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YALE LAW JOURNAL VOLUME IV OCTOBER, I894-JUNE I89~ NEW HAVEN, CONN.: PUBLISHED BY THE YALE LAW JOURNAL COMPANY 1695. LEGAL RESTRAINT OF LABOR STRIKES, 13 LEGAL RESTRAI NT 0 F LABO R STRI KES. During the recent Pullman strike, labor leaders assembled at Chicago, and arbitrarily decided whether the industry of the country should be throttled because a stubborn millionaire insisted on his legal rights. It is not supposed that these gentlemen consulted much law, or that any regard for the fundamental rights of their fellow citizens to life, liberty and the pursuit of happiness played a large part in their deliberations. It is not even supposed that the certain prospect of property destroyed, and' the dreadful spectacle of citizens shot down by armed soldiery, in the event of a strike ordered, turned the scale. It is very generally supposed that they decided the question with sole reference to its expedioney for their various unions. During the same strike, at least two governors of far distant tates telegraphed the leader of the strike for permission to run trains in their own territory, and within the jurisdiction of their own laws. The same leader declared in effect, that he had vi lated no law, either in letter or spirit, in launching strikes whose nsequent disorders required suppression by troops in many tates, and caused loss of life and great destruction of property; nn 1 the declarations of labor leaders very generally justified him. Th events of this strike were, in a large measure, an epitome ttl 1 ng history of labor disorders. It shows the growth of an b tr ry power within the ostensible government of law, and far 11\ \' bs lute in its control of the working lives of vast numbers. tip w r which largely ignores the law and resents its interr n in any strike as tyrannica1.! II l'b rt p neer, after investigating our political system, deli I' I. thnt it never contemplated the control of thousands of votes II Oil , a.nd that its success under such conditionswas yet to II PI' V l. It i qually true that our system of law never con- III pi' U Itt t m 11 should act, not as individuals, but in organized 1111, 'P W L' til 11 ugh to practically dictate the terms,on which III Ii II 11 ltll: IU 1 hit d. The groping of judges after firm It W \I IlllHlI,', null its rapid modification, show this clearly II, YALE LAW JOURNAL. The conflict in the cases only mirrors the very obvious conflict between the right of labor to act as an organized unit and the assumed right of the employer and non-organized workmen to follow their occupations without interference. The law has varied much as jud~es have inclined to the point of view of the employer or the employe. But the trend of the law has been distinctly in favor of organized labor. Up to the present century, a combina.tion of workmen to raise the rate of wages by any means whatever, was a criminal conspiracy at common law. 2 It required a statute to drive the fact of their legality into the heads of the British Judiciary. But in Regina v. Rowlands,S it was said, The intent of the law is at present to allow.either of them, employer and employed, to follow the dictates of their own will with respect to their own actions and their own property, and either, I believe, has the right to study to promote his own advantage or to combine with others to promote their mutual advantage. In Rogers v. Evarts,4 it was said, irrespective of any statute I think, the law now permits workmen, at least within a limited territory, to combine together, and by peaceable means to seek any legitimate advantage in their trade. The increase of wages is such an advantage. The right to combine involves of necessity the right to persuade co-laborers to join the combination..' The right to persuade co-laborers involves the right to persuade new employes to join the combination. This is but a corollary of the right of combination. In Statev. Donaldson II (1867) it was held a criminal conspiracy for workmen to agree to quit work in a body unless their employer would discharge at their demand objectionable fellow workmen, and Chief Justice Beasley said in his decision: If the manufacturer can be compelled in,this way to discharge two or more hands he can by similar means be coerced to retain such workmen as the conspirators may choose to designate. So his customers may be prescribed and his business maybe in other respects controlled. I cannot regard such a course of conduct as lawful. * * * There is this coercion. The men agree to leave simultaneously in large numbers and by concerted action. The threat of workmen to quit the manufacturer under these circumstances is equivalent to a threat that unless he yields to their 2 Anon 12, Mod., 248; Rex. v. Journeymen Tailors, 8 Mod. II; Rex. v. Eccles, I Leach 276; Rex. v. Hammond, 2 Esp. 719; People v. Melvein, 2 Wheel. 