Full opinion text
VAN VALKENBURGH, Circuit Judge. Plaintiffs are corporations, organized and existing under the laws of the state of Missouri, engaged in the manufacture and sale of ladies’ garments and wearing apparel, under the trade-mark “Nelly Don.” Said companies, as manufacturer and sales department, have built up a large market for said garments and a wide and profitable business throughout the states of the Union. Plaintiffs in their amended bill have brought suit against the International Ladies’ Garment Workers' Union, David Dubinsky, its president, several of its other officers, Meyer Perlstein, its southwest regional director, Wave Tobin, manager of its Kansas City Joint Board, and various other members of the International Union, charging that said defendants are engaged in an unlawful confederation and conspiracy to force plaintiffs’ employees to join the defendant union, and to compel plaintiffs to force said employees to join defendant union. That for years past the defendants, with other persons united with them, have , been, and now are, engaged in a general combination and conspiracy to force all persons, firms, and corporations engaged in the manufacture and sale of ladies’ garments in interstate commerce, including plaintiffs herein, to organize their employees into an organization to be part and parcel of the defendant union with the intent thereby to control the employment of labor in, and the operation of, all said business, and to extort from said workers large sums of money by way of dues, fines, penalties, and other exactions; that, in order to carry out such conspiracy and scheme, it was and is the purpose to destroy the interstate trade and commerce of such persons, firms, and corporations, their employees and customers- in the several states, until such time as, from the damage and loss of business resulting therefrom, the said employers will yield to defendants’ demands and force their employees to join the defendant union and submit to the domination and .control of the said union and its officers, thereby denying to such employees the right to bargain for and fix their own wages and conditions of labor, in dealing with their employers, free from influence, domination, and coercion. It is further charged in the bill of complaint that defendants, in furtherance of said scheme and conspiracy, have organized bodies of lawless persons, not employees of the particular plant to be assaulted, and have caused said gangs to attack the employees of various plants, and to threaten them with great bodily harm if they continue to work and refuse to join the defendant union; that^said gangs have assaulted employees who desired to continue their work, most of whom were women, with fists and weapons, tearing of hair, and stripping of clothing, and have threatened other physical harm to them and their families. Such employees have been assaulted on their way to and from work, and have, by violence and force, been prevented from gaining ingress to and egress from their places of business. That in furtherance of said scheme and conspiracy defendants have published and circulated false and libelous reports about the plaintiff companies, and have taken steps to inaugurate secondary boycotts against their customers and their merchandise in various states of the Union; that unlawful acts of this nature have been done and perpetrated against several garment companies in Kansas City within the past few months, and similar reprisals against these plaintiffs have been threatened. The amended bill of complaint pleads that “this is a suit of a civil nature in equity, wherein the matter in controversy exceeds, exclusive of interest and costs, the sum and value of $3,000.00, and which suit arises under laws of the United States known as the Sherman Act [15 U.S.C.A. §§ 1-7, 15 note] and Clayton Act [38 Stat. 730], including U.S.Code [title 15], sections 1, 4, 7, 8, 12, 15, and 26 [15 U.S.C.A. §§ 1, 4, 7, 8, 12, 15, 26].” It prays injunctive relief and protection from and against the alleged unlawful acts threatened. For their protection the Donnelly Garment Workers’ Union and employees of plaintiffs have filed a bill of intervention which is in full harmony with the relief prayed in the bill of complaint, but also seeks protection against coercion from any source, even against compliance of the Donnelly Companies with the demands of defendants, which would incidentally and necessarily impose upon these employees an association against their will. This bill of intervention challenges the constitutionality of the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq., if it should be held to apply, in addition to asserting a denial of its application. Defendants generally have filed a motion to dismiss, and certain defendants have filed a motion to vacate the temporary restraining order, a plea in abatement, and a separate answer. In this motion, plea, and answer a number of grounds are stated; but it developed at the hearing, and was announced by counsel for defendants, that the real, if not the only, ground of defense relied upon was the contention that the NorrisLaGuardia Act applies, and deprives this District Court of jurisdiction. The injection of the constitutional issue by the petition of intervention required submission to a court composed of three judges; and the jurisdiction thus acquired must be extended to a complete determination of the questions presented. The employees of the Donnelly Garment Companies, over 1300 in number, have completed an organization known as the “Donnelly Garment Workers’ Union.” They have negotiated with their employers a contract which provides specifically for the wages, hours, terms, and conditions of their employment that are entirely satisfactory to both parties. So far as this hearing shows, ihey are unanimous in this attitude, and have declared their opposition to affiliation with the defendant union, or with any other unrelated organization. Among these employees there are no members of the defendant union shown by the evidence, and no division exists among them. The proofs overwhelmingly establish that they are neither company inspired nor dominated. To insure their full independence of action, they have consulted able counsel of their own choosing, and have perfected their organization in full accord with the provisions of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. Inasmuch as no division exists in that organization, and since no complaint from any source has been lodged with the Laboi Board, challenging the good faith of this union, the proper selection of its bargaining representatives, nor the terms and conditions of its contract of employment, no necessity exists for enlisting further the functions of any Labor Board, nor the provisions of the National Labor Relations Act. National Labor Relations Board v. Delaware-New Jersey Ferry Co., 3 Cir., 90 F.2d 520, certiorari denied 58 S.Ct. 141, 82 L.Ed.