252 F. 722 | 2d Cir. | 1918
Lead Opinion
(after stating tlie facts as above). I am unable to concur with my Associates in the conclusion at which they have arrived, and which will appear in the opinion of Judge HOUGH, which follows. I shall, however, state the facts involved and my opinion as to the law applicable to the facts as I understand them.
'¡'he complainant is a manufacturer of printing presses. It employs 250 machinists in its factories in Michigan, and some 50 additional employes as traveling salesmen and as expert machinists in supervising the work of installing the presses in the places of business of the various purchasers of its machines. In carrying on its business it has always operated an “open” shop, without discrimination against any person employed in its factories on the ground that he was or was not a, member of any labor union. It has observed the same policy in the employment of persons to supervise the installation of its presses. The complainant’s presses are sold throughout the United vStates and in foreign countries. The presses which it builds are newspaper presses only, and they vary in size and capacity from a press that weighs 10,000 pounds to one that weighs 10 times that. A single freight car suffices to carry the smaller presses, while four cars are needed to transport the largest. Its presses adapted to metropolitan uses are capable of producing 30,000 complete papers an hour.
The testimony is that complainant has three competitors; R. Hoe & Co., of New York; the Goss Printing Press Company, of Chicago; and Walter Scott & Co., of Plainfield, N. J. — each of which operates a “closed” shop. The IToe Company plant is understood to be the largest of these, and 10 times the size of that of the complainant’s; the Goss Company’s is about twice that of the complainant’s, while the Scott Company’s is more nearly equal to complainant’s, although somewhat larger. There are no other builders of newspaper presses in the country, although there are builders of job presses of some kinds upon which small country newspapers are sometimes printed. The installation of the presses is a difficult undertaking. The installation of a press of the largest type requires the labor of five men
The International Association of Machinists, with which defendants are connected, is an, unincorporated association of journeymen machinists, with a membership of over 60,000. It is not a party to this suit, and no relief is asked as against it. The defendants Deering and Bramley are sued individually and as business agents of District No. 15 of the International Association. District No. 15 is one of the subdivisions of the International Association. It is a voluntary organization, and embraces Local Lodges Nos. 328, 402, 406, 429, 434, and 721, each of which is a subdivision thereof, and each has its principal office in the city of New York, and each has jurisdiction over a certain group of the members of the International Association in that city. Neyland is sued individually and as business agent of Local Lodge No. 328, which is, as has been stated, in the city of New York. The defendant ‘Nielson is sued individually and as business agent of the Riggers’ Protective Union. That organization is also unincorporated, and it is an association of workingmen engaged in handling, hauling, and erecting machinery, and it has jurisdiction over all union men in New York City engaged in that business. The defendant Keppler, sued individually and as vice president of the International Association of Machinists, does not appear to have been served, and has interposed no answer. He is therefore not to be considered.
The important fact is to be noted that no one of the defendants is or ever was an employé of the complainant, and that no local lodge or union or officer or member of any union, in the place where the complainant manufactures its presses, has been made a party defendant herein. The patties defendant are residents and citizens of New York, except the defendant Bramley, who is a resident and inhabitant of New Jersey, and the unions with which they are connected are local to New York and vicinity.
It is the duty of courts to protect the life, liberty, and property of all within their jurisdiction. Courts are not respecters of persons, and the rights of employers and those of employés are entitled to equal protection. Liberty of' contract is a constitutional right secured to employers and employés alike. It consists in the ability at will to make or abstain from making a binding obligation. The employé has the right to'choose his employer. The employer has the like right to choose his employé. The defendants insist that all they have done has been to exercise the. right, which they claim for the organizations which they represent, to say that their members shall not work for
In England some years ago, in Skinner v. Kitch, 10 Cox, C. C. 493, Blackburn, J., said that:
“A greater piece of tyranny than to Insist that a master shall have his work stox>ped unless he consent to punish men who are his journeymen for refusing to belong to a union cannot well bo.”
In the above case an indictment and conviction were sustained for threatening that nearly all the employer’s workmen would quit work unless he dismissed a nonunion employé or compelled him to join the union.
The question came before the Supreme Court of the United States In 1917 in Hitchman Coal & Coke Company v. Mitchell, 245 U. S. 229, 38 Sup. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497. As the jurisdiction oí the District Court, from which the case came, was based solely upon diversity of citizenship, the decision was readied upon the common law of the state of West Virginia; there being no statute governing the matter. The company brought suit to enjoin the defendants, who were sued as individuals and as officers of the United Mine Workers of America and of its local branches, which had jurisdiction over the territory within which the plaintiff’s mine was situated. The District Court granted an injunction as prayed. 202 Fed. 512 (1912). The Circuit Court of Appeals reversed the case and dismissed the bill. 214 Fed. 685, 131 C. C. A. 425 (1914). And the Supreme Court reversed the Circuit Court of Appeals, and affirmed the decree of the District Court, with slight modifications. As modi - fied, the defendants were restrained from “interfering or attempting to interfere with plaintiff’s employés for the purpose of unionizing plaintiff’s mine without its consent, by representing or causing to be represented to any of plaintiff’s employés or to any person who might become an employé of plaintiff, that such person will suffer or is likely to suffer some loss or trouble in continuing in or in entering the employment of plaintiff, by reason of plaintiff not recognizing the union, or because plaintiff runs a nonunion mine,” as well as certain other acts which need not here be specified. In the above case the employés do not appear to have been employed for any definite period of time, but in applying for work they were required, as a condition o E obtaining employment, to agree that they would not, while in the service of the company, be a member of the union, and if they joined the union that they would withdraw from the company’s employ.
