in that city by the members of the union; notwithstanding the fact that the purpose and inevitable result is the stifling of competition in interstate trade and the creation of a monopoly.

Logically, if the Hutcheson doctrine of the three interlacing statutes were applied, the electrical workers' union would not have been in violation of the Sherman Act. The Court apparently was not prepared to accept such a result, perhaps because they felt it would be a shocking mutilation of the policy of the Sherman Act. If so, it might have reversed the Hutcheson doctrine and gone back to the Apex case and prior decisions declaring that such union activity was in violation of the Sherman Act.36 The Court, by refusing to reverse the Hutcheson doctrine, was faced with the predicament "that whatever it decides must entail disaster,” according to Justice Roberts. However, the practical result in the case, in the view of the Court, was not disaster but "a question for the determination of Congress."

In the Allen-Bradley case, the Court at last found itself enmeshed in the logic of its own making and trapped in its precedents. It was unable to achieve more than a totally inadequate reconciliation of opposing and conflicting congressional policies. In the opinion of the Court, if the policy of preserving the rights of labor to organize and better its conditions through the agency of collective bargaining meant that the policy of preserving a competitive business economy must be sacrificed, then so be it. In the minds of the judges, it would seem, the logic of the Hutcheson doctrine prevails over the reason of the law and the experience of the community.37

36 United States v. Brims, 272 U.S. 549 (1926); Local 167 v. United States, 291 U.S. 293 (1934).

37 For discussion of the Allen-Bradley case, see Gregory, Labor and the Law, pp. 279–284; 45 Columbia Law Review 272 (1945); 58 Harvard Law Review 273 (1944); and 43 Michigan Law Review 818 (1945).


Anti-injunction Legislation

In the United States the injunction is perhaps the most effective weapon employers can use against labor during industrial conflicts. Employers have used the injunction to prevent or stop such union activity as strikes, picketing, and boycotts, thereby frustrating employees in their early efforts to achieve equality of bargaining power. American labor has bitterly resented and fought the labor injunction because it has been used to block legitimate union behavior and because procedural abuses in connection with its use have tended to deny to workingmen due process of law.


The labor injunction was first used in the United States in 1875, according to Paul F. Brissenden, although it first was used in the Federal courts in 1877, when railroad employees struck for higher wages against a railroad in receivership. Employers' associations, alert to the unique advantages of the injunction in labor disputes, gave it wide publicity among their members. The attention of the public was not attracted to the use of injunctions, however, until after the Debs case, in which the use of an injunction in connection with the Pullman strike was upheld by the Supreme Court. The Court stated that the jurisdiction of courts to interfere in such matters by injunction "is one recognized from ancient times and by indubitable authority." Eugene V. Debs declared that the strike was broken up “simply and solely by the action of the United States courts in restraining us from discharging our duties as officers and representatives of the employees." By 1900 the practice among employers of applying for injunctions in labor disputes was becoming widespread, 1 Paul F. Brissenden, "The Labor Injunction," Political Science Quarterly, Vol. 48, No. 3, September, 1933, p. 414.


2 Walter Nelles, “A Strike and Its Legal Consequences-An Examination of the Receivership Precedent for the Labor Injunction," 40 Yale Law Journal 508 (1931). 3 Clarence E. Bonnett, "The Origin of the Labor Injunction," 5 Southern California Law Review 105 (1931).

4 In re Debs, 158 U.S. 564, at 599 (1895).

5 U.S. Strike Commission, Report on the Chicago Strike of June-July, 1894, 1895, pp. 143-144.


and during the next twenty years hundreds of applications were made annually. Brissenden has determined that from 1875 to 1932 no fewer than 744 labor-injunction actions between employees and employers arose in the Supreme Court of New York State and that more than 80 per cent of these actions resulted in the imposition of injunctive restraint. Between 1914 and 1932, 679 such actions in the same court resulted in the imposition of 550 injunctions, an average of 33 each year. Frankfurter and Greene found 118 applications for injunctive relief in the Federal courts, of which 100 were successful. They also report more than 260 cases in the Massachusetts courts between 1898 and 1916, although only 18 of these cases appeared in the official law reports. Edwin E. Witte reports that up to May 1, 1931, there were 508 cases in Federal courts and 1,364 cases in state courts in which injunctions were issued. He reports 921 injunctions in the period from January 1, 1920, to May 1, 1930; and 446 from 1910 to 1920.9


The widespread use of the labor injunction and its accompanying abuses brought fair-minded students of the law and the elected representatives of the community to a realization of the evils of "government by injunction" and convinced them that legislation restricting the device should be enacted. The Clayton Act (Section 20) and the NorrisLa Guardia Act 10 were adopted with this end in mind. It is the purpose of this chapter to describe the labor injunction and its abuses, together with the legislation designed to curb its indiscriminate use.

Injunctions Defined. Briefly, an injunction is a court order requiring the person to whom it is directed to do or to refrain from doing a particular thing. If in a given case an adequate remedy in damages is available in a common law court, a court of equity would refuse to accept jurisdiction over the case and no injunction could be had, for only courts of equity have the power to issue injunctions." The primary purpose of the injunction is to protect property rights, and not to punish crime. American courts of equity have identified the employer's business rights with those property rights entitled to protection, and such courts have been quick to find the other conditions present for invoking the injunction. As used in conflicts between employers and employees, this legal device has become known as the "labor injunction."

