The opinion
OTIS, District Judge
(dissenting).
I regret exceedingly my inability to concur with my associates in the disposition of this case. The great respect I entertain for them ordinarily would lead me to yield my views to theirs. Added to that reason for concurrence is the prompting which proceeds from a disinclination to make ef *818 fective a statute originating in an unwarranted distrust of the judges of the United States., The Norris-LaGuardia Act is only another of a s.eries of acts enacted and threatened to be enacted through which runs the assumption that judges, although appointed by the President by and with the advice and consent of the Senate, either at the time of their appointment or immediately thereafter (as the result of a strange metamorphosis that then comes over them), really are not possessed of either impartiality or integrity. Perhaps the humiliation which this assumption would inflict is a little lessened by the realization that such a statute is enacted not so much to enable men to escape the judges as to escape the law. There is an unintended compliment in legislation which recognizes that the judges will stand firm in obedience to their oaths to support the Constitution and the laws, and that the thing to do, if the law is to be avoided, is to avoid the judges.
I should like to concur, but I cannot do that conscientiously when it is so clear to me that Congress has prohibited an injunction in a case involving or growing out of a labor dispute except upon conditions not complied with here, that what we have here does involve or grow out of a labor dispute, and that Congress has the constitutional power to enact the legislation which it has enacted.
Is This a Labor Dispute?
1. Laying aside the question as to whether the law as embodied in the Norris-LaGuardia Act in some way was modified by the later National Labor Relations .Act, and the further question as to the constitutionality of the Norris-LaGuardia Act, we come at once to what undoubtedly is the prime question in this case. Does the Norris-LaGuardia Act prohibit just such an injunction as is sought here unless there is compliance with the requirements of that act?
The_act provides expressly as follows:
Section 1, title 29 U.S.C. § 101 , 29 U.S. C.A. § 101. “No court of the United States * * * shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this chapter.”
Section 7, title 29 U.S.C. § 107 , 29 U.S. C.A. § 107. “No court of the United States shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, as herein defined, except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after findings of fact by the court, to the effect—
“(a) That unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat or unlawful act excepting against the person or persons, association, or organization making the threats or committing the unlawful act or actually authorizing or ratifying the same after actual knowledge thereof;
“(b) That substantial and irreparable injury to complainant’s property will follow;
“(c) That as to each item of relief granted greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief;
“(d) That complainant has no adequate remedy at law; and
“(e) That the public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection.
“Such hearing shall be held after due and personal notice thereof has been given, in such manner as the court shall direct, to all known persons against whom relief is sought, and also to the chief of those public officials of the county and city within which the unlawful acts have been threatened or committed charged with the duty to protect complainant’s property.”
Section 13, title 29 U.S.C. § 113 , 29 U. S.C.A. § 113. “When used in this chapter, and for the purposes of this chapter—
“(a) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade,- craft or occupa: tion; or have direct or indirect interests therein; or who are employees of the same employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is (1)' between one or more employers or associations of employers and one or more em *819 ployees or associations of employees; (2) between one or more employers or associations of employers and' one or more employers or associations of employers; or (3) between one or liiore employees or associations of employees and one or more employees or associations of employees; or when the case involves any conflicting or competing interests in a ‘labor dispute’ (as hereinafter defined) of ‘persons participating or interested’ therein (as hereinafter defined).
“(b) A person or association shall be held to be a person participating or interested in a labor dispute if relief is sought against him or it, and if he or it is engaged in the same industry, trade, craft, or occupation in which such dispute occurs, or has a direct or indirect interest therein, or is a member, officer, or agent of any association composed in whole or in part of employers or employees engaged' in such industry, trade, craft, or occupation.
“(c) The term ‘labor dispute’ includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.”
Now the principal parties to this controversy are: (1) The Donnelly Garment Company (one of the plaintiffs, hereinafter referred to as the plaintiff) ; (2) the Donnelly Garment Workers’ Union (an intervener) ; and (3) the International Ladies’ Garment Workers’ Union (one of the defendants, hereinafter referred to as the defendant). The controversy is described in plaintiff’s amended petition in the following words:
“ * * * That the defendants * * * have engaged in and are now engaged in an attempt to disrupt said Donnelly Garment Workers’ Union and to cause it and its members to break their * * * contract with plaintiff companies * * * ; that they have sought and are seeking to force said employees to join said defendant union and to compel the plaintiffs to force them to join said defendant union. * * *
“ * * * For many years defendants * * * have been and are now engaged in a general combination and conspiracy to force, against their will, all persons, firms or corporations engaged in the manufacture and sale of ladies’ garments, * * * including plaintiffs, * * * to organize their employees into an organization to be part and parcel of the defendant union, with the intent thereby to control the employment of labor in and the operation of all said businesses. * * * ”
Whatever else the evidence may support certainly it supports these allegations.
Here then is a controversy in which the International seeks to unionize under its banner plaintiff’s employees and thereafter to represent them, and in which it is opposed by plaintiff and intervener.
The petition charges and the evidence disclosed that the International instituted and carried on controversies like to its controversy with plaintiff with three other manufacturers in Kansas City engaged in the same line of business as plaintiff. They were the Missouri Garment Company, the Gernes Garment Company, the Gordon Brothers Manufacturing Company. Plaintiff and intervener presented these controversies to the court in great detail in pleadings and evidence, most vividly presented them so that the court could see the true nature of the controversy between the International and plaintiff. It was proved that in the case of each of the last-mentioned companies the International demanded that the employer cause or permit employees to unionize under the International and then negotiate and contract with the International. In each case the employer refused. Against each of these employers a campaign was then begun, of slander and intimidation. Pickets were stationed outside each of the plants in question. They marched up and down carrying placards asserting the employer was unfair. Loyal employees were urged not to work by the pickets and by other members of the International and of other unions. The employers called upon the authorities for aid.
