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be lawfully interfered with by one in the exercise of an equal or superior right and thus the ground upon which the right to obtain the place of another in direct and lawful competition is sustained. The right of a labor organization to enforce a closed shop for the mere purpose of strengthening the labor organization in future contests with the employer is not competition and is not of the same character or equal to the right of the individual to dispose of his labor at his own will."

Whatever view may be taken regarding the minority statement, it seems fairly clear from the cases that the minority is right in saying that the Kemp case alters the previous attitude of the supreme court of Illinois. It may therefore be said that the supreme court of Illinois has in the case just referred to departed from its earlier attitude with respect to the lawfulness of a strike for the closed shop.

Other matters with respect to the lawfulness of strikes and the lawfulness of actions in connection therewith have not been so fully passed upon by the supreme court of Illinois. In the recent case of Lyon & Healy v. The Piano, Organ and Musical Instrument Workers' International Union, the injunction involved is said to have been substantially like the decree of injunction involved in Barnes & Company v. Chicago Typographical Union. In spite of this fact, however, two justices dissented without opinion from a judgment sustaining a punishment for contempt in violating the injunction, and two other judges specially concurring took a view squarely that the injunction was too sweeping in its provisions “particularly the provision enjoining the appellants or those associating with them from interfering or attempting to hinder the appellee from carrying on its business in the usual and ordinary way. It is difficult to conceive of a strike without some damage occurring to the parties in the dispute. Even if the strikers commit no physical violence, the striking employes always plan and intend to deprive the employers of their labor and in so doing they necessarily unsettle the work of the employers and in most instances in so doing thereby cause damage. Furthermore, we are disposed to think that the restraining order is too broad in its phraseology in reference to picketing appellees' place of business.

A strike for the closed shop is regarded as lawful in some states of the union and as unlawful in others. Although the matter of injunctions in labor cases is now pretty fully covered by federal statutes to be referred to in this article, the United States supreme court in recent cases, arising before these statutes were enacted has taken a view against the lawfulness of the strike for the closed shop, Justice Pitney taking for the United States supreme court very much the same view which he had earlier taken as a chancellor in New Jersey.'

8 289 Ill. 176 (1919).

Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229; Eagle Glass & Mfg. Co. v. Rowe. 245 U. S. 275 (1917).

There seems to have been a tendency, as is indicated by the attitude of the Illinois supreme court, toward regarding the strike for the closed shop as lawful. The decisions at the present time are, however, opposed to the lawfulness of a sympathetic strike, and there is a general rule now well recognized that it is unlawful to cause the breach of existing contracts, such rule applying to an effort to bring about a breach of contract between employer and employes, as well as to the breaches of other contracts.

If a strike be regarded as unlawful, the problem then presents itself as to what actions may be enjoined in connection with such a strike. The quitting of work is not enjoinable, even though the persons quitting work are under contract. This matter is perhaps as well established as any other principle of American law. However, if a strike is regarded as unlawful, courts in this country have enjoined such actions in connection with it as the calling of the strike by labor leaders (that is, the use of the union organization for the purpose of conducting a strike); the payment of strike benefits by a union; the threat to strike for a purpose regarded as unlawful; peaceful persuasion, and peaceful picketing.

However, all of these actions are not regarded as proper even when a strike itself may be considered lawful. If a strike is considered lawful, it is certainly possible in connection with it to use all of the machinery of a union organization, and to pay strike benefits. Peaceful persuasion also appears to be lawful, and in some states peaceful picketing is regarded as lawful, although this is doubtful in Illinois at the present time. In Massachusetts it has been held unlawful to fine members for refusing to strike, even though the strike itself be regarded as lawful. The secondary boycott, either in connection with a strike or otherwise, is generally regarded as unlawful.

It will be noted from this discussion that there are two points at issue: (1) when will a strike or threat to strike be regarded as unlawful, and the use of the machinery of organized labor be substantially forbidden in carrying out the purposes of such a strike, and (2) if a strike be regarded as lawful, what instrumentalities for the conduct of that strike may lawfully be used. As to both of these matters the law both in Illinois and in the other states is unsettled, although to a large extent the matter has been settled by federal legislation, which is quoted in full in this discussion. This legislation has largely adopted the attitude of the labor organizations.

Arguments for and against the restriction of injunctions in. labor cases. Those opposed to the restriction of injunctions in labor cases urge that to enact such a restriction will place labor organizations in a preferred position with respect to the law, and that not only is such a preferred position unjustifiable, but that there is no need for such a position in order to protect the legiti

mate interests of labor. The Kemp case in 255 Ill., is cited as one in which the court went far to sustain the legality of acts of organized labor.

Those who urge the need for a restriction of the use of injunctions in labor cases allege that labor is not asking for a special privilege or a preferred position, but for relief from a situation which operates unequally with respect to labor. Their position is based largely upon the fact that the law with respect to labor controversies is in an unsettled condition, as the law always is in any rapidly growing field of the law. Their arguments may be substantially summarized as follows:

(1) The purpose of an injunction is primarily that of maintaining existing rights, but they assert that the injunction in labor cases normally settles the matter in controversy as the result of an informal hearing, or as the result of action without notice to the laborers. In their view, an injunction is issued by the judge of a lower court (the judge often selected by the applicant for the injunction) and the injunction when issued operates to defeat the laborers in their controversy, and has this effect before the injunction can be dissolved as the result of an appeal to a higher court. Their point is that, inasmuch as the laborers must bring pressure to bear upon their employer promptly or fail, an injunction issued by the lower court, if it is improper, will actually defeat the laborers before the injunction can be removed. In the Lyon & Healy case, which has been referred to above, the majority of the court did not say that the injunction was improper, although two specially concurring judges said this, and two judges dissented. Whether the dissenting judges were of the opinion that the injunction was improper, is, of course, a matter of conjecture. However, if it were true that the four judges were of opinion that the injunction issued by the lower court was improper, the labor leaders urge that the effect of the improper injunction would have been accomplished as against the laborers before it could have been dissolved.