See Brissenden, loc. cit.; and Brissenden, "Campaign against the Labor Injunction," The American Economic Review, Vol. 32, No. 1, March, 1933.

7 Felix Frankfurter and Nathan Greene, The Labor Injunction, The Macmillan Company, New York, 1930, p. 49.

8 Ibid., p. 51.

Edwin E. Witte, The Government in Labor Disputes, McGraw-Hill Book Company, Inc., New York, 1932, p. 84.

10 38 Stat. 730 (1914); and 47 Stat. 70 (1932).

11 See Appendix A, where equity cases are distinguished from criminal and civil


Types of Injunction. There are three types of injunction:

1. The Temporary Restraining Order. This restraint may be regarded as an emergency order when there is an immediate threat to property and when fast action is necessary to prevent some threatened behavior. For example, a restraining order might be issued to stop immediately the cutting down of trees while the ownership of the trees is in dispute, thereby maintaining the status quo while ownership rights are being determined. The order may be issued simply on the complaint of one of the parties, without hearing or notice to the other party. Such procedure is called "ex parte."

2. The Preliminary Injunction. The preliminary injunction may be issued by the court within ten days after the restraining order was issued. If the restraining order was issued ex parte and the court has had no opportunity to hear the defendant, a hearing is held to enable the court to decide if there is justification for continuing the restraining order. At this hearing of the complaint, affidavits and arguments of the parties are presented, but witnesses and other evidence are not presented. As a result of this procedure, the court may decide that the restraining order should be dissolved or modified, and it may issue a preliminary injunction to continue whatever restraint appears proper.

3. The Final Injunction. The preliminary injunction is intended to continue only until the time when a full-dress trial of the case can be held. At this trial, the parties have the opportunity to present witnesses and produce all relevant and material evidence in support of their positions. The judge weighs the facts, without a jury, and if he decides that the evidence does not justify continuing the injunction, he dissolves the preliminary injunction. On the other hand, he may order that the injunction be made permanent, and such a holding would come after a full hearing of the case on its merits and a determination of all the rights of the parties involved.

Enforcement of Injunctions. If a person violates an injunction, he can be punished for his disobedience. If the disobedience damages the person protected by the injunction, that person may recover a fine to the amount of his property damage. In addition, if the disobedience is regarded as flouting the court's authority, the offender may be punished for criminal contempt. The judge who issued an injunction is often called upon to decide the guilt or innocence of an individual who violates that injunction. In the past, judges have decided such contempt-of-court cases and have assessed fines and prison sentences on the basis of affidavits and in the absence of testimony and cross-examination.

The "Proof" in Support of Injunctions. In the large majority of cases, the injunction issued ex parte, or temporarily, never reaches the stage of

full trial. Frankfurter and Greene report that of 118 cases in the Federal courts, “not less than seventy ex parte restraining orders were granted without notice to the defendants" and without giving them an opportunity to be heard, and that in only twelve of these cases was the bill of complaint accompanied by supporting affidavits. In fifty-eight of the cases, the restraining orders were based on a bill of complaint, without further proof. The validity of many of these bills of complaint is exceedingly doubtful.


Generally the complaint grows out of a highly charged and emotional conflict. On this basis alone, it is not too trustworthy. But a greater deficiency exists in its reliability. As a rule it is drawn up by lawyers, and it has tended to follow a conventional mold. Legal phrases and formulas have been copied and recopied from old injunction cases, without regard to differences in factual situations. Thus the complaint often alleges that the employees were engaged in an "unlawful conspiracy" and acted “unlawfully" in committing acts of "violence," "coercion," or "intimidation." Broad and general accusations have been alleged in complaints, without the support of concrete, detailed facts, such as (1) the time and place of the coercive acts, (2) the name of the coerced individual, (3) the manner of coercion, and (4) the way in which the employer's rights to carry on his business was interfered with by the employees.13 Fanciful and picturesque language in complaints, rather than statements of fact, thus generally seems to be the basis for issuing restraining orders.

In addition to the complaint, affidavits of witnesses may be filed for consideration by the judge in connection with the preliminary restraining order or the preliminary injunction. It is not uncommon for the essentials of this sworn testimony to be contradictory in most respects. It has been the practice not to bring the witnesses into court, and no opportunity has been afforded the defendants to cross-examine them. Judge Amidon, in the often-quoted opinion in Great Northern Ry. v. Brosseau,11 made the following observations on the reliability of the affidavit:

The experience both upon the hearings as to whether a preliminary injunction should issue, and upon the contempt proceedings, have convinced me that affidavits are an untrustworthy guide for judicial action. That is the case in all legal proceedings, but it is peculiarly true of litigation growing out of a strike, where feelings on both sides are necessarily wrought up, and the desire for victory is likely to obscure nice moral questions and poison the minds of men by prejudice. Many of the affidavits submitted on behalf of plaintiffs have been made by private detectives or guards. As a class they are overzealous, 12 Frankfurter and Greene, op. cit., p. 64. See also, Witte, op. cit., p. 90.

13 Frankfurter and Greene, op. cit., p. 64, quoting Badger Brass Mfg. Co. v. Daly, 137 Wis. 601, 606 (1909).

14 286 Fed. 414 (1923).

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