Part 9 (1/2)
CHAPTER 7
TRADE UNIONISM AND THE COURTS
While it was in the nineties that trade unionists first tasted the sweets of inst.i.tutionalization in industry through ”recognition” by employers, it was also during the later eighties and during the nineties that they experienced a revival of suspicion and hostility on the part of the courts and a renewal of legal restraints upon their activities, which were all the more discouraging since for a generation or more they had practically enjoyed non-interference from that quarter. It was at this period that the main legal weapons against trade unionism were forged and brought to a fine point in practical application. The history of the courts' att.i.tude to trade unionism may therefore best be treated from the standpoint of the nineties.
The subject of court interference was not altogether new in the eighties. We took occasion to point out the effect of court interference in labor disputes in the first and second decades of the nineteenth century and again in the thirties. Mention was made also of the court's decision in the Theiss boycott case in New York in 1886, which proved a prime moving factor in launching the famous Henry George campaign for Mayor. And we gave due note to the role of court injunctions in the Debs strike of 1894 and in other strikes. Our present interest is, however, more in the court doctrines than in their effects: more concerned with the development of the legal thought underlying the policies of the courts than with the reactions of the labor movement to the policies themselves.
The earliest case on record, namely the Philadelphia shoemakers' strike case in 1806,[29] charged two offences; one was a combination to raise wages, the other a combination to injure others; both offences were declared by the judge to be forbidden by the common law. To the public at large the prosecution seemed to rest solely upon the charge that the journeymen combined to raise wages. The defense took advantage of this and tried to make use of it for its own purposes. The condemnation of the journeymen on this ground gave rise to a vehement protest on the part of the journeymen themselves and their friends. It was pointed out that the journeymen were convicted for acts which are considered lawful when done by masters or merchants. Therefore when the next conspiracy case in New York in 1809 was decided, the court's charge to the jury was very different. Nothing was said about the illegality of the combinations to raise wages; on the contrary, the jury was instructed that this was not the question at issue. The issue was stated to be whether the defendants had combined to secure an increase in their wages by unlawful means. To the question what means were unlawful, in this case the answer was given in general terms, namely that ”coercive and arbitrary” means are unlawful. The fines imposed upon the defendants were only nominal.
A third notable case of the group, namely the Pittsburgh case in 1815, grew out of a strike for higher wages, as did the preceding cases. The charges were the same as in those and the judge took the identical view that was taken by the court in the New York case. However, he explained more fully the meaning of ”coercive and arbitrary” action. ”Where diverse persons,” he said, ”confederate together by direct means to impoverish or prejudice a third person, or to do acts prejudicial to the community,” they are engaged in an unlawful conspiracy. Concretely, it is unlawful to ”conspire to compel an employer to hire a certain description of persons,” or to ”conspire to prevent a man from freely exercising his trade in a particular place,” or to ”conspire to compel men to become members of a particular society, or to contribute toward it,” or when persons ”conspire to compel men to work at certain prices.”
Thus it was the effort of the shoemakers' society to secure a closed shop which fell chiefly under the condemnation of the court.
The counsel for the defense argued in this case that whatever is lawful for one individual is lawful also for a combination of individuals. The court, however, rejected the arguments on the ground that there was a basic difference between an individual doing a thing and a combination of individuals doing the same thing. The doctrine of conspiracy was thus given a clear and unequivocal definition.
Another noteworthy feature of the Pittsburgh case was the emphasis given to the idea that the defendants' conduct was harmful to the public. The judge condemned the defendants because they tended ”to create a monopoly or to restrain the entire freedom of the trade.” What a munic.i.p.ality is not allowed to do, he argued, a private a.s.sociation of individuals must not be allowed to do.
Of the group of cases which grew out of the revival of trade union activity in the twenties, the first, a case against Philadelphia master shoemakers, was decided in 1821, and the judge held that it was lawful for the masters, who had recently been forced by employes to a wage increase, to combine in order to restore wages to their ”natural level.”
