*2 HAND, SWAN, N. AUGUSTUS Before CLARK, Judges. Circuit CLARK, Judge. Circuit Defendants, Union International .Brotherhood Electrical Labor, Workers, American Federation of officers, appeal of its and certain enjoining order of district court various declaring union and activities to be a restraint of trade Anti-Trust Sherman violation seq., and laws amenda- et U.S.C.A. § tory enjoined thereof. The in sum and all actions on the stitute boy- the union which would tend City cott from area market manufactured plaintiffs. various complaint filed Plaintiffs below in December, following year most joined companion in a suit union, against the and additional defend- ants, damages treble law under Act; pend- has remained Sherman ing in the district court without trial. The parties agreed to action refer ¡o Electrical International Brotherhood special for determination master fact,” influential Workers, and it was so itself law and one issues of “all years one-half of members of the After American Federation ordered. two states, possesses which, approximately Labor. Local 3 hearings, as the master *3 15,000 examined, members, divided into numerous were more than 400 witnesses separate 1,700 and presented, classifications. Charter A mem- exhibits were some bers, adduced, 7,000, gen- 25,000 testimony numbering he around consist pages of erally opinion, journeymen engaged in electricians filed October law, facts and the conclud- fabrication installation elec- he discussed the and equipment, members, plaintiffs trical while B ing judg- Charter 8,000, ment, pro- numbering largely to submit around are and asked the em- findings posed ployees producing and conclusions of of local manufacturers fact law, D.C., parties hav- F.Supp. equipment. power 727. The electrical voting Sole master, complied, members, A ing November in on rests and Charter Charter report, membership leng- filed final is entailed containing his A for sons and conclusions, which, thy findings upon existing brothers of and members. Prior dismiss, cross-petitions composed confirm Local only and 3 was of the members; confirmed with al- A below some limited Charter the mem- but D.C., findings, bership and virtually everyone terations additions to now covers decree, F.Supp. covering 36. The final working on producing equip- electrical record, printed pages any way included ment within Although in the area. number, findings, these 374 in with 26 con- there are other officers and an executive law, committee, clusions of as well as form of in- center nerve junction declaratory and be issued in rests the office of manager, the business who, declaring “that the combination among things, other complete has the being the acts done and to select which members fill shall done down of the conclusion of existing job dale vacancies. taking testimony herein before constituting alleged The acts con- thereof, Special Master, all in furtherance spiracy in restraint of trade which resulted findings as set of fact as made forth plaintiffs’ products herein, adopted by the un- campaign elements of an extensive under- contrary to” the Sherman Act. lawful organize Local 3 taken electrical appeal upon only is taken findings This industry City. in New York This oc- judgment, hence does not seek appointment in 1934 curred of a modification of the facts found.1 manager, Plarry Arsdale, new business Van The eleven Jr., depression years the action are after of 1931 building electrical at a in New left standstill whose factories are City located the most and found the union parr without City employed. New York quarter area. a of its members There- operate under bargaining year by year, reports, Several collective master agreements for, fought local unions in and gradually their local- Arsdale Van powerful members, ities. Local 3 is the local for for the union the obtained reduc- boroughs five City New York in the number of per of the tion hours of work appear below; September 22, These union activities to have and thereafter on litigation prossed. Slight been They in the court below. the eases were nol subject ly of four indictments earlier union affiliated with the O. I. sought forbidding boy and its officers and oth O. ers under the Sherman which were Union cott Interna involving Workers, sustained demurrer tional Brotherhood of Electrical dispute” statutory basing others, “labor emption within the ex its action rights hereinafter discussed. United claimed under the National Labor Act; States v. Local Union No. D.C.S.D Relations but it was unsuccessful.
