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prosecution and punishment, under any other law than that of
conspiracy, of persons who, by force, threats, or menace, hinder
any one from working as he may desire ; it would seem, how-
ever, that such a provision is superfluous, since the use of the
means indicated would doubtless take the agreement out from
under the protection of the statute.

> Cal., Pen. Code, p. 581 ; Colo., A.S., sec. 1295.
» Minn., R.L., sec. 4868; N. Dak., R.C., sec. 8770.

• N.J., G.S., p. 2344, sec. 23 ; Pa., B. P. Dig., p. 484, sees. 72, 73.

* Goldberg v. Stablemen's Union, 149 Cal. 429, 86 Pac. 406.
» Frank v. Herold, 63 N.J. Eq. 443, 52 Atl. 152.


Of a somewhat different intent are laws prohibiting conspiracy
against workingmen so as to prevent employment by intimidat-
ing them, or by taking away or hiding their tools ; or by coerc-
ing or threatening employers so as to lead to their discharge or
nonemployment.^ These statutes can hardly be said to do
anything more than to declare the common law in its apphca-
tion to special classes of persons.

Section 119. Strikes. — A strike may be defined as a pre-
concerted cessation of work by employees. As it is usually for
the purpose of procuring some concession from the employer,
the statement that it is for such purpose is frequently made a
part of the definition.^ Inasmuch as every man has a right to
leave service at pleasure, with liability in damages only if a
contract is violated,' and without regard to reason or motive,*
it has been held that strikes are per se legal ; * and while this
rule may be accepted as generally correct, it must be with the
understanding that neither the purpose nor the method of the
strike is unlawful. It is obvious that if a strike involved nothing
more than the mere cessation of employment, initiated volun-
tarily by the workmen and so continued, leaving the employer
and third persons free to such course of conduct as they might

>Fla., G.S., sec. 3515; Minn., R.L., sec. 4867; Miss.. Code, sec. 1084;
N.Y.. C. L., ch. 40, sec. 580.

* For a fuller discussion of definitions see Martin, The Modern Law of Trade
Unions, sec. 25.

» Pickett V. Walsh, 192 Mass. 572, 78 N.E. 753. The absence of contracts
for a fixed period is assumed throughout this discussion, unless the point is
specifically mentioned.

* Booth r. Burgess, 72 N.J. Eq. 181, 65 Atl. 231 ; Raycroft p. Taintor, 68 Vt.
219, 35 Atl. 53 ; National Prot. Ass'n. p. Gumming. 170 N.Y. 315. 63 N.E. 369 ;
Coolcy, Torts, p. 278.

* Union P. R. Co. v. Ruef. 120 Fed. 102 ; Allis-Chalmers Co. p. Iron Molders"
Union, 150 Fed. 155 ; National Prot. Ass'n. p. Gumming, $upra.


choose, many of the questions usually involved would not arise.
No writ can issue to compel former employees to return to work,
any more than can an order directing employers to reinstate
discharged workmen. Such a situation, therefore, need claim
no further notice.

While the motive or purpose of the act of a single individual
quitting work would not be made the subject of judicial inquiry,
the fact of the concert of action of a number, if followed by dam-
age, gives room for inquiry into the methods by which such
concert was procured and maintained, as well as into the ends
in view,^ and if these are shown to involve coercion or intimida-
tion, or an improper interference with the rights of individuals,
employers or employees, or of the public at large, the necessity
for legal or equitable intervention may appear.^ If the object
is the benefit of the members of the organization, the fact that
incidental injury to others results creates no liability;^ but if
injury is the primary motive, and the possible benefit accruing
to the members is remote and indirect, the strike will be de-
nounced as illegal.* And even where an anticipated beneficial
result is offered as a defense, the courts will not allow the per-
petration of a wrong, since "no conduct has such an absolute
privilege as to justify all possible schemes of which it may be a
part ; " ^ nor do statutes legalizing labor combinations and

1 Aikens v. Wisconsin, 195 U.S. 194, 25 Sup. Ct. 3.

» Plant V. Woods, 176 Mass. 492, 57 N.E. 1011 ; Brennan v. Hatters, 73 N.J. L.
729, 65 Atl. 165 ; Allis-Chalmers Co. v. Iron Molders' Union, supra.

' National Fireproofing Co. v. Mason Builders' Ass'n., 169 Fed. 259 ; Allis-
Chalmers Co. V. Iron Molders' Union, supra; National Protective Ass'n. v.
Gumming, supra; Pickett v. Walsh, supra.

* Berry v. Donovan, 188 Mass. 353, 74 N.E. 603 ; Curran v. Galen, 150 N.Y.
33, 46 N.E. 297 ; Brennan v. Hatters, supra.

' Aikens v. Wisconsin, supra; see also Purvis v. United Brotherhood, 214 Pa.
St. 328, 63 Atl. 585 ; State v. Stockford, 77 Conn. 227, 58 Atl. 769.


strikes modify this rule in any wise.^ The fact that workmen
are in the employment of a receiver under the direction of a
court does not affect their right to combine or to strike.^

Within the above rule, strikes against an employer to secure
an increase of wages, reduction of hours, changes of shop rules,
safer or more satisfactory physical conditions of employment,
and the like, are obviously lawful ; and the employer is without
remedy even though the strike threatens to result, or actually
results, in his financial ruin,^ or also in the inconvenience of the
public* The strike must, however, be actually justifiable, and
while the strikers must have acted in good faith in striking for
what seemed to them a justifiable cause, the courts will them-
selves decide whether or not the purpose for which the strike
was instituted amounts to a legal justification of it.^ The chief
difficulty in cases of this sort arises from the subsequent pro-
ceedings by means of which the employees seek to regain employ-
ment on the terms of their choice. Strictly speaking, em-
ployees who have gone out on a strike or who have been dis-
charged or locked out are as completely severed, in the eyes of
the law, from all relations with their former employers as if the
relation had never existed, and the relation can be resumed
only by virtue of a mutual agreement de novo between the
parties ; and this is true whether the employment was under
contract terminable at will," or for fixed periods.' If this rule

'Arthur v. Oakes. 63 Fed. 310, 11 CCA. 209; Currari r. Galen, supra:
Cumberland Glass Mfg. Co. v. Bottle Blowers, 59 N.J. Eq. 49. 46 Ail. 208 ;
People ex rel. Gill v. Smith. 5 N.Y. Cr. Rep. 512. affirmed. 110 N.Y. 633. 17 N.E.
871. ' Arthur v. Oakes, supra; In re Higgins. 27 Fed. 443.

8 My Maryland Lodge v. Adt. 100 Md. 238. 59 Atl. 721.

* Arthur v. Oakes, supra. • De Minico v. Craig ( 94 X.E.. 317.

• Union P. R. Co. v. Ruef, supra; Iron Molders' Union v. Alli.s-Chalmera Co.,
166 Fed. 45 (C.C.A.). ' King v. W. U. T

Online LibraryLindley Daniel ClarkThe law of the employment of labor → online text (page 22 of 32)