UNIONISM AND THE COURTS yr, - A PAPER BY GEORGE GORHAM GROAT Ohio Wesleyan University % [From the Yale Review , August, 1910.] Yale Publishing Association 135 Elm Street, New Haven, Conn. UNIONISM AND THE COURTS. CONTENTS. Difficult situation of courts called upon to decide cases affecting trade- unions, p. 144 ; i, laws prohibiting discrimination against trade unionists, reasons for tendency of State courts to declare them invalid, p. 145 ; same tendency shown by the Supreme Court of the United States, p. 147 ; analy- sis of dissenting opinions by Justice Bartlett, p. 149 ; Justice McKenna, p. 150 ; and Justice Holmes, p. 151 ; 2, validity of contracts for the closed shop, analysis of decisions condemning and sustaining them, p. 152 ; 3, possible modifications in the prevailing view of the courts in the interest of real free- dom of contract, p. 155; in the case of public service corporations, p. 157; in the case of “wholesale employment,” p. 157. NE of the most interesting as well as one of the most important developments of trade union policy during the past few years has been the increased attention paid to the non-union man. The policy itself is, of course, not a new one. The man outside of the organization has always been in a posi- tion to command the attention of the union man. Yet this atten- tion has been concentrated and heightened into anxiety by a very positive danger. This danger is that the “scab” may become a serious obstacle to the accomplishment of the purposes of the union. Rivalry with an employer cannot be well controlled so long as the employer has at hand a supply of men who can step in to take the places of strikers. Not only in time of strike bint practically at all times is the possible supply of the strike breakers a menace to a militant union. The antagonism that naturally exists between employers and employees is the back- ground for the desire on the part of each to gain every possible advantage over the other, in the realization that an outbreak may come at any time. To place themselves and their followers at an advantage at every possible point, labor leaders have insisted upon a very definite policy against non-union men. They have used legis- Unionism and the Courts. i 9 io] 145 lation where it could be secured and organized strength where it was advantageous. These several plans have an interest beyond that of their suc- cess or failure, or even beyond their effect on the industries that are concerned. They have led to litigation and thus the courts have been obliged to deal with the situation. The result of this has been to place the courts in a difficult if not an embarrassing position. It has made necessary a decision on questions of industrial ethics applicable to industrial conditions so new that there has not yet been time for this new phase of ethics to evolve. It has been necessary for the judges, therefore, to express themselves with caution. It is with the attitude of the courts toward these policies that we are now particularly con- cerned. The effort to secure legislative aid found expression in several laws passed by both State and federal legislatures. These laws were alike in general principle. They made it a misdemeanor for an employer to discharge an employee because he was, or was about to become, a member of a labor union. In one instance a law was passed forbidding an employer to compel an employee to agree not to join a labor union as a condition of employment. Such laws were passed and came before the courts in several States, the opinions being important ones in Missouri, (State v. Julow, 1895, 31 S. W., 781); Illinois, (Gillespie v. People, 1900, 58 N. E., 1007) ; Wisconsin, (State v. Kreutzberg, 1902, 90 N. W., 1098); New York, (People v. Marcus, 1906, 77 N. E., 1073) ; United States, (Adair v. U. S., 1908, 208 U. S., 161). The line of argument in these several opinions is so similar that it will not be necessary to the understanding of them that extracts be quoted from all. All of the opinions except that of the New York court deal with the law to prevent the discharge of men solely because they belong to labor unions. In State v. Julow, the first of this series of decisions, the court found two objections. The first was constitutional, based on the guaranty of life, liberty and property. These terms “are representative terms, and cover every right to which a 10 Y 35861 146 Yale Review. [Aug. member of the body politic is entitled under the law.” Neces- sary to these rights are “those of acquiring property by labor, by contract, and also of terminating that contract at pleasure, being liable, however, civilly for any unwarranted termination.” “The law under review declares that to be a crime which consists alone in the exercise of a constitutional right, to wit, that of terminating a contract, — one of the essential attributes of prop- erty, indeed, property itself, under preceding definitions.” The fact charged “is not a crime, and will not be a crime so long as constitutional guaranties and constitutional prohibitions are respected and enforced.” “We deny the power of the legislature to do this, to brand as an offense that which the constitution designates and declares to be a right, and therefore an innocent act.” The second objection lies in the fact that the law “does not relate to persons or things as a class.” It is therefore a special law, in that a non-unionist might be