# Petitioners Brief — Barker Co. v. Painters Union

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1930
- **Citation:** 281 U.S. 462

## Text

IN THE

Supreme Court of the Runited States

No. 477. October Term, 1929.

BARKER PAINTING COMPANY,
Petitioner,

and

LOCAL No. 734, BROTHERHOOD OF PAINTERS,
DECORATORS AND PAPERHANGERS OF
AMERICA, et als.,

Respondents.

BRIEF OF PETITIONER.
Plaintiff Below

4

MERRITT LANE,
Attorney for and of Counsel with Petitioner.

Arthur W. Crose, Law Printer, 55-57 Lafayette Street, Newark, N. J.

TOPICAL INDEX.

Pace

Il THE OPINIONS BELOW 1
Il. JURISDICTION 1
lll. STATEMENT OF THE CASE.........000.000000000.... 2
Resume of the Facts 2

Further Consideration of the Facts 4

The Claimed Justification for the Rule.................. q
SPECIFICATION OF ERRORS................... ig Se
ARGUMENT ; 13

1, The Circuit Court of Appeals erred in declining
to consider the merits of the appeal because of its prior
decision in Barker Painting Co. v. The Brotherhood, etc.,
15 Fed. (2d) 16 13

2. The Circuit Court of Appeals erred in declining to
ceasider the merits because the particular work of plain-
iff which had been interfered with had been completed
under the protection of a temporary injunction................ 15

3. The District Court erred in dismissing the bill
and the Circuit Court of Appeals erred in affirming for
the reasons that (a) the conduct of defendants is a boy-
eott, the result of a conspiracy, illegal at commor 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 combination is un-
lawful and a violation of the rights of plaintiff; (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, Ch. 746, 26 Stat. at Large, p. 209,
Title 15 U. 8. C. A. sec. 1, p. 4, making illegal contracts,
combinations and conspiracies in restraint of trade and
commerce among the several States, and its supplements
and amendments, plaintiff being engaged in interstate
trade Lpaiehsicdaiticbedidosieoban eedibnonsaites : AGSE | j

ii

7

Pacr

The effect of a decision sustaining the right of the
union to promulgate and enforce the rule here
involved

The cases in which the challenged rule has been
considered

The opinion of the District Court

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 reasonable relation to the wage scale and the
attempt of the union to enforce it by combination is
unlawful and a violation of the rights of plaintiff.......

The law of boycott as applied to the case at bar

Neither the fact that the act is one which may
properly be performed by a single individual nor the
fact that the object has some reference to wages,
hours or working conditions, is determinative of the
legality of the acts of a combination.......................2....

It is not always true that men may quit work for
any or for no reason

The underlying principle upon which the acts of
defendants must be held to be illegal

ce. Defendants are engaged in a conspiracy in vio-
lation of the anti-trust acts, sec. 1, U. 8. C. A. Title
15, p. 4, Act of July 2, 1890, c. 647, sec. 1, 26 Stat. 209
(Sherman Anti-Trust Act), secs. 12, 13, 14, 15, 16 and
17 U. 8. C. A., Title 15, p. 148, Act of October 15, 1914,
¢c. 323, 38 Stat. 730 (Clayton Act)

17

& &

(1) Plaintiff is engaged in interstate commerce |

within the meaning of the Anti-Trust Acts................

(2) The conduct of defendants is a combination
and conspiracy in restraint of trade within the
meaning of the Sherman Act, sec. 1, Title 15 U. 8.
C, A. “Commerce and Trade” p. 4, Act of July 2,
1890, c. 647, 26 Stat. 209, and within the meaning
of sec. 12, Title 15, U. 8. C. A. p. 148, Act of Oct. 15,

iii

Pacer
1914, c. 323, 38 Stat. 730, sec. 1, Clayton Act, and is
not within the protection of sec. 17, Title 15 U. 8.
C. A. p. 210, Act of Oct. 15, 1914, sec. 6 63

4. The decision of the District Court was based upon
the Statute of New Jersey heretofore mentioned and its
construction by the New Jersey Court of Errors and
Appeals in the New Jersey Painting Company case, 96
N. J. E. 632, 126 Atl. 399, and the effect is that the Dis-
trict Court in the instant case has permitted the appli-
cation of a statute which, as construed by it, is offensive

to the provisions of the 14th Amendment. 71
(1) Truax v. Corrigan, 257 U. 8. 320, 66 L. Ed.
254 80

IV. CONCLUSION 84

iv .

INDEX OF CASES.
Pace
A

Aeolian Co. v. Fischer (D.C.), 35 Fed. (2d) 34; (C. C. A.)
37 Fed. (2d) 61

A. & L. Mfg. Co. v. Carpenters’ Council, 308 Ill. 488, 139
N. E. 887 35
Allen v. Flood, (1898) App. Cases 1 oa
Allgeyer v. Louisiana, 165 U. 8. 578; 41 L. Ed. 832............. 79

American Steel Foundries v. Tri-City C. T. Council, 257

U. 8. 184, 66 L. Ed. 189.. 64, 66, 74
Anderson v. The Shipowners, 272 U. 8. 359, 71 L. Ed. 298... 61
A. T. Stearns Lumber Co. v. Howlett, 260 Mass. 45, 157

N. E. 82 36, 45, 47, 48
B
Baldwin Lumber Co. v. Int. Brotherhood of Teamsters,
etc., 91 N. J. Eq. 240, 109 Atl. 147. 46, 48, 73

Barker Painting Co. v. Brotherhood of Painters, etc., (C.
C. A.) 15 Fed. (2d) 16; application for certiorari, 71
L. Ed. 872, 273 U. 8. 748 12, 14, 18, 28, 35
Barker Painting Co. v. Brotherhood of Painters, etc.,
(Opinion of Runyon, J.), 12 Fed. (2d) 945; (C. C. A.)
| ie MRAM SRS nie ad ere DOH A ls PIE 1
Barker Painting Co. v. Brotherhood of Painters, etc.,
(Court of Appeals, D. C.) 23 Fed. (2d) 743; appli-
eation for certiorari, 276 U. 8. 631, 72 L. Ed.

FU rick cbiiniciiettnaernanin dilepadpaneitiniaicnbigidiitjireaantans 27, 31, 33, 35
Barr v. Essex Trades Council, 53 N. J. Eq. 101, 30 Atl

SP eh ndcacepesiepinhetsnibdenipinisicivetieiniisterpicsnibistoctasiwimenestesiodilbisods 38, 73, 74, 77
Beck v. Railway Teamsters Protective Union, 42 L. R. A.

407, 118 Mich. 497 39
Bedford Cut Stone Co. v. Journeymen 8. C. Assn., 274

U. 8. 37, 71 L. Ed. 916 16, 63, 68
Berry v. Donovan, 188 Mass. 353, 74 N. BE. 603 46

Binderup v. Pathe Exchange, 263 U. 8. 291, 68 L. Ed. 308... 58

Vv
Pace
Brennan v. United Hatters, 73 N. J. Law 729, 65 Atl. 165,
9L. R. A. (N. 8.) 254 32, 51, 72, 73, 74, 77
Burnham v. Dowd, 217 Mass. 351, 104 N. E. 841 47
Cc
Connors v. Connolly, 86 Conn. 641, 86 Atl. 600... 46
Coppage v. Kansas, 236 U. S. 11, 59 L. Ed. 441 55, 84
Curran v. Galen, 152 N. Y. 33, 46 N. E. 297 46
Cyrus Currier v. International Molders, etc., 93 N. J. Eq.
61, 115 Atl. 66 51, 73
D
Decorative Stone Co. v. Building Trades Council, 18 Fed.

(2d) 333, affd. 23 Fed. (2d) 426 64
Delaware & Raritan Canal Co. v. Lee, 22 N. J. Law 243... 37
Douglas & Bros., Inc. v. Mallette, Equity #7502, Su-

perior Court of Rhode Island (not reported)................ 25, 27
Dubrow v. Hornstra, 95 N. J. Law 288, 112 Atl. 336............ 73
Duplex Printing Co. v. Deering, 254 U. 8. 443, 65 L. Ed.

349 38, 63, 64, 70

F
Folsom v. Lewis, 208 Mass. 336, 94 N. E. 316 46, 48
Fox Film Corp’n v. Federal Trades Commission, 296 Fed.

353 59
Fox Film Corp’n v. Trumbull, 7 Fed. (2né) T18Q.....u........ 59
Frank & Dugan v. Herold, 63 N. J. Eq. 443, 52 Atl. 152........ 72
Frank & Dugan v. Nat. Alliance of Billposters, 89 N. J.

Law 380, 99 Atl. 134 : 72

G
Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23 57

Gompers v. Buck Stove Co., 221 U. 8. 418, 55 L. Ed. 797,
34 L. R. A. (N. 8.) 874, 31 Sup. Ct. Rep. CR iiscctissinas 36, 44

vi

Pacn
H
Hass, Inc. v. Local Union No. 17, 300 Fed. 894...................... 22, 24
Haverhill Strand Theatre Co., Inc. v. Gillen, 118 N. E. 671,
L. R. A. (N. 8.) 1918 C 813, 229 Mass. 413 47
Hitchman Coal & Coke Co. v. Mitchell, 245 U. 8. 229, 62
L. Ed. 260 32, 36, 37, 45, 51, 70, 74, 79
I
International Organization v. Red Jacket C. C. Co., 18
Fed. (2nd) 839. 48, 63
International News Service v. Associated Press, 248 U. 8.
215, 63 L. Ed. 211 74
J
Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 53
Atl. 230 76
Jonas Glass Co. v. Glass Bottle Blowers’ Assn., 77 N. J.
Eq. 219, 79 Atl. 262 20, 23, 71, 72, 73, 74, 79
K
Keuffel & Esser v. International Assn. of Machinists, 93
N. J. Eq. 429, 116 Atl. 9 73
Kidd v. Pearson, 128 U. 8. 1, 32 L. Ed. 346 57
Kirby v. Tallmadge, 160 U. 8. 379, 40 L. Ed. 463.................... 9
‘ L .
Lehigh Structural Steel Co. v. Atlantic Smelting & Refin-
ing Co., 92 N. J. Eq. 131, 111 Atl. 376 46, 48
Lochner v. New York, 198 U. 8S. 45, 49 L. Ed. 937................ 80
Loew v. Lawlor, 208 U. 8. 288, 52 L. Ed. 488. 63

Loizeauz, J. D., Lumber Co. v. Carpenter’s Local, N. J.
(not reported) 47

Pacs
M
Marienelli, Ltd. v. United Booking Offices, 227 Fed. 165...... 58
Marshall v. Brotherhood of Painters, etc. (not re-
ported) 24, 25, 27
McCord Co. v. Thompson-Starrett, 113 N. Y. Supp. 385,
affd. 198 N. Y. 587, 92 N. E. 1090 46
Mobile County v. Kimball, 102 U. 8. 691, 26 L. Ed. 238... 57
N

New Idea Pattern Co. v. Whitner, 215 Pa. 193, 64 Atl. 518 14
N. J. Painting Co. v. Local No. 26, etc., 95 N. J. Eq. 108,
122 Atl. 622; reversed 96 N. J. Eq. 632, 126 Atl.

399 11, 18, 19, 20, 22, 24, 25, 27,

36, 37, 40, 71, 73, 74, 80, 83, 84
N. Y. Central Ry. Co. v. White, 243 U. 8. 188, 61 L. Ed.

667 81
P
Pickett v. Walsh, 192 Mass. 572, 78 N. E. 753... 36, 45
Pierce v. Society of Sisters, etc., 268 U. 8. 510, 69 L. Ed.
1070 54
Pittsburgh Terminal Coal Corpn. v. United Mine Workers
of America, 22 Fed. (2nd) 559 63
Plant v. Wood, 176 Mass. 492, 57 N. E. 1011 36, 45
Q
Quinn v. Leatham, 1901 App. Cases, 495, 1 B. R. C. 197.. 36, 43, 44
R
Ramsay v. Associated Billposters, etc., 260 U. 8. 501, 67
L. Ed. 368 59

Read v. Friendly Society, etc., (1902) 2 K. B. 732, 1 British
Ruling Cases 503 47

Pacr
Ss

Second Employers Liability Cases, 223 U. 8. 1, 56 L. Ed.