-. In the cited case the National Labor Relations Board had taken cognizance of a complaint of unfair practices, and asked enforcement of its order commanding the Ferry Company to desist from refusing to bargain collectively with the Marine Engineers’ Beneficial Association as the exclusive representative of engineers-employees of the Ferry Company. The court, declaring that the primary purpose of the National Labor Relations Act was to “obviate appeals to brute force which often accompany labor disputes,” found that the employee engineers had unanimously entered into a contract with the company on terms acceptable to them, and declined to enforce the board’s order. In the course of the opinion Judge Dickinson said: “There is now no controversy; no complaint; no grievance. * * * There is in consequence nothing to negotiate.” This decision was made despite the fact that the matter had been before the Labor Board upon complaint of unfair practices, and that Board had found that the Marine Engineers’ Beneficial Association had been, and still was, the representative of the licensed engineers for collective bargaining. Nevertheless, the unanimous action of the employees was made conclusive. In the case at bar, no complaint has been filed, and the employees of the plaintiff companies have acted unanimously in the selection of their representatives and in the negotiation of their contract. The Donnelly Companies do an aggregate annual volume of business of $5,000,000. Customers residing and doing business in many states outside the state of Missouri purchase more than 80 per cent, of the “Nelly Don” garments manufactured in Kansas City, and commitments for hundreds of thousands of dollars worth of raw materials used in such, manufacture have already been made, and are recurringly made, in the conduct of the business. The combination charged will interrupt the free flow of raw materials from foreign countries and states outside the state of Missouri, and the free flow of such manufactured garments from the state of Missouri to states and points outside. Therefore, the National Labor Relations Act applies to plaintiffs under the authority of National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352, as held in National Labor Relations Board v. Friedman-Harry Marks Clothing Co., 301 U.S. 58, 57 S.Ct. 645, 81 L.Ed. 921, 108 A.L.R. 1352, where a manufacturer of garl ments had its factory in Virginia, but imported its cloth from other states and sold almost all of the finished products in other states. The Anti-Trust Act “prohibits any combination which essentially obstructs the free flow of commerce between the States, or restricts, in that regard, the liberty of a trader to engage in business; and this includes restraints of trade aimed at compelling third parties and strangers involuntarily. not to engage in the course of interstate trade except on conditions that the combination imposes.” Loewe v. Lawlor, 208 U.S. 274, 28 S.Ct. 301, 52 L.Ed. 488, 13 Ann.Cas. 815. It was further held that: “A combination of labor organizations and the members thereof, to compel a manufacturer whose goods are almost entirely sold in other States, to unionize his shops and on his refusal so to .do to boycott his goods and prevent their sale in States other than his own until such time as the resulting damage forces him to comply with their demands, is, under the conditions of this case, a combination in restraint of interstate trade or commerce within the meaning of the Anti-Trust Act of July 2, 1890 [15 U.S.C.A. §§ 1-7, 15 note], and the manufacturer may maintain an action for threefold damages under § 7 of that Act [15 U.S.C.A. § 15 note].” That was an action for damages, but the situation would call for injunctive relief in a case of irreparable injury, and inadequate remedy at law. The case of Apex Hosiery Company, a garment company similarly situated with respect to interstate commerce, is aptly in point. Apex Hosiery Co. v. Leader et al., 3 Cir., 90 F.2d 155. The bill sets out with particularity the acts of defendant union through its officers and members which have been committed or threatened in furtherance of the conspiracy charged. It cites a wide campaign of publicity through public meetings, publications and pamphlets charging that the Donnelly Company was in effect a sweat shop, enforcing wage scales far below those essential to proper standards of living, much lower than those existing generally in the industry, oppressive hours of work, denial of collective bargaining, and so-called “speed-up” methods injurious to health. These charges are branded as fraudulent. Certain it is that they have been shown to be wholly unfounded by the great weight of the evidence. The plaintiff companies are among the foremost in this industry in working conditions. Such is the testimony of hundreds of the present employees, and is shown by comparison with conditions existing in other garment shops in this industrial district. In furtherance of this campaign, the defendant Perlstein, regional director of the defendant union, on or about June 9, 1937, caused to be published a full-page statement announcing a drive to organize the workers in the Donnelly plant; that a large fund, approximating $100,000, had> been appropriated for that purpose; and that these workers would ultimately be forced to join the defendant union. Pursuant to this plan a number of women, agents of the union, were sent into several states to contact the Donnelly customers there, to urge them to cease their patronage, and in some cases threatening a secondary boycott and picketing if such customers failed to comply. In support of their contention that physical violence was contemplated, in addition to the other acts recited, plaintiffs produced evidence of the methods employed by this same union, its officers and agents, in Dallas, Tex., in St. Louis, and elsewhere; particularly in Kansas City. Acts of violence, including beatings, tearing of hair, removal of clothing, and the like, were pleaded and proved. In Kansas City, strikes against garment companies on Broadway were accompanied by such methods. In the spring of 1937, a strike was inaugurated against three garment companies located on different floors of the same building near Twenty-Sixth street and Grand avenue. It started with a “sit-down” in the hall and on the stairway to prevent entrance to the work rooms. This phase was subsequently discontinued only because of the resulting unsanitary conditions. Thereafter, a large number of so-called pickets, composed of striking employees and sympathizers from other industries, assembled in mass at the entrances of the building and sought, with a large measure of success, to prevent access and egress by employers and employees who desired to continue their work. In the course of these efforts the acts of violence charged were committed. Moving pictures and photographs were exhibited to the court and were more eloquent than the spoken testimony. Police were almost in constant attendance and strove to keep the mob under control, but with indifferent success. At last resistance was broken down, and the companies were compelled to contract with the defendant union. Throughout this strike, as in those on Broadway, the defendant Perlstein