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LABOR LAWS AND COURT DECISIONS

The Courts, the Legislatures, and Labor

HE United States Bureau of Labor Statistics has for many years published bulletins stating what laws have been enacted with regard to labor, and others reviewing the attitude of the courts toward such laws. The latest addition (Bul. No. 391) to the latter list summarizes decisions rendered during the years 1923 and 1924 by the Federal and higher State courts. This is the most comprehensive number of the series yet published, presenting some 450 cases, covering numerous phases of the legal problems of employers and workingmen. Thus, more than 100 points involved in workmen's compensation laws and their administration are discussed, some of them in several cases; the activities, responsibilities, and status of labor organizations are noted under some 40 different topics; questions of constitutionality are considered in more than 30 cases, and so on, practically throughout the field.

May a city select barber shops as a special object of restriction as to work time? Or may it require bakery employees to submit to medical examinations? Did the Supreme Court in the Adkins case lay down a rule as to minimum wage laws which is binding as to the State laws on this subject? May an employee contract to accept his wages at a time different from that prescribed by statute? May a newspaper be compelled to publish the names of recalcitrant employers under a State board order? What is lawful picketing? An "outlaw strike"? An "irreparable injury" under the Clayton Act? When will the courts intervene to set aside rules of a labor organization? What is the jurisdiction of the Railroad Labor Board? Does restriction of manufacture constitute an interference with interstate commerce? May a labor organization compel an employer to pay in one city the rates current in another, because the latter is his home? What are the rights of alien beneficiaries under compensation laws? Does the right to an award for a specific injury survive to the dependents in case of the death of injured workman? Does an award to a widow, dying during the benefit period, inure to the benefit of an heir? When are stevedores, ship carpenters, etc., entitled to compensation, and when relegated to admiralty? What is the effect of the law giving to seamen the same rights of recovery as are given railroad employees by the Federal liability statute? These and many other questions are answered, sometimes diversely, by the courts rendering decisions on the points indicated as set forth in Bulletin No. 391 of the Bureau of Labor Statistics, just from the press. As its introduction concludes: "The bulletin [is] one of interest to the workingman whose legal problems are given consideration, and to every student of the industrial situation in its judicial phases.'

Liability of Labor Organization for Interfering with Employment

O WHAT extent a labor organization can engage in activities. that prevent the employment of an individual, and the proper procedure of the injured person in seeking to recover damages were questions before the Supreme Court of Colorado in a recent case (Order of Railway Conductors v. Jones, 239 Pac. 882). R. F. Jones had been a conductor employed on the Denver & Interurban Railroad, and was party to a collective agreement or "schedule and roster" by means of which the status of the various employees and their employers was fixed. It is not clear from the report whether Jones was ever a member of the Order of Railway Conductors, nor is any reason given why the organization undertook, as indicated by the evidence, to "eliminate" him from the provisions of the agreement. The undertaking was successful, however, with the effect that Jones was unable to secure any employment other than on a branch line during four months of the year. On account of the damages suffered from the aggression of the union and its officials and agents, suit was brought in the district court of Boulder County, with a verdict and decree for $50,000 damages-$30,000 actual and $20,000 exemplary. On this finding against the union and its officers and agents a writ of error was procured, followed by a reversal and the granting of a new trial.

It was in evidence that the defendants had, by means of persuasion, threats, coercion, and intimidation, procured the results complained of.