discharged “with- out ceremony, without let or hindrance,” at the desire of the employer, while a unionist would be protected by the law. By far the most elaborate opinion was written by the Wiscon- sin court. In this opinion the same grounds of objection are urged, — the conflict between the law and the constitutional guar- anties. Implied in the guaranties of the constitution is freedom of contract. The labor contract is but a special form and sub- ject to all the privileges of other forms of contract. The opinion then takes up another line of objection in the following words : “Free will in making private contracts, and even in greater degree in refusing to make them, is one of the most important and sacred of the indi- vidual rights intended to be protected. That the present act curtails it directly, seriously, and prejudicially, cannot be doubted. The success in life of the employer depends on the efficiency, fidelity, and loyalty of his employees. Without enlarging upon or debating the relative advantages or disadvantages of the labor union, either to its members or to the community at large, it is axiomatic that an employer cannot have undivided fidelity, loyalty, and devotion to his interests from an employee who has given to an association right to control his conduct. He may by its decisions be required to limit the amount of his daily product. He may be restrained from teach- ing his art to others. He may be forbidden to work in association with other men whose service the employer desires. He may not be at liberty to work with such machines or upon such materials or products as the employer deems essential to his success. In all these respects he may be disabled from the Unionism and the Courts . H7 I 9 I °] full degree of usefulness attributable to the same abilities in another who had not yielded up to an association any right to restrain his freedom of will and exertion in his employer’s behalf according to the latter’s wishes. Such con- siderations an employer has a right to deem valid reasons for preferring not to jeopardize his success by employing members of organizations. A man who has by agreement or otherwise shackled any of his faculties — even his freedom of will — may well be considered less useful or less desirable by some employers than if free and untrammeled. Whether the workman can find in his membership in such organizations advantages and compensations to offset his lessened desirability in the industrial market is a question each must decide for himself. His right to freedom in so doing is of the same grade and sacredness as that of the employer to consent or refuse to employ him according to the decision he makes. We must not forget that our govern- ment is founded on the idea of equality of all individuals before the law. Such restraints as may be placed on one may be placed on another. If the liberty of the employer to contract or refuse to contract may be denied, so may that of the employee. In answering the question now before us, we may not forget the possibility of being called on to answer whether the legislature may make a criminal of the employee who quits, for example, because his employer joins a blacklisting association; because nonunion men or members of some other union are employed, or nonunion or forbidden machines or materials are used ; because of an obnoxious foreman ; because excessive hours of work are required; because compelled to trade at employer’s store or board at his boarding house ; or because of any other fact or conduct now considered entirely adequate reason for refusing or leaving a particular ser- vice. It must not be forgotten, if, as counsel for the state argues, the laborer is too weak to meet the employer on equal terms in the field of contract, that he will be far more subject to the latter’s control and oppression in the field of politics, and that laws of the above character will surely come, if within the proper province of the legislature, unless, as we have faith to believe, the character and the individuality of the wage earners of the country are suffi- cient to maintain their independence — both contractual and political — in the field of equal rights under the law, and of full liberty to each to sell and buy labor to and from whom he will.” “That the act in question invades the liberty of the employer in an extreme degree, and in a respect entitled to be held sacred, except for the most cogent and urgent countervailing considerations, we have pointed out. Hardly any of the personal civil rights is higher than that of free will in forming and continuing the relation of master and servant. If that may be denied by law, the result is legalized thralldom, not liberty, — certainly not to the labor- ing men of the country. This aspect of the subject is too clear to warrant further discussion.” The law “has, then, taken from one his liberty and property, not for a public purpose, but for the benefit of other individuals, which is but robbery under the forms of law.” The attitude of the United States supreme court was much the same as that of the State courts. The case came up to the supreme court as a test case between two conflicting opinions by lower federal courts. 