Moving pictures were exhibited in court. Many scenes were shown of crowds of workmen belonging to the International and their supporters from other unions before the entrances of factories, oí pickets marching, of police lines formed across sidewalks before factory entrances, of employees arriving by automobiles and endeavoring to pass through the police lines into factories, of struggles between these two opposing forces with police gently ‘iifterfering.
It was proved to the court by plaintiff that in these controversies the International won. In each case the employer at last capitulated. Plis employees were organized *820 under the International. The employer entered into a contract with the International. Then peace was restored and work began again.
These controversies were presented to the court as examples in the eye, if we may use the phrase of the old writers, of what was and is threatened against plaintiff.
Plaintiff and intervener say that such a controversy is not a labor dispute within the meaning of the law. Let us then examine the law that we may know what the law declares a “labor dispute” to be, that then we may test the controversy here by that definition.
Background of the Act
The Norris-LaGuardia Act referred to is one of those which best can be understood in the light of its background. Prominent in the background is the Clayton Act, 38 Stat. 730 et seq., section 20 of which, 29 U.S.C’.A. § 52, provides that “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.”
Here, in the words, “involving, or growing out of, a dispute concerning terms or conditions of employment,” was essentially the same language as is in the Norris-LaGuardia Act. That language was construed in Duplex Printing Press Co. v. Deering et al., 254 U.S. 443, 445 , 41 S.Ct. 172 , 65 L.Ed. 349 , 16 A.L.R. 196 , the judgment in which case reversed that of the Circuit Court of Appeals for the Second Circuit, 252 F. 722 , which affirmed that of the District Court. 247 F. 192 . It is desirable that we should have in mind' the principal facts of that case.
The facts in the Duplex Case are summarized by the Supreme Court. 254 U.S. 443 , loc.cit. 462, 41 S.Ct. 172, 175 , 65 L.Ed. 349 , 16 A.L.R. 196 . The International Association of Machinists, although not a party, combined with others, including the parties,. to compel the Duplex Company to unionize its factory. The end aimed at was sought to be accomplished “by means of interfering with and restraining [the company’s] interstate trade.” None of the defendants ever was an employee of the company, nor did the company have or had it ever had relations with the International Association or any of its locals.
The injunction prayed' was denied by the District Court and by the Circuit Court of Appeals. Two of the three judges of the Circuit Court of Appeals (Judges Hough and Learned Hand), as one of the grounds for their conclusion that an injunction should not go, were of the opinion that the case was one “between employers and employees” within the meaning of section 20 of the Clayton Act, 29 U.S.C.A. § 52 . Judge Hough said, 252 F. 722 , loc.cit. 748: “The words ‘employers and employés’ as ordinarily used, and used in this statute, * * * must refer to the business class or clan to which the parties litigant respectively belong.” Judge Hand said: “I do not think that the section applies only when the employer is plaintiff and his present or former employes are the defendants.” 252 F. 722 , loc.cit. 748. The dissenter (Rogers, Circuit Judge) took the position that the statute referred to persons in the immediate and proximate relationship of employer and employee. 252 F. 722 , loc.cit. 744.
In the Supreme Court the position of Judge Rogers was approved by the majority. The court said: “Full and fair effect will be given to every word [of section 20] if the exceptional privilege be confined — ¿sis the natural meaning of the words confines it — to those who are proximately and substantially concerned as parties to an actual dispute respecting the terms or conditions of their own employment, past, present, or prospective.” 254 U.S. 443, 471 , 41 S.Ct. 172, 178 , 65 L.Ed. 349 , 16 A.L.R. 196 . Three of the justices dissented in an opinion written by Mr. Justice Brandéis. The minority said: ‘‘Congress did not restrict the provision to employers and' workingmen in their employ. By including ‘employers and employees’ and ‘persons employed and persons seeking employment’ it showed that it was not aiming merely at a legal relationship between a specific employer and his employees.” 254 U.S. 443, 487 , 41 S.Ct. 172, 184 , 65 L.Ed. 349 , 16 A. L.R. 196.
*821 Reports of Committees
This history gives clear significance to the report of the House Committee on the Judiciary submitting the Norris-LaGuardia Act. Speaking of section 13 of the act, 29 U.S.C.A. § 113 , containing definitions, including a definition of “labor disputes,” the report said: “These definitions include * * * a definition of a person participating in a labor dispute which is broad enough to include others than the immediate disputants and thereby corrects the law as announced in the case of Duplex Printing Press Co. v. Deering wherein the Supreme Court reversed the Circuit Court of Appeals and held that the inhibition of section 20 of the Clayton Act [ 29 U.S.C.A. § 52 ], only related to those occupying the position of employer or employee and no others.” It gives significance also to the report of the Senate Committee on the Judiciary. It is said in the part of that report devoted to section 13 of the bill (dealing with definitions) that: “The bill undertakes specifically to designate those persons who are entitled to invoke the protection of the procedure required (by the bill) * * * in order that the limitation may not be whittled away by refined definitions of what persons are to be regarded as legitimately involved in labor disputes.”
Frankfurter and Harvard Law School.
But there is more in the background of the Norris-LaGuardia Act than the Clayton Act and the conflicting interpretations of that act. There is more in the background than the reports of committees submitting the measure to the two houses. In that background also is the figure, sinister or saintly (the reader may take his choice), the figure of Professor Frankfurter of the Harvard Law School. From High Olympus, more than once, he has moved the pawns upon the nation’s chess board and, it is whispered, on occasion has even sought to check the King. In part it was he who wrote the law. See footnote, “The Labor Injunction,” p. 226. Over and over again the committees refer to his book, “The Labor Injunction.” Obviously that book was written to promote this law. Whatever else one may think of this Jupiter, certainly it will be believed that he knew what he meant in what he wrote.
