Aeolian Co. v. Fischer

• Decision Date: 07 April 1930
• Docket Number: No. 270.,270.
• Citation: 40 F.2d 189
• Parties: AEOLIAN CO. et al. v. FISCHER et al.
• Court: U.S. Court of Appeals — Second Circuit

40 F.2d 189 (1930)

AEOLIAN CO. et al. v. FISCHER et al.

No. 270.

Circuit Court of Appeals, Second Circuit.

April 7, 1930.

Pavey & Higgins, of New York City (Walter Gordon Merritt and James C. Higgins, both of New York City, of counsel), for appellants.

James E. Smith, of New York City, for appellees.

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

MANTON, Circuit Judge.

The appellants appeal from a decree dismissing the bill of complaint after final hearing. The suit seeks to restrain the appellees, labor unions and individuals associated with them, from combining to restrain interstate commerce and destroying the business of the appellants by calling strikes or threatening to call strikes in building trades employed on buildings where the appellants were installing their organs, sold and shipped in interstate commerce. The case was here before, Aeolian Co. v. Fischer, 29 F.(2d) 679, where we affirmed an order denying the application for a preliminary injunction.

All the appellants but one are foreign corporations, and are organ manufacturers selling their product in interstate commerce to moving picture theaters, churches, and for private uses. The contracts are interstate in their nature, and provide for the building, shipping, erection, and sale of the completed organ in the house of installation.

The record differs in one aspect from that which we considered when it was here before. At final hearing, it was established and found by the court below, that the appellants were engaged in interstate commerce in the sale, shipment, and installation of its organs. The court below found that the appellants, with one exception, maintained organ factories outside of the state of New York and entered into contracts for the sale and installation of organs within the state; that the essential parts of the organ are made in the factories, with the exception of the flues leading from the air pipe to the air box of the chambers; some parts are temporarily assembled before shipment and are tested in the factory, but shipment is then made in separate parts and installed on the premises of the purchaser. The District Judge said:

"The agreement of the organ manufacturer to install is not only relevant and appropriate to the interstate sale but is essential if an organ, as distinguished from its parts, may be sold at all. The thing sold is a musical instrument, complete in itself. * * * Without descending to mechanical description it may be said that the work of installation is of the most vital importance in the construction of the completed organ, and requires in its performance not only the highest mechanical skill but a thorough understanding of the methods employed by the manufacturer in the arrangement of mechanical and electrical connections. * * * Whatever distinctions may be drawn in doubtful cases, it is clear that the instant case is governed and controlled by the decision in the ice machine case (York Mfg. Co. v. Colley, 247 U. S. 21, 38 S. Ct. 430, 62 L. Ed. 963, 11 A. L. R. 611). The distinction there drawn between the setting up of lightning rods (Browning v. Waycross, 233 U. S. 16, 34 S. Ct. 578, 58 L. Ed. 828) and the installation of an ice machine shows that the contracts here in question for the construction and installation of organs clearly involve interstate commerce not only in the manufacture and shipment of the organ, but in its installation after arrival within the state."

With this conclusion we agree.

The only work performed by the purchaser is hoisting the organ parts, if unduly bulky, installation of high-voltage electrical connections, furnishing and installing the wind trunking between the blower room and the organ chamber, and the furnishing of light, heat, and electric power required for the erecting, tuning, and completion of the instrument. The other work of installation was performed by the appellants' skilled workers.

Labor troubles developed in the industry because of demands made by Organ Workers' Local No. 9 relative to wages and working conditions and the employment of men in New York City. This related to installation work. A general strike was called by that union, which lasted for fourteen weeks in 1925. In September, 1927, a delegate of the Organ Workers' Local No. 9 presented a form of union contract for signature to the appellant Wurlitzer Company, which made provision for the employment of none but union men and women. This contract was not signed by this appellant, and some of the men who were members of the union left the union. Organ Workers' Union No. 9 became affiliated with the Building Trade Council through the representation of its delegate, and the council consisted of various building trade unions of New York City. Its constitution forbids "their members to work with a nonunion man, or with members of a dual or hostile body to any industry represented." This co-operation on the part of the unions made it impossible for an employer or contractor engaged in the building trades to do his work with nonunion men, and the record shows that it is impossible for a building to be erected in this city without the exclusive employment of union labor. It resulted in having the force and effect of the Building Trades Council in back of the efforts of the Organ Workers' Local No. 9 to force unionism upon appellants' nonunion organ workers. It may be questioned whether installation of an organ is the work of erecting a building, for, when it is installed, the organ is still a musical instrument.

