Fordham, Jeff B.

English

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Volume 38 Issue 3 Article 19 April 1932 Strike Injunctions in the New South Jeff B. Fordham West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Labor and Employment Law Commons Recommended Citation Jeff B. Fordham, Strike Injunctions in the New South, 38 W. Va. L. Rev. (1932). Available at: https://researchrepository.wvu.edu/wvlr/vol38/iss3/19 This Book Review is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. WEST VIRGINIA LAW QUARTERLYchinery for the instigation of actions and the trial of cases?These are the questions with which we are confronted. Improvedprocedure with present personnel will have small chance for suc-cess - improved personnel will be hampered, though in a lesserdegree, by out-worn procedure. Improvement in both is neces-sary. But in the demand for change we cannot rely on changealone to be the ameliorating agency of social ills. Too recentlywe have discovered that the adoption of the direct primary, theinitiative and referendum, and similar popular government de-vices were not the panaceas their makers envisioned them.The improvement of conditions in law administration willcome today in a large measure through legislative activity. Thusbooks of the character of Criminal Justice in England take on animportance of first order; for those who have carefully and withscientific fairness evalued comparative systems must present tothose who enact our legislation a background upon which new ex-periments may be made with the benefit of past experience. Iflegislation is to rise to the ranks of a science our laws must be pre-pared with such books as Mr. Howard's as ready reference in thecommittee rooms where law is made.-FRANK E. HoRAcE JR.West Virginia University.STRIKE INJUNCTIONS IN THE NEW SOUTH. By Duane Mc-Cracken. Chapel Hill, N. C.: University of North Carolina Press.1931. Pp. xi, 290. $3.00.This case study of the labor injunction has come forth in aworld so engrossed in keeping its head above water that it maynot receive the consideration that it merits. But that is not tosay that it is untimely. At a time when the workers are ratherfearful of losing what employment they have and the operators'situation is little more enviable, neither labor nor capital is in abelligerent frame of mind.' Nevertheless, there has never been abetter time for improving the relations of capital and labor. Thecommon experience of industry in its course along the under arc1 The depression has not suspended all open conflict. The Supreme Courtof Errors of Connecticut has only recently upheld an injunction againstpicketing. Levy and Devaney, Inc. v. International Pocketbook WorkersUnion, U. S. Daily, March 12, 1932, at 62. And at the present writing abitter strike is underway in the Hocking Valley coal fields of Ohio.1Fordham: Strike Injunctions in the New SouthDisseminated by The Research Repository @ WVU, 1932BOOK REVIEWSof the business cycle has impressively demonstrated the real com-munity of interest of employer and employe. This experience isreflected- in the disposition on both sides of late to be tolerant andconcilatory. Moreover, unemployment has stimulated thoughtand experiment along the line of the six hour day and five dayweek and the wider distribution of available work by the em-ploying of men for less than full time and operating shifts.Whether necessity has bred the mood is not highly important.The mood is none the less here. Thus Congress has finally en-acted a federal anti-injunction bill.?Professor McCracken has devoted about half the bulk of hisbook to presenting his study and half to appendices, wherein areset out some of the pleadings and decrees in the cases reviewed,summaries of interviews and two statutes, the Senate Substitutefor the Shipstead Bill and a Wisconsin act of 1931 limiting equityjurisdiction over litigation in industrial disputes. The first fourchapters are a presentation of general material calculated to pre-pare the reader for the case study. It was a problem, of course,so to condense this phase of the material as not to wear out thereader. But the chapter on "The Injunction as a Legal Remedy"is inadequate. It does not suggest the leading role conspiracy hasplayed in the development of the labor injunction.' Moreover,it would have been desirable to have presented in brief the sub-ject of federal jurisdiction, though it was not immediately relevantto the cases under review. Again, nothing was said about legisla-tive attempts to cope with the injunction problem.'The two succeeding chapters present the more or less con-ventional arguments, legal and non-legal, for and against the