Aeolian Co. v. Fischer

• Decision Date: 15 May 1928
• Parties: ÆOLIAN CO. et al. v. FISCHER et al.
• Court: U.S. District Court — Southern District of New York

27 F.2d 560 (1928)

ÆOLIAN CO. et al. v. FISCHER et al.

District Court, S. D. New York.

May 15, 1928.

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Pavey & Higgins, of New York City (J. C. Higgins, of New York City, of counsel), for plaintiffs.

Morris Hillquit, of New York City, for defendants Fischer, Rosebrook and Meller.

James E. Smith, of New York City, for defendant Local Union No. 3, International Brotherhood of Electrical Workers.

Marcus E. Joffe, of New York City, for defendants Combined Amusement Crafts and Carl Lessing.

THACHER, District Judge (after stating the facts as above).

It seems entirely clear that this case can find no support in the Sherman Act, as amended by the Clayton Act (15 USCA § 1 et seq.). Strikes were not called or threatened against the use of plaintiffs' organs, but only against the employment of nonunion labor in the local work of installation and maintenance. The purpose of all that was done was to coerce the employment of union men in one local craft through the refusal of other crafts to work on the same building with nonunion men. There was no intent, express or implied, to exclude nonunion products from interstate commerce, as in the Bedford and Duplex Cases. On the contrary, the effect, if any, upon interstate commerce, resulted from interferences with the local installation of plaintiffs' organs for a purely local object. The case is therefore governed by principles applied in Industrial Ass'n v. United States, 268 U. S. 64, 77, 45 S. Ct. 403, 69 L. Ed. 849, and United Mine Workers v. Coronado Co., 259 U. S. 344, 410, 411, 42 S. Ct. 570, 66 L. Ed. 975, 27 A. L. R. 762, and the decisions in Bedford Co. v. Stone Cutters' Ass'n, 274 U. S. 37, 47 S. Ct. 522, 71 L. Ed. 916, and Duplex Co. v. Deering, 254 U. S. 443, 41 S. Ct. 172, 65 L. Ed. 349, 16 A. L. R. 196, are not in point. In the Bedford Case it was said:

"The product against which the strikes were directed, it is true, had come to rest in the respective localities to which it had been shipped, so that it had ceased to be a subject of interstate commerce, Industrial Ass'n v. United States, 268 U. S. 64, 78, 79 45 S. Ct. 403, 69 L. Ed. 849; and interferences for a purely local object with its use, with no intention, express or implied, to restrain interstate commerce, it may be assumed, would not have been a violation of the Anti-Trust Act. Id., p. 77 45 S. Ct. 403; United Mine Workers v. Coronado Co., 259 U. S. 344, 410, 411 42 S. Ct. 570, 66 L. Ed. 975, 27 A. L. R. 762. But these interferences were not thus in pursuit of a local motive; they had for their primary aim restraint of the interstate sale and shipment of the commodity. Interstate commerce was the direct object of attack `for the sake of which the several specific acts and courses of conduct were done and adopted.' And the restraint of such commerce was the necessary consequence of the acts and conduct and the immediate end in view."

Coming, then, to the contention that plaintiff is entitled to relief under the common law of this state, there is no doubt that the defendant Organ Workers' Local No. 9, having failed in its efforts to unionize the plaintiffs' employees in the installation and maintenance of pipe organs in New York City by calling a strike of such employees, has for some time past endeavored to accomplish the same result through the sympathetic support of various unions affiliated with the Building Trades Council of New York, and that it has been able to persuade some of these affiliated unions to refuse to work in buildings where nonunion employees of the plaintiffs are engaged in the installation of organs. The Organ Workers' Local No. 9 has not only endeavored to prevent the employment of nonunion men by the plaintiffs in the installation of organs, by persuading other trades to refuse to work on buildings where such instruments were being installed, but through its affiliation with the Combined Amusement Crafts has endeavored in much the same way to prevent the employment of nonunion labor in the maintenance of organs, after installation, in theaters, by persuading the various crafts to refuse to work in theaters where plaintiffs' nonunion employees have been engaged in repairing or tuning organs. All this has been done through peaceful persuasion, without threats of violence or other unlawful act, and the question presented is whether it is lawful for union men, engaged in the construction of buildings and in the operation of theaters, to refuse to work while nonunion men of another craft are at work on the...