148 Yale Review . [Aug. United States v. Adair (152 Fed. Rep., 737) had been decided in favor of the constitutionality of the statute by the district court for the Eastern District of Kentucky. United States v. Scott (148 Fed. Rep., 431), the year before, had been decided against the constitutionality of the law by the circuit court of the Western District of the same State. The decision of the latter case was without a comprehensive opinion. The supreme court accepted its principle, however, rather than that of U. S. v. Adair. The opinion is a long one, as it deals with a question that is “admittedly one of importance,” and one that “has been exam- ined with care and deliberation.” “It cannot be, we repeat, that an employer is under any legal obligation, against his will, to retain an employee in his personal service any more than an employee can be compelled, against his will, to remain in the personal service of another. . . . Congress could not, consistently with the Fifth Amendment, make it a crime against the United States to discharge the employee because of his being a member of a labor organization.” “One who engages in the service of an interstate carrier will, it must be assumed, faithfully perform his duty, whether he be a member or not a mem- ber of a labor organization. His fitness for the position in which he labors and his diligence in the discharge of his duties cannot, in law or sound reason, depend in any degree upon his being or not being a member of a labor organi- zation. It cannot be assumed that his fitness is assured, or his diligence increased, by such membership, or that he is less fit or less diligent because of his not being a member of such an organization. It is the employee as a man, and not as a member of a labor organization, who labors in the service of an interstate carrier.” “Looking alone at the words of the statute for the purpose of ascertaining its scope and effect, and of determining its validity, we hold that there is no such connection between interstate commerce and membership in a labor organization as to authorize Congress to make it a crime against the United States for an agent of an interstate carrier to dis- charge an employee because of such membership on his part. If such a power exists in Congress it is difficult to perceive why it might not, by absolute regu- lation, require interstate carriers, under penalties, to employ, in the conduct of its interstate business, only members of labor organizations, or only those who are not members of such organizations, — a power which could not be recognized as existing under the Constitution of the United States.” Concerning the law forbidding an employer to require, as a condition of employment, that a workman shall agree not to join a union but a word need be added. The New York court (People v. Marcus) based its opinion upon its utterances in former cases in which it upheld freedom of contract in relation I 1910] Unionism and the Courts. 149 to the purchase and sale of labor. (National Protective Asso- ciation v. Cumming and Jacobs v. Cohn.) Its conclusion is that “that freedom to contract which entitles an employer to make by agreement his place of business wholly within the con- trol of a labor union entitles him, if he so desires, to require of his employees that they be wholly independent of any labor union.” These decisions with their opinions leave no doubt as to what the law is, so far as constitutionality is concerned. The restric- tion which such legislation seeks to place upon the employer in favor of the workman is contrary to the individual liberty of the citizen to enjoy his property rights. This centers in the right to contract freely with any one who is willing to enter into the contract. The case is not one that by the exercise of the police power may be brought within the constitutional field of limitation upon the right to contract. There is no reason in public policy that will justify such legislation as a restriction upon the right to contract. The prevalence of this view may be indicated by the fact that thirty-two judges have heard the arguments in these several cases, and all but three have held to the opinion that such laws are in violation of a constitutional right. Two of these three are judges of the United States supreme court. Three dissent- ing opinions have been written, and the very fact that there are but three makes them of unusual interest. Further interest is attached to two of them from the fact that they were written by Mr. Justice Holmes and Mr. Justice McKenna. x The first of these three dissenting opinions was written by Y Mr. Justice Bartlett of the New York court of appeals, in the case of People v. Marcus. Its line of reasoning is shown in £he following extract : “The freedom of contract should be untrammeled. A person desiring employment ought not to be required to abstain from joining any labor organization, nor should he be compelled to join a labor organization. The statute should have covered both cases. I regard this legislation as a step in the right direction, although it was evidently drawn in the interest of labor organizations and without regard to securing absolute freedom of contract. The employer is to be protected and the employed as well. I trust the day is not far distant when to every working man will be open all the avenues of Yale Review . [Aug. 150 employment, whether he belongs to labor unions or other organizations, or stands alone upon his individual right to work for such a wage as seems to him just This statute is not, in my opinion, unconstitutional, but is to be regarded