The opinion
REEVES, District Judge
(concurring).
I concur in the able opinion of Judge VAN VALKENBURGH, but, in doing so, I desire to make the following observations :
No more unusual action has ever perplexed the mind of a judge. In this case, an important industry has filed its bill, wherein it seeks the protection of the court against the alleged unlawful aggressions and transgressions of the defendants. None of the defendants sustain any business relationship whatever to the plaintiffs. All of the employees of plaintiffs’ manufacturing establishment in their capacity as an organized labor union have joined by intervention with the plaintiffs. They, too, ask the protection of the court against what they deem to be wrongful acts and menacing threats of the defendants.
In limine, the defendants, hardly disputing the averments of the several bills, challenge the jurisdiction of the court to grant the relief sought. If the averments of the original bill of the plaintiffs and those of the intervening petition of the organized employees are true (and the testimony at the hearing tends to support the averments),’ then there must be some unusual limitations upon the court’s power to prevent the granting of relief- to which the plaintiffs and interveners under ordinary circumstances would be entitled.
It is the contention of the defendants that á labor dispute has arisen between them on the one side and the plaintiffs and interveners on the other, and, that perforce certain congressional enactments, the jurisdiction of the national court has been so limited and impaired that, upon the facts in the case, injunctive relief cannot be granted.
The plaintiffs, Donnelly Garment Company, a corporation, and Donnelly Garment *815 Sales Company, a corporation, are engaged in the manufacture and sale of ladies’ garments and wearing apparel. The factory is located in Kansas City, Mo., ’ and the sales of its product are carried on throughout the United States.
The Donnelly Garment Workers’ Union is an unincorporated association, and is composed of all of the employees of Donnelly Garment Company. In round figures there are approximately 1,300 persons employed in said industry, all of whom are members of the plant union. Such union is organized, according to the averments of the intervening bill, in conformity with the provisions of the several national labor acts, and particularly under section 157, title 29 U.S.C.A., relating to the general subject of Labor. This section provides: “Employees shall have the right to self-organization * * * to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for ihe purpose of collective bargaining or other mutual aid or protection.”
The defendants are either interested in, or members of, a labor union organization known as International Ladies’ Garment Workers’ Union. These persons and such organization are, or have been, engaged in the same industry, trade, craft, or occupation. They are endeavoring to bring into their organization all of the employees of factories, such as that of plaintiff Donnelly Garment Company, throughout the United States. The object of such movement, as stated by them, is to raise the standards of wages and working conditions in all garment factories of the country. As part of such endeavor, they insist upon a right to bring the employees of Donnelly Garment Company into their union.
To effect their purpose, it is averred, they have employed coercive methods and hurtful means. They have endeavored to effect a boycott against the products of plaintiff and have misrepresented the facts concerning wages and working conditions in plaintiff’s garment factory. Moreover, the conduct and utterances of the defendants, as it is further averred, carry a menace and threat of violence and harm to the employees of the garment company, the interveners in this action.
Other facts, as they’may become pertinent, will be stated in the course of this memorandum opinion.
1. The evidence at the hearing tends to support the averments of the original bill, as well as those of the intervening petition, to the effect that the defendants were employing unlawful means to effectuate their purpose.
However, it is stoutly maintained by defendants that the plaintiffs, in asking for injunctive relief, have failed to follow the procedure prescribed in what is known as the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq., approved March 23, 1932.
By section 107, title 29 U.S.C.A., such act forbids the issuance of an injunction “in any case involving or growing out of a labor dispute, * * * except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a complaint.”
Admittedly, the procedure outlined by this act was not followed. A question naturally arises, therefore, as to whether or not there is in fact a labor dispute so as to make mandatory the application of this statute.
2. The Norris-LaGuardia Act, while omitting a definition as to what constitutes a labor dispute, nevertheless defined or designated the classes of persons who might be parties to a labor dispute. This definition was all comprehensive and did not limit such persons to those who sustain an employment relationship to the employer. The statute also defines the subject-matter of labor dispute as being questions of wages and working conditions and labor representations or bargaining agencies. The failure of Congress to define what constitutes a bona fide labor dispute has left the question open for judicial determination. An accepted definition is as follows: “A fact is properly said to be in dispute when it is alleged by one party and denied by the other, and by both with some show of reason.” 1 Bouv. Law Diet. Rawle’s Third Rev., p. 888.
The Norris-LaGuardia Act was supplemented, if not modified, by the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., approved July 5, 1935. The latter act contained a declaration of public policy practically the same as the Norris-LaGuardia Act. This public policy, among other things, asserted the right of the individual laborer to enjoy “freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, re *816 straint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 102, title 29 U.S.C. A.
The magna charta of labor is contained in section 157, title 29 U.S.C.A., and is a part of the National Labor Relations Act. It provides that: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.”
This section enables the employees of any manufacturing establishment to exercise a choice as to whether they shall form their own organization or join and assist other organizations outside the plant. It was a right vouchsafed to employees, and in the exercise of such right such employees were offered protection against coercion or interference by employers.
