The Evolution Of The Labor Injunction With Particular Emphasis Upon Contemporaneous Factors Influencing Its Application

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Content This dissertation has been 64-5151 microfilmed exactly as received BIXBY, John Chasteney, 1926- THE EVOLUTION OF THE LABOR INJUNCTION WITH PARTICULAR EMPHASIS UPON CONTEM PORANEOUS FACTORS INFLUENCING ITS APPLI CATION. University of Southern California, Ph. D ., 1963 Economics, history University Microfilms, Inc., Ann Aibor, Nncmu.i Copyripht by JOHN CHASTENEY B7XRY 1964 THE EVOLUTION OF THE LABOR INJUNCTION WITH PARTICULAR EMPHASIS UPON CONTEMPORANEOUS FACTORS INFLUENCING ITS APPLICATION by John Chasteney Bixby A Dissertation Presented to the FACULTY OF THE GRADUATE SCHOOL UNIVERSITY OF SOUTHERN CALIFORNIA In Partial Fulfillment of the Requirements for the Degree DOCTOR OF PHILOSOPHY (Economics) June 1963 UNIVERSITY OF SO U TH ER N CALIFORNIA GRADUATE SCHOOL UNIVERSITY PARK LOS ANGELES 7. CALIFORNIA This dissertation, written by John Chasteney .Bixby under the direction of h ill ...Dissertation C o m mittee, and a p p ro v ed by all its members, has been presented to and accepted by the (iraduatc School, in partial fulfillment of requirements for the degree of D O C T O R O F P H I L O S O P H Y Dran Date DISSERTATION: COMMITTEE ' ... / . . CM iirm ait C « TABLE OF CONTENTS CHAPTER PAGE I. THE PROBLEM AND THE APPROACH........... 1 The Problem........................... 4 Statement of the Problem........... 4 Importance of the Study............. 5 Methodology ............................... 6 Scope and Limitations of the Study.. 7 The Patrimony of the Labor Injunction ... 7 Limitations of the Study........... 11 Organization ............................... 12 II. EARLY APPLICATION OF THE LABOR INJUNCTION ... 18 The "Great Upheaval" ...................... 19 A New Anti Labor Weapon of the E r a ... 22 Commonness of "Blanket" Terminology .... 23 Injunction Issuance Without Hearings ... 25 Injunction Usage in the 1880's....... 27 The Sherry v. Perkins Case of 1888 .... 29 Injunctions to Control Boycotts and Coercion......................... 31 ii CHAPTER PAGE Recognition of restraining order convenience....................... 33 The Gould South Western Strike of 1886 ... 34 Postwar Growth of Labor Organizations . . . 34 The Knights of Labor and the strike victory of 1885 ...................... 37 Factors influencing the labor move ment .......... 39 The Initiation of the 1886 Gould Strike . . 41 Key area work stoppages and union conduct........................... 43 Injunction Issuance to Influence Public Opinion............................. 46 Defeat of the Knights of Labor........ 48 The 1888 Burlington Railroad Strike ........ 48 The Brotherhood of Locomotive Engineers . . 50 Grievances with the Burlington road ... 51 Failure to achieve adjustment of grievances....................... 53 The Strike and Company Response .......... 55 Union Establishment of a Boycott..... 57 iii CHAPTER PAGE The Petition for Injunctions ........... 58 Blanket Provisions and Aroused Interest . . 61 Denial of restraining order allega tions .................................. 63 Court hearing and injunction justifica tion .................................. 64 III. THE SHERMAN ACT AND INJUNCTIONS ........... 67 Origin of the Sherman Act.................... 70 Intent of the B i l l ........................ 70 Provision interpretation by Senator Sherman................................ 72 Amendments to the Sherman B i l l .......... 74 Final Provisions of the A c t .............. 75 Injunction suits through federal court 8 ................................ 76 Triple damage provisions of the act . , . 77 Significance of the Modification........ 78 Court determination of the legislation's scope.................................. 79 United States v. Workingmen's Amalgamated Council..................................... 80 iv CHAPTER PAGE The Defense of the Union................ 82 Applicability of the Sherman A c t ........ 83 Waterhouse v. Comer......................... 85 Uhlon Rule Illegality..................... 87 Interference with Interstate Commerce ... 87 The Pullman Strike of 1 8 9 4 ................ 88 Events Preceding the Strike .............. 89 The Commonweal movement and injunctions........................... 90 The Pullman Palace Car Company.......... 92 Pullman workers and their conditions . . 95 Representation by the American Railway Union......................... ..... . 98 Initiation of the Strike by the Pullman Locals ...... 101 Boycott support from the national union................................. 102 The General Managers Association........ 104 Legal strategy by the railroads........ 107 Federal Intervention ..................... 109 Charges of interference with the mail . . 110 v CHAPTER PAGE Demonstrations and the response of the government........................ 112 Injunction Application Udder the Sherman A c t .................................. 114 Development of the restraining order . . 115 Issuance of a blanket injunction .... 117 Public posting of the order......... 119 Mob Violence and Contempt of Court 4 Charges.............................. 120 Debs indictment for conspiracy..... 123 The Importance and Influence of the Strike.............................. 126 Accelerated union efforts to restrict the injunction................... 127 Participation by labor on the political scene.............................. 129 IV. LABOR AND THE CLAYTON ACT................. 132 Early Efforts to Exempt Labor from the Sherman Act............................ 135 Political Influence by the AF of L .... 137 vi CHAPTER PAGE Indirect Union Attempts at Antitrust Exemption................................ 138 Labor's "Reward’ '— The 1914 Clayton Act . . . 141 Implied Exemption and Congressional Intent.................................. 142 Injunction Provisions of the Bill.......... 145 Federal court labor injunction issuance limitations............................ 146 Injunctions by private parties .......... 148 Regulations pertinent to Injunction issuance.............................. 148 Contempt proceedings .................. 149 Reaction to the Clayton Act . ............ 151 Unwarranted optimism by organized labor.................................. 153 The Weakness Apparent in the Legisla tion .................................... 154 Adverse effect of Section 1 6 ............ 157 The Duplex Case and the Position of Labor . . 158 Union Organizational Attempts.............. 159 vii CHAPTER PAGE Boycott Imposition by the International Association of Machinists.............. 162 Court Action and the Issuance of an Injunction............................... 163 Clayton Act Interpretation by the District Court................................... 165 The Appeal and Circuit Court Majority Opinion................................... 166 The dissenting opinion................ 169 Review by the Supreme Court................ 170 Granting of a permanent injunction . . . 173 The dissenting opinion .................. 178 Effect of the Supreme Court Decision . . . 180 State Anti Injunction Lavs and Clayton Act Influence................................. 183 Arizona and Massachusetts Anti Injunction Statutes................................. 185 The Federations* "Model” Anti Injunction B i l l ..................................... 188 The Truax v. Corrigan C a s e ................ 190 viii CHAPTER PAGE Plea for an Injunction and subsequent denial................ . ...... 191 Appeal to the State Supreme Court .... 192 Review by the United States Supreme Court........................... 194 Significance of the Truax decision . . . 202 V. THE FEDERAL ANTI INJUNCTION ACT OF 1932 .... 204 The Period of Indecision in Injunction Control Programs................... 207 * * Injunctive Relief Efforts by the AF of L ........................... 208 Failure to Agree on Proposed Bills .... 211 Submission of the Shipstead B i l l .......... 212 The Originator of the Measure....... 214 Rejection by the Senate Judiciary Subcommittee..................... 216 Initiating a new anti injunction bill . . 217 Delay in presentation to Congress .... 219 Enactment of the Norris-LaGuardia Measure . . 221 The Influence of Contemporaneous Factors........................... 222 ix CHAPTER PAGE Significance of the Legislation .......... 223 Provisions Relating to Self Organize** t i o n ................................ 224 General philosophy of the act....... 225 Specific Acts Immunized from Injunctive Relief.............................. 226 Similarity to the Clayton Act....... 228 Conditions Permitting Injunction Issuance............................ 229 Proof of irreparable injury and lack of adequate remedy................... 231 Control of the Blanket Injunction .......... 232 Significant Innovations Relating to Contempt Proceedings .................... 234 Definition of a "Labor Dispute"....... 236 Overcoming a Clayton Act weakness .... 237 Influence Upon State Legislation ........ 239 Court Treatment of Anti Injunction Legis lation ..................................... 241 Indirect Tests of Constitutionality .... 242 Levering & Garrigues Company v. Morrin . 242 x CHAPTER PAGE United Electric Coal Companies v. Rice........................... 246 The Senn Case Ruling by the Supreme Court............................... 250 Pre trial events in the c a s e ....... 252 Petitioning for an injunction....... 255 Supreme Court hearing and opinion .... 256 Establishing Constitutionality Through the Lauf Decision................... 261 Union coercion to obtain representa tion ................................. 263 Lower court action granting an injunction....................... 264 Supreme Court reversal ................ 265 The Era of Broad Court Interpretation . . . 270 An appeal for injunctive relief from business injury................... 272 The all-inclusiveness of Norris- LaGuardia's Section 13 272 VI. EVENTS CULMINATING IN THE TAFT-HARTLEY INJUNCTION PROVISIONS................... 277 The Immediate Pre War Period and Labor . . . 281 xi CHAPTER PAGE Strike Increases and Government Agency Creation........................... 282 The United Mine Workers Strike of 1941 . . 285 Congressional reaction and proposed labor control legislation .............. 288 Wartime Disputes and Government Action . . . 290 The Coal Industry Strike of 1943.......... 293 Government seizure of the mines..... 294 Enactment of the Smith-Connally Measure . . 297 Labor and the Reconversion Period....... 299 The Labor-Management Conference of 1945 . . 300 Labor Utarest In the Postwar Years..... 301 The 1946 Bituminous Coal Strike and Injunction Reappearance .................. 303 The Krug-Lewls Agreement........... 305 Position of the government in the situation......................... 307 The petition for an injunction..... 310 Contempt proceedings against Lewis and the UMW........................... 313 Review by the Supreme Court......... 315 xii CHAPTER PAGE The majority opinion and its signifi cance .................~' .............. 317 Proposed Labor Legislation Involving Injunctions Preceding Taft-Hartley .... 321 The Ball-Burton-Hatch B i l l ........... 322 President Truman's El lender B i l l ..... 324 The.Omnibus Case Bill and House Passage . . 326 Revision by the Senate............. 327 Veto of the measure by the President . . 329 The Labor Management Relations Act of 1947 ..................................... 331 Representative Hartley and Bill HR 3020 . . 332 Senator Taft and Bill S 1126 334 The Ball Amendment Enlarging Injunction Application......................... 336 Provisions of the Final Measure....... 338 Taft-Hartley philosophy .................. 338 Significant modification of the Wagner Act................................ 340 Injunction application against union unfair labor practices ................ 342 xiii CHAPTER PAGE Secondary boycotts and jurisdictional strikes and injunction procedure . . . 356 Injunctions to protect the national health and safety................. 348 Extortion and check-off control through injunction issuance ..................... 351 Present Status of the Labor Injunction . . 352 VII. SUMMARY AND CONCLUSION................... 359 BIBLIOGRAPHY ......................................... 383 xiv CHAPTER I THE PROBLEM AND THE APPROACH One of the most controversial issues in ,the area of industrial relations is application of the injunction in labor disputes. Management representatives and those of organized labor have long held divergent views on this subject, but within recent years parties having neither a direct affiliation with management or labor have added to the controversy by the contribution of various views. This is particularly evidenced by the sheer volume and scope of various works of numerous legislators, jurists, scholars, and laymen who have either condemned or praised this type of court order. Fundamental to the controversy is the fact that the labor Injunction provides a basis for court entry into labor disputes. This feature of court Intervention is highly undesirable to some. Objections usually arise from the contention that use of this legal device not only 1 Interferes with the right of workers to bargain collec tively, but is in itself a direct cause of disturbances in relations between labor and management. It is maintained, by labor injunction opponents, that the state of industrial relations has improved to such a degree that the power of the court to issue this type of writ has been circumscribed. It is further claimed that the collective bargaining pro cess is strengthened and promoted and that both parties are more inclined to reach a quick and peaceful settlement of their controversies when they become aware that the courts are powerless to determine the outcome of labor disputes. Taking the opposite side of the issue are those believing that the application of labor injunctions is necessary to protect the employer from the "lawlessness of unions." By removing injunctions from the field of labor management relations, it is maintained that it would fur ther encourage irresponsibility on the part of organized labor. In recent times, particularly, supporters of this legal device have urged that it be retained so that the "public interest" can be protected from the activities of those unions threatening the "national health and safety." This controversy has not been stilled with the pas sage of time and with enactment of the Norris-LaGuardia Anti Injunction Act of 1932. The entire issue has been brought to the forefront by passage of the Taft-Hartley Act of 1947 with its modified injunction restriction provi sions. Labor leaders in particular have been quick to indict this legislation on the ground that it once again stimulates restraining order applicability in labor dis putes. In recent years, this controversy may actually have prevented unions from pushing for any change in the Taft- Hartley law since labor presently feels that any revision of the Act would not only fail to eliminate use of this device but might actually increase its scope in view of prevailing public opinion. This seems to be a distinct possibility in light of existing conditions early in 1963 and the considerable amount of adverse effects collective action has created in a recent East and Gulf Coast long shoremen's strike. Thus in our time the labor Injunction still stands as a matter of considerable controversy and as a subject of major Interest to unions, management, the government, and the public. It is because of its continuing Importance that this dissertation has been written as a contribution to a better understanding of this legal Instrument, and as an appraisal of its worth as a technique of governmental control over labor relations. I. THE PROBLEM Statement of the Problem As a consequence of the minimal and ineffective coverage of the subject of the labor injunction in the great mass of historical material relating to the American labor movement, this dissertation has a twofold purpose. The first is to examine the more significant applications of this legal instrument from its introduction into this country to the present era, to determine its effectiveness in any one period of time. The second purpose of this study is to examine the effects of contemporaneous factors, particularly in an economic, legislative, and judicial sense, on the evolutionary development of this device. It is unfortunate that a topic as Important as the labor injunction has failed to receive as effective a treatment as many of the other subjects and events of which labor relations history is a composite. This has been and still is a significant instrument for settling disputes, and may assume an even more Important role in the future. 5 Since an understanding of the extensive changes through which this device has evolved is necessary in order to appreciate its present form and status, this study will approach the subject through the perspective of history. Examination will be made only of the significant labor cases and legislation involving or affecting this device since the number of situations in which it has been exer cised since the 1880's runs well into the thousands. Importance of the Study The status of the injunction in cases involving labor disputes has undergone a dramatic change over the past eighty years. It has passed from its position as an instrument of great power in the hands of unscrupulous "big business" interests to that of a legal device com pletely stripped of all but limited applicability during the 1930*s. From this period of ineffectiveness, the labor injunction in the recent postwar period has again come into prominence, this time as a device to protect the interests of the public. Application of this Instrument may be largely the direct result of changes in the prevailing socioeconomic climate. Parties giving direction to the organs of the law are part of the "going" society in the sense that judges, legislators, businessmen, labor, and the public are strongly Influenced by the spirit of the times. It is, of course, true that some of these "directors" have been more responsive than others to changing conditions and senti ment, but it may be observed that in an over-all sense there exists a continuous struggle to accommodate the legal structure to changes in the economic environment. As atti tudes of people are affected by socioeconomic maladjust ments, the institution of law and the application of various legal devices are likewise subject to change. It has been noted that labor historians have not only failed to provide any more than superficial treatment to labor injunction development but have minimized the factors accounting for changes in its status. Thus the significance of this study lies in tracing the changing Importance of the injunction, giving proper emphasis to the affect of legislative enactments and court decisions as Influenced by the times. Methodology There have been numerous books, case studies, tiracts, and other works dealing with the subject of the 7 labor movement. In many of these references the authors have adopted an historical approach, reviewing the subject from the standpoint of a chronological presentation of important events. Customarily these events pertain to physical clashes or other expressions of conflict between labor and management which have resulted in the birth of controlling legislation of one type or another. The evolutionary thread of the labor movement may be seen through review of this material, not only in a broad sense but in the adaptation of such goal"influencing devices as the labor Injunction. It is therefore from these varied sources that this dissertation has been written, following a time-sequence approach in presenting the introduction, rise, decline and rebirth of this legal device. II. SCOPE AND LIMITATION OF THE STUDY The Patrimony of the Labor Injunction The use of the injunction in labor disputes had not been common prior to the late 1880*8. It was not until the latter portion of the nineteenth century that this new legal weapon to curb strikers made its appearance. During the Gould South Western railroad strike o£ 1886, both state and federal courts issued restraining orders to halt trespassing and violence without attracting any noticeable degree of attention or creating great protests from the labor unions. These Injunctions were based upon the customary power of courts of equity, limited to use as civil remedies but not applicable to criminal acts. The Interstate Commerce Act of 1887, and later the Sherman Antitrust Law of 1890, provided a statutory basis for the issuance of injunctions by United States Courts to restrain violations of these laws. By the terms of the Acts, such violations became crimes. This legislation thus extended the scope of the powers of courts of equity Into an area which up to that time had been barred. Between 1888 and the Pullman strike of 1894, the use of the Injunctive process to suppress strikes developed so rapidly that 'government by Injunction" became a perennial grievance of organized labor. Historians, however, usually cite the period after 1895 as one In which the most rapid development of the labor Injunction occurred. The reason for this Is not attributed solely to the effect of the 1890 Sherman Act which expanded the definition of property to include tangible rights, thereby creating a much broader field for protection. A major cause of increased injunction usage was due to the ruling of the Supreme Court in the Debs case which legalized the application of this device In labor disputes. This conflict and the events taking place during that time had the effect of directing considerable atten tion to the restraining order and its effectiveness. A consideration of the number of labor injunctions issued in the various decades since this historic case illustrates how the institution has evolved. It has been estimated that up until the early 1930's, or the time of the Norris-LaGuardia Anti Injunction Act, over 1,850 Injunctions had been issued. Dr. Witte found records of 508 cases in the federal courts and 1,364 in the state courts prior to 1931 involving the restraining order, with approximately 98 per cent of all writs issued to give relief to the employer and 2 per cent to give relief to the union.1 Of this total of 1,872, it was estimated that 28 were issued in the 1880's, 122 in the 1890's, 328 from 1 Edwin E. Witte, The Government in Labor Disputes (New York: McGraw Hill Book Co., 1932), p. 83. 1900 through 1909, 446 from 1910 through 1919, and 921 from 1920 through April of 1930.2 This list may not be complete because numerous Injunctions have been Issued by the lower courts Which, especially In the earlier years, were Issued without proper records being kept. Thus from the available evidence, It seems Indicated that there have actually been more Injunctions issued than those which were recorded. While the figures cited by Dr. Witte are, of neces sity, estimates, no comparable data are available concern ing the issuance of labor injunctions since the early 1930's. It is evident that following passage of the Norris-LaGuardla Anti Injunction Act, the number of writs issued by the federal courts was sharply curtailed. How ever, issuance was not stopped entirely. Although some states have enacted laws restricting the issuance of such orders by the state courts, many others have failed to do so. Consequently the labor injunction has continued to be a knotty problem throughout the first half of the twentieth century. 2Ibid. 11 Limitations of the Study Reference has been made In ttlnls s t u d y to those federal and state labor laws, economic events, disputes, court cases and decisions which have A.g>g>ssred to bear directly upon the evolutionary developm e n t of the labor injunction. There has been no attempt t o present discus sions of those factors considered o n l y incidental to the main tracing of the subject over an e l g h t y year period. The position taken is that as t h e socioeconomic climate has changed within the country, trlrae status and application of the labor injunction Iras a l s o been directly affected. The problem, however, Is t h a t I n a later stage of society where a greater degree of Industrialization has been reached, the factors influencing injunction usage are more numerous, complex, and difficult: t o detect precisely. This study must therefore necessarily' b e limited to a dis cussion of the cases and legislation c o n s i d e r e d relevant involving the injunction, and to an e x a m i n a t i o n of the particular circumstances concerned in sreelaation to a given time and place. The majority of the cases p r e s e n t e d are instances in which this legal instrument has either d 1 rectly influenced 12 Introduction of new legislation or instances where the constitutionality of recently passed labor laws have been proved. The principal points or issues involved in each dispute or event are presented and the evolutionary aspects of the action indicated to the extent possible. III. ORGANIZATION The format of this study has been dictated largely by the nature of the subject itself. Certain significant events in the evolution of the restraining order have occurred in a manner so as to lend themselves to a chrono logical and systematic presentation. Since this Is the case, treatment of the various time periods usually begins with an examination of the underlying conditions and events leading to the enactment of statutes affecting the labor injunction. Following presentation of the pertinent points contained in these laws, the substantiating court cases are then considered. The effects of these, both in comparison to the preceding situation and to their influence upon the labor movement, are presented. This leads into the subse quent events, legislative enactments, and supporting cases of the next time period. 13 The Introduction of the labor injunction to America has been covered In the second chapter by using a modified version of this approach. Examination of this initial time period did not lead to a review of the legislation enacted affecting restraining order Issuance. Rather it built upon the early local cases involving lower court hearings where brief mention of its use lays the groundwork for subsequently more significant application. Events in two major railroad strikes of that day, the South Western and the Burlington strikes of 1886 and 1888 respectively, provided the basis for the first important application of the injunction. A detailed presentation of these disputes covers the conditions surrounding its use. In addition, this review was employed to Indicate the "place" of the injunction in the 188018, highlighting the relatively insignificant role played by this legal device in that particular time period. The third chapter follows the approach suggested earlier. This section considers the major federal labor legislation of that day, the Sherman Act, which was to exert a definite bearing upon the legal status of the injunction. Since its enactment marked the initiation 14 of a great upsurge In the volume of restraining order issuance, it formed the logical beginning of the second evolutionary period. The debates and discussions of this bill in Congress leading to its final form have been the starting point of the chapter. These were followed by a review of those lower court decisions rendered after the Act*s passage in 1890 In which some indication was provided of eventual Sherman Act applicability to labor unions and, hence, injunction legality. The Debs case, upholding restraining order constitutionality, is presented in detail with particular attention given to preparation of the writ used, its nature, and the forces behind this device. The effects of the Supreme Court decision in influencing greater labor participation in the political scene is also indicated. This served to introduce the next state of Injunction development and the passage of a federal statute intended to control its abuse. The 1914 Clayton Act is the main subject of Chap ter IV. The efforts of the AF of L to amend the Sherman Act and their political activities directed toward the election of pro-labor candidates form the early portion of this section. Clayton Act provisions relating to 15 Injunction issuance and procedure and the specific exclu sion of labor from the antitrust law received considerable attention. The second portion of the Clayton Act story involving its failure to receive "proper" interpretation by the courts is presented. Of particular Importance were the opinions rendered in the Duplex case in 1921 which indicated prevailing judicial feeling and sentiment. The influence of Clayton Act legislation upon state anti Injunction laws also seemed an appropriate inclusion in Chapter IV since failure at this level to secure effective control over the injunction further encouraged its rapidly increasing use. Such events forced labor to develop their own substitute bills, one of which was to form the frame work for the first fully effective federal anti injunction legislation to be enacted. Emphasis upon the influence of economic conditions and the changing social scene constitutes the substance of Chapter V. This period was perhaps one of the most clearly defined eras in which "contemporaneous factors" were work ing to overcome both legislative fuzziness and the render ing of unfavorable court decisions, such as seen following both Sherman and Clayton Act passage. Attention has been paid to the efforts o f -union and political leaders to develop effective injunction control legislation able to pass the test of constItutionality • Inclusion of those sections of the Norris —laGuardia Act indicating the pre vailing philosophy o f the 1930’s, reinforced by court decisions following t h e same path, underline the change brought about by the times to encourage unrestrained union ism. The New Negro Alliance case was used to Illustrate the new court "liberalism" in the broad interpretation of the 1932 Norris-LaGuardia Act, and effectively concludes a review of the period which witnessed an almost absolute restriction of restraining order. The chapter dealing with the most recent federal legislation affecting the status of the labor injunction was one of the more difficult to organize. Since this legal instrument has moved from a position of tightly regulated usage to t h a t of relatively frequent applica bility in recent years, it was felt that those events culminating in Taft—Hartley passage should receive close attention. The initial portion of Chapter VI thus reviews the important events o f the prewar, wartime, and recon version periods which have strongly Influenced both the 17 politicians and the public to press for labor control legislation, much of which contained provisions affecting use of the Injunction. Though not enacted into law, many of these same provisions in the bills proposed prior to 1947 were later incorporated into Taft-Hartley. Their scope and sheer number were the direct result of union programs undertaken at the expense of the public. Thus a case was again made for the Influencing effect of con temporaneous factors affecting the evolution of the labor Injunction. Chapter VII, the summary and conclusion, presents a brief recapitulation of the important events connected with the evolution of the restraining order. It also suggests the possibility of future expansion of injunction usage, and presents some thoughts concerning the events of the current period which appear to offer somewhat of a parallel to those existing prior to the enactment of the Taft-Hartley law. CHAPTER II EARLY APPLICATION OF THE LABOR INJUNCTION The period which began with the 1880's and extended almost to the turn of the century may be Identified as the first of the significant evolutionary stages of the labor Injunction. This particular era was one of considerable change for the country, both in an economic and social sense, and one In which major conflicts between big busi ness and organized labor were occurring on a scale pre viously unknown. It was a period of history in which the application of the injunction in labor disputes entered an embryonic stage and then, within a relatively brief period of time, developed into a fully grown instrument of control praised by management and greatly feared by labor. It was quite evident to organized labor, even prior to enactment of the far-reaching 1890 Sherman Act, that the Injunction was a major weapon seriously threatening the labor movement. Its inception and original employment 18 19 had taken place In England, but its use there never achieved the degree of prominence that It was to attain In America. Early records dealing with Its initial appearance on the labor scene in this country indicate the rather limited place it occupied in controlling disputes between various small scale local manufacturers and local trade unions. It was not until the Gould South Western railroad strike of 1886 that the labor Injunction began to play an Increasingly prominent role In the major conflicts of that period. In that particular dispute, however, a universal recognition of its importance still was not achieved. It remained for the great Burlington Railroad strike of 1888 to focus attention of labor and business on the restraining order, largely as a result of the publicity this conflict received through the major reporting media of that day. Thus it was that this latter conflict marked the end of the introductory stage of limited localized injunction use and the beginning of a period of intensive application which continued unabated until the early 1930*s. I. THE "GREAT UPHEAVAL" The period following the end of the War Between the States, according to historians, was a time in which 20 the American labor movement was unable to adjust itself to the new conditions of an industrial society.* It was also one of the periods in which the movement did not possess the underlying strength needed to withstand depressions. The leaders of labor brought forth numerous ideas and pro* grams during that era, but their shifting, changing atti tudes toward trade union activity, reform, and politics did not get them the popular support of the great number of workers or inspire any real feeling of cohesion. For all the inspirational talk at the labor conventions and the articles and appeals of the labor press, there appeared to be an Increasingly wide gap between the handful of active participants in the labor movement and their nominal fol lowers. This same span of years was also a period of great upset as it relates to the business climate. Economic conditions of the times had cut the ground out from under the labor movement and had created some formidable obstacles to any effective activity. In 1873, the country was swept by a panic of the first magnitude that brought ^Foster Rhea Dulles, Labor in America (New York: Thomas Y. Crowell Company, 1953), p. 112. about a prolonged and severe depression. 2 This was a period of falling prices, widespread stagnation of busi ness, production and wage cutting, and of considerable unemployment. With the coming of these difficult times, workers rose to protest vehemently over whet they con sidered to be ruthless exploitation by employers. Demon strations by the jobless were occurring In a number of cities, and these often brought forceful Intervention by 3 the police. Strikes among miners during this time led to bloodshed and killing and in 1877, a spontaneous uprising on the part of the railway workers caused widespread rioting throughout the country.^ With these events and with some three million per sons out of work, the times brought an end to strivings for labor unity and for the establishment of industrial con gresses, and an almost complete shattering of the existing national unions.^ Even after disturbances of the 1870's 2 Rendigs Fels, American Business Cycles, 1865-1897 (Chapel Hill: University of North Carolina Press, 1959), pp. 98-102. 3 Dulles, op. cit., p. 114. 4 &id. 22 had subsided, the unrest and dissatisfaction of the workers continued to slimier dangerously below the surface. In the 1880's, when the country again experienced depression and the usual cycle of wage cuts and unemployment were again very much in evidence, strikes were so numerous that the period has been termed ’ ’the great upheaval."^ II. A NEW ANTI LABOR WEAPON OF THE ERA The period preceding the passage of the Sherman Act also witnessed the Introduction of a new and powerful weapon which the businessmen of that day wielded against labor with devastating effect. This was the labor injunc tion in a form so sweeping and all-inclusive that unions were subject to complete control the moment a strike action was threatened or in effect. By 1890, less than a decade after its introduction into this country from England, the blanket injunction was firmly established as a thoroughly effective anti labor device. A considerable number of those injunctions issued prior to 1890 were of doubtful legality. In case after * *Ibid.. p. 116. 23 case these were issued to prevent strikers from committing acts already prohibited by criminal law. The principal reason for their use was to levy abusive power against the laboring movement. It became possible to make acts illegal which were lawful if standing alone, and to apply this legal device against persons other than those immediately involved in the dispute. In many cases restraining orders were directed against anyone, identified or unknown, who undertook to aid striking workers. ^ Commonness of "Blanket" Terminology The language employed in the injunctions of the late 1880*8 failed to distinguish between activities commonly regarded as unlawful, such as the violent destruction of property, and patterns of conduct commonly regarded as law- o ful, such as the right of free speech. The sweeping or "blanket" terms usually found in the early forms of this legal device such as "all persons whomsoever," and "inter fering in any way whatsoever," produced the most serious 7 Albion G. Taylor, Labor Problems and Labor Law (New York: Prentice Hall, Inc., 1938), p. 543. 8Ibid.. p. 544. 24 consequences. Aside from raising questions as to the legality of certain acts, both participants to the dispute were affected. Injunctions in this era clearly violated the basic civil liberties guaranteed by the constitution. Any party with an Interest in obstructing the activities of labor could easily and quickly secure tempo rary restraining orders for the asking. Uhder the loose ness of the early Injunction Issuance method, an employer faced with strike action or other union pressure could request any judge to grant immediate relief, regardless of whether or not he was sitting on the bench at the time.^ Affidavits could be submitted which were prepared by agents of the employer asking for a restraining order pending suit for a permanent injunction. These statements would be to the effect that the union or strikers were about to commit, or were committing and would continue to commit, alleged unlawful acts, all of which would cause damage to property. ^Charles 0. Gregory, Labor and the Law (Hew York: W. W. Norton and Company, Inc., 1946), p. 100. Injunction Issuance Without Hearings Often, during that era, judges frequently issued restraining orders in the absence of anyone representing the persons to be enjoined.Occasionally such orders were directed at named Individuals but, as has been indi cated, quite often they were not. Not much attention was devoted to legal theory in these transactions, or even to what had actually transpired around the factory. By the time the matter was set for the trial, in which it was to be determined whether or not the employer was justified in securing protection of this sort, the strike was usually broken. This could be attributed either to the obedience of the union leaders or to the fact that they would be in jail for disobedience. Where and when a decision was to be made at a trial as to whether to grant a formal injunction and as to how far steps would have to be taken to prevent what kind of conduct by whom, the same casual fashion was in evidence. Both sides under these circtanstances, though, would be represented at the trial and the judge would take testimony, 26 affording an opportunity for cross examination. ^ The proceedings were without juries. Quite frequently the evidence would indicate actual or imminent violence and other unlawful conduct on the part of union members. But whether or not this was the case, many judges of that day habitually read into the findings actual or threatened violence and other specifically unlawful conduct where 12 nothing of the type had occurred or was in prospect. Injunctions were usually drawn up in technical and ambiguous legal terms so that they were almost as compli cated as an intricately worded corporate mortgage. There were seldom any attempts to put injunction prohibitions into a simple language so that they could be understood by a layman, or into the foreign languages prevalent among large sections of the laboring population. Too often judges signing these early injunctions did not draft them personally but followed the prevailing custom of permitting the counsel of the employer to prepare the formal injunc tion instead.*-4 Unfortunately, such Injunctions toward 11Ibid., p. 100. 12Ibid., p. 102. 13Ibid.. p. 101. 14Ibid. 27 the latter parr of the nineteenth century left little scope for even peaceful economic coercive activity on the part of the unions. III. INJUNCTION USAGE IN THE 1880*S There Is lack of agreement as to the specific year the first Injunction was Issued In a labor dispute In this country. It does seem to be certain, however, that Great Britain provided the precedent for the use of this device In the Springhead v. Riley case of 1868. Reference has been made to this historic action in a number of books per taining to labor union history and the working class In America, but in many cases details of this first applica tion are lacking. W. H. Dunbar, In an early article pertaining to the labor injunction, credits Vice Chancellor ttalins, an English judge, with the distinction of being the first to exert the powers of an equity court to protect employers against their striking employees.^ This court action William H. Dunbar, "Government by Injunction," American Economic Association (New York: The Macmillan Co., 1898), p. 7. 28 involved an injunction granted to restrain the president and secretary of a trades union and a printer employed by the union from publishing certain advertisements and erect’ lng placards in public locations. These had urged workmen of the plaintiff to remain away from the factory where a strike was then in progress as a result of a reduction of wages.^ The opinion issued In this often quoted court action later received the strong disapproval of the English Court . of Appeals in the case of Prudential Assurance Co. v. Knott and, in this country, the criticism of Chief Justice Gray 1 7 of the Supreme Judicial Court of Massachusetts. Justice Gray felt that the Issuance of an injunction was "so in consistent with" the authorities "and with settled prin ciples, it would be superfluous to consider whether, upon the facts before him, his (Malins) decisions could be 18 supported." Apparently this criticism was aimed more at the reasons given for granting an injunction than at the principle of granting relief in cases of this type. 16Ibid.■ p. 8. 17Jfeld. 29 Despite the fact that use of the Injunction In labor disputes had Its origin In Great Britain, English courts did not develop It to any great degree. Historical accounts Indicate that it was the American courts that made the most effective and widespread use of the injunction in disputes involving labor. A number of petitions for in junction relief were made by both state and federal courts beginning in the 1870's and 1880's. State courts in par ticular were active in applying this new legal device. The Sherry v. Perkins Case of 1888 One of the noted state cases occurring during the 1880's was Sherry v. Perkins in which the highest court of the State of Massachusetts rendered a decision in favor of the plaintiff in the year 1888.^ The plaintiffs in this instance were shoe manufacturers who had complained of the actions of the defendants who were officers and members of a trades union. The union members had displayed a banner in front of the factory of the plaintiff with the 19 Massachusetts Reports, Cases Argued and Determined in the Supreme Judicial Court of Massachusetts. Vol. 147 (Boston: Little, Brown, and Company, 1889), pp. 212-14. 30 intention of persuading workers not to remain in or enter into the company's employ. The circumstances were there* fore similar to those existing in the Springhead Spinning case. At the court hearing, such acts were found to be part of a plan to prevent workers who were then working for the plaintiff from staying on the job, and to prevent others from entering into the same type of work.2® An injunction was subsequently issued restraining such actions on the basis that these were unlawful and Injurious to the business of the plaintiff and thus constituted a nuisance 21 against which a court of equity would grant relief. This was one of several subsequent labor dispute cases where reference was made to the original Springhead Spinning Company v. Riley case of 1868. Issuance of in junctions thus became common where a conflict was found to exist between parties having an employer-employee relation ship. The institution of boycotts by unions, and later of sympathetic strikes for purposes of assisting a fellow union, also increased the demand for relief by injunction. More and more workmen were uniting in joint action, even 20Ibid.. p. 213. 21Ibid.. p. 214. 31 though not directly concerned with the dispute In question end having no grievance themselves, to prevent the employ ment of nonunion help.^ There was also coercion of those employers whose employees had struck, resulting In hardship for which some relief was being sought. Injunctions to Control Boycotts and Coercion An early boycott case involving the Issuance of a labor injunction was Casey v. Typographical Union heard by the Circuit Court of the United States in Ohio on Janu- 23 ary 31, 1891. The publisher In this dispute complained that the union had conspired to boycott his establishment because of his refusal to discharge nonunion printers and hire only union men. In following through with their action, the union had published threats and appeals urging persons not to buy Casey*s newspaper and not to advertise in its columns. It was subsequently held by the courts that such acts were illegal, and therefore an injunction 22 Dunbar, op. cit.. p. 9. 23The Federal Reporter, Cases Argued and Determined in the Circuit and District Courts of the Uhited States. Vol. 45 (St. Paul: West Publishing Co., 1891), pp. 135-47. 32 was granted restraining the defendants.^ In Murdock v. Walker, the Supreme Court of Penn sylvania upheld an Injunction issued by a lower court against the use of threats and intimidations exercised on oe the part of the union. In this case, the defendants were striking employees and "persons sympathizing with them" who were being restrained from gathering at and about the plaintiff's place of business and from following work men employed by the plaintiff to and from their work. They were also restrained from "gathering at and about the boarding places of these workmen and from any and all manner of threats, menaces, intimidation, opprobrious epi thets, ridicule, and annoyance to and against said workmen or any of them, for or on account of their working for the 26 plaintiffs." The use of such broad or all-encompassing language was becoming typical in the restraining orders issued during and after the 1870vs. 24Ibid.. p. 143. 25 Dunbar, op. cit.. p. 10. 26ibU-. P- 11- Recognition of restraining order convenience. Criminal proceedings were sometimes Instituted when em ployers were threatened with serious loss of business due to efforts of organized labor to force acceptance or wage demands or to force the hiring of certain personnel. These damage suits were directed against union officials, union members, and unions as entities. In such instances, how ever, an employer was actually without redress at law. Such suits were often unsatisfactory since many of those sued were likely to be financially irresponsible, making recovery of damages both uncertain and difficult. Thus the preventive powers of the court of equity were looked to for the obtaining of relief, and the courts responded by freely granting Injunctions. This legal device proved to be both an effective preventative and a remedial expedient, and almost overnight a rash of injunction issuance occurred. Brief mentions of these early cases make note of the great variety of situations in which the injunction was invoked and the large number of Instances involved. By the latter portion of the nineteenth century, the peti tion for Injunctive relief had thus become the preferred method to control labor. 34 IV. THE GOULD SOUTH WESTERN STRIKE OF 1886 The year 1886 Is often noted as the time of the great strikes. Of the numerous conflicts taking place during this particular period of American labor history, * the strike on the Missouri Pacific Railroad system had the widest effect and the greatest significance. It was of major Interest for two principal reasons. First, it marked the first time that an injunction had been applied in a major labor conflict. Second, the strike was the first great setback for the then all-powerful Knights of Labor, being one of the significant events accounting for the decline of this organization. Postwar Growth of Labor Organizations It has been indicated that the period following the War Between the States was one of great change for the nation. Increasing industrialization brought about inevitable conflicts which, in retrospect, proved to be some of the most violent in the history of the country. During these years of postwar strife, the country was to witness the growth of the Knights of Labor and the growth of those national unions which, in mounting rivalry with 35 the Knights, were later to band together in the American Federation of Labor. It was this former organization, however, that was to play the dominant role in this early period and which was involved in this first major strike utilizing the labor injunction. By the year 1881, membership of the Knights of Labor 27 stood at 19,422. Largely because of the adherence of this union to secrecy, followed to provide a protective screen intended to safeguard members from employer attack, menfeership growth had been modest in the years immediately following its 1869 founding. Efforts were eventually made within this organization to do away with this policy in the early 1880's. The consequence of this move was a quite rapid Increase of membership s6 that by the end of 1882, it stood over 42,000. Within the next three years the Knights numbered more than 100,000.^® When hard times again hit the country in the 1880's leading to widespread wage cuts and unemployment in the 27 Frank Tracy Carlton, The History and Problems of Organized Labor (New York: D. C. Heath and Co., 1911), p. 71. 36 traditional pattern of the economic cycle, the Knighta of Labor became involved in strikes that were first to promote their spectacular growth and later to precipitate their gradual decline. As workers tried to fight efforts of employers to reduce operating costs, there were walkouts in 1883*1884 in the glass industry, communications field, textiles, iron industry, and on the railroads.^ The Knights of Labor participated in the majority of these strikes and in some, played a major role. The most sig nificant point of this effort, however, was that while a number of other strikes were quickly and decidedly crushed by employers, those in which the Knights of Labor engaged in most actively resulted, with but a single exception, in victories for the workers. It remained for the South Western Railroad strike of 1886 to mark the beginning of the end for the Knights of Labor movement and the intro duction of the labor injunction in major disputes on an increasingly frequent scale. 2Q Harry A. Millis and Royal E. Montgomery, Organized Labor (Hew York: McGraw-Hill Book Co., Inc., 1945), p. 69. 37 The Knights of Labor and the strike victory of 1885. To find the origin of the South Western strike, it is necessary to consider briefly the events taking place a year or two prior to 1886. The general depression of 1884 and 1885 had affected the South Western roads as well as all of the others. In September of 1884 there had been a general reduction of wages. In March of 1885, one year before the great strike, another wage reduction had been announced and this resulted in a strike breaking out among the shop mechanics, primarily for retention of the old 30 wages. This strike had extended over Texas, Arkansas, Kansas, and Missouri, affecting the whole Missouri Pacific system. Workers in these various areas not only quit work but used force to prevent operation of the road. Engines were disabled, locked up, or taken in charge and the handling of freight was prevented by force or by threats. Public sympathy in this 1885 strike lay with the strikers. The lowering of wages had not been popular, and there existed some prejudice against a railroad system 30 Phillip Taft, Economics and Problems of Labor (Harrisburg: Stackpole and Sons, 1942), p. 441. 31Ibid., p. 442. 38 believed to be under the control of Jay Gould, the powerful and unscrupulous financier of that day. The governors of Missouri and Kansas, feeling that they were backed by public opinion, took it upon themselves to suggest an adjustment of the trouble. Approaching the railroad management, they formally asked that wages be restored to the September, 1884, level.32 It was also requested that all workmen who had struck be taken back without prejudice for the part taken in the strike. In light of this pres sure and that exerted by the Labor Commissioner of Missouri and the Railroad Commissioners of Kansas and Missouri, the railroads gave in, submitting completely to the terms proposed. Nothing of this nature had happened before in the history of the labor movement. The threat to an entire transportation system, which the Knights had appeared strong enough to tie up completely, had forced Gould to capitulate. Gould agreed to end all discrimination against the Knights on the lines he controlled, while the union called off the strike, promising that no further work 32Ibid.. p. 442. 39 stoppages would be authorized until conferences had been held with railway officials.^ Factors Influencing the labor movement. The success of the strikers In 1885 was without doubt a main cause of their action the following year In the South Western strike. Their victory was complete in that union members had taken possession of the road, controlled it for a week, violated the law, and obtained what was wanted. No striker was blamed for having prevented movement of the trains by force. The result was regarded as proof of the soundness of the union'8 methods and the almost irresistible power of the Knights of Labor. This apparent capitulation by Gould was the signal for an overwhelming rush to join an organization which had proved itself against a major busi ness group. During the next few months following the 8trike and well into the spring of 1886, membership in the Khights climbed from around 100,000 to 700,000.