20. "In case of a peaceable and ordinary strike, without breach of contract, and conducted without violence, threats or intimidation, this court would not inquire into the motives of the strikers-their acts being entirely lawful, their motives would be held immaterial." Discuss this proposition.

21. Draft a state statute that will clearly legalize the objects of collective action by workingmen that you think are legitimate, and will place the stamp of illegality upon all other objects.

22. In which of the above cases would the objects sought by the labor unions be recognized as legitimate by the courts of your state?

(a) The Strike

2. LEGALITY OF MEANS

STRIKES1

While the legality of trade unions is not questioned, there have been serious restrictions upon their efforts to make themselves effective. The strike, the most essential of labor's weapons, has often been condemned as illegal. Much confusion exists as to the legality of strikes, due principally to the different meanings in which this term is used. Many courts hold that "striking," in the sense of collectively quitting work, is always legal. What is really meant is that quitting work cannot be directly prevented. The thirteenth amendment has forbidden slavery and involuntary servitude. The specific enforcement of labor contracts is slavery. Even when under a definite time contract, workmen may not be compelled to labor when they wish to quit. But an action would still lie against them in damages for the breach of their contract. In practice but few workmen labor under contracts running for a definite time. Hence, to all practical intents and purposes, quitting work is always lawful. This is what most courts mean when they declare that it is lawful to strike for any or no reason.

But in most strikes something more than quitting work is involved. There is an antecedent agreement to quit, there are demands upon the employer, and there is a "threat" that unless he yields a strike will be called. The element of combination enters into the strike. Even after the workmen have quit they still act in concert. It is the entire combination, of which the quitting work is but a part, which constitutes the strike.

The strike in this sense is not always legal. The rule most generally applied is that when the purpose of the strikers is primarily to injure

4 Reprinted from The Principles of Labor Legislation by Commons and Andrews, by permission of the publishers, Harper & Bros. 1920 ed., pp. 103-6.

the employer or non-union workmen the strike is illegal. The Massachusetts Supreme Court has best stated this rule:"

"To justify interference with the rights of others the strikers must in good faith strike for a purpose which the court decides to be a legal justification for such interference. . . . . A strike is not a strike for a legal purpose because the strikers struck in good faith for a purpose which they thought was a sufficient justification for a strike. As we have said already, to make a strike a legal strike the purpose of the strike must be one which the court as a matter of law decides is a legal purpose of a strike, and the strikers must have acted in good faith in striking for such a purpose." In other cases the fact that the strikers aim to "coerce" the employer and "threaten" him with loss unless he complies with their demands is emphasized.

The result of the application of these doctrines has been that strikes have often been condemned as unlawful. The Massachusetts cases are the most extreme in this respect. Almost never have they found that strikers were pursuing lawful objects when they endeavored to procure the discharge of non-union workmen or of the members of rival unions. They condemn also strikes to procure the removal of objectionable foremen, and all sympathetic strikes. The Massachusetts cases even hold that though the strike is for higher wages, the members of the union may not be coerced to participate therein through threat of a fine or of expulsion from the union. In Connecticut and in Vermont strikes against non-unionists have been condemned. Closed shop strikes have been held unlawful also in New Jersey, as have strikes against the use of non-union material. In Pennsylvania there is a statute which reads to a layman as though it legalized all strikes. Yet the courts of that state have held unlawful strikes growing out of jurisdictional disputes, closed shop strikes, and strikes against non-union material. In Illinois the question of the legality of a strike for the closed shop has been several times before the supreme court. In 1905 such a strike was held to be unlawful; in 1912 the court split evenly upon this question. New York has a statute legalizing "peaceable assembling or cooperation" by workingmen "for the purpose of securing an advance in the rate of wages.". Elsewhere such strikes are held lawful, even without any such statute Strikes for many purposes have been condemned by the New York courts. The court of appeals has held unlawful strikes to collect fines from employers. Inferior courts 5 DeMinico v. Craig, 207 Mass. 593 (1911).

6 The original notes, citing cases in the states referred to in this paragraph, are omitted.

have condemned strikes against non-union material. Some New York cases also hold sympathetic strikes to be unlawful. The question of the legality of strikes for the closed shop has often come up in New York. The decisions of the court of appeals upon this issue are very difficult to reconcile. In the Curran v. Galen case in 18977 a non-union workman who lost his job because his employer entered into a closed shop agreement was held to have an action against the union. In the Cumming case in 19028 the majority of the court squarely sustained a strike to establish a closed shop. In the Jacobs v. Cohen case in 19059 however, an effort was made to reconcile the two prior decisions and to consider them both as law. The doctrine evolved seems to be that the closed shop is lawful as long as it does not give the union a monopoly in the community in which it operates.

Enough cases have been cited to illustrate the attitude of the courts toward strikes. Except where compulsory arbitration has been introduced, as in Kansas in 1920, strikes solely and directly involving the rate of pay or the hours of labor are in ordinary times everywhere considered legal. But strikes to gain a closed shop, sympathetic strikes, and strikes against non-union material have been condemned in many jurisdictions. Only in California is it settled law that all strikes are legal.