327 57
State v. Donaldson, 32 N. J. Law 151 75, 79
State v. Glidden, 55 Conn. 46, 8 Atl. 890,3 Am. St. Rep. 23 43
Sullivan v. Associated B. & D. of U. 8., 272 Fed. 323........... 59
Swift & Co. v. United States, 196 U. S. 375, 49 L. Ed. 518 = 7

T
Thompson Machine Co. v. Brown, 89 N. J. E. 326, 104 Atl.
129 16
Toledo A. A. & N. M. Ry. Co. v. Penn. Co., 54 Fed.
730 35, 38, 48
Truax v. Corrigan, 257 U. 8. 312, 66 L. Ed. 254............ 23, 33, 38, 64,
66, 74, 80
Truax v. Raich, 239 U. 8. 33, 60 L. Ed. 131 32, 79
U
United Shoe Machinery Co. v. Fitzgerald, 237 Mass. 537,
130 N. E. 86 47
U. 8S. v. Eastern States Retail Lumber Dealers Assn., 201
Fed. 581, aff’d 234 U. 8. 600, 58 L. Ed. 1490.................... 57
U. 8S. v. Brims, 272 U. 8S. 549, 71 L. Ed. 403, 6 Fed. (2d)
188 63, 67
U. 8S. ex rel. Vajtauer v. Commissioner of Immigration, 273
U. 8. 102, 71 L. Ed. 561 9
U. 8S. v. Patten, 226 U. 8. 525, 57 L. Ed. 333 70
U. 8. v. Railway Employees’ Dept., 283 Fed. 479 (Motion
to dissolve injunction, 286 Fed. 228) 70
U. S. v. Reading Co., 226 U. 8. 324, 57 L. Ed. 243_............... 70
U. 8S. v. U. 8. Shoe Machinery Co., 234 Fed. 127................... 59
Vv

Vandell v. U. 8., 6 Fed. (2d) 188 70

ix
Pace
Vicksburg Waterworks v. Vicksburg, 185 U. 8. 66, 46 L.
Ed. 808 ‘ 16
Vonnegut Machinery Co. v. Toledo Machine & Tool Co.,
ca haga Ebest EEN: 64, 65
Ww
W. A. Snow Iron Works v. Chadwick, 227 Mass. 382, 116
N. E. 801 35

Western Union Tel. Co. v. Int. Brotherhood of Electrical
Workers, 2 Fed. (2d) 993 ; aff'd 6 Fed. (2d) 444.000. 70

Supreme Court of the Rnited States

Barker Parntine Company,
Petitioner,
and On Certiorari.

Locau No. 734, BrornerHoop or/ No. 477 October
Painters, Decorators anp Papgr-| Term, 1929.
HANGERS OF AMERICA, ef als.,

Respondents.

BRIEF OF PETITIONER.
(Italics mine except where otherwise noted.)

I.
The Opinions Below.

This case is here on certiorari granted December 9,
1929 (p. 169) U. S. Supreme Court Advance Opinions, No.
4, p. 135, 74 L. Ed. 135, to review a decree of the Circuit
Court of Appeals for the Third Circuit, filed August 12,
1929 (p. 168) affirming a decree of the District Court for
the District of New Jersey, filed March 28, 1928 (p. 33),
dismissing plaintiff’s bill in equity. The opinion of
the District Court, 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 is reported
in 34 Federal 2nd p. 3, and is printed p. 165 of the
record,

II.
Jurisdiction.
The jurisdiction of this court is rested on section 240 of
the Judicial Code, as amended by the act of February 13,

a
2

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

The jurisdiction of the District Court was rested upon:
diversity of citizenship; that the statute of the State of
@ New Jersey, entitled: ‘‘An act relative to persons com-
® bining and encouraging other persons to combine,’’ P. L.
*@ 1883, p. 36,3 C. S. of N. J. p. 3051, which reads as follows:
‘‘That it shall not be unlawful for any two or
sa rsons to unite, combine or bind themselves

ik. covenant, agreement, alliance or otherwise,
4 persuade, advise or encourage, by peaceable
means, any person or persons to enter into any
combination for or against leaving or entering into
So employment of any persons, person or corpora-

on.

3 as construed by the highest court of the State, is re-
® pugnant to the 14th amendment to the constitution of the
United States in that its effect is to deprive petitioner of
property without due process of law and to deny it the
equal protection of the law; that the defendants are en-
gaged in a conspiracy in violation of Section 1, U. S. C. A.
Title 15, p. 4, Act of July 2, 1890, c. 647 Sec. 1 26 Stat. 209
(Sherman Anti Trust Act) and p. 148, Sects. 12, 13, 14, 15,
16 and 17 U. S. C. A. Title 15, Act of Oct. 15, 1914, ¢.
323, 38 Stat. 730 (Clayton Act).

Il.
STATEMENT OF THE CASE.

Resume of the Facts.

The bill alleged, and the proof on final hearing showed
that: petitioner employed exclusively union labor, operat-
ing 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

3

performed as required by the progress of the job; peti-
tioner proceeded, employing help all local to Somerville
except the foreman; it complied with all union conditions
as to hours and wages, ete. for the territory in which
Somerville is located; 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, not a painter but acting also
for the Building Trades Council having jurisdiction in
Somerville, that council being made up of delegates from
various building trades unions, instructed by Harry S.
Warren 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 petitioner
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 de-
prived of earning a livelihood, the industry being, in effect,
100 per cent. unionized ; the painting industry and all other
branches of the building industry in New York, northern
New Jersey, Connecticut and Pennsylvania are so union-
ized, and the agreements between the different branches
of the building industry are such, as that no painting work
can be performed except with union labor, for if it were
80 performed, all other branches of the building industry
would withdraw from the building and it could never be
completed; a contractor cannot be ‘‘fair’’ in one place and
“unfair” in another and if he employs non-union labor on
one job all of his jobs throughout the country whether
manned exclusively with union labor or not, will be struck
and all building trades will withdraw from any job upon
which he is engaged anywhere in the country ; the National
union threatened to compel petitioner and all other paint-
ing contractors to comply with the rule by strikes and boy-

4

cotts; the effect of the rule and its enforcement at the time
of the trial 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,
will be to limit all painting work to local contractors.

The foregoing is a summary of the facts.

Further Consideration of the Facts.

In his answer to the petition for certiorari and his
brief counsel for respondents questioned some of these
statements which makes it necessary to refer to the
record.

The substance of the rule, the enforcement of which
the bill seeks to prevent, is stated in the bill paragraph
second 7, p. 9, admitted by the answer paragraph 5,
p. 18, and in the opinion of the District Court, p, 21,
as follows:

‘*Where there is a difference between the wage
scale of two cities all members employed upon a
job in one of the two cities by an employer from
the other (whether sent from the city in which
the employer’s place of business is situated or
hired in the city where the work is done) shall
receive the higher of the two wage scales.’’

This rule was supplemented by another which provides
that upon any job performed by an outside employer
at least 50 per cent. of the employees engaged on such
job shall be hired from the locality in which it is being
performed (Bill, par. 12, p. 12; Answer, par. 8; Rule 62,
Exhibit D. 1, p. 157).

There are elaborate provisions in the constitution of
the Brotherhood for clearance cards, etc. so that no
member can go from one locality to the other without
the consent of the Local having jurisdiction in the place
in which the work is to be done and for implicit obedi-

5

ence of every member with every rule and for fine and
expulsion for violation of a rule (Sec. 133, p. 148; Sec.

971, 274, p. 151).

In the States of New York, Pennsylvania, New Jersey
and Connecticut the painting industry, and the building
industry as a whole, is practically 100 per cent. unionized
(Rosenthal, p. 43; Hass, p. 62; Kelley, p. 60; Joseph
F. Kelley, p. 130) ; it is impossible to complete a building
without the use of union labor (Rosenthal, p. 43; Kelley,
p. 60; Hass, p. 62); there is an understanding, some-
times expressed in rules where there are district councils
which take into their memberships representatives of the
various unions controlling labor in different branches of
the building industry, to the effect that, if any work is
performed upon a building by non-union labor in one
trade, the other trades will do no work upon the building
(Warren, pp. 89 to 91; Rosenthal, p. 47; Hoffman, p. 74);
a contractor cannot be fair in one place and unfair in
another so that, if in one locality he employs non-union
labor, union labor will not work for him in another nor
will the union labor work upon buildings upon which he
has a contract in other localities (Warren, p. 91; Rosen-
thal, p. 44; Hass, p. 62); the rules of the Union have
the force of law (Landow, p. 79; J oseph F. Kelley, p. 137) ;
it is impossible for a contractor to pay more than the
local rate for union painters in the locality in which the
work is being done, labor representing 65 per cent. of
the cost of contracting painters (Mackay, p. 98; Rosen-
thal, p. 44; Kelley, pp. 59, 61; Hass, p. 62), and still
continue in business.

There is a contention by defendants that, painting con-
tractors in bidding figure on the wage scale of their
‘‘home cities’’ if that scale happens to be the higher, but
there is no evidence of probative value to support the
contention.

6

The evidence relied upon by defendants is that of Joseph
F. Kelley (Second General Vice-President of the union)
(pp. 107, 110), but see his cross examination (pp. 119,
121, 123, 124); Warren (p. 86, but see his cross ex-
amination (p. 92); Landow, p. 77); all of whom are
officials of the Union and who, the testimony demon-
st~ates, know nothing about it, whereas the testimony of
Josenthal (p. 42); Hass (p. 62); John S. Kelley (p. 60)
and Mackay (p. 98), all contracting painters, the three
latter having no connection with plaintiff, is to the
contrary.

Plaintiff, Barker, had a contract for the painting and
decorating work on the Somerset Hospital, Somerville,
New Jersey, dated November 8, 1924 (Exhibit P. 1,
p. 143); it commenced work late in January, 1925, start-
ing with a couple of men and running up to about six
(p. 44); the union rate at the ‘‘home city’’ of plaintiff
was $10.50 for an eight-hour day (p. 44); the union rate
in Somerville, New Jersey, was $8.00 per day; plaintiff
operated a closed union shop, as it must to do any busi-
ness and it employed exclusively union men (p. 44); the
work progressed for several weeks, when it was stopped
because of the refusal of plaintiff to pay the New York
wage to local men (p. 44); the work was about thirty per
cent. complete and its condition was such as that it was
necessary that it should be forthwith prosecuted so as
not to interfere with the completion of the building; the
work was figured by plaintiff upon the local rate (p. 48);

Arthur P. Demaray (p. 49), Thomas Winsor (p. 52),
and Joseph Housh (p. 56), employees of plaintiff who
ceased work, were called by plaintiff and the effect of
their testimony as to why they quit is well expressed by
Demaray, who says that George W. Hoffman, who is the
Business Agent, representing the Somerville Building
Trades Council, which is composed of carpenters, plumb-
ers, electricians, painters and laborers (p. 66), came upon

7

the job and said: ‘‘You fellows can’t continue here;
you will have to let today be your last,’ and by Housh,
when he said (p. 56) that Hoffman came on the job and
said to the men ‘‘I will have to pull the job, you fellows
are entitled to ten dollars and fifty cents and you can’t
come back until it is settled and they pay ten dollars
and fifty cents a day.’’

These employees were perfectly satisfied with the wage
which they were receiving and, after the temporary in-
junction had been granted, Winsor and Housh went back
to work.

The control of the union representatives over the men is
well indicated by the statement of Winsor (p. 54) that he
went back because he couldn’t “find anybody to tell me not
to go back to work.’’ Demaray, who did not go back to
work for plaintiff after the injunction, says that he was
content with his wages, hours and working conditions and

that the only reason why he quit was that Hoffman told
him to.

Hoffman went on the job at the time he stopped it after
a conferene with Warren, General Organizer of the
Brotherhood, with the purpose and intent of preventing
the work being prosecuted unless the rules were complied
with (Hoffman, pp. 66, 67).

The Claimed Justification for the Rule.

The alleged justification for the rule, from an economic
standpoint, is found in the testimony of Warren (p. 87);
Landow (p. 76); Joseph F, Kelly (p. 112). Were the
reasons stated founded on fact, they would not be sufficient
to justify a combination to enforce such a rule so inter-
fering with the natural rights of the employer, the builder
and the public desiring to erect houses, by coersion.

Substantially the reasons given by the unions were that
employers were in the habit of employing partly foreign
and partly local employees and paying the local rate to
the local employees and the foreign rate to the foreign em-
ployees, which created friction and that the foreign em-
ployer always figured upon the rate prevailing at the place
of his main office.

It is hard to say, from the testimony, what the claimed
justification for the action of the Brotherhood is. While
it is suggested that there is a justification because of fric-
tion which had occurred prior to the enforcement rule
there is an indefiniteness in the testimony offered which
indicates quite clearly that it was not the real reason.

It would seem from the testimony of Joseph F. Kelly,
(Second General Vice-President of the union) that
the real reason for the adoption of the rule was that
certain of the Brotherhood members thought that em-

ployers, who came from a foreign district, figured their
jobs upon the foreign rate (pp. 112-117). The witness
testified—

‘*‘A Yes, sir; some of the things that I advanced
were advanced on the floor of the assembly. One,
in L was the fact that in a number of in-
stances the higher rate was estimated on and for
that reason the delegates that were advocating the
higher rate advanced that as their reason for this
change in our constitution.’’

