1. A decree of injunction in a labor controversy was entered in
the district court before the date of the Clayton Act, c. 323, 38
Stat. 738, but was pending on appeal in the circuit court of
appeals when the act was approved.
Held that the plaintiff
had no vested right in the decree, and that the act was to be
regarded in determining the appeal. P.
257 U. S.
201.
2. The irreparable injury to property referred to in the first
paragraph of § 20 of the Clayton Act,
supra, includes
injury to the business of an employer. P.
257 U. S.
202.
3. The second paragraph of § 20 of the Clayton Act does not
apply to a dispute between an employer and persons who are neither
ex-employees nor seeking employment.
Duplex Printing Press Co.
v. Deering, 254 U. S. 443.
Held, in this case, that only those defendants who left
the plaintiff's employ when a strike was called
Page 257 U. S. 185
by the defendant labor union, as distinguished from those who
had been employed but were laid off some months previously and
those who had not been in the employment, could invoke § 20 in
their behalf. P.
257 U. S.
202.
4. The Clayton Act, § 20, in forbidding injunctions to restrain
employees, recent or expectant, from the use of peaceful persuasion
in promotion of their side of the controversy, or from obtaining or
communicating information in any place where they may lawfully be,
merely declares and stabilizes what was always the best equity
practice. P.
257 U. S.
203.
5. Workmen have the right to work for whom they will and to go
freely to and from their place of labor undisturbed by annoying
importunities or by the intimidation of numbers, and their employer
has a right, incident to his property and business, that they have
free access to the place where the business is conducted. P.
257 U. S.
203.
6. The "picketing" of an employer's plant by groups of men
stationed near the points of ingress and egress and in neighboring
streets, who importunately intercepted the workmen of the employer
or others seeking employment, and whose activities collected crowds
of bystanders and resulted in personal violence,
held
unlawful, and to be enjoined
eo nomine, without adding the
words "in a threatening or intimidating manner." Pp.
257 U. S. 204,
257 U. S.
207.
7. Such "picketing" creates a condition of intimidation in which
there can be no peaceable communication of information or peaceable
persuasion in the sense of the Clayton Act. P.
257 U. S.
205.
8. An injunction for the protection of an employer in a strike
controversy should be adapted to the facts of the particular case,
safeguarding his rights while affording to ex-employees and others
properly acting with them opportunity, consistent with peace and
law, to observe who are still working for the employer, to
communicate with them, and to persuade them to join his opponents.
Held, in this case, that the strikers and their
sympathizers should be limited to one representative for each point
of ingress and egress at the plant, and that all others should be
enjoined from congregating or loitering about the plant or in
neighboring streets affording access thereto, that such
representatives should have the right of observation,
communication, and persuasion, avoiding abuse, libel, or threats,
and in their efforts singly should not obstruct an unwilling
listener by importunate following or dogging of his steps. P.
257 U. S.
206.
Page 257 U. S. 186
9. An injunction broadly forbidding ex-employees from persuading
employees and would-be employee to leave or stay out of the
employment conflicts with the Clayton Act,
supra. P.
257 U. S.
208.
10. Where the member of a local labor union, though not
ex-employees within the Clayton Act, have reason to expect
reemployment at a plant where wage have been reduced, interference
by them and their union by peaceable persuasion and appeal to
induce a strike against the lowered wages is not malicious or
without lawful excuse, and the principle against malicious
enticement of laborers does not apply. P.
257 U. S. 208.
Hitchman Coal & Coke Co. v. Mitchell, 245 U.
S. 229, and
Duplex Printing Press Co. v.
Deering, 254 U. S. 443,
distinguished.
238 F. 728 reversed in part and affirmed in part.
Review of a decree of the circuit court of appeals which
affirmed, with important modifications, a decree of injunction
rendered by the district court at the suit of the present
petitioner against the respondent labor union and individuals.