^ Unfortunately for the Knights of Labor, however, these early victories and particularly the 1885 success 35 Paul Sultan, Labor Economics (New York: Henry Holt and Company, 1956), p. 109. 40 against Gould had gone to the heads of the rank and file. More frequent strikes were taking place on a localized basis and It was evident, even to the executive board of the union, that there was no recognition by the membership of disciplinary control.^ The members had no sense of responsibility and were continuing to press their demands upon employers, counting on the administrative group of the union to support them. Out of this situation came a succession of defeats which turned out to be as dis couraging for the Khights as their original victories had been stimulating. The first major setback on the part of the Knight members in the railroad industry was the South Western strike of 1886 on the South West system. The employees of the Missouri Pacific and the Missouri, Kansas and Texas roads were still discontented. They had been ready to strike in support of the shop men in the earlier strike of 1885 and, with greatly exaggerated ideas of the strength of the Knight8 of Labor, were seeking a pretext the "^Taft, op. cit.. p. 443. 41 37 following spring to walk out In demand for higher pay. That chance came when a foreman on the Texas and Pacific Railway, a Knight member, was fired. A local union leader promptly called a strike without waiting for any official authorization from union headquarters. It spread quickly from the Texas and Pacific to workers on other lines In the South West system, officially beginning on March 6, 1886. This significant strike was extreme, not only In Its magnitude but In Its methods and the temper of Its strikers. For that reason It brings out certain character- istics which, though they are not so prominent In other cases, were yet common to almost all strikes of that year. The Initiation of the 1886 Gould Strike On the morning of March 6, 1886, freight operations of the Missouri Pacific system were suddenly brought to 30 a halt. In most of the important towns where the 37 Foster Rhea Dulles, Labor in America (Hew York: Thomas Y. Crowell Company, 1953), p. 143. 38Ibld. 39F. W. Taussig, "The South Western Strike of 1886," The Quarterly Journal of Economics. Vol. 1, No. 1 (Boston: George H. Ellis Co., 1887), p. 193. 42 railroad had its overhaul shops and larger terminals— St. Louis, Kansas City, Sedalla, and De Soto In Missouri, Atchison and Parsons In Kansas, Little Rock In Arkansas, Dallas, Denison, Palestine In Texas*-a signal was given and all shop mechanics, yardmen, and switchmen simultaneously quit work, leaving the yards.4® The timing of this united action permitted the union at every Important point to clear the roads very quickly of men Indispensable for move* ment of the trains. No warning had been given to the managers. The strike action was taken suddenly although In the minds of the workers the strike was the culmination of a struggle begun In the successful 1885 conflict.4* The strikers in this South Western railroad strike did not include all employees. Only some 3,000 out of 48,000 employees on the Gould system actually turned out, and in their battles with the various people involved In the strike they were getting the worst of it.4^ Public opinion was definitely against the strikers. The locomo tive engineers from the first refused to aid or assist 4QIbid.. p. 193. 41Ibid.. p. 186. 42Ibid., p. 205. 43 the strikers, and a bitter quarrel arose as a consequence between their Brotherhood and the Knights of Labor. The conductors also were not In sympathy with the strikers, passing public resolutions expressing their willingness to conduct trains. The same situation occurred as regards the firemen and brakemen who quickly Indicated a willingness to work unless prevented by force or threats.43 To over come this Initial resistance, the Knights of Labor were reported to have used circulars addressed to "all laborers, such as trackmen, engine wipers, coach cleaners, baggage and freight hands" calling on them to lend aid to the Khights by refraining from work. Key area work stoppages and union conduct. The striking group In the South Western strike of 1886 con sisted solely of shop mechanics, switchmen, and yardmen. These workers, however, were concentrated at the centers of traffic In the larger yards and shops where most of the repairs were made. This was a prime spot. All trains had to stop at these locations and thus the striking of such key areas by this relatively small number of strikers proved to be highly effective. 43Ibid.. p. 206. As in the earlier strikes against the railroad in 1885, the actions of the strikers were not confined merely to quitting work. All freight traffic was systematically stopped by taking complete possession of the roads. It is noted in early accounts that as the strike broke out, squads of Knights stationed themselves in the yards and buildings notifying the railroad officers that the premises were under their guard.44 Under the pretext of protecting the property, the larger yards, such as at St. Louis, were sealed to all but the striking Knights. When attempts were made to move trains, the action became stronger. At Denison, Texas, the accounts note that the Knights initi ated a mass invasion of the railroad yards, forcibly putting out fires in the locomotives.4- * Steam pipes were taken off, and other equipment removed, making the engines completely Inoperative. The strikers also placed guards about the buildings and allowed no one not a railroad worker to go about the premises.4^ Such action was typical of the course of events during the first two weeks of Dulles, op. cit., p. 143. 45Ibid.. p. 144. 46Ibid. 45 the South Western strike. During this activity by the strikers, the policy of the Missouri Pacific Railroad was one of inaction. In the late 1880's, a cloud of suspicion overhung everything con** nected with the name of Gould. It was the era of the big tycoons and the exercise of abuse of the working class. Public opinion was first very much against the roads. The newspaper articles of those days were initially quite critical of the Missouri Pacific, and the public went along with this attitude. With the passage of time, however, the effectiveness of the union's equipment disabling policies caused the public severe discomfort. Merchants in the larger cities served by this line were put out of business along with the many factories needing train-delivered fuel for power and heat.^ All types of businesses closed and the total numbers of people laid off mounted sharply. St. Louis, in particular, was hard hit since the strike had cut off the supply of coal from Illinois. At other points in the South West system the effects of the strike were equally serious. What small stocks of food did exist 47 Taussig, op. cit.. p. 203. 46 were rapidly being used and rail transportation was at that time the main means of supplying many of the smaller towns. The management of the railroad sensed this change in public feeling and felt that the appropriate time would shortly be at hand to take action. Accordingly they made several attempts to fire up train engines and get the road back into operation, but once again strikers foiled these efforts. The legal department of the railroad was then instructed to take the necessary steps to obtain injunc tions.^® Injunction Issuance to Influence Public Opinion Undoubtedly the instituting of injunction proceed ings against the striking workers was taken principally for the effect it would create. It was felt that public opinion would tend to be further turned against the strikers once the court order was issued.^ Regardless of the particular aspects of the case and notwithstanding the eventual outcome of the full injunction proceedings, such a court order would have branded the workers as law 48Ibld.. p. 202 49Jbid. 47 breakers. Furthermore, the newspapers were beginning to swing behind the railroad and would serve as useful tools for exploiting such legal proceedings. Editorial com mentators could use the court order as the basis for con demning the purpose of the strike and the conduct of the workers. Thus the labor Injunction was applied, and arrests made of some of the trespassing strikers. However, as historical records indicate, this notification that the strikers were law breakers, while it may have had some mental effect, did not cause a change in their conduct.^ Freight traffic continued to be effectively stopped, and the railroad was forced to lay off other employees for reasons of lack of work. Eventually belated police pro tection was given to the road, and it was not until some weeks after the beginning of the strike that the railroad was back in normal operation. Public feeling, the use of the labor injunction to stir up sentiment against the strikers, and finally police protection, had broken the strike. 5 0i f e t d . 51IM£. 48 Defeat of the Knights of Labor. Accounts of this major dispute mention that very few of the strikers were taken back into employment on the Missouri Pacific.^ The road refused to have any members of the Knights of Labor in its service, and anyone known to have committed acts of violence during this 1886 conflict was not rehlred. The adoption of this policy created considerable hardship among many of the former strikers. Criminal proceedings were instituted against those who had been guilty of unlawful acts and violations of the injunctions.^ Few convictions were secured, but the collapse of the strike and the suf fering that followed were felt to be sufficient retribu tion. V. THE 1888 BURLINGTON RAILROAD STRIKE Although the Gould South Western strike of 1886 marked the introduction of the labor injunction into a major labor-management dispute, its effectiveness proved to be rather limited. In the Burlington railroad strike of 1888, however, which was the second and most important 52Ibld.. p. 216. 53Ib±d. large scale labor conflict Involving Its application, its employment was significant. This dispute was to demon strate without qualification the overwhelming effectiveness of this instrument as a means of checking union action of many types. It was applied principally to overcome -the effects of a union boycott, and in the process of curing this major rail tie-up, it gained widespread recognition. From this period forward it assumed the status of an anti labor weapon of the first magnitude, becoming a preferred method to break strike activities quickly. As a conse quence of the greater emphasis placed on this device, the time between 1888 and the Pullman strike of 1894 witnessed such an explosive growth of the injunctive process for strike suppression purposes, that "government by injunc tion" became the critical slogan of organized labor. The Burlington strike of 1888 occurred during a time of rapid and extreme business growth. Large scale employ ment of laborers was much in evidence in a number of fields as company management concentrated on making profits for themselves and for their stockholders. One of the methods of raising profits then, as now, was to minimize costs. In the railroad business where labor was frequently 50 a major item, it was inevitable that problems should arise as this was attempted. Faced by pressure for profits, railroad managers and their assistants were impelled to secure as much work as possible from their employees for as little as possible. The Brotherhood of Locomotive Engineers The principal means of self protection for labor during this period lay in organizing for purposes of col' lective bargaining. A number of varied types of organize** tlons arose following the War Between the States, and by the late 1880's, one of these types, the national or international trade union of skilled workers, emerged as the dominant form. Craft unions were still quite active, however, and one of the strongest of this type was the Brotherhood of Locomotive Engineers who had remained inde pendent from the AF of L during its formation in 1886. In 1888 this Brotherhood, together with the younger Brother hood of Locomotive Firemen, challenged the large and power ful Chicago, Burlington, & Quincy Railroad Company.^ ^Robert E. Riegel, The Story of the Western Rail roads (New York: The Macmillan Company, 1926), pp. 102- 105. 51 This railroad was the General Motors of its day, being one of the best financed and best managed corporations in the region west of Chicago. The road had over 6,000 miles of line which were either parts of the Burlington system or were under its control, and for the 1880's this would be classified as one of the great railroad systems of the country.^ Grievances with the Burlington road. Two years prior to the strike of 1888, engineers working for the Burlington experienced a number of grievances as a result of management efforts to control costs. Records note that local railroad officials had required extra switching and other work without pay, and had detained workers away from home for unreasonably long periods of time.^ The engi neers wanted reimbursement for this extra time when due to delays arising from weather, equipment troubles, and such. There were also grievances relating to the discharge of engineers for maintaining Brotherhood membership. The two 55Ibid.. p. 170. JOCharles H. Salmons, The Burlington Strike (Aurora: Bunnell and Ward Co., 1889), p. 210. most Important demands, however, related to classification of enginemen for methods of payment and a uniform mileage basis for pay.57 Classification of enginemen was according to a system permitting firemen newly promoted to engineers to serve their first year under a third class rating at two- thirds full pay. During the second year, they were rated second class and received five-sixths of their full pay. The third year they achieved first class status and then drew full pay. All engineers on the Burlington road were promoted from within the firemen ranks and no "outsiders" were hired. As a consequence of this policy, it was neces sary to serve a considerable period of time prior to be coming first class engineers. This coupled with the fact that local management could fire on little or no cause made the enginemen particularly uneasy.5® The other demand of the Burlington workers related to uniform mileage pay. On the Burlington road payment was according to a schedule setting a fixed rate for 57Ibid.. p. 215. 58Ibid.. p. 216. 53 50 each trip. Considerably higher rates were paid on the main line than on the branches, and this had been a source of contention for some years. The Brotherhood of Locomo tive Firemen naturally favored establishment of mileage pay on the basis of a fixed rate per mile regardless of the character of the trip. More specifically, the Brotherhood wanted a uniform standard rate of pay for everyone doing the same type of work, and a basic day of one hundred miles or less and of ten hours or less.**** Failure to achieve adjustment of grievances. For a two year period the union had attempted to get the Burling ton to correct a number of grievances and had achieved only limited success. Neither of the two major demands, elimi nation of the classification system and the establishment of a uniform mileage basis for pay, was met.***" The situ ation reached a climax in the early part of 1888. It was at this time that the enginemen*s joint committee made a final effort to settle these long dormant issues, but 59Ibid. 6QIbid. 61Ibid., p. 218. to no avail. A vote was subsequently taken among the union member's end the result was overwhelmingly In favor of a strike. 62 Thus began one of the more important conflicts o£ the lest: century as regards the attitude and actions of managem e n t and the union, and the use of legal devices to combat organized labor. It should be noted that in some respects the 1888 Burlington strike was even greater in scope them the Gould South Western strike of 1886. The lines of the Missouri Pacific in this earlier conflict and its subsidiary roads were not so long or so important as the Burlington lines. In addition, although there were probably more personnel involved in the 1886 conflict, the shop workers striking then were not so essential to the operation of the railroad as were the engineers. So from a standpoint of historical significance, as it relates to the events leading up to the legal actions and the interest this action aroused, the Burlington strike of 1888 is a conflict deserving recognition. 6 2 lbid. . p. 219. 55 The Strike and Company Response The strike began on the morning of February 27, 1888. Instructions were given by the union to their engi neer members to leave engines in good order and at terminal points. All were told to proceed home and remain away from company property, avoiding any unlawful acts. The men did as instructed. Of the 1,052 engineers and 1,085 fire men in the employ of the Burlington, only 22 engineers and 23 firemen remained on the job. Management had not expected this great a number to strike and consequently was quite unprepared for the walkout. The morning of the strike few personnel were left to operate engines except the non-striking engineers and those pulled together from other jobs. Early accounts note that many pressed into service consisted of men from the offices and shops and workers from other branches of operation. ^ During the first few days there were, as expected, some minor accidents but trains were getting 63 Donald Le Crone McMurray, The Great Burlington Strike of 1888 (Cambridge: Harvard University Press, 1956), p. 66. 64Ibid.. p. 75. 65Ibid., p. 76. 56 through their runs despite such problems and late time tables. Striking engineers and firemen were not the only personnel whose jobs were affected by the strike. Total employment by the Burlington in 1888 was placed at about 15,000 men but since no freights were running, and only limited passenger trains, a number of employees were laid off.66 Shortly after the strike began notices were posted by the Burlington to the effect that all failing to return to work within three days would be considered out of the company's service.67 Attempts were then made by the rail road to get back their old employees and, failing this, steps were taken to recruit new engineers. The results of such efforts were excellent, much to the surprise of the striking Brotherhood. From the New England states and Pennsylvania, engineers were easily secured largely because the Burlington was paying higher wages than were being offered in the east. Ads placed in the New York City news papers offering employment of a permanent nature produced 66Ibld.. p. 88. 67Ibid.. p. 91. 57 numerous applicants.88 Within one month following the start of the strike, almost all regular engine crews that had walked out had been replaced. Pressure was thus put upon the union to bring some new weapon to bear upon the company, and this turned out to be the establishment of a boycott. Union Establishment of a Boycott From the beginning there had been talk among the enginemen that the strike could spread to other lines. Widespread sympathy for the strikers was believed to exist among other railroad engineers, and thus after the hiring of numerous replacements and the apparent success of this move, union men on other roads were told by the Brotherhood "not to handle Burlington cars."8^ Officers of lines con necting with the Burlington were therefore concerned about what their enginemen would do if ordered to disregard the boycott. This was clarified when the union advised 68Ibid.. p. 96. 8^E. C. Robbins, Railway Conductors— A Study in Organized Labor (New York: Colunbia University Press, 1914), p. 110. 58 connecting roads to avoid handling Burlington freight if they wished to keep out of trouble and, as a consequence, many agreed to remain neutral.7® Enginemen on the connecting roads began to take Independent action without initial union approval one month from the start of the strike. When Burlington cars were moved onto other lines and into other freight yards, the local crews walked off the job.^ This occurred at several locations, and finally the Brotherhood of Locomotive Engineers called a meeting to make formal such action. A resolution was subsequently issued which the union hoped would tie up the Burlington completely. If union men on the connecting lines were ordered to ignore this boycott, they were to refuse and if they were discharged for this refusal, all engineers and firemen on the system were to strike.72 The Petition for Injunctions The effect of this latest union action was varied. The boycott was effective on most of the roads connecting 7<*Riegel, op. cit.. p. 252. 7HlcMurray, op. cit.. p. 106. 72tbid.. p. 107. 59 with the Burlington, on the west. On the east, however, engineers walking off the job were easily replaced for 73 refusing to handle the Burlington cars. Although the railroad had demonstrated Its ability to adjust to the dis- pute, the boycott by other lines In the west did seriously affect the complete restoration of traffic. Since the Interstate Commerce Act had required all connecting carriers engaged In Interstate commerce to exchange traffic without discrimination* the Burlington's solution lay In getting the law enforced. Shortly after the union boycott resolution leaked out to the press, a legal battle began In the Ikiited States Circuit Courts at Chicago and Omaha. The Burlington asked for Injunctions against two of the connecting western carriers to prevent the continuance of their actions. ^ The plea for injunctive relief was prepared by the railroad's legal department and was directed against the Union Pacific Railway Company and its engineers, of whom 73Ibid., p. 112. 7^The Federal Reporter* Cases Argued and DfttarmlngH In the Circuit and District Courts of the Phited States. Vol. 34 (St. Paul: West Publishing Co., 1888), pp. 481* 85. twenty were specifically named in the original bill, and against "unknown defendants."7* * The principal reason for directing action against the connecting railroads was the fact that unions and their members in the 1880*8 were often insolvent, having no means or property of any amount. Thus the need for this course of action. Injunctions were also sought to restrain the engineers from striking or doing anything else "in pursuance of their unlawful con spiracy. ,,7<* The argument presented by the Burlington lawyers was based on the fact that the line handled a large volume of interstate business and that it exchanged traffic with connecting lines. These connecting lines were corporations organized under the federal laws and thus were subject to control as common carriers. The Uhion Pacific, it was shown, had refused to exchange traffic with the Burlington and thus disregarded its obligations as a common carrier, violating the Interstate Commerce Law.77 Furthermore it had publically advised its agents and employees not to deal 75Ibid.. p. 481. 76Ibld.. p. 485. 77Ibid.. p. 483. 61 with the Burlington and yet was continuing to exchange traffic with all other connecting lines. A case of Illegal discrimination was thus said to exist. As It related to the union, it was alleged that the Brotherhood was a secret organization bound together by its own oaths, rules, and government. Its aim was to control all railroads and their traffic "so as to enable it to dictate the terms, conditions, and rules \rtiich shall govern 78 the emplojftnent of Its members."' Such control, it was maintained, could enable the union to stop commerce on all roads and "cripple and paralyze all the social, commercial, industrial, and political forces of the entire nation and thereby entail upon the people thereof an iimneasurable and irreparable Injury and destruction of property, rights, 70 and happiness." Blanket Provisions and Aroused Interest As in many of the cases Involving restraining order petitions in those days in which the plaintiff was a large business organization, the injunction was quickly granted. 78Ibid.. p. 483. 79Ibid.. p. 484. This was Issued against the "Union Pacific Railway Company, Its directors, officers, agents, servants, and employees," those engineers specifically named In the bill, and "their unknown confederates, whose names when discovered were to be Inserted herein."®^ This blanket injunction was widely publicized and closely followed by business interests and the public. In effect it ordered all parties to desist and refrain from refusing to exchange traffic with the Burlington as prescribed by the Interstate Commerce Act. Union Pacific engineers were specifically prohibited from a number of acts and practices which would "injure the said Chicago, Burlington, & Quincy Railroad Company or its em ployees or interfering with its railroad business, or in any manner violating the Interstate Commerce Law of the Uhited States,” etc.®^ The injunction covered considerable ground. One newspaper account of that day noted that "the order pre sented the novel feature of restraining a powerful labor ®°John A. Hall, The Great Strike on the "Q" (Chicago: Elliott and Beezley Publishers, 1889), p. 63. 81Ibld., p. 64. organization from quitting any work for any unlawful pur- 82 pose." Still another paper mentioned in an editorial devoted to the strike and subsequent legal action of the Burlington that the court order "forbidding men to strike was un p recedented."**3 interestingly enough, though, news paper accounts dealing with Injunction reportedly did not raise serious objections to its application. At that par ticular time it was undoubtedly difficult to foresee the great abuse of labor through restraining orders which would follow the Burlington strike of 1888. Denial of restraining order allegations. The answer to the charges in the temporary restraining order was sub sequently filed by the Brotherhood. In the denial of the various allegations in the bill of complaint, it was claimed that the purpose of the Brotherhood of Locomotive Engineers was not to control the railroad companies. The main objective was "to promote efficiency and skill in the service and to secure such things as pensions for those ®^McMurray, op. cit., p. 117 83ibtd. 64 disabled on the job.It was denied that the union had conspired with anyone to compel the Burlington to discharge Its engineers and hire Brotherhood men In their places. It was also denied that the union men on the Union Pacific had refused to handling Burlington traffic or had threat ened to inaugurate a general strike. The Union Pacific, in answering the complaint against their road, denied that they had refused to ex change traffic with any other road although it was admitted that because of uncontrollable circumstances they had been unable to exchange with the Burlington as much as usual. It acknowledged the power of the Brotherhood to stop traffic and asserted that this was the reason it was im possible to carry out its obligations to the Burlington completely. It also denied any collusion with the Chicago, Burlington & Quincy's western connecting roads to oppress the engineers. Court hearing and injunction justification. A for mal court hearing on the injunction was held some six weeks ®^Hall, op. cit.. p. 91. 85Ibld. 86Ibid. after the beginning of the strike and some two weeks after Initiation oZ the boycott against the Burlington line. The opinion rendered proved to be quite favorable for the plaintiff. It was held that the railroads were common carriers and as such were required to transport goods and persons within a reasonable time subject to reasonable regulations and without unreasonable discrimination.**7 The Interstate Commerce Act was cited In this decision in that this law called for the exchange of traffic without QO discrimination. Thus this Act justified the issuance of injunctions for the purpose of enforcing its provisions. It was the necessary authorization requested by the Burlington to require the Union Pacific and the Brother* hood members working for this carrier to exchange traffic as the law required. The defendants were further enjoined from "conspiring to defeat the purposes of the law."89 This action by a united States Court marked the first imposition of a series of permanent injunctions issued in the Burlington Railroad strike of 1888 which 87Ibid.. p. 93. 88Salmons, op. cit.. p. 291. 89Ibld.. p. 292. 66 quickly overcame the effectiveness of the union boycott action. It also may be regarded as a milestone in that notoriety resulting from its application focussed attention upon this legal Instrument, introducing its usage on a scale previously unknown. Comments by the Burlington officials after this court hearing reflected the new inter est it aroused, it was said that the opinion rendered in the case supporting the injunction was an exceedingly strong one which "suggested important possibilities."^® 9®McMurray, op. cit.. p. 121. CHAPTER III THE SHERMAN ACT AND INJUNCTIONS The federal government Initially entered the area of labor control legislation through passage of the Sherman Antitrust Act of 1890. At the time of the enactment of this measure, few people appreciated its full import or suspected its potentialities as it related to labor. It was generally believed its scope did not cover trade unions or their activities since political attention of that era was being directed more toward the rapid development of large corporate enterprises and of holding companies, and the control of abuses as a result of concentrated power. Railroading, sugar refining, steel manufacturing, tobacco and oil processing were then fields in which companies were achieving a corporate growth stage involving problems of monopoly control. The purpose of the Sherman Act seemed evident to the casual observer, and this was its apparent design to prevent too great a concentration of economic 67 68 power within the business field. Certainly evidence does not disclose any clear-cut initial intended applicability to labor unions despite the broad language of the statute permitting "flexible" interpretation. Regardless of the intent of Congress and possible application of the law to combinations of workers, there were a number of court decisions following passage of this legislation which served somewhat to clarify this situ ation. The groundwork was laid in the tJhited States v. Workingmen's Amalgamated Council and the Waterhouse v. Coiner cases of 1893 in which the lower courts held it was Congress' aim to include unions under its provisions. It remained, however, for the Pullman strike and the subse quent Debs case of 1894 to remove any doubts as to the position of the nation's political forces and their inten tions. Through a highly successful program on the part of a well-financed and efficiently organized association of railroads, and with the complete assistance and support of the federal government, the American labor movement was dealt a vigorous blow. The most Important consequence of the Pullman strike was perhaps the revelation of the power that the injunction placed in the hands of industry. As a result of the court decision in the Debs case up holding injunctions, a firm legal basis was provided for the future application of this device. Labor designated this management weapon "a gat ling gun on paper," and "government by injunction" became a slogan not soon for gotten or remedied by organized workers. In view of the tremendous implications of the events in the Pullman strike and the Supreme Court's decision rendered fourteen years later in the Danbury Hatters' case enforcing the Sherman Act against unions, the labor move ment was thoroughly aroused. Application of antitrust legislation and the legalized use of the labor injunction appeared to be even more serious than the conspiracy doctrine. Unions inmedlately pressed for a revision of this law since it was feared that the statute might be invoked to render all trade unions and their activities unlawful and hence Induce a flood of injunctions. This was evident from the efforts of organized labor during the presidential elections of 1908 when antitrust revision became an important issue. 70 I. ORIGIN OF THE SHERMAN ACT The first version of the Sherman Antitrust Act was Introduced as Senate Bill No. 1 to the fifty-first Congress on December 4, 1889, by Senator John Sherman.^ It was entitled "A bill to declare unlawful trusts and combina tions in restraint of trade and production."^ Interest ingly enough, the original version prepared by the Senator was never enacted Into law. A more elaborate and compre hensive statute was drawn up by Senator George F. Hoar of Massachusetts and was successfully substituted for the Sherman bill, being passed on July 2, 1890.3 However, because Senator Sherman was the originator of the proposed legislation and was Its leading advocate In Congress, the resulting statute has traditionally been known as the Sherman law. Intent of the Bill The essence of the final version of the Sherman Act was a prohibition of every combination or conspiracy ■^Albert H. Walker, History of the Sherman Law (New York: The Equity Press, 1910), p. 2. 2Ibid. 3Ibid. 71 In restraint of Interstate or foreign commerce. Although somewhat different from that originally introduced by Senator Sherman, it seems evident that the basic intent of both versions was the same. A review of the literature dealing with this legislation indicates the nature of the problems with which it was designed to deal. In the minds of the politicians passing the act, the prominent evil to be remedied was "concentration of the entire business of the country in such a manner as to prevent others from engaging in the same business, and thereby preventing and stifling competition."^ Even more convincing of this in tention is the language embodied into the first version introduced in 1889 by Senator Sherman: All arrangements, contracts, agreements, trusts or combinations between two or more citizens or cor porations or both . . . made with a view or which tend to prevent full and free competition in the importation, transportation, or sales of articles imported into the Uhited States . . . and all arrangements, contracts, agreements, trusts or com binations between persons or corporations designed or which tend to advance the cost to the consumer of any such articles are hereby declared to be against public policy, unlawful, and void.* A Alpheus T. Mason, Organized Labor and the Law (Durham: Duke Uhlverslty Press, 1925), p. 121. 5Ibid. 72 From reviewing this original, it may be noted that nothing in these words could have implied action against the activities or organized labor. Senator Sherman's essential Intention was to condemn all business combina tions and arrangements which are "formed with a view toward preventing full and complete competition." Provision interpretation bv Senator Sherman. The bill in the form originally submitted had not been intro duced, reviewed, and discussed to any great length by members of Congress before it was suggested that its language might also apply to the activities of organized labor as well as to industrial trusts.** No sooner had this thought been presented than it understandably became one of great Interest to employers, unions, and the government. Senator Sherman was subsequently asked to render an account of its meaning. The question specifically raised was whether the language of the bill, as Introduced, necessarily covered the activities of organized labor. References dealing with the debates of this legislation note that the response 6Ibid.. p. 122. 73 o£ Senator Sherman to this question was emphatically clear: "Combinations of workingmen," he declared, "to promote their interests, to promote their welfare, and in crease their pay, if you please, to get their fair share in the division of production are not affected in the slightest degree, nor can they be included in the words or Intent of the bill as now reported."7 Despite this uncompromising assurance of immunity from the phraseology of the bill, not all concern was eliminated. It was felt that perhaps the first use of the Sherman Act would consist of action "brought against com binations of producers and laborers whose combinations tend o to raise the cost of commodities to the consumer." With full respect to the efforts being made toward controlling and curbing Industrial trusts, it was feared that not enough care would be exercised to see that there was no Interference with labor. Further guarantees were conse quently asked of Senator Sherman to assure that it was neither his intention nor those supporting the bill to interfere with the "natural and inherent rights" of organ ized labor. 7Ibid.. p. 123. 8Ibid.. p. 124. 74 Amendments to the Sherman Bill Due to this pressure, Senator Sherman admitted that his original version of the bill would have to be amended to "avoid confusion." The amendment suggested by the author specifically excluded unions with the following words: That this act shall not be construed to apply to any arrangements, agreements, or combinations between laborers made with a view to lessening the number of hours of labor or Increasing their wages.9 Johnsen, in her accounts of the submission of this amendment, notes that what followed in the Senate was typical "legislative horseplay." Amendments were made to prevent gambling in stocks, bonds, whiskey, etc., along with others relating to labor. The result was the eventual striking out of all amendments.^ In the House, there was little to be said on the subject. Congressional intent at this point would be hard to imagine, and it has been a matter of considerable controversy since that time. g Julia E. Johnsen, Trade Uhions and the Anti Trust Laws (New York: The H. W. Wilson Company, 1940), p. 174. 10Ibld. 75 Final Provisions of the Act Several months after the first submission of the original bill to a special committee for study, the accepted version emerged with considerable changes. The essence of the law was now a prohibition of every combina tion or conspiracy in restraint of interstate or foreign commerce. This is the heart of the final version of the Sherman Antitrust Act, passed on July 2, 1890, and is incorporated into the oft quoted Section 1 which provided for enforcement through criminal prosecution by the govern ment. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy shall be deemed guilty of misdemeanor.^ The punishment for such a misdemeanor was a fine of not more than five thousand dollars or imprisonment for not more than one year or both. Section 2 of the final act 1LIhe Statutes at Large of the United States of America, Recent Treaties. Conventions, and Executive Proclamations. Vol. 26 (Washington: Government Printing Office, 1891), p. 209. 76 prescribed the same potential punishment for every person who monopolized or attempted to monopolize such trade. Under this section, even an attempt at restraint of trade 12 became a violation of the law. Injunction suits through federal courts. Section 4 of the Sherman Act presented a further method of enforcing the legislation and this was through an injunction suit by the government. Part of the task of enforcement by this means was delegated to the federal circuit courts. These courts were . . . invested with jurisdiction to prevent and restrain violations of this Act; and it shall be the duty of the several District Attorneys of the Uhlted States . . . to institute proceedings in equity to prevent and restrain such violations. Such proceed ings may be by way of petition setting forth the case and praying that such violations shall be enjoined or otherwise prohibited . . . the court may . . . make such . . . restraining order or prohibition as shall be deemed just in the p r e m i s e s . ^ In addition, it was further provided that property owned by a combination or conspiracy could be seized by the federal government while it was "in the course of transportation 12Ib±d- 13I b i d . . p. 210. 77 from one state to another, or to a foreign country."*^ Triple damage provisions of the act. Still another method of enforcing the law, and one which was bound to bring opposition from organized labor, was embodied in the damage provisions set forth in Section 7. This Section provided for damage suits by persons who could prove that they had been harmed as a result of violation of the act. It stated that "any person who shall be injured in his business or property by any other person or corporation, by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any circuit court of the Uhited States . . . and shall recover three-fold damages by him sustained, and the costs of the suit."^ The last section of the act designated as Section 8 declared the words "person" or "persons" as used in the act "to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the territories, the laws of 14 15i Ibid. 78 any state, or the laws of any foreign country. Despite this definition, the meaning of the act was not clear as it pertained to organized labor. Regardless of Congres sional Intent, the fact remains that the law was subse quently used quite effectively and frequently by employers as a tool to combat unions. Significance of the Modification As might be noted, the final accepted form of the Sherman bill, one actually drawn up by Senator George F. Hoar, went further than merely denying all arrangements, contracts, agreements, etc., made for the purpose of pre venting "full and free competition" whether in the form of trusts or otherwise. What it now accomplished was to denounce every contract and combination in restraint of trade and, in addition, extend the original bill to con spiracies in restraint of trade. The modifications from the original bill and the setting aside of the proposed amendments pertinent to labor proved to be quite significant. The elimination of Senator Sherman*s labor proviso, the addition of the term "con spiracy, " and the substitution of the term "restraint of 79 trade*' for "full and free competition" would certainly indicate an intention on the part of the Judiciary com* mittee to deal with the evils growing out of combinations far more broadly than was originally contemplated. However, whether the Sherman Act was ever intended to apply to labor organizations has remained a debatable question for many years. This is evidenced by the con* flictlng views apparent among writers in the field of labor economics. Some of the most searching and complete studies yet attempted dealing with this subject, such as Mason's efforts, arrive at the conclusion that the Sherman Act was not intended to apply. Of much greater interest to organ* ized workers, however, was the actual interpretation which the Uhlted States Supreme Court placed upon the Sherman Act and upon Congress' Intent in passing this legislation. Court determination of the legislation's scope. The exact scope of the 1890 antitrust statute was a matter which ultimately had to be determined by the courts. Two years after passage of this bill it was applied against a labor union. This occurred in the Uhlted States v. Workingmen's Amalgamated Council case in which a circuit court held that Congress had meant to include labor organizations when the final version of the bill was passed. ^ This ruling was upheld on appeal. In the case of Waterhouse v. Comer in 1893, another ruling still fur ther assisted in laying the groundwork for widespread use of the Sherman Act against labor. In this latter action it was ruled that a strike on the railroads would inter fere with interstate commerce, and that any railroad strike 1 o would be contrary to law. Thus the stage was set for an event of major significance in labor union history, the Pullman strike and the resulting Debs case which provided a firm legal basis for the application of the injunction against labor. II. UNITED STATES v. WORKINGMEN'S AMALGAMATED COUNCIL The Sherman Antitrust Act of 1890 was first applied against a labor organization two years after it was passed. This occurred in the case of the Uhlted States v. Working men's Amalgamated Council of New Orleans. The significance ^Walker, op. cit., p. 87 18Ibld., p. 113. of this event lies in the feet that this was one of the earliest of the labor cases coming up under the Sherman Act, resulting in a court interpretation of congressional intent highly unfavorable to labor. It arose upon the government*s application for an injunction, and was an action in equity begun in the United States Circuit Court for the Eastern District of Louisiana, being heard on March 25, 1893.19 The substance of the bill of complaint in this par** ticular case was the contention that a gigantic and wide spread combination existed consisting of the members of a number of separate worker organizations to restrain com merce among several states and foreign countries.2® This had developed as a result of a disagreement in New Orleans existing between the warehousemen and their employees and the draymen and their workers. The union had warned that unless both employers gave in to the demands of their workers in these two trades, all the union members in 19 The Federal Reporter, Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the Phited States. Vol. 54 (St. Paul: West Publishing Co., 1893), p. 994. 20Ibid.. p. 995. other locations and occupations would leave work and would allow no work to be done, thereby creating a general strike. Violence was threatened, and this was used as a tool to support the demands o£ the workers.2^ The Defense of the Union Against the contention in the bill of complaint and in the face of the government plea for an injunction, lawyers for the Amalgamated Council presented six de- 22 fenses. First, it was argued that the strike had ended and that there was therefore no need for an injunction. Second, the Sherman law was not applicable to combinations of laborers. Third, the defendants' answer being under oath and denying all the allegations of the bill, no in junction could be issued in pursuance of the complaint. Fourth, the evidence in the case was insufficient to prove the allegations of the bill. Fifth, the origin and purpose of the defendants' labor organization was innocent and lawful. And, sixth, the object of the strike had been to compel employers to employ no laborers except those 21Ibid., p. 995 22Ibid. 83 belonging to the union which effort, if accomplished, would not result in any restraint of commerce. Applicability of the Sherman Act The Uhlted States District Judge in this case, Judge Billings, overruled all six of the defendants' de fenses and granted the injunction requested in the bill.^ Only two of the six defenses related to the construction of the Sherman law and these were number 2 and 6 respectively. In overruling the second defense argued by the union lawyers, Judge Billings stated: I think the Congressional debates show that the statute had its origin In the evils of massed capital; but when Congress came to formulating the prohibitions, which is the yardstick for measuring the complainant's right to the injunction, it expressed it in these words: "Every contract or combination in the form of trust or otherwise in restraint of trade or commerce, is hereby declared to be illegal." The subject had so broadened in the minds of the legislators that the source of the evil was not regarded as material, and the evil in its entirety is dealt with. They made the interdiction include combinations of labor as well as of capital. . . . It includes combinations which are composed of laborers acting in the interest of laborers. ^ In overruling the sixth defense put up by the lawyers representing members of the Amalgamated Council, 23Ibid.. pp. 995-1000. 24Ibid.. p. 996. 84 Judge Billings said: The combination setting out to secure and compel the employment of none but union men in a given business, as a means to effect this compulsion, finally enforced a discontinuance of labor in all kinds of business, including the business of transportation of goods and merchandise which were in transit through the City of New Orleans, from state to state, and to and from foreign countries. I do not think there can be any question but that the combination of the defendants was in restraint of commerce.** The defendants appealed the decision issued by Judge Billings to the United States Circuit Court of Appeals for the fifth circuit. This tribunal, however, affirmed the decision on June 13, 1893, as being fully justified by the case presented to Billings noting that all the defendants1 defenses were "well summarized, discussed, and disposed of in the very able opinion of the judge of the circuit court. The decision in the United States v. Amalgamated Council case thus held that Congress had meant to include labor organizations at the time the law was finally passed 25Ibld.. p. 999. 26 The Federal Reporter, Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. Vol. 57 (St. Paul: West Publishing Co., 1894), p. 85. 85 forbidding every contract or combination in the form of a trust or otherwise in restraint of tirade. This ruling, along with that issued In the Wateirhouse v. Comer case of 1893, had the effect of preparing Che way for the common application of the Sherman Antitrust: Act against labor. III. WATERHOUSE v. COMER Among the events ushering i n widespread usage of the Sherman Act against labor, a second case is of note which underlines the post-passage change of thinking as it related to a broad interpretation of this legislation. This was Waterhouse v. Comer adjudicated in the year 1893. The case revolved around the imposition of union rules upon members of the Brotherhood of Locomotive Engineers and the effect of these upon commerce. The petition in this case w a s presented to the United States Circuit Court for ttis Western District of 7 7 Georgia on April 8, 1893. The complainants, the Com mittee of Adjustment of the Brothsrhood, were taking action 27 'The Federal Reporter, Casas Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. Vol. 55 (St. Paul: West Publishing Co., 1893), p. 149. 86 m .£ £ sa,d L n st H . M- Comer, a receiver of the Central Railroad and B a u l k i n g C om pany of Georgia. This petition requested that be directed by the court, w hose officer he a contract with the locomotive engineers.2 8 t h i s union request, the receiver presented the number of different reasons w h y he believed should be denied. A m o n g these, one reason th e fact that the Brotherhood of Locom otive E n s i - n e e r s h a d Included In their code of rules for their m e r a h e r s o n e r u l e which C o in er claimed to be unlawful under S e c t i o n X o f th e Sherm an Antitrust Act. This union rule w e s a s f o l l o w s : That hereafter w hen an issue has been sustained by the Grand Chief and carried into effect by the Brotherhood of Locomotive Engineers it shall be recognised as a 'violation o f the obligations if a m em b er of the Brotherhood . . . w h o m a y be em ployed on a railroad, run In connection with or adjacent to said road, to handle the property belonging to said railroad or system In any w ay that m a y benefit said com pany with which the Brotherhood of Locom otive Engineers are at Issue, until the grievances or Issues of difference of any nature o r kind have been amicably settled. 2 9 t h e r e c e i v e r w a s , t o m a k e I n a n s w e r t o c o u r t w i t h a t h e p e t i t i o n c o n s i s t e d o f 28 tbld.. p. 150. 29Ibld., p. 155. 87 Uttion Rule Illegality The Brotherhood frankly admitted to the court that the effect of this rule, if it were applied to the railroad in the hands of the receiver and to the engineers in his 30 employ, would cause a stoppage of work. If it became necessary for the receiver to haul over the railroad a car belonging to another railroad company that had been struck, the union rule would require the Brotherhood engineers in the employ of the receiver to refuse to haul that car or any train carrying that car. It was also shown in the case of Waterhouse v. Comer that one engineer in the employ of the receiver had obeyed the union rule by his refusal to haul a car belonging to another road when an engineers' strike was pending on the other railroad. Interference with Interstate Commerce The case was heard by a Judge Speer who was then the United States District Judge for the Western District of Georgia. Rule 12 of the union's code governing members was found to be a direct and positive violation of Section 1 31Ibid.. p. 156. 88 of the Sherman Antitrust Act. In the ruling of the judge, the opinion was voiced that a strike on the railroads would interfere with interstate commerce and that any railroad strike could therefore be considered contrary to law. The stage was thus set for application of antitrust action against organized labor in a major conflict of that era, the Pullman strike. IV. THE PULLMAN STRIKE OF 1894 The Pullman strike in the summer of 1894 and the Debs case which arose from it were events of no small magnitude to the American labor movement of the late nine teenth century. Although the opinion of the Supreme Court in this famed case did not determine Sherman Act applica bility against unions, it did uphold the Issuance of in junctions. This action by the highest court of the land served dramatically to emphasize the tremendous potency of this instrument for controlling union activity in a demon stration widely advertised and duly noted. Particularly dating from the conclusion of the Pullman strike and the resultant substantiation of this legal device, large scale application of the labor injunction became commonplace. 89 For this reason an examination of the background of this event is important. Events Preceding the Strike The year 1894 was a desperate time for many of the country's workers. Industrial growth had been brought to a standstill by the panic of 1893, wage scales were cut, and some three million workers reduced to idleness.^2 For over a year, conditions had not improved and the nation was faced with one of the most acute depressions yet experi enced. Reports of that era note that 642 banks had failed and 22,500 miles of railway had gone into receivership.^ As is usually the case during such a crisis, the tragedy experienced by many thousands resulted in a growing national restlessness which caused considerable criticism to be directed against the contemporary economic order. This discontent was evidenced by the rising volume of industrial strife and by the birth of the Commonweal move ment* Labor was understandably determined to resist 32 Almont Lindsey, The Pullman Strike (Chicago: The University of Chicago Press, 1942), p. 12. 