Again, when asked to summarize the reasons for the

rule:

**T thought I explained those early in the affair.

Of course, I said that the reasons advanced were

on account of the members knowing and believing

that all this work was estimated at the hi a
and again for to keep down the friction that
exist where there were two scales of wages.’’

There is no probative evidence of any friction sufficient
to justify the rule. It is stated by the Brotherhood that

the rule had been in existence for upwards of fifteen
years, but if it was, it was not enforced until after the
Dallas convention in 1921, after which the letter of De-
cember 5, 1921, Exhibit P. 4, p. 156, was sent by the
Brotherhood to contractors directing their attention to
the action of the Dallas convention, and advising them
that they should be guided accordingly.

If the friction existed it was easily susceptible of proof
and the lack of definite proof must be taken as an indica-
tion that it did not exist. The rule that where testi-
mony is within the control of a party and not produced,
the inference is against the existence of the fact alleged
applies.

22 Corpus Juris, title ‘*Evidence,’’ see, 24, p. 81;
sec. 55, sec. 56, p. 115;

United States, ex rel, Vajtauer v. Comr. of Im-
migration, 273 U. S. 102 (1926), 71 L. Ed. 561, at
p. 565;

Runkle v. Burnham, 153 U. 8. 217, 38 L. Ed. 694
at p. 697 (1894);

Kirby v. Tallmadge, 160 U. §. 379, 40 L. Ed. 463
(1895).

It is passing strange, that if there were any such fric-
tion as is suggested, the industry could have been con-
tinued with harmony for fifteen years with this rule in
existence and not enforced.

And so with the other claimed justification for the rule,
i. ¢., that contractors always figure upon the higher wage
rate. Defendants here contented themselves with the pro-
duction of the testimony of Landow ( p. 77); Warren
(p. 86); Joseph F. Kelly (pp. 112, 116), officials of the
union or its locals, who really know nothing about the
matter and their statements are opposed to those of Ro-
senthal, Hass, Mackay and John §. Kelly, who are gen-
eral contractors and who do know and, here, too, if the
fact existed, it was easily susceptible of proof.

a

10

That the Brotherhood itself did not consider its claim
that the so-called national contractors figured on the
higher rate as well founded is indicated by the testimony
of Joseph F. Kelly (Second General Vice-President of
the union). He had testified on his direct exam-
ination that contractors who had contracts before the rule
went into effect were permitted to operate under the old
rule. On cross examination (p. 119) he is asked to ex-
plain why it would be unfair to enforce the rule as to
contracts already made if it were true that contractors
figured on the higher wage scale and he is at a loss for
an explanation which explains.

In any event as a remedy for the friction the rule goes
much too far. It requires that the foreign employer pay
the higher rate whether the employees are all local men,
or whether they are all foreign men. It does not seek to
base the discrimination upon difference of residence of the
employees. It makes a discrimination arbitrarily upon
the basis of the place of the main office of the employer.

Joseph F. Kelly cannot give any reason for the dis-
crimination against foreign contractors who employ all
local labor. He testified page 127:

*“‘Q Do you know of any reason why if the New
York contractors or the national contractor em- —
ploys all local men the local rate should not be
paid? A Do I know any reason where a national
contractor peys a local rate or—

Q No. you know of any reason why a na-
tional contractor who employs all local men that
the local rates should not be pai hy the local
rates should not be paid? A For the reasons that
I have given in saying why this amendment was
enacted into our law. I testified to it.

Q It cannot be for all of them because I have
eliminated the friction. I am assuming that the
national contractor employs all local men. What is
the reason why he should pay the home rate? A
Well, for the reason that has been advanced, as I

11

in the price.’’

The testimony of Mackay (p. 98) (painting contractor)
is to the effect that the so-called national contractors as a

On page 107 Joseph F. Kelly (official of the union) says:
“‘A Invariably I would Say that they (the _na-

my knowledge would come in of those contracts
being charged at a greater sum.’’

Now, in addition to these extra expenses which the for-
eign contractor must bear in competition with the local
contractor, the Brotherhood desires to add another arbi-
trary additional expense, to wit, an increase in wages
over and above what the local contractor must pay.

Tn its last analysis, so far as justification is concerned,
it comes down to the answer to the question “‘Zs the Io-

ity in which the contractor may have his main office a
sufficient grownd for discrimination against him with re-
spect to price of labor?’ The question answers itself.
And the answer was put in words by Judge White in his
dissenting opinion in New Jersey Painting Company v.
Local No. 26, etc., 96 N. J. E. 632, reversing 95 N. J. E.
108, the dissenting opinion of Judge White being reported
in 126 Atl. at p. 403 (not officially reported), four judges

12

of the Court of Errors and Appeals of New Jersey
dissenting.

Even if there were friction in certain cases and even if
certain contractors figured on the wage scale of their home
city (how they could do this and compete is not dis-
closed) the unions would not be justified in putting a rule
such as this into effect. The fact that there is an evil to
be remedied does not justify every method that can be
thought of to remedy it. Many ills must be borne. Un-
doubtedly there is friction among employers because of
competition and a sure cure is a combination to prevent
competition but that is not permitted because of its effect
on others than employers. So, here, if there is friction, a
combination, the result of which is injury to employers
and to the public, will not be permitted to eliminate that
friction.

Specification of Errors.

The assignments of error in the Circuit Court of Ap
peals are found in the record, p. 36. They are 19 in nun-
ber but are so numerous only that constitutional ques-
tions involved may be properly raised. The case may be
argued under four heads:

1. The Circuit Court of Appeals erred in declining to
consider the merits of the appeal because of its prior de-
cision 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 plain-
tiff 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 Circuit Court of Appeals 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)

13

and the combination and conspiracy is denounced by the
Act of July 2, 1890, chapter 746, 26 Statutes at Large,
p. 209, Title 15, U. S. O. A. sec. 1, p. 4, making illegal
contracts, combinations and conspiracies in restraint of
trade or commerce among the several states, and its sup-
plements and amendments, plaintiff being engaged in
interstate trade.

ARGUMENT.
I,

er ee cuit Court of Appeals erred in declining to con.
sider the merits of the appeal because of its prior de-
cision in Barker Painting Company v. 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 injunction.

A consideration of the opinion. will indicate that, in the
last analysis, the Circuit Court of Appeals based its de-

14

cision upon the rule that preminary injunctions will not
go unless the right is clear boi upon the law and the fact.
In its opinion it devoted conderable space to reference
to reasons which might be adanced by the union in justi-
fication of the rule expressly tating that it did not do so
to intimate any sympathy wit the rule ‘‘for assuredly we
have none.’’

That there is a distinctiorwith respect to the amount
and kind of proof which wi induce a court to grant a
permanent injunction after dull hearing and that which
will induce a court to grant preliminary injunction after
a hearing only upon affidavitalmost goes without saying.

The distinction is, I thinkas well drawn as anywhere
in New Idea Pattern Co, v. 7hitner, 215 Pa. 193, 64 Atl.
518, at p. 520:

‘*A preliminary injaction is not, however, to be
granted where the platiff’s right to it is in doubt.
1 Spelling, Extraorhary ief, sec. 20; Black
Lick Mfg. Co. v. Gasto., 139 Pa. 448, 454, 21 Atl.
432, Waring v. Cram, Pars. Eq. Cas. 516. The re-
fusal of it does not mpudiate the plaintiff’s rights
if he can ultimately dablish any; it merely denies
him an extraordinar remedy properly applicable
only to cases in norespect equivocal; Dalzell »,
Crawford, 1 Pars. EcCas. 37, 46.’’

An application was maden Barker Painting Co. v. The
Brotherhood, 15 Fed. (2nd 16, to this court for a cer-
tiorari, which was denied, 23 U. 8. 748; 71 L. Ed. 872. It
is impossible, of course, fo counsel to know why it was
denied, but it may well hee been, the application being

- for a preliminary injunctio, heard upon affidavits, that it
was conceived that, if thenatter was to be reviewed, it
should be after a final hering, with full opportunity to
both sides to adduce all tk proofs possible. The decree

in the ease at bar followed ach a hearing. )

15

II.

The Cireuit Court of Appeals erred in declining to con.
sider the merits because the particular work of plaintiff,
which had been interfered with, had been completed
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 to inter-
fere with any work of plaintiff throughout the country
on which plaintiff did not pay the wage scale of its
home’ town or of the place in which the work was being
done, whichever was the higher. The Internationa] 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

The bill prayed, prayer 2, p. 16, for an injunction
against the defendants generally from interfering with
any work of plaintiff for the purpose of enforcing the rule,
and, prayer 3, p. 17, for a decree that the rule may be

16

adjudged and declared illegal and void, and that all steps
taken to enforce and put into effect the rule be adjudged
and declared illegal and void.

The National Union had notified all contractors by letter
of December 5, 1921, Exhibit P. 4, p. 156, that the rule
- would be enforeed. The bill alleged, and the proofs
showeu that such an enforcement of the rule would re-
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
plaintiff 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 8S. 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 others Thompson Machine
Co. v. Brown, 89 N. J. E. 326-328; 104 Atl. 129, in which
case the court said:

‘Tf 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 injury.’’

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 part of the
city to displace complainant’s rights under the con-

17

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 bills 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 sont be insufficient or irreparable.’’

Il.

The District Court erred in dismissing the bill and the
Circuit Court of Appeals erred in affirming for the rea-
sons 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 rights of plaintiff; (c) The com-
bination is in unfair restraint of trade, inimicable to pub-
lic 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,
Title 15, U. 8. ©. A., Sec. 1, p. 4, making illegal contracts,
combinations and conspiracies in restraint of trade and
commerce among the several states, and its supplements
and amendments, plaintiff being engaged in interstate
trade,

The effect of a decision sustaining the right of the
Union to promulgate and enforce the rule here involved.

The far-reaching effect of the adjudication that the
union may enforce this rule by strikes, combinations and

18

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.

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 ‘‘meatal dis-
turbance’’ in reaching the conclusion it had in the first
case. :

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

19

local and lower scale.
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, agréement, alliance or otherwise, to
persuade, advise or encourage, by peaceable means,

Five judges of the New Jersey Court of Errors and
Appeals dissented, and J udge White, in his dissenting
opinion in 126 Atl. at p. 403 (not officially reported), said:

“The place of residence of the contractor is not
im 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

‘“‘This principle was thought so important by the
framers of our Federal Constitution that they pro-
vided in that instrument against any such dis-

20

crimination by any state against the citizens of any
other state, and it seems to me a curious condition
which, while den i fo to the —s states them-
selves this pri of invading the equal rights
of the citizens, should accord a 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
Courts of Errors and Appeals of New Jersey overruled its
prior decision in Jonas Glass Co. v. Glass Bottle Blowers
Asso., 77 N. J. E. 218; 79 Atl. 262 and construed the
statute in such a way as to render it offensive to the
provisions of the 14th amendment to the Constitution of
the United States as will be hereinafter argued.

The cases in which the challenged rule has been consid-
ered.

The first case was New Jersey Painting Company v.
Local No. 26, etc., in the Court of Chancery of New
Jersey, 95 N. J. E. 108, 122 Atl. 622, in which Vice-
Chancellor Backes held the demand of the Union unrea-
sonable and discriminatory and said (p. 110):

“‘The assigned reason as a justification in law
for the strike is manifestly without merit. In its
self-serving pursuit the union entirely overlooked
the effect of its action upon trade, and the conse-
quences to the employers of labor. It cannot be
denied that the union may arbitrarily fix a uni-
form scale of wage applicable to all its members,
or that it may classify its members and arbitrarily
fix a uniform scale based on qualification, or that
it may localize such uniform scale, and strike to
enforce its demands, however oppressive they may
be, and the strike will not be interfered with by
the courts if it is lawfully carried on. The reason-

ee
21

ableness or unreasonableness of the demands would
not be regarded as a justifiable question, but one
to be fought out by — and labor by their

eir Own weapons. Na-
- tional Protective Association v. Cumming, 170

unfair restraint of trade, inimical to public wel-
fare and in violation of public policy, and any at-
tempt of the union to impose its will by the coercive
means of strike would be an unwarranted and un-
lawful exercise of the power of might. The prin-
ciple upon which the law interdicts such union ac-
tivity has been often and clearly expounded by
the courts. The authorities are numerous and illus-
trative. Some of them are: Gompers v. Buck
Stove & R. Co., 221 U. §. 418; Berry v. Donovan,
188 Mass. 353; Pickett v. Walsh, 192 Mass, 572;
Wilcutt & Sons », Driscoll, 200 Mass. 110; Burn-
ham v. Dowd, 217 Mass. 351; United Shoe Machin-
ery Corp. v. Fitzgerald, 237 Mass. 537; Haverill
Strand Theatre ». Gillen, 229 Mass. 413; L. R. A.
1918 C. 813; Grassi Contracting Co. ». Bennett,
160 N. Y. Supp. 279; Baldwin Lumber Co. v. Inter-
national Brotherhood &. 91 N. J. E. 240; Currier
& Sons v. International Molders’ Union, 93 N. J. E.
61; Lehigh Co. v. Atlantic S. & R. Works, supra.
That the operation of the amendment would be in
unlawful restraint of trade is too obvious to re-
quire 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

scale as against the local contractor’s bid at the
local and lower scale. This, manifestly, would de-

stroy fair and honest

ease it operates to the

other state, and the union seeks
what the states are forbidden to d
States Constitution.’’

