A History of Trade Unionism in the United States

by Selig Perlman

While it was in the nineties that trade unionists first tasted the sweets of institutionalization in industry through "recognition" by employers, it was also during the later eighties and during the nineties that they experienced a revival of suspicion and hostility on the part of the courts and a renewal of legal restraints upon their activities, which were all the more discouraging since for a generation or more they had practically enjoyed non-interference from that quarter. It was at this period that the main legal weapons against trade unionism were forged and brought to a fine point in practical application. The history of the courts' attitude to trade unionism may therefore best be treated from the standpoint of the nineties.

The subject of court interference was not altogether new in the eighties. We took occasion to point out the effect of court interference in labor disputes in the first and second decades of the nineteenth century and again in the thirties. Mention was made also of the court's decision in the Theiss boycott case in New York in 1886, which proved a prime moving factor in launching the famous Henry George campaign for Mayor. And we gave due note to the role of court injunctions in the Debs strike of 1894 and in other strikes. Our present interest is, however, more in the court doctrines than in their effects: more concerned with the development of the legal thought underlying the policies of the courts than with the reactions of the labor movement to the policies themselves.

The earliest case on record, namely the Philadelphia shoemakers' strike case in 1806,[29] charged two offences; one was a combination to raise wages, the other a combination to injure others; both offences were declared by the judge to be forbidden by the common law. To the public at large the prosecution seemed to rest solely upon the charge that the journeymen combined to raise wages. The defense took advantage of this and tried to make use of it for its own purposes. The condemnation of the journeymen on this ground gave rise to a vehement protest on the part of the journeymen themselves and their friends. It was pointed out that the journeymen were convicted for acts which are considered lawful when done by masters or merchants. Therefore when the next conspiracy case in New York in 1809 was decided, the court's charge to the jury was very different. Nothing was said about the illegality of the combinations to raise wages; on the contrary, the jury was instructed that this was not the question at issue. The issue was stated to be whether the defendants had combined to secure an increase in their wages by unlawful means. To the question what means were unlawful, in this case the answer was given in general terms, namely that "coercive and arbitrary" means are unlawful. The fines imposed upon the defendants were only nominal.

A third notable case of the group, namely the Pittsburgh case in 1815, grew out of a strike for higher wages, as did the preceding cases. The charges were the same as in those and the judge took the identical view that was taken by the court in the New York case. However, he explained more fully the meaning of "coercive and arbitrary" action. "Where diverse persons," he said, "confederate together by direct means to impoverish or prejudice a third person, or to do acts prejudicial to the community," they are engaged in an unlawful conspiracy. Concretely, it is unlawful to "conspire to compel an employer to hire a certain description of persons," or to "conspire to prevent a man from freely exercising his trade in a particular place," or to "conspire to compel men to become members of a particular society, or to contribute toward it," or when persons "conspire to compel men to work at certain prices." Thus it was the effort of the shoemakers' society to secure a closed shop which fell chiefly under the condemnation of the court.

The counsel for the defense argued in this case that whatever is lawful for one individual is lawful also for a combination of individuals. The court, however, rejected the arguments on the ground that there was a basic difference between an individual doing a thing and a combination of individuals doing the same thing. The doctrine of conspiracy was thus given a clear and unequivocal definition.

Another noteworthy feature of the Pittsburgh case was the emphasis given to the idea that the defendants' conduct was harmful to the public. The judge condemned the defendants because they tended "to create a monopoly or to restrain the entire freedom of the trade." What a municipality is not allowed to do, he argued, a private association of individuals must not be allowed to do.

Of the group of cases which grew out of the revival of trade union activity in the twenties, the first, a case against Philadelphia master shoemakers, was decided in 1821, and the judge held that it was lawful for the masters, who had recently been forced by employes to a wage increase, to combine in order to restore wages to their "natural level." But he also held that had the employers combined to depress wages of journeymen below the level fixed by free competition, it would have been criminal.

Another Pennsylvania case resulted from a strike by Philadelphia tailors in 1827 to secure the reinstatement of six discharged members. As in previous cases the court rejected the plea that a combination to raise wages was illegal, and directed the attention of the jury to the question of intimidation and coercion, especially as it affected third parties. The defendants were found guilty.

In a third, a New York hatters' case of 1823, the charge of combining to raise wages was entirely absent from the indictment. The issue turned squarely on the question of conspiring to injure others by coercion and intimidation. The hatters were adjudged guilty of combining to deprive a non-union workman of his livelihood.

The revival of trade unionism in the middle of the thirties brought in, as we saw, another crop of court cases.