as a step in the direction dictated by every consideration of public policy.” Justices McKenna and Holmes wrote their dissenting opinions on the same case, Adair v. U. S. Justice McKenna enters into a careful analysis of the provisions of the entire law of which the contested section was a part and insists that the section must be considered with reference to the other sections. The purpose of the statute as a whole is to prevent or settle disputes between carriers and their employees. In the light of this purpose the section in question gets its justification. Liberty is not entirely free from restraints, even under the Fifth Amendment. Some restrictions are justifiable. The question then is whether the section in dispute “has relation to the purpose which induced the act, and which it was enacted to accomplish, and whether such purpose is in aid of interstate commerce, and not a mere restric- tion upon the liberty of carriers to employ whom they please or to have business relations with whom they please.” The purpose of the act is to be approved, and in its efforts to attain this purpose “the congressional judgment of means should not be brought under a rigid limitation.” If labor associations are to be commended, Congress certainly may recognize their existence and their power “as conditions to be counted with in framing its legislation.” The justification of Congress in its efforts to accomplish its purpose is evident in the events of 1894. The law of 1888 “did not recognize labor associations or distinguish between the members of such associations and the other employees of carriers. It failed in its purpose, whether from defect in its provisions or other cause, we may only con- jecture. At any rate it did not avert the strike of 1894. Investigation followed, and, as a result of it, the act of 1898 was finally passed. Presumably its provisions and remedy were addressed to the mischief which the act of 1888 failed to reach or .avert. It was the judgment of Congress that the scheme of arbitration might be helped by engaging in it the labor asso- ciations.” The final conclusion of the opinion is that if the 1910] Unionism and the Courts. 151 disputed section is to be stricken from the law, the law is made ineffective in accomplishing its purpose. The opinion of Justice Holmes is as follows : “As we all know, there are special labor unions of men engaged in the service of carriers. These unions exercise a direct influence upon the employ- ment of labor in that business, upon the terms of such employment, and upon the business itself. Their very existence is directed specifically to the busi- ness, and their connection with it is, at least, as intimate and important as that of safety couplers, and, I should think, as the liability of master to ser- vant, — matters which, it is admitted, Congress might regulate, so far as they concern commerce among the States. I suppose that it hardly would be denied that some of the relations of railroads with unions of railroad employees are closely enough connected with commerce to justify legislation by Congress. If so, legislation to prevent the exclusion of such unions from employment is sufficiently near. “The ground on which this particular law is held bad is not so much that it deals with matters remote from commerce among the States, as that it interferes with the paramount individual rights secured by the Fifth Amend- ment. The section is, in substance, a very limited interference with freedom of contract, no more. It does not require the carriers to employ anyone. It does not forbid them to refuse to employ anyone, for any reason they deem good, even where the notion of a choice of persons is a fiction and wholesale employment is necessary upon general principles that it might be proper to control. The section simply prohibits the more powerful party to exact certain undertakings, or to threaten dismissal or unjustly discriminate on certain grounds against those already employed. I hardly can suppose that the grounds on which a contract lawfully may be made to end are less open to regulation than other terms. So I turn to the general question whether the employment can be regulated at all. I confess that I think that the right to make contracts at will that has been derived from the word ‘liberty’ in the Amendments has been stretched to its extreme by the decisions ; but they agree that sometimes the right may be restrained. Where there is, or gener- ally is believed to be, an important ground of public policy for restraint, the Constitution does not forbid it, whether this court agrees or disagrees with the policy pursued. It cannot be doubted that to prevent strikes, and, so far as possible, to foster its scheme of arbitration, might be deemed by Congress an important point of policy, and I think it impossible to say that Congress might not reasonably think that the provision in question would help a great deal to carry its policy along. But suppose the only effect really were to tend to bring about the complete unionizing of such railroad laborers as Congress can deal with, I think that object alone would justify the act. I quite agree that the question what and how much good labor unions do, is one on which intelligent people may differ; I think that laboring men sometimes attribute to them advantages, as many attribute to combinations of capital disadvantages, that really are due to economic conditions of a far wider and deeper kind; but I could not pronounce it unwarranted if Congress should decide that to foster a strong union was for the best interest, not only of the men, but of the railroads and the country at large.” 