The next case was Hass Inc. v. Local Union No. 17, etc.,
300 Federal 894, in which, after referring to the rule
and the injury which it would cause, conceding that there
had been no threats of force, the court said:

‘*That no threats of force have been used is im-
material, for threats of fine and expulsion from the
defendant union are just as effectual as threats
of force, where, as here, ulsion would mean the
loss by the person expelled of the opportunity to
make a living at his trade.’’

‘*The injury thus inflicted on the outside contrac-
tor and the public cannot be justified, since ne
legitimate interest of the defendants would be fur-
oo ‘le jeiseea't of say Bee in ge pen

t was esigned for the sole purpose of ez-
cluding outside _ompetition in the home market on
the — of outside contractors, and since the plain-
tiff been injured by the operation of the rule
he is entitled to an injunction enjoining the defend-
ants from enforcing it. The same conclusion was
recently reached by Vice-Chancellor Backes in New
Jersey Painting Co. v. Local Union No. 26, Brother-
erhood of Painters, Decorators, Paper Hangers of
America (N. J. Ch.) 122 Atl. 622, where the same
rule was under consideration, as well as in Barker
Painting Co. v. Brotherhood of Painters, Deco-
rators and Paper eo of America, Supreme
arg District of Columbia, decided April 8,

The next case was New Jersey Painting Co. v. Local
No. 26, etc., in the Court of Errors and Appeals of New
Jersey, 96 N. J. E. 632, 126 Atl. 399, reversing the same
ease below, 95 N. J. E. 108, 122 Atl. 622. Five judges
of the Court of Errors and Appeals cissented—Justices
Kalisch, Katzenbach, Lloyd and Judges White and Gard-
ner. Judge White wrote a dissenting opinion, which is

23

reported in 126 Atl. 403 (not Officially reported) and
which, succinctly, states the principle for which I contend.

A careful consideration of Justice Black’s opinion for
the majority will indicate, I submit, that it is somewhat
diffieult to get at what the real theory of the court was.
The learned justice, at great length, refers to the statute
of 1883, p. 36, 3 C. S. of N. J. p. 3051, sec. 128, and indi-
cates that the restriction put upon the language of that
statute by the same court in Jonas Glass Co. v. Glass
Bottle Blowers Association, 77 N. J. E. 219, 79 Atl. 262,
was not proper, overlooking, that, if the restriction be
removed, the statute is unconstitutional because it de-
prives an employer of labor of his property without due
process of law and of the equal protection of the law,
guaranteed under the 14th amendment to the Constitu-
tion of the United States. Truar v. Corrigan, 257 U. S.
312, 66 L. Ed. 254.

The court at p. 639 of 96 N. J. E., 126 Atl. 399, says:

“‘But the argument by the complainant, followed
by the learned vice-chancellor in this case, seems
to be based upon the idea that the union cannot in
good faith frame or adopt a rule roviding for a
sliding scale of wages to fit ost ly the varying
local economic conditions throughout the United
States, which, in effect, does discriminate against
some employers as a class in the matter of wages
to be paid. It seems to be based upon the ground
that such regulations create an unfair restraint of
trade. The attack is aimed, not at the combination,
but at its effect wpon the employers, This is un-
sound, both legally and economically. (The court
does not tell us how or why an attack aimed at the
effect of a combination is unsound either legally
or economically.) In the last analysis the prime
object of the rule attacked is to establish a stand-
ard of wages.’’

This is a misconception of the argument of the com-
plainant in that case as is succinctly pointed out by Judge

White in his dissenting opinion, 126 Atl. 403 (not officially
reported).

It was not at the framing or adoption of a@ rule which
would provide for a sliding scale of wages to fit osten-
sibly the varying local economic conditions throughout
the United States at which the attack was aimed in New
Jersey Painting Co. v. Local No. 26, 96 N. J. E. 632, 126
Atl. 399, but at the ignoring by the Union of that sliding
scale of wages, when fixed, in cases where contractors
had their main offices in localities other than that in which
the work was being done, and the use by the Union of
the boycott to effectuate the rule of discrimination—quite
a different thing

The next case was Marshall v. Brotherhood of Painters,
Decorators and Paper Hangers of America, in the Com-
mon Pleas Court of Philadelphia, not reported, a copy of
the opinion being herewith handed to the court. The
court indulged in no reasoning, relying almost wholly upon
the opinion of the New Jersey Court of Errors and Ap

in New Jersey Painting Co. v. Local No. 26, %
N. J. E. 632, 126 Atl. 399, and fell into the same error
as that court did with respect to the objection to the rule,
treating it as a rule ‘‘establishing a sliding scale of wages
to fit ostensibly the varying local economic conditions
throughout the United States.’’

The court assumed to quote from Hass Inc. v. Union
No. 17, etc., 300 Federal 894. It quoted the language of
the court in that case:

‘‘The effect of the rule in question is to make
it difficult, if not impossible, for an outside con-
tractor * * * The injury thus inflicted on the
outside contractor and the public cannot be justi-
fied, since no legitimate interest of the defendants
would be furthered by the operation of the rule in
question.’’

And it then says:
‘We do not see how the public ean be injured
by any such means.’’
What the court had said in the Hass case was:

**This result has been accomplished by a com-
bination of the defendants to prevent, by means of
threats and intimidations, persons who otherwise
would be willing to do so from working for such
outside contractor, except on terms that make it
difficult, if not impossible, for them to compete with
local contractors. * * * The injury thus in-
flicted, ete. * © #9

I had always assumed that the public is injured by the
elimination of competition. The Philadelphia court seems
to have thought otherwise.

The next case was Douglas & Bros. Inc. v. Mallette,
Equity No. 7502, in the Superior Court of Rhode Island,
not reported, copy of which opinion is handed to the
court. The court followed New Jersey Painting Company
v. Local No. 26, 96 N. J. E. 632, 126 Atl. 399, and Mar-
shall v. Brotherhood of Painters, Decorators and Paper-
hangers of America, Common Pleas Court of Philadel-
phia, and it expressed its view that the public was in no-
wise injured, apparently by the elimination of competi-
tion, and also said that it clearly became necessary for
the Union to regulate the matter by some rule ‘‘because
it would seem clear that, from the point of view of the
Union, it would be unwise to have different members of
the Union from different localities working on the same
job in the same place, receiving different wages for doing
the same work,”’ and it also stated that the Union had
obviously had in mind the establishment of a sliding scale
of wages.

Just why it would be unwise, and what complaint there
could be, if different members of the union from different
localities working on the same job, received different
wages for doing the same work, if in the different locali-

26

ties from which the members came there was a differ-
ence in the cost of living which, in turn, was reflected in
the different wage scales, is not made plain. It would
seem to be clear that if a man, with a family in New
York, living under New York conditions and therefore
enjoying a New York wage scale, should be transported
to Somerville, New Jersey, he should receive the New
York wage, for he is living in New York and obliged to
support himself and his family by paying New York rates.

But it is not at all clear that, because this man, who
must pay for his living at New York rates, is to be paid
upon the New York scale, a local artisan living in Somer.
ville with a rate of wage fixed by the Union in the light
of the Somerville cost of living, should likewise receive
the New York wage. If he is paid the New York wage,
then the difference between the local rate and the New
York rate is a gift from the contractor, and ultimately
from the public, for the public pays.

Why is it unwise to have different rates of wages?
The Union suggests because there may be friction, but I
repeat that no probative proof of any such friction has
been offered, and although the rule was in existence, de-
‘fendants claim, for fifteen or sixteen years it was never
enforced and work went on harmoniously, and in every
case in which injunctions have been granted, the work
proceeded harmoniously. Workmen do not labor harmo.
niously merely because of an injunction of the court. We
have not a single artisan called who testifies that he is
insisting upon any such rule as is here involved. The de-
mand does not come from the workmen, but from their
leaders.

Moreover, as I have already pointed out, under the
existing rule, even if the contractor employs all local men,
still he must pay, if it be the higher, the wage scale of the
locality in which he has his main office. The basis of

27

classification is not the locality from which the workmen
come.

The rule creates an unjust discrimination among Union
members. Six workmen, all from Somerville, may be em-
ployed in Somerville, equally divided between two jobs
precisely alike—one being erected by a local and the other
by a foreign contractor. One set doing the same work
coming from the same locality gets a higher wage than
the other. What possible justification can there be for
this?

The court also indicated that because it was not the
purpose of the rule to discriminate, there could be no
relief. Acts are judged by their effect and not their pur-
pose, as will be hereafter argued.

The court also fell into the same error, as did the New
Jersey Court of Errors and Appeals, in New Jersey Paint-
ing Co. v. Local No. 26, etc., et als., 96 N. J. E. 632, 126
Atl. 399, i. e., that the complaint was against the establish-
ment of a sliding scale of wages, whereas it was against
the establishment of a sliding scale of wages and the ignor-
ing of that sliding scale of wages because a contractor
happens to have his main office in another district.

The next case was Barker Painting Company v. Brother-
hood of Painters, Decorators and Paper Hangers, etc., et
als., in the District Court of the United States for the
Eastern District of Pennsylvania, in which the court de-
nied a preliminary injunction with the statement that it
agreed with the reasoning and conclusions in Marshall v.
Brotherhood of Painters, etc., in the Common Pleas Court
of Philadelphia, and in Douglas & Bro. v. Mallette, in the
Superior Court of Rhode Island, and in New J ersey Paint-
ing Co. v. Local No. 26, etc., 96 N. J. E. 632, 126 Atl. 399.
That case came to the Circuit Court of Appeals of the
Third Circuit and the decision was affirmed in 15 Federal
2nd, p. 16, Judge Buffington dissenting (p. 19.) The ap-

plication was for a prelimiary injunction and the court
said:

‘‘In this proceedir the burden of justifying the
rules does not rest o the respondents; it is for the
complainant, who prised for a preliminary tnjunc-
tion before the ansvr was filed, to establish that
the rules are unlawil by evidence sufficient to in-
voke that extraordinry remedy.”’

The court, after indicatig that there might be justifi-
cation for the rule, instancig certain matters which might
be taken into considerationsaid:

‘*We advert to thse possibilities, certainly not
to express our viewSpor to intimate sympathy with
the rules,—for asswrdly we have none—nor to sug-
gest arguments in thir support or reasons justify-
ing their promulgaon, but merely to show that
many variable andintangible factors inevitably
enter into the situatin, making the injunctive proc-
ess of doubtful prpriety and legality. * * *
Because of many Uxnown factors and the uncer-
tainty of what woul be the consequences to both
employers and emplyees of a ruling of the nature

sought by the comjainant, the case is far from
clear.”’

The net effect of the desion of the court was that the

plaintiff had not satisfied iby clear and convincing proof,
that it was entitled to a ta porary injunction.

Judge Buffington dissemq and pointed that
‘Enforced as thy (the rules) will be by the
affirmance of this cée, the rules shut out a citizen
of the United State¢rom fair competition in Phila-
delphia business sithly because he is a resident of
New York State, 4d give to this competitor a
monopoly of that bsiness because he is a resident

of Pennsylvania.’’

An application for a wriof certiorari from the Supreme
Court of the United Statesyas denied, 273 U. S. 748, 71L.
Ed. 872. In the instant Cse, an appeal from a final de-
eree, reliance is placed irjystifying the rule only upon

the elimination of friction which is not proven to have
existed, and the fact that defendants believe that foreign
contractors figure on the higher rate for labor. None of
the other reasons, which are referred to by the Third
Circuit Court of Appeals in 15 Federal, 2nd, at p. 18, are
availed of. That court said (p. 18)—

“Tf he (the foreign contractor) pay a higher rate

to the home laborers and a lower rate to the local
laborers, trouble will inevitably follow.’’

The complete answers are: for fifteen or sixteen years
there was harmony; if there had been any trouble it would
have been perfectly easy to introduce probative evidence
to the effect and none was offered; after the Union de-
termined to enforce the rules, when injunctions were
. granted, the laborers continued to harmoniously work;
there is an economic reason why the rate paid to the arti-
san brought in from a foreign district should be that of
the foreign district, whereas, the artisan hired on the
spot should be paid the rate of the locality from which
he comes, and it is not to be assumed, at least with-
out proof, that there is going to be friction among
union laborers because of a difference in wage scale when
there is an economic reason for that difference, as men are
supposed to be reasonable; there was no evidence that on
this job any different rate of wages was applied to labor-
ers performing the same work; the rule applies whether
any ‘‘foreign’’ laborers are employed or not; the differ-
ence is not based on the residence of the laborers or the
place from which they come but on the locality of the main
office of the contractor; if a laborer living in New York
works in Somerville for a local contractor he gets the local
wage; if he performs the same work for a contractor with
a main office in New York, he gets the New York wage.

