# Petition for Writ of Certiorari — Barker Co. v. Painters Union

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1930
- **Citation:** 281 U.S. 462

## Text

IN THE

Supreme Court of the Anited States

BARKER PAINTING COMPANY,

Petitioner,

Us,

LOCAL NO. 734, BROTHERHOOD OF PAINTERS,
DECORATORS AND PAPERIANGERS OF AMERI-
CA; BROTHERHOOD OF PAINTERS, DECORA-
TORS AND PAPERHANGERS OF AMERICA;
GEORGE W. HOFFMAN AND HARRY 8S. WARREN,

Respondents.

Petition for Writ of Certiorari Directed to the United
States Circuit Court of Appeals for the Third Circuit
and Brief in Support Thereof.

“ MERRITT LANE,
Attorney for and of Counsel with Petitioner.

Arthar W. Crow, Law Printer, 55-57 Lafayette Street, Newark, N. J.

Ea

SUBJECT INDEX.

1. Petition for Writ of Certiorari directed to the
United States Circuit Court of Appeals for the

Chin cochiUU dees bist eenk deco e 1
9. Brief in Support of Application for Certiorari 9
a. The Opinion of the Court below ........ 9
I a 9
ec. The Grounds on which the Jurisdiction of
this Court is Invoked.................. 9
d. Statement of the Case.................. 10
e. Specification of Errors................. 10

I. The Cireuit Court of Appeals
erred in declining to consider the
merits of the Appeal because of its
prior decision in Barker Painting
Company vs. The Brotherhood, 15
i ED WE eet ls ven seeces 11

If. The Cireuit Court of Appeals
erred in declining to consider the
merits because the particular work
of petitioner, which had been inter-
fered with, had been completed
under the protection of a temporary
SE Seth s Sade ees owes chews 13
Ill. The District Court erred in
dismissing the bill and the Circuit
Court of Appeals for the Third
Cireuit erred in affirming for the
reasons that: (A) The conduct of
defendants is a boycott, the result
of a conspiracy, illegal at common
law. (B) The rule is unreasonable
and the classification bears no rea-
sonable relation to the wage scale
and the attempt of the Unions to
enforce the rule by combination is
unlawful and a violation of the

:

Pace

rights of petitioner. (C) The com-
bination is in unfair restraint of
trade, inimicable to public welfare
and in violation of the public policy
both of the State of New Jersey and
of the United States and the com-
bination and conspiracy is denounced
by the Act of July 2nd, 1890, Chap-
ter 746, 26 Statutes at Large, p.
209, making illegal contracts, com-
binations and conspiracies in re-
straint of trade of commerce among
the several States, and its supple-
ments and amendments, petitioner
being engaged in interstate trade.
The case involves a matter of suf-
ficient general importance to justify
Dh SOI ics tan knwesivacoen vice 15

IV. The decision of the United
States District Court was based
upon the statute of New Jersey here-
tofore referred to and its construc-
tion by the New Jersey Court of
Errors and Appeals in the New Jer-
sey Painting Company case and the
effect is that the United States Dis-
trict Court ip the instant case has
permitted the application of a statute
which, as construed by it, is offensive
to the provisions of the 14th Amend-
ere ore eer BE Oe re 19

4

TABLE OF CASES.

Barker Painting Co. v. The Brotherhood, 15 Fed.
(2d) 16 (C. A. A. 3rd. Cirenit)

4, 5, 6, 8, 10, 11, 12, 15, 16, 17

Barker Painting Co. v. The Brotherhood, 12 Fed.

(2d) 945 (U. S. District Court, New Jersey) ;

34 Fed. (2d) 3 (C. C. A. 3rd Cirenit) ......

Barr v. Essex Trades Council, 53 N. J. E. 101, 30

EE Sine c e216 chads Al Cuno w eee

Bedford Cut Stone Co. v. Journeyman S. C. Assn.,

ames, Was ¢ TAT: BORG oi ois cicwiccsw de icc

Brennan .v. United Hatters, 73 N. J. L. 729, 65

TMS berets B0boks Sus Obukca wave des ts

Coppage v. Kansas, 236 U. 8. 18, 59 L. Ed. 448

Hitchman Coal & Coke Co. v. Mitchell, 245 U. S.
ee Bis PI ok s Lc dead baa Valeo eben:

International News Service v. Associated Press,
ae a Pe | es ere

J

Jonas Glass Co. v. Glass Bottle Blowers Assn.,
77 N. J. E. 219, 79 Atl. 262...... 4, 7, 15, 18, 19, 20, 21

N

New Jersey Painting Co. v. Local No. 26, ete.,
95 N. J. E. 108, 122 Atl. 622, reversed 96

Bi ie we Cem 206 AG. OP oa 4, 7, 15, 20, 26

New Idea Pattern Co. v. Whitner, 215 Pa. 193,

. PN OO oss i vo ch ehekng kn oeebeednueees 12

oo,

Pag
T
Thompson Machine Co. v. Brown, 89 N. J. E. 326,
Pe Ae BE dies check psusideae coe eA EW Ras 0 1
Truax v. Corrigan, 257 U. S. 312, 66 L. Ed. 254 5,9
V
Vicksburg Waterworks v. Vicksburg, 185 U. S.
We ek ES cece odes owe vusicvaasce> 1
LIST OF STATUTES CITED.
3 Comp. Statutes of N. J. 3051; P. L. 1883, sec.
RS ME ina eocagne Gh uh bn as aceekssepe es 10,1
Judicial Code, sec. 240; 43 Statutes 938, sec. 347;
3 oe ee RS ee rere

Act of July 2, 1890 ; 26 Stat. at Large, ch. 746, p. 209 1

IN THE

Supreme Court of the United States

Barker Paintine Company,

Petitioner, Petition for

vs. Writ of Cer-
tiorari Directed
to the United
States Circuit

Loca No. 734, BrorHerHoop or Parnt-
ERS, DECORATORS AND PaPERHANGERS
or America; BrorHerHoop or Parnt- Court of
ERS, DEcoRATORS AND PAPERHANGERS Appeals for the
or America; Grorce W. HorrmMan Third Circuit
and Harry S. Warren, :

Respondents.

