people generally. The United States strike commission, which investigated the great railroad strike of 1894, reported against compulsory settlement of labor disputes on railways, but advocated the establishment of a commission with power to investigate such disputes and to recommend terms of settlement to the parties, as well as to make public its opinions as to the merits of the dispute. The board also advocated legal enforcement of the decisions of arbitrators regarding labor disputes, provided both parties agreed in advance to arbitrate. The New York board of arbitration has on several different occasions gone further and recommended that the conditions of labor on steam and street railways should be determined either by mutual agreement between the parties, or by arbitration by a board established by them or by the State board of arbitration; that strikes and lockouts should be prohibited; and that resignation or dismissal from the service should be permitted only after due notice. The Ohio board of arbitration has advocated that, in case any dispute is carried to such a length as to threaten the general public welfare, the State board of arbitration should be permitted to interfere and to render a binding decision regarding the points at issue. The Indiana labor commission has adopted a suggestion, not infrequently made in other quarters, that the law should require the parties to any labor dispute to attempt conciliation, in accordance with some proper method, before actual cessation of employment. This board also takes the same position as the Ohio board regarding compulsory intervention in prolonged and serious strikes.

I C-VOL XVII-01-VIII

CHAPTER III.

LAWS AND COURT DECISIONS AS TO LABOR COMBINATIONS.

I. INTRODUCTION.

The subject of the attitude of legislatures and of courts regarding the legality of the acts of workingmen and labor organizations is a very interesting and important one. It is often asserted that many acts of workingmen in connection with strikes, boycotts, and combinations of labor are tyrannous and violent, and contrary to recognized principles of law. On the other hand, workingmen almost universally complain that the attitude of the law, especially as interpreted by the American courts, toward their acts is in many cases unjust, and places them at a great disadvantage in their struggle to secure better conditions of employment. Very numerous cases involving certain acts of strikers and of trade unionists have been brought before the courts, and in a large majority of instances these acts have been held either civilly unlawful or criminal, while in many cases, particularly in recent years, injunctions to restrain them have been issued. Most workingmen maintain that such practices as refusal on their part to work with nonunion men, the employment of the boycott against so-called "unfair" employers, or picketing, are not only legitimate but in many cases essential methods of attaining their ends, yet all of these acts are ordinarily held unlawful by the courts.

Perhaps the most fundamental principle applied by courts and legislatures in regard to acts of labor combinations is the principle of criminal conspiracy. The English common-law doctrine held that a combination of two or more persons to accomplish an unlawful purpose by means either lawful or unlawful, or to accomplish a lawful purpose by criminal or unlawful means, was an illegal conspiracy. The element of malicious intent is a conspicuous feature of the doctrine, while the element of combination is also essential. A mere intent on the part of an individual to commit an unlawful act is not criminal unless the act is actually carried out, but in the case of concerted action the combination with unlawful intent is usually held to be criminal, even though no overt acts follow. The thought is that the action of a large body of men is much more powerful for evil than that of a single individual. While this doctrine is very generally upheld and applied very broadly by the American courts, unless it has been modified by statute, there are some judges and legal writers who deny emphatically the justice of the principle that acts which, if done by an individual, would not be punishable become criminal when done by a combination, asserting that such a principle is contrary to the fundamental right of men to act in associa tion, and of the inevitable trend of advancing civilization to render collective action

more necessary.

The highest English judicial authorities have in several recent cases declared that the intent of a combination to injure does not render civilly unlawful acts which would not be civilly unlawful if done by an individual; and there seems little doubt that the tendency in Great Britain is to consider the element of combination with unlawful intent less significant also as regards criminal law than was formerly the

case.

Court decisions do not always clearly point out the distinction between civil liability and criminal liability, or between the elements contributing to each. It is stated by some authorities that malicious intent is not properly to be taken into account in determining whether an act creates a cause of action for civil damages, though it may be properly considered in criminal law. This position, as just suggested, is now the ruling one in Great Britain, where the famous cases of Mogul Steamship Company v. McGregor and Allen v. Flood established it firmly as regards the acts of labor combinations and combinations of business men as well. In the United States, on the other hand, the courts in many cases seem clearly to have held the opinion that the presence of malice makes an act civilly unlawful which would not otherwise be so. Some high American legal authorities, however, dissent directly from this position.