.N.Y., F.Supp. 783; Electrical, United States v. R. & Mach. Workers v. Ass’n, Workers, Cir., New York Electrical of E. Contractors B. International D.C.S.D.N.Y., ; affirming F.Supp. D.C.S.D.N.Y., 789 cf. 42 Col. F.2d 30 F. Supp. 927; L.Rev. 40 Mich.L.Rev. cf. 1244. The 54 Harv.L.Rev. Bou however, show, petitions Representatives din, court records Their Own Choos reargument ing, were filed defendants 38 IIl.L.Rev. 47. The master’s opinion after the decision in United States v. Amer herein is discussed 28 Va.L.Rev. Musicians, ican Federation of 741, 554 and 5 U.Det.L.J. 132. L.Eci. discussed every compensation, him author week bid made at the basic rate compensa- ized in must in City, New York that he well as an increase the rate membership the clude in his bid Meanwhile of the labor cost tion. 35% increased, overhead, it was cost for of the materials’ greatly 10% commission, in ob- highly for man unionizing of the total successful 6% closed-shop agement, price both the cutting penalized taining agreements local manufacturing and the substantial fines. This code equip- con tracting branches contract with several show industry. tractor associations it was ment understandings” disapproved by en- “agreements President the International groups E. en of the I. B. W. and record is not tered into facturers, the three —manu- *4 gave contractors, tirely and remained clear whether thereafter it union — they used complete monopoly which the a a the con contract until by boycott equipment manufactured tractors themselves in 1939.2 gave up the rate, any plaintiffs. it is the union the At found that complaints filed no under the code ran found the the as While did not itself take share the fines or highly equipment from gamut.of electrical against action or cause its a contractor de- and control complicated switchboards employ stay members refuse shades, the lamp novelty vices down disciplined contractors. is offered case of the modern switchboard City typical. New York fields, as There are in respect In- other with to other manufacturing companies a number of similar equipment, items of electrical a who, switchboards before these Only when prevail. situation found competitive open Local shared an no local unionized made manufacturer many plaintiffs. refurn market with permitted; was its use and in such article' closed-shop for calling agreement for a cases, feasible, required it was if all for em- wages and hours higher shorter the from the that article come either however, promised these ployees, Local down,” put manufacturer “knocked to be companies market for labor, local exclusive by together the finished or that city, that switchboards within the be unwired rewired re- article prices name their to offset own could years ceipt. For been more economi- production Local carried costs. creased the cal for the to wire at manufacturer promise help the electri- with out factory lighting articles fixtures such as already It won contractors. had clos.ed- cal equipment; and control the union re- majority of agreements a vast shop quired wiring by its own to be done strikes, through threat- latter series job, members on though, even the. by strikes, sympathetic strikes ened equipment, case of control the manufacturer trade, building which unions complete ship- before wiring up construction work threatened tie all testing purposes. Curiously, ment City. secured the It now requirement similar in force with terms union members should further that by regard to some manufactured local manu- only on switchboards of work shops. 3 members Local closed Local con- by shops, that facture Switchboards, example, had to should the sole tractors have factory down” at “knocked and re- any job, proviso buy materials job. assembled at only products protection that additional all, the by All in situation disclosed bearing the union would be utilized. label findings industry that of an is in a entire manufacturers, the .contractors Like the area, quite local dominated and closed to expense not averse to extra powerful union, outsiders whose labor, when all material com- exceedingly receive as a result thus removed from field. petition was wages, hours, working shorter higher contractors, however, conditions, working went so far as improved The and whose voluntary local copartners Code Com- organize Fair —the gain stipulated every greater which petition, contractors —also through file with the code committee achieved profits stifling tractor accomplished This sat) competition. two officials has been (upon opinion only elusory master’s effect states the union was code, sharp evidence; was a there conflict hound findings, however, general are and eon- counsel, prepared by winning of refusal weapons decision