(Italics mine except where otherwise noted.)

To the Honorable the Chief Justice and Associate
Justices of the Supreme Court of the United States.

Petitioner, BARKER PAINTING COMPANY, a corpo-

ration organized and existing under the laws of the State
of New Jersey, humbly showeth:

1, A bill in equity was filed in the United States Dis-
trict Court, for the District of New Jersey, by petitioner,
Barker Painting Company, which has its home office in
the City of New York, and is engaged in the business of
painting and decorating over the United States and
Canada, including the States of New York, New Jersey,
Pennsylvania and the District of Columbia, to enjoin
the respondent, the Brotherhood of Painters, Deco-
rators and Paperhangers of America, a National labor
organization, operating throughout the entire United
States, and the respondent Local No. 734, which claims
jurisdiction over all persons engaged in painting or
decorating within the territory of Somerviiic, Somerset

County, New Jersey, and the respondent, Harry S. War.
ren, who is the organizer for the State of New Jersey of
the National union, and the respondent, George YW,
Hoffman, who is the business agent of Local No. 734, to
enjoin the enforcement, by strike and interference with
the employees of petitioner, of a rule of the National union
which requires an employer, performing work other than
in his home city, to pay the wage scale, either of his
home city or of the place where the work is being per-
formed, whichever be the higher (Bill of Complaint, p,
3). The bill alleged, and the proof on final hearing showed
that: Petitioner employed exclusively union labor,
operating closed union shop; petitioner on November
8, 1924, took a contract from the general contractor for
the painting work on a hospital in Somerville, Somerset
County, New Jersey; the contract provided that the work
should be performed as required by the progress of the
job; petitioner proceeded, employing help all local to
Somerville except the foreman; it complied with all union
conditions as to hours and wages, etc., for the territory
including Somerville; the work proceeded from December
7, 1924, to February 21, 1925, with all of the men satis.
fied; on February 21, 1925, George W. Hoffman, the busi-
ness agent of Local No. 734, instructed by Harry S. War-
ren the state organizer of the National union, insisted
that petitioner pay the wage scale of New York, its
home town, which was higher than that for Somerville,
and threatened that, if it did not, the employees of peti-
tioner would be directed not to work; petitioner refused;
the men were directed to cease work and did so although
satisfied with their wages, hours and working conditions;
they ceased only because they feared, if they continued
at work, that they would be expelled from the union and
thereby deprived of earning a livelihood, the industry
being, in effect, 100 per cent. unionized; the painting in-
dustry in New York, northern New Jersey, Connecticut
and Pennsylvania was and is so unionized, and all other

aT Hi ORY Serer ee

Nee

3

branches of the building industry in the territory were
and are so unionized, and the agreements between the
different branches of the industry were and are such,
as that no painting work could or can be performed except
with union labor, for if it were so performed, all other
branches of the industry would withdraw from the build-
ing and it could never be completed; a contractor can-
not be ‘‘fair’’ in one place and ‘‘unfair’’ in another and if
he employs non-union labor on one job all’ of his jobs,
whether manned exclusively with union labor or not will
be struck throughout. the country, and all building trades
would withdraw from any job upon which he was em-
ployed anywhere in. the country; the National union
threatened to compel petitioner and all other painting
contractors to comply with the rule by strikes, boycotts,
ete.; the effect of the rule and its enfercement already
had been such as that painting contractors of New York
could not take work in New Jersey; the business is highly
competitive and the effect of the rule, if enforced, would
be to limit all painting work to local contractors.

2. The bill was filed March 16, 1925 (p. 3) to enjoin
the enforcement of the rule, and ine actual interference
with the performance of the contract of petitioner for the
painting work on the hospital in Somerville was alleged
as an overt act and an injunction prayed against that
interference. Upon the filing of the bill ad interim re-
straint went and, before final hearing, the building had
been completed.

3. The case came on for final hearing, and, on April
14, 1926, an opinion was filed by Runyon, District Judge
(p. 20), which resulted in the final decree dismissing the
bill (p. 33).

4. From that decree an appeal was taken to the Circuit
Court of Appeals for the Third Circuit, which resuited in
the opinion of the court August 12, 1929, and the order of
affirmance (Addendum to the State of Case).

a

4

5. The jurisdiction of the District Court was basaj
both upon diversity of citizenship and constitution,
grounds.

6. The Cireuit Court of Appeals declined to consider
the merits for two reasons: (i) Because of its prior de
cision on a review from the denial of a preliminary jp.
junction by the District Court for the Eastern District of
Pennsylvania (Judge Buffington dissenting) in Barker
Painting Company v. The Brotherhood, 15 Federal (2nd)
16, and (2) Because the particular work of peti.
tioner, which had been interfered with by the union, had
been completed pending the proceedings under the pro.
tection of the temporary restraint.

