peaceful, law-abiding man can be and is intimidated by gesticulations, by menaces, by being called harsh names, and by being followed, or compelled to pass by men known to be unfriendly. ... The frail man, or the man who shuns disturbances, or the timid man, must be protected, and the company has the right to employ such."

This view, that picketing always amounts to intimidation, has been adopted also by the courts of California.1 Though they recognize the strike and the boycott as legal, they will not permit picketing in furtherance of either. In a Massachusetts case the presence of two pickets at a factory entrance was held to be intimidating." Colorado and Washington have statutes forbidding picketing. All picketing has been condemned also by the supreme courts of Illinois, Michigan, and New Jersey and in several federal cases.1

There are even more cases which hold that peaceful picketing is lawful. There have been definite expressions to this effect from the supreme courts of Indiana, Missouri, and Virginia; and it is well-established law in New York.5 But this still leaves open the question, when is picketing peaceful? In answer to this question a federal court said: "The defendants claim to have the belief that physical violence alone is to be condemned. But all persons know that intimidation by words, by menaces, by numbers, by position, and by many

Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 324 (1909). Ex parte Williams, 158 Cal. 550, 111 Pac. 1035 (1910).

2 Vegelahn v. Gunther, 167 Mass. 92 (1896).

3 Colorado, Laws 1905, p. 161; Washington, Laws, 1915, C. 181.

Franklin v. People, 220 Ill. 355 (1906); Barnes v. Typographical Union, 232 Ill. 402, 424 (1908); Beck v. Railway Teamsters, 118 Mich. 497, 77 Ñ. W. 13 (1898); Ideal Mfg. Co. v. Ludwig, 149 Mich. 133, 112 N. W. 723 (1907); George Jonas Glass Co. v. Glass Bottle Blowers, 72 N. J. Eq. 653, 66 Atl. 953 (1907), 77 N. J. Eq. 219, 79 Atl. 262 (1911); Otis Steel Co. v. Molders, 110 Fed. 698 (1901); Knudsen v. Benn, 123 Fed. 636 (1903); Kolley v. Robinson, 187 Fed. 415 (1911).

"Karges Furniture Co. v. Woodworkers, 165 Ind. 421, 75 N. E. 877 (1905); City of St. Louis v. Gloner, 210 Mo. 502, 109 S. W. 30 (1908); Everett Waddey Co. v. Typographical Union, 105 Va. 188, 53 S. E. 272 (1906); Krebs v. Rosenstein, 66 Ñ. Y. Supp. 42 (1900); Rogers v. Evarts, 17 N. Y. Supp. 264 (1891); Foster v. Retail Clerks, 78 N. Y. Supp. 860 (1902); Mills v. U. S. Printing Co., 91 N. Y. Supp. 185 (1904); Searle Mfg. Co. v. Terry, 106 N. Y. Supp. 438 (1905); Butterick Pub. Co. v. Typographical Union, 100 N. Y. Supp. 292 (1906).

Union Pacific R.R. Co. v. Ruef, 120 Fed, 102 (1903).

other things is just as effective as by using clubs or brass knuckles or knives."

It is the manner in which the picketing is conducted which determines its legality. Veiled threats toward the new employees are condemned just as strongly as are acts of physical violence. Many courts have held that if the number of the pickets is large, the picketing is necessarily intimidating.' Others have gone so far as to assert that speaking to the new employees against their will is intimidation. Often the payment of union benefits to induce the new employees to join the strikers has been prohibited in injunctions; and there are a few decisions sustaining such prohibitions. In most cases involving picketing which come before the courts the evidence is contradictory. On behalf of the strikers testimony is presented that the picketing has been conducted in an orderly manner, and that there have been no threats or acts of violence. The employers in their turn allege that force, threats, and violence have been resorted to, and often they are able to point to specific acts of this character. Usually, however, the evidence leaves doubt as to the responsibility of the union for the acts of violence which have occurred. Such responsibility is assumed in many cases. There are few standards which the courts may employ to determine whether picketing has in fact been peaceful or intimidating. Hence, again, their bias is often determining, and the decisions have more frequently gone against organized labor than in its favor.

Strikes, boycotts, and picketing have often been held illegal. These are the weapons through which labor secures and maintains collective bargains with employers. Collective

1 American Steel & Wire Co. v. Wire Drawers, 90 Fed. 608 (1898); Union Pacific R.R. Co. v. Ruef, 120 Fed. 102 (1903); Pope Motor Car Co. v. Keegan, 150 Fed. 148 (1906); Allis-Chalmers Co. v. Iron Molders, 150 Fed. 155 (1906); Foster v. Retail Clerks, 78 N. Y. Supp. 860 (1902); Searle Mfg. Co. v. Terry, 106 N. Y. Supp. 438 (1905); O'Neil v. Behanna, 182 Pa. 236, 37 Atl. 843 (1897); Jones v. Van Winkle, 131 Ga. 336, 62 S. E. 236 (1908).

Frank u. Herold, 63 N. J. Eq. 443, 52 Atl. 152 (1901); Jersey Printing Co. v. Cassidy, 63 N. J. Eq. 759, 53 Atl. 230 (1902); Goldfield Mines Co. v. Miners' Union, 159 Fed. 500 (1908).

