was under consideration when the bill | public [478] upon whom the cost must was framed, and the section as re- ultimately fall, and whose vital interest ported was carefully prepared with the in unobstructed commerce constituted settled purpose of excluding the sec- the prime and paramount concern of ondary boycott, and confining boycot- Congress in enacting the Anti-trust ting to the parties to the dispute, allow- Laws, of which the section under coning parties to cease to patronize and to sideration forms, after all, a part. ask others to cease [477] to patronize a Reaching the conclusion, as we do, that party to the dispute; it was the opinion complainant has a clear right to an inof the committee that it did not legalize junction under the Sherman Act, as the secondary boycott; it was not their amended by the Clayton Act, it becomes purpose to authorize such a boycott; not unnecessary to consider whether a like rea member of the committee would vote to sult would follow under the common law do so; clarifying amendment was unneces- or local statutes; there being no suggessary; the section as reported expressed | tion that relief thereunder could be broadthe real purpose so well that it could not er than that to which complainant is entibe tortured into a meaning authorizing tled under the acts of Congress. the secondary boycott. This was the final There should be an injunction against word of the House committee on the sub- defendants and the associations repreject, and was uttered under such circum- sented by them, and all members of those stances and with such impressive empha-associations, restraining them, according sis that it is not going too far to say that, to the prayer of the bill, from interfering except for this exposition of the mean- or attempting to interfere with the sale, ing of the section, it would not have been transportation, or delivery in interstate enacted in the form in which it was re-commerce of any printing press or presses ported. In substantially that form it be manufactured by complainant, or the came law; and since, in our opinion, its transportation, carting, installation, use, proper construction is entirely in accord operation, exhibition, display, or repairing with its purpose as thus declared, little of any such press or presses, or the perneed be added.

formance of any contract or contracts The extreme and harmful consequences made by complainant respecting the sale, of the construction adopted in the court transportation, delivery, or installation of below are not to be ignored. The present any such press or presses, by causing or case furnishes an apt and convincing ex- threatening to cause loss, damage, trouble, ample. An ordinary controversy in a or inconvenience to any person, firm, or manufacturing establishment, said to con- corporation concerned in the purchase, cern the terms or conditions of employ- transportation, carting, installation, use, ment there, has been held a sufficient occa- operation, exhibition, display, or repairing sion for imposing a general embargo upon of any such press or presses, or the perthe products of the establishment and a formance of any such contract or connation-wide blockade of the channels of tracts; and also and especially from using interstate commerce against them, carried any force, threats, command, direction, or out by inciting sympathetic strikes and a even persuasion with the object or having secondary boycott against complainant's the effect of causing any person or percustomers, to the great and incalculable sons to decline employment, cease employdamage of many innocent people far re- ment, or not seek employment, or to remote from any connection with or control frain from work or cease working under over the original and actual dispute,- any person, firm, or corporation being a people constituting, indeed, the general purchaser or prospective purchaser of any I think, by about 243 to 16, and the question to the dispute, that is not a secondary boy. of the secondary boycott was not raised cott, and you cannot possibly make it mean then, because we understood so clearly it a secondary boycott. Therefore this section did not refer to or authorize the secondary does not authorize the secondary boycott. boycott.

I say again-and I speak for, I believe, (Page 9658.)

practically every member of the Judiciary Mr. Webb: Mr. Chairman, I should vote Committee—that if this section did legalize for the amendment offered by the gentle; the secondary boycott, there would not be man from Minnesota (Mr. Volstead] if I

a man vote for it. It is not the purpose were not perfectly satisfied that it is taken care of in this section. The language the of the committee to authorize it, and I do gentleman reads does not authorize the not think any person in this House wants secondary boycott, and he could not torture to do it. We confine the boycotting to the it into any such meaning. While it does parties to the dispute, allowing parties to authorize persons to cease to patronize the cease to patronize that party, and to ask party to the dispute, and to recommend to others to cease to patronize the party to the others to cease to patronize that same party I dispute.

printing press or presses from complain-, Thereupon two of the three manufacturant, [479] or engaged in hauling, ers who had assented to union conditions carting, delivering, installing, hand- notified the union that they should be ling, using, operating, or repairing obliged to terminate their agreements any such press or presses for any with it unless their competitor, the Duplex customer of complainant. Other threat- Company, also entered into the agreement ened conduct by defendants or the with the union, which, in giving more associations they represent, or the mem- favorable terms to labor, imposed corre. bers of such associations, in furtherance spondingly greater burdens upon the emof the secondary boycott, should be in- ployer. Because the Duplex Company recluded in the injunction according to the fused to enter into such an agreement, and proofs.

in order to induce it to do so, the MachinComplainant is entitled to its costs in ists' Union declared a strike at its factory, this court and in both courts below. and in aid of that strike instructed its

Decree reversed, and the cause re- 'members and the members of affiliated manded to the District Court for further unions not to work on the installation of proceedings in conformity with this opin- presses which plaintiff had delivered in ion.