7. Petitioner has therefore been deprived of a review
upon the merits by the Circuit Court of Appeals.

8. The writ of certiorari is applied for because the
Cireuit Court of Appeals, in declining to review th
decree dismissing the bill upon its merits, decided a
important question of general law in a way probably
untenable and in conflict with the weight of authority, and
so far departed from the accepted and usual course 0

*% judicial proceedings as to call for an exercise of the power

of supervision of this court, and because the decree of the
District Court decided a matter of so much general im
portance and of so far-reaching effect as to call for th
determination of this court and because the District Court
gave effect to a statute of New Jersey which, as construed
by the Court of Errors and Appeals of New Jersey in
New Jersey Painting Co. v. Local No. 26, 96 N. J. Eq. 632;
126 Atl. 399, overruling its prior decision in Jonas Glass
Co. v. Glass Bottle Blowers Assn., 77 N. J. Eq. 219; 7!
Atl. 262 (written by Chancellor Pitney, afterward a justice
of this court) and as construed by the District Court is
offensive to the provisions of the 14th Amendment to the
Constitution, upon the reasoning of the determination of

5

this court in Truax v. Corrigan, 257 U. S. 312; 66 L. Ed.
254.

9. The decision of the Circuit Court of Appeals for the
Third Circuit, in Barker Painting Company v. The
Brotherhood, 15 Federal (2nd) 16, was on a review of a
decree refusing 6 preliminary injunction. Judge Woolley,
writing t:c opinion for the majority of the Court (Judge
Buffington dissenting), after referring to what might be
urged by the union as justification for the rule, said:

“*We advert to these possibilities, certainly not to
express our views, nor to intimate sympathy with
the rules—for assuredly we have none—nor to sug-
gest arguments in support or reasons justifying
their promulgation, but merely to show that many
variable and intangible factors inevitably enter into
the situation, making the injunctive process of 3
doubtful propriety and legality.’’

He further referred to the fact that, up to the time of
the pronouncement of the decision, all the decisions of
the State Courts were against Bevery sn) the enforcement
of the rule while all of the decisions of the Federal
Courts were contra and he said (p. 17):

“‘The learned trial court was inclined to the 7
reasoning of the state decisions; and so are we,
not because the respondents have shown that the
rules are lawful, but, rather, because the complain-
ant has failed to show that they are unlawful.”

The effect of the refusal of the Circuit Court of Appeals
to consider the instant case on its merits was to give to
its prior decision the quality of res adjudicata, although
that decision was on an application for a temporary injunc-
tion which never issues except where the injury is im-

minent and the right clear both upon the law and the
facts.

10. The effect of its refusal to review because, pending
the suit, the particular work was completed was to treat
the overt act, i. e., the interference with the particular

a

6

contract, as that which was sought to be enjoined and to
ignore the rule that equity acts to prevent a reasonably
anticipated injury and actual injury is not required to set
the court in motion.

The bill was aimed not only at the interference by the
union with the performance of the particular contract but
also at the anticipated acts of the union with respect to
all of the work of petitioner throughout the country. The
interference with the particular contract was relied on
only as showing the reasonable probability that the union
would so interfere generally.

11. The Circuit Court of Appeals in its decision in
Barker Painting Co. v. The Brotherhood, 15 Fed. 2nd, p.
16 expressed .no sympathy with the rule but stated that
it was constrained to its holding as the result of a ‘‘cold
consideration of the cited authorities.’’ In the instant
ease it said:

‘*While we should be more than satisfied to have
this controversy between employer and organized
labor finally decided by the higher court, we are
constrained, until then, to stand by the decision
which we made not casually but after serious study
and, we confess, much mental disturbance.’’

12. The effect of the decision of the District Court,
which it is sought to review here, is to permit a labor
organization operating over the entire country in a trade
so closely unionized and so affiliated with other trades so
closely unionized as that it is impossible for an employer
to perform work without its consent, to arbitrarily dis-
criminate between employers in the matter of wages de-
manded, the discrimination being based solely upon the.
residence of the employer, and to permit unions to com-
bine, and such combinations, which may control labor
throughout the United States, in an industry so unionized
as that no work can be performed by an employer with-
out employing union labor, to establish and enforce such
discrimination. By such means employers of labor may

7

be driven out of a community, except those who may have
their residence therein.

13. The difference in the wage scale is based solely
upon the home town of the employer. He may employ at
the place where the work is being performed all local
help, yet, if the wage scale at his home town is higher
than the wage scale at the place of performance of the
work, he must pay the wage scale of his home town.

14. The District Court based its decision largely upon
the statute of New Jersey, P. L. 1883, p. 36, 3 C. S. of
N. J. 3051, sec. 128 reading as follows:

‘“‘That it shall not be unlawful for any two or
more persons to unite, combine, or bind themselves
by oath, covenant, agreement, alliance or otherwise,
to persuade, advise, or encourage, by peaceable
means, any person or persons to enter into any
combination for or against leaving or entering into
the employment of any person, persons or cor-
porations.’’