Their principal defense was justification, claiming that they had never interfered with his opportunities for employment "except when such employment was in violation of the rights of other employees of the same class as plaintiff under seniority rights fixed by a contract with the railway company to which plaintiff was a party." The court admitted the soundness of this contention, if correct; but correspondence of the officers of the union and a resolution adopted by it indicated a deliberate plan to "eliminate" the plaintiff from any rights under the agreement, one letter reporting success in getting his name "stricken from the conductor's roster of the Fort Collins division." If the defendants had made their attacks for the purpose of maintaining rights of their own which were equal or superior to those of the plaintiff, there would be sufficient justification for the course which they took; but the matter of the construction of the contract had been by agreement referred to an arbitrator, whose decision, awarding the plaintiff superiority, showed that they possessed no "equal or superior rights," so that there was no justification in their attempt to enforce their adverse construction of the contract. For such gratuitous and unjustifiable interference with the plaintiff's right to free contract, liability would lie; nor would it be a defense that his employment was at the will of the employer, since "an employee has a right to the free exercise of such will."

It was agreed that the action should be regarded as one in equity, and one of the grounds of alleged error was the claim that the court below had tried the case by jury as a law case, but decided it by decree with an injunction as an equity case. It appears that the defendants claimed the cause was in equity, and that the plaintiff consented to try it as such, but that a jury was then called and

evidence taken, the purpose of the jury being "to assist and advise the court," although its findings were not binding upon it. Since the distinctions between actions at law and suits in equity had been abolished by statute in Colorado, no ground for error appeared in the proceedings in this respect. "For the purpose of their verdict they [the jury] were the sole judges; what the court might do with the verdict was immaterial to them, and the court did ultimately determine the facts."

However, the supreme court ruled that the claim of the plaintiff for damages was based on tort and not on any equitable ground, and that damages are not recoverable in equity, though equitable relief may be added to damages even for tort.

There was a question as to the nature of the instructions with regard to motive. The point was not quite clear, but apparently it was required that the jury should find malice as a motive on the part of the defendants. As to this the supreme court said, "We think that motive is irrelevant to the question of defendant's liability, and that their desire to injure him and purpose to do so are also irrelevant." Interfering with employment to his injury without justification created liability, whether their purpose was good or evil; whereas if they had the right to do what they did they were not liable, "even if their motive is hate and their purpose to injure him;" but this was not to be understood as saying that the matter of malice or purpose to injure "would not be relevant as tending to show that the defendants did what they are charged with doing or as relating to exemplary damages."

Reversal was necessary in order to correct certain errors as to damages allowed for unlawful acts committed more than six years before the commencement of the suit, and because matters of damage were submitted to the jury which were not properly the subject of damages; but the principal features of the case as decided by the court below-i. e., the question of liability and that of form of procedure were sustained.

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Service of Process on Labor Organizations

CCEPTING the principle of suability of unincorporated labor organizations, how may they be brought into court? This is the sole question that was passed upon by the United States District Court, Eastern District of Kentucky, in a case recently before it (Christian v. International Association of Machinists et al., 7 Fed. (2d) 481). Charles Christian undertook to sue eight labor organizations to recover damages for the loss of employment by reason of an alleged conspiracy in restraint of interstate trade and commerce. The action was brought under the terms of the Federal antitrust law, frequently referred to as the Sherman Act, and it was by reason of this action under a Federal statute that the Federal court had jurisdiction, the frequently used basis of diversity of citizenship not being necessary in such a case.

Christian had secured the service of writs of summons on certain individuals assumed by him to be representative of the various defendant organizations. These organizations were with a single

exception international labor unions, with locals in the district where the action was brought. Service had been made on persons described as the "local chairman and a member" of the representative bodies in most cases, on "its agent" as to one, and on the president of the one local organization, System Federation No. 41, which was a subordinate of the Railway Employees' Department of the American Federation of Labor. The judge recognized the decision of the Supreme Court in the Coronado case (259 U. S. 344, 42 Sup. Ct. 570) as deciding affirmatively the question whether or not such organizations could properly be sued; but it found against the plaintiff, Christian, on the question as to the effectiveness of service on merely local officers of subordinate organizations. He rejected the contention that the members were members only of the local unions and not of the international, which is made up only of local unions, holding that members of the locals were "also in fact members of the international union." However, an official of the local merely is in no sense representative of the international any more "than a stockholder in a corporation is a representative thereof." No service of process on one member could subject another member to a personal judgment, nor could any law be constitutionally enacted containing such a provision. To bring an organization into court a properly representative person, service on whom would give a reasonable inference that the fact would be brought home to the union which he represents, is necessary. In the Coronado case it was said that certain unions were before the court "properly served by processes on their principal officers." Since such officers had not been served except in the single instance of service on the president of System Federation No. 41, this was the only organization actually brought into court by the steps taken. As to the other defendants, therefore, the writs must be quashed. Of course, on such a procedure nothing as to the merits of the case was developed, the only question, as already stated, being the method of serving process to secure jurisdiction of the parties.

