simple request, when backed up by a display of physical force, may overawe the most determined man, even though there is neither threat nor violence. The vast majority of wage-earners are peaceful, lawabiding men, who instinctively avoid trouble and the giving of offense. Such men would cease working or refuse to work if compelled to run the gauntlet of a picketing system such as the evidence shows is in force at and near complainant's premises in Goldfield. Notwithstanding the denials of the respondents, the affidavits of so many witnesses, guards, and employes who testify to what they have actually seen and heard, who have repeatedly passed by or made their way through squads of pickets at the crossing, and who were often the victims of ridicule, insult, and threat, leave no doubt in the mind of the court that the pickets were, in the main, members of the Goldfield Miners' Union; that they so assembled with a common purpose, and that purpose was to coerce and intimidate nonunion men who wished to work for, or who are already in the employ of the company. This conviction is strengthened by the fact that the complainant has 50 guards and deputy sheriffs in its employ for the protection of its employes. It is unreasonable to suppose that complainant would go to an expense of $250 per day for this purpose if guards were not needed. Otis Steel Co. v. Local Union, No. 218 (C. C.) 110 Fed. 698. The fact that men have quit and refused to work, and the further fact that it is the custom to send and have the men go in a body between the mines and the company's boarding house, and that guards are stationed on the way, show that there is something in the appearance, conduct, language, or numbers of the pickets which inspires fear among the employes of the company. It is significant that all these precautions are taken while a body of federal troops is stationed only a few hundred yards away. It also appears that the company cannot, by reason of fear which exists, obtain a sufficient number of men to operate its mines. Peaceful picketing, in theory, is not only possible, but permissible, and, as long as it is confined strictly and in good faith to gaining information, and to peaceful persuasion and argument, it is not forbidden by law. Unfortunately, peaceful picketing is a very rare occurrence. This follows from the very nature of things. Men who want to work for an employer who is eager to employ them must be persuaded not to work-persuaded not to exercise their legal rights. In such case peaceful solicitation is of but little effect, and when it becomes persuasion by intimidation it is universally condemned, and has been

declared unlawful in every jurisdiction where the question has been raised. . . . .

Whether the union is an original conspirator or whether, after it became aware of the coercive conduct of the pickets, it became a party to the conspiracy by co-operating with and supervising them, is immaterial. In either event, the Miners' Union is a conspirator and is responsible for the acts of its co-conspirators. . . . .

The system of picketing was adopted by the union and its strike committee, and this picketing has been and is under the supervision of the union, through its strike committee. Each member of the committee has taken an active interest in the strike, keeping in close and constant touch with all union men engaged therein, and all, or nearly all, of the pickets are members of the union. Even if it were possible to believe that the union was innocent of any improper design when it adopted the picketing system "to a limited degree," it is idle to contend that it has remained in ignorance of the misconduct of its pickets. The knowledge of the strike committee was the knowledge of the union. Spaulding v. Evanson (C. C.) 149 Fed. 913. Nevertheless, the union, through its strike committee, continued its supervision of the strike, and its members continued to threaten and abuse nonunion men. The coercion was in behalf of the union, for the benefit of the union, and in aid of the strike inaugurated by the union. The union cannot now, while it is consciously and uncomplainingly accepting the benefits of this terrorism, relieve itself from responsibility by saying that it has always instructed the miners against lawlessness of every sort.

Neither the history of the Goldfield Miners' Union, nor its conduct as detailed in the evidence, justifies any assumption that it was guiltless of wrongful purpose in adopting a system of picketing. There is hardly a page in the history of picketing which does not record lawless deeds and acts. When the union, by its instructions, practically made all its members pickets, it was bound to anticipate the natural and almost inevitable consequences, to foresee that the pickets would do just what they did and are doing, or something worse. We are justified in assuming that the union intended and designed, and therefore conspired, to effect the natural consequences of its acts. It is idle to talk of 30 to 75 pickets, and at times more than 100, gathering twice a day at the crossing for friendly solicitation. Such bands of men were never sent by the union to confer with the Mine Operators' Association. The picketing, designed by the instructions, was designed

and intended to inspire fear and apprehension among the employes. Such assemblages are never conducive to fair argument; they are simply intended to back up persuasion with a display of physical force.