(2) It is also urged by those favoring a restriction of the use of injunctions in labor cases that, even if the injunction be proper on its face, a judge may punish acts which he regards as violating the injunction, but which on appeal may not be so regarded. That is, it is urged that even though the injunction were fair upon its face, the judge of the trial court may actually coerce people into doing things which they had a right to do, even though these things are not properly within the scope of the matters prohibited by the injunction. The case of Illinois Malleable Iron Company v. Michalekło is cited on this point.

(3) On the basis of the points made above, those advocating the restriction of the use of the injunction in labor controversies urge that the present situation places a really final decision in the inferior court acting often in an ex parte proceeding. They also

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10 279 Ill. 221 (1917).

charge that inferior courts sometimes act purposely against the decisions of the higher state courts in such matters."

The chief actual difficulty, as may be indicated from the previous discussion, is the unsettled state of the law as to labor controversies, and the point really contended for by labor organizations and their supporters is either a more definite statement of the law or a limitation upon the machinery through which the law is applied by the courts. The law with respect to a number of these matters has been settled in England, largely in the manner desired by labor organizations, by the Trade Disputes Act of 1906, which is regarded as of sufficient importance to be given here:

1. “An act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done without any such agreement or combination, would be actionable."

2. Lawful in connection with a trade dispute “to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working.”

3. "An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business or employment of some other person, or with the right of some other person to dispose of his capital or his labor as he wills.”

4. "An action against a trade union, whether of workmen or masters, or against any member or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any court."


Proposed legislation in Illinois and legislation in other states. An effort has been made at several sessions of the Illinois general assembly to obtain legislation, exempting labor controversies from the application of an injunction and providing for jury trial in contempt cases. In 1919 the bills proposed in the Illinois general assembly (house bills 26, 27 and 32) sought primarily to enact as applicable to judicial proceedings in Illinois the provisions of Sections 6, 20, 21 and part of Section 22 of the Clayton Act, the full text of which is given below. That is, the effort was being made in this state to apply to the state courts a rule which has already been adopted by statute with reference to the federal courts.

11 As an instance of this, the case of Schwarcz v. International Ladies' Garment Workers' Union, 124 N. Y. Suppl. 968 (1910) is sometimes cited,

12 6 Edw. VII, Ch. 47 (1906).

Both before and after the enactment of the Clayton act by Congress, measures to accomplish substantially the same purposes have been enacted by state legislatures. Legislation in California and Massachusetts has been held invalid by the courts of those states, and the decisions are commented upon in a later part of this discussion. The legislature of Montana in 1913 enacted that an injunction should not be granted "in labor disputes under any other or different circumstances or conditions, than if the controversy were of another or different character, or between parties neither or none of whom were laborers or interested in labor questions" (Sec. 6121 as amended in 1913). The Montana court, in a liberal decision upon a labor controversy, took occasion to say that this legislation adds nothing to pre-existing law. (Empire Theatre Co. v. Cloke, 53 Mont. 183, 1917.)

The legislature of Kansas in 1913 enacted a law, the substance of which is similar to sections 17 to 20 of the Clayton act. (Kansas Laws, 1913, Chap. 233.) Apparently the validity of this law has not been involved in any case before the Supreme Court of Kansas.

Minnesota legislation of 1917 declares labor not a commodity or an article of commerce, and forbids the use of injunctions in certain cases, using much the same language as section 20 of the Clayton act. (Minnesota session laws, 1917, Chap. 493.)

Utah in 1917 enacted a law which declares labor not a commodity or an article of commerce, limits the use of injunctions in labor cases, limits the penalties for contempts, and provides for jury trial in contempt cases. This act closely parallels sections 6, 20 and 22 of the Clayton act. (Utah session laws, 1917 p. 210). North Dakota in 1919 enacted a law which embodies the substance of section 20 of the Clayton act. Anti-injunction legislation was also enacted in 1919 by Oregon, Washington and Wisconsin, and Iowa exempted labor organizations from the operation of the anti-trust laws.

In the Massachusetts constitutional convention proposals with respect to this subject were made and discussed, but were rejected. (Debates in the Massachusetts Constitutional Convention, 1917-1918, Vol. I, pp. 1010-1165). A full report on labor injunctions in Massachusetts will be found in the forty-seventh annual report on the Statistics of

bor (Boston, 1917).

United States legislation. After a long controversy, congress enacted in 1914 legislation which seeks to meet the objections urged by labor organizations to the use of injunctions in labor cases. This congressional legislation is so important that it is here given in full. The Clayton Act, of which these provisions form a part, deals with the general subject of combinations in restraint of trade, and only the provisions are here given which are appropriate to the subject now under discussion.

Sec. 6. (Labor organizations, etc., not within provisions of act.) That the labor of a human being is not a commodity or article of commerce. Nothing contained in the anti-trust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not

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