"It was not the intention of the defendants to give fairly to the employer the option to employ them or the plaintiffs, but to compel the latter against their will to join the association, and to that end to molest and interfere with them in their efforts to procure work by acts and threats well calculated by their coercive and intimidating nature to overcome the will. The defendants might make such lawful rules as they pleased for their own conduct, but they had no right to force other persons to join them. * * * The defendants contend that they have done nothing unlawful, and in support of that contention they say that a person may work for whom he pleases, and, in the absence of any contract to the contrary, may cease to work when he pleases, and for any reason whatever, whether the same be good or bad; that he may give notice of his intention in advance, with or without stating the reason; that what one man may do several men acting in concert may do, and may agree beforehand that they will do, and may give notice of the agreement; and that all this may be lawfully done, notwithstanding such concerted action may, by reason of the consequent interruption of tl work, result in great loss to the employer and his other employees, and that such a result was intended. In a general sense, and without reference to exceptions arising out of conflicting public and private interests, all this may be true." The court declared, however, that such a right did not exist where the motive was maliciously to injure another person. The opinion in Allen v. Flood regarding the effect of malice in such a case was directly opposed by the Massachusetts court,' which concluded: Such acts are without justification, and therefore are malicious and unlawful, and the conspiracy thus to force the plaintiffs was unlawful. Such conduct is intolerable, and inconsistent with the spirit of our laws." * * * Finally, the court specifically repudiates the authority of Allen v. Flood, saying: "Some phases of the labor question have recently been discussed in the very elaborately considered case of Allen v. Flood, ubi supra. Whether or not the decision made therein is inconsistent with the propositions upon which we base our decision in this case, we are not disposed, in view of the circumstances under which that decision was made, to follow it. We prefer the view expressed by the dissenting judges, which view, it may be remarked, was entertained not only by three of the nine lords who sat in the case, but also by the great majority of the common-law judges who had occasion officially to express an opinion. There must be, therefore, a decree for the plaintiffs. We think, however, that the clause, or by causing or attempting to cause any person to discriminate against any employer, or members of plaintiffs' said association (because he is such employer) in giving or allowing the performance of contracts to or by such employer,' is too broad and indefinite, inasmuch as it might seem to include mere lawful persuasion and other similar and peaceful acts; and for that reason, and also because, so far as respects unlawful acts, it seems to cover only such acts as are prohibited by other parts of the decree, we think it should be omitted." The following is quoted from the dissenting opinion of Judge Holmes in the case of Plant v. Woods: * I agree that the conduct of the defendants is actionable unless justified. I agree that the presence or absence of justification may depend upon the object of their conduct; that is, upon the motive with which they acted. * * On the other hand, I infer that a majority of my brethren would admit that a boycott or strike intended to raise wages directly might be lawful, if it did not embrace in its scheme or intent violence, breach of contract, or other conduct unlawful on grounds independent of the mere fact that the action of the defendants was combined. A sensible workingman would not contend that the court should sanction a combination for the purpose of inflicting or threatening violence, or the infraction of admitted rights. To come directly to the point, the issue is narrowed to the question whether, assuming that some purposes would be a justification, the purpose in this case of the threatened boycotts and strikes was such as to justify the threats. That purpose was not directly concerned with wages. It was one degree more remote. The immediate object and motive was to strengthen the defendants' society as a preliminary and means to enable it to make a better fight on questions of wages or other matters of clashing interests. "I differ from my brethren in thinking that the threats were as lawful for this preliminary purpose as for the final one to which strengthening the union was a means. I think that unity of organization is necessary to make the contest of labor effectual, and that societies of laborers lawfully may employ in their preparation the means which they might use in the final contest." 1 For further quotation of the decision with reference to malicious intent see above, p 558. May v. Wood, 172 Mass., 11, 14, 51 N. E., 191, and cases cited. 