A similar conflict of opinion exists as regards the effect of the presence of combination upon civil liability. Some authorities maintain that acts which would not give a cause of action if done by individuals give no cause of action if done by a combination, but the American courts in several important cases have taken the opposite position.

II. LEGALITY OF STRIKES IN THEMSELVES.

It is a well-known fact that, in earlier times and up to the end of the first quarter of the present century, mere concerted action of workingmen in refusing to continue in employment was held by the British courts to be criminal conspiracy. This common-law doctrine was affirmed in one or two early cases in the United States, but it is now definitely abandoned in both countries. Indeed, in Great Britain a statute passed in 1875 expressly affirms the legality of strikes and of various other acts of labor combinations.

We find occasional expressions of opinion by American judges, somewhat in the nature of obiter dicta, to the effect that in actual practice strikes are always attended by unlawful acts, or even that they are in their very essence unlawful, but in recent years no decisions of courts of ultimate resort have formally taken this extreme ground. In the Northern Pacific Railway case of 1894 Judge Jenkins, of the Federal circuit court, issued an injunction prohibiting the employees of the railroad from quitting work, with or without notice, on the ground that thereby great injury would be done to the railroad and also to the general public served by it. This decision was, however, overruled by the circuit court of appeals; and it was declared an invasion of natural liberty to compel any man to remain in the personal service of another, although the court intimated that legislation might perhaps wisely be enacted to restrict strikes on great railway systems. It has also been held that the quitting of employment under certain circumstances, without proper notice, is unlawful, particularly where it results in actual danger to life and property, as in case of railway employees who should leave their trains before reaching the end of the journey. Indeed, in not a few States statutes have been passed prohibiting railway employees, individually or collectively, from so quitting work as to endanger the safety of persons and property. This, however, is evidently an entirely different principle from that of the illegality of strikes in themselves.

Different considerations are involved in strikes which have for their motive not the direct improvement of the condition of the strikers, but some other object, such as that of compelling employers to discharge third persons or of aiding other workmen by a sympathetic strike. As is more fully shown below, strikes with such indirect motives are frequently held unlawful. The case of the sympathetic strike, pure and simple, has apparently never been decided by the higher courts, and it is perhaps doubtful whether such a strike would be held unlawful, unless it involved other elements, such as that of the boycott.

III. ENTICEMENT OF EMPLOYEES.

By the old English common law it was illegal to entice an employee away from his employer, on the ground of the alleged damage to the employer. This doctrine was long since abandoned in Great Britain and has seldom been applied by the authoritative courts in the United States. In one Massachusetts case, in 1871, workingmen who persuaded certain employees to quit and to break a contract were held guilty of illegal conspiracy, and a Federal court took a somewhat similar position in the later case of Old Dominion Steamship Company ". McKenna. In several other instances, however, the courts have specifically repudiated the doctrine that peaceful persuasion of employees to quit employment is either actionable or criminal, and there seems little doubt that this would be the ordinary position of the highest courts. A different problem arises where intimidation is involved or where persua sion or coercion is directed toward those not already in employment. These questions are discussed in other connections. The court decisions as to the incitement of strikes on interstate carriers are also referred to below.

In several of the Southern States statutes have been enacted which prohibit enticing away persons who are under contract of employment and which also prohibit laborers themselves from breaking such contracts. These statutes were apparently specifically designed to prevent negro farm laborers from breaking their contracts to "make a crop" by work throughout the season. The defense put forward for such legislation is the irresponsibility of many farm laborers in the South and their tendency to quit work at a time when great loss is entailed upon the employer.