Organ Workers' Local No. 9 is also affiliated with the Combined Amusement Crafts, an association of stage hands and theater operators whose sympathetic support it had threatened to use. In February or March, 1928, Local No. 9 had a membership of about ninety men, and its delegate endeavored to get the nonunion men to join. His purpose was to unionize fully the outside work of erecting organs in New York and other parts of the country and then to unionize the factories by the requirements that all organs erected in a building where union labor is employed must be manufactured by union men and bear the union label. In order to prevent nonunion men working in the buildings where the appellants were installing organs, the delegate of Local No. 9 told purchasers of organs that he would call out all the trades on strike if the particular organ was installed by nonunion men. This threat was made to one Hammerstein, a purchaser of an organ for the Hammerstein Temple of Music, and to an owner who purchased an organ for the Plaza Theatre. In the Elks Club, Brooklyn, one of the appellants' (the Aeolian Company) men were locked out from the building. At the Plaza Theatre in Linden, N. J., workers were secretly substituted for the Wurlitzer men in violation of the terms of the contract of installation, and, after these men had been discovered and removed, it became necessary for the Wurlitzer Company to work at night in order to avoid interference with the building trades. The Wurlitzer Company men were driven from the work at the Ritz Theatre, Lindenhurst, N. J., and were off the job for a week until the electricians and other building trades had completed their work. Another instance of interference was a delay of from two to four days at the Castle Hill Theatre. Men were assaulted at the Marble Hill Theatre, and the entire force had to be removed and stayed away for about six weeks. The Wurlitzer men were arrested for trespassing at the Oxford Theatre, Little Falls, N. J., after the general contractor had been served with a general strike order. The owner of the Pythian Theatre was threatened with a general strike, and he paid to have the organ workers reinstated in the union so that they might finish the work unmolested. One contract, between the appellant Estey Organ Company and the Capital Theatre for additions and repairs to an organ was canceled after threats to call out the theatrical trade, and the work was finished by union men not in the employ of the Estey Organ Company. The Austin Organ Company's workmen were taken off the installation of a theater at Mt. Vernon, N. Y., after threats made by a union delegate and were not permitted to return until after they had been unionized at the company's expense. The Skinner Organ Company was given three days of grace to unionize its men at the Colony Theatre, and they were only allowed to go on with the work after they had joined the Local No. 9 at the expense of that company. Other acts of interference with the appellants' interstate commerce consisted of threats to strike and unjustified claims of right of the sheet metal workers' delegate to do the wind trunking within the organ as well as without; also threats were made by the riggers' union delegate that the organ would have to be taken out of the building because it was rigged by nonunion men. In one instance a switchboard was nailed up and the electric wires cut by an electrician on the Universal Theatre job. The Electricians' Union Local No. 3 refused to do the wiring on the organ installed in the Church of the Redeemer in Brooklyn, and a general strike followed there.

These interferences with the appellants' business have seriously affected their good will, for organ purchasers are fearful of contracting with them, feeling that they would have difficulty in installing their instruments and also with the building trades unions. This interference stands uncontradicted, although the delegate of Union No. 9 was a witness for the defense.

In Anderson v. Shipowners' Ass'n, 272 U. S. 359, 47 S. Ct. 125, 126, 71 L. Ed. 298, plaintiff sought to enjoin the shipowners' association whose men controlled substantially all the merchant vessels of American registry, who engaged in interstate and foreign commerce, because they had entered into an arrangement to control...