66 CHAPTER VI. INTIMIDATION AND PICKETING. 1. Summary. We have already discussed the court decisions and statutes relating to the acts of combinations of workingmen in attempting to exclude others from employment by persuading the employer or threatening him, as well as in attempting to entice actual employees to quit. Another method often resorted to by labor organizations and strikers, is to attempt to prevent persons from entering the service of an employer by persuading or threatening those persons themselves. Attempts to compel those already in employment to quit, by threats and intimidation, are in practice and in law considered as more closely allied to the latter class of acts than to enticement. Measures of this sort occur, for the most part, only during the actual existence of a strike or lockout. The ordinary terms used by the courts to define these acts of strikers are "coercion," "intimidation, picketing," and "patrolling.' The terms picketing and patrolling are practically of the same meaning, and refer to the practice of stationing men, usually a limited number only, in the vicinity of the plant of the employer against whom the strike is directed, in order that they may accost persons seeking employment, inform them as to the conditions, and influence them, by one means or another, to refrain from entering employment. Workingmen usually hold that picketing is merely a form of persuasion, and that it is necessary to the success of strikes, especially because employers often advertise for men without informing them of the existence of a strike. The acts of even a small number of pickets themselves may, of course, take on a character which makes the term intimidation applicable to them. Intimidation is more likely to result where crowds of men assemble in the vicinity of the works struck against, in which case the term picketing can not properly be applied. The general consensus of opinion among the higher American courts seems to be that wherever the acts of strikers toward those seeking employment amount to threats, intimidation, or actual violence, they are criminal, while almost all the more recent decisions also sanction the use of the injunction to restrain acts which take on this character. The number of injunctions restraining such unlawful picketing, intimidation, and interference during recent years has been very great indeed. On the other hand, it is perhaps the more usual opinion of the higher courts that where picketing, or the other methods of persuading persons seeking employment to refrain from doing so, contain none of the elements above described, but are peaceful, they are not illegal. It must be observed, however, that these statements of the American courts upholding the legality of peaceful picketing are, for the most part, found as obiter dicta in connection with decisions affirming the illegality of intimidation and threats, the contrast between the two classes of acts being drawn for the purpose of enforcing the idea of the illegality of the latter class. There have been, in fact, two or three decisions of high courts holding that even peaceful picketing is illegal, and it is not entirely certain what would be the attitude of these courts if more cases of this character should be brought before them. Moreover, in several recent cases lower courts have issued injunctions prohibiting even peaceful persuasion to induce persons not to enter employment. It is obvious that the line of distinction between persuasion and intimidation is by no means a sharp one, and that opinions may differ greatly as to whether certain specific acts amount to intimidation or otherwise. It is accordingly necessary to describe briefly the actual state of facts in connection with the more important cases, and to state the decisions of the courts in the light of these facts.1 1The law of picketing in the United States is stated by Mr. Stimson as follows (Handbook to the Labor Law, pp. 290, 299): "We may state at once that the law, both English and American, is pretty well settled down to the view that picketing, for the purpose of mere persuasion of workmen not to take employment, and not attended with any disorder or physical or moral intimidation, is now held legal; at least when conducted in a reasonable manner and with not too great a crowd. Indeed, the recent English decisions have gone so far as almost to prescribe that the picket of two persons, which may be relieved by others, like a guard, is about the extent to which the law will allow it; and these two persons must, of course, not be guilty of intimidation as above defined. * * * "In the United States to-day only the most reasonable and peaceable picketing, for mere purposes of information and observation, is lawful, and only quiet and peaceable persuasion, by workmen of workmen, and conducted in such a way as not to amount to an elaborate conspiracy to prevent the plaintiff from getting help; though it is not probably necessary to render such action lawful that the I C-VOL XVII-01-37 * * We may first, however, point