THE ORIGIN OF INJUNCTION

The battle against unjust injunctions was a key front in Reuben’s fight for working labor’s right to strike. Of all the evils Reuben railed against as a leader of labor, none was more damaging, insidious, or unethical than labor injunctions. These orders—weapons fashioned by industry lawyers and wielded by illiberal judges—were used in the late nineteenth and early twentieth centuries to deny working men and women of their rights to speech, assembly, and free movement. Soderstrom himself was a victim of injunction attacks; more than once he was brought to court to defend his right to walk his hometown streets. But what was the labor injunction? Where did it come from, and what made it so effective and onerous? And how did labor—and Reuben—fight back?

By the 1920s, injunctions had become the preferred tool of attack against strikers and protesters, but they didn’t start out that way. Injunctions—orders preventing someone from beginning or continuing an act that invades the rights of another—originated in British law as a means to address losses or damages to property or property rights in civil court. However, legally forcing a person to do or not do something is an extraordinary remedy that is supposed to be used when it is the only way to prevent “irreparable harm.”[1] If used as intended, injunctions are effective and positive legal tools, as Reuben himself explained in a speech before the Illinois House:

If properly used in its own sphere, as determined by English and American judicial decisions prior to 1890 the injunction may be useful and necessary. An injunction was merely an order by a court of equity, commanding a certain person or persons to desist from some action proposed or actually begun… The injunction was in the nature of an ounce of prevention and was intended to obviate certain civil injuries… It was not until the opponents of the trade union-unionists and the enemies of the working classes decided upon concerted movement against labor organizations, that the full possibilities of the injunction, as distorted and perverted by the courts, became apparent.[2]

As Soderstrom noted, abuse of this civil remedy began in the late 1880s and 1890s in response to a series of increasingly effective strikes. When the engineers and firemen of Chicago, Burlington & Quincy (CB & Q) launched a strike in 1888, they started a boycott of the railroad that spread across eight states and 5,500 miles of track. In response, the CB & Q president sought and received an injunction against the railroad unions in federal court under the Interstate Commerce Act, bringing railroad labor relations largely under court control.[3] This trend accelerated under then Sixth Circuit judge and future President Howard Taft. In case after case he issued sweeping injunctions, ruling union calls for boycotts illegal and unions liable for the financial losses they caused.[4]

Things came to a head during the Pullman strike of 1894. When employees of the Pullman Palace Car Company went on strike after a 22% wage cut, they called on their labor brothers for support. The American Railway Union didn’t disappoint; ARU members in every trade on every Western line helped shut down all company traffic from Chicago westward. Owner George Pullman and the General Managers Association retaliated by calling in a favor from former railway lawyer and then-current Attorney-General Richard Olney. Olney sought an injunction against the strikers that ultimately resulted in President Cleveland sending companies of infantry, cavalry, and a battalion of artillery into Chicago in “an unseemly desire to intervene in the dispute with force.”[5] This tinderbox of strikers and armed troops exploded on July 6, when an Illinois regiment fired point blank into an attacking mob, killing twenty to thirty people and wounding scores of others. Over the next several days repeated clashes between strikers and solders resulted more dead civilians, and eventually the protest buckled under the steady show of lethal force.[6]

Such brutal put-downs were nothing new to labor, but the impact of Olney’s legal action was. Under the law injunctions can’t be issued against lawful actions, so Eugene Debs, head of the ARU (and a local leader of the Brotherhood of Locomotive Fireman during the CB & Q strike), was charged with criminal conspiracy under the Sherman Anti-Trust Act. This law, meant to prevent companies from colluding to keep prices (and profits) artificially high, was now being twisted to make strikes illegal under the pretext that they were a “conspiracy in restraint of trade or commerce among the several states.”[7] The following year this case against “Dictator Debs” (as the anti-labor press called him) made its way to the US Supreme Court. In its ruling on In re Debs, the court affirmed the right of the federal government to appeal to civil courts and “invoke the powers of these courts to remove or restrain…obstruction[s]” of interstate commerce.[8]

The decision shook labor to its core. In the cases that followed—notably Hitchman v Mitchell, The Danbury Hatters case (Loewe v Lawlor) and Gompers v Buck’s Stove and Range Co.—the courts effectively declared open season on unions. In the words of labor historian Clayton Sinyai:

Members of the bench, enchanted with their shiny new juridical toys, set out to see just what they could do. The courts quickly concluded that most union boycott activity was illegal at common law under the Sherman Act; that sympathetic refusal to handle struck goods was also a conspiracy in restraint of trade; that when unions urged workers to strike or join a union in violation of a contract with an employer, they engaged in illegal conspiracy; that mass picketing was illegal intimidation. And they gave a sympathetic ear to employers who demanded relief from such activities by means of a labor injunction. The injunction had heretofore been an extraordinary measure, issued only when the possibility of irreparable damage to the plaintiff rendered the glacial pace of normal court proceedings futile. Hereafter, an employer’s word that an ongoing labor action was dealing his business irreparable harm was good enough for many a judge.[9]

