9. "Government by injunction might more accurately be called 'Government by judicial conscience'." Discuss this statement.

10. "The federal courts may thus grow into mere star-chambers." Is this a real danger in "government by injunction"?

11. If the strike in the Debs case had been confined to shopmen and there had been no violence, would the injunction have been granted?

12. Under the reasoning of the principal case, how far could courts go in granting injunctions (at the request of state or federal authorities) against the various methods used by workingmen in labor disputes?

13. There have been widespread industrial disturbances in city M arising out of an open-shop war. A business men's association used its influence to prevent employers from making agreements with unions that did not recognize the open-shop principle. Teamsters in yards supplying building material and coal struck and violence resulted. The owners of the yards declared a lockout and refused to sell to the public generally. Because of the chaotic conditions the attorney general of the state now asks for an injunction restraining the business men's association and all employers of labor in the city from committing any acts in restraint of trade or conspiring to do so, restraining owners of coal and building material yards from refusing to sell goods to anyone willing to pay the price for them, and restraining all labor unions and officers concerned from agreeing to refuse to transport commodities, from interfering with anyone engaged in performing lawful work or from seeking to require anyone to join a union. Advise the court.

14. Should an injunction be granted to restrain drivers of milk wagons, on strike for higher wages, from interfering in any way with the delivery of milk in a large city?

15. The efficacy of injunctions in labor disputes "arises solely from the greater probability of a conviction for contempt in a trial by a judge alone, without right of appeal, than of conviction by a jury likely to sympathize in some degree with the offender." Do you agree with this statement? Is it an argument for or against the use of the injunction in labor cases?

16. In estimating the usefulness of the injunction in labor disputes, how much weight should be given to its effectiveness in preventing criminal acts in connection with such disputes?

17. If strikers are not deterred from committing criminal acts by fear of criminal law, why should they be deterred by an injunction?

18. Discuss the relative effectiveness of the injunction to prevent (a) strikes, (b) boycotts, (c) picketing.

19. A coal company against which a strike has been declared gets an injunction forbidding strikers to interfere with the removal of the large supply of coal on the company's premises. Because of the hostile attitude of the strikers and their sympathizers, the company fears bloodshed if it should start to move the coal and asks the court for an order directing the marshal to police the vicinity with a force sufficient to prevent violation of the injunction. Advise the court.

20. To what extent is "government by injunction" effected by §§ 6 and 20 of the Clayton Act?

21. "What has been so long denounced as 'Government by Injunction' has been enormously extended by the Federal Trade Commission Act and the Clayton Act." Discuss this statement.

E. SETTLEMENT OF LABOR DISPUTES

(a) Action by the States

I. VOLUNTARY

A12

A majority of the states have legislation providing for the settlement of industrial disputes, and Wyoming has a constitutional provision to the same effect. Many of these states have permanent boards called boards of conciliation and arbitration or some similar title, with from two to six members, although three is the usual number. It is provided in every state except Alabama that one member shall be a representative of the employees, while all but Alabama and Connecticut provide for representation of employers. The Oklahoma board represents farmers in addition. Many states forbid that more than two members of the board be chosen from the same political party. In other states the labor commissioner acts as mediator, as in Idaho, Indiana, and Maryland. In states having industrial commissions, a chief mediator is appointed along with temporary boards for arbitration.

In a score or so of states compulsory investigation is provided for.13 The state board of arbitration must proceed to make an investigation (1) on failure to adjust the dispute by mediation or arbitration, as in Indiana and Massachusetts; (2) when it is deemed advisable by the governor, as in Alabama and Nebraska; or (3) simply when the existence of the dispute comes to the knowledge of the board, as in Colorado and Vermont. In other states such investigation is permissive. The board of arbitration may investigate (1) when it is deemed advisable by the industrial commission, as in New York. In Ohio the industrial commission can make an investigation, if it deems necessary, where a strike exists or is threatened, but if no settlement is obtained 12 Reprinted from The Principles of Labor Legislation by Commons and Andrews by permission of the publishers, Harper & Bros., 1920 Ed., pp. 136-138.

13 Footnotes naming the states referred to here and elsewhere in this selection are omitted.

on account of the opposition of one of the parties investigation is to to be made only if requested by the other party. Compulsory investigation may be employed (2) when both parties refuse arbitration and the public would suffer inconvenience, as in Illinois and Oklahoma, or simply where the parties do not agree to arbitration, as in New Hampshire; (3) or generally, whenever a dispute occurs, as in Connecticut and Minnesota.

Provision for enforcement of an arbitration award when arbitration has been agreed to by representatives of both sides is made by about a dozen states. In Illinois, if the court has ordered compliance with an award, failure to obey is punishable as contempt, but not by imprisonment. In Idaho and Indiana the award is filed with the district court clerk, and the judge can order obedience, violation being punishable as contempt, but imprisonment may be inflicted only for wilful disobedience. In Missouri violation of a binding award is punishable by a fine or jail sentence, and in Ohio a binding award may be enforced in the county court of common pleas as if it were a statutory award. In Nevada, Texas, and Alaska the award is filed with the district court clerk, and may be specifically enforced in equity. In Nevada appeal is made to the supreme court, in Texas to the court of civil appeals, and in Alaska to the United States Circuit Court of Appeals.

