the plaintiff had not shown that the strike had had any substantial commercial effect upon either the prices at which the goods were sold or the supply upon the market, and that they had not prejudiced consumers in any other way.' (Italics in the quotation supplied.) See also International Ladies' Garment Workers' Union v. Donnelly Garment Co., 8 Cir., 119 F.2d 892.
In concluding the opinion of the Court in the Apex case, Mr. Justice, now Chief Justice, Stone states, 310 U.S.at page 512, 60 S. Ct.at page 1002, 84 L. Ed. 1311, 128 A.L.R. 1044:
'These cases show that activities of labor organizations not immunized by the Clayton Act are not necessarily violations of the Sherman Act. Underlying and implicit in all of them is recognition that the Sherman Act was not enacted to police interstate transportation, or to afford a remedy for wrongs, which are actionable under state law, and result from combinations and conspiracies which fall short, both in their purpose and effect, of any form of market control of a commodity, such as to 'monopolize the supply, control its price, or discriminate between its would-be purchasers.' These elements of restraint of trade, found to be present in the Second Coronado case and alone to distinguish it from the First Coronado case and the Leather Workers case, are wholly lacking here. We do not hold that conspiracies to obstruct or prevent transportation in interstate commerce can in no circumstances be violations of the Sherman Act. Apart from the Clayton Act it makes no distinction between labor and non-labor cases. We only hold now, as we have previously held both in labor and non-labor cases, that such restraints are not within the Sherman Act unless they are intended to have, or in fact have, the effects on the market on which the Court relied to establish violation in the Second Coronado case. Unless the principle of these cases is now to be discarded, an impartial application of the Sherman Act to the activities of industry and labor alike would seem to require that the Act be held inapplicable to the activities of respondents which had an even less substantial effect on the competitive conditions in the industry than the combination of producers upheld in the Appalachian Coals case and in others on which it relied.'
The law, as stated in the Apex case with regard to the tests to be applied in determining whether acts affecting interstate commerce come within the purview of the Sherman Act, is controlling here. As I have previously stated, the evidence shows a combination between the union and the association to end further commercial photo-engraving by plaintiff at night. Plaintiff presented no direct evidence of any intent by defendants to restrain interstate commerce. However, the effect of defendants' acts, coupled with the inability of plaintiff to expand its day force, is to reduce the production of goods which, if produced, would be shipped in interstate commerce.
Without more, plaintiff has failed to prove a violation of the Sherman Act under the doctrine of the Apex case since the mere reduction in the production of goods is only an indirect obstruction of interstate commerce. United Leather Workers, etc. v. Herkert & Meisel Trunk Co., supra. The evidence adduced as to the present application of the supplemental agreement does not show such restraint upon competition which has 'or is intended to have an effect upon prices in the market or otherwise to deprive purchasers or consumers of the advantages which they derive from free competition * * * .' 310 U.S. 469, 501, 60 S. Ct. 982, 84 L. Ed. 1311, 128 A.L.R. 1044. There is no evidence that the association, in concert with the union, is attempting to fix or raise prices. Nor is there any evidence that cessation of night production of photo-engravings by the plaintiff has 'had any substantial commercial effect upon either the prices at which the goods (are) sold or the supply upon the market.' United States v. Gold, 2 Cir., 115 F.2d 236, 237. There is a total lack of evidence showing that the joint action of the union and the association prejudiced the consumers in any way
This being so, the evidence does not show an interference with interstate commerce in violation of the Sherman Act within the rules set forth in the Apex case. Plaintiff's motion for a temporary injunction must therefore be denied.
Under principles of fair play, I would be inclined to grant the injunction requested. It seems to me that the union is discriminating against the Record when it permits Peerless Engraving Company, a member of the association, to engage in night commercial work in conjunction with the photo-engraving it does for another newspaper, but refuses even to attempt to negotiate a similar contract with the Record. It is true that the union points to the long standing opposition by its parent organization to commercial work by newspapers. But this has little force and is unconvincing in view of the fact that the local union permits plaintiff to do commercial photo-engraving during the day.
Plaintiff seeks nothing more than what the union and the association have granted to Peerless.
It already pays the standard hourly rates for night commercial work, except for the 'double-time' and 'stagger-shift' provisions found in the Union-Peerless agreement, and would like the union to attempt to negotiate a contract with mutually satisfactory terms. It cannot be denied that plaintiff appears to have common sense reasons for complaint even if it has no legal reasons entitling it to relief from this Court. It seeks to engage in a lawful business in a lawful and legitimate way. Under present circumstances, it is practically prohibited from so doing by defendants' acts. However, the law will not compel the union to do business in a way not of its choice, so long as its choice is lawful, merely to permit plaintiff to do business in the manner it chooses. Plaintiff may be injured and be the victim of discrimination but, under the evidence presented, it has no remedy in this Court under the Sherman Act
The petition for a preliminary injunction is denied.
Conclusions of Law.
1. This court has jurisdiction to hear this action under the provisions of Section 24(8) of the Judicial Code.
2. This court has jurisdiction over the defendants.
3. A combination and agreement exists between defendant union, defendant association, and defendant competitors (1) to enforce the supplementary agreement between defendant union and defendant association, which restricts future night commercial photo-engraving in Philadelphia without the consent of both parties, against the plaintiff, and (2) to compel the plaintiff to cease production of commercial photo-engraving products at night.
4. Plaintiff has not sustained the burden of proving that the purpose or actual or probably result of this combination and agreement is an unlawful restraint of interstate commerce within the meaning of the Sherman Anti-Trust Act.
5. Plaintiff's motion for a preliminary injunction is denied.