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STRIKES AND INJUNCTIONS.
THE recent victory of over one hundred thousand coal-miners, who through their strikes have raised their wages from fifty-four cents to sixty-five cents a ton, or 20 per cent, is an admirable answer to the claim of those who assert that strikes are no longer of any avail. Thanks to the previous successful reductions in the rate of wages, and the idleness due to the industrial depression, the wages of the Illinois miners have declined on the average from $384 a year in 1890, to about $292 in 1896, allowance being made for expenses for powder for blasting. These are the figures of the coal-miners of the Bureau of Labor Statistics for the two years in question. This average of under six dollars a week in Illinois for the support of a whole family was certainly low enough, but the last reports of the bureaus of labor statistics of Ohio and Indiana indicate an average for the miners of those states of only four dollars to four dollars and fifty cents a week, which is considered low pay for an unmarried shop-girl in Chicago or New York.
The exhaustive reports of the national department of labor indicate that of the 1,711,484 strikers in the years 1881 to 1887, inclusive, 47.9 per cent wholly or partially succeeded, and of the 2,002,922 strikers from January, 1888, to June 30, 1894, 41.7 per cent wholly or partially succeeded. If you leave out 1893 and the first half of 1894, when nearly two-thirds of the strikers failed, as is usual in periods of depression, the percentage of successful strikers to the total number of strikers during the five years from 1888 to 1892, inclusive, was 45.8 per cent. But very many of the struggles nominally lost by the men cost the employers so much money and odium, as at Homestead and Pullman, that many other employers were deterred from precipitating a strike.
In Great Britain, where the unions contain a larger proportion of skilled workers, and are in every way better organized and led, 79.3 per cent of the 1,952, 193 strikers, during the four years of 1889 to 1893, inclusive, were wholly or partially victorious. In 1894, 58 per cent were similarly successful, and in 1895, 72 per cent. In France, over 60 per cent of the strikers since 1891 have been wholly or partially successful in the direct object of their struggle. It is hardly necessary to add that
the strong organizations of many unions, both here and abroad, have won many concessions for the men without any strike whatever, while most of our unions spend far more every year for relief of the sick and disabled and of the widows and orphans of members, than is spent by them upon trade contests. Out of 170,129 members of labor organizations in New York State in 1895, as reported by the Bureau of Labor Statistics for 1896, 54,251 members, in seventy-six branches of trade, reported an eight-hour working-day, and 25,040 members reported a ninehour working-day, while only two-thirds of the remaining ninety thousand members made any report on this subject.
Despite all the need for increasing action by society in the ownership and operation of some monopolies, and strict regulation of others, there is evidently still room for trade union activity.
In every period of industrial depression, organized labor loses many of its members. From forty thousand to seventy-five thousand is the maximum membership that the best authorities allow to American trade unions in 1877, yet in New York State alone, in the midst of great depression, now passing away, we have seen that there were one hundred and seventy thousand members in 1895, while Illinois has fully one hundred thousand, and in most of the country enough to bring the total membership up to over five hundred thousand, and possibly to very much over that number. There is every reason to believe that with the return, in some measure at least, of business prosperity, our American unions will possess over a million before the end of the century, and will continue to make use of the strike when other means fail, although increasingly interested in the use of the ballot. The importance, then, of the attitude taken by the courts toward strikes and strikers and sympathizers therewith, cannot be overestimated. The issue raised by the injunctions of the Pullman strike, and that of the late miners' strike, will continue to come up with increasing sharpness.
There is so much confusion in the popular mind as to the injunctions of the courts in labor difficulties that a few facts need to be made plain. An English statute passed in 1875 declares that an agreement or combination of two or more persons to do, or procure to be done, any act in contemplation or furtherance of a trade dispute between employers and workmen, shall not be indictable as a conspiracy, if such act committed by one person would not be punishable as a crime. This does away with the whole common law of conspiracy in labor disputes, even though the parties induced to strike have a contract to continue at work. But in this country, Maryland is the only state that, up to last year, at least, had followed the English law of 1875.
Decisions in the middle of the century, in England, interfered with abusive language and gestures, and even black looks, or any other annoyances, such as, in the opinion of the jury, would be likely to have a deterring effect upon an ordinary individual. But at present those desir
ing to persuade others to strike may place a picket of two persons, who may be relieved by others, like a guard, in front of where the men go to work, this English decision within the last three years being the result of the English law of 1875, repealing the laws of conspiracy. The courts have declared such picketing illegal in Massachusetts and New York. In Pennsylvania and New York striking workmen have been prohibited by court decisions, as late as 1894, from using even ridicule or any man ner of annoyance, or anything save peaceful persuasion in order to induce others to strike. Of late, strikers, when they interfere with InterState Commerce, are liable to be declared unlawful by the courts. In 1893 the United States Circuit Courts of Louisiana issued an injunction against a combination of draymen and longshoremen on the ground of interfering with the Inter-State Commerce Act, and the Anti-Trust Act. The tendency of the courts has been more and more toward the position which Judge Putnam of the United States Circuit Court of Massachusetts predicted about five years ago, when he said: "The inevitable result will be that the Federal courts will be compelled to apply this statute (AntiTrust Act) to all attempts to restrain commerce among the states, or combinations with foreign nations by strikers or boycotts or any methods of interference by way of violence or intimidation."
The courts also declare that strikers in any industry must not go into an altruistic fight. Strikers may fight for selfish ends but not for unselfish ones. They cannot quit work to express their sympathy with strikers in some other trade or section of country.