It relied upon the decision of the New Jersey Court of
Errors and Appeals in New Jersey Painting Co. v. Local
No. 26, 96 N. J. E. 632; 126 Atl. 399 (reversing the Court
of Chancery of New Jersey, 95 N. J. E. 108; 122 Atl. 622,
in granting an injunction in a case similar to that at
bar) construing that statute and overruling its previous
decision in Jonas Glass Company v. Glass Bottle Blowers
Association, 77 N. J. E. 219; 79 Atl. 262, which was to the
effect that, if the statute was to be construed as the Court
of Errors and Appeals did construe it in New Jersey
Painting Company v. Local No. 26, 96 N. J. E. 632; 126
Atl. 399, it was unconstitutional under New Jersey Con-
stitution, article I, par. 1, which is the due process clause
of the New Jersey Constitution, and, if offensive to that
provision of the New Jersey Constitution, it would be
equally offensive to the provision of the 14th Amendment
to the Constitution of the United States which prohibits a
state enforcing any law which denies due process of law

a
et ES

8

or the equal protection of the law. The District Court
adopted the construction put upon the statute by the New
Jersey Court of Errors and Appeals in New Jersey
Painting Company v. Local No. 26, 96 N. J. E. 632; 126
Atl. 399, and gave effect to the statute as so construed
with the result that the decree rests upon a statute which,
as construed by the New Jersey Court of Errors and Ap-
peals and by the District Court, is offensive to the pro-
visions of the 14th Amendment to the Constitution of the
United States.

Wherefore your petitioner respectfully prays that a
writ of certiorari may issue out of and under the seal
of this Court, directed to the United States Circuit Court
of Appeals for the Third Circuit, commanding the said
court to certify and send to this court on a day certain
to be therein designated, a full and complete transcripi
of the record and all proceedings of the said United States
Circuit Court of Appeals for the Third Circuit, and of
the District Court of the United States, for the District
of New Jersey, and all proceedings in both courts, to the
end that the said case may be reviewed and determined
by this court, as provided by law, and that your petitioner
may have such further and other relief or remedy in the
premises as to this court may seem appropriate, and that
the said decree of the United States Circuit Court of
Appeals for the Third Circuit affirming the decree of the
United States District Court for the District of New
Jersey may be set aside and that the decree of the United
States District Court, for the District of New Jersey, may
be set aside and the record remitted to that court with
instructions to enter a decree granting the relief prayed
for by the plaintiff, and your petitioner will ever pray,
etc.

MERRITT LANE,
Attorney for and of Counsel with Petitioner.

—

BRIEF IN SUPPORT OF APPLICATION FOR
FOR CERTIORARI.

I.
The opinion of the court below.

The opinion of the United States District Court, for
the District of New Jersey, the court of first instance, is
reported in 12 Federal (2nd) 945, and is printed p. 20
of the record. The opinion of the Circuit Court of Appeals
for the Third Circuit is reported in 34 Federal (2nd)
p. 3 (Advance sheets) and is printed in the addendum to
the record.

IT.
Jurisdiction.
The jurisdiction of this Court is rested on Section 240 of
the Judicial Code, as amended by the Act of February 13,

1925, sec. 1, 43 Statutes 938, sec. 347, title 28, U. S. C. A., p.
359.

The date of the decree of the United States Circuit
Court of Appeals for the Third Circuit to be reviewed is
August 12, 1929 (Addendum to record).

ITI.

The grounds on which the jurisdiction of this court is
invoked.

In declining to review the decree of the United States
District Court, for the District of New Jersey, upon its
merits, the Circuit Court of Appeals for the Third Circuit
has decided an important question of general law in a way
probably untenable and in conflict with the weight of
authority and has so far departed from the accepted and
usual course of judicial proceedings as to call for the
exercise of this court’s power of supervision.

10

The United States District Court for the District of
New Jersey and the Circuit Court of Appeals for the
Third Circuit, by affirming its decree, have determined a
matter of such general interest in a way which will lead
to such incalculable harm and injury to rights of em.
ployers as that the matter should be reviewed by this court
and. have given effect to a statute of New Jersey, P. L,
1883, p. 36, C. S. of N. J. 3051, sec. 128, which, as con-
strued by the District Court, is offensive to the 14th
Amendment of the Constitution of the United States in

that it denies due process of law and the equality of the
law.

IV.
Statement of the case.

The case is fully stated in the petition, paragraph 1.

V.
Specification of errors.

«

+. The Circuit Court of Appeals erred in declining to
consider the merits of the appeal because of its prior

decision in Barker Painting Company v. The Brotherhood,
15 Fed. (2nd) 16—

2. The Circuit Court of Appeals erred in declining to
consider the merits because the particular work of peti-
tioner which had been interfered with had been completed,
under the protection of a temporary injunction.

3. The District Court erred in dismissing the bill
and the Cireuit Court of Appeals for the Third Circuit
erred in affirming for the reasons that— (a) The conduct
of defendants is a boycott, the result of a conspiracy,
illej;al at common law; (b) The rule is unreasonable and
the classification bears no reasonable relation to the wage
scale and the attempt of the unions to enforce the rule by

1l

combination is unlawful and a violation of the rights of
petitioner; (c) The combination is in unfair restraint of
trade, inimicable to public welfare and in violation of the
public policy both of the Staie of New Jersey and of the
United States and the combination and conspiracy is de-
nounced by the Act of July 2, 1890, chapter 746, 26
Statutes at Large, p. 209, making illegal contracts, com-
binations and conspiracies in restraint of trade or com-
merce among the several states and its supplements and
amendments, petitioner being engaged in interstate trade.

The case involves a matter of sufficient general im-
portance to justify a review.

4. The decision of the United States District Court,
ror the District of New Jersey was based upon the statute
of New Jersey heretofore referred to and its construction
by the New Jersey Court of Errors and Appeals in the
New Jersey Painting Company case, and the effect is that
the United States District Court in the instant case has
permitted the application of a statute which, as construed
by it, is offensive to the provisions of the 14th Amendment.

I,

The Circuit Court of Appeals erred in declining to con-
sider the merits of the appeal because of its prior de-
cision in Barker Painting Company vs. The Brotherhood,
15 Federal (2nd) 16.