laborinjunction.Two of the cases studied arose from printers' strikes in NorthCarolina. The remaining three were concerned with more signifi-cant disputes in the textile industry at Marion, North Carolina,Elizabethton, Tennessee, and Danville, Virginia. For his data2The Senate passed the bill sponsored by Senator Norris, (S. 935), by avote of 75 to 5 on March 1, 1932. A week later the House passed the sub-stantially similar La Guardia Bill by a vote of 363 to 13. On March 12thconferees from the two houses agreed on a substitute bill smoothing out thedifferences in the above measures. This bill in final form was passed byCongress and received the President's signature on March 23d. For a discus-sion of the Senate bill see Christ, The Federal Anti-Injun tion Bill (1932) 26ILL. L. REv. 516.8The author indicates at another point that he is not unaware of thismatter. See p. 136.'See, however, appendices I and XXVII.2West Virginia Law Review, Vol. 38, Iss. 3 [1932], Art. 19https://researchrepository.wvu.edu/wvlr/vol38/iss3/19WEST VIRGINIA LAW QUARTERLYthe writer drew chiefly upon the records of legal proceedings,current newspaper reports and interviews both with actual partiesto the conflicts, opposing counsel and observers. Each case istreated on a scheme which proceeds from a statement of thefactual background of the dispute to the resort to legal proceed-ings, the form of the injunction, procedural phases of the litiga-tion and the effects of the injunction on the outcome of the strikeand on the conduct and social attitude of those enjoined. Ap-parently the author was not deluded into a belief that interviewsfurnished reliable data upon the facts of the several conflicts.But that material is useful for its reflection of the attitude of theparties toward the injunction.Professor McCracken's contribution lies in his resort to specialcase study. Doubtless no other approach would indicate so ef-fectively the merit or want of merit of the injunction as an agencyin adjusting industrial conflicts. In none of the five cases didthe injunction break the strike. In three it had no substantialeffect. In only one was there a serious effort to enforce the de-cree. The inevitable effect of such circumstances is to engenderdisrespect for the courts. Another fact of significance is that ineach instance the injunction was granted ex parte. This quitecommon feature of labor injunctions is one of their most vulner-able spots. On the other hand these cases tend to support thethesis that there is no such thing as peaceful picketing. The bookdoes not enable one to generalize safely on the interesting inquiryas to the extent the strikes were influenced by outsiders, particu-larly union organizers and competing producers in other sections.The eases do not, and would not be expected to, involve manynotable legal developments. Only the least important of them,the two printers' eases, went to the highest state court. In oneof them the Supreme Court of North Carolina recognized peace-ful picketing as legal. That court further decided that a unionas such was not enjoinable because not a juristic person. TheTennessee and Virginia injunctions in terms enjoined the unionsas well as individuals. A desirable feature of the Virginia in-junction was a stipulation of what the defendants might lawfullydo. It was also unusually mild in its inhibitions.Labor law is young in the South because industrial conflictsthere have come only late in the day due in turn to the lack of5 Citizens Co. v. Asheville Typographical Union, 187 N. C. 42, 121 S. E.31 (1924).3Fordham: Strike Injunctions in the New SouthDisseminated by The Research Repository @ WVU, 1932284 BOOK REVIEWSunity and cohesion among the workers as a group. Thus the firstof the cases discussed by Professor McCracken was the first strikeinjunction proceeding on record in North Carolina. It is inter-esting to note that North Carolina still has a quaint old statuteon her books, which punishes the enticing away of servants as acrime.' If it is possible for the South to profit from the experienceof other sections and avoid the evolutionary process it seems thatwith this recent record of failure of the labor injunction beforeit that section has a great opportunity to set new standards in theintelligent fashioning of the industrial order.-Jm F B. FORDHAw.West Virginia University.ON. C. CODE ANN. (Michie, 1927) § 4669.4West Virginia Law Review, Vol. 38, Iss. 3 [1932], Art. 19https://researchrepository.wvu.edu/wvlr/vol38/iss3/19

Strike Injunctions in the New South

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Strike Injunctions in the New South

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