But he also held that had the employers combined to depress wages of journeymen below the level fixed by free compet.i.tion, it would have been criminal.
Another Pennsylvania case resulted from a strike by Philadelphia tailors in 1827 to secure the reinstatement of six discharged members. As in previous cases the court rejected the plea that a combination to raise wages was illegal, and directed the attention of the jury to the question of intimidation and coercion, especially as it affected third parties. The defendants were found guilty.
In a third, a New York hatters' case of 1823, the charge of combining to raise wages was entirely absent from the indictment. The issue turned squarely on the question of conspiring to injure others by coercion and intimidation. The hatters were adjudged guilty of combining to deprive a non-union workman of his livelihood.
The revival of trade unionism in the middle of the thirties brought in, as we saw, another crop of court cases.
In 1829 New York State had made ”conspiracy to commit any act injurious to public morals or to trade or commerce” a statutory offence, thus reenforcing the existing common law. In 1835 the shoemakers of Geneva struck to enforce the closed shop against a workman who persisted in working below the union rate. The indictment went no further than charging this offence. The journeymen were convicted in a lower court and appealed to the Supreme Court of the State. Chief Justice Savage, in his decision condemning the journeymen, broadened the charge to include a conspiracy to raise wages and condemned both as ”injurious to trade or commerce” and thus expressly covered by statute.
The far-reaching effects of this decision came clearly to light in a tailor's case the next year. The journeymen were charged with practising intimidation and violence, while picketing their employers' shops during a prolonged strike against a reduction in wages. Judge Edwards, the trial judge, in his charge to the jury, stigmatized the tailors' society as an illegal combination, largely basing himself upon Judge Savage's decision. The jury handed in a verdict of guilty, but recommended mercy.
The judge fined the president of the society $150, one journeyman $100, and the others $50 each. The fines were immediately paid with the aid of a collection taken up in court.
The decisions produced a violent reaction among the workingmen. They held a ma.s.s-meeting in City Hall Park, with an estimated attendance of 27,000, burned Judge Savage and Judge Edwards in effigy, and resolved to call a state convention to form a workingmen's party.
So loud, indeed, was the cry that justice had been thwarted that juries were doubtless influenced by it. Two cases came up soon after the tailors' case, the Hudson, New York, shoemakers' in June and the Philadelphia plasterers' in July 1836. In both the juries found a verdict of not guilty. Of all journeymen indicted during this period the Hudson shoemakers had been the most audacious ones in enforcing the closed shop. They not only refused to work for employers who hired non-society men, but fined them as well; yet they were acquitted.
Finally six years later, in 1842, long after the offending trade societies had gone out of existence under the stress of unemployment and depression, came the famous decision in the Ma.s.sachusetts case of Commonwealth _v._ Hunt.
This was a shoemakers' case and arose out of a strike. The decision in the lower court was adverse to the defendants. However, it was reversed by the Supreme Judicial Court of Ma.s.sachusetts. The decision, written by Chief Justice Shaw, is notable in that it holds trade unions to be legal organizations. In the earlier cases it was never in so many words held that trade unions were unlawful, but in all of them there were suggestions to this effect. Now it was recognized that trade unions are _per se_ lawful organizations and, though men may band themselves together to effect a criminal object under the disguise of a trade union, such a purpose is not to be a.s.sumed without positive evidence. On the contrary, the court said that ”when an a.s.sociation is formed for purposes actually innocent, and afterwards its powers are abused by those who have the control and management of it to purposes of oppression and injustice, it will be criminal in those who misuse it, or give consent thereto, but not in other members of the a.s.sociation.” This doctrine that workingmen may lawfully organize trade unions has since Commonwealth _v._ Hunt been adopted in nearly every case.
The other doctrine which Justice Shaw advanced in this case has been less generally accepted. It was that the members of a union may procure the discharge of non-members through strikes for this purpose against their employers. This is the essence of the question of the closed shop; and Commonwealth _v._ Hunt goes the full length of regarding strikes for the closed shop as legal. Justice Shaw said that there is nothing unlawful about such strikes, if they are conducted in a peaceable manner. This was much in advance of the position which is taken by many courts upon this question even at the present day.