out the general principle laid down by the courts as underlying their attitude in holding any action which amounts to intimidation to be an illegal interference with the rights of both employers and those seeking employment. That principle, which is also stated repeatedly by the courts in decisions as to boycotts and other methods of labor organizations, is that each man has a right to carry on his lawful business or labor without let or hindrance. Thus it is said by the United States circuit court in Ohio, in American Steel and Wire Company v. Wire Drawers' Union.1 "The right to work as one pleases, and to contract for labor as one chooses, is protected by law. It is the right, not so much of property as of that liberty which every man enjoys in this country as his birthright; * which is not confined to political rights alone, but extends as well to personal activities in and about one's daily business, be he laborer or capitalist; which not even State legislatures can impair; and certainly not strike organizations." So, too, the supreme judicial court of Massachusetts declared in a recent case:2 "An employer has a right to engage all persons who are willing to work for him, at such prices as may be mutually agreed upon, and persons employed or seeking employment have a corresponding right to enter into or remain in the employment of any person or corporation willing to employ them. These rights are secured by the constitution itself. No one can lawfully interfere by force or intimidation to prevent * *the exercise of these rights." * * * * 2. Legislation as to intimidation.-A large number of States have special statutes prohibiting the use of intimidation or force to interfere with the entrance into or continuance in employment of any person. These statutes for the most part refer in terms to acts of individuals, and in legal theory belong rather to matters of police and preservation of order than to the law of combinations and conspiracy. Nevertheless they may easily be applied to intimidation and picketing (if amounting to intimidation) by bodies of strikers. The States having statutes of this sort prohibiting intimidation of ordinary employees are New Hampshire, Massachusetts, Maine, Rhode Island, Vermont, Wisconsin, Missouri, Oregon, North Dakota, Georgia, Alabama, Texas, Oklahoma, and Mississippi. While the terms of these statutes differ very considerably it is probable that by the interpretation of the courts they would reach practically the same end. Indeed it is likely that under the common law alone, without statute, essentially the same attitude would be taken by the courts on this subject as under the various enactments. There are also special laws in a few States prohibiting intimidation of employees on railways and in mines. In those States which, as we have seen in another connection (p. 562), have expressly by statute legalized strikes, repealing the common law of conspiracy, there are very generally found qualifying provisos prohibiting combination to commit various unlawful acts, among which are usually found the use of force, threats, and intimidation to prevent any person from entering or continuing in employment. The States having provisions of this sort are Pennsylvania, New York, Minnesota, Mississippi, North Dakota, and Illinois, while in several other States the definitions of unlawful conspiracy are less definite, but might be applied to acts of strikers. Those States which expressly legalize strikes for the most part also declare it lawful to persuade persons to quit employment or to refrain from entering employment, provided only peaceful means are used. This is the case in New Jersey, Minnesota, Pennsylvania, and Texas, while the Maryland statute, which follows that of Great Britain, is so general as doubtless to render such peaceful persuasion distinctly lawful. 3. Specific American cases of picketing and intimidation.-Turning, now, to a more detailed study of the decisions, we may first describe several cases in which the element of intimidation was clearly and conspicuously present in the actions of the strikers. Thus, in the case of the American Steel and Wire Company v. Wire Drawers' Union, the evidence, the court declared, showed that the strikers maintained pickets in the vicinity of the works against which the strike was being conducted, (in Cleveland) and that a larger body of men was also kept constantly in the persons doing it should be actually employees of the plaintiff; if they are members of the labor union concerned or engaged in the trade, so as to have a solidarity of interest, that will be sufficient; but picketing for the purpose of interfering with the plaintiff's trade, as by driving away his customers, is never lawful." 190 Fed. Rep., 608, 613. 2 Vegelahn v. Guntner, 44 N. E. Rep., 1077. 3 See fuller digest in Reports of Industrial Commission, vol. v, pp. 69, 131. 