Labor Law: Professor Steinfeld, Fall 2012
Chapter 2: The Historical and Institutional Framework
Origin of Unions:
– End of the 18th Century
– Organizations initially embrace skilled workers.
– Highly unstable early unions; usually only to press a specific demand.
– Lack of continued interest on the part of particular members, or because of employer or judicial hostility.
– Workers fearing unemployment consistently sought to advance personal interest ahead of workers’ rights.
o First National unions formed in 1850s, built in some substantial part around telecommunications and railroads.
o Noble Order of the Knights of Labor, founded in 1869 as secret society. Eventually abandoned secrecy in 1879 and opened the doors to masses and unskilled workers.
§ Opposed strikes and advocated legislation and education to achieve their aims.
§ Peaked in 1986 with nearly 700K members, almost seven times the membership of the previous year.
§ This group had virtually disappeared by 1890. This disappearance marked a major turning point in America unions: never again would a union primarily advocate social reform and producer cooperation rather than on collective bargaining backed by economic weapons.
o American Federal of Labor (AFL) becomes organized in 1886.
§ Leader Samuel Gompers
§ Rejected utopia ideas of former unions, had a goal: pure “job and wage consciousness.” Sought to enlarge “the bargaining power of the wage earner in the sale of his labor.”
· Concept of “business unionism” that accepted philosophy of capitalism
· Gompers principles included:
o 1. Autonomy in the internal of affairs of each affiliated international union
o 2. Exclusive jurisdiction for each affiliate
o 3. Avoidance of a permanent commitment to any political party, and use of labor’s political influence to support its friends and punish its enemies regardless of their party affiliations.
o 4. The principle of voluntarism, improvement of trade unions, as distinguished from legislative action.
§ Failed to secure at least one of the major railroads because Gompers insisted on not discriminating against black workers.
– A. The Common Law Response: Treat Combos of Craftsmen as a Criminal Conspiracy
o Philadelphia Cordwainers (Commonwealth v. Pullis, 1910)
§ Charged that the Ds in this case would:
· A. Only work at specified rates, higher than those that had customarily been paid.
· B. “by threats, menaces, and other unlawful means” try to prevent other workmen form working at different rates.
· C. not work for any person who employed a workman who had broken any of the rules or bylaws of their association and, pursuant to that agreement, had refused to work for the usual rats and prices.
o Rules: Is the combination consistent with the law and public welfare?
o The Court takes the position that market demands, and that alone, should dictate the prices of the products. An “artificial regulation” is to fix a “positive and arbitrary” price on the work, controlled by a partial person.
§ “It is an unnatural, artificial means of raising the price of work beyond its standard and taking an undue advantage of the public.”
§ It would make a contract for goods in advance too unstable; whether the price would decrease or increase based on forces that weren’t related to the market.
§ The old “Spirit of `76” argument: “Is it not restraining instead of promoting the spirit of `76 when men expected to have no law but the constitution, and laws adopted by it or enacted by the in conformity to it? Was it the spirit of `76 when men expected to have no law but the constitution, and laws adopted by it or enacted by the legislature in conformity to it?”
· Finally, the Cordwainers should “neither be slaves nor the governors of the community.” Thus, they have rights, but not a monopoly.
·
– Commonwealth v. Hunt (1842, Mass): 40 years post-Pullis.
o Case arises from the conviction of seven members of the Boston Journeymen Bootmakers’ Society for criminal conspiracy. A journeyman who had accepted work below the Society’s rate schedule had instigated the prosecution. The Society then booked Horne, and then when the employed failed to persuade Horne to capitulate, had to fire him. Horne filed a complaint with the DA.
§ “The manifest intent of the association is, to induce all those engaged in the same occupation to become members of it. Such a purpose is not invalid. It would give them a power which might be exerted for useful and honorable purposes, or for dangerous and pernicious ones.”
· It is not criminal for men to band together and collectively exercise their rights, assuming that in this state it was free to work and not work for the employer. These men, assuming the purpose was legitimate, could combine their efforts so as to best serve their own interest.
· To Judge Shaw, this was not a case of physical coercion. Instead, it was an agreement not to work for him to enforce a closed-shop agreement, in which they forced the employer to decline to employ Horne any longer.
o Note this mean/ends test here. If the ends were valid, the means employed may also be valid.
§ This case is a milestone in the decline of criminal contempt doctrine.
§ Ended idea of ipso facto criminal conspiracy, and directed attention instead to the means/ends relationship.
· Labor unions as criminal conspiracy generally ended in MA, other states still utilized it, until the labor injunction became a popular tool.