Page 257 U. S. 193
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
The American Steel Foundries is a New Jersey corporation
operating a large plant for the manufacture of steel products in
Granite City, Illinois. In May, 1914, it filed a bill in the
District Court for the Southern District of Illinois to enjoin the
defendants, the Tri-City Central Trades Council, and fourteen
individual defendants, some of them officers of the Council, all of
them citizens of other states than New Jersey, from carrying on a
conspiracy to prevent complainant from retaining and obtaining
skilled laborers to operate its plant. The bill charged that the
conspiracy was being executed by organized picketing, accompanied
by threats, intimidation, and violence toward persons employed or
seeking employment there. The defendants in their answer admitted
that the Central Trades Council had established a picket upon
streets leading to the plant, with instructions to notify all
persons entering it that a strike had been called because of
reduction of wages, and to use all honorable means to persuade such
persons not to take the places of the men on the strike; admitted
the participation of individual defendants in the picketing, but
denied threats of injury or violence or responsibility for the
violence that admittedly had occurred. After replication was filed,
the cause was heard. A restraining order issued on filing of the
bill, and a final decree was entered by which defendants were
"perpetually restrained and enjoined from in any way or manner
whatsoever by use of persuasion, threats, or personal injury,
intimidation, suggestion of danger or threats of violence of any
kind, interfering with, hindering, obstructing or stopping any
person engaged in the employ of the American Steel Foundries in
connection with its business or its foundry in the City of
Page 257 U. S. 194
Granite City, County of Madison, State of Illinois, or
elsewhere, and from interfering by persuasion, violence, or threats
of violence in any manner with any person desiring to be employed
by said American Steel Foundries in its said foundry or plant, and
from inducing or attempting to compel or induce by persuasion,
threats, intimidation, force, or violence or putting in fear or
suggestions of danger any of the employees of the American Steel
Foundries or persons seeking employment with it so as to cause them
to refuse to perform any of their duties as employees of the
American Steel Foundries, and from preventing any person by
persuasion, threats, intimidation, force, or violence, or
suggestion of danger or violence, from entering into the employ of
said American Steel Foundries, and from protecting, aiding, or
assisting any person or persons in committing any of said acts, and
from assembling, loitering, or congregating about or in proximity
of the said plant or factory of the American Steel Foundries for
the purpose of doing, or aiding or encouraging others in doing, any
of the said unlawful or forbidden acts or things, and from
picketing or maintaining at or near the premises of the
complainant, or on the streets leading to the premises of said
complainant, any picket or pickets, and from doing any acts or
things whatever in furtherance of any conspiracy or combination
among them, or any of them, to obstruct, or interfere with said
American Steel Foundries, its officers, agents or employees, in the
free and unrestrained control and operation of its plant, foundry,
and property and the operation of its business, and also from
ordering, directing, aiding, assisting, or in any manner abetting
any person committing any or either of the acts aforesaid, and also
from entering upon the grounds, foundry, or premises of the
American Steel Foundries without first obtaining its consent, and
from injuring or destroying any of the property of the said
American Steel Foundries. "
Page 257 U. S. 195
There were twelve assignments of error on the appeal to the
circuit court of appeals, but the important ones which raised the
issue in this case were as follows:
"Eight. Because the complainant was not entitled to an
injunction prohibiting the defendants, while on the streets of
Granite City or while in proximity to such foundry, from trying to
persuade strike breakers from taking the places of the
strikers."
"Ninth. Because the complainant was not entitled to an
injunction prohibiting the defendants from stopping employees of
complainant and suggesting to them that they should not work at
such plant while a strike was on."
"Tenth. Because the complainant was not entitled to an
injunction prohibiting the defendants from assembling, or
congregating in proximity of said foundry or on the streets leading
to such foundry."
"Eleventh. Because the complainant was not entitled to an
injunction prohibiting the defendants from placing any picket or
pickets upon the streets leading to such foundry whose duty it was
to notify those entering said foundry that there was a strike
on."
The circuit court of appeals modified the final decree by
striking out the word "persuasion" in the four places in which it
occurred, and by inserting after the clause restraining picketing
the following: "in a threatening or intimidating manner." 238 F.
728.
The Tri-City Central Trades Council is a labor organization
composed of representatives of thirty-seven trade unions of Granite
City, Madison, and Venice, adjoining towns in Illinois, including
among them electricians, cranemen, mill hands, machinists, and
stationary engineers. In April, 1914, the complainant, which
ordinarily in full operation employed 1,600 men and whose plant had
been shut down since November of the previous year, resumed
operations with about 350 of its regular men, 150 of whom belonged
to the skilled trades, electricians,
Page 257 U. S. 196
cranemen, mill hands, machinists and blacksmiths. At this trial,
the works manager testified:
"When we opened April 6th, we employed whoever we saw fit,
whoever applied for employment at the gate. We had only called for,
in round numbers, 300 men, and laid off approximately 1,300. Eighty
or 90 percent of the employees were old men. I assume these men
were members of various organizations; I can't state definitely as
to that."
