conflicts would be exacerbated. . . . The Constitution does not demand that the element of communication in picketing prevail over the mischief furthered by its use in these situations." Also related to the Giboney case is International Brotherhood of Teamsters v. Hanke,52 decided by the United States Supreme Court on the same date as the Hughes case. In that case, the Court upheld the Supreme Court of the state of Washington, which enjoined the picketing of a self-employed used-car dealer who had no employees. The picketing union was attempting to reduce the business hours of 105 self-employed dealers in order to safeguard the standards of the union employees of but ten used-car dealers. The Washington court decided that such picketing discouraged the state's policy of encouraging self-employment and therefore was unlawful in purpose. In still another related case, also decided on the same date as the Hughes case, an injunction was upheld forbidding peaceful picketing when the purpose of the picketing was to coerce employees into designating the picketing union as the representative for collective bargaining.


In the Electrical Workers case, the United States Supreme Court affirmed its limitation upon the Thornhill case, despite the language of Section 8(c) of the Taft-Hartley Act which provides that the expressing of views "shall not be evidence of an unfair labor practice . . . if such expression contains no threat of reprisal or force or promise of benefit." The Court held that peaceful picketing to accomplish an unlawful secondary boycott was not protected by the First Amendment. It stated: 54 The prohibition of inducement or encouragement of secondary pressure by Sec. 8(b) (4) (A) carries no unconstitutional abridgment of free speech. The inducement or encouragement in the instant case took the form of picketing followed by a telephone call emphasizing its purpose. The constitutionality of Sec. 8(b)(4) (A) is here questioned only as to its possible relation to the freedom of speech guaranteed by the First Amendment. This provision has been sustained by several courts of appeal. The substantive evil condemned by Congress in Sec. 8(b)(4) is the secondary boycott and we recently have recognized the constitutional right of states to proscribe picketing in furtherance of comparable unlawful objectives. There is no reason why Congress may not do likewise.

Can peaceful picketing properly be enjoined when it is in conflict with a state statute which provides (1) that neither membership nor nonmembership in a labor union should be made a condition of employment and (2) that a contract limiting employment to union members

52 339 U.S. 991 (1950).

53 Building Service Employees International Union v. Gazzam, 339 U.S. 991 (1950).

54 International Brotherhood of Electrical Workers, Local 501, A. F. of L. v. National Labor Relations Board, 341 U.S. 694 (1951).

is against public policy? This question came before the United States Supreme Court in the Virginia "Right-to-Work Statute" case. 55 The Court found that the peaceful picketing

was done at such a place and in such a manner that, coupled with established union policies and traditions, it caused the union men to stop work and thus slow the project to a general standstill. Such conduct, furthermore, was conditioned upon the fact that some of the work on this job, particularly the plumbing, was being done by a subcontractor who employed nonunion labor, whereas Joinville had demanded of the general contractor that the job be "one hundred per cent union." . . . The immediate results of the picketing demonstrated its potential effectiveness, unless enjoined, as a practical means of putting pressure on the general contractor to eliminate from further participation all nonunion men or all subcontractors employing nonunion men on the project.

The Court found that these facts supported the Virginia courts in holding that the Right-to-Work Statute was violated and that an injunction against the picketing was not in violation of the constitutionally protected right of freedom of speech.

55 Local Union No. 10, United Association of Journeymen Plumbers and Steamfitters v. Graham, 345 U.S. 192 (1953).


Direct Action against Employers (Continued)

Striking in General. The collective withdrawal of workers from an employer's plant and their subsequent refusal to work until certain demands have been met constitute labor's most powerful economic weapon in its efforts to gain ascendancy in bargaining power. In general the laws of the United States permit striking and forbid involuntary servitude.

The first National War Labor Board adopted the policy of discouraging strikes. Although it did not suppress them, the Board succeeded in getting labor to agree that there should be none while the war lasted. After the war the President's Industrial Conference of 19191 proposed a plan for the settlement of disputes, but it was a plan which was careful to protect labor's right to strike.

Administrative agencies have made a continuing search for substitutes for strikes, but there has been little expression, and rightly so, in favor of the complete suppression of the privilege to strike. The National Labor Relations Board under the Wagner Act distinguished two kinds of strikes: (1) economic-those not caused or prolonged by the violation by an employer of the Wagner Act; and (2) unfair-labor-practice strikes.

In order to encourage the quick settlement of strikes caused by unfair labor practices of employers, the National Labor Relations Board stated, in a wartime decision, that employees may in such cases (1) bring the matter before the Board, (2) strike, or (3) do both. Furthermore the Board directed that if the employees should strike, the employer could be ordered to pay back wages during the time the employees were out. One member of the Board dissented, however, stating that this policy might encourage employees to strike inasmuch as they would lose neither their jobs nor their pay.2

At the beginning of the thirties the right to strike stood on a footing

1 U.S. Department of Labor, Reports, 1920-1921 pp. 236-271.

2 Draper Corp. and Int'l Molders and Foundry Workers Union, 52 N.L.R.B. 1477 (1943).

similar to the right to organize. The Federal Anti-injunction Act of 1932 declared that no person or persons could be prohibited from "ceasing or refusing to perform any work or to remain in any relation of employment."

