The American Employer Entered as second-class matter, January 7, 1913, at the Post Office at Cleveland, Ohio. PAR 1914 Unionism and the Sherman Law The Principles Governing its Application to Labor Unions; Written for The American Employer By WALTER GORDON MERRITT, Attorney at Law, New York City, Associate Counsel for the Complainants in the Danbury Hatters' Case What is the nature of Mr. Gompers' quarrel with the Sherman antitrust law? He now attacks the Democratic Administration for failure to exempt labor unions from the operations of that law and declares that all labor unions are outlawed by it. “Amend it, or end it," is his slogan. To exempt labor unions would not constitute class legislation, he says, for the law was intended to apply to the sale and distribution of commodities and not to human beings. A cursory examination of the situation will show that this argument is neither sincere nor fair. The Sherman anti-trust law is a universal condemnation of all combinations which restrain interstate trade or commerce or attempt to monopolize it. It does not apply to the manufacturer or workingman as such, and the only instances in which such persons have come under its condemnation were when they attempted, not to control or interfere with the conditions of manufacture or of employment, but the sale, distribution or transportation of products throughout the channels of interstate commerce. All such attempts are illegal, whether indulged in by the manufacturer, the labor union, a doctor or a lawyer, for the law is no respecter of persons. It has no application to the ordinary strike, which seeks to improve the strikers' condition of employment. Since the act is only declaratory of the common law, the ordinary strike is not imperiled by it even though it has the incidental effect of injuring commerce by interrupting the production of articles which enter into it; neither would its repeal legalize any activities of the labor unions which now stand condemned by the common law. How can it then be said that legitimate unionism is endangered by this act? Thousands of strikes have taken place since the enactment of that law and have seriously though incidentally affected the interstate trade of manufacturers by destroying the production of articles which make up that trade, but no court or department of justice has ever suggested that such activities were forbidden by the Sherman anti-trust law. APPLICATION OF THE LAW. Its application to strikes on the facilities of interstate commerce, like railroads, is different from its application to ordinary industries, because such strikes necessarily paralyze transportation and are, therefore, forbidden unless they have the legitimate purpose of improving the conditions of the strikers. There can be but little doubt that a sympathetic strike to tie up our interstate railroads, where the strikers are not seeking any direct benefit for themselves, offends that statute, because it interferes with the operation of the very facilities of interstate commerce and prevents the transportation of products through the channels of commerce. The strikes of the railroad employes in 1893 to prevent the handling. and hauling of Pullman cars, and the threatened strikes a year ago against the railroads centering in Chicago because the Illinois Central Railroad, over which they had no control, would not settle its differences with its strikers, are both examples of such a combination; but there will be few to find fault with this protection of our national highways against interruption by irresponsible labor unions. Nor is there any distinction between the obligations of the employers and the employes of the railroads which could fairly forbid the companies from interrupting the service and permit. their servants or employes to do so. Can we have one law for the president of a railroad company and another for the subordinate, or shall we stand on the just platform that the public welfare must be protected against the needless interruption of public utilities by any person, rich or humble? But this question of the railroads. is passed over without further analysis, because the main question in the public mind is the application of this law to the American Federation of Labor and other unions which deal more particularly with general industries rather than railroads. Everybody will admit Mr. Gompers' contention that a law which applies to the sale and distribution of products should not necessarily apply to the relation of employer and employe; that there is a manifest difference between a human being and a basket of coal; but all arguments drawn from this classification lead to the conclusion that labor unions should not be exempted from the Sherman anti-trust law and that such exemption would. constitute the most palpable class legislation. The contrary conclusion results from a failure to realize that the Sherman anti-trust law has no application to any combination in productive industry which does not seek to control the sale and distribution of articles between producer and consumer, and that the leading cases against labor unions have each of them been instances where the union has gone beyond the strike and has en deavored to extend its influence into commerce by preventing the sale of competitive products. NEW RELATION OF UNIONS TO LAW OF Labor unions occupy a merce. The adoption of the union label and the statutory regulations in connection therewith, which create a new right unknown to the common law, show the tendency of organized labor to follow the products of their labor into commerce by booming the sale of union-made goods and suppressing the sale of non-union goods. All boycotts are direct attempts to control the relation between producer and consumer, while most strikes are direct attempts to control the relation between employer and employe. The ordinary strike attacks the working organization, or the productive machinery; the boycott attacks trade and good will, or the distributing machinery. The first affects manufacturing, with which the anti-trust act has no concern; the second affects the sale and distribution of commodities through commerce, to which the law does apply. The well-organized efforts of unions to drive open-shop articles from interstate commerce clearly offends the Sherman anti-trust law, and the same is true of any effort to destroy or suppress the competition of any nonunion manufacturer. When workingmen pass from the strike to the boycott, they play the role of producers of merchandise, interested, like their employers, in the sale and distribution of products, which are the joint fruits The employer of capital