90 further cuts In wages. Lindsey, in his works dealing with this period, notes that in 1894 the State of Illinois, which was the seat of the Pullman strike, had approximately 16 per cent of its total labor force out of work by virtue of strikes and plant closings through bankruptcies.34 Within the nation the volume of labor disputes climbed to the point where over 750,000 workers were involved and this amounted to a peak unmatched by even the Gould South Western strike of 1886. The Commonweal movement and injunctions. The Com monweal movement was a direct outgrowth of the panic of 1893. This "organization" consisted of millions of persons idled as a result of industrial stagnation who were joined by large groups of dissatisfied farmers then ex periencing depressed produce prices. Their principal weapon was the petition. However, to the hard pressed and exploited workers of that era, Industrial warfare and demonstrations seemed more effective in forcing redress. To Impress the government with the need for immediate 34Ibid.. p. 13. relief, If was believed that a concerted march on Washing* ton D.C. would serve fills purpose. Consequently from various parts of the United States these "Coxeyites," as they were celled, traveled by foot and by rail to reach the nation's capital. Their reception in that city was cold end Inhospitable and even more discouraging was the com plete indifference of Congress to their pleas for assist* ence. The ermles of the Commonweal had demanded free transportation by rai lroad to Washington and, when refused, conmendeered trains - Many of the railroads in this dif ficult period were in bankruptcy as a result of the depres sion, and receive tc e lxed been appointed by the federal courts - Judges met: the situation promptly by issuing injunctions to protect such railroads against Interference by "disorderly elements." However, in attempting to carry out the court ordeears and enforcing the injunctions, the Uhlted States marshalls ran Into serious difficulties. It was soon discovered that public sentiment in many comnuni- ties was arrayed against the government.^ Some of the 35I*»*d, > p- 13. 36n>id.. p- 37n>i.d.. P- 13. 92 Industrial armies in the various localities numbered hundreds of determined men against whom federal agents were powerless to take effective action. The marshalls appealed to Richard Olnay, then Attorney General of the United States and an individual destined later to play a major role in the Pullman strike. Olney issued Instructions that if the court processes could not be enforced with deputies, President Cleveland should be informed of the situation and military aid requested.Wherever possible local marshalls were to join with the federal judges and district attorney in making their representations for troops. The procedure proposed was followed, and regular soldiers were employed to stop further injunction violations. This set the pattern for the actions and events which were to follow in the Pullman strike the next year. The Pullman Palace Car Company * The firm involved in the most significant strike of the 1893*94 period, the Pullman Palace Car Company, was an unusual organization exerting strong control both over the market it was dominating and over the lives of the 38ifeid. 93 company workers. In 1893, Che year prior to the great strike, the firm had an estimated 2,573 company owned pull- man cars operating on a lease arrangement with roads all 39 over the United States. In permitting cars to be used on any of the railroads, the Pullman Corporation received all net revenue derived from the sale of car accommoda tions. Conductors, porters, cooks, and waiters were fur nished by the Pullman Company. Repairs and maintenance were maintained by the firm in return for a two cent mileage fee for each ticket sold.4® By the year of the 1894 railroad strike, the Pullman Palace Car Company was dominant in its field. Only two competitive firms remained as a result of the aggressive competition-destroying policies of George Pullman, founder of the firm. One of these was the Monarch Sleeping Car Company operating exclusively in New England, while the other was the Wagner Palace Car Company, supported by Vanderbilt interests.4* George Pullman had waged a long 39 Grover Cleveland, The Government in the Chicago Strike of 1894 (Princeton: Princeton Uhiverslty Press, 1913), p. 8. 4QIbid. 41 Joseph Husband, The Story of the Pullman Car (Chicago: A. C. McClurg and Co., 1917), p. 84. 94 and bitter struggle against this latter firm which involved famous cases of litigation based on alleged infringements 42 of Pullman patents. Control over the sleeping car market can aptly be demonstrated by the fact that in 1894 Pullman car service covered 125,000 miles or three-fourths of the total railway mileage of the United States.43 In addition to the terms in the Pullman contract regarding payment for use of Pullman cars there were also provisions which closely controlled the prices charged for berths and other services. Interestingly enough, not even the panic of 1893 had an effect in any way upon the charges prescribed for Pullman palace car accommodations.44 Pull man rates had not been considered reasonable for a number of years even prior to 1894. In 1879, the Committee on Railroads in the lower house of the Illinois State Legis lature conducted an investigation of these rates for the purpose of determining the advisability of forcing a 45 reduction. Nothing came of this investigation. In 1894, 42Ibid.. p. 40. 43Ibld.. p. 76. 44 . . Lindsey, on. cit.. p. 25. 45Ibld.. p. 26. Senator John Sherman expressed himself strongly about Pull man charges saying: "I regard the Pullman Company and the Sugar Trust as the most outrageous monopolies of the day. They make enormous profits and give their patrons little or nothing in return in proportion.Illinois Governor John Altgeld, in January of 1895, referred to Pullman rates as "extortionate" and recommended to the state legislature adoption of legislation establishing reasonable charges. ^ Pullman workers and their conditions. Monopoly con trol was also extended in another sense to the workers of the Pullman Palace Car Company. Production plant workers for this organization were obliged to live in the town of Pullman, a "model town" established by George Pullman, or suffer some inconvenience in getting to or returning from work if living in nearby farm communities. Descriptions of the town of Pullman note that this planned community had "neat brick houses grouped about a little square where bright flower beds alternated with green stretches of lawn." The whole area was "shaded with trees, dotted with 46ib|d. 47ikid. parks and pretty water vistas, and glimpses here and there o £ artistic sweeps of landscape gardening."^ For the privilege of living in the company town, Pullman employees were paying rent approximately 33 per c e n t higher than in three nearby communities.^ The extra- ordinarily high rental charges were as much e grievance of tl-*m first order as the question of wages, The Pullman Company's justification for its rental policies was based ora the contention that their company homes were superior i n hygienic and aesthetic features.^ The effect of these h i g h rental rates, maintained even in the depressed years o f 1893 and 1894, was to reduce worker living standards d o w n to the level of a bare subsistence. Conditions had reached the stage where people in the tom of Pullman were struggling desperately to survive. The Pullman Company turned its back to these conditions contending that since rentals yielded less than 4 per cent on the investment Huaband, op. cit., p. 95. AQ ^Amherst College, Tha Pullman Boycott of 1894— T h e Problem of Federal Intervention. A Report Prepared by tl*« Department of American Studies (Boston: D . C . Heath a n d Company, 1955), p. 20. 50 Ibid.. p. 15. t h e y were, if anything, too low.51 High premiums were also c h a r g e d for the company produced utilities in the town. X t was estimated that city water and gas rates were 10 per c e n t higher than In surrounding communities.5^ When the panic of 1893 first occurred, the Pullman C o m p a n y suffered a temporary cut in their business. This r e s u l t e d In the laying off of more than 3,000 of their 53 8 , 500 employees. For the balance of those fortunate e n o u g h to be kept on the payroll, the firm reduced wages f r o m 25 to 40 per cent without any reduction for rents of t h e company houses. Workers seeking some relief from this s 1 tuat ion by moving to houses in nearby towns were quickly discouraged by threats of discharge. The situation by 1894 h a d become quite desperate. Reports of these times note t h a t a worker very seldom earned as much as six dollars a w e e k after the company had made its deductions.5^ Even a f t e r business began to improve, enabling the company 51Ibld. 52Ibid. . p. 47. 53 Foster Rhea Dulles, Labor in America (New York: T h o m a s Y. CroWe 11 Co., 1953), p. 172. 54 Ibid. 98 to take back some 2,000 of its employees, no steps w e r e taken to restore the wage cuts or reduce company house rents. Representation by the American Railway Union. It was shortly apparent to Pullman Company employees that grievances on wages and rent charges could not be redressed except through a united effort on their part. They c o r respondingly took steps to organize during the early p a r t of April, 1894."^ At that time a new labor organization, the American Railway Union, was rapidly expanding mend>er- ship and appeared to have a very promising future. TTiis association was independent of all other labor federations and had been formed in 1893 by Eugene V. Debs as an i n dustrial union open to all white railroad employees. Pullman workers found this union to have a tremendous appeal and were thus encouraged to join. Recruiting w a s subsequently done at nearby towns and the success of t h e ARU's efforts were readily apparent. Ultimately a t o t a l of nineteen locals were founded with the total membexrship ^Cleveland, op. clt.. p. 5. 56Ibid.. p. 4. 99 at Pullman coming to 4,000.^7 The total membership of the American Railway Union In 1894 was 150,000 which made it the largest on the railroads. With a feeling of solidarity as a result of the quick success of the organizational drive and in light of the apparently glowing future of the union, the Pullman workers decided it was time to demand certain concessions from the Pullman Corporation. Interestingly enough, officers of the American Railway Uhlon strongly advised the Pullman locals against the employment of a strike to attain their ends since it was apparent that general conditions were inauspicious for such action. Unfortunately Pullman employees were in no mood to heed such advice since there had been considerable discontent for some months. They felt now prepared to enforce their demands for a reduction in rents, an investigation and correction of shop abuses, and the restoration of wages to the pre-depression level. A grievance committee was subsequently selected and finally, in Hay of 1894, the company was approached. - * 9 57Ibid.. p. 5. ^®McAlister Coleman, Eugene V. Debs (New York: Greenberg Publishers, 1930), p. 125. 59Ibid.. p. 126. 100 The results of this effort were completely negative. George Pullman, personally participating In the conference, flatly refused to consider any wage adjustment on the grounds that the company was still losing money. Business conditions, Pullman stated, did not warrant any Increase In the wage scale. As for rent, all revisions were refused on the contention that It had nothing to do with wages and that the Income from this source was no more than reason able. The only request which the company showed any willingness to consider was In regards to the Investigation of shop complaints. The final blow fell almost Immediately after the interview. Three members of the grievance com mittee were discharged despite definite assurances that there would be no discrimination against members of the committee. The effect of this company move was the creation of considerable agitation among members of the Pullman locals for action. The grievance committee subsequently met on May 10th of 1894 and deliberated on the advisability of Instituting a strike.^ In attendance at this session 60 Ibid. 61ibld- 101 were officers of the American Railway Uhlon who, acting upon the advice of Debs, strongly counseled against resort ing to a strike at that particular time. It was the Inten tion of the ARU to have a delay by the Pullman locals at least until Investigation of the shop abuse charges were conducted and completed. Despite this advice the grievance committee voted to strike. « • Initiation of the Strike by the Pullman Locals Workers at the Pullman factory laid down their tools and left their work benches before noon on the morning of May 11, 1894.^ A total of 3,000 men walked off the job with the avowed purpose of seeking some recognition and improvement in their lot through resistance. Records of that period note that only three hundred men, mostly clerks, foremen, and unskilled laborers, remained at 63 work. Officials at the Pullman factory were caught off guard, but by nightfall had made preparations to meet the challenge, and accordingly posted a notice on the entrance gate of the plant to the effect that "the works are closed 62 ^Lindsey, op. cit.. p. 123. 102 until further notice.Thus, this was the manner in which the company acted to maintain its "right" to hire labor on whatever terms or conditions the company might dictate. It signified the initiation of a conflict which was to go down in labor union history not only for its sheer size but for the application of legal devices for purposes of stopping organized action by labor. Boycott support from the national union. One month after the beginning of the walkout, the first quadrennial convention of the American Railway Union was held in Chicago. More than four hundred delegates representing approximately 150,000 members of the union were in attend ance. ^ Eugene Debs, the presiding officer at this event, was doing everything possible to encourage full and free discussions on all matters of vital interest to the union. One of the more important issues discussed was the Pullman strike and the role the union was to take to support mem bers of the Pullman locals. This was of considerable John I. Griffin, Strikes (New York: Columbia Uhi- versity Press, 1939), p. 89. 103 Interest to the delegates since many of those attending this convention had taken the opportunity to visit the nearby town of Pullman and observe for themselves the desperate situation of the inhabitants.^ Debs was aware of the rising feeling of sympathy for the strikera among the delegates but was also aware of the unfavorable condi tions of the times. It was. thus his wish that the conven tion proceed cautiously in handling this matter and to exercise forebearance in matters which under normal con ditions would justify intervention.^ Debs' worst fears were soon realized. A special committee appointed to recommend a plan of action for the ARU in assisting the Pullman locals proposed the imposition of a boycott unless the company agreed to adjust grievances within a few days. The nature of this action consisted of the refusal of all members of the American Railway Union to handle Pullman palace cars. In addition, it was suggested that employees in the Pullman overhaul shops 6 6ibid. 67ttid. CQ Samuel Yellen, American Labor Struggles (New York: S. A. Russell Co., 1956), p. 111. 104 at St. Louis, Missouri, and Ludlow, Kentucky, be called out on strike. This reconmendation was unanimously accepted by the membership. The Pullman Company was advised of this threat and given until June 26th to submit to the union demands or face widespread boycott action. ^ The company quickly announced that there would be no submission to any* thing nor would there be any further dealings with the union representatives. The boycott was subsequently im posed . The General Managers Association The imposition of the union boycott involved not only the Pullman Company but all railroads using its cars. As a result, the American Railway Union came up against the General Managers Association, a group consisting of execu tive representatives from twenty-four railroads entering Chicago. ^ The association was formed initially for the purpose of "considering the problems of management arising from the operation of railroads terminating or centering in Chicago," and was a policy formulating body. Such 69Ibid.. p. 113. ^Amherst College, op. cit.. p. 13. 105 matters as car service, weights of livestock, car loading and unloading and such were settled among these roads as well as wage scales of railroad employees. But there was also another function which was later added, and this was the formulation of strategy to be placed into operation in the event of labor trouble. One of the courses of planned action consisted of securing the services of railway workers from other areas for importation into a struck center where they would be used as strikebreakers.7* - Still another plan involved the maintenance of a special com mittee during a strike whose purpose would be to "cooperate" with local county and city officials in taking any action deemed necessary to facilitate the quick termination of any labor trouble. With the imposition of the union boycott, steps were taken to get the General Managers Association ready to meet the challenge. One of the first actions involved the establishment of a policy ordering the discharge of any workers "cutting out" a Pullman car from any train. 7^ 7*Ray Ginger, The Bending Cross (New Brunswick: Rutgers University Press, 1949), p. 124. Steps were also taken to set up a strike headquarters in Chicago and to appoint a strike manager to handle the details and execution of all strike policies. This office was to be used as a clearing house for reports on acts of violence. Telegraph lines were Installed and arrangements undertaken so that calls for protection could be made to the chief of police, the county sheriff, United States marshall, or military officers on short notice. Just after these steps were taken, efforts were made to set up employ ment offices in a number of eastern cities to secure 73 strikebreakers. The results of these efforts proved to be highly successful. Against this formidable, well planned program estab lished specifically to meet labor problems, the ARU member ship initially showed little concern. Every time one of their members was fired for refusing to handle a Pullman palace car, the entire train crew would quit.^ Although it was among the switchmen that the American Railway Union was most strongly organized and where the trouble usually 74 Ye lien, op. cit.. p. 115. 107 originated, other classes of employees soon became in volved. These other railroad workers would take action themselves on the various rail systems in retaliation for dismissal of workers who refused to carry out orders relative to the inspecting, switching, or hauling of Pull man cars. Roads most seriously threatened in the early days of the boycott included the Illinois Central, the Chicago and Northwestern, the Chicago, Burlington and Quincy, the Atchison, Topeka and Santa Fe, and the Uhion 75 Stock Yards and Transit Company. A total, of 18,000 men were out on strike by the end of June. Legal strategy by the railroads. By late June, 1894, the strike had progressed to the point where the General Managers Association decided to seek the advice of a distinguished group of railroad lawyers as to further strategy which might be made to curb and correct the effects of the union boycott. This consultation resulted in the eventual development of a plan best calculated to bring complete victory. As Lindsey indicates, in his thorough discussions of the association and its role in 7^Ibid. the Pullman strike, a legal sub-committee was established to examine all laws applicable to the strike and advise the railroad attorneys as to which could be most appropriately utilized.^ This sub-committee would not only serve In an advisory capacity for all criminal and civil prosecutions, but would also seek to develop a "proper understanding" with the prosecuting attorneys and other law enforcing officers. While recomnending the prosecution of offenders under any law that could be found applicable, the committee pointed out that the "action which can be had under the federal laws will be more speedy and efficacious."^ Accordingly it was recommended that immediate prosecution be made against the American Railway union for interference with the mall and with interstate conmerce. Action along these lines, it was suggested, should be instituted through the office of the United States District Attorney in what- 7ft ever manner he should direct. It soon became apparent that the General Managers Association had a powerful ally shortly after their ^Lindsey, op. cit.. p. 141. 7 7 ibid. 78Ibld.■ p. 142. 109 carefully laid plans were transformed Into a campaign of active warfare. While supposedly maintaining complete Impartiality In Its operations, the United States govern ment did exactly what was best calculated to bring victory to the railroads. The federal authorities were soon to use all the devices of a powerful government, including Injunctions and the use of troops, to nullify completely the alms and activities of the American Railway Uhion. Federal Intervention An Important part In the application of federal power was played by Richard Olney, then Attorney General of the Uhlted States. This individual was particularly fitted to render quick and decisive aid to the railroad corpora tions. During his early private practice of law in Boston, he had developed a strong devotion to corporate law and to property interests.7^ Olney had also been a legal adviser and director of several corporations, among whom were 80 numerous railroads. 79 Henry James, Richard Olnev and His Public Service (Boston: Houghton Mifflin Company, 1923), p. 45. 80Ibid.. p. 46. 110 Olney* 8 fame in the Pullman case rests upon his place as supreme strategist in directing the forces of the government against the American Railway Union. The out break of this conflict had stirred up the Attorney General's resentment toward labor since the strike repre sented an attack against railroad property and corporate control. In meeting the situation, Richard Olney was therefore determined to act promptly and to use whatever means would prove to be the most productive. It might almost be said that suppressing the strike was Olney's own affair in view of the influence which he wielded as Attorney General. Through exercising control over United States marshalls and district attorneys, situations could be created from which the federal government could extri cate itself only by jumping deeper into the conflict. Charges of interference with the mail. The entering point for federal intervention was provided by the dis- Ol ruption in the movement of the Uhited States mail. It should be noted that the ARU had no desire to interfere with anything as vital as mall and had declared on a number 81 Lindsey, on. cit.. p. 150. Ill of occasions that union men would gladly be furnished to operate mall trains provided no pullman cars were 82 attached. The railroad's reply to this offer was always negative, however, and their policy soon became one of not permitting operation of any trains without a full comple ment of cars including pullman sleepers. Thus the question of what specifically constitutes a mail train became a critical point for the union. Laws initially set up to authorize railroads to carry mall did not clarify this issue. However in an interpretation of the law by the Department of Justice early in 1894, it was held that this would "comprise all cars that are ordinarily hauled by such a train," and that any person attempting to detach any part O') of it was guilty of obstructing the mails. This con- i struction of the law was comprehensive enough to hold any striker liable who attempted to detach a pullman palace car from a passenger train carrying mail, or anyone who sought to delay the train because it included these cars. Hot long after the boycott took effect notice was given to the Postmaster General of the Uhited States that 83Ibid.. p. 151. 112 mall was being delayed at various points throughout the west as a result of strike action.^ Chicago was not Involved In the obstruction of the malls during the earlier phases of the boycott. Communities near to this railroad hub were, however, and It was because of this that Olney began Issuing Instructions to the district attorney In Chicago and to those In other areas where trouble could f l e arise. J These orders were to the effect that names were to be obtained of anyone obstructing the passage of any mall train or, for that matter, any train carrying mail. It was Indicated that warrants would quickly be Issued for the arrest of such offenders. Demonstrations and the response of the government. By the early part of July, 1894, the ARU’s boycott program was becoming increasingly effective in Chicago. However, neither at that time nor for several days after the first week in July had any rioting or serious disturbances 86 developed In this major center. An outlying community, ^Ibid.. p. 152. A C JJames, o p . cit.. p. 48. 86 Jmherst College, op. cit.. p. 65. 113 though, had experienced disorders. The marshall at Blue Island, Illinois, had sworn in special deputies that were felt to be needed to protect the mall trains.87 The report of this action was enough to enforce the determination of the Attorney General to resort to stronger measures. In Richard Olney's opinion it became imperative to apply a sweeping Injunction against anyone involved. To both Edwin Walker, a railroad attorney appointed by Olney to conduct the government case against the strikers and the district attorney in Chicago, the advisability of applying for such a writ was clearly indicated. In communication with Walker, Olney explained that a restraining order could be secured under the Interstate Commerce Act, the Sherman 88 Antitrust Law, or on general grounds. Undoubtedly this recomnendation had been influenced to a considerable extent by the earlier and successful arbitrary applications of the labor injunction dating from 1886. In addition, the important lower court decisions of 1893 could also have been noted in which applicability of the Sherman Act and 87Ibid.. p. 66. 88James, op. cit.. p. 49. 114 Interstate Commerce Acts in labor cases had been challenged without success. Injunction Application Under the Sherman Act The application for an injunction against the Ameri can Railway Union was filed on July 2, 1894, by both Edwin Walker and the United States attorney in Chicago, Thomas Milchrist.®^ This was filed under Section 1 of the Sherman Antitrust law outlawing "every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several states or with foreign 90 nations." As earlier noted, terms of this legislation provided for punishment of the guilty by a fine of five thousand dollars or imprisonment for one year or both. Uhited States Circuit Courts were invested with the authority and the judgment to issue restraining orders whenever such action was deemed necessary to prevent 89 The Federal Reporter, Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the Uhited States. Vol. 64 (St. Paul: West Publishing Company, 1895), p. 726. 115 violation of the law. Under the direction of the Attorney General, Federal District Attorneys were empowered to institute proceedings in equity for the purpose of carry- ing out the intent of the law. As Attorney General, it was the responsibility of Richard Olney to enforce the Sherman Antitrust law vigor ously and in the manner comprehended by Congress. Olney's interpretation of the law, from a review of the few labor cases which had occurred imediately prior to 1894 which involved the Act's application, was rather broad. Read into the statute was a meaning not clearly indicated by Congress which had the effect of legalizing this anti labor weapon. The Sherman Act was thus put in a new light and, strangely enough, turned against the very people who had so enthusiastically supported its adoption. Development of the restraining order. The bill for the Injunction used in the Pullman strike was largely the work of Uhited States Attorney Thomas Milchrist.^ Walker's part in this activity was confined largely to making certain recommended changes which had the effect 91 Lindsey, op. cit.. p. 161. 116 of giving the complaint a broader basis. Milchrist had endeavored to establish the need for a restraining order almost entirely upon the threatened or real dangers which confronted Interstate commerce.^ With Walker's suggested changes, the most prominent feature of the complaint now became interference with the mails. The revised document was both wordy and lengthy in that it made numerous accusations and allegations in behalf of some twenty “two / railroads felt to be in urgent need of protection.^ All of these roads, incidentally, were engaged in operations which were interstate in nature. In disrupting mail move ments and interfering with Interstate commerce, the strikers were charged with conspiracy.^ It was claimed that Pullman palace cars were required for the successful operation of all mail trains. It was further maintained that both force and intimidation were being used to dis courage workers from filling the vacancies of those who left their jobs. Violence toward railroad property was qi The Federal Reporter, Vol. 64, op. cit.. pp. 726-28. 94Ibld.. p. 726. 117 also mentioned as a deliberate weapon of the strikers in pursuance of their conspiracy. Issuance of a blanket ini unction. On July 2, 1894, the petition for an injunction was filed In the circuit court for the Northern District of Illinois to restrain Eugene V. Debs and "all other persons from any action that would interfere with the mails or interstate commerce. Based on the assertion that the strike was a conspiracy in restraint of trade, a temporary writ was Issued on the day that the application was filed. That injunction has been characterized as "one of the most sweeping ... on re- cord."96 It enjoined Debs, other officers of the American Railway Union and "all other persons whomsoever" from: (1) in any way or manner interfering with, hindering, obstructing, or stopping the trains entering Chicago carry ing mails of interstate commerce; (2) "compelling or inducing or attempting to compel or induce, by threats, intimidation, persuasion, force or violence" any railway 95 Edward Berman, Labor and the Sherman Act (New York: Harper and Brothers Publishers, 1930), p. 66. 96Ibld.. p. 65 118 employees not to perform their duties, or "to leave the service of the railroads"; (3) "doing any act ... in furtherance of any conspiracy or combination to restrain . . . railway companies in the free . . . control and handling of Interstate commerce"; and (4) "ordering, directing, aiding, assisting, or abetting in any manner whatever any person or persons to commit any ... of the acts."^7 As might be noted, this writ left nothing to be desired as it related to thoroughness and completeness. It was quite apparent that this Injunction was far-reaching and was so worded that considerable room had been left for personal definition to suit the occasion. The terminology made it as widely applicable as a piece of legislation in so far as certain specific activities were concerned. A blanket injunction of this nature, with its inherent general coverage, amounted to a judge-made law protecting property from the damaging action of anyone. The use of the term "all persons whomsoever" was highly undesirable as well as the vague phraseology of the writ prohibiting ^7The Federal Reporter, Vol. 64, op. cit.. pp. 726-27. 119 a person from Inducing or attempting to Induce another to do or refrain from doing certain acts. Many such acts that could induce certain action were perfectly lawful. Still a further undesirability of the injunction granted was the perpetuation of the doctrine of conspiracy as applied to unions. Newspapers of that day widely noted this ingenious device, and one New York paper referred to q a the labor injunction as "a gatling gun on paper." Public posting of the order. The actual serving of the writ took several courses. Debs and a few of the directors of the American Railway Union were personally presented with copies. General notice to the strikers, however, was attained through publication of the injunction Q Q in Chicago newspapers on July 3, 1894. Copies of the injunction were also put up in public places and read to demonstrative crowds whenever the situation was warranted. This latter technique was considered adequate by the Uhited States attorney in Chicago, Milchrist, to place all people Q g Lindsey, o p . cit.. p. 298. " ibid.. p. 163. 120 guilty of violating Its provisions tinder the ban of the law. One of the more Important Instances In which the Injunction was read to the public occurred at the Blue Island disturbance on July 2nd. The railroad yard on that date was being overrun not only with sympathizers of the strikers and strikers but with the idle curious so that yard operations had to be abandoned. The reading of the writ to a crowd of some two thousand people calling on them in the name of the President to disperse and to cease resisting movement of the trains brought no response other than jeers. A second reading of the writ also was without results. Mob Violence and Contempt of Court Charges Before long the mob at Blue Island had ditched a mail car and upset a number of baggage cars which effec tively blocked the movement of all trains. Information on this disturbance was relayed by the local marshall to the Attorney General and aid requested from the federal lQ1Ibid.. p. 164. 121 102 government. Failure to enforce the court order was also mentioned In this report. This was the message that Richard Olney had been waiting for which signified the time for military intervention. After conferring with President Cleveland, the Attorney General quickly issued orders to move troops into the Chicago area for purposes of "enforc ing the processes of the federal court, protecting the transportation of the mail, and otherwise helping to exe- 103 cute the laws of the government." In spite of the special deputies and strikebreakers hired by the General Managers Association and the presence of the army, roughly three quarters of the railroads running out of Chicago were at a standstill. In addition, the strike was spreading to lines in both the east and far west. Violence was increasing and, by the end of the second week in July, 150,000 ARU members and tens of thousands of other railroad workers were out on strike.'*'®4 A mob, consisting of both strikers and hoodlums, was loot ing railway stores, burning freight cars, and damaging 102Ibid.. p. 170. 103Ibid.. p. 171. 1Q4Ibid.. p. 220. 122 other property, principally because of the army attempts to move trains and the accompanying manhandling of the crowds. The situation had reached the point where, in Chicago, there was bloodshed as troops were forced to fire in self defense. Eugene Debs, realizing the situation and sensing defeat, desperately attempted to win the support of all organized labor by calling for a general strike.*0* * How ever he was rebuffed by a number of trades unions which were approached, including the powerful AF of L. The president of that federation, Samuel Gompers, even went so far as to issue a public statement to the effect that a general strike was "inexpedient, unwise, and contrary to the best interests of the working people."*0^ It was fur ther suggested that all workers connected with the American Federation of Labor who were out on sympathetic strikes return to work. Debs, failing to succeed in this move, then turned to another tack and offered to call off the strike and boycott if the Pullman Company would agree 105Ibid.. p. 214. 106Dulles, op. cit.. p. 178. 107Ibid. 123 t o a . reinstatement of all workers without discrimination. T h i s offer was bluntly rejected by the railroads with the c h i s m . it that there would be "no recognition of anar- 108 Debs indietmeiit for conspiracy. The final blow t o efforts undertaken in the Pullman strike by members o f the American Railway Union and other unions occurred o n July 10, 1894. With the strike still continuing, the fodexrsl court in Chicago summoned a grand jury and c h a r g e d that the conflict represented an insurrection a g a i n s t the state. ^ Debs and other leaders of the union indicted and charged with being guilty of conspiracy i n obstructing the mails. Although arrested on this c o u n t , release was obtained after ball was posted. One w e e k lster Debs and several others were again arrested j si led for contempt of court in disobeying the origi- 1 injunction. Other injunctions were also enforced a g a i n s t individual strikers in the Pullman strike, and 108Ibld. 109 Paul Sultan, Labor Economics (New York: Henry H o l t and Company, 1957), p. 407. 124 close to 200 were arrested on federal charges In addition to the several hundred jailed by local police. The charge of criminal conspiracy against Debs was not pressed. However, the contempt charges for violation of the injunction issued under Section 1 of the Sherman Act were enforced.*** It was maintained that after issuance of the injunction and knowledge of its existence and its nature were conveyed, the defendants had continued to do what had been prohibited.112 The answer given in defense to the contempt charges was based on the contention that the court had no jurisdiction to issue the injunction. In support of this argument, the defendants claimed that the Sherman law applied only to combinations of corpora tions and to capitalists in restraint of interstate and international commerce. It did not, it was maintained, confer any jurisdiction upon any court to interfere with any labor strike which might be operated to restrain corn- 113 merce. This defense, interestingly enough, was the same 110Ibid. ***Walker, op. cit., p. 100. 112Ibid. 113Ibid. 125 as had been made and overruled In the 1893 case of the United States v. Workingmen's Amalgamated Council of New Orleans. The argument presented as a defense was overruled. Debs was sent to jail for a period of six months.An appeal on a writ of habeas corpus was eventually carried to the Supreme Court, however this petition was denied on May 27, 1895. Justice Brewer in speaking for the court justified the Injunction on the ground that the federal government, which had constitutional authority over inter state commerce and the mails, was entitled to the aid of the courts in preventing interferences. The court expressly refrained from deciding anything relative to the Sherman law in this decision although the writ of habeas corpus was denied on other grounds. Thus ended the Debs case which was an outgrowth of one of the most Important labor conflicts of the nineteenth century. 114 Berman, op. cit.. p. 69. **5Utaited States Reports, Cases Adjudged in the Supreme Court, Vol. 58 (Hew Tork: Banks and Brothers, Law Publishers, 1895), p. 593. 126 The Importance and Influence of the Strike Of all the many labor disturbances which arose during and immediately following the panic of 1893, the strike of employees at the Pullman Palace Car Company stands out most vividly for a number of reasons. From this struggle impulses were set in motion which were to affect the whole course of labor history. The strike at Pullman waa therefore much more than just an industrial clash arising from the effects of a market panic. It was an upheaval which jarred the nation to its foundation and led to extraordinary applications of old laws and the creation of highly effective labor weapons. Precedents were estab lished that required long years to nullify. From this conflict labor learned valuable lessons which were shortly to result in union participation in the political arena on a scale not attempted prior to 1894. A second and perhaps even more important consequence of the Pullman strike was the disclosure of the great power that the injunction placed in the hands of employers opposing the demands of workers. It became quite apparent that labor would have no opportunity for the redress of grievances as long as injunctions against both strikes 127 and boycotts could easily be attained through the courts. The federal government stood ready In the closing days of the 1890's to throw all of Its forces against organized workers regardless of the right or wrong of the Issues involved. Accelerated union efforts to restrict the iniunc tion. The campaign of labor for ’ 'emancipation" from the injunction was accelerated, particularly after the Danbury Hatters' case, when activities of labor combinations were brought within the scope of the antitrust laws. In 1906 the American Federation of Labor headed by Samuel Gompers, the dominant union in the labor movement at that time, made injunction limitation legislation one of its chief demands prior to the Congressional elections. This effort took the form of a "Bill of Grievances" submitted to the Presi dent and Congress, and was one of the first major steps in trying to exercise more effective political pressure in support of legislative relief from such restrictions.1,1^ 11^Dulles, on. cit.. p. 199. The content of this AF* of L "bill" Included many of the demands that labor had been seeking since the end of the War Between the States and the beginning of large scale Industrialization. It outlined the legislation that the federation desired such as (1) an eight hour law for federal employees, (2) protection from the competition of convict labor, (3) restriction of Immigration and the exclusion of Chinese, (4) protection of the rights of sea men, (5) the right of federal employees to petition Con gress for redress of grievances, (6) the exemption of labor from the antitrust laws, and (7) the abolition of the use 118 of injunctions In labor disputes. Most important of these were considered to be the latter two items since Sherman Act Antitrust application to labor and labor in junctions were said by Gompers to represent a "judicial usurpation of power properly belonging to the legislature." "We have waited long and patiently and in vain for re dress," the Bill of Grievances concluded, ". . . Labor now appeals to you, and we trust it may not be in vain. But if 118 Louis S. Reed, The Labor Philosophy of Samuel Goaper8 (New York: Columbia Uhiversity Press, 1930), p. 105. 129 perchance you may not heed us, we shall appeal to the conscience and support o£ our fellow citizens. Participation by labor on the political scene. Congress unfortunately failed to pay the slightest atten tion to this plea of labor.The bills for legislation that labor was seeking to Introduce were sidetracked or pushed aside. The AF of L consequently made the decision to approach the problem from another angle through actively entering into the Congressional campaign of 1906. The union called for support by all organized workers of all candidates friendly to labor. Where neither of the parties had an acceptable representative, the union advised the nomination of a trade unionist. Two years later in the presidential campaign of 1908, Samuel Gompers appealed to both party conventions for support of labor's interests. According to the accounts of that time, the Republicans ignored the union but the Demo crats did adopt an anti-injunction plank in their plat- 121 form. The official organ of the AF of L, the American ll9Ibid.. p. 106. ^^Dulles, op. cit., p. 202. 121Ibid.» p. 200. 130 Federationist, took a further step toward exercising Its political influence by openly opposing the election of William Howard Taft, criticized as the "injunction judge," and coming out in favor of William Jennings Bryant. Taft, however, was elected and the Republican party continued to ignore labor, thus swinging the future support of organ ized workers to the Democrats. The success of the AF of L's political activities at this point would be difficult to measure. A number of bills were being adopted by state legislatures at that time which were materially to improve conditions for Indus trial workers. This was probably attributed to a change in thinking of that era rather than to political pressures exerted by organized labor. By the time of the presiden tial election of 1912, a significant turning point was reached as far as broader legislation by the national government was concerned. Wilson's Inaugural address not only emphasized the need of legislation for purposes of protecting workers but also to give them "freedom to act in their own interests."*22 L a b o r was highly pleased, 122Ibid., p. 203. 131 and felt that at last unions might look forward to remedial legislation in respect to injunctions and conspiracy prose cutions for which it had fought so long. The results of these changes appeared for a time to bear out this optimism when, in 1914, Congress passed the Clayton Act which was intended to give labor relief from the injunction and immunity from the antitrust laws. CHAPTER IV LABOR AND THE CLAYTON ACT The application of the Sherman Antitrust Law against labor and the upholding of labor injunctions in the 1894 Debs case by the United States Supreme Court had the effect of making unions acutely aware of the .Importance of politi cal participation. Entry Into the political scene and the exercise of influence appeared to be the only effective weapon at the disposal of labor for securing protection and for furthering the aims and interests of organized workers. If the court was to hold unions subject to the Sherman Act, then the proper course of action lay in changing the law to preclude prosecution. Initiation of the first steps followed shortly, which eventually were to evolve Into an unrelenting campaign specifically designed to exempt labor from the Sherman Act, putting unions solidly into the political arena. It has been noted earlier that the American Feder ation of Labor occupied the forefront as it related to 132 133 political Involvement at the beginning of the twentieth century. Legislation designed to promote a more favorable legal environment for collective bargaining was regularly introduced at Congressional and State legislative sessions by this organization. Starting with the year 1900, the efforts of the AF of L began to become partially effective as the union succeeded in having the House of Representa tives adopt an amendment to the Sherman Act exempting labor unions from penalties under the act. That early amendment never became law. In the presidential election of 1908, sufficient political pressure was brought to bear by the Federation so that a statement to the effect that the Democrats were in favor of exempting unions from the Sherman Act actually became part of the platform of the party. This again did not result in the securing of relief. Still later other amendments were introduced to accomplish this same purpose but all proved unsuccessful. In October of 1914 labor finally succeeded in in ducing Congress to enact the Clayton Act. This measure presumably was calculated to provide unions with complete relief from the Sherman legislation. In addition, the » law was expected to curtail sharply the application of 134 the Injunction In labor disputes. Samuel Gompers, Presi dent of the American Federation of Labor, hailed the passage of this act, terming it the "Industrial Magna Charts." The law embodied the lofty declaration of the principle that "the labor of a human being is not a com modity or an article of commerce" and this, in the opinion of labor, was sufficient to Insure exemption. Before long it became apparent that the new law had not changed the position of labor materially. The decisions rendered by the United States Supreme Court in the Duplex case of 1921 and in subsequent cases were to have the effect of quickly disillusioning labor as regards the "protection" of the Clayton Act. Successful prosecutions of unions under the Sherman Antitrust Law could go on unabated. The principle was established that the injunction provisions of the Clayton Act were not operative under circumstances in which the judiciary found that labor unions restrained trade within the meaning of the Sherman Law. As a consequence, for many years the antitrust laws were to serve as a prolific basis for the issuance of labor injunctions. An additional adverse effect of the Clayton Act was the creation of a new instrument for undermining organized 135 labor. Until 1914, only the government could apply for an Injunction under the Sherman Act, but under this new legls- lation private individuals were enabled to secure restrain ing orders. While that right was again intended as a protection for the small businessman against monopolistic trusts, it was certain to be used also against labor. It was a foregone conclusion as a result of Section 16 that labor was likely to be confronted with many more injunc tions than before the enactment of the Clayton Act. Thus legislation that was thought by labor to be an instrument for Its emancipation was converted by court decision into an offensive weapon against labor, which was not to be remedied until the era of the New Deal. I. EARLY EFFORTS TO EXEMPT LABOR FROM THE SHERMAN ACT Prior to the Clayton Act there were a number of $ attempts undertaken to exempt labor from the antitrust laws and from labor injunctions. Reference has already been made to the Bill of Grievances submitted by the AF of L to Congress and President Taft in 1906 which was a plea for such exemption. This was one of the initial major efforts 136 to promote reform by a labor organization, although It turned out to be simply a statement of policy on the part of the union since nothing evolved from this attempt. The first effort actually to restrict the powers of Federal Courts in punishing contempt growing out of violations of labor injunctions occurred in 1895. That year Representative Bartlett of Georgia Introduced a bill In the House of Representatives providing for trial by jury in cases of Indirect contempt.^ This bill, as would be the case with many others, never received favorable consider ation. Each successive year Mr. Bartlett introduced bills of a similar nature, but it was not until the meeting of the Sixty-Second Congress in 1912 that he succeeded in getting a bill passed by the House. The earliest effort expended within the Senate for remedial legislation was in 1896 when a measure providing for jury trials in cases of indirect contempt was intro- duced by Senator Hill of New York. This bill was passed Cleon 0. Swayzee, Contempt of Court in Labor Injunction Cases (New York: Columbia university Press, 1935), p. 105. ^Ibid. 3Ibid.. p. 106. 137 after considerable debate, only to fall In the House Judiciary Committee. Whether labor was directly behind these first early pre-1900 attempts to Introduce amendments to the antitrust laws has not been clearly Indicated In the material dealing with this phase of the post Sherman Act period. Evidence seems to Indicate that It was not until some years after 1890 that labor found Itself In a position to develop a definite program strong enough to exert suf ficient pressure to induce corrective political efforts. Political Influence by the AF of L In the year 1900, the American Federation of Labor succeeded in influencing the House of Representatives to initiate changes to the Sherman Act. This action by the House was In the nature of the adoption of an amendment to the Sherman law which would specifically exempt labor unions from penalties under the Act. ^ It was Introduced by General Grosvenour of Ohio and sent to the Judiciary Com mittee for study. After two months of time-killing hear ings, the essential features of the bill were referred ^Elias Lieberman, Utiions Before the Bar (New York: Harper and Brothers Publishers, 1949), p. 96. 138 to a subcommittee. This subcommittee in turn withheld its report on the bill until just before the adjournment of the Fifty-Ninth Congress."* It never became a law. Still another effort occurred during the presidential campaign of 1908. It has been noted that the AF of L did succeed in inducing the Democratic party to adopt an anti injunction plank in its platform. This step, though, as well as a declaration by the party to the effect that union exemption from the Sherman Act was favored, still did not result in any change for labor. Indirect Union Attempts at Antitrust Exemption An Indirect method of obtaining relief was tried by labor in 1910. Late in the closing hours of the Sixty- First Congress, the Sundry Civil Bill was under consider ation by the House. This bill was a large appropriation measure providing for a number of important governmental agencies. Representative William Hughes of New Jersey was pressured by the AF of L into Introducing an amendment to that section of the bill providing money for the Department ~ * Ibid.. p. 97. 139 of Justice to be used in the prosecution of antitrust cases.8 This ran as follows: Provided, however, that no part of this money shall be expended in the prosecution of an organization or individual for entering into combination or agreement having in view the increasing of wages, shortening of hours, or bettering conditions of labor or for any act done in furtherance thereof, not in Itself unlawful.? This amendment passed the House but was defeated in the Senate. The bill then went to conference but because of the attached proviso the conferees were unable to agree, and so reported to their respective houses. The House, by a roll-call vote, instructed its members to insist upon a the Hughes proviso. The Senate then rejected the proviso for the second time, and again the bill went to conference. After this second deadlock, President Taft put pressure upon the Republican members of the House to defeat this measure. It consequently failed, and labor placed the blame directly upon the Republican party and Taft.9 This became an issue in the congressional election of 1910 ^Samuel Gompers, Seventy Years of Life and Labor (New York: E. P. Dutton and Company, 1925), p. 291. 7lbid. 8Ibid. 9Ibid.. p. 292. 140 at which time labor, through Indicating to labor voters those who were friends of labor, succeeded In putting the control of the House In the hands of the Democrats. This same proviso again came up during consideration of the Sundry Civil Appropriations Bill at the close of the Sixty-Second Congress.^ It was offered as an amendment and was quickly adopted by the House. The bill then passed the Senate and went to President Taft with the proviso still intact. For the second time Taft had a hand in stopping this measure, this time vetoing the entire appropriations bill as a result of the proviso.This was typical of labor's experience during this period. In spite of all efforts, it was not until 1914 that labor interests were finally able to muster sufficient support to get a bill passed by both houses and signed by the President. This was the Clayton Act, a comprehensive statute consisting of some twenty-six sections. This statute dealt basically with monopolies and "trusts," however certain sections of the Act applied specifically to labor. 1QIbid.. p. 294. 