But because strikes are illegal it does not follow that there is any effective way of preventing them. Arthur v. Oakes1o authoritatively established that laborers may in no circumstances be enjoined from quitting work. In some injunctions, however, "conspiring to quit" has been enjoined. In others the union officers have been prohibited from advising or ordering the workmen to go upon strike, or from paying strike benefits.

QUESTIONS

1. Enumerate the different elements or stages of a strike. Which of these are important for the purpose of determining the legality of the strike? 2. Why should not all strikes be held legal, as an exercise of the right to dispose of one's labor as one wishes?

3. Why should not all strikes be held illegal, as an attempt to coerce employers in their business dealings?

4. Would it be feasible and desirable to apply the rule against monopoly and restraint of trade to strikes?

7 Curran v. Galen, 152 N. Y. 33.

8 National Protective Association of Steamfitters and Helpers v. Cumming, 170 N. Y. 315.

9 Jacobs v. Cohen, 183 N. Y. 207.

10 Arthur v. Oakes, 63 Fed. 310 (1894).

5. Are men on strike still employees?

6. Is the legality of a particular strike a question of law or a question of fact?

7. Would it make any difference in determining the legality of a strike, whether the strikers were acting in breach of their contracts of employment? 8. Discuss the legality of the "sympathetic strike."

9. May officers of a union, in furtherance of a lawful strike, threaten to fine or expel members in order to prevent them from working for the employer against whom the strike has been called?

10. The United Mine Workers printed in their journal notice of a local strike approved by them, and included "a list of the names of the detestable scabs and blacklegs" who were employed as strike breakers. Is this legal? Have the "scabs" so listed any redress?

11. The plumbers' union of a certain city agrees that members will not work for contractors who do not belong to the association of plumbing contractors. S, a member of the association, gets the contract to build an apartment house for U, and furnishes the usual surety bond; he is subsequently suspended from the association and the plumbers refuse to work for him, so that he is compelled to abandon the job. U loses money as a result of the change to another contractor and sues the surety company to recover. The company's defense is that a clause in the bond exempts it from damages caused by strikes. Decide the case.

12. A state statute reads: "If any person shall by force, threats or intimidation, prevent or endeavor to prevent any person employed by another from continuing or performing his work, he shall be deemed guilty of a misdemeanor." The officers of a union order men to go out on strike under penalty of suspension according to the rules of the union. Have the officers violated the statute?

13. A state statute requires that every employer who, during a strike or labor disturbance among his employees, publicly advertises for persons to replace the strikers, shall plainly and explicitly mention in such advertisements that a strike, lockout or other labor disturbance exists. What is the purpose of this provision? Is it constitutional?

14. What is the attitude of the courts of your state towards strikes?

(b) Persuasion or Incitement to Strike

(1) PEACEFUL PERSUASION

KARGES FURNITURE CO. v. AMALGAMATED WOODWORKERS LOCAL UNION NUMBER 131

Supreme Court of Indiana. 1905. 165 Ind. 421.

HADLEY, J. Appellant brought this suit against the appellees the Amalgamated Woodworkers' Local Union No. 131 of Evansville, an

unincorporated labor organization, and its members, to enjoin them, such members being on a strike, from picketing, intimidating, and otherwise interfering with the plaintiff's employes and business. The complaint, in two paragraphs, was answered by a general denial. There was a trial, special findings, and injunction awarded against 14 of the appellees, and finding and decree in favor of the remaining appellees, including said Amalgamated Woodworkers' Union.

The real question presented by the record is the refusal of the court to enjoin the defendant union and all its members from picketing, and otherwise intermeddling with appellant's business.

Soon after the strike was inaugurated, the union, with the participation or subsequent ratification of the other appellees, organized a picket system, whereby pickets were regularly and daily maintained in the vicinity of all the factories affected by the strike. Each morning a meeting of the union was held to distribute food supplies, to appoint picket committees, composed of from two to eight men to receive reports therefrom, and to consider such means as might be necessary to compel the plaintiff to grant its demands. The pickets thus chosen, to avoid recognition by employers, were assigned so that no one would picket the factory where he had been employed. The pickets were uniformly instructed by the president and other officers of the union before going on duty to take note of those entering and leaving the factory, to ascertain their names and places of residence, and, as far as they could, by fair and peaceful means, to influence those remaining at work to quit, and prevent new men from entering to take the places of those on strike. It was often declared by the President, and always unanimously indorsed by the members present, that the policy of the union was: First, that the members of the union should endeavor by peaceable persuasion, and not otherwise, to induce such woodworkers as were not members of said union, and who remained in the employ of the plaintiff and other employers, to join the union and co-operate in the strike. Second, that they should seek the acquaintance of such working non-union men, visit them at their homes, and there, and at all other suitable places, discuss with them the mutual benefits of the union, and the importance of their quitting work, and by fair argument and peaceable measures try to induce them to cease working and attach themselves to the union. Third, that under no circumstances should any striker endeavor, by any form of violence, threats, or intimidations, to influence the acts and conduct of any one engaged.