Apex Hosiery Co. v. Leader

• Decision Date: 05 June 1937
• Docket Number: No. 9741.,9741.
• Parties: APEX HOSIERY CO. v. LEADER et al.
• Court: U.S. District Court — Western District of Pennsylvania

20 F. Supp. 138

APEX HOSIERY CO. v. LEADER et al.

No. 9741.

District Court, E. D. Pennsylvania.

June 5, 1937.

Harry G. Sundheim, Arno P. Mowitz, and Sylvan H. Hirsch, all of Philadelphia, Pa., for plaintiff.

Nathan Ziserman, Benjamin R. Simons, Isadore Katz, and M. Herbert Syme, all of Philadelphia, Pa., for defendants.

KIRKPATRICK, District Judge.

The plaintiff is a manufacturer of full-fashioned hosiery. It has a good sized plant in the city of Philadelphia and employs 2,500 people. Its operations include the purchase of raw material from other states, manufacture of hosiery at its mill here, and shipment of the manufactured product into other states. It had on hand May 6, 1937, about $600,000 worth of finished stockings which were intended to be shipped in interstate commerce.

On May 6, 1937, a mob of some 10,000 people gathered outside of the plaintiff's plant and after an announcement by the defendant Leader, president of the union, that a sit-down strike was declared, broke into the building, did a considerable amount of physical damage to the furniture, office equipment, and windows, and assaulted and injured a few unarmed and defenseless employees who were found on the premises.

It has not been proved that any of the defendants took part directly in any of these acts of violence, but it is a fact that Leader and a number of the members of the union entered with the mob, that cots and other equipment for a sit-down strike were brought in at about the time that the mob entered, that after the mob had finally drifted out members of the union remained in the plant, that they proceeded to occupy it from May 6th until the present time and are still there, that they have excluded the plaintiff, its agents and employees from entering the plant except as permitted by the defendants for their own purposes, and that the result of the sit-down strike is a complete stoppage of production and a complete paralysis of all of the plaintiff's business operations.

A number of police officers were present at the time of the mob violence referred to, but made no effort to interfere with it in any way. They may have refrained from taking any actions by reason of instructions from superior officers, or it may have been that, in view of the size and temper of the mob, they felt that such action would have been futile, and dangerous to themselves. The plaintiff has appealed since that time to the officers charged with maintaining order and has received no response from them.

The plaintiff then filed this bill in equity in the United States court. The essential prayer of the bill is that the defendants be ordered and directed to surrender up possession of the seized premises, machinery, and equipment.

The continued occupation of the plant and holding of the premises against the plaintiff is a continuing trespass and a flagrant violation of the law of the state of Pennsylvania.

But the federal court is without jurisdiction to entertain this bill. There is no diversity of citizenship. It has not been seriously argued that the Wagner-Connery Labor Relations Act (National Labor Relations Act), 29 U.S.C.A. § 151 et seq., confers jurisdiction upon this court, and the only basis upon which the plaintiff contends that the federal court has jurisdiction is its power to restrain violations of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note.

The Sherman Anti-Trust Act declares illegal every combination in restraint of trade or commerce among the several states. It has been held that it applies to labor combinations as well as combinations of capital or of employers.

In construing the Sherman Act, however, the Supreme Court has consistently held to the view that as applied to labor combinations, in order to constitute a violation of the act, there must appear something more than "the mere reduction in the supply of an article to be shipped in interstate commerce by the illegal or tortious prevention of its manufacture or production." (I am quoting from the Second Coronado Case.) Coronado Coal Co. v. United Mine Workers, 268 U.S. 295, 45 S. Ct. 551, 556, 69 L.Ed. 963.

There must be present the purpose or intent to restrain or control the supply entering and moving in interstate commerce, or the price of it in interstate markets (Second Coronado Case) or to monopolize the supply, control the price, or discriminate as between would-be purchasers (United Leather Workers' Union v. Herkert & M. Trunk Co., 265 U.S. 457, 471, 44 S.Ct. 623, 627, 68 L.Ed. 1104, 33 A.L.R. 566) or to accomplish an undue and unreasonable restraint of commerce in the article, as it has sometimes been put (Bedford Co. v. Stone Cutters' Ass'n, 274 U.S. 37, 47 S.Ct. 522, 71 L.Ed. 916, 54 A.L. R. 791).

Now, there may be direct evidence of this intent; that is to say, there have been cases in which it has been found from the declarations of the defendants, from the publications of their official organs, from the minutes of the meetings of the unions that the primary object and purpose of the strike was to prevent competition in interstate commerce of goods produced in one locality with goods produced in a distant locality. Such evidence was found in the Second Coronado Case and in the Alco-Zander Case Alco-Zander Co. v. Amalgamated Clothing Workers (D.C.) 35 F.(2d) 203, which was decided by this court some years ago.

In this case there is no such evidence. All the direct evidence as to the purpose of the defendants in seizing and occupying the mill goes to show that it was solely to compel the plaintiff, by means of an indefinite suspension of manufacture and consequent financial loss, to accept the closed shop. There is no evidence of any other purpose.

The intent may also be presumed. I should say that it may be presumed in two kinds of cases.

First, I think there might be a presumed intention — although this is not necessary to decide in connection with this case, but I merely point it out — where the interference with production is so widespread as to result in stopping completely the entire manufacture and transportation in commerce of the product of some entire industry.

Obviously, that situation does not exist in the present case. There is no evidence before me as to the extent of the hosiery industry, but it is apparent that the effect of the elimination from commerce of the production of this individual mill cannot be very great, assuming that it produces 2 or 3 per cent., or even a little more, of the total production of the country.

Second, if the interference with commerce is direct and immediate, that is to say, to give the illustration that was used in the argument, if the...