and labor. seeks to advance the sale of his products in preference to those of his competitors, and the union seeks to advance the sale of products made by union men in preference to those made by non-union men. Like the employer, the union at times resorts to the illegal practice of suppressing competitive sales. In such cases, both employ the same means for the same end, for both block the channels of interstate commerce in order to fill their own pocketbooks. The derailment of a train for the purpose of preventing the transportation of competitive products would be the clearest violation of the anti-trust law. In such a case, no one would doubt that an employe would be equally guilty with the employer in committing such a crime, yet the blocking of the channels of interstate distribution by intangible methods is open to the same argument. SOME INSTANCES. The Manufacturing Woodworkers' Association of New York, composed of union manufacturers of wood trim, agree to employ only union carpenters. on condition that the union will protect them from all open-shop competition by calling strikes on all buildings where open-shop products are used. Through this combination no non-union woodwork-which is 25 to 50 per cent cheaper than union woodwork can be used for building purposes in certain parts of the country, because the builder is deterred from purchasing such material by fear of disastrous strikes. Monopoly and inflated prices are thus assured, while employer and employe divide the spoils. In the Danbury hatters' case, the evidence showed a general combination on the part of the union to employ the vast machinery of the American Federation of Labor to drive all open shop hats from the market. Thirty thousand dollars were annually spent in booming the sale of union label hats and boycotting the sale of nonunion products. The union manufacturers, who were the beneficiaries of this system, relied on this boycott to protect them from open shop competition, and in some instances they issued boycotting circulars and their salesmen became promulgators of the boycott in order to restrain the trade of non-union competitors. The strikes in West Virginia which led to indictments, were inspired-and I think financed-by the mine operators of Ohio, Indiana and Illinois, who made a solemn compact with the union to operate union mines on condition that the union would protect them from the competition of the West Virginia products. In all of these instances, and numerous others that could be cited, the combination does not limit itself to a strike, but extends its influence into commerce and seeks directly to control the relation between producer and consumer.. The ultimate end may be to control conditions City in the wood trim industry. The island of Manhattan, which is the center of trade by land and sea, is as completely isolated from open shop competition as if it were a South Sea island. The potentialities of competition are found in the large open shops of Brooklyn, but inter-borough trade in open shop products is destroyed and not a stick of that material can enter into the construction of new buildings in Manhattan. Were the law to legalize such combinations, the public would be delivered to the mercy of the monopolist more completely than ever before. THE FEDERATION'S REAL PURPOSE. The real purpose that the Federation of Labor seeks when disingeniously shouting that the right to strike is endangered, is full license to destroy the trade and business of open shop manufacturers by an interstate boycott until all open shop products shall have been driven from commerce and industry shall have been throttled and monopolized by organized labor. If, through the obstruction of a secondary boycott, the channels of interstate commerce can be denied every manufacturer who operates an open shop, then all free communities will feel the union yoke and no man can earn a living without a union license. This organized exclusion of the nonunion man by destroying the business of all employers who dare to employ him is as reprehensible and inimical to public welfare as the destruction of competitors by the Standard Oil Company. With the corrective power of public opinion which voluntarily manifests itself by withholding patronage, there is no quarrel; but with the secondary boycott conducted through the machinery of the American Federation of Labor, there can be no compromise. To the conservative, Socialism is less dangerous. The structure and magnitude of the American Federation of Labor and the extent of its boycotting machinery is one of the marvels in the world's history. It is composed of about 112 international trade unions of different trades, about 25,000 local unions, some 40 state federations, over 530 central labor unions, and represents a com bined membership of between 1,500000 and 2,000,000 members. Each state federation is composed of all the affiliated labor organizations in a par ticular state, so that the entire fore of organized labor in that state ma be turned against any recalcitrant dea er who persists in purchasing prod ucts from the boycotted manufacturer The 530 central labor unions serve the same purpose within the limits of each city. Before the law directed its attention against this Federation, it employed from 1,000 to 1,500 organizers to prosecute Federation boycotts. Resolution after resolution of the Federation dwelt upon the necessity of concentrat ing the entire force of this machinery upon a few manufacturers in order more speedily to destroy their businesses. Hundreds of boycotts were thus prosecuted by the Federation pursuant to its constitution. THE ORGANIZATION'S POWER. Now, let the reader put himself in the position of a small and unoffending manufacturer against whom this crushing machinery is directed, as it was against D. E. Loewe in the Danbury hatters' case. Mr. Loewe is the kind of a man who makes the country better. His customers and employes find no fault with him. He came from Germany as a poor man, and, after working many years at the bench, started a business in his own behalf which reached a point of moderate prosperity when the attack was made upon him. The union admitted that the conditions in his factory were satisfactory and but few changes would be required if he unionized. They acknowledged that over half of his em ployes belonged to the union and showed a preference for working in his factory rather than in a union factory. Their only substantial demand was that every man in his factory should belong to the union and that he discharge all non-union men not acceptable to the union. It was this point more than any other which led to the |