This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Whether placing an individual upon an "unfair list" is actionable or not, depends in part upon the meaning which usually attaches to the term "unfair." If, as a matter of fact, the term generally imports nothing further than the fact that the persons who make such announcement do not regard such person as having complied with reasonable requirements, such announcement is no more unlawful than any announcement of disapproval of another's methods of production or of carrying on business. As the term is generally used, however, it imports more than this. It is ordinarily understood to be a declaration of a boycott, together with a threat of boycotting those who pay no attention to the notification, that the party in question is on the unfair list and who continue to do business with him. Where this meaning attaches to the term, and where the court regards a combination to crush a business as illegal,1 placing a person upon the unfair list itself is illegal.2 Some courts take the view that a threat of strike, and a boycott without any threat of violence, but merely stating that the employer will be left off the fair list, will be enjoined, since such threat ultimately involves the coercion which the court looks upon as the necessary concomitant of a strike, and the interruption of business which is necessarily involved in a boycott.3 Injunction will issue to prevent a labor union from publishing a notice that a certain employer or business is on the unfair list if the effect of such notice will be to induce third persons to break off business relations with the business or contractor named, for fear that they will themselves be boycotted.4 Injunction will issue to prevent a buildings trades council from putting a building contractor on the unfair list so as to prevent members of the building trades union from dealing with him, and to prevent him from obtaining contracts.5
1 See Sec. 2430 et seq.
2 Seattle Brewing & Malting Co. V. Hansen, 144 Fed. 1011; Wilson v. Hey, 232 III. 389. 122 Am. St. Rep. 119, 16 L. R. A. (N.S.) 85, 13 Am. & Eng. Ann. Gas. 82. 83 N. E. 928; Plant v. Woods, 176 Mass. 492, 79 Am. St. Rep. 330, 61 L. R. A. 339. 57 N. E. 1011; Gray v. Trades Council, 91 Minn. 171* 168 Am, St. Rep. 477, 63 L. R. A. 763, 97 N. W. 663.
3 Plant v. Woods, 176 Mass. 492. 79 Am. St. Rep. 330, 51 L. R. A. 339, 67 N. E. 1011. (See the dissenting opinion in this case for a statement of the opposite doctrine.) Gray v. Trades Council. 91 Minn. 171. 103 Am. St. Rep. 477, 63 L. R. A. 753, 97 N. W. 663. 'It is not wrong for members of a union to cease patronizing any one when they regard it for their interest to do so, but they have no right to compel others to break off business relations with the one from whom they have withdrawn their patronage, and to do this by unlawful means, with the motive of Injuring such person. Such meant as giving notices which excite the fear or reasonable apprehension of other persons that their business will be injured unless they do break off such relations or cease patronizing another. are wrong and unlawful. If the notices given or things done have the natural effect of exciting such reasonable fear and apprehension and accomplish the result intended, it is immaterial that they are not accompanied by direct threats." Wilson v. Hey, 232 111. 389, 122 Am. St. Rep. 119, 83 N. E. 928.
In jurisdictions in which a combination to crush a business is not regarded as illegal unless formed for purposes or performs acts which would be illegal on the part of an individual, the act of placing a party on the unfair list is not of itself regarded as an illegal act.6 A publication that a certain employer or business is "unfair" to organized labor, is not regarded as actionable in such jurisdictions, although such declaration is in effect a declaration of a boycott.7
4 Wilson v. Hey, 232 111. 389, 122 Am. St. Rep. 119, 83 N. E. 928.
See also, Roraback v. Motion Picture Machine Operators' Union, 140 Minn. 481, 3 A. L. R. 1290, 168 N. W. 766, 169 N. W. 529.
5 Gray v. Building Trades Council, 91 Minn. 171, 103 Am. St. Rep. 477, 63 L. R. A. 753, 97 N. W. 663, 1118.
6 Lindsay v. Montana Federation of Labor, 37 Mont. 264, 127 Am. St. Rep. 722, 18 L. R. A. (N.S.) 707, 96 Pac. 127; Empire Theater Co. v. Cloke, 53 Mont. 183, L. R. A. 1917E, 383. 163 Pac. 107. "But what is there unlawful in the act of the union workingmen of Billings in withdrawing their patronage from the plaintiff? Certainly it can not be said that Lindsay & Company had a property right in the trade of any particular person. In this country patronage depends upon good will, and we do not think that it will be contended by any one that it was wrongful or unlawful. or violated any right of the plaintiff company, for any particular individual in Billings to withdraw his patronage from Lindsay & Company, or from any other concern which might be doing business with that company, and that, too, without regard to his reason for doing so. But there can be found running through our legal literature many remarkable statements that an act perfectly lawful when done by one person becomes by some sort of legerdemain criminal when done by two or more persons acting in concert, and this upon the theory that the concerted action amounts to a conspiracy. But with this doctrine we do not agree. If an individual is clothed with a right when acting alone. he does not lose such right merely by acting with others, each of whom is clothed with the same right. If the act done is lawful, the combination of several persons to commit it does not render it unlawful. In other words, the mere combination of action is not an element which gives character to the act. It is the illegality of the purpose to be accomplished, or the illegal means used in furtherance of the purpose, which makes the act illegal." Lindsay v. Montana Federation of Labor, 37 Mont. 264, 127 Am. St. Rep. 722, 18 L. R. A. (N.S.) 707, 96 Pac. 127.
7Truax v. Bisbee Local, No. 380, Cooks' and Waiters' Union, 19 Ariz. 379, 171 Pac. 121; Lindsay v. Montana Federation of Labor, 37 Mont. 264, 18 L. R. A. (N.S.) 707, 96 Pac. 127