This comes within at least some of the definitions of the "secondary boycott."
Sec. 4(e) takes away the power to enjoin "giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence." This language is very broad and contains no restriction as to where the "advertising" and "patrolling" may be carried on except that it must not involve fraud or violence. Neither of these elements appears in this part of the present case.
In view of the clear purpose of the Act to take the Federal courts out of the business of granting injunctions in labor disputes, except where violence and fraud are present -- a purpose which stands out in almost every paragraph -- I am of the opinion that Sec. 4(e) prohibits the granting of an injunction against the conduct of the defendants just referred to.
Even if it did not, the result would be the same. If the conduct sought to be restrained is not expressly withdrawn from the Court's jurisdiction, the question remains whether or not it is illegal. That would depend upon the law of Pennsylvania. The Pennsylvania Labor Anti-Injunction Act of 1937, 43 P.S.Pa. § 206a et seq., prohibits the granting of injunctions against picketing "any public street or place where any person or persons may lawfully be," and thus, by removing the power of the courts to act, recognizes that picketing any person's place of business is legal, provided, of course, it has some relation to the ends which the defendant is seeking to obtain in a labor dispute.
This brings us to what may be called the "Sherman Act phase" of the case. Undoubtedly the defendants' acts have resulted in the "reduction in the supply of an article to be shipped in interstate commerce." It was formerly the law that the mere fact that a strike or other measures by a labor combination resulted in such reduction was not proof of an intent to violate the Sherman Act, 15 U.S.C.A. §§ 1-7, 15 note. Coronado Coal Co. v. United Mine Workers, 268 U.S. 295, 45 S. Ct. 551, 69 L. Ed. 963. And this was true despite the fact that the supply was reduced by illegal and tortious acts stopping production. The Apex opinion [ 90 F.2d 159] (with the statement, "We are concerned with what the law is today") held that the Supreme Court's decision in the Jones & Laughlin Case, National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893, 108 A.L.R. 1352, impliedly overruled this and other decisions.
In view of the fact that the Supreme Court of the United States has not yet spoken upon the important question of the effect of the Jones & Laughlin case upon the earlier Sherman Act decisions, I think that it would be unwise to extend the scope of the Apex decision beyond what its facts strictly require.
What is actually ruled in that case is that the total stoppage of production, in a plant engaged in interstate commerce, by illegal seizure of the plant itself carries with it the conclusive presumption that the guilty parties intended to restrain interstate commerce. I do not think it was meant to rule in the Apex case that the reduction of the supply of an article in interstate commerce carries such presumption in every case, or specifically, where the purpose and methods of the defendants are lawful. The decision leaves room for a fact finding in cases where the restraint arises from conduct like that in this case, and I make the finding that it was not the intent of these defendants to restrain interstate commerce. And if, under the Apex decision, the legality or illegality of the purpose of the combination is a matter of importance, that decision itself supplies the answer that the closed shop is a legal objective. The Court said, "It may be that the ultimate intent of the conspirators in this case was to force the plaintiff to sign an agreement for a closed shop. This would be perfectly all right if the defendants had used lawful means to bring it about * * *." The conclusion is that the fact that the result of these defendants' acts has been to reduce the supply of the plaintiff's products moving in interstate commerce, does not entitle the plaintiff to an injunction on the ground of a violation of the Sherman Anti-Trust Act.
I have considered the plaintiff's argument for an injunction based on the alleged breach of a contract on the part of the unions not to press for a closed shop in consideration of a wage increase, but I am of the opinion that that clearly does not present any ground for the issuance of an injunction.
The prayer for a temporary injunction is refused with leave to renew it by motion as to the defendants Devlin, Arbucus and Barron unless these persons cease immediately to participate in any of the activities of the defendants connected with this labor dispute. If it appears to the Court that they are still taking part in any of such activities, the prayer for a temporary injunction may be renewed as to them by motion.
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