When business was resumed in April, half of skilled workmen were
given wages at rates from 2 cents to 10 cents an hour below those
paid before the plant had shut down. The Trades Council was advised
of this about April 15th, and appointed a committee to secure
reinstatement of the previous wages. The manager of the complainant
told them that he ran an open shop, did not recognize organized
labor, and would not deal with the committee, but would entertain
any complaint by an employee. The Council thereupon, on April 22nd,
declared a strike on complainant's plant and displayed outside of
the entrance to the plant a printed notice announcing that a strike
was on at the plant and calling on union men and all labor to
remain away from the works in order that an increase in wages might
be secured. Only two men, defendants Churchill and Cook, acted upon
the order to strike. Churchill was a member of the Machinist's
Union. Cook was not a member of any union. The Council then
established a picket, which was carried on for three or four weeks
without intermission until the bill was filed on May 18th, and a
restraining order issued.
Complainant's plant was in an enclosure of twenty-five acres,
and fronted on Niedringhaus Avenue. The Wabash and other railroads
crossed this street and ran along the side of the plant. There were
four tracks. The timekeeper's gate of the plant opened on to the
tracks. Directly opposite on the other side of the tracks was the
Wabash depot, from 300 to 400 feet from the
Page 257 U. S. 197
plant. It was on Niedringhaus Avenue, and this street was the
one used by many of the plant's employees in going to their homes
in Granite City and in reaching the terminal of the streetcar line
which many used. Complainant's employees testified that, just as
the picketing began, they were warned by some of the defendants
that they would be hurt if they did not quit. The master mechanic
of the plant, Hall, testified that Lamb, one of the defendants, the
national representative of the Machinist's Union at St. Louis, when
in company with four other pickets, handed him the circular of the
Trades Council, and told him: "We don't like the way you have
treated our boys down here, and we just came down to raise a little
hell." Lamb admitted saying to Hall that the cut in wages was a
severe one, and that it looked as though they were going to raise
hell in the town because conditions were good; that he did not like
to see a fight going on, but it looked as though it would come. The
evidence showed that the pickets would stand about near the Wabash
tracks, sometimes on the foundries' side, sometimes on the depot
side, sometimes on Niedringhaus Avenue, and that there were three
or four groups of them varying from four to a dozen in each group.
The headquarters of all the groups was at the Wabash depot.
There was an assault on April 30th, in which one Haefner, an
employee, was attacked by three of the picketers. On May 8th, a man
named Crabtree and four other employees were attacked by a group of
more than seven of the pickets. On May 13th, another assault
occurred, which developed into a mob, and two witnesses for
complainant swore positively that the president of the Trades
Council, Galloway, was engaged in this disturbance, and was
throwing bricks. There were other assaults, the last one on May
18th, before the restraining order issued that day reached the
picketers. Officers of the company testified that a number of men
wounded in these assaults
Page 257 U. S. 198
were brought into the plant. All disturbances ceased after the
restraining orders were served.
Galloway testified he was present at the plant three mornings
for about fifteen or twenty minutes, and four or five evenings for
maybe half an hour; that he engaged in no violence while he was
there, and saw none; that the representatives of the Central Trades
were there doing picket duty, and that the closest he saw them to
the plant was twenty feet in front of Wabash depot; that the
Central Trades did not instruct anybody to assault anyone, but told
them to picket the streets leading to the plant and ask the men not
to go into the plant or take work under the reduced wages. He said
that the pickets were selected from the different crafts interested
in the wages; that the joint board of the Council placed the
pickets where they were, and the Council then sanctioned this
action. He said he went down there to see that things were going
right; that they placed the pickets there to prevent, if possible,
the men from entering and working at the plant until they
arbitrated the difference or advanced their wages to the former
scale; that the pickets were not authorized to commit an unlawful
act.
B. F. Lamb, already referred to, visited Granite City because he
had a local union there affiliated with the Tr-City Trades Council.
He went there three times a week during the strike, and did picket
duty. He was on the picket line itself, which was about 100 or 120
yards from the plant. Pickets were merely there to convey
information and ask cooperation. He denied that they authorized any
assaults, and he saw no assaulting. He heard of some fights which
took place away from the plant, but he was in no way connected with
them.
Hartheck, who was business agent and secretary of the
Blacksmith's Union, said that he acted on the picket line every
time he went over there, sometimes in the evening, sometimes at
noontime. He said the pickets would approach
Page 257 U. S. 199
a man and tell him the conditions and request him to come out;
that he did that himself, but that he never threatened anyone, and
never used any violence of any kind. He said:
"In my estimation, the four or five witnesses who swore to my
presence at different times to assault testified falsely. When the
reduction of wages took effect, I was ordered by the superior of
our District Board to go over there and to have men over there that
would go to work to have them come out if they could under
reduction of wages; probably some of our union men would go in
unbeknowns of the trouble. At the time I went over there, none of
our men were at work in the plant, because they had been sent for.