The decision of the Circuit Court of Appeals in the
case cited was on a review of a decree of a District Court
of Pennsylvania declining to grant a preliminary injunc-
tion.

A consideration of the opinion will indicate that, in the
last analysis, the Circuit Court of Appeals based its
decision upon the rule that preliminary -injunctions will
not go unless the right is clear both upon the law and the
fact. In its opinion it devoted considerable space to refer-

12

ence to reasons which might be advanced by the union

in justification of the rule expressly stating that it did _
not do so to intimate any sympathy with the rule ‘for
assuredly we have none.”’ |

That there is a distinction with respect to the amount
and kind of proof which will induce a court to grant a
permanent injunction after a full hearing and that which
will induce a court to grant a preliminary injunction after
a hearing only upon affidavits almost goes without saying,

The distinction is, I think, as well drawn as anywhere
in New Idea Pattern Co. v. Whitner, 215 Pa. 193, 64 Atl.
518, at p. 520:

‘*A preliminary injunction is not, however, to be
granted where the plaintiff’s right to it is in doubt.
1 Spelling, Extraordinary Relief, sec. 20; Black
Lick Mfg. Co. v. Gas Co., 189 Pa. 448, 454, 21 Atl.
432; Waring v. Cram, 1 Pars. Eq. Cas. 516. The
refusal of it does not repudiate the plaintiff’s rights
if he can ultimately establish any; it merely denies
him an extraordinary remedy properly applicable
only to cases in no respect equivocal; Daizell vr.
Crawford, 1 Pars. Eq. Cas. 37, 46.’’

An application was made in Barker Painting Co. v. The
Brotherhood, 15 Fed. (2nd) 16, to this court for a cer-
tiorari, which was denied, 273 U. S. 748; 71 L. Ed. 872. It
is impossible, of course, for counsel to know why it was
denied, but it may well have been, the application being
for a preliminary injunction, heard upon affidavits, that it
was conceived that, if the matter was to be reviewed, it
should be after a final hearing, with full opportunity to
both sides to adduce all the proofs possible. The decree
in the case at bar followed such a hearing.

e # : stig

13

II.

The Circuit Court of Appeals erred in declining to
consider the merits because the particular work of peti-
tioner, which had been interfered with, had been com-
pleted under the protection of a temporary injunction.

The Circuit Court of Appeals misapprehended the pur-
pose of the bill. It was aimed at the conspiracy t2 inter-
fere with any work of petitioner throughout the country
on which petitioner did not pay the wage scale of his
home town or of the place in which the work was being
done, whichever was the higher. The International Union
had adopted a resolution directing the enforcement of
its rule which required such a wage scale to be paid and
to enforce that rule its representatives threatened to
interfere with any work upon which the rule was not being
observed. The bill alleged, and the proofs showed, that
the painting industry in New York, northern New Jersey,
Connecticut and Pennsylvania was so unionized, and all
other branches of the building industry in the territory
were so unionize<, and the agreements between the dif-
ferent branches of the industry were such, as that no
painting work could be performed except by union lahor
for if it was so performed all other branches of the
industry would withdraw from the building and it could
never be completed and that a contractor could not be
‘fair’? in one place and ‘‘unfair’’ in another, and if he
employed non-union labor on one job all of his jobs,
whether manned exclusively by union labor or not, would
be struck throughout the country, and all trades would
withdraw from «ny building job anywhere in the country
upon which he was employed.

The National Union had notified all contractors by
letter of December 5, 1921, Exhibit P. 4, p. 156, that the
rule would be enforced. The bill alleged, and the proofs
showed, that such an enforcement of the rule would re-

14

strict work to contractors local to the territory in which
the work was being performed.

The actual interference by the union with the work of
petitioner on the hospital in Somerville was alleged and
proven only as indicating that the union meant what it
said and as proof of the kind of interference which would
be resorted to.

In Bedford Cut Stone v. Journeymen S.C. Asso., 274
U. S. 37, at p. 54, and 71 L. Ed. 916, at p. 924, this court
said:

‘The record does not disclose whether petitioners
at the time of bringing suit had suffered actual in-
jury; but that is not material. An intent to restrain
interstate commerce being shown, it is enough to

: justify equitable interposition by injunction if there

be a dangerous probability that such injury will
happen; and this clearly appears.’’

And this court quoted among other cases Thompson
Machine Co. v. Brown, 89 N. J. E. 326-228; 104 Atl. 129,
in which case the Court said:

‘If the threats, open and implied, of the various
users of the machinery and workers thereon, are
carried out, there will, unquestionably, be injury.
This court does not wait until there is actual injury;
it protects against anticipated imjury.’’

In Vicksburg Waterworks v. Vicksburg, 185 U. S. 66,
at p. 82, 46 L. Ed. 808, at p. 816, this court said:

“It is further contended that the bill does not
disclose any actual proceeding on the pari of the
city to displace complainant’, right» under the con-
tract, that mere apprehension that illegal action
may be taken by the city cannot be the basis of
enjoining such action, and that therefore the circuit
court did right in dismissing the bill. We cannot
accede to this contention. It is one often made in
eases where bi'ls in equity are filed to prevent
anticipated and threatened action. But it is one
of the most valuable features of equity jurisdiction
to anticipate and prevent a threatened injury, where
the damages would be insufficient or irreparable.”

15

ITI.

