court, said p. 385: "The employer and the employed, in theory, deal upon equal terms; but practically, that is not always the case." A provision in a contract of a railroad relief department for forfeiture of benefits, in case of suit against the company for damages arising from or growing out of the death of the member, was held against public policy and was disregarded in C., B. & Q. Ry. Co. v. Healy (1906), 76 Neb. 786. For an interesting collection of like cases and a discussion of the principle of disparity in bargaining power in labor cases, see 27 Col. Law Rev. 430. In White v. Middlesex Ry. Co. (1883), 135 Mass., 216, the plaintiff sued to recover $65.00 deposited by him with defendant-corporation under a written contract providing that the plaintiff, who was about to enter defendant's employ as a conductor, should, upon entering such employment, deposit the sum of $65.00 to be retained by defendant together with interest accrued thereon, and all wages that might be due him, as security for the proper discharge of his duties; that, in case of a breach by plaintiff, the defendant's president "shall be sole judge between the company and the conductor whether the company is entitled to retain the whole or any part of said $65 and interest, and all wages that may at any time be due him, as liquidated damages." Action was held maintainable though the president adjudged that the railroad was entitled to retain the whole 338 deposit. The court held the provision of the contract invalid. How far the courts have carried the principle of supervising contracts rooted in disparity of bargaining power where the. relation of employer and employee is involved is well shown by a recent New York case. In an injunction suit to restrain defendants from performing their vaudeville acts for other managers in breach of a contract with the plaintiff, the court refused to hold the defendants to their original contract, Shubert Theatrical Co. v. Gallagher and Shean (1922), 200 App. Div. 596. This evidences the crystalized attitude of courts towards contracts of hire, formed and standardized by those in a position to dictate their terms. In this case the defendants had signed a contract which consisted of the standard form of a "run of the play" contract of the Actors Equity Association, and of an attached letter containing terms binding the promisors to the will of the promisee. Though at the time of this action the defendants' fame had put them on a parity of bargaining power with the plaintiff, still the court refused to enforce the bargain. Particular attention is now called to a group of cases where the employer had bound himself to employ an employee for a fixed period, ranging in these cases up to thirty days, the employee binding himself for a much longer fixed period. Such an obligation on the part of the employer satisfies every requirement of technical consideration. Notwithstanding this fact, the court in these cases held that the employee was not bound by his promise to work for the longer fixed period. Here we have a most explicit recognition of disparity of bargaining power and square holdings that as a result of such disparity contracts otherwise valid are void. Representatives of this group of cases are the following: McCall v. Wright (1910), 198 N. Y. 143. Here a contract for a specified term, which was also terminable by the master but only on thirty days notice, and which provided that the servant should not engage in other employi 339 ment during the term, was supervised and held to bind the servant only so long as employment thereunder lasted. The court refused to keep the servant to his verbal promise not to engage elsewhere during the full specified term. Dockstader v. Reed (1907), 121 App. Div. 846. The plaintiff endeavored to enforce a negative convenant against the defendant, a singer, and the court, denying the injunction, said (p. 848) "The contract gave the plaintiff the right to discharge the defendant without recourse if his services were unsatisfactory and also the absolute right to discharge without cause, upon two weeks' notice * * *." Again, the court said (p. 848) equitable relief "will not be granted where the party seeking relief is not specifically bound by the contract so that the obligations are reciprocal and enforcible." Weegham v. Killefer et al. (1914), 215 Fed. 168, affirmed 215 Fed. 289. This was an action to enjoin a ball-player from breaking his contract of employment and also to prevent another baseball club from engaging him pursuant to a contract which he had made with the defendant ball club. The contract under which the ball-player was engaged, gave the employer the privilege of discharging him on giving ten days' notice. The court, in speaking of such a contract, said (pp. 170-171): "* * * It lacks mutuality, because the Philadelphia club (defendant) may terminate it upon ten days notice any time while the other party has no such option and is bound during the entire contract period. A contract exists, but, if broken by either party, the other is remediless because the courts are helpless to either enforce his performance or award damages for his breach." The court cited to sustain this proposition Metropolitan LExhibition Co. v. Elwing (1890), 42 Fed. 198; Brooklyn 340 Baseball Club v. McGuire (1902), 116 Fed. 782; Metropolitan Exhibition Co. v. Ward (1890), 9 N. Y. Supp. 779; Arena Athletic Club v. McPortland (1899), 41 App. Div. 352; Rutland Marble Co. v. Ripley (1870), 10 Wall. 339. The group of cases last cited go further than it is necessary to go to dispose of the plaintiff's claim that the promises executed by its employees are enforceable. It has been shown in Point XIII of this Brief, that the plaintiff gave for these promises no consideration which was not illusory. Had it put some limitation upon its freedom to discharge these employees and had thereby made a promise of some substance, even this would not have made its workers' promise enforceable because, in the group of cases last cited, a consideration of some substance was given, but, because of the inequality of the bargain flowing from a disparity of bargaining power, the courts held the employees in those cases to be free from contracted obligation. Amnerican League v. Chase (1914), 86 Misc. 441. This was an application by the plaintiff to enjoin the defendant, a professional ball-player, from violating his contract with it. The contract contained a clause permitting the plaintiff to discharge the defendant upon giving ten days notice to him. The contract also contained an option clause permitting the plaintiff to renew the contract from year to year even though the defendant could be discharged on ten day's notice. The contract incorporated in its provisions, agreements, rules and regulations of a national baseball association which permitted a player to be farmed out to other clubs and also to be sent to minor leagues all without his consent. The court, after analyzing the rules and agreements of the national association, said (p. 451): "Thus the baseball player is made a chattel; the title of the club to the player, if he be a player of a major league, is made absolute; if he be a player of a minor league, its title is absolute, except in so far as the draft provisions are concerned." 341 And (p. 453), it said: "But why should a player enter into a contract when his liberty of conduct, and of contract, is thus curtailed? The answer is that he has no recourse. He must either take the contract under the provisions of the national agreement whose organization controls practically all of the good ball players of the country or resort to some other occupation." Grounds for denial of relief were thus stated (p. 456): "First: That no court can with reason be called upon to do a vain and useless thing, for, if the court issues the injunction, the person in whose favor the injunction may issue might render nugatory the action of the court by terminating the contract; and, "Second: That the contract, being unilateral, lacks mutuality in that the employer having the right to terminate the contract, the employee is remediless when such right is exercised. He can neither secure specific performance of the contract in an action against the employer in a court or equity, nor damages in an action at law; hence, he is remediless, and, therefore, while a court of equity will enjoin the breach of a negative covenant in a contract which contains no clause permitting a termination of the contract upon notice, they will not intervene by injunction where contracts contain such a clause." Finally, we come to a case squarely in point and all but identical with the case before the court. It is the leading case of Kimberrley v. Jennings (1836), 6 Simon's 340, decided in the English High Court of Chancery. Because of its importance and its decisive bearing on the present litigation, it will be stated fully, quoted from liberally, and the approval which it has received at the hands of American courts and legal scholars will be set out. In this case the plaintiffs were factors. They executed a contract, of employment with the defendant as follows: the plaintiffs agreed to employ the defendant as clerk, 342 salesman, and bookkeeper for 6 years, and the defendant agreed to work for the plaintiffs in the aforementioned capacities for six years. The contract contained a provision that the defendant should not enter any other employment during that period. The contract also provided that in case the defendant should, during the term of employment, become incapable, from illness or indisposition, of serving the plaintiffs, or should he absent himself from or neglect the service of the plaintiffs, the plaintiff might terminate the defendant's employment. The defendant sought work elsewhere, and the plaintiffs sought to enjoin him from working for anyone else. The court held that, although a negative stipulation in a contract of employment, not to enter another's employ, can be specifically enforced, and although the defendant would not be bound by the negative stipulation after discharge by the plaintiff, yet, since this was a hard bargain, the injunction was denied. The court said (p. 349): "But attending to the whole of the Agreement, the true Construction of it seems to be that, during such portions of the term as the Defendant, should continue in the Service of the Plaintiffs, he should not enter into any other Employment; but, if he should be dismissed during the term, then he might engage himself in the Service of other Persons. Supposing the Agreement to be such as I have stated it to be, still it would afford a strong reason against the interference of the Court; for it would be what is commonly termed, a Hard Bargain; inasmuch as the Agreement is so constructed that if, from illness or any other cause over which the Defendant could have no control, he should become incapable of serving the Plaintiffs, they have the option of discharging him." And again (p. 350): "Nothing could be more harsh towards a Man dealing with' great Traders, than that he should be al 343 lowed to enter into an Agreement which places him so entirely in their power. And, though events have happened (i. e. his quitting the service) which have precluded the Plaintiffs from availing themselves of this harsh Stipulation, still I must look at the Agreement as it was originally concocted, in order to see whether, on the whole, it was such as this Court would countenance." And further (p. 352), "and, lastly, it is a Hard Bargain, and, therefore, this Court will not interfere." Thus, it can be seen that, although the right to discharge in the Kimberley case is nothing like as great as in the instant case, where in addition to a right to discharge for incapacity, illness, neglect, or absence as in the Kimberley case, there is a right to discharge for change in economic conditions, insubordination, intoxication, expulsion from the Brotherhood, etc., yet the court in the Kimberley case refused the injunction. The Kimberley case has been approved by the American courts and by all modern text writers who have considered it. The following authorities have cited Kimberley v. Jennings with approval. 1. Pomeroy's Equity Jurisp-dence, 2nd Ed., Vol. 4, page 3332: "The elements which peculiarly affect the equitable character of the agreement and of remedy are the following. The contract must be perfectly fair, equal, and just in its terms and in its circumstances. The contract and the situation of the parties must be such that the remedy of specific performance will not be harsh or oppressive." (Kimnberley v. Jennings, cited for this position.) 2. Clark on Equity (1919), page 81 (8): 344 "But where, as in Lumley v. TWaagner, the defendant, in order to earn anything, must either perform the affirmative undertaking, or else go far enough away not to injure the plaintiff, this hardship on the defendant is so great that courts of equity should not, and usually do not, interfere." (Kimberley v. Jentnings, cited.) 3. Bispham, Equity (9 Ed.), 1915, page 385: "Equity, moreover, is loth to enforce a contract in restraint of trade, even though it be good at, law, if the terms are hard or even complex." (Citing Kimberley v. Jennings.) American cases citing Kimberley v. Jennings, with approval are: Buck v. Smith (1874), 29 Mich. 166, at page 172; Godwin v. Collins (1868), 3 Del. Ch. 189, at page 205, where Kimberley v. Jennings, is discussed at length. In the New York case of Lynch v. Bischof (1862), 15 Abb. Pr. 357, the court cites Kimberley v. Jennings, with approval for the proposition, that (p. 359): "A contract to be enforced specifically must be fair and just in all its parts, and not a hard or unconscionable bargain." No judicial authority in addition to this great case is needed to dispose of the plaintiff's claim that it is entitled to have the Contract which it has imposed upon its employees, which bristles with harshness and inequity of undertaking, protected by a court of equity charged with the duty of seeing that equity is done. The harsh and unjust provisions of the Contract involved in this suit have already been discussed at length. The cases hereinafter discussed are illustrative of the type of undertaking which the courts condemn, even though there were no fraud and no mistake in the consensual arrangement between the parties. It will be seen that both law 345 and equity have refused to sanction certain provisions of contracts simply because of their inequitable and harsh character, resulting from disparity of bargaining power, and this in spite of the fact that such contracts were otherwise valid and lawful. Indeed such harshness is often fatal though no disparity of bargaining power is present. This supervisory attitude of courts reflects nothing more than the commonly accepted and prevailing notions of what is just and fair among right-minded men. It will also be noticed that the principle enunciated by these cases is not a recent origin. In Metropolitan Exhibition Co. v. Ewing (1890), 42 Fed. 198, the court, passed upon an arrangement voluntarily made between a professional baseball player and a baseball club which contained a reserve or option clause giving the plaintiff club the right to bargain for his services for another season. A contract between the plaintiff club and other clubs in the National Association required each member of the Association on October 10th of each year to circularize all other clubs in the Association with the names of those players whom it had placed upon the reserve list, pursuant to the provisions of the reserve or option clause in its contract with its ball players. The agreement between the clubs in the National Association precluded other clubs until after October 20th of that year from negotiating for the services of a player whose name was placed upon the reserve list. The effect of this agreement between clubs prevented a professional ball player who was placed upon the reserve list from negotiating with other clubs for a period of 10 days. The court viewed with extreme disfavor the arrangement which was so made, saying (p. 199): "It must be one in which the plaintiff comes into the court with clean hands, and which is not so oppressive as to render it unjust to the defendant to enforce it. It must be one in which there are mutual promises, or which is founded on a sufficient consid 346 eration. It must be one of the terms of which are certain, and in respect to which the minds of the parties have distinctly met, so that there can be no misunderstanding of their rights and obligations." And again the court said (pp. 204, 205): "* * * The effect of these provisions is that, when the club has exercised its privilege of reservation, no other club is permitted to negotiate with the player; but the club which has placed him upon the reserved list, and no other, is then at liberty to enter into a contract with him to obtain his services for an ensuing year. Consequently the right of reservation is nothing more or less than a prior and exclusive right, as against the other clubs, to enter into a contract securing the player's services for another season. * ** As a coercive condition which places the player practically, or at least measurably, in a situation where he must contract with the club that has reserved him, or face the probability of losing any engagement for the ensuing season, it is operative and valuable to the club. * * * It may be that heretofore the clubs have generally insisted upon treating the option to reserve as a contract by which they were entitled to have the services of the player for the next season upon the terms and conditions of the first season, and even requiring him to enter into a new contract containing the option of reservation; and it may be that the players have generally acquiesced in the claims of the clubs. However this may be, the players were not in a position to act independently; and, if they had refused to consent to the terms proposed by the clubs, they would have done so at the peril of losing any engagement." In Kelley v. York Cliffs Improvement Co. (1900), 94 Me. 374, the plaintiff brought an action of specific performance to compel the defendant company to transfer to him, pursuant to a contract, two parcels of real estate worth approximately $48,000. The plaintiff claimed the privilege, pursuant to the by-laws of the corporation, of 341 tendering in discharge of his obligations under the contract with respect to the payment of the price, stock of the defendant company at par. The stock so tendered by the plaintiff at the time thereof was worth but a few dollars a share, although the plaintiff insisted that it should be received in discharge of his obligation under the contract at par, or $100.00 per share. The court denied specific performance because the effect of the contract was harsh and unfair. It said (p. 379): "The plaintiff would obtain land of considerable money value for stock of little money value while defendant would suffer loss and be seriously crippled in resources. These inequalities are enough to showy that the court should not enforce specific performance." Another well-known situation is that relating to provisions in a contract for liquidated damage which courts refuse to sanction unless the stipulated sum reasonably approximates the actual damage sustained. (Colebrook Realty Co. Inc. v. Goldowater (1925), N. Y. Supp. 646; Chaude v. Shepard [1890], 122 N. Y. 397.) Still another common situation in which courts relieve a party from the factual obligation which he has assumed is that in which, to avoid forfeitures, the courts construe the language of an instrument to impose a promise upon the party rather than to create a condition, the non-performance of which would result in grave hardship. In Hayes v. Hayes (1852), 8 La. Ann. 468, it was held that any agreement by which the plaintiff had undertaken to relieve the defendant from liability for future defamation of the plaintiff was invalid. In the Mississippi and Missouri Railroad Co. v. Cromwell (1876), 91 U. S. 643, the court refused to compel the defendant corporation to transfer upon its books stock which the plaintiff had purchased at a sale for the sum of $50.00, which he claimed, should be transferred upon the 348 books of the defendant company because in a re-organization of the company he would be entitled as stockholder of record of the stock in question to receive approximately $30,000.00. The court held that it would not aid a plaintiff to reap such great benefits by a bargain which he had purchased at such an inadequate price, saying on page 368: "* * * He comes into court with a very bad grace when he asks it to use its extraordinary powers to put him in possession of $30,000 worth of stock for which he paid only $50. The court is not bound to shut its eyes to the evident character of the transaction. It will never lend its aid to carry out an unconscionable bargain, but will leave the party to his remedy at law. This has been so often held on bills for specific performance and in other analogous cases, that it is unnecessary to spend argument on the subject." Courts have uniformly held invalid an agreement by which a person, typically an employee, purports to obligate himself to transfer any and all inventions which he might in future perfect, upon the general ground that such an agreement is harsh, and, although supported by an adequate consideration, might result in great unfairness to the person so obligating himself. In Bates Machiine Co. v. Bates (1898), 87 Ill. App. 225, the courts condemned such an undertaking, saying, p. 234: "such attempts to bind all future products of a man's brain are not regarded favorably by the courts." See also Birkery Mfg. Co. v. Jones (1898), 71 Conn. 113; Aspintvall Mfg. Co. v. Gill (1887), 32 Fed. 697; McFarland v. Stanton Mfg. Co. (1895), 53 N. J. Eq. 649. Cases of this character are numerous. In Hume, v. United States (1889), 132 U. S. 406, the court in an action at law refused recovery to the plaintiff who had sold to a government hospital a certain product at the price of sixty cents a pound, which price was ap 349 proximately thirty-five times the market price of the product. Chief Justice Fuller relied upon two early English cases, i. e. Earl of Chesterfield v. Janssen (1750), 28 Eng. Reps. Chancery 82; James v. Morgan (1690), 83 Eng. Reps. K. B. 323. The principle gathered from these cases he summarized as follows (pp. 414-415): "* * * And there may be contracts so extortionate and unconscionable on their face as to raise the presumption of fraud in their inception or at least to require but slight additional evidence to justify such presumption. In such cases the natural and irresistible inference of fraud is as efficacious to maintain the defense at law as to sustain an application for affirmative relief in equity." The obligation which the plaintiff in the instant case claims its workers to have assumed under the alleged Two Year Contract is more oppressive, harsh and inequitable than that condemned by the courts in the preceding cases. When it is considered that the alleged Two Year Contract by its own provisions gives the General Committee power to continually renew the same, this Committee being free of effective control by the men due to the way the Brotherhood is constituted, the fatally defective character of this alleged Contract is apparent. 350 POINT XVIII. The privilege to refuse to hire or to discharge men for membership in a union does not include the power to procure an enforceable promise that they shall not join a union. There is a group of cases which hold unconstitutional statutes forbidding employers to discharge workmen for affiliation with a union. There is a group of cases which hold that an employer may, without liability, refuse to employ a workman because he belongs to a union; and the plaintiff may without liability discharge any or all of its men who join the Amalgamated Association, but it does not at all follow that the plaintiff may procure from its men enforceable promises not to join the Amalgamated Association. There is nothing strange or unusual about this. There is a multitude of situations in which A is at complete liberty to refuse to deal with B because of B's doing or refusing to do some act; and yet B's promise to do or to refrain from doing the act would not be valid. To cite only one example from many referred to in the body of the Brief: A is privileged to discharge B if B ever joins a church but B's promise never to join a church would be unenforceable. And it should not becloud the issue in the instant case that cases hold unconstitutional statutes making it illegal conduct for an employer to exact anti-union promises as a condition to obtaining employment. When the court holds that such statutes are unconstitutional, it merely takes the position that the state should keep its hands off. But the plaintiff in this instant case is taking a diametrically opposed position. It is asking the state to step in and to become its ally in its campaign to keep out unions. It is not asking the state to remain neutral--which the courts held the state must do in the Marcus and Coppage cases. The law in this state is that the plaintiff does not have the power to procure an enforceable anti-union promise from its men; much less does an action for damages lie against a third person for inducing the breach of such promises, and still less should equity enjoin the inducing of such breach-which is the relief sought by the plaintiff in the present action. There are two groups of cases which at first sight seem to have a bearing on the present litigation, but which, 351 upon further examination, are seen to be clearly distinguishable from the present case before the court. The first group of cases is those which hold that an employer may, without incurring any liability, refuse to employ a workman because he belongs to a union, and, correlatively, that a workman or group of workmen may refuse to enter or continue in an employment because an employer hires non-union workmen: Boyer v. Western Union Telegraph Co. (1903), 124 Fed. 246; National Protective Association v. CUmnminitg (1902), 170 IN. Y. 315. The second group is those cases which hold unconstitutional statutes forbidding employers to discharge workmen for affiliation with a union: Adair v. U. S. (1908), 208 U. S. 161; Gillespie; v. Illinois (1900), 188 Ill. 176; State v. Kremtzberg (1902), 114 AWisc. 530; Coffeyville Brick Companvy v. Perry (1904), 69 Kan. 297. The plaintiff is, of course, at complete liberty to discharge any or all of its men because they join the Amalgamated Association. From this it does not follow at all that, it has the power to procure from its men promises not to join the Amalgamated Association, which will be enforced in an action at law against the men who break such promises. A comparison between Boyeir v. Western Union Telegraph Co., supra, and McCord v. Thoipso-n-Sta'rrett Co., (1908), 129 App. Div. 130, affirmed 198 N. Y. 587, shows that the law in this state is that the plaintiff does not have the power to procure an enforceable anti-union promise from its men although it does have the privilege to discharge men for union membership. The Boyer case holds that an employer may discharge men for membership in a union, and, in the Exchange Bakery case, the court says (p. 264): "The latter (the employer) may hire and discharge men when and where he chooses and for any reason." 352 But in the McCord case it was held that a promise to hire only such men as belonged to a particular union was opposed to public policy and hence a bond conditioned upon it was unenforceable. Refusing to hire men unless they belonged to a particular union would be privileged conduct, but the law would not enforce a promise so to belong. The reason given by the court in the McCord case for the result thus reached is important. It is that the enforcement of this promise tends to coerce workmen to join a particular union and deprives them of their important liberty to choose the labor organization with which they shall affiliate themselves. The McCord case is not distinguishable on the ground that the employers who had made these promises controlled all the opportunities for work in the occupations in question. The record shows that the Brooklyn Manhattan Transit Company has a company union and exacts anti-union promises from its employees as does the plaintiff. These two subway companies have a practical monopoly of subway jobs in this labor market. In the Exchange Bakery case the court recognizes the privilege of employers to combine and adopt a single policy toward unions. The court there says (p. 264): "If believed to be to their interests, employers may agree to, employ non-union men only." For parallel reasons the rule laid down by the Court of Appeals in National Protective Associationv v. Cumming, supra, would be applied even though the workmen who refused to work for employers employing non-union men embraced all the workmen of a given kind in a given labor market. Thus the courts have recognized that the privilege to hire or discharge men for particular acts does not necessarily carry with it the power to procure enforceable 353 promises that they should do or refrain from doing the acts in question; and, where the act in question is affifliation with a particular labor organization, the law kin this state is that restraint upon the liberty to choo-se such labor union affiliations cannot be made the subject matter of an enforceable contract. Nor are the two cases just discussed by any means exceptionable. There is a multitude of situations in which A is at complete liberty to refuse to deal with B because of B's doing or refusing to do some act but in which B's promise to do or refrain from doing the act would not be actionable. 1. A is privileged to discharge B if B ever gets married but B's promise never to get married would be unenforceable. 2. A may discharge B if B refuses to burn his own house, but, B's promise to burn his own house, although no fraud or other illegal conduct be involved, would doubtless not be enforceable. 3. Under the rule of the United States Supreme Court a manufacturer may refuse to sell goods to a dealer who cuts the re-sale price. U., S. v. Colgate (1919), 250 U. S. 300, but he cannot pro-cure an enforceable promise from the dealer not to cut the price, Dr. Mites Medical Co.v. V Parkd& Sons (1911), 220 U. S., 373. 4. A may discharge B if he votes but. B's promise to give up the right of suffrage is unenforceable. Stein v. Marks (1904), 44 Misc. 140. 5. A may discharge B if he refuses to vote a certain way in a political election but B's contract s~o to vote would be unenforceable. Stein v. Marks., supra. 354 6. A may discharge B for attending church, but the law would not enforce B's promise to refrain from going to church. 7. An employer may refuse to employ a man who would not confess twice a year but a promise to do so, thus interfering with the man's religious liberty, is not actionable. People ex rel. Schmidt v. St. Franciscus Benevolent Society (1862), 24 How. Pr. 216. 8. The employer may discharge a workman for enlisting in the army or navy but his promise to refrain from enlisting is opposed to public policy and unenforceable. In re David Miulholland Benevolentl Society (1873), 10 Phila., p. 19. 9. Random samplings of the host of applications of the same principle of discrimination to multiform fact situations follow, in which divers promises are held to be unenforceable yet the conduct promised would not be unlawful if pursued and another person would be privileged to refuse to deal with the promisor unless he pursued the course of conduct in question. Pope Manufactwring Company v. Gormully (1892), 144 U. S. 224, 234; Horwood v. Millar's Timber & Trading Company (1916), 2 K. B. 44; Moirris v. Saxelby (1916), 1 AC 688; Neville v. The Dominion of Canada News Company (1915), 3 K. B. 556; The Star Publishing Co. v. The Associated Press (1901), 159 Mo. 410. In all the foregoing groups of cases, an action at law would not lie for a breach of the several promises instanced. Much less would an action for damages lie against a third person for inducing the breach of such promises, and it is yet clearer that equity would not enjoin inducing such breach which is the relief the plaintiff is seeking in the present action. 