traditional court, accepted are not goods, though even disfavored views; persuasion, helpful original trier’s own peaceful non-violent3 find particularly the and when the blacklisting, now true picketing, employers. ings lengthy repetitious. Matton are participation of active Cir., Corp. however, complete Dynamic, virtually Transfer v. The boycott, Oil manufacturers, For plaintiffs, 123 F.2d United States v. ness, Cir., certiorari F.2d working agreements States, City that most denied of Salamanca v. United makes no difference Local 3. It juris- 316 located plaintiffs without the Lighterage Corp. v. Towing & could never Petterson 3 and hence diction event, Co., Cir., R. 126 F.2d collectively or New York Central bargain it in 992, 996; working Preliminary already Draft of Pro cf. posed Pro agreements Amendments Rules Civil with other under harmonious Moreover, expected in cedure District Courts of unions. must be States, 1944, p. closed to Here a local is thus there where area difficulty incorporation products, persons injured will an added outside manufac- the excluded and their include unions, express and rival also —at least inclusion statement *5 turers but likely continuously implication very invalidity declaration initially and of —the pay higher injunction. public, prohibition consuming which of must indeed, raising satisfy it Doubtless this re- (as, must also done to rates work) lowering of quirements injunctive of hours that an wages of order must im- the benefits of set forth the reasons its and does receive issuance operation. proved machinery reasonable detail the or methods of describe in restrained, acts to general 65(d), work Federal appears that electrical 28 U.S.C.A. Thus Rule it 723c, costly following in New York section continuing are equipment equip- cf. 29 are cited where City, instances C.A. U.S.C.A. but § § multiplicity revealing down for plaintiffs was turned of words is as ment of little label at a dearth of of- equipment words. Labor union local with cost. Since the members ficers and are twice or three times the entitled a more contracts, city longer gets direct succinct il- lowest bidder no statement of the bid, city legalities guilty a union has lost of they if it be not which held premised grants, penalties which must federal were which cease under imprisonment. An outstand- acceptance of the lowest bid. fine and This re- basic from this ing example consequences importance quirement greater assumes the persons third type warfare because the of economic here of decision course below has case ambiguity is that of one manufacturer has left the not free on For, products, for its one for price point lists crucial feature. two shall we out, city at than recent decisions within the more have conceded labor use union powers quite broad price of other for use without unions refuse twice employ peaceful persuasion, and to jurisdiction. open but have combina- left effect of brief, but, only a is as we be This conspiracies tions of unions non- with adequate, summary lieve, presently of the elements, particularly for non-union of record devoted state many pages to a Thus the objectives. nature and industry the facts. counsel ment of conspiracies may quite possibly here special com master to be and of crux be the case. ; say are constrained we mended verbosity and very superfluity ambiguity importance This not aided decision as much as have of the element of here expected. We had groups against been non-labor doubtless more —as recently point findings, out labor-union appar- traditional occasion activities' — significantly spent absence violence is has so sums for bail and coun- finding members, emphasized spe- “Local fees for as well sel encouraged finding and lawlessness disorder cific was no there evidence any of its in connection violence threat violence o.n guaranteeing against plaintiffs by any above activities ex- and counsel furnished at the bail defendants. pense case their arrest” emphasis plaintiffs’ change equipment electrical on ently a real stems Indeed, ground such a that it was not made in New progressed. necessary, City or worked on members of if not natural, change was but competition equipment the 3 or was reversal complete because of the during the made mem- employing precedents controlling judicial against “any In the bers of Local litigation. and a 10th long pendency of this is bn action hindering purchase the stress whatsoever” complaint original of'1935 plaintiffs’ con- or use equipment on same forced power which has grounds scope as stated in 9th. The broad employ union labor tractors to (pnly control such reach said as to “through their [defendants’] peaceful attempts has co- by the defendants— contractors” over said erced the latter