– B. The Labor Injunction
o After the end of criminal conspiracy as a means to end labor strife, the rise of the labor injunction took its place to stop the harm being done in the short run.
o Vegelahn v. Gunter: (Mass, 1896) Holmes
§ An injunction was issued that restrained the P from patrolling the sidewalks in from of the business or in the vicinity of the premises occupied by him, for the purpose of preventing any person in his employment, or desirous entering the same, from entering it, on continuing in it…”
§ Means initially used to try and receive the desired wage schedule were originally persuasion and social pressure.
§ Threats of personal injury and unlawful harm were made, but not followed through on. These threats could continue. This action should have been enjoined.
§ Holmes ruled that “the patrol, so far as it confined itself to persuasion and giving notice of the strike, was not unlawful, and limited the injunction accordingly. There was some evidence of persuasion to break existing contracts. I ruled that this was unlawful, and should be enjoined.”
· Granted an injunction that stopped the D from physically interfering with any persons in entering or leaving the P’s premises, or by intimidating, threats, express or implied of violence or physical harm to the body or property, any person or persons who now are or hereafter may be in the employment of the P, or is looking to do that.
· Opinion of Judge Allen: “The patrol was an unlawful interference both with the plaintiff and with the workmen, within the principle of many cases, and, when instituted for the purpose of interfering with his business, it became a private nuisance.”
· Holmes dissent: He agrees with the law that if several persons have conspired to harm the business, it could be grounds for an injunction. But, there are some cases with grounds for a justification.
o “In numberless instances the law warrants the intentional infliction of temporal damage because it regards it as justified.”
§ Argument: a man may set up a business in a country town too small to support more than one, although he expects and intends thereby to ruin someone already there, and succeeds in his intent. In such a case, he is deemed lawful. The rationale here is that free competition is worth more to society than it costs, and that on this ground infliction of damage is privileged.
· So, when the damage is done not for its own sake, but as an instrumentality in reaching the end of victory in the battle of trade, it may be justifiable damage.
· It can’t be done by force or threats.
· But, it can be done by the withdrawal of such pecuniary advantages, which might be within the defendant’s control.
· There is a notion that a combo of persons who join together to do something that they all may legally do separately will make it unlawful conduct. “I think it plainly untrue, both on authority and on principle.”
o Free competition means combination.
o “Combination on the one side is patent and powerful, Combination on the other side the necessary and desirable counterpart, if the battle is to be carried on in a fair and equal way.”
· Special Characteristics of the Injunction:
– Management preferred the injunction over a suit for damages for several reasons. Namely, relief could be obtained quickly; ex parte showings could gain a temporary injunction.
– Personal injunctions were also available, so the whole union didn’t have to be involved.
– Judge, not jury, held these equity hearings and the judge was more liable to be favorable to management.
– The injunctions were not narrow; usually framed in pretty broad terms.
x. Between 1890 and 1930 labor injunctions became the norm. Among the abuses that are cited to the injunction are the undermining of economic strength of unions but also placed in question the neutrality and prestige of the courts.
* Particular criticism for courts issuing injunctions against people on the appeal from management, without giving labor a chance to really respond.
– Supporting affidavits were not even filed in 58 of 70 cases in which TROS were granted, and employers’ complaints were often stock, as if a legal form was being used from case to case.
x. W/ a TRO, once it ended, the momentum of an organizing a drive or strike would often have already dissipated.
– Are labor pickets inherently coercive? There is some debate that the picket demands more of management to take certain action, and may lead to force or violence. In Vegelahn, it is argued that Homes’ limited use of the injunction would be worse in place of a broad injunction, because it could lead to this type of unrest.
– Holmes on the “Labor Question”:
“The annual product, subject o an infinitesimal deduction for the luxuries of the few, is directed to consumption by the multitude, and is consumed by the multitude, always. Organization and strikes may get it at the expense of the less organized and less powerful portion of the laboring mass. They do not create something out of nothing.” Plant v. Woods, 1990 – So, even with Holmes, the idea that there was not a “body of capital” out there ready to pay labor for work they didn’t deserve stuck.
From Plant: “The defendants might make such lawful rules as they please for the regulation of their own conduct, but they had no right to force other persons to join them.”
– Holmes responds: “I differ from my Brethren in thinking that the threats were as lawful for this preliminary purpose as for the final one to which strengthening the union was a means. I think that unity of organization is necessary to make the contest of labor effectual, and that societies of laborers lawfully may employed in their preparation the means which they might use in the final contest.”