The case of Eagle Glass & Manufacturing Company v. Rowe, 245 U. S. 275, 38 Sup. Ct. 80, 62 L. Ed. 286, decided at the same time the Hitchman Case was, involved very much the same question, and the court reversed the Circuit Court of Appeals, which held that no injunction should issue, and dismissed the bill. The Supreme Court held its actibn erroneous:
“(a) Because plaintiff was entitled by law to bo protected from interference witli the good will of its employés, although they were at liberty to*730 quit the employment at pleasure; (b) because the case involved no question of the rights of employés, and their right to quit the employment gave to defendants no right to instigate a strike; and (c) because the methods pursued by the defendants were not lawful methods.”
The above decisions very much restrict the right of labor unions to interfere with employers of labor in the management of their business ; and this court must follow the law as laid down by the court in all cases to which it is applicable. But the decision goes upon the common law of West Virginia; there being no statute affecting it and no authoritative decision of the courts of that state.
In Berry v. Donovan (1905) 188 Mass. 353, 74 N. E. 603, 5 L. R. A. (N. S.) 899, 108 Am. St. Rep. 499, 3 Ann. Cas. 738, an agreement had been entered into by shoe manufacturers with the Boot and Shoe Workers’ Union, a national organization, to hire as shoe workers only members of that organization. It was also agreed that the manufacturers would not retain any shoe worker in their employment after receiving notice from the union that a worker was objectionable to it, either on account of being in arrears for dues, or disobedience of union rules, or from any other cause. It seems that after this agreement had been made the union demanded that a certain employé, who had been working for the manufacturers for several years prior to this agreement, and who was not a member of the union and refused
“If such an object were treated as legitimate, and allowed to be pursued to its complete accomplishment, every employé would be forced into membership in a union, and the unions, by a combination of those in different trades and occupations, would have complete and absolute control of all the industries of the country. Employers would be forced to yield to all their demands, or give up business. The attainment of such an object in the struggle with employers would not be competition, but monopoly. A monopoly, controlling anything which the world must have, is fatal to prosperity and progress. In matters of this kind the law does not tolerate monopolies. The attempt to force all laborers to combine in unions is against the policy of the law, because it aims at monopoly.”
The court was unanimous in its opinion. See, also, Plant Martell v. White, 185 Mass. 255, 69 N. E. 1085, 64 L. R. A. 260, 102 Am. St. Rep. 341.
In Connors v. Connolly (1913) 86 Conn. 641, 86 Atl. 600, 45 L. R. A. (N. S.) 564, it was held in a carefully considered case that a contract entered into by the United Hatters of North America and substantially all the manufacturers of hats in Danbury, to the effect that union workmen only should thereafter be employed, is ’contrary to public policy. The tendency of such an agreement, the court said, is to expose a nonunion workman to the tyranny of the will of others,
A contrary view of the matter was taken in Kemp v. Division No. 241 (1912) 255 Ill. 213, 226, 227, 99 N. E. 389, 394 (Ann. Cas. 1913D, 347), where it was said in an opinion written by Cooke, J.:
“If it is proper for workmen to organize themselves into sueli combinations as labor unions, it must necessarily follow that it is proper for them to adopt any proper means to preserve that organization. If the securing of the closed, shop is deemed by the members oí a. labor union of the utmost importance, and necessary for the preservation of their organization, through which alone they have been enabled to secure better wages and better working conditions, and if to secure that is ihe primary object of the threat to tiirike, even though in the successful prosecution of the object of the combination injury may result incidentally to nonunion men through the loss of their positions, that object does not become unlawful.”
The opinion of Judge Cooke was concurred in by two other members of the court. Three judges dissented. The sole purpose of the strike in that case was to insure the employment of union men, and to compel the discharge of certain employes who had withdrawn from the union. The conclusion reached by Judge Cooke became the decision of the court by its acceptance bjr Judge Carter, who cast the deciding vote and wrote a separate opinion, in which he stated that he concurred in the final conclusion, but not in all the reasoning. He appears, however, to have thought that the threatened injury to the complainants was justifiable as an act of competition, and that, even if the purpose of the strike were unlawful, so that defendants would he liable in a civil action if complainants were discharged, still an injunction should not issue, as that would he in effect to compel them to continue in their employer’s service unwillingly. The dissenting judges stated that the result reached was contrary to the law of Illinois as declared in repeated decisions covering a period oí 14 years, citing Doremus v. Hennessy, 176 Ill. 608, 52 N. E. 924, 54 N. E. 524, 43 L. R. A. 797, 802, 68 Am. St. Rep. 203, and London Guarantee & Accident Co. v. Horn, 206 Ill. 493, 69 N. E. 526, 99 Am. St. Rep. 185. They held that the right of a labor organization to enforce a “closed” shop for the mere purpose of strengthening the organization in future contests with the employer is not of the same character as, or equal to, the right of the individual to dispose of his labor at his own will.
In Gray v. Building Trades Council (1903) 91 Minn. 171, 97 N. W. 663, 63 L. R. A. 753, 103 Am. St. Rep. 477, the whole controversy rested on the effort of defendants to compel the plaintiffs to employ union labor only. The question was whether the efforts made in that direction were legitimate to the doctrine that members of labor unions
In Bossert v. Dhuy (1917) 221 N. Y. 342, 355, 117 N. E. 532, the court referring to National Protective Association v. Cumming, 53 App. Div. 227, 230, 65 N. Y. Supp. 946, declared that it was clearly established in that case that workingmen may organize for purposes deemed beneficial to themselves, and in that organized capacity may determine that their members shall not work with nonmembers, or upon specified work or kinds of work. It declared that:
“An association of individuals may determine that its members shall not worfc for specified employers of labor. The question ever is as to its purpose in reaching such determination. If the determination is reached in good faith, for the purpose of bettering the condition of its members, and not through malice or otherwise to injure an employer, the fact that such action may result in incidental injury to' the employer, does not constitute a justification for issuing an injunction against enforcing such action.”