Concerning the section dealing with the definition of “labor dispute” (it was section 9, it is now section 13, 29 U.S.C.A. § 113 ), it is said in this book, p. 215 :
“A word may be appropriate concerning the rationale of the general scheme thus proposed, before reviewing the specific activities that, by section 4, are excepted from the reach of an injunction. It is an attempt to recognize frankly that the central problem of the law of industrial relations is to determine the purposes that justify combination of laborers by marking the outposts of the concept of “self interest.” How far laborers may combine to strive for concessions that are not of immediate benefit to them but which strengthen the union organization; how far a union in one craft may use its power to achieve the unionization of non-union plants within the same craft; how far a union of one craft may exert its power in aid to unions of another craft, and how dependent one craft must be upon the other to justify co-operative tactics — these and like issues are the crucial ones. Section 9 of the proposed bill settles all of these questions so far as application for equitable relief is concerned. Immunity from injunctions extends to all the categories that we have described, save alone as to persons who are not engaged in the same industry with the complainant. What occupation, craft or trade is within, or outside of, a particular industry is necessarily left for individual decision. The obvious change intended by Section 9 is to extend the area of unrestrainable conduct beyond the limits now recognized by federal decisions. The interpretation given by the Clayton Act by the Duplex Case, to the effect that the privileges of that Act may be invoked only in a dispute between an employer and his employees, is thus rendered innocuous. So much for the meaning of the new proposals.
“As to the merits of this extension of the permissible area of controversy, something has been said already. The economic bond that unites in interest all who earn their livelihood by any of the processes of fabrication and distribution of a single commodity, or of related commodities, or of commodities industrially dependent upon one another, is a relatively recent phenomenon in its significant proportions. Just as conditions of labor in one shop react upon conditions of labor in another shop of the same craft, so conditions of labor in the craft as a whole influence labor conditions in other but allied crafts. These are facts to be heeded if there is to be any correspondence between law and life. The meaning of these facts Mr. Justice Brandéis has made luminously clear:
*822 “ ‘When centralization in the control of business brought its corresponding centralization in the organization of workingmen, new facts had to be appraised. A single employer might, as in this case, threaten the standing of the whole organization and the standard's of all its members; and when he did so the union, in order to protect itself, would naturally refuse to work on his materials wherever found. When such a situation was first presented to the courts, judges concluded that the intervention of the purchaser of the materials established an insulation through which the direct relationship of the employer and the workingmen did not penetrate; and the strike against the material was considered a strike against the purchaser by unaffected third parties. * * * But other courts, with better appreciation of the facts of industry, recognized the unity of interest throughout the union, and that, in refusing to work on materials which threatened it, the union was only refusing to aid in destroying itself.’
“Section 9 thus registers the implications of interdependence within American industry. It permits the collaboration of efforts between unions whom substantial interests make natural allies. It withholds immunity from the chancellor’s decree at a point where combination aims to include unions that have no economic bond but only a sympathetic interest.”
Now we have at least a part of the background of the Norris-LaGuardia Act. And we know it was the purpose of Congress to prohibit outright and altogether injunctions in many labor disputes in which injunctions had been issued and to circumscribe and condition the issuance of injunctions in all labor disputes. And we know, also, that it was the purpose of Congress to so broaden (or, perhaps, to so clarify) the definition of a “labor dispute” as that “the limitation (i. e. upon injunctions) may not be whittled away by réfined definitions of what persons are to be regarded as legitimately involved in labor disputes.” Most clearly do we understand that it was the purpose of Congress to make it absolutely certain that the concept that a dispute must be between employer and employees was to be removed completely from the definition of a labor dispute.
The Purpose Accomplished
The purpose of Congress was effected. The elaborate definition of what is a labor dispute in section 13 of the act, 29 U.S.C.A. § 113 . is all-inclusive. Set out above is the full text of that section. It is now set out again, but broken up, in column 1. In parallel column 2 are set out the facts of the present case.
The Statute
A
“A case shall be held to involve or to grow out of a labor dispute 'when the case involves persons who are engaged in the samo industry, trade, craft or occupation; or have direct or indirect interests therein; * * - *
whether such dispute is (1) between one or more employers or associations of employers and one or more employees or associations of employees; (2) * * * or (3) between one or more employees or associations of employees and one or more employees or associations of employees;
S
or when the case involves any conflicting or competing interests in a “labor dispute” (as hereinafter defined, i. e. any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of wliether or not the disputants stand in the proximate relation of employer and employee) of ‘persons participating or interested’ therein (as hereinafter defined, i. e. a person or association shall be held to be a person participating or interested in a la-tor dispute if'relief is sought against him or it, and if he or it is engaged in the same industry, trade, craft, or occupation in which such dispute occurs, or has a direct or indirect interest therein, or is a member, officer, or agent of any association composed in whole or in part of employers or employees engaged in such industry, trade, craft, or occupation.**)
The Facts
A
All parties to the present controversy are engaged in the same industry, trade, craft and occupation.
The controversy here is between an employer (Donnelly Garment Company) and an association of employees (International)
Also- it is a controversy —between one association of employees (Donnelly Garment Workers* linion) and another association of employees (International).
B
This case involves “conflicting” interests (of plaintiff, intervener, and International) in a controversy concerning terms of conditions of employment (e. g. the International contends the plaintiff denies the plaintiff is in a class of manufacturing in which higher wages are paid). The controversy is also one concerning the “association and representation” of plaintiff’s employees (The International demanding and plaintiff and intervener resisting the demand that plaintiff's employees be unionized under plaintiff and then be represented by plaintiff),
mt ,. , The International is suet a Parson since reIiei is aouSM a®a“st lt and « <*• e„ its members) are «“gaged in the same industry> et0- as P'aintill and “‘“vener 0-“embers),
*823 It will be observed that the definition of a “case involving or growing out of a labor dispute” is divided here in two part?, A and B. Each is separate and distinct from the other. Probably it is necessarily implied in part A that the dispute there spoken of shall not be wholly unrelated to the business of the industry. There is, however, nothing expressly indicating that the dispute must concern some particular and restricted subject such as those described in paragraph (c) of section 13, 29 U.S.C.A. § 113 (c). In part A the emphasis is upon the disputants and not at all upon the subject of the dispute. Thus a case involving two labor unions (associations of employees) is declared to be a case involving or growing out of a labor dispute, without reference to the casus belli.
