CHAPTER VI

THE PICKET

It would hardly be possible for workingmen to carry through a strike without picketing. Picketing has thus often been passed upon by the courts. While coming in incidentally as a rule, it has also been brought forward as the main question in some instances. Even when the right to strike is conceded, it is not clear what may be done by the strikers. Picketing is usually considered as part of the question: What may strikers do?

The definition in Black's Law Dictionary is generally accepted by the courts.

Picketing, by members of a trade union on strike, consists in posting members at all the approaches to the works struck against, for the purpose of observing and reporting the workmen going to or coming from the works, and of using such influence as may be in their power to prevent the workmen from accepting work there.

Chief Justice Grant, of Michigan (Beck v. Railway Teamsters), prefers the more drastic definition of the Century Dictionary: "A body of men belonging to a trades union sent to watch and annoy men working in a shop not belonging to the union, or against which a strike is in progress.' "The word originally had no such meaning," he adds. "This definition is the result of what has been done under it, and the common application that has been made of it." Vice Chancellor Reed, of New Jersey (Cumberland Glass

Co. v. Glass Bottle Blowers), uses the word in the sense of "relays of guards in front of a factory or the place of business of the employer, for the purpose of watching who should enter or leave the same." District Judge Tayler (Pope Motor Car Co. v. Keegan), adopts as its meaning a

detachment of men in suitable places for the purpose of coming into personal relations with the new workmen, in order, if possible, to induce them, by means of peaceful argument, to leave the places which they have taken, for such natural and proper reasons as may appeal to men in such circum

stances.

From these definitions it will appear that there is very general agreement as to the meaning of the term, and yet one very important difference emerges as soon as a further analysis is made. The border line between picketing and intimidation is not easy to establish. It is difficult to classify the opinions with reference to legality and illegality, for all of them are at some pains to emphasize that, whatever may be their decision in the case at court, picketing may easily become intimidation.

That the picket may be legal, or that picketing is in itself legal, is expressed in several opinions. Judge Holmes, speaking from the Massachusetts bench, in his dissenting opinion (Vegelahn v. Guntner), says:

It appears to me that the opinion of the majority turns in part on the assumption that the patrol necessarily carries with it a threat of bodily harm. That assumption I think unwarranted. . . . It cannot be said, I think, that two men, walking together up and down a sidewalk, and speaking to those who enter a certain shop, do necessarily and always thereby convey a threat of force. I do not think it possible to discriminate, and to say that two workmen, or even two representatives of an organization of workmen, do. . . . I may add that I think

the more intelligent workingmen believe as fully as I do that they no more can be permitted to usurp the state's prerogative of force than can their opponents in their controversies. [Although the doing of damage by combined persuasion is actionable] nevertheless, in numberless instances the law warrants the intentional infliction of temporal damage, because it regards it as justified. It is on the question of what shall amount to a justification, and more especially on the nature of the considerations which really determine or ought to determine the answer to that question, that judicial reasoning seems to me often to be inadequate. .

The policy of allowing free competition justifies the intentional inflicting of temporal damage, including the damage of interference with a man's business by some means, 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. In such a case it cannot matter whether the plaintiff is the only rival of the defendant, and so is aimed at specially, or is one of a class all of whom are hit. The only debatable ground is the nature of the means by which such damage may be inflicted. We all agree that it cannot be done by force or threats of force. We all agree, I presume, that it may be done by persuasion to leave a rival's shop, and come to the defendant's. It may be done by the refusal or withdrawal of various pecuniary advantages, which, apart from this consequence, are within the defendant's lawful control. It may be done by the withdrawal of, or threat to withdraw, such advantages from third persons who have a right to deal or not to deal with the plaintiff, as a means of inducing them not to deal with him either as customers or servants.

Several other opinions express views not altogether unfavorable to the picket. Among these may be noted the following expressed by Vice Chancellor Reed, of New Jersey:

I cannot say that the law is so settled that a preliminary in

junction can go upon the notion that picketing, without some other act evidential of coercion, is in itself evidence of intimidation. The decision of the question, I think, must depend upon the circumstances surrounding each case. There must be taken into account the size of the guard, the extent of their occupation of the street, and what they say and do. Taking every circumstance into account, if it appears that the purpose of the picketing is to interfere with those passing into or out of the works, or those wishing to pass into the works, by other than persuasive means, it is illegal. If the design of the picketing is to see who can be the subject of persuasive inducements, such picketing is legal. (Cumberland Glass Co. v. Glass Bottle Blowers.)

Vice Chancellor Stevenson, of the same court, writes:

The counsel for complainant practically confined his argument to the proposition that a preliminary injunction should go in the case to restrain picketing, without reference to the object of the picketing or its effect. If this view is correct, it follows that workmen maintaining a strike have no right to station pickets merely for the purpose of giving them such information in regard to their late employers' operations as may be discovered by ordinary observation. It seems to me that this claim is not well founded; that it is contrary to the great weight of reason as well as authority.

Picketing may be lawful; picketing may be unlawful. Whether picketing is lawful or unlawful depends wholly upon the purpose with which it is carried on, or perhaps, it would be more accurate to say, the effect which is produced by it. If the purpose and effect are to intimidate, to interfere with the liberty of workmen in seeking employment, to interfere with what in another case I called the employer's right to have labor flow freely to him so that a reasonably courageous person would be restrained from offering his labor to such employer, then picketing is unlawful, and, where the other necessary conditions for the interference of a court of equity exist, will be prohibited by an injunction.

If, however, the picketing is carried on for the mere purpose of obtaining information, or for the purpose of conveying information to persons seeking or willing to receive the same, or even, in some cases, for the purpose of bringing orderly and peaceable persuasions to bear upon the minds of men who desire to listen to the same, the object of such persuasions not including in any way the disruption of an existing contract for labor, then there may be no unlawful element in the picketing, and carrying it on may found no action even at law, and certainly may not call for any interference on the part of a court of equity. (Fletcher Co. v. International Machinists.)

District Judge Tayler, writing from the circuit court, expresses himself at some length:

Much has been said by the courts, and by others, as to the peace-disturbing quality of picketing, and it is claimed by many that picketing, though intended to be peaceable, and engaged in by no more than two or three at each station, necessarily results in violence or intimidation, and is itself intimidating. A learned judge, in 1867, said that, in his opinion, "it was impossible to have an effectual system of picketing without being guilty of that alarm, intimidation, and obstruction which is a breach of the law." Possibly that may still be true, but it cannot now be said without qualification, as it then could. In knowledge of their rights, in law-abiding spirit, in general intelligence, there has been a great advance, especially among skilled artisans. In this country, at least, they make up a large part of our intelligent and law-abiding citi

zens.

If we can apprehend anything, we must observe that a better practice is prevailing, due, doubtless, to the increasing intelligence and good sense of those involved, and also to the fact that courts have come to be recognized as ready to protect persons in their rights, and to punish those who unlawfully interfere with them. Undoubtedly violence and intimi