The court in the above case passed upon the rights of labor unions under the common law of the state of New York, which is the state in which most of the acts complained of were done, and where the defendants, except Bramley,'reside. It decided that it was not illegal for the United Brotherhood of Carpenters to refuse to allow its members to work with nonunion men, and that it was not illegal for it to refuse to allow its members to work in the erection of materials furnished by a nonunion shop. A case is only authority for what it actually decides, and it has been frequently said that every decision is to be read as applicable to- the particular facts proved, since the generality of the language of an opinion is not intended as an exposition of the whole law, but is to be understood as governed by the particular facts of the case which is decided. In the case before the New York court it was passing upon a general rule applicable to all nonunion mills, and to all nonunion-made materials. And the court took pains to point out (221 N. Y. 355, 117 N. E. 584) that a general rule of this sort “differs entirely from a general boycott of a particular dealer or manufacturer with a malicious intent and purpose to destroy the good will' or business of such dealer or manufacturer."
The question whether a labor organization can call those of its members out on strike who work for A. because he maintains a closed shop, while permitting other members to work for B., C., and D., who also maintain closed shops in the same industry, is not the same question as that which arises when it calls out all its members who work for A., B., C., and D., and for any one else who maintains a closed shop. As we understand the New York decision, the court dealt in that case with labor organizations which made no discrimination, but applied its rules to all alike. The members were not to work for any one who maintained an open shop, and they were not to work upon any material which came out of any open shop. In the case now in this
“I know that the Machinists’ Union was endeavoring to have this done in all the plants in the country where our industry was involved, and that they wore asking the same from us as they were asking from the Hoe Company, the Goss Company and the other printing press manufacturers, so that we were not selected from the printing trades industry for these demands or the attempts to enforce them, and I understood that the Goss Company, the Hoe Company, and the Scott Company, at Plainfield, had all granted these conditions, so that the last one in which any drastic efforts were made to create the eight-hour day and establish a minimum scale was our concern.”
It may be conceded that the defendants were endeavoring to establish uniform conditions in the industry in which the complainant was engaged. It follows, therefore, that under the New York law, as expounded by the New York Court of Appeals, the defendants were within their rights, unless there are other circumstances which make the rule laid down in that case inapplicable.
It is said the defendants are not engaged in a peaceful strike, but in an alleged boycott, and that their conduct seeks to coerce complainant’s customers, who are in turn to coerce the complainant into unionizing its business against its will.
A strike and a boycott are two qidte distinct matters. A strike is an effort on the part of empioyés to obtain higher wages, or shorter hours, or a closed shop by stopping work at. a preconcerted time. It is an attack made by employes upon their employer, by labor upon capital. But a boycott made by union labor against a product manufactured by nonunion labor is an attack upon both labor and capital. It is union empioyés on the one side and nonunion empioyés and the open shop era plover on the other. The principles applicable to a boycott are not applicable to a strike. The strike in Battle Creek may be lawful, while the boycott of the product in New York may be unlawful. The use of the boycott is very generally held to be the use of unlawful means, and it is not material, where it is resorted to, whether the end which is sought — in this case the unionizing of the shops in Michigan — is lawful or not.
A boycott is a combination formed to injure the trade, or business., or occupation of another, by preventing other persons from doing busi
“If the things done, or the words spoken, are such that they will excite fear or a reasonable apprehension of damage, and so influence those for whom designed as to prevent them from freely doing what they desire, and the law permits, they may be restrained, and the courts will look beyond the mere letter of the act or word into its spirit or intent.”
And see State v. Stockford, 77 Conn. 227, 58 Atl. 769, 107 Am. St. Rep. 28; Purvis v. United Brotherhood of Carpenters and Joiners, 214 Pa. 348, 63 Atl. 585, 12 L. R. A. (N. S.) 642, 112 Am. St. Rep. 757, 6 Ann. Cas. 275; State v. Stewart, 59 Vt. 273, 9 Atl. 559, 59 Am. Rep. 710; Wilson v. Hey, 232 Ill. 389, 83 N. E. 928, 16 L. R. A. (N. S.) 85, 122 Am. St. Rep. 119, 13 Ann. Cas. 82; Beck v. Railway Teamsters’ Protective Union, 118 Mich. 497, 77 N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421.
In Quinn v. Leathem, [1901] A. C. 495, Lord Lindley, in the Plouse of Lords, declared that a threat to call men out given by a trade union official to an employer of men belonging to the union and willing to work with him “is a form of coercion, intimidation, molestation, or annoyance to them and to him very difficult to resist.” And if the defendants are engaged in an unlawful conspiracy to destroy the complainant’s business, it is as though they were in a conspiracy to destroy the complainant’s presses, for its business is as much property, and as much entitled to protection, as are the presses. In Martin’s Modern Law of Labor Unions, § 84, the law is stated as follows:
“A person’s business, aside from the money, chattels, plant, or other tangible property employed therein, is in every sense of the word property, and as such is, if lawful, entitled to protection from all unlawful interference, whether the object of that interference be to compel customers or prospective customers to refrain from patronizing him, or persons dealing in material or products necessary to his business to refrain from furnishing him therewith, or to restrain workmen from furnishing him with the labor necessary to such business.”