262; People v. Trequier, I Who Cr. Cas. 142; People v. Fisher, 14 Wend. 9; Commonwealth V. Hunt, 4 Mete. III. S 17 Q. B N. Y. Supp II 32 N. J. ISS. LEGAL RlJ TRAINT OF LABOR STRIKES. unjustifiable demand they will derange his business and thus cast a heavy loss upon him. In Curran v. Tredeoven 6 ( ) Lord Chief Justice Coleridge recorded the modern view: To tell an mployer that if he employs workmen of a certain sort t~e workmen of another sort in his employ will be told to leave h1m; and to tell the men when the employer will not give way' to leave their work use no violence, use no immoderate language, but quietly cea~e to work and go home,' is certainly not intimi~ation, and consequently not illegal, and in this country the nght to trike unless an employer refuses to employ non-union labor is upported.7 Nobody is under a legal obligation to cultivate the ociety of people not agreeable to him. And workmen are under legal compulsion to work with fellow employes they ~o not like. The assertion of the right may be senseless and msuitin., but for this the law has no remedy.. But while workmen may quit working with persons they dislike they cannot underke to force them to join the union by inducing an employer t discharge them if they refuse. In such a case the court said: 8 /I 'l'his looks very much like unlawful coercion, or what amounts the same thing, conspiracy. The defendants had a perfect right, l\ we have seen, to unite with this or any other labor organization, ut they had no right to insist that others should do so, ~~d wh~n til y made plaintiff's refusal to join it a pretext for depnvmg h1m f hi' ri ht to labor, they interfered with his personal liberty to 1'1 t 1'1t the law will not contemplate. But as an employer can I 11y agr to employ none but union men, the decision has little vulll as a. practical protection to non-union workmen. The true \I In ti n b tween the legal and illegal action of combined labor I lind 1 a1'1y Htated in Walker V. Cronin,D and reaffirmed in the t f M gul t amship Co. v. McGregor. 1o In th first d IS ]nt' d: Ev ryone has a right to employ the fruits his wn nterprise, industry, skill and credit. rl 11' t b pi' t t d a ainst c mpetition, but he ha a f1' \'11 mali i tis nd want nann yance. If dis- 'om ll '- \'s\11 mp thi n, or the exel' ise by th I', it i. damllllm ab que i1,/wria, unl 5S l'! h, by n l' (. th rwi', is int 1' r d (' m th m I' I W I' t l'\, 1m 11 nli ills t8, llp\i, I)', \, 16 YALE LAW JOURNAL. LEGAL RE TRAINT OF LABOR STRIKES. 17?f others without the justification or the service of any lawful mterest or lawful ~urpose it :hen stands upon a different footing. A.merch~nt.may mcrease his business at the expense and final rum of his rival. But the rival has no complaint. It is the for-, tune of war, and the inevitable evil of a competitive business syste~. So workmen may strike and peaceably persuade others to stnke to compel the payment of higher wages by the business losses necessarily resulting. This is the industrial weapon they rna! u~e for. th~ attainment of any betterment in their position which IS.not m Itself condemned by law as illegal,ll and they may volu?tanly delegate this right to abandon work to labor union officials ~ho, in the honest perfonnance of the trust, may legally order stnkes for any purpose for which the delegators themselves may legally strike.. The individual may feel himself alone unequal to cope with the conditions that confront him~ or unable to comprehend the myriad of considerations that ought to control his c~nduct. He is entitled to the highest wage that the strategy, of work or cessatjo,n, from work may bring and the limitations upon his intelligence an~opportunities,may be such that he does not choose tostand upon his own perceptions of strategic or other conditions; his right to choose a leaderone. t who. observes, thinks and wills for him-a brain skilled to obsei've h' IS In erest, IS no greater pretension than that which is recognized in every oth department of industry. 12 er. But. where the motive is not to gain a legitimate advantage but pn~a~l1y o~ s?lely to inflict malicious injury, the agreement to s:n~e 1~ a cr:mmal conspiracy and the striking itself illegal. 13 The d1stmctlon IS technically interesting, but practically its val r. ue ~p.pear~ 1m1ted. In the vast majority of strikes the intent to l~jure. IS so confused with the purpose to attain a legitimate end!lke higher wages that the law cannot distinguish them. And as m~n h~ve a right to join unions and agree to their laws and as UnIons mclude e~ployesin different establishments, the u~ion may order sympathetic strikes and undertake peaceable boycotts in all employments, for the purpose of obtaining higher wages or other betterment of labor in one. It is evident that the principle may be so construed as to legally justify almost any conceivable strike where the intention to coerce by inflicting vindictive injury is not openly proclaimed, 11 Compare Farmer's L. & T. Co. v. Nor. Pac. R. Co., U. S. Circuit ourt of Appeals (not yet reported); Walker v. Cronin, 107 Mass. 576; Rag 1'8 71. Evarts, 17 N. Y. Supp. 269; Mogul Steamship Co. v. McGregor, 23. B Charge of. Judge Grosscup to the Grand Jury in the indictm nt 0 th officials of Amencan Railway Union,. July, Cases cited in preceding note. Rogcr'll 71. EVllftR, 17 N. Y. lipp. I 1111 II I.. 