355 There is yet a third group of cases which at first sight seem to have a bearing on the question in this litigation, but which, on further examination, are clearly distinguishable. These are the cases which hold unconstitutional statutes making it illegal conduct for an employer to exact anti-union promises as a condition to obtaining employment. People v. Marcus (1906), 185 N. Y. 257; State v. Julow (1895), 129 Mo. 163; Goldfield Company v. Goldfield Union (1908), 159 Fed. 500; Coppage v. Kansas (1914), 236 U. S. 1. There exists a very fundamental difference between the question as to the unenforceability of the anti-union promise which the plaintiff has exacted from its employees and the question as to the power of the state to make the taking of such promises a crime. When the employer contends and when the court holds that such statutes are unconstitutional, he and it are taking the position that the state should keep its hands off and should not interfere in the struggle on the one side to bring about, and on the other side to prevent, unionism. The plaintiff, when it contends that the promises not to join the Amalgamated Association are enforceable, is taking a position diametrically opposed to the position just described. He is taking the position of asking the state to interfere, of asking the judicial branch of the state government, not merely to hold these promises to be enforceable, not merely to enforce them by sustaining actions for damages for their breach, not merely to hold in damages others who induce their breach, but also to use the extraordinary remedy of the injunction to restrain such third persons from interfering with these promises in any way. When courts have held unconstitutional statutes making the taking of promises not to join a union illegal, their attitude is that of lalissez faire. The plaintiff is here asking the court squarely to reverse that position. It is thus seen that cases like People v. Marous, supra, and Coppage v. Kansas, supra, do not merely fail to sup 356 port the plaintiff's position; their basic principle and fundamental philosophy are directly opposed to the intervention by government which the plaintiff is here seeldng. It is not asking the state to remain neutral, which the courts held the state must do in the Marcus and Coppage cases. On the contrary, the plaintiff is asking that the state step in and become its ally in the campaign to keep out unions. There is nothing in the recent case of I. R. T. Co. v. Lavin, throwing any doubt on the vital distinction herein pointed out. The court in this case says, "It (the plaintiff) may refuse to employ workers who will not accept a condition or make an agreement that they will not join a particular union." The court does not say that any such agreement would be valid or protected by equity because, further on, the court says, "This court has not yet been called upon to decide whether employees may lawfully be urged to make a choice (join a union) in breach of a definite contract. We do not decide that now." Any employer may impose non-membership in a union as a condition to his hiring a workmnan and he may do so by individual as well as by collective bargaining. This is the right referred to by the Court of Appeals in the Lavin case when it says: "Freedom of contract gives to workers and employers the right to fix by individual or collective bargaining the terms of employment acceptable to both." But it is a far cry from what a large corporate employer can make a condition to employment to what he can incorporate into a. contract binding on the men if he insisits on individual bargaining. Between such an employer and a workman there can be no "contract freely made" by individual bargaining because there can be no bargaining or higgling at all. "The individual workman is helpless against the typical employer," says Professor Seliguian, in Principles of Economics, p. 434. 357 POINT XIX. The whole Contract of June 30, 1927 is colorable. It was designed merely as a vehicle to carry the promise not to join the Amalgamated Association. As of March 31, 1927, the plaintiff executed a Contract with the General Committee of its Brotherhood, a contract running to March 31, 1929, and containing agreements with respect to wages and working conditions. Yet three months later a new Contract was suddenly framed by the plaintiff which provided for only two new items; (a) an extension of the previous contract for one month and (b) an alleged two year term of employment. What had happened in this short period of three months to cause the plaintiff to adopt this course of action? The answer is evident. The plaintiff had had reason to fear that courts would not enjoin the breach of anti-union promises under circumstances of hiring at will; and it made haste to have its men execute a Contract in which a two year employment contract might support the men's promise not to join the Amalgamated Association and an extension of a present contract for one month might furnish consideration therefor. The colorable character of the Contract of June 30, 1927 is further revealed by the fact that all other matters-and these other matters are the ones vital in a typical work contract-were left unchanged. But the plaintiff took care to insert the anti-union promise (although this was already in the Constitution which was alleged to be a part of the Contract); it took care that the individual ratification should be taken in such a way as to reveal which men had not ratified; and it took care that the Company did not actually make a promise to the men. Then it still further safeguarded itself by so framing the provisions governing discharge of workers that it could discharge for all reasons for which it might ever want to discharge a man. It is simply beyond belief that this Contract of June 30, 1927 is something sought or desired by the men and that it is a result of true collective bargaining. It is too obviously a smart attempt by the plaintiff to protect its plans with colorable legal devices. What else could it be? There were no changes in the labor market or in the relations of the plaintiff with its men which called for such extraordinary action, and such a revolutionary thing in the history of American industry as binding workers individually for two years. The colorable character of this whole Contract was admitted in the oral argument when counsel said: 358 "The effort has been made by counsel to endeavor to procure such a legal situation that we will have the protection of the courts in maintaining harmonious relations with our 14,000 employees * * *." Transcript of Stenographer's Minutes, p. 14. If the colorable character of this whole arrangement be not an actual fraud upon the court, it is at least such a transparent tissue of unreality that a court of equity need have no hesitation in looking through it to the realities of the case. If the right to unionize and to bargain collectively is a reality, it cannot be taken away by legal form drafted specifically for that purpose and executed by an individual workman acting alone and unsupported by the strength of his group, if indeed he was not actually betrayed by his pseudo leaders. To sustain anti-union promises thus made would be for the state to abandon its "hands off" policy in such matters and to align itself in opposition to collective bargaining,-and thus destroy unionism. The Contract of June 30, 1927, does not have to be scrutinized closely to see that it was framed and the men were called on to execute it in an attempt to make certain that when the matter next came before the court, an injunction could be obtained to prevent the Amalgamated Association from organizing the plaintiff's employees and thus preserve to the plaintiff its present harsh advantage in bargaining with those employees. There have been numerous judicial intimations of doubt as to whether or not a court would enjoin the inducement of a breach of antiunion promises accompanying a hiring at will, proper judicial caution having led the courts to say, in denying such injunctions, that such relief should not be granted whatever might be the rule where a hiring for a definite term was involved. The fact that the plaintiff's previous Contract with its employees was a hiring at will was insisted upon by counsel for the defendants as a most substantial reason for denying an injunction in the case of Interborough Rapid Transit Companyj v. Lavin. These arguments appeared in the brief of counsel for the defendants in that case and such briefs are now part of the public records of the state of New York. 359 Some such fact as the foregoing is needed to account for the extraordinary fact that, when the Contract of June 30, 1927 was executed, the plaintiff then had with its workmen a work contract executed as recently as March 31, 1927 and having a year and nine months yet to run. Nevertheless, the plaintiff suddenly got out this new Contract differing from the previous contract in only two respects-it incorporated an unconditional promise on the part of the men to work for two years, and it extended the previous contract only one month, namely, from March 31, 1929 to April 31, 1929. This is the "extended period of employment" referred to in the conclusion of the preamble. Presumably, by March 31, 1927 or earlier, all other matters involved in the relation between the plaintiff and its employees, such as wages, hours, and working conditions, had been settled. After that date and presumably by June 30, 1927, something had happened to motivate the plaintiff to negotiate a new Contract with the General Committee of the Brotherhood so as to get the men's twoyear promise to work and to give consideration for their promise not to join the Amalgamated Association. The colorable character of the document of June 30, 1927, is also indicated by its significant omissions. Those familiar with ordinary and bona fide work contracts negotiated as the result of genuine collective bargaining are acquainted with the mass of detailed stipulations, provisions, and safeguards which are inserted into those lengthy documents, but the Contract of June 30, 1927, leaves all these other and vital things as they were. They were the result of no negotiations between the Company and its General Committee. The men, by the instrument of June 30, 1927, got no concessions from the Company in the way of increased wages, improved working conditions, or shortened hours. The plaintiff is asking the court to take seriously its claim that the General Committee, acting free of Company control and acting as the responsible representatives of the men, entered into negotiations with the plain 360 tiff on June 30, for the sole purpose of conceding to the plaintiff what has hitherto been unheard of in the industrial world, namely, unconditional promises of these workmen binding each and every one of them not to quit his post for a period of two years in return for which they got absolutely nothing. It is shown elsewhere in this Brief (pp. 259-263) that the plaintiff has been careful to reserve to itself, in paragraph 5 of this alleged Contract, the privilege of discharging the men for every cause for which a large corporate employer ever wants to discharge a man. What the actual situation was is obvious. The plaintiff thought that, if it had the men's promise to work for two years, the courts of this state would protect its collateral anti-union promises. Paragraph 3 of the alleged Contract of June 30, 1927, is remarkable in its present setting. All the things therein said were said also in the Constitution of the Brotherhood. They are all repeated here at great length but none of the other constitutional matters contained in that Constitution and affecting the Company are so repeated. Paragraph 8 is worth careful study. It makes it the duty of the Brotherhood to secure the ratification of this agreement in separate instruments in writing from all the men. Such ratifications were to be deposited with the secretary of the Company and the Company was to advise the General Committee of all members who had executed such ratification. Incidentally, this would advise the General Committee as to what men had not executed the ratification. This interesting provision should be read in connection with Clause B of paragraph 5 making expulsion from the Brotherhood a cause for discharge. Reference should also be made to an interesting recital in the preamble of this alleged Contract. One purpose is said to be the desire of the parties, one of them being, of course, the Company, to preserve the identity and authority of the Brotherhood as a medium of collective bargaining. The court is asked to believe that the Company is, 361 because the employees desired it, helping to defend the employees anxious to preserve the Brotherhood against the Amalgamated Association by taking from them their promises not to join that association. Providing for the Separate Ratifying Instrument is a noteworthy fact. By it, the Company has every man's signature, but no employee has the Company's signature. If the employment of the man is sufficient evidence for him, why is it not sufficient evidence for the Company? This Ratifying Instrument contains a promise from each man to remain in the employ of the Company until the thirtieth day of April, 1929. This extraordinary provision should be contrasted with the reasons for discharge reserved by the Company in paragraph 5, which reasons include all the reasons for which the plaintiff might ever want to discharge a man. That fact makes this Contract a hiring at will on the side of the Company. Only one with an excess of faith in the power of words put on paper to alter realities can take this Contract at its face value. Throughout it discloses convincing evidence that the whole thing was skilfully drafted by the plaintiff and is a colorable device by which it is hoped to carry over into the area of protected promises the anti-union promise which this document contains. If the foregoing discussion leaves any doubt as to the conclusion drawn, the following considerations should settle the matter. Into this innocent-looking document is incorporated the most startling and revolutionary provision that could well be imagined. Never in the history of American industry has an attempt been made to bind each one of a group of industrial employees not to quit work for any period approaching two years. Of course, labor unions make trade agreements with employers running this long or longer, but under such agreements, any individual workman is free to quit at any time. There had been no change in the New York labor market and no change in the factual substance of the relation between 362 the plaintiff and its employees at or prior to June 30, 1927 to correspond to, and to account for, the wholly revolutionary provision that each man should be bound for two years. There had been no such change, to say nothing of a change comparable in magnitude to this revolutionary provision. If there had been no change in the realities to account for the incorporation of this provision, then how is it to be accounted for? It must be accounted for in some way. It is submitted that the wholly sufficient and actual explanation is that the promise to work for two years was incorporated to cause courts to hold that the adjunct promise not to join the Amalgamated Association would be protected by the injunction. The colorable character of this whole Contract was admitted in the oral argument of this case when counsel said: "The effort has been made by counsel to endeavor to procure such a legal situation that we will have the protection of the courts in maintaining harmonious relations with our 14,000 employees * *." Transcript of Stenographer's Minutes, p. 14. If the colorable character of this whole arrangement be not an actual fraud on the court, it is at least such a transparent tissue of unreality that it cannot conceal from a court of equity this attempt to evade the law's sanction of collective bargaining by rushing out and having these employees, acting non-collectively, sign these anti-union promises. No skill in drafting can make the bare putting of words on paper change or hide the realities. If the right to unionize and to bargain collectively is a reality, it cannot be taken away by legal forms drafted specifically for that purpose and executed by the individual workman acting alone and unsupported by the strength of his group. If coercion had not attended its execution, he should be held powerless to deprive himself of this essential liberty. When the peril of the loss of employment 363 takes away all real choice not to sign, as it does, human nature and conditions of industrial life being what they are, such essential liberty is wholly unaffected by such a signing. No document, however skilfully drawn, can enable the plaintiff to annex the courts as its allies in its present effort to take away from its employees their vital liberty to choose what form their association with their fellow craftsmen shall take. If the court sustain these anti-union promises lethal to all unionization, the policy of "laisses faire" is abandoned, the law enters the unequal struggle on the side opposed to collective bargaining and the outcome of the struggle is settled. No mere colorable document, however, skilfully drafted for the purpose, can cause courts to abandon their traditional attitude of not foreclosing broad issues of policy still lying in the arena of heated contest and debate. 364 POINT XX. Both the promise to work for two years and the promise not to join a union are void, being opposed to public policy. The work contract in modern society is at. its center or core an agreement to employ and to pay on the one side and an agreement to work on the other, thus involving questions of wages, hours, and conditions of work.. It is well settled that society may regulate and does regulate these central or core matters, establishing a social minimum above which and only above which individual initiative and the gain spirit are permitted to operate under competitive conditions. ' As contrasted with these central or core matters of the work contract, this present case raises two great issues lying at the margin or the periphery of the work contract. The first of these issues is: What promises collateral to the core of the work contract may be attached thereto and be enforceable-and, in particular, is the collateral promise not to join a union enforceable? There is no question that from the point of view of the economic aspects of public policy this promise is an improper barnacle on any work contract, and much more so on a two year one. There is no substantial defense for it. Far from making a contribution to good management of our economic enterprises it increases labor turnover, piles up costs, and develops such sour discontent that it is discredited among the really effective company unions. From the point of view of the citizenemployee it is an interference with individual liberty and thus strikes a blow both at the cornerstone of democratic government and at the main motive force of our economic life, individual initiative. It violates fundamental rights of freedom of opinion and of association and is contrary to the basic principles of American government and institutions. Because of its vicious effects upon the whole social framework, almost without exception the expert students of society hold it contrary to the public interest. As should be expected from this review of the social effects of such promises, the law has come to regard similar types of collateral contracts unenforceable in many fields. If such collateral marginal promises were held to be enforceable, a company could have the backing of law in regulating whether its employees should marry, where they should buy their food, what church they might attend, what lodge they might join. It is to be noted in this connection that freedom to organize and to bargain collectively is the worker's most important means 365 today of safeguarding his economic security. For the law actively to enforce an anti-union promise wrung from men in an inferior bargaining position is to keep these men permanently in a state little removed from peonage. The second great issue lying at the margain of the work contract, as raised in this case, is: For what period of time may the industrial employee be bound to work? It is clear that the plaintiff, in drafting this novel and indeed revolutionary clause, had not grasped the full implications of its act. Does the plaintiff think that the promise should be enforced by the state if a powerful national trade union should become able to brow-beat an employer into a promise not to join an employers' association by alleging some jug-handled two-year arrangement as consideration? Can the plaintiff have realised that the utterance of the court, "the right to discharge and the right to quit work must be reciprocal until some other equitable basis of employment than the open market is established", means that, if workers are bound for a definite time to their jobs, industry 'must be prepared to assume the necessary safeguarding provisions, such as unemployment insurance or a sliding scale of wages for prosperous times, to cite only two of the absolutely uncharted fields which this startling proposal opens up? How can the plaintiff believe that the state will enforce a two year promise to work at the fixed wages agreed upon (no matter what favorable opportunities might open up for the worker in other pursuits) when this promise is coupled with a provision that the company may discharge the workers if business conditions become unfavorable? The appropriate safeguards to such a contract have not yet been developed by our society and this plaintiff does not make even a pretense of attempting to develop them for its own workers. Equity will not take away the worker's existing safeguards which have slowly and painfully been worked out in the law and plunge him into a sea of economic uncertainty. It is difficult to believe that the plaintiff is not indulging in some gruesome jest when it proposes to combine with an unenforceable anti-union promise an unsafeguarded Two Year Contract of work. Both proposals are so novel, revolutionary and uncharted as to social and economic consequences that it is difficult to realize that they are seriously advanced. Taken together they are the most effective means of suppression and peonage that have ever been proposed. It seems almost unnecessary to point out that such alleged contracts are invalid under our law. When the plaintiff calls on its men to sign a Two Year Contract binding each man to work for that period although he might be offered double the pay elsewhere, or might de. 366 sire to change his occupation, or wish to change his place of abode, the plaintiff raises most profound issues. This attempt to bind large groups of industrial workers to work for an extended period of time comes as a distinct surprise and shock to all serious students of the labor problem. It compels them and the courts to consider, with a thoroughness hitherto unnecessary, this question: What is the work contract in modern industrial society? What functions does it, perform? What incidents may be attached to it in the form of collateral promises? May it be made binding for a fixed period of time? These are questions transcending in importance all other questions in the labor field. Whether the plaintiff's Two Year Contract of employment is opposed to public policy cannot be determined without attempting an answer to these questions, for these questions merely segregate in a rough way the areas of public interest and policy radically affected by this Two Year Contract, if it is to stand. THE PROMISE NOT TO JOIN A UNION IS AN IMPROPER PART OF THE MODERN WORK CONTRACT. The work contract in modern industry is at its center an agreement to employ and to pay on the one side and an agreement to work on the other. This is the nucleus of the modern work contract and it involves questions as to wages, hours and conditions of work. A mass of case material appearing in this Brief shows that society has regulated and should regulate this, the work contract, with respect to these central matters. Statutes and decisions designed to insure the workman's collecting his wages are numerous. Hours of labor have been regulated where special circumstances were present. There are elaborate provisions in the statutes and rules in decisions calculated to insure to the workmen fair conditions of labor; for instance, as to matters of health and bodily safety. 367 Running all through these regulations by law of the central or core matters in the work contract in modern industry is to be seen a fixed purpose to establish a social minimum which the worker shall have. It is only above the plane of this social minimum that individual initiative and the gain spirit are permitted to operate under competitive conditions. Broader than the field of labor are such rules as bankruptcy laws and debtor exemptions which serve as sample markings of the level at which this plane stands. Turning now from these central or core matters in the modern work contract we come to its marginal matters; as to these the plaintiff's Two Year Contract raises two great issues. First, what is the range of collateral promises which may be attached to the modern work contract and be sanctioned by the law? Second, for what period of time may industrial employees be bound to work? Under the first question we have to consider whether the promise not to join a union is a proper collateral promise of the modern work contract, thereafter considering such analogies as may be found in the cases or suggested by reflection. THE EFFECTS OF THE ANTI-UNION CONTRACT ON THE PUBLIC WELFAB. Whether an anti-union contract such as this one is opposed to public policy and hence void depends in first and last analysis upon its effect on public welfare. The phase of welfare involved is the economic one so that economic considerations are the decisive factors in determining the validity of the plaintiff's anti-union Contract. From the point of view of economic considerations, this promise not to? join a union is an improper barnacle on any work contract, much more so, on a two year one. These economic considerations are concerned with the welfare cf industry, the welfare of the worker, and the 368 welfare of the public-three considerations not necessarily mutually exclusive. It will be demonstrated that, from the point of view of industry, the worker and public policy, the promise not to join a union is bad. 1. The promise not to join a union is unnecessary from the point of view of good management. It is not needed to protect any legitimate interests either of the Company or of the public. The Company desires continuity of service. But that can be secured-and secured more effectively-by other means. In the street railway industry the most notable illustration of successful operation and uninterrupted service is the case of the Philadelphia TRapid Transit Company which instead of saying to its employees, "'Thou shalt not join a union of your own devising," has for seventeen years promised to negotiate with any labor organization desired by two-thirds of its employees. Professor Tead sums up the argument on this point in his statement that: "All recent experiences with negotiations over terms of employment would indicate that the inclusion of a clause prohibiting membership in an inter-company union is both an unnecessary and an unwarranted feature of the contract. While it is true that each labor contract is to be made in respect to the special problems of the corporations employing, general experience has nevertheless indicated that the essential ends desired of an agreement securing fair terms of employment and a reasonable freedom from interruption of labor and service can be better assured by other features in the labor contract; notably by provisions of joint conciliation or in the event of failure to agree jointly by the specified resort to impartial arbitration. Numerous illustrations are at hand of organizations in public utility employment where the desired end of service uninterrupted by strikes, lockouts or any other form of labor dispute is achieved by other methods than the use of the prohibition of membership in an inter-company union such as is specified in the Interborough Rapid Transit contract." 369 Later discussion will demonstrate, as has already been suggested, that the anti-union contract is a radical departure from the practice of companies maintaining company unions. The affidavit of Professor Keister points out that the anti-union contract is a radical departure from labor contracts in general and that the burden of proof of the necessity of this departure is upon the initiator: "Radical departures from customary institutions should not be condemned merely because they are radical. Yet the initiator of such radical departures should assume the burden of proof to show that the customary practice is no longer adequate to protect the parties involved as well as society at large. I am not convinced that the Interborough Rapid Transit Company has proved that a radical departure is necessary to protect its own interests, the interests of its employees, and the interests of society at large." 