It appears that certain persons officially connected with the International Association of Machinists, one of the defendants herein, called at complainant’s office and stated that they noticed that complainant was ready to ship a press to the New York World, and that unless it unionized its factory at Battle Creek they would see that the press never turned a wheel in New York City, and that no teamster in New York would be allowed to handle or have it. The press was delivered at the office of the World after dark to avoid trouble, and the defendant Keppler on the same night called on complainant’s president in New York and stated that all the men employed on it would be called out on strike that night and would not return to work the following morning. As a result of argument between the two men that threat was withdrawn, and the work of installation was allowed to proceed.-
In December, 1913, the Italian Herald, of New York City, purchased a press of complainant. The defendant Deering arrived at the office of that paper before the press arrived, and informed those in charge of the paper that they had no right to purchase a press from the •
“You put one over on me this time, but you will never do it again, and I am going to make it more and more difficult for the Duplex Printing Press Company to make installations, and will interfere with their work in every way possible. I am very sorry tor the salesmen; it is going to be snore difficult for the salesmen to get orders for Duplex presses.”
In February, 1914, the Italian Herald put in another of complainant’s presses, and when the press was being carted to the Herald’s office Deering instructed the truckman to quit work, and the delivery of the press was stopped. Later, when the press was delivered and was being installed, Deering informed two of the workmen that they had belter quit or he would take their cards away. When they refused, he walked out, saying, “Very well, my laddie.” On the following day, when these two men were on their way home from their work, they were struck from behind and knocked senseless on the sidewalk about a block away from the building in which they had been at work. One of the men testified that “two or three men assaulted us, clubbed us, kicked us, and left us unconscious on the sidewalk.” They did not know the men who assaulted them, and it does not appear that they were connected with the defendants; but, as the motive does not appear to have been robbery, the inference that the assault grew out of the pending difficulties is perhaps not unnatural.
The New York Law Journal purchased one of complainant’s presses, and Deering at once informed those in charge of that publication that they would not be able to have the press hauled to their plant. When the press was delivered at the Journal’s place of publication, and after several crates had been carried into the building, Deering made his appearance upon the scene and said, “Here, I told you fellows not to do this; you know you should not do it”; and he directed the truck-men “to quit the job,” which they did. He also informed the Journal people:
"Tbat lie was going to do all possible lo prevent the wheels of the Daw Journal press revolving. If he could help it, the press would never bo started up in the city of New York. He said that the unions had unlimited financial means with which they could fight the Duplex Printing Press Company,*736 and which, they were to use for that purpose; that eventually the Duplex Company would have to give in to the union, as other manufacturers had given in to the union.”
The complainant sold a press to the Bolletino della Sera, at New York City, and the work of erection was supervised by one Young. Deering told him not to erect the machinery and after he started to unload it ordered the men that were working with him to quit work, which they did. They stopped at Deering’s direction, when they were unboxing and cleaning ¿he machinery and, carrying it into the building. A half a load of machinery was left on the sidewalk, and had to be loaded on the dray again and taken away. A day or two later Deering again met Young and stated he would do everything he could to prevent that machinery going into the Bolletino della Sera, and that he had notified the repair shops in that locality not to do any repairing-on that machinery. He also said that he had heard of one or two breakdowns on Duplex machinery lately, and that there would be more the first of the year, as they were going to take aggressive action against the Duplex Company; that there was a prospective purchaser for Duplex machines in the Bronx, but that he had put a stop to that deal.
The complainant sold a press to Nicolletti Bros, in New York City. Deering asked Young, who was to supervise its installation, if he sided with the union or the Duplex Company, and Young, who was a member of the Machinists’ Union, replied that he sided with the Duplex Company. Deering told Young he did not have to look after the installation of that machine, and that he could send word to the complainant that he was afraid to install it. Young replied that this would be untrue, but Deering stated that he “had good reasons to be afraid to look after the Duplex Printing Press Company’s work.” Deering stated to Young that he would take his card away from him and would blacklist him as a scab all over the East. He told Young as a member of the union not to work upon the machinery of the Duplex Company. He followed Young down to the office of the trucking company, and directed the truckman “not to haul the machinery”; that “it would make trouble” for him if he did. The truckman accordingly refused, because Deering “would pull the men off the job.” One of the men was told that he was to stay away from the job, because something was going to happen, and that if they got hold of him that he could prove an alibi.
The Plainfield Press, of Plainfield, N. J., purchased a press from the complainant, and had so much trouble in getting it installed that it declined to consider making further purchases from complainant, and on December 3, 1915, it wrote complainant as follows:
“You will perhaps remember that we bad considerable difficulty, and not a few subscriptions stopped, when we put the Flatbed Duplex in, *• * * and we do not care to encounter anything of that kind again. There are a large number of union machinists in this city, and the union is recognized by practically every shop, so that we do not care to run any risks again.”
The complainant had a contract with the National Exposition Company of New York City, which entitled it to place its presses in an
“Anyhow you will have to hire our men, whether they can or not, or else there will not be anything else unloaded, or there will not bo any machinery put up.”
He informed the president of the Exposition that the complainant “could not exhibit and he would not allow them.” The testimony of the president of the Exposition is:
“I said, ‘Do you realize that in doing it [excluding the complainant] you art) apt to ruin my business?’ And they said, ‘Tes; but they could not help it, and the only way out of it was to cancel the Duplex contract.’ I said I could uot do that, as I had a legal contract, and Deering said, ‘You have got to cancel it, or else there will be a strike on this show, if they try to put that exhibit in.’ ”
The Exposition was to receive $675 under its contract with the complainant, which it did not want to lose, and Deering was asked, if the contract was canceled, whether the Machinists’ Union would make good what the Exposition Company lost, or would stand any damages it might sustain if sued for a breach of contract. The answer was that the Machinists’ Union would do nothing.