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Basis for Computing Wage Bonus

THETHER losses can be figured to offset profits in different months in computing a promised wage bonus was the question that was before the Supreme Court of Wisconsin in a recent case (Girman v. Hampel, 205 N. W. 393). The plaintiff, Girman, was employed by the defendant, Hampel, as manager of his meat market on a weekly salary, plus 15 per cent of the monthly operating profits of the business. At the end of two years the weekly salary had been paid, and a part of the bonus based on profits, but Girman claimed a balance of some $500 in excess of Hampel's allow

In answering suit for the recovery of this balance, it was claimed that the amount of the bonus had not been fixed, and that its payment was left entirely to the judgment and good will of the employer. There was also a contention that, as there were losses during certain months, the final settlement should be based on the net profits after the losses for these months had been deducted. It did not appear that this practice had been carried out in connection with

the plaintiff's predecessor; nor was there anything in the agreement or promise made stipulating any such condition. On the other hand, at the end of about one and one-half years' employment, a statement of the balance then due was given the plaintiff without any deduction for the loss occurring in one of the months covered. There was also a promise to pay this sum.

The court below had found in favor of the plaintiff for the balance as determined without making any deduction for the unprofitable months, holding that, as the promise was to pay a percentage of the monthly profits, this was the only basis for computing the amount. The supreme court on appeal, affirmed this judgment, finding that the practice of furnishing monthly statements was in effect a monthly determination of the amount of the bonus due. If there were months of no profits no bonus would be payable, but neither would there be a liability on the part of the employee to reimburse the employer out of the bonus for the profitable months.

Constitutionality of Statute Fixing Hours of Labor on Public Works: Wyoming

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HE question indicated in the above title hardly seems an open one since the decision by the Supreme Court in Atkin v. Kansas (1903), 191 U. S. 207, 24 Sup. Ct. 124, sustaining the power of State legislatures to regulate the conditions of employment on public works. However, the Supreme Court of Wyoming found the statute on that subject enacted by the legislature in 1913 (secs. 4308, 4309, C. S. 1920) so defectively drawn as to be invalid (State v. A. H. Read Co., 240 Pac. 208).

The act in question was in two sections, the first limiting the hours of service of laborers, workmen, or mechanics on public works of the State or its municipalities to eight hours per day. No further provision is contained in this section; i. e., there is no prohibition on longer service or the requirement of further labor than that indicated by the term, "eight hours in any one calendar day." The second section declares it a misdemeanor punishable by fine or imprisonment for any person "to violate any of the provisions of section 4308."

A contracting company engaged in street paving, the expense to be met by assessments on property especially benefited thereby, employed a workman ten hours instead of the eight prescribed by the law. It was brought before the district court of Laramie County which submitted questions on constitutional points to the supreme court of the State. This court held that the legislature had power to fix the hours of labor on public works, and that such action did not violate either the State constitution or the fourteenth amendment to the Federal Constitution, there being no denial of due process or equal protection of the laws; also, the work was of a nature defined as a public work even though paid for in whole or in part by assessments on private owners. However, since the statute defined no criminal offense, such as making it unlawful for any employer to permit or require longer hours of work, the penal provision was too indefinite and uncertain to afford a basis for the enforcement of the punish