The District Court erred in dismissing the bill and the
Circuit Court of Appeals for the Third Circuit erred in
affirming for the reasons that (a) The conduct of defend-
ants is a boycott, the result of a conspiracy, illegal av
common law; (b) The rule is umreasonable and the
classification bears no reasonable relation to the wage
scale and the attempt of the unions to enforce the rule
by combination is unlawful and a violation of the rights
of petitioner; (c) The combination is in unfair restraint
of trade, inimicable to public welfare and in violation of
the public policy both of the State of New Jersey and of
the United States and the combination and conspiracy is
denounced by the Act of July 2, 1890, Chapter 746, 26
Statutes at Large, p. 209, making illegal contracts, com-
binations and conspiracies in restraint of trade of com-
merce among the several states, and its supplements and
amendments, petitioner being engaged in interstate trade.

THE CASE INVOLVES A MATTER OF SUFFI-
CIENT GENERAL IMPORTANCE TO JUSTIFY A
REVIEW.

I will not attempt to argue the merits to any great
extent. That there are merits to be argued is demon-
strated by the facts that: up until the time of the decision
of the Cireuit Court of Appeals in the prior case, the
Barker Painting Company v. The Brotherhood, 15 Fed.
(2nd) 16, as stated by the court in that opinion, the State
decisions were against the awarding of an injunction re-
straining the enforcement of the rule while the Federal
decisions were contra; the Vice-Chancellor, in New Jersey
Paiming Co. v. Local No. 26, 95 N. J. E. 108; 122 Atl. 622,
in a well-reasoned opinion, held that an injunction should
go and it was necessary, in reversing, for the Court of
Errors and Appeals of New Jersey, 96 N. J. E. 632; 126
Atl. 399, to overrule its prior decision in Jonas Glass Co.
v. Glass Bottle Blowers Asso., 77 N. J. EB. 219; 79 Atl. 262,

~ ay

16

which had been taken as settled law, and to construe a
statute of New Jersey in such a way as to make it offensive
to the provisions of the 14th Amendment to the Constitn.
tion; the vote in the Court of Errors and Appeals was ten
to five, with a sho e t vigorous and well-reasoned dissent
by Judge Whitel 3; the Circuit Court of Appeals
both in its prior decision in Barker Painting Co. v. The
Brotherhood, 15 Fed. (2nd) 16, and in its decision in the
present case, 34 Fed. (2nd) 3, addendum to the record,
expressed its lack of sympathy with the rule, its ‘‘mental
disturbance’’ and its more than gladness to have the case
passed upon by the higher court, reaching its conclusion
only because it felt that it was ‘‘constrained’’ to do so;
Judge Buffington dissented in the first case and did not
sit in the second.

The argument here will be confined to an attempt to
indicate that the matter is of sufficient general importance
to justify a review by this court.

The far-reaching effect of the adjudication that the
union may enforce this rule by strikes, combinations and
boycotts, cannot be over-estimated. If this union can
promulgate such a rule and enforce it, all unions may do
the same, and they may, in combination, enforce their
respective rules with the result that labor may dictate
what employers shall be permitted to perform work in
certain localities. If a discrimination can be based upon
the place of the employer’s main office, it may be based
upon whether the employer is an individual, corporation
or partnership, and upon the amount of invested capital
and upon the net worth and upon the return which the
employer has been able to make upon his investment. I
submit that no such power can be permitted to exist in
any group or groups of men without the destruction of the
fundamental principles upon which this government is
founded—equality of opportunity.

17

The Circuit Court of Appeals for the Third Circuit in
its opinion in Barker Painting Co. v. The Brotherhood,
15 Federal (2nd) 16 indicated its lack of sympathy with
the rule and also pointed to the divergent holdings in the
State and the Federal courts upon the validity of the rule.
In its opinion in this case it confessed its ‘‘mental dis-
turbance’’ in reaching the conclusion it had in: the first
case, and it stated that it would be more than satisfied
to have this controversy between employer and organized
labor finally decided by the higher court.

And Judge Buffington dissented in the first case.

The Vice-Chancellor in New Jersey Painting Co. v.
Local No, 26, 95 N. J. E. 108; 122 Atl. 622, used vigorous
language in coming to the conclusion that an injunction
should go against the enforcement of the rule. He said:

‘*That the operation of the amendment would be
in unlawful restraint of trade is too obvious to
require extended discussion. Its effect would be
practically to bar a foreign contractor, ruled as he
is by the higher union wage scale at his place of
business, from successfully competing with a local
contractor, for, in bidding, he would necessarily
have to estimate on the basis of his home wage
scale as against the local contractor’s bid at the
local and lower scale. This, manifestly, would
destroy fair and honest competition. In the in-
stant case it operates to the injury of a citizen of
another state, and the union seeks to do, in effect,
what the states are forbidden to do by the United
States Constitution.’’

The New Jersey Court of Errors and Appeals in the
same case 96 N. J. E. 632; 126 Atl. 399, based its decision
upon the statute of New Jersey, P. L. 1883, p. 36; 3 Comp.
Stat. of N. J., p. 3051, sec. 128, reading as follows:

‘that it shall not be unlawful for any two or more
persons to unite, combine or bind themselves by
oath, covenant, agreement, alliance or otherwise, to
persuade, advise or encourage, by peaceable means,
any person or persons to enter into any combination

18

for or against leaving or entering into the employ.
ment of any person, persons or corporation.’’