But I went over anyway."
Harry McKenney, a picket, testified that he did assault one of
the follows there; that he, Churchill, and another picket were
standing together, and that he told a man named Haefner, an
employee, to stay away from the building; that Haefner called him
an insulting and profane name, and said he would work where he
pleased, and that then he hit Haefner; that he never tried to stop
anybody from going into the plant by force; that he did hit Haefner
while he was on the picket line; that he did not hit him because he
was going into the works, but just because he called him a bad
name.
Churchill, a striker and picket, said he "never struck a man
over there -- he merely warned them, asked them to stay out of
there; better keep away." He said that he was present when Haefner
was hit by McKenney for calling him a bad name, that Haefner begged
them not to hit him again, but McKenney hit him twice. Then Haefner
said he was going home. Churchill said he was present when the
porter from the plant was bringing in two lunch baskets; that
someone kicked the baskets out of the porter's hands. Churchill
said he was in the "bunch" standing there, but he did not know who
the man was
Page 257 U. S. 200
that upset them. He said two or three fights took place, and
that he (Churchill) saw the big one with 200 men in it. He was half
a block away.
Ishman, another picketer, said he was a craneman and resided at
Granite City; that he was a member of the Cranemen's Union; that he
did picket duty during the strike; that he was there quite a bit
morning and evening; that the duty of the pickets was to inform the
employees of the plant that there was a strike on, and to inform
them of the conditions under which they were working. He said that,
on May 8th, Crabtree, an employee, and four other employees were
coming across the railroad tracks from their work; that they had
seven pickets there. He said they got to talking to them, and
somebody started a fight; he said somebody made a pass at him, and
that he hit somebody. He said they claimed it was Crabtree; that it
was 150 yards from the plant.
Cook, a defendant, who was not a union man, went out with the
strike. He said he left because he did not like his wages, and quit
because there was a strike on. Nobody sent him there as a picket,
but he joined them, and they were all together picketing and
talking to some men going to or coming from work. He said he wanted
to quit work, and did not want anybody else to work in his
place.
It is clear from the evidence that, from the outset, violent
methods were pursued from time to time in such a way as to
characterize the attitude of the picketers as continuously
threatening. A number of employees, sometimes fifteen or more,
slept in the plant for a week during the trouble, because they
could not safely go to their homes. The result of the campaign was
to put employees and would-be employees in such fear that many
abandoned work, and this seriously interfered with the complainant
in operating the plant until the issue of the restraining
order.
Page 257 U. S. 201
The first question in the case is whether § 20 of the Clayton
Act of October 15, 1914, c. 323, 38 Stat. 738, is to be applied in
this case. The act was passed while this case was pending in the
circuit court of appeals. In
Duplex Co. v. Deering,
254 U. S. 443,
254 U. S. 464,
a suit to restrain a secondary boycott had been brought before the
passage of the act, but did not come to hearing until after its
passage. It was held that, because relief by injunction operates
in futuro and the right to it must be determined as of the
time of the hearing, § 20 of the act relating to injunctions was
controlling insofar that decrees entered after its passage should
conform to its provisions. The decree here appealed from in the
district court had been entered before the Clayton Act passed. But
the whole cause was taken up by the appeal. The complainant had no
vested right in the decree of the district court while it was
subject to review.
Rafferty v. Smith, Bell & Co.,
post, 257 U. S. 226. The
circuit court of appeals was called upon to approve or to change
the decree, and was obliged therefore to regard the new statute in
its conclusion, and so are we.
Section 20 is as follows:
"That no restraining order or injunction shall be granted by any
court of the United States, or a judge or the judges thereof, in
any case between an employer and employees, or between employers
and employees, or between employees, or between persons employed
and persons seeking employment, involving, or growing out of, a
dispute concerning terms or conditions of employment, unless
necessary to prevent irreparable injury to property, or to a
property right, of the party making the application, for which
injury there is no adequate remedy at law, and such property or
property right must be described with particularity in the
application, which must be in writing and sworn to by the applicant
or by his agent or attorney. "
Page 257 U. S. 202
"And no such restraining order or injunction shall prohibit any
person or persons, whether singly or in concert, from terminating
any relation of employment, or from ceasing to perform any work or
labor, or from recommending, advising, or persuading others by
peaceful means to do so; or from attending at any place where any
such person or persons may lawfully be, for the purpose of
peacefully obtaining or communicating information, or from
peacefully persuading any person to work or to abstain from
working; or from ceasing to patronize or to employ any party to
such dispute, or from recommending, advising, or persuading others
by peaceful and lawful means so to do; or from paying or giving to,
or withholding from, any person engaged in such dispute, any strike
benefits or other moneys or things of value; or from peaceably
assembling in a lawful manner, and for lawful purposes; or from
doing any act or thing which might lawfully be done in the absence
of such dispute by any party thereto; nor shall any of the acts
specified in this paragraph be considered or held to be violations
of any law of the United States."