not among whom purchase electrical included the individual wholly or any person officers of induce the union—to wired or assembled (thus Met- member) even a union deal' men outside partly by non-union prayer plaintiffs, doubtful while ropolitan Area. And except is, noted, if the unnamed “confederates” are reached because junction important — 65(d), supra. the at all. Cf. Federal Rule hereinafter additions for limited injunction ultimately granted —was Nevertheless, any judicious view not work persons inducing of case, we do not believe the motive prohibi- direct products, with no plaintiffs’ doubt; intent of defendants all in can groups non-union conspiring with tion of appraise legal and we are left un- groups and indeed no reference validity and effect. That the vague “con- term possibly under less wantonly, corruptly, officers were or- of acting co- Significantly, no non-union federates.” benevolently even the mere benefit party defend- conspirator joined as copartners, all times *6 been added. and ant none has since The acting they be the- what conceived to does complaint, expanded amended 193? members, self-interest of the and its length allegations considerable set forth at of asserted,-but negatived by is'nowhere contractors contracts import findings ex- general plicitly and of-all been and who, however, said “to several, Finding is. 361 of which forced, and coerced are, compelled now typical. stating that finding, That contracts enter into” these Local 3 to acting and in concert defendants those the with them were their for the conduct of business way “in concerned with their Metropolitan restricting Area and conditions, wages rates or- working whom manufacturers from employees plain- choice union affiliations tiffs’ factories Area,” Metropolitan- electri- purchases their would make outside the n requested plain- form equipment. And continues: “The cal ban injunction complaint. products imposed remained as in and been and tiffs’ maintained the union’s opinion stressed the aforesaid combination of' The master’s merely defendants, ob- which had union contractors power, the local economic manufacturers, wages solely and shorter hours higher tained and the local not, and or of' labor, brought submission because the because but had do geographical participation location outside active their complaisant and members, cannot, employ Metropolitan Area employers. The voluminous the local 3 in factories outside more of make in 1942 much filed Metropolitan words it Area.” the was a conspiracies; and sev- conspiracy, or campaign for the benefit make-work allege conclusory findings intent eral of union members. give the local manufacturers the market and control tractors century against half a For price. The market the granted, popular, political, legislative strong however, accepts, slight and pressure, struggled courts to resolve changes origi- unimportant wording, anomaly applying a statute for subparagraphs prayed for eight nal bidding in restraint combinations of trade more: complaint, adds two organism depend, a social which must out, making, carrying or seek- against a 9th united its existence and on at effort “of agreements observance ing to secure the least restraints certain trade as a contractors, being. understandings Finally, at long length, manu- for its reason or facturers, Supreme others, restraining, hindering boldly Court announced what or purchase preventing” the or use of must be as an of the- taken or abandonment
221 52, 29 significantly means to do. U.S.C.A. 104. most case which attempt. §§ dispute alia, includes, v. And a inter labor change is United marks “any controversy or con- concerning Hutcheson, terms U.S. * ** regard- where the ditions 463, 466, L.Ed. disputants less whether or not the stand through Mr. majority of Court Justice Sherman, proximate employer in the relation of that the clear Frankfurter made employee”; case grows must and a out of a Acts labor Clayton, and Norris-LaGuardia dispute persons engaged statutes” when involves “interlacing it together as be read industry, craft, “in the trade, of out- same or harmonizing text presenting “a occupation; “the conduct,” or have direct lawry or indirect of labor origi- therein,” terests Act reasserted the is between em- whether Norris-LaGuardia infusing ployers employees, employers or Clayton Act nal employers, employees employees, activi- or trade union immunized into each, or Act.”4 Hence associations of it involves when as redefined later ties “any conflicting competing interests” of of lawful union activities the test Act, persons Clayton “participating 20 of famous Section interested” in dispute. held had been mere- 52—which U.S.C.A. 113. § U.S.C.A. § in decisions declaratory existing