3 Jersey City Printing Co. v. Cassidy, 63 N. J. Eq, 759, 53 Atl. 230 (1902); Tunstall v. Steans Coal Co., 195 Fed. 808 (1911). To contrary, Levy v. Rosenstein, 66 N. Y. Supp. 101 (1900); Everett-Waddey Co. v. Typographical Union, 105 Va. 188, 53 S. E. 272 (1906).

agreements are worthless without a strong union to back them up. They are not enforceable in courts of law. The unwilling employer is kept from violating them only through fear of a strike. Real collective bargaining implies equal strength upon both sides. It results only when each side is aware of the strength, ability, and willingness of the other. Then a joint conference is held and a compromise is effected. Neither will violate the agreement while the other party maintains its strength. Thus, it will be seen that restrictions upon the weapons which labor may employ in trade disputes are in fact limitations of its right to bargain collectively.

(4) Restrictions on Employers and Employees

The Clayton act of 19141 many believe has removed the restrictions which hamper trade unions. The most tangible gain to labor is the provision for jury trial in contempt cases where the offense charged is also indictable as a crime. This act further provides that injunctions issued by the federal courts shall not prohibit the quitting of work, the refusal to patronize, peaceful picketing, or peaceful persuasion. Nor are these acts to be considered "violations of any law of the United States." These provisions are to apply whether these acts are done "singly or in concert." Yet those in charge of this legislation pointed out that it did not modify the law of conspiracy. When workingmen combine to injure an employer or non-unionists, their illegal purpose colors all their conduct. Quitting work, for instance, though ordinarily lawful whether done "singly or in concert," becomes unlawful when undertaken in pursuance of an unlawful conspiracy. Hence, the Clayton act seems to make no material modifications in the substantive rights of employers and employees. Certainly it does not affect cases in the state courts, which far outnumber those in the federal courts.

Do similar restrictions apply to employers? In theory, yes, in practice, no. While the workingmen's right to strike is restricted, the employers' right to discharge is absolute.

1 United States, Laws 1913-1914, C. 323.

In the last decades many states have enacted statutes prohibiting employers from coercing workmen into surrendering their right to belong to labor unions through threatening them with discharge unless they comply with this demand. These statutes have uniformly been held unconstitutional, and the Supreme Court of the United States is among the courts holding this view. This means that the employer may establish a shop closed to all union workmen. Some recent cases even hold that where workmen have signed an agreement to the effect that they will not belong to any union, all efforts made thereafter to induce them to join a union are illegal. With these decisions must be contrasted those relating to the establishment of a closed shop through the effort of the union. It is true that it has often been stated that there is nothing unlawful about an agreement that only union men shall be employed, if the employer voluntarily enters into such an arrangement. The hub of the situation is that such contracts are usually not entered into voluntarily, but are gained through strikes. As has been noted, such strikes have often been condemned as an effort to injure non-unionists, or as amounting to coercion. Yet the Supreme Court has held that it is not "coercion" to threaten to discharge a workman unless he will renounce his union membership.3

2

The theory of the absolute right of the employer to discharge results also in the virtual legalization of the blacklist. Most of the states of the union have laws prohibiting blacklisting; but they have been dead letters. The explanation lies in the fact that employers may discharge or refuse to employ any workman who is an "agitator" or who belongs to a union. Antiblacklist laws which merely prohibit the circulation of information as to who are union members are probably constitutional, although one federal decision does not even grant that much. He who circulates this information 1 Adair v. United States, 208 U. S. 161 (1908); Coppage v. Kansas, 35 Sup. Ct. 240 (1915).

Flaccus v. Smith, 199 Pa. 128, 48 Atl. 894 (1901); Hitchman Coal & Coke Co. v. Mitchell, 202 Fed. 512 (1912. Overruled in 214 Fed. 685, but further appeal taken to the Supreme Court). This is also the basis of the injunction involved in the case of Bittner v. Coal Co., 214 Fed. 716 (1914).

Coppage v. Kansas, 35 Sup. Ct. 240 (1915). 'Boyer v. Western Union, 124 Fed. 246 (1903).

may be punished; but the employer who acts upon it is entirely within his rights. His reasons for refusing to employ or for discharging cannot be questioned in any court. In this day of the telephone, the telegraph, water-marked paper, and the card system, it is well-nigh impossible to prove who furnished the information upon which a blacklisted workman was discharged. Moreover, the supplying of such information by a former employer upon the request of the present employer is regarded as privileged. It is expressly declared legal in the antiblacklist laws of many states. This is the simplest and most common manner in which an employer secures information about the "records" of his employees. A workman discharged for "union activity" as a result of information secured in this manner has no redress against either his employer or his former employer. If the information was supplied by an employers' association or furnished gratuitously by the former employer, the blacklisted workman cannot recover unless he proves who furnished the information and that he was discharged as a result thereof. He cannot establish either proposition unless the employer who discharged him is in sympathy with him.1 This is not the case where the reason for the discharge was membership in a labor union. To all intents and purposes blacklisting is legal throughout the United States.

That the blacklist is a powerful weapon in combating labor organizations cannot be questioned. To offset its effects unions have often adopted the policy of giving employment as organizers to members who have been blacklisted. Nor is there any doubt that this weapon is extensively used. There is no industrial center in which there are not scores who claim to have been blacklisted. The boycott in many respects is the counterpart of the blacklist; but while blacklisting is practically unrestricted by the laws and the courts, labor's use of the boycott is very seriously interfered with.

In theory the same principles are applied in reference to the activities of employers as to those of labor. The absolute right of employers to discharge is stated to be paralleled by

This explains why workmen who were discharged upon the demand of employers' liability insurance companies have sometimes been able to recover from these companies.