2. The anti-union contract does not contribute to the ends sought by management. The immediate end of the plaintiff is, of course, control of its own workers, its labor policies, etc. And the suit for an injunction is an admission of the inadequacy of the anti-union contract to achieve this immediate end. As Mr. Soule says: "Collective labor contracts, which directly involve thousands of individuals, ought to be mainly self-enforcible through the will and interest of the parties, and ought not to depend for their enforcement mainly on judicial or police powers of the state." But the anti-union contract is such a barnacle upon the work contract that workers sign it under coercion and with many reservations concerning their intention to keep the contract. Knowing that such evasion is inherent in the situation, the employer seeks to enforce this unenforceable contract by another coercive measure, the injunction. Thus he sets up another obstacle to the harmonious relationships between employer and employee, 370 The desire of the plaintiff to control its workmen has no meaning without a consideration of the ultimate ends of the Company. If the plaintiff desires to provide the public with uninterrupted service, it cannot do this without the cooperation and good will of its employees. The antiunion contract, by which the plaintiff seeks to secure services uninterrupted by labor disturbances, may well defeat these very purposes for, as Professor Tead says: "Only as the labor contract is entered into freely and is felt by the parties at interest to be satisfactory and fair will a resulting work attitude and work performance be of a character that is productive and safe." Miss Van Kleeck emphasizes the same point: "Unwilling acquiescence by an individual workman who signs and keeps an agreement under threat of failing to secure or losing a job, cannot produce good will or afford a basis for worker-management co-operation in industry or protect the public against the danger of strikes in public utilities." In fact, as will be shown more thoroughly in the discussion of the results of an era of dominant company unionism (post., pp. 435-445) such repressive measures as the anti-union contract may have an entirely opposite effect on the employer. As Professor Todd also says: "Any arrangement which results in manifest disparity of bargaining power in a labor contract is likely to produce labor inefficiency, disloyalty, disaffection, high labor turn-over, a sense of resentment against arbitrary taking of advantage. For that reason a show of arbitrary power in forcing company unions with anti-union employment contracts is likely to provoke in turn an appeal to more radical types of labor activity, to militancy, direct action, and repudiation of the slower, more orderly processes of contractual relationship,' 371 3. From the point of view of the employee, the antiunion contract is an interference with individual liberty. The affidavits of Professors Cohen, Commons, Douglas, Fitch, Kallan, Slichter, Todd, and Mr. Brubre and Miss Van Kleeck show how serious the social consequence of such an interference is considered. Professor Cohen states that: "When it comes to a contract such as the one involved in this case, which not only seriously limits the liberty of the employees of the Interborough Rapid Transit Company, but * * * also the liberty of all those in similar occupations connected with the American Federation of Labor, it seems clear that human freedom would be seriously limited if the law insisted on such an interpretation of the principle of freedom of contract." Proponents of the individual work contract as opposed to collective agreement talk much of individual liberty. But when the individual contract contains an anti-union clause, "individual liberty" is shown to be a hollow claim. As Professor Fitch says: "The employee is free at the outset to sign or not to sign the contract which means that he is free to accept or reject employment with the Interborough if it is offered. As a practical matter however, considerations of physical need may at any time, in an overstocked labor market, make the exercise of such freedom impossible. When non-membership in a trade union is made a condition of employment the employee is frequently subject to a compulsion as real and effective as if physical force were used." Significantly, such a contract involves future liberty as well as present. Professor Slichter points out: "In its economic effects this contract appears to require that the workman, in order to sell his services, must also sell his right to improve his future bargaining status by joining a trade union, The law has long 372 been familiar with certain things which may not be bought and sold, with certain restrictive covenants on one's future freedom of action, which are denied jural recognition. The Interborough Rapid Transit work contract of June 30, 1927, raises the question of whether it is wise public policy to permit the right of belonging to a trade union to become an object of buying and selling. In my judgment * * * wage-earners should not be permitted to barter away the right of belonging to a trade union. ** * "The right of the worker to improve his future bargaining position involves more than merely his opportunity to raise his wages. It involves his ability to feed and clothe his family and to educate his children. When he sells his freedom to improve his bargaining position, he is practically selling the opportunity of the members of his family to be better clothed, fed, and housed, and. the opportunity of his children to obtain a better education." In another respect the anti-union contract is an interference with individual liberty, for the anti-union contract violates fundamental rights of opinions and associations. As Professor Todd says: "A contract between employer and employee should cover only his services not his opinions. Only in such a limited field as, say denominational or sectarian activities which by very definition require practical unanimity of belief should the opinion test be sustained. * * * "It scarcely seems to be good public policy, nor therefore good law, to permit or to require any man to sign away essential rights. The law does not permit a man to waive his rights under accident compensation statutes. If courts sustain an employment contract prohibiting an employee from joining a labor organization, why not a contract prohibiting a man from joining a fraternal order, a church, a cooperative society, a political party, or from marrying?" Professor Commons on the same point reasons; 373 "If this is good law where labor unions are concerned, it would seem also to be good law as regards membership in churches and fraternal organizations. No doubt an employer can refuse to employ a workman because he belongs to a church or lodge that he does not like. Perhaps also an employer can make a contract with his employees obligating them not to join such church or lodge while they remain in his employment or during the life of the contract. No; one, however, would argue that an employer can go a step further and by an injunction prevent the Catholic Church or the Masons, or some other religious or fraternal organization, from even speaking to his employees about joining such organization after the contract shall have expired.7" That workmen resent the anti-union contract as a restriction on their personal liberty is illustrated in their affidavits. George Atkins (Amended Answer, p. 454), said: "About two months ago I was told to report to the office. At the office I was met by Mir. Cornish, our boss, who asked me whether I belonged to the Amalgamated. I answered 'yes' and told him that I had the right to join an outside organization just as he had the same right, for I understood he was also a member of the Masons.7" Win. E. Davenport similarly states (p. 532): "They have no business to tell me what I can do or what I can't do outside of my working hours. I can't go down to 65 Broadway and tell Mr. Hedley that he couldn't join the Chamber of Commerce or any other of his organizations. I believe that as an American citizen, I have the independent right to choose my own labor organization and no writing obtained by force can deprive me of that constitutional right." 4. Such an interference with individual liberty is contrary to the basic principles of American Government and institutions. As Professor Todd says: 374 "Such anti-union employment contracts are unAmerican and savor of arbitrary despotism." Mr. Brubre sees in such a restraint upon freedom a "Significance transcending the significance of any controversy between the immediate friends and enemies of such lawful organizations as the Amalgamated Association of Street and Electric Railway Employees of America or the American Federation of Labor. This restraint, if approved by the courts, must strike at the very essence of those qualities in men which are essential to the exercise of the privileges and responsibilities of American citizenship. "Can it reasonably be anticipated that men, who coerced by economic necessity, submit to such restraint upon their liberties, will retain those qualities of manhood and moral integrity upon which the health and security of our American institutions depend?" Mr. Cooke considers the anti-union contract contrary to American industrial standards: "On the whole I would consider it a blow to progress in American industrial relations should the validity of this arrangement be sustained. Generally speaking American standards in the field of industrial relations are receiving credit wherever such matters are studied. But what is best in our American practice could probably not live long in competition with the Interborough Rapid Transit Company plan. If sustained by the courts I would expect to see the plan spread rapidly with an accompanying lowering of our national efficiency and a revival of agitation for radical measures on the part of the workers." 5. Such an interference with individual liberty is likewise contrary to the whole spirit of modern economic life. Professor Seligman declares: "The court is asked to reverse the progress of the whole of the last century and to return to mediaeval 375 conditions. The essence of our modern economic life is freedom, freedom to contract, freedom to act; and this freedom attaches to both parties of the contract, the employer and the employee. The present contract leaves the freedom of the employer unimpaired; it even, as we have pointed out, increases if possible that freedom: On the other hand, it restricts in notable respects, actually if not technically, the freedom of the employee. This disparity of conditions is of the utmost consequence. The world has not yet succeeded in finding a solution for the so-called labor problem. Whatever that solution may be, both history and philosophy conspire to advise against the adoption of any policy which will render the solution more difficult and perhaps impossible. The conditions of this contract seem to the affiant clearly to fall within the latter category." 6. As an interference with individual liberty such an anti-union contract is contrary to public interest. Professors Brissenden, Douglas, Edie, Fitch, Kallen, Seager, Seligman, Slichter, Squires, Todd, Commissioner of Labor Statistics Stewart, Messrs, Bruere and Nelles, and Miss Van Kleeck, heap up the condemnation of this contract in such language as the following: "Detrimental to the long-run best interests of our people" (Professor Seager); "Subversive to sound industrial relations" (Professor Edie); "Thoroughly bad and clearly contrary to public policy" (Professor Brissenden); "A reversal of public policy which certainly presents no clear advantages and which contains such potential dangers" (Professor Seligman). Since the anti-union contract has been much used by the coal operators in their attempts to secure the deunionization of their workers it is natural that the Coal Commission which investigated the industry a few years ago should include a report on this subject. Their report condemns the anti-union contract in very definite terms: 376 "Notwithstanding the decisions of the Supreme Court of the United States that the so-called 'yellowdog' contract is legal, the commission is of the opinion that it is a source of economic irritation, and is no more justifiable than any other form of contract which debars the individual from employment solely because of membership or non-membership in any organization. The right of an employer to discharge for disloyalty, dishonesty, and incompetency, or other unlawful conduct should not be abridged, but he should not be permitted to black-list a discharged laborer for any other reason than disloyalty, dishonestly or unlawful conduct." Even opponents of unionism condemn the anti-union contract as a means of fighting unions. Walter Gordon Merritt, the well known opponent of unionism, has said: "To tell a red-blooded citizen he cannot join a union while society holds that unions are lawful and useful, but whets the desire to join and creates a spirit of sullen hostility which but waits Der Tag to join the enemies of existing institutions. "Failure to understand human nature and to respect these rules of justice, is producing lamentable results. Recently, anti-union contracts, so offensive in character as to call for unqualified condemnation, have come to our attention. "Shall employees be thus driven to sell their birthright for a mess of pottage? Can the resourcefulness of radical leadership devise any means better calculated to influence the worker and the public against the employing class? In the name of justice-in the name of public policy-in the name of many more considerations-let us have an end of this." LEGAL AUTHORITIES AND ANALOGIES AS TO THE VALIDITY OF ANTI-UNION PROMISES. Turning now from the economic and social consequences of anti-union promises, to the law's treatment of them we find that the same sort of problem can arise with refer 377 ence to the marriage contract. It, like the work contract, creates a relation of status. What its primary implications are in modern society is reflected in the primary or central duties and obligations assumed by those entering into it. What collateral promises can be attached? (Compare GCwry v. Curry (1887), 10 Hun, 366; Chalfant v. Payton (1883), 91 Ind. 202.) The contract between an individual member of the public and a public utility such as the telephone company raises much the same question. The core stuff of this relation is the obligation to furnish service and the duty to pay for it. What collateral promises can be attached to it? May the telephone company use this core contract to accomplish collateral ends? Could it refuse service unless its customers contract not to belong to consumers' leagues, trade unions or fraternal societies? The cases hold that an electric light company, for example, cannot compel its customers to buy their electric light fixtures of it. Suppose such a light company has taken from a customer his promise to buy his electric light fixtures from the company only, getting this promise by threatening to discontinue service. Suppose a dealer in electric light fixtures knowing of that contract, none the less induces the consumer to buy fixtures of him, in breach of the contract with the company. Whether that dealer could be enjoined raises much the same question as we have in this litigation because it raises the question whether or not the promise with respect to the light fixtures is properly made collateral to the primary relation between the public utility and its customers. Convert the plaintiff's anti-union promise into a promise on the part of its employees not to attend a particular church or lodge. Weigh the interest of the Company in that matter against the interest of the workmen. Then weigh the interest of the public in the workers' freedom as to this matter and there is raised a question differing in degree but like in kind to the question in this litiga 378 tion. May the company regulate the schools which its wornkmen's children shall attend? Could it require its employees to limit themselves to company insurance? It could as a condition to employment, but may it secure an enforceable promise so limiting them? It can discharge men who do not live in company houses, but may it by promises regulate where they shall live? Can the modern industrial employer determine where the workmen shall buy their food? He may discharge such workmen if they do not trade at the company's store but would the workmen's promise to do so be enforceable? Closer still to our problem, would a court of equity enjoin a tradesman in the neighborhood who, knowing of that promise to buy only at the company's store, quoted lower prices in order to induce workmen to buy of him thereby breaking their promise to buy of the company's store? Professor John R. Commons says, "The labor union has heretofore been recognized as having much the same status before the law as have religious and fraternal organizations." Does the interest of the modern corporate employer in the labor union affiliations of its employees so match its employees interest in that matter that it can control its employees' lives to this extent, control them not merely by discharging for membership in a union, but by getting the courts of equity to enforce a promise not to join a union by putting their restraining hands on third persons? Professor Commons also says: 'No adequate argument can be made why such an injunction should lie against a labor union but not against a church or a lodge * * *. They (labor unions) are private organizations, both in court decisions and in statutes they have been recognized as being not only lawful but useful to society. That they should now be virtually outlawed is unthinkable. Such a step inevitably leads to giving the employer complete control over the entire life of his employees,-an intolerable condition, contrary to all our conceptions of individual freedom," 379 This phase of the question has another angle. Freedom to organize and so to bargain collectively is the worker's most important means of bettering and safeguarding his economic security. Can that be taken away? Suppose a southern planter, in order to prevent his colored tenants from accumulating enough money to cause them to leave before crops were in, sought by contract to bind them not to open a savings account. Would the law enforce that contract? Would equity restrain the banker who would induce its breach? The position of the worker in modern industrial society is insecure and his economic insecurity is the dominant phase of that insecurity. The right to unionize is the worker's greatest safeguard against such insecurity. It may be taken away by refusing employment for membership in a union, but will courts help take it away by enforcing anti-union promises? Will courts of equity restrain those charged with the duty of organizing worlnmen,-prevent their doing so where the anti-union promise itself arises out of a situation in which there is no collective bargaining? Could a modern corporate employer desiring to compel its workmen to live in company houses get enforceable promises that they would not buy homes on installments and would one who sold them homes knowing of such promises be enjoined by courts of equity? The cases of workmen promising not to open savings accounts and promising not to buy dwelling houses on installments are alike in that an employer seeking to enforce such promises would be attempting to get courts to aid him in his effort to keep the economic position of workmen hazardous. A yet imore telling case may be supposed a case which is the exact parallel of the anti-urion. promise and which lays bare the deadliness of its effect on the unorganized worker's effort to render his position in, this world somewhat less perilously insecure. Suppose a commercial insurance company begins to owrite unemployment insurance; suppose a large corporate 380 employer such as the plaintiff sees that, if its unorganized employees carry such unemployment insurance, it will not be able so certainly to have its own way when it comes to fix new wages and conditions of employment for them because the proceeds received by the employees on such insurance policies would give them oaiting power, and hence, some power to hold out for more advaintageous terms. Suppose this employer does just what the plaintiff has attempted to do, viz., exacts from each employee his separate promise not to carry such unemployment insurance. Would any court of equity enjoin the insurance company from inducing these employees to carry suc- insurance? The plaintiff, by this anti-union promise, is, in reality, seeking to get the courts to take away the workman's right of economic self-defense. There is no commercial company writing unemployment insurance for workmen but that is just what labor unions do for their members. Their right to unionize is merely the right to put themselves in a position so that the bargaining struggle over wages and conditions of employment may approach conditions of equality. Strike benefits paid by unions to workmen during periods of unemployment attending negotiations concerning wages and working conditions are nothing but a form of unemployment insurance. The small sums paid regularly by unionized employees into the national treasury of their unions are but the premiums they pay for the insurance that they shall receive from that treasury during any suspension of work, a pittance to prevent them and their families going hungry. From considerations such as these it appears that the anti-union promise is an improper barnacle on the modern work contract and is opposed to public policy not merely because it is destructive of the workman's individual freedom, but because it operates to deprive him of his one most effective means to make his economic position in modern industrial society less insecure. 381 For all the foregoing there is confessedly little direct authority because the plaintiff's Two Year Contract is as novel as it is revolutionary. But there are illuminating analogies. The United States Railroad Labor Board which brought to the problems with which it dealt something more than a mere knowledge of technical law, held that for a carrier to make employment conditioned upon non-membership in a union was opposed to law. The case involved the right of an employee to reinstatement with seniority rights after a strike. It was held that the employee was entitled to such reinstatement (1924), 5 U. S. Rr. Lab. Bd. 286, Dec. No. 2305. The Board's opinion merits quoting: "Preponderance of evidence that the employee did obligate himself not to become a member of the Federated Shop Crafts. The real and serious question is whether or not a carrier has the right to require a prospective employee to surrender in advance his future freedom of action as a citizen and employee in the exercise of his rights under the law. "The Transportation Act (1920) gave employees the right to participate in the selection of representatives. "This provision would be nullified if the carrier, when employing a man, could require him to pledge his future action as to affiliation or non-affiliation with labor organizations. Such a pledge would forever deprive an employee of the rights conferred upon him by an Act of Congress, or rather, indeed, the rights which he already possessed and which Congress merely recognized and affirmed. To impose upon an employee such a condition is not only unlawful but it is inherently unfair and unjust. "Employees must under the law be left free to choose the labor organization with which they will affiliate." McCord v. Thomp'son-Starrett Co. (1908), 129 App. Div. 130, affirmed in (1910), 198 N. Y. 587, is a case which, is squarely in point and wholly decisive. Here the court held an employer's promise to employ only the mem 382 bers of a favorite trade union opposed to public policy and void as a condition to a bond, the tendency of the promise being oppressively to coerce the employees in the choice of the labor organization to which they would belong. There is judicial recognition that numerous conditions and promises are improper as collaterals to the work contract. The court exclaimed in Claygate v. Batchelor (1601), 43 and 44 Eliz. Owen 143, with reference to an employee's promise not to engage in his calling that the employee "might as well bind himself not to go to church." Miscellaneous restrictions attempted to be imposed in labor and other relations were struck down in the following cases: Stipulations that employees should not purchase at the plaintiff's store were held unlawful in Graham v. St. Charles St. Ry. Go'. (1895), 49 La. Ann. 1656; Wesley v. Native Lumber iCo. (1910), 97 Miss. 814; International Great and Northern Ry. Co. v. Greenwood (1893), 2 Tex. Civ. App. 76. Expulsion from a society for failure to attend masses at least twice a year was held invalid in People ex rel. Schmidt v. St. Franciscus Benev. Soc. (1862), 24 How. Pr. 216. If the performance of a contract exposes one to serious physical hazard, such performance is not required. Williamson v. Dils (1903), 114 Ky. 962. So the promises of worlmen to keep themselves exposed to unnecessary physical hazards thus enhancing their physical insecurity would be opposed to public policy. Contracts enhancing their economic insecurity as greatly as does the present Contract should likewise be held to be opposed to public policy and interest. Attempts to give up the free exercise of the right of suffrage are frustrated by the courts, Stein v. Marks (1904), 44 Misc. 140. Could the plaintiff by a contract designate the political party to which its employees should belong? A provision against enlisting in the military service is 383 invalid. See In re Mulholland Benev. Soc. (1873), 10 Phila. 19. Something of the law's concern for preserving the bodily freedom of men is reflected in such cases as In re Baker (1865), 29 How. Pr. 485. There are promises and stipulations which cannot be made collateral incidents modifying the marriage relation. Compare Curry v. Curry (1887), 10 Hun 366. But in such a contract no disparity of bargaining power is involved. More rigid judicial supervision is called for, where such disparity exists as it does here. Just as the plaintiff's anti-union promise constitutes improper meddling with the affairs of the worlmen, so workmen may be guilty of improper meddling with the affairs of their employer. Thus where a labor union attempted to dictate to an employer whom it should employ as a foreman, a strike called because of the employer's refusal to submit to such dictation was held to be unlawful in Grassi Contracting Co., Inc. v. Bennett (1916), 174 App. Div. 244. If the plaintiff believes in the rule which it is here seeking to establish, it must be prepared to defend a reverse application of that rule. A hypothetical case involving a reverse application of the rule contended for by the plaintiff will strip it naked, disclosing its viciousness, and disclosing also that the plaintiff, in drafting this Two Year Contract did not realize the full implication of what it was doing. Let us suppose a powerful national trade union, taking for our example a hypothetical national union of plumbers. This union, we will assume, dominates the whole national situation. To make sure that its members can deal with those with whom they contract on terms of their own dictation, it exacts from each contractor a promise not to join any association of contractors. Now if that promise stands, particularly if a court of equity enjoins those attempting to organize an association of contractors, the plumbers will be able to deal with the contractors, each in complete isolation from his fellows, and will have 384 them bound hand and foot. That is an exact reverse application of the law which the plaintiff would have the court make in this case. The plaintiff could not have realized the full implications of what it was attempting when it drafted the two year promise to work as a vehicle to carry the promise not to, join a union. At this point, the defendants desire explicitly to state that any such promise, corresponding as the foregoing does to the anti-union promise, which any labor union might exact is opposed to public policy and should not be enforced by the court. They ask no more than they concede. It is easy to sit so close to this case as not to see the tremendous size and seriousness of the problem which the plaintiff, by drafting this revolutionary work contract, has raised. Because it is so revolutionary, argument to disclose its vicious character cannot avoid the appearance of novelty. But to get it sharply into focus, in order to see what this Two Year Contract is really like, let us suppose that the customers of a large electric light company think the company's charges for current are too high and attempt to form some sort of a consumers' league or association so that, by collective negotiations with the company, they can get these rates lowered. Could that company, approaching the residents one at a time, obtain their promises not to join that consumers' league by threatening to refuse or to discontinue light service and then get a court of equity to restrain those attempting to organize such a consumers' league from inducing these residents to join? True, these residents could go to using candles and be free to join the league, but even that liberty, the plaintiff would take away from its employees, because it seeks to bind them to work for a fixed period. The alternative that the residents use candles is not extreme. It would not produce the hardship that the loss of the means of livelihood would cause the plaintiff's employees were they to quit in order to join a union. 385 The foregoing analogy is not weakened by the fact that the light company is a public utility bound to supply current to householders. Their need for this service is, indeed, less urgent than is the need of these fourteen thousand men employed by the plaintiff for jobs at which to make a living. Other subway jobs are not available. The Brooklyn Manhattan Transit Company has a like antiunion contract for them to sign. Is there liberty present when the alternative is to migrate to other cities and seek employment on other transit lines already fully manned? Or in what real sense are they free to change their occupation and become icemen, farmers, or sailors? If this Contract stands, these men must face such alternatives, or give up the idea of joining a union. As the foregoing analogy makes clear, the plain fact must be that when the plaintiff drafted this Two Year Contract in order to cause courts to uphold its anti-union stipulation, it could not have fully realized the dimensions and seriousness of the consequences of what it was doing. The foregoing discussion of the work contract in modern industry deals with the question as to the proper scope of that contract in point of subject matter. It considered the promise to work and to employ to be the nucleus of the modern work contract and raised the question as to what collateral or incidental promises we should permit to be tacked on. May the workman by promises obligate himself to submit his household to regular inspection by the company? May the company bind itself to the workmen not to join an association of employers? THE Two YEAR PROMISE TO WORK Is OPPOSED TO PUBLIC POLICY. All the foregoing discussion leading to the conclusion that the anti-union promise is an improper barnacle on the modern work contract, leaves out of account a second serious aspect of the Two-Year Contract. This Two-Year 386 Contract purports to bind these men individually not to quit work. That is revolutionary and, being unsafeguarded on the employees' side, it is impossible. There are no utterances in the law books fraught with more wisdom than those of Judge Rodenbeck in Michaels v. Hillman (1920), 112 Misc. 395, 399, where he says: "The right to discharge and the right to quit work must be reciprocal until some other equitable basis of employment than the open market is established." As this Contract stands, the wisdom of that utterance is decisively against it. Large corporate employers whose labor policies affect the welfare and destiny of thousands of industrial workers cannot bind those workers to the job until and unless they are prepared to assume the burdens of necessary safeguarding provisions. If the men are bound to work for a fixed time at a fixed wage and the Company is not bound, the men take the risk of both a rise and a fall of wages. A change in economic conditions is made a cause for discharge but not for quitting. If wages go up, the men must stay at work on the same low wage. If the wage level goes down, the Company can discharge these men and hire cheaper workers. If business falls off so that it is no longer profitable for the plaintiff to employ these men, it is free to lay them off. If wages rise so that it is no longer profitable for these men to work for the plaintiff they may not quit. This Contract will be held unenforceable for this reason. If ever in American industry we come to the point of binding men to work for fixed periods of time, it will be because we shall then have the absolutely indispensable safeguarding device for such unconditional promises to work, viz., unemployment insurance. Where is the plaintiff's unemployment insurance necessary to equate the men's unconditional promise to work? If it is ready to advocate that the unconditional promise to work is valid, it must be ready also to advocate unemployment in 387 surance and to foot the bill for it. One without the other is unworkable and impossible in modern industry. If employers want workers to guarantee them a labor supply at a fixed maximum cost, they must install and pay the cost of unemployment insurance. By this Contract, the plaintiff seeks to eat its cake and have it too. Large corporate employers cannot compel labor to guarantee it an adequate supply of help at a fixed price when times are prosperous without offering it at least some compensating advantage. Here the Company offers them none which they would not have under an employment from day to day. "The right to discharge and the right to quit work must be reciprocal until some other equitable basis of employment than the open market is established." THESE PROMISES COMBINED ARE DOUBLY ANTI-SOCIAL. The foregoing discussion has shown that the plaintiff's anti-union promise standing alone is an improper barnacle on the modern work contract; and it has just shown that the two year promise to work and the two year promise not to quit, which the plaintiff has taken from its men, are each impossible. But it is when you combine these unsafeguarded and destructive provisions that you get a result far exceeding in seriousness the sum of the results which they separately produce. There can be no independent union among these men worth anything unless large numbers of them join. Large numbers could not quit to join if this were a hiring, of will. Large numbers could not quit to join if their promises to work are valid because equity will enjoin a strike in breach of contract. Since, therefore, no independent union can be organized among these men, the present Two-Year Contract can be renewed because the men will have no collective strength to resist such renewal. The men remaining unionless, such a renewed contract can in turn be renewed and the process can be continued indefinitely. Not only can the process be 388 continued indefinitely, but it will be continued indefinitely. That