Labor Law. Decree in Equity Regulating Hours and WagesSource: Columbia Law Review, Vol. 33, No. 7 (Nov., 1933), pp. 1265-1266Published by: Columbia Law Review Association, Inc.Stable URL: http://www.jstor.org/stable/1116284 .

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DECISIONS DECISIONS

decision of the main case that the operation of a depression sweat shop18 is per se unclean hands,l9 involves the rejection of the dictum that "conflicting considerations of economic policy are not primarily the concern of courts."20 The court's refusal to consider the fact that pressure on the complainant made the conduct labelled inequitable a condition of commercial existencen marks the injection of an absolute economic content into the doctrine of unclean hands in labor controversies. This novel rationale presents a new mode of attack on the "absolute right to pay a wage which is injurious to a basic social interest."'

LABOR LAW-DECREE IN EQUITY REGULATING HOURS AND WAGES.-The com-

plainant employer sought to enjoin alleged acts of violence attending a strike called by the defendant union. An injunction being denied,' the parties submitted the controversy under the Tuley Act.2 It was stipulated that the complainant was a reasonable employer treating his workers as well as competitive conditions permitted. Decreed, that complainant re-employ its former employees who desire to return; that the parties desist from strikes and lockouts for a year; that all dis-

putes be submitted to an arbitrator whose award is to be binding; and that hours and wages be fixed in accordance with the N.R.A. code whenever adopted in the

industry, meanwhile to be not more than forty hours and not less than twelve dollars per week. La Mode Garment Co. v. International Garment Workers Union, Gen. No. B-272112 (Circuit Ct. of Cook County, Ill., August 16, 1933).

A submission under the Tuley Act is not arbitration but an equity proceeding culminating in a decree enforcible by contempt;3 therefore, orders such as the present for the submission of future disputes to arbitration, a method of settling industrial conflict favored by the Recovery Administration4 but unauthorized by the Illinois Arbitration Act,5 seemingly circumvents the common law proscription6 of such provisions if found in a contract. Traditionally, equity will not force one man to employ another.7 However, lockouts have been enjoined8 and employers

See (1933) 36 MONTHLY LABOR REVIEW 500. 19Cf. Note (1930) 43 HARV. L. REV. 1120-2. °Lehman, J., in Interborough Rapid Transit Co. v. Lavin, supra note 12, at

75, 159 N. E. at 866. 21 See (1933) 33 COLUMBIA LAW REV. 1265, 1266. But cf. (1932) 35 MONTHLY

LABOR REVIEW 370. 2 M. R. Cohen, Property and Sovereignty (1927), 13 CORN. L. Q. 8, 11.

Discussed in (1933) 33 COLUMBIA LAW REV. 1264. 2 ILL. REV. STAT. (Cahill, 1933) c. 110, § 26. Repealed as of Jan. 1, 1934. 3Farwell v. Sturges, 165 Ill. 252, 46 N. E. 189 (1897); see West Chicago

Park Commissioners v. Riddle, 245 Ill. 168, 177, 91 N. E. 1060, 1064 (1910); (1910) 5 ILL. L. REV. 245.

4 See N. Y. Times, Oct. 15, 1933, § 8, p. 1. 'ILL. REV. STAT. (Cahill, 1933) c. 10; Cocalis v. Naylides, 308 Ill. 152, 139

N.E. 95 (1923). 6 United States Asphalt Refining Co. v. Trinidad Lake Petroleum Co., 222 Fed.

1006 (S.D. N.Y. 1915); W. H. Blodgett Company v. Bebe Company, 190 Cal. 665, 214 Pac. 38 (1923).

7Hewitt v. Magic City Furniture & Mfg. Co., 214 Ala. 265, 107 So. 745 (1926); Chambers v. Davis, 128 Misc. 613, 91 So. 346 (1922); Stone Cleaning and Point- ing Union v. Russell, 38 Misc. 513, 77 N.Y. Supp. 1049 (Sup. Ct. 1902). But cf. Gregg v. Starks, 188 Ky. 834, 224 S. W. 459 (1920); Turner v. Hampton, 97 S. W. 761 (Ky. 1906); Brotherhood of Railway and Steamship Clerks v. Texas & N. O. R. Co., 24 F.(2d) 426 (S. D. Tex. 1928), aff'd, Texas & New Orleans Railroad Com- pany v. Brotherhood of Railway & Steamship Clerks, 281 U. S. 548, 50 Sup. Ct. 427 (1929).

