O'BRIEN v. Fackenthal ( 1925 )

DENISON, Circuit Judge

(after stating the facts as above). The majority of the court think that the judgment should be affirmed and, in the main, for the reasons stated by the district judge in both opinions. Judge MACK thinks otherwise. Under these circumstances it seems sufficient to state the conclusions of the majority without elaboration.

1. So far as the injunction may forbid the Sheet Metal Workers’ Union from inducing and procuring other crafts to strike in aid of its position, neither the practical effects of the injunction nor the facts involved are clear enough to justify consideration. We do not think that particular subject-matter is necessary to be decided.

2. So far as the injunetion forbids threats of strikes and coercion of that nature as to a building upon which plaintiff is not engaged and no carpenters are employed in the disputed work, the right to injunction has a stronger foundation than as to buildings upon which this dispute has become concrete; but the decree below cannot be wholly sustained by restricting it to this situation.

3. The sheet metal workers say that the carpenters have refused to abide by the controlling union laws; and, if this is true, then, so far as we can see, the carpenters have become, for this purpose and from the viewpoint of the sheet metal workers, nonunion men, and the legal 'aspect of the controversy is just the same as if between union and nonunion workmen.

4. The right to strike and threaten to do so, as a means of coercing an employer with whom the strikers.have a direct controversy, and as a general right, is not questioned upon this appeal; it is the limitations upon that right which are here involved.

5. There is not and never was any employer-employee relation between the plaintiff and the Sheet Metal Workers’ Union. There was no controversy between the building owner and this union. A valid contract existed between plaintiff and the city, and the defendants compelled the city to break it; and the city doubtless became, in a sense, engaged in a joint conspiracy with the sheet metal workers to compel the plaintiff to conduct his business in a way distasteful to him. The effort of the sheet metal workers is to succeed over their immediate opponent, the carpenters’ employer, by injuring and threatening to injure third parties, the building owners, who are strangers to the controversy.

6. While the ease does not show the malicious enticement of the Hitehman ease, and while it does not present a secondary boycott in the precise aspect of the Duplex and Truax eases, we conclude that it is governed by the underlying principle of the two cases last named, and that the decree below was therefore justified upon that principle.

7. It is more than doubtful whether the Carpenters’ Union was bound to submit or did submit this jurisdictional dispute to the arbitral tribunal. If not — as the district judge was inclined to think and as appellee forcibly argues — the questions chiefly relied on by appellant disappear from the case. At any rate, plaintiff was not bound by the arbitration, and cannot be compelled to conduct his business accordingly.

The decree is affirmed.