141 IX. LABOR'S "REWARD"--THE 1914 CLAYTON ACT The passage of the 1914 Clayton Act can be con sidered as the direct result of the union's intensified political program begun in the early 1900's. As has been noted, the AF. of L participated in the congressional elec tions of 1908 and 1910 and had managed to elect some candi dates who pledged their support to organized labor. It was in 1912, however, that the union finally realized its reward for participating in politics. This was the year that Woodrow Wilson was elected President and the Demo cratic party achieved a majority in both houses of Con- 12 gress. For the first time in twenty years the Democrats controlled both the executive and legislative branches of the national government. To fulfill its obligations to organized labor for the active support the President and most of the Democratic members of Congress had received in the preceding campaign, action was soon initiated. Labor had demanded and now expected legislation exempting it from the Sherman Act. \ 12 Fred Witney, Government and Collective Bargaining (New York: J. B. Llpplncott Company, 1951), p. 79. 142 The expectations which labor held for obtaining relief from the antitrust laws were, at least in labor's opinion, satisfied by certain sections of the Clayton Act enacted in the first regular session of this Democratic Congress.*3 Sponsored by Congressman Clayton of Alabama it became law in October of 1914. This act was also expected to curtail the use of the injunction in labor disputes since certain portions were written specifically to overcome the un restrained use of this legal device. Implied Exemption and Congressional Intent The intended effect of this act on labor and on injunctions may be noted from the following presentation of applicable sections. The most celebrated part of the 1914 Clayton Act was Section 6, which dealt with the application of antitrust statutes to labor unions. It provided: That the labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the exist ence and operation of labor, agricultural, or horti cultural organizations, instituted for the purpose of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual menfcers 13Ibid. 143 of such organizations from lawfully carrying out the legitimate objects thereof; nor shell such organiza tions, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws.^ Precisely what Congress had intended to accomplish by the inclusion of Section 6 Is as debatable a question as to whether the Sherman Act was ever intended to apply to labor. It is Witte's contention, based on an examination of Congressional debates, that most Congressional members believed Section 6 simply precluded suits for the dis solution of labor unions under the antitrust laws and actions directed against their normal and lawful activl- tie..15 In the final version of the Clayton Act, the exemp tion of labor from the antitrust laws in Section 6 was not in the form that originally had been suggested by repre sentatives of organized labor. This Section did not include the first sentence of the final draft or the last clause of the second sentence when first introduced into ^Dale Yoder, Manpower Economics and Labor Problems (New York: McGraw Hill Book Company Inc., 1950), p. 510. Edwin E. Witte, The Government in Labor Disputes (Nfew York: McGraw Hill Book Company Inc., 1932), p. 67. 144 the House of Representatives.1* * If these are excluded, then this Section simply provides that the antitrust laws should not be construed to forbid the existence and oper ation of labor unions, or to forbid the members of such unions from "lawfully carrying out the legitimate objects thereof."17 Samuel Gompers of the AF of L had objected rather strenuously to this first version, considering It un acceptable, and had personally addressed a letter to each member of Congress protesting the proposed exemption. He sought substitution of a clause to the effect that "nothing contained In the antitrust laws should be construed to apply to labor organizations."1* * Just prior to the time that the bill was to come up for action in the House, a compromise resulted in the addition to the original draft of Section 6, what is now the last clause in the second sentence. This stated that labor unions and their members shall not "be held or construed to be illegal combinations 16Ibld.■ p. 68. 17Ibld. 18 Gompers, op. cit.. p. 296. 145 i q or conspiracies In restraint of trade." 7 This change brought the enthusiastic support of labor for the Clayton bill. In the Senate, the first sentence of Section 6 was added in the form it now stands and its inclusion was acclaimed by labor as expressing precisely what it wished to secure although, as Witte mentions, it seems the change was not at the instigation of labor.Nothing in the congressional debates would indicate that any member under stood that this section had been altered in meaning, but these changes nevertheless did result in an about-face on the part of labor. Injunction Provisions of the Bill In addition to the provisions of the Clayton Act which purport to relieve labor unions from prosecution under the Sherman Law, the act also attempted to regulate the use of the injunction in labor disputes. In general, the terms used in accomplishing this regulate the equity power of the federal courts in labor disputes. The Clayton Act provided that the federal courts could not restrain ^Witte, op. cit.. p. 68. 2QIbid.. p. 69. 146 employees Involved in a labor dispute from engaging In peaceful picketing; from carrying out a strike In a peace ful manner; from engaging In a peaceful boycott; from attending at any place where such employees may lawfully be, or from peaceful assembling In a lawful manner for 21 lawful purposes. These prohibitions are contained In Section 20 of the Clayton Act, and from labor's standpoint they were believed to be quite Important. In spite of the fact that the terms "peaceful" and "lawful" defy objective construction, the fact remains that the legislative Intent was to broaden considerably the lawful boundaries of union activity. Patterns of union conduct which had previously been Interfered with by the federal courts were now Im munized against the labor Injunction. Federal court labor Injunction Issuance limitations. A summary of Section 20 limiting federal court Injunctions is as follows: That no restraining order or injunction shall be granted by any court of the United States, . . . in any case between an employer and employees, or between 21Carroll R. Daugherty, Labor Problems In American Industry (New York: Houghton Mifflin Company, 1949), p. 877. 147 employers end employees, or between employees, or between persons employed end persons seeking employ ment . . . unless necessery to prevent lrrepereble Injury to property, or to e property right, of the perty sinking the eppllcetlon for which Injury there Is no adequate remedy et lew.22 Clearly Section 20 pieced rather severe limitations upon the issuance of a restraining order. In a dispute between an employer and employees, or between employees alone, or between employees and others seeking a job where terms of employment were involved, an injunction could be granted only if there were an irreparable Injury for which no remedy at law were available. The applicant for a restraining order also had to describe in detail the property right that was threatened, and the application had to be sworn to before a court. Even if the injunc tion were issued, it could not prevent any person or per sons from stopping work or encouraging others to do the same as long as it were in a peaceful manner. Section 20 was thus obviously intended to stop a number of injunction abuses that were all too much in evidence prior to 1914. 22Ibid.. p. 878. 23 Prentice Hall Labor Course, Federal Anti Injunc tion Act (New York: Prentice Hall Inc., 1951), Sec. 5014. 148 Injunctions by private parties. Section 16 of the Clayton Act provided that any private party Injured through any unlawful restraint of Interstate or foreign commerce might maintain an injunction suit against persons guilty of such conduct. This was indicated as follows: That any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the Uhlted States having juris diction over the parties, against threatened loss or damage by a violation of the antitrust laws, . . . when and under the same conditions and principles as in junctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvidently granted, and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue. Regulations pertinent to injunction issuance. Car' tain procedural requirements applicable to all injunction cases in federal courts were prescribed in Sections 17 through 19. Section 17 of the Clayton Act regulated the use of the injunction. It provided that a preliminary in junction could not be issued without notice unless speci fied facts on an affidavit indicated that inmediate or ^Edward Berman, Labor and the Sherman Act (New York: Harper and Brothers Publishers, 1930), p. 100. 149 Irreparable injury, loss, or damage would result to the applicant before notice could be served and a hearing 25 conducted. When an Injunction was Issued under these conditions, It would expire within a ten-day period unless set down for a court hearing within that time. The ques tion of granting a temporary or preliminary Injunction would be passed upon at the hearing. Section 18 provided that no Injunction could be Issued unless the applicant for such restraining order 26 posted a bond. Under Section 19, every restraining order or injunction had to state the reasons for its issuance. The injunction now had to be quite specific in terms and reasonably detailed. This was Intended to stop the appli cation of the all-inclusive court order or "blanket In junction" which had been In wide use for almost a thirty year period prior to 1914. Contempt proceedings. The balance of the act which dealt with labor, Sections 21, 22, 23, and 24, pertained 25 Prentice Hall Labor Course, op. cit.. p. 5014. 150 27 to contempt proceedings. Uhder Section 21 a person will- fully disobeying any lawful writ, process, order, or decree of the court could be proceeded against for contempt. The following Section, number 22, stated that under a case of contempt the court could issue a rule requiring the defendant to "show cause why he should not be punished." The accused, however, would be entitled to a trial and in all cases coming under the scope of the act a jury trial could be obtained * This was the first time since the labor injunction had been put into use that the accused could obtain a proper defense. There was, though, a condition to this under Section 24 of the act. The right to a jury trial would not apply if "contempt is committed in the presence of the court or so near thereto as to obstruct the administration of justice . . . nor to contempts committed in disobedience of any lawful writ, process, order, rule, decree or command entered in any suit or action brought or prosecuted by the Uhited States."28 From a review of these sections of the Clayton Act that are applicable to labor, it appears that this 2^Witte, op. cit., p. 270. 2 8Jbid. 151 legislation was intended to relieve labor in two principal ways. First, it purported to do away with the abuse of the indiscriminate injunction by limiting the power of the federal courts to the issuance of restraining orders only in certain cases. Along these lines it also prohibited the court from issuing broad, sweeping, or blanket injunc tions through the establishment of certain procedures and requirements pertinent to application for the writ. Second, the act was intended to protect unions from prose cution under the Sherman Antitrust Law by providing that unions are not illegal combinations or conspiracies in restraint of trade as defined by these laws. Whether this act succeeded in accomplishing these two broad alms was a point which remained for the courts to determine several years after the Clayton bill became law. These later decisions were to prove far from satisfactory from the standpoint of organized labor. Reaction to the Clayton Act The Clayton Act became law on October 15, 1914. For a short while after its passage, labor believed that it had attained its long and persistently sought statutory relief from antitrust laws. The Act was hailed by most union 152 leaders as a major achievement and Samuel Gompers, head of the AF of L declared it to be labor's Magna Charta and Bill of Rights, the most significant piece of legislation since the abolition of slavery.2^ According to Mr. Gompers, the Danbury Hatters and Buck Stove Company decisions had made it possible for the federal government actually to dissolve any labor organization in the country under the Sherman Act. But now under Sections 6 and 20 of the Clayton Act, unions, instead of existing only under the sanction of the Department of Justice, were to be largely exempt from the operation of the antitrust laws. These sections particularly were believed to be a guarantee of industrial rights to working men, since the intent of Congress in passing this law was "plain. Evidence also seems to indicate that President Wilson apparently believed the Act to be a real measure of relief for labor. Indication of this might be noted from the correspondence of the President to Representative Ubderwood which was sent shortly after the official sign ing by the chief of state. It is as follows: 29 Gompers, op. cit.. p. 299. 30Ibid.. p. 300. 153 Incidentally, justice has been done to the laborer. His labor is no longer to be regarded as if it were merely an Inanimate object of connerce disconnected with the fortunes snd happiness of a living human being to be dealt with as an object of sale and bar ter.31 Several years later, on July 4, 1916, at the dedica tion of an AF of L office building, the text of President Wilson's speech again indicated the faith he had in the Act. Wilson reiterated the belief that the labor of a man is a part of his life and cannot be treated by the courts as a commodity by noting: Mr. Gompers was referring just now to the sixth section of the Clayton Anti Trust Law, the section in which the obvious is stated . . . namely, that a men's labor is not a commodity but a part of his life and that, therefore, the courts must not treat it as if it were a counodlty, but must treat It as if it were a part of his life. I am sorry that there were any judges in the Uhited States who had to be told that. It is so obvious that it seems to me that that section of the Clayton Act (Sec. 6) were a return to the primer of human liberty; but if the judges have to have the primer opened before them, I am willing to open it. 32 Unwarranted optimism bv organized labor. If organ ized labor really believed that the Clayton Act removed the harsh court interpreted restrictions of the 1890 Sherman 31 Lelberman, op. cit.. p. 97. 32Ibid.. p. 98. Act they were headed for a disappointment and a rude awakening. Decisions on new cases after 1914 soon revealed that the United States Supreme Court followed the drift of common law and Interpreted the new statute in accordance with the old well-established doctrines of conspiracy and trade restraint. But it is difficult to understand how labor leaders could have been so misled, unless they were poorly advised by their legal advisers, for a close reading of the labor Sections of the Act would not justify any high hopes. The provisions of the Act certainly cannot be accused of being dishonestly worded. Rather the problems seem to be that the main fault lies In the indefiniteness and vagueness of the language in the version that was passed. A court in the 1930's might have Interpreted it very favorably to labor. Most of the precedent-setting decisions made between the year 1914 and the late 1920's, however, were made by a rather conservative Supreme Court highly partial to business interests in an era when strength was not yet on the side of organized labor. The Weakness Apparent in the Legislation A reading of Sections 6 and 20 of the Clayton Act might certainly lead to the conclusions that the antitrust act was no longer applicable to labor organizations; that no injunctions were to be Issued by federal courts in labor disputes unless necessary to prevent irreparable injury to property or property rights for which Injury there was no adequate remedy at law; that no injunctions were to be Issued preventing persons from quitting work singly or as a group, from engaging in peaceful picketing and per suasion, from carrying on primary or secondary boycotts, from paying strike benefits, from peaceably assembling, or from doing things which might lawfully be done in the absence of a labor dispute. The method which Congress used in the Clayton Act for freeing labor from antitrust prose cution seemed simple and logical. It merely declared that certain activities of unions, some of which had heretofore been held illegal, were now not to be "considered or held to be violations of any law of the united States." Had labor given greater attention to Section 6, termed by labor the most important part of the Act, it might have seen the weakness of this legislation.^ Organ ized labor had been striving for complete exemption from 33 E.N.D., "The Railway Strike Injunction," Michigan Law Review. 21:92, April, 1922. 156 the antitrust laws and restriction o£ the labor Injunction. This could have been attained by the inclusion of Gomper's suggested amendment to the original bill which stated that "nothing contained in the antitrust laws should be con strued to apply to labor organizations." Apparently Con gress did not intend to grant labor such an exemption, otherwise this clause would have been adopted in the final draft of the bill.^ In the Danbury Hatters case, in which the Supreme Court applied the Sherman Act, labor unions were found to restrain trade because their boycott activities inter fered with interstate commerce. This was not changed by the wording of the ciayton Act. The first sentence of Section 6 simply declared that "the labor of a human being is not a commodity or article of commerce" and did not have any effect in changing labor law. This was essentially an empty phrase having no practical importance. Other state ments within this Section were equally devoid of meaning. For example, the reference to labor unions in themselves being lawful organizations was held by courts to be true 34 Ibid. 157 since 1842, long before the Clayton Act. In the antitrust cases the Supreme Court had not denied the right of em ployees to form labor unions. Nothing consequently was added by the statement that "nothing contained in the anti trust law shall be construed to forbid the existence and operation of labor organizations." This same uselessness is true of the phrase "nor shall such organizations or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade under the antitrust laws." When added to these meaningless phrases the statement that unions may "lawfully carry out the legitimate aspects thereof," Section 6 appears worthless as a "new" protective measure for labor unions. The only effect of the Clayton Act was to affirm the right of the courts to decide questions of lawful and unlawful union activities and objectives. Adverse effect of Section 16. Section 16 of the Clayton Act was one of the Sections dealing with the methods to be used by federal courts in issuing injunc tions, and was aimed at remedying a number of abuses com plained of by labor. However, the effect of Section 16 in one way actually made the position of organized labor worse 158 than under the original Shaman Antitrust legislation. This was due to the provision allowing private parties to obtain Injunctions under the antitrust laws against persons guilty of conduct in violation of these laws. Prior to 1914, only the federal government could secure injunctions against unlawful restraints of trade. This was a serious weakness which could have been noted before the bill became law had labor paid greater attention to the details of their "Magna Charts." III. THE DUPLEX CASE AND THE POSITION OF LABOR Labor retained its enthusiasm for the Clayton Act for about a five-year period following its passage, and for some time thereafter maintained that the courts were mis construing the act. Labor's "Magna Charta," it was shortly revealed, did not operate to preclude application of the Sherman Law to labor unions. The united States Supreme Court began to hand down decisions which were to turn the optimism of the unionists into consternation and indigna tion. The rulings in four cases in particular, i.e., Duplex Printing case, the Coronado Coal case, the Bedford Cut Stone case, and the Apex Hosiery case, plainly showed X59 that labor combinations were still very much subject to antitrust laws. ^ Once the Supreme Court took this posi tion, it affirmed the use of the labor injunction to restrain labor unions found in violation of antitrust statutes. In particular, this was the essence of the Duplex decision of 1921 and of the Bedford doctrine of 1927. The principle was therefore firmly laid down that the injunction provisions of the Clayton Act were not operative under circumstances in which the judiciary found that labor unions restrained trade within the meaning of •if. the Sherman Law. ° As a consequence of these Supreme Court rulings, the antitrust laws were to serve for many years as a prolific basis for the issuance of labor injunc tions . ^ Union Organizational Attempts In 1921, the Supreme Court of the United States had its first opportunity to deal with the application of the 35 Prentice Hall Labor Course, op. cit. 36 Recent Important Decisions, , 1 Labor unions— The Effect of the Clayton Act/* Michigan Law Review. 20:243, December, 1921. 160 Sherman Antitrust Law to labor unions after the enactment of the Clayton Act. The case involved the International Association of Machinists, then an affiliate of the AF of L, and the Duplex Printing Press Company located in Battle Creek, Michigan. At that time there were only three other companies manufacturing printing presses in this country, and all four firms were engaged in active com petition with one another. From 1909 until 1913, the Machinists Union was successful in organizing all of these <io companies with the exception of the Duplex Company. In the shops in which the union had won recognition, employers had granted the eight-hour day, had established a minimum wage scale, and generally had complied with other employment practices demanded by the union. The Duplex Company, being an open shop, maintained a ten-hour day and it8 wage scale was lower than the one prevailing in the union shops. Operating with lower labor standards and costs, Duplex represented a significant competitive threat to the organized firms. This competition was so severe, two of the organized printing press manufacturers notified 38 Lieberman, op. cit.. p. 99. 161 the union that they would be obliged to terminate their labor contract unless the Duplex Company somehow could be made to sign a union agreement, thus raising their labor costs. ^ The unionization of the Duplex Company became a necessary condition if a uniformity of competitive condi tions were to be attained within the printing press manu facturing industry. Fully aware of this situation, the International Association of Machinists intensified efforts to establish a union shop. These subsequent attempts in the summer of 1913 proved futile, as the Duplex Company stoutly refused to negotiate on a peaceful basis. The union then called a strike. The results of this move proved to be completely unsuccessful in forcing the company to come to terms since only a small percentage of the total plant workers responded. Out of the 300 employees at Duplex only about thirteen machinists left work.^ A picket line was then thrown around the plant by the Machinists Union but even this failed to hinder operations or to get the recognition being sought. 40 Witney, op. cit.. p. 85. 162 Boycott imposition by the International Association of Machinists. In the light of these circumstances, the union had two alternative courses of action. Either it could terminate its contract in the organized plants, or it could resort to economic action calculated to force the Duplex Company to recognize the Machinists Uhion. As might have been expected, the union chose the latter course. Uhion response took the form of a secondary boycott di rected against the products of the company. Since New York City represented one of the more important markets for the products of Duplex, the International Association of Machinists (IAM) undertook action designed to prevent the sale of the company*s presses in this city. To accomplish this objective, the Machinists implemented an elaborate program which included the ordering of members of the New York lodges of the IAM not to install or repair any print ing presses made by Duplex. ^ In addition, the union secured the cooperation of their affiliated carting organization within New York in stopping a trucking company, usually used by Duplex ^ Ibid.. p. 85. 163 customers, from hauling any Duplex presses. Warnings were given to prospective Duplex customers not to purchase or Install the printing presses of this manufacturer. Emil J. Deering, the business agent for IAM, District No. 15, went so far as to attempt to prevent the exhibition of Duplex machines at a commercial fair then being held in New York 42 City. The intent of such activities was, of course, to eliminate the Duplex Company completely from the large Naw York market. If successful, this union action would en courage the purchase of presses manufactured by the three companies with which the union had contracts. The economic circumstances surrounding the Duplex case are quite similar to those Involved in the famous Danbury Hatters affair in which the Supreme Court held that the action of the union violated the terms of the Sherman Law. Court Action and the Issuance of an Injunction The Duplex Company was soon forced to go to court. On a complaint and affidavits on April 13, 1914, the com pany obtained an injunction without a hearing from the 42 Lieberman, op. cit.. p. 99. 164 Uhited States District Court for the Southern District of 43 New York. This was against the International Associ ation of Machinists, its District No. 15, New York Lodge No. 328, the New York Riggers' Protective Union, and the business agents of these organizations as individuals. The inj unction restrained the unions from interfering with Duplex's trade and goodwill and from interfering with the sale, carting, installation, use or operation of printing presses made by the plaintiff. In addition, the writ also stopped the circulating of the Duplex name on an "unfair" list. On the complaint filed it was maintained that the IAM controlled nearly all the skilled machinists in New York City and that this union, along with the Riggers' Protective Union and other defendants were engaged in a conspiracy against the Duplex Company that was contrary to the common law. They had conspired to keep the company from exhibiting its equipment at a New York trade show. * * * * 43Ibid.. p. 100. 165 Clavton Act Interpretation bv the District Court The hearing on the complaint was held on April 23, 1917 by Justice Martin T. Manton.4* * The results of this session were that under the terms of the Clayton Act no permanent Injunction might be Issued. It was pointed out by the court that the defendants In the action were sued only In their Individual capacities and that no process had been served on their organizations.4^ No evidence was found that the strike was undertaken for other than a law* ful purpose which was, In this case, Improvement of workers' conditions. Although Justice Manton found that the defendants did act together against the Duplex Company In accordance with a plan, It had done so In a peaceful 47 manner. Defendant Deerlng, business agent for the IAM had urged employees to stand by the union but this was again done peacefully. The same was true of the actions of the cartmen who had refused to carry Duplex presses and 45 The Federal Reporter, Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the Halted States, Vol. 252 (St. Paul: West Publishing Co., 1919), p. 193. 46Ibld.. p. 194. 47Ibid.. p. 198. 166 who, it was maintained, had been won over by peaceful persuasion. As It related to consents made to two local papers by Deerlng to the effect that they might expect trouble if they Installed Duplex presses, this conduct was not con sidered wrong since nothing actually happened.48 It was also brought out that Deering informed the manager of a newspaper's publishers exhibit that union machinists might refuse to work at the exhibit if Duplex machines were dis played, but this was interpreted by Justice Manton as merely an exchange of views without any ensuing action. The decision by the Justice concluded that "there is nothing in this record which warrants my granting the in- AQ junction sought."^7 The Duplex strike was considered by this court as peaceful and orderly, for a lawful purpose, and thus was lawful. The company's bill of complaint was dismissed and the temporary injunction voided. The Appeal and Circuit Court Majority Opinion Following the decision by the District Court, the Duplex Company appealed to the Circuit Court of Appeals 48Ibid.. p. 197. 49Ibld., p. 196. 167 for the Second Circuit. This court affirmed the decision of the lower court. Justice Charles H. Hough delivered the majority opinion on May 25, 1918.^° Justice Learned Hand delivered a brief concurring opinion which in essence held that the Clayton Act legalized the secondary boycott and that therefore no injunction was justified under the Act.^ 52 The points he covered are as follows: (1) The plaintiff would have been entitled to injunctive relief against the unlawful acts, such as threatening to make trouble for users of its presses and threatening to break its contract with the Exposition Company, but the plaintiff asked to restrain the peaceful efforts to organize its factory. It was not entitled to do this. (2) The secondary boycott was not illegal in New York provided that no fraud, malice, violence or force was involved, but since the acts com plained of in this case affected interstate commerce, the federal law was applicable. (3) Under the federal law, plaintiff would be entitled to an injunction unless pro hibited by the Clayton Act. Section 20 of the Clayton Act 5QIbid,. p. 722. 5IIbld.. p. 748. 52Ibid.. pp. 745-48. was apparently meant to legalize the secondary boycott, but the statute was "blindly drawn." This Section prohibited the issuance of an injunction in any case "between em ployers and employees, or between persons employed or seek ing employment. ..." The question raised is whether Section 20 was meant to apply only to cases involving an employer and the employees directly^employed by him, or whether it was meant to apply to employers and employees generally. (4) "Unless the words 'employers and employees' as ordinarily used, and as used in this statute, are to be given a strained and unusual meaning, they must refer to the business clan or class to which the parties litigant respectively belong." Therefore, it must be concluded that the activities of the defendants were not deemed unlawful under the Clayton Act. In giving his opinion, Justice Hand agreed that Section 20 legalized the secondary boycott. To quote his words, "1 do not think that the Section applies only when the employer is plaintiff and his present or former em ployees are defendants. Further, I think that the dispute here under any definition included the conditions of 169 53 employment." Thus did Justice Hand agree with the reasoning and the decision of his colleague but not with "all the expressions In his opinion." The decree denying the Injunction by the lower court was thus affirmed. The dissenting opinion. Judge Rodgers vigorously dissented from the opinion of the majority. In his view the boycott was accompanied by threats and coercion, did damage to the company, and was unlawful.34 It was as much a violation of the Sherman Act as had been the boycott put into effect in the earlier Danbury Hatters' case. In Rodgers' opinion the Clayton Act did not make legal acts which were illegal prior to its passage.55 He furthermore believed that only in a case involving an employer and his own employee did the Clayton Act forbid the use of an injunction. The dispute in the Duplex case was not in this class. In referring to the plan of the machinists to make the presses unmarketable, Judge Rodgers declared: 53Ibid.. p. 748. 54Ibid.. p. 727. 53Ibid.. p. 744. 170 If this can be done under the laws of the Uhited States, then It seems that no manufacturer of print ing presses in this country can maintain an "open" shop, and no machinist engaged in the manufacturing of such presses can earn his living at his trade, un less he consents to join a union, and be bound by all its rules and regulations, and the channels of inter state commerce are practically closed against the products of an "open** shop. If the truckmen are in the unions and cannot handle nonunion goods, of what use Is it to ship goods from Michigan to Hew York? And if the unions have a right to say what goods their members shall handle, or shall not handle, what reason is there for saying that union men employed by railroads cannot refuse to handle any goods made In an "open” shop^® Review by the Supreme Court The Duplex Company appealed to the Supreme Court, and on January 22, 1920, the appeal was argued before this 57 tribunal. The meaning and application of the 1914 Clayton Act formed the foundation for the respective con- 58 tentions of the parties concerned. The plaintiff, the Duplex Company, took the position that: (1) The Clayton Act did not extend any additional rights to organized 56Ibid.. p. 745. 5 ^Halted States Reports, Cases Adjudged in the Supreme Court. October Term. 1920. Vol. 254 (Hew York: The Banks Lew Publishing Company, 1921), p. 443. 58Ibid.. p. 453. 171 labor, but merely restated the law as It already existed In judicial decisions. (2) Section 20 of the Clayton Act extended Immunity against prosecution only to the very employees of the employer directly involved in the labor dispute, but the defendants in this case were not employees of the plaintiff and hence were not entitled to immunity against prosecution. (3) Moreover, the prohibition in Section 20 of the Clayton Act against Issuance of injunc tions was limited only to the restraining of lawful acts of employees, but the acts of a criminal conspiracy were not thereby limited. The defendants in this case could not claim immunity under this section. (4) If Section 20 legalized the acts of a criminal conspiracy, it would be unconstitutional as "class legislation," violating the due process clause of the Constitution. (5) The defendants were engaged in a conspiracy to attack and ruin the plain tiff's trade and commerce by means of a boycott. The defendants based their defense on a number of points.These were that: (1) No injunction could be granted because the Clayton Act was intended to protect 59Ibld.. pp. 454-59. 172 organized labor against the application of the Sherman Antitrust Act. (2) The acts of the defendants were lawful since the Clayton Act recognized that the efforts of labor organizations to equalize wages and working hours In a trade were lawful, and that was exactly what the defendants were trying to do in this case. (3) the term "employees" as used in the Clayton Act was intended broadly to encom pass any employees, whether or not they were employed directly by the particular company, party to the dispute. (4) There was no actionable wrong in striking against an employer and in securing the co-operation of others not to perform work which might benefit such employer. (5) The publicizing of the strike among plaintiff's customers was not unlawful. It was a legitimate activity of unions, and protected by law as an essential part of freedom of speech. (6) An injunction against the refusal to handle Duplex presses forced men to work against their will. Just as the plaintiff could hire whom he chose, the workingmen had the right to choose whom they would work for and under what conditions. (7) The right to solicit business was not a property right and moreover no proof of injury to that right had been shown. (8) The Sherman Act did not apply 173 because no unlawful Interference with Interstate commerce had been shown, since the refusal to handle the presses occurred after they reached their point of consignment within New York state. Even If the acts of the defendants did affect the profits of the plaintiff, a decrease of profits was not Interference with Interstate commerce. (9) Since the Clayton Act declared that labor was not a coneodlty or an article of commerce, any Interference by labor's representatives with production was not an Inter ference with comnerce, and hence labor representatives could not be enjoined. Granting of a permanent Injunction. The effect of Section 20 of the Clayton Act on the rights of labor remained unknown for almost a year after the first hearing of the arguments by the court. It was finally on Janu ary 3, 1921, that the Supreme Court, by a vote of six to three, reversed the judgment of the lower courts and directed that an Injunction be granted to the Duplex Com pany. ^ The majority opinion was delivered by Justice Mahlon Pitney sfalle the minority opinion was delivered by 60Ibid.. p. 443. 174 Justice Louis D. Brandeis. In rendering his opinion. Justice Pitney held that the Machinists boycott was a violation of the Sherman Act and was unlawful despite the passage of the Clayton Act.6* In fact, Pitney went so far as to conclude that Congress did not intend that secondary boycotts should be legalized by the Clayton Act.**2 The process of reasoning ran thus: The Sherman Act declared illegal every combination in restraint of trade. The Clayton Act declared that the antitrust laws shall not be construed to forbid labor organizations from lawfully carrying out their legitimate objects. But Justice Pitney declared that the secondary boycott was not a lawful method, nor were sympathetic strikes, and cited the Danbury Hatters case in support of his position.63 The court pointed out that the Machinists had attempted "to render it impossible for complainant to carry on any commerce in printing presses between Michigan and New York, and that the defendants had agreed to do and were endeavoring to accomplish the very thing pronounced 61Ibid., p. 478. 62Ibld.. p. 474. 63Ibid., p. 473. 175 unlawful by this court in Loewe versus Lawlor."^ Justice Pitney continued by explaining why Section 6 of the Clayton Act did not authorize the action of the Machinists' Union against the Duplex Company. Referring to Section 6, the Justice declared: The section assumes the normal objects of a labor organization to be legitimate, and declares that nothing in the anti trust laws shall be construed to forbid the existence and operation of such organiza tions or to forbid their members from lawfully carry ing out their legitimate objects, and that such an organization shall not be held In itself . . . merely because of its existence and operation . . . to be an illegal combination or conspiracy in restraint of trade. But there is nothing in the section to exempt such an organization or Its members from accountability where it or they depart from Its normal and legitimate objects and engage in an actual combination br con spiracy In restraint of trade. And by no fair or permlssable construction can it be taken as author izing any activity otherwise unlawful, or enabling a normally lawful organization to become a cloak for an illegal combination or conspiracy in restraint of trade as defined by the anti trust laws. In arriving at this decision, there were a number of facts reviewed and interpreted. ^ From these it was held that: (1) The defendants' acts would not be lawful unless 65Ibid., p. 469. 66Ibld., pp. 461-79. 176 made so by the Clayton Act, but the Clayton Act did no such thing. (2) That act was a supplement to the Sherman Act and merely Incorporated the previous judicial interpreta tion of what constituted lawful acts by organized labor. (3) Business was a property right, entitled to protection against "unlawful injury or interference." The plaintiff's business required unrestrained access to commerce. (4) A combination to hinder its business existed in this case. The plaintiff, therefore, had a clear right to an injunc tion if injured "due to violation of the Sherman Act as amended by the Clayton Act," because conspiracies in restraint of trade were unlawful. It was already held in the Danbury Hatters case that "peaceable persuasion is as much within the prohibition as one accomplished by force or threats of force," and was not justifiable by the fact that the conspirators might have intended to pursue an object of benefit to themselves. (5) The heart of Section 6 of the Clayton Act lay not in what it authorized labor unions to do but in what it failed to authorize. Since this Section failed specifically to exempt labor from liability in conspiracy cases, then it must be held that they were not in such cases exempted from the Sherman Act. Nor could 177 It be construed to enable "a nominally lawful organization to become a cloak for an illegal combination or conspiracy in restraint of trade as defined by the antitrust laws.'* (6) The provisions of Section 20 of the Clayton Act were limited to those disputes concerning terms and conditions of employment where the parties to the dispute were in a direct relationship of employer and employee. The restric tions against the Issuance of injunctions applied only to parties "in proximate relation to a controversy/* but did not cover others, not direct parties to the dispute. The exceptional privilege of Section 20 must be confined only "to those who are proxlmately and substantially concerned as parties to an actual dispute respecting the terms and conditions of their own employment, past, present, or prospective." Congress had in mind particular Industrial controversies, not a general class war, not persons who were affected merely by "sentimental and sympathetic" sense to the cause of dispute. (7) Section 20 did not include all members of a single union in its exemptions, but only those members involved in the specific dispute with the particular employer. (8) Furthermore, the emphasis on lawful and peaceful means and acts in Section 20 did not 178 justify instigating a sympathy strike; the law did not legalize the secondary boycott, except that parties to the dispute might cease to patronize and might ask others to cease to patronize a party to the dispute. (9) The com plainant had a "clear right to an injunction under the Sherman Act as amended by the Clayton Act." That injunc tion should restrain the defendants from attempting to interfere with the sale, transport, or delivery of presses or their carting, installation, use, repair, or display by using any force, threat, command, direction or even per suasion or any "other threatened conduct" with the object of having the effect of causing any person to decline employment under any person "who buys from or handles the plaintiff's presses." The dissenting opinion. Justices Brandeis, Holmes, and Clarke dissented vigorously. The dissenting opinion supported the view that all of those engaged in the boycott had a coomon interest, and so were justified in their re fusal "to expend their labor upon articles whose very pro duction constitutes an attack upon their standard of living and the institution they are convinced supports it."^ 67Ibid.. p. 481. 179 Brandels ridiculed the majority opinion that the Clayton Act merely embodied previous judicial interpretations of the Sherman Act and extended no new rights to labor. It was pointed out that Congress did not restrict the provisions of Section 20 to employers and working men in their employ but provided for employers and employees in 68 general. This, it was felt, showed that Congress was not aiming merely at a legal relationship between a specific employer and his employees but was aiming at a general industrial relationship. Moreover, if the words "employers and employees" in the Section were to be so narrowly con strued as to apply only to those who maintained a direct employer-employee relationship, then the law became mean ingless when applied to strikes because the strike severed the continuity of the legal relationship between employer and employee.**9 As to the purpose of this section and the protection that was felt extended, Justice Brandeis reasoned along the following lines.^ First, there was a presumption 68Ibid.. p. 488. 69Ibid. 70Ibid.. pp. 487-88. underlying any piece of legislation that it w a s designed to change the existing state of affairs. Second, in this particular instance Congress intended by the Clayton Act to enlarge the "allowable area of economic conflict" for labor unions. Third, Congress was conscious' of the fact that unions had an interest in the working conditions existing in nonunion shops since such conditions affect the terms and conditions of employment in the entire industry, including union shops. Fourth, the allowable area of economic conflict had been broadened by the Act to include all employees thus economically affected. Fifth, "the conditions developed in industry may be such that those engaged in it cannot continue their struggle without danger to the community. But it is not for judges to determine whether such conditions exist. . . . This Is the function of the legislature." Effect of the Supreme Court Decision The decision of the Supreme Court in the Duplex Printing Press v. Deering case, rendered on May 25, 1918, was a blow of considerable magnitude to labor. The myth of the Clayton Act being labor's "Magna Charta" was quickly 181 destroyed since It was now evident that successful prosecu tion of unions under the Sherman Act could go on unabated. Not only that, but Section 16 of this legislation had the effect of providing a new instrument for undermining; organized labor. Passage of this 1914 law now enabled private individuals to secure injunctions against labor under the antitrust laws whereas before only the govern ment could obtain injunctions against unlawful restraint of trade. As it relates to the decision in the Duplex case, four points were established.^ First, the business of the employer is a property right which, under Section 20 of the Clayton Act, may be protected by the injunction. Second, the limitations placed upon the issuance of the injunction by Section 20 apply solely to disputes between the employer and his employees, thus providing no protec tion for union members not in his employ. Third, Sec tion 20 was not intended to legalize the secondary boycott. And fourth, a labor organization becomes an illegal com bination in restraint of trade if and when it departs from 1■ ’ "Albion G. Taylor, Labor Problems and Labor law (New York: Prentlce-Hall, Inc., 1938), p. 529. 182 its lawful object8. Thus not since the Danbury Hatters case had a deci sion affecting interference with interstate connerce by labor so seriously restricted the activities of labor. ^ Quite obviously unions had gained no immunity from the operation of the antitrust laws. Union activities under the Sherman Act became no more legal by passage of the 1914 Clayton Act. ^ Although the Clayton Act had stated that labor groups and their lawful acts for lawful objects would not be considered conspiracies in restraint of trade, the Act had failed to define with precision what is meant by "lawful** acts and objects. The Duplex decision declared the secondary boycott illegal, just as had the Danbury Hatters decision prior to passage of the Clayton Act with its Section 20 which labor believed legalized the secondary boycott. Labor's criticism of the Duplex decision carried more weight because of the three dissenting judges. 72 Recent Cases, "Injunctions--The Right of Govern ment to Act in Labor Disputes Older the Clayton Act," of Pennsylvania Law Review. 71:83, November, 1922. 73Xbld- 183 The decision stood, nevertheless, and made possible an increase application of antitrust legislation In labor disputes. IV. STATE ANTI INJUNCTION LAWS AND CLAYTON ACT INFLUENCE During the period following the turn of the century when the American Federation of Labor was attempting to obtain Congressional restriction of the injunction, efforts were being made along similar lines on the state level. In most cases these bills sponsored by the Federation were not successfully enacted into state law. However, there were a few that were passed. Witte notes that in 1903 In the state of California and in 1907 in the state of Okla homa laws were passed that were modeled after the AF of L injunction bill of the 1900 to 1906 era.7^ The California statute eliminated as a criminal offense a combination to do any act in furtherance of a trade dispute "if such act would not be a crime when done by one person alone," and excluded such a combination from the law against restraint 7Sfitte, op. cit. . p. 271. 184 of trade. In addition it went further In providing pro tection as noted by terms to the effect that "nor shall any restraining order or injunction be issued with relation thereto. ”7^ Shortly after the state enacted this legislation, a San Francisco employer applied to the state court for an injunction. It was claimed that the defendants, members of a labor union, paraded in front of the plaintiff's establishment with "unfair" and "don't patronize" placards in an effort to intimidate both employees and patrons from entering.7* * The defendants subsequently relied upon the terms of the 1903 statute prohibiting labor injunctions. The trial court in this case ignored the argument of the defense and Issued an Injunction which the Supreme Court of California sustained after a slight modifica- 77 tion. 9 In this particular case of Goldberg Co. v. Stable men's Union, the 1903 statute was not overlooked by the court. It was, however, "construed" as follows: 75Ibid.. p. 272. 76Califomla Reports, Reports of Cases Determined in the Supreme Court of the State of California. Vol. 149 (San Francisco: Bancroft-Whitney Company, 1907), p. 431. 77Ibid.. p. 435. 185 Appellants make the bare statement, without argument, that an Injunction In this case Is one also specifi cally forbidden by Penal Code, page 581 . . . but In the first place It cannot, In our opinion, be con strued as undertaking to prohibit a court from enjoin lng the main wrongful acts, charged In the complaint In this action; and In the second place, if It could be so construed, it would to that extent be void because violation of plaintiff's constitutional tight fn loflffl r*. nnitasa An 4 av AnH nnnf mnf nmnmnf « t /w to acquire, possess, enjoy and protect property. For all practical purposes California's 1903 Anti Injunction legislation thus proved to be valueless, as seemed to be the case in other states adopting this type of law. Arizona and Massachusetts Anti Injunction Statutes During this period of the post-1900 era, other states were also making efforts to enact this type of statute. Some of these bills turned out to be far more elaborate in their provisions. Two of the most compre hensive statutes passed were those in Arizona and Massa chusetts In the years 1913 and 1914, respectively. 79 Of these state laws, the Arizona statute was the more elabo rate. It contained a number of provisions which clearly 78Ibid.. p. 434. 70 '7Fellx Frankfurter and Nathan Greene, The Labor Injunction (New York: The Macmillan Company, 1930), p. 152. restricted state courts from issuing injunctions "in any case between an employer and employees or between employers and employees . . . involving or growing out of a dispute concerning terms or conditions of employment, unless necessary to prevent Irreparable Injury to property . . . 80 for which injury there is no adequate remedy at law." In addition, this Arizona statute enumerated certain acts that no labor injunction might prohibit such as "ceasing work or inducing others by peaceful means to do so; peace ful patrolling; ceasing to patronize any party to a labor dispute or inducing others by peaceful means so to do; payment of strike benefits; peaceable assembly; the doing of any act "which might lawfully be done in the absence of such dispute by any party thereto."8* * As might be observed the content of this Arizona law, written while the Clayton Act was pending in Congress, was very similar to Sections 17 and 20 of this federal legislation. The Massachusetts statute was no less simi lar. It followed the first part of the Arizona statute 80Ibid. 187 almost word for word but added a provision designed to avoid the taking of excessive advantage of the clause in the Arizona law provided by the words "unless necessary to prevent Irreparable injury to property." For purposes of the statute the Massachusetts law defined what was not to be deemed property as follows: In construing this act, the right to enter into the relation of employer and employee, to change that relation, and to assume and create a new relation for employer and employee, and to perform and carry on business in such relation with any person in any place, or to do work and labor as an employee, shall be held and construed to be a personal and not a property right. The Massachusetts statute was later held invalid by the Supreme Judicial Court of Massachusetts due mainly to the inclusion of this provision. It was found that the enactment was "repugnant to the due process clause of the federal Constitution and equivalent provisions in the state go constitution." In withdrawing the "protection of equi table remedies from the economic advantages of the employer-employee relationship," the legislation was held to have annihilated the right to carry on business and 82Ibid.. p. 153. 83Jfcid. 188 deprived those possessing such rights from equal protection of the laws. The statute passed by Arizona lasted from 1913 until 1921 when this state law came up for review before the Uhlted States Supreme Court In the Truax v. Corrigan case. The decision rendered In this case was to have a consider able Influence on the status of all state anti Injunction laws after 1921. The Federations* "Model" Anti Injunction Bill After passage of the Clayton Act In 1914, the Ameri can Federation of Labor began to direct even greater efforts toward getting state legislatures to enact similar legislation. The executive council of the union issued what they considered to be a model state anti injunction bill In 1915. In it, unions were declared to be lawful organizations, and it provided that no person should be Indicted or prosecuted for any agreement or combination to improve conditions of work.It also closely followed Section 6 of the.Clayton Act by declaring that the labor of a human being is not a commodity or article of commerce ^Nfitte, op. cit.. p. 272. and by providing that injunctions should be issued only to prevent irreparable injury to property. Property was defined so as to exclude the right to do business. Section 20 of the Clayton Act was virtually copied with the enumeration of the lines of conduct which might not be enjoined or held illegal in any sort of action. Witte notes that from its adaptation by the council in 1915 until 1919, the "model" state anti injunction bill was introduced in nearly every state legislature and in many of them more gc than once. Almost all of the state anti injunction laws passed since the turn of the century had the heart taken out of them by the decision of the united States Supreme Court in the Truax v. Corrigan case. As a result of this 1921 hear ing, the court held unconstitutional the Arizona anti Injunction statute as it was construed by the State Supreme Court. It is because of this action and effect that this state case is highly significant and has therefore been included among the other major events shaping the course of labor Injunction application. 