It is quite clear indeed that the controversy need not presently involve a labor dispute at all. The language of the statute is, “involving or growing out of a labor dispute.” 29 U.S.C.A. § 107 . A distinction is intended between a case involving a labor dispute and a case growing out of a labor dispute. That distinction may be illustrated out of the record in this case. Members of the International employed by the plaintiff were separated, temporarily at least, from the pay roll. A controversy concerning that matter between the International and the plaintiff certainly would have “involved” a labor dispute. But the incident in question happened several years ago. The employees who were dropped are not seeking work now in plaintiff’s factory. That dispute ended favorably to plaintiff. Is it inconceivable that antagonisms developed in that dispute from which came a resolution on the part of the International to unionize plaintiff’s employees? The International sets about to accomplish that result. Its efforts are opposed by plaintiff. That is a controversy. Does not that controversy “grow out of” a labor dispute ?
Returning now to part A of the definition and to the facts of this case set up in a parallel column, it will be seen that the facts fit the definition as the hand’ fits the glove. They still do that if we add to the definition a requirement that the controversy (if it is to be held to grow out of or involve a labor dispute) must concern terms and conditions of employment or the organization and representations /of employees.
And if we consider part B of the definition and the facts set up in parallel column (and parts A and B are independent of each other, if we have a controversy growing out of or involving a labor dispute according to the definition in either part A or part B, that is sufficient), once more the facts fit the definition as the hand fits the glove.
It would seem that nothing could more completely be demonstrated than that what we have here either grows out of or involves a labor dispute within the statutory definition. What is as obvious as the sun at noonday shining in an unclouded sky ought not to require further demonstration than to say, “there it is.” Only the facts that my associates, plaintiff’s and intervener’s learned and distinguished counsel, and one Circuit Court of Appeals, have denied what seems obvious to me justify further discussion of the matter.
Cases from Seventh Circuit
The case chiefly relied upon is that decided by the Seventh Circuit Court of Appeals, October 26, 1935, United Electric Coal Companies v. Rice et al., 80 F.2d 1, 5 . In that case the District Judge had refused to issue an injunction solely because he deemed the case involved or grew out of a labor dispute. His action was reversed by the Circuit Court of Appeals.
The ground for the conclusion reached by the Circuit Court of Appeals in which we are now interested (two other grounds also are set out by the court) was thus stated:
“The term ‘labor disputes’ comprehends disputes growing out of labor relations. It infers employment — implies the existence of the relation of employer and’ employee. * * *
“Equally clear we think must be the conclusion that the dispute referred to in the statute must be one between the employer and the employee or growing directly out of their relationship. It does not apply to disputes between employees or to disputes between employee unions to which employer is not a real party. The employer is not precluded from invoking the jurisdiction of a Federal court of equity unless it appears that it was in some way a party to the dispute, between two unions. * * *
“The entire Act had reference to controversies over wages and conditions of ■employment which arise between employer and employee and result in strikes or threatened strikes which work hardships upon the innocent third party- — the public.
*824 “In seeking to avoid strikes, it was to be expected that arbitration would be encouraged and resort to court proceeding discouraged. It is quite apparent that the employer has nothing to arbitrate and no use for conciliators when it and its employees are in accord. It is hard to see what sort of arbitration or conciliation was intended if the legislation referred to anything other than to strained or striking relation ships between employer and employee over wages and conditions of employment. Where the difference is between two unions, each striving to contract with the employer, and there is no controversy as to terms of employment with said employer, we are unable to see where any labor dispute exists to which the employer is a par- ^ 'I'
“Subsection (c)‘ of section 113, 29 U.S. C.A. defines labor dispute as follows:
“ ‘(c) The term “labor dispute” includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.’
“There was no controversy between appellant and appellees on any subject. Appellant’s employees could join any union they wished. They could change membership in one union for that of another. They could quit work, individually or collectively. But they cannot assert they have a controversy with appellant because of the existence or exercise of such rights. They could not, with no controversy with appellant at stake, change membership in unions and then demand of appellant that it break a valid contract which it had with another union and call it a controversy.”
Now it was found as a fact that in the case the only controversy was that between two unions. A contract had been made between the employer and the union then representing its employees. Certain of these employees had withdrawn from the union and entered into or formed another. The second union was now demanding that the employer break its contract with union No. 1 and contract with it. No difference existed between the employer and any of its employees touching wages or any term * or condition of employment. “The contest” was between the unions for membership and' the control of laborers was “extremely bitter.” The mines were closed by picket lines. Peace officers were unwilling or unable to handle the situation. The injunction was then asked.
Here then was what the Circuit Court of Appeals itself characterized as an “extremely bitter contest” between two unions (associations of employees) “for membership and the control of laborers” in a particular mine. In view of the definition of what is a labor dispute (which includes a case involving “persons engaged in the same industry * * * whether such dispute is * * * between one * * * association of employees and [another] * * * association of employees”), the conclusion of the Circuit Court of Appeals that the “extremely bitter contest” was not a labor dispute must be taken only as meaning that it was not a labor dispute to which the employer was a party.
The theory of the opinion of the Circuit Court of Appeals seems to be that, although a labor dispute is involved, if the party asking an injunction is not himself one of the disputants, the restrictions of the act do not apply to him. But that theory is inconsistent with the express language of the act which prohibits an injunction “in ariy case involving or growing out of a labor dispute.” 29 U.S.C.A. § 107 . There was certainly a labor dispute (“a bitter contest”) between two unions in .the case before the Circuit Court of Appeals. The picketing and violence ‘which injured the complainant resulted directly from that contest. The case then, even if it did not immediately involve a labor dispute, certainly was a case “growing out of a labor dispute.”
