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6 Monthly Bull. Int'l Jurid. Ass'n 1 (1937-1938)

handle is hein.journals/injasmb6 and id is 1 raw text is: 


                             MONTHLY BULLETIN

Vol. 6, No. I    JULY, 1937  gM  Price, $1 a year

  On  May  24, the United States Supreme Court  in a five
to four decision, upheld the constitutionality of the Wiscon-
sin anti-injunction statute which the Supreme  Court  of
Wisconsin had  construed and applied to deny  an injunc-
tion against peaceful picketing.1 This is the first case involv-
ing state anti-injunction legislation to come before the
United  States Supreme  Court since Truax  v. Corrigan,2
decided in 1921.
  Paul Senn, a contractor engaged in the tile laying busi-
'!ie`s in Milwaukee, although willing to unionize his busi-
ness, had refused to enter into contracts with locals of the
tile layers' and tile helpers' unions because of a provision
in the union  contract that no contractor should himself
work  as a tile layer or helper. He had applied for an in-
junction against union picketing of his premises, contend-
ing that the conduct of the unions infringed his constitu-
tional right to work and that if the Wisconsin statute pur-
ported to make such conduct lawful, it constituted a denial
of the due process and equal protection clauses of the Four-
teenth Amendment.   The  Wisconsin Supreme  Court, in an
opinion  discussed at length in an earlier article of the
Bulletin  affirmed the judgment of the trial court refusing
an  injunction4 and the United States Supreme  Court  al-
lowed  an appeal. A brief amicus curiae was filed on behalf
of the American Civil Liberties Union and the Internation-
al Juridical Association.5
   The Wisconsin  statute involved6 not only contains the
 typical anti-injunction provision curtailing the jurisdiction
 of a court or judge to issue an injunction in labor disputes,
 except after a finding that the injunction will not prohibit
 peaceful picketing; it also specifically declares that peaceful
 picketing shafl be lawful, differing in this respect from the
 federal Norris-LaGuardia Act7 regulating the issuance of
 injunctions in federal courts and from other state statutes
 p'+t-ri'ed upon the federal law.8 The United  States Su-
 preme Court, therefore, in discussing the Wisconsin statute,
 recognized that it legalizes picketing as a substantive mat-
 ter and does not merely curtail the remedy by injunction as
                  (Continued on page 14)
   1. Senn v. Tile Layers Protective Union, Local No. 5 (May
 24, 1937), U. S. Law Week, May 25, 1937, Index 1211.
   2. 257 U.S. 312.
   3. Two  Wisconsin Decisions on the Anti-Injunction Act, 5
 I.J.A. Bull. 59.
   4. 268 N.W.  270 (1936), rehearing denied, 268 N.W. 872
   5. Signatories of the brief were Francis Biddle, Lloyd K. Gar-
 rison, Osmond K. Fraenkel, Nathan Greene and V. Henry Roth-
 schild, II.
   6. Wis. Laws, 1931, c. 376; Laws, 1935, c. 551, § 5; Wis. Stat.
 §  103.51-103.63. Only Section 103.53, subdivision 1 (e) (1) and
 subdivision 2, and, by implication, subdivision (h) (i) and (k)
 and §103.56, subdivision (d), were directly involved.
   7. 47 Stat. 70, c. 90; 29 U.S. C. § 101-115.
   8. In addition to the statutes cited in 5 I.J.A. Bull. 59, 68,
 supra note 3, see Md. Laws, 1935, c. 574. A recent anti-injunction
 statute was enacted on June 2, 1937, in Pennsylvania replacing
 Pennsylvania Laws, 1931, c. 311, page 926, discussed in 3 I.J.A.
 Bull., No. 4, p. 4.

                STRIKES  AND PICKETING
  Federal  Court Holds  Sit-Down   Illegal. On June  21,
Judge  J. Warren  Davis writing for the Circuit Court of
Appeals  for the Third  Circuit, reversed the decision of
District Judge William H. Kirkpatrick and ordered an in-
junction issued in favor of the Apex Hosiery Company  of
Philadelphia against Branch 1 of the American Federation
of Hosiery Workers which  had staged a sit-down strike in
the plant.' Judge Kirkpatrick had  ruled that the federal
court had  no jurisdiction, because there was no diversity
of citizenship and no direct evidence of intent to inter-
fere with or restrain interstate commerce and so no viola-
tion of the federal anti-trust laws.2 The Appellate Court
relying on  the  recent decisions of  the United   States
Supreme   Court upholding  the  Wagner  Labor  Relations
Act3  issued the injunction ordering  the sit-downers to
vacate the plant and restore it to its rightful owner. In
so doing the court stretched the recent opinions sustaining
the Wagner  Act-which   went no further than to hold that
Congress had  the power to pass legislation, i.e. the Wagner
Act, regulating labor disputes affecting interstate com-
merce-into  holdings that the meaning of interference with
interstate commerce in the earlier anti-trust laws had been
changed.  Prior to the enactment and judicial sanction of
the  Wagner  Act  the United  States Supreme  Court had
plainly  limited interference with  interstate commerce
punishable under  the Sherman and  Clayton Acts to direct
and  intentional interference, and had ruled that a strike
against a mill which received its raw material from outside
the  state and shipped most of  its finished products into
other states was not, in the absence of a purpose to inter-
fere with interstate commerce, such interference within the
meaning   of the Sherman  and  Clayton  Laws.4 Thus  the
recent rulings under an entirely different act, an act sup-
posedly passed to benefit labor, were used to further limit
the  rights of labor under the old Clayton and  Sherman
Acts  which Congress  had not and  presumably  would not
at this time amend to provide what Judge Davis held them
to mean.
   Not only did Judge Davis use the Wagner Act to pervert
 the meaning of the Clayton and Sherman   Acts, he used it
 to support his conclusion that the sit-down strike of the
 American  Federation of Hosiery Workers was illegal. This
   1. N.Y. Times, June 22; C.C.H. Labor Law Service, par. 16,391.
   2. Apex Hosiery Company v. Leader, President of American
 Federation of Hosiery Workers, Branch #1, June 5, 1937, D.C.
 E.D. Pa. March Term, 1937, #9741 and information from the
 union's attorney.
   3. National Labor Relations Board v. 7ones & Laughlin Steel
 Corp. 81 L. ed. (Adv.) 563, with the other four related cases,
 decided on the same day and all upholding the constitutionality of
 the National Labor Relations Act, discussed in The Labor Board
 Decisions, 5 I.J.A. Bull. 125.
   4. Levering & Garrigues Co. v. Morrin, 61 Fed. (2d) 115
 (C.C.A.2, 1932), aff'd 289 U.S. 103; United Leather Workers'
 International Union No. 66 et al. v. Herkert & Meisel Trunk Co.
 et al, 265 U.S. 457 (1924) ; United Mine Workers of America v.
 Coronado Coal Co., 259 U.S. 344 (1922).


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