New York. Defendants insist that by the

common law of New York, where the acts Mr. Justice Brandeis, dissenting, with complained of were done, and where this whom Mr. Justice Holmes and Mr. Jus- suit was brought, and also by $ 20 of the tice Clarke concur:

Clayton Act (38 Stat. at L. 730, 738, chap. The Duplex Company, a manufacturer 323, Comp. Stat. 88 8835a, 1243d, 9 Fed. of newspaper printing presses, seeks to Stat. Anno. 2d ed. p. 736, 6 Fed. Stat. enjoin officials of the machinists' and Anno. 2d ed. p. 141), the facts constitute affiliated unions from interfering with its a justification for this interference with business by inducing their members not to plaintiff's business. work for plaintiff or its customers in con- First. As to the rights at common law: nection with the setting up of presses made Defendants' justification is that of selfby it. Unlike Hitchman Coal & Coke Co. interest. They have supported the strike v. Mitchell, 245 U. S. 229, 62 L. ed. 260, at the employer's factory by a strike else. L.R.A.1918C, 497, 38 Sup. Ct. Rep. 65, where against its product. They have inAnn. Cas. 1918B, 461, there is here no jured the plaintiff, not maliciously, but in charge that defendants are inducing em- self-defense. They contend that the Duployees to break their contracts. Nor is plex Company's refusal to deal with the it now urged that defendants threaten machinists' union and to observe its standacts of violence. But plaintiff insists that ards threatened the interest not only of the acts complained of violate both the such union members as were its factory common law of New York and the Sher-employees, but even more of „ll members man Act, and that, accordingly, it is enti- of the several affiliated unions employed tled to relief by injunction under the state by plaintiff's competitors, and [481] law and under 16 of the Clayton Act, by others whose more advanced standOctober 15, 1914, chap. 323, 38 Stat. at Lards the plaintiff was, in reality, at730, 737, Comp. Stat. $$ 8835a, 88350, 9 tacking; and that none of the deFed. Stat. Anno. 2d ed. pp. 730, 745. fendants and no person whom they

The defendants admit interference with are endeavoring to induce to refrain plaintiff's business, but justify on the fol- from working in connection with the lowing ground: There are in the United setting up of presses made by plaintiff States only four manufacturers of such is an outsider,--an interloper. In other presses, and they are in active competi- words, that the contest between the comtion. Between 1909 and 1913 the Machin-pany and the machinists' union involves ists' Union induced three of [480] vitally the interest of every person whose them to recognize and deal with the co-operation is sought. May not all with union, to grant the eight-hour day, a common interest join in refusing to exto establish a minimum wage scale, pend their labor pon articles whose very and to comply with other union reproduction constitutes an attack upon quirements. The fourth, the Duplex their standard of living and the institution Company, refused to recognize the which they are convinced supports it? union; insisted upon conducting its far. Applying common-law principles the tory on the open-shop principle; refused answer should, in my opinion, be: Yes, if. to introduce the eight-hour day, and operas matter of fact, those who so co-operate ated, for the most part, ten hours a day; are a common interest. refused to establish a minimum wage scale; The change in the law by which strikes and disregarded other union standards. I once illegal and even criminal are now