Soon nearly every strike was met with judge-issued injunctions against union leaders, forbidding them from even talking to protesting workers, without trial or due process. Workers were barred from striking and forced to work against their will, lest they be held in contempt of court. Even the boycott—an American tradition as old as the Stamp Act—became illegal. According to AFL President Samuel Gompers, by 1925 “Abuse of the injunctive writ had grown in frequency until it had become the paramount issue in labor problems.”[10]

THE CASE AGAINST INJUSTICE

Organized labor vehemently opposed injunctions in labor disputes, judicial actions they perceived as illegal. With the flimsiest of excuses, a business could request an injunction, while a single (usually business-friendly) judge had power to decide whether to issue the order, who was under it, who paid a fine, and who went to jail. This danger was especially acute in Illinois, which had been targeted by manufacturing interests in a concerted and coordinated effort to use injunctions against unions. As ISFL President John Walker warned, the manufacturers of Illinois had “made clear they expect to use the courts to prevent the workers from exercising the right of free speech, free press and communication, peaceful assemblage, the right to a trial by jury, to face the witnesses who appear against them and to cross-examine such witnesses, all designed to prevent growth of the labor movement.”[11] By 1916 the First District Appellate Court went so far as to rule even peaceful labor protests illegal, writing in Barnes v. Chicago Typographical Union that “picketing itself is an act of intimidation and an unwarrantable interference with the right of free trade. The very fact of establishing a picket line is evidence of an intention to annoy, embarrass and intimidate, whether physical violence is resorted to or not.”[12]

These efforts were not only unfair in the eyes of labor but un-American, striking at the very core of the constitution. As Victor Olander, ISFL Secretary and arguably the greatest mind of Illinois labor, wrote:

The cornerstone of the constitution is another document, whose words are written in the life blood of the patriots and which is known as the Declaration of Independence. It asserts that all men are created equal and endowed by their creator with inherent and inalienable rights…When the injunction judge issues a restraining order, directed against working people, of a character which he never directs against any other class of citizens, he denies the equality of man and repudiates the Declaration of Independence whether he knows it or not. When he insists, as he frequently does, in cases where he is called upon to support the interests of employers against working people during strikes, that there exists no right which may not be restricted by his orders, then he denies the doctrine of inherent and inalienable rights and again repudiates the Declaration of Independence.[13]

The power of a judge through injunctions to single-handedly destroy the lives of men and women involved in a strike was particularly dangerous, not to mention undemocratic. According to Walker:

You can easily understand how this preys on the minds of the wives and children of the strikers… He is not only the judge, but the prosecuting attorney, prosecuting witness and the jury—all in one… and in so doing the injunction recognizes no law, organic or statutory in our land, or no rule of justice, honesty or humanity.[14]

The effect of these judicial decrees were nothing less than devastating. As the Illinois Federation editorialized in its weekly newsletter (possibly written by Reuben himself):

All people who do not believe these judges with their long robes are something divine and who believe with the great Lincoln that human rights are of more importance than property rights, are opposed to the present power of judges who can say in effect “You can organize, but if you strike you injure the employers’ property; you must not do that. If your pickets tell the public that girls are striking for living wages against those hotels and restaurants, the public might stay away and that would destroy his business, therefore you cannot tell the public you are striking for more life.”

Life to those judges, you must understand, is not so dear and important as the continued patronage of the public to these eating houses. “My God! If the public stays away the proprietor will either have to grant the strikers’ demands or meet a property loss to his business,” views the judge. So Mr. Injunction Judge says in effect: “You can strike, but don’t make your strike effective. I will restrain you from telling anyone the circumstances of the strike, from persuading anyone from taking your job, from asking the public to refrain from patronizing my company during the dispute, from paying strike benefits to the strikers, from saying anything about the strike or holding meetings, and if you violate any of my court orders I will send you to jail without trial, regardless of your constitutional rights about a trial by jury.”[15]

In organized labor’s view, this was a clear case of the courts and industry colluding to strip workers of their rights. By keeping workers from organizing, they violated the American protection of free speech. By keeping them from striking, injunctions kept workers in slavery, laboring without their consent. By issuing these orders without trial or limit, judges were acting like kings, violating the workers’ right to due process. As Reuben himself argued:

In my judgment this extension of the use of injunction is the most disturbing factor in our national life—the darkest cloud overshadowing America. The elements who favor injunction as applied in labor disputes are either consciously or unconsciously inimical to true democracy and are apparently in favor of what is practically a monarchical, even despotic government, and in favor of the limitation and restriction of the rights of working people. Let me say this: that those who still advocate further use of this injunction weapon are undermining the faith of the people in the constitution and the laws of the land and are destroying the confidence of the working classes in the impartiality of the courts.[16]

The ISFL took action to push back against these intrusions, working with the Chicago Federation of Labor (CFL) to quickly establish a legal department to address the issue of injunctions. The finest labor lawyers in the country agreed to fight the battle; Chief Counsel W. B. Rubin of Milwaukee joined by AW Kerr of Springfield, Frank Walsh of Kansas City, and Clarence Darrow of Chicago to act as expert advisers to Chicago attorney Fred Schmidt, who served as the full-time counsel for the ISFL.[17]