85Ibid. 190 The Truax v. Corrigan Cage Some years after passage of the Arizona anti Injunc tion statute this law came up for review before the Uhited States Supreme Court. In the Truax v. Corrigan case, the essential point seemed to be whether the state of Arizona had the right to practice a philosophy In regulating In dustrial relations which prohibited interference through Injunctions. The case arose out of a dispute over terms and con ditions of employment In a restaurant located in Bisbee, Arizona.w This was a ten-employee operation co-owned by a William Truax and a William A. Truax. In April of 1916 Truax advised his workers, members of the Cooks and Waiters Union of Bisbee, that wages were to be cut and the dally hours of work increased. The union officials quickly con tacted Truax and urged that working conditions not be changed. This plea was to no avail. On the day following the lowering of wages and lengthening of hours, the cooks and waiters went out on strike. Immediately the union initiated a spirited campaign against Truax.Banners ®^Witney, op. cit.. p. 116. 191 publicizing the strike were displayed widely throughout Bisbee. Various handbills and circulars attacking the owners' methods of treating their workers were distributed. Often sympathizers gathered near the entrance to the restaurant and loudly discussed the strike with the intent of shutting off business. On the whole and unlike many another strike, this dispute had no violence and picketing was peaceful. Plea for an injunction and subsequent denial. Before long it became evident that this boycott and strike publicizing action on the part of the union was beginning to have an effect. Business receipts of the restaurant dropped by over one half within a few days after initiation of the strike. This forced Truax to take court action against the Cooks and Waiters Union of Bisbee, Local Ho. 5, and several other Individuals.**** The union and its officers were charged with engaging in an unlawful and malicious conspiracy to harass the business of the plain tiff. It was claimed that the defendants were financially irresponsible and could not therefore pay damages. 88 Lelberman, op. clt.. p. 120. The issuance of an injunction was thus requested to restrain the defendants from either directly or Indirectly interfering with business through "threats, coercion, picketing, boycotting or from, in any manner, referring to the plaintiff verbally or in writing as 'unfair.'"®9 The defendants denied the allegations and asked for dismissal of the case. It was argued that the strike was undertaken with the lawful purpose of maintaining standards of wages and hours and, therefore, action in support of this aim could not be held to be a conspiracy. Further" more, it was contended that the Arizona statute passed in 1913 specifically prohibited the issuing of injunctions in such cases. This contention by the defendants was sus tained by Judge Alfred G. Lockwood, and the case was dls- 4 j 90 missed. Appeal to the State Supreme Court. The next step for Truax was an appeal of his case to the Arizona State Supreme Court, and this was argued in March of 1918. It was shown before this body that in the plaintiff's own 90Ibid. 193 testimony It had been admitted that the picketing of his premises had been entirely peaceful.9* This was the basis for upholding the defense maintained by the defendants. Arizona law granted the right to organize and to maintain working conditions by peaceful means. Since the strike In this case was for a lawful purpose and the defendants' agreement to act together was lawful, there was no enjoin- able conspiracy in the eyes of this state court.92 A second point concerned union publicity about the Issues In the strike. No right of Truax, the state court held, was violated by publicizing the correct facts of the case and therefore no ground existed for issuance of an injunction on this basis.93 A third point brought forth by the court concerned the Arizona state constitution. This allowed every person to "speak freely and publish on all subjects" with respon sibility being Imposed only for abuse of this right. 91 Arizona Reports, Report of Cases Argued and Deter mined in the Supreme Court of the State of Arizona. Vol. 19 (San Francisco: Bancroft-Whitney Company, 1919), p. 392. 92Ibid.. p. 393. 93Ibid. If an injunction were granted restraining the defendants from publicising their dispute then, the state court felt, there would be a deprivation of constitutional rights being enjoyed by others In the state.The fourth point held that constitutional rights of citizens should not be suspended simply if the citizen happened to be insolvent and financially unable to pay damages. This, it may be remembered, was the reason Truax had originally asked for an injunction. If financial disability were the basis for an injunction, then it was felt that the court should decide what degree of wealth would be required to authorize a citizen to enjoy all the constitutional rights without AC court interference. This of course would be an impos sibility. Thus in this way, and after coming to these con clusions, the Arizona State Supreme Court affirmed the decision by Judge Lockwood of the lower court to dismiss the complaint. Review by the Uhited States Supreme Court. In December of 1918, approximately eight months after the 94iMd 195 Arizona State Supreme Court denied Issuance of an injunc tion, Truax started a new legal action.^6 Although the facts of the new case were the same as in the old, differ ent legal issues were raised. This time it was the con tention of the plaintiff that the Arizona anti injunction statute restricting use of this device in labor disputes was unconstitutional and in violation of the Fourteenth Amendment which forbade any state to take property without due process of law or to deny a citizen the equal protec tion of the law.^ Emphasis on this new legal angle did not result in any change of the situation for Truax. Chief Justice Cunningham of the Arizona court delivered the court's opinion disposing of the new contention. It was held that in the absence of violence, the existence of a local strike Qfl might best be publicized through peaceful picketing. This was considered to be a means of peaceful communication 96 Arizona Reports, Report of Cases Argued and Deter mined in the Supreme Court of the State of Arizona. Vol. 20 (San Francisco: Bancroft-Whitney Company, 1920), p. 7. 97Ibld.. p. 9. "ibid.. p. U. 196 and was therefore "a fundamental civil right." It was further held that "no man has a vested property in the esteem of the public/' and that in the absence of a duty owed by the defendants to the plaintiff to keep their labor dispute secret, the workers and union had a right to publicize it by means of peaceful picketing." The court t concluded that Truax had no rights which were being ! violated by the defendants, and that the Arizona statute was not in conflict with the Fourteenth Amendment. Truax*s application in the new case for an injunction was therefore denied. An appeal on this decision was carried to the United States Supreme Court, under the title of Truax v. Corri gan, the case was argued before this body on April 29 and 30 of 1920, and then reargued on October 5 and 6 of 1921. The counsel for Truax based his argument on the following points:*^ (1) The conduct of the union was unlawful. The handbills distributed were scurrilous, " ibid.. p. 9. 100Ubited States Reports, Cases Adjudged in the Supreme Court. October Term. 1921. Vol. 21 (Washington: Government Printing Office, 1922), pp. 314-16. 197 abusive, and contained threats, proclaimed the plaintiffs "unfair" and invited retaliation by organized labor against the plaintiffs. In addition, the mere fact there was picketing was in itself coercive. (2) The acts of the union constituted an unlawful secondary boycott. (3) The Arizona law which forbid Injunctions in labor disputes was unconstitutional. It made arbitrary and capricious dis tinctions among persons and properties. (4) The law was "class legislation." It denied the plaintiffs equal pro tection of the law since the interpretation of the statute by the Arizona courts discriminated against the plaintiffs and their property as a class. (5) The Arizona statute further deprived plaintiffs of their property rights to the goodwill of the public and of their right to exercise their calling in violation of the Fourteenth Amendment. The defense in the Supreme Court hearing of Truax v. Corrigan was based on the following contentions: First, the sole issue In this case was whether peaceful picketing permitted under the Arizona law was unlawful and deprived Truax of property rights. It was maintained that Truax's 101Ibid.. pp. 317-20. 198 good will was not a property right. Second, picketing by the union was a means of communicating information to the public concerning the labor dispute. Statements of the union were true and within its interests. Since there had been neither disorder nor libel, the defendants had a right of free speech which extended likewise to freedom of pub lication. Such rights were as sacred as the rights of the plaintiff to conduct business. Third, the Arizona law was not a violation of the Fourteenth Amendment. It substanti ally resembled Section 20 of the Clayton Act %riiich forbade federal courts to issue injunctions in labor disputes, and that section was not regarded by the court as depriving anyone of a property right. Thus the Arizona code must similarly be held not to contravene the due process clause of the constitution. And fourth, the Arizona statute was not class legislation because it applied to a whole class of persons— employees, employers, and persons seeking employment— and deprived no one of the equal protection of the laws. On December 19, 1921, the Supreme Court of the Uhited States reversed the Judgments of the lower courts and ruled in favor of Truax.102 It was held that the defendants' plea for court action should have been over ruled and the injunction granted to Truax as requested. Chief Justice Taft delivered the majority opinion on the basis of a split court decision of five to four and ruled 103 that: (1) Means used by the defendants in the strike were illegal. The libelous attacks of the defendants on the plaintiffs, their business, and their customers were distinctly wrongs. (2) The picketing and appeals, "all linked together in a campaign," were an unlawful annoyance and hurtful nuisance in respect to free access to Truax's place of business and, most important, business was a property right. (3) Picketing, as claimed by the defend ants, was not simply an appeal for sympathetic aid of prospective customers or a request to withhold patronage. It was moral coercion by illegal annoyance and obstruction, and was thus plainly a conspiracy. (4) The Fourteenth Amendment was intended to preserve fundamental principles of right and justice by the guarantee of due process. The Arizona law deprived the plaintiffs of a real remedy 102Ibld.■ p. 320. 103Ibid.. pp. 325-40. against wrongs inflicted upon them and, therefore, dis regarded fundamental rights of liberty and property, depriving the plaintiffs of due process. (5) Equal pro tection of the laws guaranteed by the Uhited States Constitution was denied under the Arizona law. It allowed injunctive relief to one party while denying it to another. An injunction could be levied against employers who had committed acts charged in the complaint, but when such acts were committed by employees of the injured person, the injunction was denied. (6) Mo parallel existed between the Arizona statute as interpreted by the Arizona court and Section 20 of the Clayton Act as interpreted by the United States Supreme Court. The latter considered that peaceful picketing was a contradiction in terms and restricted it to one picket for purposes of publicizing a strike. The Arizona court, under the broad state statute, set no limits to picketing. The dissenting opinions in the Truax v. Corrigan case were written by Justice Holmes and Justice Brandeis. Both of these Justices took issue with the majority deci sion. Holmes' opinion was rather brief and sharply worded. Questioned was the concept that the right to do business 201 was a property right and that the rights of ownership could not be substantially curtailed if needed.*®4 One of the high points of his dissent was the comment relating to the Fourteenth Amendment. As Justice Holmes notes, "there is nothing that 1 more deprecate than the use of the Four teenth Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires. Justice Brandeis went to even greater lengths to dissent in the writing of his opinion. Brandeis* dissent was somewhat a dissertation of the law as it related to social and economic problems and covered a considerable portion of the record of the minority.*®^ The heart of his comments lies in the statement concerning business as a property right. To quote Justice Brandeis: . . . this right to carry on business--be it called liberty or property--has value . . . but for cause the right may be interfered with and even be destroyed. . . . Practically every change in the law governing 104Ibid.. p. 342. 105Ibid.. p. 344. 106Ibid., pp. 357-67. 202 the relation of employer and employee must abridge, In soma respect, the liberty or property of one of the parties.107 Significance of the Truax decision. The signifi cance of the Truax case and the decision rendered by the Supreme Court in December of 1921 lies in the fact that states were now deprived of the right to curb their courts as it related to labor injunction abuse. This decision further Influenced many state courts to interpret liberal picketing laws in the narrow sense of this decision. There had now been a clear demonstration that labor could not look to the Supreme Court for the relief thought to have been provided by the 1914 Clayton Act.1®® This very court in 1921 had narrowly construed the Clayton law so as to deprive unions of the protection intended by federal legis lation. By the decision in the Truax case, it also deprived unions of the benefits intended by the state legislation patterned after this federal law.10^ Labor was 1Q7Ibid.. p. 355. 108 Elbert P. Tuttle, "Constitutional Law: Boycott and Picketing: Injunction: Validity of Statute," Cornell Law Quarterly. 7:251-55, April, 1922. 109Ibid.. p. 253. convinced that judicial power was being applied against unions deliberately to thwart any favorable legislative Intentions toward labor. Additional political pressure by unions and Congressional observance of the frequent abuses resulting from violation of the Clayton Act finally aroused Congress, after eighteen years, to the necessity of a new legal code. The result was passage of the Norris-LaGuardia Anti Injunction Act of 1932 by an overwhelming vote of both houses. CHAPTER V THE FEDERAL ANTI INJUNCTION ACT OF 1932 Historical evidence dating from the introduction of the labor Injunction in the late 1800's through the 1920fs has demonstrated that the influence of government lay on the side of employers when the equity power of the courts was exercised in labor disputes. The coming of the Great Depression, however, was to reverse this situation as a consequence of the profound change occurring in the climate of social thought, relative to the place of unions in society. In great measure, the arrival of this event was to result directly in passage of legislation by Congress and by state government to provide a more favorable legal structure for the operation of unionism. The Federal Anti Injunction Act of 1932, also re ferred to as the Norris-LaGuardia Act, was the first expression of this new legislative policy. Its intended purpose was essentially to neutralize the power of the 204 205 federal courts In labor disputes by regulation of the substance and the procedure of the labor Injunction. Along these lines It achieved a highly significant measure of success. In subsequent labor dispute cases heard after 1932, the Norris-LaGuardia Act was treated quite favorably by the courts. This was In sharp contrast to the experi ences of labor with the Clayton Act when the Supreme Court Interpreted this legislation Into Ineffectiveness. Perhaps this post-1930 treatment could have been expected In view of the fact that the judiciary could not effectively Isolate Itself from the forces of social thought which had undergone such a drastic change. The effect of the Norris-LaGuardia Act was to pro vide unions with a considerably larger area In which to carry on their activities without court Interference. It should be noted, however, that this law did not confer any new rights on workers. It merely adjusted what had been, up to that time, an Inherently Inequitable situation. In Its approach, the Norris-LaGuardia legislation served to implement its basic objective which was the containment of the Influence of the federal courts in labor disputes. Among other things it deprived the federal courts of the 206 power to enforce the "yellow dog" contract, denied them the right to enjoin peaceful strikes regardless of the purpose of the strike, and established a carefully drawn up procedure to regulate the issuance of the labor injunction when the law did not forbid application. Many of these same accomplishments also were achieved by passage of "little Norris-LaGuardia Acts" put through by a number of states to protect workers not covered by the national statute. The opportunity for judicial interpretation of the Norris-LaGuardia Act arose shortly after the passage of this legislation. In spite of the relatively clear terms of the new 1932 law, interpretation by the courts was awaited with great interest. Organized labor in particular was deeply concerned with such construction. Through bitter experience such as the Duplex and Truax decisions which nullified labor fs "Magna Chart a," unions were well aware of the possibility that the judiciary might void the second attempt of Congress to regulate the use of injunc tions in labor disputes. This time the depressed condi tions of the early 1930's and the influence of contempo raneous social thought provided a climate far more 207 favorable to labor. In the Seim case of 1935, the Supreme Court upheld the legality of a state anti Injunction law that was quite similar to the Norris'LaGuardia legislation. A short time later in the Lauf and New Negro Alliance cases, further decisions both strengthened the application of the law and demonstrated its elasticity. As a result of these and other rulings which clearly revealed the full approval by the Supreme Court of the Norrls-LaGu&rdla Act, the uninhibited use of the federal labor injunction was finally checked. It was not until fifteen years later that any modification through legislative action was to affect the stringent regulations placed on the application of the injunctive process. I. THE PERIOD OF INDECISION IN INJUNCTION CONTROL PROGRAMS The action of the Supreme Court in the Duplex and Truax cases effectively checked any progress in the area of injunction control legislation in the years immediately following 1921. Organized labor had been soundly dis illusioned as to the value of the Clayton Act and the success of the model AF of L state anti injunction bill It had so carefully drawn together. For the better part of a decade following these decisions, no state attempted to regulate the use of the labor injunction.* An even worse situation for organized labor was the practice of State Supreme Courts following the precedent of the United States Supreme Court, construing those state anti labor injunction laws passed subsequent to the Clayton Act in a manner so as to render them impotent. 2 With the rate of issuance of labor injunctions continuing unabated, organ ized labor desired legislative relief more strongly than ever. The problem lay, however, in fashioning a law which would effectively limit the equity power of federal courts in labor disputes but would not later be ruled unconstitu tional. Inlunctive Relief Efforts bv the AF of L Experience with the judicial treatment of the Clayton Act and its counterpart in state law began to fill labor leaders with some doubts that any statute could be *Edwin E. Witte, The Government in Labor Disputes (New York: McGraw Hill Book Company, Inc. , 1932), p. 276. 2Ibid.. p. 277. drawn up In a skillful manner which could provide the relief needed. Early reports cited by Childs relating to actions by the Executive Council of the American Federation of Labor and recommendations for congressional action highlight the uncertainty that prevailed for several years after the Duplex decision.^ in the latter part of 1921, a conference was held by several labor attorneys in the offices of the Federation in Washington for the purpose of considering possible courses which might be taken to deal specifically with the injunction problem. A committee appointed from this group developed a proposed bill which could provide relief, but this was never introduced in Congress. The Federation, due to conflicting opinions within the executive ranks, did not want to prejudice cases then pending before the Supreme Court by introduction of a bill at that time.^ The following year another conference was held in the Executive Chamber of the Federation to consider the injunction question and the legal rights of trade unions 3 Harwood L. Childs, Labor and Capital in National Politics (Columbus: The Ohio State University Press, 1930), p. 268. 4Ibid. 210 In industrial disputes.5 During this meeting it was decided that each of the attorneys present should prepare a statement as to the most effective wording which could be used in bills to be presented to Congress. These were then submitted by President Gompers of the AF of L to Professor Sayre and Felix Frankfurter, then a professor at Harvard, for criticism and suggestions.^ Eventually a draft was developed and forwarded by Sayre to the Executive Council setting forth some terms and suggested provisions which could be considered by this body. In the fall of 1923, a meeting was held by Professor Sayre, a Mr. Ralston, who was an attorney for the Feder ation, and Samuel Gompers, which further concerned a bill for injunctive relief. It was agreed at this session that perhaps two separate bills would be required, one regu lating the jurisdiction of equity courts and the other defining what labor might do in industrial disputes.7 These were subsequently prepared. At the suggestion of Professor Sayre, both proposed bills were later submitted 5Ibid. 6Ibid. 7Ibid.. p. 269. 211 to a panel of lawyers for criticism; however nothing appears to have come of this effort in this particular year. Failure to Agree on Proposed Bills There were a number of other drafts under consider ation by the Council during this period, but none of these appeared to receive universal acceptance by AF of L execu tive members. A bill backed by Gompers was considered by Federation members as early as 1924, calling for the removal of all rights of equity courts to issue injunctions Q except in the case of property rights. This proposed measure was not considered acceptable. In 1925, there occurred a discussion concerning the power of Congress to confine controversies relating to contracts of employment to federal law courts, excluding such issues from courts of equity. Gompers' death prevented extended discussions of this particular proposal.^ Later that same year AF of L attorneys considered two possible bills, one dealing with the equity jurisdiction of the federal courts, the other 8Ibid. 8Ibid. 212 with conspiracies in trade and labor disputes. Once again the discussion stage was as far as this proposed remedy was carried. This same situation of uncertainty and indecision was also evident as it related to another program of the Federation. By the mid 1920's all thought of achieving a state model anti injunction bill was abandoned. 10 In the report of the 1925 convention prepared by the Executive Council of this union it was stated that due to differences in state constitutions, "no general form of anti injunction legislation is possible for each and every state. Thus this was the situation as it related to attempts for legis lative relief from the time of the Duplex decision render ing up through the following four or five year period. Action along other lines was, however, also being attempted. II. SUBMISSION OF THE SHIPSTEAD BILL During the presidential campaign of 1928, an attempt was underway to enact a federal anti injunction statute. *®Witte, op. cit.. p. 273. n jfeid. 213 This effort received scent attention In the campaign despite the fact that It was first presented to the Senate In the latter part of the preceding year and In spite of Democratic Party Interest In Injunction control. The bill was Introduced by Senator Henrik Shlpstead of Minnesota on December 12, 1927, and has been referred to as the Shlp stead Bill In references covering this period of labor legislation history. ^ Its significance lies In the fact that the bill focussed attention on the Injunction problem, and strongly Influenced a Senate subcommittee to undertake efforts to draw up a replacement measure. This new version was the bill which later, with changes, was to become the Norris-LaGuardla Act. The Shlpstead Bill expressed In few words what was probably the most sweeping measure affecting Injunctions to come before Congress up to that time. The essence of the proposed measure was a statement which read as follows: "Equity courts shall have jurisdiction to protect property when there Is no remedy at law; for the purpose of deter mining such jurisdiction, nothing shall be held to be 12 Felix Frankfurter and Nathan Greene, The Labor Injunction (New York: The Macmillan Company, 1930), p. 207. 214 property unless It Is tangible and transferable, and all laws and parts of laws Inconsistent herewith are hereby 13 repealed." By the enactment of this bill consisting of only a few lines it was hoped that the entire labor injunc tion question could be settled once and for all. The key idea proposed was that nothing should be deemed "property" within the cognizance of a federal court of equity unless it was "tangible and transferable." The Originator of the Measure The simplicity of this measure could probably be explained by a consideration of the real author of the bill. Senator Shlpstead actually had little interest in the measure which bore his name. It was introduced as a favor to his friend and the bill's originator, Andrew Furuseth, President of the International Seamen's Uhion.^ This union head was a tough, self educated, stubborn sailor termed by Senator Norris as "something of a primitive force," who had devoted a number of years to delving into 13Ibld.. p. 279. op. cit., p. 274. 215 1 s the history of chancery. It had been personally con cluded by Furuseth that the equity courts Issued labor Injunctions on a "strained" definition of property. If, by definition, Intangible property rights were excluded, then It was argued that there could be no labor injunction problem. Actually this same idea lay behind the ill-fated concept of the Clayton Act in the statement that "labor Is not a commodity." Although this approach had been thor oughly killed by later Supreme Court decisions, Furuseth still had stubbornly persuaded Senator Shlpstead to make another attempt at relief on this basis. The Shlpstead Bill was referred to a subcommittee of the Senate Judiciary Committee headed by Senator George W. Norris, the liberal Republican Senator from Nebraska. As chairman appointed to study the measure and to hold such hearings as deemed necessary, Norris appointed Senators Tom Walsh of Montana and John J. Blain of Wis consin as subcommittee associates.*** On February 8, 1928, hearings were opened and were continued until March 22nd. *5George Norris, Fighting Liberal (New York: The Macmillan Company, 1945), p. 310. 16Ibid.. p. 312. 216 Senator Norris was present during all of these sessions and his co-committee workers also devoted almost as much time to the extensive hearings. As Norris has noted In his autobiography, there was no attempt to limit testimony.^ Anyone could appear and present views, with those taking the stand being open to cross examination. The testimony must have been frustrating to the Senate Judiciary sub committee. Host witnesses appearing did not seem to favor the Shlpstead Bill. It was assailed as both unsound and ineffective, not only by representatives of the National Association of Manufacturers and other employer associ ations, but by every lawyer testifying but one, including 1 f t several union attorneys. Relection by the Senate Judiciary Subcp™*ttee The conclusion reached unanimously by Senator Norris and the subcommittee studying the measure was that the bill introduced by Senator Shlpstead, as drawn up by Andrew Furuseth, "did not meet the requirements fully. It was 17Ibid. *®Witte, op. cit.. p. 277. ^Norris, op. clt.. p. 312. 217 particularly feared that If enacted Into law It would be held unconstitutional. The decision was subsequently made to prepare a substitute bill. Senator Shlpstead assured Norris that he would offer no objection. The dilemma of the subcommittee at this point has been summarized rather effectively by Felix Frankfurter: With indomitable tenacity, Mr. Furuseth has persisted in his own conception of legal history and in the espousal of a reform deemed by him the correct legal tradition. There is much that is gallant in the picture of this self-taught seaman challenging with power and skill an entire learned profession. For, almost without exception, the informed opinion of lawyers, even of those most sympathetic with Mr. Furuseth*s aims, regards his proposal as an attempt to throw out the baby with the bath. The Shlpstead Bill condemns many well-settled and bene ficent exercises of equitable Jurisdiction that do not toufch even remotely the Interests of labor.^0 Initiating a new anti injunction bill. With the completion of the hearings on the Shlpstead Bill, the sub- conmittee then proceeded to call upon some noted attorneys who had had "long experience with labor legislation and with the trial of labor cases in the courts.Early in 20 Frankfurter, op. cit.. p. 207. ^Htorris, op. cit.. p. 312. 218 May of 1928, Felix Frankfurter of the Harvard Law School, Donald Rlchberg of Chicago, Professor Herman Ollphant of Johns Hopkins, Francis B. Sayre of Harvard, and Edwin E. Witte, who at that time was of the University of Wisconsin, were invited to Washington. Their collective knowledge of the labor injunction was extensive, and it was hoped that the subcommittee might not only receive counsel from this group but that these five men might also confer and deliberate among themselves in an effort to arrive at a suitable bill. In the biography of Norris it is recalled that this group "locked themselves in" the quarters of the judiciary committee, which was provided for the meeting, "and for forty-eight hours gave their undivided attention and study to every court decision bearing upon the rights of organ- 22 ized labor." * Decisions of the Uhited States Supreme Court were reviewed "with the most scrupulous care, aware that in the great conflict of interest certain to arise from legislation of this character, the constitutionality of the law would be subjected to challenge immediately. "2^ 22Ibid.. p. 313. 219 As a result of this deliberation on the part of the ad visers called in by the Norris subcommittee, a completely new measure was developed which Norris Introduced on May 29, 1928, as a substitute for the Shlpstead bill. This bill was to serve as the basis for the ultimate legisla tion, although some years were to pass before it was put into law by Congress. Delay in presentation to Congress. Almost four years were to elapse between the time the revised bill was prepared and the date it was passed by Congress. The principal reason for this has been discussed by Witte, and this relates basically to divergent views within the union. While the subcommittee bill was being prepared, the AF of L had not been consulted and as a consequence it was attacked as being inadequate by Andrew Furuseth at the union's con vention of 1928.^ The result of this criticism by the apparently influential Furuseth was that support was with held from the Norris bill and the matter was referred to an executive committee of the union. The following year, at the AF of L fall convention in Toronto, the position 24Witte, op. cit.. p. 275. 220 of the union was reversed and the Federation then went on record as endorsing the Norris bill subject to some sug gested minor amendments.^ Congress convened shortly after approval of the measure was given by the AF of L, but it was several months before any action was taken on this federal anti injunction legislation. By the spring of 1930. the form of the measure was complete but it would still be another year and a half before Senator Norris could bring the bill out. This was due to the political composition of Congress as well as to a number of legislative obstacles in the 26 Senate. Important political developments arose during this time, however, and the movement for anti injunction ► legislation made gains. The elections in the fall of 1930 put in a heavy influx of Democrats in both the House and 97 the Senate. This was the party that had taken a stand on anti injunction legislation in earlier political cam paigns and was thus inclined to look favorably on such »ibid. 26 Irving Bernstein. The Lean Years (Boston: Houghton Mifflin Company, 1960). p. 397. 27jbid. 221 measures. The time had arrived for consideration by Con gress for the Norris-LaGuardla Bill. III. ENACTMENT OF THE NORRIS-LAGUARDLA MEASURE A considerable social and economic change had taken place within the country from the time the first version of the Norris-LaGuardla bill was presented to the Senate and the year that It was enacted Into law. Without Investi gating the causes of the events occurring In the early portion of the Great Depression, It Is sufficient to note that changing economic conditions had resulted In the creation of a social climate now strongly favoring greatly Increased participation by the government In the affairs of the country. This greater emphasis on the role of government marked a significant shift in the political philosophy of the nation as compared to that existing in any previous historical period. As part of this new government influence, the "New Deal" of that era was quick to sponsor legislation providing for a more favorable legal environment for the functioning of collective bargaining. 222 The Influence of Contemporaneous Factors Conditions were thus far different in the spring of X932 and, for the first time, far more conducive to passage of an effective federal anti injunction law. As Norris has noted in his biography concerning this point: I knew there had been a considerable shift in senti ment In the country in regard to the legislation. Many of those previously opposed had changed their attitude, and a majority of the members of the Judici ary Committee this time favored the bill. It could not have been better illustrated than by the position taken by Senator Stelwer of Oregon. Not only did he drop his opposition but voted for the bill in exactly the same language which he had previously opposed. Many of the Republican leaders in the Senate swung from opposition to support, either as honest and genuine converts to the purposes of the legislation, or fearful of sentiment that had developed in support of the bill.28 On March 23, 1932, the Norris-LaGuardla Federal Anti Injunction Act was finally passed by overwhelming majori ties in both houses of Congress, and shortly afterwards was signed into law by President Hoover. This bill represented the second attempt by Congress to limit the jurisdiction of federal courts in labor disputes and was successful to that end. The measure proved itself capable of practically sweeping the strike injunction from the federal courts. 28Norris, op. cit.. p. 314. 223 It was designed to effect a substantive change in the law of contracts and to confer immmlties from injunctions that, prior to its enactment, were denied on the ground of infringement upon liberty or property rights.^ The Norris-LaGuardla Act was predicated upon the theory that lower courts are the creations of Congress and not of the Constitution. After March of 1932, under the unamended conditions of this legislation, no court of the United States had jurisdiction to grant any restraining order or injunction In cases growing out of a labor dispute "except in strict conformity with the provisions of this act."^ Significance of the Legislation The passage of the Norris-LaGuardla Act is signifi cant for two principal reasons. First, it provided labor with long overdue relief from the abusive use of the in junction. Second, this act was important for its statement of public policy. As it relates to this latter point, 2Q 7Paul Sultan, Labor Economics (New York: Henry Holt and Company, 1957), p. 414. 30 The Statutes at Large of the united States of America from March 1931 to March 1933. Vol. XLVII (Washing ton: Ubited States Government Printing Office, 1933), p. 70. it had never been common practice prior to 1932 to precede such legislation by a statement o£ policy. Its inclusion in Section 2 was to justify the provisions of the law when eventually reviewed by the Supreme Court so that any "mis interpretation" could be avoided similar to that occurring in cases subsequent to the Clayton Act. Section 2 of the law therefore assumes importance since it specifically puts forth the public policy of the nation In the early 1930's to the effect that workers have the right to organize in unions of their own choosing if they so desire. This was the first time that recognition had been given to the fact that for many years the sympathies of legislatures and the courts had tended to be in favor of property owners. Provisions Relating to Self Organization The significance of this 1932 labor legislation may be observed from an examination of those sections relating to the labor injunction and public policy. Section 2, indicating sanction by the government of the right of self- organization, provided in part: Whereas under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized 225 worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, . . . though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employ ment, and that he shall be free from interference, restraint, or coercion ... in the designation of such representatives or in self-organization. General philosophy of the Act. The general phi losophy of the Norris-LaGuardla Act may be noted from the contents of this section. Congressional justification for this legislation was this indication of the need felt to exist for collective bargaining with the coining, in those days, of a difficult economic period. Collective bargain ing thus became an endorsed policy of the United States. Since evidence clearly pointed to injunction abuse in numerous past instances for purposes of restricting the actions of organized labor along these lines, it was logical for Congress to move from the public policy state ment to the establishment of controls over injunction issuance by federal courts. Regulation of the injunction 31Ibid.. p. 70. 226 per se was only a part of the Intent of Congress. It was the Insulation of industrial relations from court influ ence, however, that constituted the broader goal. This approach of Congress relating to injunction control would probably have been different had the facts indicated court interference in labor management relations in a manner other than through the exercise of equity power. The his tory of labor relations from the 1880's, though, had under scored the fact that the Injunction constituted the modus operand! of the judiciary. Hence, regulation of the equity power of courts was the approach initially selected to solve the over-all problem. Specific Acts Immunized from Injunctive Relief Section 4 of the Norris-LaGuardia Act was designed to correct one of the major abuses growing out of the use of the labor injunction. This was the exercise of power by the courts to decide the lawful and unlawful areas of labor union activities by virtue of their authority to issued injunctions in labor disputes. In light of the earlier abuses and in pursuing the philosophy apparent in Section 2 of this act, Congress imnunlzed certain union conduct from court review. Specific limitations affecting 227 the jurisdiction of federal courts to issue injunctions in "labor disputes" are therefore contained in this particular section of the act. The initial statement in this section declares that "no court of the United States shall have the jurisdiction to issue any restraining order or temporary or permanent Injunction in any case involving or growing out of a labor dispute" to prohibit any person or persons participating i or Interested in such dispute from doing, whether singly •JO or in concert, any of a series of acts. ^ Nine specific union actions which might not be enjoined by the federal courts are listed. All of these had been declared unlawful and in restraint of trade at one time or another in various federal court proceedings. According to Section 4, no United States court might prohibit workers either singly or in combination from (1) ceasing or refusing to work; (2) becoming or remaining a member of a union, regardless of any promise not to do so; (3) paying or withholding strike or unemployment benefits; (4) aiding by lawful means any person participating in a labor dispute who is involved 32Ibid., p. 70. 228 in court action; (5) giving publicity to the facts of any labor dispute by advertising, speaking, or patrolling, or any other method not involving fraud or violence; (6) assembling peaceably or organizing to act in promotion of labor interests in a labor dispute; (7) advising or notifying any person of intention to do any of the acts just mentioned; (8) agreeing with other persons to do or not to do any of the above acts; and (9) advising, urging, or otherwise inducing without fraud or violence other persons to join in doing or not doing the above acts, regardless of any previous promise made by the other per* sons to employers or others.3- * Similarity to the Clayton Act. As might be observed the acts in this enumeration, which are not to be forbidden by any federal court, are similar to those found in Sec* tion 20 of the Clayton Act. Under these restrictions passed in 1932, federal courts were denied the right to forbid striking, peaceful picketing, and the giving or paying of strike benefits or other funds in case of a strike. The secondary boycott was also made legal and 33Ibid., p. 71. non enjolnable unless evidence of fraud or violence existed. These and the other provisions within this sec tion had the effect of virtually limiting Injunctions to the prohibitions of acts of violence and Intimidation, and provided the first real measure of relief for labor since the Injunction was Introduced. The wording used Indicates that the framers of this law were quite aware of the prob lems and abuses that had been associated with the applica tion of this legal device. Little opportunity now existed for varied Interpretation. Thus a major difference between labor'8 earlier "Magna Charta," the Clayton Act, and the Norris-LaGuardla Act was that the latter was far more carefully written. Conditions Permitting Injunction Issuance Section 5 of the Norris-LaGuardla Act was directed against the old common law principle that held that an act which was lawful when done by a single person became unlawful when done In concert by a group. To be more spe cific, It states that no persons engaged In a labor dis pute should be judged a conspiracy because of doing in combination any of the acts enumerated in Section 4.^ 230 Section 6 provides that there be proof of actual participa tion before liability for the unlawful acts of others could be attached to an officer or agent of the union in a labor 35 dispute case. The conditions under which injunctions could still be issued by federal courts after passage of this 1932 legislation were described in Section 7.3* * This latter section drastically overhauled the pro cedure for the issuance of injunctions. A series of standards were established to guide the court in issuing both temporary and permanent labor injunctions. The Norris-LaGuardia Act provides that no court may give in junctive relief unless a hearing is first held to determine the issues involved. Although courts held hearings on injunction petitions prior to this legislation, these were without jury trials and quite frequently were conducted without representatives of labor being present. After 1932 an employer seeking a restraining order was required to produce witnesses to support the unlawful allegations found in his complaint. Temporary injunctions could no longer be issued on the basis of mere sworn affidavits as the 35IbW. 36Ibld.. pp. 71-72. 231 court would have to provide £or the hearing of statements by union witnesses with cross examination being permitted by both parties. Witnesses would be under oath and time would be allotted for full presentation by both sides. Proof of Irreparable injury and lack of adequate remedy. Federal courts may not grant injunctive relief unless the facts of the case indicate that in the absence of an Injunction substantial and irreparable injury will result to property. Prior to Issuance of a temporary or permanent injunction the court must also be satisfied that greater injury will be inflicted upon the complainant by denial of relief than inflicted upon the defendants by the granting of same. Only after this balancing of the rela tive Injuries can the equity power of the courts be exer cised in a labor dispute. Under the terms of the Norris-LaGuardla legislation, the court must be satisfied that the complainant has no adequate remedy at law prior to the granting of equity relief. This provision prevents the issuance of an in junction against a labor union if the court finds that the employer may recover damages resulting from unlawful union activity in trial court proceedings. A few of the 232 considerations which would prompt a court to declare that no remedy at law exists for a particular employer would include (1) financial irresponsibility of the labor union; (2) the fact that an employer would be required to file a multiplicity of suits to recover damages; and (3) the pos sibility that it would be difficult to obtain a jury that would not be sympathetic to the labor union.^ There is still another final provision under Sec tion 7 which must be met before the Norris-LaGuardia Act sanctions the granting of a temporary or permanent injunc tion. This is the requirement that the facts must indicate that local police officers charged with the duty of pro tecting the complainant's property are either unable or unwilling to furnish adequate protection. This provision places the responsibility for the protection of property on the local community rather than upon the federal govern ment. Control of the Blanket Injunction Section 8 of this legislation requires the complain ant to come into court Mwith clean hands/’ every reasonable 37 'Philip Taft, Economics and Problems of Labor (Harrisburg: Stackpole Sons, 1942), p. 607. effort having been made to negotiate the differences exist- 38 ing. Section 9 corrects one of the oldest problems for labor. It has been indicated earlier that one of the most flagrant abuses growing out of the use of the labor in junction involved the "blanket*1 restraining order. The problem lay in the all-inclusive scope of the court order which customarily utilized catch-all phrases. This per mitted courts to enjoin lawful as well as unlawful acts, and enabled Injunctions to be directed against parties not committing unlawful acts as well as those engaged in such conduct. The five men drawing up the original version of the Norris-LaGuardla Bill took such factors into consideration. Section 9 requires that all injunctions issued by federal 39 court8 must be specific in their terminology. Those per sons or organizations to be enjoined in the carrying out of unlawful conduct must be designated by name. This provision eliminates use of the typically ambiguous phrases found in labor injunctions issued prior to 1932 such as the term "all other persons whomsoever.'* 38 Statutes, op. cit.. p. 72. 39Ibid. In addition, the federal courts were required to state clearly the unlawful acts to be enjoined. This is put into the terms that the labor injunction prohibit only "specific acts as may be expressly complained of in the bill of complaint filed. . . ."^0 The effect of this is to eliminate the often used catch-all phrase "in any way interfering with the operation of the complainant's busi ness. ..." These requirements for specific terminology were made applicable to both the temporary restraining order and the permanent Injunction. Significant Innovations Relating to Contempt Proceedings Section 10 provides for expediting the appeal of temporary restraining orders to the circuit court of appeals where they were to take precedence over other matters.^ Section 11 of the Morris-LaGuardia Act contains two significant innovations relating to contempt of court proceedings. First, if a person is charged with contempt of court the accused has the right to a "speedy trial and ^jbid. 41Ibld. 42 public trial by an impartial Jury." As has been indi cated In reviewing the labor relations events of the years preceding 1932, persons charged with contempt had no right to a trial by jury. Such a procedure meant that the same judge who issued an injunction had the power to decide the issue of violation. Quite frequently penalties were im posed on questionable grounds since judges abused this prerogative, and this was particularly the case where the judge was biased against a trade union. Under the Norris- LaGuardia Act, a jury trial for labor injunction violation became the defendant's right with one qualification being Imposed. Jury trial is denied defendants in a labor in junction proceeding under circumstances where contempts are committed in the presence of the court or "so near thereto" as to interfere directly with the administration of jus tice. The second innovation relating to contempt proceed ings is that the person charged with contempt may request 42Ibid. 236 a change of venue.44 This la contained In Section 12. Such a demand for the withdrawal of a judge, however, must be made prior to the hearing on the contempt proceeding. This venue provision within the Norris-LaGuardla Act was obviously interposed to accomplish the same end as the jury provision, i.e., the prevention of bias on the part of the judge. Definition of a "Labor Dispute** The concluding portion of this federal legislation, Section 13, was a most important segment of the law. This went into great detail as to what might constitute a "labor dispute," putting forth a definition which was quite broad. It declared that all the restrictions set forth in the preceding sections should apply to all labor disputes involving "one or more employers or associations of em ployers" and "one or more employees or associations of employees" who were "in the same industry, trade, craft, or occupation" and who might have a "direct or indirect interest therein. "4^ In addition, "the term 1 labor dispute1 45Ibid.. p. 73. 237 Includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons In negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand In the proximate relation of employer and employee."^ For pur poses of Norris-LaGuardla coverage, a labor dispute thus Included any controversy concerning terms of employment or concerning the representation of employees In collective bargaining, regardless of the degree of closeness of the employer-employee relationship. Overcoming a Clayton Act weakness. The Importance of Section 13 lies In its correction of a serious defect In the earlier 1914 federal labor legislation. In Section 20 of the Clayton Act, federal courts were prohibited from restraining certain activities of labor unions growing out of a "labor dispute." However, this term was never defined by Congress with the effect that It provided courts with an opportunity to offer their own definition. ^ The manner 4 6ibid. 47 Notes, "Labor Law? Anti-InjunctIon Statutes: Meaning of 'Labor Dispute,'" New York University Law Quarterly Review. 15:116, November, 1937. in which this Clayton Act provision was stated thus became of primary importance in that it determined the practical effect of the entire 1914 legislation. It has been already noted that the last sentence of Section 20 provided that labor union activity immunized by the statute could not be held to constitute a violation of any lav of the United States. For practical purposes, this meant that in cases where the Clayton Act protected a union activity from a labor injunction, federal courts could not find such con duct to be a violation of the Sherman Antitrust Act. But if it were found that the act of the labor organization did not arise out of a labor dispute, immunity would not apply and the Clayton.Act*s protection for organized labor would be worthless. This latter situation was experienced in the 1921 Duplex case. The court defined the meaning of the term "labor dispute" in a narrow fashion, much to the dis appointment of labor. It was held that for a labor con troversy to fall within the meaning of a labor dispute, under the Clayton Act, the parties to the dispute must stand in the proximate relationship of employer and em ployee. It was for this reason that the secondary boycott 239 involved in the Duplex case, one of the strongest of the union weapons, was found not exempt and thus the protection hoped for under Section 20 was consequently not received. Because of this and other decisions based on the same point, the authors of the Norris-LaGuardia Bill undertook to write a "labor dispute" definition which would nullify the effect of court interpretation. Influence Upon State Legislation The passage of the Norris"LaGuardia Act marked what might be termed a distinct statutory advance for labor in its efforts to free itself from restrictions of the anti trust laws as interpreted by the federal courts. Utader both the Sherman and Clayton Acts, the decisions of the court decided what labor activities were lawful and which were not. The result was that practically everything was held unlawful if any degree of restraint of trade could be proved. The Norris-LaGuardia Act was intended to provide labor with the same rights as a corporation and this repre sented a considerable change from the previous half century of labor union experience under injunction proceedings. Now unions could restrain^trade "reasonably," for a list of specific acts which had been established which could not 240 be enjoined and which also might not be considered as evidence of intent to restrain trade unreasonably. Another significant and favorable effect for labor from passage of the act lay in its influence over state anti injunction legislation. From 1931 to 1939 some eighteen states (Colorado, Connecticut, Idaho, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New York, North Dakota, Oregon, Pennsylvania, Utah, Washington, Wisconsin, and Wyoming) passed laws modeled completely or in a large part on the Norris-LaGuardia I Q Act. The majority of these statutes were put on the books during the 1933 to 1935 upsurge of unionistic, New Deal feeling. Provisions of these laws apparently legal ized most union tactics except, as in the federal act, those involving the use of fraud or violence, and consider ably widened the allowable area of labor disputes. The language of these laws was nevertheless sufficiently broad so that judges were enabled to enjoin non-violent coercion or intimidation by unionists if they desired. During the 1933 to 1940 period, a number of federal district court 48 Prentice Hall Labor Course, State Anti Injunction Laws (New York: Prentice Hall Inc., 1951), Sec. 11,134. 