The Ethics of Picketing

December 28, 1953

Last week, in connection with the New York milk and newspaper strikes, I pointed out that mass picketing, however much it may pretend to be “peaceful persuasion,” is a device for intimidation, and that the right to quit work does not imply the right to prevent others from working. But these elementary propositions are forgotten or denied today by our labor laws and by our courts. And as long as they are denied we will have union-boss dictatorship and chaotic labor relations.

A typical case was brought to light in New York by a decision of the Appellate Division on Dec. 15. It involved the picketing of a retail liquor store that has been going on for two years. In October 1951, a union tried to enroll the three sales clerks of the store. They refused to join. Thereupon a picket line, with signs intimating that the employer was unfair to union labor, was placed in front of the store. Even after two years of this exhortation, the clerks refused to join the union.

The proprietor, Sydney J. Wood, then petitioned the New York State Labor Relations Board for an election to determine whether the union represented his employees. At that time the union made no claim to represent any of the employees. Yet Wood’s petition was dismissed by a vote of 2 to 1 on the ground that the union was engaged in organizational activity. The New York Supreme Court later dismissed his complaint on the same ground.

Now New York’s Appellate Division has reversed this decision. “The conclusion is inevitable,” it declares, “that the picketing here included an unlawful objective in that it sought to coerce the employer into signing a contract with the union, and as it was doing so by exerting economic pressure against the employer in order to force him to violate the State Labor Relations Act by compelling the employees to join the union against their will or, in the alternative, to drive the plaintiff out of business, plaintiff . . . is entitled to the relief he seeks.”

It is important to notice, however, that this decision did not grant the employer relief because he was being coerced, but because he was being coerced into violating the state labor law. The recent trend of Federal decisions has not been such as to discourage coercive picketing. On Dec. 14, for example, the U.S. Supreme Court handed down two decisions which in conjunction make it almost impossible for the states to enforce sensible laws on picketing. The court ruled in one case that franchised automobile dealers come under the Taft-Hartley Act even when their own automobile buying and selling are wholly within a single state. Under such fantastically extended interpretations of the Constitution’s interstate commerce clause, it is hard to see what important powers over labor relations and local labor peace will remain to the states and cities. In another Dec. 14 decision, in fact, the Supreme Court ruled that states cannot enforce their own antipicketing laws even when these laws coincide with the Taft-Hartley Act.

Mass picketing is commonly defended on the ground that it is merely a peaceful exercise of the right of free speech—a notice to the public that a strike is going on and that the employer is “unfair.” But this purpose could be amply secured if the police permitted, say, no more than two pickets to an entrance. If the police and the law and the labor boards permit a picket line of a hundred, on the other hand, yelling abuse and insults at customers and at workers who continue on the job, then in all consistency they should allow the employer to hire an equally large picket line to yell back counterstatements. Their failure to do so exposes the hollowness of the “free speech” argument. In many cases today, in fact, the police enforce the picket line rather than the right to work. It is the people who try to get through the line who are accused of disturbing the peace.

Peaceable and balanced labor relations are most likely to come through the repeal or drastic revision of the Taft-Hartley Act and local enforcement of the common law against coercion, intimidation, and violence.