The Third Circuit Court of Appeals suggested that an
argument might be made that the higher wage scale should
be paid because, when an employer leaves his locality of

30

higher wages, he may leave at home laborers unemployed
and that the union may “‘legislate for the continued em-
ployment of laborers in varied localities at varied wage
rates by providing rules that will measurably insure em-
ployment everywhere.’’ This argument is not made, or
at least was not in the courts below, and I do submit that
it would be going pretty far to say that labor may, in
order to secure its employment by a contractor in his
‘*home’’ ‘district, so discriminate, and enforce that discrim-
ination by the boycott, against that contractor when he
goes to any other district as to compel him to remain in
his ‘‘home’”’ district and not take work elsewhere, for to be
effective the power of the Union must go to that extent.
But, even then, it will not be effective for the number of
laborers employed in a district does not depend upon the
number of contractors in that district but upon the amount
of work. Wherever there is work to be done, there will
be found contractors to do it, and, labor in the building
industry over the territory which we are discussing being
practically 100 per cent. organized, it is quite immaterial
(from an economic standpoint) whether contractor A or
contractor B performs the work.

The result of admitting any such right in the Union is to
admit its right not only to determine that none but union
labor shall work but who shall be permitted to contract to
do the work.

The remaining suggestion of the Third Circuit Court of
Appeals with respect to the influx of laborers and the in-
crease in work at one place or the decrease of laborers
and the decrease of work at another place, etc., is not met
by the provision of the rule which requires the higher wage
seale to be paid, nor is it designed to be met by that pro-
vision. It is met, as far as it may be, by the provision of
the rule which requires the foreign contractor to engage
fifty per cent. local help, and that rule is not in dispute in
this case, If the Union desires to raise the precentage it

31

may do so. The matter of ‘‘influx, ete. of laborers’? is not
governed by the ‘‘influx of contractors’’ but by the in-
crease of work. Contractors neither create nor diminish
work—work creates and diminishes the contractors.

The next and last case was Barker Painting Company v.
Brotherhood of Painters, Decorators and Paper Hangers,
etc., et als., 23 Federal, 2nd 743, Court of Appeals for the
District of Columbia. That case went off in the court
below and, in effect, in the Appellate Court because there
was in fact no interference by the Union with the men em-
ployed by the Barker Painting Company. The Barker
Painting Company inserted advertisements in the local
newspapers for workmen, and, in answer thereto, a num-
ber of local union painters appeared at the place of work.
These men were met, however, by officers of the Union,
who informed them that the Barker Painting Company in-
tended to disregard the union rules, whereupon they re-
fused to accept employment and left the place. The court
said:

“In this instance there was no strike or intimida-

tion nor any threat of disorder or interference with
appellant’s right to employ non-union painters, It
cannot be claimed that there was any breach of con-
tract by the men; the latter simply refused to enter
into any contract of employment upon the terms
offered by appellant. It is certain that appellant
could not compel the union painters to work for it
upon its own terms, regardless of their con-
sent e . - 9

In the case at bar, plaintiff had commenced the work and
had prosecuted it to the point that it was thirty per cent.
complete. Its workmen were proceeding willingly, peace-
fully and satisfied, when the union officials, because of the
rule, ordered them off the work, and it was only because
of the active interference of the union officials that they
left, and, when the pressure of the union officials was re-

32

moved by the injunction of the court, all but one returned
and he did not remain away because of the rule.

Notwithstanding the fact that the employees of plaintiff
were not under contract, it is entitled to their good-will
‘precisely as a merchant is entitled to the good-will of
his customers, although they are under no obligation to
continue to deal with him. The value of the relation lies
in the reasonable probability that, by properly treating
its employees and paying them fair wages, and avoiding
reasonable grounds of complaint, it will be able to retain
them in its employ, and to fill vacancies occurring from
time to time by the employment of other men on the same
terms. The pecuniary value of such reasonable probabili-
ties is incalculably great, and is recognized by the law in
a variety of relations.’’ * * * ‘Plaintiff, having in the ex-
ercise of its undoubted rights established a working agree-
ment between it and its employees, with the free assent of
the latter, is entitled to be protected in the enjoyment of
the resulting status, as in any other legal right. That the
employment was at will and terminable by either party at
any time, is of no consequence.”’

Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229,
62 L. Ed. 260, at p. 276, citing with approval Truaz v.
Raich, 239 U. 8S. 33, 38, 60 L. Ed. 131; Brennan v. United
Hatters, 73 N. J. L. 729, 749; 9 L. R. A. (N. S.) 254; 118
American State Reporter 727, 65 Atl. 165, 9 Ann. Cas. 698,

In this case the question is not whether union employees
may cease from work because the rule is violated nor is
it whether officers of the Union may step between em-
ployer and prospective employees and insist upon com-
pliance with the rule; it is whether, the relationship of
employer and employee having been established, with the
mutual assent of both parties, the officers of the Brother-
hood may direct the severance of the relationship upon
penalty that, if the orders are not obeyed the employee

33
either lose his membership or be fined, the loss of the
membership meaning that the employee cannot obtain

work at his trade anywhere, at least within the states here-
tofore mentioned, due to the unionization of the industry.

The proof showed in Barker Painting Co. v. Brother-
hood, etc., 23 Fed. (2nd) 743, that non-union labor might
be obtained in Washington and the element of power of
the Union due to the fact that the trade was practically
100 per cent. unionized was not present—as it is in the case
at bar.

Upon the application of the Sherman Act, the court held
that the union was protected by section 6 of the Clayton
Act. But, I submit, that, in so holding, the court ignored
the effect of the decision of this court in Truax v. Corri-
gan, 257 U. S. 312; 66 L. Ed. 254,

The court expressed the view that it did not think that
the regulations were discriminatory, unreasonable, arbi-
trary or oppressive. It stated that the higher wage and
shorter week rules were adopted by the Brotherhood prior
to the year 1913; the fifty per cent. rule in 1922; and
“they have been in force ever since.’’

The evidence in the case at bar shows that the rule, with
respect to the higher wage rate and shorter hours, was
not enforced prior to the Dallas convention of 1921, which
led to the sending out of the letter of December 5, 1921,
Plaintiff’s Exhibit P. 4, p. 156, and that it had not been en.
forced is impliedly conceded by defendants’ witness Joseph
F. Kelly, the Second General Vice-President of the
Brotherhood, when he says that, even after the Dallas Con-
vention of 1921, the rule was not enforced with respect to
contracts which had been made before the notice of the
Union of December 5, 1921, Exhibit P. 4. He says that it
would have been unfair to have enforced it with respect to
those contracts (p. 118).

34

The eourt further said:

‘‘They (the rules) are designed to meet a situation
which without regulation would be productive of
confusion and disorder for union labor. The cost
of living is higher in some places than in others;
therefore union wages vary in different localities.
If a contractor employs union labor upon work
in his own city, he must pay the union wages of that
locality; but, if he moves his force of local labor to
another city, he may meet there with a higher or
lower union wage scale, as well as with different
limitations as to periods of labor. It was to meet
these conti cies that the rules now in question
were adopted; and this case does not involve their
wisdom, but only their legality.’’ (Suppose he does
not move his force but employs local labor. Then
why should he pay the wage scale of the locality in
which he has his main office, assuming that to be
the higher?)

I have already indicated that there is not in this case
any evidence whatever that, in the absence of the rule,
there was any confusion or disorder; the evidence is to the
contrary.

The statement of the court that the contractor must
meet different conditions in different places may be a state-
ment of fact but the court does not indicate how the fact
affords any justification for the rule.

While it may be true that the case does not involve the
wisdom of the rule, it does involve more than its legality
for there is in the case the question as to whether, by com-
bination, a boycott may be put in motion against Barker
to enforce a rule which, as applied to Barker, is wholly un-
reasonable. The court continues:

‘*The rules do not discriminate against any par-
ticular person or place, and are uniform in their
operation throughout the country.’’

It is not clear, I submit, how the effect of the discrim-
ination is any less injurious or violative of Barker’s rights

because it is not directed at it individually but at it as a
member of a class arbitrarily created. If the rights of but
one person were involved it would, except for the principle,
be of little public importance whether the business of that
one person was ruined. The fact that the discrimination
extends to more than one has never been held to justify
arbitrary discrimination. ‘The extent of the discrimination
indicates its public importance. What the court, undoubt-
edly, had in mind, as did other courts dealing with the
same question and making the same statements, were those
eases which have suggested that malice is a necessary
element before the court will interfere in cases of this kind.
I will deal with that subject later and content myself here
with the statement that the recent authorities all hold that
“‘malice,’’ when used in this connection, means but an act
performed without lawful justification.
W. A. Snow Iron Works v. Chadwick, 227 Mass.
382, 116 N. E. 801;
A. € L, Mfg. Co. v. Carpenters’ Council, 308 Til.
488, 139 N. E. 887;
Toledo A, A. € N. M. Ry. Co. v. Pennsylvania
Co., 54 Fed. Rep. 730;
Martin on the Modern Law of Labor, published
in 1916, p. 34, ete.

An application made for a writ of certiorari from this
court was denied, 276 U. S. p. 631, 72 L. Ed. 741.

The Opinion of the District Court.

The decision of the District Court was rendered prior
to that of the Circuit Court of Appeals in Barker Paint-
ing Co. v. Brotherhood of Painters, Decorators and
Paperhangers, etc., 15 Fed. 2nd, 16, and the decision in
the Barker Painting Co. v Brotherhood of Painters, Deco-
rators, Paperhangers, etc., in the Court of Appeals for
the District of Columbia, 23 Fed. 2nd, 743. It is found

36
the state of case, and is reported in 12 Fed-

The court below quoted copiously from the opinion of

of the Court of Errors and Appeals of New
Jersey in New Jersey Painting Co. v. Brotherhood of
Painters, etc., 96 N. J. E. 632, 126 Atl. 399, and, in effect,
based its conclusion upon the statute of New Jersey,
P. L. 1883, 3 Comp. Stat. of N. J. 1910, p. 3051, sec. 128,
which statute I will argue, if construed to permit the con-
duct of the Unions, is in contravention of the 14th amend-
ment to the Constitution of the United States as well as
of the Constitution of New Jersey.

The court noticed the argument that the mere fact that
one or any other number of workmen may refuse to work
for any reason, or for no reason, does not justify a com-
bination, to, in effect, boycott by agreeing to decline to
work, but stated that the trend of modern economic
usage, both as practiced and as given expression in the
courts, is increasingly against regarding combinations
among laborers as unlawful per se, narrowing condemna-
tion to those combinations which are formed for the pur-
pose of effecting an unlawful object, or the doing of a
distinct injury to one against whom the activities of the
combination may be directed. I submit that the court
has, in effect, treated as lawful a combination to effect
any object which an individual acting alone might effect,
which is not the law.

Gompers v. Buck’s Stove € Range Co., 221 U. 8.
418, 439, 55 L. Ed. 797, 805;

Hitchman Coal & Coke Co. v. Mitchell, 245 U. 8.
229, 62 L. Ed. 260;

Quinn v. Leathem, 1901, App. Cases 495;

Pickett v. Walsh, 192 Mass. 572, 78 N. E. 753, at
p. 757.

Plant v. Woods, 176 Mass. 492, 57 N. E. 1011;

A. T. Stearns Lumber Co. v. Howlett, 157 4. E.
82, 260 Mass. 45.

the intimation contained in the majority
New Jersey Court of Errors and Appeals in New Ver
Painting Co. v. Local No. 26, 126 Atl. 399, 96 N. J. E.
632, to the effect that ‘‘The attack is aimed, not the com
bination, but at its effect upon the employers. This
unsound, both legally and economically.”’

Both courts, I submit, overlooked the fact that the ques-
tion as to the legality of the combination, or rather as to
whether a civil wrong is committed by the combination,
is determined by the effect produced upon those against
whom the act is directed and by the application of the
principle sic utere tuo ut alienum non laedas, as the Su-
preme Court of New Jersey said in Delaware and Rari-
tan Canal Co. v. Lee, 22 N. J. L. 243, at p. 247, and as
this court said in Hitchman Coal and Coke Co. v. Mit-
shell, 245 U. 8S. 229, 62 L. Ed. 260.

There are but few acts which are inherently right or
wrong. An act is denounced as a crime, or as a civil
wrong, because of its effect upon others than the perpe-
trator of the act.