241 judges and state lower court judges almost completely Ignored the respective acts In their Issuance o£ Injunc tions against unions.^9 The courts of appeal, however, often modified and limited these injunctions to violent activities. As regards the constitutionality of state anti injunction laws, there have been mixed experiences. The Supreme Court of the state of Washington, for instance, invalidated, in 1936, part of the Washington law as being an unconstitutional deprivation of employers' rights to equity relief in the courts.^ On the other hand, the supreme courts of other states, such as Oregon and Wis consin, have held their laws constitutional.^ IV. COURT TREATMENT OF ANTI INJUNCTION LEGISLATION Following passage of the Norris-LaGuardia Law organ ized labor was more conservative in its public utterances regarding the value of this federal legislation than it was 49 Ernest Feidler, ”Labor Law— The Norris-LaGuardia Act," Wisconsin Law Review. 11:562, June, 1936. ^Harry A. Millls and Royal E. Montgomery, Organized Labor (Hew York: McGraw Hill Book Company Inc., 1945), p. 648. 242 concerning the Clayton Act. The long series of disappoint ments through judicial Interpretation of the Clayton Act had created uncertainty as to whether the new law would be a true ’ ’ Magna Chart a" or would suffer the fate of its fore runner. In considering cases involving the constitution ality of the Norris-LaGuardia Act, the Utilted States Supreme Court's action in denying two petitions for the review of cases in which the Act was held constitutional indicated that this court was not inclined to view the law as being at odds with the constitution. Indirect Tests of Constitutionality The first case in question in which a Supreme Court hearing was denied was the Levering & Garrigues Company v. Morrin case submitted to this tribunal in 1934. The second case was United Electric Coal Companies v. Rice in which a hearing was denied in 1936. Because these were the first real but indirect tests of Norris-LaGuardia constitu tionality, the events involved are worth mentioning. Levering & Garrigues Company v. Morrin. Action in this case was initiated prior to passage of the 1932 Norris-LaGuardia Act. The plaintiffs were four firms engaged In the fabrication of structural iron and steel for building erection in the New York area and in other eastern seaboard sections.^ This steel was erected under a sub* contract made with a local general contractor. Employed by the plaintiffs were a number of workers hired without regard to union affiliation or non affiliation. Working tinder an open shop arrangement these iron and steel fabri cators represented one of the few unorganized groups within the building trade in New York. The defendants in this case were the President of the International Association of Bridge, Structural, and Ornamental Iron Workers, a Mr. Paul Morrin, and several other local labor unions and their officers and agents. The bill of complaint charged the unions with attempting to force the establishment of a closed union shop through following a number of alleged illegal acts including a boycott action within metropolitan New York City. Owners, architects, and general contractors 52 The Federal Reporter, Second Series, Cases Argued and Determined in the United States Circuit Courts of Appeals. Vol. 61 (2d) (St. Paul: West Publishing Co., 1933), p. 116. 53Ibid.. p. 117. 244 were persuaded, through threats and intimidation, not to deal with the four firms in question. Interference with interstate commerce was also charged since the steel used was brought in from outside the state and the union action was preventing its use.Evidence gathered by a referee assigned by the lower court was sufficient to bear out the charges, and an injunction was subsequently issued to stop the acts set forth in the complaint. The charge of boy* cotting was upheld but violation through interference of interstate commerce was not found since such interference was local in nature.^5 The defendants appealed to the Circuit Court of Appeals on August 23, 1932. At this hearing the decree of the district court was reversed since it was ruled that the allegations in the bill were insufficient to establish federal jurisdiction on the grounds presented. In re* versing the lower court's decision, the district court was ordered to "determine whether recent legislation passed by Congress (Public Act No. 65 approved March 23, 1932)," 54Ibid. 55Ibid.. p. 121. 245 i.e., the Norris-LaGuardia Act, "had any application to 56 further proceedings in this suit." The Supreme Court later reviewed the decision of the Circuit Court of Appeals and issued an opinion on April 10, 1933.^ This upheld the lower court decision which was a reversal of the injunction originally granted. The high tribunal again held with the lower court that federal jurisdiction had not been substantiated. On June 11, 1934, the Circuit Court of Appeals again considered the Levering & Garrigues Company v. Morrin case. This time the Norris-LaGuardia Act served as the basis for a ruling in favor of the defendants. Section 4 enumerating specific acts not subject to an injunction was quoted as well as Section 13 defining a labor dispute.The court stated, "we think that the relief granted in the decree appealed from is in violation of the above statute."^ S6Ibld. 57 ttiited States Reports, Cases Adjudged in the Supreme Court, October Term, 1932, Vol. 289 (Washington: United States Government Printing Office, 1933), p. 109. 58 The Federal Reporter, op. cit.. p. 286. 59ibid. 246 Since the case was held to have grown out of a labor dispute, the acts of the union which fell under Section 4 were therefore not considered enjoinable. As for calling for the invocation of the due process clause by the plain- tiffs in this second hearing, this was denied since "the present statute is in effect nothing more than a limitation affecting remedy rather than property rights.Thus without infringement upon property rights, the decree originally granting the Injunction could be reversed. On October 8, 1934, the Supreme Court denied a hearing of this Circuit Court of Appeals ruling and thus legalized the Norris-LaGuardia Act through its refusal to review the case. Uhited Electric Coal Companies v. Rice. The second case upholding the constitutionality of the Norris- LaGuardia Act was Uhited Electric Coal Companies v. Rice. Iftilike the first case, this involved a ruling which upheld a restraining order against a union under the injunction provisions of the federal anti injunction legislation. 60Ibld., p. 287. 247 This significant event arose as a result of a jurisdic tional dispute between two unions, the United Mine Workers of America and the Progressive Miners of America.The plaintiff involved in this case, actually an innocent third party, was a coal mining company. For some yea^s prior to the early 1930's, the plain tiff had a labor contract with the Uhited Mine Workers calling for the hiring of only men belonging to this union. When this contract expired early in 1932, a splinter group broke away from the United Mine Workers (UMW) and formed the Progressive Miners of America. The Progressives soon sought to oust the UMW from one of the local mine oper ations and demanded recognition from the company as the sole representative of workers at that particular facility. The company was told to sign their contract. To achieve recognition, employees belonging to the Progressives were called off the job.**2 When the plaintiff sought on a num ber of occasions to replace these strikers with other union 61The Federal Reporter, Second Series, Cases Argued and Determined in the Uhited States Circuit Courts of Appeals, Vol. 80 (2d) (St. Paul: West Publishing Co., 1936), p. 2. 248 workers, members of the Progressive Miners picketed company property and resorted to violence. This forced the firm to suspend all operations at this particular site.^ A new contract was eventually signed by the company with the Uhited Mine Workers. With this, the Progressives again demanded recognition but the plaintiff stood fast in refusing to break the agreement. Considerable property damage was then inflicted upon company property by the Progressive Miners of America and over 2,500 armed strikers were used to threaten miners resuming employment.**4 Attempts were promptly made by the plaintiff to have the dispute heard before the Bituminous Coal Labor Board, and at a subsequent hearing the Uhited Mine Workers new con tract was upheld. During the time that violence was occurring, it was shown that local law enforcement officers were "both un willing and unable" to furnish adequate protection to the companyTs property. With damage continuing, the plaintiff then brought suit in the district court against George Rice, head of the Progressives, and others to "restrain 64Ibid.. p. 3. wilful and malicious damage to plaintiff's operation of its coal mine." Relief was denied.6" * The district court claimed that under Sections 1, 2, and 3 of the Norris- * LaGuardia Act the "plaintiff denied striking employees . . . including the defendants . . . freedom of associ ation, self organization, and the designation of repre sentatives of their own choosing," etc. This lower court also maintained that the company had "failed to make every reasonable effort to settle the dispute here involved by negotiation" as required under Section 8 of the Norris- LaGuardia Act, "since it had refused to meet with officers of the Progressives after receiving the demand for a new contract."66 The case was heard by the Circuit Court of Appeals on October 26, 1935. After a review of the facts of the case it was decided that the plaintiff had made a reason able effort to settle the dispute by meeting with repre sentatives of both unions before the Bituminous Coal Labor Board and had attempted to work with both union factions.67 65Ibid.. p. 4. 66Ibid. 67Ibid.. p. 8. 250 Through a liberal quoting of various sections of the Norris-LaGuardia Act, it was ruled that with the occur rence of unlawful acts or acts of violence injunctions could be issued under the federal anti injunction law despite the arguments of the defendants that this was not the intent of Congress in passing the original legisla tion. ^ Thus the district court's refusal to provide injunc tive relief was denied and the decree was reversed, per mitting the Uhited Electric Coal Companies to obtain a restraining order. On March 2, 1936, the United States Supreme Court refused to review the case, thus upholding the Norris-LaGuardia Act.^ The Senn Case Ruling bv the Supreme Court The first direct indication of the judicial fate of the Norris-LaGuardia Act lay in a review by the Supreme Court of a case contesting the validity of a state anti injunction law. This ruling is of interest, and it assumes 68Ibid. ^Halted States Reports, Cases Adjudged in the Supreme Court. October Term. 1935. Vol. 297 (Washington: Uhited States Government Printing Office, 1936), p. 714. 251 a degree of Importance since it revealed the probable court opinion on the provisions of the federal law. It did not, however, determine the constitutionality of the Federal Anti Injunction Law of 1932. The state law involved was a Wisconsin statute passed a year prior to the Norris‘LaGuardia Act. Its pro* visions were in some respects even more strict than those of the federal legislation as they required, for example, r that jury trials must be held in all cases of indirect contempt, "whether or not the act be of a criminal nature."7^ Since its other provisions were similar to those in the Norris‘LaGuardia Law and were intended to protect labor unions, what the United States Supreme Court had consequently to say about the Wisconsin law would be applicable to the 1932 federal anti injunction legislation. If interpreted in a way to reduce its applicability or if the state law were found unconstitutional, then the same result would be experienced by a federal anti injunction measure. In addition, the outcome would affect the status of the many "little Norris-LaGuardia" state anti injunction laws. 7^Wisconsin Statutes. 24th Edition (State of Wis consin, Publisher, 1957), Sec. 103.56. 252 Pre trial events in the case. The case Involving the Wisconsin statute was Seimv. Tile Layers' Protective Union of Milwaukee, Wisconsin. It arose out of an attempt by the Tile Layers' Uhion to compel a Mr. Paul Serai, a small tile laying contractor working out of his home, to sign a union agreement.7* Senn was an independent operator who had never held a union card. In the year 1931, Senn formed a partnership in Milwaukee with one William Neider, a member of the Tile Layers' Protective Uhion who had resigned from this organization to enter business. Senn and Neider, along with one helper, were working in one of the many small businesses experiencing difficult times in the mid 1930's and one in which there was a serious problem of unemployment among tile layers. Severe competition was being faced by both organized and unorganized tile layers struggling to secure what business was available. The Senn Company secured jobs largely because the partners were doing the actual work with the assistance of their hired helper. They were therefore in a position to underbid 71Charles 0. Gregory, Labor and the Law (New York: W. W. Norton and Company, Inc., 1958), p. 293. 253 some of the other contractors working in the Milwaukee area.72 As general business conditions began to improve somewhat and favorable labor laws such as the Wisconsin Anti Injunction Act were being enacted, the Tile Layers* Protective Union in Milwaukee undertook an organizational campaign to secure more work for its organized members. Part of this effort involved signing up tile contractors on a contract calling for the employment of only members 73 of this union. One of the clauses of this contract required the signers to have their work performed only by employees and stipulated that the owners should refrain from using tools themselves. The terms of this requirement were set forth as follows: ARTICLE III. It is definitely understood that no individual, member of a partnership or corporation engaged in the Tile Contracting Business shall work with the tools or act as helper, but that the instal lation of material . . . shall be done by journeymen members of the Tile Layers* Utiion Local #5. * 72Ibid.. p. 294. 73Ibid. Sflsconsin Reports, Cases Determined in the Supreme Court of Wisconsin, Vol. 222 (Chicago: Callaghan and Com- pany, 1937), p. 384. 254 Senn refused to sign with the union because obviously his firm could hardly be supported by the one worker. If the union were willing to draw up an agreement omitting Article III but covering the maintenance of a union wage scale and other standard contract terms then Senn was willing to sign. The union refused the request and cited the reasons on which the article in contention was based.It was further indicated that if Senn's request were granted, then this would discriminate against over half of the tile contractors in Milwaukee who had agreed to this particular provision. With Senn's refusal, the union then informed local building contractors and architects that Senn was "un fair."7* * By doing this the union implied that buildings in which the Senn Company was doing the tile work might be picketed. Eventually this threat was carried out when, in the latter part of 1935, pickets were established at the site where Senn, his partner, and one employee were work* lng. Picketing was of a peaceful nature and conducted 75Ibid.. p. 385. 255 without violence, according to the record. Signs displayed at the site stated, "Let the union tile layers Install your tile work."77 Petitioning for an Injunction. Union picketing soon succeeded In putting Senn virtually out of work. Senn felt that the firm would soon become bankrupt If the union action continued but knew also he faced bankruptcy If the union contract, containing Article III, were signed. An action was therefore instituted in the Milwaukee circuit court in which it was charged that the union was trying to force Senn to cease work as a tile layer. It was requested that an Injunction be issued restraining the Tile Layers' Protective Union and its officers from interfering with business either through picketing the office located in his home or at the various sites where jobs were being 78 secured. As a result of the court hearing, the union agreed to stop following Senn and his employees to jobs and to stop writing to his potential customers declaring that 77Ibid.. p. 386. 78 Albion G. Taylor, Labor and the Supreme Court (Ann Arbor: Braun-Brumfield, Inc., 1961), p. 59. 256 the Senn Company was unfair to labor. Picketing, however, was continued. Because of this partial agreement by the union, the circuit court refused to issue an injunction which would prohibit peaceful picketing.^ Senn then appealed the case to the Wisconsin Supreme Court and asked for an injunction to enjoin further picket" ing. It was claimed that this union activity was injuring his tile laying business and that the objective of the union, which was to require him to refrain from working with his own hands, was unlawful. The application for injunctive relief was denied with the state court pointing to the provisions of the Wisconsin Anti Injunction Law 80 of 1931. It was held that the picketing which ensued was not enjoinable under the state statute since a provision of this law rendered all nonenjoinable conduct lawful for all purposes. Supreme Court hearing and opinion. This decision was thereupon appealed by Senn to the united States Supreme Court on the ground that the Wisconsin Statute was id. ®®Wisconsin Reports, op. clt.. p. 383. 257 unconstitutional since it deprived him of his property 81 without due process of law. As might be noted, this charge against the Wisconsin Anti Injunction Law duplicated that levied against the Arizona Anti Injunction Law which was held unconstitutional in Truax v. Corrigan. Senn's case was argued before the Supreme Court on March 31st and April 1st of 1937. By a five to four decision, the Wis consin court's denial of Injunctive relief was upheld as well as the constitutionality of the Wisconsin statute.®2 The question before the court was whether the Wis consin Law violated the due process and equal protection clauses of the fourteenth amendment. The majority opinion was delivered by* justice Brandeis. It was pointed out that the end sought by the union was not unlawful or malicious for, it was maintained, the union rule was reasonable and "adopted by the defendant out of the neces sities of employment within the industry and for the pro tection of themselves as workers and craftsmen in the 81 Uhited States Reports, Cases Adjudged in the Supreme Court, October Term, 1936, Vol. 301 (Washington: Uhited States Government Printing Office, 1938), p. 469. 82Ibid.. p. 482. 258 83 industry." It was conceded by Brandeis that the pub licity given the labor dispute by the union may be annoying to Senn. But, it was declared, "such annoyance, like that often suffered from publicity in other connections, is not an invasion of the liberty guaranteed by the Constitution. Unions may request by picketing that the public withhold patronage from an employer 'unfair to organized labor* and bestow it on unionized firms."84 The basis of his argument was a comparison of union picketing with merchants who compete with one another by means of advertisements in the papers, circulars, or in window displays. Brandeis reasoned that if this type of merchant advertising did not violate the Constitution, then a union publicity campaign carried on "peacefully and truthfully" would also be law- f»i.83 Other arguments in the majority opinion by Brandeis also serve to reflect his basic philosophy and leaning which can be seen so clearly in many of the decisions 83Ibid., p. 480. 84Ibid.. p. 482. 85Ibid., p. 481. 259 rendered by this Supreme Court Justice. It was noted that members of the union and Senn had a right to strive to earn a living and that Senn had sought to do so through exercise of his individual skill and planning. It was not unlawful if workers by combination seek the same objective. The union, Brandeis maintained, did not desire to injure Senn but the picketing was merely carried on "to acquaint the public with the facts, and, by gaining its support, to induce Senn to unionize his shop." ° The Justice indi- cated that Sexm had an equal opportunity to "disclose the facts in such a manner and in such detail as he deemed desirable, and on the strength of the facts to seek the patronage of the public." Furthermore, if the effect of the picketing prevented Senn from securing jobs, there is no invasion of Constitutional rights for "a hoped-for job 87 is not properly guaranteed by the Constitution." It was in this manner that the decision of the Supreme Court was constructed in the Senn Case, holding that the means of the union and the end being sought was not a violation of the Constitution. It was ruled that 86Ibid.. p. 480. 87Ibld., p. 482. 260 the Wisconsin law, insulating union activities from the injunction, did not deprive Senn of his property without due process of law. With respect to this point, Brandeis declared "if the end sought by the union is not forbidden by the Federal Constitution, the state may authorize work ing men to seek to attain it by combining as pickets, just as it permits corporations and employers to combine in other ways to attain their desired economic ends."88 Mr. Justice Butler presented the dissenting opinion. This was more a denial of the conclusions set forth than a difference in reasoning. The main points in this dis senting opinion were, first, the contention that the object of the union was unlawful. This was a direct contradiction of the majority ruling. Second, it was argued that the picketing in the Senn case was unlawful because "the signs used constitute a misrepresentation of the facts," again a contradiction of the majority opinion.89 As might be noted from the facts of the Senn case and the opinions of the judges, this decision marked a significant change in the attitude of the United States 89Ibid.. p. 491. 261 Supreme Court. Action of practically any nature by organ* ized workers to achieve their alms was no longer unlawful in spite of the fact that it could and did interfere with the right of employers to operate their businesses. This ruling proved to be the forerunner of a long line of Supreme Court decisions rendered during the days of the Great Depression and "new social thought" which were to provide a considerably improved climate for the operation of union activities and a sharp limitation on the issuance of labor injunctions. Establishing Constitutionality Through the Lauf Decision In 1938, one year after the Senn decision, the Supreme Court decided the fate of the Norris-LaGuardia Act. For several years following passage of this legislation, there were sufficient grounds to make it appear that the federal courts would repeat the performance experienced in the post Clayton Act period and destroy the effectiveness of this new law. This seemed evident from the decisions rendered in a number of cases after 1932. Early inter pretation was confused despite the wording of the act, and conflicting rulings were being handed down by various 262 courts. A number of judges in the lower federal courts continued as before and virtually Ignored the act.^ Decisions that irreparable injury was threatened or that no labor dispute existed, as defined by the act, were brought forth. At the other extreme petitions for injunc tions were denied by some judges on the basis that the Norris-LaGuardia Act forbade their Issuance under the 91 circumstances presented in the case. With the decision by the Supreme Court in the Lauf v. E. G. Shinner and Co. case, the validity of the Norris-LaGuardia Act was directly established. This case thus becomes significant not only for this reason but for the fact that it indicated the position of that tribunal toward observance of the procedural requirements of the Norris-LaGuardia Act. The case involved the picketing of five retail meat markets in the city of Milwaukee, Wis consin, and the efforts of a union to organize thirty-five 92 employees of the E. G. Shinner Company, Inc. The union ^®Glenn W. Miller, American Labor and the Government (New York: Prentice Hall Inc., 1948), p. 296. ^Tha Federal Reporter, Second Series, Cases Argued and Determined in the Ufaited States Circuit Courts of Anneals. Vol. 82 (2d) (St. Paul: West Publishing Co., 1956), p. 69. 263 had demanded that the company require its employees to become members of the Amalgamated Meat Cutters and Butcher Workmen of North America, an unincorporated union, as a condition of continued employment. The employer subse quently notified his workers that they were free to join if they wished, but all declined.93 Union coercion to obtain representation. The union then tried to coerce the company into requiring its em ployees to join and to accept the Butchers' Union as the workers' bargaining agent and representative in any matter connected with the employer. To attain this end, a number of steps were taken which caused the firm to seek injunc tive relief from the district court. Accusations against the Butchers' Union were as follows: (1) The union caused false and misleading signs to be placed before the com pany's markets; (2) caused persons who were not Shinner and Company employees to parade and picket before the markets; (3) falsely accused the company of being unfair to organ ized labor in its dealings with employees; (4) molested, 93Ibid 264 annoyed, threatened, and intimidated patrons and prospec- tive patrons of the stores to prevent patronizing; and (5) caused the company to suffer irreparable injury through the continuance of such action despite the fact that none of the Shinner employees were union members nor wished to join any labor organization.^ Lower Court action granting an injunction. At a hearing by the District Court it was held that no labor dispute existed between the parties involved as defined by either the Norris-LaGuardia Act or the Wisconsin statute. It was also found that the company would permit its em ployees "free agency" in the matter of choice of union organization or representation, and that the firm had no adequate remedy at law under the circumstances. An injunction was subsequently issued enjoining the Butchers' Union from coercing Shinner and Company to discharge any employees refusing to join the union, or from forcing the firm to compel its employees to join, from advertising that the company was unfair to organized labor, and from 9* *Ibid.. p. 70. 95Ibid. 265 "persuading" customers and prospective customers from patronizing the meat markets involved.9* * Supreme Court reversal. The Circuit Court of Appeals later supported this ruling of the District Court holding that no labor dispute was involved in light of the 07 circumstances. These lower court decisions were to be reversed by the Supreme Court on February 28, 1938, when Sections 4 and 13 of the Norris'LaGuardia Act were up- 98 held. In hearing the Lauf case, this latter tribunal questioned the lower courts' contention that no labor dispute existed and that the Norris-LaGuardia Act had no bearing on the matter. Quite the contrary. A labor dis pute was held to be in existence both under the meaning of the Federal Anti Injunction Act of 1932 and under the quite similar Wisconsin statute enacted a year earlier. Justice Roberts, in delivering the majority opinion, based the decision on five main criticisms of the District 96Ibid.. p. 72. 97Ibid.. p. 73. 9®Utaited States Reports, Cases Adjudged in the Supreme Court. October Term. 1937. Vol. 303 (Washington: Uhited States Government Printing Office, 1938), p. 324. 266 Court’s "conclusions of law."" First, it was ruled that the lower court had "erred" in holding that no labor dis- pute existed as defined by the Wisconsin statute. Section 103.62 of this law closely followed Section 13 of the Norris-LaGuardia Act. According to Justice Roberts, the Wisconsin lower courts were bound by this section "which has held a controversy indistinguishable from here dis closed to be a labor dispute within the meaning of the statute."100 Second, the District Court erred in not applying the provisions of Section 103.53 of the Wisconsin Labor Code. This particular provision related to certain conduct which was considered legal in labor disputes, and duplicates Section 4 of the Norris-LaGuardia Act. Uhder this state section the actions by the Butchers Union relating to "giving publicity to . . . the existence of, or the facts involved in, any dispute," etc., and advising or urging others not to patronize were ruled lawful and therefore not enjoinable. The injunction issued by the lower court forbidding all picketing, advertising, and such was held " ibid., pp. 327-31. 100Ibid., p. 327. 267 to have been In conflict with the Wisconsin statute per mitting peaceful picketing. The third point pertained to Section 13 of the Norris-LaGuardia Act and its relation to Section 7 of this same federal legislation. The District Court erred, it was maintained, in granting an injunction in the absence of the findings required by this federal law which are "prerequi sites to the exercise of jurisdiction."*’ ®2 Not only was a labor dispute in existence as defined by Section 13 of this act but "all conditions stated in Section 7 which must be met before an injunction could be issued were not com plied with." The statement by the Supreme Court relating to following procedure was quite clear as may be noted from the following: "There can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the United States. The District Court made none of the required findings save as to irreparable injury and lack of remedy at law. It follows that in i m issuing the injunction it exceeded its jurisdiction." 1Q1Ibid.. p. 328. 102Ibid.. p. 329. 1Q3Ibid.. p. 330. 268 Under the fourth point, it was held th the Court of Appeals erred in holding that "declarations of policy in the Norris'LaGuardia Act and the Wisconsin Labor Code to the effect that employees are to have full freedom of association . . . designation of representatives of their own choosing . . . puts this case outside the scope of both acts since respondent cannot accede to the petitioners' demands upon it without disregarding the policy declared by the statutes." According to Justice Roberts, the Supreme Court "finds nothing in the declaration of policy which narrows the definition of a labor dispute as found in the statutes. The rights of the parties and the juris diction of the federal courts are to be determined accord* ing to the express provisions applicable to labor disputes 1 Crfi as so defined." The fifth and final point in the majority opinion related to the need of the lower court passing on the legality of the acts in question initiated by the union to force Shinners* employees into their organization. It was suggested that the case "go back for further proceedings," 104 Ibid. 269 and thus no opinion was expressed on this point. Judgment by the lower court granting the injunction was therefore reversed.105 Without question the decision in the Lauf v. Shinner Company case was a major victory for organized labor and their fight to withdraw the courts from the area of col** lective bargaining. This 1938 ruling affirmed the power of Congress to define and limit the jurisdiction of federal courts, and demonstrated that the Norris**LaGuardia Act would henceforth apply to a wide area of industrial rela tions. Unions would now be protected in their activities regardless of whether or not the disputants stood in the proximate relation of employer and employee. The Lauf decision thus indicated the considerable freedom and favorable support unions were now finding in the changing social and economic climate of the 1930's. 1Q5Ibid.. p. 331. ^^Recent Cases, "Application of the Norris- LaGuardia Anti-Injunction Act When no Employer-Employee Relation Exists," Uhiversitv of Pennsylvania Law Review. 84:1029, June, 1936. 270 The Era of Broad Court Interpretation The same year as the Lauf decision, another case was heard by the Supreme Court which went even further as it related to broad interpretation of the Norris-LaGuardia Act. The extreme limits to which the court was now going to define the term "labor dispute" might be noted from considering its application to a controversy which tech nically Involved neither conditions of employment nor the organization of employees for collective bargaining. The case in question was the New Negro Alliance v. Sanitary Grocery Company, Inc., which arose out of an effort by a negro group to secure better treatment with respect to employment opportunities. The Sanitary Grocery Company had opened a branch store on April 3, 1936, in a predominantly negro section of Washington D.C. It had placed in this new retail outlet only white employees, and this was being objected to by the New Negro Alliance group, an organization composed of negroes organized "for the mutual improvement of its mem bers and the promotion of civic, educational, benevolent, 271 and charitable enterprises.”107 No actual relationship of employer and employees was present between either of the parties or members of either party. The Alliance was not engaged in any business competitive with the Sanitary Grocery Company nor were any of the Alliance members even in the same business or occupation as the firm and its employees. The New Negro Alliance had demanded that the company employ negro help in the new branch store and in others of the firm that were patronized chiefly by negroes. The company refused on the grounds that the demand was arbi trary and that it had a right to employ the workers it wanted with the skills it needed.The Alliance then initiated a picketing campaign which was designed specifi cally to reduce the business of the company. Pickets patrolled in front of the various local stores of the food chain carrying signs reading: "Do Your Part! Buy Where You Can Work! No Negroes Employed Here!"*'^ *®7The Federal Reporter, Second Series, Cases Argued and Determined in the Uhited States Circuit Courts of Appeals. Vol. 92 (2d) (St. Paul: West Publishing Co., 1936), p. 510. IQ8Ibid.. p. 511. 272 An appeal for Injunctive relief from business injury. The company took the dispute before a federal District Court seeking an injunction to restrain the Alliance group from injuring its business. The case was heard and a restraining order subsequently issued enjoin ing all picketing on the ground that there was no labor dispute within the meaning of the Norris-LaGuardia Act. A Circuit Court of Appeals later affirmed the decree. On March 2, 1938, the case was heard before the Supreme Court and the decision rendered on March 28, 1938. In a split decision the court reversed the decision of the lower courts and agreed with the New Negro Alliance that its picketing activities were immunized under the Norris- LaGuardia Act.^^ It held erroneous the conclusion of the lower courts that no labor dispute existed because terms and conditions of employment were not involved. The all-inclusiveness of Norris-LaGuardia*s Section 13. According to Justice Roberts who rendered the majority decision, Section 13 of the federal legislation 11QIbid.. p. 517. ill United States Reports, Vol. 303, op. cit.. p. 560. 273 and the definitions covering a "labor dispute” did per* tain to the situation in this instance. Reference was made to the definition declaring that a labor dispute includes "any controversy concerning terms or conditions of employment . . . regardless of whether or not the dis putants stand in the proximate relation of employer and 119 employee." The New Negro Alliance and the "individual petitioners" were ruled to be "persons interested in the dispute." Section 4 was also upheld, as in the Lauf case, as it related to that portion covering the giving of pub licity to the facts Involved, etc., where no fraud or violence was involved. None of the conditions under Section 7 were held to have been met which would have pro vided injunctive relief. Again the "intent of Congress" was provided by Justice Roberts to the effect that the Norris-LaGuardia Act's purpose was to "extend the prohibitions of the Clayton Act respecting the exercise of jurisdiction by federal courts and to obviate the results of the judicial 113 construction of that Act." Further, quoting Roberts, 113Ibid.. p. 561. 274 "It was Intended that peaceful and orderly dissemination of information by those defined as persons interested in a labor dispute concerning 'terms and conditions of employ ment * in an industry or a plant or a place of business should be lawful."^*4 Thus the District Court, it was declared, had erred in not complying with the provisions of the Norris-LaGuardia Act. The lower court decrees were therefore reversed. Mr. Justice MeReynolds gave the dissenting opinion and one which, in that era of liberal New Deal Supreme Court thinking, comprised one of the few rays of sense coming from that body. It is as follows: Mr. Justice Butler and I cannot accept the view that a "labor dispute" emerges whenever an employer fails to respond to a communication from A, B, and C . . . irrespective of their race, character, reputation, fitness, previous or present employment . . sug gesting displeasure because of his choice of employees and their expectation that in the future he will not fail to select men of their complexion. It seems unbelievable that, in all such circumstances, Congress intended to inhibit courts from extending protection long guaranteed by law and thus, in effect, encourage mobbish interference with the individual's liberty of action. Under the tortured meaning now 114Ibld., p. 563 275 attributed to the words "labor dispute," no employer . . . merchant, manufacturer, builder, cobbler, house** keeper, or what not . . . who prefers helpers of one color or class can find adequate safeguard against intolerable violations of his freedom if members of some other class, religion, race, or color demand that he give them precedence. Design thus to promote strife, encourage trespass, and stimulate intimidation, ought not to be admitted where, as here, not plainly avowed. The ultimate result of the view now approved to the very people whom present petitioners claim to represent, it may be, is prefigured by the grievous plight of minori ties in lands where the law has become a mere politi cal instrument.115 Thus with the coming of the late 1930*s, the Norris- LaGuardia Act and the Supreme-Court-influencing social and economic conditions of the times brought a halt to abusive application of the labor Injunction and swung the pendulum far over to an almost absolute restriction of this legal device. Full approval by the Supreme Court of this federal legislation had finally checked the use of the federal labor injunction. Action by this tribunal had also en couraged and stimulated passage of state labor injunction control legislation. By 1941, seventeen states had enacted injunction control laws which were modeled directly after 115lbid.. p. 564. 276 the Norris-LaGuardia legislation. Its influence was there fore significant. A number of years were to pass before Congress again turned its attention to the passage of federal law affecting the issuance of labor injunctions. CHAPTER VI EVENTS CULMINATING IN THE TAFT-HARTLEY INJUNCTION CONTROL PROVISIONS While Che decade of the 1930*8 proved to be a time of governmental encouragement of unions and trade union activities, the 1940's witnessed somewhat of a reversal as it related to government attitude and the imposition of controls. A growing trend toward restriction was observa ble as early as January of 1941, basically as a consequence of the urgencies of the defense program. The outbreak of World War II had ushered in a period of intensive non belligerent aid to Britain. The Lend Lease bill had been enacted into law, and uninterrupted production of war goods in the heavy industries became a prime consideration. To assure the continuous flow of material from the "arsenal of democracy," President Roosevelt established the National Defense Mediation Board. Its purpose was to resolve those labor-management disputes which could not be resolved by 277 278 the Conciliation Service, and along these lines it achieved a relatively high measure of success. ■ This board was to become the National War Labor Board with the entry of this country into the war, and it dealt with more substantive matters than in its old form. Issues of wages, hours, the maintenance of membership, wage inequities, and other factors relating to the substance of trade union and employment contracts were now matters into which it entered actively. As the war progressed, the nation was faced with major strikes in both the coal and railroad industries and with relatively numerous strikes in a number of other critical fields. The board took an active part in attempting to settle these disputes but was not always successful in resolving differences without the loss of valuable production time. The public consequently became both alarmed and irritated in the face of union wartime strike action and in 1943, over the veto of Presi dent Roosevelt and under severe pressure from the public, Congress passed the Smith-Connally Act. This permitted the government to take possession of a plant if necessary for the prosecution of the war, and any effort to promote a work stoppage or reduction of work while the plant was 279 in the government's possession was prohibited. This act, and legislation passed shortly afterwards by states banning the closed shop and various forms of picketing, showed early Indications of changing public opinion. The postwar period was to record labor trouble on a scale of significant proportions. The lifting of wage and price stabilization controls signaled the abandonment by the unions of their no-strike, no-lockout wartime pledge. Strikes were occurring in practically every seg ment of the economy. Much of the great wave of labor trouble arose in industries basic to industrial production and this did much to limit and restrict the reconversion efforts. General Motors was approached late in 1945 by the United Auto Workers with demands for a 30 per cent increase in wages. With the company's refusal to meet this and other demands, a one hundred and thirteen day strike fol lowed. Early in 1946, the steelworkers struck United States Steel following the rejection of an offered eighteen and a half cent wage increase. During the same period the Uhited Electrical Workers, numbering some 200,000 members, also struck for higher wages along with an equal number of workers in the packing house Industry who were pursuing their particular ends. The public was rather upset by the quick series of walkouts. These strikes, coupled with memories of wartime disputes at a time when many were making the supreme sacrifice, furnished the basis for a storm of protest against "irresponsible and power-mad" union officials. The final crowning blow was the defiance of the federal government by John L. Lewis and the Uhited Mine Workers in the spring of 1946. In this action the government was again forced to seize and operate the coal mines under the still active provisions of the Smith- Connally bill. An injunction was imposed by a federal court, but this was ignored and Lewis and the Uhited Mine Workers (UMW) were later found guilty of civil and criminal contempt. Considerable pressure was building up for legis lative action to curb union power at this point. The victory of the Republican Party and its control of both the House and Senate in the 1946 elections put real momentum in the drive for new labor control legislation. In 1946, the restrictive Case bill would have passed but for the veto of President Truman. In 1947, Congress with its Republican majority, and with the presence of general 281 anti labor sentiment, had both the desire and ability to overcome the presidential veto. Representative Fred Hartley of New Jersey proposed one strict labor control measure which passed the House with a three-to-one vote. The Senate had meanwhile come up with a milder bill, known as the Taft bill. The final measure was a combination of these two Congressional efforts and was entitled the Labor Management Relations Act of 1947, or the Taft-Hartley Act. The passage of this law was to introduce a new era of labor-management relations through its provisions amending the "one-sided" 1935 Wagner Act. I. THE IMMEDIATE PREWAR PERIOD AND LABOR Events of the prewar and Second World War periods were to exert an important effect upon the American labor movement, both with respect to passage of wartime labor control legislation and to the enactment of such control measures in the immediate postwar period. The exercise of considerable union power to accommodate the aims of labor came at a time when the nation and its allies were struggling for survival. This was to lead directly toward a substantial change in the attitude of the public and 282 the government toward unionism. For it was particularly during the wartime years, at a time when the union move* ment was moving forward with ever increasing peaks of membership and influence, that anti union sentiment seemed to find a new source of strength. Since labor legislation was the consequence of these events, it is of interest to examine the influences leading to the Taft-Hartley Act in order fully to appreciate the forces behind this important change of sentiment. Strike Increases and Government Agency Creation The year 1941 was a period in which the number of labor disputes reached a higher total than in any previous year with the single exception of 1937.^* Strikes occurred in the automobile industry, in shipyards, in transports* tlon, in the building trades, in textiles, steel, and in coal mining. There were few industries that escaped work* stoppages which seriously interfered with production. In all, a total of 4,288 strikes involving over 2,000,000 2 workers were recorded in 1941. This was almost twice ^Foster Rhea Dulles, Labor in America (New York: Thomas Y. Crowell Company, 1953), p. 327. 2Ibid. 283 the number of disputes and four times the number of workers as In the previous year. It is estimated that approxi mately 8.4 per cent of the nation's employed industrial wage earners took part in these outbreaks, and 23,000,000 man-days of work were lost. The threats to the defense program by these work stoppages led to the creation of the National Defense Mediation Board in March of 1941. Set up by President Roosevelt, this was a tripartite body consisting of repre sentatives of labor, management, and the public.^ Its pur pose was to resolve those disputes affecting national welfare that could not be resolved by the Conciliation Service, and it had the authority to seek the adjustment of defense industry disputes through either mediation or voluntary arbitration. Its powers did not include enforce ment of its decisions, however, and while it was successful in restoring peace in many instances, more drastic action was to prove necessary on several notable occasions. 3Ibid. ^Paul Sultan, Labor Economics (New York: Henry Holt and Company, 1957), p. 432. 284 One of the major labor disagreements early in the defense effort arose at the North American Aviation plant In Inglewood, California, In the summer of 1941.'* A strike had occurred In which the National Defense Mediation Board had attempted to bring about a settlement. This effort proved to be unsuccessful. It had been alleged that a Communist element within a local of the United Automobile Workers union had encouraged the defiance of the Mediation Board's efforts to end their strike. The national union had urged the acceptance of the Mediation Board's pro posals, but the local had defied the request. President Roosevelt eventually ordered over 2,500 troops Into the plant with fixed bayonets to disperse the pickets and open the facility. Tempers had grown short and the public feared that the Communist element within the union was attempting to sabotage the defense effort. Immediate changes were Incorporated into the draft laws so that striking workers in essential industries would lose their deferred status.^ Many labor leaders were startled at the quick and determined use of military power to crush the 5Ibid.. p. 434. 6Ibid. 285 strike, but the public was growing increasingly nervous about the Irresponsibleness of union behavior. The Uhited Mine Workers Strike of 1941 The climax in the prewar labor disputes and of the troubles of the National Defense Mediation Board in settling these grievances was to be reached, however, in a coal strike that so seriously interrupted production as to threaten the whole defense program. This Involved the United Mine Workers and concerned their demand for a union shop in all bituminous coal mines that were operated by the steel companies.^ Over 95 per cent of the workers in these mines were already members of the United Mine Workers (UMW), but John L. Lewis had decided that times were oppor tune to reinforce and complete union representation by securing a union shop contract. The Defense Mediation Board had wavered on the validity of incorporating such a demand in union contracts and, when the mining dispute came before it for action in late 1941, it refused to accept this condition as a basis for a contract. Lewis consequently Ignored the board and despite President ^Gleim W. Miller, American Labor and the Government (New York: Prentice-Hall Inc., 1948), p. 428. 286 Roosevelt'8 plea to continue operations called a strike that fall which threatened to close the entire steel Industry. A storm of protest arose over this union action both from the press and the public which denounced the "head strong and Insane" leadership which John L. Lewis repre- O sented. Even within the ranks of labor the feeling grew that Lewis was overplaying his hand. Agitation of the public would only lead, It was felt, toward repressive labor legislation. President Roosevelt went on the radio after the strike was called to declare that the country had to have coal and that national production could not be hampered "by the selfish obstruction of a small but danger- Q ous minority of labor leaders." There were rumors that the President was finally ready to accept anti strike legislation then already being proposed in Congress. Ultimately President Roosevelt promised to appoint a spe cial board of arbitrators to review the situation and render a decision which would be binding. This recom mendation for a special board to arbitrate the issue had 8Ibid. ^Dulles, op. clt., p. 328. 287 the effect of seriously undermining the prestige of the Mediation Board which had presumably already resolved the problem. Meantime the country was clamoring for a settlement, but neither the steel companies nor the miners would give in on the union shop issue. By the third week of November, 1941, workers in all steel company owned mines had put down their tools, and soon sympathetic strikes in other areas raised the total of idle men in the coal pits to some 250,000.*^ The steel industry was tied up in the face of a national emergency rapidly coming to a climax. Reports were widespread that President Roosevelt was finally ready to act with some 50,000 troops ordered to take over the mines. Suddenly on November 22nd, the strike was called off when Lewis decided to accept the proposal of President Roosevelt for binding arbitration of the union shop issue by a special three man tribunal.^ The reason for accept ance lay in the makeup of the proposed board picked to rule 10Ibid.. p. 329. ^^Miller, op. cit., p. 429 288 on the Issue. It included John L. Lewis, President Fair** less of Uhited States Steel Corporation and, as an "impar tial" member, John R. Steelman of the Uhited States Conciliation Service. This latter member, Steelman, was an old friend of labor who was known to be sympathetic to the union shop. Thus the outcome of the decision and vote was quite obvious to Lewis. Steelman voted with Lewis to 17 support the union shop provision. The head of the Uhited Mine Workers had won the battle but shortly it appeared that he might lose the war. Congressional reaction and proposed labor control legislation. The public was highly annoyed that Lewis had flaunted the government and the Mediation Board and had disregarded the pressing need for greater production. Reaction to the 1941 coal strike was thus a growing in tensification of the anti labor feeling that had been sweep ing the country ever since the early strikes had broken out in the defense industries. A nation hastily arming for a threatened war had been greatly aroused by the work 12ibid- 289 stoppages In the period before the storm. Public opinion polls, statements of national leaders and newspaper edi torials all indicated a firming of attitudes toward labor. Around and in Congress there were demands for new legisla tion to restrict union power and "safeguard the public interest" against further interruptions to industrial production. The coal strike by the United Mine Workers had brought matters to a head. Within Congress, Representative Howard W. Smith of Virginia had, along with others, sensed the rising anti labor sentiment. He proposed a bill providing for a thirty-day cooling off period before a union could strike in a plant working on defense contracts, forbidding strikes i except after a majority vote by workers by a secret ballot, prohibiting strikes in defense Industries for the closed shop, providing that unions guilty of illegal strikes would lose their rights under the Wagner and Norris-LaGuardia Acts, and outlawing jurisdictional strikes and boycotts lO affecting defense contracts. The House approved this anti labor measure by a vote of 252 to 136 on December 3, 1941. The measure was denounced by William Green of ^Dulles, op. cit., p. 330. 