The Charles Britton Trucking Company was usually employed to haul heavy presses and machinery in New York, and the head of the company testified that he was informed by defendant Deering that the company was not to haul any Duplex presses, and if it did there would be trouble. When the company undertook to haul the presses, Deering appeared and called the men off the job.
The testimony shows, not simply that union men have been instructed not to haul or install the complainant’s machines as being the product of an unfair shop, but that coercion has been resorted to, by threats of taking their cards away (a very serious matter for a union man), and by telling them that they had good reasons to he afraid to look after the work of the Duplex Printing Press, and that they would blacklist the men as scabs and make trouble for them; and men under most suspicious circumstances have been assaulted and felled unconscious to the ground. They have intimidated complainant’s customers by threats to call out men engaged in other trades. The members of different building trade unions would be called off on strike and compelled to quit work on a building not yet completed, and in which it was intended to install a press matin factored by complainant, so that the owner of the building feared the work on the building would be held up two or three weeks. Pickets were employed. No repairs were to be made on machines installed. Threats of putting the machines out of order were likewise indulged in by defendants. The defendants in at least one instance sought to obtain the cancellation of one of complainant’s contracts; and they have sought by direct and indirect
In Quinn v. Leathem, [1901] A. C. 495, a trade union notified Leathem that they would not work for him unless he unionized his shop. This he refused to do, and the union thereupon notified one of his customers that they would not work for the latter if they bought Leathem’s goods. Thereupon the customer ceased to buy from Reathem, who brought suit against members of the union. It was held by the House of Rords that Reathem was entitled to recover. The Earl of Halsbury in his opinion said:
“If upon these facts, so found, the'plaintiff could have no remedy against those who had thus injured him, it could hardly be said that our jurisprudence was that of a civilized community.”
The case shows that the injury inflicted upon the complainant was without any justification whatever. And Ro-rd Macnaghten in the same case sajd that the defendants conspired to do harm to Munce (customer) in order to compel him to do harm to Reathem, and so enable them to wreak their vengeance on Reathem’s servants, who were not members of the union. So in the case at bar-defendants propose to injure complainant’s customers in New York, in the hope that they will bring pressure to bear upon the complainant in Michigan, to the end that it will discharge all nonunion workmen from its factories in that state.
In Hopkins v. Oxley Stave Co. (1897) 83 Fed. 912, 28 C. C. A. 99, the Circuit Court of Appeals for the Eighth Circuit said:
“The right of an individual to carry on his business- as be sees St, and to use such implements or processes of manufacture as be desires to use, provided be follows a lawful avocation, and conducts it in a lawful manner, is entitled to as much consideration -as bis other personal rights; and the law should afford protection against the efforts of powerful combinations to rob him of that right, and coerce his will by intimidating his customers and destroying his patronage.”
In Iron Molders’ Union v. Allis-Chalmers Co. (1908) 166 Fed. 45, 91 C. C. A. 631, 20 L. R. A. (N. S.) 315, the Circuit Court of Appeals in the Seventh Circuit declared that striking workmen may not coerce third persons, not directly concerned in the strike, in refusing to- buy or use the products of their late employer, any more than he may lawfully coerce third persons into refusing them shelter or food, but the only means of injuring each other which are lawful in such contest are those that operate directly and immediately upon the control and supply of work to be done and of labor to do it; and the court said that attempts to injure each other by coercing members of society who are not directly concerned in the pending controversy to make raids in the rear cannot be tolerated by organized society, for the direct; the primary, attack is upon society itself. In the case at bar the immediate injury is to the New York purchasers of complainant’s presses, and the refusal to allow union labor to be employed in their installation is not because of any dispute with the New York owners of the presses, or to
In American Federation of Labor v. Buck’s Stove & Range Co. (1909) 33 App. D. C. 83, 32 L. R. A. (N. S.) 748, an injunction was granted to restrain a conspiracy which threatened damage to persons having business dealings with the complainant, and to restrain threats which tended to prevent others from freely transacting business with it. The principle upon which the decision went was that interference by a labor union with another’s patronage is not justified by the fact that the remote object sought is a benefit to its own members. And an appeal to the Supreme Court of the United States was dismissed in 219 U. S. 581, 31 Sup. Ct. 472, 55 L. Ed. 345 (1911), on the ground that the question involved had become moot because of a settlement between the parties. In the opinion of Mr. Justice Robb of the Court of Appeals he said:
“It matters not that the remote object of the combination was to benefit such members of the local unions as should be employed by complainant, because the law looks to the Immediate, and not to the incidental, object of the combination. If the immediate object is unlawful, the combination is unlawful. If the immediate object is lawful, as in the case of legitimate trade competition, including strikes, the combination, generally speaking, is unlawful.”
In Pickett v. Walsh (1906) 192 Mass. 572, 78 N. E. 753, 6 L. R. A. (N. S.) 1067, 116 Am. St. Rep. 272, 7 Ann. Cas. 638, it was said that a refusal to work for A. with whom the strikers have no dispute, because A. works for B. with whom the strikers have a dispute, for the purpose of forcing A. to force B. to yield to the strikers’ demands is without legal justification and may be enjoined.
In Burnham v. Dowd (1914) 217 Mass. 351, 104 N. E. 841, 51 L. R. A. (N. S.) 778, the doctrine of Pickett v. Walsh, supra, was adhered to. and the plaintiffs were held entitled to an injunction restraining defendants from threatening to strike or to leave the work of any owner, builder, or contractor by reason of such persons having purchased masons’ supplies from the plaintiffs or having dealt otherwise with the plaintiffs, and from ordering or inducing any strike against an owner, builder, or contractor for such reason. It was in intention and effect a boycott.
