Aeolian Co. v. Fischer, 27 F.2d 560 (S.D.N.Y. 1928)

*561 *562 Pavey & Higgins, of New York City (J. C. Higgins, of New York City, of counsel), for plaintiffs.

Morris Hillquit, of New York City, for defendants Fischer, Rosebrook and Meller.

James E. Smith, of New York City, for defendant Local Union No. 3, International Brotherhood of Electrical Workers.

Marcus E. Joffe, of New York City, for defendants Combined Amusement Crafts and Carl Lessing.

THACHER, District Judge (after stating the facts as above).

It seems entirely clear that this case can find no support *563 in the Sherman Act, as amended by the Clayton Act (15 USCA § 1 et seq.). Strikes were not called or threatened against the use of plaintiffs' organs, but only against the employment of nonunion labor in the local work of installation and maintenance. The purpose of all that was done was to coerce the employment of union men in one local craft through the refusal of other crafts to work on the same building with nonunion men. There was no intent, express or implied, to exclude nonunion products from interstate commerce, as in the Bedford and Duplex Cases. On the contrary, the effect, if any, upon interstate commerce, resulted from interferences with the local installation of plaintiffs' organs for a purely local object. The case is therefore governed by principles applied in Industrial Ass'n v. United States, 268 U.S. 64, 77, 45 S. Ct. 403, 69 L. Ed. 849, and United Mine Workers v. Coronado Co., 259 U.S. 344, 410, 411, 42 S. Ct. 570, 66 L. Ed. 975, 27 A. L. R. 762, and the decisions in Bedford Co. v. Stone Cutters' Ass'n, 274 U.S. 37, 47 S. Ct. 522, 71 L. Ed. 916, and Duplex Co. v. Deering, 254 U.S. 443, 41 S. Ct. 172, 65 L. Ed. 349, 16 A. L. R. 196, are not in point. In the Bedford Case it was said:

"The product against which the strikes were directed, it is true, had come to rest in the respective localities to which it had been shipped, so that it had ceased to be a subject of interstate commerce, Industrial Ass'n v. United States, 268 U.S. 64, 78, 79 [45 S. Ct. 403, 69 L. Ed. 849]; and interferences for a purely local object with its use, with no intention, express or implied, to restrain interstate commerce, it may be assumed, would not have been a violation of the Anti-Trust Act. Id., p. 77 [45 S. Ct. 403]; United Mine Workers v. Coronado Co., 259 U.S. 344, 410, 411 [42 S. Ct. 570, 66 L. Ed. 975, 27 A. L. R. 762]. But these interferences were not thus in pursuit of a local motive; they had for their primary aim restraint of the interstate sale and shipment of the commodity. Interstate commerce was the direct object of attack `for the sake of which the several specific acts and courses of conduct [were] done and adopted.' And the restraint of such commerce was the necessary consequence of the acts and conduct and the immediate end in view."

Coming, then, to the contention that plaintiff is entitled to relief under the common law of this state, there is no doubt that the defendant Organ Workers' Local No. 9, having failed in its efforts to unionize the plaintiffs' employees in the installation and maintenance of pipe organs in New York City by calling a strike of such employees, has for some time past endeavored to accomplish the same result through the sympathetic support of various unions affiliated with the Building Trades Council of New York, and that it has been able to persuade some of these affiliated unions to refuse to work in buildings where nonunion employees of the plaintiffs are engaged in the installation of organs. The Organ Workers' Local No. 9 has not only endeavored to prevent the employment of nonunion men by the plaintiffs in the installation of organs, by persuading other trades to refuse to work on buildings where such instruments were being installed, but through its affiliation with the Combined Amusement Crafts has endeavored in much the same way to prevent the employment of nonunion labor in the maintenance of organs, after installation, in theaters, by persuading the various crafts to refuse to work in theaters where plaintiffs' nonunion employees have been engaged in repairing or tuning organs. All this has been done through peaceful persuasion, without threats of violence or other unlawful act, and the question presented is whether it is lawful for union men, engaged in the construction of buildings and in the operation of theaters, to refuse to work while nonunion men of another craft are at work on the premises.

In considering this question it is important to bear in mind that the plaintiffs' employees are entirely content. They have no controversy with their employer regarding their wages, or the hours or conditions of their employment. It is, indeed, entirely clear that Organ Workers' Local No. 9 is attempting to coerce the employment of union labor, not through the exercise of its members' right to strike, but by persuading members of other crafts to exercise their rights in its behalf, and thus indirectly to accomplish its purpose, which it failed to accomplish in the general strike of 1925.

In this state, a secondary boycott is not illegal per se, and is condemned only if inspired by malicious intent and purpose to destroy the good will or business of those against whom it is directed. Cf. Bossert v. Dhuy, 221 N.Y. 342, 117 N.E. 582, Ann. Cas. 1918D, 661, and Auburn Draying Co. v. Wardell, 227 N.Y. 1, 124 N.E. 97, 6 A. L. R. 901. In Duplex Co. v. Deering, supra, the secondary boycott there in question was not held illegal under the laws of this state. The opinion of the court did not rule on the question, resting decision solely on the Sherman Act, as amended by the Clayton Act. *564 The three members of the court who dissented were of the opinion that the plaintiff had no cause of action by the common law of New York. So, also, in Bedford Co. v. Stone Cutters' Ass'n, supra, decision went solely upon the federal statutes.

That workingmen may organize for purposes deemed beneficial to themselves, and in their organized capacity may determine that their members shall not work with nonmembers, or upon specified work or kinds of work, is the settled law in this state. Bossert v. Dhuy, supra; National Protective Ass'n v. Cumming, 170 N.Y. 315, 63 N.E. 369, 58 L. R. A. 135, 88 Am. St. Rep. 648. It was, therefore, not unlawful for the defendant unions to forbid their members working with nonunion men employed in the same craft. Self-interest in such a case is sufficient justification, and injury to others is incidental to the exercise of a personal right. How far the members of a craft may go in their organized capacity in refusing to work in the same building with nonunion members of other crafts is a question not so simple of solution. It depends upon the extent to which those who co-operate have in point of fact a common interest, and are justified in what they do by honest motives to advance self-interest, as opposed to malicious intent to injure the business or good will of another.

It is seldom possible, with any certainty in the correctness of conclusion, to decide such a question upon affidavits and counter affidavits submitted upon motion for preliminary injunction. Facts bearing upon the inquiry are peculiarly lacking from the papers submitted upon this motion, no doubt because each party seems to be contending for an absolute rule the plaintiff, that under no circumstances can the defendants be justified in what they did by considerations of self-interest; and the defendants, that under no circumstances can their acts be declared illegal. But the conflicting rights involved are not absolute (Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 253, 254, 38 S. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461; Auburn Draying Co. v. Wardell, supra), and result will depend upon considerations of motive and justification. The mere refusal to work upon premises where nonunion men are employed is certainly not illegal per se. Nor can it be said that sufficient facts are disclosed to warrant conclusion that the refusal to work was without justification under New York law, upon valid grounds of self-interest.

This leads to a denial of the motion. The suit, however, is one which, in the interest of the parties and of the public as well, demands prompt consideration upon final hearing. If either party desires, the order to be entered denying the motion may provide for a trial of the issues at the June term.