290 the AF of L as "an instrument of oppression."^ Phillip Murray of the Congress of Industrial Organization (CIO) declared that "nothing more subversive to American democracy has ever been prepared." While the anti strike bill was pending in the Senate, events began on Decem ber 7th which prevented the bill from becoming law. The war began and attention turned toward matters demanding more immediate action. II. WARTIME DISPUTES AND GOVERNMENT ACTION Following the outbreak of the war, representatives of labor and management agreed at a conference to a "no strike -no- lockout" pledge for the duration. This was in return for a promise that each side would be represented on a government dispute-settlement agency. On January 12, 1942, the National War Labor Board was established by President Roosevelt.This followed the principle of tripartism of the earlier National Defense Mediation Board and replaced this organization. The board was made up ^Fred Witney, Government and Collective Bargaining (New York: J. B. Lippincott Company, 1951), p. 550. 291 of twelve members, four representing the public, four management, and four labor.^ The War Labor Board agreed to rely heavily on the direct negotiations of both parties to a dispute, but if settlement could not be secured, then the dispute could be referred to the board for a ruling. The board could use mediation and voluntary arbitration techniques, but the principles guiding settlement would depend again on the merits of each individual case. It was hoped that a body of common law would evolve from a case- by-case method which would facilitate the settlement of disputes once precedents had been established. Later in the war, in 1942, the War Labor Board was given the authority to administer the wage stabilization program whether issues in the wage stabilization program arose out of a dispute or not.^ This represented a sub stantial increase in the responsibilities of the board. It no longer was basically a dispute settlement agency but a wage stabilization agency. Wage increases involving a price increase could only be approved with the consent ^Miller, o p. cit.. p. 453. 292 of the Director of Economic Stabilization. These provi sions, needless to say, were protested by labor as it was considered that they were being placed in an economic straightjacket. Because of union pressure, permission was given to the board to permit wage adjustments to correct gross inequities or relieve "substandards of living" and make other adjustments necessary for the successful prose cution of the war. On April 8, 1943, with the wage level bulging under the pressure of demands for increases largely to accom modate rising food prices, President Roosevelt Issued an executive order stripping the War Labor Board of authority 18 to grant wage increases on the grounds of inequities. It would now confine wage increases to the limits of the Little Steel Formula which was based on increases in the cost of living during a selected time period.*-9 This ruling eliminated some 10,000 cases before the board. Organized labor again protested vehemently. Later this ruling was modified to permit the board to establish 18Ibid.. p. 455. 19Ibid.. p. 456. 293 occupational groups in various labor markets and assign wage rate brackets for each group. The board was enabled to make adjustments up to the minimum of these rates. The Coal Industry Strike of 1943 The year 1943 was to see again the occurrence of a strike by the Uhited Mine Workers which further exerted a considerable influence upon anti labor sentiment and enact ment of labor legislation. In April of this year, as the time approached for renewal of the annual work contract between the Uhited Mine Workers and the coal operators, John L. Lewis came forth with new wage demands. These were not of a minor nature. Lewis was insisting upon an in crease of pay for his 530,000 miners of $2.00 per day as well as portal-to-portal pay for time traveling under- 20 ground. The union had already received the maximum under the Little Steel Formula, but Lewis had charged that by imposing such a restriction the government had violated its pledge to treat labor fairly during the emergency. The UMW was therefore not bound by the no-strike pledge. The dispute was taken over by the War Labor Board but Lewis ^Sultan, op. cit.. p. 438. 294 refused to recognize its authority. Attacking the board as "prejudiced" and "malignant," he defied this agency and stayed away from the hearings.2* If the demands of the UMW were not met there would be no agreement. Although Lewis would not directly call a strike in wartime, he let it be known that "the miners were unwilling to trespass upon the property of the coal operators in the absence of a con tract."22 Government seizure of the mines. This was all the instruction needed by members of the Uhited Mine Workers. Even before the April 30th contract expiration miners were leaving their jobs and the country was faced with a stop page of coal production. President Roosevelt felt called upon to act promptly in trying to avert a complete strike and subsequently gave orders for government seizure of the 23 coal mines. Operation of the mines was placed under the Secretary of the Interior. On May 2, 1943, President Roosevelt went on the air to appeal to the strikers 21Ibid.. p. 439. 22Dulles, op. cit.. p. 339. 23 Ibid. 295 to return to work. Responsibility for the breakdown in contract negotiations was placed directly on officers of the United Mine Workers. The President declared that Lewis had been a party to labor's no-strike pledge and was thus defying governmental authority by refusing to have any thing to do with the War Labor Board, the agency officially charged with peaceful settlement of wartime disputes.^ Within a few days, the miners returned to work as Lewis announced a fifteen-day truce to try to work out a new contract in cooperation with the Secretary of the Interior. There had been no surrender on the part of the UMW but only the granting of a temporary respite. The dispute was to go on for another six months, punctuated with alternate work stoppages and truces.^ Eventually the mines were returned to private operation by the government since it was expected a settlement could be worked out between the union and the mine operators. The contract terms proposed in these meetings, however, were rejected by the War Labor Board as violating the conditions of 25 Elias Lieberman, Unions Before the Bar (New York: Oxford Book Company, 1960), p. 291. the Little Steel Formula. Lewis, during this period, did not show any willingness to accept the board's authority nor consider the public interest in the production of coal. This last walkout was the final crisis. Half a million miners laid down their tools and stayed away from the pits, 26 obeying the unspoken orders of John L. Lewis. The government again seized the mines and the Secretary of the Interior was now given authority to conclude a special wage agreement which would be limited to the period of 27 government operation. This was again subject to approval by the War Labor Board. The final settlement included portal-to-portal travel pay and an increase in the working time of the miners which amounted to a $1.50 per day addi tion to wages. Lewis may not have won as much as was demanded but to all appearances he had achieved a great victory. Moreover, it was only after the new agreement had been signed that he ordered the miners back to work.28 26Ibid. 27Ibid. 28Ibid. 297 Enactment of the Smith-Connally Measure With the first walkout in the spring of 1943, the resentment of the public over this threat to the war effort ushered in a strong anti labor tide. One of the immediate consequences of this feeling was passage by Congress in June of that year of the War Labor Disputes Act, or the on Smith-Connally Act.The intent of this law was to strengthen government power in dealing with violations of the no-strike-no-lockout pledge and with failure to comply 30 with orders of the War Labor Board. One of the secondary purposes of this act was the introduction of a thirty-day cooling off period for strikes in war plants and this was a provision which was later revived, but in a different form, by the 1947 Taft-Hartley Act.^^ The primary purpose of the law was to provide the President with statutory authority to seize plants, make it a criminal offense to instigate, direct, or aid a strike in a seized plant, and outlaw strikes in privately operated war plants until 29 Carroll R. Daugherty, Labor Problems in American Industry (New York: Houghton Mifflin Company, 1949), p. 1030. 30Ibid. 31Ibid., p. 1031. 298 thirty days notice had been filed and a strike vote taken to indicate whether the workers desired to strike.3^ % Finally, the Smith-Connally bill prohibited all union con tributions to political campaign funds.33 The Smith-Connally bill was vetoed by President Roosevelt. Some of its provisions he approved since he recognized the need to guard against irresponsible unions, but particular opposition was voiced to the thirty-day cooling off periods and strike votes.34 It was indicated to Congress that this ran counter to the no-strike program sponsored by the government and generally supported by labor, in spite of the Uhited Mine Workers arbitrary 35 stand. It was also felt that passage of the legislation would be conducive to labor unrest rather than to indus trial peace. In the temper of the times, Congress paid no attention to President Roosevelt's objections and quickly over-rode his veto. ° Passage was largely the .^Uhited States Code Congressional Service, Laws of the 78th Congress (St. Paul: West Publishing Company, 1944), p. 163. 33Ibid., p. 166. 34Ibid., Sec. 3.41. 35Ibid. 36Ibid.. Sec. 2.117. 299 result of public resentment against any strike in time of war which had been greatly increased by the domineering tactics of John L. Lewis. The feeling of the country in 1943 was reflected by a renewed drive in Congress and in state legislatures to protect the public from strikes and other labor excesses. This support was too widespread at that time for it to be easily dismissed as solely the work of the die-hards in the National Association of Manu facturers or the United States Chamber of Commerce. III. LABOR AND THE RECONVERSION PERIOD The industrial conflicts which occurred during the first year of the reconversion also were to play a major part in creating a climate favorable for the development and passage of the Taft-Hartley measure. In the immediate postwar period, labor was quite concerned with the possi bilities that peace would bring unemployment as well as a lowering of wages due to the shortenint of the wartime work week. This feeling of insecurity, late in 1945, was in creased by predictions put forth by labor, business, and government economists that unemployment might rise to 300 37 ten million in the spring of the following year. Weekly take home pay was declining and widespread layoffs occurred as factories closed for retooling. In addition, there was an over-all advance in living costs as prices moved up rapidly. This occasioned a stiffening of demand for wage increases by the unions. When industry generally rejected these increased demands, the answer of labor was to strike. The Labor-Management Conference of 1945 It was then apparent to the government that steps would shortly have to be taken to settle the mounting num ber of disputes breaking forth in the key industries vital to the reconversion. In November of 1945, President Truman called a labor-management conference from which it was hoped principles might be evolved and machinery set up to 38 avert any major postwar production interruption. Truman felt that the backlog of pent-up consumer demand should be promptly satisfied through the immediate expansion of 37 Harry A. Millis and Emily Clarke Brown, From the Wagner Act to Taft Hartley (Chicago: The Uhiversity of Chicago Press, 1950), p. 305. 38Ibld., p. 307. 301 consumer goods production and that Industrial peace would hasten the economy's readjustment. This conference failed In Its principal purpose as both labor and management rejected any extension of their no-strike no-lockout pledge. However, there were some recommendations agreed upon, including the strengthening of grievance machinery in existing contracts and the ultimate settlement of grievances by voluntary a r b i t r a t i o n . ^ jt was also sug gested that the tkiited States Conciliation Service be strengthened, that unauthorized wildcat strikes be elimi nated and that there be no discrimination by management and the union on the basis of race, creed, color, or sex. Despite such agreements, a test of power was to occur which was to exert significant influences. Labor Unrest in the Postwar Years One of the first of the larger disputes of that era was experienced by General Motors. The Uhited Auto Workers under Walter Reuther approached this company with a sweep" ing demand for a 30 per cent increase in wages, alleging that the profits of this corporation were so enormous that 39Ibid., pp. 308-310. this could be absorbed without price increases.^® Not only was the company astounded by the size and scope of this demand, but was equally so by the additional suggestion that the company open its books so that the union could determine ability to pay. The union struck in November, 1945, after the company denied access to their records and had refused to consider a wage increase of the size demanded. The General Motors strike was to last 113 days, after which the company accepted an 18.5 cent wage adjust ment.^* This settlement later established a pattern for the rest of the country. Other strikes occurring at this time were the United States Steel strike, which started January 15, 1946, and involved over 750,000 workers, and the General Electric and Westinghouse strikes in which 200,000 members of the United Electrical Workers took 42 part. Another 200,000 workers, this time in the packing house trades, also walked off the job the following day on the 16th of January. Labor was pushing hard despite the ^Sultan, op. cit., p. 440. 4IIbid., p. 441. ^Dulles, op. cit.. p. 361. 303 efforts of the government to reduce industrial discord during this vital point in the reconversion effort. The 1946 Bituminous Coal Strike and Injunction Reappearance The railroad and the bituminous coal strikes of early 1946 were to put the final touches on the acute case of nerves from which the public and the government were suffering. Of these two conflicts, the coal strike is of great interest since it was to put the Norris-LaGuardia Act to a severe test in 1946 and 1947. This happened when John L. Lewis and the United Mine Workers embarked on a course of action which raised the issue as to whether or not the Act was applicable in instances where the govern ment functioned in the capacity of an employer. In this dispute the labor injunction, as issued by a federal court, was to make its reappearance on a basis incompatible with the terms of the Norris-LaGuardia legislation. The occur rence of this trend-indicating change in public opinion was in April of 1946 at a time when the two-year UMW-Coal Operators contract, agreed upon during the 1943 wartime strike, had expired.43 The settlements in the major labor 43Ibid., p. 362. 304 disputes just cited had resulted in pronounced gains for labor, so it was inevitable that a breakdown was to take place in negotiations for a new contract with the coal miners. With an eye for timing, John L. Lewis was now ready to go the other unions one better, being hardly one to stand aside when opportunities presented themselves. Increases of wages were the basic issue but, when the operators agreed to accept the current presidential formula of 18.5 cent Increase, Lewis insisted upon additional safe guards for working conditions. In addition, he demanded royalty contributions of seven cents a ton on all future coal mined which were to be paid into a general miners' welfare fund.44 Management naturally protested this "con tribution," declaring that such royalties would amount to $60,000,000 annually. This broke up the conference, and on April 1st some 400,000 miners walked off the job.4^ Efforts by federal conciliators to bring about a settlement in the coal industry produced no results, and on April 10th the union representatives announced that 44Ibid.. p. 363. 305 further negotiations appeared to be useless.During the rest of April no conferences were held and, of course, no coal was produced. With available coal supplies dwindling to the three-week level, the steel Industry was able to operate at little less than half of normal capacity. A nationwide embargo on freight transportation was declared, and cities across the country were compelled to decree "brown outs" to conserve fuel for public utilities. In May the negotiations were resumed but again shortly col lapsed and the growing emergency forced the government to intervene, seizing the mines under the authority of the still active Smith-Connally law.47 The Krug-Lewis Agreement. On May 22, 1946, Secre tary of the Interior Charles Krug officially took over the mines. Within a week Secretary Krug, acting as Coal Administrator, entered Into an agreement with the miners' union, and the resulting contract became known as the Krug- Lewis Agreement. Under its terms, the miners were awarded an 18.5 cents per hour increase in wages, federal safety 46Miller, on. cit., p. 509. 47Ibid. 306 regulations were to be enforced throughout the mine fields, and a five-cent-a-ton royalty was to be paid into a welfare fund jointly administered by the operators and the union. Despite some concessions by Lewis, the UMW had again achieved another major victory. The Krug-Lewis Agreement was made subject to the previous National Bituminous Coal Wage Agreement on April 11, 1943, as amended and supple mented and was to cover "the terms and conditions of employment for the period of government possession.”49 These latter words were to play an important legal role before the end of that year. The coal industry remained peaceful until October of 1946, or approximately five months after the drawing up of the Krug-Lewis Agreement. During that summer and into the early fall the costs of living were going up spectacularly. The consumer price index jumped seven points in July and four more in September.^® At the close of the year, this index was twenty points over the mid summer levels. Within a six month period of time the rise had been greater than 4®Lieberman, op. cit.. p. 292. 49Ibid. ^Dulles, op. cit.. p. 368. 307 the entire three-year period in which the Office of Price Administration controls had been in effect.^ The cause of this increase was said by industry to be wage rate raises while labor contended prices were pushed up due to greed for profits. One of the major causes, however, was a 34 per cent rise in food prices which contributed mightily to the higher living costs. The postwar infla tion was now well underway. Position of the government in the situation. In the face of such events, the month of October found Lewis requesting another conference again to discuss wages, hours, and working rules. It was his claim that under the National Bituminous Coal Wage Agreement the union had the right to reopen the contract upon notice and that, in view of the fact thfet the Krug-Lewis Agreement was made subject to the original 1943 contract, the Uhited Mine Workers still had that right.^2 ^he government did not accept this contention. It was maintained that the Krug-Lewis Agree ment was binding since terms and conditions of employment 52 Lieberman, op. cit., p. 293. 308 were controlled "for the period of Government possession" by the agreement entered Into on May 29, 1946, between the Secretary of the Interior and the President of the United Mine Workers. ^ On October 21, 1946, Lewis sent a letter to Secre tary Krug and presented the issues which were to lead to an historic court decision. According to the UMW chief, the Krug-Lewis Agreement carried forward Section 15 of the National Bituminous Coal Wage Agreement of April 11, 1945.^ Under that section either party to the contract had the privilege of giving ten days notice in writing of a desire for a negotiating conference which the other party was required to attend. Fifteen days after the beginning of the conference either party might give written notice of the termination of the agreement, effective five days after receipt of the notice. Uhder Section 15, Lewis stated that he was exercising his authority to request a conference starting November 1st for the purposes of negotiating new arrangements dealing with wages, hours, ^Sidney C. Sufrin and Robert C. Sedgwick, Labor Law (New York: Thomas Y. Crowell Co., 1954), p. 437. 309 practices, and other pertinent matters within the coal industry. ^ The answer to this request was provided by Captain N. H. Colllson, Coal Mines Administrator. It denied the existence of any contractural basis for requiring negoti ations. According to the government, Section 15 of the 1945 agreement had not been preserved by the Krug-Lewis pact.^6 In fact, Section 15 had been expressly nullified by the clause in the most recent contract providing "that the terms contained herein were to cover the period of government possession." Although the government suggested that any negotiations pertinent to a new agreement should be carried on with the mine owners, it did indicate a willingness to discuss matters affecting mine operation under the terms of the Krug-Lewis Agreement. Conferences began in Washington on November 1st with both the union and the government adhering to their oppos ing views. These lasted for almost two weeks with the pattern of the conferences following the usual route of 56Ibid. 310 most Lewis' "negotiations." Discussions accomplished nothing. On November 15, 1946, Lewis notified Secretary Krug in writing that since negotiations had led to no agreement and since the union had given the necessary notice required under the 1943 contract terms, the Krug- Lewis Agreement would be terminated as of November 20th.57 A copy of this correspondence sent to Krug was forwarded to all Uhited Mine Worker locals "for your official in formation." Secretary Krug then again notified Lewis that he had no power under the Krug-Lewis Agreement or under the law to terminate the contract by a unilateral declaration. At the same time President Truman announced his strong support of the government's position and requested union recon sideration in order to avoid a national crisis. The petition for an injunction. On the 18th of November, 1946, the Uhited States filed a complaint in the District Court for the District of Columbia against the Uhited Mine Workers and John L. Lewis, the latter as 57Ibid., p. 438. 311 defendant both personally and as President of the Union.**® The suit "sought judgment to the effect that the defendants had no power unilaterally to terminate the Krug-Lewis Agreement." It alleged further that Lewis' November 15th notice was in reality a strike notice and thus a temporary restraining order was requested pending a court hearing.^9 Immediately, and without notice to the defendants, the federal court issued a temporary injunction directing the "defendants, their agents, and all persons co-operating with them to cease continuing in effect" Lewis' notice of November 15th to Krug, and, pending a hearing, restraining them from breaching the union's obligations under the Krug- Lewis Agreement. The injunction also restrained the defendants from issuing any publicity to the effect that the original 1945 agreement had been or would be terminated or voided during government possession of the mines. The injunction also forbade the defendants to take any action which would interfere with the jurisdiction of the court 58 Cases Argued and Decided in the Supreme Court of the Uhited States, Book 91, Lawyers' Edition (New York: The Lawyers Co-operative Publishing Company, 1947), p. 887. 59Ibid., p. 889. 312 or would "impair, obstruct, or render fruitless" the court determination of the case. The temporary restraining order was to expire November 27th. Nothing was done by the union or Lewis when the order was served on November 18th. On November 20th, the day set for termination of the Krug-Lewis Agreement in Lewis* notice, the miners stayed away from the pits and HI followed a policy of "no contract, no work." A full blown strike was now in progress in the mines furnishing the major part of the nation's bituminous coal production. The following day, the Uhited States Attorney General filed a petition for a rule to show cause why the defendants should not be punished for contempt, alleging a willful violation of the temporary injunction. The court subse quently set November 25th as the day for the contempt hearing.^2 On the appointed day, the counsel for Lewis and the union informed the court that no action had been taken to withdraw the notice to Krug concerning the termination 6QIbid. 61Ibid., p. 890. 62Ibid. 313 of the contract, and denied court jurisdiction to Issue the Injunction and rule to show cause. Counsel moved to dis- mis8 the complaint and the injunction on the ground that under the Norris-LaGuardia Act the court had no power to issue any restraining order.^ Two days later the court extended the temporary injunction for an additional ten days and later ruled the motion holding that its power to issue the restraining order in this case was not affected be either the Norris-LaGuardia Act or the Clayton Act. The defendants thereupon pleaded not guilty and waived an advisory jury.^ Contempt proceedings against Lewis and the UMW. On November 29, 1946, the trial on the contempt charge began. During this time the miners continued to stay out. Eight witnesses were presented by the government, while Lewis and the union did not present any. On December 3rd Justice Goldsborough of the District Court found the defendants had permitted the November 13th notice to remain outstanding, had encouraged the miners to interfere with the operation ^ Ibid., p. 891. 64Ibid., p. 896. 314 of the mines by a strike and "with the performance of governmental functions/1 and had Interfered with court jurisdiction.^ Defendants were found guilty beyond reasonable doubt of both criminal and civil contempt dating from November 18th. Judgment was entered on December 4th, at which time Lewis was personally fined $10,000 and the defendant union $3,500,000.^^ As might be expected in the intense atmosphere created by these developments, the debate over the use of the injunction was even stronger than the early arguments over the attitude of the miners. Lewis declared in court that he could not acquiesce "in what might be described as the ugly recrudescence of 'government by injunction,*" and labor generally upheld this stand. ^ On the other hand, the characterization by Judge Goldsborough of the strike as Man evil, demoniac, monstrous thing . . . a threat to democratic government itself1 1 won a wide popular response. Three days after the citation for contempt the miners returned to work when Lewis ordered them back in another ^Lieberman, op. clt.. p. 295. 66Ibid.. p. 296. ^Dulles, op. cit.. p. 369. 315 of his temporary truces. At this point arrangements were getting underway for the prompt appeal of the decision to the Supreme Court, and Lewis stated that he wished this tribunal to be free in its deliberations "from public pressure superinduced by the hysteria and frenzy of an £Q economic crisis.' Review by the Supreme Court. On March 6, 1947, the Supreme Court considered the case and rendered a judgment in favor of the federal government. By a 5 to 4 decision, the contempt convictions were upheld although the fine against the union was reduced to $700,000.The major question appeared to be whether the Norris-LaGuardia Act prohibited Injunction Issuance by federal courts in in stances where the government acts in the capacity of an employer. Chief Justice Vinson, rendering the majority opinion, and four concurring associate justices, thought that the Act did not prohibit vise, while the four dissent ing held that both the Norris-LaGuardia Act and the War 68Ibid.. p. 370. 8^Uhited States Reports, Cases Adjudged in the Supreme Court. Vol. 330 (Washington: Uhited States Govern ment Printing Office, 1947), pp. 262-85. 316 Labor Disputes Act outlawed the use o£ injunctions in labor disputes like the UMW case and where the government was involved.7® As to the question of whether the restraining order and the preliminary injunction constituted a viola tion of the Clayton and Norris-LaGuardia Acts, Justice Vinson replied in the negative. He Indicated that which appeared to him to be the major issues by stating: "Here we are concerned only with the Government's right to injunctive relief in a dispute with its own employees," and declared that the right exists by saying, "We accord ingly adhere to our conclusion that the Norris-LaGuardia Act did not affect the jurisdiction of the courts to Issue Injunctions when sought by the United States in a labor 71 dispute with its own employees." The contention of the union that workers in mines seized by the government are not employees of the govern ment was also discussed in the majority opinion given. I Chief Justice Vinson noted: | Congress intended that by virtue of Government seizure a mine shall become, for purposes of production and operation, a government facility in as complete a sense I | | 70Ibid.. p. 278. j 71Ibid., p. 289. 317 as If the Government held full title and ownership. . . . Thus the Government, through utilizing the services of the private managers, has nevertheless retained ultimate control. . . . We hold that in a case such as this, where the Government has seized actual possession of the mines or other facilities, and is operating them, and the relationship between the government and the workers is that of employer and employee, the Norris-LaGuardia Act does not apply.72 The majority opinion and its significance. It was in this manner that the majority opinion of the Supreme Court concluded that the Norris-LaGuardia Act was never intended to apply in cases where the government was the employer of the workers involved in the dispute. This conclusion was reached through scrutiny of the phraseology of the Act in that it applied only in cases "involving or growing out of any labor dispute," and that as defined in 73 the Act a labor dispute occurs between "persons." Although the Norris-LaGuardia Act did not define "person," the majority opinion held that the term was not broad enough to embrace the government.7^ 72Ibid. 73 Samuel L. Rodgers, "Jurisdictional Aspects of Labor Disputes Affecting Interstate Commerce," University of Pittsburgh Law Review. 9:32-34, October, 1947. 74 Uhited States Reports, Vol. 330, op. cit.. p. 277 318 The final question which had to be answered by the Supreme Court was whether Lewis and the United Mine Workers were guilty of civil contempt or criminal contempt. If civil, only compliance with the decree was necessary. If, however, it was held to be criminal contempt it would call for the punishment of the defendants for having ignored the Injunction. Justice Vinson ruled that "their disobedience is punishable as criminal contempt."7^ Justice Murphy disagreed with the Chief Justice, but Vinson had both Justices Burton and Reed on his side. This, how ever, was not enough since two more were needed to make a majority on the contempt question. Justices Frankfurter and Jackson were belatedly to supply this need. Justice Frankfurter had said, "A majority of my brethren find that neither the Norris-LaGuardia Act nor the War Labor Disputes Act limited the power of the dis trict court to issue the orders under review. I have come to the contrary view."^ From this statement it would seem as if Frankfurter would refuse to go along with criminal proceedings designed to mete out punishment for what was 75Ibid.. p. 303. 76Ibid., p. 310. regarded as a void decree, but on the contrary both Frankfurter and Jackson took the position that the majority decision must be respected. To quote from Frankfurter: "When in a real controversy, such as is now here, an appeal is made to law, the issue must be left to the judgment of courts an<J not the personal judgment of one of the parties. This principle is a postulate of our democracy. And so I join the opinion of the court insofar as it sustains the judgment of criminal contempt upon the broad ground of vindicating the process of law. As it relates to other members of the Supreme Court, Justices Black and Douglas both concurred in part and dissented in part with the majority opinion. Justices Murphy and Rutledge dissented without qualification. The significance of the Uhited States v. United Mine Workers decision rendered in 1947 does not lie in the substantial fines imposed upon the union and upon John L. Lewis personally. Nor does it consist of the fact that the Supreme Court majority held the Norris-LaGuardia legisla tion inapplicable when the government is acting as an employer. The significant point lies in the Supreme 77Ibid.. p. 311. 320 Court's rather clearly demonstrated stand that In all emergencies affecting the "welfare of the nation," methods will be adopted to Interpret statutes according to the need 78 of the times. The audacity of Lewis' demands and his defiance of the government had brought forth an unexpected court action and decision which dealt unionism a heavy blow. The Norris-LaGuardia Act no longer furnished a guarantee of almost complete exemption from the federal Injunction. Organized labor had experienced a disappoint ment comparable to that felt after the Duplex and other case decisions rendering Ineffective Sections 6 and 20 of the Clayton Act. The Lewis case ruling was to supply new courage to forces In Congress seeking to amend the National Labor Relations Act of 1935, considered by many as being vastly unfair to management. Only a few months following this decision, Congress passed the Taft-Hartley Act which ! further nullified the almost absolute effect of the 1932 Federal Anti Injunction legislation. 78 C. 0. Gregory, "Government by Injunction Again," The University of Chicago Law Review. 14:365-69, April, 1947. 321 IV. PROPOSED LABOR LEGISLATION INVOLVING INJUNCTIONS PRECEDING TAFT-HARTLEY Prior to passage of the Taft-Hartley legislation there were a number of attempts made to amend the Wagner Act, some dating back as far as the late 1930's. With the coming of the war these early efforts were set aside as business and Congress turned their attention to other matters. As the war progressed and a number of labor con flicts occurred which were capped by the United Mine Workers strike of 1943, there arose a growing agitation for anti-strike legislation and for tools to control union power. The passage of the Smith-Connally Act over the Presidential veto in June of 1943 gave warning that the anti union feeling was growing in Congress and might become a force to be seriously reckoned with by labor. The National Association of Manufacturers published an address of one of its leaders in January, 1944, in which sugges tions were made in rather general terms for amendments to the National Labor Relations and Norris-LaGuardia Acts.^ 79 yE. W. Prentls Jr., Governments Place in Postwar Labor-Management Relations (New York: National Association of Manufacturers, 1944), pp. 322-26. 322 And In 1943 and 1944, the movement for restrictive legis lation In the states made considerable headway, especially In the West and South. During 1945, with the war moving quickly to a close, there were many signs of trouble ahead for labor on both the industrial and legislative fronts. The Ball-Burton - Hatch bill, first Introduced in the Senate in June of 1945, was the initial step In the final serious attempt to revise the federal laws, including those affecting the application of the labor injunction. Other bills were to be submitted that year and in 1946 which proposed permitting the appli cation of the injunction under certain conditions. Many of the terms and conditions written into these various measures submitted to Congress were later to be seen in the provisions of the Labor Management Relations Act of 1947. Thus Taft-Hartley was a single measure largely com posed of these various immediate postwar 'legislative proposals. The Ball-Burton-Hatch Bill The Ball-Burton-Hatch bill of 1945 was an extremely complex and broad measure. It was largely based on the Railway Labor Act with its concept of the obligation 323 to bargain collectively, but It also contained provisions 80 drawn from a number of other sources. All devices pos sible to prevent or mitigate Industrial disputes were Included such as cooling-off periods, adjustment boards for the handling of grievances, conciliation, mediation, volun tary arbitration, and fact finding boards with the power to recommend settlements. In addition, where stoppages occur that work a severe hardship on the public, fact finding boards could be vested with special powers for compulsory arbitration at the discretion of a Federal Labor Relations Board created by the Act. It was proposed that this board would replace the National Labor Relations Board and would have transfered to it all the functions of the 81 United States Conciliation Service. Any violation of such arbitration awards, when action was instituted by the board, could be halted by the Issuance of an injunction. Provision was also made for access to the courts for recovery of damages by parties injured as a result of 82 violations. A further proposal of the Ball-Burton-Hatch 80 Herbert R. Northrup, "A Critique of Pending Labor Legislation," Political Science Quarterly. 61:205-16, 1946. 81Ibid.. p. 211. 82Ibid.. p. 212. 324 bill would have amended the federal law of labor by "equal izing" changes in the unfair labor practice provisions. These would have been applied to employees and unions as well as to employers and, by extensive additions, would have imposed considerable restraints upon concerted activi ties of labor. The Ball-Hatch bill, introduced on December 10, 1945, eliminated the more drastic of these changes* The Wagner Act as such was to be left untouched. The substi tute provided for a Federal Industrial Relations Board concerned only with mediation, voluntary arbitration, and fact finding with a thirty-day waiting period in public interest cases. It was empowered to seek injunctions in the federal courts without the limitations of the Norrls- 83 LaGuardia Act. President Truman*s Ellender Bill On December 3, 1945, President Truman proposed labor legislation in a message to Congress to cope with the then pressing problem of labor disputes. This was presented, incidentally, upon the close of the Labor-Management 83 Minis and Brown, op. cit. . p. 360. Conference which was mentioned earlier in this chapter. The statement put forth by President Truman marked a turn- ing point in the history of labor legislation as it was the first time since the Wagner Act that a President had favored or called for the passage of legislation that would affect labor law in this country. The proposals made at that time were embodied in the Ellender bill. One of these provided for fact-finding panels to be appointed by the President when a dispute in progress or a threatened dis pute seriously affected the national interest or foreign 84 commerce. The proposed panels were to have the power to make recommendations as well as having the responsibility of making the facts of the dispute available to the public. A mandatory cooling off period was provided. There were no specific penalties for violations of the status quo requirements, but injunctions could be obtained to prohibit such actions. The recommendations of the panel were to be purely advisory, and neither of the disputants were bound 85 to accept the recommendations. 84 Ibid.. p. 357. 85Ibid.. p. 358. 326 In addition to the aforementioned measures proposed to change existing labor legislation, there was also the Smith bill of 1945, but this did not include suggestions concerning the labor injunction. All four of the bills contained provisions or ideas which were to be proposed in the important and all**inclusive Case bill which was pre sented to the Seventy-Ninth Congress in 1946 by Representa- 86 tive Francis Case of South Dakota. These four measures were not in themselves new but did represent the accumula tion of almost a decade of suggestions at the national level and a considerable amount of actual achievement along these lines in state legislation. The Omnibus Case Bill and House Passage The original Case bill was presented to the House as a substitute measure for the Truman proposals embodied in the Ellender bill. Substitution was made on January 30, 1946, at a time when hearings on fact-finding had been 87 temporarily suspended. ' This measure, with amendments °°Fred A. Hartley Jr., Our New National Labor Policy (New York: Funk and Wagnalls Company, 1948), p. 19. 87jbid. 327 made on the floor, became the House version of the Case bill. The bill quickly passed the House on February 7th by a vote of 238 to 155, and then went to the Senate.**** Months were to pass before it was considered. In the mean- | time the coal strike that spring was to have its influence ' upon Congress. The Senate Committee on Education and Labor * took the Case bill and removed all provisions of any conse-' go quence. Considerable time was to pass as Senate leaders ! prevented the measure from reaching the floor. But the actions of John L. Lewis and the Uhited Mine Workers were to speed the process. The imposition of the wartime "brownouts" as a result of the lack of coal and the closing j of many industries hastened its consideration. Revision by the Senate. With these events, the Senate finally developed its own proposals to curb the power of labor. As finally enacted, the Senate measure closely paralleled that of the House. This was to be the third and final version of the Case measure. The reflec tion of the earlier labor control measures may be clearly ! I j 1 ****Joel Seidman, American Labor from Defense to j Reconversion (Chicago: The university of Chicago Press, |1953), p. 257. 89Ibid. 328 seen in the main points of the bill. These are as follows: 1. Creation of a Federal Mediation Board to encourage the making and maintenance of agree ments and to aid the parties in settling dis putes . 2. Provision for a sixty-day cooling-off period. 3. Provision for enforcement of the cooling-off period by administrative remedies against employers and deprivation of Wagner Act rights for employees. 4. Provision for fact-finding commissions in major labor disputes involving public utilities to make recoomendations, and with extension of the cooling-off period until five days after the report of the commission. 5. Imposition of stringent penalties against "who ever" interferes by violence or extortion, or conspiracy to do so, with the movement of goods in Interstate coomerce. 6. Proscription of employer contributions to wel fare funds administered exclusively by unions. 7. Exclusion of "supervisors" from the Wagner Act's definition of "employee" but not pro hibiting union membership In them. 8. Provision for damage suits against unions for violation of contract. 9. Provision for action against "wildcat" and rival union violations of collective bargain ing contracts by deprivation of Wagner Act rights for employees involved. 10. Outlawing of secondary boycotts by making them unlawful under the anti trust laws, and removing 329 the limitations of the Norris“LaGuardia Act on the use of injunctions in labor disputes in such cases. Veto of the measure by the President. This measure was vetoed by President Truman after the Senate had sent the bill to the White House for signature. It was con- demned as being a bill that hit at symptoms while ignoring the underlying causes of industrial strife.91 The bill, i it was maintained, would not stop strikes and it would force employees to work under compulsion for private em ployers during peacetime. President Truman declared that the proposed Mediation Board would not be established under sound principles of administration, and that its creation "would not have affected any of the major disputes of the 92 past months."7*’ Congress was asked by the President to postpone passage of any permanent labor relations legisla tion pending a study of the basic causes of labor disputes. The House voted to override the veto but this was defeated when the vote was five short of the necessary two-thirds 90Millis and Brown, op. cit.. p. 361. 9^Seidman, op. cit.. p. 258. 92ibid. 330 majority needed to pass the measure. Although the Case bill failed to pass, the efforts to put this measure together were not entirely wasted. When the problem of labor dispute control was again con sidered in the spring of 1947 much of the earlier legisla tive material was readily available. The Smith amendments, as well as the hearing records, investigations, and reports upon which the earlier bills were based, were at hand. Legislative history ending in passage of the Smith-Connally Act and the material on the effect of its provisions on labor-management relations also was on file. Everything was present for the preparation of the Taft-Hartley legis lation. Those familiar with the 1947 Labor Management Rela tions Act will note a close relationship between the con tents of the final version of the Case bill and its legislative history and Taft-Hartley. Actually there were to be few major provisions in that 1947 labor law which did not have counterparts in legislation previously introduced. Thus these earlier measures, although not acted into law, laid the groundwork for the most recent of the statutes affecting the labor injunction. 331 V. THE LABOR MANAGEMENT RELATIONS ACT OF 1947 Congressional passage of the Taft-Hartley bill on June 23, 1947, over the veto of President Truman, marked the beginning of a new era in Industrial relations. It came at a time when pressure from the public for legisla tive action to curb union power was at a postwar high. The strength of the forces attempting to change basic labor law might be noted from the fact that on the day the Eightieth Congress convened in January of 1947, no less than seventeen bills dealing with labor policy were dropped into the hopper of the House of Representatives.93 Tremendous pressure had been generated in the preceding Congress, and this gained even greater momentum with the 1946 congressional elections in which the Republicans gained a majority In both the House and Senate. It was clear that the Republicans had a "mandate of the people" to put into effect new labor legislation. Bills to change the national labor policy continued to appear in the early weeks of the session, and in the ^Millis and Brown, o p. cit.. p. 363. January State of the Union Message by President Truman, a request was also made by the chief executive again for labor legislation. This occurred on January 6, 1947, when President Truman asked for action to prevent jurisdictional disputes, to prohibit secondary boycotts with "unjusti fiable objectives," to provide for machinery to help solve disputes arising under existing collective bargaining agreements, and to create a temporary joint commission to investigate the whole field of labor-management rela- 94 tions. A report of the commission's recommendations was to be submitted on March 15th. President Truman's pro posals were later embodied in bills sponsored in both houses. Being a member of the Democratic party, the sug gestions were naturally much weaker than Congressional inclinations on such matters but they did set the stage for the legislative history to follow. Representative Hartley and Bill HR 3020 Two separate measures were to serve as the basis for the Taft-Hartley legislation. One was designated HR 3020 94Ibid.. p. 364. 333 and was brought before the House by its author Fred A. Hartley Jr. The other which was presented to the Senate, was known as S 1126 and was the work of Robert Taft. Both were amendments to the 1935 National Labor Relations Act. The Hartley bill provisions included enlarging the National Labor Relations Board to five members, courts were given the authority to review the board's actions, a secret vote was required on an employer's final offer before calling a strike, and "supervisors" were excluded from plant wide unions of production workers. In addition the secondary boycott was outlawed along with the sympathy strike, labor organizations were made responsible for contract violations and could be sued for breach of same, the closed shop was banned, industry wide bargaining was banned, unions having Communist officers were not to be certified, unfair labor practices by unions were prohibited, free speech provisions were included for both employers and union members, and antitrust laws were extended to cover union a c t i v i t y .^5 The Hartley measure, bill HR 3020, was passed by the House 95 National Labor Relations Board, Legislative History of the Labor Management Relations Act. 1947. Vol. I (Washington: Uhited States Government Printing Office, 1948), pp. 158-225. 334 of Representatives on April 17, 1947, by a vote of 308 to 107.96 Senator Taft and Bill S 1126 The Taft bill was somewhat better organized than the Hartley bill but was Just as complicated. The S 1126 measure eliminated supervisors from coverage of the National Labor Relations Act, it abolished the closed shop, permitted action by employers against a union violating any of a series of unfair labor union practices, it enlarged the National Labor Relations Board, provided for petition ing the board in problems involving representation, and 97 so forth. In presenting this to the Senate, stress was placed on the fact that the Wagner Act and the Norris- LaGuardia Act were experimental in nature and that the experiment, though not entirely unsuccessful, showed that changes were necessary.9* * Moreover, the Supreme Court in its interpretation of the 1932 Federal Anti Injunction Act and the Clayton Act placed those who were protected "Hartley, op. cit.. p. 61. 9^National Labor Relations Board, op. cit., pp. 407-55. 98Ibid.. p. 407. 335 by the Wagner legislation beyond the reach of the federal QQ antitrust law. Discussion on the Taft measure began on April 23 and by May 13 the final votes were taken in the Senate. Major amendments were suggested and discussed. The amend ments adopted by the Senate as a Whole were more signifi cant than the relatively minor changes instituted by the House of Representatives in their bill. Among the more important changes accepted by action of the whole body were: (1) making coercion of employees by unions an unfair labor practice, (2) the Ball amendment relating to restric tions on payment to employee representatives, (3) that part of the Taft amendment making unlawful the boycotts, juris dictional strikes and sympathy strikes which were already made unfair labor practices, and providing for direct suits in the courts by any injured party for injunctions or damage suits, (4) an amendment prohibiting certification of unions whose officers were members of the Communist party, and (5) the McClellan amendment providing for ^ Ibid., p. 408. 1Q0Ibid.. p. 1003. 336 "free speech" for employers and employees. The Ball Amendment Enlarging Injunction Application Important amendments that were offered and rejected during the Senate debates on the Taft measure include the following: (1) an amendment which would have restricted industry-wide bargaining, (2) the Ball-Byrd amendment to outlaw the union shop, (3) the 0*Daniel amendment to restrict drastically the application of union security provisions, and (4) that part of the Ball and Taft amend ments on unlawful activities that would have opened up the 102 use of the injunction remedy to private parties. This last amendment is particularly interesting in reviewing the changes which had taken place in Congres sional attitude toward labor unions in the immediate post war period. The Ball amendment was designed to change injunctive procedures under the law to allow the individual to detour the National Labor Relations Board and secure 1Q1Ibid., pp. 505-73. lO^Miiiis and Brown, op. cit.. pp. 379-80. 337 a temporary injunction on his own behalf. Senator Joseph H. Ball, a Republican from Minnesota, had offered this amendment on the basis that the injunction procedure through the National Labor Relations Board (NLRB) was too slow a procedure and that possibly a labor injunction might become entirely unobtainable. This stand by Ball was met with opposition, interestingly enough, even by the more moderate proponents of the new labor legislation.*®4 Senator Robert Taft was against this new concept on the grounds that the proposed injunctive use as offered in the Taft bill would serve the necessary purpose, and that the Ball injunction amendment would be unwise and too punitive in that it restored the full use of the injunction. The Ball amendment went to defeat by a vote of 62 to 28. Thus the federal government was designated the solitary source of injunctive relief under the provisions of the final version of the Taft-Hartley bill. 103 National Labor Relations Board, Legislative History of the Labor Management Relations Act. 1947. Vol. II (Washington: United States Government Printing Office, 1948), p. 1354. 104Ibid.. p. 1364. Provisions of the Final Measure 338 The final version of the Taft-Hartley bill, which came out of a joint House-Senate committee, was a complex measure attempting to deal with a very broad range of problems. Its chief objective was to diminish industrial conflict by controlling its causes. The purpose of the original Wagner Act was claimed to be along these lines but the controlling assumption behind that measure was that the primary cause of industrial strife lay in employer opposi tion to collective bargaining. Increased industrial peace was taken to depend upon the extension of collective bargaining and this was supposed to be accomplished largely by bringing certain employer activities under the law and placing certain legal obligations upon employers. This was followed in principle to such an extent that common judg ment labelled the Wagner Act one-sided. Taft-Hartley philosophy. The Taft-Hartley Act extends the regulating principle to trade union activities and in addition deals with numerous other matters. The central philosophy of the measure is expressed in an initial declaration of policy, and this is found in the 339 first section of the act as was that in the Norris- LaGuardia legislation. This asserts the theme that in dustrial disputes can be diminished "if employers, employees, and labor organizations each recognize under * law one another's legitimate rights in their relations with each other, and above all recognize under law that neither party has any right in its relations with any other to engage in acts or practices which jeopardize the public health, safety, or interest.In keeping with this thought the framers of the law stated: It is the purpose and policy of this Act, in order to promote the full flow of commerce, to prescribe the legitimate rights of both employees and employers in their relations affecting commerce, to provide orderly and peaceful procedures for preventing the inter ference by either with the legitimate rights of the other, to protect the rights of individual employees in their relations with labor organizations whose activities affect commerce, to define and prescribe practices on the part of labor and management which affect commerce and are inimical to the general wel fare, and to protect the rights of the public in connection with labor disputes affecting commerce. It is apparent from reviewing this statement that a shift of position occurred from the original 1935 Uhited States Code, Congressional Service, Laws of the 80th Congress. First Session (St. Paul: West Pub lishing Company, 1947), p. 135. 