152 Yale Review . [Aug. While these two dissenting opinions are of course far from determining the law, they nevertheless indicate a possible devel- opment. It must necessarily be some time before the minority view will be accepted by the majority, if, indeed, it ever is accepted. One further indication of variety of opinion is found in Berry v. Donovan. In that opinion Mr. Chief Justice Knowlton made the following statement: “We have long had a statute for- bidding the coercion or compulsion by any person of any other 'person into a written or verbal agreement not to join or become a member of a labor organization as a condition of his securing employment or continuing in the employment of such person.’ The same principle would justify a prohibition of the coercion or compulsion of a person into a written or verbal agreement to join such an organization as a condition of his securing employment, or continuing in the employment of another person.” Turning away from legislation as a means of securing protec- tion for union men, we find the leaders availing themselves of the right upon which the courts in the above cases have insisted : the right to contract. Its application is in the contract for the union or closed shop. Much may be said both for and against this policy on economic grounds. Our interest, however, is with the attitude of the courts, and there are cases in which some interesting opinions have been written on the subject. Berry v. Donovan (Mass., 74 N. E., 603) was a case in which a discharged employee brought suit for damages on the ground that his discharge had been caused by an agreement between his employer and a union, providing that the employer would not retain in his employ any one that was objectionable to the members of the union. Damages were awarded by the court on the ground that the discharged workman had been employed nearly four years and was discharged as a result of a complaint under the agreement. The opinion is a long one and does not seem so strong as some other opinions on the same subject. It takes the general ground that "under correct rules of law, and with a proper regard for the rights of individuals, 1910] Unionism and the Courts. 153 labor unions cannot be permitted to drive men out of employ- ment because they choose to work independently.” The opinion closes with the following guarded statement: “How far the principles which we adopt would apply, under different con- ceivable forms of contract, to an interference with a workman, not engaged, but seeking employment, or to different methods of boycotting, we have no occasion in this case to decide.” In Jacobs v. Cohen (N. Y., 76 N. E., 5) the opinion of the court was accompanied by a vigorous dissenting opinion. The contract for a closed shop was one that included many details and was in effect a complete unionizing of the shop. The pre- vailing opinion was brief. It held that the contract was not unlawful. It had been entered into voluntarily, and the parties were free to make the agreement. “That, incidentally, it might result in the discharge of some of those employed, for failure to come into affiliation with their fellow workmen’s organization, or that it might prevent others from being engaged upon the work, is neither something of which the employers may com- plain, nor something with which public policy is concerned.” The dissenting opinion, written by Mr. Justice Vann, is inter- esting from beginning to end. As a result of the agreement, the opinion argues, the labor department was under the control of the union. Thus both employer and employed abrogated their own rights. “This was a form of slavery, even if volun- tarily submitted to; for whoever controls the means by which a man lives controls the man himself. Both the proprietors and the workmen seem to have walked under the yoke of the union without a protest. * * * The labor of the employees belonged to themselves, and they had a right to sell it to whom they chose and on such conditions as were mutually satisfactory. The business belonged to the defendants, and they had the right to employ any man who was willing to work for them; but by this agreement an outsider intervened, and compelled those who owned the business and those who did the work to submit to its direction. * * * The manifest purpose of the con- tract was to prevent competition and create a monopoly of labor. A combination of capital, or labor, or as in this case of both, to prevent the free pursuit of any lawful business, trade, Yale Review. 