is just what the combination of these two vicious promises actually means. Enjoin the inducement of the breach of these anti-union promises and the necessary consequence is a permanent state of helplessness on the part of these men as against the plaintiff Company. And that consequence is most serious. Over-measured expression cannot hide its seriousness. It means an industrial serfdom not merely for the plaintiff's employees but for all workmen whose employers adopt these mated promises, as they will do in increasing numbers if the plaintiff's Two Year Contract receives judicial approval. The whole thing is vicious to its core. It flouts American ideals of liberty and independence and the studied opinions of the outstanding authorities on the labor problem contain explicit and solemn warning that this road leads directly to dangerous consequences. Contracts involving any servitude are invalid under our law. The Court of Appeals in discussing a case involving a salesman's promise not to enter the employ of any competitor of his employer for a period of eight years from the expiration of the contract of employment said: "A contract by an ordinary workman not to enter the employ of another for eight years after leaving his employer when there was no element of secret information involved is so unreasonable as to make the contract one in restraint of trade-personal liberty-so void." And in Kaumagraph Co. v. Stampagraph Co. (1923), 235 N. Y. 1, where an employee promised in return for employment never to work in any similar business, the court found that the contract "savored of servitude", and so was unenforceable in equity, since the trade processes of the business were not strict secrets. In Taylor Iron & Steel Co. v. Nichols (1908), 73 N. J. Eq. 684, an employee promised to work for five years; not 389 to disclose during the term of employment or thereafter any trade processes which he might learn or invent. This was held invalid for broadness, since in effect it bound the employee to restrict the exercise of his skill and expertness to the employer's business forever. "Such a restraint savors of servitude, unrelieved by an obligation of support on the part of the master." Great numbers of cases condemning such promises by employees on the ground that they savor of servitude can be found in the books. One such case is Ehrman v. Bartholemeto (1898), 1 Ch. 671. Here the plaintiff, a firm of wine merchants, contracted to hire the defendant for ten years, and the defendant promised to work for ten years and not to work for anyone else in any business during the term of employment. The court held that this was a harsh and oppressive stipulation and refused to enforce it. In fact the court could not countenance the idea of the defendant binding himself for ten years. Pomeroy, in speaking of this case said that the court really decided as it did because a contract binding the defendant to work for so long a period as ten years is harsh. -It puts him in a condition of economic servitude. That the plaintiff's Brotherhood and work contract constitute an arrangement for servitude in the sense in which the courts have spoken of it is apparent when one considers that employment contracts are not assignable by the men. This arrangement is much like that imposed upon the old indentured servants of slavery days. As far back as 1856, a contract for service for a period of five years was held opposed to public policy. The case of Parsons v. Trask (1856), 43 Mass. 473, was an action for inducing away a servant. The plaintiff contracted with a Swedish girl that she should serve him for five years, the girl being at the time of the making of the contract over 21 years of age. It is true there was no limit to the kind of service which the girl was to render but the case is nevertheless strictly relevant. The court said: 390 "It is in substance and effect a contract for servitude with no limitation but that of time. Such a contract as this, it is scarcely necessary to say, is against the policy of our institutions and laws. If such a sale of services could be lawfully made for five years, it might, from the same reasons, for ten, and so for the term of one's life. The door would thus be open for a species of servitude inconsistent with the first and fundamental article of our Declaration of Rights which propriio uigore, not only abolished every vestige of slavery then existing in the Commonwealth but rendered every form of it thereafter legally impossible. That article has; always been regarded not simply as a declaration of an abstract principle but as having the active force and conclusive authority of law." The Thirteenth Amendment in fact provides that "neither slavery nor involuntary servitude except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction." In Bailey v. Alabama (1911), 219 U. S. 219, Mr. Justice Hughes, speaking for the Supreme Court of the United States refused to allow involuntary servitude to be hidden under the guise of statutory presumption of fraud. His language (p. 241) may be repeated here: "The words 'involuntary servitude' have a larger meaning than slavery * * * The plain intention was to abolish slavery by whatever name and form, and all its badges and incidents; to render impossible any state of peonage; to make labor free by prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit, which is the essence of involuntary servitude." Further, the court said (p. 242): "The full intent of the constitutional provision could be defeated with obvious facility if, through the 391 guise of contracts under which advances have been made, debtors could be held to compulsory service. It is the compulsion of the service that the statute inhibits, for when that occurs, a condition of servitude is created which would be not less involuntary because of the original agreement to work out the indebtedness. The contract exposes the debtor to liability for the loss due to the breach but not to enforced labor. * * * W1hat the state may not do directly, it may not do indirectly. '* " There is no more important concern than to safeguard the freedom of labor,, upon which alione can enduring prosperity be based. The provisions designed to secure it would soon become a barren form if it were possible to establish a statutory presumption of this sort and to hold over the heads of laborers the threat of punishment for crime under the name of fraud but merely upon evidence of failure to work out their debts." Other cases of well-settled law which illustrate the viciousness of the device used by the plaintiff in the case at bar to restrain the freedom of the employees are to be found wherever the courts have refused to enforce covenants made by employees not to engage in certain other employment as a condition to securing employment from the employer. The courts have held such covenants void as against public policy whenever they were not properly aimed at merely protecting the employer's trade secrets or were not a reasonable compensation for the employment given by the employer. As was said in Me-ter Co. v. Brock (1920), 147 Minn. 407, 411: "It may well be surmised that such a covenant finds its way into an employment contract, not so much to protect the business as to needlessly fetter the employee and prevent him from seeking to better his condition by securing employment with competing concerns. One who has nothing but his labor to sell, and is in urgent need of selling that, cannot well afford to raise any objection to any of the terms in the con 392 tract of employment offered him so long as the wages are acceptable. * * " Indeed, that whole body of law which prohibits undue restraint of trade is directly applicable to the case at bar. Freedom of competition is not far different in its social implications-in fact, much less important-than freedom to sell one's labor under the best possible circumstances and to the best advantage. The individual will not be permitted by society to so obligate himself as to forego opportunities to better the conditions of himself and his dependents. Moreover and finally the promise not to join a union other than the Brotherhood is not separable from the promise to work for two years. The fact that the latter is thoroughly opposed to public policy and is contra bonos nmores makes the former unenforceable, at least in equity. This case is distinct from a case involving mere restraint of trade where, under some circumstances, the court may divided the legal from the illegal and enforce the legal. Clearly, the. promise not to join a union was made to prevent unionization for an indefinite period and the promise to work two years was exacted to bolster it up. Constructed on the promise not to quit as a foundation, the promise not to join a bona fide voluntary labor organization crumbles when the foundation falls. 393 POINT XXI. Social and economic consequences of judicial approval and widespread use of the plaintiff's work contract. As far as the plaintiff's employees are concerned, it is clear that granting the injunction sought would result in their continuing in effect unionless and in a weak bargaining position both now and in the future. It is equally certain that, if the smart bargaining device of the plaintiff proves successful in this case, it will be imitated by other unscrupulous employers. Since one-third of the manufacturing concerns of the country employ nine-tenths of manufacturing workers and since not all employers have seen the light of the new day in industrial relations, the potential threat of the plaintiff's arrangements to the conservative labor movement is very great. As history shows and as is abundantly revealed by the analyses of the expert students of such problems, the universal aftermath of repressive acts against labor is an outbreak of secret association and radicalism. The denial of open expression to responsible conservative leaders means secret, irresponsible-and usually violent-radicalism; and all too soon the radical attack is leveled against the state as much as against repressive employers. It is true that such an outbreak would first have to conquer such organizations as those of the defendants in this case-organizations committed to "business unionism" and to conservative policies of conference, cooperation and arbitration of disputes. But this anti-union Contract, if enforced, would in time wreck such conservative unions and leave the way open to radical action. It is not at all a sufficient reply to the foregoing that company unions will meet the needs of the case, if conservative inter-company unions are destroyed. It is well appreciated by students of the problem, including both academic and business men and government officials, that the company union, relatively new and untried, is at the very most a promising experiment; and that even at its best it should merely supplement and not supplant the long established and well-proven national unions. The national unions can provide the basic collective bargain throughout the market-and this is necessary in modern far-flung inter-dependent industry,-while the company union, with this true collective agreement in the background, can confine itself to its particular local problems and make the necessary local applications of the general agreement. But the company union, standing alone, cannot remove disparity of bargaining power; 394 cannot secure the services of expert negotiators; cannot have its representatives free from the fear of discharge; cannot compass the forces of a nation-wide labor market; cannot bring proper pressure to bear upon securing remedial legislation when needed; cannot, in brief, cope successfully with the intricate complex problems of a highly integrated society since its representatives cannot have the requisite knowledges, skills, and independence of position. Even if there were ground to doubt the accuracy of these statements-and no such ground is found-the fact would remain that the company union is so new and our experience with it so meager that the natural position for equity to take is that of keeping hands off so that both types of workers' organizations should be allowed to develop freely and competitively. In this connection let it be noted that the promise not to join a union is deadly even to real company unionism. The defendants' affidavits show that companies which have bona fide company unions rarely request the anti-union promise; on the contrary many of these companies positively declare against any discrimination. In this they do well; for it is self-evident that the anti-union contract, a fertile spawning place of the psychology of conflict, prevents that attitude of understanding and cooperation upon which the success of true company unionism depends. Turning now to national unionism, it is established by judicial decision as well as by expert analysis and by business experience that the orthodox trade unions have rendered such essential service to: the worker, to business, and to society that equity will refuse to cripple them on the bare chance or in the mere hope that some new device will work equally well. These orthodox unions have stabilized wages and work standards and maintained them at levels beneficial not only to the workers but to business; have prevented a jumbled chaos of individual cutthroat competition in the labor market; have raised standards of living and of life; have rendered effective service even in the adjustment of grievances in the local shop and in particular have enabled these adjustmients to be worked out in the light of a market-wide experience; have influenced beneficially labor legislation; have,cared for their members in sickness and unem ployment; have cooperated and are today increasingly cooperating in increasing production, eliminating waste, and maintaining continuity of service; have provided the type of responsible organization upon which true cooperation must rest; have aided in shop discipline; have prevented strikes in far more cases than they have participated in them; have had a beneficial educational effect upon the individual worker and in particular have provided that outlet for self-expression, freedom, and personality that the mechanized, specialized conditions of modern large-scale 395 impersonal industry have tended in some considerable measure to check. Modern psychology tells us that individual self-respect is essential to effective motivation, and this observation of the experts has been abundantly verified by the experiences of the business world. Indeed, all the observations which have just been made concerning the place of the orthodox trade union movement in modern industrial society are, as the proof shows, observations of experts which have been checked by the experiences of our best business leaders. Over against the issues of public policy indicated in the foregoing let us place the fact that the Contract in the instant case is opposed to public policy not only on general grounds but also because it constitutes the keystone of the plaintiff's wasteful labor policy. A public service is involved in this case-one in which the people of New York have a most serious and special interest, even having a contractual interest in the plaintif's financial returns. The affidavits of experts make it clear that in their opinion the money squandered by the plaintiff in an ineffective labor policy is a very large sum. Part of this.is direct expenditure for machinery of intimidation and coercion; part of it appears only indirectly in higher costs because of lack of constructive employer-employee relationship. The plaintiff cannot properly ask that the anti-union promise of its alleged Contract be enforced by equity. Equity cannot consent to align the state behind a revolutionary contract which is contrary to public policy; cannot consent to a course of action which would crystalize the labor situation and would prevent the institutions of our labor market from working out unhampered and competitively and in the light of experience the policies and procedures needed in an era of rapidly changing conditions. On questions of social policy still lying in the realm of doubt and divided opinion, the traditional judicial attitude is that of not stepping in until some concensus of social judgment has emerged. To sustain the plaintiff's labor arrangement is for the courts to abandon this traditional attitude. THE PROMISE NOT TO JOIN A UNION IS DEADLY EVEN TO REAL COMPANY UNIONISM. In support of the proposition that the promise not to join a union is deadly even to real company unionism, it will be shown that: 1. The anti-union contract is not customary in companies which have organized their employees into bona fide company unions. 396 2. The anti-union contract is contrary to the spirit of real company unionism. As was shown in the Statement of Facts, an anti-union contract is most rarely included in company union plans. One hundred and seventy-two or 94.5 per cent of the 182 company unions concerning which the National Association of Manufacturers recently secured information have no anti-union contracts. The names of these 172 companies are not given but names are given for the smaller group studied by Miss Reticker in which 40 out of 44 companies have no such contract (Amended Answer, pp. 849-860). Such well known and successful company unions as those of the American Telephone & Telegraph Co., Cheney Brothers, Consolidation Coal Company, Davis Coal & Coke Company, E. L. du Pont de Nemours Company, Wm. Filene Sons Company, Midvale Steel and Ordnance Company, Cambria Steel Company, Timken-Detroit Axle Company, and Westinghouse Electric & Manufacturing Company make no mention whatever of union membership in the constitutions of their company unions. Many concerns go further in the protection of their employees against discrimination for union membership. Twenty-three of the 44 companies which Miss Reticker studied make definite provision that there should be no discrimination against employees because of union membership. The provision of Armour & Company, "There shall be no discrimination under this plan against any employee, because of race, sex, political or religious affiliation or membership in any labor union or other organization" is typical of the provision of such companies as Bethlehem Steel Company, Colorado Fuel and Iron Company, Columbia Conserve Company, Dutchess Bleachery, Inc., Forbes Lithograph Manufacturing Company, Goodyear Tire and Rubber Company, International Harvester Com 397 pany, Pacific Mills, Pennsylvania Railroad Company, Peoples Gas Light & Coke Company, Philadelphia Rapid Transit Company, Proctor & Gamble Company, The Pullman Company, Standard Oil Company (Indiana), Swift & Company, Yale & Towne Manufacturing Company. These companies are convinced that it is not desirable to force membership in company unions and to prohibit membership in outside organizations, but wiser to solicit their employees' approval of their company union plan on its own merits. The anti-union contract is contrary to the spirit of company unionism. The purposes of the company union are, ordinarily, understanding and cooperation between employer and employee. The Constitution of the plaintiff's Brotherhood includes in the preamble as purposes, "a. complete understanding between the employer and employee" and also "to make a closer understanding between the company and the employees.?" The presence in the Constitution of the provision that "all applicants for membership in the Brotherhood shall take the obligation as appearing in Appendix A" (the anti-union contract) makes for a complete understanding but scarcely for a close one. The men understand thoroughly the nature of the company union which has been wished upon them as a condition of employment. They know full well whose union it is and in whose interests it will work. The Company understands completely how it has bound its employees; what an empty instrument it has given them in place of their own independent organization. This is not the sort of understanding, however, which produces good spirit and frees men's wills for constructive cooperation. Yet cooperation is a declared purpose of the Brotherhood. The Constitution states that "the objects of the organization should be to cooperate with the Company; to promote the welfare of the members of the Brotherhood in good standing and of the Company by amicable adjustment of 398 all questions as to wages and working conditions that may hereinafter arise." Real cooperation requires a basis of confidence and freedom in giving or withholding cooperation. No one can cooperate unless he has the power to refuse or to withdraw cooperation. No one can contract to cooperate. When the employees of the concern are not free to, organize independently of their employers, if the basis of cooperation established by the Company proves inadequate, they cannot cooperate effectively through the Company's organization. The anti-union contract is fatal to cooperation. Cooperation is, furthermore, an attitude and a technique. A company union can develop both the attitude and the technique of cooperation if the management attempts to replace the psychology of industrial conflict with the psychology of joint interests; to supplant the technique of coercion by the technique of conference. But the antiunion contract is not likely to remove the psychology of conflict-it is a most fruitful source of further conflict. When a company denies its employees the right of free association with their fellow employees in other companies and in other cities, and reserves to itself the right of association with all similar organizations, it is interfering seriously with the possibility of cooperative relations. The attitude of a company which inflicts an anti-union contract upon its men and the attitude of men who sign such a contract as a basis of employment produces a pestilential atmosphere which is lethal to genuine cooperation and genuine company unionism. COMPANY UNIONS ARE AT THE VERY MOST PROMISING EXPERIMENTS. "Industrial relations are very much in the formative stage, industrial technique is constantly changing, experimentation is vital; there is no absolute science nor definitive experience to guide to fixed and certain conclusions 399 yet; the method of trial and error and patient accumulation of experience will be necessary for a good while to come. Law, therefore, should not seek at this stage to establish by fiat the absolute validity of any one method of handling industrial relations," says Professor Todd in his affidavit. One such industrial experiment is the company union. Within the past fifteen years many employers, especially employers of large numbers of workers, have organized their workers in company unions, sometimes calling them employee representative plans, works councils, shop committees, or industrial democracy plans. Government agencies, during the World War, urged the organization of employees in such groups, but with no thought of displacing regular unions. The result was that by 1920 the few scattered company union plans of 1914 had increased to about 300; today the number is even larger. Many company unions were introduced admittedly to prevent the organization of employees by regular trade unions. Others were so introduced though this purpose was not admitted. In spite of such inauspicious beginnings, many company unions have rendered service to the company and the employees concerned. As Professor Evans points out, "both types of unions have advantages over the non-existence of any union. Each type has its advantages over the other. What is necessary is to weigh the advantages from the points of view of employer, employee and the public." As a matter of fact, bona fide company unions may prove to be training grounds for regular unions. As Professor Todd says: "Whether they realize it or not 'company unions' introduced by employers as a means of avoiding 'outside unions' may be only transitional measures, training grounds for collective action on the part of employees." 400 It is submitted that bona fide company unions are at the very most promising experiments, as the experts who have made affidavits in this case and the current literature of economics indicate abundantly. Nothing which is said concerning promising company unions applies, however, to the plaintiff's company union because, as has been demonstrated in other sections of this Brief, its "company union" is a mere sham and a pretense. How promising experiments company unions are, in general, will appear from a discussion of the following three questions: 1. How can company unions supplement inter-company unions? 2. Can they substitute for independent national unions? 3. Since our experience is so meager, what does the public interest require in the matter of further experimentation? 1. Company unions can be made to supplement intercompany unions. The regular independent organization of the workers deals with general questions such as wages, hours and working conditions, which are common in all the establishments of the country or of a district. The company union or shop committee can, with a union agreement in the background, confine itself to internal shop matters, the particular problems of the company. Prof. Tead states this opinion in his affidavit: "Fundamentally also as a matter of industrial government there need be from a functional point of view no basic conflict between the existence and activity of labor unions in relation to a company and the existence and activities of a company union with that same company. The evidence of the best modern labor practices is that the best conditions in terms of cooperation, permanent employment and freedom from interruption from work, are assured when both forms of organization and negotiation are made use of in 401 relations with one company in a way that allows the one to supplement the other." The same point of view is further elucidated in the excerpts from Mr. Studensky and Mr. Lauck as a result of their extensive surveys of company union experiments. "Shop committees, industrial councils and cooperative schemes (i. e. company unions) will go along most effectively if placed on a trade union basis. With a strong independent organization of their own, employees will feel more independent, will assume a greater degree of sympathy and cooperation with management, and will be more active and useful in increasing the productive efficiency of the establishment" (Mr. Lauck). "The establishment of a shop committee in a shop in which the unions are recognized fills the breach within the union organization between the rank and file members and the union leaders and makes the union organization, if recognized by it, more democratic and manifold stronger" (Mr. Studensky). Professor Paul H. Douglas, in his thorough-going analysis of "Shop Committees: Substitute for or Supplement to Trade Unions?" outlines in considerable detail the functions which the local shop committees can perform, once the union has been recognized as the body with which the collective bargain is to be made. "1. It would furnish an excellent instrumentality for applying and interpreting the terms of the labor agreement made with the unions and would enable grievances to be settled with a minimum of friction. * * * "2. It would permit workers and employers to meet on a common ground and understand each other. The representatives of both groups can meet face to face in discussion over common problems. From this meeting a better mutual attitude is almost invariably created than would be secured by dealing only through intermediaries. 402 "3. It would enlist the worker's interest in production to a much greater extent than at present and would make the plant more efficient. Once protected by the collective bargain, workmen can be brought to realize that the greater the production the higher will be their real wages. "4. It would train the worker in the real problems of industry and would acquaint him with the actual condition of affairs. Just as the ballot leads citizens to become more interested in political matters, so would the very act of industrial suffrage cause the workers to take a more intelligent interest in the affairs of the workshop. Industry would thus become educative in a real sense, turning out better men as well as more goods. With the increased knowledge of actual conditions, impossible demands upon the part of the workmen would become less frequent. "5. It would lay the basis for a more effective organization of the workers, with the plant as the unit of organization rather than the present heterogeneous local. If the workshop is used as the basic local, there will be a better attendance at meetings and more interest in union affairs." Mr. Selekman, in his report to the Russell Sage Foundati.on, describes the actual workings of a company union among the employees of the Dutchess Bleachery, which cooperates with organized labor. He credits the success of this Partnership Plan to its cooperation with the folders, who are the only organized group of workers in the plant: "A company union should not be presented to the workers as a substitute for any other plan or organization requested by them in cooperation with national unions, and its purpose should not be to nullify or compete with union organization. Had the partnership plan in any way attempted to destroy the effectiveness of the folders' local branch of the United Textile Workers, they would undoubtedly have led an active fight against the plan, and, although less than one-fifth of the total personnel of the workers, 403 they would very likely have been able to undermine the confidence of all the operatives in the sincerity of the owners. The motives of the owners would have been suspected from the beginning and the plan would never have made a good start." 