The opinion of the court was delivered by: BARD
Plaintiff brought this action to enjoin defendants from continuing an alleged conspiracy violating Section 1 of the Sherman Anti-Trust Act
and to obtain a declaratory judgment defining its rights under Section 274d of the Judicial Code as amended, 28 U.S.C.A. § 400. Plaintiff's petition for a restraining order having been denied, it moved for issuance of a temporary injunction. After hearing of testimony and arguments and submission of briefs, the motion for a preliminary injunction is before the Court for determination.
I make the following special
1. Plaintiff, Philadelphia Record Company, is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with its principal office and place of business at Braod and Wood Streets, Philadelphia, Pennsylvania. It is engaged in the business of printing, publishing and distributing a daily and Sunday morning newspaper and, as an adjunct of this business, it has operated a photo-engraving department during the daytime and night-time since 1929.
2. Defendants, Artcraft Photo-Engravers Co., Inc.; Beck Engraving Co., Inc.; Century Engraving Co., Inc.; Chestnut Street Engraving Co.; Enterprise Engraving Co., Inc.; Gatchell & Manning, Inc.; Graphic Arts, Inc.; Keystone Photo-Engraving Co.; Lang Co., Inc.; Lincoln Photo-Engraving Co.; Lotz Photo-Engraving Co.; Philadephia-Weeks Engraving Co.; Photo-Chromotype Engraving Co., Inc.; Phototype Engraving Co., Inc.; Royal Jones Photo-Engraving Co.; William P. Groves, Jr., Stephen A. Murphy, Joseph L. Johnston and Edward A. McGinnis, copartners trading as Aldine Photo-Engraving Co.; Leon J. Eckell and Karl Zartaria, copartners trading as Allied Photo-Engraving Company; and William J. Henderson, Morris S. Lieb, Howard D. Mathues, and Lewis Pollock, copartners trading as Peerless Engraving Company, are corporations or partnerships separately engaged in the business of photo-engraving in Philadelphia, Pa., in direct and active business competition with plaintiff. Hereinafter these defendants will be referred to as defendant competitors.
3. Defendant, Manufacturing Photo-Engravers Association of Philadelphia, is an unincorporated association whose membership is comprised entirely of the defendant competitors named in paragraph 2. Hereinafter this defendant will be referred to as the defendant association. Plaintiff is not a member of this association.
4. Defendant, Philadelphia Photo-Engravers Union No. 7, I.P.E.U. of N.A., is an unincorporated labor organization affiliated with the American Federation of Labor with offices in Philadelphia, Pa. Its membership is composed of photo-engraver craftsmen and apprentices in and about the City of Philadelphia, including all of the photo-engravers employed by plaintiff. Hereinafter this defendant will be referred to as defendant union.
6. Plaintiff produces about $ 100,000 of photo-engraving products yearly which are sold in intrastate and interstate commerce to customers in Pennsylvania, New Jersey, Delaware, Maryland and Virginia.
7. Plaintiff employs twenty-seven photo-engravers, five in the daytime and twenty-two during the night. The day employees work, almost exclusively, on commercial work. The night photo-engravers produce newspaper work and, when they are not engaged in the newspaper work, they do commercial work. Plaintiff requires a minimum of twenty-two photo-engravers on the night shift in order to meet its newspaper deadline on pictures and advertising cuts.
8. Defendant union and plaintiff have a contract known as a newspaper contract, which applies to photo-engraver employees doing newspaper work for the plaintiff.
9. Defendant union and plaintiff have a contract covering the commercial work done by plaintiffS photo-engravers during the day. There is no contract covering night commercial work.
10. For many years defendant competitors, the defendant association and defendant union have had a written contract covering their general relationship. On February 2, 1937, these parties executed a supplemental agreement providing, inter alia, 'that future night forces shall be prohibited unless by consent of both parties to the agreement.' (Italics supplied.) These agreements were renewed periodically, the latest renewed supplemental agreement having been executed on March 17, 1944. This last supplemental agreement expired February 28, 1945.
11. Peerless Engraving Company, one of the defendant competitors and a member of defendant association is permitted to engage in night commercial work with the approval of the parties to the supplemental agreement. In addition to commercial work, Peerless does photo-engraving at night for the Daily News, a Philadelphia newspaper.
12. For many years the International Photo-Engravers' Union of North America has pursued a policy of discouraging commercial work in newspaper plants.
13. During 1944 plaintiff asked the union to negotiate a night commercial agreement, but the union would not consent to negotiate due to the provision in the supplemental contract between the union and the association. The union did offer, upon advice of counsel, an agreement which would bind plaintiff to the terms of the union-association contract and would ...