Five judges of the New Jersey Court of Errors and
Appeals dissented, and Judge White, in his, dissenting
opinion in 126 Atl. at p. 403 : (wet cfpre. nope

‘*The place of residence of the contractor is not
in any way germane to the wage scale he should be
required to pay. If he attempts to do work where
there is no established wage scale, his employees or
their organization for them, may fix the wages at
which they are willing to work and he cannot com.
plain; but where, as here, his employees’ organiza-
tion has fixed the wage scale for the locality in-
volved, they may not, it seems to me, boycott him
by providing that because he does not personally
live in that locality, but, as here, lives in some other
city or state, he shall because of that reason alone
be required to pay a higher wage scale. The place
of residence of the contractor not being germane to
the subject of the wage scale he may be required
to pay, any discrimination made against him
founded upon such place of residence alone is in
principle a boycott, and is unlawful.’’

‘‘This principle was thought so important by the
framers of our Federal Constitution that they pro-
vided in that instrument against any such dis-
crimination by any state against the citizens of any
other state, and it seems to me a curious condition
which, while denying to the sovereign states them-
selves this privilege of invading the equal rights
of the citizens, should accord such right of invasion
to the Star Chamber Ex parte Committee which met
in Dallas, Texas, in the year 1922, and promulgated
the rule here in question for the government (under
penalty of strike) of all the citizens of all of the
states.’’

In reaching its conclusion that the statute permitted the
enforcement of such a rule as this by strikes, etc., the
Court of Errors and Appeals of New Jersey overruled its

prior decision in Jonas Glass Co. v. Glass Bottle Blowers
. Asso., TT N. J. E. 218; 79 Atl. 262 and construed the

————_—_— —

19

statute in such a way as to render it offensive to the pro-
visions of the 14th Amendment to the Constitution of the
United States.

The case is of so much general importance as to merit
a review by this court.

IV.

The decision of the United States District Court was
based upon the statute of New Jersey heretofore referred
to and its construction by the New Jersey Court of Errors
and Appeals in the New Jersey Painting Company case
and the effect is that the United States District Court in
the instant case has permitted the application of a statute
which, as construed by it, is offensive to the provisions
of the Fourteenth Amendment.

In Jonas Glass Co. v. Glass Bottle Blowers Asso., 77
N. J. E. 219; 79 Atl. 262, in an opinion by the Chancellor,
Mahlon Pitney, later a Justice of this Court, the New
Jersey Court of Errors and Appeals, said:

‘*In Mayer v. Journeymen Stonecutters’ Asso.,
47 N. J. E. (2 Dick) 519, 531, Vice-Chancellor Green
apparently treated this act as legalizing private
injuries. And in Cumberland Glass Manufacturing
Co. v. Glass Bottle Blowers’ Asso., 59 N. J. E.
(14 Dick) 49, 53, Vice-Chancellor Reed construed it
as permitting the adoption of peaceable measures
for inducing workmen to quit or to refuse to enter
an employment. Whatever may have been the pur-
pose of its framer, there are, as we think, con-
stitutional obstacles in the way of giving the act so
extensive a force. The rights of enjoying and de-
fending life and liberty, acquiring, possessing and
protecting property, and pursuing and obtaining
safety and happiness, are declared by our Constitu-
tion to be unalienable. N. J. Const. art. I, pl. 1.
No act of the Legislature is to be construed as
infringing upon these rights unless its language
plainly and clearly requires such a construction. If

its language so reads, it is to the extent indicated
unconstitutional and void. The act of 1883, is as we
think, properly to be treated as merely rendering
the combination no longer indictable; in effect, as
repealing the rule laid dowu Ly the Supreme Court
of this State in State v. Donaldson, 32 N. J. Law
(3 Vr.) 151. It does not legitimize an invasion of
private rights nor prevent the party injured from
having full redress.’’

Since the decision of the New Jersey Court of Errors
and Appeals in Brennan v. United Hatters, 73 N. J. L.
at p. 744, 65 Atl. 165, opinion also written by Justice
Pitney and the decision of the same Court in Jonas Glass
Co. v. Glass Bottle Blowers Asso., 77 N. J. E. 219, 79
Atl. 262, also written by Mr. Justice Pitney (then Chan-
cellor), in view particularly of the dissenting opinion of
Mr. Justice Minturn which succinctly set forth the effect
of the decision as to the statute, it was considered by the
Bar that the matter was settled in the State of New Jersey
and that, as stated in the Jonas Glass Co. case, the
statute could not be given any such wide scope as the
New Jersey Court of Errors and Appeals gave it in New
Jersey Painting Co. v. Local No. 26, 96 N. J. EB. 632, 126
Atl. 399, and that:

‘“‘The act of 1883 is, as we think, properly to be
treated as merely rendering the combination no
longer indictable; in effect, as repealing the rule
laid down by the Supreme Court of this State in
State v. Donaldson, 32 N. J. L. 151. It does not
legitimize an invasion of private rights u>r prevent
the party injured from having full redress. Its
proper scope is indicated in the opinion of Vice-
Chancellor Pitney in Frank & Dugan v. Herold, 63
N. J. E. 443, 447, 448.”’

The decision of the Court, upon that point, was dis-
sented to by but one judge, Mr. Justice Minturn. Three
other judges dissented from the result but not from that
part of the opinion having to do with the scope of this
statute.

21

The opinion in Jonas Glass Co. v. Glass Bottle Blowers
Asso., 77 N. J. E. 219, relied upon and cited with approval
Barr v. Essex Trades Council, 53 N. J. E. 101, 30 Atl.
881; Brennan v. United Hatters, 73 N. J. L. 729, 65 Atl.
165.