2. Though the company unions can supplement the inter-company union, the company union cannot substitute for a trade union. The company union falls far short of meeting the needs of industry, of the workers, and of the community. Professor Douglas says: "While the creation of a shop committee (company union) is a real step forward in plants now bargaining with their employees individually, and even here only as a transitional stage to a more desirable relationship, it is almost invariably retrogressive when used to displace collective bargaining with the unions or to delay or prevent such dealings. "Those who have irrevocably resolved that the growing movement of labor should be checked cannot be expected to favor unions in preference to shop committees. Rather will this class prefer shop coimmittees precisely because they will weaken the power of labor. Those however who know the conditions of life and work of the typical modern workman and his family and are sincerely desirous that he may have an opportunity to lead the better life, will realize that shop committees are not and cannot be a just substitute for labor unionism." Mr. Cooke adds his opinion that: "We have had too little experience with company unions to be dogmatic as to what contribution they may make to industry-when conceived and conducted under high purpose. But there is nothing in the record they have made to date to suggest that they can in any way be looked upon as the equivalent of or an adequate substitute for inter-company unions. "I am reasonably familiar with the company-union movement in the U. S. There are company unions 404 which have favorably affected the status of employees in one or more respects-some which have exerted a favorable influence in many respects. But in every instance such accomplishments appear to reflect the vision and good will of the employer." The company union is not the answer to the problems of the worker in modern industry. It does not remove the disparity of bargaining power caused by the size of modern business organizations, the power and wealth of corporate employers, the workers' lack of waiting power, of skill in negotiating and of knowledge of the market. It does not assure him justice in the core part of the work contract-wages, hours, and conditions of work-for those are determined by market-wide forces and cannot be influenced to any considerable extent by the employees of any one company even though they have real independence in bargaining with that employer. In reality the employees of a company union rarely have such independence. The apparent "family affair" between the company union and its own employer is really no family affair at all. Modern business is so inter-dependent that the employees in one company union are really usually bucking the employers of the entire trade. The conditions of work in modern industry have become group conditions and only group bargaining--with large and genuinely independent labor groups-can effect these conditions. "Economic organization today is not based on the single shop", says the Court of Appeals. Moreover, the company union gives the worker no power to influence these vital matters at the core of the work contract indirectly through securing legislation regulating hours and protecting health and safety. The company union fails the worker especially in the matter of his freedom and personality. It is a most inadequate bulwark against the dangerous forces of modern industry which make for standardization and regimentation. The company union is the company's creation. It can be taken away from the men at any time. True, if bona fide, 405 it provides channels of communication between men and management; it may set up machinery for collective negotiation and for adjustment of grievances; but when one party at the conference table is the employee of the other, subject to discharge and discipline at his hands, the machinery of conference can give the worker no real independence. Further, the company union is too small a group to set up group activities comparable to the mutual benefit associations of labor unions which help to protect the economic status of the worker as an individual and thus bolster up his self-respect. Because it is confined to one company, usually to one establishment, the company union lacks the financial strength and moral support which come from association with other workers in a nation-wide labor movement. All these matters will be discussed further in the next section of this Point. Professor Ogburn argues that company unions are especially no substitute for inter-company unions in the street railway business: "Company unions are a very unsatisfactory basis for co-operation between labor and capital, for the bargaining strength of company unions is negligible. Co-operation implies mutuality and willingness on the part of parties uncoerced. When power is in the hands of the company and not in the hands of the men, as in company unions, the basis of coercion and not cooperation is laid, no matter how disguised the form of coercion may be. Under favorable conditions the men in company unions may work well for a time, but it is hardly the basis for enduring good relations, for in times of crisis when the men need to stand up for their rights, they do not have the power. "It has been argued that in public service enterprises such as that of transportation in a great city, the right to strike on the part of the men should be abridged. It is unquestionably true that the strike in public service enterprises and in key industries is of different significance from strikes in other indus 406 tries; but one thing is certain: the company union is not the method of handling such strike situations. It should be approached on quite other bases, bases providing adequate machinery for safeguarding the rights of the workers. "The development of company unions in city transportation companies should be viewed with the gravest apprehension by the public; for they do not provide adequate organization for the crises. Indeed it may be that their development will accentuate the development of the crises and make them more severe, in all of which cases the public will be a sufferer." 3. Since company unions have such limitations that they cannot substitute for the workers' independent trade unions, the question whether their replacing trade unions shall be facilitated by anti-union contracts and by the injunction is a very serious matter. For one thing the company union is too new an industrial development for that to happen. As Professor Brissenden says: "The company union movement in this country is, as a wide-spread movement, a very new thing. Writers, teachers, and investigators who have given years to the careful study of both it and the much older trade-union movement, are by no means agreed as to the relative merits of the two types of organization. I am convinced that much more information is needed (particularly in respect to, local public utilities) about the results of operation on a bonwa fide company union basis and about some of the recently established systems of (trade) union-management cooperation. Evidently the wisest policy at the present time is that of allowing these two rival systems of organization as nearly as may be a completely free field and no favor. The greatest danger now is that the courts will step in with the injunctive process and so freeze up the situation that a possibly inferior and socially objectionable form of labor organization, protected in its appeal for the good-will of the workers, from the rival appeals that otherwise would be made by the trade-union, may be riveted into our industrial struc 407 ture. Any such artificial fixation of a new and developing situation is, it seems to me, greatly to be deplored. Given a free field, we may expect that type of union to prevail which most satisfactorily meets the needs of the wage-earners to whom it appeals for support. " 1 X* It must be remembered that, while trade unionism and trade-union collective bargaining are longestablished features of modern economic life-features almost universally recognized by economists as not only legitimate, but as important, perhaps the most important, causal factors in the elevation of the economic condition of wage-earners,-the practice of union-management cooperation is of much more recent origin. * X * For our experience with both the intercompany union form of cooperation with (and in) management and the bo on fide company-union form of such cooperation is very brief indeed. Like infant industries what they require now at the hands of government is not restraint but freedom-a free field and no favor-so that by further free experiment it may be possible, on the basis of more adequate and extended experience to make some definitive appraisal of the relative merits of the two systems." Since our experience with company unions is so meager public interest requires that both types of workers' organizations should be allowed to develop freely and competitively. Professor Commons states the situation: "From the point of view of the general public it is desirable that both types of unionism should be allowed to develop on a fair, competitive basis. That trade unions in the past have performed a useful function both the courts and the legislatures have often recognized. * * * That they have something of value to contribute to American life in the future also is highly probable, particularly in view of the interest Swhich so many trade unions are now manifesting in the problems of production and management. Perhaps, company unions also have served a useful purpose and have something to contribute to American life in the future. Clearly, public interest dictates 408 that both company and labor unions should be given an opportunity to show what they can do toward bettering conditions in American industry." Miss Van Kleeck also argues tellingly for further experiment under both types of organization: "My observations lead me to believe that experience in the last ten years in the United States, in the arrangements between companies and organized groups of employees giving representation to employees in agreements as to working conditions clearly indicates that we are only at the beginning of the possibilities of developing good will in industry, fostering efficiency, avoiding strikes and protecting human rights through giving opportunity to organized groups of employees to cooperate in management. Just what form the arrangement for worker-management cooperation will take cannot be definitely stated without more experience. Nor is it probable that any one form will suit all industries and all circumstances. Sometimes the agreement may be limited to one company; sometimes it may be industry-wide. It is in the public interest that the way should be left open for experiment. The agreement between the Interborough Rapid Transit Company and its individual employees, if sanctioned by the courts in that phase of it forbidding an employee to join any other union, seems to me clearly opposed to the public interest on the ground that it interferes with freedom to develop by experiment the most effective form of worker-management co-operation." Certainly the older and proved device-unionismshould not be traded for a comparatively unproved onecompany unionism. As Professor Keister says: "'The company union movement has yet to justify itself. It may have great possibilities for good latent within itself. It should be given every fair chance to demonstrate its possibilities, but I feel that it should compete with the trade union in a free field, a field in 409 which employers do not throw their weight on either side. The contract under discussion impresses me as an attempt to force the trade union out of the field and to force in the company union. Such an attempt seems to me to be against good public policy." THE SOCIAL NECESSITY OF GENUINE INTER-COMPANY UNIONS. When Mr. Justice Taft said, "Labor unions have long been recognized by the courts. They were organized out of the necessities of the situation. * * * To render this combination at all effective, employees must make their combination extend beyond one shop," in American Steel Foundries v. Tri-City Central Trades Council (1921), 257 U. S. 184, 209, he was voicing what is generally accepted informed opinion. Public men, liberal employers, economists and other expert observers of our social order are agreed that labor unions have come to stay, that they are a permanent factor of our American industrial civilization. Among the scores of statements concerning the social justification of unions which are assembled in the appendix to Mr. Brissenden's affidavit, the following are worth repetition here: "The trade unions of the United States have conferred such essential services upon their membership and upon the community that their real values are not to be overlooked or destroyed. They can fairly claim great credit for the abolition of sweat-shops, for redemption of fairer hours in industry, reduction of overstrain, employment under more healthful conditions, and many other reforms. These gains have been made through hard collective bargains and part of the difficulties of the labor situation today is the bitterness with which these gains were accomplished" (Herbert Hoover). "I believe emphatically in organized labor. I believe in organizations of wage workers. Organization 410 is one of the laws of our social and economic development at this time" (Theodore Roosevelt). "At this stage of the world's development it seems to me utterly futile to discuss whether or not labor should have the right to bargain collectively with capital. We might as well discuss whether slavery or freedom is the better plan" (Amos Pinchot). "In the past half century there has been an impressive reversal of expert opinion as to the economic warrant and social utility of labor organizations. * * * Collective bargaining is an economic necessity and trade unionism is the instrumentality by which it is exercised" (Prof. Jacob H. Hollander). "Organized labor is here to stay for a long time to come, and should, and probably will, be an increasing force for political betterment and for social welfare in the republic" (Professor Frank A. Fetter). "Happily the time has arrived when the employer is prepared to recognize that unions and associations for the protection of the employee exist and cannot be eliminated, and that collective bargaining is just as essential for the welfare of the employee as associations of capital are necessary and useful to the investor" (Sir Henry Thornton). "The right of the workingmen to combine and to form trades-unions is no less sacred than the right of the manufacturer to enter into associations and conferences with his fellows, and it must sooner or later be conceded" (Andrew Carnegie). Since there is such general agreement concerning the utility of labor unions, it will be in point to analyze in what direction their contribution lies. The scope of their utility measures the extent of permissible denial of conflicting social interests in order that such utility may be preserved to society. The analysis of the social utility of unions will center about the following seven points: 411 1. The influence of unions in stabilizing wages at high levels beneficial to the worker, industry and the community. 2. The necessity of the independent union to adjust the worker's grievances. 3. Unions and labor legislation. 4. Trade union benefits. 5. The proper basis for workers' cooperation with management. 6. Successful experience in union management cooperation. 7. Protection of the workers' freedom and personality in modern industry. 1. The influence of unions in stabilizing wages and maintaining wages at high levels is of value not just to the worker but also to business in general and thus to the community in general. As Mr. Sam A. Lewisohn says: "The social usefulness of trade unionism, past and present, in raising wages and standards and in improving the condition of workers in industry is unquestioned. * * * As a matter of social well-being, the present industrial world cannot afford to do without unionism." This general statement of an employer will have more specific meaning when we consider the analysis of an economist: "Despite the opinion of any well-meaning employers, no one plant under our present competitive industrial system can maintain proper standards of wages and hours by itself alone. There must be a general minimum for the industry as a whole below which no plant can fall, and the unified pressure of the unions is the chief means whereby the workmen may protect themselves against the attempts of employers to secure trade by depressing wages. The employer indeed should not be blamed for this, since he is merely striving to get business and in order to do so must make low prices which will attract the consumer. It has been just this necessity of preventing competitive encroachments upon wages which has caused the unions to evolve from local shop organiza 412 tions to the national and international unions of today. With our ever-widening market, the unit of labor organization must expand equally in order to maintain basic standards everywhere and to protect those already in its folds. To propose a return to the shop as the final unit of labor organization is, therefore, as much of an anachronism as to propose that our industrial system should return to the period of village self-sufficiency" (Professor Douglas). Professor Commons and his associates maintain, in the following words, that high wages which can be secured by trade unions are of benefit to the country: "The trade union is and has been an effective force for the raising and maintenance of wage scales. High wages are beneficial, not only to wage earners, but to business as well. The experience of the country during the last ten years, when business has expanded to a volume exceeding anything in our past history and at a time when our foreign markets were not as good as they would ordinarily be, has demonstrated the importance of high wages and enlarged purchasing power of wage earners as a basis for large production, sales and profits for industry. From every point of fiew, economists of all countries agree that high wages are essential to public welfare and social progress as well as to efficiency, both mechanical and personal. Company unions have not shown any distinct effect for the maintenance of high wages. In this respect they are not to be compared with the labor unions. "The adoption of a legal policy which would enable employers to crush unions would unquestionably result in diminishing real wages and checking business. It would also result in a discouragement of productive efficiency both on the part of the working classes and on the part of employers who are improving machinery because labor is expensive." On the basis of his long observation of the industrial situation, Commissioner of Labor Statistics Stewart ex 413 plains the chaos in the wage situation when company unions upset wage levels set by nation-wide forces: "The wage level cannot be determined and can only be disturbed by a company union in one establishment or in one company accepting a decrease in pay. Unless an organization has an entire monopoly of the field a reduction of wages even if apparently agreed to by a company union results only in throwing the wages in that company out of line with wages in other establishments in the same industry. The attempt to readjust wages throughout the industry to this sporadic decrease accepted by a company union upsets the industry both from a production and sales point of view and costs the industry infinitely more than is saved in wages. Besides, if a company union accepts a decrease and the industry other than that represented by that company does not secure through lockouts, strikes and other means a like decrease, the company union which has been forced to accept a reduction, even though apparently by its consent, soon disbands, and attracts to that establishment or company the activities of the I. W. W. that feed upon just this sort of thing-I mean the disparagement between wages in one industrial plant or district as against another industrial plant or district-and the expense to the company is in the end probably many times as much as it would have been had a national industrial employer's organization agreed with a national worker's union as to what was a fair wage in that industry. Witness what has been happening in the Colorado Fuel and Iron situation and what happened in the textile industries in Passaic." The trade union principle of uniform standards in regard to the conditions of work and pay and the trade union practice of trade agreements establishing such standards and regulating changes during the life of the agreement have undoubtedly raised standards of living for the workers. This also is of value not only to workers but also to society. As Professor Cohen says: 414 "Gradually, however, there has grown up the legal recognition that the welfare of the whole community demands that workers be allowed to join in trade unions strong enough to protect their interests and to promote a higher standard of living in that part of the community engaged in industry." It might seem that this discussion of nation-wide forces has little bearing on a local public utility with seemingly a definitely local market for its services and a definitely local labor market. Mr. Henry T. Hunt, however, in his affidavit, points out a very real connection. "The terms of these contracts (between the Amalgamated Association of Street and Electric Railway Employees and operating managements in many cities) have had an effect beneficial to unaffiliated street railway employees. A number of companies, not recognizing that defendant, have agreed that they will pay wages equal to the average paid in a number of cities where the said defendant is recognized. Thus, the effect of the efforts of said defendant is to stabilize the industry throughout the country. Labor turnover is reduced and efficiency increased. "As an example of the effect of defendant's wage bargains, the Philadelphia Rapid Transit Company may be cited. For many years that company's wage scales depended upon the average in cities where defendant had contracts." 2. The inter-company union with strength of collective bargaining and independence of management is quite as necessary in the day to day life of the shop as it is in the broad market negotiations of wages and working conditions. These market negotiations result usually in a trade agreement which is a collective work contract. It is a wage contract and specifies many other conditions of work. Conmmissioner of Labor Statistics Stewart in his affidavit cites that the agreements in the printing field: "cover every phase of the industrial relation between employer and employee, as to the hours of labor, the 415 time of day in which these hours shall be worked, a minimum of work to be performed, a minimum of perfection to be secured in the work and the extent to which the employer can overwork an employee, whether overwork is measured by time or quantity (speed rate), amount of ventilation and hygienic conditions that shall obtain in the plant, the amount of safeguarding of dangerous points, in fact the whole question of the rights of each can be and is written specifically into the agreement and the rights and individuality of both parties absolutely safeguarded." Such a trade agreement always leaves an area for interpretation when it comes to be applied in the shop. Where the trade agreement leaves off, the adjustment of personal grievances must begin. Decisions of foremen, arbitrary discharge or discipline, seeming discrimination in promotion or demotion, failure to divide up work when work is slack, changes of piece rates-these are typical of the situations in which grievances arise. Only an independent union can give the workers a sense of security in adjusting such grievances. Only members of an inter-company union know how such grievances are being adjusted in other plants. Out of experience in adjusting grievances, a union secures the incorporation, in agreements, of rules which protect the men against the abuse of power by management. It is; only too well known that employee representatives in company union shops lack the independence to secure adjustment of grievances. Indeed Professor Slichter says: "Studies of company unions reveal that they almost invariably experience trouble in inducing workmen to take up grievances through the shop conmmittee machinery because the men lack confidence in the ability of the company union to protect them against retaliation on the part of their immediate superiors." In the street railway business there are, of course, many special problems to be adjusted, arising from the success 416 or failure of the management in such matters as eliminating dead end runs, providing against excessive overtime required of workmen when they are not relieved at the appointed time by the workmen on the next shift, and distributing free time on holidays. 3. What the powerful independent labor organization cannot do directly through conference and agreement it may do indirectly through influencing labor legislation. Mr. Lewisohn points out "that unionism has been an important liberalizing force in its political and social aspects. Much of our social legislation has been built up with its aid. It has also served as' a useful critic of the general economic system and of social institutions, as well as of particular management methods." Mr. Douglas, similarly, states: "Company unionism does! not furnish the instrumentality which the unions do provide for the enactment of labor laws to better the conditions of labor. The labor question cannot be settled on the economic field alone. Protective legislation has been found necessary to protect men as well as women from the effects of unrestricted competition. * * * and its passage and subsequent enforcement depends largely upon the efforts of labor itself, together with that of the independent humanitarian groups. The unions, representing as they do a wide constituency, are enabled to apply a considerable measure of pressure for these purposes which unconnected shop committees would be totally unable to muster." 4. No less important are the internal activities of unions, their inconspicuous peace-time provisions to protect their members against sickness and unemployment. As the appendix to the affidavit of President William Green shows, all strong national unions have insurance funds drawn from a wide area. Most of these unions pay 417 sick benefits and death benefits: and some pay unemployment insurance. According to the American Labor Year Book for 1927, the component unions of the American Federation of Labor paid benefits to the amount of almost $20,000,000 during the year 1925, as follows: Death Benefits............. 11,020,625.55 Old Age Pensions......... 2,823,145.45 Unemployment Benefits... 1,658,327.05 Sick Benefits............. 1,842,292.48 Other Benefits............ 2,220,932.05 5. Trade union agreements and the adjustment of grievances as they arise clear the way for cooperation of workers and management to increase production, eliminate waste and maintain continuity of service. There is a very general agreement among the experts that inter-company unions provide the best basis for cooperation of workers and management. Many feel that only inter-company unions can provide a proper spirit for cooperation. The inter-company union can provide for cooperation on the basis of freedom of action, not the cooperation of contract but the cooperation of free will. Furthermore, independent labor unions can secure cooperation because of the determination of fields of common interest. As Professor Suffern says: "The best regime for the development of personality and capacity on the part of both management and employes is one in which the psychology of conflict has been displaced by common interest in working a project which is to the mutual advantage of both parties. It has been proven by experience that it is possible for both parties to attain more and more the attitudes which accompany a harmonious partnership. The workers are glad to follow the leadership of men who know what leadership means." As Professor Slichter points out, cooperation to increase production and to eliminate waste often involves technical 418 changes. Therefore there are special reasons why the workman's interests must be safeguarded before his cooperation can be secured. Professor Slichter states the case: "The deep conviction, which for generations has prevailed among nearly all workers, both organized and unorganized, that the immediate effects of technical improvements are injurious to wage-earners, makes the problem of getting the wholehearted cooperation of workers in increasing production and reducing costs largely an educational problem. Wageearners must be induced to abandon attitudes and beliefs which have acquired the force of deeply rooted and time-honored tradition. No agency appears to be so well adapted to performing this educational task as the trade union. The employer cannot do it because his obvious self-interest makes his pronouncements in regard to efficiency suspect. Company unions are handicapped because they are regarded by a large number of wage-earners as being mouth-pieces of the employers. The independent trade union is peculiarly adapted to this task because it is organized by wageearners, for wage-earners, and is run by wage-earners. It is able, therefore, to command the confidence of wage-earners in greater degree than any other organization. * * * "Wage-earners cannot be expected to take a wholehearted interest in improving technique unless they have definite assurance that they will not be thrown out of work because of the labor-saving methods which they suggest. An agreement between a trade union which is strong enough to compel the employer to live up to his promises appears to me to be necessary to create the sense of security which is essential to unrestrained and enthusiastic co-operation in improving technical processes. Taking human nature as it is, I do not think that an unsecured promise is likely to be more effective in creating a sense of security among wage-earners than it is among bondholders. Just as the mortgage is needed to make investors willing to purchase bonds, so the presence of a trade union, strong enough to hold the employer to his promise, is necessary to release the wholehearted co-operation of wage earners. -x * * 419 "The willingness of workers to co-operate in the improvement of technique presupposes that they will receive a certain and substantial reward for their help. A union strong enough to bargain on terms of approximate equality with the employer over the division of the gains from union-management co-operation would appear to be necessary in order to make the men feel confident that their co-operation will be adequately rewarded." In addition to making possible a spirit of co-operation, trade unions provide an organization which can be responsible for co-operation. On this point the following testimony of employers is significant: "Nothing but discord and anarchy results from the independent action of shop committees or local unions. The national unions, like the national associations of employers, can view policies from a national standpoint. They have greater responsibilities and therefore give all questions more careful thought before acting. Local organizations cannot long survive if they act without the approval of the national bodies. It is therefore, of the utmost importance to strengthen the hands of the responsible trade union officials." (V. Everit Macy, Former President of the National Civic Federation.) "We get better results out of the union as handled by the men than we get out of unorganized labor. The men are under control. They are expected to come up to a standard. * * * The union guarantees to give you good workmen, to control them, and see that all the conditions of the contract are carried out." (Col. Blethen, Editor of the Seattle Times.) The union's authority in actual practice goes so far as to prevent strikes, as Professor Taussig points out: "Hiring and firing, standards of wages, piece rates, apportionment of tasks, the powers of foremen, shop rules, may come to be settled not by the employer at his untrammeled discretion, but by conference, 420 agreement, contract.. When such methods of settlement, such participation in the contract of employment, are established and in effective operation, the strike may be subjected to greater restriction than can be imposed in their absence." The union's responsibility may go so far also as to discipline members. Commissioner of Labor Statistics Stewart in his affidavit states that "it is easier to get along without trouble if the worker, who is inclined to be troublesome, knows that he has an organization of his fellows not only in that factory but in the entire industry that will not stand by him if he is manifestly wrong and is in a position to replace him with a better man instanter." The Chicago Joint Board, Amalgamated Clothing Workers of America, in its report on "The Clothing Workers of Chicago, 1910-1922," points out that: "Along with its new rights and powers, the union takes on corresponding responsibilities and obligations. The enforcement of the agreement, so far as the workers' interests are concerned, rests ultimately with the worker's organization. And the power of the organization to make such enforcement effective depends upon the degree of discipline in its ranks. The spirit: of the agreement demands that while the workers' rights are to be enforced, their obligations under it shall also be observed and the power of the union shall be employed if necessary to enforce their observance." 