INTERNATIONAL ASS'N ETC. v. Pauly Jail Bldg. Co.

• Decision Date: 01 April 1941
• Docket Number: No. 11644.,11644.
• Citation: 118 F.2d 615
• Parties: INTERNATIONAL ASS'N OF BRIDGE, STRUCTURAL & ORNAMENTAL IRON WORKERS et al. v. PAULY JAIL BLDG. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

118 F.2d 615 (1941)

INTERNATIONAL ASS'N OF BRIDGE, STRUCTURAL & ORNAMENTAL IRON WORKERS et al. v. PAULY JAIL BLDG. CO. et al.

No. 11644.

Circuit Court of Appeals, Eighth Circuit.

April 1, 1941.

Robert J. Keefe, of St. Louis, Mo. (Igoe, Carroll, Keefe & McAfee, of St. Louis, Mo., on the brief), for appellants.

Charles H. Spoehrer, of St. Louis, Mo., for appellees.

Before GARDNER, WOODROUGH, and JOHNSEN, Circuit Judges.

JOHNSEN, Circuit Judge.

The question is whether an injunction issued by the district court against a labor union and its officers, in connection with a strike, is sustainable under the Norris-La Guardia Act, Act of March 23, 1932, 47 Stat. 70, 29 U.S.C.A. §§ 101-115, on the ground of fraud.

Section 4 of that Act, 29 U.S.C.A. § 104, prohibits an injunction against, among other acts, "(e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence," and "(i) Advising, urging, or otherwise causing or inducing without fraud or violence" other persons to cease or refuse "to perform any work or to remain in any relation of employment."

The district court held that it was a fraud, within the exception in the Norris-LaGuardia Act, for the union to make representations that the employer was unfair in refusing to execute a collective bargaining agreement with it, containing a closed shop provision, for the reason that the union did not represent a majority of the workers, and the employer, in making such an agreement, would be violating the National Labor Relations Act, Act of July 5, 1935, 49 Stat. 452, 453, 29 U.S.C.A. §§ 158, 159.¹ Section 9 of that Act provides that representatives designated or selected by a majority of the employees in a unit appropriate for that purpose shall be the exclusive representatives, for collective bargaining purposes, of all employees in the unit. Section 8 makes it an unfair labor practice for an employer to refuse to bargain collectively with such designated or selected representatives of his employees, and authorizes the employer, where he is willing to do so, to enter into a closed shop agreement with such an unsponsored and majority-designated labor organization.

A permanent injunction was granted in favor of the employer, forbidding the union and its officers to represent that the employer was unfair in refusing to enter into a collective bargaining agreement, containing a closed shop provision, with the union; prohibiting them from advising or soliciting any one not to work for the employer or for any contractor or builder purchasing or installing its products on the ground that the employer had failed to make such an agreement with the union; barring them from informing any one of their intention not to work for the employer because of its refusal to enter into such an agreement; and proscribing the making of any agreement with any one not to engage in any work for the employer or for any third party using the employer's products, "when such agreement in any manner involves or is based upon the representation by defendants that plaintiffs should make a collective bargaining agreement with defendants."

The Norris-LaGuardia Act does not attempt a definition of the term fraud, but the unmistakable public policy which it declares does not leave room for a mere academic concept, such as may constitute the foundation for ordinary equitable relief. Expressions of opinion, though inaccurate and even misrepresentative in character, obviously cannot be permitted to be made the basis ordinarily for injunctive process in a labor dispute. Wilson & Co. v. Birl, 3 Cir., 105 F.2d 948; Cinderella Theater Co. v. Sign Writers' Local Union No. 591, D.C.Mich., 6 F.Supp. 164. Accusations of unfairness against an employer normally will fall within this category. Nor will an isolated act of incidental conduct support an injunction, simply because it may seem to be lacking in good faith.

The fact must not be lost sight of, that however narrow the scope of injunctive relief may be in form, the issuance of the writ for any purpose in a labor dispute will generally tip the scales of the controversy. Plainly this was the very evil against which the Norris-LaGuardia Act was basically directed. In effectuating the purpose of the Act, therefore, the exceptions which have been left open to injunctive process may not be treated lightly, or as if the Act had never been passed, but should be viewed restrainedly, as a narrow field of permissive jurisdiction, exercisable in the interest of a public policy co-ordinate with that aspect upon which the prohibitions of the statute rest.