Every combination, and the acts of every combination,
would be lawful were it not because of the effect upon
others than those parties to the combination and to the
acts. Why not?

In considering the object of the rule, the District Court
said (p. 29) that in the minds of those who framed its
terms there was one main plan—‘‘that of increasing
wages under certain conditions therein named. What-
ever dispute there may be regarding these conditions,
the fact must remain that there was in contemplation
their utilization as a basis for wage increase.’’

And the court then went on to state that “the quest
for increased wages is a lawful object.’’

The District Court then proceeded to say that the un-
lawfulness of the acts must be found either in the resi-
dential feature of the rule, or in the methods adopted in
the attainment of the object, or in the effect which such
attainment has produced.

In considering the methods used to effectuate the object
the court indicated that the record is barren of any show-
ing of intimidation, violence, or disorder of any sort and
that that feature may safely be eliminated.

While there was no evidence of violence or disorder
there was evidence of intimidation. The District Court
overlooked the fact that it has been uniformly held that
there may be intimidation without violence.

Barr v. The Essex Trades Cowncil, 53 N. J. E.
101, 30 Atl. 881;

Toledo A. A. € N. M. Ry. Co v. Pennsylvania Co.,
54 Fed. Rep. 730, opinion by Judge Taft;

Truaz v. Corrigan, 257 U. 8. 312, 66 L. Ed. 254;

Duplex Printing Co. v. Deering, 254 U. 8. 443, ©
L. Ed. 349;

And many other cases.

39

It is not possible, I submit, to urge that there is no
intimidation when the penalty which would be visited upon
workmen who persisted in working against the order of the
Union leaders, would be dismissal from the union, in which
event they would lose the right to earn a livelihood at their
trade, or a fine, and it is not necessary for a threat that it
be expressed in words. It is sufficient that it be under-
stood.

See the cases above cited and Beck v. Railway Team-
sters’ Protective Union, 118 Mich. 497 ; 42 L. R. A. 407,
at p. 416.

But, I submit that the court has overlooked another
factor to be considered, i. e., the factor of combination and
this involves the argument that has already been, and

Upon the matter of the legality of the classification the
District Court said:
“*Had the rule in question drawn a specfic line of
demarcation, basing its operation avowedly upon
differences in state citizenship, I can conceive that
such differentiation would constitute an unlawful
and forbidden discrimination; but as I read the
subject to that interpretation, con-
in nowise with state lines, but apply-

and everybody who essays to do

iness outside of his home city, whether it be in

& neighboring town in his own state, or in some
distant foreign jurisdiction.”’

And the court said that, because of that fact, the rule

is free ‘‘of the charge of effecting an unlawful discrimina-
tion.”’

While it is true that the basis of classification is not on
State lines, the effect is to discriminate against con-

40

tractors coming from a foreign state, but the objection
is not only that there is a discrimination against con-
tractors coming from foreign states, but also that the
classification is wholly based upon the locality in which
the contractor may have his main office, which has no
reasonable relation to a wage scale as pointed out by Judge
White in uis dissenting opinion in New Jersey Painting
Company v. Local No. 26, New Jersey Court of Errors
and Appeals, 96 N. J. E. 632; 126 Atl. 399, at p. 403.

The District Court, while conceding the rule that the
classification ‘‘must always rest upon some difference
which bears a reasonable and just relation to the act in
respect to which the classification is proposed, and can
never be made arbitrarily and without any such basis”
suggested that the classification in this case has a reason-
able relation to the subject matter for the reason that ‘‘yet,
even so, it can hardly be urged as a general proposition
that the matter of residence is one not germane to the —
question of wages, since it is, in a real sense and under all
ordinary conditions, the controlling factor. A contractor,
living and doing business in a small town, pays his workers
the union wage scale established for that town. Eventu-
ally, and of his own accord, moving his business and estab-
lishing it in a large city, he accepts the altered conditions
and pays the identical staff of workers the enlarged rate
of the metropolis, for which the change of his ‘home city’
has come the consequent change in the stipend of his
workers.’’

But the learned court must have been here referring not
to a ‘‘contractor’’ but to a ‘‘manufacturer.’’ It is quite
true that when a manufacturer changes his ‘‘home’”’ city,
he changes his rate of wages, either lower or higher, if
there be a difference, but that is because he removes his
entire business to the new ‘‘home city’’ and his workmen,
who are employed in the ‘‘home city’’ live in the ‘‘home
city.’ It is not the change of the ‘‘home city’’ of the

| ee e

41

manufacturer which makes the change in wage. It is the
fact that the work which is now performed for him is
performed in a “‘new’’ city. It is the place of the per-
formance of the work which governs the wage scale and
that is because the workmen are obliged to meet the living
conditions of the place in which they perform their work,
the living conditions being the determining factor in a
wage scale.

But a painter or a building contractor does not perform
his work at the place of his ‘‘home city.’’ On the con-
trary, in his ‘‘home city,’’ all that he may have is an office
and all of his work may be performed outside of his ‘*home
city,”’ and in places far remote.

Just as in the case of the manufacturer who moves his
plant from one city to the other—the place of his plant,
where the work is performed, should be the place deter-
mining the wage scale, so in the case of a contractor who
has his work performed by labor outside of his ‘‘home
city’’—the place of performance should be the determin-
ing factor in the wage scale.

The District Court said:

“‘The natural effect of all of the foregoing is to
equalize, at the higher rate, the wages of all workers
employed under the conditions set out in the rule
under review, and thus, as it appears to me, the ob-
ject and effect of the rule are lawful, as are also
the foundation laid and the means relied on for its
enforcement.’’

It is quite true that the effect of the rule is to equalize
wages, at the higher rate, but the equalization is based
upon a difference which has no relation whatever, econom-
ically, to the wage scale.

42
(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 reasonable relation to the wage scale and the
attempt of the Union to enforce it by combination is un-
lawful and a violation of the rights of plaintiff.

Considerable of the argument applicable to this has
already been made. There are, however, certain prin-
ciples of law to which reference should be made with
their particular application to the case at bar.

This case may be argued to be one of primary boycott.
There are directly involved, only the particular workmen
employed by plaintiff, but there is superimposed, not only
a rule adopted by all persons engaged in the painting
industry, but an interference by Union officials (represent-
ing not only the painters’ union but others) with the
workmen of plaintiff, the only persons directly involved,
who were working harmoniously with it despite the rule,
and the compulsion of those union officials upon the work-
men of plaintiff to comply with the rule under penalty
of a fine or loss of membership in the organization, which
would mean the loss of opportunity to make a livelihood.
The general law of boycott is of importance.

Many of the courts, including the courts below, I submit,
have fallen into the error of assuming that, because an
act may be performed by one, it may be performed by
many in combination and the mere fact of combination,
plus compulsion brought by the combination as such, upon
the individual members of the combination to comply
with the demand of the combination may not, in and of
itself be sufficient to render the acts of the combination

illegal.

The law of boycott as applied to the case at bar.

In the very first case in ‘this country in which the
word ‘‘boycott’’ was used, State v. Glidden, 55 Conn. 46,
8 Atl. 890, 3 Amer. St. Rep. 23, the Connecticut court
said (at p. 895 of 8 Atl. Rep.):

‘It is also a combination of many to impoverish
and oppress a few. The weaker party needs and
must receive the protection of the law. If in any
case it is criminal for many to combine to do what
any one may lawfully do singly, it would seem that
this would be such a case. Numbers can accomplish
what one man cannot—evil as well as good; and
that is the reason of the combination. The law
encourages combinations for good, and combina-
tions by workmen to better their condition by legiti-
mate and fair means are commendable, and should
be encouraged. But combinations for evil purposes,
whether by one class of men or another, are detri-
mental to the public weal and cannot be regarded
with favor by the courts. But combinations for
good purposes may be perverted, and when their
power is sought to be used to harm their fellow-
men, to deprive others of their just rights, then,
not the combination, but the use of it becomes
criminal. In such use there is a large element of
wantonness and malice. Any one man, or any one
of several men, acting independently, is powerless ;
but when several combine and direct their united
energies to the accomplishment of a bad purpose, the
combination is formidable. Its power for evil in-
creases as its numbers increase.’’

And the court further said, p. 894:

‘‘As a means of accomplishing the purpose, the
parties intended to harm the Carrington Publishing

Company, and therefore it was malicious.”

In Quinn v. Leatham, in the House of Lords of England
(1901), Appeal Cases 495, 1 British Ruling Cases, 197,
at p. 232, Lord Brampton said:

‘“‘Much consideration of the matter has led me
to be convinced that a number of actions and things

43

—
44

not in — actionable or — if done
separately without conspiracy may, with conspir-
acy, become dangerous and alarming, just as a grain
of gunpowder is harmless, but a pound may be
highly destructive, or the administration of one
grain of a particular drug may be most beneficial
as a medicine, but administered frequently and in
large quantities, with a view to harm, may be fatal
as a poison.’’

And Lord Macnaghten said (p. 213):

‘‘That a conspiracy to injure—an oppressive
combination—differs widely from an invasion of
civil rights by a single individual cannot be
doubted. I agree in substance with the remarks
of Bowen, L. J. and Lords Bramwell and Hannen
in the Mogel case, (1889) 23 Q. B. D. 598 (1892)
A. C. 25, 61 L. J. Q. B. N. S. 295, 66 L. T. N.S.
1, 40 Week Rep. 337, 7 Asp. Mar. L. Cas. 120, 56
J. P.101. A man may resist without much difficulty
the wrongful act of an individual. He would prob-
ably have at least the moral support of his friends
and neighbors; but it is a very different thing (as
Lord Fitzgerald observes) when one man has to
defend himself against many combined to do him
wrong.”’

And the House of Lords in that case considered the
prior case of Allen v. Flood (1898), A. C. 1.

The effect of the decision of Quinn v. Leatham is that
the gist of the action is not the malice but the effect
produced, or sought to be produced, by the combination
upon the rights of others. When the courts use the term
‘‘malice’’ they mean only the absence of a just cause
or excuse, not for the act performed, but for the effect
produced.

This court in Gompers v. Buck Stove & R. Co. (1911)
221 U. S. 418, 55 L. Ed. 797, at p. 805 said:

‘‘But the very fact that it is lawful to form these
bodies, with multitudes of members, means that they
have thereby acquired a vast power, in the presence

45

of which the individual may be helpless. This
power, when unlawfully used against one, cannot be
met, except by his purchasing peace at the cost of
submitting to terms which involve the sacrifice of
rights protected by the Constitution; or by stand-
ing on such rights and appealing to the preventive
powers of a court of equity. en such appeal is
made, it is the duty of government to protect the

one against the many, as well as the many against
the one.’’

In Hitchman Coal and Coke Co. v. Mitchell, 245 U. 8S.
229, 62 L. Ed. 260 (1917) this court recognized the effect
of numbers when it said at p. 279:

“It was one thing for plaintiff to find from time
to time, comparatively small numbers of men to
take vacant places in a going mine; another and a
much more difficult thing to find a complete gang
of new men to start up a mine shut down by a
strike, when there might be a reasonable appre-
hension of violence at the hands of the strikers
and their sympathizers,’’

And in Pickett v. Walsh, 192 Mass. 572, 78 N. E. 753,
at p. 757, the Supreme Court of Massachusetts said:

“In addition to the limitation thus put on labor

unions there is a fact which puts a further limita-

tion on what acts a labor union can legally do.

That is the increase of power which a combination

of citizens has over the individual citizen. * * ©»

“The result of this greater power of coercion on
the part of a combination of. individuals is that
what is lawful for an individual is not the test of
what is lawful for a combination of individuals; or
to state it im another wa , there are things which
it is lawful for an individual to do which it is not
lawful for a combination of individuals to do.’?

And see Plant vy. Wood, 176 Mass. 492, 57 N. E. 1011
(1900),

A. T. Stearns Lumber Co. v. Howlett, 260 Mass.
45; 157 N. E. 82 (1927).

a

46
Neither the fact that the act is one
erly be performed by a single individual nor the fact that
the object has some reference to wages, hours or working
conditions, is determinative of the legality of the acts of
a@ combination.

The right of a single union man to refuse to work with
a non-union man is conceded.

The maintenance of a closed shop has a direct bearing
upon both wages and terms of employment but a strike, as
a result of a combination to enforce a closed shop over a
wide territory, is unlawful, although the right of an in-
dividual not to work in any but a closed shop must be
conceded.