Again it appears to be the theory of the Circuit Court of Appeals, and it is said in so many words, that a labor dispute “must be one between the employer and the employee or growing directly out of their relationship.” This assertion is made in the face of the express provision of the statute that a labor dispute may exist “whether or not the disputants stand in the proximate relation of employer and employee.” 29 U.S.C.A. § 113 (c). It is made in the face of the history of the act, from which it appears clearly that one of the chief purposes of Congress was to avoid just such a-narrowness of definition.
Still again it appears to be. the theory of the Circuit Court of Appeals not only that there must be some kind of a controversy between him seeking injunctive relief and him or them against whom it is *825 sought (which undoubtedly is true), but also that that controversy must be a particular kind of a controversy (the act does not say so), to wit, a controversy which the disputants have a right to maintain. Said' the court, the employees “could not * * * change membership in unions and then demand of [the employer] that it break a valid contract which it had with another union and call it a controversy.”
Nothing in the act justifies _ any such' conclusion. Nothing in the meaning of the word “controversy” justifies any such conclusion. A controversy, _in the broad sense (and the word is so used here), is any sort of “difference” or “dispute” or “strife.” Even in the narrower legal meaning of the word’ a “controversy” is any justiciable dispute in civil matters. Whether the word is used broadly or narrowly, the existence of a controversy cannot possibly depend on the right or wrong of the conflicting contentions of the parties.
Lauf v. Shinner & Co.
The Circuit Court of Appeals for the Seventh Circuit decided also the case of Lauf v. Shinner & Co., 82 F.2d 68, 72 . In that case the court interpreted its earlier decision in United Electric Coal Companies v. Rice, pointing out that that decision was bottomed on the conclusion “that the labor dispute designated in the Norris-LaGuardia Act referred to a labor dispute between the employer and the employee and did not apply to disputes between employees or to disputes between employee unions to which the employer was not a real party,” and it pointed out that in that case the “employer was in no manner involved, except that it was suffering enormous damage without fault on its part. Both unions were satisfied with wages, hours, and conditions, and the strike was called merely because the employer would not cancel its contract with the United, and enter into a like contract with the Progressives.”
In the Lauf Case, the facts are closer in one respect to the facts in the case before this court than was the United Electric Coal Companies Case. In the Lauf Case, not one of the employees of Shinner & Company were members of the union against which injunctive relief was sought. The court said that: “Neither the employer nor any of his employees are engaged or involved in a labor dispute with anyone. The controversy, rather, seems to be a unilateral one with the sole object of coercing appellee [Shinner & Company] to compel its employees to join the appellant union, in order that it may represent the employees in their dealings with the employer. Appellants seek to accomplish that result by picketing and damaging the employer’s business.” The conclusion reached by the court that the Norris-LaGuardia Act did not condition the issuance of an injunction in such a case was bottomed entirely on the law as declared in the United Electric Coal Companies Case, to wit, that there cannot be a labor dispute within the meaning of the Norris-LaGuardia Act unless there is a dispute “between the employer and the employee.” Nothing is added in support of this conclusion to what was said in United Electric Coal Companies v. Rice. Although it is said (it does not bear upon- the definition of labor dispute) that the employer’s “right to carry on business — be it called liberty or property — has value, and he who interferes with the right without cause renders himself liable,” the suggestion is that a demand made without cause of an employer by a labor union or a demand with which the employer cannot comply without violating some provision of the law is not within the public policy of the Norris LaGuardia Act' and, therefore, not within the meaning of the phrase “a labor dispute,” as defined in that act.
Concerning the conclusion that the term “labor dispute” is restricted to a dispute between an employer and his employees, I have said all that I have to say. The further conclusion that either the definition of a labor dispute should be restricted to a dispute in which each of the disputants, e. g., the labor union, is demanding from the other something that it has a right to demand and that the other has a right to grant, or that the prohibition against the issuance of an injunction except as conditioned by the act is impliedly modified so as to authorize an injunction without compliance with the conditions of the act in a case in which the demand made by a labor union is a demand it does not have a right to make or one which the employer can not lawfully grant, is to be considered.
It is not pretended that the conclusion just stated is based upon any express language of the Norris-LaGuardia Act, for it is not. If it is supported by the act at all, it is supported' by implication. Certainly, any implied provision in an act may be made an express one. Is it to be understood then that it is the opinion of the Court of Appeals that the Norris-LaGuardia Act is *826 to be read as if section 1 of the act, 29 U.S. C.A. § 101, were thus written: “No court of the United States, as defined in this chapter, shall have jurisdiction to issue any-restraining order or temporary .or permanent injunction in any case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this chapter: Provided, however, that the prohibitions of this section shall not apply in a case in which employees, or an association of employees are demanding of an employer what they do not have a legal right to demand or what he does not have.a legal right to grant?”
Or is -it to be understood that the section, section 13, 29 U.S.C.A. § 113 , defining a case which shall be held to involve or grow out of a labor dispute, is to be read as if it was written as follows: “The term labor dispute includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee: Provided, however, that if the controversy is one in which employees, or an associaton of employees demands of an employer what it does not have a legal right to demand or what the employer does not have a legal right to grant, the controversy shall not be a labor dispute ? ”
What the Seventh Circuit Court of Appeals says necessarily is implied in the act is thus put in express language. The result is almost ludicrous. That Congress intended to close' every possible avenue of evasion of its purpose to prevent injunctions in labor disputes must be apparent to any one who reads the act and considers its background. How inconceivable it is that Congress, with such an intent, would itself have pointed to an easy way for the circumvention of that intent. To the judges is to be left the absolute discretion (that is, to the federal judiciary, including the trial judges and' the appellate judges) of setting aside the act whenever in their opinion employees or labor unions are demanding what they do not have a right to demand or demanding that which the employer does not have the right to grant. That the Congress put into the act by implication (or would have put into it in express language) such a self-destructive provision is to assume that the act was not written in the interest and at the dictation of the labor organizations of the country, when the contrary is written all over the act and in every provision of it.