6. Since intercompany unions provide the proper basis for cooperation of workers in the problems of management, it is worth while to see what success these unions have achieved in this direction. What is known as "unionmanagement cooperation" is a development of the last decade of industrial history, but there are many cases of amicable relations of unions and employers associations, and unions and individual employers where collective bargaining and trade agreements have continued unbroken 421 for over a quarter of a century. During the history of these amicable relations, the unions, in cooperation with management, have devised machinery for increasing production through more efficient methods. The American Federation of Labor has long been known as a "business union." It uses and advocates the use of nothing but the methods employed by other businesses. Its component unions use collective bargaining because of the inequality of bargaining power which, ever since the industrial revolution, has existed between the individual propertyless worker and the combinations of men and money which typically employ him. In these days when business is emphasizing cooperation as well as competition, it is entirely natural that American Federation of Labor unions should declare themselves for cooperation with management in the problems of industry, even though as Professor Commons says, "Labor unions are not organized primarily to advance the interests of employers." The statements of labor's cooperative attitude as expressed in the official publications of labor unions and the speeches and writings of various labor leaders are most significant. William Green, President of the American Federation of Labor, Matthew Woll, Vice-President, Bert M. Jewell, President of the Railway Employees Department of the Federation, and leaders of progressive unions outside the Federation, such as Sidney Hillman, General President of the Amalgamated Clothing Workers of America, and Warren S. Stone, late President of the Brotherhood of Locomotive Engineers, each speaks for his constituents in the quotations included in the record. President Green, in his talk on "MAodern Trade Unionism" before the Harvard Union in 1925, declared significantly that: "The antagonistic and hostile attitude, so characteristic of the old order in industry must be supplanted by a friendly relationship and a sense of obligation and responsibility. This is the newer concept of Modern Trade Unionism. In expounding this 422 philosophy I am conscious of the fact that there are employers of labor (so-called Captains of Industry) and workers in. industry (so-called members of the proletariat) who take sharp issue with the views here expressed and the conclusions reached. That is to' be expected. It is both logical and natural. * * * "Trade unionism has kept pace with the progress which has been made in -industry. It has, emerged from its primitive state into a modern institution, grappling with modern problems in a modern way. It is resolutely facing the task of seeking and finding a remedy for existing industrial ills.*** "The trade union movement has been passing through tha~t period when physical controversies and the tactics of force were most effective; it is now in a period when its leaders, must seek the conference room, and there, by exposition and demonstration, convince conferees of the justice and wisdom of Labor's position." Professor Commons sees in this cooperative attitude of the regular labor movement "the greatest bulwark which employers have against revolutionary unionism": "The rise of revolutionary unionism in the -United States has forced the regular unions of the American Federation of Labor and the railroad brotherhoods into a position of frankly protecting and standing up for the capitalist system and they are today the greatest bulwark which employers have against these revolutionary unions. Furthermore this situation has led these conservative unions to take the employers' point of view in increasing efficiency, extending markets and helping the development of productivity. In general the tendency -of unionism, when once the employer has recognized it and dealt with it on an equality is to give up revolutionary ideas of overthrowing capitalism and adopt partnership ideas with the employer." Professor Slichter's affidavit describes in some detail the union management experiment referred to by very many of the experts: that of the railway shop craft -unions 423 involving 85,000 men on the Baltimore and Ohio, Canadian National, and Chicago and Northwestern Railways. This supplements Mr. Beyer's full statement of this plan and its workings. Perhaps Mr. Beyer is prejudiced-perhaps he is too close to the plan. But Mr. Slichter is an impartial student of labor problems who has for four years been making a study of shop rules and policies of trade unions for the Institute of Economics in Washington. He describes the suggestions which have been made under the plan and comments: "The advantages of union-management co-operation to the roads extend far beyond the savings which result from specific suggestions. In a description of the plan prepared for the American Management Association, br Mr. John Roberts, General Supervisor of Shop Methods for the Canadian National Railways (quoted among the excerpts in Mr. Brissenden's affidavit), he emphasizes the importance of the improved morale and the effect of the attitude of workmen upon the success of managerial policies. 'Many schemes for increasing the efficiency of railroad labor, and promoting economy in operations,' says Mr. Roberts, 'have been devised by railway managements since the war. Some of these schemes have failed in general to produce significant results because they have been promoted from the top and have usually lacked sufficient incentive to enlist the willing cooperation of the men..' (Affiant's italics.) The guarantee of more stable employment which has been coupled with the union-management co-operative plan has thus far proved a sufficient incentive, according to Mr. Roberts, to enlist the willing co-operation of the men in promoting the success of new managerial policies." Mr. Robert's article referred to, further states: "The primary incentive that has enlisted the co-operation of the shopmen in the union management co-operation plan to date has been steadier employ 424 ment, closer relationship with the management and improved working conditions. "Among the specific benefits to the company under the plan which have been cited from time to time by railroad officials, the following may be listed: Improvement in quality and quantity of production. Reduction in unit costs. Savings in materials and supplies. Reduction in labor turnover. Fewer grievances. Material reductions in delays. Improved service to the public. Increased business for the road. "That part of the co-operation plan which calls for spreading repair and maintenance work more evenly throughout the year is expected to result in some savings to the road. It is expected to bring down losses due to deterioration of unused plant and machinery, overhead charges on idle equipment and carrying charges on unused materials and supplies. When placed in full effect, the stabilization program is expected also to eliminate overmanning of work forces and overtime payment to labor in periods of peak production, losses of the more efficient men seeking steadier jobs, and to minimize labor turnover. It is estimated that the cost to a railroad of breaking in a new man ranges from fifty to three hundred dollars per individual. A reduction in labor turnover may therefore result in savings comparable in importance to those brought about by increased labor efficiency. "The influence that such a relationship as has been created under the union management plan exerts against strikes is obvious. Strikes and friction between unions and management, in the opinion of William J. Johnston, president of the International Association of Machinists, "are a transitory phase of the relationship" which will tend to disappear with the extension of co-operation." The statements of Sir Henry Worth Thornton, Chairman of the Board of the Canadian National, and Daniel Willard, President of the Baltimore & Ohio, are even more significant: 425 "On the Canadian National Railway System we are definitely and irrevocably committed to the principle of [union management] co-operation with our employees. The experiment in shop co-operation, upon which we have lately embarked, carries with it thus far much promise for the future. We propose to move steadily forward, hand in hand, shoulder to shoulder, with the leaders of this movement, and we have an abiding faith in its ultimate advantage to both the railway and its vast army of employees." (Sir Henry Thornton.) "I believe that it has now been fully demonstrated that the cooperative plan which the Baltimore and Ohio Railroad has put into effect, in cooperation with its shop employees, and with the support of their respective unions, is no longer an experiment. It has more than justified itself from many different angles. It is now a part of the definitely adopted policy of the Baltimore and Ohio Company, and I have a feeling that we have not yet begun to realize the potential possibilities of the plan. As time goes on and as we develop and cement still further the understanding and relationship which has already grown up between the management and the men, I feel certain that the friendly and sympathetic efforts of both parties will discover and suggest new methods and new practices that will not only make for economy, and thereby enable the railroad to pay good wages and at the same time maintain satisfactory working conditions, but will also contribute towards giving to the public lower rates for transportation service which they desire, but for which in my opinion they sometimes press with undue and unwise urgency." (Mr. Willard). The testimony before the U. S. Commission on Industrial Relations in 1914 contained many significant statements by employers of the value of collective bargaining and co-operative dealings: Joseph Schaffner, of Hart, Schaffner & Marx, pioneer in co-operative handling of shop discipline, and in arbitration of disputes in the clothing industry, in answer to the question, "Would you go back to 426 the old way of dealing with employees?" said: "No, not in a thousand years." Mr. T. I. Hogan, of the Stove Founders Defense Association, which has maintained industrial peace by co-operation with the Moulders' Union since 1891, stated his opinions in the following testimony: "Commissioner Weinstock: What, as an employer, have you found to be the advantages and disadvantages of dealing with organized labor? "Mr. Hogan: Well, I have found it very advantageous for the stove manufacturer. "Commissioner Weinstock: In what way? Please explain what the nature of the advantage is. "Mr. Hogan: In the first place, they have had, since they started making these agreements, they have had no strikes. That is one gTeat thing, and they have always managed to make agreements with these men and have them carried out." "Commissioner Weinstock: You say that the chief advantage in dealing with unions is due to the fact that you have had industrial peace? "Mr. Hogan: Yes. "Commissioner Weinstock: Now, what, if any, have been the disadvantages? "Mr. Hogan: Well, I do not know. I would not say there were any. "Commissioner Weinstock: As a matter of choice, would you rather see the unions remain in existence, or be wiped out? "Mr. Hogan: I would rather see them in existence; if I was running a factory of my own, I would not have anything else; not while I was a member of the Defense Association." "Commissioner Weinstock: That is, you would rather do collective bargaining rather than do individual bargaining? "Mr. Hogan: Yes. "Commissioner Weinstock: Do you get higher efficiency from members of the union than you do from the average non-union men? "Mr. Hogan: No question about it. "Commissioner Weinstock: That is, the union men as a rule represent the higher slilled workers? "Mr. Hogan: Yes. I have had some men from the other side, and I have always found the union men the best men." Mr. Charles Francis, President of the Printers' League of America, Mr. Fremont Older, Managing Editor of the San Francisco Bulletin, Mr. John Wanamaker, and Julius Henry Cohen, Counsel for the Manufacturers' Association in the Cloak Industry gave similar testimony. The English delegation appointed to study industrial conditions in Canada and the United States last year, commented on union-management cooperation as a significant development of modern American unionism. Their report states: "A very interesting phase in the development of trade unionism in the United States is the extent to which certain unions have entered into the technique of business. In the clothing trades, for example, the Amalgamated Clothing Workers Union of America have established a research organization by means of which they are fully cognizant of all aspects of the industry, including its commercial side, and are in a position to advise employers. * * * "Organized labour have accepted what may be termed 'the machine age' as an inevitable development of modern industry. They believe that management and labour are both dependent upon industry and that both can make use of capital for their joint advantages. It is their avowed policy to cooperate with management to, the best of their ability in increasing production by improved methods of manufacture, standardization and the elimination of waste. They have abandoned the old standards of 'living' or 'saving' wage, and hold that, the value of compensation of a worker is a fair share of his increased production. They concern themselves with industrial questions only. Changes in production and the introduction of labor aiding machinery are accepted as a matter of course. The organized labour movement 428 attaches the utmost importance to the efficiency of management, and to the efficiency of the workman so that he can develop the maximum of productivity without overworking or over-exertion and thus justify his high standard of living." The influence of the practice of cooperation on union policy is cited by several observers. Professor Kallen notes that: "Unions which begin with revolutionary doctrine develop, under the influence of cooperation, into- bulwarks of their industries. The Amalgamated Clothing Workers of America is an outstanding example. This union, again and again, by its own initiative, has saved employers from business failure." The responsibilities of union activity, particularly of cooperative activity, have an educational effect upon the individual workmen also. Andrew Carnegie has pointed out how important this is: "Labor unions certainly educate the workingmen and give them a truer conception of the relations of capital and labor than they could otherwise form. The ablest and best workmen eventually come to the front in those organizations; and it may be laid down as a rule that the more intelligent the workman the fewer the contests with employers. It is not the intelligent workman, who knows that labor without his brother capital is helpless, but the blatant ignorant man, who regards capital as the natural enemy of labor, who does so much to embitter the relations between employer and employed; and the power of this ignorant demagogue arises chiefly from the lack of proper organization among the men through which their real voice can be expressed. This voice will always be found in favor of the judicious and intelligent representative." 7. The need of inter-company unions of labor's own formation and control in order to preserve the worker's 429 freedom and personality is nowhere better stated than in the language of the Final Report of the U. S. Commission on Industrial Relations from which we quote: "It has been pointed out with great force and logic that the struggle of labor for organization is not merely an attempt to secure an increased measure of the material comforts of life, but is a part of the age-long struggle for liberty; that this struggle is sharpened by the pinch of hunger and the exhaustion of body and mind by long hours and improper working conditions; but that even if men were well fed they would still struggle to be free. * * * While it is admitted that in some cases exceptional employers treat their employees with the greatest justice and liberality, it is held to be a social axiom that no group of workers can become free except by combined action, nor can the mass hope to achieve any material advance in their condition except by collective effort." This matter of the freedom of the individual worker is a very important matter for the court to consider, because the worker is a citizen as well as a producer-a person as well as an agent for providing the commodity, labor. If there is an unregulated competition for jobs, the worker as a person tends to be inadequately considered. Unions can temper the work contract in the interest of personality and they have removed much from the work relations that was arbitrary and contrary to human welfare. At best there are many features in modern industry which tend to restrict the individual's freedom and personality; the size of business organizations, the domination of the machine, the impersonality of many work relations, the separation of the worker from ownership of tools, work place, and product form the background of the modern worker's problem. Against such a background, society needs to be reminded that, though labor be a commodity, the worker is not. Labor unions have an important social justification in their insistence upon recognition of this truth. 430 The historical setting of the labor movement may well be reviewed for a moment. Let Professor Edie's recent book speak for the experts: "The transition to the modern industrial organization, which developed to serious proportions during the middle of the nineteenth century, gave to the worker a status of obvious inferiority. I-e became a hired hand in the factory and railroad and mine, with no material control over the working conditions which decided the destiny of his life. The regime of machine production denied to the worker a share in the control of the raw product, or of the machinery for production, or of the reward for work, or of the amount of work to be done per day, or of the conditions under which work had to be done. The labor problem now is at bottom an effort to win a share of control in these matters which directly affect the worker's life. It has been said that 'the root evil of the present industrial order is that it affords to the ordinary worker in industry no means of expression and no chance of responsibility or active citizenship.' The labor movement is primarily committed to the removal of this root evil, and to the achievement of a status of influence, responsibility and dignity. * * * "Surface demands for new wages, new hours, new treatment are concrete signs of the fundamental thing itself,-a new assertion of the worker's dignity and power. In this respect there has been an institutional and spiritual change going on in social and industrial life. The mechanical facts of the working world have in great measure outrun the traditional ideas, principles and organization for their direction and control. The facts of automatic machinery, uninteresting toil, fatigue, long hours, bossy foremen, unreliable wages, advertised profits, these are beyond control by the traditional ideas of individual action, unrestricted managerial power, unbridled freedom of contract, individual bargaining, non-consultation between employer and employee, and 'business is business.' At least, they are not controlled to the satisfaction of the worker. Out of this maladjustment between the 431 mechanical facts and the traditional principles of industrial government have grown demands for new principles of industrial control,-that is, industrial self-control. The outcome has been the formulation of a new status for the worker. The new ideas call for group action, modified managerial power, collective freedom of contract, organized bargaining, joint conference between employer and employee, and industrial self-expression." In the light of modern psychology, the recognition of the individual is seen to be essential to the self-respect of every worker. The psychological considerations have been excellently stated in the affidavits of the experts: "Membership in a trade union removes the coercive element which membership in a company union imposes. It gives the individual worker a chance to speak for himself, without fea/r of the opinion of the rmanagement on the industrial matters in which he is concerned. This fear is a large factor in both his efficiency as a worker, and his sense of personal worth. It reduces the former to a rigid routine, and a minimum of actual effort. It degrades the latter." (Professor Kallen.) "One of the most valuable functions of trade unions is to afford the wage-earning class a means of being articulate. It is of great importance from the standpoint of the ccinmunity in general that wage-earners have authentic mouthpieces which can present the state of mind of the working people, their aspirations and their grievances, to the rest of the community. The greatest grievance of all is absence of an opportunity to be heard." (Professor Slichter.) "Labor organizations guard workers in industry against developing a general feeling of inferiority, futility and despair, and so prevent apathy and servility with its blighting effect on industrial and community morale from permeating the rank and file of wage-earners." (Mr. Beyer.) "Wages, hours and working conditions govern the greater part of the modern employee's waking life, 432 and extend their influence in economic, social and psychological ways throughout his whole existence and that of his family. The power to determine them is therefore more important than the political power which might be exercised by any dictator. For this reason, the employee's freedom and the needs of his personality require that he be granted a considerable influence over them, such as can be exercised only by strong unions independent of manaaement." (Mr. Soule.) The recognition of the worker's personality is, quite naturally, accorded them by many employers who, have been most successful in cooperative arrangements with union groups. Consider the statements in the record by such industrial leaders as President Willard of the B. & 0.: "Since we first set up our Co-operative Plan with the mechanical crafts the men have brought in over 18,000 suggestions-suggestions that were of course thought by someone to be good; if not for the benefit of the company, at least for the employees. Out of the 18,000 over 15,000 have been adopted. Many of them were small matters; many were only matters of convenience to the men. They might not mean much if anything in the matter of economy or efficiency, in the way of immediate results for the company, but we tried to keep in view all the time, the importance of a right, state of mind. Without a right state of mind or point of view, we were sure we could not go ahead at all. If the things that some of the employes wanted-a better water cooler, more conveniently placed, for example-if that had the effect of bringing about the state of mind that we desired, why then it was a desirable thing to do from our standpoint. * * * "We have joint committees of management and men who investigate and report on all suggestions that are brought up. If a suggestion is turned down as being impracticable, the decision is the result of the joint conference of management and the men. 433 "It is just as valuable to convince a man that an idea he has is wrong, if it really is wrong, as it is to give him better water to drink, or something of that kind. They both lead to the same thing-proper state of mind. I am confident that, large majority of our official group are governed by the thought that the worker is a human being like themselves and that the final test to be applied in any given case is this: What would I want, if I were in his place? How would I wish to be treated?" Or this of President Sir Henry Thornton of the Canadian National: "I believe the great bulk of our working classes are reasonable and only seek those things to which they are justly entitled. My personal experience may have been unusual, but I can say frankly on this occasion as I have said before that, in all of my dealings with working people and trade union leaders, I have never found the first to be deaf to reasonable argument and fair treatment, and I have never had one of the latter let me down or pursue a treacherous or dishonest course. I think we must accept as axiomatic the statement that the great majority of workers are fair and reasonable." Or this of Sam Lewisohn of the Miami Copper Co.: "There is no doubt that our present system does not adequately satisfy the desire of the workmen for status. Rightly or wrongly, those employed feel that they are in the old position of servants to masters. The fiction of self-importance, something which every human being cherishes, is to their minds constantly being impaired. This is the age of self-determination. To live the most important side of one's life under another's patronage and always obeying another's will, because that other person can exert the price of money, is to many painfully oppressive. Even more so is this feeling when there is a belief that they are being exploited-that an excessive amount of money is being made out of them, despite the fact that this 434 may provide them with a fuller market basket than some system which is less practical from"an economic point of view." The importance of unions in this direction may be summarized in the emphatic words of Professors Commons and Keister: "If unionism was completely withdrawn from the American industrial situation there would be very little left of independence and freedom on the part of the workers and they would have extremely little to say about working conditions." (Professor Commons.) "I believe that, with the exception of the invention of machinery, the trade union movement can justly claim to have done more to better the economic conditions of the working people in England and America than any other one thing. * * * They have lifted the bargaining power of their members to something like equality with that of employers. Until the trade unions have clearly demonstrated their inability to carry on this work of betterment, I feel that employees should retain the right to affiliate with such unions." (Professor Keister.) The summary judgment of a few of the experts will pull together the threads of this discussion of the social necessity of independent inter-company unions. Mr. Justice Brandeis values these unions so highly that in his "Business-a Profession," he says: "The services which the labor unions can render in the future are even greater than they have rendered in the past. The employer needs the unions 'to stay him from the fall of vanity'; the employes need them for protection; the community needs them to raise the level of the citizen. Strong, stable trades unions can best serve these ends. Peace and prosperity, therefore, are not to be attained by any attempt to weaken trades unions, Our hope lies rather in their growing strength," 435 Professor Evans in his affidavit declares that: "Any system which would eliminate entirely the independent trades union would result in almost complete loss of all that has been gained in the hundred and twenty-five years of organized labor." Mr. Henry T. Hunt brings the general discussion down to the particular industry involved in this case: "The purpose of the principal defendant, The Amalgamated Association of Railway Employees, is in accordance with sound public policy. That purpose is to enter into collective agreements on behalf of such employees with the operating managements. Such agreements are in effect in many cities of the country. They present no evidence of inordinate use of power on the I.art of the union. The companies are functioning and have functioned more satisfactorily than in the period of individual contract. The morale of the employes and the quality of their service have been greatly improved. * * * "It is submitted that the history of unionism in the street railway industry demonstrates that efficiency of operation is promoted by free unionism, i. e., unionism controlled by the employees. It would seem to follow that public policy would be served by the encouragement of such unionism. This result seems to follow from whatever point of view the question is approached. Unionism improves the service to the public and it also increases the capacity of the employes as citizens of a democracy. The training in the functioning of the union renders them capable of democratic action in the city, state and nation." THE THREAT OF THE ANTI-UNION CONTRACT TO THE PRESENT CONSERVATIVE LABOR MOVEMENT AND THE SOCIAL DANGERS WHICH ITS COLLAPSE WOULD INVOLVE. WHAT MIGHT WELL HAPPEN IF THE PLAINTIFF'S TWO YEAR WORK CONTRACT Is UPHELD The relief sought is not damages for breach of the promise not to join a union but an injunction the practical 436 effects of which is the specific performance of that promise. If a work contract with a parasitic anti-union promise, such as this, is sustained by the courts and comes to be widely used, as such judicial approval would help cause it to be, there is substantial ground for the opinion that trade unions in this country would be thereby doomed. Before discussing the general situation, the legal one should be considered. Certainly in effect, all trade unionism among Interborough employees would be forever doomed. If the two year promise to work is sustained, it will constitute a high board fence surrounding the 14,000 men at work on the plaintiff's lines. None can get out without the Company's consent. All could not leave in a body because they cannot act in a body until first organized, and all could not leave in a body without breach of the contract to, work because the courts would enjoin the calling of such a strike. Individual men might filter out and others filter in to take their places, but the plaintiff Company holds the key of the only exit from the enclosure, and a constant though shifting body of 14,000 men are effectively bound to the job. Not for two years merely, but perpetually, because this Contract executed as it was can be renewed indefinitely, the men continuing unionless as they now are. But outside and beyond this enclosure is another even more serious, and that is the one sought to be erected by the promise not to join a union. If that promise stands and is, in effect, given specific performance by the granting of the injunction sought, there is an impenetrable barrier barring these defendants and others rightly interested in the welfare of the plaintiff's employees from inducing them to join a labor union so that they might prevent another vicious contract like the present being foisted upon the men and be prepared to negotiate on terms of equality when the present Two Year Contract expires. The Contract, if it stands, prevents unioniiation; 437 and without unionization it cannot be altered. It is literally a vicious circle. If the anti-union Contract stands and the plaintiff is thereby able to keep its employees from unionization, what will happen in the subway situation generally in New York? The Brooklyn Manhattan Transit Company which, the record shows, has bound its employees by a similar anti-union contract will continue its policy, and the plaintiff's present monopoly of jobs in subways and elevated lines in New York will be converted from a monopoly in effect to a monopoly by law. This will mean a complete present and future exclusion of any independent labor organization among these thousands of men, and we shall go on indefinitely having arrangements which malign the name "contract" as this one does by its sharing obligations but not advantages. Employers in many other cities with the same attitude and outlook on labor relations will undoubtedly follow the plaintiff's example. Fortunately not all employers will do so because not all employers have their eyes turned toward the past in viewing the problems of the worker in modern industry. For example: The Philadelphia Rapid Transit Company has cooperated with its employees in a genuine company union, and has simultaneously converted "a demoralized transit situation in 1911" into the "finest city transportation system in America" and "steadily increased wages until the employes are among the highest paid street-car men in America", according to Mr. Suffern's affidavit. During the last five years 10,000 employees have bought over 220,000 of the 600,000 shares of the company with the money which they received as their share of the economies effected by cooperating with management. This gives them practical control, because the stock is held intact and administered for the men by their own trustees. They are not likely to incorporate an anti-union clause in their constitution and adopt the repressive attitudes 438 of the plaintiff. In fact the Company has for years offered to cooperate with any union which two-thirds of its employees wish to join. The Pittsburgh Railways Co. has had such a successful experience in cooperating with the local division of the Amalgamated Association of Street and Electric Railway Workers of America that they are not likely to abandon this cooperative arrangement for a destructive program. Mr. McGrath's affidavit states that: "as a rule from 35 to 40 officials of the Company, and 60 to 75 officials and members of Division No. 85 of the Amalgamated Association have made it a practice to attend these regular conferences (monthly conference, to promote union management cooperation) and in addition, Mr. A. W. Robertson, the President of the Philadelphia Company, the holding Company of the Pittsburgh Railways Company, as well as Mr. W. D. Mahon the International President of the Amalgamated Association, have attended these conferences and addressed them commenting and lauding particularly the fine cooperative relationship prevailing between union and management on the Pittsburgh Railways Company." But few leaders of industry are as far-sighted and progressive as the Mitten management in Philadelphia and the management of the Pittsburgh Railways Co. As Professor Evans points out in his affidavit, employers are in business for profit: "Business men are considered successful almost solely in proportion to their ability to make profits. 