was in command. The defendant Wave Tobin was in charge of the pickets. The campaign against plaintiffs is organized by the same management, the same affiliation, and the same personnel. It is flatly asserted that the same methods will be employed, and plaintiffs and interveners are seriously threatened with the same acts of violence. The defendant Tobin insists violence is not contemplated, but her testimony in her deposition is significant; “Q. Who had charge of the strike activities in connection with the Gernes, Gordon, and Missouri strikes? A. I had charge of the picket line. “Q. Plow many pickets did you have at each plant? A. They varied. I don’t know. “Q. Was there any violence? A. Yes', there was some. “Q. Were you there pretty constantly? A. Yes, I was. “Q. Is there always violence in such strikes, or, rather, not always; is there usually violence in such strikes? A. We never intend that there should be violence. When you have two, or three, or four imndred girls out on the street, things will happen that you have no control over. “Q. What kind of things? A. Well, I mean trying to get in to work, girls trying to keep them out. They may lose their temper, either side.” This blandly ignores the obvious fact that the' mere physical act of preventing employees from entering upon their work is in itself an act of violence. The moving pictures disclosed Mrs. Tobin in constant attendance, as she says she was, while these violent occurrences were taking place, in charge of the pickets, and making no attempt, over a period of many days, to control these unlawful methods. She claims she could not control such a large body; but her testimony, as well as her conduct, implies approval of this physical interference with ingress to the plants. These local strikes to which reference has been made and this threatened action against plaintiffs were and are initiated and financed by the defendant union, its officers and representatives. United Mine Workers v. Coronado Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975, 27 A.L.R. 762. As heretofore stated, counsel for defendants announced that the real, if not the only, ground of defense relied upon was the contention that the Norris-LaGuardia Act deprives this court of jurisdiction. This contention is based entirely upon the definitions of terms and words contained in section 113, 29 U.S.C.A., section 13, of the act. The public policy of the United States declared in section 102, 29 U.S.C.A., section 2, of the act is that the individual worker shall have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment and that he shall be free from the interference, restraint, or coercion of employers of labor, or the'ir agents, in the designation of such representatives, or in self-organization, or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. In the course of the substance of this declaration these significant modifying words are inserted: “He (the worker) should be free to decline to associate with his fellows.” The general provisions of the act must be construed and interpreted in conformity with the public policy thus declared. It will be seen that, although in section 113 a “labor dispute” is defined-as including controversies in which the disputants may not stand in the proximate relation of employer and employee, nevertheless the relationship of employer and employee is of the essence of the purpose and policy declared. That purpose is to protect employees in their freedom of association and action in the designation of bargaining representatives, in negotiating the terms and conditions of their employment, and in their right to decline to make associations against their will. The specific employment in which the freedom of association and negotiation is guaranteed is the unit. Interference and coercion on the part of employers is prohibited; and, if the employee is to be assured of actual liberty of contract, and freedom of association, coercion from any source must like’wise be prohibited. The definitions of labor disputes embraced in section 113 of 29 U.S-C.A. must, therefore, be confined to cases which involve -and concern such exercise of freedom of action on the part of employees with which the declared public policy deals, otherwise a substantial provision -of that declaration must be ignored. The Circuit Court of Appeals of the Seventh Circuit has held that the term “‘labor dispute,’ as used in [this statute], comprehends disputes growing out of labor relations and implies the existence of relation of employer and employee.” United Electric Coal Companies v. Rice, 80 F.2d 1. In this case the real controversy was between two mine workers’ unions. Appellant had no dispute with its employees. The struggle was between the two unions over who should represent the employees. An injunction was granted, and certiorari was denied. In Newton et al. v. Laclede Steel Company, 80 F.2d 636, the same court adhered to the conclusion expressed in the Rice Case, and held that the extent to which an injunction may go in such cases depends upon the facts in each case. Later, in Lauf v. Shinner & Co., 82 F.2d 68, the same court reaffirmed its conclusion in the Rice Case, and held that acts and attempts to coerce an employer to compel employees to join a defendant union were unlawful under federal and state statutes, involved no labor dispute within the Norris-LaGuardia Act, and were properly enjoined. A number of District Court decisions are to the same effect; others to the contrary. In Levering & Garrigues Co. v. Morrin, 2 Cir., 71 F.2d 284, the Norris-LaGuardia Act was held to apply to the situation there presented. In this case also the Supreme Court denied certiorari. 293 U.S. 595, 55 S.Ct. 110, 79 L.Ed. 688. Judge Manton’s opinion was occupied largely with a discussion of the power of Congress to limit the jurisdiction of inferior federal courts, and the constitutional exercise of that power. The Seventh Circuit, in the Lauf Case, considered this and other cases upon which defendants herein especially rely, and did not feel justified in- following the conclusions there reached for the reasons stated; either that the facts were not closely analogous, or that proper consideration and heed had not been given to the public policy defined in the act. Counsel for defendants stress the case of Senn v. Tile Layers Protective Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229. The controlling consideration in that case is stated in the first paragraph of the syllabi: “The questions of what constitutes a ‘labor dispute’ within the meaning of Wisconsin Labor Code, § 103.62, and what acts done by a labor union are among those declared lawful by § 103.53, are questions of state law.” In the opinion Justice Brandéis emphasizes the rule that upon such questions the judgment of the highest court of the state is conclusive. It is repeatedly stated that the acts done and contemplated were peaceful, and without violence, threats, or intimidation directed against customers and employees. A secondary boycott was prohibited by the act. Certain methods of this nature, at first