IV. COMBINATIONS TO PROCURE DISCHARGE OR PREVENT EMPLOYMENT.

It is a very common practice of trade unions to refuse to work in the same establishment with nonunion men, and to bring pressure to bear in various ways to compel employers to exclude nonunion men and others who are obnoxious to the union. In a very considerable number, doubtless a large majority, of cases where this practice has been brought before American courts they have held that such attempts of combinations of workingmen to procure the discharge or prevent the employment of others are unlawful, amounting to criminal conspiracies, or at least giving ground for civil damages. These decisions assert that such action involves an intent to injure the employer or the employee, without any sufficient motive of securing benefit to the members of the combination. They declare that every man has a right to employ his capital as he pleases, free from the dictation of others, that it is unlawful to coerce an employer as to the persons he shall employ; and, similarly, that every workingman has the right to labor and that he may not be hindered by such a combination. It has even been held recently (1897) by the court of appeals of New York that a contract or agreement between associations of employers and of employees that only members of the labor union shall be employed is unlawful, though voluntarily entered into on each side. This decision is striking, in view of the fact that such contracts for the exclusive employment of union men exist in very many trades and localities.

It should be noted, however, that in Great Britain the doctrine that refusal to work with other men for any reason is unlawful has recently been emphatically repudiated by the House of Lords, the highest judicial authority. In the case of Allen v. Flood (1898) union men threatened an employer with a strike if he should not discharge certain members of another union employed upon work which the first union held to come within its own sphere. Six of the nine law lords held that this was neither civilly actionable nor criminal. They asserted that the motive of the action had nothing to do with its legality; that every servant is entitled, for any

reason which he sees fit, good or bad, to refuse longer to continue in employment; and that, so long as no absolutely unlawful means, such as intimidation, are used to persuade the employer to discharge other men, the person using such persuasion is within his rights. The judges also specifically held that pressure brought to bear upon employers in this way can not be considered unlawful coercion, or intimidation, or interference with the business of the employer. Such a high authority as Sir Frederick Pollock had indeed earlier, in summarizing the English law for the Royal Labor Commission, declared that intimidation in connection with labor disputes was usually held by the courts to refer only to the threat of acts which are in themselves unlawful, and to no other form of pressure or coercion.

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The decision in Allen r. Flood has already been quoted with approval and followed in two or three decisions by the supreme court in New York (the highest court of original jurisdiction, and second only to the court of appeals), and this court seems definitely committed to recognition of the right of union men to refuse to work with nonunion men or members of other unions. Whether this position will be affirmed by the court of appeals, which took the opposite stand as late as 1897, is, perhaps, doubtful.

The supreme court of Massachusetts, in 1899, specifically denied the authority of the English precedent in Allen v. Flood, holding that the act of members of a labor union in persuading employers, by threat of strike and otherwise, to discharge members of another union or to compel them to join the defendant union, was unlawful. The court declared that such an act is malicious, and that the element of malice must be considered. It was held, also, that coercion need not imply the threat of physical violence or injury to property, if it restrains the liberty of the mind. Judge Holmes, in a dissenting opinion in this case, however, declared that the action of the union could not be considered as malicious and without sufficient motive, for, while the union did not specifically demand an advance in wages, it did demand that which it considered necessary for strengthening the organization in order to enable it to secure better conditions in the future. The judge said:

"I think that unity of organization is necessary to make the contest of labor effectual, and that societies of labor lawfully may employ in their preparation the means which they might use in the final contest."

Judge Holmes thus recognizes, as very few judges have done in their decisions, the actual motive of labor organizations in striving to exclude nonunion men from employment. This motive has already been discussed in the present report in another connection. (See p. XLVIII.)

The legality of refusal to work with nonunion men has also been upheld by the highest courts in Indiana and in New Jersey; although in the latter State the decision was made in view of a statute legalizing strikes and combinations of labor, and specifically permitting persuasion of persons not to enter into employment.

It appears, therefore, that the decisions of American courts on the subject of attempts of combinations of workingmen to procure the discharge or prevent the employment of others are exceedingly conflicting, although, perhaps, a majority of the decisions of the courts of ultimate resort have hitherto maintained the illegality of such action.

V. PICKETING AND INTIMIDATION.

Cases involving the practices of strikers in endeavoring to persuade or to prevent others from taking their places have come before the American courts more frequently than any other class of cases relating to labor. The use of the injunction against such acts has been especially frequent.

In many States are found statutes expressly prohibiting intimidation of workingmen or others in their lawful business, while in those States which have specifically legalized strikes the laws ordinarily except combinations for the purpose of intimidating or coercing others, which are declared illegal. In the absence of statutes the