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recognized as lawful was effected in 214 Pa. 348, 12 L.R.A.(N.S.) 642, 112 America largely without the intervention Am. St. Rep. 757, 63 Atl. 585, 6 Ann. of legislation. This reversal of a com- Cas. 275; Alfred W. Booth & Bro. v. mon-law rule was not due to the rejection Burgess, 72 N. J. Eq. 181, 65 Atl. 226. by the courts of one principle and the But other courts, with better appreciaadoption in its stead of another, but to a tion of the facts of industry, recognized better realization of the facts of industrial the unity of interest throughout the union, life. It is conceded that, although the and that, in refusing to work on materials strike of the workmen in plaintiff's fac- which threatened it, the union was only retory injured its business, the strike was fusing to aid in destroying itself. Bossert not an actionable wrong, because the obvi- v. Dhuy, 221 N. Y. 312, 117 N. E. 582, ous self-interest of the strikers constituted | Ann. Cas. 1918D, 661; Cohn & R. Electric a justification. See Pickett v. Walsh, 192 Co. v. Bricklayers, M. & P. Local Union, Mass. 572, 6 L.R.A.(N.S.) 1067, 116 Am. 92 Conn. 161, 6 A.L.R. 887, 101 Atl. 659; St. Rep. 272, 78 N. E. 753, 7 Ann. Cas. Gill Engraving Co. v. Doerr, 214 Fed. 638. Formerly courts held that self-in-111; State v. Van Pelt, 136 N. C. 633, 68 terest could not be so served. 2 Com-L.R.A.760, 49 S. E. 177, 1 Ann. Cas. 495; mons, History of Labor in United States, George J. Grant Constr. Co.

v. St. chap. 5. But even after strikes to raise Paul Bldg. Trades Council, 136 Minn. 167, wages or reduce hours were held to be 161 N. W. 520, 1055; Pierce v. Stablelegal, because of the self-interest, some men's Union, 156 Cal. 70, 76, 103 Pac. courts held that there was not sufficient 324. causal relationship between a strike to So, in the case at bar, deciding a quesunionize a shop and the self-interest of tion of fact upon the evidence introduced the strikers to justify injuries inflicted. and matters of common knowledge, I Plant v. Woods, 176 Mass. 492, 51 L.R.A. should say, as the two lower courts ap339, 79 Am. St. Rep. 330, 57 N. E. 1011; parently have said, that the defendants Lucke v. Clothing Cutters' & T. Assembly, and those from whom they [483] 77 Md. 396, 19 L.R.A. 408, 39 Am. St. sought co-operation have Rep. 421, 26 Atl. 505; Erdman v. interest which the plaintiff threatened. Mitchell, 207 Pa. 79, 03 L.R.A. 534, 99 This view is in harmony with the Am. St. Rep. 783, 56 Atl. 327. [182] views of the court of appeals of But other courts, repeating the same New York. For in New York, although legal formula, found that there was boycotts like that in Loewe v. Lawjustification, because they viewed the lor, 208 U. S. 274, 52 L. ed. 488, 28 facts differently. National Protective Sup. Ct. Rep. 301, 13 Ann. Cas. 815, are Asso. V. Cumming, 170 N. Y. 315, illegal because they are conducted not 58 L.R.A. 135, 88 Am. St. Rep. 648, against a product, but against those who 63 N. E. 369; Kemp v. Division No. deal in it, and are carried out by a com241, 255 Ill. 213, 99 N. E. 389, Ann. I bination of persons not united by comCas. 1913D, 347; Roddy v. United Mine mon interest, but only by sympathy (AuWorkers, 41 Okla. 621, L.R.A.19150, 789, burn Draying Co. v. Wardell, 227 N. Y. 139 Pac. 126. When centralization in the 1, 6 A.L.R. 901, 124 N. E. 97), it is lawcontrol of business brought its correspond- ful for all members of a union, by whoming centralization in the organization of ever employed, to refuse to handle maworkingmen, new facts had to be ap-j terials whose production weakens the praised. A single employer might, as in union (Bossert v. Dhuy, 221 N. Y. 312, this case, threaten the standing of the 117 N. E. 582, Ann. Cas. 1918D, 661; P. whole organization and the standards of | Reardon v. Caton, 189 App. Div. 501, 178 all its members; and when he did so the N. Y. Supp. 713, compare Paine Lumber union, in order to protect itself, would

Co. Neal, 244 U. S. 459, 471, 61 L. ed. naturally refuse to work on his materials 1256, 1264, 37 Sup. Ct. Rep. 718). "The wherever found. When such a situation

voluntary adoption of a rule not to work was first presented to the courts, judges concluded that the intervention of the upon nonunion-made material, and its

enforcement, differs only in degree from purchaser of the materials established an insulation through which the direct rela- such voluntary rule and its enforcement in

Such a determination tionship of the employer and the working- a particular case. men did not penetrate; and the strike also differs entirely from a general boyagainst the material was considered a cott of a particular dealer or manufactustrike against the purchaser by unaffected rer, with a malicious intent and purpose third parties. Burnham v. Dowd, 217 to destroy the good will or business of Mass. 351, 51 L.R.A.(N.S.) 778, 104 N. E. such dealer or manufacturer.” Bossert v. 841; Purvis v. Local No. 500, U. B. C. J. Dhuy, supra, p. 355. In my opinion,