employed, had been discontinued, and the court treated an agreement of counsel on this point as disposing of the claim for relief on this ground. We do not find that this decision with the significant reservations contained in the opinion, aids the contention of defendants’ counsel. • There is here presented no bona fide dispute as to wages, hours, terms, and conditions of employment. Stripped of all extraneous matter, the sole actual demand is that the Donnelly Company shall unionize, (and thereby compel the unionization of its employees) as an affiliate of the C. I. O. which appears to have succeeded the A. F. of L. as the patron and supervisor of the defendant union. This is part of an avowed plan to compel all industries, irrespective of local conditions, to be placed on the same footing, thereby creating combinations and monopolies, resulting necessarily in higher cost of production and in restraint of trade. This was made evident at the hearing by statements of counsel for defendants, through the contract between the St. Louis Affiliated Industries and this garment union, and by proceedings incidental to the fixing of a garment code under the N. R. A. which were introduced in evidence by defendants at this hearing. This campaign contemplates the establishment of absolutely uniform hours and wages throughout the nation, regardless of differences in living and working conditions and the efficiency of labor in different sections. No law of the United States confers upon the defendant union the right, power, or authority to compel affiliation with a specific union against the will of employees. If appropriate at all as an economic measure, its propriety is addressed, not to private associations, but to the Congress, there to be announced in no uncertain terms. This involves no criticism of labor unions as such. They have long been recognized by the courts to give laborers opportunity to deal on equality with their employers. From this arose the theory of the strike. Employees united to exert influence upon their employer and to leave him in a body in order, by this inconvenience, to induce him to make better terms with them. They were withholding their labor of economic value to make him pay what they thought it was worth. Such activities, however, should not go beyond the use of lawful and peaceful propaganda to enlarge membership. American Steel Foundries v. Tri-City Central Trades Council et al., 257 U.S. 184, 209, 42 S.Ct. 72, 78, 66 L.Ed. 189, 27 A.L.R. 360. The employment of force and coercion is in direct conflict with the declaration of public policy in the Norris-LaGuardia Act, which guarantees to each individual worker freedom to decline to associate with his fellows. Refusal to accede to any unauthorized and unwarranted demand can in no sense be termed a “dispute.” In the instant case that demand is sought to be enforced by strong-arm physical methods. That the contemplated acts of defendants, charged and proved, are unlawful, as declared by federal courts, by the Supreme Court of Missouri, and generally, admits of no doubt, Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 38 S.Ct. 65, 62 L.Ed. 260, L.R.A.1918C, 497, Ann.Cas.1918B, 461; Duplex Co. v. Deering, 254 U.S. 443, 466, 41 S.Ct. 172, 176, 65 L.Ed. 349, 16 A.L.R. 196; American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 42 S.Ct. 72, 66 L.Ed. 189, 27 A.L.R. 360; Truax v. Corrigan, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed. 254, 27 A.L.R. 375; United Electric Coal Companies v. Rice, 7 Cir., 80 F.2d 1; Lauf v. Shinner & Co., 7 Cir., 82 F.2d 68; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468; Hughes v. Motion Picture Machine Operators, 282 Mo. 304, 221 S.W. 95; and where the injury threatened is present and real, and will become irreparable if relief be postponed, the protection of a court of equity is properly invoked. In their sworn bill plaintiffs have alleged that the unlawful acts charged have been threatened, that substantial and irreparable injury to their property will follow, and that they have no adequate remedy at law. It is obvious that the denial of relief, in any case, would inflict greater injury upon plaintiffs than its granting would inflict upon defendants; and it is pleaded and proved that, in the similar cases recited, the public officers of the city have been unable to furnish adequate protection. The hearing before this court was an extended one in which ffioth parties were permitted to introduce all desired material evidence and testimony, written or oral. The Supreme Court has commented adversely upon objections and contentions which are “based on strained and unnatural constructions of the words of the NorrisLaGuardia Act,” and which “conflict with its declared purpose, section 2 (29 U.S.C.A. § 102), that the employee ‘shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.’ ” Virginian Railway Co. v. System Federation, 300 U.S. 515, 563, 57 S.Ct. 592, 607, 81 L.Ed. 789. There is here presented no division of opinion among employees upon which could be based even a plausible or colorable right on the part of defendants to act as bargaining representatives. But more than that, no such claim is in fact • asserted. The frank objective is the unionization of plaintiffs as affiliates of the defendant union, thereby automatically unionizing the employees, in order that the control of this defendant union may be nationwide and all-embracing, and this in the face of the declared public policy invoked. It is unthinkable that the rejection of such a demand, as against the will of these employees, and in conflict with obligations freely entered into, can be tortured into the conception of a “dispute.” Interveners have organized under the National Labor Relations Act and invoke the protection that must flow from its provisions. For the months intervening since their organization, no complaint has been filed with the National Labor Relations Board, and no challenge to that organization has been made. Such action was open to defendants, if desired, but has not been availed of, presumably because no tenable ground was found to exist. They have elected to coerce plaintiffs to join their association by the employment of methods denounced by all courts, by the terms of the Norris-LaGuardia Act itself, and in conflict with the declaration of public policy therein contained. By strained and unnatural constructions of the definitions contained in that act, thus made to conflict with its declared aim and purpose, they seek to deprive this court of jurisdiction to grant the relief prayed. The Norris-LaGuardia Act has no application to the controversy here presented. In such case, jurisdiction being clear, courts of equity will grant relief' in accordance with their inherent powers and established procedure. A delicate question is presented when the jurisdiction of the court is challenged upon the ground here urged. However, when that jurisdiction is apparent, the duty remains to grant relief, if demanded and justified, under the established rules and usages of courts of equity. The conclusion we have reached renders it unnecessary to resolve the constitutional question presented. In general, we may say that this statute, limiting the power of inferior federal courts to grant injunctions in cases of labor disputes, is a valid exercise of the power of Congress. ' United Electric Coal Companies v. Rice et , al., 7 Cir., 80 F.2d 1. This case, however; does not involve such a dispute. It follows that the temporary injunction prayed will be granted and findings of fact will be filed in harmony herewith.