– Judicial Response to Protective Labor Legislation:
Lochner v. New York, US 1905
Hold: The Court held it to be unconstitutional a New York statute providing that no employee shall “work in a biscuit, bread or cake bakery or confectionary establishment more than sixty hours in a any one week, or more than ten hours in any one day.”
Rat: Court tried to say that this was an interference w/ the right of contract between the management and bakers, and unlike the steel, coal, or other dangerous industries, this was an industry that did not inherently need to be regulated. Needed to be a type of industry that allowed the state to be reasonably proper in interfering.
– “The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right.”
– “Viewed in a light of a purely labor law, with no reference whatever to the question of heath, we think that a law like the one before us involves neither the safety, the morals nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act.”
x. The police powers of the state, which related to the safety, health, morals and general welfare of the public, did not come into play in this ca
pectively belong.”
– Note: there was not dispute between the employer and employees over conditions or terms of employment
Ultimate holding: Congress had in mind w/ the Act “particular industrial controversies” and only to the “terms or conditions of employment” are the only grounds if dispute recognized as adequate to bring into play the exemptions that are extraordinary in the courts general power in equity. Only PROXIMATE and SUBSTANTIAL parties, not sentimental or sympathetic parties, could utilize the exemption.
Dissent:
Common law argument is based in self-interest. Because Duplex is going to corrupt the entire agreement, unions had to act to injure. And, because everyone who was injuring by whatever means was connected by a common interest, it should be allowed.
– “Above all rights rises duty to the community.” – really?
Questions:
– W/ section 6, one reading could indicate that the laborer is not a “commodity or article of commerce,” and is therefore not a part of the antitrust laws.
– In regards to Duplex Printing, the union appeared to be acting at the behest of organized labor groups, which might have been enough to take the case out of protection of section 6. Consider this.
Coronado Coal Co. v. United Mine Workers, 1925
Court holds “We think there was substantial evidence at the second trial in this case tending to show that he purpose of the destruction of the mines was to stop the production of nonunion coal and prevent its shipment to markets of other states than Arkansas, where it would be competition tend to reduce the price of the commodity and affect injuriously the maintenance of wages for union labor in competing mines.”
– Thus, because the issue went so far as to go in interstate commerce, the strike at the mine in Arkansas was not blocked from the Sherman antitrust act.
The Norris LaGuardia Act of 1932: Mandating Government Neutrality in Labor Disputes
– As noted in US v. Hutcheson, the Norris LaGuardia act ended the Duplex Printing restriction to “employer employee” conflicts as the narrow scope that could not receive an equity injunction.
– Federal Judiciary is badly tarnished by the 1920s and the pro-employer stance and active use of the injunction in equity.
– Congress is moving towards a pro-labor and collective bargaining stance; economic collapse of 1929 adds fuel to the fire as wages erode.
Section 4:
a. Outlawed yellow dog contracts.
b. Gave recognition to the fact that individual employees bargaining on their own did not have “actual liberty of contract,” thus undermining Hitchman Coal.
c. Section 4: no injunctions on becoming a union member, strikes, nonviolent and non-fraudulent patrolling or other forms of publicizing labor disputes
d. peaceful assemblies.
e. rending advice or entering into an agreement to do any of the above (collusive action against interstate commerce)
f. Nobody could go down for the rouge action of a union member or agent, unless they were actually part of the action.
Section 7:
a. Procedural limitations
b. No ex parte orders unless “a substantial and irreparable injury to complainant’s property will be unavoidable” and only for a maximum of 5 days and with adequate security.
c. an issuance of an injunction required findings of fact consistent with the normal conditions of the exercise of equity power, including the lack of an adequate remedy at law, a likelihood of substantial and irreparable injury tot eh complainant’s property, and the lesser impact on defendants from the grant of relief.
d. Public officers who were charged w/ guarding complainant’s property could not do so w/o injunction.
e. An injunction could only be issued against the specific person or persons or organizations actually committing, threatening, or authorizing the unlawful acts being enjoined.
Section 8:
a. The clean-hands doctrine: the complainant must have complied with all measures of the law in order to receive an injunction and must have failed to make every reasonable effort through negotiation.
Section 9:
a. Injunctions had to be specific to an actual act.
Norris LaGuardia Act intentions were not to promote organized labor necessarily, but instead to operate free of Government interference. Injunctions were not outlawed, it just made the rules for receiving one more transparent and took away some of the clear equity abuses that were occurring. Think laws of Civ. Pro. here.
– In application today, the Norris LaGuardia act has incurred upon labor unions a “broad immunity” from the issuance of federal injunctions in labor disputes. It effectively immunizes unions from state injunctions as well.