340 Wagner Act. Unions now acquired obligations to effectuate the rights of employers and of their own members, and the public acquired an explicit interest in the conduct of labor relations that involves protection through controls placed on such relations. Thus the initial declaration of policy suggests the philosophy of a mutuality of rights and obligations among all of the parties at interest. Significant modification of the Wagner Act. There were, however, modifications of the contents of Section 1 of the original 1935 Wagner Act, found in Title I, Sec tion 101 of the 1947 statute which, while not necessarily conflicting with the concept of mutual rights and obliga tions, lay particular stress on the need for controls over union activities as the basis for attaining a balance among the interests of employers, unions, employees, and the public. This position is expressed in the following para graph : Experience has further demonstrated that certain practices by some labor organizations, their officers, and members have the intent or necessary effect of burdening or obstructing commerce by preventing the free flow of goods in such commerce through strikes and other forms of industrial unrest or through con certed activities which impair the interest of the 341 public in the free flow of commerce. The elimination of such practices is a necessary condition to the assurance of the rights herein guaranteed. The old Wagner Act differed in policy from Taft- Hartley in that it made no mention of such practices by unions and rather attributed the bulk of labor disputes to the anti-union practices of employers. Moreover, it seemed to do so in a language that implied a uniform resumption of guilt by all employers in its initial coverage of em ployer practices that denied employees the right to organ ize and bargain collectively. While the initial paragraphs of Section 1 of the old 1935 legislation remained intact, this law was significantly altered by the amendments included. Among the numerous changes made, however, the greatest interest for purposes of this dissertation lies in the provisions relating to the labor injunction. Con gress devoted considerable attention to this subject when framing Taft-Hartley as it is quite prominent among the proceedings dealing with the 1947 Labor Management I07Ibid.. p. 136. 108Ibid.. p. 140. 342 Relations Act. It was earlier noted that Sections 5, 7, 8, and 13 of the 1932 Norris-LaGuardia Anti Injunction Act had the effect of radically reducing the number of labor in junctions granted by federal courts. Moreover, this legis lation substantially affected the federal labor law as it was applied by the courts. The Taft-Hartley Act, however, changed practically all of this to fit into its other provisions imposing extensive restrictions upon what unions may do. Iniunction application against union unfair labor practices. Under the original Wagner Act injunction issu ance was permitted solely against employer violation of a number of specified acts or practices. These unfair labor practices included: (1) interfering with employee organ ization and other legal activities, (2) dominating or interfering with the formation or administration of any labor organization, (3) discriminating against union mem bers in employment or encouraging or discouraging member ship in any organization, (4) discharging or discriminating against an employee because of any action he has brought or been a party to under the act, and (5) refusing to 343 1OQ bargain collectively. ! The labor law enacted in 1947 amended this "one- i jsided" condition although the unfair labor practices i chargeable against management were retained. One of the significant innovations of the Taft-Hartley legislation was to write into law unfair labor practices chargeable against trade unions. A summary of the union unfair labor i practices as set forth in Section 8 (b) of the act follows: I 1. To restrain or coerce employees in their right to join or assist labor organizations or to refrain from joining or assisting a union. [Sec. 8 (b) (1) (A)] 2. To restrain or coerce an employer in the selec- | tion of his representatives for purposes of collective bargaining or adjustment of griev ances. [Sec. 8 (b) (1) (B)] I 3. To cause or attempt to cause an employer to discriminate against an employee in violation of the unlon-shop provisions of the act. [Sec. 8 (b) (2)] 4. To require, under a valid union shop, an initi ation fee for new members that "the Board finds excessive or discriminatory under all circum stances." [Sec. 8 (b) (5)] 5. To refuse to bargain collectively with an em ployer where the union involved is the certified bargaining agent. [Sec. 8 (b) (3)] ^^Miller, op. cit.. p. 205. 344 6. To cause or attempt to cause an employer to pay a sum "in the nature o£ an exaction, for services which are not performed or not to be performed.” [Sec. 8 (b) (6)] 7. To engage In, or encourage employees to engage In, a strike or concerted refusal, In the course of employment, to use or otherwise handle or work on any goods or commodities or to perform any services, where the object Is to force or require: [Sec. 8 (b) (4)] a. b. c. d. e. Violation by the union of these Taft-Hartley provi sions or by an employer of the original Wagner Act unfair labor practices would be sufficient grounds for injunction issuance by the National Labor Relations Board. Any employer or self-employed person to join any labor or employer organization. Any employer or other person to cease using or dealing in the products of another person or to cease doing business with any other person. Another employer to recognize an uncertified union. Any employer to violate a Board certifica tion. Any employer to assign particular work to employees in a particular union or trade unless that employer is failing to con form to an order or certification of the ^^Uhited States Code, op. cit., pp. 1148-49. i n ibid.. p. 1163. 345 Section 101 (Sec. 10) (j) of the Taft-Hartley Act author izes the board to petition the appropriate district court for an injunction after it has issued a complaint alleging the occurrence of an unfair labor practice by either an employer, union, or union agent. This can be issued in advance of a hearing and decision and it remains the option of the board in the majority of cases whether the device should be Issued, dependent upon the circumstances.*^3 An Injunction issued under the optional situation is termed a discretionary injunction. This pre-hearing injunction provision in Taft- Hartley differs from the Wagner Act. Under the old law, the NLRB could do nothing to stop an unfair labor practice until after it had issued a complaint, held hearings, made an order, and then sought enforcement of the order. It could ask the court for injunctive relief on the enforce ment proceedings. This procedure presented difficulties in that it consumed a considerable amount of time, often a year or more. The Taft-Hartley Act thus corrected this 112Ibid.. p. 151. 113Ibid.. p. 1163 346 defect in the 1935 legislation by allowing the NLRB to seek injunctions earlier in the complaint procedure. Secondary boycotts and jurisdictional strikes and injunction procedure. In cases involving certain boycotts and strikes by unions, such as secondary boycotts and jurisdictional strikes, the Taft-Hartley law requires the NLRB to issue what is termed a "mandatory" injunction. The exercise of this particular unfair labor practice on the part of unions was specifically banned by the sweeping Section 8 (b), (A), (B), and (C), and it was mandatory when preliminary investigation gave "reasonable cause to believe" that the charge was true that a complaint be issued seeking an injunction pending final decision by the 114 board. Preliminary investigation of secondary boycott and jurisdictional strike cases against unions was also to k receive priority over other types of cases. By the Act and by delegation of the board in the discretionary as well as in the mandatory injunction pro ceedings set forth under Sections 10 (j) and (1), the General Counsel of the NLRB was to exercise full and final 1U Ibid.. p. 151 347 authority and responsibility.Under the 1947 Act, the General Counsel is the chief administrative officer of the NLRB and is an appointee of the President with con firmation made by the Senate. Formal separation is made between the board itself, which is now a wholly judicial body, and the office of the General Counsel which acts as the investigating, prosecuting, and enforcing branch of the agency. Under the new arrangement, the General Counsel has charge of all attorneys, except the trial examiners and legal assistants to board members, and super vises the staff. Final authority rests with him to under take investigation of charges filed with the board, "to issue complaints therewith," and to prosecute cases before the board. The NLRB passes on representation cases, issues cease and desist orders in complaint cases, and applies to federal courts for temporary enforcement orders or injunc tions. At the time the General Counsel decides to seek an injunction a petition is filed in a federal district court. 115Ibid.. p. 1163. ^Daugherty, op. cit., p. 1041. 348 The procedure Is the same whether a mandatory or discre~ tionary injunction is sought. The petition is generally brought in the name o£ the regional director who alleges, roughly, that a charge of unfair labor practice was filed with the regional director, that he has Investigated the charge, that after such investigation he has reason to believe the charge is true and that a complaint should issue or has issued, as the case may be, that the unfair labor practices are continuing in character, and that unless restrained will continue. The relief requested is an order restraining the respondent from continuing with the conduct alleged until final determination of the matter by the board.117 The General Counsel does not have to prove that an unfair labor practice has been committed. It need only be established that there is good reason to believe that an unfair labor practice was coranitted. Furthermore, the General Counsel does not have to fulfill the requirements of the Norris-LaGuardia Act to obtain the injunction. The Taft-Hartley amendments to the Wagner Act specifically exempts these injunctions from the operation of the 1932 legislation. Injunctions to protect the national health and safety. In addition to the use of an injunction where either employer or union unfair labor practices are U 7 Ibid.. p. 1042. 349 concerned, there is another occasion under the Taft-Hartley legislation involving injunction issuance. This situation deals with another federal agency or office other than the National Labor Relations Board. Under Title II of the 1947 legislation, Sections 206 through 210 introduce a novel provision that goes beyond the amendment of the original law contained in Title I. There has been estab lished a special class of labor disputes which have been termed "national emergencies," and for the handling of these conflicts special procedures have been set up.^® This covers strikes or lock-outs that, if permitted to occur or to continue, will "imperil the national health and safety." Whether a dispute falls into this category is to be determined by the President of the United States. If the President finds the dispute to be of this type, he may appoint a board of inquiry to make findings of fact without recommendations. Upon receipt of the report, the President may then direct the Attorney General to peti tion any federal district court of the United States to i iq enjoin the strike or lock-out. The court is empowered **®Uhited States Code, op. cit.. pp. 158-60. 119Ibid., p. 159. 350 under Taft-Hartley to Issue an Injunction if it is found that (1) the dispute affects an entire industry or a substantial portion of it, and (2) the dispute "imperils the national health and safety." An injunction issued in this case is valid up to the maximum eighty-day "cooling off" period provided by this legislation, but is subject to appeal. With the issuance of an injunction order against strike or lock-out action, which order terminates the legality of a stoppage in progress or forbids the parties to begin a stoppage, the President then may reconvene the board of inquiry. Within a sixty-day period from this date the board must report all the facts, including the employer's last offer of settlement. This report is to be made public. The National Labor Relations Board then is to take a secret ballot among the employees of each employer involved within fifteen additional days to deter mine their wishes regarding the last settlement offer. The board is to certify the results to the Attorney General within a five-day period. 120Ibid.. p. 1163. 121Ibid.. p. 160. 351 If a settlement Is not yet reached at this point, the Attorney General armed with a certification of the election results is required to request the court to dis charge the injunction. At this point and upon this court action the President is then required to submit a full 1 on report with a recommendation to Congress. This is the extent of the provisions established to deal with national emergencies under the 1947 labor law. Extortion and check-off control through injunction issuance. For its final authorization of the labor in junction, the current law makes it enjoinable for either management or labor to violate the provisions of Sec tion 302. This particular portion of the Act makes it unlawful for any employer to pay or employee to receive anything of value not due for services rendered. The intent of this provision is to control union extortion efforts which have been a prime weapon since passage of favorable labor legislation in the 1930's. 122ibid. 123Ibld.. pp. 161-63. 352 Also made enjoinable by the contents of this section is any violation of the stipulated legal check-off pro cedure. The check-off, Whereby the employer automatically deducts the employee's union dues, pension funds, and other assessments from the paycheck of the worker, was made subject to strict regulation. Violating the established restrictions brings forth the issuance of a federal restraining order. Present Status of the Federal Labor Inlunation Despite the fears of organized labor that provi sions within Taft-Hartley directly affecting injunction application would reinstate the pre-1932 situation, events since 1947 have proved these worries to be groundless. Except in cases involving the control of union unfair labor practices, certain check-off and extortion violation control cases, and secondary boycott and jurisdictional disputes, the strength and scope of the contemporary labor injunction has not been noticeably increased. This has been particularly evident in numerous disputes falling into the "national health and safety" category under the 353 1 9A injunct ion-authorizing Sections of Taft-Hartley. The accumulated experience with restraining orders issued under this Section has suggested that (1) strikes can be fore stalled but not prevented by the injunction, (2) there is no guarantee of substantial progress made toward settlement during the Injunction period, (3) all of the procedures of the Act, including the ballot on the last offer of the employers, were often resorted to without success, (4) strikes occurred even after the discharge of the in junction, and (5) the disputes were usually settled after many meetings between the parties aided by government mediators, but not before great injury was caused to the public and the country. Beginning in 1947 and 1948, when some seven "national emergency" cases were involved under Taft- Hartley, and right up to the present 1963 period, the in junction, per se, has failed to place absolute restric tions upon the strike efforts of the American labor movement. And perhaps this might have been expected since 124 Raymond Del Tufo Jr., "The Injunction Under the Labor-Management Relations Act of 1947," Rutgers Uhiver- sity Law Review, 2:252, Summer, 1948. 354 the provisions in Sections 206 through 210 do not outlaw these strikes and lock-outs threatening the public health 125 and safety. The recently concluded International Long shoremen's strike which carried into January of this year and the present Boeing Aircraft conflict, both cases involving Taft-Hartley injunctions, would be illustrations of the Ineffectiveness of such injunction provisions in directly and permanently controlling the abuse of union power. This former strike in particular has caused a con siderable amount of anti union comment to be issued from both political camps as well as from numerous editors and commentators throughout the nation. It is well worth noting, for if the suggestions for controlling union abuses which have poured forth from all sides are any indication of current national feeling, then the present status of the injunction might well be about to change. The situ ation currently appears to be a close parallel to that existing during the 1943 and 1946 United Mine Workers legislation-influencing strikes. 355 The Longshoremen's vs. New York Shipping Association dispute ending in January, 1963, tied up the movement of goods on both the east and gulf coast port areas for a 31-day period. More than 600 ships were idled and over 100,000 men were put out of work during this strike. Costs exceeded $775 million, and sufficient evidence existed to indicate a serious threat to the "national health and safety." Although this conflict was initially stopped by a Taft-Hartley restraining order, the walkout again was instituted after the termination of the required 80-day "cooling-off" period. The threats of Congress for immediate labor legislation and broadly hinted future efforts to amend the 1947 Taft-Hartley Act, which would undoubtedly have expanded injunction usage, was to influ ence the eventual settlement of this strike. It was not, however, until after the appointment by President Kennedy of a special three man labor investigation board headed by Senator Wayne Morris of Oregon, and the issuing of a state ment by the federal government pointing toward compulsory arbitration, that'the parties to the dispute reached agree ment. 126 The Los Angeles Times. January 23, 1963. 356 It would be an understatement to note that conflicts of this nature have not had a significant effect upon the public in recent years. This concern currently appears to be pushing Congress toward another period in which legisla tion will be fashioned to control the unions. Some indica tion of the current national feeling, closely following the pattern preceding Taft-Hartley, may be noted from the quotes taken from a recent newspaper article concerning this strike: Senator Jacob K. Javits (R-N.Y.) on a television pro gram said he plans' to introduce legislation to broaden Presidential powers to deal with such stoppages as the newspaper and longshoremen's strikes which are crippling his home city of New York. Senator Hubert H. Humphrey (D-Mirm.), the Assistant Senate Majority Leader, not only indicated he expects major Presidential action but said, "Congress seems to be in a mood to take a good long look at labor dis putes that tie up the nation over a long period of time."127 Comments by the present Secretary of Labor, W. Milliard Wirtz, also reflect the present mood of the country and that of Congress regarding the need for new labor control legislation. This can be noted from the 127 The Los Angeles Times. February 2, 1963. 357 widely printed Associated Press story appearong on Febru ary 2, 1963: Wlrtz said in a speech to the National Academy of Arbitrators that the nation has been experiencing a period of labor crisis comparable to the many walk outs following the sit down strikes of the 1930*8 and the coal-rail-steel strikes of the late 1940*s. Wlrtz cautioned both labor and management that they are seriously underestimating the strength of public feeling against national emergency strikes "and the brlnksmanship we have been playing in this field." He said labor-management relations have reached a fork in the road. "Neither traditional collective bargain ing procedures nor the present labor dispute laws are working to the public's satisfaction, at least so far as major labor controversies are concerned."12® Still another comment came from Senator Barry Gold- water (R-Ariz.) who is working on proposed legislation which will place tighter curbs on the activities of labor unions and their ability to strike: The Arizona Republican introduced last week a compre hensive labor-management reform act aimed at reducing sharply the bargaining and political power now held by unions. The Goldberg-Wirtz committee suggested to Mr. Kennedy that he seek legislation which would give the President the "flexibility" and authority to force negotiations until they reach the point of settlement in labor management disputes that threaten the health and safety of the nation.129 128 The Los Angeles Times. February 7, 1963. 129 The Los Angeles Times. February 9, 1963. Thus it would appear that within the next year or two major legislation may be proposed and enacted which will have a further effect upon the Labor Management Rela tions Act of 1947. Without question this new law will contain provisions directly affecting labor Injunction application, and so it would seem as if we are again on the threshold of a new life cycle for this eighty year old legal device. CHAPTER VII SUMMARY AND CONCLUSION The application of the Injunction in labor disputes, as observed here in America, has proceeded through a rather remarkable series of stages since its Introduction in the late 1880's. Evidence seems to indicate that the social and economic influences prevailing within any one period of time have exerted a profound effect upon its immediate course and its future development, both as to scope and degree of usage. Perhaps this might be as expected since it is within a legal framework that the injunction oper ates and the makers of laws are customarily quite respon sive to current expressions of sentiment and to what might be termed "changing times." Since this appears to be the case, it thus follows that its status and applicability would largely be dependent upon the strength of the pre vailing forces influencing those responsible for legisla tion and/or the interpretation of the law. This might 360 readily be observed through a consideration of the evolu tionary paths this legal device has followed from the 1880*8 to the present period. The earliest American application of the injunction occurred under conditions far from favorable for furthering the aims of organized labor. This was an era in which "big business’ * exercised tight control over the economy of the country and over the political and judicial powers delegated to preserve the law and order. Considerable change had also occurred as a result of post Civil War industrialization, both in an economic and a social sense. A series of depressions had swept the nation at a time when the labor movement did not possess the underlying strength to withstand such events. The result was an increase in labor disputes on a scale never before observed, earning this period the title of "the great upheaval." One of the new weapons employed by business to con trol mounting labor strife during the 1880*8 was the in junction. This was applied, widely and frequently, in a form so sweeping and so all-inclusive that unions were subject to complete control the moment strike action was threatened or was in effect. Although a relatively high 361 number of the earlier Injunctions were of doubtful legality, employers so controlled the courts that obtaining restrain** ing orders became routine in nature. Quite often these injunctions were issued by any judge, whether or not he was on the bench at the time, and were obtainable without a court hearing. Terms were technical and ambiguous, and frequently court custom permitted the counsel of the em ployer to prepare the formal writ. Application of the injunction in the late nineteenth century was for varied reasons with Issuance becoming common in conflicts where parties maintained an employer- employee relationship. The Sherry v. Perkins case of 1888 witnessed the use of the injunction to prevent strikers from displaying a banner urging workmen not to remain on the job or hire in with that particular company. In the Casey v. Typographical Union dispute, it was used with considerable success to control a union boycott action. In still other cases it was applied to parties not having a close relationship, often to stop sympathetic strikes and union coercion. Success of the injunction in controlling such labor "problems" on a local basis was soon noted with 362 considerable interest by companies having widespread oper ations. It appeared to offer a significant advantage over the then current method of handling disputes since it overcame one of the major obstacles to securing redress for alleged union violations. This was the rather comnon condition of financial irresponsibility widely prevalent among labor unions in the 1880's. Suits directed against unions as entities, union officials and members were fre quently unsatisfactory since recovery of damages was un certain. But with the power of equity courts to issue restraining orders on a "freely available" basis, a highly effective preventative and remedial expedient was provided for the settling of disputes. Injunctions thus became a preferred device for controlling labor with a minimum of time and expense being involved in securing a court order. One of the first major conflicts involving use of the injunction was the South Western railroad strike of 1886 in which it was skillfully applied to influence public opinion. It was in the Burlington Railroad strike of 1888, however, that restraining orders assumed not only a major role in ending the dispute but received their greatest notoriety up to that time. In this case, interestingly 363 enough, injunctions were directed against both a rail carrier connecting with the Burlington road and against the striking Brotherhood. These writs were of the popular "blanket" variety which not only named certain individuals to be enjoined but were directed against "their unknown confederates, whose names when discovered were to be in serted therein." It was small wonder that at the time of the court ruling upholding the Burlington restraining orders the comment was made that the decision "suggested important possibilities." Passage of the Sherman Antitrust Act of 1890 marked the entry of the federal government into the'labor control legislation field. Its enactment and subsequent court interpretation were to provide a firm legal basis for federal issuance of the Injunction. Some question existed as to whether it was intended to apply to organized labor at the time this bill was before Congress. In the debates connected with its passage, Senator John Sherman had declared that combinations of workingmen "were not affected to the slightest degree, nor can they be included in the words or Intent of the bill." Despite this declaration, Senator Sherman felt it necessary to propose an amendment 364 to the near-final version specifically exempting labor, but this was never incorporated into the approved measure. Thus, under the terms set forth In Section 1, "every combination" was to be considered in restraint of trade under certain conditions and therefore illegal. It remained for the courts ultimately to determine the scope of the Sherman Act. This was accomplished in the Debs case arising out of the famed 1894 Pullman strike. Precedents established by this trial required a number of years to nullify, and although the Debs decision did not determine the applicability of the Sherman Act to labor per se, it did uphold labor injunction issuance. For this reason it marks another of the important evolutionary stages of this legal device, a time in which injunction usage reached a peak which was not to be substantially effected for over three decades. The Pullman strike arose out of efforts of workers at the Pullman Palace Car Company to improve their condi tions. During 1893 and 1894, economic conditions within the country were quite depressed. Pullman workers, living in a tightly controlled company town, had experienced wage cuts which were alleged necessary for the company 365 to meet competition. This was despite the fact that the firm enjoyed a near monopoly in the production and control of sleepers on roads over most of the United States. Rents and utility expenses paid by Pullman workers were also substantially above those in surrounding towns, which greatly reduced real income. When the opportunity arose to join the American Railway Union, the majority of the Pullman employees took this step. Subsequent conferences by their new union representative with management failed to improve their rather desperate lot, and a strike eventually was called in the early summer of 1894. This dispute was to spread to twenty-four operating railroads covering the midwest and far west areas when the American Railway Union Imposed a boycott upon the handling of Pullman cars. A General Managers Association, consist ing of representatives from a number of roads terminating in Chicago, then assumed the task of battling the union through legalized means. The absolute control and influ ence of the railroad association on the political, judi cial, and even military powers of the country soon brought matters to a head, with the outcome decidedly in favor of the railroad. One of the Important weapons used by the 366 General Managers Association to break the strike was the labor Injunction. Its application was an example of extreme abuse, effectively Illustrating the power that could be administered by employers In the late 1890's. The petition for an Injunction and the terms of the order Itself were prepared by a United States Government Attorney In conjunction with the legal counsel of the rail road association. This close alliance produced one of the most sweeping court orders ever recorded. Terms enjoined the President of the ARU, Eugene Debs, and his officers and "all persons whomsoever" from a number of acts presented In a thorough and complete form. The effect of this action amounted to passage of a judge-made law. Accounts of that day referred to the order as "a gatling gun on paper," and the labor movement began to take close notice of this extremely effective anti labor weapon. The Pullman strike and the decision in the Debs case were to have a significant effect upon the programs and goals of the American labor movement. Organized workers realized the need to participate in the political scene on a scale never before attempted in order to secure proper protection. As a consequence of the Debs ruling, labor initiated a campaign for "emancipation" from the injunc tion, making this one of their major programs. In 1906, the AF of L submitted a Bill of Grievances to the Presi dent and Congress which was one of the first major steps in attempting to exercise more effective political pres sure. This request for injunction restriction and for the attainment of other demands was ignored by the public officials. Later, unions actively backed candidates that were friendly to labor in both the Presidential and con gressional elections. It appeared that corrective legis lation would eventually be forthcoming as recognition of the union backing by political leaders pointed to the possibility of attaining favorable action. Labor finally secured the support of the legislators in 1914 when a measure designed to correct injunction abuses was enacted. This was the Clayton Act, passed as a direct result of the intensified political activity of organized labor. Passage of this bill was largely to ful fill the obligations of the Democratic party, which had received labor's support in the elections of a few years earlier. Introduced by Congressman Clayton of Alabama, it became law in October of 1914. Certain portions of 368 the measure contained provisions specifically intended to overcome abuse of the injunction. Two of the more important points of the Clayton Act were Incorporated into Sections 6 and 20. The former stated that "the labor of a human being is not a commodity or article of commerce,M and that nothing In the antitrust laws should forbid the existence and operation of labor unions. Samuel Gompers, head of the AF of L at that time, had suggested an amendment to Section 6 providing for union exemption from the Sherman Act but this was not included in the final measure. Section 20 of the statute permitted federal courts to issue injunctions only "to prevent irreparable injury to property, or to a property right, of the party making the application for which injury there is no adequate remedy at law." Other sections pertained to certain procedural requirements for injunction issuance and to contempt proceedings involving; labor. As might be expected, labor's reaction to enactment of the Clayton Act was highly favorable. Samuel Gompers hailed it as labor's "Magna Charta" and "Bill of Rights" since Sections 6 and 20 seemingly exempted labor unions from the provisions of the Sherman Act. Regardless of 369 the intent of Congress to provide organized labor with protection as a "reward" for earlier political backing, the courts were to take a different view of the measure. Several years following its enactment (1920), the Supreme Court ruling in the Duplex case plainly indicated that labor combinations were still very much subject to the antitrust laws. Thus the activities of labor unions had become no more legal by passage of the Clayton Act. By the time of the early 1920*s, it was evident that labor had achieved some measure of success in influencing passage of federal and some state legislation to control injunction abuse. But not sufficient gains were achieved along judicial lines to permit a more favorable inter pretation of the statutes by the courts. It had begun to appear as if judicial power was deliberately being applied against unions to thwart any favorable legislative inten tions toward labor. Additional political pressure by labor and the observance of Congress of the frequent and glaring abuses arising from Clayton Act violation finally was to arouse elected representatives to the need for a new legal code. The solution to the injunction problem, so far as organized labor was conceived, lay in the passage of the Norris-LaGuardia Act of 1932. In the interval between preparation of the early drafts of this measure and its final version, certain events had occurred which were to exert a profound influence upon the political and judicial thinking of the time. The Great Depression had begun and was well underway by the time Congress received the pro posed Norris-LaGuardia bill. Conditions were thus quite favorable for passage of this legislation and for favor able consideration of labor cases by the courts. This former point was particularly noted by Senator Norris in his report of the bill's passage, and it is strongly im plied that the overwhelming enactment of the Norris- LaGuardia measure was due largely to such influencing factors. Passage of the Norris-LaGuardia Act was significant for two principal reasons. First, it provided labor with long overdue relief from abusive application of the injunc tion. Along these lines it was the exact opposite of the Sherman Act, swinging the "balance of power" far over to the side of organized labor. This was the first time since 371 its introduction in America that the injunction was subject to an almost absolute restriction, since the power of the federal court had been neutralized by regulating the sub stance and procedure of the restraining order. Second, the Norris-LaGuardia statute was significant for its statement of policy found In Section 2. Its inclusion was to justify the provisions of the law when eventually reviewed by the Supreme Court so that any ''misinterpretations," such as occurred in cases subsequent to the Clayton Act, could be avoided. Other sections of the 1932 legislation were designed to correct major abuses growing out of labor injunction usage. One of these was the exercise of power by the courts to decide lawful and unlawful areas of labor union activities through authority to issue restraining orders. Certain specific union activities were exempted from in junction application by the federal courts, and these were rather similar to those found in Section 20 of the Clayton Act. Federal courts were denied the right to forbid striking, peaceful picketing, and the giving or paying of strike benefits or other funds in a strike in addition to other provisions. The effect of Section 4, particularly, 372 was virtually to limit injunctions to prohibitions of acts of violence and intimidation. The procedure for issuance of injunctions was also |overhauled, with certain required conditions being estab- i i 'lished before injunctions could be issued. Other provi- j sions required specific acts to be included in the bill of complaint, and allowed for certain provisions in contempt ] jproceedings. One of the major portions of the measure was the section interpreting a "labor dispute." A broad definition was set forth which overcame a serious weakness of the earlier Clayton Act in which Congress had failed to | define the term. As a result, the former narrow inter- i J jpretation under which injunction application was prohibited I | jwas no longer applicable. This formerly had provided courts with the opportunity to provide their own defini tion, which was the problem in the 1921 Duplex case. The Supreme Court decided the fate of the Norris- |LaGuardia Act in 1938 through the ruling in the Lauf v. i G. G. Shlimer and Company case. This dispute was sig nificant in that it indicated the radically changed posi tion and attitude of that tribunal toward organized labor by the close observance of the procedural requirements 373 in this 1932 labor legislation. The case was based on efforts of an Independent union to organize, partially through picketing action, the employees of a small retail meat market chain. None of the workers, however, wished to be organized. To stop picketing, the display of "false and misleading signs, intimidation and threats to patrons," etc., an injunction was requested from the lower court. This was granted, with both a district court and later a court of appeals holding that no labor dispute existed. The Supreme Court in reviewing the case, however, ruled otherwise and the injunction was denied. The peak of Supreme Court liberality in interpreta- tion of the Norris-LaGuardia Act was perhaps reached in the New Negro Alliance v. Sanitary Grocery case of 1936. Here the court went even further with respect to providing a broad definition of the term "labor dispute." This event marked the peak of court and legislative restriction of the injunction since, technically, the case involved neither conditions of employment nor the organization of employees for purposes of collective bargaining. The case arose out of efforts by an organized negro group that was not a labor union to picket a Washington D.C. 374 grocery company because it was alleged to have refused employment to negroes. The firm took the "dispute" before a Federal District Court seeking an injunction to restrain the Alliance from injuring business. After a hearing, an injunction was issued on the basis that no labor dispute existed, and this was later upheld by an appeals court. The case reached the Supreme Court in 1938. In a split decision by this tribunal, the decisions of the lower courts were reversed and it was held that the picketing activities were immunized under the Norris-LaGuardia Act since a dispute did exist under the meaning of Section 13. The decade of the 1940fs was to see the favorable legislative and judicial climate for labor undergo a sig nificant change, largely due to the actions of the American labor movement itself. The seeds of this change can be traced directly to a series of major prewar, wartime, and postwar labor disputes which not only seriously threatened the war effort but the peacetime reconversion program as well. The consequence was a significant Increase in anti labor sentiment on the part of both the public and the government. John L. Lewis and the United Mine Workers in particular played a prominent role in the "conditioning" 375 events leading to the Taft-Hartley Act. On the legislative front in the immediate postwar period there were a number of labor measures introduced which held signs of future trouble for labor. Some of the proposed bills, such as the Ball-Hatch, Ellender, and Case bills proposed a considerably more liberal application of the injunction than that possible under the Norris- LaGuardia Act. None of these proposed measures, though, succeeded in being enacted into law. They did contain, however, the provisions of the major labor legislation of the postwar period, the 1947 Taft-Hartley Act. Few of the principal sections of this statute do not have counter parts in these earlier bills, and thus a distinct relation ship is quite evident. The Taft-Hartley Act amending the Wagner Act is a complex measure attempting to deal with a very broad range of problems. When framing this 1947 law, Congress devoted considerable attention to the labor injunction, with the result that a considerable portion of the Norris-LaGuardia provisions relating to its usage were altered. One of the significant provisions was the specifying of unfair labor union practices which are enjoinable by a "discretionary" 376 restraining order issued by the National Labor Relations Board. Injunction procedural requirements were also changed and secondary boycott and jurisdictional strikes were to be stopped with a ''mandatory” injunction. Restrain ing orders can also be used to prevent extortion and for check-off control purposes. Perhaps the most "novel" feature of the Taft-Hartley Act relating to the injunction lies in the establishment of a special class of labor disputes that have been termed "national emergencies" and the procedures to handle these. This term covers strikes and lockouts which, if permitted to occur or to continue, will "imperil the national health and safety." Determination is by the President of the United States. In cases declared to be of this type, the President may appoint a board of inquiry to make findings of fact. Upon receipt of findings, the Attorney General may be directed to petition any federal district court to enjoin the strike or lockout. Injunction usage is only possible where the dispute affects an entire Industry or a substantial portion of It or, where the dispute "imperils the national health and safety." There have been numerous instances since 1947 in which the federal injunction 377 has been used under these conditions. Today the injunction is far from the position it occupied in the pre-1932 period, despite labor's initial fears to the contrary. With the exception of application in cases involving the control of union unfair labor prac tices, certain check-off and extortion violation control cases, secondary boycott and jurisdictional disputes, the strength and scope of the present day restraining order has not been noticeably increased. This does not Indicate, however, that a change will not be forthcoming within the next several years as there again appears to be a number of factors at work influencing new labor control legisla tion. Current procedures and provisions affecting the injunction will most certainly be amended with the coming of any new legislation even though this device is but a portion of a much larger bag of controls. But what are the reasons, in 1963, for anticipating broadening changes in the scope of the injunction and tighter controls over organized labor? The contemporary period has seen strikes or the threat of strikes in the airline, railroad, aerospace, newspaper, and longshore industries which have culminated in recent deep federal 378 involvement after the collapse of the collective bargaining process. Stem tests in the near future threaten to con tinue the pattern. Some are already visible, such as the operating railroad unions' avowal to call a nationwide strike if employers are permitted to impose job-cutting work rule changes. Others, as yet unseen, are certain to occur as the continued advance of automation pits the management need to cut costs against labor's desire to protect jobs. The pressure currently building for labor legisla tion changes within the near future is now stronger, in 1963, than at any time since passage of the Taft-Hartley Act and this can be traced to a number of varied reasons. Each in some way interacts on and reinforces the other. But essentially the coming crisis for labor hinges on two main developments. First is the shift of strengths and economic interests between management and labor. Once a powerful agent of the majority of the "blue collar" production workers in the nation, unions have been slipping in strength under the effects of unemployment, automation, and the change in the work force to predominately unorgan ized "white collar" workers. Thus, the ability of 379 industrial unions to maintain or equal the gains of the postwar period has been weakened. In addition, persistent unemployment and technological changes have turned the attention of unions toward the preservation of jobs. Furthermore, throughout the country management has been gaining power in recent years. With growing competi tion demanding cost cutting, a greater number of companies are attempting to reap the benefits of automation by push ing unions to accept job-cutting work rule changes. Unions, fearing that their existence is at stake, are adopting a hard stand in opposition to this program. Some labor specialists visualize spreading offshoots from this clash of vital union and employer interests. The possi bility has been raised that the decline of the union in the so-called key industries, i.e., steel, rubber, autos, etc., in time may lead the rank-and-filers to demand that their leaders stop trying to be "statesmen” in reaching accom modations with management and start battling to produce more jobs. Thus the seeds of conflict are very much in evidence. The second major cause of a not too distant crisis for labor lies in the entrance of the present Administra tion as an active participant in settling labor-management 380 disputes. From the beginning, the Kennedy Administration in the "public interest" has sought to persuade labor and * management voluntarily to outlaw stalemates in industries affecting the national health and safety. Its reasoning has been based on the contention that the cold war demands cooperation. The governmentT s means to accomplish this aim has been a veiled threat that Congress might, if provoked, take drastic action such as stripping unions of their right to strike in key Industries, and this could easily be done by permitting permanent injunctions in such disputes or, thinking in a broader sense, making unions subject to anti* trust legislation. Evidence of this approach of following a self- imposed mandate outlawing strikes in industries affecting the public health and safety might be noted from efforts of the Secretary of Labor to become immersed in disputes ranging from the steel industry to the Longshoremenfs strike. In a number of these conflicts federal Involvement has achieved settlements through the use of the "third party" mediation technique. But there is now some belief that the effectiveness of these methods might currently have been undermined by overuse. Thus with the three forces of labor, management, and the government each prepared to pursue what it considers to be its own best interests, sooner or later a test of power was bound to come. This test arrived in the recently concluded East Coast dock strike. A consideration of how the government was forced to deal with that stoppage offers some important clues to the future. First, it was apparent that the longshore dispute effectively revealed the in ability of the Taft-Hartley Act, with its injunction pro visions and other procedures, to settle any conflict when one party or the other is determined to pursue its inter ests to the fullest. The International Longshoremen's Association, by winning a sizeable "package," showed conclusively that a union can withstand all of the federal government's customary pressures. Faced with stubborn resistance in this strike, the government was forced to resort to an unusual procedure. Without consultation or the consent of either of the parties, President Kennedy •named a special board headed by Senator Wayne Morris which, |in a few short days, wrote a "take it or leave it" solu- ;tion. This points to the tendency of the government to become increasingly involved in the labor-management scene. 382 One of the significant points which could be noticed in this recent dispute, however, was the unwillingness of the Administration, despite its warnings, to seek restric tive new labor legislation. This could possibly encourage the parties to Ignore the Administration pleas in the name of public interest. A number of factors underlie this reluctance to turn to Congress for a solution. The Adminis tration reportedly has been thinking in terms of seeking Taft-Hartley changes to allow the federal government to enter national emergency disputes quicker and thus put more pressure on the parties to settle. 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Washington: Government Printing Office, 1891. _______. Current Resolutions. Recent Treaties. Executive Proclamations and Agreements. Proposed Amendments to the Constitution. Vol. XLVII. Washington: Government Printing Office, 1933. United States Code Congressional Service. Laws of the 78th Congress. St. Paul: West Publishing Company, 1944. _______. Laws of the 80th Congress. First Session. St. Paul: West Publishing Company, 1947. United States Reports. Cases Adjudged in the Supreme Court. October Term. 1921. Vol. 21. Washington: Government Printing Office, 1922. _______. Cases Adjudged in the Supreme Court. Vol. 58. New York: Banks and Brothers, Law Publishers, 1895* _______. Cases Adjudged in the Supreme Court. October Term. 1920. Vol. 254. NSW York: The Banks Law Publishing Company, 1921. _______. Cases Adludaed in the Supreme Court. October Term. 1932. Vol. 289. Washington: Halted States Government Printing Office, 1933. 390 Uhited States Reports. Cases Adjudged In the Supreme Court. October Term. 1935. Vol. 297. Washington: Uhited States Government Printing Office, 1936. _______. Cases Adjudged in the Supreme Court. October Term. 1936. Vol. 301. Washington: Uhited States Government Printing Office, 1938. . Cases Adjudged in the Supreme Court. October Term. 1937. Vol. 303. Washington: Uhited States Government Printing Office, 1938. _______. Cases Adjudged in the Supreme Court. Vol. 330. Washington: Uhited States Government Printing Office, 1947. Wisconsin Reports. Cases Determined in the Supreme Court of Wisconsin. Vol. 222. Chicago: Callaghan and Company, 1937. Wisconsin Statutes. The 24th Edition. State of Wisconsin, Publisher, 1957. D. PERIODICALS Del Tufo, Raymond, Jr. "The Injunction Under the Labor- Management Relations Act of 1947," Rutgers Uhiversity Law Review. 2:240-53, Sumner, 1948. Dunbar, William H. "Government by Injunction," American Economic Association. Vol. 3, No. 1, Fall 1948. New York: The Macmillan Company, 1898. E. N. D. "The Railway Strike Injunction," Michigan Law Review. 21:91-92, April, 1922. Feldler, Samuel. "Labor Law--The Norris-LaGuardia Act," Wisconsin Law Review. 11:552-63, June, 1936. Gregory, C. 0. "Government by Injunction Again," The Uhiversity of Chicago Law Review. 14:363-69, April, 391 Northrup, Herbert R. "A Critique of Pending Labor Legis lation, " Political Science Quarterly, 61:205-16, 1946. Notes. "Labor Law: Anti-Injunction Statutes: Meaning of 'Labor Dispute,'" New York University Law Quarterly Review. 15:116-24, November, 1937. Recent Cases. "Application of the Norris-LaGuardla Anti Injunction Act When No Employer-Employee Relation Exists," Uhiversity of Pennsylvania Law Review. 84:1027-29, June, 1936. Recent Cases. "Injunctions--The Right of Government to Act in Labor Disputes Iftider the Clayton Act," univer sity of Pennsylvania Law Review. 71:83-84, November, 1922. Recent Important Decisions. "Labor Unions— The Effect of the Clayton Act," Michigan Law Review. 20:242-43, December, 1921. Rodgers, Samuel. "Jurisdictional Aspects of Labor Disputes Affecting Interstate Commerce," University of Pitts burg Law Review. 9:30-34, October, 1947. Taussig, F. W. "The South Western Strike of 1866," The Quarterly Journal of Economics. Vol. 1, No. 1. Boston: George H. Ellis Co., 1887. Tuttle, Elbert P. "Constitutional Law: Boycott and Picketing: Injunction: Validity of Statute," Cornell Law Quarterly. 7:251-55, April, 1922. E. NEWSPAPERS Los Angeles Times. January 23, 1963. Los Angeles Times. February 2, 1963. Los Atuteles Times. February 9, 1963

Asset Metadata

Creator Bixby, John Chasteney (author)

Core Title The Evolution Of The Labor Injunction With Particular Emphasis Upon Contemporaneous Factors Influencing Its Application

Contributor Digitized by ProQuest (provenance)

Degree Doctor of Philosophy

Degree Program Economics

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag economics, history,OAI-PMH Harvest

Language English

Advisor Garis, Roy L. (committee chair), [illegible] (committee member), Anderson, William H. (committee member)

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c18-313873

Unique identifier UC11358812

Identifier 6405151.pdf (filename),usctheses-c18-313873 (legacy record id)

Legacy Identifier 6405151.pdf

Dmrecord 313873

Document Type Dissertation

Rights Bixby, John Chasteney

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Access Conditions The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the au...

Repository Name University of Southern California Digital Library

Repository Location USC Digital Library, University of Southern California, University Park Campus, Los Angeles, California 90089, USA