Goldman v. Cohen, 222 App. Div. 631, 227 N. Y. Supp. 311 (lst Dept. 1928); cf. Lundoff-Bicknell Co. v. Smith, 24 Ohio App. 294, 156 N. E. 243 (1927).

decision of the main case that the operation of a depression sweat shop18 is per se unclean hands,l9 involves the rejection of the dictum that "conflicting considerations of economic policy are not primarily the concern of courts."20 The court's refusal to consider the fact that pressure on the complainant made the conduct labelled inequitable a condition of commercial existencen marks the injection of an absolute economic content into the doctrine of unclean hands in labor controversies. This novel rationale presents a new mode of attack on the "absolute right to pay a wage which is injurious to a basic social interest."'

LABOR LAW-DECREE IN EQUITY REGULATING HOURS AND WAGES.-The com-

plainant employer sought to enjoin alleged acts of violence attending a strike called by the defendant union. An injunction being denied,' the parties submitted the controversy under the Tuley Act.2 It was stipulated that the complainant was a reasonable employer treating his workers as well as competitive conditions permitted. Decreed, that complainant re-employ its former employees who desire to return; that the parties desist from strikes and lockouts for a year; that all dis-

putes be submitted to an arbitrator whose award is to be binding; and that hours and wages be fixed in accordance with the N.R.A. code whenever adopted in the

industry, meanwhile to be not more than forty hours and not less than twelve dollars per week. La Mode Garment Co. v. International Garment Workers Union, Gen. No. B-272112 (Circuit Ct. of Cook County, Ill., August 16, 1933).

A submission under the Tuley Act is not arbitration but an equity proceeding culminating in a decree enforcible by contempt;3 therefore, orders such as the present for the submission of future disputes to arbitration, a method of settling industrial conflict favored by the Recovery Administration4 but unauthorized by the Illinois Arbitration Act,5 seemingly circumvents the common law proscription6 of such provisions if found in a contract. Traditionally, equity will not force one man to employ another.7 However, lockouts have been enjoined8 and employers

See (1933) 36 MONTHLY LABOR REVIEW 500. 19Cf. Note (1930) 43 HARV. L. REV. 1120-2. °Lehman, J., in Interborough Rapid Transit Co. v. Lavin, supra note 12, at

75, 159 N. E. at 866. 21 See (1933) 33 COLUMBIA LAW REV. 1265, 1266. But cf. (1932) 35 MONTHLY

LABOR REVIEW 370. 2 M. R. Cohen, Property and Sovereignty (1927), 13 CORN. L. Q. 8, 11.

Discussed in (1933) 33 COLUMBIA LAW REV. 1264. 2 ILL. REV. STAT. (Cahill, 1933) c. 110, § 26. Repealed as of Jan. 1, 1934. 3Farwell v. Sturges, 165 Ill. 252, 46 N. E. 189 (1897); see West Chicago

Park Commissioners v. Riddle, 245 Ill. 168, 177, 91 N. E. 1060, 1064 (1910); (1910) 5 ILL. L. REV. 245.

4 See N. Y. Times, Oct. 15, 1933, § 8, p. 1. 'ILL. REV. STAT. (Cahill, 1933) c. 10; Cocalis v. Naylides, 308 Ill. 152, 139

N.E. 95 (1923). 6 United States Asphalt Refining Co. v. Trinidad Lake Petroleum Co., 222 Fed.

1006 (S.D. N.Y. 1915); W. H. Blodgett Company v. Bebe Company, 190 Cal. 665, 214 Pac. 38 (1923).

7Hewitt v. Magic City Furniture & Mfg. Co., 214 Ala. 265, 107 So. 745 (1926); Chambers v. Davis, 128 Misc. 613, 91 So. 346 (1922); Stone Cleaning and Point- ing Union v. Russell, 38 Misc. 513, 77 N.Y. Supp. 1049 (Sup. Ct. 1902). But cf. Gregg v. Starks, 188 Ky. 834, 224 S. W. 459 (1920); Turner v. Hampton, 97 S. W. 761 (Ky. 1906); Brotherhood of Railway and Steamship Clerks v. Texas & N. O. R. Co., 24 F.(2d) 426 (S. D. Tex. 1928), aff'd, Texas & New Orleans Railroad Com- pany v. Brotherhood of Railway & Steamship Clerks, 281 U. S. 548, 50 Sup. Ct. 427 (1929).