3 63



therefore, plaintiff had no cause of action workingmen and employer as industrial by the common law of New York.

combatants. Aside from the use of the Second. As to the Anti-trust Laws of injunction, the chief source of dissatisthe United States: Section 20 of the faction with the existing law lay in the Clayton Act declares:

doctrine of malicious combination, and, "Nor shall any of the acts specified in in many parts of the country, in the juthis paragraph be considered or held to be dicial declarations of thu illegality at violations of any law of the United common law of picketing and persuadStates."

ing others to leave work. The grounds for The acts which are thus referred to are, objection to the latter are obvious. The whether performed singly or in concert: objection to the doctrine of malicious com

“Terminating any relation of employ- binations requires some explanation. ment, or

ceasing to perform any [485] By virtue of that doctrine, damwork or labor, or recommending, age resulting from conduct such as advising, or persuading others by peaceful striking or withholding patronage or means so to do; or

attending at persuading others to do either, which, any place where any such person or per- without more, might be damnum abssons may lawfully be, for the purpose of que injuria because the result of trade peacefully obtaining or communicating in competition, became actionable when formation, or ... peacefully persuad- done for å purpose which a judge ing [481] any person to work or to considered socially or economically harmabstain from working; or

ceas-ful, and therefore branded as malicious ing to patronize or to employ any and unlawful. It was objected that, due party to such dispute, or

rec- largely to environment, the social and ommending, advising, or persuading economic ideas of judges, which thus beothers by peaceful and lawful means came translated into law, were prejudicial so to do; or

paying or giv. to a position of equality between workinging to, or withholding from, any person man and employer; that, due to this deengaged in such dispute, any strike bene- pendence upon the individual opinion of fits or other moneys or things of value; or judges, great confusion existed as to what

peaceably assembling in a lawful purposes were lawful and what unlawmanner, and for lawful purposes; or ful: 8 and that, in any event, Congress, not

doing any act or thing which the judges, was the body which should might lawfully be done in the absence of declare what public policy in regard to such dispute by any party thereto." the industrial struggle demands.

This statute was the fruit of unceas- By 1914 the ideas of the advocates of ing agitation, which extended over more legislation had fairly crystallized upon the than twenty years, and was designed to manner in which the inequality and uncerequalize before the law the position of tainty of the law should be removed. It

1 See “Malice and Unlawful Interference,” | otherwise to advance the interests of labor, Ernst Freund, 11 Harvard L. Rev. 449, 461; not to the material loss inflicted upon the "Rights of Traders and Laborers,” Edw. F. employer concerned, but to the harm supMcClennen, 16 Harvard L. Rev. 237, posed to result from their activities to the 244; “Crucial Issues in Labor Litigation," public at large." And since the judge or Jeremiah Smith, 20 Harvard L. Rev. 429, jury believe the conduct socially bad, and 451; Commons & A. Principles of Labor since it is admittedly done intentionally, Legislation, pp. 95--116; Hoxie, Trade not inadvertently, they declare that the Unionism in United States, p. 231; Groat, actors animated by malice which Attitude of American Courts towards Labor negatives the justification of "fair comCases, pp. 76, 77, 221, 246; Bryan, De petition,” e. g., Lord Bowen in Mogul S. S. velopment of English Law of Conspiracy, Co. v. McGregor (1892) A. C. 25: "Intenpp. 147 et seq.

tionally to do that which is calculated Report of the Industrial Commission,

to damage

and does damage 1901, vol. xvii. p. cxiv. pp. 515, 556; Report another in his property or trade is actionof Roval Commission on Trade Disputes able if done without just cause or excuse, and Trade Combinations, 1906, p. 12; Re


is what the law calls a ma. port of Commission on Industrial Relations,

licious injury." 1915, pp. 135, 377.

For attempts to reach this doctrine by 3 See A. V. Dicey, “The Combination legislation, see also 52d Congress, H. R. Laws as Illustrating the Relation between 6640, § 1; 56th Congress, H. R. 11,667, Law and Opinion in England During the § 7; 57th Congress, S. 649, § 7.

Nineteenth Century,” 17 Harvard L. Rev. 2 See James Wallace Bryan, The Develop-511, 532: "The very confusion of the ment of the English Law of Conspiracy :- present state of the law corresponds with

“We find little difficulty in attributing and illustrates a confused state of opinion." the illegality of combinations to strike or


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was to [486] be done by expressly tions of any law of the United States," legalizing certain acts regardless of and, hence, do not violate the Sherman the effects produced by them upon Act. other persons.