In Purvis v. United Brotherhood of Carpenters and Joiners (1906) 214 Pa. 348, 63 Atl. 585, 12 L. R. A. (N. S.) 642, 112 Am. St. Rep. 757, 6 Ann. Cas. 275, the purpose of the defendants was to compel the plaintiffs to unionize their mill by working injury to their business. The right of the plaintiffs to an injunction was upheld, and defendants were restrained from representing to the plaintiff’s customers that they were likely to suffer loss or trouble in their business for purchasing building materials from the plaintiffs, and—
“from attempting by any scheme, combination, or conspiracy, among themselves or with others, to annoy, hinder, or interfere with or prevent any person or persons or corporation from purchasing building materials, or malting contracts for the purchase of the same, from the plaintiffs, and from*740 any and all acts * * » which, * * * by putting or attempting to put any person or persons or corporation in fear of loss or trouble, will tend, to binder, impede, or obstruct the plaintiffs from making sale, or making contracts for sale, of building materials,” etc.
In Door Co. v. Fuelle (1908) 215 Mo. 421, 114 S. W. 997, 22 L. R. A. (N. S.) 607, 128 Am. St. Rep. 492, it was held that a combination to injure or destroy the trade, business, or occupation of another by threatening or producing injury to the trade, occupation, or business of those who have business relations with him is an unlawful conspiracy which can be restrained by injunction. The court also held that combinations between the officers and members of a labor union, or between such union and its executive officers and kindred associations, having for its direct object the immediate effect to injure and damage the business of persons at whom they are directed, and thereby to compel them to discharge their nonunion employés and replace them with members of the union, and thereby incidentally and indirectly to benefit the parties to the combination is an unlawful conspiracy.
In concluding this phase of the subject, it appears that, although the defendants were engaged in an undertaking which the law of New York recognizes as legitimate, the unionization of complainant’s factories, they have resorted to measures in the accomplishment of that end some of which the law does not countenance. The law does not permit either party to a labor dispute to use force, violence, threats of force, intimidation, or coercion; and words or acts which are calculated to cause one to fear injury to his person or to his business are equivalent to threats. Moreover, the law does not permit any attempt to be made to cancel contracts which an employer has made with third persons.
There is, as we have seen, evidence of threats to call out men in the building trades from work on a building under construction for a customer of the complainant, because a press made by the complainant was about to be installed in the building. A strike of that kind is a sympathetic strike; that is, one in which the striking employés have no demands or grievances of their own, but strike for the purpose of indirectly aiding others, having no direct relation to the advancement of the interests of the strikers, and courts have held that such a strike is an unjustifiable invasion of the rights of the employer. Labatt on Master and Servant, vol. 7, p. 8346 (Ed. 1913).
But there is, in conclusion, another phase of the matter, and one which is not the least important, which remains to be considered. The complainant is engaged, as we have seen, in the business of manufacturing printing presses in its factories in the state of Michigan. But it is also engaged in interstate commerce, as over 80 per cent, of its presses are sold to customers outside the state. The defendants, not being able to prevent the complainant from manufacturing its presses in its factories in Michigan by nonunion workers, who are contented with their hours and their wages, have sought, it is charged, to restrain its trade and commerce by making its products nonsalable in other states by the means already set forth in this opinion. The action of defendants is claimed to be contrary to the anti-trust legislation of Congress.
In Loewe v. Lawlor (1908) 208 U. S. 274, 28 Sup. Ct. 301, 52 L. Ed. 488, 13 Ann. Cas. 815, the defendants had sought to unionize the plain-till’s factory by first instituting a strike to prevent production, and then by driving his nonunion products out of interstate commerce through a boycott which rendered those products unsalable in the different states. The ultimate object was, in that case as in this, to unionize the plaintiff’s factory; but the court held illegal any combination whatever to secure action “which essentially obstructs the free flow of commerce between states, or restricts in that regard the liberty of a trader to engage in business,” and it held that a combination of labor organizations and the members thereof to compel a manufacturer whose goods are sold in other states to unionize his shops, and, on his refusal to do so, to boycott his goods and prevent their sale in states other than his own until such time as the resulting damage forced him, to comply with their demands, was a combination in restraint of interstate trade or commerce within the meaning of the Sherman Act. The case was again before the court in Lawlor v. Loewe (1914) 235 U. S. 522, 35 Sup. Ct. 170, 59 L. Ed. 316, and it was again affirmed that the conduct of the labor organization was within the prohibition of the Anti-Trust Act of 1890. In both cases the decision of the court was unanimous; Chief Justice Fuller writing the opinion in the first case, and Mr. Justice Holmes writing in llie second case.
In Eastern States Lumber Association v. United States (1914) 234 U. S. 600, 34 Sup. Ct. 951, 58 L. Ed. 1490, L. R. A. 1915A, 788, the court held that the circulation of a so-called official report among members of an association of retail dealers calling attention to actions of listed wholesale dealers in selling direct to consumers tended to prevent members of the association from dealing with the listed dealers referred to in the report, and to directly and unreasonably restrain trade by preventing it with such listed dealers, and was within the prohibitions of the Sherman Law.