Bearing of Public Policy on Definition
My learned' colleagues believe that the express and positive language of section 13, 29 U.S.C.A. § 113 , defining what Congress meant by a “case involving or growing out of a labor dispute,” must yield to what they conceive' are the implications of another section of the act, that is, of section 2, 29 U.S.C.A. § 102 , dealing with the “public policy- of the United States in labor matters.” They say: “The definitions of labor disputes embraced in section 113 [i. e. section 13, as enacted] of 29 U.S.C.A. must * * * be confined to cases which involve and concern such exercise of freedom of action on the part of employees with which the declared public policy deals.” Particularly do they rely, as they point out clearly, upon the following from section 2: “It is necessary that he [i.e., the invididual unorganized worker] have full freedom of association, self-organiz-irion, 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, restraint, 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.”
Here in section 2 is a declaration that it is the public policy of the United States that workers “shall be free from the interference, restraint, or coercion of employers of labor” to the end that they shall “have full freedom of association, self-organization, and designation of representatives of [their] own choosing.” And the whole act concerns itself with preventing or handicapping one method of “interference, restraint, or coercion of employers,” i. e., by obtaining injunctions. The whole act is an exemplification of the public policy declared. How do my colleagues derive from the public policy so declared a limitation of the later definition of “a case involving or growing out of a labor dispute ?”
First of all, they immediately amplify, as it seems to me, section 2, saying: “Interference and coercion on the part of employers is prohibited; and, if the employee is to be assured of actual liberty of contract, and freedom of association, coercion *827 from any source must likewise be prohibited.”
The conclusion is that interference with employees by an outside union is against public policy. But is that conclusion not perhaps unwarranted? The public policy of the United States, as declared by Congress, is against interference with workingmen by employers of labor only. It does not seem to me the court may first expand the declared public policy and then upon the expanded declaration build a limitation of an otherwise unlimited definition.
There is another answer to this argument. The public policy of the United States, even when declared expressly in a statute, is never of the substance of the statute. It is valuable only in interpretation; to be used only when something requires interpretation. That, I think, is elementary. If we have an ambiguous provision in a statute, a provision which will support two meanings, then we may resort to the declaration of public policy in the act, if thence some indication of the meaning intended may be derived. It was that rule which the Supreme Court had in mind when in Virginian Railway Co. v. System Federation, 300 U.S. 515, 563 , 57 S.Ct. 592, 607 , 81 L.Ed. 789 , it said that certain “strained and unnatural constructions” of the NorrisLaGuardia Act conflicted “with its declared purpose.”
With great respect I suggest my colleagues first should point out some ambiguity in section 13, dealing with definitions, before appealing to section 2, dealing with public policy. If it is possible to find in section 13, in its definition of a case “involving or growing out of a labor dispute,” as one meaning, that it must be a controversy between an employer and his employees (in face of the express and positive declaration to the contrary), then section 2 may be appealed to as supporting that meaning, if it does support that meaning. But it will be very difficult (impossible, I think) to discover any such meaning in section 13.
Bona Fides in Labor Disputes
It seems to me my colleagues possibly again err in suggesting that the sort of “labor dispute” intended by the Norris-LaGuardia Act is a "bona fide dispute as to wages, hours, terms and conditions of employment.” The act expressly provides that a dispute may concern other things than these. Moreover, if my colleagues mean by the use of the word “bona fides” in this connection that the dispute must be between disputants occupying the proximate relation of employers and employees, that is directly denied by the very words of the act. Perhaps they have in mind a contention of plaintiff’s counsel.
It was the contention of counsel for plaintiff that every element in the controversy between the International and plaintiff as it was described in the letter addressed to the plaintiff by the International and set out, for the first time, in the amended bill, and as shown by the evidence, was false and fraudulent. The 'weight of the evidence we have heard supports the conclusion that the contentions made by the International are not founded in the facts. But that is not to say that those contentions, or some of them, were not made in good faith. If we assume, however, that every essential element of a labor dispute is present, does it cease to be a labor dispute if the demand made by one disputant of others is not made in good .faith? Are courts authorized to decide upon affidavits whether there is present in the case a bona fide labor dispute and, deciding that there is none, to issue an injunction without requiring compliance with the conditions of the act? To say so is to emasculate the act. Not a word in the act justifies any such conclusion. It would be as reasonable to say that the Constitution does not guarantee a jury trial to a party whose contentions in a case are not made in good faith.
Finally, while I agree that the weight of the evidence is against the International as to every one of its contentions with the plaintiff, I am not willing to say that its officers and agents and counsel are so devoid of all decency as that there is not some measure of sincerity in some of their contentions. Nor do I suggest or think that my colleagues entertain that opinion.
Effect of National Labor Relations Act
2. To this point I have considered the Norris-LaGuardia Act and its effect upon the case before us entirely without regard to the later National Labor Relations Act, sections 151-166, Title 29 U.S.C.A., 29 ,U. S.C.A. §§ 151-166. Plaintiff and intervener advance the contention that the definition of “labor dispute” in the Norris-LaGuardia Act impliedly is modified by the later act. I'ne argument supporting the contention is this: The Labor Relations Act, § 7, 29 U. S.C.A. § 157 authorizes “employees * * * to bargain collectively through representatives of their own choosing,” and provides, section 9, 29 U.S.C.A. § 159 , that: “Repre *828 sentatives designated or selected for the purposes of collective bargaining by the majority of the employees * * * shall be the exclusive representatives of all the employees * * * for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.” If the employees of a given factory have organized and have selected representatives to bargain collectively for them, the employer is forbidden to bargain with any one else concerning “rates of pay, wages, hours of employment, or other conditions of employment.” And the argument continues, if the employer cannot bargain with any one else concerning “rates of pay, wages, hours of employment, or other conditions of employment,” he cannot have a controversy or dispute touching such matters with any one else.- (The argument is completed by the final contention that plaintiff’s employees have organized, have designated representatives to bargain collectively with plaintiff, and that a bargain has been struck, a contract entered into.) From all of this it is concluded that the definition of “labor dispute” in 'the Norris-LaGuardia Act has been modified so that now that phrase must be defined thus: A labor dispute is a controversy concerning “rates of pay, wages, hours of employment, or other conditions of employment” only if the controversy is between an employer and the representatives selected by the majority of the employees, provided the employees have organized and have selected representatives for collective bargaining.