154 [Aug- or occupation, is forbidden both by statute and the common law.” In O’Brien v. People (75 N. E., 108) the Illinois supreme court held that a strike to enforce an employer to sign a closed shop agreement was properly enjoined. The union agents were seeking to obtain the signing of a contract by threats. “A con- tract under duress is voidable, and duress is present where a party is constrained, under circumstances which deprive him of the exercise of free will.” Reynolds v. Davis (84 N. E., 457) is another Massachusetts case and one of very recent date (1908). The employers had been operating under a verbal understanding which was in effect a closed shop agreement. They decided to abandon that pol- icy and in furtherance of the new purpose posted a set of rules which established the open shop. The result was a strike and an appeal to the court. The majority opinion of the court was based on the general rule that in Massachusetts “the legality of a combination not to work for an employer, that is to say, of a strike, depends (in case the strikers are not under contract to work for him) upon the purpose for which the combination is formed — the purpose for which the employees strike.” That the purpose was not legally justifiable is found by the majority of the court in certain rules of the union. These rules the union sought to enforce upon the employer. “The strike in question was a combination for the purpose of making the trades council, composed of delegates from the unions of which the individual defendants are members, the arbiter of all ques- tions between individual employees and their employers. * * * We do not mean to say that a labor union cannot combine to support a committee to take up individual grievances in behalf of the several members. What we now decide to be illegal is a combination that such grievances (that is to say, grievances between an individual member of a union and his employer which are not common to the union members as a class) shall be decided by the employees and that decision enforced by a strike on the part of all.” Chief Justice Knowl- ton wrote a dissenting opinion, stating that while he agreed with the final disposition of the case, the opinion seemed to rest on erroneous grounds. He objected to the opinion in that Unionism and the Courts. 155 1910] it “makes the decision turn upon the rules and by-laws” of the union. His opinion, which is one of considerable length, takes up the question of the rules and by-laws. On the general proposition that “it is right that all the members of such a union should unite for the protection of the interests of every individual member” it follows that, “if the feeblest of its mem- bers has a just grievance as an employee against their common employer, it is proper that the whole combination should act together to obtain redress of the wrong.” To do this effect- ively, he shows, the rule to which the majority objects is reason- able and lawful. The reasonableness of the rule is pointed out in detail. The objection on which he bases his opinion and his conclusions is the following: “If the decision were puT" on the ground that the strike was for a closed shop in the sense that the shop should be closed arbitrarily to all workmen not members of the union * * * to compel all workmen to join the union for the purpose of creating a monopoly in the labor market, whereby to be able to contend successfully with employers whenever a controversy should arise, I should cheerfully concur in it. A strike to compel a closed shop, merely to accomplish such a purpose, would not be justifiable on principles of competition, either as against nonunion workmen or as against the employer, but would be unlawful.” While the unconstitutionality of laws to prevent the discharge of men because of their membership in unions cannot be doubted, yet the principles underlying the dissenting opinions are of interest. They suggest the question, whether in spite of the almost unanimous agreement there are not signs of the begin- ning of a modification, if not a change, in the view. The majority opinion is based on the long established and widely accepted understanding of freedom of contract. This is inher- ited from an earlier individualist period. Is that understanding- formed in that earlier period to pass unmodified into our modern view of socialized industry? The extracts above quoted reveal clearly the origin of the view held by the majority of the judges. Do the dissenting opinions show the entrance of a new view? Yale Review . [Aug. 156 Mr. Justice Knowlton, of the Massachusetts court, in a pre- vailing opinion, holds that this law is as unreasonable as would be a law which would prohibit the coercion of a person into joining a labor organization as a condition of employment, the two alike being a violation of freedom of contract. Mr. Justice Bartlett, of the New York court, in his dissenting opinion, at the outset declares positively in favor of freedom of contract. He then maintains that “a person desiring employment ought not to be required to abstain from joining any labor organiza- tion, nor should he be compelled to join a labor organization. The statute should have covered both cases.” Yet he declares that he regards the legislation “as a step in the right direction” and concludes that the statute is not unconstitutional “but is to be regarded as a step in the direction dictated by every con- sideration of public policy.” Both are thus insistent upon freedom of contract. In the one case it is to be preserved after the old method of non-inter- ference. Legislation forbidding an employer to require an employee either to join or not to join a union is an infringement of contractual freedom. This is the older view. It is also one that considers principally the position of the employer and his right to contract with whomever he may choose. In the other case freedom of contract is to be preserved, but by a different ^method, — that of legal enactment. Legislation declaring that an employer shall not discharge an employee because