The recent case of Franklin Union No. 4 v. The People, 121 Ill. App. 647, is a strong one. The union declared a strike and established a picket system. Violent assaults, threats, vile language, and other forms of intimidation were used by the pickets to coerce complainant's employes to quit work. The court, in adjudging the union itself guilty of contempt for violating the preliminary injunction, uses the following language:

... •

"There is no room for reasonable doubt that the union was a party to the conspiracy charged in the bill, and that the picketing was established and continued under the direction of plaintiff in error through its officers and strike committees. . . . . The picket system once established, the intimidation, assaults, slugging, and bloodshed followed as naturally and inevitably as night follows day. There can be no such thing as peaceful, 'polite and gentlemanly' picketing, any more than there can be chaste, 'polite and gentlemanly' vulgarity, or peaceful mobbing or lawful lynching. Consequently the mere fact of a picket system being established by men known to be unfriendly constitutes and is a threat of physical violence and an intimidation to the peaceful man. . . . . It is idle to talk of picketing for lawful persuasive purposes. Men do not form picket lines for the purpose of conversion and lawful persuasion. Such picketing as is established by the evidence in the case at bar is intended to annoy and intimidate, whether physical violence is resorted to or not, and is unlawful in either case. ... The union or its members had no legal right to interfere with the business of complainants or to disturb them in their lawful business or occupation, as was done in this case, for the purpose of compelling them to make agreements with the unions or its members as individuals in regard to the wages to be paid. . . . . The union was the main factor in the conspiracy, and by reason of its money and its control of its members it was the real power back of the whole scheme. Under the authorities cited above and many others and the evidence the union must be held guilty of willfully violating the injunction, and it must suffer the consequences."

An injunction pendente lite will issue against all of the respondents, except C. E. Mahoney.

QUESTIONS

1. Would this court have decided the Karges case differently? The case of O'Neil v. Behanna?

2. Compare the attitude towards picketing expressed in this case with that of the two preceding cases.

3. To what extent is the decision dependent on the doctrine of conspiracy? On the rule against intimidation? On the doctrine of natural and probable consequences?

4. Formulate a definition of picketing based on this case.

5. Discuss the dictum of the Illinois Court: "It is idle to talk of picketing for lawful persuasive purposes."

6. Within the rule of the principal case, what may pickets lawfully do that will be of any value to strikers in a labor dispute?

7. Can picketing continue after a strike has been abandoned? How can you tell when a strike is no longer in existence?

8. "Any person or persons who go near to or loiter about the premises or place of business of any person, firm or corporation engaged in a lawful business, for the purpose of influencing others not to trade with, buy from, or sell to, or have business dealings with such person, firm or corporation, or to picket the works or place of business of such other person, firm, or corporation, for the purpose of interfering with or injuring any lawful business or enterprise shall be guilty of a misdemeanor." (a) Would such a state statute prevent all picketing? (b) Would it be desirable? (c) Would it be constitutional under Amendment XIV?

9. A city ordinance forbids walking up and down a sidewalk in front of any place of business, with signs carried for the purpose of persuading any persons from entering such a place to transact business therein. S is convicted under the ordinance for carrying "sandwich" signs before a restaurant, stating that it was unfair to organized labor. He appeals on the ground that the ordinance violates the rights of free speech and publication of the state constitution and the due process clause of Amendment XIV. Decide the case.

10. "It shall be lawful for one or more persons on their own behalf or on behalf of a trade union or of an individual employer or firm, in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working." Would such a state statute be of any use to working men? Would it be desirable? Would it be in violation of Amendment XIV? Would it permit picketing when the strike was for a purpose not recognized as legal by the state courts?

11. Consider the advisability of a law permitting picketing only for those who act as pickets under the authority of a labor union or an employer.

12. Would it be desirable to limit by law the number of pickets that could be used at any one time?

13. Do the statutes of your state deal with picketing in any way? If so, how have they been construed and applied by the courts?

14. Draft a model law for the regulation of picketing.

[The use of the injunction by the federal courts in connection with picketing arising out of a labor dispute is limited by section 20 of the Clayton Act-see section V, D, (a), infra.]

(c) The Boycott

BOOTH & BRO. v. BURGESS

Court of Chancery of New Jersey. 1906. 72 N. J. Eq. 181

STEVENSON, V. C. . . . .

The complainant is a corporation under the laws of New Jersey, carrying on the business of lumber dealers and manufacturers of doors, blinds, trim, and other millwork used in the erection of buildings. Its customers are boss carpenters and building contractors. It owns its yard and mill, which are situate at Bayonne, in Hudson county, and the value of its plant and stock on hand is over $200,000. It employs about 25 hands.

The defendants against whom a preliminary injunction was prayed for are officers and agents of the labor organizations which embrace the building trades of Hudson county. These trades are organized in the usual way in local unions, a district council composed of delegates from all the local unions in Hudson county, and a united brotherhood composed of all the local unions throughout the United States and Canada belonging to the order, which local unions, however, are represented in the convention or governing body of the united brotherhood by delegates.

Consequent upon a dispute as to hours of labor and wages between the complainant and its employes, the complainant "declared the open shop," the employes struck, and thereupon the complainant became involved in a contest with the whole system of labor unions in Hudson county connected with the building trades, embracing between two and three thousand workmen. The complainant became "unfair," and all its products likewise became "unfair." The labor organizations, through the defendants, their officers and agents, have notified the boss carpenters and builders that the complainant's goods are "unfair"