Among the errors in this argument are these: (1) The Norris-LaGuardia Act and the Labor Relations Act concern entirely different matters, wherefore it is not to be presumed that the latter was intended to repeal or modify the former in any respect, absent an express declaration to that effect. (2) The existence or nonexistence of a dispute does not depend upon where the merits lie nor upon the inability, for legal or other reasons, of one of the parties to comply with the demands of the other. (3) The collective bargaining provided for in the Labor Relations Act is bargaining concerning “rates of pay, wages, hours of employment, or other conditions of employment.” It is not a bargaining “concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment.” But the “labor dispute” defined in the Norris-LaGuardia Act may be a dispute concerning this last-mentioned matter. Hence the argument of plaintiff, if otherwise sound, has no application to a controversy concerning the “association or'representation of employees. (4) The argument precludes the possibility of a “labor dispute,” where the employees are organized and have chosen representatives, and so ignores the express definition of what is a “labor dispute,” set out in section 2 of the Labor Relations Act, 29 U.S.C.A. § 152 , which definition is a repetition almost in haec ver„ba of that in the NorrisLaGuardia Act.
Subdivision No. 3 of the preceding paragraph profitably may be amplified. While the Labor Relations Act impliedly prohibits an employer bargaining with others than the chosen representatives of a majority of the employees “in respect to rates of pay, wages, hours of employment, or other conditions of employment” (National Labor Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 44 , 57 S.Ct. 615 , 81 L.Ed. 893 , 108 A.L.R. 1352 ; cf. Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 548 , 57 S.Ct. 592, 599 , 81 L.Ed. 789 ), most clearly it does not prohibit negotiations between an employer and a national or international union concerning organization of the employer’s employees by that union and the ultimate representation of the employees by the union. And that is true whether there is or is not an existing union. ■
Suppose a national union whose purposes are in good faith to improve the conditions of the working people in a given industry. Suppose a great factory which maintains an “open shop” and into which this national union has not been introduced, in which it has no local. No one will say that the members of the national union may not be vitally interested in the “rates of pay, wages, hours of employment, or other conditions of employment” in that factory, and therefore that they may not be vitally interested in the organization and representation of its employees. The “rates of pay, wages,” etc., of the whple industry may be affected by those maintained in this one factory. Suppose now that in this factory is a factory union. Suppose its organization has been inspired by the employer. If the employees really were entirely free to act as they chose, if they did not stand alone but had back of them the great numbers and resources of a national organization, perhaps the factory union never would have been organized. If we make these *829 suppositions, and none of them is difficult to make, is there not a legitimate field for a controversy between the employer and that national union ? Undoubtedly the Norris-LaGuardia Act contains a recognition of that field of controversy and says that a controversy in that field is a “labor dispute.” There is nothing to the contrary in the Labor Relations Act.
The International here contends that it is interested in the wages, hours, working conditions throughout the industry. It contends that the operation of one great factory like that of plaintiff as an “open shop” handicaps the International in its ceaseless struggle to better the conditions of its members. It contends that the factory union is employer dominated. It contends that in the long run the best interests of the employee class, including the employees in plaintiff’s factory, will be served if a solid front under one command is presented in the so-called industrial struggle. About these things it may be thought to be sincere. Those contentions are made in good faith, however elsewhere there may be camouflage and slander.
Effect of N.L.R.A. Considered Further
The whole of plaintiff’s theory here is that it became unlawful with the adoption of the National Labor Relations Act and with the organization of the factory union for plaintiff to conduct any negotiations whatsoever with the International. If the plaintiff could not, lawfully have negotiated with the International it could not have a dispute with it and, therefore, there was no labor dispute. (1) But this theory assumes that the Labor Relations Act impliedly forbids plaintiff negotiating with the International concerning the organization and representation of plaintiff’s employees, which it does not do. (2) The theory assumes that the Labor Relations Act forbids negotiations between plaintiff’s factory union and the International, which it does not do. (3) The theory assumes that if the law prohibited negotiations between the plaintiff and the International or between the factory union and the International there could not be a dispute between the plaintiff and the International or between the factory union and the International Union, which is plainly a non sequitur. There is a dispute here, the-existence of which is admitted. It concerns exactly what it would have concerned had there been no Labor Relations Act. Would it have been a labor dispute before the passage of that act but not after its passage? (4) The theory assumes that Congress did not intend in the combined NorrisLaGuardia and Labor Relations Act that in all cases injunctions against labor unions in contests with other unions or with some employer in the same industry should be preceded by compliance with the conditions laid down in the Norris-LaGuardia Act, if the union against which the injunction was sought is doing that which the law forbids (as dynamiting a factory or inducing some one to break a contract). That assumption is squarely against both the spirit and letter of the law. Indeed, the only injunction which the Norris-LaGuardia Act does allow are those against unlawful acts. Why would Congress protect a labor union from an injunction against dynamiting a factory unless the injunction was obtained as the Norris-LaGuardia Act provides and refuse it protection from an injunction against negotiating peacefully with any employer to raise wages in its factory solely because that employer is forbidden to deal with that union? (5) The theory assumes that the Labor Relations Act, under the circumstances shown here, forbids negotiations between plaintiff and the International touching wages, hours, etc., in plaintiff’s factory. It does not do that. It impliedly (and only impliedly) forbids plaintiffs entering into a contract with others than representatives of a majority of its employees. It is rather far-fetched to say that because the employees of a factory are organized and have a spokesman that no one else (the President, Governor, the mayor, the bishop of the diocese, an International Union) can negotiate or quarrel or have a dispute with that employer about wages and hours.