490 Fed. Rep., 608, 614. vicinity. If the patrols failed to persuade persons seeking employment to refrain from doing so, the larger body would come forth on signal, and actually obstruct the way, threaten those seeking employment, and in one or two cases, at any rate, it entered into violent conflict with them. The court held that, even in the absence of violence, the exhibition of substantial force in the presence of large bodies of men, amounted to intimidation. "The whole fallacy of the defense against this bill, and the proof offered to sustain it, lies in a convenient misapprehension or a necessary misunderstanding of the character of that force or violence which all agree is not permitted in the conduct of a strike. It seems to be the idea of the defendants that it consists entirely of physical battery and assaults, and that if thesc appear in the proof, and they can be justified, as they might be on a criminal indictment or in a police court, that ends the objection, and the justified assaults and batteries will not support an injunction. The truth is that the most potential and unlawful force or violence may exist without lifting a finger against any man, or uttering a word of threat against him. The very plan of campaign adopted here was the most substantial exhibition of force, by always keeping near the mill large bodies of men, massed and controlled by the leaders, so as to be used for obstruction if required.” Another case, which was very similar and which was decided by the same court somewhat earlier, was that of the Consolidated Steel and Wire Company v. Murray. The court declared that the averments of the bill of the complainant were substantially upheld by the evidence, which showed that there was "continuously a riotous assemblage;" that, while it maintained a semblance of law and order, actually threatened, followed, intercepted, and in some cases maltreated the employees of the complainant. An injunction was accordingly issued. 66 In another recent case a Federal court held that certain demonstrations intended to keep men from entering or continuing in employment were illegal as interfering with the free use of the public highways. The marching men seem to think that they could go and come on and over the country road as they pleased, because it was a public highway. But this was a mistake. The miners working at Montana had the same right to use the public road as the strikers had, and it was not open and free to their use when it was occupied by over 200 men stationed along itat intervals of 3 and 5 feet, men who, if not open enemies, were not bosom friends. That some miners passed through this line is shown. That others feared to do so is plain. That the marching column intended to interfere with the work at the mines would be foolish to deny. A highway is a way over which the public at large have a right of passage. It is a road maintained by the public for the general convenience. True, the strikers had a right to march over it as passengers just the same as all other citizens; but they had no right to make it a parade ground or stop on its sideways at frequent intervals, and by the hour, at times when other people who had the same right to its use were in the habit of using it for purposes connected with their daily avocations. No one portion of the community has a right to march along those streets day after day, night after night, and station themselves along them at intervals of 3 or 5 feet, for hour after hour, thereby preventing the owners of property located thereon from reaching the same in person, or by their clerks or other employees, for purposes connected with their regular business." * * * * * The supreme court of Pennsylvania in 1892, in the case of Murdock v. Walker,3 upheld the issue of an injunction by a lower court to restrain picketing and intimidation. The opinion of the lower court had declared that, while there was no physical violence or threat thereof, "there can be no doubt that a number of the defendants, with others, have been in the habit of collecting in crowds about the establishment of the plaintiffs, have followed their workmen to and from their boarding houses, and purposely interfered with them in passing along the public streets, in some instances even resorting to actual force. The whole course of those actively engaged in these movements was a menace to the workmen of the plaintiffs, as well as to the public peace." The opinion of the court announces clearly the principle that a court of equity will enjoin even discharged employees--they were, in fact, members of the labor union-from gathering about the plaintiff's place of business, and from following his employees to and from work, and from gathering about their boarding places, and from any and all manner of threats, intimidation, ridicule, and annoyance. The same court, two years later, in Wick China Company v. Brown upheld an injunction under very similar circumstances, declaring that the evidence sustained the averments of the complainant, that the defendants had used “threats, menaces, intimidations, opprobrious epithets addressed to the Wick China Com 180 Fed. Rep., 811. 2 Mackall v. Ratchford et al., 1897, 82 Fed. Rep., 41, 48. 