REEVES, District Judge (concurring). I concur in the able opinion of Judge VAN VALKENBURGH, but, in doing so, I desire to make the following observations : No more unusual action has ever perplexed the mind of a judge. In this case, an important industry has filed its bill, wherein it seeks the protection of the court against the alleged unlawful aggressions and transgressions of the defendants. None of the defendants sustain any business relationship whatever to the plaintiffs. All of the employees of plaintiffs’ manufacturing establishment in their capacity as an organized labor union have joined by intervention with the plaintiffs. They, too, ask the protection of the court against what they deem to be wrongful acts and menacing threats of the defendants. In limine, the defendants, hardly disputing the averments of the several bills, challenge the jurisdiction of the court to grant the relief sought. If the averments of the original bill of the plaintiffs and those of the intervening petition of the organized employees are true (and the testimony at the hearing tends to support the averments),’ then there must be some unusual limitations upon the court’s power to prevent the granting of relief- to which the plaintiffs and interveners under ordinary circumstances would be entitled. It is the contention of the defendants that á labor dispute has arisen between them on the one side and the plaintiffs and interveners on the other, and, that perforce certain congressional enactments, the jurisdiction of the national court has been so limited and impaired that, upon the facts in the case, injunctive relief cannot be granted. The plaintiffs, Donnelly Garment Company, a corporation, and Donnelly Garment Sales Company, a corporation, are engaged in the manufacture and sale of ladies’ garments and wearing apparel. The factory is located in Kansas City, Mo., ’ and the sales of its product are carried on throughout the United States. The Donnelly Garment Workers’ Union is an unincorporated association, and is composed of all of the employees of Donnelly Garment Company. In round figures there are approximately 1,300 persons employed in said industry, all of whom are members of the plant union. Such union is organized, according to the averments of the intervening bill, in conformity with the provisions of the several national labor acts, and particularly under section 157, title 29 U.S.C.A., relating to the general subject of Labor. This section provides: “Employees shall have the right to self-organization * * * to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for ihe purpose of collective bargaining or other mutual aid or protection.” The defendants are either interested in, or members of, a labor union organization known as International Ladies’ Garment Workers’ Union. These persons and such organization are, or have been, engaged in the same industry, trade, craft, or occupation. They are endeavoring to bring into their organization all of the employees of factories, such as that of plaintiff Donnelly Garment Company, throughout the United States. The object of such movement, as stated by them, is to raise the standards of wages and working conditions in all garment factories of the country. As part of such endeavor, they insist upon a right to bring the employees of Donnelly Garment Company into their union. To effect their purpose, it is averred, they have employed coercive methods and hurtful means. They have endeavored to effect a boycott against the products of plaintiff and have misrepresented the facts concerning wages and working conditions in plaintiff’s garment factory. Moreover, the conduct and utterances of the defendants, as it is further averred, carry a menace and threat of violence and harm to the employees of the garment company, the interveners in this action. Other facts, as they’may become pertinent, will be stated in the course of this memorandum opinion. 1. The evidence at the hearing tends to support the averments of the original bill, as well as those of the intervening petition, to the effect that the defendants were employing unlawful means to effectuate their purpose. However, it is stoutly maintained by defendants that the plaintiffs, in asking for injunctive relief, have failed to follow the procedure prescribed in what is known as the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq., approved March 23, 1932. By section 107, title 29 U.S.C.A., such act forbids the issuance of an injunction “in any case involving or growing out of a labor dispute, * * * except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a complaint.” Admittedly, the procedure outlined by this act was not followed. A question naturally arises, therefore, as to whether or not there is in fact a labor dispute so as to make mandatory the application of this statute. 2. The Norris-LaGuardia Act, while omitting a definition as to what constitutes a labor dispute, nevertheless defined or designated the classes of persons who might be parties to a labor dispute. This definition was all comprehensive and did not limit such persons to those who sustain an employment relationship to the employer. The statute also defines the subject-matter of labor dispute as being questions of wages and working conditions and labor representations or bargaining agencies. The failure of Congress to define what constitutes a bona fide labor dispute has left the question open for judicial determination. An accepted definition is as follows: “A fact is properly said to be in dispute when it is alleged by one party and denied by the other, and by both with some show of reason.” 