Levering & Garrigues Co. v. Morrin

• Decision Date: 11 June 1934
• Docket Number: No. 393.,393.
• Citation: 71 F.2d 284
• Parties: LEVERING & GARRIGUES CO. et al. v. MORRIN et al.
• Court: U.S. Court of Appeals — Second Circuit

71 F.2d 284 (1934)

LEVERING & GARRIGUES CO. et al. v. MORRIN et al.

No. 393.

Circuit Court of Appeals, Second Circuit.

June 11, 1934.

Frank P. Walsh, of New York City (Frank P. Walsh and John Walsh, both of New York City, of counsel), for appellants.

Edward Maxson, of New York City (Merritt Lane, of Newark, N. J., of counsel), for appellees.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

MANTON, Circuit Judge.

Appeal from a final decree. The decree, as entered, is alleged to be in violation of the labor law (29 USCA § 104 (a, e, g-i). The case was here before 61 F.(2d) 115, where we reversed the lower court, and that reversal was affirmed by the Supreme Court (289 U. S. 103, 53 S. Ct. 549, 77 L. Ed. 1062). We directed that the bill be dismissed, without prejudice, for lack of jurisdiction unless the appellees amended so as to correct the jurisdictional defect by striking from the bill a number of defendants. Below the court permitted the amendment and enjoined the present appellants.

These appellants, by the decree made October 14, 1933, amended January 8, 1934, are restrained and enjoined, with their agents or servants or those in active concert with them, "from inducing or attempting to induce owners, architects or general contractors to let no subcontracts to plaintiffs for the erection of structural iron and steel on buildings now being or to be erected in the Metropolitan District of New York, by sending to them circulars or other writing, stating, threatening, warning or intimating * * * that members of the unions associated with the International may or will refuse to work on buildings upon which plaintiffs have or may have sub-contracts, or by ordering, instigating, carrying on or supporting sympathetic strikes, on buildings upon which plaintiffs have or may have sub-contracts, or from otherwise attempting by coercive pressure, threats or intimidation, or such other unlawful means, to compel or influence owners, architects and general contractors not to patronize the plaintiffs."

After issue was joined, the matter was referred to a master, who found that, at the time of the occurrences involved, the building industry in the metropolitan district of New York was completely organized, excepting as to appellants and other members of the Iron League. Unions had been recognized and were operating under union conditions including a closed shop. The appellees and other members of the Iron League were operating on an open shop basis, the effect of this being that, in the construction of large buildings, members of unions operating closed shop and working on the same building at trades other than steel erection would have to work side by side with nonunion men who might be employed by members of the League. This gave rise to a controversy resulting in continuous strife between the Iron League and the International Union for a number of years. The League insisted on operating on an open shop plan, employing both union and nonunion men. The International's policy has been to cause the League to recognize the union and work under union conditions, including the closed shop. As a result, strikes and labor troubles occurred from time to time during the years, some of which were sympathetic strikes.

The master found that the controversy and dispute between the union and the appellees arose because of this difference of opinion and purposes; that the purpose of the appellants was to obtain a closed shop condition, and the purpose of the appellees to obtain an open shop condition in their employment of labor; that, by making public, notifying, advising, and urging owners, architects, and contractors engaged in the building business that members of the unions would cease and refuse to perform any work or to remain in any relation of employment with them if the subcontracts let for the erection of steel did not provide for the closed shop; that the appellants did give publicity to the existence of their complaint against the appellees by advertising, speaking, and patrolling and they did so advise and notify the contractors that, unless their requests were granted, they would advise, urge, and get the agreement of others to cease to perform any work or to remain in any relation of employment with them; that appellants, appellees, the owners, architects, and contractors, were all engaged in the same industry; that the dispute was not attended by fraud or violence; and that the defendants did not stand in direct relationship of employer and employee with the appellees.

The present appellants, Paul Morrin, William J. McGinn, Charles Massey, and Earl Calvert, are members of the International Association of Bridge, Structural and Ornamental Iron Workers and are now the sole defendants, for, after the reversal on the former appeal, permission was granted by the District Court to discontinue the suit as to the other named defendants.

In reversing the lower court, we stated that the District Court was to determine whether recent legislation (29 USCA §§ 101-115) had any application to further proceedings in this cause. The applicable provision of the statute is section 104, which reads:

"§ 104. Enumeration of specific acts not subject to restraining orders or injunctions. No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:

"(a) Ceasing or refusing to perform any work or to remain in any relation of employment; * * *

"(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; * * *

"(g) Advising or notifying any person of an intention to do any of the acts heretofore specified;

"(h) Agreeing with other persons to do or not to do any of the acts heretofore specified; and

"(i) Advising, urging, or otherwise causing or inducing without fraud or violence the acts heretofore specified, regardless of any such undertaking or promise as is described in section 103 of this chapter."

No court of the United States may grant a restraining order, temporary or permanent, in a labor dispute because of doing in concert the acts enumerated in section 104. Section 113 provides:

"§ 113. Definitions of terms and words used in chapter. When used in this chapter, and for the purposes of this chapter —

"(a) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft, or occupation; or have direct or indirect interests therein; or who are employees of the same employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is (1) between one or more employers or associations of employers and one or more employees or associations of employees; (2) between one or more employers or associations of employers and one...