In Paine Lumber Co. v. Neal (1917) 244 U. S. 459, 37 Sup. Ct. 718, 61 L. Ed. 1256, an injunction was asked to enjoin what was alleged to be a conspiracy to restrain interstate commerce. The bill was brought by certain corporations engaged in the manufacture of doors, sash, etc., in open shops, against the representatives of the United Brotherhood of Carpenters and Joiners of America and others. The unions had entered into an agreement not to erect material made by nonunion mechanics, and because of the refusal of union men to work with nonunion men, and because employers quite generally found it to their interest to employ union men, it became largely unpracticable to erect carpenter work except by union lajior. An injunction was asked to prevent the defendants from conspiring to refuse to work upon mate
But I am unable to see any sound distinction between what was done in Loewe v. Lawlor and what was done in the instant case. In Loewe v. Lawlor circulars were sent to dealers for the purpose of intimidating and coercing them into not purchasing from the complainant. In the instant case the plaintiff’s customers do not seem to have been to any great extent, if at all, circularized; but organized labor was informed by letters and resolutions that complainant’s product was not to be installed and that members of the unions were to use their influence to prevent the placing of orders for the purchase of presses manufactured by it. All organized labor throughout the country was acquainted with the dispute, and instructed not to install the machinery “and if possible influence your employer not to have such machinery installed by unfair men, or that they will not let any more contracts to the Duplex Printing Press Company until organized labor is fairly dealt by”; and the International Association of Machinists’ Monthly Journal, which circulated through all the local lodges and on news stands, contained full information as to the attitude of labor toward the complainant and the installation of its presses. The method pursued was intended to prevent the sale of the complainant’s product.
In Loewe v. Lawlor, supra, and in Eastern States Lumber Association v. United States, supra, and in Gompers v. Buck’s Stove & Range Co. (1911) 221 U. S. 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874, the publication and use of letters, circulars, and printed matter were the means resorted to in the attempt to restrain commerce. In the case last cited it is declared that the protective powers of the court extend to every device whereby property is irreparably damaged or interstate commerce restrained; otherwise the law would be made impotent.
In my opinion the things done and threatened to be done by the defendants tend to the destruction of the complainant’s interstate trade. Whether an injunction can issue .depends upon the construction to be placed upon what is known as the Clayton Act, which was passed by
“That any person, firm, corporation, or association shall be entitled to sue for, and have injunctive relief, in any court of the United States having jurisdiction over the parties against threatened loss or damage by a violation of the Anti-Trust Laws,” etc. 8 U. S. Compiled Statutes Ann. 1916, § 88350). p. 9697.
The defendants, however, claim that, while the act authorizes a “person, firm, corporation or association” to sue for injunctive relief, the right to do so is nevertheless restricted by other provisions of the statute, and that it is inapplicable to the facts of this case. The defendants base this claim on the provision contained in section 6 of the act which is found in the margin.
“Neither in tile * * * section, nor in the committee reports, is there any Indication of a purpose to render lawful or legitimate anything that before the act was unlawful, whether In the objects of such an organization or its members or in the measures adopted for accomplishing them.”
Tt is true this language was used in a dissenting opinion of three of the justices. But the majority opinion indicates that the majority of the justices must have entertained the same opinion, for Mr. Justice Holmes in his opinion states that he is a minority of the court in thinking that upon the facts involved in that case the Clayton Act established a policy inconsistent with the granting of an injunction. The injunction simply was withheld because at the time the decree was entered a private person or corporation could not sue for injunctive relief in that class of cases.
In the same connection attention may also be called to Stephens v. Ohio State Telephone Co. (D. C. 1917) 240 Fed. 759, 771, in which
“The statute but enacts the position which courts have universally taken; there -is nothing new in it,” etc.
It is my opinion that, if the acts complained of in this case would not have been lawful prior to the passage of the Clayton Act, they are not lawful now. The first paragraph of section 20 of the Clayton Act is found in the margin.
The achievement of the end sought by these defendants is not through an appeal to the purchasing public not to buy nonunion-made machines; and the defendants have not confined themselves to withdrawing union men from complainant’s factories. The course which has been pursued has made the complainant’s presses “a contraband of commerce,” “a kind of commercial leper.” The plan has been to make complainant’s machines unmarketable by preventing their being hauled, installed, operated, or repaired, or even exhibited to the public. If this can he done under the laws of the United States, then it seems that no manufacturer of printing presses in this country can maintain an “open” shop, and no machinist engaged in the manufacture of such presses can earn his living at his trade, unless he consents to join a union, and be bound by all its rules and regulations, and the channels of interstate commerce are practically closed against the products of an “open” shop. If the truckmen are in the unions and cannot handle nonunion goods, of what use is it to ship goods from Michigan to New York? And if the unions have a right to say what goods their members shall handle, or shall not handle, what reason is there for saying that union men employed by the railroads cannot refuse to handle any goods not made in an “open” shop? The railroads are common carriers, it is true; but all the persons who hold themselves out as willing to carry goods for the public, draymen, carters, truck-men, wagoners, and moving van companies, proprietors of taxicabs, omnibuses, and baggage wagons, are in like manner common carriers. 10 C. J. 49. And they may be engaged in interstate commerce, as the goods they carry are being shipped outside the state, or have been shipped into the state to be delivered to the consignees therein.
My Associates do not agree with me in the conclusion at which I have arrived. The reasons for their disagreement will be found in the opinions which follow. Therefore, in accordance with their opinion, and contrary to my own, the decree is affirmed, with costs.
The record at bar contains uncoutradict-ed testimony (since defendants offered no evidence) divisible into two parts — one relating to acts of violence and threats of the same, directed against some or all of the persons managing or aiding in plaintiff’s business and directly tending to destroy that business through fear of physical injury; the other part showing conclusively (what, indeed, defendants avow) a purpose long formed by the organizations represented only locally by the individual defendant threatmakers, to advise and persuade all workers whose labor would in any way benefit any business effort of plaintiff to abstain from such labor, and further to spread through the purchasing public a knowledge that, if any one bought what plaintiff made, its transportation, erection, operation, and repair would be rendered as difficult for the purchaser or user as the influence of the defendant unions could make it.