Baldwin Lumber Co. v. Int. Brotherhood of Team.
sters, 91 N. J. E. 240, 109 Atl. 147 (1920);

Connors v. Connolly, 86 Conn. 641, 86 Atl. 600,
(1913) ;

Curran v. Galen (1897), 152 N. Y. 33, 46 N. E.
297 ;

Lehigh Structural Steel Co. v. Atlantic Smelting
é Refining Co. (1920), 92 N. J. E. 131, 111 Atl. 376;

McCord v. Thompson-Starrett (1910), 113 N. Y.
Supp. 385, affirmed 198 N. Y. 587, 92 N. E. 1090;

Folsom v. Lewis (1911), 208 Mass. 336, 94 N. E.
316,

The right of a single union man to refuse to work with
a non-union man is conceded and that right has a relation
to the terms of employment but an agreement to compel
an employer to discharge a non-union man at the request
of the union is illegal.
Berry v. Donovan (1905), 188 Mass. 353, 74 N. E.
603.

The right of a union man to refuse to handle material
sold by any particular person may be conceded, but an

47

agreement among union members to so refuse to handle
such material is unlawful.

Burnham vy. Dowd, 217 Mass. 351; 104 N. E. 841

1914) ;
; A. T. Stearns Lumber Co. v. Howlett, 260 Mass.
45, (1927), 157 N. BR. 82;

J. D. Loizeaux Lumber Co. v. Carpenters’ Local
of Roselle, N. J., N. J. Chancery, opinion by Vice-
Chancellor Buchanan, unreported, opinion handed
to the court.

The matter of employment of apprentices has reference
to the terms of employment, nevertheless a combination to
protest against the employment of an employee as an ap-
prentice on the ground that it is a breach of one of the
rules of the association is illegal,

Read vy. Friendly Society of Operative Stone-
masons (1902), 2 K. B. 732, 1 British Ruling Cases,
503.

The number of men employed by an employer not only
has reference to the terms of employment but also to the
matter of wages, nevertheless a rule of labor union re-
quiring the employment of a minimum number is unlawful.

_ Haverhill Strand Theatre Co. Inc. vy. Gillen
(1918), 118 N. BE. 671, Massachusetts Supreme
Court, L. R. A. (N. S.) 1918 C. 813, 229 Mass. 413.

Collective bargaining goes to the terms of the employ-
ment but a strike to enforee it is unlawful.
United Shoe Machinery Co, y. Fitzgerald (1921),
237 Mass. 537, 130 N. E. 86.

A single white man may rightfully refuse to work with
@ colored man, but a combination of white men to refuse
to work with a colored man is illegal.

It is not always true that men may quit work for any
or for no reason.

It is necessary to cite but one case.

In Toledo A. A. € N. M. Ry. Co. v. Pennsylvania Co.
(1893), Cirenit Court, Northern District of Ohio, before
the late Chief Justice Taft, then Circuit Judge and Ricks,
J., 54 Federal 730, the late Chief Justice conceded at p.
737 that the statement is not always true, and he said:

‘*But it is said that it cannot be unlawful for an
employee either to threaten to quit or actually to
quit the service when not in violation of his con-

tract, because a man has the inalienable right to
bestow his labor where he will, and to withhold his
labor as he will. Generally speaking, this ts true,
but not absolutely. If he uses the benefit which
his labor is or will be to another, by threatening to
withhold it or agreeing to bestow it, or by actually
withholding it or bestowing ii, for the purpose of
inducing, procuring, or compelling that other to
commit an unlawful or criminal act, the withhold-
ing or bestowing of his labor for such a purzose
is itself an unlawful and criminal act. The same
bere . true with Ngo ” me — of the
ight of pro ‘ man has the right to give
or ask hie srepeler where. he will, but if he gin
sell it, or refuse to give or sell it as a means of
inducing or compelling another to commit an unlaw-
ful act, his giving or selling it or refusal to do s0
is itself unlawful.’’
Many cases in which strikes, as such, have been en-
joined are in point.
Folsom v. Lewis, 208 Mass. 336, 94 N. E. 316;
Baldwin Lumber Co. v. Local No. 560, etc. 9
N. J. E. 240, 109 Atl. 147;
A, T. Stearns Lumber Co. v. Howlett, 157 N. EB
82; 260 Mass. 45.
Lehigh Structural Steel Co. v. Atlantic Smelting
& Refining Co., 92 N. J. E. 131, 111 Atl. 376;
International Organization v. Red Jacket C. C.
Co., 18 Fed. (2d) 839.

The underlying principle upon which the acts of de-
fendants must be held to be illegal.

The underlying principles upon which boycotts are
held unlawful are not difficult to ascertain. Every man
is entitled to conduct his business freely, and as he
chooses, subject, of course, to the maxim ““sic utere tuo
et alienwm non laedas.’’ Every man is entitled to labor,
or not to labor, for another as he chooses. Every man
has the right to deal freely with any other man, and
every man has the right to have others deal freely with
him. These rights are as absolute as any rights may be,
all rights being subject to constraint in the interest of
the public. If, in the exercise of the respective rights of
~ the individual, injury is done to others, the injury is
damnum absque injuria. But there is no absolute right
of individuals to act in concert. The right to act in con-
cert is a qualified right. Whether it may be exercised or
not depends upon the effect which it may have upon the
nearly absolute rights, qualified only by the maxim before
mentioned, of individuals outside the combination. If the
_ effect of the act performed in combination is to unduly
injure the public, or the absolute rights of individuals
outside of the combination, then, because of that effect, the
act of the individuals in combination may be prevented,
although each individual acting separately, may have per-
formed the act free from interference. The underlying
principle is that there is no absolute right to act in com-

The right of a single individual to refuse to work for
John Jones, except at the rate of fifteen dollars a day, and
to refuse to work for John Smith except at the rate of ten
dollars a day, and to agree to work for Robert Roe at
. the rate of five dollars a day is coneeded. The reason
that he may so discriminate is not because the discrimina-
tion is based upon a matter of wages but because he may
refuse to work for any one of the three for any reason

whatever. The fact that the discrimination is accom-
plished by a difference in a wage demand adds nothing
to the right. But can it be that all workers, or any con-
siderable number of workers in a community may combine
to refuse to work for John Jones except at the rate of
fifteen dollars a day, and to refuse to work for John
Smith except at the rate of ten dollars a day and to agree
to work for Richard Roe for five dollars a day? Does
the fact that the discrimination is accomplished by means
of a wage demand justify the combination to discriminate?
It must be conceded that the right to discriminate, so far
as the individual is concerned, for an arbitrary cause or
for no cause, is just as broad as the right to discriminate
because of a matter of wages. It likewise must be con-
ceded that a combination to discriminate, in the manner in
which I have pointed out is illegal if the cause be arbitrary,
Does the fact that the basis of discrimination has refer-

termine the persons engaged in an industry who shall do
business and who shall not. Can this be?

absolute right to perform the acts but the effect of what
they do by agreement upon others.

Otherwise stated, it is not a denial of the right of the
parties to the agreement to do the things they do, but a
denial ot the right to exercise that right in combination
because of the effect of the exercise of the right upon
relative rights of others. Why is it that a union cannot
insist, by agreement, upon a minimum number of workers
It is because of the effect upon the business of the
ployer. Why is it that a union is not permitted to

F

~

28

to enforce a closed shop over a wide territory? It is be-
cause of the effect upon the non-union man. Why is it that
a combination is not pe~mitted to compel the employment
of a union foreman? It is because of the effect upon the
business of the employer. Why is it that a union is pro-
hibited from interfering with non-union employers of a
shop in order to unionize a non-union shop? Hitchman
Coal & Coke Co. v. Mitchell, 245 U. 8. 229, 62 L. Ed. 260.
It is because of the effect upon the business of the em-
ployer and the effect upon non-union workers. Why is it
that an agreement to refuse to handle materials sold by one
who furnishes supplies to an employer of non-union labor
is prohibited? It is because of the effect upon the em-
ployer, the effect upon the person who sells the material
manufactured by non-union labor, the effect upon the non-
union men who work for that employer and the effect upon
the public.

It is not yet necessary to pass upon the question whether
or not a combination of individuals may be permitted to
insist upon payment to them of a wage which is outrageous
based upon no economic ground and destructive of em-
ployers as a whole. The time may be coming when that
question will have to be dealt with and, when it comes,
there is no doubt but that the courts will deal with it by
applying the maxim sic utere, ete. Brennan v. United
Hatters, 73 N. J. L. 729, 65 Atl. 165; Cyrus Currier vy.
International Molders, 93 N. J. E. 61, 115 Atl. 66.

The right of workers to combine to refuse to work ex-
cept upon a certain scale of wages is the result of growth.

A history, somewhat incom

—

52

under the English common law, such combinations were
unlawful. A consideration of the history will indicate that
the growth was a matter of economic conditions and it was
finally determined that there might be such a combination.
But the reason of it was, as stated by Eddy, who wrote
in 1900, sec. 444, p. 323:

**It is better for the law to leave employers and
employees free to form such associations as they
please in relation to rates of compensation so long
as the associations are voluntary. These associa-
tions will act upon each other; if the employees de-
mand too much or the employers offer too little, such
condition cannot continue for long or be productive
of any serious inconvenience to the community, as
that side must ultimately give way the of
which are not founded in reason and justice. Where,
however, combinations = formed to intimidate
employers or to coerce other employees, it matters
little what are the measures adopted, if the object
is to interfere with the rights of others and to con- —
trol their free action, ination is illegal.” —

There have been many changes since 1900, and, as the law
as it was laid down in 1900 was the result of growth, chang-

ing from time to time, it is not and never can be con-
sidered static, but must remain capable of growth to cope
with new conditions and I have no doubt but that, were
there a labor union in this country strong enough to
enforce upon employers an outrageous demand for wages,
which would have the effect of doing injury to the public,
and the economic conditions were such as that the bal-
ancing of association against association, as indicated by
Eddy, would not work, the law would find a way to cope
with the situation.

But that is not the situation here. This is not an attempt
to compel employers generally to pay a certain wage. It
is an attempt never before tried, so far as my examina-
tion of the books discloses, by agreement to discriminate
in the demand for wages between certain employers.

There is injected in it the idea of discrimination which
was not present in any of the cases referred to by Eddy
or which I can find.

If the workers have the right to, by combination, dis-
criminate in matter of wages as they have attempted in
this case, there is no limit to their power to advance one
employer and to destroy his competitor. Such a dis-
crimination is abhorent to every idea of equality upon
which the American government is founded.

It is a violation of the fundamental idea expressed in
the 14th amendment to the Constitution of the United
States and in the first section of the Constitution of New
Jersey. It is not contended but that one man may dis-
criminate. He may, for any reason or for no reason, but
just as there cannot be an agreement to refuse to work
for no reason so that can be no agreement to discrimi.
sate, using as & weapon of the discrimination a matter of
wages. The illegality arises not, as has been stated,
because of the combination but because of the effect of
the combination upon the employers, that effect being
produced by the greater power of the combination and,
as Eddy says, it matters little what are the means adopted
if the object is to interfere with the rights of others and

This Court has indicated that there are certain acts
which may be so abhorent to the fundamental concept of

our government as that one may be considered as pro-
tected against their performance under the constitution
although the right is not clearly expressed in the consti-
tution.
Pierce v. Society of Sisters, etc., 268 U. S. 510;
69 L. Ed. 1070.

It is one thing for a combination of employees to be
formed to deal with a combination of employers on matters
of wages, where the employers are to be treated as one
group and the employees as another, but when the com.
bination of workers seek to make distinction between the
employers then the check stated by Eddy fails.

If the law is as stated by the District Court then any
union organization operating throughout the country may
arbitrarily ordain discrimination as against employers,
based solely upon their residence, and not only may any
union do this thing, but unions may combine, and the com-
bination, which may control all labor throughout the United
States, may arbitrarily establish such discrimination. By
this means all employers of labor may be driven out of a
community except those who may have their residence
therein. If discrimination is justified against non-resi-
dents, the conclusion cannot be escaped but that discrim-
ination may be directed against residents, and all resident
employers in a community may, by concerted acts of the
union, be driven out of the community in which they reside
in favor of non-residents. Not only may discrimination as
to residence be based upon State lines, but county lines,
or such arbitrary districts as the union may set up. A
resident of the County of Essex, New Jersey, doing work
in the adjoining County of Hudson, New Jersey, may be
obliged to pay higher wages than a resident of the County
of Hudson, New Jersey, doing work therein, and a resident
of the adjoining County of Bergen, New Jersey, may be
obliged to pay still higher rates.

55

If such a right is to be accorded to combinations of
labor upon the theory that they have labor to sell for a
price, and that must be the theory, then I submit that a
similar privilege must be accorded to the sellers of any
other product, and I see no reason, upon principle, why
there may not be a combination of those dealing in hard-
ware, or any other article of commerce, to sell at one
price to a resident and at a lower price to a non-resident,
or vice versa, and the districts may be as arbitrary as the
combination of sellers desires to make them.

If this right is to be accorded to combinations of em
ployees it cannot, upon principle, be withheld from com-
binations of employers (Coppage v. Kansas, 236 U. 8.
1; 59 L. Ed. 441), and employers may combine to pay one
price for labor where the employees come from one dis-
trict and another where the employees come from another
district.