1 Bouv. Law Diet. Rawle’s Third Rev., p. 888. The Norris-LaGuardia Act was supplemented, if not modified, by the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., approved July 5, 1935. The latter act contained a declaration of public policy practically the same as the Norris-LaGuardia Act. This public policy, among other things, asserted the right of the individual laborer to enjoy “freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 102, title 29 U.S.C. A. The magna charta of labor is contained in section 157, title 29 U.S.C.A., and is a part of the National Labor Relations Act. It provides that: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.” This section enables the employees of any manufacturing establishment to exercise a choice as to whether they shall form their own organization or join and assist other organizations outside the plant. It was a right vouchsafed to employees, and in the exercise of such right such employees were offered protection against coercion or interference by employers. According to the testimony in this case, all of the employees of Donnelly Garment Company formed an organization pursuant to a right vouchsafed to them by the above statute. The fact that it ,may have been more or less informal, and'that its charter and by-laws do not contain the details sometimes found in such organizations, does not militate against its validity or its good faith. The simplicity of the organization is not condemnatory. Moreover, the Congress in the National Labor Relations Act established a tribunal known as the National Labor Relations Board, whose function it was and is, among others, to adjust all questions arising on the good faith of plant labor organizations. By section 159, title 29 U.S.C.A. it is provided that: “(a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate. for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining ' in respect to rates of pay, wages, hours of employment, or other conditions of employment.” By paragraph (b) of said section, it is significantly provided: “The Board shall decide in each case whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this'chapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.” And then, by paragraph (c) of the same section: “Whenever a question affecting commerce arises concerning the representation of employees, the Board may investigate such controversy and certify to the parties, in writing, the name or names of the representatives that have been designated or selected. In any such investigation, the Board shall provide for an appropriate hearing upon due notice,” etc. It must be obvious, upon a casual reading of. the several acts involved, that the question of the bona fides of a plant labor organization is committed to the National Labor Relations Board. Any one challenging or disputing its validity must resort to the Board. Upon failure to do so, the employer, the courts, and every one else, in considering the acts of such organization, must accept it as validly organized and acting in good faith. All the presumptions of the law require this. Assuming therefore, as must be done, that the Donnelly Garment Workers’ Union is a bona fide labor organization under the. statute, then the rights and the freedom vouchsafed to it by statute must repel from the plaintiff company any rights whatever that may have previously existed in or for the defendants. The- bills averred, and the testimony showed, that the labor organization within the industry had contracted with the employer concerning wages and working conditions and that this contract was in force at the time the bill was filed. This being true, both the employer and the employees were standing firmly on statutory ground. The employer could not forbid a labor organization within the industry, ’nor could the employer coerce such organization. According to the evidence each one had observed, complied with, and was obedient to statutory mandates and prohibitions. Upon these undisputed facts the defendants could not properly assert or rightfully maintain a dispute with the plaintiffs or their organized employees for the reason that “one has no constitutional right to a ‘remedy’ against the lawful conduct of another.” Senn v. Tile Layers Protective Union, 301 U.S. 468, 57 S.Ct. 857, 864, 81 L.Ed. 1229. This reasoning does not run contrary to the comprehensive provisions of the congressional acts which most liberally admit into the domain of lawful dispute persons not employees. The reason for this liberal congressional attitude may be found in the case of American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 42 S.Ct. 72, 78, 66 L.Ed. 189, 27 A.L.R. 360, where the court said that organized labor would not effectively reach its desired ends unless the combination extended “beyond one shop.” The reason for this rule, as stated by the court, was, “because in the competition between employers they are bound to be affected by the standard of wages of their trade in the neighborhood. Therefore, they may use all lawful propaganda to enlarge their membership and especially among those whose labor at lower wages will injure their whole guild. It is impossible to hold such persuasion and propaganda without more, to be without excuse and malicious.” In the absence of a factory labor organization, the defendants, though not sustaining the relationship of employees to plaintiff, nevertheless would have had the right to insist upon projecting their union into the plant of the plaintiff. This right, however, was limited and liable to be counteracted and even destroyed, when the Congress provided for self-organization among employees of individual factories. When so organized, the reason for the right in defendants no longer existed. It was the view of Congress that individual laborers were capable of self-government and that a local organization, through its representation, could obtain the same favorable results toward labor as could an outside and even larger organization. Tlie factory organization was designed to consummate all the purposes which the defendants may at one time have had a right to undertake to effectuate. Under these circumstances, there being no labor dispute (in fact there could be none), the acts and the conduct of the defendants'were unlawful, and both the plaintiffs, as well as the interveners, were entitled to the protection of the courts against the infringement of their rights. 3. Another question obtrudes itself: A dispute as heretofore defined means the assertion of a fact by one party and denial by the other, when both the assertion and the denial have a show of reason. The averments of the bill supported by evidence were to the effect that the so-called labor dispute in this case was not in good faith. All of the testimony shows that the interest of the defendants was merely in bringing the employees of plaintiff’s company into the International Ladies’ Garment Workers’ Union. The evidence showed that the original demand made upon the plaintiff was solely for that purpose, and that such demand was not predicated upon any existing fact. It was contended by the defendants that several years previously certain employees were discharged because of union activities. This was disproved, but, even if true, it was at a time when the plaintiff had aright to discharge employees for such activities. New conditions and new statutes excluded the act, even if it occurred, as a basis for dispute, discussion, or argument. If the dispute was predicated on fraud, then under the express provisions of both the Norris-LaGuardia Act and the National Labor Relations Act, it could not be a basis for limiting the jurisdiction of the court. By section 104, title 29 U.S.C.A., the injunctive process is limited only in those cases where the acts are deemed “not involving fraud or violence,” or, “without fraud or violence.” As stated by able counsel in argument, a superstructure upon a foundation of fraud cannot stand. 4. Another matter that calls for brief discussion is the question whether plaintiff manufactures silk or cotton garments. The evidence was overwhelming that it is the latter. Moreover, it appeared that wages and working conditions were of a higher standard in plaintiff’s factory than in those factories engaged in kindred operations where the defendant union was the bargaining agency. In view of the above, a temporary injunction should be granted.
