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Duplex Printing vs. Deering [1921]

 

Pitney, J.This was a suit in equity brought appellant in the District Court for the Southern District of New York for an intion to restrain a course of conduct carton by defendants in that district . . . in maintaining a boycott against the products complainant's factory, in furtherance conspiracy to injure and destroy its will, trade, and business,— especially to let and destroy its interstate trade.... The suit was begun before but brought to hearing after, the passage of the Clayton Act Sober 15, 1914. Both parties invoked Revisions of the later act, and both created than as applicable. Complainant relied also upon the common law; shall deal first with the effect of the of Congress.

The facts . . . may be summarized as follows: Complainant conducts its business on "open-shop" policy, without discriminaagainst either union or nonunion men. The individual defendants and the local organization of which they are the representatives are affiliated with the International Association of Machinists . . . and are united in a combination, . . . having the object of compelling complainant to unionize its factory

In August, 1913 . . . the International Association called a strike at complainant's in Battle Creek, as a result of which union machinists to the number of about men in the factory, and three who supervised the erection of presses in the field, left complainant's employ.... The acts complained of made up the details of an elaborate program adopted and carried out by defendants in their organizations in and about the city of New York as part of a country-wide program adopted by the International Association, for the purpose of enforcing a boycott of complainant's product....

All the judges of the Circuit Court of Appeals concurred in the view that defendants' conduct consisted essentially of efforts to render it impossible for complainant to carry on any commerce in printing presses between Michigan and New York; and that defendants had agreed to do and were endeavoring to accomplish the very thing pronounced unlawful by this court in Lowe v. Lawyer. The judges also agreed that the interference with interstate commerce was such as ought to be enjoined, unless the Clayton Act of October 15, 1914, forbade such injunction....

That . . . complainant has sustained substantial damage to its interstate trade,—and is threatened with further and irreparable loss and damage in the future,—is proved by clear and undisputed evidence. Hence, the right to an injunction is clear if the threatened loss is due to a violation of the Sherman Act, as amended by the Clayton Act....

The substance of the matters here complained of is an interference with complainant's interstate trade intended to have coercive effect upon complainant, and produced by what is commonly known as a "secondary boycott"; that is, a combination not merely to refrain from dealing with complainant, or to advise or by peaceful means persuade complainant's customers to refrain ("primary boycott") but to exercise coercive pressure....

As we shall see, the recognized distinction between a primary and a secondary boycott is material to be considered upon the question of a proper construction of the Clayton Act....

The principal reliance is upon sec. 20 (of Clayton Act).... The second paragraph declares that "no such restraining order or injunction" shall prohibit certain conduct specified,—manifestly still referring to a "case between an employer and an employee, . . . involving, or growing out of, a dispute concerning terms or conditions of employment", as designated in the first paragraph. It is very clear that the restriction upon the use of the injunction is in favor only of those concerned as parties to such a dispute as is described....

The majority of the Circuit Court of Appeals appear to have entertained the view that the words "employers and employees" as used in sec. 20 should be treated as referring to "the business class or clan to which the parties litigant respectively belong;" and that, . . . sec. 20 operated to permit members of the Machinists' Union elsewhere—some 60,000 in number,—although standing in no relation of employment under complainant, past, present, or prospective, to make that dispute their own, and proceed to instigate sympathetic strikes, picketing, and boycotting against employers wholly unconnected with complainant's factory, and having relations with complainant only in the way of purchasing its product in the ordinary course of interstate commerce, —and this where there was no dispute between such employers and their employees respecting terms or conditions of employment.
We deem this construction altogether inadmissible....

The emphasis placed on the words "lawful" and "lawfully," "peaceful" and "peacefully", and the references to the dispute and the parties to it, strongly rebut a legislative intent to confer a general immunity for conduct violative of the Anti-Trust laws, or otherwise unlawful. The subject of the boycott is dealt with specifically in the "ceasing to patronize" provision, and by the clear force of the language employed the exemption is limited to pressure exerted upon a "party to such dispute" by means of "peaceful and lawful influence upon neutrals. There is nothing here to justify defendants or the organizations they represent in using either threats or persuasion to bring about strikes or a cessation of work on the part of employees of complainant's customers or prospective customers, or of the trucking company employed by the customers, with the object of compelling such customers to withdraw or refrain from commercial relations with complainant, and of thereby constraining complainant to yield the matter in dispute. To instigate a sympathetic strike in aid of a secondary boycott cannot be deemed "peaceful and lawful" persuasion....

The question whether the bill legalized a secondary boycott having been raised (in the House), it was emphatically and unequivocally answered . . . in the negative. The subject . . . was under consideration when the bill was framed, and the section as reported was carefully prepared with the settled purpose of excluding the secondary boycott, and confining boycotting to the parties to the dispute, allowing parties to cease to patronize and to ask others to cease to patronize a party to the dispute; it was the opinion of the committee that it did not for legalize the secondary boycott; it was not their purpose to authorize such a boycott; not a member of the committee would vote to do so; clarifying amendment was unnecessary; the section as reported expressed the real purpose so well that it could not be tortured into a meaning authorizing the secondary boycott....

There should be an injunction against defendants and the associations represented by them
Justices BRANDEIS, HOLMES and CLARKE