'I, III, 'II il,' I I. 18 YALE LAW JOURNAL. Such a vast power can be consistent with the public welfare only where its use is scrupulously just. As was said by Judge Powers in State v. Stevens, 59 Vt. :.. The exposure of a legitimate business to the control of an association that can order away its employes and frighten away others that may seek its employ, is a condition of things utterly at war with every principle of justice, and every safeguard of protection that citizens under our system of government are entitled to employ. . The use of menace, threat or force, by organized labor, for any purpose whatever, is crimina1. 15 Boycotts are usually criminal conspiracies, because their sole aim is too generally to extort compliance by a threatened injury to business. In Crump v. Com. 16 it was said: a wanton, unprovoked interference by a combination of many with the business of another, for the purpose of constrain-. ing that other to discharge faithful and long tried servants, or employ whom he does not wish or will to employ; an interference intended to produce or likely to produce annoyance and loss to that business, will be restrained and punished by the criminal law as offensive to the individual, inj-qrious to the prospects of the community; and every attempt by force, threat or intimidation, to deter or control an employer in the determination of whom he will employ, or what wages he will pay, is an act of wrong and oppression, and,every and any combination for such a purpose is an unlawful conspiracy. The combination is the offense. 17 The element of threat or menace possesses high legal interest, because the remarkable use of the injunction in recent cases has been largely based upon it. The principle that a man may hire and be hired without coercion, is as old as the common law. The use of the injunction to restrain the invasion of the principle is a distinctly new development of the law in seeking an effective remedy.18 The extremely rare use of the injunction is a surprising fact, in view of the wanton and remediless destruction' of property caused by vindictive boycotts. Its justification in such cases 15 It will also support an action for damages where resultant in injury. Steamship Co. v. McKenna, 30 Fed.' Rep Va The same principle is very strongly asserted in State v. Stewart, 59 Vt. ; State v. Glidden, 55 Conn.; People v. Wilzig, 4 N. Y. Cr. Rep. 413; in re Higgins, 24 Fed. 217; and many other cases there cited. 18 Previous to 1890 there had been with the exception of receivership cases, but one reported case in this country restraining workmen from interference with business, and this went on the ground of restraining a continuing trespass to land. See Mayer v. Journeymen's Asso., 47 N. J. Eq LEGAL RE TRAINT OF LABOR STRIKES. was impliedly asserted by Judge Blodgett in Emack 11. Kane: 19.. I cannot believe that a man is remediless against persistent and continued attacks upon his business, such as have been perp~trat~d by these defendants against the complainant, as shown by the proofs lu thls case. It shoc~s my sense of justice to say that a Court of Equity cannot re~train systen:atlc and methodical outrages like this, by one man upon another s property ~ghts. If a court of equity cannot restrain an attack like t~is upon a man's busluess, then the party is certainly remediless, because an action at law ~n ~os: cases would do no good, and ruin would be accomplished before an adjudlcation would be reached. True, it may be said that the injured party has a remedy at law,.but that might imply a multiplicity of suits, which equity often interposes to. relieve from; but the still more cogent reason seems to be that a court~f. e~ulty c~n, by its writ of injunction, restrain a wrong doer, and thus prevent lujunes WhlCh could not be fully redressed by a verdict and judgment for damages at law. Redress for a mere personal slander or libel may perhaps be properly left to the courts of law, because no falsehood, however gross or malicious, can wholly destroy a man's reputation with those who know him..b~t.statements and. charges intended to frighten away a man's customers and mtlmld~te them fr m dealing with him, may wholly break up and ruin him fi~anclal~y, with no adequate remedy, if a court of equity cannot afford protection by Its restraining writ. In Cceur d'alene Con. Min. Co. v. Miners' Union,20 th distinctive element of threat or intimidation is shown to distingnish such cases from libel... A clear distinction will be observed between the two classes of ca, es above noted. In the one where the acts complained of consist of SuC? misre~re!lentations of a business that they tend to' its injury and damage to Its pro~rlt r the offense is simply a libel; and