of either membership or non-membership in a union should be held as no infringement upon contractual freedom but rather as a pro- tection to such freedom. This is the newer view. It is also one that considers the position of the employee and his right to contract with an employer for employment without regard to his relation with organized labor. The difference is a significant one. The position of the employee becomes one equal in import- ance to that of the employer. These are the two views as revealed in the prevailing and dis- senting opinions. If real equality before the law and real free- dom of contract applied equally to both parties lies in either one of these two views and not in the other, it is important that it be known which is the one to be chosen. If it be true that actual equality lies in the minority view, that view must 1910] Unionism and the Courts . 157 ultimately express itself in the majority opinions. If labor unions are to continue to be recognized as legal in themselves, it is not easy to see why the employer should be left undisturbed in his position of bargaining advantage to dictate whether his employees should be members of unions or not. Clearly when one side has a decided advantage in making a bargain, as the employer generally has, it is not an exaggeration of terms to use the word dictate. There are principles in Mr. Justice Holmes’s dissenting opin- ion that are also significant. First is the fact of railroads as common carriers. Legislatures always exercise considerable control over public service corporations. The public interest is especially concerned. If unions are inseparably connected with the activity of these public service corporations, should not the government recognize it? Safety couplers, liability of master to servant, are simply instances of a large number of cases where legislatures now interfere. It seems to the mind of the justice that labor unions may reasonably be included in the list. But the second point is of greater import. Individual rights as secured in the Fifth Amendment are at stake. But who are the individuals concerned? and what are the rights? The individuals are employees as well as employers. “The section simply prohibits the more powerful party to exact certain under- takings or to threaten dismissal or unjustly discriminate on cer- tain grounds against those already employed.” The notion of a choice of persons, or of individual bargaining, is referred to as a “fiction,” both the fact and the necessity in actual indus- try being “wholesale employment.” “This it might be proper to control.” This is the practical view of employment as it exists. It throws altogether a new light upon the older view of individual rights in freedom of contract. What are the rights? The rights of these individuals are not passed without comment. The right to make contracts at will, derived from the word “liberty” in the Amendments, has, in the opinion of the justice, been “stretched to its extreme” by the decisions. Even these decisions, however, agree that sometimes the right may be restrained. The necessity arising out of public policy justifies the restriction and it is not for the court to determine the necessity. 158 Yale Review. [Aug. This is the newer view again as applied to unions and com- mon carriers. If it is to have any influence, it will be in the direction of bringing the majority opinions of the future more fully into line with the changed conditions of industry. In the field of the closed shop the views of the judges have not been so generally on one side. The circumstances in which the agreements are made as well as the conditions of the agree- ments themselves enter into the determination of the opinion of the court. Interference with implied contracts already exist- ing and coercion of the employer by the union are of import- ance. Yet when these are cleared away, there is the fact of monopoly which may easily bring the case within the anti-trust law or the common law. Here the individual view of the judge would be important and one might well expect differences of opinion. This being so, it seems that, coercion and violation of contract aside, a case still has a chance between two possible out- comes. The agreement may be accepted by the court as a vol- untary one, where the parties were free to act, as in the New York case. Or it may be rejected, as in the Massachusetts case. In this latter case, however, the reasoning of the majority opin- ion was hardly as satisfactory as was that of the opinion of Mr. Chief Justice Knowlton. There it is clearly brought out that the agreement and the means adopted to secure it show a purpose of “creating a monopoly in the labor market.” This is against public policy as destructive of competition, and not to be permitted. So far, then, as these two points of policy are concerned the unions cannot be said to have accomplished much. The efforts to secure legislation to protect them in their membership have failed. Even should the minority opinion ever prevail it would be to the advantage of the laborer as a laborer and not as a unionist. In the matter of the closed shop his success lies in making the agreements in such a way as to keep free from the courts. If the courts are appealed to, then there are the questions of coercion and of monopoly to be dealt with. Here the outcome is uncertain. George Gorham Groat. Ohio Wesleyan University.