Aeolian Co. v. Fischer , 29 F.2d 679 ( 1928 )

SWAN, Circuit Judge

(after stating the facts as above). The appellants claim that they are entitled to an injunction under the provisions of the Sherman Act (26 Stat. 209), as amended by the Clayton Act (38 Stat. 730). The lower court found against this contention because the defendants did not conspire to exclude plaintiffs’ organs from interstate commerce, but only to coerce the employment of union labor in the local work of installation and maintenance. The object of the defendants’ conduct was not to compel plaintiffs to unionize their factories, as in Duplex Co. v. Deering, 254 U. S. 443, 41 S. Ct. 172, 65 L. Ed. 349, 16 A. L. R. 196, or to prevent customers from buying plaintiffs’, organs when made by nonunion factory labor, as in Bedford Co. v. Stone Cutters’ Ass’n, 274 U. S. 37, 47 S. Ct. 522, 71 L. Ed. 916, 54 A. L. R. 791, but was to prevent nonunion men from doing the work of installing the organs within New York City and northern New Jersey. The indirect result of this might be to impede the sale of plaintiffs’ organs within this territory, but such indirect interference with interstate commerce is not within the prohibition of the Anti-Trust Act. Industrial Ass’n v. United States, 268 U. S. 64, 77, 45 S. Ct. 403, 69 L. Ed. 849; United Mine Workers v. Coronado Co., 259 U. S. 344, 411, 42 S. Ct 570, 66 L. Ed. 975, 27 A. L. R. 762. The decisions in the billposter's’ case, Ramsay Co. v. Bill Posters Ass’n, 260 U. S. 501, 43 S. Ct. 167, 67 L. Ed. 368, and the moving picture Aims case, Binderup v. Pathe Exchange, 263 U. S. 291, 44 S. Ct. 96, 68 L. Ed. 308, depend upon a direct purpose to restrain the transit of goods across state borders — a purpose which is lacking in the case at bar.

Therefore the appellants must establish, if they would show themselves entitled to an injunction under the federal statutes, that the work of setting up their organs in New York or New Jersey — such work being what the defendants seek to monopolize — is itself interstate commerce because part of the interstate commerce involved in sending the organ from another state. There are two opposing lines of decisions. On the one side are the lightning rod, the signal switch, and the bridge eases in which erection was held to be local business subject to local control. Browning v. Waycross, 233 U. S. 16, 34 S. Ct. 578, 58 L. Ed. 828; Gen. Ry. Signal Co. v. Virginia, 246 U. S. 500, 38 S. Ct. 360, 62 L. Ed. 854; Kansas City Steel Co. v. Arkansas, 269 U. S. 148, 46 S. Ct. 59, 70 L. Ed. 204. On the other side, are the picture frame and the ice machine eases in which installation service was held to be relevant and appropriate to the interstate sale and hence excluded from state interference. Dozier v. Alabama, 218 U. S. 124, 30 S. Ct. 649, 54 L. Ed. 965, 28 L. R. A. (N. S.) 264; York Mfg. Co. v. Colley, 247 U. S. 21, 38 S. Ct. 430, 62 L. Ed. 963, 11 A. L. R. 611. The distinction between the two classes of cases is not easily discernible. As suggested by Judge Denison in a dissenting opinion in Cone v. New Britain Machine Co. (C. C. A.) 20 F.(2d) 593, 597, the dividing line would seem to fall between shipping into the state raw materials there to be manufactured into deliverable form, and the assembling within the state of an article requiring skill to set up, of which an interstate sale had been made.

If this be the dividing line, and we see no other, it is the opinion of a majority of the court that insufficient facts were presented by the plaintiffs to enable the - court to determine on the motion for a preliminary injunction whether installing the organs should be held to be local work or an integral part of an interstate sale. Neither the bill of complaint nor the supporting affidavits appear to have been drawn with this precise issue in mind. No attempt is made to differentiate installation from maintenance or repair, yet clearly maintenance and repair for any considerable period after the organ had been set up and delivered could not be considered a part of its interstate transportation. The only contract of sale set forth verbatim refers to the organ as “now in Concert Hall at 29 West Forty-Second street,” and contains nothing to indicate that the installation of it in the clubhouse of the purchaser will have any relation to interstate commerce.

Diligent search of the affidavits discloses statements which do tend to support the plaintiffs’ contention. For example, it is said in Mr. Yotey’s affidavit that the organs are manufactured at the factory in New Jersey and shipped directly to the jobs in New York under orders taken by the salesmen in New York, and in Mr. Estey’s:

“The organs after being assembled and tested in the factory in Vermont are taken down and shipped to the various buildings where they are to be installed, and are there reassembled and tested.”