It has been determined by this Court that the irreparable injury
to property or to a property right, in the first paragraph of § 20,
includes injury to the business of an employer, and that the second
paragraph applied only in cases growing out of a dispute concerning
terms or conditions of employment, between an employer and
employee, between employers and employees, or between employees, or
between persons employed and persons seeking employment, and not to
such dispute between an employer and persons who are neither
ex-employees nor seeking employment.
Duplex Printing Press Co.
v. Deering, 254 U. S. 443.
Only two of the defendants, Cook and Churchill, who left at the
time of the strike, can invoke in their behalf § 20. We must
therefore first consider the propriety of the decree as against
them, and then as against the other defendants.
Page 257 U. S. 203
The prohibitions of § 20 material here are those which forbid an
injunction against, first, recommending, advising or persuading
others by peaceful means to cease employment and labor; second,
attending at any place where such person or persons may lawfully be
for the purpose of peacefully obtaining or communicating
information, or peacefully persuading any person to work or to
abstain from working; third, peaceably assembling in a lawful
manner and for lawful purposes. This Court has already called
attention in the
Duplex case to the emphasis upon the
words "peaceable" and "lawful" in this section.
254 U. S. 254 U.S.
443,
254 U. S. 473.
It is clear that Congress wished to forbid the use by the federal
courts of their equity arm to prevent peaceable persuasion by
employees, discharged or expectant, in promotion of their side of
the dispute, and to secure them against judicial restraint in
obtaining or communicating information in any place where they
might lawfully be. This introduces no new principle into the equity
jurisprudence of those courts. It is merely declaratory of what was
the best practice always. Congress thought it wise to stabilize
this rule of action and render it uniform.
The object and problem of Congress in § 20, and indeed of courts
of equity before its enactment, was to reconcile the rights of the
employer in his business and in the access of his employees to his
place of business and egress therefrom without intimidation or
obstruction, on the one hand, and the right of the employees,
recent or expectant, to use peaceable and lawful means to induce
present employees and would-be employees to join their ranks, on
the other. If in their attempts at persuasion or communication with
those whom they would enlist with them, those of the labor side
adopt methods which, however lawful in their announced purpose,
inevitably lead to intimidation and obstruction, then it is the
court's duty, which the terms of § 20 do not modify, so to limit
what
Page 257 U. S. 204
the propagandists do as to time, manner, and place as shall
prevent infractions of the law and violations of the right of the
employees, and of the employer for whom they wish to work.
How far may men go in persuasion and communication and still not
violate the right of those whom they would influence? In going to
and from work, men have a right to as free a passage without
obstruction as the streets afford, consistent with the right of
others to enjoy the same privilege. We are a social people, and the
accosting by one of another in an inoffensive way and an offer by
one to communicate and discuss information with a view to
influencing the other's action are not regarded as aggression or a
violation of that other's rights. If, however, the offer is
declined, as it may rightfully be, then persistence, importunity,
following and dogging become unjustifiable annoyance and
obstruction which is likely soon to savor of intimidation. From all
of this the person sought to be influenced has a right to be free,
and his employer has a right to have him free.