As to them, Congress The Duplex Company contends that 8 to extract the element of in- 20 of the Clayton Act does not apply to juria from the damages thereby in the case at bar, because it is restricted to flicted, instead of leaving judges to de- cases “between an employer and emtermine, according to their own economic ployees, or between employers and emand social views, whether the damage in- ployees, or between employees, or between flicted on an employer in an industrial persons employed and persons seeking struggle was damnum absque injuria, be- employment, involving or growing out of cause an incident of trade competition, or a dispute concerning terms or conditions a legal injury, because, in their opinion, of employment;" whereas the case at bar economically and socially objectionable. arises between an employer in Michigan This idea was presented to the committees and workingmen in New York, not in its which reported the Clayton Act. The re-employ, and does not involve their condisulting law set out certain acts which had tions of employment. But Congress did previously been held unlawful, whenever not restrict the provision to emplovers and courts had disapproved of the ends for workingmen in their employ. [488] By which they were performed; it then including "employers and employees" declared that, when these acts were com- and “persons employed and persons mitted in the course of an industrial dis- seeking employment, it showed that pute, they should not be held to violate it was not aiming merely at a legal any law of the United States. In other relationship between a specific employwords, the Clayton Act substituted the er and his employees. Furthermore, opinion of Congress as to the propriety of the plaintiff's contention proves too the purpose for that of differing judges; much. If the words are to receive and thereby it declared that the relations a strict technical construction, the between employers of labor and working- statute will have no application to dismen were competitive relations, that or- putes between employers of labor and ganized competition was not harmful, and workingmen, since the very acts to which that it justified injuries necessarily in- it applies sever the continuity of the flicted in its course. Both the [487] legal relationship. Iron Molders' Union majority and the minority report of v. Allis-Chalmers Co. 20 L.R.A.(N.S.) the House Committee indicate that 315, 91 C. C. A. 631, 166 Fed 45, 52, 53; such its purpose. If, there-Louisville, E. & St. L. R. Co. v. Wilson, fore, the act applies to the case at 138 U. S. 501, 505, 34 L. ed. 1023, 1025, bar, the acts here complained of can- 11 Sup. Ct. Rep. 405; cf. Rex v. Neilson, not be considered or held to be viola- 1 44 N. S. 488, 491. The further conten

4 It was said that this doctrine "com: I preservation of life, property, and the public pletely unsettle (d) the law

and peace. The first method has been tried and set up the chancellor in the midst of the failed absolutely. The only method, labor organization at the inception of a therefore, seems to be the removal of all strike as an arbiter of their conduct as well restrictions upon both parties, thus legalizas a controller of their fates.” 62d Con. ing the strike, the lockout, the hoycott, the gress, 2d Sess. Hearings before a Sub- black list, the bringing in of strikebreakers, committee of the Senate Committee on the and peaceful picketing.” Report of the Judiciary, on 1. R. 23,635, p. 429.

Committee on Industrial Relations, 1915, Again, it was pointed out that the in- p. 136. corporation of this idea in the Sherman 6 The majority declared that the section Law had “done violence to the right to sets out “specific acts which the best opinstrike—to cease work collectively

ion of the courts holds to be within the and to the right to withhold patronage and right of parties involved upon one side or to agree to withhold patronage." Brief by the other of a trade dispute,” which it has Samuel Gompers, Hearings before the House been necessary to affirm because of "the Committee on the Judiciary on Trust Legis divergent views which the courts have ex. lation, 63d Congress, 21 Sess. vol. 2, p. 1808. pressed on the subject, and the difference

5 Compare the following: “There are, between courts in the application of recog. apparently, only two lines of action pos. nized rules.” The minority insisted that Bible: First, to restrict the rights and the section prescribes “a set rule for bidpowers of employers to correspond in sub- ding, under any circumstances, the enjoining stance to the powers and rights now al. of certain acts which may or may not be lowed to trade unions, and, second, to actuated by a malicious motive, or for the remove all restrictions which now prevent purpose of working an unlawful injury, the freedom of action of both parties to etc.” 63d Congress, 2d Session, House Reindustrial disputes, retaining only the ordi- port, 627, p. 30; id. Part 2, Appendix A, nary civil and criminal restraints for the lp. 20.


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