According to the testimony in this case, all of the employees of Donnelly Garment Company formed an organization pursuant to a right vouchsafed to them by the above statute. The fact that it ,may have been more or less informal, and'that its charter and by-laws do not contain the details sometimes found in such organizations, does not militate against its validity or its good faith. The simplicity of the organization is not condemnatory. Moreover, the Congress in the National Labor Relations Act established a tribunal known as the National Labor Relations Board, whose function it was and is, among others, to adjust all questions arising on the good faith of plant labor organizations.
By section 159, title 29 U.S.C.A. it is provided that: “(a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate. for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining ' in respect to rates of pay, wages, hours of employment, or other conditions of employment.”
By paragraph (b) of said section, it is significantly provided: “The Board shall decide in each case whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this'chapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.”
And then, by paragraph (c) of the same section: “Whenever a question affecting commerce arises concerning the representation of employees, the Board may investigate such controversy and certify to the parties, in writing, the name or names of the representatives that have been designated or selected. In any such investigation, the Board shall provide for an appropriate hearing upon due notice,” etc.
It must be obvious, upon a casual reading of. the several acts involved, that the question of the bona fides of a plant labor organization is committed to the National Labor Relations Board. Any one challenging or disputing its validity must resort to the Board. Upon failure to do so, the employer, the courts, and every one else, in considering the acts of such organization, must accept it as validly organized and acting in good faith. All the presumptions of the law require this.
Assuming therefore, as must be done, that the Donnelly Garment Workers’ Union is a bona fide labor organization under the. statute, then the rights and the freedom vouchsafed to it by statute must repel from the plaintiff company any rights whatever that may have previously existed in or for the defendants.
The- bills averred, and the testimony showed, that the labor organization within the industry had contracted with the employer concerning wages and working conditions and that this contract was in force at the time the bill was filed. This being true, both the employer and the employees were standing firmly on statutory ground. The employer could not forbid a labor organization within the industry, ’nor could the employer coerce such organization. According to the evidence each one had observed, complied with, and was obedient to statutory mandates and prohibitions.
Upon these undisputed facts the defendants could not properly assert or rightfully maintain a dispute with the plaintiffs or their organized employees for the reason that “one has no constitutional right to a ‘remedy’ against the lawful conduct of another.” Senn v. Tile Layers Protective *817 Union, 301 U.S. 468 , 57 S.Ct. 857, 864 , 81 L.Ed. 1229 .
This reasoning does not run contrary to the comprehensive provisions of the congressional acts which most liberally admit into the domain of lawful dispute persons not employees. The reason for this liberal congressional attitude may be found in the case of American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184 , 42 S.Ct. 72, 78 , 66 L.Ed. 189 , 27 A.L.R. 360 , where the court said that organized labor would not effectively reach its desired ends unless the combination extended “beyond one shop.” The reason for this rule, as stated by the court, was, “because in the competition between employers they are bound to be affected by the standard of wages of their trade in the neighborhood. Therefore, they may use all lawful propaganda to enlarge their membership and especially among those whose labor at lower wages will injure their whole guild. It is impossible to hold such persuasion and propaganda without more, to be without excuse and malicious.”
In the absence of a factory labor organization, the defendants, though not sustaining the relationship of employees to plaintiff, nevertheless would have had the right to insist upon projecting their union into the plant of the plaintiff. This right, however, was limited and liable to be counteracted and even destroyed, when the Congress provided for self-organization among employees of individual factories. When so organized, the reason for the right in defendants no longer existed. It was the view of Congress that individual laborers were capable of self-government and that a local organization, through its representation, could obtain the same favorable results toward labor as could an outside and even larger organization.
Tlie factory organization was designed to consummate all the purposes which the defendants may at one time have had a right to undertake to effectuate.
Under these circumstances, there being no labor dispute (in fact there could be none), the acts and the conduct of the defendants'were unlawful, and both the plaintiffs, as well as the interveners, were entitled to the protection of the courts against the infringement of their rights.
3. Another question obtrudes itself: A dispute as heretofore defined means the assertion of a fact by one party and denial by the other, when both the assertion and the denial have a show of reason. The averments of the bill supported by evidence were to the effect that the so-called labor dispute in this case was not in good faith. All of the testimony shows that the interest of the defendants was merely in bringing the employees of plaintiff’s company into the International Ladies’ Garment Workers’ Union. The evidence showed that the original demand made upon the plaintiff was solely for that purpose, and that such demand was not predicated upon any existing fact.
It was contended by the defendants that several years previously certain employees were discharged because of union activities. This was disproved, but, even if true, it was at a time when the plaintiff had aright to discharge employees for such activities. New conditions and new statutes excluded the act, even if it occurred, as a basis for dispute, discussion, or argument.
If the dispute was predicated on fraud, then under the express provisions of both the Norris-LaGuardia Act and the National Labor Relations Act, it could not be a basis for limiting the jurisdiction of the court.
By section 104, title 29 U.S.C.A., the injunctive process is limited only in those cases where the acts are deemed “not involving fraud or violence,” or, “without fraud or violence.”
As stated by able counsel in argument, a superstructure upon a foundation of fraud cannot stand.
4. Another matter that calls for brief discussion is the question whether plaintiff manufactures silk or cotton garments. The evidence was overwhelming that it is the latter.
Moreover, it appeared that wages and working conditions were of a higher standard in plaintiff’s factory than in those factories engaged in kindred operations where the defendant union was the bargaining agency.
In view of the above, a temporary injunction should be granted.