The nearer this importunate intercepting of employees or
would-be employees is to the place of business, the greater the
obstruction and interference with the business, and especially with
the property right of access of the employer. Attempted discussion
and argument of this kind in such proximity is certain to attract
attention and congregation of the curious, or, it may be,
interested bystanders, and thus to increase the obstruction, as
well as the aspect of intimidation which the situation quickly
assumes. In the present case, the three or four groups of picketers
were made up of from four to twelve in a group. They constituted
the picket line. Each union interested, electricians, cranemen,
machinists and blacksmiths, had several representatives on the
picket line, and assaults and violence ensued. They began early and
continued from time to time during the three weeks of the
strike
Page 257 U. S. 205
after the picketing began. All information tendered, all
arguments advanced and all persuasion used under such circumstances
were intimidation. They could not be otherwise. It is idle to talk
of peaceful communication in such a place and under such
conditions. The numbers of the pickets in the groups constituted
intimidation. The name "picket" indicated a militant purpose
inconsistent with peaceable persuasion. The crowds they drew made
the passage of the employees to and from the place of work one of
running the gauntlet. Persuasion or communication attempted in such
a presence and under such conditions was anything but peaceable and
lawful. When one or more assaults or disturbances ensued, they
characterized the whole campaign, which became effective because of
its intimidating character, in spite of the admonitions given by
the leaders to their followers as to lawful methods to be pursued,
however sincere. Our conclusion is that picketing thus instituted
is unlawful, and cannot be peaceable, and may be properly enjoined
by the specific term because its meaning is clearly understood in
the sphere of the controversy by those who are parties to it. We
are supported in that view by many well reasoned authorities,
although there has been contrariety of view.
Barnes v.
Typographical Union, 232 Ill. 425;
Franklin Union v.
People, 220 Ill. 355;
Philip Henrici Co. v.
Alexander, 198 Ill.App. 568;
Vegelahn v. Guntner, 167
Mass. 94;
Glass Co. v. Glass Association, 72 N.J.Eq. 653,
77 N.J.Eq. 219;
Jersey City Printing Co. v. Cassidy, 63
N.J.Eq. 759;
Frank v. Herold, 63 N.J.Eq. 443;
Goldberg
v. Stablemen's Union, 149 Cal. 429;
Pierce v. Stablemen's
Union, 156 Cal. 70;
Local Union No. 313 v. Stathakis,
135 Ark. 86;
Beck v. Teamster's Union, 118 Mich. 497;
In re Langell, 178 Mich. 305;
Jensen v. Cook and
Master's Union, 39 Wash. 531;
St. Germain v. Bakery &
Confectionary Workers' Union, 97 Wash. 282;
Jones
v.
Page 257 U. S. 206
E. Van. Winkle Gin & Machine Works, 131 Ga. 336;
Union Pacific Co. v. Ruef, 120 F. 102;
Atchison,
Topeka & Santa Fe v. Gee, 139 F. 582;
Stephens v. Ohio
State Telephone Co., 240 F. 759.
A restraining order against picketing will advise earnest
advocates of labor's cause that the law does not look with favor on
an enforced discussion of the merits of the issue between
individuals who wish to work, and groups of those who do not, under
conditions which subject the individuals who wish to work to a
severe test of their nerve and physical strength and courage. But,
while this is so, we must have every regard to the congressional
intention manifested in the act and to the principle of existing
law which it declared, that ex-employees and others properly acting
with them shall have an opportunity, so far as is consistent with
peace and law, to observe who are still working for the employer,
to communicate with them, and to persuade them to join the ranks of
his opponents in a lawful economic struggle. Regarding as primary,
the rights of the employees to work for whom they will, and,
undisturbed by annoying importunity or intimidation of numbers, to
go freely to and from their place of labor, and keeping in mind the
right of the employer incident to his property and business to free
access of such employees, what can be done to reconcile the
conflicting interests?
Each case must turn on its own circumstances. It is a case for
the flexible remedial power of a court of equity which may try one
mode of restraint, and, if it fails or proves to be too drastic,
may change it. We think that the strikers and their sympathizers
engaged in the economic struggle should be limited to one
representative for each point of ingress and egress in the plant or
place of business, and that all others be enjoined from
congregating or loitering at the plant or in the neighboring
streets by which access is had to the plant, that such
representatives should have the right of observation,
communication,
Page 257 U. S. 207
and persuasion, but with special admonition that their
communication, arguments, and appeals shall not be abusive,
libelous, or threatening, and that they shall not approach
individuals together, but singly, and shall not in their single
efforts at communication or persuasion obstruct an unwilling
listener by importunate following or dogging his steps. This is not
laid down as a rigid rule, but only as one which should apply to
this case under the circumstances disclosed by the evidence, and
which may be varied in other cases. It becomes a question for the
judgment of the chancellor who has heard the witnesses,
familiarized himself with the
locus in quo, and observed
the tendencies to disturbance and conflict. The purpose should be
to prevent the inevitable intimidation of the presence of groups of
pickets, but to allow missionaries.
With these views, it is apparent that we cannot sustain the
qualification of the order of the district court which the circuit
court of appeals made. That court followed the case of
Iron
Moulders Union v. Allis-Chalmers Co., 166 F. 45, and modified
the order of the district court which enjoined defendants
"from picketing or maintaining at or near the premises of the
complainant or on the streets leading to the premises of said
complainant, any pickets and pickets"
by adding the words "in a threatening or intimidating manner."