'Successful' business men, then, are those who are so narrow-minded, whose whole character are so imbedded in ruts, that profits-in the long and short-runis the only thing they can see. Furthermore, most business men are relatively short-sighted. Each job is a stepping-stone, they feel, to others. Then, a business executive's life, as such, is relatively short. Generally they are installed in office by stockholders who are 439 looking for a man who can produce profits and produce them now; that particularly results from our modern system of buying and selling stocks on markets at rates determined by their recent earnings. Such a situation, then, makes employers seek short-run profits. In almost any industry the abolition of the union, installation of the manager in complete authority, will result in increased profits; wages can be decreased, hours lengthened, working conditions negatively modified, etc. Costs will decrease, profits increase. This may result in long-run loss of profitsbut the manager is seeking profits now, in order to maintain or increase his reward from his temporary constituency. "Consequently, it seems almost certain to me that if employers are placed in a position where trade unionism can be easily abolished, most of them will take advantage of that position." Since, as Professor Brissenden points out, 33.3 per cent of the manufacturing concerns of the country employ 90.3 per cent of the wage earners, according to the 1925 census of manufactures, it should be soberly considered that the adoption of the anti-union contract in one-third of the plants would deunionize practically the entire manufacturing industry of the country. Such unexcited observers of the labor situation as Professor John R. Commons of the University of Wisconsin believe that judicial approval and widespread adoption of an anti-union contract such as we have here would mean the end of the regular labor movement. Professor Commons says: "What the Interboro Rapid Transit Company can do, every other employer can do and many of them doubtless wi11 do. If it is established that an employer can, through the organization of a company union, the making of contracts with this union and of individual contracts with all of its employees, which prohibit membership in any but the company union, bar all attempts to induce his employee to join labor union, trade unionism in this country is doomed." 440 That is a considered judgment made under oath by a man whose expert opinions command universal respect. The preceding view, that anti-union contracts such as this will destroy the independent labor movement, does not include in its picture the reaction of the workers to possible wholesale attempt at deunionization. Workers who have been organized in independent unions will resent-and resent vigorously-the introduction of antiunion contracts. Their unions may be crippled, but all independent organization will not be eliminated. The success of such labor policies as the plaintiff's will change the character of the labor movement rather than annihilate it. As Mr. Beyer says, it "will seriously impede the normal, healthly growth of the independent inter-company unions along peaceful, sound, constructive lines, and instead will force these unions whose first duty is alway to organize the unorganized and underprivileged wage earner, to become more aggressive and militant, thus greatly reducing the union's capacity to play a helpful, constructive cooperative part in the conduct of industry." Rather than a. final, decisive defeat of genuinely labor organization will come a renewed struggle, a greatly embittered industrial struggle with a new form of unionism, aggressive, militant, and destructive, fighting back against an aggressive, repressive, destructive attitude of employers. As the Statement of Facts indicates, there is general agreement among the experts that company unions, introduced to head off trade unionism, can at most merely shift the strategy of organized labor (Professors Brissenden, Commons, Couper, Douglas, Edie, Evans, Fitch, Kallen, Saposs, Seager, Slichter, Suffern, Tead, Todd, Ward and Ware, Messrs. Bailey, Cooke, Soule and Wolman and Miss Van Kleeck). Professor Commons says that if the courts uphold this type of contract, they will "undoubtedly open 441 the way towards driving out conservative unionism, and opening the way for revolutionary unionism." The first result of the anti-union contract is a resort to secret association. As Professor Todd says: "The very nature of man cries out for association. If this impulse is not given free opportunity in the open and above board, it will inevitably work under cover, secretly. And this covert activity is likely to be much more devastating to employee loyalty, to managerial efficiency and to public confidence than overt unionism, that is, open agreements only arrived at between organized employers and organized employees." It has been emphasized that no strike is planned in this case. No violent measures are even thought of. It is not desired to introduce a "bugaboo" of the threat of radicalism, but counsel would be remiss in the performance of their duty not to point out that the experts are agreed that repressive measures are not conducive to industrial peace, and that if such contracts as the plaintiff's and such company unions as the plaintiff's become prevalent, radicalism will prevail. As Professor Evans says: "Radicalism develops most in those sections and industries where employees have been denied the protection of traditional trades unions." Professor Slichter declares that: "There is no better way of encouraging the development of hopeless, desperate, and irresponsible radicalism among wage-earners than by denying them authentic organs of expression, agencies which can appeal on their behalf to the rest of the community and which can present the case of the wage-earners before the bar of public opinion. Company unions, by their lack of initiative and independence, have conspicuously demonstrated their inability to perform this function," 442 Professor Seager's judgment is likewise definite: "I feel certain that a multiplication of company unions based, not on the loyalty and confidence of the employees, as under the Mitten Plan, but on rigid contracts like the Interboro's, which are made a condition of employment and are accepted by the employee, not because he wishes but because in his situation he is forced to accept them in order to obtain work, and on a determination by the courts that contracts so entered into are entitled to protection through injunctions and otherwise, would give a radical turn to the American labor movement that would be highly detrimental to the public interest." It has been pointed out that during the past quarter century labor and management have in many instances reached a high level of cooperative relationship. The trade unions have come to see that many of their interests are identical with those of the employer, that cooperation with the employer in increasing efficiency, reducing waste, extending markets and stabilizing employment is an advantage to employer, employee, and the public alike. The more far-sighted captains of industry have attained a new appreciation of the human significance of their employees as free individuals and of the necessity of recognizing their status as such. During the past generation the tendency of unionism recognized by employers and dealt with on an equality has been to adopt ideas of partnership in industry. Even unions which began with revolutionary ideas, such as the Amalgamated Clothing Workers of America, have in the practice of cooperation developed stabilizing ideas so that the union is a conserving force in the industry. As Professor Commons points out, if labor is denied recognition and channels for cooperation, and is forced to revolutionary unionism for protection, its attack will be directed against the state fully as much as against employers: 443 "Lacking power to cope with their employers in bargaining, workers are forced to attempt to get control of the state in order to impose limitations upon employers." Industrial history abounds in illustrations that the curtailment of rights of workmen has led to widespread disturbances affecting both industry and the state. The experts cite many such instances as grounds for their fears of the social perils of the collapse of the present conservative labor movement. Professor Commons cites that: "The revolutionary unions, either of the communist or the I. W. W. type, are making inroads here and there and are likely to increase greatly in importance, depending upon the extent to which the employers exercise unreasonable control over wages, hours, conditions, hiring, firing, etc." and Professor Ware adds that "Already the Workers' Party has come out for extra-legal measures to break the injunction and the left wing's best weapon is the chance to go to jail in defense of the right to organize." Several of the experts call attention to the present industrial disturbances in the Colorado coal fields as illustrative of the inevitable social consequences of the denial of the workers' right to free association. In 1914 the conservative labor union, the United Mine Workers of America, was driven out of that state. In 1915 the Colorado Fuel and Iron Company established a company union among its employees as a substitute for their own organization. As company unions go, this was a liberally conceived organization. But it has not satisfied the workers. It has not developed sound leadership. It has not protected the company in crises. In 1919 and again in 1921, the employees of the Colorado Fuel and Iron Company struck under leadership outside the company (Mr. 444 Soule's affidavit). During the last few years, the public had been assured that all was well, until the deplorable state-wide strike this winter called attention to the fact that irresponsible and radical organizations like the I. W. W. had stepped in when other unions were driven out and the workers had had no opportunity to develop responsible and democratic attitudes and leadership in industrial relations. There have been unexpected and violent uprisings, in one of which five miners were killed and twenty-one wounded by mine guards (Mr. Soule's affidavit). Members of company unions in various parts of the coal fields have struck without apparent reason and often without giving warnings or making demands. This could not have happened had the workers been organized in a responsible union covering the whole region with orderly procedure of conference and agreement. "Colorado" is a state of mind, not just a state of the union. The Colorado, situation is: in the womb of the plaintiff's labor policy and anti-union contract. When the company unions drive the labor movement underground, a radical labor movement may come to compete with the company union for the good will of the workers. Chaos and disorder may result. The widespread use of the plaintiff's anti-union Contract, if upheld by the courts, cannot drive the Amalgamated Association of Street and Electric Railway Workers of America to radical action without first wrecking it because, by its constitution and by its practice in 269 cities, this organization is committed to the policy of conference and agreement, cooperation and the prevention of strikes. But the anti-union contract may wreck this and like conservative labor organizations. Then a more radical labor organization can appeal to the plaintiff's employees. This is something more than the grave fears of experts. The affidavit of Samuel Mezansky shows a sample of the propaganda of an ultra radical group which is being dis 445 tributed to the plaintiff's employees. This dodger of the Workers' (Communist) Party says in part: "Fellow Workers, you must organize and strike to establish a union and beat the traction barons of New York. * * * This traction trust counts upon the aid of the courts, the police, Mayor Walker and Governor Smith to break your spirit and keep you tied to their yellow-dog individual contract system. They want you to remain unorganized, separate individuals without power while they are organized from Wall Street to City Hall, from the State House in Albany as far as the White House in Washington. They want to keep wages low, hours long and working conditions unbearable. * * But injunctions cannot run cars. Injunctions cannot prevent you from organizing a union if you will use your mass power and aggressively defy this injunction. Injunctions become mere scraps of paper when Labor is determined to organize. "The leaders of the Amalgamated, Coleman and Shea and the other leaders with their hesitating, dilly-dallying policy and flirtation with the Tammany Hall officials will not organize the traction workers. Only by aggressive action and a clear-cut policy of fighting against these officials in your union and coming out and working for a strike will you be able to organize yourselves. Without a strike you can get no organmza!tion. "Work for a strike. Organize in spite of the injunction. Demand that the labor leaders come out for a clear-cut strike policy. This is the only way you can defeat the Traction Barons! Take the fight out of the courts. Bring the struggle into the traction industry." THE SOCIAL WASTEFULNESS OF THE PLAINTIFF'S LABOR POLICIES. In a very special sense this Contract is opposed to public policy for it constitutes the keystone of the plaintiff's whole wasteful handling of its labor problems. 446 The question in this case is a matter of public interest to a degree that few questions litigated between parties are. In the first place, it cuts to the roots of one of the most vital public questions of the day. In the second place, a great public service is involved. The plaintiff is a public utility, not a private concern. The people of New York have a most serious and special interest in this business. They pay the costs of all public utility businesses and it is to them that the service rendered is owed. In the third place, the public has a financial interest in the plaintiff's fiscal returns. Thus these hundreds of thousands of dollars which it has squandered on a wasteful labor policy come both directly and indirectly out of the public's pocket. The affidavits of the experts make it clear that in their opinion the money squandered directly and indirectly is very great. Commissioner of Labor Statistics Stewart says: "If the management is more interested in smashing a trade union than it is in making money for its stockholders, and the directors cannot be made to see this, I know of no better way to squander assets and income. * * * If the Interborough Rapid Transit Company of New York had spent half as much money in trying to get along with its people organized on a national basis as it has in smashing unions it would not now be adding this difficulty to its fight for an increase in the five cent fare, and would find infinitely more support for its demands for an intelligent readjustment of fares if it showed any symptom of intelligence in its attitude toward or relations with its men." On the same point, Mr. Wo]man comments: "Elaborate machinery for preventing his joining labor organizations designed to protect his interests are set up by the management for which he works. This machinery of intimidation and coercion always costs a great deal of money that would in a properly 447 organized industry be diverted either to raising wages directly or to raising them indirectly by improving management. Such an organization like the Interborough Rapid Transit just because it is not interested and because it has all of the stubbornness of an opinionated employer has probably no notion of the amount which both the company and the workers lose annually through various restrictions of output and carelessness that arises out of the smouldering resentment of the workers and out of the lack of interest in their jobs." The other side of the picture-the loss through lack of constructive employer-employee relationship-is emphasized by Mr. Beyer and Professor Suffern in the following words: "The energy of management which, under conditions such as those prevailing today on the Interborough Rapid Transit Company is dissipated in disputes with organized labor, under cooperation is devoted to planning, better operations and improved public service" (Mr. Beyer). "To my mind the Interborough Rapid Transit Com pany is taking an absurd position and their attitudes and methods indict them as an unenlightened management. Enlightened management puts its emphasis upon constructive leadership, efficient operation, and the enlistment of the cooperation of its employes. There is nothing about trade unions to prevent such a management from attaining these results, if management has the wit to function as experience has proven it can. "That management can enlist the cooperation of union men is proven by the experience of the Baltimore and Ohio Railroad, the Chesapeake and Ohio Railroad, the Chicago and Northwestern Railroad, the St. Paul Railroad, and the Canadian National Railway with their shopmen and other employes. These employes are members of regular trade unions and to the ordinary methods of collective bargaining and adjustment of disputes has been added a program for 448 attaining efficiency and sharing the results of it. Costs have been lowered, employment has been regularized, wages have been raised, earnings of the railroads have been as good or better, and freight rates have not been increased to the public. There is every reason to think that similar results could be attained on the Interborough Rapid Transit if the management knew its business" (Professor Suffern). 449 POINT XXII. The denial of an injunction raises no constitutional question. The plaintiff alleges that if this injunction be denied, (1) the plaintiff will be denied the equal protection of the law, and (2) its property will be taken without due process of law-the alleged property being its labor arrangement, including the Contract which contains the employees' promise to work for two years and not to join a union. Truax v. Corrigan (1921), 257 U. S., 312 upon which the plaintiff must rely in its allegation of denial of the equal protection of the law is not in point: It dealt solely with the validity of a state statute which denied injunctive relief to an employer while preserving such relief to an employee; it did not hold that a state court could not deny an injunction to an employer. If the court denies an injunction to an employer, it can deny it to the employees as they all stand on a parity before the law. Of course it did not impose constitutional limitations upon the judicial exercise of equity jurisdiction. And no denial of due process is involved in the instant case. The cases which might be thought to support the plaintiff's contention do not in fact do so. These cases dealt only with the power of state legislatures to impose criminal liability upon an employer who exacts an anti-union promise from his employees. They did not touch the issues of the present case; least of all did they either establish the property rights alleged by the plaintiff or confer upon the employer equitable rights against the promisor or against third persons inducing the breach of such promises as are here under consideration. It is abundantly established that a state court may-even contrary to its prior adjudications-deny, on common law grounds, the validity of any contract for any purpose or determine a common law rule of tort law, and this without presenting a constitutional question. Certainly, then, no constitutional question is presented where a state court declares a rule of contract law or of tort for the first time, as would be true in the present case. It is clearly established that a state court could hold this Two Year Contract invalid in a suit at law between the Company and its workmen. Even more clearly, a state court may deny equitable relief as between the Company and its workmen. Still clearer is it that a state court 'could deny the Company's right to sue a third person in an action at law for damages for inducing breach. Clearest of all is the power to refuse to enjoin 450 third persons from inducing non-performance of the promise not to join a union and the promise to work for two years. The Fourteenth Amendment did not codify the whole of our common law into the federal constitution. The complaint in the instant case purports to raise constitutional questions under the Fourteenth Amendment to the federal constitution and under similar provisions of the state constitution. The argument of the plaintiff is predicated upon two propositions: first, that the Two Year Contract, as to both the promise to work and the promise not to, join a union, is valid; and second, that a valid contract is property within the meaning of both state and federal constitutions. It follows, therefore, according to the plaintiff's argument, that, if this Contract is not protected by an injunction, its property will be taken without due process of law. The plaintiff also alleges that it will be denied the equal protection of the law. EQUAL PROTECTION OF THE LAW WOULD NOT BE DENIED. The argument that equal protection of the law will be denied the plaintiff if the injunction is denied is undoubtedly founded upon Truax v. Corrigan (1921), 257 U. S. 312. That case held that a state statute, which by proper construction denied injunctive relief to an employer against labor but which preserved injunctive relief to labor against an employer in labor disputes, is invalid as denying equal protection of the law. That case dealt solely with the validity of a. state statute denying in every case of a labor dispute injunctive relief to ani employer while preserving the injunctive remedy to labor. It did not hold that an employer is entitled to injunctive relief against labor regardless of the merits of the controversy involved, and it did not hold that the State Court, independent of statute, could not, in particular cases or, indeed, in every case, deny an injunction to an 451 employer. lIt did not pass at all upon the question of the liability of third persons, either at law or in equity for inducing breach of a promise not to join a trade union. It did not purport to impose constitutional limitations upon a court's exercise of equity jurisdiction in any case. The denial of equitable relief to the plaintiff in this case does not commit the court to the proposition that the plaintiff would be subject to equitable relief at the request of the defendants, which was the one-sided result under the statukte in Truax v. C~orriganu, supra, and it is, therefore, impossible for the court's decision in favor of the defendants to operate to deny the plaintiff the equall protection of the law. The con~trary contention is fanciful, and overlooks elementary notions as to constitutional law. There is involved here only a recognition of the principle that a court cannot legislate and, therefore, there is no analogy between the effect of this decision and the effect of the legislation involved in Truaxa v. Corrigan as construed by the United States Supreme Court. No DE@NIAL OF DUE PRLOCESS IS INVOLVED. -The argument that a denial of an injunction will result in taking property without due process of law is repeatedly made before the U. S. Supreme Court every session and, uniformly rejected. It also is based on a lack of familiarity with some of the elementary principles of constitutional law. It is rested on a misunderstanding of such cases as Ooppa~ge v. Kansas (1914), 236 U. S,. 1, and People v. Marcus (1906), 1-85 N. Y. 257. These cases dealt with the validity of a statute making it a crime for an employer to exact from his employees a promise not to j oin a union. These cases did not hold: 1. That a contract in which an employee promises 'not to join a union is valid; 452 2. That such a contract, assuming it to be valid, confers upon the employer, equitable, as opposed to legal, rights either against the promisor or against third persons inducing its breach; 3. That an employer has any rights either at law or in equity against third persons who induce a breach of such a contract. These cases deal only with the power of the state legislature to impose criminal responsibility upon an employer who exacts such a promise from his employees, and they have no bearing whatever upon the validity of such an agreement or upon the rights either at law or in equity of the parties to it. Denying equitable relief to the plaintiff in this: case would not involve an adjudication at all of the rights of the plaintiff in an action at law for damages against either its employees or against these defendants. The proposition contended for by the plaintiff that the denial of equitable relief results in taking property without due process of law is certainly a most startling one. It is submitted that the plaintiff, in attempting to raise constitutional questions, has confused the question of the jurisdiction of a state court over the parties or the subject matter of an action with the question of its admitted constitutional power to render a valid judgment even though that judgment be contrary to its prior adjudication provided jurisdiction over the parties or subject matter exists. It is submitted also that the plaintiff has confused the matter of a judgment by a state court merely declaring the common law or equity with judgments of a state court giving effect to a state statute. There is no adjudicated case holding that a state court, if it has jurisdiction of the parties by reasons of service of process upon them, may not, even contrary to its prior adjudications, deny the validity of any contract for any purpose. In National Mutual Building Loan Association v. Brahan (1904), 193 U. S. 635, the plaintiff sued to re 453 cover a loan in the state courts of Mississippi. The contract was made in New York and was to be performed in New York. The defendant pleaded usury as a defense, and the court sustained that defense, applying the law of Mississippi. The plaintiff on writ of error from the Supreme Court of Mississippi, having on trial attempted to present a constitutional law question by requesting the court to charge that under the Fourteenth Amendment to the Fed eral Constitution the defense of usury could not be sus tained, contended that a constitutional question was pre sented by the record. Mr. Justice McKenna said (p. 647): "1. This contention is untenable. We said iT Bacon v. Texas, 163 U. S. 207, 41 L. ed. 132, 16 Sup Ct. Rep. 1023: 'Where the Federal question upon which the juris diction of this court is based grows out of an al leged impairment of the obligation of a contract, it is now definitely settled that the contract can onlu be impaired within the meaning of this clause in the Constitution, so as to give this court jurisdic tion on a writ of error to a state court, by sonma subsequent statute of the state which has been up held or effect given it by the state court." In Cross Lake Shooting and Fishing Club v. Louisiano (1912), 224 U. S. 632, where the state court had decided that a certain grant of land to the plaintiff in error had not been properly made, the court held with respect to the existence of a constitutional question (pp. 638-639): "It does not reach more errors committed by a, state court when passing upon the validity or effect of a contract under the laws in existence when it was made. And so, while such errors may operate to impair the obligation of the contract, they do not give rise to a Federal question. But when the state court, either expressly or by necessary implication, gives effect to a subsequent law of the state whereby the ob 454 ligation of the contract is alleged to be impaired, a Federal question is presented. In such a case it becomes our duty to take jurisdiction and to determine the existence and validity of the contract, what obligations arose from it, and whether they are impaired by the subsequent law. But if there be no such law, or if no effect be given to it by the state court, we cannot take jurisdiction, no matter how earnestly it may be insisted that that court erred in its conclusion respecting the validity or effect of the contract. and this is true even where it is asserted, as it is here, that the judgment is not in accord with prior decisions on the faith of which the rights in question were acquired." In Lehigh Water Co. v. Easton (1887), 121 U. S. 388, the higher court of Pennsylvania construed certain franchises in a way that gave the plaintiff no exclusive privilege to furnish water to the community. This construction of its franchise, the plaintiff contended, resulted in impairing its contract with the city, and as' a result of this erroneous construction a question under the Federal Constitution was presented for review by the United States Supreme Court. The court, however, said (p. 390): "The argument in behalf of the Company seems to rest upon the general idea that this court, under the statutes defining its appellate jurisdiction, may reexamine the judgment of the state court in every case involving the enforcement of contracts. But this view is unsound. The state court may erroneously determine questions arising under a contract which constitutes the basis of the suit before it; it may hold a contract void which in our opinion is valid; it may adjudge a contract to be valid which in our opinion is void; or its interpretation of the contract may in our opinion be radically wrong; but in neither of such cases would the judgment be reviewable by this: court under the clause of the Constitution protecting the obligation of contracts against impairment by state legislation, and under the existing statutes defining and regulating its jurisdiction, unless that judgment, in 455 terms or by its necessary operation, gives effect to some provision of the State Constitution, or some legislative enactment of the State, which is claimed by the unsuccessful party to impair the obligation of the particular contract in question." In Abbott v. Tacoran Bank of Commerce (1889), 175 U. S. 409, the plaintiff in error contended that a constitutional question under the Fourteenth Amendment was presented for review on writ of error to the United States Supreme Court by reason of the fact that the highest court of the state of Washington denied him recovery in an action of libel. Mr. Justice Harlan said (p. 411): "Among the errors assigned in this court are that the supreme court of Washington erred in affirming the judgment of the superior court of Pierce county the effect of such judgment was to deprive plaintiff in error of his property without due process of law, contrary to the 14th Amendment of the Constitution of the United States; in holding that the United United States circuit court for the district of Washington, western division, had jurisdiction of the suit brought by the National Bank of Commerce of Tacoma; in holding that the libelous matter contained in the bill of complaint filed in that suit was privileged; and in holding that such matter was pertinent and material to the issue in that suit. * * * If it erred in so declaring, it was an error as to a matter of general law and involved no question of a Federal nature." In Patterson v. Colorado (1907), 205 U. S. 454, Mr. Justice Holmes said with respect to a change of judicial decision by a state court (pp. 460, 461): "It is argued that the decisions criticized, and in some degree that in the present case, were contrary to well-settled previous adjudications of the same court, and this allegation is regarded as giving some sort of constitutional right to the plaintiff in error. But while it is true that the United States courts do 456 not always hold themselves bound by state decisiom in cases arising before them, that principle has but a limited application to cases brought from the state courts here on writs of error. Except in exceptional cases the grounds on which the circuit courts are held authorized to follow an earlier state decision rather than a later one, or to apply the rules of commercial law as understood by this court rather than those laid down by the local tribunals, are not grounds of constitutional right, but considerations of justice or expediency. There is no constitutional right to have all general propositions of law once adopted remain unchanged. Even if it be true, as the plaintiff in error says, that the supreme court of Colorado departed from the earlier and well-established precedents to meet the exigencies of this case, whatever might be thought of the justice or wisdom of such a step, the Constitution of the United States is not infringed. It is unnecessary to lay down an absolute rule beyond the possibility of exception. Exceptions have been held to exist. But, in general, the decision of a court upon a question of law, however wrong and however contrary to previous decisions, is not an infraction of the 14th Amendment merely because it is wrong or because earlier decisions are reversed." If, as the above cases and many others hold, no constitutional question is presented even though a state court reaches a result in declaring the common law contrary to that established by earlier adjudications, certainly no constitutional question is presented where it declares a rule of contract law or of tort for the first time. Mr. Justice Andrews in Exchange Bakery v. Rifkin, supra, said (pp. 266-7): "Even had it been a valid subsisting contract, however, it should be noticed that whatever rule we may finally adopt, there is as yet no precedent in this court for the conclusion that a union may not persuade its members or others to end contrdcts of employment where the final intent lying behind the attempt is to extend its influence." 