Felix Morrow

Courts Invent Means to Break Strikes
When Employers Cannot

The Apex Decision Is Only the Most Recent Instance in a Long Series of Measures
Taken by the Judicial Arm of Capitalism to Handcuff Organized Labor Action

(April 1939)

From Socialist Appeal, Vol. III No. 23, 11 April 1939, p. 4.
Transcribed & marked up by Einde O’Callaghan for the Marxists’ Internet Archive.

The decision of U.S. District Judge W.H. Kirkpatrick, imposing nearly three-quarters of a million dollars as punitive damages against the Philadelphia hosiery workers, and the recent U.S. Supreme Court decision in the Fansteel case outlawing sit-down strikes, are undoubtedly the opening guns of a new battle of the judges against the labor movement.

But if this battle gives every sign of being a particularly murderous onslaught of the berobed gentry against the workers, the war itself has scarcely abated at any time since the railroad strikes of 1877 scared the wits out of the bosses and sent them scurrying behind the judicial skirts for protection.

Flagrant, indeed, has been the history of judicial strikebreaking. So flagrant, that even the eminently respectable and conservative authors, John R. Commons and associates, in that standard work, History of Labor in the United States,’ describe it in these terms:

“When employers discovered that they could not place complete reliance upon the executive officers of the democratically controlled state, they turned to the courts for protection. The latter responded by developing a code of trade union law, which, having for its cornerstone a resurrected doctrine of malicious conspiracy as applied to labor combinations and, for its weapon, the injunction, proceeded to outlaw the boycott, to materially circumscribe the right to strike, and even to turn against labor the Federal statutes which had been originally directed against railway and industrial monopoly.” (History of Labor, 1926 ed., Vol. II, p. 530)

Damning as is this calmly-worded indictment of the judiciary, the most sketchy outline of the actual events will show that it is an under-statement.

The First Phase: Police Courts

When the workers first began to revolt against the slavery of the open shop in the 1870’s and 1880’s, the courts speedily came to the aid of the bosses. The first extensive use in labor disputes of such criminal charges as “inciting to riot,” “obstructing the streets,” “intimidation” and “trespass,” dates from this period. “Convictions were frequent and penalties often severe.” The use of criminal frame-ups reached a climax in the murder convictions and executions of the Haymarket martyrs in 1886.

But such ordinary criminal charges were not sufficient to hold back the growing labor movement. The willing judges proceeded to invent more complex and more effective weapons. For ,of course, the bosses were not seeking to prevent violence, but to prevent strikes, picketing, and boycott. Since the right to organize and strike was already recognized, the judges had the problem of conceding the legality of trade-unionism while outlawing the actual substance of unionism.

They did so by a series of ingenious inventions.

The Injunction and Its Alibi

Labor injunctions first were used extensively in the 1890’s. To justify their issuance, the judges had to develop a whole body of judge-made law. Three 2principles” thus developed were especially important:

1. “Preventing irreparable injury to property.’’ How justify issuing injunctions for this purpose where, obviously, the boss’ property was in no danger? By expanding the concept of property!

A strike did not endanger the boss’ physical property? But, said the learned judges, the boss had other property involved: his expectancy of retaining the service of old employees and of obtaining new ones, said the judges, may be called a property right! Since the strike interfered with that, it was illegal, hence an injunction was issued.

A boycott doesn’t endanger the employer’s physical property? But it undermines the profitable relations which the employer has with his customers – i.e., the boycott is effective! – and these relations, decided the judges, were property rights !

This brazen expansion of the concept of property was first fully formulated in New Jersey in the Barr case in 1893 and has served the bosses ever since.

2. “Unlawful conspiracy.” Even the new concept of property was not enough alone to justify injunctions, for it was well established in law that no redress can be had for losses due to the exercise by others (the unions) of that which they had a lawful right to do. If strikes and picketing were legal, the bosses had to suffer the consequences. To circumvent this simple truth, the judges proceeded to define either the object of the strike, or some of the means employed, as unlawful. For this purpose they dug up the old common law against conspiracies and proceeded by arbitrary definition to define either means or ends of strikes as unlawful conspiracies.

In many cases judges were crude enough to say that all interference with the business of employers constitutes conspiracy. More suavely, they declared that interference is prima facie unlawful but may be justified – i.e., if the union’s demands were acceptable to the judge, then the strike was lawful, if not it was unlawful!

How They Use the Sherman Act

3. To these two obviously judge-made weapons was soon added the one which has just been used in the case against the Philadelphia hosiery union. The Sherman Anti-Trust Act of 1890 was a law against industrial monopolies, adopted primarily as the result of agrarian discontent. To “apply” it to unions was and is the most arbitrary judge-made “law.” The Sherman Act ostensibly sought to curb monopolies under the Federal power to control inter-state commerce; convictions were to be secured by finding monopolies to be “restraining commerce.”

But during the great Pullman strike and boycott led by Eugene V. Debs in 1893, judges proceeded to issue injunctions by citing the unions as restraining commerce and therefore violating the Sherman Act! Thereafter this judicial “interpretation” became a basic anti-labor weapon.

In 1908 in the Danbury Hatters case, the judges first applied the punitive damage provisions of the Sherman Act to unions and union members, the life savings of several hundred members being attached to satisfy the staggering triple damages awarded by applying the anti-trust law. This is the precedent for the present case against the Philadelphia hosiery union.

The “Magna Charta of Labor”

As the result of a national wave of labor revolt, Congress in 1914 passed the Clayton Act expressly exempting unions from the anti-trust laws. Gompers hailed it as the “Magna Charta of Labor.” But it made little change in the injunction racket, for the judges whittled it away by interpretation: the final proof of this was the in junctions which Attorney General Daugherty obtained in 1922 against the railway shopmen’s strike – the most sweeping injunction ever issued up to that time, absolutely outlawing the strike.

Every attempt of the trade unions to free themselves from the murderous onslaught of the judges, by securing new legislation, has been thwarted by brazen judicial “interpretation” of the “intent” of Congress or the legislatures. The legislators, of course, connive with the judges, providing loopholes in the writing of the laws Actually there is a division of labor here: the legislators yield to labor’s demand on occasion, with the assurance that the judges will go on as before on the basis of the ingenuity they have employed always in siding with capital against labor.

While, as every trade unionist knows from his own experience, it is tactically advisable in strike struggles to retain as much as possible the formalities of legality, the basic fact remains: the judges, tools of the bosses, define what is legal. Hence, to stake everything on legality means to give up the fight against the bosses. That is why labor must struggle on the basis of the conviction that the rights of the working class are higher than any judge made law.

Last updated on 17 January 2016