OTIS, District Judge (dissenting). I regret exceedingly my inability to concur with my associates in the disposition of this case. The great respect I entertain for them ordinarily would lead me to yield my views to theirs. Added to that reason for concurrence is the prompting which proceeds from a disinclination to make effective a statute originating in an unwarranted distrust of the judges of the United States., The Norris-LaGuardia Act is only another of a s.eries of acts enacted and threatened to be enacted through which runs the assumption that judges, although appointed by the President by and with the advice and consent of the Senate, either at the time of their appointment or immediately thereafter (as the result of a strange metamorphosis that then comes over them), really are not possessed of either impartiality or integrity. Perhaps the humiliation which this assumption would inflict is a little lessened by the realization that such a statute is enacted not so much to enable men to escape the judges as to escape the law. There is an unintended compliment in legislation which recognizes that the judges will stand firm in obedience to their oaths to support the Constitution and the laws, and that the thing to do, if the law is to be avoided, is to avoid the judges. I should like to concur, but I cannot do that conscientiously when it is so clear to me that Congress has prohibited an injunction in a case involving or growing out of a labor dispute except upon conditions not complied with here, that what we have here does involve or grow out of a labor dispute, and that Congress has the constitutional power to enact the legislation which it has enacted. Is This a Labor Dispute? 1. Laying aside the question as to whether the law as embodied in the Norris-LaGuardia Act in some way was modified by the later National Labor Relations .Act, and the further question as to the constitutionality of the Norris-LaGuardia Act, we come at once to what undoubtedly is the prime question in this case. Does the Norris-LaGuardia Act prohibit just such an injunction as is sought here unless there is compliance with the requirements of that act? The_act provides expressly as follows: Section 1, title 29 U.S.C. § 101, 29 U.S. C.A. § 101. “No court of the United States * * * shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this chapter.” Section 7, title 29 U.S.C. § 107, 29 U.S. C.A. § 107. “No court of the United States shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, as herein defined, except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after findings of fact by the court, to the effect— “(a) That unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat or unlawful act excepting against the person or persons, association, or organization making the threats or committing the unlawful act or actually authorizing or ratifying the same after actual knowledge thereof; “(b) That substantial and irreparable injury to complainant’s property will follow; “(c) That as to each item of relief granted greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief; “(d) That complainant has no adequate remedy at law; and “(e) That the public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection. “Such hearing shall be held after due and personal notice thereof has been given, in such manner as the court shall direct, to all known persons against whom relief is sought, and also to the chief of those public officials of the county and city within which the unlawful acts have been threatened or committed charged with the duty to protect complainant’s property.” Section 13, title 29 U.S.C. § 113, 29 U. S.C.A. § 113. “When used in this chapter, and for the purposes of this chapter— “(a) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade,- craft or occupa: tion; or have direct or indirect interests therein; or who are employees of the same employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is (1)' between one or more employers or associations of employers and one or more employees or associations of employees; (2) between one or more employers or associations of employers and' one or more employers or associations of employers; or (3) between one or liiore employees or associations of employees and one or more employees or associations of employees; or when the case involves any conflicting or competing interests in a ‘labor dispute’ (as hereinafter defined) of ‘persons participating or interested’ therein (as hereinafter defined). “(b) A person or association shall be held to be a person participating or interested in a labor dispute if relief is sought against him or it, and if he or it is engaged in the same industry, trade, craft, or occupation in which such dispute occurs, or has a direct or indirect interest therein, or is a member, officer, or agent of any association composed in whole or in part of employers or employees engaged' in such industry, trade, craft, or occupation. “(c) The term ‘labor dispute’ includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.” Now the principal parties to this controversy are: (1) The Donnelly Garment Company (one of the plaintiffs, hereinafter referred to as the plaintiff) ; (2) the Donnelly Garment Workers’ Union (an intervener) ; and (3) the International Ladies’ Garment Workers’ Union (one of the defendants, hereinafter referred to as the defendant). The controversy is described in plaintiff’s amended petition in the following words: “ * * * That the defendants * * * have engaged in and are now engaged in an attempt to disrupt said Donnelly Garment Workers’ Union and to cause it and its members to break their * * * contract with plaintiff companies * * * ; that they have sought and are seeking to force said employees to join said defendant union and to compel the plaintiffs to force them to join said defendant union. * * * “ * * * For many years defendants * * * have been and are now engaged in a general combination and conspiracy to force, against their will, all persons, firms or corporations engaged in the manufacture and sale of ladies’ garments, * * * including plaintiffs, * * * to organize their employees into an organization to be part and parcel of the defendant union, with the intent thereby to control the employment of labor in and the operation of all said businesses. * * * ” Whatever else the evidence may support certainly it supports these allegations. Here then is a controversy in which the International seeks to unionize under its banner plaintiff’s employees and thereafter to represent them, and in which it is opposed by plaintiff and intervener. The petition charges and the evidence disclosed that the International instituted and carried on controversies like to its controversy with plaintiff with three other manufacturers in Kansas