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the right to strike is generally denied by public opinion, should the denial of seniority have a right of its own to be considered in such cases.

When President Harding, on the executives' refusal to accept his first plan, proposed that the seniority question should be decided by the Railroad Labor Board, he was asking something which was unjust to the men. The Board, in its announcements following the commencement of the strike, had practically placed itself in the position of protecting the men who took the places of the strikers. It seems justifiable, under the circumstances, for the shopmen not to have permitted a body which had taken such a position to decide on so fundamental a question as seniority. The President's second offer is a further illustration of what appears to be the leitmotif of executive activity in labor disputes, the principle of expediency, or, to put it differently, to get a settlement in any way possible.

The restraining order obtained by the Attorney General, presumably with the approval of the President, may be characterized as unjustifiable, unfair, and ineffective for the following reasons:

1. One of the grounds on which it was obtained was that the strike violated the anti-trust laws, prohibiting conspiracies in restraint of trade and commerce among the states. It has elsewhere been pointed that those laws were not intended to prevent labor unions from carrying out their ordinary activities. A strike is such an activity. Though lawyers may find loopholes in the anti-trust laws making labor unions unlawful conspiracies, ordinary citizens are aware that such laws were enacted for an entirely different

reason.

2. Another ground on which the order was obtained was that the strike violated the provisions of the Transportation Act of 1920, and that thereby the strikers showed "con

78-505 0-67-pt. 1-9

tempt for the United States and the Government thereof." Anyone who has read the act knows that it compels no one to accept the decisions of the Railroad Labor Board. Such decisions may be accepted or rejected, as the parties concerned desire. It is difficult to comprehend how the refusal to accept a decision when the laws of the United States plainly permit its rejection can be construed as "contempt for the United States and the Government thereof."

3. Another basis for the order was the general doctrine of conspiracy, which, as applied to this case, may be put as follows: Acts, which, though lawful and peaceful in themselves, are done in pursuance of an unlawful purpose, are in themselves unlawful, and those responsible for such acts are guilty of an unlawful conspiracy. Courts have, under this rather expansive principle, prohibited nearly everything which a labor union can possibly do, as is evident from the terms of the 1922 injunction. But if, as is indicated in the last two paragraphs, the purpose of the strike was not really unlawful, the doctrine of conspiracy does not seem to fit the case. It would excuse the restraining only of acts of violence, which are distinctly unlawful. There is no intention here of defending such acts.

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4. The injunction was unjustifiable because it declared the calling of a strike an unlawful act. No state except Kansas has ever taken such a position. Congress has never been willing to accept it. The people of the country do not believe a strike is an unlawful act. For the Attorney General, under such conditions, to obtain an order making it unlawful and for a federal court to grant such an order was an abuse of authority.

5. The Attorney General, in asking for the restraining order, said, “I will use the powers of the Government to prevent the labor unions of the country from destroying the open shop." The order was presumably granted with

that as one of its grounds. But the question of the open shop is one with which the Attorney General properly has nothing to do. It is a question to be decided in fair struggle between labor and capital. The Attorney General had no more right to try to prevent labor unions from trying to destroy the open shop, even had that been their purpose in the strike, than he had to attempt to force employers to accept the closed shop. His position in this instance was woefully biased in favor of labor's opponents.

6. The injunction was unjustifiable because, on the plea of the conspiracy doctrine, it tried to prohibit acts which always have been thoroughly recognized as within the constitutional rights of freedom of speech, of press, and of assembly. An injunction which makes illegal such things as jeers, taunts, entreaties, argument, persuasion, reward, encouragement, letters, telegrams, requests, instructions, public interviews, public statements, and suggestions the purpose of which is to get men to go on strike, or to keep them on strike, or to prevail on others not to take the striker's places-such an injunction is so obviously extreme that to say it does not violate constitutional rights is like denying that there is a Constitution.

7. The injunction was furthermore harmful in that, through the excess of its prohibitions, it tended to make both the office of the Attorney General and the federal courts appear ridiculous, biased, and unreasonable.

8. Perhaps the most important argument of all against the injunction was that it was not of any great use in ending the strike. When the strike ended on certain of the roads the cause was not the restraining order, but the more normal method of peaceful, voluntary conference. The strike continued on some roads for many months, despite the injunction. It served no purpose in the apprehension of those guilty of violence which could not as well have been served by ordinary arrest and indictment.

When one considers all the valid objections to the 1922 injunction in particular, and the injunctive method of ending strikes in general, and then is faced with the realization that such an instrument has proved of little value in effecting its principal purpose, one wonders how much longer Presidents of the United States will seek to exercise their influence towards a settlement of labor disputes by a resort to such means.

II-d. (Source: President Warren G. Harding. In Congressional Record, vol. 62, pt. 11, 67th Cong., 2d sess., pp. 11537-11540)

August 18, 1922

ADDRESS BY THE PRESIDENT OF THE UNITED STATES

The address of the President of the United States this day delivered at the joint meeting of the two Houses of Congress is as follows:

Gentlemen of THE CONGRESs: It is manifestly my duty to bring to your attention the industrial situation which confronts the country. The situation growing out of the prevailing railway and coal-mining strikes is so serious, so menacing to the Nation's welfare, that I should be remiss if I failed frankly to lay the matter before you and at the same time acquaint you and the whole people with such efforts as the executive branch of the Government has made by the voluntary exercise of its good offices to effect a settlement.

The public menace in the coal situation was made more acute and more serious at the beginning of July by the strike of the Federated Shop Crafts in the railroad service-a strike against a wage decision made by the Railroad Labor Board, directly affecting approximately 400,000 men. The justice of the decision is not for discussion here. The decision has been lost sight of in subsequent developments. In any event, it was always possible to appeal for rehearing and the submission of new evidence, and it is always a safe assumption that a Government agency of adjustment deciding unjustly will be quick to make right any wrong.

The Railroad Labor Board was created by Congress for the express purpose of hearing and deciding disputes between the carriers and their employees, so that no controversy need lead to an interruption in interstate transportation.

It was inevitable that many wage disputes should arise. Wages had mounted upward, necessarily and justly, during the war upheaval, likewise the cost of transportation, so that the higher wages might be paid. It was inevitable that some readjustments should follow. Naturally these readjustments were resisted. The administrative government neither advocated nor opposed. It only held that the Labor Board was the lawful agency of the Government to hear and decide disputes, and its authority must be sustained, as the law contemplates. This must be so, whether the carriers or the employees ignore its decisions.

Unhappily, a number of decisions of this board had been ignored by the carriers. In only one instance, however, had a decision, challenged by a carrier, been brought to the attention of the Department of Justice, and this decision was promptly carried to the courts and has recently been sustained in the Federal court of appeals. The public or the Executive had no knowledge of the ignored decisions. in other cases, because they did not hinder transportation. When these failures of many of the carriers to abide by decisions of the board were brought to my attention, I could more fairly appraise

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