in this country the courts hav WIth gre~t unanimity held that they will not interfere by injunction, but that th injured part}' must rely on his remedy at law. On the contrary, wh r th att mpt to injure consists of acts or words which will operate to intlmldat and pi' v nt the customers of a party from dealing,: it.h, ~r lab I' rs from w rkln f r him the courts have with nearly equal unaolmlty lilterp s d by injull tlon, n th 'ne case it is an injury to a man's business by libeling it; In th, otl1 r by fore, thr ats and other like means, he is prevente~ from punlulug It; and whll th damage might be as great in the one case as III the oth 1'-but m 9t 11k ly with dlff rent consequences to the good order and peae of th mmu- Illty- h urtr; have d. termined21 on different remedies. . ' 111 V ry 1 nlficant d cisions hav been given as to what 0. hr t. Th up hot f th m all i that any nttltu 4 d. p. 47, d f ndaut trl d h lhr oln ult I' In rlna' 20 YALE LAW JOURNAL. of the workmen which so excites the fears of fellow workmen or customers as to drive them away will justify the use of th.. tion t t e llljuncores ralll It. The remarks of Mr Jusf B 22 worth quoting:. Ice rewer are. .Suppos~ng o~e (workman) is discharged and the other wants to 'sta and IS sahsfied WIth his employment and the one that I y b f f. ' eaves goes around to a ~hum er 0 nends and gathers them, and they come around, a large party of them -~ I suggested yesterday-a party with revolvers and muskets-and e o~e t at leaves comes to the one that wants to stay and sa s to him 'No my fnends are here; you had better leave; I request you to l~ave' Th w, l~~s :t. the p;rt y that is standing there; there is nothing hut a si~ple r:q:e:~ - a IS, so ar as the language which is used; there is no threat but it is a :e~ue.st backed by a demonstration of force, a demonstration intended to mh~lc;iate, c~~ulated to intimidate, and the man says, 'Well, I would like to stayit I fam d wilhng to ~ork here, yet there are too many men here; there is too muc 0 a emonstrahon; I am afraid to stay No th every m t 11 h' h. w e common sense of an e s 1m t ~t this is not a mere request; tells him that the Ian ua e used may. be v. ery pohte, and be merely in the form of a re uest ef it ~ ~cco:pall1edwith t~e back~ng of force intended as a demonstra~ion ~n~ calcu~ i:~~mi~~t:.~~e an 1mpn!sslOn, and that the man leaves really because he is In. Sperry v. Perkins,23 a boy tramped up and down the sidewalk III front of the boycotted factory with a banner inscribed with the perempt~rydevice, Lasters are requested to keep away from P. P. Sperry s. Per order L. P. U. (Lasters Protective Union). They kept away. The court in enjoining the boy and banner said:.. ': Th~ act of displaying banners with devices as a means of threats and mhm1dat:on.to prev~n~ p~rsonsfrom entering or continuing in the em 10 ment of the plalllhffs was llljunous to the plaintiffs and illegal at common I:w.!. In Casey v. Cinc.innati Typo. Un.,24 a union tried to boycott a?ews~ape7 by ~endlllg. the ~ollowing genial notice to the agents: ThIS UOlon will consider It a great favor for you to give up the agency of the Commonwealth if you do not we will have to consider!ou the enemy of organized labor. The court enjoined the sendlllg out of such notices, saying that in fact a threat was intended It appear~ accordingly that employers may resort to an injunctio~ to restralll.any acts whatever tending to constrain by fear or alarm the will of others to his prospective injury In re Doolittle, 23 Fed. Rep. 547, Mass Fed Re I R 25 See also remarks of Baron Bramwell Rex v Smith t I. C p. 43 ep. 600; State v. Stewart, 59 Vt. 28g where th~ threat e fa., 10 ox. Cr. izati n to denounce a shop as a.. scab s l'op.. and 't k 0 a labor organ-.. if. 1 ' I S wor men as scab k ~ n't1 It mp oyj d n n;l1nion lubor, was h Id t onstitut rirnlnu! :OT t j - y, lour /Illy ng: h (lnuth m/ll! of l\ S r t 1... /1 I II P r- In (J COl' h IlIl'JJO or 'on rollin.11 I d. I II ~n on 0 m n m II hili ti Ike. ~ n U y l 10th I' h Jl 1 II f L I I) 1 wor 011 I I1Ilnl1 rn h I' lhnl} t h botl 1\1 I II I I on 1l(J II I'llII mol' 'tlv limll II til 0 II lllni,,101 :H', I (lin r LEGAL RESTRAINT OF LABOR STRIKES. But the broad injunctions issued during the recent Chicago strikes, covering a score of interstate railroads, and forbidding even the sending of letters and telegrams to instigate strikes on such roads were not based on this inherent jurisdiction of equity merely. They mainly rested on the judicial interpretation of certain sections of the interstate commerce law, and the anti-trust law of The use of these statutes to restrain labor organizations has been singularly ironical. They were passed largely at their own instance to control the very railroads they have been fighting, and it -is altogether probable that their effect on labor organizations was not considered.27 In Toledo, Ann Arbor & N. M. R. Co. v. Penn. Co 28 it wa
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