Generally, however, the affidavits speak only of “installing” the organs, just as the bill does. This term gives no aid on the issue under discussion. The line between construction and assembling can only be drawn by one having detailed knowledge of what the work involves. On the other hand, the affidavits also state facts which are not favorable to the plaintiffs’ contention. It appears that the installation of the organ in the Elks’ Club may take a month to complete, and defendant Meller states that the installation of an organ “is as much a part of the building operation as the installation of the steam plants, plumbing and electric fixtures,” that the work of installing involves steel metal work, carpentry, and electrical work, and that usually the equipment and apparatus are so large and extensive that special provisions have to be made in the building in the course of its construction. These facts tend to an inference that the work of erecting an organ is more like local construction, as in the bridge and signal switch cases, than like mere assembling, as in the ice plant and picture frame cases. In short, the precise nature of the work is so meagerly disclosed that the question cannot be determined on this record. After trial the court will doubtless be better informed. The' appellants had the burden of satisfying the court that a preliminary injunction should issue. We cannot say that error was committed in refusing it on the ground that the defendants’ conduct was not clearly shown to violate the federal statutes.

Basing federal jurisdiction upon diversity of citizenship, .the appellants further claim that under the state law the conduct of the defendants should be enjoined. The question presented is whether it is unlawful for union men engaged in the construction of a building, or for unions engaged in the operation of theaters, to refuse to work while nonunion men of another craft are at work on the premises. In Bossert v. Dhuy, 221 N. Y. 342, 117 N. E. 582, Ann. Cas. 1918D, 661, it was held lawful to refuse to work for contractors who used plaintiff’s nonunion made goods. However, the union whieh refused to work included only the same craft as that which made the boycotted goods. There was no question of allied crafts, as in the case at bar. Here Organ Workers’ Local No. 9 has become affiliated with the New York Building Trades Council, which includes all of the building trades excepting the iron and steel workers, and with the Combined Amusement Crafts, which is a labor organization composed of various trades engaged in the operation of theaters. Thus is brought to the aid of Organ Workers’ Local No. 9, in its effort to secure for its own membership the work of installing, maintaining, and repairing plaintiffs’ organs, the power of numerous allied crafts who appear to have no interest in the controversy, except a general desire to promote the cause of union labor. How far unions in different crafts may go in combining to aid a given craft to strengthen its union, or, in other words, how closely allied in fact must crafts be to justify such cooperation, is a question upon which the state law does not appear to have been authoritatively declared. Auburn Draying Co. v. Wardell, 227 N. Y. 1, 124 N. E. 97, 6 A. L. R. 901, held unlawful a boycott against a trucking company which would not operate upon a closed union shop basis. There the defendants not only refused to deal with plaintiff, but also influenced tradesmen and other customers not to do so. Whether their conduct would have been lawful, if they had influenced only members of labor unions is by no means dear. See Nat. Protective Ass’n v. Cumming, 170 N. Y. 315, 63 N. E. 369, 58 L. R. A. 135, 88 Am. St. Rep. 648, and compare Curren v. Galen, 152 N. Y. 33, 46 N. E. 297, 37 L. R. A. 802, 57 Am. St. Rep. 496, Jacobs v. Cohen, 183 N. Y. 207, 212, 76 N. E. 5, 2 L. R. A. (N. S.) 292, 5 Ann. Cas. 280, 111 Am. St. Rep. 730, McCord v. Thompson-Starret Co., 129 App. Div. 130, 113 N. Y. S. 385.

Considering that the question of law was doubtful, and that “facts bearing upon the inquiry are peculiarly lacking from the papers submitted upon this motion,” the District Court denied the injunction and offered the plaintiffs an immediate trial. He acted within his discretionary power in so doing, and should not be overruled, unless there was an obvious abuse of discretion. Decorative Stone Co. v. Building Trades Council, 13 F. (2d) 123 (C. C. A. 2). We do not think there was. Seldom can labor disputes wisely be decided upon affidavits and counter affidavits. On the present issues the law is too uncertain to be applied without full knowledge of the facts. The suit raises questions of importance to the public as well as to the parties, and should be awarded a final hearing promptly. Such a hearing plaintiffs rejected in order to appeal, but, for the reasons stated, the issues cannot be satisfactorily passed upon on the present record.

Accordingly the decree is affirmed.