325 Atl. Rep., 492. pany's officers and workmen," had gathered in crowds at the company's establishment and at the boarding places of their workmen, and had followed the workmen and held them up to the ridicule of the bystanders. The most recent case on picketing brought before a court of final resort was decided by the court of chancery of New Jersey in December, 1899, Cumberland Glass Manufacturing Company v. Glass Blowers' Association. This decision is interesting, because it very clearly and emphatically affirms that the general consensus of court opinion is that peaceful picketing and persuasion are probably legal, but that violence or threats or intimidation are always illegal. To quote the language of the court: "It is entirely settled that the moment that individuals, either singly or in company, for the purpose of compelling a master to accede to their views, use force or threats of force, or in any way injure or threaten to injure either the master, or those working or wishing to work for him, the act becomes illegal. Interference with the movement of employees in passing in and out of their employer's factory, or the use of abusive language, upon the streets or elsewhere, toward such employees, indeed, any conduct which is calculated to induce those working or wishing to work, against their wish, to abandon their work, or their intention to seek work, is within the limits of coercive conduct. There is no contrariety of judicial view in respect to the illegality in the use of any act which is calculated to coerce, but in respect to what acts are to be regarded as coercive there is naturally more difference in judicial sentiment. * * * "I can not say that the law is so settled that a preliminary injunction can go upon the notion that picketing, without some other act evidential of coercion, is in itself evidence of intimidation. The decision of the question, I think, must depend upon the circumstances surrounding each case. There must be taken into account the size of the guard, the extent of their occupation of the street, and what they say and do. Taking every circumstance into account, if it appears that the purpose of the picketing is to interfere with those passing into or out of the works, or those wishing to pass into the works, by other than persuasive means, it is illegal. If the design of the picketing is to see who can be the subject of persuasive inducements, such picketing is legal.' In view of these doctrines, the court held that the acts of the strikers in this case were illegal. It was proved, so the court declared, that large bodies of men were almost continuously in and around the factory of the complainant, and that large bodies met each incoming train and intercepted the workmen. "The newcomers were surrounded and jostled, and pushed along, until they were landed in the headquarters of the strikers. It was almost a physical impossibility for the workmen to move otherwise than according to the will of the crowd." The strikers in the vicinity of the factory occasionally attacked property, used abusive language toward employees, and even interfered with those seeking to enter the yard, and thus "became a coercive instrument. Turning now to those American cases in which the element of intimidation has been less conspicuous, we find one of the earliest of the important decisions in Sherry v. Perkins, decided by the supreme judicial court of Massachusetts in 1888. Here the defendants, members of the Lasters' Protective Union, were enjoined from patrolling in front of the premises of P. P. Sherry, and carrying banners inscribed with the words: Lasters are requested to keep away from P. P. Sherry's. Per order L. P. U.," and "Lasters on strike; all lasters are requested to keep away from P. P. Sherry's. Per order L. P. U." The court declared that the act of displaying banners with devices, as a means of threats and intimidation, to prevent persons from entering into or continuing in the employment of the plaintiff, was injurious to the plaintiff, and illegal at common law and by statute." The injury was to the plaintiff's business and justified an injunction. The report of the case does not show that there were any other acts on the part of the strikers to which objection was made, except that described. The same court took a very similar stand in the case of Vegelahn v. Guntner, decided in 1896.3 In this case the patrol was combined with "social pressure, threats of personal injury, or unlawful harm,” but the decision does not specify the more precise acts constituting such threats and pressure, apparently considering that the presence of the patrol itself amounted to intimidation. The patrol, which was maintained from half past 6 in the morning until half past 5 in the afternoon on one of the busiest streets of Boston * * # * 黃 was maintained as It was thus one * one of the means of carrying out the defendant's plan. means of intimidation, indirectly to the plaintiff, and directly to persons actually employed, or seeking to be employed, by the plaintiff, and of rendering such employment unpleasant or intolerable to such persons. * Intimidation is 146 Atl. Rep., 208-211. * * |