Political Power of Nuisance Law: Labor Picketing and the Courts In

Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 1998 Political Power of Nuisance Law: Labor Picketing and the Courts in Modern England, 1871-Present, The Rachel Vorspan Fordham University School of Law, [email protected] Follow this and additional works at: http://ir.lawnet.fordham.edu/faculty_scholarship Part of the Civil Rights and Discrimination Commons, and the Labor and Employment Law Commons Recommended Citation Rachel Vorspan, Political Power of Nuisance Law: Labor Picketing and the Courts in Modern England, 1871-Present, The , 46 Buff. L. Rev. 593 (1998) Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/344 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. BUFFALO LAW REVIEW VOLUME 46 FALL 1998 NUMBER 3 The Political Power of Nuisance Law: Labor Picketing and the Courts in Modern England, 1871-Present RACHEL VORSPANt INTRODUCTION After decades of decline, the labor movements in America and England are enjoying a resurgence. Unions in the United States are experiencing greater vitality and political visibility,' and in 1997 a Labour government took power in England for the first time in eighteen years.! This t Associate Professor of Law, Fordham University. A.B., 1967, University of California, Berkeley; M.A., 1968, Ph.D., 1975, Columbia University (English History); J.D., 1979, Harvard Law School. I would like to acknowledge the assistance of Leslie Camacho, Dennis DaCosta, Matthew Diller, Martin Flaherty, Bruce A. Green, Vivienne Hodges, Edward A. Purcell, Jr. and William Treanor. Fordham Law School supported this project with a summer research grant. 1. See, e.g., Richard L. Berke, With Vigor, Labor Surges in Politics, N.Y. TIMES, Sept. 2, 1997, at A16 (observing that "the emergence of unions in the political calculations of both parties is largely a recognition of the growing vitality of the labor movement after decades of decline"); Steven Greenhouse, Unions, Growing Bolder, No Longer Shun Strikes, N.Y. TIMES, Sept. 7, 1998, at A12 (pointing to recent strikes as representing "a new aggressiveness on the part of the nation's labor unions"); see also Juan Gonzalez, He's Got Labor Clout Working Again, N.Y. DAILY NEWS, Feb. 5, 1998, at 10 (commenting that John Sweeney, president of the AFL-CIO, is presiding over a "spectacular resurgence of union militancy"). 2. See Philip Webster, Landslide Victory for Labour, TIMES (London), May 2, 1997, at 1 (reporting on the Labour Party's "sensational landslide victory"); Philip Bassett, Wary Leader in Search of Unity and Influence, TIMES (London), Sept. 6, 1997, at 30 (stating that Tony Blair's victory was central to the effort of the Trades Union Congress to play "a new part in the life of Britain"); Philip 593 594 BUFFALO LAW REVIEW [Vol. 46 phenomenon has prompted renewed interest in both countries in the subject of labor law and the legal rights of unionists. Many Americans are not aware, however, that radically divergent historical developments in the two countries have produced markedly different legal frame- works governing industrial relations. In contrast to organized labor in America,3 trade unions in England have traditionally eschewed legally enforceable rights to strike, picket and bargain collectively in favor of statutory immunities from legal liability. Between 1871 and 1906 Parliament created a self-regulating industrial relations system that provided the basic framework for English labor law until the 1980s. This regime of "abstentionism" or "collective laissez-faire"4 afforded unions legislative protection from various forms of criminal and civil liability crafted by the nineteenth and twentieth- century judiciary to hamper union activity.' Bassett, Blair Will Head "Holy Trinity" of TUC Speakers, TIMES (London), June 16, 1997, at 13 (observing that "the trade unions are back in from the cold"). 3. American unions, unlike their British counterparts, demanded and obtained legal enforceability for collective bargaining agreements, rights to organize and strike, and protection against employer unfair labor practices. See, e.g., National Labor Relations Act, ch. 372, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C. §§ 151-69 (1994)); Labor Management Relations (Taft- Hartley) Act, ch. 120, 61 Stat. 136 (1947) (codified at 29 U.S.C. §§ 141-97 (1994)); see also Janice R. Bellace, Regulating Secondary Action: The British and American Approaches, 4 COMP. LAB. L. 115, 116-19 (1981); Michael J. Kiarman, The Judges Versus the Unions: The Development of British Labor Law, 1867-1913, 75 VA. L. REV. 1487, 1594 (1989); Jeffrey A. Spector, Comment, Replacement and Reinstatement of Strikers in the United States, Great Britain, and Canada,13 COMP. LAB. L.J. 184, 184-85 (1992). 