This qualification seems to us to be inadequate. In actual result,
it leaves compliance largely to the discretion of the pickets. It
ignores the necessary element of intimidation in the presence of
groups as pickets. It does not secure practically that which the
court must secure and to which the complainant and his workmen are
entitled. The phrase really recognizes as legal that which bears
the sinister name of "picketing," which, it is to be observed,
Congress carefully refrained from using in § 20.
There remains to consider, so far as defendants Churchill and
Cook, the ex-employees, are concerned, the
Page 257 U. S. 208
part of the decree of the district court which forbade them by
persuasion to induce employees, or would-be employees to leave, or
stay out of, complainant's employ. The effect of it is to enjoin
persuasion by them at any time or place. This certainly conflicts
with § 20 of the Clayton Act. The decree must be modified as to
these two defendants by striking out the word "persuasion."
The second important question in the case is as to the form of
decree against the Tri-City Trades Council and the other
defendants. What has been said as to picketing applies to them, of
course, as fully as to the ex-employees, but how as to the
injunction against persuasion?
The argument made on behalf of the American Foundries in support
of enjoining persuasion is that the Tri-City Central Trades Council
and the other defendants, being neither employees nor strikers,
were intruders into the controversy, and were engaged without
excuse in an unlawful conspiracy to injury the American Foundries
by enticing its employees, and therefore should be enjoined.
It is to be noted that, while there was only one member of the
unions of the Trades Council who went out in the strike, the number
of skilled employees then engaged by the Foundries was not
one-quarter of the whole number of men who would be engaged when it
was in full operation. The works manager said that eighty or ninety
percent of the employees were old men, and that he assumed these
men were members of various organizations. Other witnesses, members
of the unions, testified that they had been employees of
complainant in the previous fall. It is thus probable that members
of the local unions were looking forward to employment when
complainant should resume full operation, and even though they were
not ex-employees within the Clayton Act, they were directly
interested in the wages which were to be paid.
Is interference of a labor organization by persuasion and appeal
to induce a strike against low wages under
Page 257 U. S. 209
such circumstances without lawful excuse and malicious? We think
not. Labor unions are recognized by the Clayton Act as legal when
instituted for mutual help and lawfully carrying out their
legitimate objects. They have long been thus recognized by the
courts. They were organized out of the necessities of the
situation. A single employee was helpless in dealing with an
employer. He was dependent ordinarily on his daily wage for the
maintenance of himself and family. If the employer refused to pay
him the wages that he thought fair, he was nevertheless unable to
leave the employ and to resist arbitrary and unfair treatment.
Union was essential to give laborers opportunity to deal on
equality with their employer. They united to exert influence upon
him and to leave him in a body in order, by this inconvenience, to
induce him to make better terms with them. They were withholding
their labor of economic value to make him pay what they thought it
was worth. The right to combine for such a lawful purpose has in
many years not been denied by any court. The strike became a lawful
instrument in a lawful economic struggle or competition between
employer and employees as to the share or division between them of
the joint product of labor and capital. To render this combination
at all effective, employees must make their combination extend
beyond one shop. It is helpful to have as many as may be in the
same trade in the same community united, because, in the
competition between employers, they are bound to be affected by the
standard of wages of their trade in the neighborhood. Therefore,
they may use all lawful propaganda to enlarge their membership, and
especially among those whose labor at lower wages will injure their
whole guild. It is impossible to hold such persuasion and
propaganda, without more, to be without excuse and malicious. The
principle of the unlawfulness of maliciously enticing laborers
still remains, and action may be maintained therefor in proper
cases,
Page 257 U. S. 210
but to make it applicable to local labor unions in such a case
as this seems to us to be unreasonable.
The elements essential to sustain actions for persuading
employees to leave an employer are first, the malice or absence of
lawful excuse, and second, the actual injury. The effect of cases
cited as authority must be determined by an examination of the
pleadings and facts to see how the malice or lack of lawful excuse
was established, and whether there was not illegality present in
the means used. Thus,
Walker v. Cronin, 107 Mass. 555, and
Thacker Coal Co. v. Burke, 59 W.Va. 253, suits by an
employer against members of a labor union in which the right of
action for persuading was sustained were heard on demurrer to the
complaint. The element of malice was supplied by averment of the
complaint, and was, of course, admitted by the demurrer. There are
other cases in which the persuasion was accompanied by the intent
to secure a breach of contract, or was part of a secondary boycott,
or had elements of fraud, misrepresentation or intimidation in it.