New Deal legislation gave a more positive declaration of labor's right to strike. The Emergency Railroad Transportation Act of 1933 provided that the Act was not to be construed so as to make striking illegal. Although the Wagner Act was created for the express purpose of reducing the number of strikes, it did not forbid them. It provided for orderly adjustment and negotiation by compelling employers whose business dealings affected the flow of interstate commerce to bargain with representatives of a majority of their employees in appropriate units, whether the employees were out on strike or not. The Act made no provision for arbitration. Section 13 read: "Nothing in this Act shall be construed so as to interfere with or impede or diminish in any way the right to strike.” The 1934 amendments to the Railway Labor Act provide for a "coolingoff" period during which no changes in conditions may be made, and Section 2 (tenth) states that nothing in the Act shall be construed to require an individual employee to render labor or service without his


As a temporary wartime measure, strikes were delayed in war industries under the War Labor Disputes Act until this provision was repealed (December 28, 1945). The National Labor Relations Board was charged with the duty of conducting strike ballots and of certifying the results to the President. From June 25, 1943, to February 1, 1944, 722 disputes were filed with the Board, but 510 were withdrawn during the thirty-day delay period provided in the Act. After the cooling-off period, the Board was directed under the law to put the question to the employees involved in the dispute: "Do you wish to permit an interruption of war production in wartime?" In 123 out of 142 polls conducted by the Board, a majority of the employees voted "yes." However, a strike did not actually follow every strike vote. By October 15, 1943, the ratio of strikes to strike votes was about two to three. Besides providing for a cooling-off period, temporary Federal legislation attempted to deal with wartime strikes by forbidding anyone to incite them. Strikes were not completely suppressed.

California is a jurisdiction in which the motives of strikers are not questioned. In an early case decided in that state, the court ruled that “an act lawful in itself is not converted by a malicious or bad motive into an unlawful act so as to make the doer of the act liable to a civil

3 NLRB Press Release, Feb. 27, 1944. The War Labor Disputes Act is found at 57 Stat. 163.

4 Parkinson Co. v. Building Trades Council, 154 Cal. 581 (1908).

action. . . . In case of a peaceable and ordinary strike, without breach of contract, and conducted without violence, threats, or intimidation this court would not inquire into the motives of the strikers-their acts being entirely lawful, their motives would be held immaterial.” In other jurisdictions the courts, when faced with the question of the legality of a strike, must inquire as to whether or not the purpose of the combination or the object of the strike is lawful before deciding the legality of the strike itself. For instance, in Pickett v. Walsh it was held that a strike against a contractor to force him to compel the owner of a building to give certain work to the striking union contained elements of a sympathetic strike, a boycott, and a black listing. Therefore, these things being unlawful, such a strike was held to be not a “justifiable interference with the right of the plaintiffs to pursue their calling as they think best." The court went on to say: "In our opinion organized labor's right of coercion and compulsion is limited to strikes against persons with whom the organization has a trade dispute." 5


Generally the courts hold that those strikes are legal which are called to increase or maintain wages, to regulate hours and conditions of employment, and to enforce contracts. Most jurisdictions hold that strikes are illegal which involve breach of contract, restraint of interstate commerce, secondary boycotts, violence, and intimidation. Under the view that the object of a strike must be examined to determine the status of the strike, some courts have held that if the purpose is to injure and destroy an employer's business and property, or to deprive a person of his liberty and property without just cause, the strike is unlawful-and criminal, as well. And whether or not the purpose of a given strike is lawful must be decided by a court, as this is a question of law. The Supreme Court of the United States held in the Dorchy case that "neither the common law, nor the Fourteenth Amendment, confers the absolute right to strike." Any restriction of the privilege to strike must, however, be a "reasonable" restriction. A statute which denies the "right" to strike serves to curtail the "right" of individuals to agree with their fellow workers to quit work, thus curtailing the right to contract about their affairs. Such a right to contract is a part of the liberty of the individual protected by the guaranty of the due-process clause of the Fourteenth Amendment.

5 Pickett v. Walsh, 192 Mass. 572 (1906). In the following cases the courts were in accord with this opinion: Gray v. Building Trades Council, 91 Minn. 171 (1903); Beck v. Railway Teamsters' Protective Union, 118 Mich. 497 (1898); and Crump v. Commonwealth, 84 Va. 927 (1888).

6 State v. Stockford, 77 Conn. 227 (1904).

7 De Minico v. Craig, 207 Mass. 593 (1911); and Minasian v. Osborne, 210 Mass. (1911).

8 Dorchy v. Kansas, 272 U.S. 306 (1926).

« ForrigeFortsett »