4. The phrase was coined in the 1950s by Sir Otto Kahn-Freund, Professor of Comparative Law at the University of Oxford, to describe a regime where the law "abstained" by parliamentary command from playing a regulatory role in industrial relations. See Otto Kahn-Freund, Labour Law, in LAW AND PUBLIC OPINION IN ENGLAND IN THE TWENTIETH CENTURY 215, 224-44 (M. Ginsberg ed., 1959) [hereinafter Kahn-Freund, Labour Law]; Otto Kahn-Freund, Legal Framework, in THE SYSTEM OF INDUSTRIAL RELATIONS IN GREAT BRITAIN 42, 102- 05 (A. Flanders & H. Clegg eds., 1954) [hereinafter Kahn-Freund, Legal Framework]; see also PAUL DAVIES & MARK FREEDLAND, LABOUR LEGISLATION AND PUBLIC POLICY 8-59 (1993); Klarman, supra note 3, at 1593-94; K.W. Wedderburn, Nuisance-Intimidation-Picketingin a Trade Dispute, 1960 CAMBRIDGE L.J. 163, 163-64. 5. For example, in the mid-nineteenth century the courts treated unions as criminal conspiracies in restraint of trade. See, e.g., Hornby v. Close [1867] 2 Q.B. 153; R. v. Bunn, 12 Cox C.C. 316 (Cent. Crim. Ct. 1872). However, Parliament prohibited such actions in the 1875 Conspiracy and Protection of Property Act. 38 & 39 Vict., ch. 86, § 3. In the 1890s and early twentieth 1998] POWER OFNUISANCE LAW 595 Although this standard portrait of English industrial relations is not inaccurate as far as it goes, it is incomplete and misleading. By focusing on the system of specialized common law liabilities and corresponding legislative immunities, scholarly writing on English labor relations has underestimated the extent to which the general law of nuisance-both civil and criminal-served to regulate industrial action in the late nineteenth and twentieth centuries. The abstentionist perspective, in other words, has obscured the consistent interventionism of judge-made century, courts turned their attention to the civil law, developing doctrines of civil conspiracy and union liability for the torts of members. See, e.g., Temperton v. Russell [1893] 1 Q.B. 715 (C.A.) (holding the officers of a union liable for a "conspiracy to injure"); Trollope v. London Building Trades Federation, 72 T.L.R. 342 (C.A. 1895) (holding unionists civilly liable for publishing blacklists); Quinn v. Leatham [1901] App. Cas. 495 (H.L.) (approving the principle in Temperton that a "conspiracy to injure" was actionable); Taff Vale Ry. Co. v. Amalgamated Soc'y of Ry. Servants [1901] App. Cas. 426 (H.L.) (holding unions liable in damages for the torts of their members). Parliament again intervened in 1906, reversing these decisions in the Trade Disputes Act. Trade Disputes Act, 1906, 6 Edw. 7, ch. 47, §§ 1, 3. After a lengthy period of judicial passivity, in the 1960s the judges developed new causes of action involving breach of contract. See, e.g., Rookes v. Barnard [1964] App. Cas. 1129 (H.L.) (finding tortious intimidation in a union's threat to call out members in breach of contract); J.T. Stratford & Son v. Lindley [1965] App. Cas. 269 (H.L.) (creating the tort of inducing breach of a commercial contract); Torquay Hotel Co. v. Cousins [1969] 2 Ch. 106 (C.A.) (developing the tort of interfering with the performance of a commercial contract). Common law civil actions for conspiracy, inducing breach of contract and intimidation became known as "economic torts." Parliament yet again responded with legislation that protected union members against these new civil liabilities. See Trade Disputes Act, 1965, ch. 48, § 4; Trade Union and Labour Relations Act (TULRA), 1974, ch. 52, § 14. Thus the immunities generally represented legislative attempts to reverse judicially-created union liabilities rather than an effort to confer "exceptional" privileges on unionists. See, e.g., KEITH EWING, WAIVING THE RULES 146-47 (1988) (observing that the notion of privileges was an illusion because in practice the torts applied only to unions and workers and Parliament intervened only to remove laws of special application); Richard Tur, The Legitimacy of IndustrialAction: Trade Unionism at the Crossroads, in TRADE UNIONS 485, 485-86 (W.E.J. McCarthy ed., 2d ed. 1985) (remarking that parliamentary action merely restored the status quo ante in the face of judicial erosion of the immunities). See generally SECRETARY OF STATE FOR EMPLOYMENT, TRADE UNION IMMUNITIES, Cmnd. 8128, IT 34-101 (1981) [hereinafter TRADE UNION IMMUNITIES]; Keith Ewing, Rights and Immunities in British Labour Law, 10 COMP. LAB. L.J. 1, 1-10 (1988); Bob Simpson, Trade Union Immunities, in LABOUR LAW IN BRITAIN 161 (Roy Lewis ed., 1986); K.W. Wedderburn, Labour Law: Autonomy from the Common Law?, 9 COM. LAB. L.J. 219, 239-42 (1988). This Article deals only with the application of general nuisance law to picketers, not with the fluctuating fortunes of the specialized economic labor torts. 596 BUFFALO LAW REVIEW [Vol. 46 nuisance law in determining the permissible bounds of trade union activity.

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