At the heart of the organization’s efforts, however, was an effort to pass legislation ending abuse of injunctions. It was a move encouraged by labor leaders across the country; as American Federation of Labor (AFL) President Sam Gompers wrote to all members, “Every effort should be made to secure the enactment of a law… every personal desire… curbed; every other political issue should be subordinated to the attainment of this one end.”[18] At its annual convention in 1916, the ISFL adopted a resolution which called for the state federation to direct its efforts at passing an Injunction Limitation bill. From that day forward until the bill’s passage, no other political issue occupied such a prominent place in organized labor’s legislative efforts in Illinois. At every session of the General Assembly, union-friendly legislators would introduce the bill. Every year, it would go down to defeat.

INJUNCTIONS HIT HOME

While fighting against injunctions in the legislature and the courts, unions continued the struggle for the rights of laborers through strikes and pickets, despite the risk. It wasn’t going well. Nearly every dispute was met with a slew of injunctions barring just about every union activity imaginable. Violating these judicial decrees meant, at best, fines and possible jail time. At worst, disobedience could be used as a pretext for armed assault, often by former convicts and thugs deputized for the fight by (well-compensated) sheriffs and marshals. Several new owners’ groups, including the American Anti-Boycott Association, The Citizens’ Industrial Association of America, and the National Manufacturers’ Association were formed to help organize the fight against unions.

In Illinois in particular, these groups and their lawyers broke strikes through a series of injunctions and convictions for criminal conspiracy. Legislative battles began to escalate as the spread of injunctions hampered organized labor’s efforts across the state. At its height, this abuse resulted in over 400 active injunctions filed against CFL President John Fitzpatrick alone, prompting ISFL Secretary Olander to comment “The menace of misused injunction power has become acute in Illinois, more so than any other state. This injunction evil is not confined to Chicago by any means; it is felt throughout the state.”[19]

One of the Association’s key targets became “closed shops,” businesses where union membership was required of all workers. In 1904, the Illinois Manufacturers’ Association under JM Glenn declared a war on closed shops, calling them “an illegal infringement of contract rights guaranteed by common law and the laws and constitution of the state of Illinois,” using injunctions as their primary weapon.[20] Eventually this fight struck home for Reuben. Streator—home to a wealth of mining, brick, and glass production—became a flash point in the conflict when, on December 27, 1921, the Streator Manufacturers’ Association published a proclamation in the local Streator newspapers stating their intention to switch to an “open shop” that no longer negotiated with a union:

We are in an era of keenest competition for business ever known. Streator industries must be in a position to meet this competition. Only those plants which can meet the competitive conditions and pay fair and equitable wages, are those not handicapped in operating by the restrictions of a Closed Shop contract. Several signers of this announcement have at the present time contracts with various labor unions and all of these contracts will be carefully and faithfully carried out. After these contracts have expired all of these factories will be operated on the Open Shop basis.[21]

A week after the proclamation by the Manufacturers’ Association, Reub, who served as reading clerk for the local Trades Council, wrote a rebuttal titled “We Fight,” published in the local newspapers on January 9, 1922:

The labor movement of Streator represents the crystallized thought, hope and aspirations of humanity for a better life and these employers in their associations, their combinations, yes in their unions, if you please, are using a nationwide business depression, and a humbug population argument to drive back, to kill the spirit of freedom that lives in the hearts of those of us who belong to his movement of labor. May God grant that they fail.[22]

The night after “We Fight” appeared in the newspapers, delegates from the council addressed a meeting of Local 17317, the bargaining agent for the workers at the Streator Metal Stamping Company, and encouraged them to protest for their rights. In the days that followed, large crowds of picketers gathered at the factory gate. The situation soon got heated, with strikebreakers and factory Superintendant Frank Mason accosted as they left their shifts.[23] The company blamed union leaders, applying for and obtaining an injunction and restraining order against the officers and members of Federal Labor Union No. 17317. They didn’t stop there, however; three officers of the Trades Council, President William Atkinson, Vice President Thomas Kelly, and Reading Clerk Reuben G. Soderstrom, were also slapped with injunctions.[24] Reuben, a sitting Illinois State House Representative, became a virtual prisoner in his own hometown as the injunction barred him from whole sections of the city deemed too close to the factory. He wasn’t even able to visit his own mother, whose house was in the “forbidden zone.” Never a rich man, Reuben faced crippling fines and even possible jail time, all for simply encouraging workers to stand up for themselves.

Reuben was eventually able to succeed against the charges in court, with labor attorney James Conway even convincing the court to compel the owners to pay the union officials’ legal fees.[25] Still, the damage had been done, both to Reuben and his beloved Streator. Soderstrom’s experience had caused him to fear for his freedom and the financial security of his family, while the protracted open shop struggle left the city economically devastated. No one should have to live like this, he vowed. If unions were going to have any hope of success, the abuse of injunctions had to end, and he was going to be the one to end it.

* * *