457 In other words, the courts of this state in recognizing as justifiable the conduct of these defendants would not be departing from any adjudication which has heretofore been made in this state, and certainly where this is so, no one can contend that a constitutional question would be presented. Finally, it is to be noted that these authorities clearly establish the power of a state court to hold this Two Year Contract invalid in a suit at lawu between the Company and its w/orkmen. Even clearer is a state court's power to deny equitable relief as between the Company and its workmen. Clearer still is its power to hold that the Company cannot sue a third person in an action at law for damages for inducing breach. And yet clearer is the power to refuse to enjoin third persons from inducing the nonperformance, not merely of the promise not to join a union, which is all that the instant case involves, but also the promise to work for two years. 458 POINT XXI,. The right to a permanent injunction is in doubt; and where this is so, a temporary injunction will be denied. As has already been seen, both the doctrine of balance of convenience and the fatally defective principal affidavit of the plaintiff-defective in that it is full of hearsay of remote degree of reliability and is without substantiation as to the sources of these hearsay statements-make it exceedingly doubtful whether the final hearing in this case will be favorable to the plaintiff. Of course a temporary injunction is never granted when such doubt is present since a decision on a motion for a preliminary injunction is made on proof not subject to cross examination. Refusal to grant a temporary injunction when there is doubt that a permanent injunction would be granted is an especially wise rule where, as in labor cases, serious consequences attend an injunction. The extraordinary and delicate remedy of injunction pendente life is never granted where the right on the final hearing as shown by the complaint and/or affidavits is in doubt, for a decision on a motion for a preliminary injunction is made on proof not subject to cross examination. Especially must this be true in labor disputes where the remedy of injunction operates most drastically. Doubt is more certain to exist with respect to proof not subject to the test of cross examination; and where, as in labor cases, serious consequences attend an injunction, a court should hesitate to grant an injunction pendente lite on uncertain proof. Judge Pound in Forstmnanrn v. Joay) Holding Co. (1926), 244 N. Y. 22, said (p. 31): "Equity does not aid doubtful rights." And in Ohio Match Sales Oo. v. Evewrhard (1925), 126 Misc. 23, the court, said (p. 22): "The question of the ownership of the certificates and shares of stock involved in the present case is a 459 much disputed one, and there is a well-defined issue thereon. It is well settled that, unless the rights of the parties are clear, the court will not exercise its power to grant an injunction, and that, where injunctive relief is sought pending the final determination of a case such as this, and based upon controverted affidavits, which leave the rights of the parties open to doubt and uncertainty, such relief should not be granted. (Gambrill Mfg. Co. v. American Foreign Banking Corpioration, 194 App. Div. 425; Reliance Grant Elevator Equipment Corporation v. Reliance Ball Bearing Door Hanger Co., 205 id. 320." On the basis of the papers before this court and in view of the law of this state, does it appear doubtful whether the final hearing in this action will be favorable to the plaintiff? How overwhelming that doubt is appears from the fact that, of the twenty-four points made in this Brief and catalogued in its Table of Contents, each of twenty of them states a distinct and substantial reason, in fact or law, why the plaintiff will fail at the final hearing. In the preparation of this Brief, there has been rigidly excluded from it every contention which is not substantial. Not a single make-weight point has been included. These twenty points represent twenty propositions deeply rooted in consideration of real merit and any one of them is fatal to the plaintiff's case. This litigation raises questions of law and of social policy having tremendous magnitude. That magnitude is reflected in the number and the dimensions of these many propositions embodied in this Brief. As to the plaintiff's right, doubts abound. It is a long settled and perfectly familiar rule of equity jurisdiction that equity will not grant a preliminary injunction when the outcome at the final hearing is in doubt. Especially is this true in cases of labor disputes where lawful attempts on the part of workingmen to ameliorate their conditions may be completely thwarted in a single day by the issuance of a court restraint order, however temporary. The history of labor disputes in this country 460 conclusively proves this fact. In such cases, it is particularly true that, to use the expression of Mr. Justice McAvoy, frequently repeated by the courts, "To doubt is to deny." The plaintiff's case has been shown to be more than doubtful. Conclusion. Therefore the motion for an order enjoining and restraining the defendants pendente lite should be denied with costs. Respectfully submitted, BLAU, PERLMAN & POLAKOFF, Attorneys for Defendants, 475 Fifth Avenue, New York City. ROBERT F. WAGNER, NATHAN D. PERLMAN, JOSEPH FORCE CRATER, HERMAN OLIPHANT, SIMON H. RIFKIND, SAMUEL MEZANSKY, of Counsel. 461 TABLE OF CASES PAGE Abbott v. Tacoma Bank of Commerce (1899), 175 U. S. 409 -. 455 Ableman v. Holman (1926), 190 Wis. 112................................... 184 Adair v. U. S. (1908), 208 U. S. 161 _--............. -_-................ 351 Adams v. Tanner (1917), 244 U. S. 590..............---.....-..- 165 Adler v. Metrop. Elev. Ry. Co. (1893), 138 N. Y. 173.......-...... 127 Adler v. Weis & Fisher Co. (1916), 218 N. Y. 295........- 320 Aldridge L. Co. v. Graves (1910), 131 S. W. 846 (Tex.) -.. - 335 Amer. Agric. Chem. Co. v. Kennedy & Crawford (1904), 103 Va. 171. _.........-...- -.-..-... - --- - - -----..- 264 Amer. Case & Register Co. v. Griswold (1910), 68 Misc. 379 -. 93 Amer. Foundries v. Tri-City Trades Council (1921), 257 U. S. 184.............-........-............. _...298, 409 Amer. League Baseball Club v. Chase (1914), 86 Misc. 441 -........ - _. - --....-....................-....265, 290, 340 Anthony & Co. v. Fox (1900), 53 App. Div. 200 _...----.-- 122 Arena Athletic Club v. McPartland (1899), 41 App. Div. 352...... 340 Aspinwall Mfg. Co. v. Gill (1887), 32 Fed. 697.__........ 348 Attwood v. Lamont (1920), 3 K. B. 571...........2........................ 87,331 Bailey v. Alabama (1911), 219 U. S. 219........................ 390 In Re. Baker (1865), 29 How. Pr. 485.....................-..-.....-- 383 Bank of U. S. v. Public Bank (1915), 88 Misc. 568............- --. 326 Barnes v. Brown (1892), 130 N. Y. 372......_.-....-..... 95 Barrell v. Todd (1901), 65 App. Div. 22... _ 123 Bates Machine Co. v. Bates, et al. (1898), 87 Ill. App. 225 348 Bedford Stone Cutters v. Journeyman Stone Cutters Assoc. (1927), 47 Sup. Ct. R. 522..................._.......... 303 Benson v. Eastern Building & Loan Assoc. (1903), 174 N. Y. 83 -_....-__.-....-.^1.32......-..............-......-...........- 322 Bewick Lumber Co. v. Hall (1894), 94 Ga. 539..... 335 Bickford v. Menier (1887), 107 N. Y. 490..............-..... 114 Birkery Mfg. Co. v. Jones, et al. (1898), 71 Conn. 113 348 Bittner v. West Va.-Pittsburgh Coal Co. (1926), 15 Fed. (2d) 652....-.............................. -............... 301 Bobe v. Lloyds (1926), 10 Fed. (2d) 730 111 Bossert v. Dhuy (1917), 221 N. Y. 342..182, 303 Boyer v. Western Union Tel. Co. (1903), 124 Fed. 246 351 Branch v. Tomlinson (1877), 77 N. C. 388........._-.. _...... 320 Brewster v. Van Camp (1889), 55 Hun 1 122 Brimlow v. Casson (1924), 1 Ch. 302......... 183 Bronk v. Riley (1888), 50 Hun 489 - 147 Brooklyn Baseball Club v. McGuire (1902), 116 Fed. 782 __.266, 339 462 PAGE Bross v. McNicholas (1913), 66 Ore. 42......................._........... 326 Brower v. Williams (1899), 44 App. Div. 337..................................... 138 Brown v. Hall (1883), 14 R. I. 249.......-...........-.......... 318 Buck v. Smith (1874), 29 Mich. 166..........................................344 Buell v. Van Camp (1890), 119 N. Y. 160.....-....................... 121 Burgess Bros. Co. v. Stewart (1920), 112 Misc. 347..................... 131 Burgess Bros. Co. v. Stewart (1921), 114 Misc. 673........... 131 Butler v. D uncan (1881), 47 M ich. 94.................................................. 319 Byrnes v. Kaufwein Realty Co., Inc. (1923), 206 App. Div. 306 147 Campbell v. C. R. I. & P. Ry. Co. (1910), 243 Ill. 620... 336 Campbell v. C. R. I. & P. Ry. Co. (1909), 149 Ill. App. 120. 335 Cannaday v. Atlantic Coast Line Ry. Co. (1906), 143 N. C. 439.......................................................-......................... 335 Carrier v. United Paper Co. (1893), 73 Hun 287....................... 123 Carter v. Carter, et al. (1884), 20 Fla. 558......................... 320 Carter v. Phillips (1926), 127 M isc. 903...................................................... 148 Chalfant v. Payton, et al. (1883), 91 Ind. 202......................................... 377 Chaude v. Shepard (1890), 122 N. Y. 397....................................... 347 Chesterfield v. Janssen (1750), 26 Eng. Rep. 217.......................... 349 C. B. & Q. Ry. Co. v. Healy (1906), 76 Neb. 783........... 337 Chicago & E. R. Ry. Co. v. Ebersole (1909) (Ind. Sup. Ct.), 87 N. E. 1090...................-......................................................... 335 C. R. I. & P. Ry. Co. v. Maucher (1919), 248 U. S. 359............ 336 City of Pocatello v. Fidelity & Deposit Co. (1920), 267 Fed. 181.... -.... -..................................-..................... 263 Clark Paper Mfg. Co. v. Stenacher (1923), 236 N. Y. 312.. 334 Clark v. Spencer (1875), 14 Kan. 398................................................ 319 Claygate v. Batchelor (1601), 74 Eng. Rep. 961.................................... 382 Coffeyville Brick Company v. Perry (1904), 69 Kan. 297...... 351 Colebrook Realty Co., Inc. v. Goldwater (1925), 124 Misc., 856...... -.-....... -.......................................................................... 347 Columbia Wire Co. v. Freeman Wire Co. (1895), 71 Fed. 302 264 Coney v. Brennan (1917), 167 N. Y. Supp. 903 (Sup. Ct. S. T.) 111 Continental Wall Paper Company v. Louis Voigt & Sons Co. (1909), 212 U. S. 227.................................................................. 316 Coppage v. Kansas (1914), 236 U. S. 1.............................355,451 Coykendall v. Blackmer (1914), 161 App. Div. 11............................. 322 Crane v. French (1860), 38 M iss. 503...................................................... 317 Cross Lake Shooting & Fishing Club v. Louisiana (1912), 224 U. S. 632.............................................................................................. 453 Curry v. Curry (1877), 10 Hun 366........................................ 77, 383 Dalton Adding Machine Co. v. State Corp. Commission of Virginia (1913), 213 Fed. 889, aff'd 236 U. S. 699............................. 128 463 Darling v. Protective Assurance Co. (1911), 71 Misc. Rep. 113 Delaney v. Bouse (1904), 91 App. Div. 437........-...................... Denyse v. Crawford (1841), 18 N. J. L. 325.................................... Diamond Block Coal Co. v. United Mine Workers of America PAGE 322 122 319 (1920), 188 K y. 477........................................-.......-.-............. 133 Dockstader v. Reed (1907), 121 App. Div. 846............................ 339 Dodd v. Central Ry. Co. (1912), 82 N. J. L. 524............................ 335 Doscher v. Vanderbilt (1917), 177 App. Div. 813.............................. 108 Doyle v. Metropolitan Elev. Ry. Co. (1893), 136 N. Y. 505 -........ 126 Dr. Miles Medical Co. v. Park & Sons (1911), 220 U. S. 373...... 353 Edington v. Aetna Life Ins. Co. (1879), 77 N. Y. 564................ 317 Ehrman v. Bartholenmew (1898), 1 Ch. 671............................................. 389 Emery v. Piscataqua Ins. Co. (1864), 52 Me., 322........................ 323 Empire Warehouse Co. v. Mallett (1895), 86 Hun 619................... 122 Exchange Bakery Co. v. Rifkin (1927), 245 N. Y. 260........... 167, 174, 237, 244, 351, 456 Farrel v. Blackbird Coal Co. (1911), 150 Mo. App. 552........ 335 Faulkner v. Faulkner (1914), 162 App. Div. 848.............. 276 Fiero v. Franklin Savings Bank (1924), 124 Misc. Rep. 19..... 326 Fisher v. Buch (1885), 35 Hun 641..................... 321 Flemister v. Phillips (1880), 65 Ga. 676.......................................... 320 Flexner v. Farson (1919), 248 U. S. 289................................. 146 Foote v. De Poy (1905), 126 Iowa 366.........................-... 277 Forstmann v. Joray Holding Co. (1926), 244 N. Y. 22........... 458 Friedman & Cole v. Amalgamated Clothing Workers (1921), 115 M isc. 44................................................................... Friend v. Lamb (1893), 152 Penn. 529.............. Fuerst v. Musical Mutual Protective Union (1905), 95 N. Y. Supp. 155 (City Ct. Tr. T.).......... 106 276 281 Gambill v. Fuqua (1906), 148 Ala. 448................................. 115 Gasaway v. Borderland Coal Corp. (1921), 278 Fed. 56........_ 301 Gavieres v. U. S. (1910), 220 U. S. 338............................................... 257 Genet v. Delaware Hudson Canal Co. (1890), 122 N. Y. 505..... 130 German Alliance Ins. Co. v. Lewis (1914), 233 U. S. 389........... 322 Gillespie v. Illinois (1900), 188 Ill. 176............................ 351 Godwin v. Collins (1868), 3 Del. Ch. 189...........-........................ 344 Goldfield Co. v. Goldfield Union (1908), 159 Fed. 500.............. 355 Goodyear v. Koehler Sporting Goods Co. (1913), 159 App. Div. 116................................................................... -........ 264 Gott v. Berea College (1913), 156 Ky. 376............................... 184 Graham v. St. Charles St. Ry. Co. (1895), 47 La. Ann. 1656............ 382 Grannis v. Stevens (1916), 216 N. Y. 583............................................. 319 Grassi Contracting Co., Inc. v. Bennett (1916), 174 App. Div. 244.....................................................................................-..... 131,383 464 PAGE Gray v. Manhattan Railway Co. (1891), 128 N. Y. 499.................. 127 Guetzkow Brothers Co. v. Breese (1897), 96 Wis. 591.................... 278 Guida v. Pontrelli (1921), 114 Misc. Rep. 181........................................ 183 Gulf Transit Co. v. U. S. (1908), 43 Ct. Cl. 183.......................................... 324 Hale v. Hirsch (1923), 205 App. Div. 308......................................................... 108 H all v. H all (1893), 41 S. C. 163........................................................................... 3.9 Hartman v. Chicago Ry. Co. (1915), 192 Mo. App. 271.................. 335 Haskell v. Osborn (1898), 33 App. Div. 127................................................ 122 Hayes v. Hayes (1852), 8 La. Ann. 468..................................................... 347 Hayes v. Willio (1871), 11 Abb. Pr. N. S. 167.................................... 290 Herreshoff v. Boutineau (1890), 17 R. I. 2............................................287, 334 Hitchman Coal & Coke Co. v. Miitchell (1917), 245 U. S. 229...... 298 Hoffman v. Maffioli (1899), 104 Wis. 630..................................................... 264 Hope v. International Fin. Soc. (1876), L. R. 4 Ch. Div. 327 321 Hormel v. American Bonding Co. (1910), 112 Minn. 288............ 326 Horwood v. Millar's Timber & Trading Co., Ltd. (1916), 2 K. B. 44............................................................................................ 3 19, 354 Hough v. Hunt (1856), 2 Ohio 442.......................................................... 318 Howells v. Pacific States Savings Loan & Building Co. (1901), 21 U tah 45............................................................................275 Hull v. Mass. Bonding & Ins. Co. (1912), 86 Kan. 342...................... 326 H um e v. U. S. (1889), 132 U. S. 406...................................................... 348 Ice Delivery Co. v. Davis (1926), 137 Wash. 649................................... 288 Industrial Trust Co. v. Tod (1904), 180 N. Y. 215................................. 321 Interborough Rapid Transit Co. v. Lavin, et al. (1928), 237, 272, 356, 358 International and Great Northern Ry. Co. v. Greenwood (1893), 2 Tex. Civ. App. 76.................................... 382 International Brotherhood of Electrical Workers v. Western Union Telegraph Co. (1925), 6 Fed. (2d), 444............................ 131 Int. Organ. United Mine Workers of America v. Red Jacket Consol. Coke & Coal Co. (1927). 18 Fed. (2d) 839.................. 302 International Text Book Co. v. Weissenger (1902), 160 Ind. 349............................................................................................... -...- 335 Isaacs v. Third Avenue Railroad Co. (1871), 47 N. Y. 122...... 115 James v. Morgan (1690), 83 Eng. Rep. 323..................................... 349 James v. Signell (1901), 60 App. Div. 75..................................................... 121 Jewell v. Kansas City Bolt & Nut Co. (1910), 231 Mo. 176.......... 335 Johnston v. Fargo (1906), 184 N. Y. 379......................................... 336 Joliet Bottling Co. v. Brewing Co. (1912), 254 Ill. 215.................. 264 Jones v. Cody (1902), 132 M ich. 13.................................................................... 184 465 PAGE Kaumagraph Co. v. Stampagraph Co. (1923), 235 N. Y. 1....... 388 Kelley v. Caplice (1880), 23 Kan. 337......-................................ 281 Kelley v. York Cliffs Improvement Co. (1900), 94 Me. 374............266, 346 Kessler v. The Ansonia (1927), 129 Misc. Rep. 342....................... 327 Killebrew v. Murray (1912), 151 Ky. 345................-..............- 264 Kilpatrick v. Germania Life Ins. Co. (1905), 183 N. Y. 163........... 279 Kimberley v. Jennings (1836), 6 Simons (Eng.) 340......265, 341, 343, 344 Knettle v. Newcomb (1860), 22 N. Y. 249..........-.........--.....-....... 320 Krivitsky & Cohen Corp. v. Western Union Telegraph Co. (1927), 129 N. Y. M isc. 431........................ -........... 325 Kummel v. Germania Savings Bank (1891), 127 N. Y. 488...... 326 Kuryer Publishing Co. v. Messmer (1916), 162 Wis. 565 -- 184.Ladenburg v. Commercial Bank of Newfoundland (1895), 87 H u n 269.............................................................. - --.................. 123 Lamb v. Chaney (1920), 227 N. Y. 418................................ 289 Legris v. Marcotte (1906), 129 Ill. App. 67.................................... 183 Lehigh Water Co. v. Easton (1887), 121 U. S. 388...... --............. 454 Leonard v. Whetstone (1904), 34 Ind. App. 383........--...........--..- 183 Lerner v. Tetrazzini (1911), 71 M isc. 182..................................... 264 Levy v. Goldstein (1896), 18 M isc. 639............................................ 122 Lewis v. Tindel-Morris Co. (1905), 109 App. Div., 509.................. 121 Lightbourn v. Walsh (1904), 97 App. Div. 187........................................ 112 Liverpool Insurance Co. v. Kearney (1901), 180 U. S. 132............ 321 Liverpool Steamship Co. v. Phenix Ins. Co. (1889), 129 U. S. 397..................................................................................................................................... 324 Lumley v. Gye (1853), 2 Ellis & Blackburn 216........................................285, 289 Lumley v. Wagner (1852), 1 De. G. M. & G. 604.....................285, 289 Lynch v. Bischoff (1862), 15 Abb. Pr. 357......................... 344 M cCabe v. Goodfellow (1892), 133 N. Y. 89........................................... 102, 112 McCaffrey v. B. B. & R. Knight (1922), 282 Fed. 334.................. 264 M cCall v. W right (1910), 198 N. Y. 143................................................. 338 McCallum v. Simplex Co. (1908), 197 Mass. 388................................... 335 McCann v. Chasm Power Co. (1914), 211 N. Y. 301........................126, 137 McClure v. Leaycroft (1905), 183 N. Y. 36..................................... 137 McCord v. Thompson-Starrett Co. (1908), 129 App. Div. 130, aff'd by Ct. of App. in (1910), 198 N. Y. 587, 92 N. E. 1090................................................................... 155, 351, 381 McCulloh v. Aeby & Co. (1889), (56 Hun 641 Memo.) 9 N. Y. Supp. 361............................................................................................... 122 McFarland v. Stanton Mfg. Co. (1895), 53 N. J. Eq. 649.................. 348 M cH enry v. Jewett (1882), 90 N. Y. 58.................................................... 127 McKee v. Hughes (1915), 133 Tenn. 455...................................... 184 McLean v. Tobin (1908), 58 Misc. 528 322 466 PAGE Mali v. Lord (1868), 39 N. Y. 381............_.......4 115 Maloney v. Katzenstein (1909), 135 App. Div. 224 147 Mandell v. Moses (1924), 209 App. Div. 531............. -89, 91 Marks v. Gates (1907), 154 Fed. 481...._.._..266, 318 Mason v. Provident Clothing & Supply Co. (1913), A. C. 724....._294, 332 Mazurajtis v. Maknawyce (1916), 93 Misc. 337 106 Meaker v. Fiero (1895), 145 N. Y. 165...................... 319 Means v. Anderson (1895), 19 R. I. 118........... 318 Meinhart v. Contresta (1922), 194 N. Y. Supp. 593 (Sup. Ct. S. T. )....... -.......................................- -.-.-------- - 111i Mellen v. Hamilton Fire Ins. Co. (1858), 17 N. Y. 609.............. 322 Menter Co. v. Brock (1920), 147 Minn. 407 28 333, 391 Metropolitan Exhibition Co. v. Ewing (1890), 42 Fed. 198 ---339, 345 Metropolitan Exhibition Co. v. Ward (1890), 24 Abb. N. C. 393......_ 266, 290, 340 Michaels v. Hillman (1920), 112 Misc. 395.-....-..... 267, 386 Mississippi & Missouri R. R. v. Cromwell (1875), 91 U. S. 643.266, 347 Mord v. N. Y. Indemnity Co. (1926), 216 App. Div. 252 321 Morgan v. City of Binghampton (1886), 102 N. Y. 500. 129, 139 Morris v. Saxelby (1916), 1 A. C. 688.......__. 288, 354 Morrow v. Southern Express Co. (1897), 101 Ga. 810... 264 In Re. Mulholland Benevolent Society (1873), 10 Phila. 19..354, 383 Muller v. Oregon (1908), 208 U. S. 412.._.... -.. 165 Mumford v. C. R. I. & P. Ry. (1905), 128 Iowa 685........ 336 Mumford v. Rock Springs Grazing Assoc. (1919), 261 Fed. 842 127 Mutual Loan Co. v. Martell (1911), 222 U. S. 225..... 335 National Mutual Building & Loan Assoc. v. Brahan (1904), 193 U. S. 635......................................--...- 452 National Protective Assoc. v. Cumming (1902), 170 N. Y. 315....................................75, 182, 189, 231, 351, 352 Neb. Gas & Elec. Co. v. City of Stromsburg (1924), 2 Fed. (2d) 518.......................................... 264 Neville v. Dominion of Canada News Co. (1915), 3 K. B. 556 354 Newgold v. Childs Co. (1911), 148 App. Div. 153.1..-. 148 New Prague Flour Mill Co. v. Spears (1922), 194 Iowa 417 -.276,328 New York Central Ry. Co. v. Lockwood (1873), 84 U. S. 357 - 324 Nichols & Shepard Co. v. Charlebois (1901), 10 N. D. 446.............. 328 Nicolls v. Wetmore (1916), 174 Iowa 132............... 264 Oakland Motor Co. v. Indiana Auto Co. (1912), 201 Fed. 499 - -- 264 Ohio Match Sales Co. v. Everhard (1925), 126 Misc. 23........... 458 Olson v. Neb. Tel. Co. (1909), 85 Neb. 331....................................... 335 Overhultz v. Row (1922), 152 La, 9.................................. 183 467 PAGE Parker v. Hill (1908), 85 Ark. 363 -.-. 277 Parks v. Griffith & Boyd Co. (1914), 123 Md. 233 264 Parmer v. Parmer (1883), 74 Ala. 285......_-- - 317 Parsons v. Trask (1856), 73 Mass. 473........--389 Patterson v. Colorado (1907), 205 U. S. 454........ --- 455 In Re. Penn. Development Co. (1915), 220 Fed. 222 128 People v. Canal Board (1874), 55 N. Y. 390 - --.-- 130, 139 People v. Marcus (1906), 185 N. Y. 257................355,451 People v. Schweinler Press (1915), 214 N. Y. 395......-.- 163 People v. W illiams (1907), 189 N. Y. 131.................................... 163 Phelps v. Phelps (1874), 72 Ill. 545..........................- 320 Pope Mfg. Co. v. Gormully (1892), 144 U. S. 224.-----...-274, 354 Posner Co. Inc. v. Jackson (1918), 223 N. Y. 325 ____289 Potts v. Baldwin (1901), 67 App. Div. 434.--. - 94 Prankard v. Cooley (1911), 147 App. Div. 145 -..... - 93 Price v. Levy (1904), 93 App. Div. 274............................. 121 Quartermous v. Kennedy (1874), 29 Ark. 544................................ 317 Railway Employees' Dept. of A. F. of L. v. N. C. & St. L. Ry. Co. (1924), 5 U. S., R. R. Labor board 286 (Decision) 2305 381 Randolph v. Quidnick (1890), 135 U. S. 457 -. 267 Reilly v. Franklin Ins. Co. (1877), 43 Wis. 449 322 Remington v. Fidelity & Deposit Co. (1902), 27 Wash. 429.... 326 Roach v. Curtis (1908), 191 N. Y. 387 320,329 Roesner v. Hermann (1881), 8 Fed. 782 -. 335 Rosenwasser v. Pepper (1918), 104 Misc. 457.......... 131 Rowan v. Butler (1908), 171 Ind. 28 - 184 Rutland Marble Co. v. Ripley (1870), 77 U. S. 339..... -266, 340 Said v. Butt (1920), 3 K. B. 497.......... 184 St. Andrew's Parish v. Gallagher (1923), 121 Misc. Rep. 167. 327 Schalkenback v. National Vent. Co. (1908), 129 App. Div. 389 138 Schanz v. Sotscheck (1915), 167 App. Div. 202........__ 319 Schlegel Mfg. Co. v. Cooper's Glue Factory (1921), 231 N. Y. 459.....-....................................-................-.............-...... 263 Schlemmer v. B. R. & P. Ry. Co. (1907), 205 U. S. 1............._ 336 People Ex. Rel. Schmidt v. St. Franciscus Benev. Soc. (1862), 24 How. Pr. 216.................................. 354, 382 Schouten v. Alpine (1915), 215 N. Y. 225............................... 104 Security Mortgage Co. v. Thompson (1910), 66 Misc. 151........ 328 Selover v. Coe (1875), 63 N. Y. 438......................................92 Shubert Theatrical Co. v. Gallagher & Shean (1922), 200 App. D iv. 596....-....-............................................................... 338 Siff v. Forbes (1909), 135 App. Div. 39................. 109 468 PAGE Simmons v. Craig (1893), 137 N. Y. 550.................................. 121 Sliosberg v. N. Y. Life Ins. Co. (1925), 125 Misc. 417................ 322 Smith v. Staso Milling Co. (1927), 18 Fed. (2d) 736......_ 139 Snipes v. Southern Ry. Co. (1908), 166 Fed. 1...................................... 336 People Ex. Rel. Solomon v. Brotherhood of Painters (1916), 218 N. Y. 115 ___............_.........................-.........._ 105 Star Co. v. Press Publishing Co. (1914), 162 App. Div. 486 -..- 290 Star Publishing Co. v. The Associated Press (1901), 159 Mo. 4 10.._............._............................. 354 State v. Julow (1895), 129 Mo. 163...........-- --.........~.. - 355 State v. Kreutzberg (1902), 114 W is. 530.................................................... 351 Steele v. Gilmour Mfg. Co. (1902), 77 App. Div. 199................. 122 Stein v. Marks (1904), 44 Misc. 140...............................................353, 382 Sternberg v. O'Brien (1891), 48 N. J. Eq. 370.................................. 288 Stifler v. Boehen (1924), 124 Misc. Rep. 55........................................ 184 Stillman v. City of Olean (1918), 184 App. Div. 323............................. 130 Taylor Iron & Steel Co. v. Nichols (1908), 73 N. J. Eq. 684...... 388 Texas Prod. Exchange v. Sorrell (1914), 168 S. W. 74 (Tex.)...... 264 In Re Tidewater Coal Exchange (1921), 274 Fed. 1008.................. 112 Thompson v. St. Louis Ins. Co. (1887), 43 Wis. 459....................... 322 Triangle Film Corp. v. Artcraft Pictures Corp. (1918), 250 Fed. 981................................................... 301 Truax v. Corrigan (1921), 257 U. S. 312..................................... 165, 450, 451 Trustees of Columbia College v. Thacher (1882), 87 N. Y. 311 137 Twaits v. Penn. Ry. Co. (1910), 77 N. J. Eq. 103.................... 336 Union Central Life Ins. Co. v. Champlin (1901), 11 Okla. 184 319 U. S. v. Colgate (1919), 250 U. S. 300..................-......-............ 353 U. S. & Cuban Corp. v. Lloyds (1923), 291 Fed. 889.................. 145 Vancil v. Ill. Collieries Co. (1909), 152 Ill. App. 146........................... 335 Van Sylke Agency, Inc. v. News Syndicate, Inc. (1924), 207 App. Div., 736.-............................................................. 264 Velie Motor Co. v. Kopmeier C. Co. (1912), 194 Fed. 324........... 264 Vinton v. Pratt (1917), 228 Mass. 468................................ 317 Vyne v. Glenn (1879), 41 Mich. 112.............................. 281 Wamsley v. Crook (1874), 3 Neb. 344................................. 317 IWeil v. Chicago Pneumatic Tool Co. (1919), 138 Ark. 534.... 264 Western Union Tel. Co. v. Blanchard (1882), 68 Ga. 299........... 324 Western Union Tel. Co. v. Reynolds (1883), 77 Va. 173............... 325 Weegham v. Killefer, et al. (1914), 215 Fed. 168; aff'd 215 Fed, 289.-.................................................................... 156, 265, 339 469 PAGE Wesley v. Native Lumber Co., et al. (1910), 97 Miss. 814.......... 382 West Side E. Co. v. Consol. Subway Co. (1903), 87 App. Div. 550....... ~.-. _ _.................................... 147 Westinghouse Elec. Co. v. Diamond Co. (1920), 268 Fed. 121 257 Whalen v. Union Bag & Paper Co. (1913), 208 N. Y. 1 138 White v. Middlesex Ry. Co. (1883), 135 Mass. 216.___ 337 White v. Conn. Mutual Ins. Co. (1877), 5 Cent Law Jour...... 323 Whitney v. King (1924), 210 App. Div. 312.................. 99, 105 Williams v. Montgomery (1896), 148 N. Y. 519........ 96 Williamson v. Dils (1903), 114 Ky. 962.......................... 382 Winthrop Baking Co., Inc. v. Bliss (Oct. 3, 1927), N. Y. L. J. p. 42 (Sup. Ct. Sp. T.)................. _ - 291 Wood v. Amer. Fire Ins. Co. (1896), 149 N. Y. 382. 322 Wood v. Cook (1909), 132 App. Div. 318......... 96 Wormser v. Brown (1896), 149 N. 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