City engaged in the same line of business as plaintiff. They were the Missouri Garment Company, the Gernes Garment Company, the Gordon Brothers Manufacturing Company. Plaintiff and intervener presented these controversies to the court in great detail in pleadings and evidence, most vividly presented them so that the court could see the true nature of the controversy between the International and plaintiff. It was proved that in the case of each of the last-mentioned companies the International demanded that the employer cause or permit employees to unionize under the International and then negotiate and contract with the International. In each case the employer refused. Against each of these employers a campaign was then begun, of slander and intimidation. Pickets were stationed outside each of the plants in question. They marched up and down carrying placards asserting the employer was unfair. Loyal employees were urged not to work by the pickets and by other members of the International and of other unions. The employers called upon the authorities for aid. Moving pictures were exhibited in court. Many scenes were shown of crowds of workmen belonging to the International and their supporters from other unions before the entrances of factories, oí pickets marching, of police lines formed across sidewalks before factory entrances, of employees arriving by automobiles and endeavoring to pass through the police lines into factories, of struggles between these two opposing forces with police gently ‘iifterfering. It was proved to the court by plaintiff that in these controversies the International won. In each case the employer at last capitulated. Plis employees were organized under the International. The employer entered into a contract with the International. Then peace was restored and work began again. These controversies were presented to the court as examples in the eye, if we may use the phrase of the old writers, of what was and is threatened against plaintiff. Plaintiff and intervener say that such a controversy is not a labor dispute within the meaning of the law. Let us then examine the law that we may know what the law declares a “labor dispute” to be, that then we may test the controversy here by that definition. Background of the Act The Norris-LaGuardia Act referred to is one of those which best can be understood in the light of its background. Prominent in the background is the Clayton Act, 38 Stat. 730 et seq., section 20 of which, 29 U.S.C’.A. § 52, provides that “No restraining order or injunction shall be granted by any court of the United States, or a judge or the judges thereof, in any case between an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment, involving, or growing out of, a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property, or to a property right, of the party making the application, for which injury there is no adequate remedy at law, and' such property or property right must be described with particularity in the application, which must be in writing and sworn to by the applicant or by his agent or attorney.” Here, in the words, “involving, or growing out of, a dispute concerning terms or conditions of employment,” was essentially the same language as is in the Norris-LaGuardia Act. That language was construed in Duplex Printing Press Co. v. Deering et al., 254 U.S. 443, 445, 41 S.Ct. 172, 65 L.Ed. 349, 16 A.L.R. 196, the judgment in which case reversed that of the Circuit Court of Appeals for the Second Circuit, 252 F. 722, which affirmed that of the District Court. 247 F. 192. It is desirable that we should have in mind' the principal facts of that case. The facts in the Duplex Case are summarized by the Supreme Court. 254 U.S. 443, loc.cit. 462, 41 S.Ct. 172, 175, 65 L.Ed. 349, 16 A.L.R. 196. The International Association of Machinists, although not a party, combined with others, including the parties,. to compel the Duplex Company to unionize its factory. The end aimed at was sought to be accomplished “by means of interfering with and restraining [the company’s] interstate trade.” None of the defendants ever was an employee of the company, nor did the company have or had it ever had relations with the International Association or any of its locals. The injunction prayed' was denied by the District Court and by the Circuit Court of Appeals. Two of the three judges of the Circuit Court of Appeals (Judges Hough and Learned Hand), as one of the grounds for their conclusion that an injunction should not go, were of the opinion that the case was one “between employers and employees” within the meaning of section 20 of the Clayton Act, 29 U.S.C.A. § 52. Judge Hough said, 252 F. 722, loc.cit. 748: “The words ‘employers and employés’ as ordinarily used, and used in this statute, * * * must refer to the business class or clan to which the parties litigant respectively belong.” Judge Hand said: “I do not think that the section applies only when the employer is plaintiff and his present or former employes are the defendants.” 252 F. 722, loc.cit. 748. The dissenter (Rogers, Circuit Judge) took the position that the statute referred to persons in the immediate and proximate relationship of employer and employee. 252 F. 722, loc.cit. 744. In the Supreme Court the position of Judge Rogers was approved by the majority. The court said: “Full and fair effect will be given to every word [of section 20] if the exceptional privilege be confined — ¿sis the natural meaning of the words confines it — to those who are proximately and substantially concerned as parties to an actual dispute respecting the terms or conditions of their own employment, past, present, or prospective.” 254 U.S. 443, 471, 41 S.Ct. 172, 178, 65 L.Ed. 349, 16 A.L.R. 196. Three of the justices dissented in an opinion written by Mr. Justice Brandéis. The minority said: ‘‘Congress did not restrict the provision to employers and' workingmen in their employ. By including ‘employers and employees’ and ‘persons employed and persons seeking employment’ it showed that it was not aiming merely at a legal relationship between a specific employer and his employees.” 254 U.S. 443, 487, 41 S.Ct. 172, 184, 65 L.Ed. 349, 16 A. L.R. 196. Reports of Committees This history gives clear significance to the report of the House Committee on the Judiciary submitting the Norris-LaGuardia Act. Speaking of section 13 of the act, 29 U.S.C.A. § 113, containing definitions, including a definition of “labor disputes,” the report said: “These definitions include * * * a definition of a person participating in a labor dispute which is broad enough to include others than the immediate disputants and thereby corrects the law as announced in the case of Duplex Printing Press Co. v. Deering wherein the Supreme Court reversed the Circuit Court of Appeals and held that the inhibition of section 20 of the Clayton Act [29 U.S.C.A. § 52], only related to those occupying the position of employer or employee and no others.” It gives significance also to the report of the Senate Committee on the Judiciary. It is said in the part of that report devoted to s