After Commonwealth _v._ Hunt came a forty years' lull in the courts'
application of the doctrine of conspiracy to trade unions. In fact so secure did trade unionists feel from court attacks that in the seventies and early eighties their leaders advocated the legal incorporation of trade unions. The desire expressed for incorporation is of extreme interest compared with the opposite att.i.tude of the present day. The motive behind it then was more than the usual one of securing protection for trade union funds against embezzlement by officers. A full enumeration of other motives can be obtained from the testimony of the labor leaders before the Senate Committee on Education and Labor in 1883. McGuire, the national secretary of the Brotherhood of Carpenters and Joiners, argued before the committee for a national incorporation law mainly for the reason that such a law pa.s.sed by Congress would remove trade unions from the operation of the conspiracy laws that still existed though in a dormant state on the statute books of a number of Slates, notably New York and Pennsylvania. He pleaded that ”if it (Congress) had not the power, it shall a.s.sume the power; and, if necessary, amend the const.i.tution to do it.” Adolph Stra.s.ser of the cigar makers raised the point of protection for union funds and gave as a second reason that it ”will give our organization more stability, and in that manner we shall be able to avoid strikes by perhaps settling with our employers, when otherwise we should be unable to do so, because when our employers know that we are to be legally recognized that will exercise such moral force upon them that they cannot avoid recognizing us themselves.” W.H. Foster, the secretary of the Legislative Committee of the Federation of Organized Trades and Labor Unions, stated that in Ohio the law provided for incorporation at a slight cost, but he wanted a national law to ”legalize arbitration,” by which he meant that ”when a question of dispute arose between the employers and the employed, instead of having it as now, when the one often refuses to even acknowledge or discuss the question with the other, if they were required to submit the question to arbitration, or to meet on the same level before an impartial tribunal, there is no doubt but what the result would be more in our favor than it is now, when very often public opinion cannot hear our cause.” He, however, did not desire to have compulsory arbitration, but merely compulsory dealing with the union, or compulsory investigation by an impartial body, both parties to remain free to accept the award, provided, however, ”that once they do agree the agreement shall remain in force for a fixed period.” Like Foster, John Jarrett, the President of the Amalgamated a.s.sociation of Iron and Steel Workers, argued for an incorporation law before the committee solely for its effect upon conciliation and arbitration. He, too, was opposed to compulsory arbitration, but he showed that he had thought out the point less clearly than Foster.
The young and struggling trade unions of the early eighties saw only the good side of incorporation without its pitfalls; their subsequent experience with courts converted them from exponents into ardent opponents of incorporation and of what Foster termed ”legalized arbitration.”
During the eighties there was much legislation applicable to labor disputes. The first laws against boycotting and blacklisting and the first laws which prohibited discrimination against members who belonged to a union were pa.s.sed during this decade. At this time also were pa.s.sed the first laws to promote voluntary arbitration and most of the laws which allowed unions to incorporate. Only in New York and Maryland were the conspiracy laws repealed. Four States enacted such laws and many States pa.s.sed laws against intimidation. Statutes, however, played at that time, as they do now, but a secondary role. The only statute which proved of much importance was the Sherman Anti-Trust Act. When Congress pa.s.sed this act in 1890, few people thought it had application to labor unions. In 1893-1894, as we shall see, however, this act was successfully invoked in several labor controversies, notably in the Debs case.
The bitterness of the industrial struggle during the eighties made it inevitable that the labor movement should acquire an extensive police and court record. It was during that decade that charges like ”inciting to riot,” ”obstructing the streets,” ”intimidation,” and ”trespa.s.s” were first extensively used in connection with labor disputes. Convictions were frequent and penalties often severe. What att.i.tude the courts at that time took toward labor violence was shown most strikingly, even if in too extreme a form to be entirely typical, in the case of the Chicago anarchists.[30]