In about twenty states the voluntary agreement to arbitrate must contain a promise to abstain from strike or lockout pending arbitration proceedings. In Massachusetts it is the duty of the parties to give notice of impending stoppage of work. In Nevada and Alaska strikes or lockouts during arbitration, and in Alaska for three months after, without thirty days' notice, are unlawful and ground for damages.

B14

Chapter 23, Section 1. There shall be a department of labor and industries, under the supervision and control of a commissioner of labor and industries, in this chapter called the commissioner, and assistant commissioner, who may be a woman, and three associate commissioners, one of whom shall be a representative of labor and one a representative of employers of labor.

Sec. 2. Upon the expiration of the term of office of a commissioner,

14 General Laws, Massachusetts, 1921, chap. 23, sections 1, 2, and 7; chapter 150. [This is quoted as a specimen of the conciliation and arbitration statutes described in the preceding selection.]

and assistant commissioner or an associate commissioner, his successor shall be appointed for three years by the governor, with the advice and consent of the council. The commissioner shall receive such salary not exceeding seventy-five hundred dollars, and the assistant commissioner and associate commissioners such salaries, not exceeding four thousand dollars each, as the governor and council determine.

Sec. 7. The associate commissioners shall constitute the board of conciliation and arbitration, and shall have the powers and perform the duties given them by chapter one hundred and fifty relative to conciliation and arbitration of industrial disputes. . . . . The board shall have assigned to it such assistants from the officers and employees of the department as the commissioner and the board from time to time determine.

Chapter 150, Section 1. The board of conciliation and arbitration of the department of labor and industries, in this chapter called the board, shall perform the duties required by this chapter.

Sec. 2. The department of labor and industries shall from time to time establish rules of procedure for the board.

Sec. 3. The mayor of a city or the selectmen of a town, having knowledge that a strike or lockout is seriously threatened or has actually occurred therein, shall at once give notice to the board. Notice may be given by the employer or by the employees concerned in the controversy, strike or lockout. When the board has knowledge that a strike or lockout, which involves an employer and his present or former employees, is seriously threatened or has actually occurred, and such employer at that time is employing, or upon the occurrence of the strike or lockout was employing, not less than twenty-five persons in the same general line of business in any town in the commonwealth, the board shall, as soon as may be, communicate with such employer and employees and endeavor by mediation to obtain an amicable settlement, or endeavor to persuade them to submit the controversy to a local board of conciliation and arbitration established under section nine or to the board. If a settlement is not agreed upon and the parties refuse to submit the matter in dispute to arbitration, the board shall investigate the cause of such controversy and ascertain which of the parties thereto is mainly responsible or blameworthy for the existence or continuance of the same, and shall, unless a settlement of the controversy is reached, make and publish a report finding such cause and assigning such responsibility or blame. The board may employ agents to assist in such investigation. It shall, upon the

request of the governor, investigate and report upon a controversy if in his opinion it seriously affects or threatens seriously to affect the public welfare. The board shall have the same powers for the foregoing purpose as are given to it by sections five to eight, inclusive. The board shall by publication or otherwise inform employers and employees of their duty to give notice to the board before resorting to a strike or lockout and of the provisions of this chapter affecting the rights of employers and employees relative to industrial disputes.

15

Sec. 4. The provisions of sections twenty-two and twenty-three of chapter one hundred and forty-nine relative to advertising during strikes shall cease to be operative when the board shall determine that the business of the employer, in respect to which the strike or other labor trouble occurred, is being carried on in the normal and usual manner and to the normal and usual extent. Upon the application of the employer, this question shall be determined by said board, but only after a full hearing at which all persons involved shall be entitled to be heard and represented by counsel. The board shall give at least three days' notice of the hearing to the strikers and employees by publication in at least three daily newspapers, published in the commonwealth, and by mailing a copy of said notice, postage prepaid, to the employers and to the accredited representatives of the strikers or workmen interested, when their addresses are known; and in every case the board shall make every reasonable and diligent effort to give notice to said strikers or interested workmen.

Sec. 5. If a controversy not involving questions which may be the subject of an action at law or suit in equity exists between a person employing not less than twenty-five persons in the same general line of business and his employees, the board shall, upon application as provided in the following section, as soon as practicable visit the place where the controversy exists and make careful inquiry into its cause, and may, with the consent of the governor, conduct inquiry outside the commonwealth. The board shall hear all persons interested who come before it, advise the respective parties what ought to be done or submitted to by either or both to adjust said controversy, and make a written decision thereof which shall at once be made public, shall be open to public inspection and shall be recorded by the board. A short statement thereof may, in the discretion of the board, be published in

15 These sections forbid the advertising for, or the procuring in any way of, employees during a strike "without plainly and explicitly mentioning that a strike, lockout or other labor trouble exists in the establishment where such persons are to be employed."