This action by the associations that are the real defendants was and is directed against plaintiff in particular, because it manufactures only
The plaintiff was entitled in- strictness, of law to an injunction against the individual men who threatened, suggested, and probably incited actual physical injury. They were álso entitled to have prevented the open efforts to break or abort plaintiff’s contract with the Imposition Company. The latter wrong, however, was (apparently) stopped partly by temporary injunction and partly by treaty, and there is no continuing business relation between plaintiff and that company; while the acts of violence all occurred years before trial, were not shown to have been more than the result of personal malice or bad judgment on-the part of a few defendants then acting as union officials, and all or most of them out of office before the cause was brought on for hearing. Let it be assumed (though not'decided) that the comparative antiquity of these wrongful acts and their sporadic nature would not affect the legal rights of plaintiff, yet we think no injunction should issue by reason of them. This opinion is entertained, because plaintiff by its counsel in this court has plainly recognized in the principal point raised by the facts something far and away more important than the attempted muzzling by writ of a few foolish men, who fell back on open threat or secret violence, instead of relying on that social discipline which is the real strength of labor unions, as well as of most other originally voluntary associations of human kind. He has therefore at this bar announced that no injunction was desired, because none would or could be of importance or effect, unless it went on the ground of illegality in the efforts of the defendant associations as such to unionize plaintiff’s shop, such efforts consisting in words alone — peaceful enough in their literal meaning but necessarily as minatory in suggestion as the diplomatic note of a great power that it would view with concern that which a weaker neighbor insisted on doing.
Thus the only matter we are asked to consider, and therefore the single point on which we shall express opinion, is whether the secondary boycott, used or attempted by defendants against plaintiff, is in the present state of controlling statutes and decisions unlawful. All substantial efforts to enforce such boycott took place in New York. In so far, then, as what is loosely called common law — i. e., the public policy of a state, as ascertained and announced by its highest court— is concerned, we think the recent decision of Bossert v. Dhuy, 221 N. Y. 342, 117 N. E. 582, fully recognizes and upholds the secondary
As plaintiff’s business is largely interstate, and the attentions paid by defendants to plaintiff consisted essentially in trying to make it impossible for plaintiff to get its machines from Michigan to New York, or have them used there even if they successfully ran the gauntlet, it seems plain that the defendant associations have agreed to do and attempted performance of the very thing pronounced unlawful in Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301, 52 L. Ed. 488, 13 Ann. Cas. 815, and 235 U. S. 522, 35 Sup. Ct. 170, 59 L. Ed. 316. Therefore such interference with interstate commerce should be enjoined, unless the Clayton Act of October 14, 1914, forbids it.
It is not suggested that any other than sections 6 and 20 of that statute can affect this case, and we feel so assured of the inapplicability of section 6 that it is not thought necessary to discuss the matter. Section 20 applies to cases—
“between an employer and employees, or between employers and employees, or between employees, or be.tweeu persons employed and persons seeking employment, involving or growing out of a dispute concerning terms or conditions of employment.”
In such cases the statute proceeds to enumerate as lawful, notwithstanding any earlier statute or decision emanating from national authority, every peaceful and all the really important things the defendant associations have done. Thus the question becomes this: Is the present litigation one between employers and employés, or an employer and employés, growing out of a dispute concerning terms or conditions of employment? The answer depends on whether the catalogued injuries are to be permitted only in litigations between an employer or employers and the workmen in (or perhaps lately in) their several establishments, or also in cases, however promoted, when the parties are generically the hired and the hirer, and the dispute even an offshoot or by-blow of the endless quarrel over terms of employment ?
The solution of the puzzle raised by a statute so blindly drawn as this one is not easy, and the intimation as to the present division of the Supreme Court on the subject, given (purely obiter) in Paine, etc., Co. v. Neal, 244 U. S. 459, 37 Sup. Ct. 718, 61 L. Ed. 1256, merely adds embarrassment. There is no ruling decision on the subject, and prognosis as to the probable disposition of the matter in a higher court, based on anything as yet published in the United States Reports, would be both unprofitable and improper. It is necessary to form opinion as upon new matter.
“And no suck restraining order or injunction shall prohibit any person or persons, whether singly or in concert, from terminating any relation of employment, or from ceasing to perform any work or labor, or from recommending, advising, or persuading others by peaceful means so to do; or from attending at any place where any such person or persons may lawfully be, for the purpose of peacefully obtaining or communicating information, or from peacefully persuading any person to work or to abstain from working; or from ceasing to patronize or to employ any party to such dispute, or from recommending, advising, or persuading others by peaceful and lawful means so to do; or from paying or giving to, or withholding from, any person engaged in such dispute, any strike benefits or other moneys or things of value; or from peaceably assembling in a lawful manner, and for lawful purposes; or from doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto; nor shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States.” 2 U. S. Compiled Statutes Ann. 1916, p. 1964.
“No restraining order or injunction shall be granted by any court of the United States, or a judge or the judges thereof, in any case between an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment, involving, or growing out of, a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property, or to a property right, of the party making the application, for which injury there is no adequate remedy at law, and such property or property right must be described with particularity in the application, which must be in writing and sworn to by the applicant or by his agent or attorney.” U. S. Compiled Statutes Ann. 1916, p. 1964.
<§=»ITor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Concurrence Opinion
(concurring in result). I think that section 20 of the Clayton Act has legalized secondary boycotts in cases between an employer and., employés, and that this was such a case, at least after the strike was declared on August 27. I do not think that the section applies only when the employer is plaintiff and his present or former employés are the defendants. Further, I think that the dispute here under any definition included the conditions of employment. I therefore concur in general in Judge HOUGH’S reasoning and in the result, though I do not concur in all the expressions in his opinion.