The dignity of the State has always demanded that certain forms of conduct be not permitted to become the controlling basis for disposing of individual or social controversies. And so, in making "fraud or violence" an exception under the Norris-LaGuardia Act, Congress obviously did not do so because the damages therefrom to any of the parties might be sharper or more penetrative than from other methods of carrying on the dispute. The statute does not concern itself with the nature or extent of the damages that the parties may sustain from a labor dispute, except to require that there be "substantial and irreparable injury to complainant's property," as a foundation for injunctive process. Since irreparable injury always has been a jurisdictional prerequisite in such a case, the statute added nothing in that respect. What Congress accordingly must be regarded as having intended in the situation was to leave the federal courts free to enjoin those permeative acts, falling within the term "fraud or violence", which an unsluggish public conscience and a healthy social order cannot soundly tolerate, even at the risk of thereby enabling one of the parties to tip the scales of the fundamental dispute.

The suit here involved was instituted by Pauly Jail Building Company, a corporation engaged in manufacturing and installing steel windows and jail equipment, and by Security Products Company, a subsidiary sales corporation for Pauly products, as plaintiffs. The Pauly plant or factory is located at St. Louis, Missouri, and eighty per cent of its products are distributed in interstate commerce. Defendants, who are the appellants here, consist of the American Federation of Labor's general union of workers engaged in fabricating and installing iron and steel products throughout the country, some of the officers and agents of the union, and one of its local bodies or units in whose territorial jurisdiction the Pauly plant is located. The general union has a membership of approximately 45,000. The local union has its separate officers and by-laws but is merely a constituent unit or functioning part of the general union. For any purpose here, it will be unnecessary to distinguish between them, and they may simply be referred to as the union.

In May, 1937, the union concededly represented a large majority of the fabricating or production employees of the Pauly plant, and the employer entered into an agreement with it as the exclusive bargaining agency of such employees, for the period of a year. Before the agreement expired, the union gave notice that it desired some changes on renewal, consisting of a closed shop provision, wage adjustments, classification of employees and seniority recognition. No understanding had been reached, when the original agreement expired. Negotiations and conferences were continued intermittently until September 21, 1938. The employer would not agree to a closed shop, and the union would not recede from its demand. In the deadlock thus created, while the other demands of the union were discussed, no attempt was made to dispose of them.

On September 22, 1938, the union called a strike. The employer admits that the union at that time, as it had in the past, represented a large majority of the production employees. The plant was closed from the date of the strike until the latter part of November, 1938. It was picketed all during this period, and down to the time of the trial in the district court, but without disturbance or violence.

On October 6, 1938, the employer sent out a letter to all employees, declaring, among other things, that the company was willing to make a contract with the union, giving the employees all the rights to which they were entitled under the National Labor Relations Act, but that it could not approve the closed shop proposal, because it would not "coerce any of its employees into joining or not joining a union."

On October 10, 1938, there was another letter from the president, stating that "the company would not now or at any time in the future sign a closed shop contract. * * * A contract of that kind is not fair to employees and I positively will not become a party to a contract which imposes that kind of restriction on employment."

On October 18, 1938, and October 27, 1938, similar letters were sent out, with suggestions that the employees give consideration to the matter of returning to work. On November 25, 1938, there was a further letter, stating that a conference had again been held with the representative of the union, "in an effort to convince him that the Company could not and would not sign a closed shop agreement" and declaring that the plant would reopen on November 29, 1938. The communication added: "We want you to know that as a matter of record, notwithstanding the Company's position to reopen the plant, it is willing at any time in the future to resume negotiations and bargain with the representative of the employees and at the conclusion of such negotiations to enter into an equitable contract with the Union."

On December 23, 1938, the company again wrote its employees, advising them that the plant had been reopened on November 30, 1938, and that one-half of the employees had returned to work, and urging those still on strike...