Perkins v. Pendleton, 90 Me. 166, was a case of the latter
kind. In
Lucke v. Clothing Cutters, 77 Md. 396, it was
held unlawful in a labor union to seek to compel an employer to
discharge the plaintiff by intimidation, and it was said that the
state law authorizing formation of trade unions to secure most
favorable conditions for labor of their members was not a warrant
for making war upon the nonunion man or for illegal interference
with his rights and privileges. A suit by an employee who seeks to
hold a labor union liable for seeking his discharge by threatening
to strike unless his employer discharges him stands on a different
footing from a mere effort by a labor union to persuade employees
to leave their employment. There are in such a combination against
an employee the suggestions of coercion, attempted monopoly,
deprivation of livelihood, and remoteness of the legal purpose of
the union to better its members'
Page 257 U. S. 211
condition, not present in a case like the present. Without
entering into a discussion of those cases, which include
Brennan v. United Hatters of North America, 73 N.J.L. 729,
Curran v. Galen, 152 N.Y. 33,
Berry v. Donavan,
188 Mass. 354, and
Plant v. Woods, 176 Mass. 492, it is
sufficient to say they do not apply here.
The counsel for the Steel Foundries rely on two cases in this
Court to support their contention. The first is that of
Hitchman Coal & Coke Co. v. Mitchell, 245 U.
S. 229. The principle followed in the
Hitchman
case cannot be invoked here. There, the action was by a coal mining
company of West Virginia against the officers of an international
labor union and others to enjoin them from carrying out a plan to
bring the employees of the complainant company and all the West
Virginia mining companies into the international union, so that the
union could control, through the union employees, the production
and sale of coal in West Virginia, in competition with the mines of
Ohio and other states. The plan thus projected was carried out in
the case of the complainant company by the use of deception and
misrepresentation with its nonunion employees, by seeking to induce
such employees to become members of the union contrary to the
express term of their contract of employment that they would not
remain in complainant's employ if union men, and after enough such
employees had been secretly secured, suddenly to declare a strike
against complainant and to leave it in a helpless situation in
which it would have to consent to be unionized. This Court held
that the purpose was not lawful, and that the means were not
lawful, and that the defendants were thus engaged in an unlawful
conspiracy which should be enjoined. The unlawful and deceitful
means used were quite enough to sustain the decision of the Court,
without more. The statement of the purpose of the plan is
sufficient to show the remoteness of the benefit ultimately to be
derived by
Page 257 U. S. 212
the members of the international union from its success and the
formidable, countrywide, and dangerous character of the control of
interstate commerce sought. The circumstances of the case make it
no authority for the contention here.
Duplex Printing Press Co. v. Deering, 254 U.
S. 443, also cited, can have no bearing here. In that
case, the International Association of Machinists, an
unincorporated association having a membership of more than 60,000,
united in a combination to compel the complainant to unionize its
factory, enforce the closed shop, the eight-hour day, and the union
scale of wages by boycotting the interstate trade of that company.
They conducted in the City of New York a campaign of threatening
the customers of the printing press company, the trucking companies
that carried its presses, and those who were engaged in the work of
setting up such presses, with injury to them in their business, if
they continued to deal with the Duplex Company or its presses. It
was a palpable effort on the part of the International Union of
Machinists to institute a secondary boycott -- that is, by
coercion, to use the right of trade of persons having nothing to do
with the controversy between the Duplex Company and the Machinist's
Union, and having no interest in it, to injure the Duplex Company
in its interstate trade. This was decided not to be within § 20 of
the Clayton Act, but was held, following the case of
Loewe
v.Lawler, 208 U. S. 274, to
be an unlawful combination in restraint of interstate trade. The
Hitchman case was cited in the
Duplex case, but
there is nothing in the
ratio decidendi of either which
limits our conclusion here, or which requires us to hold that the
members of a local labor union and the union itself do not have
sufficient interest in the wages paid to the employees of any
employer in the community to justify their use of lawful and
peaceable persuasion to induce those employees to refuse to accept
such reduced wages
Page 257 U. S. 213
and to quit their employment. For this reason, we think that the
restraint from persuasion included within the injunction of the
district court was improper, and, in that regard, the decree must
also be modified. In this we agree with the circuit court of
appeals.
The decree of the circuit court of appeals is reversed in
part and affirmed in part, and the case is remanded to the district
court for modification of its decree in conformity with this
opinion.