If combinations may make discriminations based upon
the residence of an employer, upon principle, I submit
that they may make discriminations between employers
based upon any other ground of distinction which may
occur to their minds, as, for instance, between those who
have capital invested of $100,000. and those who have
have capital invested of $200,000.; between those who
have made eight per cent. on invested capital for the pre-
ceding twelve months and those who have made sixteen
per cent.; between those who are individuals, partnerships
or corporations. Bases of discrimination may be created
ad infinitum. And this is not fanciful. There can be
found greater justification for a difference between the
rate of wages to be charged to employers who have an
invested capital of $100,000 and those who have an in-
vested capital of $200,000 and those who may be in-
dividuals or partnerships or corporations, as the case
may be, or between those who have made twelve per cent.
on invested capital for the preceding twelve months and

56

those who have made other percentages, than there is for
a difference between those who may have their main offices
in one place and those who may have them at another.
Profit sharing may be compelled with a vengeance. It is
hardly necessary to say that if, under the law, such
power exists in labor combinations, no amendment to the
Constitution is required to permit a complete destruction
of property and the establishment of a new social system.

Just as the power to tax includes the power to destroy,
so does the power to discriminate and make that dis-
crimination effective include the power to destroy.

:
:
i
I

p. 4, Act of July 2, 1890, c. 647, Sec. 1,
man Anti-Trust Act), Secs. 12, 13, 14, 15, 16

Stat. 730 (Clayton Act).

Plaintiff is engaged in interstate commerce within the
meaning of the anti-trust acts.

The uncontradicted testimony of Rosenthal (p. 42) is
to the effect that plaintiff carries on its business over the
United States from New York to Winnipeg, New Orleans
to New York to Dallas to New Orleans to Winnipeg; its
materials are usually purchased in New York and shipped
to different jobs in different states of the union, and then
back to New York; large amounts of material are pur-
chased in New York and shipped; some materials are
bought on the jobs; as a part of its business it makes
eontracts for the performance of work all over the United
States, the contract, the performance of which was inter-
fered with by the action of defendants, was made for the
performance of work in the State of New Jersey; the
effect of compliance with the rule will be to exclude

57

plaintiff from competition with local contractors in dif-
ferent parts of the United States.

The terms ‘‘trade’’ or ‘‘commerce’’ as used in the
anti-trust acts are not technical terms. They comprehend
every species of commercial intercourse.

Gibbons v. Ogden, 9 Wheaton 1; 6 L. Ed. 23;
Kidd v. Pearson, 128 U. S. 1; 32 L. Ed. 346.

In Second Employers Liability Cases, 223 U. S. 1; 56
L. Ed, 327, this court said:

“‘The term ‘commerce’ comprehends more than
the mere exchange of goods. It embraces com-
mercial intercourse in all its branches, including
transportation of passengers, and property by com-
mon carriers, whether carried on by water or land.’’

In United States v. Eastern States Retail Lumber
Dealers’ Assn. et als., 201 Fed. 581, District Court, South-
ern District of New York, Cireuit J udges Lacombe, Coxe,
Ward and Noyes sitting, Circuit Court Judge Lacombe
delivering the opinion of the court said:

‘It is now well settled that the words ‘restraint
of Trade’ in that (the Sherman) Act are to be con-
strued as including restraint of competition. Full,
free and untrammeled competition in all branches
of —- commerce is the desideratum to be
secured.’’

The decree was affirmed in this court, 234 U. S. p. 600;
58 L. Ed. 1490.

And see County of Mobile v. Kimball, 102 U. S. 691; 26
L. Ed. 238.

In Swift é Company v. United States, 196 U. 8. 375; 49
L. Ed. p. 518, this court 49 L. Ed. p. 525 said:

““* * * commerce among the States is not a
technical legal conception, but a practical one,
drawn from the course of business. When cattle
are sent for sale from a place in one State, with
the expectation that they will end their transit,

58

after purchase, in another, and when in effect they
do so with only the interruption necessary to find a
purchaser at the stock yards, and when this is a
typical, constantly recurring course, the current
thus existing is a current of commerce among the
States, and the purchase of the cattle is a part and
incident of such commerce.’’

In Binderup v. Pathe Exchange, et al., 263 U. S. 291; 68
L. Ed. 308, reversing the Cireuit Court of Appeals for the
8th Circuit, this court held that the manufacturing of mov-
ing picture films in one State and finding customers for
them in another State, making contracts with the customers
for their use and transporting the films from the State
where manufactured to the State where they are to be
used, constitutes interstate commerce even though the
films are consigned in the different States to local deposi-
tors as agents for the manufacturer.

Marienelli, Ltd. v. United Booking Offices of America,
et al., 227 Fed. 165 (District Court, S. D. New York), was
a suit for damages under the Sherman Act. The in-
dividual defendants owned many vaudeville theatres
throughout the United States, arranged in two Circuits,
an eastern and a western. The two corporate defendants
were booking agents for the two circuits. The defendants
entered into an agreement that the Eastern Owners would
not employ anyone not booked through the Eastern book-
ing house, and no performers would be employed who
played outside of the two Circuits. A similar arrange-
ment was made by the Western owners and the Western
booking house. Black-lists were made up by each of the
booking houses and these were exchanged between them.
There was a demurrer to the complaint. The court said:

‘*Undeniably certain aspects of the business are
interstate commerce, as, for instance, the contracts
made by the booking companies under which the
performers must go from state to state, throughout
the circuit, acting here and there and fulfilling their
contracts as much by travel as by the acting. Since

‘

Hoke v. United States, 227 U. 8. 308, and Wilson v.
United States, 232 U. S. 563, it cannot be doubted
that this feature of the business was within the
complete powers of Congress for such purposes as
it might find to the public interest. This moreover,
applies as well to that feature incidental to the
foregoing, which consists in the carriage of the
performer’s stage properties and paraphernalia
from one state to another, a necessary part of the
performance of their contracts with defendants.
(Citation.) The same may be said of the scenery
and advertising matter sent from state to state by
the theatres heaves. In respect of all these
details, the business, therefore, consists of inter-
state commerce.’’

The same ruling was made by the Circuit Court of
Appeals for the Second Circuit in Fox Film Corporation
v. Federal Trade Commission, 296 Fed. 353, and also in
Fou Film Corporation v. Trumbull, 7 Fed. 2d 715, 721.

The Marienelli cases has been approved in:
United States v. United States Shoe Machinery
Co., 234 Fed. 127, 144;

Sullivan v. Associated B. & D. of U. S8., 272 Fed.
323, 327.

A case which is of the utmost importance I submit is
Ramsey v. Associated Billposters, et al., 260 U. §. 501;
67 L. Ed. 368, reversing the United States Circuit Court
of Appeals for the 2nd Circuit, 271 Fed. 140. This was
an action for damages against the Associated Billposters
under the Sherman Act. Plaintiffs were solicitors of
advertising for customers in many states; they prepared,
designed, purchased and sold billposters, and caused them
to be displayed by local operators throughout the United
States and Canada, contracting with their customers and
Teceiving pay for the entire service of preparing, de-
signing, purchasing and posting the advertisements, and
it was held that they were engaged in interstate com-
merce, and that a combination interfering with the con-

60

duct of their business was a violation of the Sherman
Act. The court said at p. 370 of 67 L. Ed.:

‘¢Plaintiffs had — a lucrative and profit-
able business when, in July, 1911, the Association
cancelled their licenses and refused to renew the
same. Now, as a result of the defendant’s unlawful
acts, they are disabled from competing in the
markets, and their business is restricted and un-
profitable.

The court below held: ‘The business of the solici-
tors is to send their customers’ advertisements to
be posted on billboards in various towns and cities
throughout the country. Assuming that this busi-
ness is, as between them and their customers, inter-
state commerce, we are clear that after the posters
have arrived at destination, the posting of them by
the billposters is purely local service, not directly
affecting, but merely incidental to, interstate com-
merce, We think this follows from the decision of
the Supreme Court in Hopkins v. United States,
171 U. S. 578, 43 L. Ed. 290, 19 Sup. Ct. Rep. 40.’”

With respect to this statement of the court below this
court said:

‘*We cannot accept this view. The alleged com-
bination is nation-wide; members of the Associa-
tion are bound by agreement to pursue a certain
course of business, designed and probably adequate
materially to interfere with the free flow of com-
merce among the states and with Canada. As a
direct result of the defendant’s joint acts, plain-
tiff’s interstate and foreign business has_been
greatly limited or destroyed. Hopkins v. United
States is not applicable. There the holding was
that the rules, regulations, and practices of the as-
sociation directly affected local business only. The
purpose of the combination here challenged is to
destroy competition and secure a monopoly by lim-
iting and restricting commerce in posters to chan-
nels dictated by the confederates, to exclude from
such trade the undesired, including the plaintiffs,
and to enrich the members by demanding non-
competitive prices. The allegations clearly show

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61

the result has been as designed—that the statute
has been violated and plaintiff’s business has suf-
fered.

This court has heretofore laid down and ade-
quately discussed the — principles. (Citing
many cases.) The fundamental purpose of the
Sherman Act was to secure equality o opportunity
and to protect the public against evils commonly
incident to destruction of competition through
monopolies and combinations in restraint of trade.
The alleged actions of defendants are directly op-
posed to this beneficient purpose and are denounced
by the statute.’’

In Aeolian Company against Fischer, and others, Uni-
ted States Circuit Court of Appeals for the Second Cir-
euit, decided April, 1930 (at this writing not reported,
but it will be reported in 37 Federal, 2nd ), the Cir-
cuit Court of Appeals, reversing the District Court
35 Federal, 2nd, 34 held that organ manufacturers who
built parts of organs in one State and erected the
organs in buildings in another were engaged in Interstate
Commerce and that the business of erection was a part
of the interstate commerce, and that a combination of
unions to call strikes in building trades employed on the
buildings in which the organ manufacturers were install-
ing their organs was a conspiracy in restraint of inter-
state commerce.

The Circuit Court of Appeals relied upon Anderson v. |
The Shipowners, 272 U. S. 359; 71 L. Ed. 298 and said:

‘‘The undoubted purpose of the appellees was to
monopolize the work with which the appellants
were concerned, that is, the installation of organs,
and require only their membership or union work-
ers for each = It restricted the liberty of em-
ployers and employees to engage in interstate com-
merce, whenever the employment of non-union
members is involved, and is an interference with
Interstate commerce. It is immaterial whether the
combination is unlawful because it interferes with

the right of non-union men to engage in such part
of interstate commerce or with the right of em-
ployers of non-union men to so e e; the result
is the same. If the combination is legal for either
reason, the person or corporation injured in its or
his property rights is entitled to relief. Chatta-
—— ee Pipe Works v. mg Atlanta,
208 U. S. 390; U. S. v. Colgate & Co. U. S. 300;
Loewe ». Lawler, 226 U. S. 274; U.S. v. Patten,
2296 U. S. 525. Tne ingeiry is not as the court be-
low evnceived it to be, whether or not there was a
combination to exclude the appellants’ organs from
interstate trade or commerce. I/t is as much a vio-
lation of the Sherman Act, as amended by the Clay-
ton Act, for combinations to exclude individuals
from work in interstate commerce, Finding that
the installation of the organ was work in interstate
commerce and that there was a combination directl
to restrict and obstruct that work, the opportuni.
ties of e ing therein was work of interstate
commerce. But the interference with this inter-
siate commerce was not confined to preventing
workmen from engaging in the employment of the
appellants as non-union men. There was a com-
bination to obstruct and interfere with the appel-
lants in carrying out their interstate trade and
commerce in their usual and practical way which, of
itself, was a violation of the act. It is not material
or important whether the restraint operates upon
this interstate commerce at the point of origin or
at the point where it comes to rest. Bedford Stone
Co. v. Journeymen’s Stone Co., 274 U. S. 37; Bin-
derup v. Pathe Exchange Inc., 263 U. S. 291; Ram-
say Co. v. Associated Bill Posters, 260 U. 8. 501;
Duplex Printing Press Co. v. Deering, 26 U. S.
443. The combination formulated by the appellees
to curtail the liberty of the appellants and their
employees to engage in the phase of the interstate
commerce involving installation, was a violation of
the anti-trust laws and their refusals to permit non-
union men to work and striking to interfere with
the work of the appellants in installing organs,
was a violation of the anti-trust acts. Duplex

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Printing +.g was a contradiction in
terms which the statute sedulously avoided, but
that, subject to the primary right of the employer
and his employees and would-be employees to free
‘access to his premises without obstruction by vio-
lence, intimidation, annoyance, importunity, or dog-
ging, it was lawful for ex-employees on a strike
and their fellows in a labor union to have a single
representative at each entrance to the plant of the
employer to announce the strik

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0388%3A3. Public record. Not legal advice.