United Electrical R. & Mach. Workers v. IB OF E. WORKERS

• Decision Date: 04 November 1940
• Docket Number: No. 48.,48.
• Parties: UNITED ELECTRICAL RADIO & MACHINE WORKERS OF AMERICA v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS et al.
• Court: U.S. Court of Appeals — Second Circuit

115 F.2d 488 (1940)

UNITED ELECTRICAL RADIO & MACHINE WORKERS OF AMERICA v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS et al.

No. 48.

Circuit Court of Appeals, Second Circuit.

November 4, 1940.

Boudin, Cohn & Glickstein, (Louis B. Boudin, of New York City, of counsel) for appellant.

Isaac Lobe Straus, of Baltimore, Md., Claude A. Hope and Delafield, Marsh, Porter & Hope, all of New York City, for International Brotherhood of Electrical Workers.

Parker & Duryee, of New York City (Davidson Sommers, of New York City, James M. Houston, of Pittsburgh, Pa., of counsel) for National Electric Products Co.

Herman L. Weisman, of New York City, (Herman L. Weisman and Ambrose Doskow, both of New York City, of counsel) for H. Z. Altberg, Inc., and others.

Raymond L. Wise, of New York City, (Raymond L. Wise, William Esbitt, and Theodore W. Kohn, all of New York City, of counsel) for L. K. Comstock & Co. and J. Livingston & Co.

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

L. HAND, Circuit Judge.

This is an appeal from a judgment dismissing a complaint for insufficiency on its face and must therefore be decided solely upon its allegations. The complaint alleged that the plaintiff was an unincorporated labor union whose members are engaged in producing electrical machinery and the like, and which had been chosen as collective bargaining representative "by numerous employees," and certified by the National Labor Relations Board "on numerous occasions"; so that now it is the representative "of the majority of employees in the said industry and certified as such in a vast majority of the cases wherein such disputes had arisen." The defendant, International Brotherhood, is also an unincorporated labor union whose members are engaged "primarily * * * in the installation of electrical equipment." Two other defendants are locals of the Brotherhood, and all the corporate defendants except the National Electric Products Corporation are "engaged in the handling and installing of electrical machinery"; the National Electric Products Corporation is a manufacturer of such machinery. All the defendants have conspired "to deprive the plaintiff of the right conferred upon and guaranteed to it" by the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., "as the representative of its members and other workers in the said industry for collective bargaining." To carry out this conspiracy the defendants agreed among themselves and with others; (a) "not to allow" the plaintiff's members and other workmen "to freely choose their own representatives for the purpose of bargaining collectively * * * but to coerce them to designate" the Brotherhood, or its creatures; (b) to prevent members of the Brotherhood from installing any electrical machinery made by workmen who had chosen the plaintiff as their bargaining representative; and (c) to notify all employers that unless they refused to bargain collectively with the plaintiff when it was chosen as bargaining representative, they would not install the products of these employers and would prevent their installation. That, further to carry out the conspiracy the defendants (d) boycotted all products made by these employers, among which were those made by the plaintiff's members employed in shops in which it had been chosen the bargaining representative; and (e) had notified "all dealers and jobbers in electrical machinery" of the boycott, because of which many of those notified stopped handling such products.

These objects the defendants carried out (1) by "agitation, propaganda, and other organizational work, in order to wean away the members of the plaintiff from their allegiance"; (2) by "slander and vilification of the plaintiff" to induce other workmen to join the Brotherhood and, again, "to wean away" the plaintiff's members; (3) by the employer-defendants' discharging such of their employees as had become members of the plaintiff; (4) by spreading rumors that unless the employees of the employer-defendants chose the Brotherhood as bargaining representative, they would boycott the products of any employer who recognized any other representative. By these means many employees who would otherwise have chosen the plaintiff had been led to choose the Brotherhood as bargaining representative, by which the plaintiff had suffered damage in the amount of $250,000. (Although the complaint said nothing about interstate commerce, we shall assume that the industry in which the plaintiff's members were employed and suffered the putative wrongs, was interstate in such sense as to be subject to the National Labor Relations Act.)

We shall first try to state the plaintiff's legal position as we understand it. Section 7 of the National Labor Relations Act did not "create a new right," but "secured" an old one; and for this reason it did not limit the remedies available for its protection to those laid down in the act itself; that is, recourse to the Board and to the courts only through the Board. It is true that as to "unfair labor practices," the Board's powers are "exclusive," § 10 (a); but the very fact that they were expressly made so in that instance should be taken to indicate that they were not to be exclusive as to other "rights," and especially as to the "right secured" by § 7. While § 9 gives the Board power to investigate "and decide controversies as to who is the true bargaining representative of the employer unit, craft unit, plant unit or subdivision thereof," and while the Board's certificate may be reviewed incidentally to the review of an order forbidding "an unfair labor practice," § 9 (d), that is not a remedy for the violation of the "right secured" by § 7. Moreover, it is not to be supposed that because no remedy was expressly given, none was intended; on the contrary there is a remedy for the violation of every right, and here there is none unless the federal courts can give it. Those courts therefore have a jurisdiction under § 24 (1) of the Judicial Code, 28 U.S.C.A. § 41(1), because the action "arises under the * * * laws of the United States." (Incidentally, it is not necessary that the amount in controversy should be $3,000, because the action also arises under a "law regulating commerce," § 24 (8). But that it is not necessary so to decide, because in any event the amount at stake is far more than the necessary amount.)

The plaintiff in saying that § 7 did not "create" a new "right," but merely "secured" an old one, borrows from the language used in Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 263, 60 S.Ct. 561, 84 L.Ed. 738, but we think that it has misapplied what the court said. Before 1935 the states had generally recognized that employees had a "legally protected interest" in collective bargaining, but they differed as to the extent to which the conflicting interest of the employer was an excuse for its invasion. The National Labor Relations Act spoke to that background and "secured" the existing "right," but by more than the bestowal of new remedies. When by § 7 Congress declared that the interest of employees in collective bargaining should be protected, it fixed by its own fiat what conflicting interests, if any — whether of employers or others — should be excuses for invading it. And while a purist might indeed insist that that "created" a new "right," the meaning of the court is entirely...