This court has cited with approval the case of Barr v.
Essex Trades Council, 53 N. J. E. 101, 30 Atl. 881, in
Truaxz v. Corrigan, 257 U. S. 311, 320, 66 L. Ed. 255, and
it cited, with approval, Brennan v. United Hatters, 73
N. J. L. 729, 65 Atl. 165, in Hitchman v. Mitchell, 245
U. S. 229, 62 L. Ed. 260, and both Barr v. Essex Trades
Council and Brennan v. United Hatters were cit.d with
approval in International News Service v. Associated
Press, 248 U. S. at page 213, 63 L. Ed. 211.

If the New Jersey statute is to have the construction
put upon it by the New Jersey Court of Errors and Ap-
peals in New Jersey Painting Co. v. Local No. 26, 96
N. J. Eq. 632, 126 Atl. 399, and by the District Court
in the case at bar, then it is offensive to the 14th amend-
ment under the decision of this court in Truaw v. Corri-
gan, 257 U. 8. 312, 66 L. Ed. 255. In that case there
came before this court the refusal of the Supreme Court
of the State of Arizona to grant an employer an injunc-
tion against a conspiracy and boycott, one of the con-
comitants of the conspiracy and boycott being picketing.
The Supreme Court of Arizona rested its decision upon a
statute of Arizona which, as construed by the Supreme
Court of Arizona, prevented the court from prohibiting
picketing so long as peaceful, and, as the Chief Justice
of this Court said in delivering the opinion of this Court:

“The effect of this we is that, under the
statute, loss may be inflicted upon the plaintiffs’

property and business by ‘picketing’ in any form
if violence be not used, and that, because no vio-
lence was shown or claimed, the campaign carried
on, as described in the complaint and exhibits, did
not unlawfully invade complainants’ rights.”’

ae ,

This court held that the statute was unconstitutional
both as a taking of property without due process of law
and a denial of the equal protection of the law. It said:

‘‘The —- of the State Supreme Court in this
case, if taken alone, seems to show that the statute

ants complete immunity from any civil or crim.
inal action to the defendants, for it pronounces
their acts lawful. * * *”’

‘It is argued that while the right to conduct a
lawful business is property, the conditions surround-
ing that business, such as regulations of the State
for maintaining peace, good order and protection
against disorder, are matters in which no person
has a vested right. The conclusion to which this
inevitably leads in this case is that the State may
withdraw all protection to a property right by civil
or criminal action for its wrongful injury, if the
injury is not caused by violence.’’

This Court held that, if the statute should be construed
as merely to withhold from the parties a remedy through
the equitable relief of injunction, it was void as denying
the equal protection of the law.

This Court said that the classification of employers in
the manner created by the statute was illusory, and

‘‘Classification like the one with which we are

here dealing is said to be the development of the

philosophic thought of the world, and is opening

the door to legalized experiment. When fundamen-

tal rights are thus attempted to be taken away,

however, we may well subject such experiment to

attentive judgment. The Constitution was intended

—its very purpose was—to prevent experimenta-

tion with the fundamental rights of the individual.

We said through Mr. Justice Brewer, in Muller ».

Oregon, 208 U. S. 412, 52 L. Ed. 551, ‘it is the pe-

culiar value of a written constitution that it places

in unchanging form limitations upon legislative

action, and thus gives a permanence and stability _

to popular government which otherwise would be _
lacking.”’ * * *

:

23

“It seems a far cry from classification on the
basis of relation of employer and employee in re-
spect of injuries received in course of employment
to classification based on the relation of an em-
ployer, not to an employee, but to one who has
ceased to be so, in respect of torts thereafter com-
mitted by such ex-employees, on the business and
property right of the employer. It is really a lit-
tle difficult to say, if such classification can be sus-
tained, why special legislative treatment of as-
saults upon an employer or his employees by ex-
employees may not be sustained with equal reason.
It is said the State may deal separately with such
disputes because such controversies are a frequent
and characteristic outgrowth of disputes over terms
and conditions of employment. Violence of ex-em-
ployees toward present employees is also a char-
acteristic of such disputes. Would this justify a
legislature in excepting ex-employees from criminal
prosecution for such assaults, and leaving the as-
a persons to suits for damages at common

aw?

The dissenting opinion of Mr. Justice Holmes, in which
he says:
‘‘By calling a business ‘property’ you make it
seem like land, and lead up to the conclusion that a
statute cannot substantially cut down the advan-
tages of ownership existing before the statute was
passed.’’
indicates to what extent the prevailing opinion went.

In conclusion I submit to your Honors that if unions
are permitted to use the weapon of the strike to enforce
a discrimination such as is here involved, merely because
that discrimination has to do with the matter of wages,
however arbitrary the classification may be, then it will
not be difficult to devise means whereby, under the law,
the business fabric of the country can be torn apart and
the present social system completely destroyed; that if
discrimination of this kind is permitted by combinations
of labor unions employers must be accorded the same

24

right as against labor unions, for, as this court said |
Coppage v. Kansas, 236 U. 8. 18, 59 L. Ed. at p. 448:
*‘ And can there be one rule of liberty for the ]
bor organization and its members, and a differe
and more restrictive rule for employers?’’

Employers, therefore, must be permitted to combine
discriminate against employees upon any conceivab
ground, however arbitrary.

Instead of a government of law, in which each man
free, enjoying equal rights with his fellows, we will ha
a government of labor unions and combinations of e1
ployers.

Upon these grounds it is urged that a writ of cer
orari should go as prayed.
Respectfully submitted,

MERRITT LANE,
Attorney for and of Counsel with
Barker Painting Company.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0388%3A2. Public record. Not legal advice.