Where a strike, or efforts to produce one, threatens injury to the interests of the employer, as is usually the case, the employer may seek a remedy in a civil suit for damages, but juries are not likely to consider very seriously such suits, or, even if they do, a civil suit is a slow method of redress, and the employer when successful finds no property of the wage-worker which he can secure. The employer may bring a criminal suit, but juries will be still more particular in this case than in a civil suit in securing evidence of unlawful purpose and acts of seriously unlawful character. If the courts will allow it, therefore, it is more effective for employers to get an injunction of the courts against those who incite to a strike, for then if the injunction order is disobeyed, the judges may inflict immediate and summary punishment without jury, and until the orders of the court are obeyed, or even longer if the court so wishes. The writ of habeas corpus, or an appeal, will hardly be recognized in such a case in any court.
For the benefit of those students unfamiliar with the term it may be remarked that the injunction is a written order of a judge forbidding the commission of a specified act. The law may have already provided for the summary arrest of those guilty of such acts, and for a subsequent trial by jury. The injunction does not prevent such arrest, trial and punishment, but creates a new crime-that of contempt of court-if the
court order is disobeyed, and gives to the judge the right to order immediate imprisonment of the offender, try him at pleasure without jury, and sentence him for as long a time as it seems best to the judge. Injunctions were allowed in the reign of Edward III. and Richard II., in the fourteenth century, and were issued by the Court of Star Chamber in the sixteenth and seventeenth centuries, but the use of the injunction in modern labor disputes is only traced back to an English decision in 1868. However, English courts have recently attempted nothing of this kind, due in part, doubtless, to the abolition of the conspiracy law of 1875. During the last ten years the courts of this country have repeatedly enjoined, and punished for contempt, boycotts and forcible intimidation. The courts are divided in opinion upon the legality of strikes, or of perfectly peaceful incitements to strikes upon railroads, whether in the hands of a receiver or not, and are in doubt as to the propriety of injunctions in such cases.
The latest stretch of the power of the courts in labor disputes has come during the recent coal-miners' strike. Judge Jackson enjoined against “in any way interfering with the management, operation or conducting of said mines and their owners or those operating them, either by menace and threats or any character of intimidation used to prevent the employees of said mines from going to or from said mines, or from engaging in the business of mining in said mines."
The court further enjoined from entering upon the property of a certain mining company to interfere with the men by the "holding of public or private assemblages ..or in any wise molesting or interfering with or intimidating the employees" of the company, "so as to induce them to abandon their work" in those mines.
About one hundred striking miners were arrested when endeavoring to dissuade other miners from returning to work. Judge Jackson did not try the case, but his associate, Judge Gough, decided that the strikers had violated the injunction of Judge Jackson, since by marching they gave a show of force that might be interpreted as intimidation. Although only a three-days' sentence was imposed, the important principle was announced, that even peaceful marching of the strikers, in the neighborhood of those still at work, might be forbidden by the court. In fact, a little after Judge Jackson's first injunction he issued six more, forbidding the strikers from six other mines "from in any manner interfering with the plaintiff's employees while they may be passing to and from their work in said mines on and near plaintiff's premises." The italics are my own.
Mr. Stimson, of Boston, possibly the chief authority on American statute law, writes:
"As we now stand, any laborer, or class of laborers, though he has received no notice of suit in court, may find, any day, that an ordinary trespass or neglect of duty made by him will subject him to criminal
punishment without indictment, jury trial, or certain laws defining the extent of the punishment; he may possibly find himself in jail without a trial though he himself has committed no overt act, but merely by being a member of a trades union or combination, some of whom have committed an overt act or trespass, or perhaps, even because the purpose of such combination or union has been, by a strike or boycott, directly or indirectly to interfere with transportation. . . . This receivership process, with the Inter-State Commerce and Anti-Trust Laws, are principal causes of this immense extension of the function of the Federal courts of the last few years so that they have practically found themselves part of the executive of the government, and here, I think, is the greatest danger of all. Physically and morally our courts ought not to be required to stand such a strain. In fact, their power in so doing is far greater than that of the executive itself, for the reason that the executive is subject to the habeas corpus act, and the ordinary restrictions of criminal process, but the equity courts, although the punishment, of course, is never extreme, are not. They, or their appellate courts, must themselves judge the propriety of their acts.
"We all want order maintained throughout the country, and most of us, doubtless, commended Mr. Cleveland for his prompt and forcible action in the Chicago strike; but, if such action had been expressly based upon the ground that the transportation of the mails was being interfered with, that riots were being committed, which made, practically, a state of insurrection, so that the Republican form of government in certain localities was being threatened, rather than upon the ground, so much less impressive to the public mind, that certain equity processes of Federal courts were not being executed; and then, if all the offenders, whether arrested by troops or deputy marshals, had been brought before the Federal grand jury, indicted and tried by a jury in the ordinary way, I cannot but think that the lesson to the people would have been better given, and certain great dangers in the future avoided; for the government, and especially the judicial branch of the government, must not even appear to take sides in this labor question."
In considering remedies we may confidently assert that laws should be passed in all the states requiring that the trial of an injunction case, like that of any criminal case, should be by jury. There is no reason whatever why, after the threatened danger to the public interests has passed, the judge should have the sole right of trying and of punishing for violating the order he has himself made.
But this, by no means, goes to the root of the matter, as some are inclined to think, albeit it would help matters greatly. The question arises whether injunctions should be issued at all in labor disputes. The property interests of the English are sufficiently protected without such injunctions. Why cannot ours be? Whatever we may desire to prevent in labor disputes, whether it be a sympathetic strike, or epithets, ridi