Goldman v. Cohen, 222 App. Div. 631, 227 N. Y. Supp. 311 (lst Dept. 1928); cf. Lundoff-Bicknell Co. v. Smith, 24 Ohio App. 294, 156 N. E. 243 (1927).

1265 1265

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1266 COLUMBIA LAW REVIEW

compelled to hire workers according to the terms of a contract with a union.9 The requisite mutuality may be found in ordering the union to discipline its mem- bers and so compel them to return to work.10 The instant decree seems merely to effectuate the complainant's desire that the men return. The Illinois counterpart" of section 20 of the Clayton Act,12 forbidding the indiscriminate enjoining of strikes,13 though not considered by the court, seems sufficient to control the case; but so favorable a decree as the present, imposing a similar interdict against lock- outs, goes far to preserve inviolate the spirit of "Labor's Bill of Rights." Where statutory inhibitions were lacking, considerations of public interest have led equity to issue decrees otherwise reluctantly rendered,14 and an expressed national policy during an emergency has resulted in restriction of a right to strike15 normally unquestioned.16 Thus, the purpose of the Recovery Act "to induce and maintain united action of labor and management"7 may furnish the proper sanction for en- joining future strikes as part of some particular pattern for industrial peace. But the Act also recognizes collective bargaining;1s if employees are temporarily to re- linquish the means of effective dealing, some salutary provisions for wages and hours are essential. Arbitrators resorted to by employer and union have estab- lished binding wage scales.19 Here, also, the parties voluntarily submitted a wage dispute. It seems unlikely, however, that in submitting the controversy, the employer contemplated either subjection to the President's "blanket" code, or the possibility of a decree ordering compliance with standards so at variance with those of the industry as perhaps to compel operation at a loss. The Recovery Act directs that such mandatory changes be wrought in the trade group as a whole; it is the peculiar limitation of courts, however, that they act in the particular. The execution of the policy of the N.I.R.A. therefore requires that pioneering steps in altering hours and wages be taken under administrative aegis, with the lash of judicial action reserved for bringing laggards into line by ordering ad- herence to general standards.

9Schlesinger v. Quinto, 201 App. Div. 487, 194 N. Y. Supp. 401 (1st Dept. 1922); Ribner v. Rasco Butter & Egg Co. Inc., 135 Misc. 616, 238 N.Y. Supp. 132 (Sup. Ct. 1929), discussed in (1930) 30 COLUMBIA LAW REV. 410; Weber v. Nasser, 61 Cal. App. Dec. 1259, 286 Pac. 1074 (1930).

10 See Schlesinger v. Quinto, supra note 9, at 498, 499, 194 N. Y. Supp. at 410. ILL. REV. STAT. (Cahill, 1933) c. 22, § 58.

1 38 STAT. 738 (1914), 29 U. S. C. A. § 52 (1926). 3 But cf. supra p. 1190, n. 22. 14Union Pacific Railway Company v. Chicago, Rock Island and Pacific Rail-

way Company, 163 U. S. 564, 16 Sup. Ct. 1173 (1895); Gottlieb v. Matckin, 117 Misc. 128, 191 N.Y. Supp. 777 (Sup. Ct. 1921). But see Interborough Rapid Transit Company v. Lavin, 247 N. Y. 65, 73, 159 N. E. 863, 866 (1928).

15 Cf. Rosenwasser Brothers, Inc. v. Pepper, 104 Misc. 457, 172 N. Y. Supp. 310 (Sup. Ct. 1918); see Wagner Electric Mfg. Co. v. District Lodge No. 9, Inter- national Assn. of Machinists, 252 Fed. 597, 599 (E. D. Mo. 1918); Emery, Indus- trial Relations and National Defense (1917) 17 AMER. INDUSTRIES 15; Nagel, The Army of the Shops (1917) 5 NATION'S BUSINESS 25. But see (1918) 32 HARV. L. REV. 837; Mason, The Right to Strike, 77 U. OF PA. L. REV. 52 (1928).

16 See Chas. Wolff Packing Company v. Court of Industrial Relations of the State of Kansas, 262 U. S. 522, 541, 43 Sup. Ct. 630, 635 (1923).

1 P. L. No. 67, 73d Cong., 1st Sess., § 1. 18 Id., §7. 9 Atchison, T. & S. F. Ry. Co. v. Brotherhood of Locomotive Firemen and

Enginemen, 26 F.(2d) 413 (C. C. A. 7th, 1928); see Virginian Ry. Co. v. Chambers. 46 F.(2d) 20, 23 (C. C.A. 4th, 1930).

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