law ly That now settled Press Co. v. Duplex Printing such as present view the inapplicability Deering, S.Ct. U.S. Sherman even to Act controversies now to be 196—is 16 A.L.R. injurious whose effects he to holdings effect, contrary full given than others the immediate is made permissible cases, stating earlier important later clear and unanimous dispute” “labor decisions. LIutcheson case itself im that term of the broad definition of within against prosecution munized Act under the U.S.C.A. Norris-LaGuardia § strike brewery applied in as Milk company arising jurisdictional out aof Valley Wagon Union Lake v. Drivers’ dispute two building between unions as to Inc., Products, 311 U.S. S.Ct. Farm being construction work done for it and for Negro Alliance adjoining Shortly tenant. thereafter Co., Grocery Sanitary the Court affirmed dismissals of other in 703, 82 L.Ed. dictments, per opinions curiam *7 Hereafter, following terms of these merely cited the Hutcheson case. United Acts, longer illegal it can be considered Building v. & States Construction Trades persons, singly any person or or in Council, 539, 839, 61 S.Ct. 85 concert, perform any to cease or refuse to 1508; L.Ed. United States v. United peacefully persuade any or labor or Carpenters Brotherhood Joiners, & 313 working, 539, work or abstain from person 61 1508; U.S. 85 L.Ed. any party patronize to such to cease United States v. Hod International Car recommend, advise, riers’, etc., Council, dispute, 313 or to U.S. 61 S.Ct. by peaceful persuade others and lawful affirming United States 4 532; This is of the most 41 one discussed Col.L.Rev. 9 Geo.Wash.L.Rev. Greg times; alia, ; 646; compare, 724 of recent ory, inter 3 La.L.Rev. 89 U.Pa.L.Rev. ; Sherman-Clayton-Norris- ; The 827 10 New L.Rev. Fordham 268 26 Towa L. 503; ; Act, 8 Stef Rev. LaGuardia U.Chi.L.Rev. 862 54 Harv.L.Rev. 887. Among fen, helpful general Labor Activities Restraint discussions of the Case, problem Gregory, Trade: The Hutcheson 36 Ill.L. bo cited The Sher 1; Wirtz, Labor, Nathanson The 222; Rev. man Act v. 8 U.Chi.L.Rev. 41; Cavers, Case, Blum, Act, Hutcheson 36 Ill.L.Rev. Labor v. Sherman 8 U. Clayton 246; Schmidt, Application Labor vived, Act Provisions Re Chi.L.Rev. 770; Lippert, 29 Geo.L.J. Juris the Antitrust Era, Laws Labor—A New Dispute ; Newman, dictional Between Labor Unions 19 Tex.L.Rev. 256 Restraint of Immunity Disputes Restraint Trade: Labor and the Trade — Sherman Laws, Act, 399; Tunks, Prosecution Under 4 U. 29 Anti-Trust Calif.L.Rev. A New Apex 209; Carey, Unionism, Det.L. J. Federal Charter for Trade Cases, 915; 909; Gregory, Hutcheson Minn.L.Rev. Col.L.Rev. Union Peacetime Teller, Bargaining, in Labor Federal Intervention Dis Restraints in Collective 10 U. putes Bargaining 177; Comment, Collective Chi.L.Rev. Labor Activi —the Case, Hutcheson 40 Mich.L.Rev. ties under the Sherman 35 Ill.L.Rev. Stockham, Case, The Hutcheson 26 Wash. 424. 375; Notes, U.L.Q. 27 Vn.L.Rev. F.Supp. employees D.C.N.D.Ill., working Carrozzo, conditions of v. stations, record particularly instructive radio The latter case shows, it in but because, opinion below was interested in its providing work for as the members; agains conspiracy as and it enforced its in a charge volved a
t
national,
prevent
local,
purely
not
market.5
unions and their members
labor
Chicago
area
in the
use
sale and
cases,
These
as well as earlier
or in the
mixers)
machinery (truck
saving
ones,6
closely
are too
similar to the case
employment
to force
alternative
bar,
beyond
going
indeed
before
of workmen
same number
aspects,
permit
adjudication
broad
Further,
the de
machinery.
use of
illegality here
injunction
and the
based
having ob
charged
fendants were
upon it to stand. That
labor dis
this
.
agreements”
“working
tained
pute‘within
statutory
definition follows
Finally
effect.
this
Chicago contractors
precedents.
from the
dispute
If a
v.
United States
controlling case of
conditions of work between a union and
Musicians, 318
Federation of
American
employers still remains a
dispute
1120, L.Ed.
741, 63 S.Ct.
U.S.
persons
third
interested therein or in
D.C.N.D.
dismissal
affirmed
jured thereby,
complexion
hardly
an action
Ill.,
F.Supp.
changed by
only
possibly
settlement —
States
United
brought
armistice,
treaty
not a
origi
tbe
—between
boycott by musicians
nation-wide
against a
nal
persons
which hurts the third
sup
music
recorded
more than
original
did the
controversy.
services;
this
it did
planting their
v. International Hod Car
Act
Norris-LaGuardia
citation
.on
riers’, etc., Council, supra; Milk Wagon
Drivers’ Union v. Lake Valley Farm
Milk
Alliance
Negro
cases, supra.
In
Union
Drivers’
Wagon
Inc.,
Products,
supra, 311
U.S.
page
“virtually all
comprised
the union
page 126,
S.Ct. at