That a Forum is Provided to Decide a Controversy Does Not Affect Legitimacy of Controversy
But it is said that if there is a controversy here the Labor Relations Act' provides for the decision of such a controversy by the Labor Relations Board. Let us assume that that is true. A controversy between the International and the factory union as to which should represent the employees was one which might have been submitted to the Labor Board. It was then a legitimate controversy. Did it cease to be a legitimate controversy, a legitimate dispute, because it was not submitted to the Board? There is nothing in ’the act which declares expressly or by *830 implication that the International cannot carry on such a controversy by fomenting a strike, for example, among the employees, or in any other way whatsoever. The mere fact that a forum is provided for the settlement of a particular kind of a dispute certainly cannot be held to fnean that if the dispute is not submitted to that forun? therefore the dispute cannot exist. Are not courts provided for all kinds of disputes ? If disputes are not submitted to the courts, does it follow that there are no disputes? How can the legitimacy of a dispute be affected by the fact that it is or is not submitted to a tribunal which would decide, not the legitimacy of the dispute, but who is right in the dispute?
“Ex pressio unius,” etc.
We know that the Norris-LaGuardia Act was not overlooked when the National Labor Relations Act was drawn; for it is expressly referred to. See section 10(h), 29 U.S.C.A. § 160 (h). That reference is most significant. It is an express provision that in one particular, to wit, “when granting appropriate temporary relief or a restraining order, or making and entering a decree enforcing, modifying, and enforcing as so modified or setting aside in whole or in part an order of the Board, as provided in this section [i.e. in section 10], the jurisdiction of courts sitting in equity shall, not be limited by sections 101 to 115 of this title” (i.e., by the Norris-LaGuardia Act). The inference is (and such is the effect of the canon of construction, “ex pressio unius,” etc.) that this is the only respect in which the Norris-LaGuardia Act has been affected by the passage of the Labor Relations Act.
Did Congress Change Attitude Toward Labor
No one who reads the Norris-LaGuardia Act, especially if he reads it in the light of its history and background, can have any, doubt whatever but that Congress intended that no injunction should issue except as conditioned in the act in a dispute between a national labor union and an individual employer of labor concerning inter alia the unionization of employees under the national union. Concede now that the National Labor Relations Act provides a forum (the National Labor Relations Board) for the decision of just such a labor dispute as that, but that the union does not elect to submit that dispute to the forum provided and proceeds to lay siege vi et armis to the employer’s factory. What is there in the act, in the act which expressly provides (notwithstanding it provides a forum for the adjustment of labor' disputes) that it shall not “be construed so as to interfere with or impede or diminish in any way the right to strike,” section 13, 29 U.S.C.A. § 163 , that suggests an intention to diminish in some way a right only recently gained by labor, i. e., a right to freedom from injunctions except when obtained in accordance with stated conditions ? The whole course of Congress in the last decade is against such a conclusion.
Section 8, Norris-LaGuardia Act, 29 U.S.C.A. § 108
It was said at the oral argument by counsel for plaintiff that whereas the NorrisLaGuardia Act provides in section 8, 29 U.S.C.A. § 108 , that “No restraining order or injunctive relief shall be granted to any complainant * * * who has failed to make every reasonable effort to settle such dispute [i.e. the labor dispute involved] either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration,” the effect of the Labor Relations Act was to make impossible even negotiations (much less settlement) between the plaintiff and the International. From this the conclusion was drawn that the Norris-LaGuardia Act had been pro tanto repealed.
Is this not loose thinking? That the plaintiff and intervener could not conceivably have settled their controversies with the International is untrue. Nothing in the law prevented it. Other Kansas City manufacturers did settle similar controversies with the International. The only thing the Labor Relations Act prohibited was the closing of a collective contract between the plaintiff and the International against the wishes of the representatives of the majority of the plaintiff’s employees.
If it is inconceivable that a settlement was possible, what of that ? If a settlement is impossible for any reason, if that may be known in advance of an effort to settle, then an effort to settle'is not required. In a situation of that kind section 8 would not be construed to require such an effort, the law never requires an entirely or obviously useless thing, and section 8 would constitute no obstacle to the issuance of an injunction.
Question of Constitutionality
3. The validity of the Norris-LaGuardia Act is challenged in the event it should be *831 held by the court that we have here a “labor dispute” within the meaning of that act. The challenge is that the Norris-LaGuardia Act is “in contravention of the guarantees of liberty, property and due process (of) * * * the Fifth Amendment * * * and in contravention of * * * Article 3 of the Constitution * * * for the reason that it is a usurpation of the Judicial Branch of Government by the Legislative and Executive Branches. * * * ” But there is not much of merit in this challenge. As to that I agree entirely with my colleagues.
The “due process” clause of the Fifth Amendment would not be violated by the repeal of all laws creating the inferior federal courts. Undoubtedly Congress has the power to repeal those laws. If Congress constitutionally can withdraw all jurisdiction whatsoever from the District Courts, a fortiori it can withdraw a part of that jurisdiction. That power it has often exercised, nor has that power seriously been questioned. So, also, no withdrawal of jurisdiction and no reasonable conditioning of the exercise of jurisdiction where it is not withdrawn can violate article 3. It is now too late, for example, to contend that Congress does not have the power to say that only a District Court of three judges can enjoin an order of the Interstate Commerce Commission or decide a case in which the constitutionality of a statute of the United States is involved. It is now too late to say that Congress cannot require that before an injunction may issue a bond and.notice must be given. It is too late to say that Congress may not condition the issuance of an injunction, when jurisdiction to issue one at all is left, upon compliance with the seemingly reasonable conditions of the Norris-LaGuardia Act.
Conclusion
4. Entertaining the views I have sought to express here, I do not believe the temporary injunction now asked should issue. It is true that only the Norris-LaGuardia Act and its prohibition stand in the way. An overwhelming showing justifying an injunction under the law as it was certainly has been made. But the law is not as it was. Congress has seen fit to change the law. Congress has the power to do that. And the judges must apply the law, whether it is good or bad. They have taken a solemn oath that they will do that very thing.